http://www.citizensalliance.org.Indian Treaties and Current Federal Indian Policy
By Darrel Smith
Editor of the CERA Journal
Many people agree that federal Indian policy is harmful, even racist, but they think that these policies are required by the treaties that have been entered into between the federal government and Indian tribes. The United States Government entered into about 373 treaties with less than 150 Indian tribes between 1778 and 1868. Many tribes have multiple treaties. For example, there are twenty treaties with the Cherokee, forty-four with the Chippewa and fifteen with the Choctaw. The treaties and agreements with the various Sioux bands are recorded in a three volume book set. The Bureau of Indian Affairs recognizes 564 tribes (August, 2009). There are also, numerous agreements between the government and tribes starting in 1792 and occurring especially after the end of the treaty period in 1871.
The federal government recognizes hundreds of tribes that don't have a single treaty with the government. There isn't a single treaty between the government and Indian people in general. All the treaties were between the government and specific Indian tribes. A treaty with one entity doesn't bind relations with other entities. Treaty provisions with Spain, for example, don't normally control our relations with Denmark. If federal Indian policy is required by treaty provisions why does the government recognize and deal with treaty and non-treaty tribes essentially the same? Why do they deal with different tribes who have different treaties, and treaty provisions, essentially the same? The vast majority of modern federal Indian policy is unrelated to Indian treaties.
The Constitution makes the U. S. Constitution, laws and treaties the "supreme Law of the Land" over state authority with this clause:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."[Art.VI, Cl. 2]
(The "Legal Issues" section of our web site is one of the few places you can find a link to all the Indian treaties.) Indian treaties are valid historical documents equal to the highest law of the land and superior to state constitutions and laws, but are superseded by later federal treaties, legal agreements, laws, and, of course, the US Constitution itself.
For example, in Reid v. Covert, 354 U.S.
1 (1957) the Supreme Court said:
"There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267, it declared: "'The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.' "This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty,
and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument."
Tribal activists often claim a favored provision out of a single treaty while ignoring other provisions of the same treaty and also later treaties, agreements, laws and the Constitution with its Amendments. They then attack anyone who objects to this simplistic approach as anti-treaty and anti-Indian, and there are some very significant later laws and constitutional provisions that impact treaty interpretations.
The Fourteenth Amendment, the Dawes and Burke Acts, the Citizenship Act of 1924 and many other laws and constitutional provisions legally should take precedence over any inconsistent provisions of earlier treaties. Indians on reservations still do not have the protections of our state and federal constitutions. Not only is the current situation not required by law, it violates any normal understanding of law. For an explanation of the status of tribal members on reservations read the article entitled Why Indians are Second Class Citizens available at the bottom of the "Home Page" on our web site at: http://www.citizensalliance.org
Modern federal Indian policy is entirely dependent on the existence of tribal governments in order to function. If treaties didn't prevent the end of tribal governments as political entities as mandated by the Dawes and Burke Acts, then these same treaties certainly can't require the reestablishment of political tribal governments by the Indian Reorganization Act of 1934. Justice Clarence Thomas referred to this while concurring in United States v. Lara:
"Next, the Court acknowledges that '[t]he treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, 'to make Treaties.'"… (quoting U.S. Const., Art. II, §2, cl. 2). This, of course, suffices to show that it provides no power to Congress, at least in the absence of a specific treaty. Cf. Missouri v. Holland, 252 U. S. 416 (1920). The treaty power does not, as the Court seems to believe, provide Congress with freefloating power to legislate as it sees fit on topics that could potentially implicate some unspecified treaty. Such an assertion is especially ironic in light of Congress' enacted prohibition on Indian treaties.
"The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling 'sovereignty.'"
Not only is Judge Thomas correct in his analysis that that you need a specific treaty provision, as has been noted above, you also need a specific treaty that hasn't been voided by later treaties, agreements, laws or the provisions of the Constitution itself. Then that treaty only controls relations with the specific tribe involved. These limitations guarantee that treaties cannot provide a valid legal basis for modern federal Indian policy. Just one question should be sufficient to clearly demonstrate this fact. Where are the treaty provisions that authorize the federal government to hold the deed to all "Indian land?" Very simply, they don't exist. Many of the most common and important treaty provisions would be fulfilled by finally granting full and equal citizenship rights to all Indians.