From left: Faithkeeper of the Turtle Clan of the Onondaga Nation of the Haudenosaunee Confederacy Oren Lyons, PhD; Tadodaho of the Haudenosaunee Confederacy Chief Sidney Hill; Suzan Harjo (Cheyenne and Hodulgee Muscogee), guest curator of Nation to Nation; Kevin Gover (Pawnee), director of the National Museum of the American Indian; and Jim Gardner, executive for Legislative Archives, Presidential Programs, and Museum Programs at the National Archives, unveil the Treaty of Canandaigua of 1794, on loan to the museum. Photo from NMAI

The Rez of the Story
Indian Treaties--What are They?
By Vince Two Eagles
Lakota Country Times Columnist
www.lakotacountrytimes.com

Hau Mitakuepi (Greetings My Relatives),

One of the most asked about issues concerning Native people is the issue of treaties.

The focus of this article represents one of the most important issues confronting Indian people in modern times. It represents not only a historical backdrop to today's on-going struggle for independence and maintenance of cultural identity by indigenous people but also represents a real-time dimension to be added to yesterday's, today's and tomorrow’s definition of a people who are not lost to the ages (contrary to popular belief) but are here to claim their right to exist.

In a famous U.S. Supreme Court case; Worcester v. Georgia (1832, p. 60) Chief Justice John Marshall wrote, “The words ’treaty’ and ’nation’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to the other nations of the earth. They are applied to all in the same sense.”

Here then is a hopefully informative piece on treaties taken from Jack Utter’s American Indians: Answers to Today's Questions. Utter is a former visiting professor of federal Indian law history at Northern Arizona University and Prescott College. It is the best layman’s explanation of the extremely complex issues surrounding treaties I have come across.

It is by no means meant to be exhaustive or the definitive word regarding treaties and if you have suggestions about how this information can be augmented please do not hesitate to contact me or this publication with such. Information underpins understanding and if we can achieve some small measure of that then we have accomplished something to take note of I believe.

Utter writes:

"What is a treaty? The word “treaty” has more than one meaning. Under the principles of international law, the term broadly refers to any agreement, compact, alliance, convention, act, or contract between two or more independent nations with a view to the public welfare. This would include agreed-to terms of peace, alliance, boundary establishment, trade, or other issues of mutual interest. Such a treaty would normally be “formally signed by commissioners properly authorized and solemnly ratified by the . . . sovereigns or the supreme power of each state” (Black’s Law Dictionary 1990). Specific means of ratification vary widely among nations and between agreements. Also, there is no set form for treaties. Most, however, including Indian-U.S. treaties, usually contain five elements: (1) a preamble, (2) terms and conditions, (3) provisos (special conditions, usually referring to some time in the future), (4) consideration (the exchange of something of value), and (5) signatures, seals, and marks (Kickingbird, et al. 1980).

"Under the United States Constitution, technical application of the term “treaty” is more restrictive than in international law. It refers to those international agreements concluded by the President with the advice and consent of the Senate, provided it is ratified by “two thirds of the Senators present” (Article II, Sec.2, Cl. 2, U.S. Constitution). These are commonly referred to as “Article II treaties,” which are binding on the states and others as “the supreme law of the land” (Article VI, C1. 2).

“A treaty is ... to be read ... in the light of that larger reason which constitutions the spirit of the law of nations.” -- U.S. Department of the Interior 1894, p. 665. The U.S. adopted the practice of negotiating formal treaties with Indian tribes directly from customs that were established by Great Britain and its colonial governments. This early treaty-making -- which was acknowledge, encouraged, and later expanded by the British government -- technically served to recognize tribal entities as members of the international community with sovereign powers to “treat” with, or contract with, European governments and their agents.

"The format for Indian-U.S. treaties and the procedures for putting them into effect were the same as for U.S. treaties with foreign nations. They were legally considered to have the same status, force, and dignity as the highest level of agreements with sovereign nations. As a result, the originals of Indian treaties were maintained by the Department of State after the Senate approved them. Now they are kept in the National Achieves in Washington. D.C.

"The last official treaty with an Indian tribe, which the U.S. Senate ratified, was the Nez Perce treaty of August 13, 1868. In an obscure rider to an Indian appropriation bill, Congress abolished constitutional treaty-making with Indian tribes in 1871 (16 Stat. 566). The abrupt language of the statute reads: “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."

And now you know the rez of the story.

Doksha (later). . .

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