I know what you’ve been thinking. You’ve been staying up at night tossing and turning, wondering to yourself, “What is a reserved right in a treaty?”
Well, say goodbye to sleepless nights for I shall tell you what a reserved right is. Not only will you then be able to sleep, you will also understand why some Indians can hunt or fish in places, at times or in ways plain old United States citizens cannot, or why some Indians are allowed to hunt, fish or gather off their reserved lands. What’s more, you will be liberated from thinking that Indians are getting unfair special treatment based on their race, which is a common misunderstanding for those who haven’t fully grasped the concept of a reserved right.
If you’ve been following my little series on American Indian Political Issues, you’ll know what treaties are and why they are important. You’ve probably (correctly) inferred that a race of people cannot treaty with the United States. (By definition, a treaty is an agreement between sovereigns.)
Rights that Indians have by treaty are not based on their race, then. They get those rights because they are citizens of a nation that made treaties with the United States. Or, rather, they reserved those rights for themselves, since the United States didn’t give them those rights. This is why they are called reserved rights: They are rights that tribes reserved for themselves when they were treating with the United States.
In a quick internet search, I found the following description by the Milwaukee Public Museum to be a clear and simple explanation of what a reserved right is and how failure to understand or appreciate reserved rights creates conflict between Indians and non-Indians:
Some provisions were included in the treaties for the Indians to continue to use the land they ceded to the government. Prior to selling the land, the United States recognized the Indians’ ownership of the land. They also recognized that the Indians possessed usufructuary rights to the land. Usufructuary rights were the rights of the Indians to hunt, fish, and gather forest products off of the land. In some cases, the Indians sold their lands to the United States, but they reserved their usufructuary rights. In the case of the 1837 and 1842 Ojibwe treaties, the Ojibwe bands of Wisconsin sold their homelands to the United States, but they wanted provisions added to the treaties that recognized the continuance of their usufructuary rights. Thus, they no longer owned the land, but both the United States and the Ojibwe agreed that the Ojibwe could continue to use the land for hunting, fishing and gathering. Because they retained these rights in their treaties, these are referred to as reserved rights.
During the late nineteenth and early twentieth centuries, these reserved rights, especially those of the Ojibwe, were not always respected. The state of Wisconsin refused to recognize the Ojibwes’ off-reservation hunting and fishing rights in their ceded territory, and the federal government did not always enforce the Indians’ rights as they should have. Things began to change for the Ojibwe and other tribes in the United States during the 1960s, when federal courts began to look at Indian treaty rights in a more fair and unbiased fashion. What emerged were “canons of construction,” or new legal interpretations that sought to preserve rights that Indians reserved in treaties. The United States Supreme Court established these canons, which asserted that:
1. treaties must be liberally construed to favor Indians;
2. ambiguous expressions in treaties must be resolved in favor of the Indians;
3. treaties must be construed as Indians would have understood them at the time they were negotiated;
4. treaty rights legally enforceable against the United States should not extinguished by mere implication, but rather explicit action must be taken and clear and plain language used to abrogate (or abolish) them.
And then there’s this tidbit from the same site:
Lack of knowledge about treaty rights has caused a great deal of misunderstanding among non-Indians, particularly the off-reservation hunting and fishing right of the Ojibwe. During the 1980s, Whites in northern Wisconsin held emotional and often violent rallies to protest the Ojibwes’ reserved treaty rights. The rancor has died down during the 1990s, but smoldering resentment still exists. There have even been calls in the last twenty years for the federal government to abrogate all reserved treaty rights of American Indians. This has not happened, and it will not happen as long as the U.S. government continues to recognize the treaties that it made with the Indian tribes.
Knowing all this helps one follow and assess current cases, like the Makah/Gray Whale case:
Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker and William Secor Sr., all of Neah Bay, are accused of harpooning and shooting a gray whale in the Strait of Juan de Fuca Sept. 8 without tribal permission and without a necessary waiver to hunt a whale under Makah’s treaty with the United States.
I think that, at least for me, it would be beneficial if someone would present the arguments as to why it is in the best interest of the people of the United States to continue to recognize the treaties it has made with the native peoples of America.
As I understand it, “the reasons for treaty negotiations … generally fall into three categories: moral; economic; and constitutional and legal. ” *
While some treaties may be said to be “perpetual”, and while prudence may dictate that treaties continue intact from administration to the next, and are not broken without compelling justification, it would seem to me that in a democratic republic, past generations have no reasonable expectation to have control over the decisions of future generations. For t laws that have been passed may be repealed, constitutions enacted may be amended, and treaties that have be made may be withdrawn from or broken.
There is also the present discussion of the place of international law regarding treaties. On the one hand, it would seem that a world court would be a logical place to hear issues relating to treaties between governments. But the concept of treaty itself assumes the existence of two sovereign nations, not answerable to anyone except their own internal governments. This and the fact that the Congress of the United States has not recognized that any world court as having jurisdiction.
Finally, Section 2 of our Constitution, says that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. Much foreign policy has been conducted according to treaties that have never been ratified, because they would not pass the Senate if introduced. While this seems a working solution while no majority in the Senate objects, the political reality is that these treaties have no legitimate force of law whatsoever.
I offer this last as point of information only, as I assume that all treaties made with Native Americans have been ratified.
But back to my original question. I am perfectly willing to accept the argument that present treaties with Native Americans are recognized and not withdrawn from for moral reasons, as long as this is subsumed under the general idea that it is permissible for governments to legislate morality.
But if not, I feel that I need to learn about what economic benefit the United States gains from these treaties, or what constitutional or legal reason that has the force of law; (meaning by this some entity that actually has the power to enforce its decision) to suggest that continuation in these treaties is either beneficial or mandated.
I look forward to enlightenment.
Louis
*Why We Are Negotiating Treaties. http://www.gov.bc.ca/arr/treaty/negotiating/why.html
Lou,
Might I suggest American Indian Treaties by Francis Paul Prucha to begin with, according to which there are 367 ratified Indian treaties (FYI).
The US may not recognize an international court, but I’m betting Indian peoples do or would in the unlikely event that the US would cease to recognize all Indian treaties.
I have never sought out to find or make arguments on why the US should continue recognizing Indian treaties because, to be frank, I never needed an argument. They are living documents constantly being used by tribes and the US and because of this it was never a real possibility for me that one day the US would say, “You know, to heck with those treaties.” However, I’m sure there’s a lot of information available in journals for you to look at.
I should note that failing to recognize Indian treaties would not simply solve everything. Ceasing to recognize over 300 treaties with historically oppressed populations, especially if one cannot give compelling reasons for doing so, is a very radical action. Indian peoples and nations around the world would think this as well, I’m sure.
Jennifer,
By saying that the US may not recognize an international court, I mean to say that the United States would be unable to be compelled to abide by the judgement of such a court, irrespective of who brought suit. While the United States is rightly concerned with what the rest of the world thinks, it is never bound by what the rest of the world thinks. Yet.
We have treaties with many sovereign nations. Sometimes we withdraw from those treaties when it is in the best interest of the United States to do so. It is also in our country’s best interest to review our treaty obligations from time to time. So yes, it is a very real political possiblity that an administration would one day say, ““You know, to heck with those treaties.”
While I personally would conjecture that moral arguments could be made to continue to participate in treaties with Native Americans, I can’t think of any others. Seeing as how this is your post, I think it is reasonable to assume that you have, or are able to produce the information.
I would not have raised the question, had you not intially posted your item on reserved rights. I can tell that you “feel” that these treaties are a good idea. But I would also be interested in knowing why you “think” so
These treaties are written documents, not living ones. In fact, in order to ensure that Native American rights are protected, courts have held that the language in the treaties should be interpreted to mean what the original native signers would have understood them to mean. (This kind of reasoning is also rightly applied to our own Constitution so that the citizens rights may continue to be protected, but hat’s another debate.)
I am fairly well read in this area, although I sense that your point of view may tend to discount that notion.
By the way, why can’t we edit our own comments to correct for spelling and grammer? I often make typographical boo boos while composing directly to the screen.
Louis
Lou,
I wrote this post so people can follow cases like the Makah/Gray Whale case: A lot of people misunderstand reserved rights and cases like the Makah case spotlight reserved rights.