Typically, a treaty was negotiated with a tribe by an officially selected and appointed United States Treaty Commission. Treaties negotiated with indigenous and non-indigenous nations are sent to the United States Senate for ratification. Tribes that are party to treaties approved by the Senate are usually accorded federal recognition. Yet, the Senate did not ratify at least 150 treaties and agreements negotiated by official U.S. Treaty Commissions.
Many Indian nations participated in good faith negotiations and believed these treaties were in effect despite the ultimate failure of the Senate to ratify the negotiations. Treaty commissioners entered into negotiations with Indian tribes with the understanding and recognition that the Indian nations had the power and rights to make treaties.
If a country like France makes a treaty with the United States and the Senate does not ratify the treaty, France does not lose its status as sovereign nation. In such cases, the negotiating nation does not have an agreement, but at the same time the concessions made in the treaty are not applicable. Indian nations, likewise, are not duty bound to hold up their end of un-ratified treaties.
The United States should not deny government-to-government relations with Indian nations who have negotiated treaties that did not receive ratification in the Senate. However, benefits gained in un-ratified treaties with Indian nations should be restored to the Indian nation. By the very act of non-ratification, the U.S. Senate is forgoing the benefits of treaties with Indian nations, while declining to take on the obligations and concessions spelled out in a treaty.
Should negotiation of a treaty with the United States be evidence of federal recognition? At the time each treaty was negotiated, the treaty commissioners recognize a tribe as an Indian nation with powers of self-government, territorial rights, and treaty negotiation. Otherwise the Treaty Commission would not have entered into treaty negotiations. The issue of whether or not the Senate decides to approve a treaty does not hinge on an evaluation of the sovereignty of the treating Indian nation. The ratification of treaties depends on the internal political relations of the Senate, and the relative evaluation of benefits to the United States by voting Senators. By failing to approve a treaty agreement, the Senate does not deny tribal sovereignty. The very act by the U.S. to deploy Treaty Commissioners to treat with Indian nations demonstrates that the U.S. government acknowledges that tribes are capable of negotiating rights as sovereigns in government-to-government relations.
Indian nations who signed treaties not approved by the Senate should receive recognition as Indian nations, as they were considered Indian nations by Treaty Commissions within the federal treaty approval process. Treaty Commissions were composed of federal officials, who were assigned to treat with Indian nations in good faith. The treaties were passed to the Senate for approval, or were eligible to be passed to the Senate. The tribes who negotiated the treaties expected the Senate to consider the treaty terms for ratification. If the Senate did not agree to the treaty terms, most Indian nations would expect the government to send treaty commissioners to renegotiate terms. Failure to send agents for renegotiation of a treaty agreement, signals to the Indian nation that the U..S was not interested in changing the existing state of affairs, which already includes political recognition as a treaty-making nation.
If the Senate suspected a group was not authorized or eligible to negotiate a treaty, the Senate record should reflect those objections. Often treaty commissioners kept notes and records about the treaty proceedings, and gave their impressions about the communities and political leadership they engaged with. Indian nations as political entities can be identified through unratified treaty documents and should be recognized by the federal government.