Importance of Treaties With American Indian Tribes (Revisited)
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Importance of Treaties With American Indian Tribes (Revisited)

November 25, 2019


>>TRIBAL LEADERS, NATIVE SCHOLARS AND HISTORIANS
SAY THE U.S. GOVERNMENT HAS A LONG HISTORY OF BREAKING TREATY AND TRUST RESPONSIBILITIES
TO TRIBES INCLUDING HERE IN THE SOUTHWEST. TRIBAL LEADERS AND NATIVE RIGHTS ADVOCATES
ARE CLOSELY WATCHING ACTIONS BY THE TRUMP ADMINISTRATION TO INSURE THEY’RE NOT LEFT
OUT IN POLICIES OR GOVERNMENT CHANGES. THIS WEEK WE REVISIT AN INTERVIEW WITH CORRESPONDENT
ANTONIA GONZALES THAT LAYS OUT AN OVERVIEW OF TRIBAL TREATY RIGHTS, AND WHY THEY ARE
STILL SO IMPORTANT.>>JOINING ME NOW IS NICK
ESTES, ASSISTANT PROFESSOR OF AMERICAN STUDIES AT UNIVERSITY
OF NEW MEXICO. AND NATIVE SCHOLAR FROM LOWER
BRULE SIOUX TRIBE.>>THANKS FOR HAVING ME.
>>LET’S START WITH THE BASICS.
TELL US WHAT ARE TREATIES BETWEEN TRIBES AND THE UNITED
STATES.>>SO, THE PRACTICE OF TREATY
MAKING GOES BACK TO THE VERY FOUNDING OF THE U.S. AND BACK
PRIOR TO THE EXISTENCE OF THE UNITED STATES.
SO, FOR EXAMPLE, THE LAKOTA PEOPLE OR THE OCHETHI SAKOWIN,
THE GREAT SIOUX NATION, HAD ENTERED INTO FORMAL RELATIONS
WITH OTHER NATIONS OF PEOPLE PRIOR TO THE ARRIVAL OF THE
UNITED STATES. OUR FIRST COMPACT THAT WE
RECORDED WAS WITH PTESANWI THE WHITE BUFFALO CALF WOMAN, WHO
ESSENTIALLY BROUGHT US INTO FORMAL RELATIONS WITH THE
NONHUMAN WORLD SUCH AS THE BUFFALO NATION AND PLANTS AND
WATER AND THE LAND. SO, TREATY MAKING WAS VERY
MUCH A PART OF OUR TRADITION, BUT WE DIDN’T MAKE TREATIES
WITH JUST HUMAN NATIONS, WE MADE TREATIES WITH NONHUMAN
NATIONS AS WELL. SO, WHEN THE UNITED STATES
FIRST CAME IN 1803, WITH THE ARRIVAL OF LEWIS AND CLARK,
YOU KNOW, THE UNITED STATES WAS LESS THAN A QUARTER
CENTURY OLD AND NEEDED TO ESTABLISH ESSENTIALLY MILITARY
ALLIANCES WITH CERTAIN INDIGENOUS PEOPLES SO WE
ENTERED THE FIRST TREATY IN 1814 OR 1815 AND THEN
SUBSEQUENTLY WE ENTERED INTO 35 TREATIES WITH THE UNITED
STATES. THE UNITED STATES HAVE
CONFIRMED 35 TIMES THE NATIONHOOD STATUS OF THE
OCHETHI SAKOWIN, JUST THE GREAT SIOUX NATION, BUT HAS
CONFIRMED IN THE U.S. ITS OWN EXISTENCE OVER THE LAST 250
YEARS, 370 TIMES THE INDEPENDENT NATIONHOOD STATUS
OF INDIGENOUS NATIONS. SO THE U.S. HAS RATIFIED OVER
370 TREATIES WITH INDIGENOUS NATIONS NOT AS INFERIOR BUT AS
EQUALS TO THE U.S. IF WE INTERPRET — THE THING
WITH TREATIES IS THAT TREATIES ARE INTERPRETED BY BOTH
PARTIES NOT JUST ONE PARTY. SO THE U.S. HAS HAD DOMINANCE
ON THE INTERPRETATION OF THESE TREATIES, BUT IF YOU ASK
INDIGENOUS NATIONS, WE WOULD SAY WE ENTERED INTO THE
RELATIONS AS EQUALS, AS PARTNERS.
SO, THAT IS THE KIND OF BRIEF SYNOPSIS OF THE HISTORY OF
TREATY MAKING IN THE UNITED STATES.
>>AND EXPLAIN A LITTLE BIT ABOUT WHY TREATIES ARE
RELEVANT TO TODAY.>>TREATIES ARE RELEVANT
TODAY, NOT BECAUSE INDIGENOUS PEOPLE SAY SO AND NOT BECAUSE
INDIGENOUS SCHOLARS SUCH AS MYSELF SAY SO BUT BECAUSE
ARTICLE VI OF THE U.S. CONSTITUTION SAYS SO, WHICH
SAYS, TREATIES ARE SUPREME LAW OF THE LAND AND THERE IS A LOT
OF DEBATE AROUND THE RELEVANCE OF CERTAIN AMENDMENTS TO THE
CONSTITUTION SUCH AS THE SECOND AMENDMENT, THE RIGHT TO
BEAR ARMS, BUT, I THINK IT IS WORTH GOING BACK AND LOOKING
AT THE ARTICLE VI OF THE U.S. CONSTITUTION WHICH SAYS, YOU
KNOW, TREATIES ARE SUPREME LAW OF THE LAND.
SOVEREIGNS DON’T ENTER INTO RELATIONS WITH DOMESTIC
DEPENDENT POPULATIONS, RIGHT? UNFORTUNATELY, AS FEDERAL
COURT CASES HAVE SHOWN OVER THE YEARS, IS THAT IS HOW THE
U.S. HAS INTERPRETED TREATIES BUT NOT INDIGENOUS NATIONS.
SO INDIGENOUS NATIONS TODAY EXIST WITHIN THE UNITED
STATES, FEDERALLY RECOGNIZED INDIGENOUS NATIONS BECAUSE OF
FORMAL RELATIONS WITH THE U.S. THROUGH THAT TREATY MAKING
PROCESS OR THROUGH SOME OTHER FORM OF AGREEMENT.
FOR EXAMPLE, THERE WERE OVER 500 DIFFERENT AGREEMENTS MADE
WITH THE UNITED STATES INCLUDING THE RATIFIED
TREATIES AND THERE WERE UNRATIFIED TREATIES AS WELL AS
AGREEMENTS SO THOSE COUNT AS RECOGNITION OF NATIONHOOD AS
WELL. SO, TODAY, ME AS A CITIZEN OF
THE LOWER BRULE SIOUX TRIBE, I TRACE THAT CITIZENSHIP BACK TO
THE 1868 TREATY BUT THEN ALSO WE HAD A SEPARATE TREATY AS
THE LOWER BRULE PEOPLE IN 1865 WHICH WAS CALLED THE 1865 FORT
SULLY TREATY.>>TREATY RIGHTS ARE OFTEN
CHALLENGED IN COURTS, RECENT CASES INVOLVING HUNTING AND
FISHING. THERE IS A CASE THAT WILL GO
BEFORE THE SUPREME COURT ON HUNTING.
AND RECENTLY, THE HIGH COURT BASICALLY CALLED IT A WIN FOR
SALMON IN THE CULVERT CASE IN WASHINGTON STATE AND FOR
TREATY FISHING RIGHTS. TELL US ABOUT THE HIGH COURTS
AND ANY KIND OF LEGAL CHALLENGES WHEN IT COMES TO
TRIBAL TREATIES?>>JUST TO TALK A LITTLE BIT
ABOUT THE CASE, THIS WAS JUST RECENTLY DECIDED ON.
IT WAS A SPLIT IN THE SUPREME COURT SO THEY WENT BACK —
UPHELD THE LOWER COURT’S DECISION.
SO IT WAS A VICTORY IN MANY SENSES OF THE WORD, YOU KNOW,
AND THAT SHOULD BE CELEBRATED AND ALSO SOMETHING TO NOTE IS
THAT IT WAS A VICTORY FOR THE SALMON.
SO, GOING BACK TO HOW WE INTERPRETED TREATIES, WE
WEREN’T JUST SIGNING TREATIES WITH THE U.S., WE WERE ALSO
UPHOLDING ORIGINAL COMMITMENTS TO OUR RELATIONSHIPS TO
NONHUMAN BEINGS SUCH AS SALMON, SUCH AS THE BUFFALO
NATION, FOR EXAMPLE. FOR US, THE OYATE SO WHEN WE
SAY IN THE TREATY IT SAYS, SO LONG AS BUFFALO SHALL ROAM TO
JUSTIFY THE CHASE FOR THE 1868 TREATY, WHAT THAT MEANS IS OUR
TREATY TERRITORY WAS DEFINED BY THE EXISTENCE OF BUFFALO
HERDS. SO, WHEN THE U.S. GOVERNMENT
BEGAN EXTERMINATING BUFFALO HERDS, THAT TRANSLATED INTO
THE TAKING OF THAT LAND AS WELL.
SO, IT IS NOT JUST, AGAIN, YOU KNOW WHEN WE SAY WE ARE WATER
PROTECTORS OR LAND DEFENDERS, WE ARE ALSO TAKING CARE OF THE
NONHUMAN RELATIONSHIPS THAT WE HAD ESTABLISHED.
SO WHEN WE LOOK AT TREATY CASES THAT GO INTO THE SUPREME
COURT, THEY REALLY SHOULDN’T BE DECIDED IN THAT COURT BUT
IT IS THE ONLY LEGAL MECHANISM THAT WE HAVE AT THIS
PARTICULAR MOMENT IN TIME. SO, IF WE GO BACK EVEN TO THE
EARLY 1900’S, WHEN INDIGENOUS PEOPLE IN THE UNITED STATES
WERE AT THEIR LOWEST POINT, THERE WAS LIKE 300,000
SURVIVING INDIGENOUS PEOPLE OF OVER A CENTURY OF GENOCIDAL
WAR, FAMINE, DISEASE, ET CETERA, INDIGENOUS PEOPLE AT
THAT TIME WERE ALSO PETITIONING, YOU KNOW, AFTER
WORLD WAR I, WE HAD SERVED IN GREAT NUMBERS.
WE WEREN’T TECHNICALLY U.S. CITIZENS, BUT, MANY HAD SEEN
THEIR SERVICE IN THAT WAR AS A COMMITMENT TO UPHOLD TREATY
RIGHTS. AND, SO, FOR EXAMPLE, GOING
BACK TO MY OWN NATION, WE SERVED A LOT OF PEOPLE — A
LOT OF THE SONS AND DAUGHTERS — EXCUSE ME, LET ME
BACK UP. A LOT OF THE SONS OF THESE
ORIGINAL TREATY SIGNERS WERE SENT OFF TO CARLISLE INDIAN
SCHOOL WHICH CLOSED ITS DOORS 100 YEARS AGO THIS YEAR IN
1918. THEY SENT THEIR SONS TO THE
CARLISLE INDIAN SCHOOL AND THOSE GRADUATES FROM THAT
SCHOOL ARE THE ONES THAT SERVED IN THE MILITARY AND
THEY SERVED UNDER THE AUSPICES THAT THE UNITES STATES WOULD
UPHOLD ITS ORIGINAL AGREEMENTS WITH US.
FOR EXAMPLE, FOR US IT WAS GETTING BACK THE BLACK HILLS
OR AT LEAST REVISITING THE BLACK HILLS CASE.
SO, AFTER THE WAR IN 1919, AT THE PARIS PEACE CONFERENCE, WE
HAD PETITIONED THE UNITED STATES GOVERNMENT, WOODROW
WILSON, SPECIFICALLY, TO HAVE REPRESENTATION THERE, BECAUSE
WE SAW OURSELVES AS PART OF THE WORLD’S COLONIZED PEOPLES.
THE SOUTHEAST INDIAN PEOPLE WHO WERE COLONIZED UNDER THE
BRITISH AT THAT TIME HAD WANTED DELEGATION BECAUSE THEY
FOUGHT IN WORLD WAR I AS WELL. MANY AFRICAN NATIONS ALSO
SOUGHT REPRESENTATION AT THE LEAGUE OF NATIONS AT THAT TIME
SO THIS IS ONGOING ISSUE. IT IS NOT JUST CONFINED TO
DOMESTIC COURTS BECAUSE AT THAT TIME WE WEREN’T EVEN
CITIZENS. HOW DO YOU TAKE A TREATY CASE
TO COURT WHEN YOU’RE NOT EVEN A CITIZEN OF THE UNITED
STATES? SO, THIS ISN’T JUST A NEW
STRUGGLE BUT AN ONGOING STRUGGLE, AND, AGAIN, EVERY
TIME THE UNITED STATES GOVERNMENT TRAMPLES ON TREATY
RIGHTS, THEY ARE ALSO TRAMPLING ON THE CONSTITUTION
BECAUSE THEY ARE NOT UPHOLDING THEIR ORIGINAL AGREEMENT,
ARTICLE VI.>>AND THERE IS A LOT OF TALK
ABOUT THE U.S. SUPREME COURT WITH A NEW JUSTICE ABOUT TO BE
CONFIRMED MAYBE. WHAT ARE YOUR THOUGHTS ON WHY
IT IS SO IMPORTANT TO PICK JUSTICES THAT HAVE KNOWLEDGE
OF INDIAN COUNTRY?>>IT IS IMPORTANT FOR A
VARIETY OF REASONS. BUT, I WOULD LIKE TO BACK UP
AS A HISTORIAN AND BACK UP A LITTLE BIT AND TRY TO
CONTEXTUALIZE WHY THE SUPREME COURT HAS SUCH POWER TO
DETERMINE THE FATE OF INDIGENOUS PEOPLES BECAUSE
THEY ARE THE ONES THAT ARE INTERPRETING TREATIES.
IT GOES BACK TO CHIEF JUSTICE JOHN MARSHALL APPOINTED UNDER
JOHN ADAMS IN 1801. HE EXPANDED THE SCOPE OF THE
SUPREME COURT BEYOND ITS ORIGINAL CONSTITUTIONAL
FRAMEWORK, RIGHT, NOT JUST FOR DETERMINING FEDERAL INDIAN LAW
BUT FOR OTHER CASES AS WELL. SO, CHIEF JUSTICE JOHN
MARSHALL, HE WAS FAMOUS FOR WHAT WE UNDERSTAND AS THE
MARSHALL TRILOGY. SO HE USED THE SUPREME COURT
TO INTERPRET TREATIES BUT ALSO HE USED THE SUPREME COURT TO
INTERPRET THE STATUS OF INDIGENOUS PEOPLE IN THE
INDIGENOUS NATIONS, SPECIFICALLY IN THE UNITED
STATES. AND HE WAS MOST FAMOUS IN
DECIDING THE CHEROKEE CASES. SO, UNDER REMOVAL POLICY, WHEN
ANDREW JACKSON WAS TRYING TO REMOVE THE CHEROKEE NATION AND
SO-CALLED FIVE CIVILIZED TRIBES FROM THE SOUTH AND
BEGIN WESTWARD EXPANSION ACROSS THE MISSISSIPPI RIVER,
CHIEF JUSTICE JOHN MARSHALL PLAYED A PIVOTAL ROLL IN
PROVIDING THE LEGAL MECHANISMS FOR THE U.S. TO DO SO.
THAT INCLUDED INTERPRETING TREATIES NOT AS AGREEMENTS
BETWEEN TWO SOVEREIGNS BUT AGREEMENTS BETWEEN A SUPERIOR
SOVEREIGN, THE UNITED STATES, AND WHAT HE CALLED DOMESTIC
DEPENDENT NATIONS, THE INDIGENOUS PEOPLES, THE
ORIGINAL PEOPLES OF THIS LAND. AND HE BASED THAT ARGUMENT ON
A RACIST DOCTRINE KNOWN AS THE DOCTRINE OF DISCOVERY BUT ALSO
THAT INDIGENOUS PEOPLE WERE NOT CIVILIZED PEOPLE,
THEREFORE NOT HUMAN, THEY WERE SUBHUMAN.
THAT HAS BEEN CODIFIED IN FEDERAL INDIAN LAW.
SO EVERY SUPREME COURT CASE UPHOLDS THAT DECISION.
SO IT IS IMPORTANT THAT WE DO HAVE SYMPATHETIC JUDGES BUT AT
THE END OF THE DAY WHAT IS MOST IMPORTANT IS THAT WE ARE
OPERATING UNDER A VERY FLAWED SYSTEM THAT IS UPHOLDING AN
OUTDATED, OUTMODED RACIST LEGAL DOCTRINE CREATED UNDER
THE CATHOLIC CHURCH AND CATHOLIC CHURCH IS NOW
BEGINNING TO RENOUNCE IT. SO, I THINK IT IS INCUMBENT
UPON PEOPLE IN THE U.S., THESE ARE YOUR TREATIES TOO AND YOUR
GOVERNMENT SIGNED THESE TREATIES WITH US.
SO IT IS ALSO YOUR OBLIGATION TO UPHOLD THEM.
MAYBE THAT LOOKS LIKE AN AMENDMENT TO THE CONSTITUTION.
MAYBE THAT LOOKS LIKE A CONSTITUTIONAL BILL THAT SAYS
WE ARE GOING TO RE-ENTER SORT OF FORMAL INTERNATIONAL
RELATIONS WITH THE INDIGENOUS PEOPLES, THE FIRST PEOPLES OF
THIS LAND.>>THANK YOU FOR YOUR
PERSPECTIVE TODAY ON TREATIES AND DEFINITELY A LOT OF
HISTORY AND ESPECIALLY WHEN WE LOOK AT CURRENT ISSUES GOING
ON IN INDIAN COUNTRY. THANKS FOR YOUR TIME.

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  1. Natives are the ones that broke the treaties! Where do you think the stereotype of Indian giver came from? Just accept it, natives haven't done anything before the white man nor after the white man!

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