Cherokee Treaty Rights and the Federal Trust Responsibility: Sovereignty Is Not a Gift
Let’s get one thing straight from the jump: Cherokee sovereignty isn’t a gift from the United States government. It’s not a hobby, it’s not a ‘special interest,’ and it’s certainly not a handout. It is a legal, inherent right that predates the existence of the U.S. Constitution. When we talk about Cherokee Treaty Rights and the Federal Trust Responsibility, we are talking about binding international contracts—treaties—that the United States signed to secure land, peace, and westward expansion. In exchange, the federal government made promises it is legally obligated to keep.
At Osiyo.net, we believe in calling history what it is. For too long, the narrative has framed Tribal Nations as ‘wards’ of the state. The reality is much more complex and powerful. Today, three distinct, federally recognized Cherokee tribes—the Cherokee Nation, the Eastern Band of Cherokee Indians (EBCI), and the United Keetoowah Band of Cherokee Indians (UKB)—navigate a landscape of reserved rights that affect everything from healthcare to criminal jurisdiction.
Key Takeaways
- Treaties are the Supreme Law: Under Article VI of the U.S. Constitution, treaties are the highest law of the land, on par with the Constitution itself.
- Reserved Rights Doctrine: Tribes did not ‘receive’ rights from the U.S.; they reserved existing rights they never gave up.
- Trust Responsibility: The federal government has a legally enforceable fiduciary duty to protect tribal lands, assets, and resources.
- Three Sovereign Tribes: While sharing a common history, the Cherokee Nation, UKB, and EBCI are separate political entities with their own government structures.
- Independence: Osiyo.net is an independent platform and not an official government site for any of these nations.
The Legal Bedrock: The Marshall Trilogy
If you want to understand why Cherokee sovereignty looks the way it does today, you have to look at three Supreme Court cases from the 1820s and 30s known as the Marshall Trilogy. These cases defined the ‘domestic dependent nation’ status that still irritates and empowers tribal legal teams today.
1. Johnson v. M’Intosh (1823)
This is where the ‘Doctrine of Discovery’ reared its ugly head. The court claimed that while tribes had a right to occupy land, they didn’t ‘own’ it in the European sense because European ‘discovery’ gave the U.S. ultimate title. It was a colonial land grab dressed up in legalese, but it established the federal government—not individuals—as the only entity that could deal with tribes.
2. Cherokee Nation v. Georgia (1831)
Chief Justice John Marshall famously described tribes as ‘domestic dependent nations’ whose relationship to the U.S. resembles that of a ‘ward to his guardian.’ While that sounds patronizing (because it was), it also established the Federal Trust Responsibility. It meant the U.S. had a duty to protect the Cherokee from state interference.
3. Worcester v. Georgia (1832)
A huge win on paper, a tragedy in practice. The court ruled that Georgia’s state laws had no force within Cherokee boundaries. President Andrew Jackson famously ignored this, leading to the forced removal known as the Trail of Tears. However, the legal precedent stuck: Tribes are sovereign entities over which states have no inherent authority. Check out our stories section for more on this era.
“The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.” — Chief Justice John Marshall, 1832
Distinguishing the Three Cherokee Tribes
Misconceptions often lead people to believe ‘The Cherokee’ are one monolithic group. In reality, treaty history and the aftermath of removal created three distinct sovereign governments. It is vital to understand these distinctions before exploring citizenship or tribal history.
| Tribe | Location | Historical Context |
|---|---|---|
| Cherokee Nation | Tahlequah, OK | The largest tribe; descendants of those who survived the Trail of Tears and the ‘Old Settlers’ who moved before removal. |
| Eastern Band of Cherokee Indians | Cherokee, NC | Descendants of Cherokees who remained in their ancestral homelands in the Smoky Mountains, eventually gaining federal recognition as a separate entity. |
| United Keetoowah Band (UKB) | Tahlequah, OK | Descendants of the ‘Old Settlers’ who maintained a distinct traditional and political identity, recognized under the Indian Reorganization Act. |
What is the Federal Trust Responsibility?
The Federal Trust Responsibility is a legally enforceable obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes. According to the Bureau of Indian Affairs (BIA), this includes maintaining the assets held in trust for tribes and ensuring that tribal sovereignty is respected by state governments.
This isn’t ‘charity.’ It is a payment for the millions of acres of land ceded to the United States. When the U.S. funds the Indian Health Service (IHS) or provides grants for tribal education, it is fulfilling a debt. The edge here? The U.S. has a terrible track record of ‘mismanaging’ these trust funds, leading to massive settlements like the Cobell v. Salazar case.
Treaty Rights in the Modern Era
Treaties aren’t dusty relics. They are active documents. For the Cherokee Nation, the Treaty of 1866 is particularly vital. It reaffirmed the tribe’s land base in Oklahoma and established specific jurisdictional rights that were recently center-stage in the McGirt v. Oklahoma (and subsequently Sharp v. Murphy) discussions. While the Supreme Court’s decisions are evolving, the core principle remains: Treaty boundaries exist until Congress explicitly says otherwise.
Healthcare and Education
Treaty stipulations often included the provision of ‘civilization’ (as they called it then) which translates today to healthcare and education. For members of the Eastern Band of Cherokee Indians and others, these services are not socialistic programs—they are prepaid contractual obligations. If you are looking for specific opportunities within these sectors, remember they stem from these legal foundations.
Natural Resources and Hunting/Fishing
Many treaties reserved the right for tribal members to hunt and fish on ‘ceded lands’ or within original territories. While this varies greatly between the three tribes, the Reserved Rights Doctrine suggests that if a treaty didn’t explicitly give up a right (like the right to water or specific hunting grounds), the tribe still retains it. This is a major point of contention in modern environmental law.
