NATIVE TREATY RIGHTSNATIVE TREATY RIGHTS

““Supreme Law of the Land” Supreme Law of the Land” (U.S. Constitution (U.S. Constitution

Article VI )Article VI )

Dr. Zoltan GrossmanDr. Zoltan GrossmanFaculty member in GeographyFaculty member in Geographyand Native American Studies,and Native American Studies,The Evergreen State College, The Evergreen State College,

Olympia, WashingtonOlympia, Washingtonhttp://academic.evergreen.edu/g/grossmaz

Treaties for cessions Treaties for cessions (Land transfers to U.S.)(Land transfers to U.S.)

• Cessions traded land for peace (prevented war)

• U.S. benefited from ceded lands & resources

• If abrogate treaties, give back land? Pay for resources?

Usufructuary (Use) RightsUsufructuary (Use) Rights

• Tribes could not survive on reservation resources alone,

so treaties reserved use rights on ceded lands

-- Hunting, fishing, gathering

• Similar to use rights after selling private property – Access to fruit tree, boat landings, road, etc.

• Some treaties further specified that services or payments were to be provided to the tribe – Unequal to land’s value

Treaty annuity payments to OjibweTreaty annuity payments to OjibweLaPointe, Madeline Island, WI 1852LaPointe, Madeline Island, WI 1852

Treaties are agreements between sovereign nations.

371+ treaties signed by U.S. & Native nations to 1871, implied recognition of sovereignty.

Only federal government can negotiate a treaty;

State laws cannot impinge

TreatiesTreaties

Treaties removed rights. They did not grant them. Tribes sold land to U.S. under conditions.

Rights to control ceded lands taken away.

Tribes retained some rights practiced for centuries.

Reserved Rights DoctrineReserved Rights Doctrine

Accounts of treaty talks, translations often ambiguous

Historical inquiry into context of culture & economy

Ambiguities must be resolved in favor of Indians.

Treaties must be interpreted and construed as Indians would have understood them.

Canons of ConstructionCanons of Construction

Violations of treaty rightsViolations of treaty rights

• Ward vs. Race Horse decision, 1896– Statehood nullified treaties

• Hunting/fishing for sport rather than food in early 1900s (T. Roosevelt)

• “Conservation” of resources used to curtail tribal rights

• Treaty rights practiced in secret; Confiscations, jail terms if caught

Washington “Fish-Ins,” 1960sWashington “Fish-Ins,” 1960s

• Treaties of 1854-55 guaranteed fishing rights

• Returning vets asserted rights,

called “poachers”

• Attracted national support for Puget Sound tribes

• Violent reaction from police,

local vigilantes

BoldtBoldt Decision, 1974 Decision, 1974

• WA tribes entitled to a share

of fish (50%) “in common”

• Can fish in “usual and accustomed” places

• Tribes need a “modest”

standard of living

• Belloni decisions for Columbia River tribes

Backlash to Backlash to BoldtBoldt

• Backlash from sportfishermen, commercial fishermen

• Steelhead/Salmon Protective Assoc. and Wildlife Network (S/SPAWN)

• Joined reservation whites opposing tribal jurisdiction

• Interstate Congress for Equal Rights and Responsbilities

National Anti-Treaty MovementNational Anti-Treaty Movement

• Spread from Northwest to Great Plains to Midwest

• Overlap with national “Wise Use” movement; some contact with right-wing extremist groups

(Ryser)

• Citizens Equal Rights Alliance (CERA) national network strongly denies racism

www.citizensalliance.org

Definitions of PlaceDefinitions of Place

• SOCIAL Defines place as belonging to one ethnic or racial group

(“Law of the Blood”)

• TERRITORIAL Defines place geographically as home for all who live there (“Law of the Soil”) “Ethnic cleansing” in early ‘90s to match ethnic, state boundariesFlag of Bosnia (multiethnic state)

Flag of Bosnian Serbs (ethnic)

Geographies of Exclusion (Sibley)Geographies of Exclusion (Sibley)

• “Insiders” belong in the place

• “Outsiders” are transgressing in the place

• “Insiders” set up boundaries, rules to exclude outsiders

• Examples: Gypsies, Homeless, Ethnic minorities, etc.

Indians as “Outsiders”Indians as “Outsiders”• Native Americans “belong” in place (on reservation)

• Spearfishers “transgressing” into non-Indian social space

• Whites “border towns” zones of social exclusion

• Wisconsin chants: “White Man’s Land,” “Indians Go Home”

Anti-Treaty Movement:Anti-Treaty Movement:“Equal Rights for Whites”“Equal Rights for Whites”

• Interpretation of civil rights

as individual rights

• Whites victims of

“Red Apartheid”

• Martin Luther King would

have opposed treaties?

• Indians granted “special rights” to resources

• Tribes are pawns in federal “land grab”

• Fish & game endangered by “rape” of resources

• “Sport” is higher use of resources than “harvest”

Anti-Treaty Movement:Access to natural resources

Anti-Treaty Movement: Anti-Treaty Movement: Economic dependencyEconomic dependency• Indians opposed for being on welfare

– “Welfare Cadillac” message

• Indians have “free” housing,

education, medical care, cash

• Indians use tax $$, “don’t pay taxes”

• Indians opposed for getting off welfare

Pro-Treaty MovementPro-Treaty Movement• Response to displays of

racism by anti-treaty groups

• Witnessing of anti-Indian

harassment and violence

• Public education on history,

culture, resources

• Build environmental and economic

common ground with non-Indians

Shared identities in conflictShared identities in conflict

• Both Native & non-Indian fishers

depend on resources for identity

• Both highly value outdoors

for cultural lifestyle

• Both relatively poor;

mom & pop businesses

closing for corporate chains

• Both independent rural people

often at odds with government

Anti-Treaty Movement:Anti-Treaty Movement:“Equal Rights for Whites”“Equal Rights for Whites”

• Interpretation of civil rights

as individual rights

• Whites victims of

“Red Apartheid”

• Martin Luther King would

have opposed treaties?

• Indians granted “special rights” to resources

• Tribes are pawns in federal “land grab”

• Fish & game endangered by “rape” of resources

• “Sport” is higher use of resources than “harvest”

Anti-Treaty Movement:Access to natural resources

Anti-Treaty Movement: Anti-Treaty Movement: Economic dependencyEconomic dependency• Indians opposed for being on welfare

– “Welfare Cadillac” message

• Indians have “free” housing,

education, medical care, cash

• Indians use tax $$, “don’t pay taxes”

• Indians opposed for getting off welfare

Pro-Treaty MovementPro-Treaty Movement• Response to displays of

racism by anti-treaty groups

• Witnessing of anti-Indian

harassment and violence

• Public education on history,

culture, resources

• Build environmental and economic

common ground with non-Indians

Shared identities in conflictShared identities in conflict• Both Native & non-Indian fishers

depend on resources for identity

• Both highly value outdoors

for cultural lifestyle

• Both relatively poor;

mom & pop businesses

closing for corporate chains

• Both independent rural people

often at odds with government

“When America says something, America means it, whether a treaty, or an agreement, or a vow made on marble steps. Great nations, like great men, keep their word.”

-- President George Bush, Inaugural address, 1989