Sovereignty and the mismanagement of Treaty-interpretation
The NCAI sought to codify* Indian Rights by doing away with the accumulated policies and decisions that separated twentieth-century NA’s from their original treaties, documents understood legally to be “the law of the land.” Both Indian self-government and relations with the federal gov’t would be defined not by federal edicts and decisions, but by mutually agreed-upon treaties.
Treaty provisions are interpreted as establishing both a “trust-relationship” between the Tribes/Nations and the US Gov’t, and as “domestic dependent nations”. The trust-relationship casts Tribes/Nations as wards in relation to a government guardian, while the domestic dependent nations status establishes the Tribes/Nations as sovereign entities in their own right.
As US Gov’t Indian Policy shifted from assimilation to cultural pluralism to termination to self-determination, these two established tenets of treaty-interpretation—dependents as wards, and independence as autonomous Tribes/Nations—have been emphasized in varying degrees.
Assimilation and termination sought to integrate “wards” into American society and therefore ignored the standing establishment of Indian Sovereignty.
The Indian New Deal, termination, and the ideal of self-determination stressed the independent and corporate nature of Tribes. If the Tribes/Nations could assume their own unique social status, according to these latter policies, the guardian-ward relationship would gradually fade away in favor of tribal self-government.
Indian People today continue a long-standing attack upon the either-or approach Americans traditionally take when confronted by these apparent contradictions. Argued are two points: The nature of tribal-federal relationship cannot be defined by only one party… The second point argues that tribal-federal relations must include a recognition of both federal trust responsibility and tribal sovereignty.
It is significant to make note of the fact that in signing a given treaty with a given Tribe, the very act of signing the treaty itself establishes the sovereign nation status of both parties—the United States may not enter into, nor has congress the authority to ratify, any treaty made with a non-sovereign nation.
It is clear, too, that one-sided interpretation of said treaties has resulted in opportunistic either-or approaches to relations with the Tribes/Nations, and that individual rulings, edicts, and courts-decisions has only muddled understandings of the original treaties—here again, providing an opportunistically oriented approach to dealings with the Tribes/Nations. Throughout this ‘one-sided interpretation of treaties’, countless treaty-violations and incalculable injuries have resulted against the Indian Tribes/Nations.
Federal Courts’ Decisions have repeatedly abrogated treaties in whole or in part, without regard to stipulated treaty-obligations or mutually agreed-upon alternative-settlements with the Indian Nations. This is nothing less than an enormous black mark upon the United States’ record of human rights. That the United States has continued to repeal treaty-obligations, without any recourse left to the Indian Nations, is in itself an abrogation of the principle that each party has the legal power to hold the other to its agreed-upon terms—a point inherant in the making of treaties in the first place. Federal/Congressional denial of this legal tenet is unexcusable.
*The following, established by the NCAI, are basic guidelines to ammend current status of treaties/their interpretations:
1) Restoration of Constitutional Treaty-making Authority—which in effect would restore Federal Recognition of the Tribes as Independent Political Entities.
(2) Creation of a Commission Authorized to make New Treaties: this position would reinforce existing treaties, and establish an agreement on national commitment to the future of Indian People.
(3) Creation of a Commission whose proprietary responsibilities would be the Review of Treaty Commitments and Violations. Recognition of the greater need for institutionalized protections that reduce violations and minimize the possibilities for attacks on Indian rights will remove the limitations of treaty-based law suits.
*Since 1962, Indians have paid more than $60,000,000 in attorney’s fees, and yet have been virtually imprisoned in the nations’ courtrooms in being forced to define their rights…
(4) Resubmission of Un-ratified Treaties to the Senate is a must: many Tribes, especially in California, have made treaties with the federal government that were never ratified—Indian Leaders desire to formalize the federal governments’ treaty-status with each of these tribes.
(5) All Indian Nations are to be governed by Treaty-Relations: This serves as a reaffirmation of points one, two, and four that would cover any possible exceptions to those points…
(6) Mandatory Relief against Treaty-Violations would, in effect, prevent the use of legal delaying-tactics via application of automatic injunctions against non-Indian violators whenever the Tribes petition for relief from treaty-violations.
(7) Judicial Recognition of Indian Rights to Interpret Treaties: this would require the Supreme Court to hear Indian Appeals arising from Treaty-Violation Cases.
(8) Creation of a Congressional Joint Committee on Reconstruction of Indian Relations; this would restructure Congressional Committees dealing with Indian Affairs into a single entity.
(9) Land Reform and Restoration of a Native American Land Base. A base of 110 million acres to be established, with permanent non-alienable status. A consolidation of resources, the termination of leasing of Indian Lands, and eradication of non-Indian land titles on reservations.
(10) Restoration of Rights to Indians Terminated by Enrollment, and Revocation of Prohibitions against “Dual Benefits”. Blood Quantum qualifications for tribal membership poses few problems for people with successive non-Indian parents; however, Blood Quantum qualifications often deny tribal membership to full- or mixed-blood Indians with parents from different tribes.
(11) Repeal of state Laws Enacted Under Public Law 280: this provision would eliminate Tribal-State Jurisdictional and Sovereignty disputes by removing state controls over Indian Land.
(12) Resumption of Federal Protective Jurisdiction over Offenses Against Indians, in response to the continued inability of state and local court-systems to convict non-Indians of crimes against Indian People—in effect, making such crimes a federal offense; further, a Federal Indian Grand Jury would be empanelled with powers to indict violators.
(13) Abolition of the Bureau of Indian Affairs; based on the conviction that the BIA can never escape its past, a new agency will be created, made to operate according to guidelines laid down in new treaty negotiations. The need to remedy the breakdown in Constitutionally-prescribed relations between the United States and the Indian Nations is imperative.
(14) Indian Commerce and Tax Immunities: in effect, removing all tribes from state-taxation authority. Reservation taxes would be paid to the Tribes and to the Federal Government.
(15) Protection of Indians’ Religious Freedom and Cultural Integrity; in spite of the fact that Congress passed the American Indian Religious Freedom Act in 1978, the act does not offer such protections.
(16) Issues of Health, Housing, Employment, Economic Development, and Education are to be addressed with increased funding and better management of a variety of programs.
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