Volume 97, Number 1

April 2022

Revitalizing Tribal Sovereignty in Treatymaking

David H. Moore, Michalyn Steele

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In
Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While
Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.