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tv   History of Native American Treaties  CSPAN  November 27, 2014 10:46pm-12:02am EST

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montana senator jon tester. it's about an hour. >> now, it is my great pleasure to introduce united states senator jon tester. we are honored today by the presence of senator tester who will give opening remarks. senator tester a third generation farmer from big sandy, montana, and a former teacher, is a senior u.s. senator from montana. following election to the montana senate in 1998 senator tester rose to minority whip and minority leader before becoming president of the state senate in 2005. he was elected to the u.s. senate in 2006 and again in 2012. senator tester is a chairman of the indian affairs committee and also serves on the veterans affair, homeland security, indian affairs, banking, and appropriations committees and in
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the u.s. senate he is an outspoken voice for rural american and advocate for small businesses. he's a champion of american indian nations pushing for improvements in education, health care and housing, and working to alleviate poverty. please join me in welcoming the honorable jon tester, the united states senator. >> well, thank you, tim, for that kind introduction. thank you for the warm welcome. it is great to be here today to celebrate the opening of the nations to nation exhibit. this exhibit is a tangible reminder of the federal government's relationship with sovereign tribal nations of this country. it's also a reminder of the moral and legal obligations that the united states has to honor and uphold our treaties with indian countries. the united states has 566 recognized tribes as sovereign
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entities with their own governments and their own laws. sovereign is a key word, a treaty is formal, written agreements between sovereign states. and the constitution clearly states that a treaty is a supreme law of the land. the documents shown in this exhibit may be on parchment or on hide and displayed behind glass cases but don't mistake them for relics of the past. these are living, breathing documents that inform our policies to this very day. history shows that the newly formed government of this country learned a lot from its relationship with indian country. the early leaders of this nation base many of the guiding principles that we cherish today on the enlightened democratic tenants of these tribal governments. one of the very first treaties
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entered into by the united states government and a tribal nation was the treaty of kanadagwa. that document is on display here and i encourage my senate colleagues to take a look. it's a reminder of long lasting bonds between united states and indian country. let's be clear, there is no time limit to the legitimacy and impact of these documents. they don't have an expiration date and they do not become less relevant over time. just as a constitution and the bill of rights, they are living, guiding documents. many of the treaties signed by the tribes were in exchange for large portions of their lands. often millions of acres. they were negotiated by the tribes in good faith in exchange for the promise of support, support that would address their citizens' health, education, and
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welfare. often these tribes gave up some of their best territories and in exchange the federal government made promises through these treaties. to provide for and protect the tribes and to work with them to especially sure the survival of their culture. the tribes often signed the treaties and made sacrifices as a last option. done with the intent to benefit their people and their descendents but history shows the relationship between the united states government and indian country has gone through several cycles, some good, some not so good. over time we have seen both destructive and deinstructive. some of the worth came during the tenure of the andrew jackson and the removal of the indian act. that act devastated so in tribes particularly those driven across the country in what is known as the trail of tears. today we recognize our commitment and our debt to the tribal nations of this country. the indian affairs committee exists because our government's promise to indian country. our mission is to uphold these treaties and assure tribes not only survive but thrive. tribal treaties establish the
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service of indian affairs and my committee, the indian affairs committee will continue to push for better health care delivery in indian country, better research and our treaty and obligations of demand nothing less than nothing. my committee remains vigilant oversight over the agency's dedicated to providing services to the country. during my tenure, we have had tough discussions with the indian health service over delivery of health care services. those final payments are being sent to members as we speak here today.
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moving forward, we will continue to fight for the rights of tribes as we near the end of this session of congress. we still u have a number of big issues on the table, and i'm working with indian country and my colleagues in the senate to address them. one of the greatest assets is the bipartisan support for indian country. my colleagues on the committee are committed to ensuring that we honor our treaties, compacts and other agreements with the tribes. we're working together to help improve the lives of all native americans and that kind of bipartisanship is rare in today's congress. i'm honored to be here today, and i hope people will leave with a better understanding of the relationship the united states has with the indian tribes of this country. i hope they understand the treaties they see behind this glass e remain vital and relevant documents, both for existence today and for the future of indian country in this great country.
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thank you all very, very much. [ applause ] >> thank you, senator tester, for your eloquent and honorable remarks. it is now my great pleasure to introduce kevin washburn, assistant secretary for indian affairs at the u.s. department of the interior and an enrolled member of the chicksaw member of oklahoma. in addition to carrying out the trust responsibilities regarding the management of tribal and individual indian trust lands and assets, the assistant secretary is responsible for promoting the self-determination and economic self-sufficiency of the nation's 566 federally recognized american-indian and native tribes and their approximately 2 million enrolled
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members. a former law school professor and dean, washburn also previously served as general council for the gaming commission and as an assistant to the united states attorney in albuquerque, new mexico. he is a well known scholar of federal indian law. among his other books and articles, he's a co-author and editor of the league treaties in the field of indian law, handbook of federal indian law the 2012 edition. we are honored today by the presence of the assistant secretary washburn, who will provide introductory remarks. join me in welcoming the honorable kevin washburn. [ applause ] >> thank you, all, it's really wonderful to be here. i want to tell you that i was inspired to be here.
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i was thrilled to be invited. i was trying to figure out what to talk about, but. i read this book. this is the exhibit book. it's absolutely terrific. it's beautiful, among other things, but it's very thoughtful and inspiring. and the beautiful thing about it is long after this event exists in our memories, the book will continue to exist. it's full of insightful research and great thoughts from a number of my friends and great scholars including matthew fletcher and bob clinton. a masterful historical essay by kevin, who should be known as a great historian, i think, and others. also one of my colleagues is featured in the book. and there's great pictures in the book too. really a delightful picture of a young billy frank jr., which made my heart smile when i saw that. and also a slightly older forest
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gerard and that was really neat as well. two heroes that we have lost in the past year. so it's just a beautiful book. i want to thank senator tester for going first. in a discussion of treaties, a symposium on treaties might not be a welcome place for a federal official, so since you went easy on him, i'm willing to be here. i'm very grateful to him. he also didn't beat up on me. but rest assured he said he was hard on the bureau of indian affairs as well. he does take his role seriously to give oversight. so in some eyes, treaties with the federal government might be a touchy subject for someone like me. treaties, of course, were instruments of destiny.
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they legitimized the settling of the united states and gave it legal cover. without federal treaties with indian tribes, there might not be a western united states. in sum, there would be no united states as we know it today. and in some respects, that's a tragedy for indian tribes. but treaties are symbols of something very positive too, and in the book, professor clinton describes the central irony in indian life. for all the evil associated with treaties, treaties are evidence of a unique relationship and a great source of pride to indian people and especially those tribes with treaties, which includes mine of oklahoma. these treaties have been broken perhaps more often than they have been kept, of course, but they are an important symbol of a standing in the american pollty that's truly unique and a reflection of important legal rights. in my office, i have more than once had tribes come in and talk
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to me about their treaty rights when their lawyers know they don't have a treaty. not all tribes have treaties. nevertheless, they will talk to me about their treaty rights. and as clinton notes in the book, indeed, the words have come to mean something much bro broader than just treaty rights. they have come to mean indian rights, to a great degree. as susan and phil explained in the book, it's a very complicated history, our relationship with treaties, and to some of us it's a very personal history. in my real life as a law professor, i'm not just a former law professor. i'm a current law professor on leave. that's the life that i will go back to no later than january 20th, 2017. not that i'm counting the days. i'm not an expert as a law professor on treaties, but they are like constitutions.
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just as the constitution defines the governmental relationship between the united states and each of the states, it's really tre treaties that define the relationship between the united states and each of the tribes. and indeed treaties are the supreme law of the land. like federal constitutional rights, federal constitutional rights exude a broader meaning than just the words on the page. tribal treaties also have a broader influence. and in this area, the area of treaties s known as the trust responsibility. and this extends even beyond treaties and beyond treaty tribes to all the tribes. that's perhaps why tribes come to talk about their indian rights as their treaty rights. one is tempted to think that treaties are unimportant today, it is their role as the backbone of this relationship of the trust responsibility that continues their importance. that's one of their continuing reasons for being. and one only needs to read the
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essays in this book on treaty fishing rights to see the importance of treaties in relatively modern times for protecting indian rights. it's an inspirational story. i do a lot of thinking about treaties in my current job. in february i was at the united nations testifying on behalf of the united states in a treaty defense. the united states has international treaties, of course, and we go -- the state department usually sends a delegation to defend the united states on its performance of treaties. one of those -- these are usually multilateral treaties that we have with many countries. and in february the u.s. was being evaluated by the human rights committee on its compliance with the civil and political rights. and the panel asked me to attend. the delegation asked e me to attend, so i attended and
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fielded some of the questions. you can imagine what this is like. there's a big panel of experts from around the world that are questioning, critically questioning the united states delegation and there's a delegation of 10 to 12 american officials who kind of have to take the beating, in some respects. they ask about guantanamo and all sorts of indian issues in addition, so there's a wide range of federal government officials there. and one of the committee members started pressing me on why doesn't the united states just apologize to the tribes and sort of be done with it? that was sort of the attitude of the question. those weren't the exact words. i said, you know, we'll never be done with it. as long as the united states occupies north america, we'll always have obligations to the indian tribes. and the general representing the department of defense, when i
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said the united states is occupying north america, he perked up. suddenly i had his attention. he had sort of been glazed over until that point, and so he was alarmed to think that we were merely occupying north america. but any rate, it's quite enjoyable to see our perspective of the international stage. i have a lot of problems with treaties. a lot of complaints. the treaties are, of course, imperfect. not just because they took away a lot of land as they were reserving other land, but i have some practical frustrations with them today. and one of them is that they came with excellent descriptions of land. they described the land that was going to be retained in very great detail. that's good. it's good to have clear descriptions of lands by bounds, but treaties retained water rights for tribes. the water rights weren't so well described. and so land is exceedingly
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important, but water rights are exceedingly important. and tribes have significant rights to water that is really unquantified and to some degree unknown. it's an extremely important resource and an extremely valuable resource and that clarity that we have for land is lacking in the area of water. and that is a real problem because since indian water rights aren't clearly defined nationwide, other people are using those water rights and using them without compensating tribes for those water rights. as a trustee it weighs heavily on my soul, and we have to do better. we have to quantify those water rights and get settlements. so we have continued to work on that sort of thing so we can ensure that tribes are getting value when their rights are being used. treaties were precursors to relationship that today has come to be filled with with much more
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mundane agreements. ordinary contracts for many of you know what that mean, but for those who don't, each year to meet the federal trust responsibility to indian tribe, we actually signed contracts with indian tribes to provide those services to indian people because they do, frankly, a better job at providing services to their own people than federal officials can. we sign thousands of those contracts each year. those agreements, again, are sort of the progeny of treaties in some respects. we have broken these agreements too. we have not paid tribes the full amount of money they have contracted for under those 638 contracts and self-governance contracts. they have not been fully paid and we have to start meeting those obligations and those promises as well. so that's one of the ways we are trying to mend our ways and to begin to abide by those
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agreements chrks after all, are the modern progeny of treaties. the relationship between tribes is both mundane in some respects, 638 contracts for example, and complex. and buried in the historical essay towards the end of this great book is a discussion about the indian reorganization act. there's a great gem in there about that law. and through that law though it's 80 years old, my office has the power to remedy some of the faults of the treaty era. i think john collier and felix cohen every day. there's a neat fixture in the book for those powers because they were the ones who helped master mind that and get those powers passed through congress. indeed the most gratifying part of my job is using these powers for proclamations. we establish new reservations or expand existing reservations. i can't tell you how happy that
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makes me. it's a lot simpler than going to get a treaty. with a stroke of a pen and work with the tribe, we can create a reservation or expand a reservation and we have done it four times this year alone. and again, that's one of the most gratifying parts of my job. a close second is restoring homelands in that way. the department has taken 264,000 acres of land into trust for indian tribes au cross the country. this is a drop in the bucket of all the land that was lost more than 100 million acres, but it's something and we are learning and expanding indian country through this work. we work hard to live up to the responsibility that the treaties helped to establish. . how does the federal government determine how it will meet its trust responsibility today? in any given year, usually it involves budgets. it involves developing budgets
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so that we can run tribal programs. i won't be with you all day today because i have several other meetings, but one of the most important meetings i have today is meeting across town at the white house on budgets. and i can tell you as a law professor, i u don't always enjoy meetings about the budgets. one reason someone becomes a law professor is so other people have to think about budgets. but we have a new process that's been established. in the summer of 2013 president obama threw an executive order established the white house native american awe fairs council. this council is really important. one of the purposes is to break down silos between federal agencies. one of the wonderful developments of the past 20 or 30 years or so is nearly every major federal cabinet agency has an office that has indian programs. and so some of those are quite extensive. there's some large offices, but
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what's happened is we have become silos unto ourselves for indian tribes. so one of the purposes of the council is to ensure that we are talking to one another across the federal government. another purpose is to ensure that we're serving tribes not just with our indian programs, but with our general programs. so today after e we established this american affairs council, my boss of the secretary of the interior who chairs this council, she said, we need to be coordinating our budgets and talk about how we're serving tribes around our budgets. so today for the first time about 6 or 7 cabinet agencies are going to get together with omb, the office of management and budget, something that most of you don't know exists and don't need to e know exists, it's not very interesting, but we're going to get together and present our budgets to one another so at least we know what our sister agencies are doing.
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it's terrific that so many agencies are engaged in indian programs, but we have to be talking to one another. just to give you a sense of this, in interior, the annual budget for indian programs overall is around $3 billion. and indian health services is about $4.5 billion. hud has about $650 million a year that they give out. doj, department of justice, has more than $300 million. there's a lot of money here. there's in access of $10 million and it adds up to real money, but we have to be coordinated in how we do this. we can't be living in a bunch of stove pipes. so this afternoon the secretary said u there has to be a better way to run a railroad. so this afternoon we're going to get together, a historic meeting, to share among federal agencies about what we're doing with our budgets and try u to break down those stove pipes. this is a modest first step, but
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an important and historic one. and another goal of the council that i mentioned is to influence agency policy decisions. so another thing that's really important that we really want to communicate to the other agencies is you have indian programs, but some of your general programs have obstacles so indian tribes cannot participate in those. so for example, they might allow state and local governments to participate, but not tribes. or they might allow nonprofits to participate in these programs, but not tribes. so we are anxious to have a very broad discussion about how we can make more of our general programs available to tribes. so while you all will be here engaging in a very lively discussion, an interesting symposium, intellectual thought going on, i will be leading a group of officials from six different cabinet agencies at the white house and will be pouring over spread sheets. so you will be having the more
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interesting discussion, and i will in some ways, i would certainly rather be here, but i vow to you that i will be working hard to ensure that the discussion of the white house, if not interesting, is important and fruitful. so this is an opportunity for me to try to make a difference for indian country and try to do much better in meeting some of the high aspirations that you see in some of the treaties that will be you will be talking about today. i wish you a very, very good day. i will tell you i will be looking longingly back in this direction and wishing that i were here. but i want to thank you all for being here and i want to encourage you to get this book and soak it up. thank you so much for having me and allowing me to be part of this historic event, thank you. [ applause ] >> thank you, assistant secretary and professor
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washburn. our next speaker is the distinguished robert clinton, foundation professor of law at the sandra day o'connor college of law and a faculty member of the asu american indian studies program. he's 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, cyber space law, copyright and civil procedure. his publications include numerous articles on federal indian law and policy, constitutional law, and federal jurisdiction. professor clinton, welcome. [ applause ]
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>> while we're getting the power point set up, i want to thank kevin and susan for involving me in this project and the wonderful staff of mmia for all of the hospitality and all of the help on both the essay in the book and on the project. it's a little difficult to follow this under tester and washburn this morning, but nevertheless, i'll try. what i'm going to try to do with you for the brief time i have available is to do a 400-year historical survey about indians and indian treaties and to try to put them in some perspective. some of which assistant secretary washburn has alreadied a -- already averted to.
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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, intertribal relations between the original native occupants of north america. in fact, if you think about it, a great law of peace, i won't try to pronounce it since i do not want to murder it, was 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
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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 with the treaties of the united states, you find a very common pattern. there's an initial first contact
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treaty, 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 trying to create exclusivitexclusivity, t usually not a treaty asking for land session. the next one was. and nen the one after that asked for more land and more land and ultimately removal and relocation. so as assistant secretary washburn averted to, treaties wound up being essentially a colonial vehicle r for dispossession of native land during the colonial period and during the american treaty u
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period. they essentially were vehicles for enforcing the doctrine of discovery. those of you familiar with the doctrine of discovery know it derives 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. basically, it created a relationship which provided a basis for dispossession one basis of which was consent, unquote. what are the treaties? they are the consent in the doctrine of discovery. the doctrine of discovery is reviled by indigenous people. and yet treaties aren't.
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that's a very interesting contradiction. it's a contradiction that assistant secretary washburn averted to. it's one we need to explore. frequently in indian country, trea 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. 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. all the other tribes have no treatie treaties. yet as assistant secretary washburn averted to, you'll frequency hear tribal members in the nontreaty tribes averting to
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their treaty rights, talking about the enforcement of their rights under a treaty that ta don't have. treaties have become synonymous with the font of indian rights and indian sovereign power. that causes a rather interesting set of questions. you see demonstrations here honor the treaty's organization holding a meeting treating it as a revered iconic emblem of that source of power. of course, this all create ss a bit of a contradiction. if treaties are, in fact, the his t
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historical vehicle 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 familiar
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relationships. die nastic marriage was common in europe. as a vehicle of creating alliance. it wasn't a piece of paper, it was a kinship. by contrast, 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
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kinship. but the differences the european conception of the relationship was down, for the most part the native conception was much more horizontal, but it was basically a flatter relationship. so kinship terminology shows up in the treaty negotiations, who would meet periodically for reasons i'm about to talk about, with the albany, new york, commissioners and other representatives in the northeast colonies to basically renew the covenant chain, a friendship, the alliance, the kinship relationship, which bound them together frequently against the french or some other interlobar
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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 are 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
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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 it this print, which is going to be very hard to read at a distance. it was published in 1747 of a, quote, treaty held at albany between the indian commissioners and representatives from massachusetts, connecticut and
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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 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
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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. we're going to see that they erode over time. now these treaties and the relationship were often formalized in not a document so
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much, a ceremonial gift, here we have jake edwards of the federation, of the two nation wampum bells of a 1612 agreement or relationship with the dutch on the anniversary of these agreements. this is a peace medal that i believe is in the collection here at mmai 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.
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begins on the anglo-american side. the idea of what a treaty is begins to change in europe in 1648, which is generally traced to the beginning of international relations in a making an agreement with the
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british, cans an organic relationship in their culture in a way that is increasingly not understood by the people with whom they are make iing 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 inkrecreased focus werners on a memorialized treaty beginning in the late 18th and continuing into the 19th century. now, of course, treaties are negotiated in multiple lang wajs. most of the tribes didn't speak english at the time. they spoke their native language. there maybe have been an interpreter, as there is in the treaties of the pacific northwest. but if you're going to focus on a memorialized document instead
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of the kinship relationship, you have a a problem because the native languages at least in north america were all oral languages. they are not at this point written languages. so there's the possibility that the memorialized document might not reflect a common understanding and were still might be to the advantage of the the party of the memorialization, 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,
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but i think you can begin to see why this might be true. it turns out there's proof of that fact in a treaty not from north america, but the major treaty in new zealand, the treaty of 1840. why does it prove it? it turns out the missionaries had been with them for quite awhile before the that treaty was negotiated and had been transliterated and many of them were literate in the language. so unlike every other treaty in north america, this treaty was written and memorialized in language in two different languages. in english, it's a short treaty.
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you read it and it seems to give a heck of a lot less. what does it give? it allows the crown to serve as a leader but no governmental authority of the crown. that's a big difference. you can see that the treaty where there is documentary proof in two different languages doesn't say the same thing in english and in mauri. so 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 interpretation of treaties that, in fact, we use commonly but unfortunately the courts
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have increasingly ignored in indian law, but they have been very important historically. what are they? the treaties should be construed as indians would have understood them, treaties should be liberally construed in favor of the indians, and that ambiguity in treaty terms should be interpreted in favor of the indians. of course, these canons of construction were originally designed to assure that that trust relationship, this is what secretary washburn talked about, would, in fact, be upheld. and that the united states would act, quote, with utmost good faith words the towards the indians. the increased abandon. ment 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
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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-executed. a treaty doesn't happen overnight and you write it down on paper and whatever is on the paper happens. the geopolitical balance, the forces on one side or another, the leverage effect 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 looks at the early american treaties, most of them will negotiate. ed at arm's length between great
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britain initially and its representatives and then later the united states representatives with tribe who is had the power by alying 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. 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
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the united states is r 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 181 eliminates the last possibility of a native alliance with another european power to threaten real security, the
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treaty relationship gradually changes. i want to make that point by looking at its culmination. in 1868, three years before a statute passes that does not end, two treaties are negotiated. the treaty of 1868 with arapahoe ending red cloud's war, and the fort sumner treaty u of 1868 with the navajo. the geopolitical relationship between the parties in these two treaties couldn't have been any different. the allies had had just fought red cloud's war successfully and the united states was suing for
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peace. they had pushed the united states cavalry out of the 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, they had rounded up the navajo, marched them 300 miles to southern new mexico. 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, wouldn't you, if you're looking at geopolitical relationships?
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by contrast if you look at them closely, they look very much the same, they are 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 forts out of lakota country to, in fact, make sure that wernster w erin -- 90% of them are alike. so by 1868 for the most part indian bargaining leverage had disappeared. the treaties are boilerplate terms. this, by the way, is a very famous picture. it's the only picture i could find, although there's another couple by the same photographer, of a treaty negotiation that was
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photographed. this is the fort laramie negotiation with the united states commissioners sitting on chairs, the lakota delegation sitting on the ground face iinge united states negotiators. that's sherman third from the left as part of the negotiating package. this is the first page. the last couple pages are in the book of the handwritten version of that treaty. so by the last third of the 19th century, two of treaty making had disappeared. native agency and native consultation and the formulation of policy had been abandoned. increasingly the terms of the tre treaty were coming down from washington and the treaty
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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 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 did 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. again, it's the federal judiciary, the font of many bad things that come to indian
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country. in the late 19th century, you recall america was involved in 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 gun boat diplomacy in 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. we overthrew the indigenous monarchy, a recognized republic, the republic of hawaii with which 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.
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and of course, it becomes a state in the 1950s. so the late u 19th century is the american colonial expansion period. well that's when treaty making really comes to an end. it's often thought it comes to an end with this statute found in section 71 which basically says that no indian nation or tribe within the united states shall be. acknowledged or recognized assen independent nation 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, 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 annuitieannuitie doctors out, send
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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? the house held up interiors appropriations for a couple 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. it wasn't intended to say tribes were insovereign. there was 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 and called them treaty commissioners and they got agreements. agreements with tribes.
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then what happened? we bring them back to washington and we ratify them as statutes. what's the advantage of ratifying the statute, they go through the house as well as the senate. so if you look closely at the way the allotment was implemented, many of the supreme court cases talk about this in the reservation 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. if you think about what happened that took the black hills from lakota, many went out there to try to negotiate. they only got 150% 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
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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 gramts because they were passed by a statute and went through both houses of congress soon started getting amended in congress. so wait a minute, you have an agreement. usually if if there's an agreement, you just approve it. but the house wanted changes. do they go back and negotiate with the tribe? no, hay just amend it as it goes through. the whole idea of agency consultation and consent gets in the form of the ratification. now any of you are familiar with the history of the fast track
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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 claimed the dread scott of indian law. lone wolf decided in 1903, which holds what, holds the indian consent is not required to aber gait indian treaty rights. if we don't need consent, do we have to negotiate anymore? we have already eliminated agency and consultation.
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virtually overnight true treaty making ends for 30 or 40 years after lone wolf. 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 leader who brought this case to try to thwart the implementation of allotment on his reservation unsuccessfully and wound up creating a precedent. so i think we can now begin to see why it's not surprising that
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in the 20th century natives woulds look back at treaties as sources 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, washington, d.c. increasingly tick indicated indian policy to indian country instead of consulting indian
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country about its relationships with indian country. but the story is not entirely bleak, as assistant secretary washburn averted to. we're actually seeing a return of treaty making, just like in 1871 agreements weren't tre treaties. we don't call the current things that we're doing treaties either. but that's exactly what they're, they're sovereign to sovereign agreements in which the tribes have -- what? agency. and this began and is often overlooked with a proposal that was part of the original indian reorganization act that never got enacted by congress. the reorganization act was much broader in collier's proposal that congress enacted.
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one of the reasons collier proposed the recognition of tribal governments through the constitutional process is he was proposing to contract with them to have them manage the indian service. collier proposed 638 contracting and 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 tribe had agency, they can decide to take it or not. they decide what they want to do.
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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 secretary washburn was reverting to are all matter 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 tribe's gaming desires, but what they are. they're negotiated agreements between an indian tribe and a sovereign state. yes, the federal government requires them. yes, you can't gain in class 3 without them.
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but they're treaties. they're treaties with the 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 make compromises. they're consulted. they're at the table, they have agency. and ultimately, they consent. many of these settlements, these are all modern treaties. they're treaties made an sille larry to -- what? 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 ait was negotiated.
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all treaties. with a 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, at least they're treaties. cross deputization treaties. sometimes with states. a form of treaty. so we've witnessed an interesting curve in the policy by federal indian law. negotiation for the first 300 years. an effort of colonial position on policy on tribes. for maybe 100 years, a little less. and now we're witnessing a return of indian treaty making. here we have governor andrew cuomo signing an agreement with the united 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,
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it doesn't say treaty. 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 this little pow-wow toddler's future. and the future of her children, and her children's children. and many others out to the seventh generation. so the very same powers that a community enjoyed when the
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british first contacted native-a gonkian and the assembly in the future. and they will be involved in a sovereign to sovereign relationship that fully has, what? agency, consultation and consult. i thank you for your time. [ applause ] this thanksgiving weekend we continue our four-day book tv and "american history tv" programming. saturday at 10:00 eastern on book tv's afterwards, jonathan eig on the history of the birth control pill. and on sunday with bill ney the science guy. and on "american history tv" on c-span 3, saturday night just before 9:00, george washington
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and benedict arnold. sunday afternoon, a glimpse of american life between 1914 to 1930 from auto maker henry ford's film collection. find you complete schedule at c-span.org. call us at 202-626-3400 or send us a tweet. join the conversation, like us on facebook, follow us on twitter. each week "american history tv" reel america brings films that tell the story of the 20th century.
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reporter and author james risen on how the u.s. government wastes billions of taxpayer dollars on the war on terror. >> he was the only u.s. official who became really tried to investigate what happened to all the money that the united states sent to iraq. there's different estimates.
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over $11 billion of the roughly $20 billion in iraqi money that the united states sent back to iraq was unaccounted for, and what stewart bowens investigators found was that nearly $2 billion in cash in $100 bills was stolen after it was flown from andrews air force base to baghdad apparently by powerful iraqis and was being hidden in a bunker in rural lebanon. captioning performed by vitac
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