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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?
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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 VCLT). It therefore doesn’t make much sense for a US court to refer to the VCLT when interpreting these treaties.
at 4:50 pm EST Marko Milanovic
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):
Which begs the question whether other treaties between “superior” and “inferior” parties (think, treaties between colonialists and indigenous peoples or perhaps peace treaties involving the victors and vanquished) should have a similar construction. I rather doubt it, but certainly that follows logically from this decision.
Roger Alford
at 5:07 pm EST Roger Alford
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 in many countries around the world, due to a number of factors including, assimilationist policies.
110. In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international legal implications of that term during the period under consideration.
111. This remains true independently of the predominance, nowadays, of more restricted, State-promoted notions of indigenous “self-government”, “autonomy”, “nationhood” and “partnership” - if only because the “legitimization” of their colonization and trade interests made it imperative for European powers to recognize indigenous nations as sovereign entities.
112. In the course of history, the newcomers then nevertheless attempted to divest indigenous peoples, as pointed out above, of their sovereign attributes, especially jurisdiction over their lands, recognition of their forms of societal organization, and their status as subjects of international law.
114. Nonetheless, it is important to stress at this point that the passage, for indigenous peoples, from the status of sovereign nations to that of State-domesticated entities raised a certain number of questions and posed specific challenges from the point of view of this study.
115. First of all, in the case of treaty relations, one notes a general tendency to contest whether treaties involving indigenous peoples have a standing, nowadays, in international law. This point of view, which is widespread among the legal establishment and in scholarly literature, has been basically grounded alternatively on three assumptions: either it is held that indigenous peoples are not peoples according to the meaning of the term in international law; or that treaties involving indigenous peoples are not treaties in the present conventional sense of the term, that is, instruments concluded between sovereign States (hence the established position of the United States and Canadian judiciary, by virtue of which treaties involving indigenous peoples are considered to be instruments sui generis); or that those legal instruments have simply been superseded by the realities of life as reflected in the domestic legislation of States.
116. Whatever the reasoning followed, the dominant viewpoint - as reflected, in general, in the specialized literature and in State administrative decisions, as well as in the decisions of the domestic courts - asserts that treaties involving indigenous peoples are basically a domestic issue, to be construed, eventually implemented and adjudicated via existing internal mechanisms, such as the courts and federal (and even local) authorities.
117. It is worth underlining, however, that this position is not shared by indigenous parties to treaties, whose own traditions on treaty provisions and treaty-making (or on negotiating other kinds of compacts) continue to uphold the international standing of such instruments. Indeed, for many indigenous peoples, treaties concluded with European powers or their territorial successors overseas are, above all, treaties of peace and friendship, destined to organize coexistence in - not their exclusion from - the same territory and not to regulate restrictively their lives (within or without this same territory), under the overall jurisdiction of non-indigenous authorities. In their view, this would be a trampling on their right to self-determination and/or their other unrelinquished rights as peoples.
118. By the same token, indigenous parties to treaties have rejected the assumption held by State parties, that treaties provided for the unconditional cession of indigenous lands and jurisdiction to the settler States.
123. Closer scrutiny of the provisions of treaties concluded between indigenous peoples and States also reveals that in most cases the subject of such treaties is common in international law, whatever the historical period considered; thus such treaties deal with questions of war/peace, trade provisions, protection of the subjects/citizens of each signatory party, and so forth.
124. Furthermore, while the predominant present-day legal discourse holds that treaties fall primarily within the domestic realm of States, the manner in which treaties are dealt with in municipal law and by the national courts nevertheless also raises a number of questions.
125. In this connection, failure of State parties to comply with, or their violation of, the obligations assumed under existing treaties, the unilateral abrogation of the treaty itself (or parts thereof), via State law or other mechanisms and even the failure of State parties to ratify treaties negotiated with indigenous peoples were problems identified, at an early stage of his work, by the Special Rapporteur regarding the significance of treaties/agreements at the national level.
126. Such problems are, in one way or another, connected with most juridical situations retained by the Special Rapporteur for study; moreover, they are not limited to historical situations but also arise with respect to more modern compacts.
127. It follows that the enforcement and implementation of existing, recognized treaties involving indigenous peoples today can hardly be taken for granted. Furthermore, it remains to be seen what burden this state of affairs places on the modalities of future negotiated agreements between indigenous peoples and States. Obviously, this also has a number of practical consequences for the status and legal personality of indigenous peoples, both at the national and at the international level.
IV. LOOKING AHEAD: CONCLUSIONS AND RECOMMENDATIONS
252. The first general conclusion concerns the issue of recognition of indigenous peoples’ right to their lands and their resources, and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multi-national societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival.
254. Another conclusion, closely related to the previous one, is that not only the land rights issue, but, in general, the entire indigenous problematique and its possible overall solution cannot be approached exclusively on the basis of juridical reasoning. The problems confronted in a sizeable number of multi-national States are essentially political in essence. Thus, considerable political will is required from all the parties concerned, but in particular from the non-indigenous political leadership of modern States, if these problems are to be resolved through forward-looking new approaches. Juridical discussions and argumentation simply take too long, require copious resources (which the indigenous side almost always lacks or has only in limited amounts), and in many cases are prejudiced by centuries of sedimented rationale. In addition, the urgency of the existing problems simply leaves no room to engage, at the threshold of the twenty-first century, in the type of juridico-philosophical debates which Las Casas and Sepúlveda pursued in the sixteenth century.
255. The Special Rapporteur is fully convinced that the overall indigenous problematique today is also ethical in nature. He believes that humanity has contracted a debt with indigenous peoples because of the historical misdeeds against them. Consequently, these must be redressed on the basis of equity and historical justice. He is also very much aware of the practical impossibility of taking the world back to the situation existing at the beginning of the encounters between indigenous and non-indigenous peoples five centuries ago. It is not possible to undo all that has been done (both positive and negative) in this time-lapse, but this does not negate the ethical imperative to undo (even at the expense, if need be, of the straitjacket imposed by the unbending observance of the “rule of [non-indigenous] law”) the wrongs done, both spiritually and materially, to the indigenous peoples.
256. The Special Rapporteur also harbours no doubts concerning the much debated issue of the right to self-determination. Indigenous peoples, like all peoples on Earth, are entitled to that inalienable right. Article 1 of the Charter of the United Nations gives blanket recognition of this right to all peoples (enshrining it as a principle of contemporary international law, as does article 1 common to both International Covenants on Human Rights. This right is also expressly recognized for indigenous peoples in article 3 of the draft declaration. In the view of the Special Rapporteur, any contradiction that may emerge between the exercise of this right by indigenous peoples in present-day conditions and the recognized right and duty of the States in which they now live to protect their sovereignty and territorial integrity, should be resolved by peaceful means, first and foremost negotiations; through adequate conflict-resolution mechanisms (either existing or to be established); preferably within the domestic jurisdiction; and always with the effective participation of indigenous peoples. We shall return to this issue at a later stage in the present chapter.
257. Regarding the question of whether or not indigenous peoples can be considered as nations - in the sense of contemporary international law - in the context of countries where some indigenous peoples have been formally recognized as such (by non-indigenous nations at the beginning of their contacts or at a later stage) through international legal instruments, such as treaties, and other peoples/nations have not, the Special Rapporteur believes it is pertinent to distinguish between those two situations, although the final analysis may lead to the same conclusion.
260. On the other hand, the Special Rapporteur is inclined to argue in favour of the proposition that treaties/agreements or constructive arrangements have the potential to become very important tools (because of their consensual basis) for formally establishing and implementing not only the rights and freedoms alluded to in the preceding paragraph, but also inalienable ancestral rights, in particular land rights, in the specific context of a given society.
261. On the basis of a vast amount of documentation, the work of the Working Group and oral testimony, the Special Rapporteur has reached the conclusion that there is an almost unanimous opinion among geographically-dispersed indigenous peoples that existing State mechanisms, either administrative or judicial, are unable to satisfy their aspirations and hopes for redress.
262. He also has reasons to conclude that there is a widespread desire on the indigenous side to establish (or re-establish) a solid, new, and different kind of relationship, quite unlike the almost constantly adversarial, often acrimonious relationship it has had until now with the non-indigenous sector of society in the countries where they coexist. In the view of the indigenous peoples, this can only be achieved either by the full implementation of the existing mutually agreed-upon legal documents governing that relationship (and a common construction of their provisions), or by new instruments negotiated with their full participation. This perception is shared by the appropriate government officials in a number of countries, including Canada, New Zealand and Guatemala.
263. Finally, the Special Rapporteur is strongly convinced that the process of negotiation and seeking consent inherent in treaty-making (in the broadest sense) is the most suitable way not only of securing an effective indigenous contribution to any effort towards the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict resolution of indigenous issues at all levels with indigenous free and educated consent.
265. In the case of indigenous peoples who concluded treaties or other legal instruments with the European settlers and/or their continuators in the colonization process, the Special Rapporteur has not found any sound legal argument to sustain the argument that they have lost their international juridical status as nations/peoples. The treaty provisions which, according to the non-indigenous version and construction, contain express renunciations by indigenous peoples of their attributes as subjects of international law (particularly, jurisdiction over their lands and unshared control of their political power and institutions) are strongly challenged by most indigenous peoples whom he has consulted.
268. In this connection, the Special Rapporteur is very aware of the non-retroactivity of the 1969 Vienna Convention on the Law of Treaties, which entered into force in 1980. A considerable number of States with indigenous peoples living within their current borders are parties to it. Nonetheless, he has also borne in mind that the text adopted in Vienna has to do not only with the development of new rules and concepts in international law, but also with the codification of those which had survived the test of time and were, in 1969, already part and parcel of international law, either as customary law or as positive law as embodied in a number of already-existing bilateral and/or multilateral international instruments.
269. He believes that the content of article 27 of the Vienna Convention (”A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty …”) was already a rule of international law at the time when the process leading to the disenfranchisement and dispossession of indigenous peoples’ sovereign attributes was under way, despite treaties to the contrary concluded with them in their capacity as recognized subjects of international law.
270. This leads to the issue of whether or not treaties and other legal instruments concluded by the European settlers and their successors with indigenous nations currently continue to be instruments with international status in the light of international law.
271. The Special Rapporteur is of the opinion that those instruments indeed maintain their original status and continue fully in effect, and consequently are sources of rights and obligations for all the original parties to them (or their successors), who shall implement their provisions in good faith.
272. The legal reasoning supporting the above conclusion is very simple and the Special Rapporteur is not breaking any new ground in this respect. Treaties without an expiration date are to be considered as continuing in effect until all the parties to them decide to terminate them, unless otherwise established in the text of the instrument itself, or unless they are duly declared to be null and void. This is a notion that has been deeply ingrained in the conceptual development, positive normativity and consistent jurisprudence of both municipal and international law since Roman Law was at its zenith more than five centuries ago, when modern European colonization began.
273. As a result of his research, the Special Rapporteur has ample proof that indigenous peoples/nations who have entertained treaty relationships with non-indigenous settlers and their continuators strongly argue that those instruments not only continue to be valid and applicable to their situation today but are a key element for their survival as distinct peoples. All those consulted - either directly in mass meetings with them or in their responses to the Special Rapporteur’s questionnaire, or by direct or written testimony - have clearly indicated their conviction that they indeed remain bound by the provisions of the instruments that their ancestors, or they themselves, concluded with the non-indigenous peoples.
274. Competent authorities in some countries, for example, Canada and New Zealand, have also told the Special Rapporteur that their respective Governments too consider that their treaties with indigenous peoples remain fully valid and in effect (although, they differ radically from their indigenous counterparts regarding construction of the content of those treaties).
275. Nonetheless, the Special Rapporteur has been able - in the course of his research and through in situ observation, to ascertain a large number of obvious serious violations of the legal obligations undertaken by State parties to those instruments (in particular, to the so-called “historic treaties” and to legal commitments involving indigenous lands) at practically all stages of the process of domestication described in chapter III, particularly in the second half of the nineteenth century.
276. Probably the most blatant case in point is the United States federal Government’s taking of the Black Hills (in the present-day state of South Dakota) from the Sioux Nation during the final quarter of the nineteenth century. The lands which included the Black Hills had been reserved for the indigenous nation under provisions of the 1868 Fort Laramie Treaty. It is worth noting that in the course of the litigation prompted by this action, the Indian Claims Commission declared that “A more ripe and rank case of dishonorable dealing will never, in all probability, be found in our history”, and that both the Court of Claims, in 1979, and the Supreme Court of that country decided that the United States Government had unconstitutionally taken the Black Hills in violation of the United States Constitution. However, United States legislation empowers Congress, as the trustee over Indian lands, to dispose of the said property including its transfer to the United States Government. Since the return of lands improperly taken by the federal Government is not within the province of the courts but falls only within the authority of the Congress, the Supreme Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The indigenous party, interested not in money but in the recovery of lands possessing a very special spiritual value for the Sioux, has refused to accept the monies, which remain undistributed in the United States Treasury, according to the information available to the Special Rapporteur.
277. It is well known that fulfilment, in good faith, of legal obligations that are not in contradiction with the Charter of the United Nations (Art. 2.2) is considered one of the tenets of present-day positive international law and one of the most important principles ruling international relations, being, as it is, a peremptory norm of general international law (jus cogens). Of course, article 26 of the Vienna Convention on the Law of Treaties has enshrined the principle of pacta sunt servanda as the cornerstone of the law of treaties, and mention has already been made above of the importance of article 27 of that Convention.
278. It should also be borne in mind that the draft United Nations declaration on the rights of indigenous peoples expresses the same concept with particular emphasis. In article 36, it establishes that “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements”.
279. On the other hand, the unilateral termination of a treaty or of any other international legally binding instrument, or the non-fulfilment of the obligations contained in its provisions, has been and continues to be unacceptable behaviour according to both the Law of Nations and more modern international law. The same can be said with respect to the breaching of treaty provisions. All these actions determine the international responsibility of the State involved. Many nations went to war over this type of conduct by other parties to mutually agreed upon compacts during the period (from the sixteenth to the late nineteenth century) when the colonial expansion of the European settlers and their successors was at its peak.
280. The Special Rapporteur has also concluded that a number of current conflict situations concerning indigenous treaty/agreement issues have to do with substantial differences in the construction of their provisions, in particular those relating to the object and purpose of the compact in question. A relevant case is that of the Treaty of Waitangi. The Maaori and Pakeha constructions of it differ in matters as crucial as the alleged “transfers” of governance/sovereignty powers and “land title” to the non-indigenous settlers, as well as on the actual purpose of the compact itself. A well-known scholar has described how the main British negotiator, having been instructed to secure British sovereignty over Maaori lands in order to exercise exclusive control over them so as to proceed with peaceful colonization, deliberately blurred the meaning of the term “sovereignty” and hid from the Maaori parties the fact that the cession they were agreeing to would ultimately mean a significant loss of Maaori power. Despite, the Maaori’s confident belief that the treaty had confirmed their right to property, even the more important rights of rangatiratanga would ultimately have to give way to Crown authority.
281. Account should be taken of the fact that indigenous practices of treaty-making were totally oral in nature and there were no written documents in this process. In addition, it was extremely difficult for the indigenous parties to follow all aspects of the negotiations fully through translators (who most likely were not always perfectly accurate), not to mention the fine print in the written version submitted to them, in an alien language, by the non-indigenous negotiators. Further, it was impossible for them, in most instances, to produce a written version of their understanding of the rights and obligations established in the instruments.
282. The Special Rapporteur considers it important to stress that his research revealed that treaties, in particular, concluded with indigenous nations, have frequently played a negative role with respect to indigenous rights. On many occasions they have been intended - by the non-indigenous side - to be used as tools to acquire “legitimate title” to the indigenous lands by making the indigenous side formally “extinguish” those and other rights as well. In a document submitted personally by one respected indigenous chief, on behalf of his nation, it is noted that treaties on occasion are used to force indigenous peoples to bargain away their ancestral and treaty rights.
283. Finally, considering the very limited data available to him, at this final stage of the study, with respect to treaties between States affecting indigenous peoples as third parties, the Special Rapporteur can offer only the preliminary conclusion that, according to all the evidence, there is no acceptance by the affected indigenous parties of the obligations included in the provisions, nor any participation by them in the implementation, of such treaties.
at 7:56 pm EST Patrick S. O'Donnell
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.
at 10:51 pm EST Kal
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
at 1:20 am EST Roger Alford
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)
at 2:59 am EST Patrick S. O'Donnell
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.
at 4:10 am EST Marko Milanovic
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 American force, including pro-American Delaware and Shawnee, could capture Detroit.” Why the formal treaty arrangement? How to make sense of the various peace treaties with “Indian nations” without granting their sovereign status, as peace treaties were concluded with the Six Nations in 1784, the Wyandot, Delaware, Chippewa, and Ottawa in 1785, the Cherokee later that same year, and the Choctaw, Chickasaw and Shawnee in 1786. In the eighteenth and nineteenth centuries we find British, Spanish and Mexican governments making treaties with American Indian tribes. The Indian tribes were treated as nations capable of entering into diplomatic negotiations and making war.
In 1994 President Clinton “reaffirmed the government-to-government relationship between tribes and the United States and stressed his support for tribal self-determination and the trust obligations of the federal government [a fiduciary obligation evidenced more in the breach...]. Clinton vowed ‘to honor and respect sovereignty based upon our unique historic relationship’….”
Given contemporary discussions of sovereignty (e.g., its elasticity, that its properties can be ‘unbundled,’ etc.) it seems we can readily grant that sovereignty may not be an all-or-nothing affair insofar as some elements typically associated with sovereignty may not be present in all cases, hence we can concede that in the 1800s Indian tribes experienced a loss or diminution of some powers of sovereignty, but have never surrendered or alienated their sovereign capacity as such.
Anyway, I’m still reading the argument for American Indian sovereignty in Wilkins and Lomawaima (above), so that’s about all I can say for now.
at 5:11 am EST Patrick S. O'Donnell
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.
at 11:49 am EST James Smiskin
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)].
at 8:31 pm EST Patrick S. O'Donnell