Government-to-Government Relations

Government-to-Government Relationships

As the original peoples of this land, American Indian tribes (tribal nations) have inherent powers as sovereign nations, including the right to form governments, determine citizenship criteria, and create and enforce their own laws. Tribal nations and the United States federal government have special government-to-government relationships, rooted in the cultural and political self-determination of tribal nations that predates the formation of the United States as a country. Government-to-Government relationships have been formally acknowledged and recognized through the United States Constitution, treaties, and federal laws, policies, and court cases.

Article I, Section 8, Clause 3 of the United States Constitution provides Congress with the power to regulate commerce with “Indian tribes.” Historically this was accomplished through treaty-making, which occurred between 1778 and 1871. Through treaties, tribal nations ceded millions of acres of lands and resources to the United States in exchange for reserved rights, benefits, services, and conditions. Examples of these include the right to hunt, fish, and gather within traditional territories, education benefits, health services, and protections provided by the federal government. Treaties that were ratified provided a legal basis for federal recognition of tribal nations, formally known as federally recognized tribes. Succeeding the end of treaty-making, federal recognition may occur through formal processes of the Department of the Interior Bureau of Indian Affairs, by an Act of Congress, or by a court decision.

The federal government has a fiduciary obligation to federally recognized tribes. Known as the "trust responsibility," this obligation entails protecting tribal treaty rights, lands, resources, and assets. This trust responsibility has been outlined in historical and contemporary Federal-Indian laws and policies and has been enforced and reasserted through several Supreme Court cases.

Article VI of the United States Constitution reads, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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, anything in the Constitution or laws of any State to the contrary notwithstanding.” Although treaties are cited as the supreme law of the land and although federal laws and policies have affirmed its trust responsibility to tribal nations, there has been a long history of the United States dishonoring and breaking its treaties with tribal nations as well as mismanaging their assets. Furthermore, land transactions through treaties were often coercive and were rarely to the benefit of tribal nations. There were also countless occasions where land and other resources were stolen outright from American Indians.

Numerous tribal nations drafted treaty agreements with the United States but were not ratified by Congress. The lands and resources of these tribal nations were taken without rightful exchange and they do not receive the same recognitions, rights, or benefits that federally recognized tribes do. Some states have set their own criteria and processes for tribal nation recognition. State recognized tribes have government-to-government relationships and formal agreements with the states they reside within. Not all state recognized tribes are federally recognized and there are many tribal nations that are unrecognized by both state and federal governments. Recognition status greatly affects whether or not tribal nations are included in government-to-government relationships or working relationships with federal and state institutions, such as land-grant universities.

The treaty agreements that were entered into with tribal nations and the significant sacrifices and losses experienced by American Indian peoples have often gone without recognition nor acknowledgement. Whether gained through legal processes or not, the United States federal government, state governments, and land-grant universities have benefitted and continue to benefit from land bases that were gained from tribal nations. Growing calls for an increase in recognition and action have been answered in numerous ways, including lawsuits, land acknowledgments, land back, and Memorandums of Agreement or Memorandums of Understanding.

Recommended reading and resources

Books

• Deloria, Vine Jr. & David E. Wilkins. (1999). Tribes, Treaties, and Constitutional Tribulations. Austin, TX: Univ. of Texas Press.

• Harjo, Suzan Shown. (Ed.). (2014). Nation to Nation: Treaties Between the United States & American Indian Nations. Smithsonian Books.

• Case, M. (2018). Relentless Business of Treaties: How Indigenous Land Became US Property. Minnesota Historical Society Press.

• Wilkins, David E. & K. Tsianina Lomawaima. (2001). Uneven Ground: American Indian Sovereignty and Federal Law. Norman, OK: University of Oklahoma Press.

Web-Based Readings & Resources

• Why Treaties Matter Online Exhibit

➢ http://treatiesmatter.org/exhibit

• Land-Grab Universities Investigation by High Country News

➢ News Article: “Land-grab universities. Expropriated Indigenous Land Is the Foundation of the Land-Grant University System.” By Robert Lee & Tristan Ahtone (March 30, 2020)

• https://www.hcn.org/issues/52.4/indigenous-affairs-education-land-grab-universities

➢ Full Report: https://www.landgrabu.org

• Land Acknowledgements & Land Back

➢ “A Guide to Indigenous Land Acknowledgment” by the Native Governance Center

• https://nativegov.org/a-guide-to-indigenous-land-acknowledgment/

➢ News Article: “A City in California Gave Land Back to Indigenous People. It’s a Start.” By Rory Taylor (October 30, 2019)

• https://talkpoverty.org/2019/10/30/california-land-back-indigenous/

➢ “Land Reparations & Indigenous Solidarity Toolkit” by Resource Generation https://resourcegeneration.org/land-reparations-indigenous-solidarity-action-guide/

MOU/MOA Examples

➢ Memorandum Of Understanding Regarding Tribal - USDA - Forest Service Relations On National Forest Lands Within The Territories Ceded In Treaties Of 1836, 1837, and 1842 https://www.fs.fed.us/spf/tribalrelations/documents/agreements/mou_amd2012wAppendixes.pdf

➢ Developing Agreements between Local Education Agencies and American Indian Nations and Tribal Communities: A Wisconsin Perspective https://www.air.org/sites/default/files/Adams_4_HO_WI%20MOU%20Document_7312017_SECC_Equity_Summit.pdf

Federal Government Web-Based Resources

• FAQ - Bureau of Indian Affairs: https://www.bia.gov/frequently-asked-questions

• U.S. Federal Department & Agency Offices of Tribal Relations and Tribal Affairs

➢ U.S. Department of Agriculture: https://www.usda.gov/tribalrelations

• • • • Forest Service: https://www.fs.fed.us/spf/tribalrelations/

      • Natural Resources Conservation Service: https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/people/outreach/tribal

➢ U.S. Department of Commerce: https://www.commerce.gov/bureaus-and-offices/os/olia/native-american-affairs

• • • • National Oceanic and Atmospheric Administration: https://www.legislative.noaa.gov/tribalrelations.html

➢ U.S. Department of Energy: https://www.energy.gov/congressional/tribal-affairs

➢ U.S. Department of Interior: https://www.doi.gov/tribes

• • • • Bureau of Indian Affairs: https://www.bia.gov

      • Bureau of Land Management: https://www.blm.gov/services/tribal-consultation

      • Fish and Wildlife Service: https://www.fws.gov/nativeamerican/

      • Geological Service: https://www.usgs.gov/about/organization/science-support/office-tribal-relations

      • National Park Service: https://www.nps.gov/orgs/1449/index.htm

➢ U.S. Department of Justice

• • • • Office of Tribal Justice: https://www.justice.gov/otj