by Robin Roenker
In the early days of America’s Westward expansion, the U.S. federal government officially viewed Native American Tribes as sovereign, independent nations. As a result, for a period of nearly 100 years—roughly between 1778 and 1871—all official diplomatic arrangements between the U.S. government and indigenous tribes came in the form of a treaty, which is a formal, binding agreement between two countries, according to the Bureau of Indian Affairs, which falls under the U.S. Department of the Interior.
In all, the U.S. negotiated approximately 370 treaties with Native American tribes before Congress officially ended treaty-making with Native Americans in 1871. Since then, formal agreements between the U.S. government and Native American tribes have come in the form of Acts of Congress or Executive Orders issued by the President.
“During the ‘treaty era,’ when the U.S. government wanted to reset a tribe’s reservation boundaries, they would do that through a treaty,” says Neoshia Roemer, a professor at Seton Hall Law School who teaches courses in Federal Indian Law. “A lot of the treaties were about land, and oftentimes the tribes didn’t have a lot of bargaining power in the treaty.”
Today, according to the Bureau of Indian Affairs, the U.S. government federally recognizes 574 Native American tribes. According to the Office of Tribal Justice, which operates under the U.S. Department of Justice, “recognition” is a legal term and means that the U.S. recognizes a government-to-government relationship with the tribes and views them as “domestic dependent nations.” The term “domestic dependent nations” comes from the 1831 U.S. Supreme Court decision in Cherokee Nation v. Georgia where Chief Justice John Marshall recognized a tribe’s “inherent powers of self-government” but put them under the protection of the federal government. That means that Native American tribes have the right to govern themselves, including making their own tribal laws regarding membership and land management.
Other U.S. Supreme Court rulings, including United States v. Kagama (1886) and Lone Wolf v. Hitchcock (1903), established a precedent of federal “plenary power,” meaning that the U.S. Congress retains broad authority to legislate on matters relating to tribes within U.S. borders. Like U.S. states, Native American tribes do not have the power to engage in relations with foreign nations, make war with other nations, or print or issue their own currency.
A complex past
In 1778, during the Revolutionary War, the U.S. and representatives of the Delaware Nation, also known as the Lenape (or Lenni-Lenape, meaning “original people”), signed an article of agreement that became known as the Treaty of Fort Pitt. The document—the first official treaty between the U.S. and a Native American tribe—promised a “perpetual peace and friendship” between the two nations.
The alliance between the Lenape and the new American government, however, quickly broke down, dissolving in a matter of weeks, according to the National Museum of American Diplomacy. The colonists failed to deliver on their treaty promises, including protecting the Lenape people from violence at the hands of American militias and settlers. For example, shortly after the treaty was signed, the Lenape leader White Eyes died. The official cause was small pox; however, many in the tribe suspected and evidence suggested that he was murdered by American militia, according to the museum. As a result, a large tribal faction shifted their allegiance to the British.
Preserving land rights
Key U.S.-Native American treaties focus on land rights, including the Treaty of New Echota (1835), which granted the Cherokee Nation $5 million and land in what is now the state of Oklahoma. In exchange, the Cherokee relinquished ownership of seven million acres of land east of the Mississippi River in Alabama, Georgia, North Carolina and Tennessee.
The treaty’s legitimacy was contested by the Cherokee Nation at the time, since it had been signed only by a minority faction of the tribe. Nonetheless, the treaty was approved by a two-thirds vote in the U.S. Senate, as required by the U.S. Constitution, and led to the so-called Trail of Tears—the forced removal between 1838 and 1839 of the majority of the Cherokee Nation from their native homelands. During the 1,200-mile trek, mostly traveled on foot, an estimated 4,000 to 6,000 Cherokee deaths occurred—almost one-fifth of the tribe’s population at the time. In addition to the Cherokee Nation, five other tribes—the Creek (Muscogee), Chickasaw, Choctaw and Seminole—also faced removal and the Trail of Tears. Historians estimate the number of deaths for each of those tribes in the thousands, but no definitive numbers exist.
Over time, the U.S. government has repeatedly violated the terms of various Native American treaties, perhaps none more famously than the Treaty of Fort Laramie (1868). In that agreement, the U.S. government had officially recognized the Black Hills of the Dakota Territory (later to become the states of North and South Dakota) as part of the Great Sioux Reservation. The treaty promised the Sioux exclusive use of Black Hills lands.
However, when gold was found in the Black Hills in 1874, white miners flooded into the area. The U.S. government then demanded that the Sioux sell or surrender the land back to the U.S. When the tribe refused, the U.S. Army waged a military campaign against them, resulting in the formal seizure of the land in 1877.
Lasting reach
Article VI of the U.S. Constitution explicitly states, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”
As a result, treaties supersede state laws, and “only Congress can change, or abrogate [revoke], a treaty,” Professor Roemer explains. Multiple U.S. Supreme Court cases, including Solem v. Bartlett (1984) and Nebraska v. Parker (2016) have upheld this view. Essentially, these cases held that if Congress has not explicitly altered a Native American treaty, then its terms should still hold today.
In recent years, many tribes have referenced agreements outlined in the 18th and 19th centuries in court challenges in an effort to regain what they feel is their rightful ownership of the land.
For example, the 1974 U.S. Supreme Court decision in United States v. Washington—also known as the Boldt Decision—reaffirmed Washington State tribes’ rights to up to 50% of the area’s harvestable fish, as outlined by existing Native American treaties from 1854 and 1855.
In 2020, the U.S. Supreme Court’s ruling in McGirt v. Oklahoma reaffirmed the binding nature of longstanding Native American treaties. In that case, the Court ruled 5-4 that because the reservation of the Muscogee (Creek) Nation had never been disestablished by Congress, reservation parameters as outlined in the treaty with the Creek Indians in 1866 still stand today—even though some areas were no longer recognized as reservation land by the state of Oklahoma.
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever,” Justice Neil Gorsuch wrote in the Court’s majority opinion in McGirt.
“After the McGirt decision, the Oklahoma state court then had to consider the other big tribes’ reservation boundaries, following the analysis the Supreme Court had just used,” according to Robert J. Miller, a professor of law at Arizona State University and co-author of the book, A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma. “So, you now have about seven or eight other reservations that have been re-recognized,” says Professor Miller, who is a citizen of the Eastern Shawnee Tribe. “My own tribe’s reservation of 14,000 acres from an 1888 treaty is in the process of being re-recognized. We are just waiting for a signature from a federal judge.”
As a result of the McGirt decision and later court challenges by other tribes, more than 40% of Oklahoma has now been federally re-recognized as Indian Territory. However, these rulings, in practice, focus primarily on shifting criminal law jurisdiction for cases involving Native Americans on these lands from state courts to appropriate tribal courts, rather than reallocating land ownership there.
Back to Fort Laramie Treaty
In its landmark Sioux Nation v. United States (1980) ruling, the U.S. Supreme Court found that the U.S. government had broken the Treaty of Fort Laramie when it took the land in the Black Hills of South Dakota away from the Sioux. The Court ordered the U.S. to pay the tribe a $105 million settlement. The Sioux Nation has repeatedly refused the monetary settlement, arguing that they instead want their land to be returned to them. The funds have been sitting in a federal bank account and—with the value of accrued interest over time—are now valued at more than $1 billion.
“That money will likely never be touched. The Sioux have said they can’t take money for the land because the land is sacred,” explains Jane Massey Licata, a Marlton, N.J. attorney who teaches classes on Indian Law at Rutgers Law School in Camden. “It’s really a matter of principle for the Sioux.”
Other tribal nations have litigation pending for land claims on the grounds of a broken U.S. treaty. For example, the Onondaga Nation’s 2014 case against the state of New York argues that the state violated the Treaty of Canandaigua (1794), which was signed by George Washington. The treaty granted the tribe 2.5 million acres of land in central New York.
Unlike other tribal nations, the Onondaga avoided U.S. courts, electing to seek redress with an international body known as the Inter-American Commission on Human Rights (IACHR).
“Our elders were always afraid of going into courts,” Sidney Hill, Spiritual Leader of the Onondaga Nation, told The New York Times. Many, he said, were concerned that losing in a U.S. court could lead to them losing what little land they had left—about 11 square miles outside of Syracuse, N.Y.
In June 2023, after almost nine years, IACHR granted the Onondaga Nation admissibility, meaning that it determined the case met initial criteria and could proceed to a decision on the actual human rights violations alleged by the Onondaga. At press time, there was no ruling in the case. Even if the IACHR rule for the Onondaga Nation, it would largely be symbolic, as the U.S. government would not recognize a ruling from them as binding. Only a U.S. court can issue a settlement order.
“The passage of time does not diminish our determination to protect our people and regain our land, which has sustained us for millennia,” Hill said in a statement about the Onondaga’s ongoing land rights challenge. “In this case, justice has certainly been delayed. We hope it will not be denied.”
Discussion Questions
- What do you think of the treaties between the U.S. and Native American tribes enacted in the 18th and 19th centuries? Should the U.S. still be bound by them? Why or why not?
- What do you think of the Sioux Nation’s refusal to accept the settlement money, awarded in 1980? Explain your answer.
Glossary Words
indigenous—native to the land.
majority opinion—a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
plenary power—complete and absolute power to take action on a particular issue.
precedent—a legal case that will serve as a model for any future case dealing with the same issues.
redress—satisfaction for a wrong committed.
sovereign—indisputable power or authority.
This article originally appeared in the winter 2026 edition of Respect, NJSBF’s diversity and inclusion newsletter.