Tribal Treaties

Former Washington State Congresswoman, Elizabeth Furse, recently gave a presentation on “tribal trust” in Scott Valley [California].

I left the meeting with more questions than answers. http://www.tribalgov.pdx.edu/bio_furse.php

Furse stated that the Supreme Court has established that Indian tribes are “semi-dependent sovereign nations.” [Cherokee Nation v. Georgia 1831]

She pointed to the exclusive Congressional power under Article I, Section 8, Clause 3 of the Constitution of the United States– “To regulate commerce with …the Indian tribes.”

She said this means that the federal government as a “trustee” has both a “fiduciary” (highest trust) responsibility to look out for tribal interests, as well as a special “government-to-government” relationship with the tribes.

Every federal agency has policies on their trust responsibility and how that [responsibility] is to be discharged. This responsibility includes managing resources to protect tribal fisheries. (According to some tribal members, this included restricting off-reservation activities on private property use to protect fisheries resources. Tribal trust was referred to as a “sleeping giant.”)

According to Furse, under the practice of European nations, the government was required to obtain legal title to land through treaty with the tribes.

She explained that the treaties are a cession or grant of land title to the United States in exchange for promises to establish a reservation, provide economic assistance, protect the land from encroachment by settlers, etc.

Under treaties, Indians were dealt with as if they were citizens of another nation.

Also, if the treaty is silent on the matter, it is assumed that property rights such as hunting, fishing and access are reserved and retained by the tribe.

Under the “cannons of construction,” it is also assumed that the tribes as non-English speakers were disadvantaged, so more weight is given to what the Indians thought they were agreeing to.

If a treaty right is taken, the government must pay for the values of the right in perpetuity.

Because of the treaty clause, tribes do not have a legal relationship with the State or County government.

It is, therefore, in their interest to bring the federal government to the table on issues.

There was much discussion about land being a grant from the Indians vs. reservations being a grant to the Indians.

Some attendees indicated that every landowner should be informed as to these obligations and that this should be taught in our local schools.

Furse pointed out that the Constitution, Article VI, Clause 2, states that “…treaties made…under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby..”

She stated that: as a citizen of the United States, you are, in effect, a signatory to the treaty and obligated to uphold it; and as an elected official, I am bound by my oath of office to uphold the Constitution and treaty obligations.

There was discussion that private property rights of ownership of land and water were subordinated to the reserve rights of a tribe under treaty. Indian rights for reasonable access to fish, the maintenance of fish habitat and water in quantity and quality to protect fisheries were mentioned.

When it was pointed out that many tribes do not have treaty rights, Furse stated that it made no difference if rights were secured by a treaty or by an Executive Order by the President of the United States.

I do not agree with some of the information that was presented in this meeting as applies to the California tribes.

In 1848, the United States signed the Treaty of Guadalupe Hidalgo with Mexico. The treaty respected property that had been recognized by the Spanish and Mexican government.

Legislation, called the California Land Settlement Act 1851, established a process for confirming those claims.

Subsequent court cases affirmed that Indian tribes did not have prior title to the land at the time it transferred to the United States.

There were many treaties negotiated with the California tribes, but none were ever ratified by the Senate, which is required in order to make them valid. (A later court case and legislation provided a voluntary payment to the California tribes for land lost.)

Presidential Executive Orders did establish reservations for the Yurok and Hoopa, but they were termed “military” reservations where Indians where often forcibly located. They were not a grant from the tribes. The Karuk were never given a reservation.

Also, the Constitution does not state that an Executive Order is the supreme law of the land obliging every landowner to implement it.

Under the “Winters Doctrine” [Winters v. United States, 1908,] reservations do convey an implied right to reserve water to accomplish the primary purpose of the reservation.

The right to fish is also associated with the date the land was reserved by Executive Order and would be included as a “primary purpose.”

As far as I can gather, those dates would be 1855 along the Klamath (Yurok) and 1876 and 1891 for the Hoopa.