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Workshop 2 - Indian Treaties - History and Context - 2019 December 11

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From the workshop at the Indian Pueblo Cultural Center 2019 December 11. Workshop 2 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 2 - Indian Treaties - History and Context - 2019 December 11

  1. 1. Indian Treaties Conservation and Digitization Project Community Engagement for the National Archives Indigenous Digital Archives Session 2 of 3 – December 11, 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 treaty research
  3. 3.  Session 1 Review  What are the elements of a treaty?  How are United States Indian treaties different from “traditional” international treaties?  Overview of Federal Indian Law
  4. 4.  Overview of Federal Indian Policy  Review of the influence of United States policies over time on Indian treaties  Transition from Treaties to Statutes
  5. 5.  After the session, the audience should understand:  Basic concepts of Federal Indian law  The branches of the United States government and how they affect federal Indian law  The historical context of Federal Indian policies over time  Understand the relationship between Indian treaties and federal statutes
  6. 6.  The method by which rules are established and enforced in a society.  Legal systems help and hinder interactions with other societies.
  7. 7.  Inherent right to or power to govern in a specific jurisdiction.  People  Land
  8. 8. Who, What, When, Where, Why?
  9. 9. Nation  Shared History  Origins  Culture  Organic Formation  Style of Governance from Culture  Governmental Mechanism State
  10. 10.  Same legal effect as federal statutes  Can supersede earlier statutes  Statutes can abrogate earlier treaties  Amendment process
  11. 11. Connections to Tribal Sovereignty
  12. 12. Federal Indian Law  The law governing the relationships between federally recognized tribes/entities and all others.  The internal law of federally recognized tribes and entities. Tribal Law
  13. 13. International Law Tribal Law State/ Local Law Federal Law Created by the U.S. Constitution Extra-Constitutional (U.S.)
  14. 14.  Treaties  Conventions  International Relations  Indigenous Peoples
  15. 15.  Adopted September 13, 2007.  Recognizes the unique situation of indigenous peoples around the world and their relationships to the governmental entities around them, and enumerates the rights that should be recognized and protected.  http://www.un.org/esa/socdev/unpfii/docu ments/DRIPS_en.pdf
  16. 16.  Federal Indian  Federally Recognized Tribes  Extra-Constitutional  Federal Trust Relationship  Legal Issues:  Copyrights, patents, bankruptcy, federal taxes, Social Security, etc.
  17. 17.  Federal Statutes  Plenary Power  Federal Recognition  Approval of Indian Treaties
  18. 18.  Administrative Agencies  Federal Regulations  Executive Orders and Proclamations  Negotiate Treaties
  19. 19.  Case Law  Marshall Trilogy  Interpretation and Application
  20. 20.  Ambiguous expressions must be resolved in favor of the Indian parties concerned - Worcester v. Georgia, 31 U.S. 515 (1832)  Indian treaties must be interpreted as the Indians themselves would have understood them - Jones v. Meehan, 175 U.S. 1 (1866)  Indian treaties must be liberally construed in favor of the Indians - Tulee v.Washington, 315 U.S. 681 (1942)  Unclear treaty provisions may be interpreted from historical circumstances. – Williams v. Lee, 358 U.S. 217 (1959)
  21. 21.  Trustee  Beneficiary  Corpus  Fiduciary Duty
  22. 22.  State  Tribal-State Relations  PL 280  Legal Issues:  Compacts, child custody, divorce, landlord-tenant, small business, personal injury, wills, etc.  State Recognized Tribes – List Available from the National Conference of State Legislatures  Tribal  Unique Political Status  Sovereignty  Jurisdiction  Combination of legal issues
  23. 23.  Sovereignty expressed through the lens of an individual tribal entity’s history and culture
  24. 24.  Western Law  Treaties  Constitutions  Statutes  Regulations  Court opinions  Tribal Law  Most tribes have Western structure  Tradition  Custom  Culture  Unwritten law
  25. 25.  Extra-Constitutional  Voting (1924)  Indian Civil Rights Act (1968)  Unique Political Status  Sovereignty  Jurisdiction
  26. 26.  Treaty of Cession with Russia in 1867  Excepted “uncivilized native tribes” from the rights of citizenship  Clause about these uncivilized tribes being subjected to the laws of the United States, but nothing was really done  Alaska Organic Act of 1884  Extinguished aboriginal title, but didn’t really acknowledge whether it really existed 27
  27. 27.  Extinguished Aboriginal Title  In exchange there is the Alaska Native Fund for appropriation  Mineral lease money  Establishment of regional and village corporations  Regulations regarding the permitting of land usage.
  28. 28.  Kingdom overthrown in 1893  Congress has included Hawaiians in Indian Legislation since 1974  Public Law 103-150 (1993)  Apology and reconciliation  Rice v. Cayetano (2000)
  29. 29.  2016 - Final Rule Issued by the U.S. Dept. of Interior outlining administrative procedure to Federally Recognize a Native Hawaiian Government
  30. 30. Treaty Period* 1778 - 1871 Time Immemorial Posterity Colonial Period 1460 - 1820 Indian Removal 1820 -1846 Reservation Period 1850-1887 Allotment and Assimilation 1887 -1934 Indian Reorganization 1934 - 1953 Termination and Relocation 1953 - 1968 Self- Determination 1968 - ??? *Treaties were still being created after these dates, but this is the time period where most of them were being negotiated and ratified.
  31. 31.  Old World comes to the New World  Sovereign to Sovereign Negotiations  American Revolution  United States government did not exist until the Constitution was created.  Ratified: June 21, 1788  Effective: March 1789  Topics:  Political Alliances  Military Alliance  Land Cessations
  32. 32.  United States came into existence  Indian Trade Act (1790)  Louisiana Purchase (1803) = Westward Expansion  Over 400 Treaties Ratified  War of 1812  Manifest Destiny  Topics:  Peace  Military Alliance  Creation of Reservations  Removal  Land Cessions
  33. 33.  Marshall Trilogy  Johnson v. M’Intosh – 1823  Indian title  Cherokee v. Georgia – 1831  Domestic dependent nations  Indian Trust Doctrine  Worcester v. Georgia – 1832  Distinct political communities
  34. 34.  Oregon Trail - Westward Expansion Continues  Indian Removal Act (1830)  Department of Indian Affairs Establish (1832)  Trail of Tears (1836)  Treaty of Guadalupe Hidalgo (1848)*  Topics:  Land exchanges – Indian lands within state borders for unsettled lands (Oklahoma)
  35. 35.  Department of Interior over Indian Affairs (1849)*  California Gold Rush  Westward Expansion Continues  Allotments begin (1854)  Civil War (1860-1869)  End of Treaty Making (1871)  Major Crimes Act (1885)  Topics:  Land exchanges
  36. 36. From Treaties to Statutes
  37. 37.  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
  38. 38. Power shift for tribes from sovereign to sovereign relationships to dependent domestic sovereigns.
  39. 39.  Who  Parties  Appropriate power –  Legislative - Plenary power to create and terminate tribes  Executive - Agencies  Who does it affect? – All federally recognized tribes are treated the same.  What  Any topic of governmental interest  What constitutes a breach?  What happens when a breach occurs?  When  When can law be changed?  Where  Multiple jurisdictions  Where are disputes settled?  Why  Fiduciary Duties?  Trust Relationship?
  40. 40.  Railroads  General Allotment Act (1887)  “Indian Problem”  Merriam Report (1928)
  41. 41.  Howard-Wheeler Act (1934)  Legislative Reorganization Act of 1946  Indian Claims Commission (1946)  “Indian Country” (1948)
  42. 42.  Existed since time immemorial  Extremely wide variety  Nomadic bands  “Voting with one’s feet”  Highly structured, complex and stable  Legitimacy from creation and sacred narratives—not written constitution  Kinship groups rather than individuals were the basic unit of the political structure
  43. 43.  More directed toward resolving conflicts, restoring harmony, collective decision-making,  Legislative action less prominent than keeping peace  Many consensus-based  Development impacted by colonization & outside U.S. pressure  More efficient to have a “king” or chief decide  Deliberate tribal efforts to modify
  44. 44. *Think about the concepts of nations and states, and how nations identify themselves and how they identify another similar entity.
  45. 45.  Tribes had the right to organize and adopt constitution and by-laws (181 for, 77 against)  Effective upon majority vote of adult members  Approval of Secretary of Interior required  Virtually all constitutions were reproductions of the Washington model  Amendments to constitution (and some ordinances) had to be approved by Secretary
  46. 46.  House Concurrent Resolution 108 (1953)  Public Law 280 (1953)  Termination of Tribes (1958-1966)
  47. 47.  Indian Civil Rights Act (1968)  Exercise of Treaty Rights Through the Courts (1970 ----)  Alaska Native Claims (1971)  Indian Education Act (1972)  Restoration of Tribes Begins (1973)  Morton v. Mancari (1974) – Unique Political Status  Indian Child Welfare Act (1976)  Indian Gaming (1988)  Tribal Law and Order Act (2011)
  48. 48.  Impacted by federal court decisions and policies  “Domestic dependent nations”  Congress has the power to limit tribal government powers and to restore  Major Crimes Act  Indian Reorganization Act  Public Law 280
  49. 49.  Still tribes operating without written constitutions  Direct democracies (Penobscot & Oneida of WI)  Theocracies  Formal government co-existing with traditional  E.g., Tribal Council is the outside face of the Tribe, but women are in charge of domestic affairs (Penobscot)
  50. 50.  200+ Treaties are still in effect  Congress still has plenary power  Tribes are more vigilant and active lobbyists  Federal statutes have taken the place of treaties:  No longer sovereign to sovereign  Disputes are resolved in U.S. Federal Courts  Federal statutes can abrogate treaties  Trust Relationship  Canons of Construction Apply to Both Treaty and Statute Interpretation

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