abrogation

What happened

A treaty with a Native nation is federal law, but a later act of Congress can override one of its terms. That is abrogation. The rule comes from Lone Wolf v. Hitchcock (1903). The Kiowa, Comanche and Apache had a treaty from 1867 that required the signatures of three fourths of adult males before any cession of reservation land. Congress later acted on that land without meeting that requirement. The Supreme Court held that Congress "has always exercised plenary authority over the tribal relations of the Indians," and that the power "has always been deemed a political one, not subject to be controlled by the judicial department of the government."

Over time the Court added a clear-statement rule. United States v. Dion (1986) says that "What is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." In Dion itself, the Court found that the Eagle Protection Act abrogated the Yankton Sioux's treaty right to hunt eagles.

The rule can also protect treaty rights. In Herrera v. Wyoming (2019), the Court said the crucial question is whether Congress has "clearly expressed" an intent to abrogate, and held that Wyoming's admission to the Union did not abrogate the Crow Tribe's off-reservation treaty hunting right.

Together, these cases show abrogation as a real federal power with a demanding standard of proof.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error