Still more: Treaty Rights

Why does it matter that we understand questions of Native rights as treaty questions instead of racial questions? Because the white supremacists all want to portray treaty rights as violations of equality! One of the first post-World War 2 struggles for Native rights concerned fishing in Washington State. When Washington became a US territory in 1853 the tribes were forced to sign treaties ceding about 90% of the land. But they insisted on retaining the right to fish “at all usual and accustomed grounds” regardless of whether those fishing grounds were on or off the reservations. Migratory fish are both staple and sacred foods for the Indigenous people of the Northwest. Fishing for salmon and steelhead is a central community ritual and it is just as central to providing protein for the year.

After the Second World War both the commercial fishery and sport fishing took off, increasing the size of the non-Native catch. At the same time the paper industry and other polluters were degrading the quality of the water in the rivers. The state fish and game authorities decided to take action against tribal fishing by arresting Native fishermen and seizing their equipment. Because it was off the reservation, the locus of the conflict became Frank’s Landing, a “usual and accustomed ground” of the Nisqually Tribe on the Nisqually River near the south end of Puget Sound. If white sport fishermen were outraged at the Nisqually (and other tribes) for defying the authority of the Department of Fish and Wildlife, then they were apoplectic when the courts sided with the tribes. I suppose they felt that the Natives had gone off-script in the great pageant of Manifest Destiny by refusing to play the role of Vanishing Indian. But today the  Northwest Indians Fisheries Commission, representing 20 local tribes, manages the tribal fishery, in cooperation with the State of Washington. It operates hatcheries, monitors water quality, and keeps tabs on the size and genetic diversity of the fish when they return from the Pacific. The tribes themselves ensure the sustainability of the harvest.

White tantrums about a “double standard” for Natives only make sense if you forget the treaties, ignore tribal sovereignty, and choose to see Indigenous people as a “racial minority.” It tracks precisely with Donald Trump’s bitterness: He got into Atlantic City soon after New Jersey began issuing a limited number of casino licenses with the only other legal gambling in the United States 2500 miles away in Nevada. He thought he was sitting on a monopoly in the middle of the 50 million people of the Boston-Washington corridor. Four years later the Supreme Court ruled that the states could not regulate Native gaming. Six years after that the Mashantucket Pequot Tribe opened Foxwoods in Connecticut, roughly the same distance from New York City as Atlantic City. This is why the last words I quoted from Donald Trump’s 1993 tantrum in Congress - “Why don’t you approve it for everybody, then, sir?” - are so very significant. Because immediately after whining that he didn’t think the Connecticut tribe members “looked Indian” he switched to whining about the very notion of treaty rights, couching his complaint in the language of “equality” and “individual rights”:

Why don`t you approve it for everybody, then, sir? If your case is non-discriminatory, why don`t you approve for everybody? You`re saying only Indians – wait a minute, sir. You`re saying only Indians can have the reservations, only Indians can have the gaming. So why aren`t you approving it for everybody? Why are you being discriminatory? Why is it that the Indians don`t pay tax, but everybody else does? I do.

Let’s ignore his risible claim about paying taxes. The very substance of this is his complete rejection of treaties. He makes the truly bizarre complaint that “only Indians can have the reservations.” On this, as on so many issues, our current President has long articulated the resentment against people who he considers subordinate when they stand up for themselves. This is, of course, a characteristic feature of the ideology of white supremacy.

I hope I have not given the impression that the US government has remained true to the treaties it signed with the tribes. The Supreme Court ruled in 1903 (Lone Wolf v. Hitchcock, 187 U.S. 553) that Congress has the absolute authority to unilaterally abrogate the treaties. The reason these treaties keep coming up in court is because those treaties were broken by the states where the tribes resided without even asking Congress to change them or because Congress itself broke them without changing them. 

Two weeks ago the Court agreed with the Creek Nation of Indians (McGirt v. Oklahoma, 591 US ___) that most of eastern Oklahoma is still Indian territory because Congress never extinguished the reservations of the Five Tribes. It means that the state of Oklahoma has no jurisdiction over criminal cases involving tribal members on tribal lands, which amount to roughly half the state!

In 1980, the Supreme Court found in favor of the Lakota tribes in a suit about the Black Hills of South Dakota. (United States v. Sioux Nation of Indians, 448 U.S. 371). The Court ruled that Congress had ordered the Lakota tribes to sign a new treaty ceding the Black Hills but that the tribes had not signed it and were therefore eligible for compensation plus 104 years of accrued interest. (Now 124 years and up to approximately $2 billion because the tribes reject the compensation and demand the return of the Hills.) So despite what is often called a Trail of Broken Treaties, the tribes and their members retain significant treaty rights.

I could go on at much greater length. But I provide these cases - casinos, fishing, criminal jurisdiction, land rights - to make a point. People who think they understand racism because they are familiar with shape it takes in oppressing and exploiting African Americans may themselves be falling victim to white supremacist thought. Systemic racism in schools, courts, banks, and jobs; denial of civil rights; police violence… these things effect Native people in similar ways to their effects on Black people. But that is not the end of it. And so, just as Natives have frequently been willing participants in anti-Blackness, African American people can participate in the opposition to treaty rights that is a hallmark of white supremacy. In some circles there is an unquestioning adulation of the role that Buffalo Soldiers played in suppressing the tribes (along with striking mine workers and Filipino freedom fighters). That does not endear those people to the current members of the tribes they fought.