Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.
In the early cases of Cherokee Nation v. Georgia,424 and Worcester v. Georgia,425 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution that extends the judicial power of the United States to controversies “between a State or the citizens thereof and foreign states, citizens or subjects.” Second, it held: “The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words ‘treaty’ and ‘nation’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.”426
Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations,427 that the states were incompetent to interfere with rights created by such treaties,428 that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a state,429 that a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of a state,430 and that an act of Congress contrary to a prior Indian treaty repealed it.431
Present Status of Indian Treaties.—Today, the subject of Indian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was provided “That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”432 Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld.433 Statutes modifying rights of members in tribal lands,434 granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,435 or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,436 have been sustained.
When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence, the Court held that certain Indian allottees, under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands that were to be nontaxable for a specified period, acquired vested rights of exemption from state taxation that were protected by the Fifth Amendment against abrogation by Congress.437
A regular staple of each Term’s docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the states. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.
424 30 U.S. (5 Pet.) 1 (1831).
425 31 U.S. (6 Pet.) 515 (1832).
426 31 U.S. at 558.
427 Holden v. Joy, 84 U.S. (17 Wall.) 211, 242 (1872); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S. 340, 355–56 (1908).
428 The New York Indians, 72 U.S. (5 Wall.) 761 (1867).
429 The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1867).
430 United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).
431 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871). See also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898).
432 16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71.
433 Ward v. Race Horse, 163 U.S. 504 (1896).
434 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
435 Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890).
436 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871).
437 Choate v. Trapp, 224 U.S. 665, 677–78 (1912); Jones v. Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for escheat to tribe of fractionated interests in land representing less than 2% of a tract’s total acreage violates Fifth Amendment’s taking clause by completely abrogating rights of intestacy and devise).