30 May Indian Treaty Interpretation
The Ninth Circuit recently issued an opinion in United States v. Smiskin interpreting a treaty with a certain Indian tribe that included an unusual reference to rules of treaty interpretation. The case involved a potential conflict between a treaty right and a statutory prohibition on transporting “unstamped cigarettes” (i.e., untaxed cigarettes).
The Yakama Treaty of 1855 guarantees the following travel right: “if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways.”
The statute in question, the Contraband Cigarette Trafficking Act, makes it “unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes.” Contraband cigarettes are defined to mean a quantity in excess of 10,000 cigarettes, which bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.
A tribal member, Harry James Smiskin, was indicted for violating the statute. The lower court dismissed the indictment as inapplicable to members of the Yakama Tribe and the government appealed. The Ninth Circuit upheld the dismissal.
What is particularly interesting is that the Ninth Circuit articulated a rule of treaty interpretation that construed an ambiguous treaty provision in the Indians’ favor.
The text of a treaty must be construed as the Indians would naturally have understood it at the time of the treaty, with doubtful or ambiguous expressions resolved in the Indians’ favor…. The Supreme Court has repeatedly applied this rule of treaty construction in construing Article III of the Yakama Treaty…. We have also applied this rule of construction in interpreting the Yakama Treaty, and the Right to Travel provision in particular.
The Court then went on to expound upon the Yakama Tribes’ understanding of the treaty right and interpreted the treaty consistent with that understanding. It went so far as to say “[t]he Supreme Court’s jurisprudence makes clear … that we must interpret a treaty right in light of the particular tribe’s understanding of that right at the time the treaty was made.”
Obviously this is an unusual approach to treaty interpretation. I am not an Indian law expert and perhaps there is something unique about Indian treaties that justifies this particular rule of treaty construction. But as a matter of international law, I am not aware of any rule that requires a treaty to be interpreted the way a particular party to the treaty understood that treaty to mean. Article 31 and 32 of the Vienna Convention on the Law of Treaties adopts an approach that seeks to divine the shared meaning of a treaty provision. Indeed, if this rule of construction was applied in other contexts it would be viewed as a radical departure from the normal rules of treaty interpretation.
On a broader note, I have often wondered whether international lawyers and academics should have a greater awareness and appreciation for Native American treaty law as a subset of United States treaty law and practice. It seems that there is a rich historical legacy of Native American treaties that goes almost completely unexplored by international law academics. Those treaties are consistently subject to litigation in our courts, but that jurisprudence rarely finds its way into international law discussion. Why is that?
Roger, I think that one possible answer to your question is that Indian treaties are simply not treaties in the sense of international law. They are certainly not treaties within the meaning of the Vienna Convention on the Law of Treaties, which sets out in Article 1 that it applies only to treaties concluded between states, and in Article 2(1)(a) that ‘a “treaty” means an international agreement concluded between States in written form and governed by international law.’ As far as I know, the several Indian tribes have never been considered by the ‘civilized’ European Powers to have been states for the purposes of international relations. Until the late XIX century, only a precious few non-European countries, such as Persia, Japan or China, were considered to have international personality, and usually a rather limited one at that. The Indian tribes certainly did not qualify as a state at the time the treaties were concluded, and they certainly do not qualify as states today. So, it would appear that from the standpoint of international law the Indian treaties would be regarded as a sui generis form of US law, not as treaties governed by international law (and certainly not by the… Read more »
Marko, You could be right, but I did a little more research and found this delicious quote from the U.S. Supreme Court in United States v. Choctaw Nation, 179 U.S. 494 (1900): There was much discussion at the bar as to the principles that should govern the court when determining the scope and effect of a treaty between the United States and Indian tribes. All agree that as a general rule in the interpretation of written instruments the intention of the parties must control, and that such intention is to be gathered from the words used-the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument and place the court in the situation in which the parties stood when they signed the writing to be interpreted. To what extent, if at all, have these rules been enlarged or modified when the instrument to… Read more »
Roger and Marko, I’m not qualified to decipher its significance, but there is something courtesy of the UN Economic and Social Council, specifically, the Commission on Human Rights (Sub-Commission on Prevention of Discrimination and Protection of Minorities), E/CN.4/Sub.2/1999/20, concerning the human rights of indigenous peoples, namely, the “Study on treaties, agreements and other constructive arrangements between States and indigenous populations,” the final report of which is by Miguel Alfonso Martínez, Special Rapporteur. It has some interesting things to say about international law and treaties by states with indigenous peoples (a sample of which is below). I don’t know how to provide the link, but I can send it via e-mail if you’re interested. From the Report (references omitted): [T]he problematique of indigenous treaties and other juridical instruments today affecting the lives of these peoples, hinges on what the Special Rapporteur has termed a process of retrogression, by which they have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. Not to mention the substantial reduction of their respective populations… Read more »
Roger, there is a canon of construction generally in Federal Indian Law to the effect that ambiguous phrases or provisions ought to construed to favor the Indians. As the quotes you give above show, the notion that tribes are wards of the federal government is a common theme in Indian law (for better or worse) and the ruling by the 9th circuit is consistent with that approach. And since the treaties with tribes are not generally considered international treaties per the VCLT, there really is no conflicting set of intrepretive rules to worry about. All that said, you are right that Indian treaties are a great topic for further research.
This message was sent to me from David Sloss, which I post with his permission:
The canon you cite for Indian law has a close cousin in the general law of treaties – the canon of liberal interpretation. U.S. courts used this canon vigorously in the 19th and early 20th centuries, but it has since fallen into disuse. There were various formulations of the canon, but the core idea was that, if a treaty was ambiguous, courts should construe the treaty liberally to secure the broadest possible protection for the rights of foreigners (the citizens of our treaty partners). I don’t have citations at my fingertips, but I know that there are a number of Indian treaty cases that cite the canon of liberal interpretation together with the special Indian treaty canon that you mention. The courts seemed to view them as a pair.
David Sloss
Crow Dog, Ex Parte, 109 U.S. 557 (1883) “affirms that treaties and statutes are interpreted in favor of retained tribal self-government and property rights. Doubts and ambiguities in treaties and statutes are to be resolved in Indians’ favor and federal Indian laws are interpreted liberally toward carrying out their protective purposes.” (Rennard J. Strickland)
Patrick,
Thank you for posting the excerpt from the report of the Special Rapporteur on indigenous peoples. It is most interesting – even if slightly revisionist. I have grave doubts about the first paragraph that you quote, that the European powers at the time were fully aware that they were entering into agreements with sovereign nations, with all of the consequent legal implications. The ‘civilized’ powers of the time expressed contempt even at much more organized entities such as the Inca or the Aztec empires, let alone at the North American Indians. I don’t think we should forget that international law was not always the cuddly, human rights-friendly body of rules that it is today, but that it once served an explicitly imperialist agenda.
That being said, sovereign equality is the basis of treaty law, and that is precisely what the Indian treaties lack. The sheer imperialist paternalism of the quote provided by Roger, with the Indians being regarded as ‘wards of the nation’ is so quaint that it is truly astonishing that it continues to exist in US law. Yet, I unfortunately don’t see any viable alternative which would not result in the lessening of rights enjoyed by the Native Americans.
Marko, I do wonder if it’s in fact the case that “sovereign equality is the basis of treaty law, and that is precisely what the Indian treaties lack:” not the “sovereign equality” part, which is of course true (at least in theory), but that the treaties lacked this element. Art. 1, Sec. 8, para.3 of the Constitution (the Indian Commerce Clause) seems to imply the sovereign status of the Indian tribes, In Tribes, Treaties and Constitutional Tribulations (1999), Deloria and Wilkins state that “Tribes are preexisting sovereigns whose existence is not beholden to the Constitution or to the federal or state governments” and that “In the earliest decades of American political existence, it was assumed that the treaty making power was applicable to Indian tribes and foreign nations.” Similarly, Wilkins and Lomawaima, in Uneven Ground: American Indian Sovereignty and Federal Law (2001), write that “American Indian tribes are sovereign nations. Their sovereignty is inherent, pre- or extraconstitutional, and is explicity recognized in the Constitituon.” How to understand the Delaware Treaty of 1778 “written in formal diplomatic style”? Consider that the “purpose of the 1778 treaty was to secure permission of the Delawares to pass through their country so that an… Read more »
I believe it is safe to say that we, the Yakama, have contended, since our treaty ratification,are a nation within a nation. I think your readers would find it interesting to read the Yakama’s treaty with the US government and apply its words and mutually considered meaning in such a fashion as has been done with the US Constitution and its application to Americans and the world.
Vine Deloria Jr wrote a book, “Custer Died For Your Sins: An Indian Manifesto, which uses the ethnographic present to proffer a legalistic perspective on the treatment of Native Americans and their legal plights.
The decision of US v. Smiskin has been our peoples assertion and practice long before any regulations and laws were created in favor of non-Native American commerce. This case is one of those instances, much like the Pacific Northwests fish “wars” of the 1970’s, where the government was holistically incorrect in its prosecution. I believe this is due to an unsurmountable ignorance with the uniqueness of Indian law.
According to Wilkins and Lomawaima in Uneven Ground: American Indian Sovereignty and Federal Law (2001), there are three canons of treaty construction that direct the courts (1) to resolve ambiguities expressed in treaties in favor of Indians [e.g., McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 174 (1973)], (2) interpret treaties as the Indians themselves would have interpreted them [e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970)], and (3) liberally construe treaties in favor of the tribe [e.g., Tulee v. Washington, 315 U.S. 681, 684-85 (1942)].