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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
 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
 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
 Overview of Federal Indian Policy
 Review of the influence of United States policies over
time on Indian treaties
 Transition from Treaties to Statutes
 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
 The method by which rules are
established and enforced in a society.
 Legal systems help and hinder
interactions with other societies.
 Inherent right to or power to govern in
a specific jurisdiction.
 People
 Land
Who, What, When, Where, Why?
Nation
 Shared History
 Origins
 Culture
 Organic Formation
 Style of Governance from
Culture
 Governmental
Mechanism
State
 Same legal effect as federal statutes
 Can supersede earlier statutes
 Statutes can abrogate earlier treaties
 Amendment process
Connections to Tribal Sovereignty
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
International
Law
Tribal
Law
State/
Local
Law
Federal
Law
Created by the
U.S. Constitution
Extra-Constitutional (U.S.)
 Treaties
 Conventions
 International Relations
 Indigenous Peoples
 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
 Federal Indian
 Federally Recognized Tribes
 Extra-Constitutional
 Federal Trust Relationship
 Legal Issues:
 Copyrights, patents, bankruptcy, federal taxes,
Social Security, etc.
 Federal Statutes
 Plenary Power
 Federal Recognition
 Approval of Indian Treaties
 Administrative Agencies
 Federal Regulations
 Executive Orders and Proclamations
 Negotiate Treaties
 Case Law
 Marshall Trilogy
 Interpretation and Application
 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)
 Trustee
 Beneficiary
 Corpus
 Fiduciary Duty
 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
 Sovereignty expressed through the lens of an
individual tribal entity’s history and culture
 Western Law
 Treaties
 Constitutions
 Statutes
 Regulations
 Court opinions
 Tribal Law
 Most tribes have
Western structure
 Tradition
 Custom
 Culture
 Unwritten law
 Extra-Constitutional
 Voting (1924)
 Indian Civil Rights Act (1968)
 Unique Political Status
 Sovereignty
 Jurisdiction
 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
 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.
 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)
 2016 - Final Rule Issued by the U.S. Dept. of
Interior outlining administrative procedure to
Federally Recognize a Native Hawaiian
Government
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.
 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
 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
 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
 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)
 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
From Treaties to Statutes
 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
Power shift for tribes from sovereign to
sovereign relationships to dependent domestic
sovereigns.
 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?
 Railroads
 General Allotment Act (1887)
 “Indian Problem”
 Merriam Report (1928)
 Howard-Wheeler Act (1934)
 Legislative Reorganization Act of 1946
 Indian Claims Commission (1946)
 “Indian Country” (1948)
 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
 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
*Think about the concepts of nations and
states, and how nations identify
themselves and how they identify another
similar entity.
 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
 House Concurrent Resolution 108 (1953)
 Public Law 280 (1953)
 Termination of Tribes (1958-1966)
 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)
 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
 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)
 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
Workshop 2 - Indian Treaties - History and Context - 2019 December 11

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

  • 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.  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.  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.  Overview of Federal Indian Policy  Review of the influence of United States policies over time on Indian treaties  Transition from Treaties to Statutes
  • 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.
  • 7.  The method by which rules are established and enforced in a society.  Legal systems help and hinder interactions with other societies.
  • 8.  Inherent right to or power to govern in a specific jurisdiction.  People  Land
  • 9. Who, What, When, Where, Why?
  • 10. Nation  Shared History  Origins  Culture  Organic Formation  Style of Governance from Culture  Governmental Mechanism State
  • 11.  Same legal effect as federal statutes  Can supersede earlier statutes  Statutes can abrogate earlier treaties  Amendment process
  • 12. Connections to Tribal Sovereignty
  • 13. 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
  • 15.  Treaties  Conventions  International Relations  Indigenous Peoples
  • 16.  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
  • 17.  Federal Indian  Federally Recognized Tribes  Extra-Constitutional  Federal Trust Relationship  Legal Issues:  Copyrights, patents, bankruptcy, federal taxes, Social Security, etc.
  • 18.  Federal Statutes  Plenary Power  Federal Recognition  Approval of Indian Treaties
  • 19.  Administrative Agencies  Federal Regulations  Executive Orders and Proclamations  Negotiate Treaties
  • 20.  Case Law  Marshall Trilogy  Interpretation and Application
  • 21.  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)
  • 22.  Trustee  Beneficiary  Corpus  Fiduciary Duty
  • 23.  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
  • 24.  Sovereignty expressed through the lens of an individual tribal entity’s history and culture
  • 25.  Western Law  Treaties  Constitutions  Statutes  Regulations  Court opinions  Tribal Law  Most tribes have Western structure  Tradition  Custom  Culture  Unwritten law
  • 26.  Extra-Constitutional  Voting (1924)  Indian Civil Rights Act (1968)  Unique Political Status  Sovereignty  Jurisdiction
  • 27.  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
  • 28.  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.
  • 29.  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)
  • 30.  2016 - Final Rule Issued by the U.S. Dept. of Interior outlining administrative procedure to Federally Recognize a Native Hawaiian Government
  • 31.
  • 32. 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.
  • 33.
  • 34.  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
  • 35.
  • 36.
  • 37.
  • 38.  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
  • 39.  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
  • 40.
  • 41.
  • 42.  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)
  • 43.
  • 44.
  • 45.  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
  • 46.
  • 47.
  • 48.
  • 49. From Treaties to Statutes
  • 50.  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
  • 51. Power shift for tribes from sovereign to sovereign relationships to dependent domestic sovereigns.
  • 52.  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?
  • 53.  Railroads  General Allotment Act (1887)  “Indian Problem”  Merriam Report (1928)
  • 54.
  • 55.
  • 56.  Howard-Wheeler Act (1934)  Legislative Reorganization Act of 1946  Indian Claims Commission (1946)  “Indian Country” (1948)
  • 57.  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
  • 58.  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
  • 59. *Think about the concepts of nations and states, and how nations identify themselves and how they identify another similar entity.
  • 60.  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
  • 61.
  • 62.  House Concurrent Resolution 108 (1953)  Public Law 280 (1953)  Termination of Tribes (1958-1966)
  • 63.
  • 64.
  • 65.  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)
  • 66.  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
  • 67.  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)
  • 68.
  • 69.  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