From the workshop at the Indian Pueblo Cultural Center 2019 December 10. Workshop 1 of 3 for the Treaties Explorer project of the Museum of Indian Arts and Culture's Indigenous Digital Archive, in a sponsored partnership with the US National Archives Office of Innovation. This training session was created and presented by Professor Sherri Thomas (Taos Pueblo and Black), Professor of Law Librarianship of University of New Mexico Law School, for the Museum of Indian Arts and Culture. Video, slides, curriculum, and more resources are available at DigiTreaties.org

1. Indian Treaties Conservation and Digitization Project
Community Engagement for the National Archives
Indigenous Digital Archives
Session 1 of 3 – December 10, 2019
Sherri Nicole Thomas
Associate Dean of Institutional Climate and Equity
Library Assistant Director
Professor of Law Librarianship
University of New Mexico School of Law

2.  December 10, 2019 – Treaties – What are they?
 Session 1 defines what treaties represent and what they are
designed for in the global context, and then focusing in on
the significant structuring of Indian treaties in the United
States.
 December 11, 2019 – Indian Treaties – History
 Continuing to build on the foundation of the previous
session, Session 2 gives historical context to the relationship
between the United States Government and Tribal Nations,
and the role of Indian treaties in that relationship.
 Spring 2020 – Research You Can Do with the Treaties
Explorer Web Portal
 Session 3 provides guidance and instruction on using the
Indigenous Digital Archive for Indian treaty research.

3.  International Law: Terminology and Definitions
 Basic terms
 Significance
 Treaties: International Law
 Topics
 Contents of Treaties
 Parts of a Treaty
 Signficance

4.  The United States and Treaties : Domestic Law
 Overview of Law in the United States
 Significance
 Implementation
 Enforcement
 Indian Nations and Treaties: Indian Treaties in the United
States
 Contents
 Enforcement
 Uniqueness of Indian Treaties
 Significance

5.  After the session, the audience should know:
 The difference between Foreign and International Law
 Definitions and terminology related to treaties
 Entities and organizations that enter into treaties and
influence the interpretation of them

6.  After the session, the audience should know:
 The branches of the United States government
negotiate, ratify, enforce and interpret treaties
 The following about United States Indian Treaties:
 Significance
 Topics
 Implementation
 Enforcement
 Parts of an Indian Treaty
 Renegotiation of Indian Treaties

7. Terminology and Definitions

8.  The method by which rules are
established and enforced in a society.
 Legal systems help and hinder
interactions with other societies.

9.  Inherent right to or power to govern in
a specific jurisdiction.
 People
 Land

10. Nation
 Shared History
 Origins
 Culture
 Organic Formation
 Style of Governance from
Culture
 Governmental
Mechanism
State

11. International Law
 The law governing the
relationships between
countries.
 The internal law of
another country.
Foreign Law
Domestic law is the law of the country you are in!

12.  Treaty – A formal agreement between two or more
nations regarding peace, trade, etc.
 Agreements– Arrangement or contract between two or
more nations (parties).
 Convention – Agreement or compact between nations.
Can also mean an assembly of individuals having a
common objective.

13.  Bilateral – Between two parties (nations).
 Multilateral – Between more than two parties (nations),
also known as “treaty contract”.
 Protocol – Practices observed by nations for nation to
nation contact. An amendment or supplement to
another treaty
 In Force – The international document is currently
binding enforceable by parties

14.  Unratified (U.S. context) – The international document
has not passed the Senate and been signed into law and
is there for not in force, or a part of U.S. law.
 Ratified (U.S. context) – The international document has
passed the Senate with 2/3 vote and has been signed into
law and is a part of U.S. law.
 Signatory /Party– The head of state representing the
governmental entity that aids in negotiating and signing
the agreement.

15.  IGOs: International governmental organizations
 United Nations
 NGOs: International non-governmental organizations
 World Health Organization
 RUDs – Reservations (parts do not apply),
understandings (clarifications, definitions, side
agreements), and declarations (intent) can be made by
signatories or parties.

16. Primary
 Enforceable Law
 Appropriate
Jurisdiction
 In effect
 Examples:
 Statutes
 Regulations
 Rules
 Cases
 Ratified Treaties
 Not binding authority
 Different Jurisdiction
 Out of date
 Pre-ratification or
completion of passage
Secondary

17. Treaty
 Formal agreement
between sovereigns
and/or international
organizations
 Ratified
 Binding
 Enforceable
 Agreement between
heads of state
 Politically binding
 Not always ratified
Executive Agreement

18. International Law

19.  Alliances
 Military
 Political
 Trade
 Immigration
 International Peace
 Taxation
 Territory Exchange
 State Creation
 Lawmaking –
Universal/General
Application
 Human rights

20.  Written Agreement
 Multiple languages
 Binding
 Once ratified
 Creates rights and duties
of parties
 Created by entities with
treaty-making power
 Signatories
 Governed by
international law
 QUESTION:
 Does negotiating and signing a treaty make it
binding on the signatory nation?

21.  International law is generally “customary law”
 Long standing protocols of interacting with foreign
nations
 1968 - Vienna Convention on the Law of Treaties
 Like an international law “rule book”
 United States is not a party to it, but the U.S.
Department of State recognizes the convention as “the
authoritative guide to treaty law and practice.”

22.  Statement of Intent to
Negotiate
 Readiness to Negotiate
 Writing a Framework
(Could be done by states
or international
organizations that are
entering the treaty or by
the United Nations)
 Word choice,
understanding, and
language
 Negotiation –
 Agreement in Principal
 Finalization
 Implementation/
Ratification
 If a Universal/General
Treaty - Open to Other
Countries – Reservations
can be made

23. Amendments
 All parties to the treaty
must formally agree on
any changes before it can
act as a binding
agreement.
 Must go through an
additional ratification
process.
 Modification has a
different legal meaning!
 Can be done by the
executive of any
governmental entity with
the power to do so
 Suspend – May continue
participating at a later
date
 Terminate – Treaty no
longer exists (bilateral)
 Withdraw – Treaty is still
in effect for others
Withdrawals

24.  Who
 Parties (Countries)
 Appropriate power
 Who does it
affect/benefit?
 What
 Treaty Topic
 What constitutes a
breach?
 What happens when a
breach occurs?
 What are the stipulations?
 When
 When does it go into effect?
 When can it be changed?
 When can withdrawals
happen?
 Where
 Usually in territorial
transfers
 May affect specific
jurisdictions
 Where are disputes
settled?
 Why
 Why is the treaty going
into place?
 Historical context

31. Domestic Law

32.  Article I: Legislative
Branch
 Federal Statutes
 Ratifies Treaties
 Article II: Executive
Branch
 Federal Regulations
 Negotiates Treaties
 Peace
 Alliance
 Commercial
 Agencies Apply/Track
Treaties
 Article III: Judicial Branch
 Case Law
 Interprets Treaties
 State/Local Law

33.  Article VI of the U.S. Constitution:
…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 not withstanding…

34. 34
International
Law
State/
Local
Law
Federal
Law
Created by the
U.S. Constitution

35.  Executive Branch initiates, negotiates, and signs
 Senate must approve all agreements by 2/3 vote
 After approval, President ratifies (consents to be bound
by) and proclaims all treaties as the law of the land
 Treaty = Statute in the United States

36.  Same legal effect as federal statutes
 Can supersede earlier statutes
 Statutes can abrogate earlier treaties
 Amendment process

37.  Determining whether:
 A treaty exists
 Is currently in force
 For what parties
 With what limitations
 Topics
 Interpretation
 Verifying and updating
status
 Considerations for
Locating Text
 Do you need current
text or a previous
draft/pre-amendment
version

38.  Finding aid for RATIFIED U.S. Treaties
 Arranged in 2 sections
 Bilateral
 Multilateral
 Published annually
 Indexes
 Numerical Listing
 Country Listing
 Subject Listing
 Available electronically
 State Department:
http://www.state.gov/s/l/treaty/tif/index.htm

39.  Get a Statutes At Large citation from
 Secondary Source
 Google or another search engine
 FDSys

40.  UN Documents
 Title
 Document Number
 Treaties
 Agreements and Protocols
 Learned Papers
 Authoritative Websites

41.  Locate the intent through background documents
(legislative text of the treaty or agreement)
 Obtain status and ratification information
 Is it currently in force?
 For which parties?
 With what reservations, understandings, declarations?
 Analyze the legislative history, treaty
interpretation).

42. Official sources
 T.I.A.S. Treaties & Other International Acts Series
 slip treaty service
 U.S.T. United States Treaties & Other International
Agreements
 bound volumes of same
 Senate Treaty Documents
 Senate Executive Documents

43.  Treaty Document series
 President’s method of transmitting treaty to Congress
for advice & consent
 Formerly Senate Executive Documents until 97th
Congress
 Treaty text annexed to document

44.  Executive Report series
 This is the recommendation of the Senate Foreign
Relations Committee to the full Senate
 Reprints treaty text with article by article analysis
 Committee often appends statements of conditions,
declarations, understandings, provisos

45.  Congress.gov 81st Congress --
 State Department International Agreements
Collection (from 1996-)
 Multilateral Treaties Deposited with the
Secretary General – United Nations

46. Determine the following:
 the parties to the agreement
 the conclusion and the entry into force date
 RUDs -- any amendments, reservations, understandings,
declarations to the original agreement?
 Implementation and judicial interpretation
 Check the Department of State for “Treaties in Force”!

47.  Implementation: check for U.S. laws & regulations
implementing treaties
 United States Code
 Code of Federal Regulations
 Federal Register
 Interpretation: check for judicial decisions

48.  Consider:
 Who the parties are
 Bilateral or Multilateral
 Official Sources vs. Unofficial sites
 Authenticity
 Secondary vs. Primary edition
 Version
 Currency
 RUDs
 Date of signing
 Effective dates
 Ratification dates.

49. Treaty of Guadalupe Hidalgo

55. Indian Treaties in the United States

56. International
Law
Tribal
Law
State/
Local
Law
Federal
Law
Created by the
U.S. Constitution
Extra-Constitutional (U.S.)

57.  Except for:
 “To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;”
U.S. CONST. art. I, § 8, cl. 3.
57

58.  Who
 Parties (Countries) –
Sovereign Nations
 Appropriate power -
Executive
 Who does it affect? – If
ratified, U.S. domestic law
and international relations.
 What
 Treaty Topic
 What constitutes a breach?
 What happens when a breach
occurs?
 What are the stipulations?
 When
 When does it go into effect?
 When can it be changed?
 When can withdrawals
happen?
 Where
 Usually in territorial transfers
 May affect specific
jurisdictions
 Why
 Why is the treaty going into
place?
 Historical context

59. Who, What, When, Where, Why?

60.  Parties (Countries) – Sovereign Entities
 Sovereignty - Nation to nation dealing between national
governments (Mexico and U.S.) and indigenous nations
 Appropriate power – Executive branch for U.S., but what
about in the Tribal context?
 Who does it affect/benefit? – If ratified, mainly
interactions between Tribes and anyone else.
 Treaties in the context of Federal Indian Law
 Rights guaranteed to tribes:
 Land
 Services
 Hunting and fishing

61. What
 Treaty Topic –
 See “Where”
 What constitutes a
breach?
 What happens when a
breach occurs?
 What are the
stipulations?
 Usually in territorial
transfers
 Land for land
 Land for goods
 Land for services
 May affect specific
jurisdictions
 New jurisdictions
created
Where

62.  What language is being used?
 What is the understanding of words?
 What is the cultural context for understanding?
 What are the rules being applied?

63.  When
 When does it go into effect?
 When does it end?
 When can it be changed?
 When can withdrawals happen?

64.  Why is the treaty going into place?
 Historical context

65.  Indian
 Native American
 American Indian
 Aboriginal
 Indigenous group’s
current name
 Indigenous group’s
former name
 First Nation
 Indigenous
 Native People
 Tribal People
 Different spelling of
indigenous group’s name
 Bands

66.  Peace
 Land exchanges
 Removal
 Restrictions
 Rights guaranteed to tribes:
 Land
 Services
 Hunting and fishing
 Overall fiduciary duty

67. Fort Laramie

72. Fort Laramie