Indian Treaties: Exploring The Constitution's Impact And Legacy

Treaties are legally binding contracts between sovereign nations that establish their political and property relations. Treaties between Indian tribes and the United States confirm each nation's rights and privileges. The United States Constitution empowered Congress to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Hundreds of treaties were entered into between tribes and the United States between 1778 and 1871. In 1871, Congress prohibited the federal government from making new treaties with American Indian tribes.

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Treaties as legally binding contracts

Treaties are legally binding contracts between sovereign nations that establish those nations' political and property relations. Treaties between Indian tribes and the United States confirm each nation's rights and privileges. In most of these treaties, the tribes cede title to vast amounts of land to the United States in exchange for protection, services, and, in some cases, cash payments. However, they also reserve certain lands (reservations) and rights for themselves and their future generations.

The United States Constitution holds that treaties "are the supreme law of the land." This means that treaties made with Indian tribes have the same force now as on the day they were signed and do not expire over time. The trust relationship between Indian tribes and the United States government is well-established in law, and the reserved rights of the tribes have been litigated many times, even going before the Supreme Court on several occasions.

The rights and privileges outlined in treaties with Indian tribes vary but often include land boundaries, hunting and fishing rights, and guarantees of peace. For example, in the Treaty of New Echota, a Cherokee chief agreed to relocate in exchange for cash payments. Unfortunately, the majority of the Cherokee tribe did not agree with this treaty, and under the threat of armed force, the tribe was forced to relocate west of the Mississippi River. This event became known as the "Trail of Tears," during which thousands of Cherokees died en route due to brutal conditions.

It is important to note that while treaties are legally binding, the United States government has historically used them as a means to displace Indians from their tribal lands. This mechanism was strengthened with the Removal Act of 1830, which resulted in the removal of nearly 50,000 eastern Indians to Indian Territory and the opening of millions of acres of land for white settlers. In some cases, the government even violated treaties and Supreme Court rulings to facilitate the spread of European Americans westward.

In 1871, Congress enacted a law prohibiting the federal government from making new treaties with American Indian tribes. However, this law did not invalidate or modify any "obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871." Since then, federal and state governments have continued to enter into contracts and agreements with tribes on various topics, including healthcare services, education, and economic opportunities.

Tribal rights to resource use

The US Constitution empowered Congress to "regulate commerce with foreign nations, and among the several States, and with the Indian tribes". Treaties between the US federal government and American Indian tribes set out the duties and responsibilities that the federal government owes to a particular tribe. Treaties can cover issues such as land boundaries, hunting and fishing rights, and guarantees of peace.

In the early 19th century, land-hungry Americans began to move into the territories of Indian tribes, and white settlers petitioned the federal government to remove them. This led to the Indian removal campaign, which saw the use of treaties as a means to displace Indians from their tribal lands. Jackson, who was President at the time, signed into law almost seventy removal treaties, which moved nearly 50,000 eastern Indians to Indian Territory and opened up millions of acres of land to white settlers.

In 1871, Congress enacted a law prohibiting the federal government from making new treaties with American Indian tribes. This law did not, however, invalidate or modify any obligations of treaties made prior to this date. Since 1871, federal and state governments have continued to enter into contracts and agreements with tribes on multiple topics, including healthcare services, education, and economic opportunities.

The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources. The US Supreme Court has affirmed that the US government has the right and authority to govern American Indian tribes by acts of Congress, rather than by treaties.

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over criminal and civil controversies involving Indians on Indian lands. This law has been considered unfair by many, as it imposed a system of laws on the tribal nations without their approval.

The preservation of the distinctive connection between indigenous and tribal peoples and the natural resources they have traditionally used is fundamental to the effective realization of the human rights of indigenous peoples. The cultural rights of indigenous people may encompass traditional activities related to natural resources, such as fishing or hunting. The Inter-American Court has established that there is a violation of Article 21 of the Convention when the state grants concessions that damage the environment and have a negative impact on the lands and natural resources that indigenous and tribal peoples have traditionally used.

Hunting, fishing, and gathering rights

The United States Constitution, in Article II, outlines the powers of the executive branch, including the President's role in making treaties with foreign governments and Indian tribes. This article forms the basis for the federal government's authority to enter into treaties with Native American tribes, which have been crucial in shaping the relationship between the US government and tribal nations.

While the Constitution does not specifically mention hunting, fishing, and gathering rights for Native Americans, these privileges have been addressed in numerous treaties and agreements between tribal nations and the US government. These rights are inherent to Native American culture and have been traditionally practiced for centuries.

One of the earliest treaties to address these privileges was the Treaty of Canandaigua in 1794 between the US and the Six Nations of the Iroquois. This treaty acknowledged the right of the Iroquois to hunt and fish in their ancestral lands and established a framework for future agreements. Similar provisions were included in subsequent treaties, such as the Treaty of Greenville (1795) and the Treaty of Fort Laramie (1851), which guaranteed tribal nations exclusive hunting rights within specified territories.

However, as white settlement expanded westward, conflicts over these rights increased. The US government often failed to uphold its treaty obligations, and Native Americans faced increasing restrictions on their ability to hunt, fish, and gather. This led to significant tensions and, in some cases, violent conflicts. In response, the US government enacted laws and policies, such as the Indian Intercourse Acts of 1802 and 1834, which attempted to regulate trade and interactions between settlers and Native Americans, but often fell short of protecting tribal rights.

Today, hunting, fishing, and gathering rights for Native Americans are still recognized and protected by federal law. The Indian Civil Rights Act of 1968 guarantees certain inherent rights, including "the right to hunt and fish." Additionally, the Supreme Court has affirmed these privileges in cases like Menominee Tribe v. United States (1968), where the Court upheld the hunting and fishing rights of the Menominee Tribe, even after the termination of their tribal status. These legal protections ensure that Native Americans can continue their traditional practices and maintain their cultural heritage.

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Land boundaries

The Constitution of India contains provisions that address the formation of new states and the alteration of existing states' areas, boundaries, or names. Article 3 of the Constitution empowers the Parliament to make laws regarding these matters. It allows for the formation of a new state by separation of territory from a state, the uniting of multiple states or parts of states, or the increase or diminution of a state's area.

The process of altering the boundaries of a state is outlined in Article 3 and involves several steps. Firstly, a representation must be made to the President by a majority of the representatives of the territory in the Legislature of the state from which the territory will be separated. Alternatively, the Legislature of the state whose boundaries will be affected must pass a resolution in this regard. The President then refers the proposal to the Legislature of the affected state for their views and consent. This process ensures that the affected state has a say in the matter and that their opinions are considered.

The Parliament attempted to utilise Article 3 in 1958 to transfer four enclaves to Pakistan and part of the Berubari Union, previously part of West Bengal, as part of the Nehru-Noon Agreement. This agreement aimed to resolve a boundary dispute between India and East Pakistan, which had Indian and East Pakistani enclaves within each other's territories due to the historical presence of the princely state of Cooch Behar.

The Constitution (100th Amendment) Act, 2015, is another significant moment in India's constitutional history regarding land boundaries. It addressed one of India's longest-running boundary disputes, making changes to the opening provisions of the Constitution, including Part I and the First Schedule, which deal with the Union and its territory.

Guarantees of peace

Treaties between the US government and American Indian tribes are legally binding contracts that establish the nations' political and property relations. Treaties can cover issues such as land boundaries, hunting and fishing rights, and guarantees of peace.

The US Constitution holds that treaties "are the supreme law of the land". Treaties between Indian tribes and the United States confirm each nation's rights and privileges. In most treaties, tribes ceded title to large amounts of land to the US government in exchange for protection, services, and, in some cases, cash payments. However, they also reserved certain lands (reservations) and rights for themselves and their future generations. Treaties do not expire with time, and the reserved rights of the tribes have been litigated many times, even going before the Supreme Court on several occasions.

In the early 19th century, land-hungry Americans began moving into the coastal South and towards what would later become the states of Alabama and Mississippi. As Indian tribes living there appeared to be the main obstacle to westward expansion, white settlers petitioned the federal government to remove them. This resulted in the Removal Act of 1830, which was used as a mechanism to displace Indians from their tribal lands.

By the end of his presidency, Andrew Jackson had signed into law almost seventy removal treaties, which led to the removal of nearly 50,000 eastern Indians to Indian Territory and opened up millions of acres of land for white settlers. The Cherokee Nation resisted, challenging in court the Georgia laws that restricted their freedoms on tribal lands. In 1831, Chief Justice John Marshall declared that "the Indian territory is admitted to compose a part of the United States", and affirmed that the tribes were "domestic dependent nations". Despite this, the Cherokee tribe was forced to relocate west of the Mississippi River under the guns of federal troops and Georgia state militia.

In 1871, Congress enacted a law prohibiting the federal government from making new treaties with American Indian tribes. However, this did not invalidate or modify any obligations of treaties made before this date. Since then, federal and state governments have continued to enter into contracts and agreements with tribes on various topics, including healthcare services, education, and economic opportunities.

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