A treaty is a contract between sovereign nations. In this context, it is a contract between tribes and the federal government. Treaties are the Supreme law of the land. The U.S. Constitution Article 4, Section 2, clause 2, states that:
This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
So just what does this mean? Treaties, being the supreme law of the land, are superior to state laws and state constitutions - but not federal laws or the U.S. Constitution. So, if a state law is inconsistent with a treaty provision, the treaty prevails. If a federal law is inconsistent with an earlier treaty, the treaty may be abrogated by the later federal law.
As you may recall, in 1831, Chief Justice Marshall referred to tribes as “domestic dependent nations.” Treaties are typically used when dealing with foreign governments. The U.S. government entered into treaties with Indians between 1778 and 1871, which is inconsistent with Marshall’s characterization of tribes.
Remember that treaties are created by the President and ratified by the Senate. There was no role for the House of Representatives in the treaty-making process. Members of the House of Representatives did not like being left out of the process, and Indians were so weakened that the federal government didn’t need to negotiate with them anymore, so the treaty-making process with Indians was ended in 1871.
After 1871, executive orders and statutes took the place of treaties. Executive orders are created by the president acting alone, that is, without congressional ratification. The biggest effect of this change was that Indians no longer had to agree to any terms affecting them. In fact, they could be left out of the process entirely. In many instances, bills adversely affecting Indians have been attached as riders to Appropriations bills, which do not require public hearings.
States cannot legally enter into treaties with Indian tribes or foreign nations, although many of the original colonies did so. This power was reserved for the federal government under the Indian Commerce Clause of the Constitution.
The purpose of entering into treaties with tribes was not to give tribes power, it was to take powers away. Tribes retain any powers that were not expressly extinguished in a treaty or federal law. This is known as the reserved rights doctrine.
Before the war of 1812, tribes and the federal government negotiated as equals. The federal government generally exchanged good and services for land and peace. After 1812, the federal government didn’t need the Tribes as they had before. They were no longer concerned about British intervention. In addition, settlers wanted more land, and treaties became more punitive. Treaties were no longer voluntary agreements, and Indians were often coerced into entering treaties with the federal government.
After 1850, many treaties included an extension of federal authority over tribal internal affairs such as punishing tribal members. Between 1850 and 1871, most treaties contained the following basic provisions:
1. Delineation of boundaries - Indians give up land and U.S. agrees to create a reservation where Indians will remain in perpetuity
2. Many treaties contain provision for goods and services, medical care, etc.
3. Guarantee of peace
4. Guarantee of hunting and fishing rights to the tribe
6. Agreement regulating trade and travel of people in Indian country and
7. Provision for punishment of crimes between Indians and non-Indians.
The treaty-making process put Indians at a disadvantage. Treaties were written in English and were often not explained properly. Individuals chosen by federal representatives to negotiate treaties on behalf of tribes often were not tribal leaders. In addition, concepts of land ownership and governmental relations embodied in the treaties were foreign concepts to Indians.
To compensate for these inequities in the treaty-making process, courts developed what are known as the canons of treaty construction. These canons are used by courts when interpreting treaties:
1. Uncertainties are resolved in favor of the Indians
2. Treaties are to be interpreted as the Indians would have understood them
3. Treaty provisions must be liberally construed in favor of the Indians
In the Northwest, the Chinook language was used when Indians were trading with other Indians. The Chinook language was used to negotiate treaties and the treaties were written in English. There were no words in the Chinook language for limiting the taking of fish. When a lawsuit was brought about 100 years later over fishing rights, the court considered the fact that the Indians probably did not understand any language that purported to limit the taking of fish and upheld tribal fishing rights.
If the language of a treaty is clear, the treaty will be applied as written, even if the outcome is unfair and unfavorable to Indians.
Abrogation of treaties
Abrogation of treaties is the repeal of treaty rights. There are two ways that treaties are generally abrogated:
1. Congress expressly refers to a treaty when passing legislation to the contrary and treaty rights no longer apply; or
2. Congress passes a law that is inconsistent with an earlier treaty without mentioning the previous treaty rights and the courts look at the legislative history of the law and decide what Congress intended when passing the later inconsistent law. This method of abrogation is more common.
Treaties have the same footing as federal statutes. They can be repealed or modified by later statutes without approval of the affected tribes, but the U.S. Supreme Court is reluctant to abrogate treaty rights. If a statute does not mention an earlier inconsistent treaty, the court will look at the surrounding circumstances and the legislative history of the statute. It must be clear that Congress actually considered the conflict with the treaty and chose to abrogate the treaty, before the court will consider treaty rights to be abrogated. So, if a treaty is in existence and Congress later passes an inconsistent law, the inconsistent law applies. For example, if there is a treaty granting the right to live on specified lands, and Congress later authorizes the sale of the land, without mentioning the earlier treaty, this later action will be considered an abrogation of the earlier treaty if the legislative history makes it clear that Congress intended to abrogate the earlier treaty. (Of course, money for the land, or additional land must be given to the tribe, or the act will violate the 5th amendment).
The Supreme Court has held that treaty rights still apply even when a tribe has been terminated, unless the termination act specifically abrogated the treaty rights. The Menominee Tribe was terminated in the 1950s. Treaties entered into with the tribe recognized tribal hunting and fishing rights. The U.S. Supreme Court held that descendants of treaty signers retained the treaty hunting and fishing rights, even though the tribe was no longer federally-recognized.
INTRO TO AMERICAN INDIAN STUDIES 71084/73772... Required reading Native American Heritage (Garbarino & Sasso) is your basic text. Reading assignments are in the syllabus. Note that this and many similar texts are limited to covering only North American cultures.
This introductory course is a multidisciplinary study of Native American people. We will focus on a multicultural perspective with an emphasis of the Native American viewpoint of traditional culture and contact with non-Indians. Case studies of traditional cultures will be used to view the kind of changes that one particular group and individuals went through during various historical time periods.
Review Quizzes (Take Home) 4 x 25 100 pts.
1)NA Roots; 2)Trad; 3)Contact; 4) Contemp.
Native American Assessment 100 pts.
Final Exam 100 pts.
Extra Credit-Article, film, or Event Review (1 pg.) +15 pts.
A letter grade is based upon the following percentage scale accumulated over the term:
Extra Credit points (max. 15 pts.) are above and beyond the points for the grade. One extra credit article review is the limit. Make up exams must be scheduled outside of class time and completed before the last exam of the term.
A credit/no credit is available and a performance expectation of a 'C' or better equals the credit evaluation.
The student is responsible for the add/drop process