This document summarizes a presentation on the Indian Treaties Conservation and Digitization Project. It provides an overview of 3 sessions: the first defines treaties and their role in US-Tribal relations; the second gives the historical context of treaties; and the third provides guidance on using a treaty research portal. Key points covered include the elements and differences of US Indian treaties; the influence of federal policies over time; and the transition from treaties to statutes in shaping the relationship between Tribal Nations and the US government.

1. Indian Treaties Conservation and Digitization Project
Community Engagement for the National Archives
Indigenous Digital Archives
Session 2 of 3 – December 11, 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 treaty research

3.  Session 1 Review
 What are the elements of a treaty?
 How are United States Indian treaties different from
“traditional” international treaties?
 Overview of Federal Indian Law

4.  Overview of Federal Indian Policy
 Review of the influence of United States policies over
time on Indian treaties
 Transition from Treaties to Statutes

5.  After the session, the audience should understand:
 Basic concepts of Federal Indian law
 The branches of the United States government and how
they affect federal Indian law
 The historical context of Federal Indian policies over
time
 Understand the relationship between Indian treaties and federal
statutes

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

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

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

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

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

12. Connections to Tribal Sovereignty

13. Federal Indian Law
 The law governing the
relationships between
federally recognized
tribes/entities and all
others.
 The internal law of
federally recognized
tribes and entities.
Tribal Law

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

15.  Treaties
 Conventions
 International Relations
 Indigenous Peoples

16.  Adopted September 13, 2007.
 Recognizes the unique situation of
indigenous peoples around the world and
their relationships to the governmental
entities around them, and enumerates the
rights that should be recognized and
protected.
 http://www.un.org/esa/socdev/unpfii/docu
ments/DRIPS_en.pdf

17.  Federal Indian
 Federally Recognized Tribes
 Extra-Constitutional
 Federal Trust Relationship
 Legal Issues:
 Copyrights, patents, bankruptcy, federal taxes,
Social Security, etc.

18.  Federal Statutes
 Plenary Power
 Federal Recognition
 Approval of Indian Treaties

19.  Administrative Agencies
 Federal Regulations
 Executive Orders and Proclamations
 Negotiate Treaties

20.  Case Law
 Marshall Trilogy
 Interpretation and Application

21.  Ambiguous expressions must be resolved in favor
of the Indian parties concerned - Worcester v.
Georgia, 31 U.S. 515 (1832)
 Indian treaties must be interpreted as the Indians
themselves would have understood them - Jones
v. Meehan, 175 U.S. 1 (1866)
 Indian treaties must be liberally construed in
favor of the Indians - Tulee v.Washington, 315 U.S.
681 (1942)
 Unclear treaty provisions may be interpreted from
historical circumstances. – Williams v. Lee, 358
U.S. 217 (1959)

22.  Trustee
 Beneficiary
 Corpus
 Fiduciary Duty

23.  State
 Tribal-State Relations
 PL 280
 Legal Issues:
 Compacts, child custody, divorce, landlord-tenant,
small business, personal injury, wills, etc.
 State Recognized Tribes – List Available from the
National Conference of State Legislatures
 Tribal
 Unique Political Status
 Sovereignty
 Jurisdiction
 Combination of legal issues

24.  Sovereignty expressed through the lens of an
individual tribal entity’s history and culture

25.  Western Law
 Treaties
 Constitutions
 Statutes
 Regulations
 Court opinions
 Tribal Law
 Most tribes have
Western structure
 Tradition
 Custom
 Culture
 Unwritten law

26.  Extra-Constitutional
 Voting (1924)
 Indian Civil Rights Act (1968)
 Unique Political Status
 Sovereignty
 Jurisdiction

27.  Treaty of Cession with Russia in 1867
 Excepted “uncivilized native tribes” from the
rights of citizenship
 Clause about these uncivilized tribes being
subjected to the laws of the United States, but
nothing was really done
 Alaska Organic Act of 1884
 Extinguished aboriginal title, but didn’t really
acknowledge whether it really existed
27

28.  Extinguished Aboriginal Title
 In exchange there is the Alaska Native Fund for
appropriation
 Mineral lease money
 Establishment of regional and village
corporations
 Regulations regarding the permitting of land usage.

29.  Kingdom overthrown in 1893
 Congress has included Hawaiians in Indian
Legislation since 1974
 Public Law 103-150 (1993)
 Apology and reconciliation
 Rice v. Cayetano (2000)

30.  2016 - Final Rule Issued by the U.S. Dept. of
Interior outlining administrative procedure to
Federally Recognize a Native Hawaiian
Government

32. Treaty Period*
1778 - 1871
Time
Immemorial Posterity
Colonial Period
1460 - 1820
Indian Removal
1820 -1846
Reservation Period
1850-1887
Allotment and
Assimilation
1887 -1934
Indian Reorganization
1934 - 1953
Termination and
Relocation
1953 - 1968
Self- Determination
1968 - ???
*Treaties were still being created after these dates, but this is the time period where most of them were being negotiated and ratified.

34.  Old World comes to the New World
 Sovereign to Sovereign Negotiations
 American Revolution
 United States government did not exist until the
Constitution was created.
 Ratified: June 21, 1788
 Effective: March 1789
 Topics:
 Political Alliances
 Military Alliance
 Land Cessations

38.  United States came into existence
 Indian Trade Act (1790)
 Louisiana Purchase (1803) = Westward Expansion
 Over 400 Treaties Ratified
 War of 1812
 Manifest Destiny
 Topics:
 Peace
 Military Alliance
 Creation of Reservations
 Removal
 Land Cessions

39.  Marshall Trilogy
 Johnson v. M’Intosh – 1823
 Indian title
 Cherokee v. Georgia – 1831
 Domestic dependent nations
 Indian Trust Doctrine
 Worcester v. Georgia – 1832
 Distinct political communities

42.  Oregon Trail - Westward Expansion Continues
 Indian Removal Act (1830)
 Department of Indian Affairs Establish (1832)
 Trail of Tears (1836)
 Treaty of Guadalupe Hidalgo (1848)*
 Topics:
 Land exchanges – Indian lands within state borders for
unsettled lands (Oklahoma)

45.  Department of Interior over Indian Affairs (1849)*
 California Gold Rush
 Westward Expansion Continues
 Allotments begin (1854)
 Civil War (1860-1869)
 End of Treaty Making (1871)
 Major Crimes Act (1885)
 Topics:
 Land exchanges

49. From Treaties to Statutes

50.  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

51. Power shift for tribes from sovereign to
sovereign relationships to dependent domestic
sovereigns.

52.  Who
 Parties
 Appropriate power –
 Legislative - Plenary power
to create and terminate
tribes
 Executive - Agencies
 Who does it affect? – All
federally recognized tribes
are treated the same.
 What
 Any topic of governmental
interest
 What constitutes a breach?
 What happens when a breach
occurs?
 When
 When can law be changed?
 Where
 Multiple jurisdictions
 Where are disputes settled?
 Why
 Fiduciary Duties?
 Trust Relationship?

53.  Railroads
 General Allotment Act (1887)
 “Indian Problem”
 Merriam Report (1928)

56.  Howard-Wheeler Act (1934)
 Legislative Reorganization Act of 1946
 Indian Claims Commission (1946)
 “Indian Country” (1948)

57.  Existed since time immemorial
 Extremely wide variety
 Nomadic bands
 “Voting with one’s feet”
 Highly structured, complex and stable
 Legitimacy from creation and sacred narratives—not
written constitution
 Kinship groups rather than individuals were the basic
unit of the political structure

58.  More directed toward resolving conflicts, restoring
harmony, collective decision-making,
 Legislative action less prominent than keeping peace
 Many consensus-based
 Development impacted by colonization & outside U.S.
pressure
 More efficient to have a “king” or chief decide
 Deliberate tribal efforts to modify

59. *Think about the concepts of nations and
states, and how nations identify
themselves and how they identify another
similar entity.

60.  Tribes had the right to organize and adopt
constitution and by-laws (181 for, 77 against)
 Effective upon majority vote of adult members
 Approval of Secretary of Interior required
 Virtually all constitutions were reproductions of
the Washington model
 Amendments to constitution (and some
ordinances) had to be approved by Secretary

62.  House Concurrent Resolution 108 (1953)
 Public Law 280 (1953)
 Termination of Tribes (1958-1966)

65.  Indian Civil Rights Act (1968)
 Exercise of Treaty Rights Through the Courts (1970 ----)
 Alaska Native Claims (1971)
 Indian Education Act (1972)
 Restoration of Tribes Begins (1973)
 Morton v. Mancari (1974) – Unique Political Status
 Indian Child Welfare Act (1976)
 Indian Gaming (1988)
 Tribal Law and Order Act (2011)

66.  Impacted by federal court decisions and policies
 “Domestic dependent nations”
 Congress has the power to limit tribal government
powers and to restore
 Major Crimes Act
 Indian Reorganization Act
 Public Law 280

67.  Still tribes operating without written constitutions
 Direct democracies (Penobscot & Oneida of WI)
 Theocracies
 Formal government co-existing with traditional
 E.g., Tribal Council is the outside face of the Tribe, but
women are in charge of domestic affairs (Penobscot)

69.  200+ Treaties are still in effect
 Congress still has plenary power
 Tribes are more vigilant and active lobbyists
 Federal statutes have taken the place of treaties:
 No longer sovereign to sovereign
 Disputes are resolved in U.S. Federal Courts
 Federal statutes can abrogate treaties
 Trust Relationship
 Canons of Construction Apply to Both Treaty and
Statute Interpretation