1. Indian Treaties Conservation and Digitization Project
Community Engagement for the National Archives
Indigenous Digital Archives
Session 1 of 3 – December 10, 2019
Sherri Nicole Thomas
Associate Dean of Institutional Climate and Equity
Library Assistant Director
Professor of Law Librarianship
University of New Mexico School of Law

2.  December 10, 2019 – Treaties – What are they?
 Session 1 defines what treaties represent and what they are
designed for in the global context, and then focusing in on
the significant structuring of Indian treaties in the United
States.
 December 11, 2019 – Indian Treaties – History
 Continuing to build on the foundation of the previous
session, Session 2 gives historical context to the relationship
between the United States Government and Tribal Nations,
and the role of Indian treaties in that relationship.
 Spring 2020 – Research You Can Do with the Treaties
Explorer Web Portal
 Session 3 provides guidance and instruction on using the
Indigenous Digital Archive for Indian treaty research.

3.  International Law: Terminology and Definitions
 Basic terms
 Significance
 Treaties: International Law
 Topics
 Contents of Treaties
 Parts of a Treaty
 Signficance

4.  The United States and Treaties : Domestic Law
 Overview of Law in the United States
 Significance
 Implementation
 Enforcement
 Indian Nations and Treaties: Indian Treaties in the United
States
 Contents
 Enforcement
 Uniqueness of Indian Treaties
 Significance

5.  After the session, the audience should know:
 The difference between Foreign and International Law
 Definitions and terminology related to treaties
 Entities and organizations that enter into treaties and
influence the interpretation of them

6.  After the session, the audience should know:
 The branches of the United States government
negotiate, ratify, enforce and interpret treaties
 The following about United States Indian Treaties:
 Significance
 Topics
 Implementation
 Enforcement
 Parts of an Indian Treaty
 Renegotiation of Indian Treaties

7. Terminology and Definitions

8.  The method by which rules are
established and enforced in a society.
 Legal systems help and hinder
interactions with other societies.

9.  Inherent right to or power to govern in
a specific jurisdiction.
 People
 Land

10. Nation
 Shared History
 Origins
 Culture
 Organic Formation
 Style of Governance from
Culture
 Governmental
Mechanism
State

11. International Law
 The law governing the
relationships between
countries.
 The internal law of
another country.
Foreign Law
Domestic law is the law of the country you are in!

12.  Treaty – A formal agreement between two or more
nations regarding peace, trade, etc.
 Agreements– Arrangement or contract between two or
more nations (parties).
 Convention – Agreement or compact between nations.
Can also mean an assembly of individuals having a
common objective.

13.  Bilateral – Between two parties (nations).
 Multilateral – Between more than two parties (nations),
also known as “treaty contract”.
 Protocol – Practices observed by nations for nation to
nation contact. An amendment or supplement to
another treaty
 In Force – The international document is currently
binding enforceable by parties

14.  Unratified (U.S. context) – The international document
has not passed the Senate and been signed into law and
is there for not in force, or a part of U.S. law.
 Ratified (U.S. context) – The international document has
passed the Senate with 2/3 vote and has been signed into
law and is a part of U.S. law.
 Signatory /Party– The head of state representing the
governmental entity that aids in negotiating and signing
the agreement.

15.  IGOs: International governmental organizations
 United Nations
 NGOs: International non-governmental organizations
 World Health Organization
 RUDs – Reservations (parts do not apply),
understandings (clarifications, definitions, side
agreements), and declarations (intent) can be made by
signatories or parties.

16. Primary
 Enforceable Law
 Appropriate
Jurisdiction
 In effect
 Examples:
 Statutes
 Regulations
 Rules
 Cases
 Ratified Treaties
 Not binding authority
 Different Jurisdiction
 Out of date
 Pre-ratification or
completion of passage
Secondary

17. Treaty
 Formal agreement
between sovereigns
and/or international
organizations
 Ratified
 Binding
 Enforceable
 Agreement between
heads of state
 Politically binding
 Not always ratified
Executive Agreement

18. International Law

19.  Alliances
 Military
 Political
 Trade
 Immigration
 International Peace
 Taxation
 Territory Exchange
 State Creation
 Lawmaking –
Universal/General
Application
 Human rights

20.  Written Agreement
 Multiple languages
 Binding
 Once ratified
 Creates rights and duties
of parties
 Created by entities with
treaty-making power
 Signatories
 Governed by
international law
 QUESTION:
 Does negotiating and signing a treaty make it
binding on the signatory nation?

21.  International law is generally “customary law”
 Long standing protocols of interacting with foreign
nations
 1968 - Vienna Convention on the Law of Treaties
 Like an international law “rule book”
 United States is not a party to it, but the U.S.
Department of State recognizes the convention as “the
authoritative guide to treaty law and practice.”

22.  Statement of Intent to
Negotiate
 Readiness to Negotiate
 Writing a Framework
(Could be done by states
or international
organizations that are
entering the treaty or by
the United Nations)
 Word choice,
understanding, and
language
 Negotiation –
 Agreement in Principal
 Finalization
 Implementation/
Ratification
 If a Universal/General
Treaty - Open to Other
Countries – Reservations
can be made

23. Amendments
 All parties to the treaty
must formally agree on
any changes before it can
act as a binding
agreement.
 Must go through an
additional ratification
process.
 Modification has a
different legal meaning!
 Can be done by the
executive of any
governmental entity with
the power to do so
 Suspend – May continue
participating at a later
date
 Terminate – Treaty no
longer exists (bilateral)
 Withdraw – Treaty is still
in effect for others
Withdrawals

24.  Who
 Parties (Countries)
 Appropriate power
 Who does it
affect/benefit?
 What
 Treaty Topic
 What constitutes a
breach?
 What happens when a
breach occurs?
 What are the stipulations?
 When
 When does it go into effect?
 When can it be changed?
 When can withdrawals
happen?
 Where
 Usually in territorial
transfers
 May affect specific
jurisdictions
 Where are disputes
settled?
 Why
 Why is the treaty going
into place?
 Historical context

31. Domestic Law

32.  Article I: Legislative
Branch
 Federal Statutes
 Ratifies Treaties
 Article II: Executive
Branch
 Federal Regulations
 Negotiates Treaties
 Peace
 Alliance
 Commercial
 Agencies Apply/Track
Treaties
 Article III: Judicial Branch
 Case Law
 Interprets Treaties
 State/Local Law

33.  Article VI of the U.S. Constitution:
…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, any Thing in the Constitution or Laws of
any State to the Contrary not withstanding…

34. 34
International
Law
State/
Local
Law
Federal
Law
Created by the
U.S. Constitution

35.  Executive Branch initiates, negotiates, and signs
 Senate must approve all agreements by 2/3 vote
 After approval, President ratifies (consents to be bound
by) and proclaims all treaties as the law of the land
 Treaty = Statute in the United States

36.  Same legal effect as federal statutes
 Can supersede earlier statutes
 Statutes can abrogate earlier treaties
 Amendment process

37.  Determining whether:
 A treaty exists
 Is currently in force
 For what parties
 With what limitations
 Topics
 Interpretation
 Verifying and updating
status
 Considerations for
Locating Text
 Do you need current
text or a previous
draft/pre-amendment
version

38.  Finding aid for RATIFIED U.S. Treaties
 Arranged in 2 sections
 Bilateral
 Multilateral
 Published annually
 Indexes
 Numerical Listing
 Country Listing
 Subject Listing
 Available electronically
 State Department:
http://www.state.gov/s/l/treaty/tif/index.htm

39.  Get a Statutes At Large citation from
 Secondary Source
 Google or another search engine
 FDSys

40.  UN Documents
 Title
 Document Number
 Treaties
 Agreements and Protocols
 Learned Papers
 Authoritative Websites

41.  Locate the intent through background documents
(legislative text of the treaty or agreement)
 Obtain status and ratification information
 Is it currently in force?
 For which parties?
 With what reservations, understandings, declarations?
 Analyze the legislative history, treaty
interpretation).

42. Official sources
 T.I.A.S. Treaties & Other International Acts Series
 slip treaty service
 U.S.T. United States Treaties & Other International
Agreements
 bound volumes of same
 Senate Treaty Documents
 Senate Executive Documents

43.  Treaty Document series
 President’s method of transmitting treaty to Congress
for advice & consent
 Formerly Senate Executive Documents until 97th
Congress
 Treaty text annexed to document

44.  Executive Report series
 This is the recommendation of the Senate Foreign
Relations Committee to the full Senate
 Reprints treaty text with article by article analysis
 Committee often appends statements of conditions,
declarations, understandings, provisos

45.  Congress.gov 81st Congress --
 State Department International Agreements
Collection (from 1996-)
 Multilateral Treaties Deposited with the
Secretary General – United Nations

46. Determine the following:
 the parties to the agreement
 the conclusion and the entry into force date
 RUDs -- any amendments, reservations, understandings,
declarations to the original agreement?
 Implementation and judicial interpretation
 Check the Department of State for “Treaties in Force”!

47.  Implementation: check for U.S. laws & regulations
implementing treaties
 United States Code
 Code of Federal Regulations
 Federal Register
 Interpretation: check for judicial decisions

48.  Consider:
 Who the parties are
 Bilateral or Multilateral
 Official Sources vs. Unofficial sites
 Authenticity
 Secondary vs. Primary edition
 Version
 Currency
 RUDs
 Date of signing
 Effective dates
 Ratification dates.

49. Treaty of Guadalupe Hidalgo

55. Indian Treaties in the United States

56. International
Law
Tribal
Law
State/
Local
Law
Federal
Law
Created by the
U.S. Constitution
Extra-Constitutional (U.S.)

57.  Except for:
 “To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;”
U.S. CONST. art. I, § 8, cl. 3.
57

58.  Who
 Parties (Countries) –
Sovereign Nations
 Appropriate power -
Executive
 Who does it affect? – If
ratified, U.S. domestic law
and international relations.
 What
 Treaty Topic
 What constitutes a breach?
 What happens when a breach
occurs?
 What are the stipulations?
 When
 When does it go into effect?
 When can it be changed?
 When can withdrawals
happen?
 Where
 Usually in territorial transfers
 May affect specific
jurisdictions
 Why
 Why is the treaty going into
place?
 Historical context

59. Who, What, When, Where, Why?

60.  Parties (Countries) – Sovereign Entities
 Sovereignty - Nation to nation dealing between national
governments (Mexico and U.S.) and indigenous nations
 Appropriate power – Executive branch for U.S., but what
about in the Tribal context?
 Who does it affect/benefit? – If ratified, mainly
interactions between Tribes and anyone else.
 Treaties in the context of Federal Indian Law
 Rights guaranteed to tribes:
 Land
 Services
 Hunting and fishing

61. What
 Treaty Topic –
 See “Where”
 What constitutes a
breach?
 What happens when a
breach occurs?
 What are the
stipulations?
 Usually in territorial
transfers
 Land for land
 Land for goods
 Land for services
 May affect specific
jurisdictions
 New jurisdictions
created
Where

62.  What language is being used?
 What is the understanding of words?
 What is the cultural context for understanding?
 What are the rules being applied?

63.  When
 When does it go into effect?
 When does it end?
 When can it be changed?
 When can withdrawals happen?

64.  Why is the treaty going into place?
 Historical context

65.  Indian
 Native American
 American Indian
 Aboriginal
 Indigenous group’s
current name
 Indigenous group’s
former name
 First Nation
 Indigenous
 Native People
 Tribal People
 Different spelling of
indigenous group’s name
 Bands

66.  Peace
 Land exchanges
 Removal
 Restrictions
 Rights guaranteed to tribes:
 Land
 Services
 Hunting and fishing
 Overall fiduciary duty

67. Fort Laramie

72. Fort Laramie