©2017 Montana Land and Water Alliance

On the heels of the very important previous guest post, we begin a series of posts that address the issue of what the Tribes call “Tribal Sovereignty” and examine what that really means legally, as opposed to wishful thinking and myth-making.

The reason this discussion is important right now is because the uninformed view of Tribal governance and sovereignty has improperly allowed our state government and some legislators to violate the constitution and civil rights of Montanans, to give away their property rights, and to destroy the state-based judicial remedies for Montana citizens. Otherwise known as, the CSKT Compact.

Here are some basic questions that we all have, but are almost afraid to ask because any question of the Tribes is met with the accusation of  being a “racist” or anti-Indian.  Our state officials and some legislators have used these very terms to describe all opposition to the CSKT Compact, all the while claiming that somehow the tribes are “super-citizens” whose authorities trump state and local governments.

  • Are Tribes really a “nation within a nation”, or something else?
  • Does a tribe and tribal government have the same sovereign powers as a state, the citizens of the United States, and the United States?  That is, do Tribes have governmental power over non-Indians?
  • What is the source of “Tribal governance”?

The fundamental problem that has arisen is that the Tribes, and federal agencies, have advanced the political notion that tribal governments have the same legal power as the state and federal governments over everyone–counties, non-Indian citizens, the states, and in our case, the federal government.  The Tribes have set themselves up as possessing more rights and more “sovereignty” than the rest of us.  Hence their assertion of “ownership and control” over all natural resources, for example.

Source of Governing Power–the Constitution

The basic framework for “governance” in the United States originates with the Constitution and Bill of Rights.  These documents were written by the people of the independent but united sovereign states of America which prescribed a limited role for the federal government and self governance of the states and people within those states.  The Tenth Amendment to the Constitution enshrined the self governance of the people and the states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the  people.

This enshrines the “self determination” of the states and their people, a principle fought for during the Revolutionary war and now embedded in our Constitution.

Do you see the words “Tribal governments” or “Tribes” in either the constitution or the Tenth Amendment?

Let’s look a little further.  The Constitution established three branches of government–the Executive, the Legislative, and the Judiciary.  The Executive is responsible for enforcing the laws of the land and is empowered to make Treaties by Article II, Section II of the Constitution:

He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties

Importantly, the President can make Treaties only with the advice and consent of the Senate, and the general purposes of Treaty-making are to protect the citizens of the United States.

Thus the Treaty making power with the Indians is derived from the Constitution, and is vested in the President with consent of the Senate.  That is why every treaty is actually a federal statute–a federal law.  For example, the Treaty of Hellgate was negotiated under the auspices and by the authority of the U.S. Constitution and is actually a federal statute:

Treaty of Hellgate 12 Stat. 975

Although negotiated in 1855, it was not ratified by the Senate until 1859.  So the actual date of the Treaty of Hellgate is 1859.

Before the American revolution, the Colonies, Great Britain, France, and other “owners” of the land that is now within the territorial jurisdiction of the United States had an early recognition of the separateness of the various Indian tribes and their right of territorial occupation. In recognition of this separateness the Article I Clause 8 gave Congress the:

To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.

Regulate, according to a contemporary dictionary at the time, meant “to make regular”.  Commerce is regulated with foreign Nations, AND among the several states, AND with the Indian Tribes.  Notice that “foreign Nations” are not the same as “the Indian Tribes”.

As the United States expanded its territory through the Louisiana Purchase, the Treaty with Great Britain, and the Alaska Purchase, it became necessary to make Treaties with the Indians so as to protect the people of the United States.  Therefore, pursuant to the authority granted to the President under Article II of the U.S. Constitution, treaties were negotiated with the Indians and such treaty only became effective through Senate consent.  All Treaties with the Indians are therefore federal statutes, and originate from the authority of the U.S. Constitution and are vested in the Executive.

Article II Section 10 prohibits the states from entering into any Treaty—they do not have the authority. thus the State of Montana has no authority to renegotiate, create, change, alter, or apply new significance to Treaty of Hellgate as they did in the CSKT Compact.

The Treaties are not superior to the Constitution because they are authorized by the Constitution and are federal law.  The so-called “supremacy clause” of the Constitution actually sets up the  Constitution as the supreme law of the land, not the federal government or the Treaties. Per Article VI of the Constitution:

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.

Emphasis added.

Although one can argue what the true purpose of the Indian reservations were at the time they were created, the Treaties and further federal law granted to the Tribes the power to govern themselves and to arrange their own internal affairs.  Notice that the original notion of the Constitution–self governance–was similarly afforded to the Tribes by the United States.

Thus the source of the Treaties, Tribal governance, and tribal “sovereignty” is the United States Constitution.  The Tribes’  claims of “inherent tribal sovereignty” ARE its rights to govern its own people and to arrange its own affairs…NOT the affairs of others.

The CSKT Compact Context

So, how did the Tribes gain control over the water resources, lands and activities of non-Indians living on private land within the Flathead Indian Reservation?  And how did they gain water rights to fulfill an access right to fish in lands they ceded to the United States?  In the context of our discussion above, here are a few possibilities:

  • The Tribes were successful in creating a new definition of “tribal sovereignty” and its powers as a “nation” to convince state lawmakers and regular citizens that they had the same sovereign powers as the state of Montana, who is authorized by its constitution to manage, own and administer the water resources of the state for the benefit of its citizens.
  • The state of Montana accepted this flawed, unconstitutional, and legally incorrect notion and gave up its citizens’ rights to the CSKT
  • The state of Montana, without any constitutional or legal authority, reinterpreted the Treaty of Hellgate, particularly Article III, to grant to the CSKT more rights than the U.S. Constitution allowed it to give.  Remember the states have no authority to enter into or reinterpret any treaty made under the laws and Constitution of the United States.

The state, Tribes, and United States counted on the lack of knowledge of these issues by the Montana public and its citizen legislators.  Thus they were able to throw the words “racist”, “anti Indian”, and “anti-government” around like candy, intending to intimidate anyone who questioned the legal, property, and moral assaults on the citizenry brought forward by the Compact.