Treaty Rights and the Cherokee Freedmen Decision

This isn’t a post on the merits of the Freedmen case, but instead a rumination about the import of U.S.–tribal treaty rights in tribal courts. Generally, do treaty rights have legal import in tribal court?

My reading of the Nash case (here) is that anyone claiming to assert treaty rights against an Indian tribe who was a party to the treaty may be foreclosed from bringing those claims without the presence of the United States (the other party to the treaty) as a party to the litigation. If that reading has broad implications for Indian treaties, then no treaty right could effectively be litigated in tribal court without the presence of the United States. An odd result, to be sure.

This isn’t a purely academic question. A few years back, the Ninth Circuit wondered why it was still deciding treaty rights subproceedings in United States v. Washington that don’t involve either the United States or Washington, or really any of the underlying issues about the treaty right. Many of the cases are intertribal conflicts. There may be an intertribal court for the Puget Sound treaty tribes someday, all without the presence of the United States. And properly so.

This all suggests the United States doesn’t need to be a party to treaty rights litigation in every case.

A few years back, I thought about this question in the context of the 2007 consent decree in the so-called “Inland case” in United States v. Michigan (the reason we started this blog). The consent decree codified and recognized tribal authority and obligations to regulate, among many other things, gathering rights of tribal members on federal property. Some tribal members (most notably here) objected, and for a time it was unclear of the Sault Tribe was going to sign on to the consent decree (they eventually did).

What of those tribal members sued the tribe for enforcing the gathering regulations; for example, forcing the tribal members to acquire a tribal permit? My understanding of the Michigan treaties was that the rights and duties that came out of the treaty negotiations were much more individual than we assume they are now as a legal matter. In fact, the “Ottawa and Chippewa Nation” mentioned in the treaty was pure fiction. We now deal with the various tribes as they were represented regionally by the various ogimaag, but even that, arguably, is a fiction. Nash makes me think that it may someday become important whether an Indian treaty right is tribal (as against the U.S.) or individual (as against the tribe). That might not be a great result either.

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