First off, tribal nations are political entities just like any other country in the world.
But this idea can be surprising to Native and non-Native people alike. In fact, I didn’t learn about the political status of Native Nations until college, and I’m a citizen of the Chickasaw Nation! I attribute our shared ignorance of indigenous realities to an education system that doesn’t prioritize aspects of history it deems inconvenient. Our textbooks don’t use the word “nation” or “country” to describe Native Nations, instead they opt for the word “tribe” which carries a much weaker connotation.
There are 574 federally recognized Native Nations in the United States. Of these 574 Nations, 326 have reservations and 248 do not.
But what does this all mean?
I will answer this question by detailing the political history of U.S. Native Nations (a term I use here because “tribe” diminishes political power). Then, I will provide a description of the complex legal relationships that currently exist between Native Nations and the federal government including a brief analysis of McGirt v. Oklahoma.
The History of Native Nations
When Europeans arrived, there were over 819 Native Nations that claimed every square inch of North America. This map accurately depicts most of the Native Nations that settlers encountered:
But this probably isn’t the map that you were shown in school. So, it’s okay if seeing this map for the first time blew your mind. It has never stopped blowing my mind!
Although many of us were taught that Native people were scattered across a mostly empty North America, this simply isn’t true. Unfortunately, this is the remnant of a lie perpetrated by the colonial U.S. to justify genocide, removal, and theft by diminishing Native Nations’ claims to their land.
Early colonial maps actually show North America’s dense population of Native people. This is because the survival of colonists depended on knowing the exact location of Native cities. Here is a colonial French map of Native cities along the Atlantic coast. All the tiny black marks are cities within indigenous nations. Keep in mind this is an extremely zoomed-in portion of a much larger map:
But our textbooks don’t show cities that existed in Native Nations. Instead, they organize indigenous people by language families or “culture groups” which erases many borders. For example, if we did this for Europe, all nations with Romance Languages (France, Spain, Italy, Portugal, Romania, Switzerland, etc.) would be one, giant country!
Here are some common textbook maps. Pay attention to how hundreds of countries are erased while the textbook instead shows Native populations within the outline of U.S. states which did not yet exist (reinforcing the idea that Manifest Destiny was inevitable):
And the idea of “culture groups” relies on the assumption that Native Nations were mostly identical, but they were not. If you told someone from Germany that they’re basically French, you would be swiftly corrected. It’s the same for Native Nations. The Blackfeet Nation and the Apache Nation have drastically different beliefs, dress, and environments. Yet this textbook map insists that they’re identical.
So, what about Native Nations being mostly nomadic with no strictly defined borders? Yeah, that also was a lie. 55% of Native Nations were agricultural. While both European and Native women worked in fields during the colonial era, Native women owned agricultural lands in many societies. These societies were well organized and prosperous, again contrary to what we’re taught. Here’s a few comparisons of European Nations and Native Nations in the same time period. Note the striking similarities that colonial governments tried to conceal:
But the 45% of non-agricultural societies were hunter-gatherers, right? No! At least not in the way that you might think. The Commanche Nation actually gave up agriculture because it found much more profitable alternative. Their horse-raiding economy was so prosperous that the average Commanche lived much better than the average colonial or American settler who lived in poverty and raw sewage well into the 1800s.
Furthermore, mobile Native Nations had better-defined borders than sedentary societies. Although citizens of these nations moved around periodically to hunt bison, their mobility made it much easier to guard their borders. The Apache and Commanche Nations guarded their borders so fiercely that the most powerful European country of the time, Spain, could never advance past modern-day Mexico. Native Nations also had highly organized immigration. When settlers met the Caddo Nation, they were escorted by military personal through various checkpoints and given a passport before they could venture into the main city.
Last, military strategy played a huge role in defending the territories of Native Nations. The Lakota Confederacy (Lakota, Dakota, Nakota) successfully defended its borders into the late 19th century and never lost a battle to the United States.
From the very beginning of imperialism in North America, horrible crimes were committed against Native Nations. While it is true that disease ravaged Native communities, that is far from the only reason for population decline. We know this because indigenous populations of Mexico and Canada recovered much more quickly than in the United States. For example, Mexico’s indigenous population fully recovered by the 1600s. In contrast, indigenous populations in the United States declined until the late 1920s.
The reason: while Native people were central to the economies of New France and New Spain (fur trapping and slavery), the English and U.S. governments didn’t want anything to do with Native Nations, so they adopted a philosophy of genocide.
The U.S. forced my grandparents along with 100,000 other Native people from their eastern homelands. Around ¼ of all Chickasaw and ½ of all Choctaw people died along the way, in what became known as the Trail of Tears. Mothers clutched dead babies because they weren’t allowed to stop while troops forced them onward. This happened all over the United States. For example, between 1864 and 1866, the U.S. forced the Dine (Navajo) on 53 forced marches.
However, the United States could not out-strategize or overpower many Native Nations. The United States decided to defeat Plains Indian Nations by destroying their economies through the eradication of the buffalo. The U.S. military killed so many bison that their population decreased from 30 million to only a few hundred by the end of the 19th century. The military hired professional marksmen and hunters from all over the world to help with this vile project.
The United States authorized “more than 1,500 wars, attacks, and raids” against Native Nations. During the Sand Creek Massacre, a Cheyenne city waved flags of surrender when U.S. troops appeared on their horizon. The U.S. military responded by opening fire on 150 women, children, and the elderly. Then, the troops mutilated their corpses and took them as trophies. Sadly, this is just one of many massacres that happened to hundreds upon hundreds of innocent Native people. At Wounded Knee, the U.S. military shot Native children point blank.
Although every Native Nation has a unique story, colonialism followed a common pattern. First, settlers encroached upon Native territories and exploited scarce resources. Then, Native people would defend their lands, and settlers would call for the U.S. military to respond (but Massacres would ensue without any provocation).
War and genocide are not sustainable for any nation. So, Native leaders were forced into “treaties” with the United States that laid out terms for peace. This always included Native Nations surrendering much of their land for undervalued compensation. Leaders fought for the best treaty terms, but the United States did not seek compromise – they sought domination.
Here’s an image depicting reservations today (in color). The difference between this map and the one shown at the beginning of this article is startling and heartbreaking:
Today, these treaties outline the borders of reservations and detail the monies, rations, and provisions promised in exchange for stolen lands. That’s why Native people today do not receive welfare for being Native! They are receiving compensation for stolen lands.
Unfortunately, reservations became open-air prisons, and Native people were the prisoners. Further, rations meant for entire families were not enough to feed a single person. Indian Agents, the officials responsible for overseeing reservations, stole a great deal of money meant for rations because there was no one to hold them accountable.
In 1887, Congress broke up many reservations into individual land allotments through the Dawes Act. The government spread false rhetoric that tribal lands were communally owned, and that allotment would make Native people into prosperous farmers (although Native people had farmed in the U.S. for thousands of years).
In reality, the government never intended for reservations to be permanent. Allotment was an attempt to end Native Nations once and for all. After our government allotted land to Native people, it sold off remaining land to settlers. This process resulted in 2/3rds of lands (90 million acres) being taken away from Native people. Since land was allotted based on blood quantum, subsequent generations needed to possess a necessary degree of racial purity, or the government would take lands away. Rampant corruption was again commonplace.
Then, through the Indian Reorganization Act (IRA) of 1934, reservations were reinstated and so were tribal governments. Native Nations adopted constitutions modeled after the U.S and once again controlled land within their borders. But after the Dawes Act, Native Nations were left with a dramatically decreased or even non-existent reservation. Still, tribes were given jurisdiction over Native people who remained within the borders outlined in treaties.
Living on privately owned land within a Native Nation is just like living on private land elsewhere in the U.S. You are subject to the jurisdiction of the United States and state government. However, Native Nations can exercise power over Native within their borders people even if they don’t own the land. This is the same thing as the U.S. being able to exercise power over American citizens who own land. But because of many federal laws, Native Nations cannot exercise power over non-Native people within their borders.
The IRA also devised a method of recovering allotted land. The government would place Native lands in trust. To briefly explain, the federal government technically became owners of Native lands, but Native people could still exercise control. The idea was that the federal government could use its power to fight on behalf of Native lands. Although only 8% of allotted lands have been recovered since 1934, organizations like the National Congress of American Indians see land trust as a positive way of reclaiming stolen land.
And that’s where we are today. Tribes are allowed to operate as sovereign Nations over Native people within the borders defined in their treaties. However, these powers are limited by Congress and the Supreme Court. One such limitation, tribes must gain permission from the federal government to sell their lands. While this policy aims to prevent allotment from occurring again, it relies on the paternalistic assumption that Native Nations cannot prevent allotment on their own. It might be true that some Native Nations don’t possess the economic means to hold their own lands, but this policy inherently makes Native Nations dependent upon the settler state.
If that’s all a bit confusing, once again, it’s okay. Lawyers and legal experts –even those in the Supreme Court—get their facts wrong all the time. And it’s the Supreme Court which has an especially poor track record regarding basic knowledge of tribal law. Recently, Justice Ginsburg argued that Native people should not possess land based on a doctrine from the 1500s which declared that Native people were inferior because they didn’t practice Christianity.
That’s why, when a recent Indian Law case reached the Supreme Court, Native Nations were worried. This case was McGirt v. Oklahoma which was decided in July 2020. Despite the concerns of Native Nations, the Court decided that the borders of the Muscogee Creek Nation still existed.
But why were the borders of the Creek Nation questioned in the first place? No treaty or act of Congress had terminated the Creek Nation.
The State of Oklahoma argued that a sum of racist policies like the Dawes Act meant the Creek Nation no longer existed. Moreover, they argued that since settlers had ignored the borders of the Creek Nation, this was sufficient evidence that the Creek Nation didn’t exist. Lawyers even argued that reinstating the Creek Nation would change property rights! Justice Gorsuch penned the 5-4 majority opinion which rejected these preposterous claims. He wrote that the U.S. had to respect the treaty promises it made, and that Native Nations existed regardless of popular opinion. So now, the Creek Nation can exert jurisdiction over Native people within its borders.
In the future, McGirt v. Oklahoma may allow many other Native Nations to take issues of jurisdiction to the courts.
What the Government Probably Doesn’t Want You Thinking About
Reading this article, you could have thought:
“Shouldn’t all lands go back to Native Nations since allotment was so horrible?”
“Why should Congress and the Supreme Court even have the right to decide the borders and existence of Native Nations?”
“Why can’t we do more to correct injustices perpetrated against Native Nations?”
These are completely reasonable ideas, but they are unpopular questions to raise. They are unpopular because they stray away so dramatically from the course of action that the U.S. has taken against Native Nations. Ultimately, the U.S. should not be allowed to determine the borders of another country, and Native Nations should be treated no differently. But our Constitution grants the U.S. power over Native Nations.
Ultimately, we should amend our Constitution so that the U.S. has no power over Native Nations.
Although de-colonizing our Constitution is the only ethical course of future action, there are important economic realities we must consider. Some Native Nations might not be financially secure enough to protect their lands without aid from the U.S. federal government. It is important to keep in mind economic concerns and provide aid for these Nations while still attempting to grant them land and liberty. It’s also important to note that other Native Nations already bring in larger revenues than the GDPs of many countries, without collecting taxes from their citizens!
Hopefully, as economies and populations continue to grow, the U.S. government will grant Native Nations their rightful sovereignty. But until we reach that point, we must grapple with the fact that Native Nations still operate under the colonial power of the United States –forced under an unjust regime rooted in centuries of genocide.
Barr, Juliana. “Geographies of Power: Mapping Indian Borders in the ‘Borderlands’ of the Early Southwest.” The William and Mary Quarterly, vol. 68, no. 1, 2011, p. 5., https://www.jstor.org/stable/10.5309/willmaryquar.68.1.0005.
“Frequently Asked Questions.” Indian Affairs, www.bia.gov/frequently-asked-questions.
National Congress of American Indians. “Trust Land.” NCAI, www.ncai.org/policy-issues/land-natural-resources/trust-land.
Regan, Shawn. “Five Ways the Government Keeps Native Americans in Poverty: Shawn Regan.” FEE Freeman Article, Foundation for Economic Education, 3 Sept. 2016, www.fee.org/articles/five-ways-the-government-keeps-native-americans-in-poverty/.
Regan, Shawn. “Unlocking the Wealth of Indian Nations: Overcoming Obstacles to Tribal Energy Development.” PERC, 25 June 2018, www.perc.org/2014/02/18/unlocking-the-wealth-of-indian-nations-overcoming-obstacles-to-tribal-energy-development/.
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