The Return of Indian Treaty-Making

1. The Return of Indian Treaty-Making Copyright 2008 Robert N. Clinton Sandra Day O’Connor College of Law Arizona State University Kevin Gover National Museum of the American Indian

2. Indian Treaties • Symbolic and iconic role in the discussion of Indian rights

3. Indian Treaties • Definition of Indian Treaty: A negotiated bilateral agreement between an Indian tribe and another sovereign government regarding the resolution of matters of mutual concern from legal authority to the ownership, management, or regulation of resources.

4. Indian Treaties • Essential features: • Tribal Agency • Tribal Consent • Customization

5. Indian Treaties • From contact until the twentieth century, Indian treaties constituted the primary and, perhaps, exclusive means of applying western Indian policy to Indian tribes and their members

6. Indian Treaties • United States negotiated over 400 treaties with Indian tribes and ratified perhaps 365 through the Senate ratification process

7. Fort Pitt Treaty of 1778 • Treaty between equals • Needed Delaware support for Revolutionary War • Opportunity to create an Indian state

8. Fort Laramie Treaty Negotiations

9. Indian Treaties • Litigation rejected as a means of resolving tribal disputes • Cherokee Nation v. Georgia (1831) • Unilateral federal legislation rejected • Removal Act of 1830 • Only treaty-making provided essential elements of agency, consent, and customization.

10. End of Indian Treaty-Making • Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71): That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.

11. Section 71 Did Not Change or Resolve Tribal Status • Debate primarily about primacy of the Senate in formulation and approval of Indian policy • House of Representatives held up appropriations to the Department of the Interior to get statute enacted

12. Section 71 Did Not Change or Resolve Tribal Status • Some proponents of that statute were supporters of assimilation and detribalization • Ely Parker – First native Commissioner of Indian Affairs

13. Section 71 Did Not End Treaty-Making • Agreements continued to be negotiated with Indian tribes by federal treaty commissioners • Labeled “Agreements” • Approved as statutes, rather than ratified by the Senate as treaties David H. Jerome

14. Lone Wolf v. Hitchcock (1903) • Treaties constituted an impediment to allotment • Period of federal imperialism and colonial expansion • Challenged in Lone Wolf to resist allotment • Tribe sought to preserve its traditional land tenure against the implementation of Dawes General Allotment Act of 1887 • Facts demonstrate formal “consent” was sought – through fraud.

15. Lone Wolf v. Hitchcock (1903) • Court’s ruling -- consent was irrelevant and Congress could unilaterally abrogate an Indian treaty through subsequent unilateral federal statute • Consent became irrelevant • Indian resistance to and non-acceptance of federal policies increased • Formal treaty/agreement-making ended

16. Demise of Indian Treaty-Making • Unilateral federal legislation replaces treaty-making • Post 1959, federal litigation becomes important in mediating Indian political claims • Unsuccessful in redressing political claims – e.g. Navajo Nation v. United States (2001) • Recent unfavorable climate in federal courts • Judicial plenary power cases

17. Return of Indian Treaty-Making • Collier proposal in the Indian Reorganization Act of 1934 • End allotment • Indian preference • Rebuild the Indian land base • Rejuvenate tribal governments • Administer federal programs through the tribal governments, rather than the BIA through agreements

18. Transition to Self-Determination • Chicago conference (1960) • The 1960 Election • The Civil Rights Movement • The American Indian Movement • Fishing Rights Controversy • Johnson’s “Great Society” • Office of Economic Opportunity

19. Self-Determination Era Reforming Social Service Programs • Indian Self-Determination and Education Assistance Act (1975) • Indian Health Care Improvement Act (1976) • Tribally-Controlled Community College Assistance Act (1978) • Indian Law Enforcement Reform Act (1990) • Tribal Self-Governance Act (1994) • Native American Housing and Self- Determination Act (1996)

20. Self-Determination Era Cultural Resources and Religious Freedom • Restoration of Taos Blue Lake (1970) • American Indian Religious Freedom Act (1978) • National Museum of the American Indian Act (1989) • Native American Graves Protection and Repatriation Act (1990) • Native American Languages Act (1990) • Religious Freedom Restoration Act (1993)

21. Self-Determination Era Economic Development • Indian Financing Act (1974) • Indian Tribal Governmental Tax Status Act (1982) • Indian Land Consolidation Act (1983) • Indian Gaming Regulatory Act (1988) • American Indian Trust Fund Management Reform Act (1994)

22. Self-Determination Era Environment and Natural Resources • Indian Mineral Development Act of 1982 • Federal Environmental Statutes • Superfund (1986) • Safe Drinking Water Act (1986) • Clean Water Act (1987) • Clean Air Act (1990) • Indian Environmental General Assistance Program Act (1992)

23. Self-Determination Era Law Reform • Indian Civil Rights Act (1968) • Indian Child Welfare Act (1978) • Indian Tribal Justice Act (1993)

24. Self-Determination Era Policies • Federal policy focus on respecting tribal sovereignty in the political branches • Tribal governments and courts seen as integral governmental mechanisms in the federal system • Tribal governments regarded as permanent components of American governmental and political systems • These statutes were the result of tribal activism and may be regarded as treaty amendments or treaty substitutes

25. Indian Treaties • Definition of Indian Treaty: A negotiated bilateral agreement between an Indian tribe and another sovereign government regarding the resolution of matters of mutual concern from legal authority to the ownership, management, or regulation of resources. • Essential features: • Tribal Agency • Tribal Consent • Customization

26. Return of Indian Treaty-Making • Public Law 638 contracts and Self-Governance compacts

27. Return of Indian Treaty-Making • Multi-Sovereign Litigation Settlements • Litigation as a springboard or “cover” for negotiation • Land claims litigation • Customization of political relationship • Contrast Maine Indian Claims Settlement Act with Connecticut Indian Claims Settlement Act • Water litigation • Older format – United States represented Tribe and tribe was not at the table – Nevada v. United States (1983) • Newer format – Negotiation of water claims settlements enacted by Congress with all parties represented

28. Return of Indian Treaty-Making • Tribal-State Gaming Compacts – 25 USC § 2710(d) • Statute requires negotiation • Enforcement mechanism – rendered unconstitutional in Seminole Tribe v. Fla. (1996) • Specifies subject of the negotiation • Precludes certain subjects, like taxation • Model for other statutes?

29. Return of Indian Treaty-Making • Retrocession of the Public Law 280 Jurisdiction—25 USC § 1323 • Reassumpton under the Indian Child Welfare Act of 1978, 25 USC § 1918 – no state involvement

30. Return of Indian Treaty-Making:State-Tribal Agreements • Indian commerce clause allocates exclusive power to deal with Indian tribes to the federal government – Worcester v. Georgia (1832) • Federal government can authorize state-tribal agreements, like the gaming compacts • Tribal-state agreements cannot violate federal law – Kennerly v. Dist. Ct. (1971)

31. Return of Indian Treaty-Making:State-Tribal Agreements • Tribes and states frequently make treaties or agreements not specifically authorized by Congress • Taxing Agreements • Cross-Deputization Agreements • Memorandums of Understanding – e.g. first responders, health care, hospital reimbursement, etc.

32. Return of Indian Treaty-Making:Questionable State-Tribal Agreements • Where is the line? • Agreements that enlarge or change the jurisdiction of the state or tribe require Congressional authorization or approval

33. Return of Indian Treaty-Making:Implications for Federal Legislation • Need for a federal statute approving tribal-state agreements • Should permit termination of agreement upon appropriate notice to afford each party an escape route • Permits them to experiment and facilite cooperation, rather competition

34. Return of Indian Treaty-Making:Implications for Federal Legislation • Increased Use of Public Law 638 as model for imposition of federal policy • Contract for investigation of major crimes by nonmembers • Alternative to omnibus legislation like the NCAI “Hicks-fix” proposal • Federal policies only applied to reservation upon agreement of the tribe – model is the death penalty statute – 18 USC § 3598

35. Future Treaties:Customizing Indian Jurisdiction • Tribes are not all the same • Population • Culture • Territory • Government structure • Socioeconomic conditions • Priorities and Objectives • Why should they all have the same jurisdictional authorities?

36. Future Treaties:Tribal Sovereignty Restoration • Tribes should pursue areas where they have the responsibility, but not the authority, to address problems • Discrete problems of serious impact • Demonstrated efforts to resolve problems with existing authorities • Strong likelihood that tribal efforts will be considerably more effective if authority is expanded

37. Future Treaties:Redefining the Trust • The trust as administered has contributed to Indian poverty • In most cases, BIA does not possess resources or expertise that the tribes lack • The trust as currently constituted is premised on a presumption of Indian incompetence • Federal control of tribal land contradicts tribal sovereignty • Cobell litigation suggests that the IIM system cannot be fixed, or can only be fixed at an expense that exceeds the value of the resource

38. The Foundation of the Trust • United States v. Kagama (1886): “These Indian Tribes are the wards of the nation. They are communities dependent on the United States,-dependent largely for their daily food; dependent for their political rights. . . . From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises a duty of protection, and with it the power.” • “The power is necessary to their protection, as well as to the safety of those among whom they dwell.”

39. The Foundation of the Trust • Lone Wolf v. Hitchcock (1903): “We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.”

40. Future Treaties:Redefining the Trust • Advantages of the Trust • Tax immunity • Tribal jurisdiction is more tied to trust lands than to reservation lands • Federal government is obliged to protect the beneficial interests of tribes and individuals Can these advantages be retained without the intrusive federal interference the trust obligation invites?

41. And Don’t Forget • Treaties between and among tribes.

42. Conclusion • The Self-Governance/Self-Determination Model will continue to be applied to an expanding field of federal programs • Interior agencies other than BIA • Programs in other departments • E.g., NAHASDA

43. Conclusion • The model of tribal agency, tribal consent, and customization will be applied to a growing number of areas other than the provision of services • Jurisdiction Issues • Trust resources • Environmental regulation

44. National Museum of the American Indian • Twentieth Anniversary, November 28, 2009 • National Education Initiative • Taking back Thanksgiving • Native American Heritage Month • Treaties Exhibit--2011