Treaty Rights

SW 5235

American Indians and Social Policy

Dr. Priscilla Day

Introduction:

• Treaties are at the heart of understanding tribal governments and the unique status political status tribes and Indian people have in comparison to people of color. We have rights and obligations to our tribe.
• Treaties are complex which is why many times they end up in court.
• Treaties don’t give Indians “rights”; treaties uphold the rights that tribes never ceded. Most people don’t understand this basic tenant. (Rights to self-governance, religious and cultural freedom, hunting, fishing and gathering rights, etc.)
• I am assuming you have some understanding of the history of social policies made by the U.S. with tribes? There were many ebbs and flows depending on who was in power at the time, whether the U.S. needed Indian assistance, and the desires of whites to populate certain lands. Those social and political tides affected how Indians were treated ranging from seeing tribes as equal nations to overt genocide and cultural destruction.
• It seems clear that politicians believed that over time the Indian “problem” would disappear as tribal people died out or people were assimilated to the point where tribal culture became meaningless. This, of course, did not happen even with the tremendous efforts to bring it about. Therefore, the U.S. government today still has to deal with the treaties their ancestors established.

Definitions:

Treaty-“a contract between sovereign nations”, the Constitution declares treaties to be “the supreme law of the land”, as such; they are superior to state laws and state constitutions. Until 1871 treaties were the way in which the United States conducted its relations with Indian tribes. Most treaties contain two things-1) tribes relinquish land to the U.S. and 2) the U.S. provides federally protected reservations for Indian tribes. Some tribes were promised specific goods and services (medical, food, education, etc).

Indian treaties have the same force and effect as federal statutes. A violation of an Indian treaty is a violation of federal law.

Doctrine of trust responsibility-this is one of the most important concepts in Indian law-between 1787-1871 when the U.S. entered into hundreds of treaties with tribes, in almost all of these Indian tribes gave up land in exchange for promises by the U.S government. The Supreme Court has held that these exchanges created a trust relationship. The promises created a “duty of protection” toward Indians. “The Indians trust the U.S. to fulfill the promises which were given in exchange for land. The federal government’s obligation to honor this trust responsibility and to fulfill its treaty commitments is known as its trust responsibility.”

Canons of treaty construction-Supreme Court set of rules to interpret treaties

3 basic canons: 1) ambiguities in treaties must be decided in favor of tribes;

2) Treaties must be interpreted as Indians would have understood them; 3) Indian treaties must be construed liberally in favor of Indians. These canons were to favor tribes in recognition of the significant disadvantage tribes were in when the treaties were made (in English, many tribal leaders did not read, concepts of land ownership, etc. were different, treaties made under threatening conditions, etc.).

2005).

Sovereignty-quotes from Indian Tribes as Sovereign Governments (2004)

“Perhaps the most basic principle of all Indian law, supported by a host of decisions…is the principle that those powers lawfully vested in an Indian

tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each tribe begins its relationship with the federal government

as a sovereign power, recognized as such in treaty and legislation” (Felix S.

Cohen, 1942, p. 31).

“Indian tribes are part of the constitutional structure of government.

Tribal authority was not created by the Constitution-tribal sovereignty

predated the formation of the U.S. and continued after it-but tribes were acknowledged by the Constitution in the reaffirmation of previously

negotiated treaties…to be sure, although a truly substantial portion of

early federal business involved Indian affairs, the Founding Fathers almost

certainly assumed that tribes would simply die out under the combined

weight of capitalism, Christianity, and military power. But the Framers

of the Constitution, who were so seldom wrong on structure, were wrong

about Indian tribes. The tribes did not die out, and the modern presidency, Congress, and Supreme Court continue squarely to acknowledge this third

source of sovereignty in the U.S.” (Charles Wilkinson, 1987, p. 29).

Material from:

Wilkinson, C. (2004). Indian Tribes as Sovereign Governments, 2nd Ed., American Indian Lawyer Training Program, Inc., Oakland, CA.

Pevar, S. L. (1994). The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights, 2nd Ed., Southern Illinois University Press, Carbondale, Il.

Great Lakes Indian Fish and Wildlife Commission, Odanah, WI. (good website)