Michael Oberg aptly concludes, “The decision by Congress to abolish treaty-making was intended to signal the death of Native American nationhood, but declaring it could not make it so.” In his essay, Oberg draws out at least two distinct reasons for this. The first is that Indigenous peoples are not passive actors in the face of policies and practices of U.S. settler colonial governance that seek to undermine Indigenous nations’ sovereignty and territorial relations. The second is that the U.S. state itself is not a singular, monolithic actor, but more of a web of institutions, actors, and discourses that can work at cross-purposes. In short, without diminishing the reality of the devastations of conquest and colonialism in the U.S. context, we should not have an over-determined reading of the impact of settler state policies such that it erases Indigenous peoples’ agency and reifies the form and function of state authority.

Treaties remain an ongoing and vital element in U.S.-Indigenous relations and debates as can be seen in public and political discourse, social movements, and court decisions. This is because Indigenous nations are the ones mobilizing demands for fulfillment of treaty terms premised on the persistence, not the end, of a nation-to-nation relationship with the United States. This is not to say all these efforts succeed, of course, as there are always victories and defeats in politics, especially in a context with such a discrepancy of institutional power as a white supremacist settler colonial state. And yet, 150 years after the formal end of treaty-making, court decisions such as McGirt demonstrate that the making in treaty-making is an active verb, a product of political and judicial contest by Indigenous peoples, not an archaic process collecting dust in the archives.

The flip side of the point about treaty-making is underscored by Oberg’s reference to Clarence Thomas’s view of treaties and of U.S. Plenary Power, and that Trump appointee Neil Gorsuch wrote the McGirt opinion. This is not to absolve either them or the Supreme Court from their roles in reinforcing the powers and prerogatives of a white settler colonial state, but their views do raise questions—for reasons of their ideologies and reading of history—of how to analyze and deconstruct the role of the state in U.S. Indian policy. The lesson here is that the state is an assemblage, bearing and masking its own internal contradictions. In the gaps and tensions of this assemblage reside openings for political mobilization, leverage, and action by Indigenous nations to resist and refuse settler state norms and dictates. This refusal also takes the form of Indigenous nations, such as those of the Haudenosaunee Confederacy, often disengaging from settler colonial institutions, practices, and actors to the degree possible.Footnote ¹ The best-laid plans of policymakers may well meet many of their aims, which are often destructive aims the consequences of which persist, but such matters are also rarely so tidy and one-sided. Political history does not follow a straight line, as people and the nations and institutions they comprise do not always go along with and follow the script set out for them.