Treaty Rights

Monse Aguilar

Simply put, a treaty is an agreement between two nations, and thus treaty rights are the rights reserved when signing said treaties.By signing treaties, indigenous nations signed away large portions of land in exchange for things like reserved areas of land, protection, education, healthcare, and money in an ever changing world.A general example of a treaty would be the North Atlantic Treaty Organization, or NATO, which consists of 29 member states from North America and Europe. NATO was formed mainly with military intentions, meaning that if one of the members was attacked, then the rest would react in defense [9]. In the early United States, treaties between Indian nations and the US were typically treated as a moral and legal way of determining the new country´s relations with its indigenous people. 

History 

            As mentioned before, the earliest treaties were a sign of respect and equity between both parties.An example of the earliest recorded treaties was between the Haudenosaunee and the Dutch in 1613 [1].Article 37 of the UN Declarationspecifically recognizes the rights of indigenous people to have their treaties and agreements recognized[2]. Historically, the white colonizers did not typically make the best interests of the indigenous people their priority,but there was the 1763 British Proclamation, which prohibited the purchase of indigenous lands beyond the Appalachian Mountains, in an effort to stall the impending resistance from said indigenous tribes. It was only in effect until the American Revolution [5]. Of course not all indigenous tribes were willing to accept and make peace with the strange foreigner. A monumental example of this resistance was Pontiac’s War, in which a confederation of indigenous nations fights to take back the land stolen from them by European settlers[6]. Taking this into account, the United States ratified about 400 treaties between 1778 and 1871. At the end of that period in 1871, the federal government ceased treaty making with indigenous nations [2].This act was the Indian Appropriation Act, in which the government would no longer treat the indigenous tribes as sovereign nations, treating them as internal minorities instead.The perception and purpose of treaties also changed in these times. For example, in the 1780 Cherokee Tobacco Case, the Supreme Court had ruled that an act of Congress can basically overthrow treaty provisions, and a year later, treaty making had officially ended [3]. Another Supreme Court case that ruled against treaties in a way was the Lone Wolf v Hitchcock case of 1903, in which the court ruled that Congress has the power to allocate a tribe´s land in case of a treaty violation [4]. Originally, treaties were a form of respect between both parties that the United States violated time and time again, and unfortunately, native nations continue to feel the effects of the government’s actions. 

Impact

Being quite too familiar to violations of their rights,Native nations continue to experience encroachment upon their treaty rights for even the most basic of agreements. An example of that today is the prohibition of the People of Akwesasne from traveling freely in their homeland, since their territory was before the formation of the United States and Canada, the borders present today show some challenges [2]. Instances like these are often caused by treaties between other nations, like the Treaty of Ghent, that divided British Canada, and the United States [6]. Not only are their lands encroached upon, but indigenous tribes have also had other freedoms of theirs limited by the United States government, such as restricting their licenses for trade, which results in them not being able to trade with any foreign nations other than the US. The Supreme Court similarly limits them by first deciding that ¨Indians had no right of soil as sovereign, independent states¨, and then later on in another decision that ¨Indian tribes are domestic, dependent nations¨ [6]. In addition to deciding their status, the SC issues through the Commerce Clause that they have the right to interfere and regulate the relations between indigenous nations [6]. The Treaty of New Echota was the one that set the Trail of Tears in motion.This had been negotiated by someone who falsely claimed to represent the Cherokee Nation, and ceded their land for 5 million dollars. The Cherokee Nation obviously rejected the treaty, but were unheard and thus began their forced removalin 1838 [7]. Treaties from other countries working together to target the indigenous tribes were common, as such was the Treaty of Guadalupe Hidalgo, which brought an end to the Mexican-American War as well as specified that the United States had the right to protect its new lands from indigenous attacks on the new frontier.This especially was targeted towards the Apache and Comanchenations that had always rightfully resisted any Mexican or American expansion into their lands [8]. 

Manifestations

As said before, there are endless amounts of treaty and rights that have been violated and ignored throughout the history of treaty making, and even to this day. The Treaty of Traverse de Sioux, agreed upon by the United States and the Dakota Nations, determined that the nations would remain living their agricultural lives apart from white settlers in exchange for government rations and payments from their ceded lands. With their own best interest in mind, the US broke that treaty among countless others [6]. The First Fort Laramie Treaty, also known as the Horse Creek Treaty, was agreed on by the United States, and eight indigenous nations, including the Sioux and Cheyenne. They guaranteed safe passage for settlers in exchange goods and services. The United States failed to comply with its own treaty and several nations never received payment from them [6].Frustrated by these kind of treaty right violations, lack of due payments, settler encroachment angered the Dakota, and this led to the Great Sioux Uprising, in which they attack the settlers. The US military is called in, and the Dakota are charged with murder and rape of civilians, as well as 38 Dakota men were sentenced to death. Additionally, the Dakota were forced to move to Nebraska and South Dakota [6]. There are countless treaty rights that have been violated throughout the years, in many different oppressive ways. The construction of the transcontinental railroad itself encroaches upon land owned by indigenous people [6]. The aforementioned Fort Laramie Treaty had guaranteed the Sioux their reservation land and hunting rights, but once again the United States violated this treaty after gold was discovered on said lands, showing how they always think about themselves first.   

Modern Examples 

Time after time, the United States has been known for violating any treaties they had made with the indigenous nations as soon as they see themselves gaining some kind of benefit from them.Despite how hard they fought for their rights ever since the white colonizers showed up, we finally see much of the larger activist organizations appearing in the late 20th century.In 1972, the Trail of Broken Treaties Caravan took place, in which several indigenous groups traveled from the West Coast all the way to Washington DC in order to demand then President Nixon to respect the sovereignty of their nations. He refused, until after about a week of protesting, he finally gave in to treaty negotiations [6]. A year later in 1973 was the Wounded Knee Occupation, where Oglala Lakota and American Indian Movement members protested against the corrupt governance reserve structure. For 73 days, they demanded the reinstitution of US treaty obligations and nation to nation relations [6]. We finally see some kind of amendsbeginning to form in 1994, when members from 556 federally recognized tribes meet and consult with the President for the first time, and in 1998, when Executive Order No.13084 is issued, pledging that the government will consult with Indian tribal governments on matters that concern them [6].In 1974, we see the tribes themselves continuing to fight for their rights, in the first meeting of the International Indian Treaty Council, issuing their ¨Declaration for Continuing Independence¨ [6]. 

LSJ 200

How treaties might relate to LSJ 200 is explained further in the tribal jurisdictionglossary entry. 

Works Cited

  1. Two Row Wampum Renewal Campaign, honorthetworow.org/learn-more/history/.
  2. General, Karla E. “Treaty Rights and the UN Declaration on the Rights of Indigenous Peoples.” Treaty Rights and the UN Declaration on the Rights of Indigenous Peoples | Indian Law Resource Center, indianlaw.org/content/treaty-rights-and-un-declaration-rights-indigenous-peoples.
  3. “The Cherokee Tobacco, 78 U.S. 616 (1870).” Justia Law, supreme.justia.com/cases/federal/us/78/616/. 
  4. “Lone Wolf v. Hitchcock.” Oyez,1 Feb. 2019, www.oyez.org/cases/1900-1940/187us553.
  5. Editors, History.com. “Proclamation of 1763.” History.com, A&E Television Networks, 27 Oct. 2009, www.history.com/topics/native-american-history/1763-proclamation-of
  6. “#StandingRockSyllabus.” NYC Stands with Standing Rock, 1 Dec. 2016, nycstandswithstandingrock.wordpress.com/standingrocksyllabus/.
  7. “Treaty of New Echota.” Todayingeorgiahistory.org/, 29 Dec. 1970, www.todayingeorgiahistory.org/content/treaty-new-echota
  8. “The Treaty of Guadalupe Hidalgo.” National Archives and Records Administration, National Archives and Records Administration, www.archives.gov/education/lessons/guadalupe-hidalgo
  9. U.S. Department of State, U.S. Department of State, history.state.gov/milestones/1945-1952/nato.