The Treaties in Our Dreams

Steve Russell

Like most Indians who give thought to our relationship with the United States, I dream of Indian treaties as sacred promises or, at least, what the Constitution says in so many words: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Since my beloved Cherokee Nation has determined to abrogate a treaty with the United States, that dream has turned into a very scary nightmare. My grandmother taught me that what is good for the goose is just fine for the gander.

One of the favorite pastimes of Indian lawyers has always been disputing among themselves which US Supreme Court decisions are the worst of the worst for the interests of Indians. Walter Echo-Hawk recently wrote a book on his picks. I make some picks in a chapter of my book.

Two cases are often the scum rising to the top in this melting pot of ugliness.

Lone Wolf v. Hitchcock, holding that the US can abrogate treaties with the Indian nations based on a finding that abrogation is in our best interests.

Cherokee Nation v. Georgia, holding that we cannot bring original actions in the Supreme Court for treaty violations the way other nations can.

This backdrop of bad faith is the barb inside the famous words of Hugo Black that Indian lawyers call the all-purpose federal Indian law dissent: “Great Nations, like great men, should keep their word.”

The most potent political weapons in our arsenal have always been our treaties. For the most part, we kept our word and the United States did not. The Cherokee Supreme Court’s recent decision on the citizenship of the freedmen states flatly that we have not abrogated the treaty between the United States and the Cherokee Nation in 1866 containing the declaration that all “free colored persons” living in the Cherokee Nation or who returned within six months “shall have all the rights of native Cherokees.”

It neglects to tell us why this is not so, assuming it self-evident that we can stand outside history and separate the rights of citizenship from citizenship itself because it’s to our advantage almost 150 years later.

At the time, why did the United States care? Because the Cherokee slaves would otherwise be the responsibility of the Freedmen’s Bureaus.

Why did the Cherokee Nation not care? Because we had already freed the slaves as a matter of Cherokee law before the treaty was negotiated, and our “intruder problem” was white people taking our property (among other crimes) and hiding behind federal jurisdiction. What we wanted was respect for Cherokee law, and it was white people avoiding Cherokee law, not black people.

Didn’t the Cherokee people vote to abrogate the treaty? Not exactly, for two reasons.

First, the disenrollment of the freedmen was purposely presented at a special election rather than a general election to drastically limit the turnout to those who perceived they had a dog in the fight. Racial prejudice runs deep in rural Oklahoma, where Brown v. Board of Education was considered an unwarranted imposition of federal power, and a special election was calculated to attract the racist vote.

Second, the same tribal leaders currently squirming over the cutoff of federal funds assured the voters that a treaty was not being abrogated. The voters cannot be accused of approving something they were specifically told was not at issue.

Then there is the argument that the treaty was invalid in the first place because it ended the hostilities in the Civil War, where the Cherokee fought on the losing side. This is simply nonsense, because treaties end most wars and the winner always has the whip hand.

A really dangerous argument thrown into the debate is known in lawyer Latin as tu quoque, “you do it, too.” That is, the treaty was already dead because the US had violated it in some respects.

Whether the treaty obligation exists now in light of changed circumstances is a valid question, and one that must be parsed carefully in the law of treaty abrogation, but no such parsing ever took place in any of the three branches of Cherokee government. There has only been denial and obfuscation.

In Lone Wolf v. Hitchcock, the US Supreme Court decided, essentially, that Secretary Ethan Hitchcock would be empowered to act in the best interests of the Kiowa over the expressions of that interest by the Kiowa Principal Chief. In history’s rear view mirror, we know that Chief Lone Wolf was right, but had Lone Wolf been wrong do a sovereign people not have a right to proceed to Hell in their own chosen hand basket?

We know now and have known since the day it was decided that the Lone Wolf case was an outrageous extension of the reasons for treaty abrogation recognized in law. Because Indian nations have not been in the habit of abrogating treaties, we have no statement by an Indian court of in what respect Lone Wolf was wrong and therefore what the rules ought to be. This is the opportunity the Cherokee Supreme Court declined by adopting the farcical position of the Cherokee executive rather than reaching the same result, if it must, in the manner of a court.

The interruption in federal funds to the Cherokee, some say, is a result of meddling by the Congressional Black Caucus rather than the normal enforcement of federal anti-discrimination rules. It might more profitably bring to mind the negotiating posture of a federal treaty commissioner quoted in South Dakota v. Yankton Sioux Tribe:

"I want you to understand that you are absolutely dependent upon the Great Father to-day for a living. Let the Government send out instructions to your agent to cease to issue these rations, let the Government instruct your agent to cease to issue your clothes. . . . Let the Government instruct him to cease to issue your supplies, let him take away the money to run your schools with, and I want to know what you would do. Everything you are wearing and eating is gratuity. Take all this away and throw this people wholly upon their own responsibility to take care of themselves, and what would be the result? Not one-fourth of your people could live through the winter, and when the grass grows again it would be nourished by the dust of all the balance of your noble tribe."

As a Cherokee citizen, I hope we are not in such a fix in the 21st century. Treaty abrogation is a sovereign right but it comes with a hefty price tag if you are dependent.

Remember the position of the modern Indian fighters: every program that benefits Indians, all of Title 25 of the US Code, is racial discrimination against white people. Our response to that is the distinction between “race” and citizenship that the Cherokee Supreme Court has trashed without analysis. This distinction is what has kept money flowing to Indian country over the objections of the Indian fighters.

The danger is obvious that the Congressional Indian fighters could use the Cherokee case as a wedge against all appropriations to tribes, even those required by treaty. Circumstances have changed, you see, and “race discrimination” cannot be tolerated.

A final and much less obvious danger lurks in simply accepting the death of Indian treaties, which does not, with all respect to Hamlet, represent for Indians “a consummation devoutly to be wish’d.”

Congress ended Indian treaty making in 1871 by a legislative rider. It’s not clear that Congress had the power to do that or, if Congress did, that it could be done with a rider. Negotiating treaties is a quintessential executive function.

The Senate (alone) could refuse to ratify a treaty with an Indian nation, but it’s not clear that Congress could stop the negotiation of one. With the right President, some of the most galling infringements on our sovereignty by the courts could be attacked around the reach of the Indian fighters in the House of Representatives. This might be yet another reason for an Indian nation not to act recklessly in abrogating a treaty.

Or I might, once again, be dreaming.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He is a columnist for Indian Country Today. He lives in Georgetown, Texas, and can be reached at swrussel@indiana.edu.

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piqua's picture
"Lone Wolf v. Hitchcock, holding that the US can abrogate treaties with the Indian nations based on a finding that abrogation is in OUR best interests."(my emphasis)This reminds me of a pow wow event in Portland, Oregon back in 1992. An Indian man dressed in military kakis came walking by Vine Deloria, Jr., and Vine quipped: "Is he on our side or theirs?" Mr. Russell's sentence reflects the schizophrenia in Indian Country as a result of a dual mentality. Think about this for a moment: How can the abrogation of an Indian treaty be in 'our' best interests as Indian nations and peoples. To use the collective pronoun 'our' in this context conflates the interests of Indian nations with the interests of the US which have been at odds with the interests of Indian natios since the US was first politically constructed.
bsilvas's picture
I feel that our nation has things backwards. This coutry belonged to the Native Americans, everyone else are immagrents. My favorite place is Cherokee, NC. I felt like I was home. I must have been a cherokee in my former life andI walked the trail of tears to Oklahouma. That is why I have this overwelming feeling of peace and and feel at home in North Carolina. It may sound crazy, but I would watch the old cowboy movies since I was a child and I would get so angry when the Natives were made the bad guy's I would be so angry I would cry. I was very young to have those feelins. As child, my first piece of art I ever did was Sitting Bull. Most of my paintings now are Native Americans and wolves.
bintdeeb's picture
I don't get it. How can "the most potent political weapons in our arsenal" be treaties if Indian nations have kept their word, but the U.S. has not?
swrussel's picture
Guilt translates to political capital. Indian lobbyists have leveraged that capital artfully over the years. We really have an impressive history of legislative victories for being one half of one percent of the population. Where do you think those victories came from? Even in the Lone Wolf case, horrible as it was, the least democratic branch, the Supreme Court, had to throw up that nonsense that they were doing it for our own good. I hasten to add that lots of them really believed that crap. That is, they did us great harm without meaning us harm. The treaties are written promises unkept and as such they are a source of political capital it is hard to overstate.
swrussel's picture
If I understand you correctly, I don't disagree with your bottom line. Just your implication that sovereignty at this time means nothing. That's silly. You take political capital where you find it, whether based in agreements, laws (international, national, state), or in the spirit of your people. The first question for each tribal government is where your interests diverge from those of the US/Canada/Mexico, if at all. As to those divergent interests, which ones are worth a fight? In my view, we should fight only where the terrain creates an advantage for us. My bottom line, which I think you will endorse, is that lawyers and lobbyists are necessary but not sufficient. If our people are not prepared to but their bodies on the line nonviolently (we can't win a shooting war with the US or Canada or Mexico) then we will have to, in the end, do what we are told. In essence, go back to the fort and collect our rations. When our tribal spirit, our blood history, is gone, then our tribal nations become incapable of self-defense and American Indians are just another special pleading ethnic minority in the great melting pot where everything on the bottom gets burned and the scum rises to the top.
michaelmack's picture
Treaties or contracts were always a tool of the U.S. government to gain control over Indian Country land and resources. The welfare of Indian Country was never a goal of the U.S. government, only control over it. Yes, because of U.S. history, within the realm of imposed U.S. or federal Indian law, treaties are a primary tool Indian Country can use to assert our sovereign rights (rights that existed before and outside of U.S. law), but Indian Country has yet to come up alternative courses of legal action to address issues imposed by federal Indian law - which includes treaties, so we remain legally stuck within the contours defined by and controlled by the U.S. law. How would Indian country, each nation, deal with such issues if federal Indian law did not control the situation? That is what each nation has to FIRST determine, and then look for ways the nation can manipulate U.S. law, just as the U.S. government has always manipulated the treaties to achieve it's goals. When the nations of Indian Country start the view and define themselves BEYOND the contours defined by federal Indian law, only THEN will tribal sovereignty truly begin to MEAN something.