Post by tamara on Aug 16, 2006 11:48:48 GMT -5
I love this website
www.airpi.org/research/st98cont_congress.html
In Winter v. U.S. (1908) the court states that, "By rule of interpretation of agreements and treaties with Indians, ambiguities occurring will be resolved from the standpoint of the Indians." In addition, the courts have developed canons of treaty construction that are supposed to guide the interpretation of Indian treaties in decisions.
Three basic canons:
Ambiguities in treaties must be resolved in favor of the Indians.
Indian treaties must be interpreted as the Indians would have understood them.
Indian treaties must be construed liberally in favor of the Indians (Pevar 1992).
Contemporary conflicts between Indian tribes and non-Indians occur as new conditions and situations arise. Thus, there is a constant legal process of defining and interpreting treaties to settle current issues. The standard for resolving these conflicts was established in Winter v. U.S. (1908). "In interpreting Indian treaties, ambiguities are to be resolved in favor of the Indians. Court decisions have stated that this rule applies to agreements as well, and also federal statutes" (Kickingbird et al., 1980, p. 32).
The aforementioned canons apply to treaty cases and to all tribal/federal agreements and statutes. The reasoning behind establishment of the canons of treaty construction was that nuances of the English language were not be the same for Indians as they were for English-speaking negotiators. The Court has also ruled in various cases (see, e.g., Choctaw Nation v. United States (1970); United States v. Shoshone Tribe (1938); Starr v. Long Jim (1913); Fleming v. McCurtain (1909); Worcester v. Georgia (1832)) that the nature of the times when the treaty was signed must also be considered when engaging in present day interpretations of treaties.
The Trust Responsibility
Trust responsibility is integral to the principle of tribal sovereignty. It derives from negotiations with Indian tribes that bound the United States to do the following:
Represent the best interest of the tribes,
Protect the safety and well-being of tribal members, and
Fulfill its treaty obligations and commitments.
The foundation of this unique relationship is one of trust: the Indians trust the United States to fulfill the promises which were given in exchange for their land. The federal government's obligation to honor this trust relationship and to fulfill its treaty commitments is known as its trust responsibility (Pevar 1992, 26). The American Indian Policy Review Commission in 1977 explained the trust obligation in the following way:
The scope of the trust responsibility extends beyond real or personal property which is held in trust. The United States has the obligation to provide services, and to take other appropriate actions necessary to protect tribal self-government. The doctrine may also include a duty to provide a level of services equal to those services provided by the states to their citizens [e.g., educational, social, and medical]. These conclusions flow from the basic notion that the trust responsibility is a general obligation which is not limited to specific provision in treaties, executive orders, or statutes; once the trust has been assumed, administrative action is governed by the same high duty which is imposed on a private trustee [emphasis added].
Despite clear sovereignty of Indian tribes, and trust responsibility obligations of the U.S. government, historic relations between Indians and U.S. governments have been filled with continuous attempts to erode sovereignty. As noted above, this has taken many forms including attempts at assimilation and termination of Indian tribes and people.
Current threats to tribal sovereignty are simply the latest surge in this process. Yet many non-Indians believe that sovereignty is a new Indian cause and that it is open to question or debate. Contrary to attempts by policy makers and political leaders to generalize about Indian history, the fact remains that Indian people are not just another racial minority group - they are a people who have retained a unique aboriginal sovereign status.
Threats from the U.S. Congress
The United States Congress has the authority to set Indian policy despite the sovereign status of Indian nations. This is called the plenary power doctrine. A consequence of the plenary power doctrine is that courts do not review legislation in Indian affairs on the basis of whether it has a negative impact on tribes. Congress has the authority to pass laws in Indian affairs and therefore federal legislation is a "political judgement" which is not, in the court's opinion, itself subject to judicial review. Therefore, Congress can enact legislation which impacts Indian tribes in negative ways and still be within their Constitutional authority. However, Congress also has the responsibility to protect the resources and sovereign status of Indian tribes.
Legislation passed by Congress that negatively affects Indian tribes is in direct conflict with the trust responsibility of the U.S. government.
Congress is supposed to work for the benefit of Indian nations, including the protection of sovereignty and treaty rights. This dual responsibility-- the plenary power doctrine on the one hand, and the trust obligation on the other, creates a condition of ambiguity between Indian Country and the U.S. Congress that remains unresolved. Policy consequences of this ambiguity swing back and forth: sustaining sovereignty in some actions and dismantling sovereignty through other actions.
Careful monitoring and action by tribes is crucial for protecting tribal sovereignty during this politically volatile era. The National Congress of American Indians at its 53rd annual convention stated that, "anti-Indian bills introduced in the 104th Congress should serve as a reminder that tribal sovereignty and tribal rights require constant attention by the tribes in the legislative and judicial arenas" (National Congress, 1996, p. 142). Examples of legislative action in recent Congresses include the following:
Devolution of federal welfare programs to the states.
Proposed amendments to policies affecting Indian tribes including the Indian Child Welfare Act (1978) and the Indian Gaming Regulatory Act (1988).
Proposed taxation of Indian gaming and sales taxes to non-Indians on trust lands.
Proposed amendments to regulatory authority of Indian tribes in the name of environmental protection.
www.airpi.org/research/st98cont_congress.html
In Winter v. U.S. (1908) the court states that, "By rule of interpretation of agreements and treaties with Indians, ambiguities occurring will be resolved from the standpoint of the Indians." In addition, the courts have developed canons of treaty construction that are supposed to guide the interpretation of Indian treaties in decisions.
Three basic canons:
Ambiguities in treaties must be resolved in favor of the Indians.
Indian treaties must be interpreted as the Indians would have understood them.
Indian treaties must be construed liberally in favor of the Indians (Pevar 1992).
Contemporary conflicts between Indian tribes and non-Indians occur as new conditions and situations arise. Thus, there is a constant legal process of defining and interpreting treaties to settle current issues. The standard for resolving these conflicts was established in Winter v. U.S. (1908). "In interpreting Indian treaties, ambiguities are to be resolved in favor of the Indians. Court decisions have stated that this rule applies to agreements as well, and also federal statutes" (Kickingbird et al., 1980, p. 32).
The aforementioned canons apply to treaty cases and to all tribal/federal agreements and statutes. The reasoning behind establishment of the canons of treaty construction was that nuances of the English language were not be the same for Indians as they were for English-speaking negotiators. The Court has also ruled in various cases (see, e.g., Choctaw Nation v. United States (1970); United States v. Shoshone Tribe (1938); Starr v. Long Jim (1913); Fleming v. McCurtain (1909); Worcester v. Georgia (1832)) that the nature of the times when the treaty was signed must also be considered when engaging in present day interpretations of treaties.
The Trust Responsibility
Trust responsibility is integral to the principle of tribal sovereignty. It derives from negotiations with Indian tribes that bound the United States to do the following:
Represent the best interest of the tribes,
Protect the safety and well-being of tribal members, and
Fulfill its treaty obligations and commitments.
The foundation of this unique relationship is one of trust: the Indians trust the United States to fulfill the promises which were given in exchange for their land. The federal government's obligation to honor this trust relationship and to fulfill its treaty commitments is known as its trust responsibility (Pevar 1992, 26). The American Indian Policy Review Commission in 1977 explained the trust obligation in the following way:
The scope of the trust responsibility extends beyond real or personal property which is held in trust. The United States has the obligation to provide services, and to take other appropriate actions necessary to protect tribal self-government. The doctrine may also include a duty to provide a level of services equal to those services provided by the states to their citizens [e.g., educational, social, and medical]. These conclusions flow from the basic notion that the trust responsibility is a general obligation which is not limited to specific provision in treaties, executive orders, or statutes; once the trust has been assumed, administrative action is governed by the same high duty which is imposed on a private trustee [emphasis added].
Despite clear sovereignty of Indian tribes, and trust responsibility obligations of the U.S. government, historic relations between Indians and U.S. governments have been filled with continuous attempts to erode sovereignty. As noted above, this has taken many forms including attempts at assimilation and termination of Indian tribes and people.
Current threats to tribal sovereignty are simply the latest surge in this process. Yet many non-Indians believe that sovereignty is a new Indian cause and that it is open to question or debate. Contrary to attempts by policy makers and political leaders to generalize about Indian history, the fact remains that Indian people are not just another racial minority group - they are a people who have retained a unique aboriginal sovereign status.
Threats from the U.S. Congress
The United States Congress has the authority to set Indian policy despite the sovereign status of Indian nations. This is called the plenary power doctrine. A consequence of the plenary power doctrine is that courts do not review legislation in Indian affairs on the basis of whether it has a negative impact on tribes. Congress has the authority to pass laws in Indian affairs and therefore federal legislation is a "political judgement" which is not, in the court's opinion, itself subject to judicial review. Therefore, Congress can enact legislation which impacts Indian tribes in negative ways and still be within their Constitutional authority. However, Congress also has the responsibility to protect the resources and sovereign status of Indian tribes.
Legislation passed by Congress that negatively affects Indian tribes is in direct conflict with the trust responsibility of the U.S. government.
Congress is supposed to work for the benefit of Indian nations, including the protection of sovereignty and treaty rights. This dual responsibility-- the plenary power doctrine on the one hand, and the trust obligation on the other, creates a condition of ambiguity between Indian Country and the U.S. Congress that remains unresolved. Policy consequences of this ambiguity swing back and forth: sustaining sovereignty in some actions and dismantling sovereignty through other actions.
Careful monitoring and action by tribes is crucial for protecting tribal sovereignty during this politically volatile era. The National Congress of American Indians at its 53rd annual convention stated that, "anti-Indian bills introduced in the 104th Congress should serve as a reminder that tribal sovereignty and tribal rights require constant attention by the tribes in the legislative and judicial arenas" (National Congress, 1996, p. 142). Examples of legislative action in recent Congresses include the following:
Devolution of federal welfare programs to the states.
Proposed amendments to policies affecting Indian tribes including the Indian Child Welfare Act (1978) and the Indian Gaming Regulatory Act (1988).
Proposed taxation of Indian gaming and sales taxes to non-Indians on trust lands.
Proposed amendments to regulatory authority of Indian tribes in the name of environmental protection.