Respecting Tribal Treaty Rights Helps Preserve Indian Country Progress

Anthony “Morgan” Rodman, Executive Director, White House Council on Native American Affairs

Over the past eight years, President Obama’s commitments to Indian Country have helped to strengthen tribal nations, bolstering the government-to-government relationship, advancing self-determination and self-government, and working with tribal leaders to build dynamic economies and resilient communities.

Now, in the remaining days of this Administration, we need to ensure that the progress we’ve made continues. So, we are working to institutionalize those achievements through several initiatives, including affirming the federal government’s moral and legal responsibility to protect tribal treaty rights and similar tribal rights, especially those that concern the use of natural resources.

President Obama standing on a stage with native american leaders after receiving a ceremonial blanket.
President Obama at the 2016 White House Tribal Nations Conference. Photo by Tami Heilemann, Interior.

Under the Constitution, treaties with tribal nations are part of the supreme law of the land, establishing unique sets of rights, benefits and conditions for the treaty-making tribes who agreed to cede millions of acres of their homelands to the United States, in return for recognition of property rights in land and resources as well as federal protections. 

Through treaty-making, Indian tribes granted these lands and other natural resources to the United States, while retaining all rights not expressly granted. These retained rights cover a wide variety of subjects, including the right to hunt, fish, and gather resources – including access to traditional plants and animals –  both on land the tribes ceded, as well as on land they retained.

Understanding these authorities and responsibilities, federal agencies have signed a Memorandum of Understanding (MOU) pledging our best efforts to identify and take greater recognition of tribal treaty rights and similar tribal rights regarding natural resources during our decision-making processes. As the MOU makes clear, tribal treaty rights have the same legal force and effect as federal statutes and they should be integrated into and given the fullest consideration throughout our collective work. 

A group of people stand behind a table after signing an agreement.
Federal, state and tribal leaders at a signing ceremony in Oregon. Photo by Tami Heilemann, Interior.

The federal agencies party to the MOU will establish a working group to enhance interagency coordination and collaboration; consult with tribal nations as appropriate in developing and implementing our decision-making efforts; and share best practices, tools and resources to identify, understand and analyze tribal treaty rights that can be affected by federal actions. We will consider these treaty rights as part of our tribal consultation policies and procedures.

This initiative was launched by the White House Council on Native American Affairs, which President Obama established to better coordinate and integrate federal resources available to tribal nations. U.S. Secretary of the Interior Sally Jewell chairs the Council, which met earlier this year with tribal leadership from nearly all regional areas to discuss natural resources concerns of tribes.  As a result of that meeting, the Council, with particular leadership from the Environmental Protection Agency, proposed the MOU to address Native concerns regarding treaty-protected rights to natural resources.  

A number of federal agencies have already signed on to the initiative, and others have expressed enthusiastic interest and are expected to join in the future. In addition to Interior and the Environmental Protection Agency, current signatories include the Departments of Commerce, Agriculture and Justice, as well as the White House Council for Environmental Quality and the Advisory Council on Historic Preservation. 

Secretary Jewell stands on a stage as Native Americans in traditional clothes play drums.
Secretary Jewell being honored by the Blackfeet Nation. Photo by Tami Heilemann, Interior.

The federal government has an obligation to honor and respect tribal rights and resources that are protected by these numerous treaties. Integrating consideration of tribal treaty rights and similar tribal rights into agency decision-making processes is consistent with the federal government’s trust responsibility to federally-recognized tribes.

All federal agencies are legally required to recognize and give effect to treaty language and must ensure that federal agency actions do not conflict with tribal treaty rights. This will not only help to preserve the progress Indian Country has made under the Obama Administration but also strengthen and advance self-determination and self-government in the years ahead.