Once and Future Diplomacy: The Necessity of Treaty Relations


  • Joseph Bauerkemper University of Minnesota Duluth


This essay weaves together several threads in order to craft an argument on behalf of the restoration of the federal government’s authority to enter into treaty relationships with American Indian nations. It begins with a conceptual overview of treaty diplomacy, emphasizing the necessity of upholding these relations and obligations as a matter of public policy. It then briefly narrates the late nineteenth-century emergence of the ongoing congressional moratorium on treaty-making. The essay calls into question the constitutional validity of this moratorium and considers judicial pathways to its nullification while also describing some of the conceptual and practical shifts in treaty-making that should accompany restoration. After underscoring governance enhancements that contemporary treaty-making would potentially achieve, the essay briefly explores policy developments associated with tribal self-determination and self-governance and suggests that these might someday be recognized as incremental steps toward the restoration of treaty-making. In its concluding section, the essay considers some of the entrenched ideological tendencies that both disregard extant treaty relationships and serve as obstacles to restoration of the treaty-making power. Despite these difficulties, the essay maintains that the dignity of treaty relationships and the restoration of federal authority to continue forging them are necessary for the integrity and legitimacy of United States federalism.


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