Treaty Rights and Responsibilities Basics

Mar 17, 2008

Early History

Treaties were viewed somewhat differently in the 1600s and 1700s than they are today, especially by tribal entities. The word treaty originally referred to the process of negotiation, and the discourse itself was at least as important as the written record of the agreement reached. In fact, agreements between tribal entities had traditionally been oral, and the written document was a European addition to the process. One writer has pointed out that for some, the acknowledgment of one entity’s sovereignty by the other entity was the most important feature of the treaty process. Treaties also were agreements to pursue peace and friendship between tribal groups.

From the outset, English settlers in this country entered into many treaties with the native people they encountered. From the settlers' perspective, the agreements were primarily designed to control trade between the tribes and the British settlers and to govern the use and settlement of land areas. However, many other topics were sometimes covered as well, including such things as how to deal with unlawful behavior by members of one group towards members of the other.

Sometimes those treaties were entered into freely by both sides, such as the one entered into between the natives and the Pilgrims shortly after they settled in Plymouth. However, others were forced on the tribal entities after bloody battles. An example of the latter is the Treaty of Hartford of 1638 between the settlers and what was left of the Pequots after virtual annihilation of that tribe the prior year in a bloody massacre of the Indians.

William Penn came to the treaty process from the perspective that the Indian people were deserving of respect and true autonomy. Even before he arrived in this country, his instructions made clear that tribal members should be treated fairly, and any agreements giving the settlers exclusive use of land should only be entered into based on fair compensation to the Indians. He sought to learn the language of the local Lenni Lenape or Delaware Indians. He provided that when there were disputes between indigenous individuals and settlers, the trial jury should include six natives and six newcomers. However, within a short time following his death, his own sons and other leaders in Pennsylvania began to view treaties as agreements to be followed less rigorously than before.

Constitutional Provisions

By the time of the Revolution, hundreds of treaties had been entered into by English settlers with tribal entities. Because of difficulties encountered under the Articles of Confederation when individual states declared war or entered treaties with various tribes, it was decided at the Constitutional Convention to grant those powers exclusively to the federal government. As a consequence, Article I Section 8 provides, "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...." Article II Section 2 of the Constitution gives the President "the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...." During the debates, it was made clear that the treaty-making power granted to the President referred both to treaties with foreign nations and to treaties with domestic Indian tribes. Article VI provides, "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...."

Notice that in this context the word treaty appears to refer more to a document than to a process of discussion. That transition had happened gradually over time, and the Constitution clarified finally that treaties were to be thought of as documents rather than as processes. However, in entering treaties with tribal entities, frequently the Indian negotiators were approaching the process with a somewhat different mindset, coming as they did from an oral tradition.

During the next 88 years, federal and tribal negotiators signed over 400 treaties, of which 367 were ratified by the senate. For example, a treaty with the Navajo people promising continuing health care was signed around the time of the Civil War. Then in 1871, Congress passed a law prohibiting the federal government from entering any additional treaties with tribal entities. Since then virtually all regulation of affairs with American Indians has been through congressional legislation, court decisions, and the Department of Interior.

Congressional Power to Abrogate Treaty Obligations

What is the status of those treaties which were signed and ratified? That question was posed to the Supreme Court in 1903. In the case of Lone Wolf v. Hitchcock, the court held that an Indian treaty deserves to be followed just like any other federal law, but is due no greater deference and can be modified by any future Congress. The court stated, "The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so." At other times, the court has described the power of Congress over American Indian affairs to be "plenary," or absolute.

Under these decisions, Congress has the power to unilaterally amend or repeal any former treaty entered into and ratified by it, and there is no standard to which Congress must comply in justifying its decision to do so. There is but one limitation on that right, as was made clear in the case of Shoshone Tribe v. U.S. in 1937. Pursuant to the Fifth Amendment to the Constitution, Congress must adequately compensate a tribe for the value of any rights or property that are taken from them by an act of Congress.

The application of these principles has caused much anguish over the years. One of the most well-publicized of those situations involves the ownership of the Black Hills of South Dakota. The Fort Laramie Treaty of 1868, which created the Great Sioux Reserve which stretched from the Missouri River to the western boundary of Dakota, provided that no cession of those lands to the United States at any later time should be valid "unless executed and signed by at least three-fourths of all the adult male Indians occupying the same." After gold was discovered in the Black Hills, limited efforts were undertaken to obtain the necessary consents, but without success. After the defeat of Custer at Little Big Horn in 1876 and while the military forces were still in pursuit of the Indians, the American government forced a delegation of Indians into an agreement that purported to relinquish ownership of the Black Hills. In doing so they ignored the previous requirement for consent by three-fourths of the adult male inhabitants. The Supreme Court in 1980 upheld the validity of that later cession of land to the United States on the sole condition that the government compensate the tribes for its fair value. The value was set at $17.5 million, together with interest from 1877 calculated at five percent, or another $88 million. Because the Black Hills have spiritual significance to the Sioux, the tribe has never accepted the $105 million payment, feeling that by doing so would be to acknowledge the legitimacy of the outcome.

More recently, in 2004 a court affirmed the government’s taking of Western Shoshone land which has been used for mining and for government development of the Yucca Flats nuclear waste dump. An act of congress forced on the tribe a monetary settlement which the courts deemed to be fair, even though the tribe refused to accept the settlement.

These are among the best known examples of governmental abrogation of treaty provisions relating to the use and occupancy of land, but many other examples can be found. The ability of the government to unilaterally violate a treaty provision, with the sole limitation that it must compensate the Indians affected whenever it does so, is very bothersome to many thoughtful observers. When dissenting in a case in 1980, in an oft-quoted statement Justice Hugo Black wrote, "Great nations, like great men, should keep their word."

Current Status of Past Treaty Obligations

The federal government has entered into no further treaties with tribes since 1871. Existing treaties continue in effect, subject to the power of Congress to abrogate them. In reviewing any legislation which appears to conflict with existing treaties, the Supreme Court stated in 1986 that it looks for "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." The Court has also fashioned various rules of construction sympathetic to American Indian interests.

A number of American Indian claimants have used old treaties to their advantage in court actions to secure hunting and fishing rights, water rights, and even interests in land thought to have been lost. Unfortunately the sympathetic treatment of Native American interests in the U. S. Supreme Court has diminished greatly in the past few years. At present, most tribal lawyers seek to avoid appeals to that court.

Over the past several decades, many tribal leaders have protested the history of congressional treaty abrogation. This was the prime rallying cry of the American Indian Movement and its "Trail of Broken Treaties" campaign in 1972. Since that time, many more moderate groups have spoken out about the tendency of the government to pay only lip service to the treaties it formed with tribal groups.

The Friends Committee on National Legislation is one such group. Even at the inception of FCNL's American Indian program in 1975, we queried, "Do we have any responsibility to treaty commitments made openly and formally ratified, though often to our own advantage, a hundred years ago?" Our current Statement of Legislative Policy states it more clearly: "Treaties and trust agreements reflect solemn promises and must be honored." FCNL's campaign to “Honor the Promises” has become the keystone to our efforts on behalf of Native Americans, and is likely to remain that for the foreseeable future.
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