US Treaty Law and Indigenous Tribes

There is a persistent misconception in American legal culture that Indigenous rights sit at the margins of the Constitution—moral claims, historical grievances, or matters of policy discretion. That assumption is incorrect. Indigenous treaty rights are not peripheral to U.S. law. They are foundational to it.

The Constitution itself makes this explicit. Under the Supremacy Clause, treaties entered into by the United States are declared to be “the supreme Law of the Land,” binding judges in every state regardless of contrary statutes or local interests. This was not an abstract provision. Between 1778 and 1871, the United States entered into hundreds of treaties with Indigenous nations—agreements negotiated between sovereigns, ratified by the Senate, and signed by Presidents. These treaties recognized Indigenous nations as political entities with defined territories, self-governing authority, and enduring legal rights.

In doing so, the United States acknowledged something that later doctrine would work hard to obscure: Indigenous nations were not conquered populations absorbed into the constitutional order, but treaty partners who stood alongside it. That legal reality has never been repealed. What has changed is the willingness of the United States to honor it.

From the beginning, U.S. jurisprudence carried a contradiction it could not resolve cleanly. The legitimacy of the constitutional system rested on law, consent, and restraint, yet territorial expansion required the systematic erosion of Indigenous sovereignty. Rather than confront that contradiction directly, the legal system developed a series of accommodations that allowed treaty law to remain formally intact while losing practical force.

This pattern closely mirrors what was explored in the earlier essay “When Conquest Became Property” on the Doctrine of Discovery. There, theological and imperial assumptions were imported into law to justify territorial claims that could not be defended on legal grounds alone. Treaty law posed a similar problem. The United States had bound itself by agreement. Undoing those commitments openly would have exposed the fragility of its legal claims. So instead, the system learned to live with treaties by rendering them unenforceable in practice.

The erosion did not occur through repeal. It occurred through reinterpretation, delay, and selective application. Indigenous nations were reclassified as “domestic dependent nations,” a phrase that sounded protective while quietly subordinating them. Congress asserted the power to override treaty obligations through later statutes, despite the Constitution’s clear hierarchy. Courts adopted increasingly narrow interpretations of treaty language, often resolving ambiguities against Indigenous parties, even though longstanding principles of treaty interpretation required the opposite. And federal agencies learned that non-enforcement, prolonged litigation, and administrative inertia were often sufficient to defeat rights without ever denying them outright.

Seen this way, the history of treaty violation is not a sequence of failures or betrayals. It is a system functioning exactly as designed to reconcile law with power without forcing a public reckoning. Treaties were preserved because they conferred legitimacy on the United States’ own sovereignty. Their enforcement was constrained because honoring them would have required limits the system was unwilling to accept.

This matters because treaty law is not historical residue. It is active law. Many treaties remain fully operative today, governing land, water, mineral rights, jurisdiction, and self-government. Contemporary conflicts over pipelines, mining projects, law enforcement authority, and environmental protection are not merely regulatory disputes. They are treaty disputes.

When Indigenous nations invoke treaty rights, they are not seeking exceptions or special treatment. They are demanding compliance with the same constitutional order the United States insists governs everyone else. The resistance to those claims is telling. It does not arise from legal ambiguity. It arises from the recognition—often unstated—that honoring treaty law would require unwinding assumptions about ownership, jurisdiction, and authority that have been treated as settled only because the law that unsettles them has been ignored.

The uncomfortable conclusion is difficult to avoid. A legal system cannot credibly claim to be governed by law while treating its most solemn agreements as optional. The Constitution does not permit treaties to be symbolic artifacts. They are either supreme law, or they are not law at all.

The systematic violation of Indigenous treaty rights is therefore not a peripheral injustice. It is a structural exposure—one that reveals how the system manages contradictions it cannot resolve. For generations, that exposure has been contained through complexity, silence, and delay. But the law itself has never gone away.

It is still there.
Waiting.