Thoughts on tribal rights?

[BridgeRunner]

So, I'm writing this paper on an arcane area of the intersections of indian law, property law, and water law, and I have realized that a couple of people I generally agree with politically are quite vehemently opposed to indian tribes continuing to receive the benefit of 19th c. treaties. 

My thoughts are more or less that the US drafted the treaties, that written agreements are generally construed against the drafter, particularly when the other party was at a significant disadvantage in negotiations, and that the gov't of the US has the power to bind its citizens to its treaties.  Therefore, if we were dumb enough in 1855 (or thereabouts) to cede certain rights in perpetuity to certain tribes, then we are more or less bound to the words that we demanded they agree to.

The opposing arguments I've heard thus far are mostly emotional: they're arrogant; we never *really* meant to concede those rights forever (we just said so, because lying in international treaties was somehow ok if the nation in question was Odawa or similar); the tribal police are abusive to whites; they shouldn't be allowed to use resources we aren't allowed to use (here in MI, to a degree, fishing rights, also gambling, of course, although that field is changing rapidly).  The perception among a couple of conservative types seems to be that because we treated the tribes as infantile sub-humans in nineteenth century treaty negotiations, we should be able to re-define all rights and responsibilities and roles according to current economic conditions and, in the spirit of capitalism, demand that indians compete in the same market conditions as other Americans. 

The only remotely logical argument I've heard thus far failing to honor these treaties is that at the time the tribes were pre-industrial and didn't present a serious threat to white business interests.  Of course, the US could have avoided this problem by not writing treaties ceding important rights in perpetuity.

So, if this is a conversation you all are interested in having, what do you think of these issues?  And why?  I stand in serious danger of ignoring a major component of the issues I'm working by focusing over-much on case law and not learning about what normal (ok, this is APS, so a cut above normal) people think and why.

My ancestral stake is pretty typical: a tiny fraction of a drop of Cherokee blood and of course no tribal affiliation, a hefty dollop of pre-Revolutionary War American heritage, and the other 80% or so random immigrant.

[anygunanywhere]

The idea that a group of people have rights and priveleges just because their ancestors were "native" is counter to our very constitution and BOR.

"All men were created equal...." but by treaty indians are more equal.

The priveleges granted to indian tribes is nothing more than government sanctioned discrimination against non "natives".

I was born here. I am a native American.

Anygunanywhere

[freakazoid]

http://www.republicoflakotah.com/

[MicroBalrog]

Maybe I'm crazy, but I think the US should honor the treaties it made.

[AZRedhawk44]

We initially negotiated with them under the reciprocal understanding that our peoples were two different societies who would intermingle very little and live very different lifestyles.

Now that the indian "nations" use US currency, subscribe to our welfare system, drive vehicles to jobs off-reservation or employ non-tribal employees for jobs on reservation, I think they are closely enough assimilated that the treaties in place have lost their efficacy, much like the Hague Accords which prohibit the use of hollowpoint ammunition in war.

I'm surrounded by large indian tribes here in AZ.  I think they own about 50% of the state.  They all have casinos, cars, game and fish departments that cater to us "white men," and schools.  They pump their children into the main flow of the US economy to participate in our society just like we do.

I'd be okay with re-defining those treaties to only apply to Indian nation members who make real efforts to live according to traditional standards.  Or some other redefinition of the treaty to address the radical change in American / Indian relations.  But, anyone who calls themselves an "American Indian" or a "Lakota American" or the like needs to be treated as an American citizen, not as a tribe member.

If they want to be a nation and preserve the treaty priviledges, then they need to be their own nation.  Once they assimilate into us, those birthright priviledges should become null and void unless rescinding US citizenship.

[41magsnub]

In my experience in working as a contractor for the CSKT tribe in Montana for several years many tribal governments are a joke.  Blatant fraud, waste, abuse, nepotism, and outright theft.  They make the Federal government look efficient by comparison. 

I'm not even going to try and have a comment on the legalities of tribal rights since I've never actually looked at those laws, but I will say as a whole we are not doing them any favors by letting them have their own "federal" governments.  Even law enforcement is confusing and inefficient, on the rez there are four different local law enforcement agencies doing the same things:  tribal, local city, sheriff, highway patrol (state police) along with an extra layer of court systems.

About the best thing I can say for the tribal governments is they are a big jobs program, many folks who would be otherwise pretty much unemployable have a high paying job with decent benefits.

That is not to say there are not exceptions, some of the departments that have strong leadership are as efficient as it is possible to be given some of the crazy edicts from the tribal council.

[ilbob]

Maybe I'm crazy, but I think the US should honor the treaties it made.

A lot of the so called treaties were negotiated by people who had little or no authority to do so (on both sides), and were not approved by the senate.

Trying to make sense of a big mess 200 years after the fact is not pleasant.

Generally speaking, I am in favor of abiding by agreeements made in good faith between an Indian tribe and the US government.

[Ezekiel]

Oh my, it has finally occurred: someone at APS tapped into my Mother Lode! 

What we are discussing here is sovereignty, or the lack thereof.  Are, or are not, Native tribes Nations?  If they are, the United States is beholden to honor treaties made.  If they are not, who cares?  In the end, no argument, containing efficacy, can be made declaring Native Tribes sovereign nations without appealing to the defining body of the United States of America.  Does that not, by definition, indicate a lack of sovereignty?

Personally, I have always thought sovereignty was a crock, because it has  on numerous occasions  been legally defined as limited sovereignty.  Is that not an oxymoron?  In sum, it doesnt exist.  Furthermore, I believe that, similar to a lifelong crutch, privileges available due to the even half-assed attempt to carry out provisions within treaties have left many Natives as lifelong, pre-Great Society, welfare beggars: by their own choice.

In the long run, Natives must learn to compete on a level playing field.  By failing to develop a manner in which to do so, and continuing to whine about for federal scraps, we limit ourselves.

Bah!  Screw the treaties, take off the training wheels, accept some responsibility for our own welfare, cease being wards of the State.

[BridgeRunner]

The idea that a group of people have rights and priveleges just because their ancestors were "native" is counter to our very constitution and BOR.

"All men were created equal...." but by treaty indians are more equal.

The priveleges granted to indian tribes is nothing more than government sanctioned discrimination against non "natives".

I was born here. I am a native American.

Yeah, I agree the term "native American" is pretty dumb. 

The trouble, though, is that those privileges where not granted.  They were reserved, in exchange for something, generally for vacating lands and relinquishing claims.

That's not too unlike saying that my car is un-American, because although I bought my car several years ago, my having a car is a privilege that makes me "more equal" than my bus-traveling neighbors.  Or that the people up on the riverfront are "more equal" than me because their great-grandparents made better business deals than mine did, hence their large family fortunes. 

[BridgeRunner]

Personally, I have always thought sovereignty was a crock, because it has  on numerous occasions  been legally defined as limited sovereignty.  Is that not an oxymoron?  In sum, it doesnt exist.

I agree with some of your comments, but not this one.  Of course limited sovereignty exists.  All fifty states have it.  The FedGov has it.  Heck, these days most nations in Europe have it.  Sovereignty is a fairly abstract that in its simplest terms does not describe any first-world polity.  Terminology is often developed to describe a particular situation; in the cases of governments with overlapping jurisdictions, limited sovereignty is an apt term. 

All sorts of phrases are oxymorons when taken at the simplest meanings of their component words, that doesn't necessarily render the term invalid. 

[HankB]

1. Are Indians U.S. citizens, or not? Sovereign nations do not make treaties with small, select groups of their own people, so universal U.S. Citizenship for Indians automatically eliminates treaties. (Another thought: 14th Amendment notwithstanding, any Indian born off the reservation and on US territory would be a US Citizen - much as the "anchor babies" of illegal immigrants - and would not be considered a deportable foreign national. Hence, he  would not fall under treaty provisions.)

2. Were the treaties a) properly ratified by the U.S. Government per the U.S.  Constitution, and b) properly ratified by the governments of the Indian nations, and c) Did the Indian nations - many of which were nomadic - actually have claim to the territories they wandered over? (And did they actually qualify as nations to begin with?)

3. If the treaties are held to be valid, then it's an "all or nothing" proposition; one party doesn't get to pick and choose which provisions are to be enforced.

This is important . . . back in school, during history class, we looked at a few treaties, and there were a number of provisions I'm sure current Indians would not like to see enforced . . . such as prohibitions of Indians imbibing any fermented beverage or "spirits." IIRC, some treaties also prohibited Indians from leaving the reservation without permission from the local Cavalry commander for each trip, and others said that more than a certain number of "braves" in a group off-reservation were a war party, liable to be shot on sight.

Also . . . I seem to remember reading that no peace treaty was ever signed with all the Seminoles in Florida, so it can be argued we're technically still in a state of war with them. What would that mean to someone who killed a Seminole? Wouldn't the dead Indian be a war casualty, rather than a crime victim? (Same if a Seminole killed a paleface.)

  * * * * * * *

Now before anyone goes ballistic, I'll state for the record that NO, I'm not seriously advocating a return to the Indian Wars . . . I'm just pointing out the absurdity of attempting to follow the provisions (worse, a few, carefully-selected provisions) of 19th century treaties in the 21st century with a people who are ALL now American citizens, and have been for generations.

[BridgeRunner]

Also . . . I seem to remember reading that no peace treaty was ever signed with all the Seminoles in Florida, so it can be argued we're technically still in a state of war with them. What would that mean to someone who killed a Seminole? Wouldn't the dead Indian be a war casualty, rather than a crime victim? (Same if a Seminole killed a paleface.)

What would it mean if an American civilian killed a member of any other group with which the US is in a state of war against?  Doesn't general conduct of war require that there be a chain of command when it comes to killing the enemy? 

[The Annoyed Man]

Never mind the treaties.

In 2008 I believe that treating one ethnic group differently than the rest is just a bad idea.

Iranians wanting the DMV test to be available in Farsi,Milwaukee airport cab drivers wanting foot washing basins in the bathrooms,press two for English,& speaking to "Bob" the Indian accent customer service representative.All of these things occasionally draw the ire of the mainstream.Being upset w/these things isn't wrong.I believe that it's just a natural resistance to change.

Having one ethnic group being allowed to sit wherever they want on the bus whilst the other passengers are confined to a certain area is wrong.Morally,ethically,whatever.I think that that was brought to the fore 40 odd years ago.

Or maybe I'm just pissed off that I can't fish via gill netting.>shrug<

[BridgeRunner]

Never mind the treaties.

Um. Ok. 

I'm off to kill me some Germans, then.  Japanese next. 

Ftr, I also think its a bad idea to treat ethnicities differently.  The problem is that the US signed treaties saying we would do just that. 

I do agree that perhaps a stricter approach should be taken to evaluating treaty ratification and improperly delegated authority.   

[The Annoyed Man]

Never mind the treaties.

Um. Ok. 

I'm off to kill me some Germans, then.  Japanese next. 

Ftr, I also think its a bad idea to treat ethnicities differently.  The problem is that the US signed treaties saying we would do just that. 

I do agree that perhaps a stricter approach should be taken to evaluating treaty ratification and improperly delegated authority.   

Save the sarcasm for someone else.
You asked what I "thought of the issues" & I told you what I thought.

IOWs,signing a treaty that gives more or less rights to one group is pretty shortsighted.Unless the .gov was planning that the indians wouldn't live long enough as an organized tribe for there to be a long term problem.

[BridgeRunner]

Save the sarcasm for someone else.

Dude, chill. It's a conversation.  Exchange of ideas can involve me disagreeing with you just as much as it can involve you disagreeing with me.

IOWs,signing a treaty that gives more or less rights to one group is pretty shortsighted.Unless the .gov was planning that the indians wouldn't live long enough as an organized tribe for there to be a long term problem.

You and I are saying the same thing here. The treaties were a really bad idea.  Personally, if I had close to unlimited power to force an agreement on another party, there wouldn't be a whole lot of what they get to keep "forever" in it. 

But realizing that the treaties were not a good idea and ignoring the treaties is not the same thing. 

[roo_ster]

Simple Answer:

Outlaw dual/multi-citizenship for US Citizens.  Make folks choose.  See where if there heart lies where their *expletive deleted*ss is located.

Those who chose to be Cherokee/Seminole/Israeli/Brit/whatever are no longer American citizens with the benefits & responsibilities that come with citizenship...to include welfare and other support from Uncle Sugar.

Those that choose to be non-American (a very small minority, I would suspect) can be ruled by the letter of the treaties, to include all those ugly little bits by HankB.  "Oh, you want to leave the reservation?  You must fill out these forms and get Capt Robert's permission...a week in advance."

Those that choose to be Americans will be welcomed.

Once reality set in, most of the small minority would likely give it up and declare as Americans.

More Legalese Answer:

Make indian nations subject to the state laws in which they are located.  Just one more layer in a federal system and their charter documents (treaties, charters, etc.) would be subordinate to state & federal constitutions just as other lower levels of government.

[Ezekiel]

More Legalese Answer:

Make indian nations subject to the state laws in which they are located.  Just one more layer in a federal system and their charter documents (treaties, charters, etc.) would be subordinate to state & federal constitutions just as other lower levels of government.

Then you've lowered a -- presumably -- sovereign nation below that of States' Rights: nullifying ANY claim of independent status.  At that point, who cares?  Just tell tribes to sod off.

It's an either/or scenario, with inherent rights/responsibilities contained therein.

[BridgeRunner]

Then you've lowered a -- presumably -- sovereign nation below that of States' Rights: nullifying ANY claim of independent status.  At that point, who cares?  Just tell tribes to sod off.

And really, what is there left to regulate or govern after you've rendered to the FedGov what is theirs and to the states what is theirs.  That pretty much, God help us, covers the spectrum of regulat-able human behavior.

[roo_ster]

Then you've lowered a -- presumably -- sovereign nation below that of States' Rights: nullifying ANY claim of independent status.  At that point, who cares?  Just tell tribes to sod off.

And really, what is there left to regulate or govern after you've rendered to the FedGov what is theirs and to the states what is theirs.  That pretty much, God help us, covers the spectrum of regulat-able human behavior.

Forgive me if I hold out the hope that that is but a small slice of the spectrum of human behavior.

[Balog]

Well, the agreements were made with "nations" that A. Were not actually nations & B. Have since ceased to exist.

And Bridge, if you are arguing that the treaties must be honored as written regardless of changing circumstances. No booze, permission to leave the rez etc. No one is arguing that these treaties actually be fully honored. Those on the indian side are just trying to cherry pick what they want to follow from the treaties while ignoring the rest.

[BridgeRunner]

Forgive me if I hold out the hope that that is but a small slice of the spectrum of human behavior.

Yeah, but that can, as a practical matter, be subject to government regulation, or that desirable to subject to same.

[BridgeRunner]

Well, the agreements were made with "nations" that A. Were not actually nations & B. Have since ceased to exist.

As for A, I think we have to follow the Constitution on that point.  As for B, in many/most instances, yeah, good point.

And Bridge, if you are arguing that the treaties must be honored as written regardless of changing circumstances. No booze, permission to leave the rez etc. No one is arguing that these treaties actually be fully honored. Those on the indian side are just trying to cherry pick what they want to follow from the treaties while ignoring the rest.

The treaties that I am dealing with in my paper do not have those provisions, but I can certainly see the merit in demanding mutual enforcement as to all provisions, on both sides. 

Ftr, I do see the merit in much of what folks are saying in this thread.  I sure didn't open up a can of worms like this one looking for validation, anyway.  I was hoping for what has happened--a wide range of opinions, several backed by personal experiences.  Thanks.

[Hawkmoon]

Short answer: The government of the United States should abide by the treaties it negotiated with the various tribes. If enough people in the government think the terms of the treaties are no longer fair -- renegotiate new treaties, but don't try to unilaterally abrogate the old ones.

Funny (not) -- when the "Native Americans" were poorer than dirt and living in isolated squalor, nobody thought the treaties were unfair. Now the Indians have discovered (a) natural resources, and (b) casinos. And all of a sudden, the treaties are unfair. My ... what a coincidence.

[Ezekiel]

Merely as an aside, we (American Indians) were typically on the side of the treaties having always been unfair.

What I do find interesting are the Native losers that -- now -- decide that treaties negotiated at gun point are, now, a good thing.

Hypocrites.