Thanks to Margaret Peeters for volunteering to be today's rapporteur. I have added some comments to questions that we did not get to today. --George

What are treaties?

A treaty is an agreement between two or more parties.  A treaty is the product of a negotiation process of some kind.  Often a treaty can be a statement concluding hostilities.  Got together and fought, agreed to rebuild, spelled out the conditions to fulfill and conclude the conflict.  Treaties are like a contract, a negotiated agreement. There are always expectations of both parties. Treaties spell out specific obligations, whether we choose to honor or disregard them.  If one thinks, by entering into a treaty that you can simply (unilaterally) change the rules of engagement, you are proposing to tamper with the whole contract.  It’s imperative that each party that entered into the agreement uphold the written contract.

Who enforces the terms of treaties?

Higher International body, such as the World Court, or International Court of Justice, may look at failures to uphold treaties.  Disputes may be resolved by going back to the parties within the treaties, and might be raised with contemporary individuals within each party.  Arguments over Indian treaties usually invoke the district courts within each region.  If parties are not satisfied by judgment of regional court, the next step is the Supreme Court.

How long are treaties valid?

Until all signatories (or their agents or successors) agree that they are not.

Who enters into treaties?

Generally nations that are anticipating some advantage, or trying to pre-empt the actions of others. Some Indian treaties were clearly constructed to protect the interests of the Indians against incursion by settlers. Military alliances are formalized by treaties so that some smaller or weaker states can be seen to be under the protection of militarily stronger states.

Who is responsible for creating treaties (in the United States of America)?

The Executive branch; then Congress ratifies them.  This authorization is to be found in Article I, Section 2 of the U. S. Constitution. The President has the authority to develop treaties with the Indians.  In addition, 80% of the Senators must agree to the ratification of each treaty.  Treaties carry "constitutional force of law" setting them above the "public laws" enacted daily by the U. S. Congress. For example, Congress couldn't write a law prohibiting the President from entering into a treaty with another nation. A constitutional amendment would be required to accomplish such a goal. But note that Congress did pass a public law in 1871("..No Indian nation or tribe may contract by treaty...) specifying that no more treaties would be forged with Native Americans. It would be interesting to see if that law would pass a litmus test of  "constitutionality". Also note that the Supreme Court decision released Mar. 25, 2008, casts doubt on the Executive Branch's authority to require individual American states to comply with international treaties.

What is the doctrine of reserved rights?

In United States v. Winans, 198 U.S. 371, 381 (1905) the Supreme Court identified a rule of construction that provides that a "treaty was not a grant of rights to the Indians, but a grant of rights from them ---a reservation of those not granted."  This has become one of the "canons of construction" in U. S. treaty law. Stated simply, it means that treaties don't need to spell out precisely what rights remain reserved to the Indians. Those rights are assumed to continue to exist, unless specifically conveyed to the U. S. in the treaty in question.

Are Indian treaties still being negotiated?

Not since the 1871 law identified 2 questions above. However, there are lots of agreements of a non-treaty kind being negotiated almost daily with Indians all over the U. S. Examples include the Leech Lake fishing license agreements between the Leech Lake Band and the Dept. of Natural Resources. Also included are the numerous agreements between states and Indian bands on operation of casinos on Indian and trust lands within the various states.

What is "abrogation" of a treaty?

This is the legal term for a declaration that provisions of a treaty will no longer be observed. It is withdrawal from a treaty, or, more frequently an explicit statement about specific provisions of a treaty. The Eagle Protection Act of 1940 is one such example wherein Congress effectively voided the previously understood right of Indians to take eagles (as a part of reserved hunting rights). In this case, an allowance was still made for the religious or ceremonial use of eagles (or parts of eagles, such as feathers).

What are the treaties specifically relevant to issues of natural resource use?

We conclude by examining some treaties relevant to the question of Indians' continuing rights to hunt, fish, and gather, under the jurisdictions of tribal laws rather than being controlled by state law within ceded territories.  Most of the relevant treaties, together with important dates in jurisdictional disputes can be found at the "Indigenous" website.

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