Nation to Nation: 04 Robert N. Clinton
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Nation to Nation: 04 Robert N. Clinton

October 10, 2019


Our next speaker is the distinguished Robert
Clinton, Foundation professor of law at the Sandra Day O’Connor College of Law at Arizona
State University and an affiliated faculty member of the ASU American Indian Studies
Program. He is also a Faculty Fellow at the Center for Law, Science, and Innovation. Clinton has served on the courts of several
tribes, in addition to teaching and writing about tribal law, American Indian history,
federal courts, cyberspace law, copyright, and civil procedure. His publications include
numerous articles on federal Indian law and policy, constitutional law, and federal jurisdiction.
Professor Clinton, welcome. While we’re getting the PowerPoint set up
I want to thank Kevin Gover and Suzan Harjo for involving me in this project and the wonderful
staff of NMAI including Sally and Elizabeth for all of the hospitality and all of the
help on both the essay and the book and on the project. It’s a little difficult to follow Senator
Tester and Assistant Secretary Washburn this morning but nevertheless I’ll try and what
I’m going to try to with you for the brief time I have available is to do a 400 year
plus historical survey about Indians and Indian treaties and to try to put them in some perspective,
some of which Assistant Secretary Washburn has already adverted to. Basically treaties are an interesting phenomena,
particularly of North America. It’s sort of tempting to think that somehow Europeans
brought treaties to North America but in fact that’s not true. We know if you think about
it that at the time of first contact there was a rich set of tribal alliances, tribal
negotiations, inter-tribal relations between the original native occupants of North American. In fact if you think about it the great wall
of peace of the Haudenosaunee—I won’t try to pronounce it in Iroquois since I’m
not an Iroquoian speaker and do not want to murder it—was in fact just an elaborated
treaty among five nations that formed the basis of that confederation. So when the British and the Dutch and to a
lesser extent the French, showed up on the American continent, essentially treaty relationships
had already been established and they just fell into pace with the idea of negotiating
sovereign to sovereign with Indian tribes. We’re tempted to think of treaties as a
memorialized document but what I’m going to try to show you today is that that’s
not the way initially the treaty relationship was understood either by Europeans or by the
Native community. But it evolved into that on the Western side,
on the colonial side, creating all kinds of problems and misunderstandings. Now if one
were to look at the treaties themselves, both during the colonial period and the treaties
with the United States, you find a very common pattern. There’s an initial first contract
treaty, I like to call it a peace and friendship treaty.
Generally the Western power, the Western colonial power, is seeking relations with the tribe,
seeking friendly relations and, given the competition at the time during the colonial
period between the French, the Dutch, the English, trying to create exclusivity of a
relationship with a particular colonial power. This usually was not a treaty asking for land
cession. The next one was. And then the one after that
asked for more land and more land and ultimately removal and relocation. So as Assistant Secretary
Washburn adverted to, treaties wound up being essentially a colonial vehicle for dispossession
of Native land during the Colonial period and during the American treaty period. They essentially were vehicles for enforcing
the Doctrine of Discovery. Now those of you familiar with the Doctrine of Discovery know
it derives ultimately from the British claims to colonial authority in North America, it’s
a particularly British doctrine actually, that it basically was designed to rationalize
colonial dispossession of the Native occupants of the soil of North America. And basically it created a relationship which
provided a basis for dispossession, one basis of which was quote consent unquote. What are
the treaties? They’re the consent in the Doctrine of Discovery. The Doctrine of Discovery
is reviled by indigenous people, and yet treaties aren’t.
That’s a very interesting contradiction. It’s a contradiction that Assistant Secretary
Washburn adverted to, it’s one we need to explore. Frequently in Indian country, as
Assistant Secretary Washburn adverted to, treaties are revered icons despite being the
vehicles for dispossession under the Doctrine of Discovery. Many tribes claim the font of
their power, their Indian rights, is in their treaties. Now I happen to teach in Arizona, there’s
only one tribe out of the 22 tribes in Arizona that has a treaty with the United States,
the Navajo Nation. All of the other tribes have no treaties. Yet as Assistant Secretary
Washburn in fact adverted to, you will frequently hear tribal members in the non-treaty tribes
adverting to their treaty rights. Talking about the enforcement of their rights
under a treaty that they don’t have. Treaties have become synonymous with the font of Indian
rights and Indian sovereign power. Well, that causes a rather interesting set of questions.
You see demonstrations here, the Honor the Treaties organization holding a meeting, treating
the treaty as a revered iconic emblem of that source of power. Now of course this all creates a bit of a
contradiction. If treaties are in fact the historical vehicle for consent under the Doctrine
of Discovery and therefore dispossession of Natives, of indigenous people, of their aboriginal
lands, how is it they’ve become iconic sources of Native power and rights? And it’s that history I want to focus your
attention on briefly in my remaining time. At contact, neither the British, or European
generally, colonial side nor the Indian tribes thought of treaties and alliances as a memorialized
document. At contact the British side had conceptions
of alliances that were top down organic familial relationships. Monarchical, dynastic marriage
was common in Europe as a vehicle of creating alliance, it wasn’t a piece of paper. It
was a kinship tie. By contrast the Indians, the Native peoples,
the Native nations viewed alliances in kinship terms. They were organized around extended
families. They thought of political relationships as kinship relationships and you see this
played out in the references in the colonial treaties themselves, some of which are quoted
in the book, I won’t go into detail now. But the whole idea, strangely enough not only
on the Indian side but also initially on the European side in these relationships, was
kinship. But the difference is the European conception of the relationship was monarchical
down. For the most part the Native conception was much more horizontal though there’s
some level of hierarchy within kinship family relationships. But it was basically a flatter, not hierarchical
relationship. So kinship terminology shows up in the treaty negotiations with the Haudenosaunee
who would meet periodically for reasons I’m about to talk about with the Albany, New York
commissioners and other representatives of the Northeast colonies to basically renew
the covenant chain of friendship, the alliance, the kinship relationship which bound them
together frequently against the French or some other interloper who might interfere
with the document. So treaties in the colonial period, at least
in the 17th and early 18th centuries, are about kinship. They’re about forming alliances
and just as you don’t have a document that knits together your family, you have family
reunions. You have relationships. It’s organic, it’s ongoing. Similarly
the document, if there was one at all and generally there was not, was not the object
of a treaty discussion in the 17th or early 18th century between the British colonial
authorities and Native peoples. The point of the discussion was the kinship
alliance, the relationship, it was a family reunion if you will. It was to work out differences
in an organic relationship just as today NATO periodically meets to work out relationships
among the family of the NATO alliances and there is not an expectation that a new document
will come out of that relationship. In fact, this is evident in this print which
is going to be very hard to read at a distance, that was published by Benjamin Franklin, I
think it was published in 1747, of a quote treaty held at Albany between the Haudenosaunee
and the Albany Indian commissioners and representatives from Massachusetts, Connecticut, and Pennsylvania.
This is a treaty held at a particular point. Does the document reflect a memorialized agreement
signed by two parties? Not at all. It’s a meeting of the two parties, it’s an organic
concept. Indian treaties began as this organic relationship on both sides, not just on the
Indian side. Now, the critical relationship was, at least
from the Native, the indigenous point of view, that the Natives had agency in the relationship,
that is they were actors, they were players, they brought their concerns to the table.
They were consulted about the relationship. They in fact weren’t told what the policy
was. They were consulted in the policy formulation,
so they were active actors in that relationship and they were consulted in the relationship
and then ultimately for anything to change, they had to consent to it. So these are the
three critical elements, particularly from an indigenous point of view, about the treaty
relationship however it’s cast in familial terms. Agency, consultation, and informed and free
consent. Those are the core elements of a treaty relationship and we’re going to see
that they erode over time. Now these treaties and the relationship were often formalized
in not a document so much as a Wampum belt or a ceremonial gift. Here we have Jake Edwards of the Haudenosaunee
Confederation holding, and I’m not sure whether they’re original or replicas, of
the Two Nation Wampum Belt commemorating a treaty quote unquote within the meaning I
just gave it, of a 1612 agreement or treaty relationship with the Dutch and the Canandaigua
Wampum Belt on the anniversary of these agreements. This is a peace medal, the President Buchanan
Peace Medal that I believe is in the collection here at NMAI, also given out to memorialize
this relationship in the treaty relationship. Now it turns out that the problem with treaties
begins not on the Native side but like many problems begins on the Western side, begins
on the Anglo-American side. The idea of what a treaty is begins to start
changing in Europe with the Peace of Westphalia in 1648 which is generally traced to the beginning
of international relations in a modern sense in Europe. Increasingly treaties are formalized
into documents in a written language, the idea of dynastic marriage alliances begins
to dissolve in favor of these paper documents. And that gradually trickles over into North
America. But from a Native side this idea that a treaty is a dynamic, organic kinship
relationship continues. They aren’t part of what’s going on in Europe. So when they
think they’re making an agreement with the British or later the Americans, it is an organic
kinship relationship within their culture in a way that increasingly is not understood
by the people with whom they’re making the agreement who simply want the signature on
the bottom line of a document to get the informed consent for whatever the treaty says, usually
the dispossession of the Native people. So we see an increased focus of Westerners
on a memorialized treaty beginning in the late 18th and continuing into the 19th century.
Now of course treaties are negotiated in multiple languages, most of the tribes didn’t speak
English at the time. They spoke their native language. There may have been an intermediate
interpreter as there is in the Fishing Rights treaties, the Stevens Treaties of the Pacific
Northwest where the Chinook Jargon was used. But if you’re going to focus on a memorialized
document instead of a kinship relationship you have a problem because the Native languages,
at least in North America, were all oral languages, they’re not at this point written languages.
So there’s the possibility that the memorialized document might not reflect a common understanding
and where still might be to the advantage of the party who’s negotiating the memorialization,
i.e., the British or later the Americans. It’s long been said by Native people that
the language of these treaties doesn’t reflect the understanding of these treaties as they
understand them through their oral tradition. And of course, with an increased focus on
language, a lot of people don’t understand that but I think you can begin to see why
this might be true. Turns out there’s proof of that fact in
a treaty not from North America but the major treaty in New Zealand with the Maori, the
Treaty of Waitangi of 1840. Now why does it prove it? Well it turns out the missionaries
had been with the Maori for quite a while before that treaty was negotiated and Maori
had been transliterated and many of the Maori were literate in the language. So unlike every other treaty in North America,
the Maori treaty was written and memorialized in language in two different languages. In
English, and in Maori. It’s a very short treaty, it’s only four articles. The first
one purports to cede all sovereignty to the Crown. You read it in Maori and it seems to give
a heck of a lot less. What does it give? Well, it allows the Crown basically to serve as
a leader for the Maori people but cedes no governmental authority to the Crown. Well,
that’s a big difference. You can see that the Waitangi treaty, where there is documentary
proof in two different languages, doesn’t say the same thing in English and in Maori. And therefore the Native common understanding
that the memorialized written document doesn’t capture the agreement is probably true in
many more instances than we might guess. Now out of this phenomena come three canons of
construction, of interpretation of treaties, that in fact we use commonly but unfortunately
the courts have increasingly ignored, in Indian law. But they’ve been very important historically.
What are they? That treaties should be construed as Indians would have understood them, that
treaties should be liberally construed in favor of the Indians, and that ambiguity in
treaty terms should be interpreted in favor of the Indians. And of course these canons
of construction were originally designed to ensure that that Trust relationship that Assistant
Secretary Washburn talked about would in fact be upheld. And that the United States would act quote
with utmost good faith unquote toward the Indians. The increased abandonment of any
reliance on these canons of construction in the federal courts says all too much and all
too loudly about what the federal courts have been doing recently and whether they are acting
with utmost good faith in their upholding of the Western side of what should be a bilateral
treaty relationship. Now, if you understand treaty relationships
internationally you know that a treaty isn’t self-
executing, a treaty doesn’t happen overnight and you write it down on paper and whatever’s
on the paper happens. The geopolitical balance, the forces arrayed on one side or another,
the leverage, affect whether the treaty is going to be enforced and unfortunately that’s
true of the evolution of the Anglo-American treaty relationship. If one looks at the British Colonial treaties
and then one looks at the Early American treaties, most of them are negotiated at arms’ length
between Great Britain initially and its representatives or the colonies and then later the United
States representatives, with tribes who had the power by allying with other colonial powers
in North America or with themselves to literally threaten the security of a colony, even of
the United States, until when? Until the war of 1812. Many of you know the
history of the War of 1812, you know a pan-Indian alliance, allied with the British was ultimately
defeated in the war. That was the last opportunity for that kind of alliance. That changed the
geopolitical relationship in North America. If you look at the treaty relationship after
the War of 1812, you see increasingly that the United States is more and more dictating
terms of treaties and less and less negotiating terms of treaties. The treaties are more and
more boilerplate, they look like each other, and less and less individually negotiated. Because the geopolitical situation has changed
and during that period, the subject I teach, Indian law, gradually moves from a species
of true international law, which is where it began, to increasingly a subject of domestic
policy which is not really the same thing as negotiated international law. So because the War of 1812 eliminates the
last possibility of a Native alliance with another European power to threaten real security,
the treaty relationship gradually changes. Now I want to make that point by looking at
its culmination. In 1868, three years before a statute passes that purports to but does
not in fact end Indian treaty making, two treaties are negotiated. The Treaty of Fort Laramie in 1868 with the
Lakota, Dakota, and Arapaho ending Red Cloud’s War and the Fort Sumner Treaty of 1868 with
the Navajo. The geopolitical relationship between the parties in these two treaties
couldn’t have been any different, any more different. The Lakota and allies had just
fought Red Cloud’s War successfully and the United States was suing for peace. The Lakota had not been defeated, they had
won. They had pushed the United States Cavalry out of Lakota country. In fact if conquest
is the basis of all right you should all be speaking Lakota today. But you’re not. Notice
they were in a strong negotiating position, in theory. By contrast, Kit Carson had rounded up the
Navajo, marched them 300 miles to the southern New Mexico, Bosque Redondo. The Navajo were
petitioning to go back to their homelands, they had been militarily defeated, they weren’t
at war at that point with the United States. You would think these treaties would look
very, very different, would you? If you’re looking at geopolitical relationships,
by contrast if you look at them closely they look very much the same. They’re mostly
boilerplate. They have very similar provisions, now if you look really closely enough, with
a microscope, you can see maybe that the United States agrees to pull its force out of Lakota
country to in fact make sure that Westerners aren’t settling in Lakota country. That the Lakota got some of what they wanted
out of it, but for the most part in the terms of the treaty, 90% of them are alike. So by
1868 for the most part, Indian bargaining leverage had disappeared. The treaties are
pretty much boilerplate terms. This by the way is a very famous picture, it’s I think
one of the few pictures, in fact the only picture I could find although there’s another
couple by the same photographer, of a treaty negotiation that was photographed. This is the Fort Laramie negotiation with
the United States commissioners sitting on chairs, the Lakota delegation as they would
have wanted sitting on the ground, facing the United States negotiators. That’s William
Tecumseh Sherman third from the left as part of the negotiating package. This is the first
page, and I think the last couple of pages are in the book, of the handwritten version
of that treaty. So by the last third of the 19th century,
in my view two out of the three essential elements of treaty making had disappeared.
Native agency and Native consultation in the formulation of Indian policy had virtually
been abandoned. Increasingly the terms of the treaty were coming down from Washington
and the treaty commissioners were going out to Indian country-
-to do what? To get the only one that marginally remained,
get them to sign on the dotted line, get consent. So consent still was thought to be a requirement
for a treaty and a constitutional requirement for the imposition of policy, but by the beginning
of the 20th century even the formal requirement of Native nation consent had disappeared from
the implementation of federal policy. How’d that happen? How did it come about
that this idea of agency, consultation, and consent with which the relationship began,
ended without any of them by the beginning of the 20th century? Well, again it’s the
federal judiciary, the font of many bad things that come to Indian country. In the late 19th century, you’ll recall
America was involved its first major colonial assertion of power over a whole lot of people
who had not signed up for the American project. We were involved in gunboat diplomacy in the
Caribbean and Latin America. When Colombia wouldn’t agree to the Panama Canal we just
took it away from them and formed the country of Panama so we could build a canal.
If that’s not colonialism I don’t know what is. We overthrew the indigenous monarchy,
a recognized republic, the Republic of Hawaii, with which we, Great Britain, and many other
nations had treaty relationships. And then after the President declared that overthrow
unauthorized and illegal, the people who did it handed Hawaii over to the United States
and said we’ll take it. And of course it becomes a state in the 1950s.
So the late 19th century is the American colonial expansion period. Well, that’s when treaty
making really comes to an end. It’s often thought that it comes to an end with this
statute, now found in 25 USC, section 71 which basically says that no Indian Nation or tribe
within the United States shall be acknowledged or recognized as an independent nation, tribe,
or power with whom the United States may contract by treaty. And then it goes on to provide but nothing
shall abandon the prior treaties. Now, it’s often thought that treaty making ended in
1871 but it didn’t. This statute was the result of a fight between the House and Senate
over who makes Indian policy. Why? Indian policy was then expensive. You had to pay
annuities, you had to pay rations, you had to send doctors out, you had to send agriculturalists
out. And who begins appropriations bills by custom?
The House. But who ratifies treaties? The Senate. Is the House involved? No, not with
treaties. So what did they do? Well, the House held up Interior’s appropriations for a
couple of years in order to get a say in this whole thing and the result was this statute. But the statute wasn’t intended to end negotiations
with tribes, which is what many people think it did and was intended to do. Not at all,
wasn’t intended to say tribes weren’t sovereign, there’s too much focus on the
beginning part instead of the part about making treaties with them. All that happened after
the statute was passed was that we sent treaty commissioners out to tribes, we call them
treaty commissioners, and they got agreements, agreements with tribes. And then what happened? We bring them back
to Washington and we ratify them as statutes. What’s the advantage of ratifying them by
statutes? They go through the House as well as the Senate. So if you look closely at the
way the Dawes General Allotment Act of 1887 was implemented, many of the Supreme Court
cases talk about this in the reservation diminishment area, there’s almost invariably an agreement
that was negotiated with the tribe. What’s that? It’s really a treaty, from
the tribe’s standpoint it’s a treaty. But it was ratified by a statute. You think
about what happened that took the Paha Sapa, the Black Hills, from the Lakota, the Manypenny
Commission went out there, they tried to negotiate. They only got 10% of the Lakota to agree,
but they brought it back and said see we got agreement, and they passed it as a statute. In fact that may be the very first case, the
taking of the Black Hills, where the United States did something without true consent
but purported consent, that nevertheless was passed by a statute. Now it turns out ultimately
these agreements, because they were passed by statute and went through both houses of
Congress, soon started getting amended in Congress. So wait a minute, you’ve got an agreement.
Usually if there’s an agreement you just approve it. But the House wanted changes,
did they go back and negotiate with the tribe? No, they just amend it as it goes through.
Well, wait a minute, the whole idea of agency, consultation, and consent gets ameliorated
in the form of the ratification. Now, any of you are familiar with the history
of the fast track trade agreements. This will sound very, very familiar. It’s the same
problem in a modern context where they try to amend international agreements that are
being ratified by the Congress. The final blow to even the consent idea comes in a case
that a claims court judge once called the Dred Scott of Indian Law. Lone Wolf v. Hitchcock, decided in 1903, which
holds what, holds that Indian consent is not required to abrogate Indian treaty rights.
Well, wait a minute if we don’t need consent, then do we need to negotiate anymore? We’ve
already eliminated agency and consultation. Virtually overnight, true treaty making ends
for at least 30 or 40 years after Lone Wolf. Now notice what I just said, it’s not the
1871 statute that ended treaty making. It’s the United States Supreme Court in a decision
made in 1903. Here we have Lone Wolf, Kiowa or Comanche, I can’t remember which, Kiowa
I think, who brought this case to try to thwart the implementation of allotment on his reservation
unsuccessfully and wound up creating a precedent that was even more devastating than the allotment
that he was trying to thwart. So, I think we can now begin to see why it’s
not surprising that in the 20th century, Natives would look back at treaties as sources and
fonts of rights. Even though the treaties were also the source of dispossession under
the Doctrine of Discovery. Why would they do that? Because at least with treaty making,
true treaty making, not what we had by 1870, there was tribal agency, there was tribal
consultation, and there was true and informed tribal consent. All three of which were gone by the 20th century
as what we now call the Beltway, as Washington D.C. increasingly dictated Indian policy to
Indian country instead of consulting Indian country about its relationships within Indian
country. But the story’s not entirely bleak. As Assistant Secretary Washburn adverted to.
We’re actually seeing a return of treaty making, just like in 1871, agreements weren’t
treaties, we don’t call the current things that we’re doing treaties either. But that’s
exactly what they are, they’re sovereign to sovereign agreements in which the tribes
have what? Agency, they have, they’re consulted, and they have consent. Now this began, and it’s often overlooked,
with a proposal that was part of the original Indian Reorganization Act that never got enacted
by Congress. The Indian Reorganization Act was much broader in Collier’s proposal than
what Congress enacted. One of the reasons Collier proposed the recognition of tribal
governments through the constitution process is he was proposing to contract with them
to have them manage the Indian service. What did I just say? Collier proposed 638
contracting in the original Indian Reorganization Act. Congress never passed the contracting
part of Collier’s proposal, it just passed the recognition of the government’s part.
But that was just a means to the end of the contracting.
Ultimately when Public Law 638 was passed in the 1970s it spurs the beginning of a rejuvenation
of sovereign to sovereign agreements in which the tribes have agency, they can decide to
take it or not, they can decide what they want to do. They’re consulted about the
relationship, and the policy doesn’t go into effect unless they agree, consent. Notice 638 contracting creates treaties. The
hundreds of documents that Assistant Secretary Washburn was adverting to are all modern treaties.
Treaty making is back. Other examples of modern treaty making: tribal state gaming compacts.
I know a lot of the tribes complain about it, I know it’s an important burden on some
of the tribes’ gaming desires. But what are they? They’re negotiated agreements
between an Indian Tribe and a sovereign state. Yes, the federal government requires them.
Yes, you can’t game in class three without them, but they’re treaties. They’re treaties
with a state. So now we have a new form of treaty, not just treaties with the nation
but treaties with states and local governments and we have more of them. Think about what happens when these water
cases that Assistant Secretary Washburn talked about are settled. Parties get together at
a table, they decide to work out a relationship, they all make compromises, they’re consulted,
they’re at the table, they have agency. And ultimately they consent. Many of these
settlements – water law settlements, Eastern land claim settlements that recognize say
Mashantucket Pequot, these are all modern treaties. They’re treaties made ancillary to, what,
to litigation. The litigation forced the treaty making, they’re still treaties. The fishing
rights settlements, particularly in Michigan where it wasn’t so much litigated after
initial litigation as it was negotiated. All treaties with the state of Michigan, the tribes,
and the federal government are involved in many of these. Increasingly tribes and states are getting
together on tax agreements, again, what are these? They’re treaties. Cross-deputization
agreements with counties, sometimes with states – a form of treaty. So we’ve witnessed
an interesting curve in the policy of federal Indian law. Negotiation for the first 300
years, an effort at colonial imposition of policy on tribes for maybe 100 years, a little
less. And now we’re witnessing a return of Indian
treaty making. I’ve already made that point. Here we have Governor Andrew Cuomo signing
an agreement with the Oneida Nation compromising many of the disputes between the two parties
last year. I assume at the very head of that document, I’ve not seen it, it doesn’t
say treaty. It probably says agreement. Probably says
memorandum of understanding. But what is it? It’s a modern day treaty. And of course,
why are we doing all of this? We’re doing it for the seventh generation. For those little
powwow toddlers’ future, and the future of her children, and her children’s children,
and many others out to the seventh generation. So that the very same powers her community
enjoyed when the British first contacted Native Algonquian and Iroquoian communities in the
northeast, her descendants will enjoy in the future. And they will be involved in a sovereign
to sovereign relationship that fully has what? Agency, consultation, and consent. I thank
you for your time. Questions?
[inaudible] Great show. Thank you Professor Clinton for that insightful and very informative
presentation.

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  1. Dig ! excellent talk by Robert N.Clinton, he opened my eyes to many of the topics that I have been wondering about since I read Michael Lieder & Jake Page book " Wild Justice:The People of Geronimo vs. The United States, I just watched this on American History – C-Span, Right On !

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