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Workshop 1 - Treaties - What are They? - 2019 December 10

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From the workshop at the Indian Pueblo Cultural Center 2019 December 10. Workshop 1 of 3 for the Treaties Explorer project of the Museum of Indian Arts and Culture's Indigenous Digital Archive, in a sponsored partnership with the US National Archives Office of Innovation. This training session was created and presented by Professor Sherri Thomas (Taos Pueblo and Black), Professor of Law Librarianship of University of New Mexico Law School, for the Museum of Indian Arts and Culture. Video, slides, curriculum, and more resources are available at DigiTreaties.org

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Workshop 1 - Treaties - What are They? - 2019 December 10

  1. 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. 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. 3.  International Law: Terminology and Definitions  Basic terms  Significance  Treaties: International Law  Topics  Contents of Treaties  Parts of a Treaty  Signficance
  4. 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. 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. 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. 7. Terminology and Definitions
  8. 8.  The method by which rules are established and enforced in a society.  Legal systems help and hinder interactions with other societies.
  9. 9.  Inherent right to or power to govern in a specific jurisdiction.  People  Land
  10. 10. Nation  Shared History  Origins  Culture  Organic Formation  Style of Governance from Culture  Governmental Mechanism State
  11. 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. 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. 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. 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. 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. 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. 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. 18. International Law
  19. 19.  Alliances  Military  Political  Trade  Immigration  International Peace  Taxation  Territory Exchange  State Creation  Lawmaking – Universal/General Application  Human rights
  20. 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. 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. 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. 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. 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
  25. 25. Domestic Law
  26. 26.  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
  27. 27.  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…
  28. 28. 34 International Law State/ Local Law Federal Law Created by the U.S. Constitution
  29. 29.  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
  30. 30.  Same legal effect as federal statutes  Can supersede earlier statutes  Statutes can abrogate earlier treaties  Amendment process
  31. 31.  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
  32. 32.  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
  33. 33.  Get a Statutes At Large citation from  Secondary Source  Google or another search engine  FDSys
  34. 34.  UN Documents  Title  Document Number  Treaties  Agreements and Protocols  Learned Papers  Authoritative Websites
  35. 35.  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).
  36. 36. 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
  37. 37.  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
  38. 38.  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
  39. 39.  Congress.gov 81st Congress --  State Department International Agreements Collection (from 1996-)  Multilateral Treaties Deposited with the Secretary General – United Nations
  40. 40. 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”!
  41. 41.  Implementation: check for U.S. laws & regulations implementing treaties  United States Code  Code of Federal Regulations  Federal Register  Interpretation: check for judicial decisions
  42. 42.  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.
  43. 43. Treaty of Guadalupe Hidalgo
  44. 44. Indian Treaties in the United States
  45. 45. International Law Tribal Law State/ Local Law Federal Law Created by the U.S. Constitution Extra-Constitutional (U.S.)
  46. 46.  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
  47. 47.  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
  48. 48. Who, What, When, Where, Why?
  49. 49.  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
  50. 50. 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
  51. 51.  What language is being used?  What is the understanding of words?  What is the cultural context for understanding?  What are the rules being applied?
  52. 52.  When  When does it go into effect?  When does it end?  When can it be changed?  When can withdrawals happen?
  53. 53.  Why is the treaty going into place?  Historical context
  54. 54.  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
  55. 55.  Peace  Land exchanges  Removal  Restrictions  Rights guaranteed to tribes:  Land  Services  Hunting and fishing  Overall fiduciary duty
  56. 56. Fort Laramie
  57. 57. Fort Laramie

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