Imagine the possible legal implications!

[Frederick]

With regard to Mexico, we treated it as outright conquest, and made no bones about it. With regard to the Indians, we treated them as sovereign nations, and voluntarily subjected ourselves to our own laws. Big difference there.

...and that government, established with the consent of the governed, entered into a treaty with another group it considered a sovereign nation. You propose to utterly abdicate that treaty; to effectively change the character to that of conquest.

A lot of sovereign nations would consider such a thing--abdicating a treaty and unilaterally declaring sovereignty over their people--to be an act of war.

Congress makes the law. And, as the article pointed out, it did, both in statute and in ratifying a treaty. You're proposing to ignore those laws and treaties.

I don't dispute that it'll make a helluva mess of things to rule in favor of the appellant, but, well, principles are what you do even when the outcome would be inconvenient.

I don't mind having Native Americans obtain sovereignty of the entire United States if by consent of the governed. the problem therefore lies not with the tribes or their treaties, but rather with their forms of government, which are based upon race and heredity.

 

[Dave70968]

Incidentally, the State of Oklahoma and the federal government both agree with you:

Treaties are agreements, they're only good as long as both parties agree to them.

From TFA:

How can that be? In 1832, President Andrew Jackson pushed through the policy of “removal” of Indian nations from the eastern U.S., which destroyed the historic land base of the “civilized tribes.” He promised the tribes new land in the West to be theirs “as long as the grass grows or the water runs, in peace and plenty.” After the Trail of Tears, the U.S. signed a treaty that “solemnly guarantied” the new reservation lands in what is now Oklahoma.

Many tribes elsewhere have found to their regret that Congress is permitted to decide that the grass ain’t growing any more. It can abrogate some or all treaty obligations—and even “terminate” a tribe altogether. But case law says there is a “clear statement” rule: If Congress wants to end a reservation, it has to say so.

It apparently did not. The Tenth Circuit said it couldn’t find any statute ending the reservation created by the Creek Nation’s treaty of 1832. Nor could it find evidence that Congress at any time showed a desire to abolish the reservation. Applying a 1983 precedent called Solem v. Bartlett, the court reasoned that all 3 million acres, whether owned by Indians, non-Indians, the federal government, or state or city governments, remained “Indian country.” Under the Major Crimes Act, Murphy’s conviction was void and he was entitled to a retrial in federal court.

Chief Judge Timothy Tymkovich, in a separate concurrence, agreed that the Solem opinion required the court to hold against Oklahoma. However, he said dryly, the high court might want to look at Solem again. “This challenging and interesting case makes a good candidate for Supreme Court review,” he wrote. The Supreme Court granted certiorari in May.

Before the Court, Oklahoma argues that the contemptuous treatment of the tribe by the state and federal government after allotment makes a formal statute unnecessary. “Congress’s breach of its treaty promises of communal land ownership … and tribal self-government, combined with the creation of Oklahoma, amply overcomes the presumption that Congress does not lightly abrogate its treaty promises or diminish a reservation,” the state argues.​

So, yes, the state and federal governments are specifically arguing that their own violation of the treaty--their own bad acts--justify their continued violation.

Talk about perverse incentives. Imagine if we applied that to contracts in general. Bank: "gee, Mr. Depositor, I know we agreed to keep your money safe, but now that we've failed to do that, we're justified in disregarding the agreement entirely and just keeping it for ourselves."

 

[Frederick]

Incidentally, the State of Oklahoma and the federal government both agree with you:

From TFA:

How can that be? In 1832, President Andrew Jackson pushed through the policy of “removal” of Indian nations from the eastern U.S., which destroyed the historic land base of the “civilized tribes.” He promised the tribes new land in the West to be theirs “as long as the grass grows or the water runs, in peace and plenty.” After the Trail of Tears, the U.S. signed a treaty that “solemnly guarantied” the new reservation lands in what is now Oklahoma.

Many tribes elsewhere have found to their regret that Congress is permitted to decide that the grass ain’t growing any more. It can abrogate some or all treaty obligations—and even “terminate” a tribe altogether. But case law says there is a “clear statement” rule: If Congress wants to end a reservation, it has to say so.

It apparently did not. The Tenth Circuit said it couldn’t find any statute ending the reservation created by the Creek Nation’s treaty of 1832. Nor could it find evidence that Congress at any time showed a desire to abolish the reservation. Applying a 1983 precedent called Solem v. Bartlett, the court reasoned that all 3 million acres, whether owned by Indians, non-Indians, the federal government, or state or city governments, remained “Indian country.” Under the Major Crimes Act, Murphy’s conviction was void and he was entitled to a retrial in federal court.

Chief Judge Timothy Tymkovich, in a separate concurrence, agreed that the Solem opinion required the court to hold against Oklahoma. However, he said dryly, the high court might want to look at Solem again. “This challenging and interesting case makes a good candidate for Supreme Court review,” he wrote. The Supreme Court granted certiorari in May.

Before the Court, Oklahoma argues that the contemptuous treatment of the tribe by the state and federal government after allotment makes a formal statute unnecessary. “Congress’s breach of its treaty promises of communal land ownership … and tribal self-government, combined with the creation of Oklahoma, amply overcomes the presumption that Congress does not lightly abrogate its treaty promises or diminish a reservation,” the state argues.​

So, yes, the state and federal governments are specifically arguing that their own violation of the treaty--their own bad acts--justify their continued violation.

Talk about perverse incentives. Imagine if we applied that to contracts in general. Bank: "gee, Mr. Depositor, I know we agreed to keep your money safe, but now that we've failed to do that, we're justified in disregarding the agreement entirely and just keeping it for ourselves."

an agreement between two individuals governed by the law is different in my view than an agreement between two sovereign/separate nations. I don't argue that it sucked what happened to the Native Americans, but it was merely the story of human civilization. A weaker nomadic tribe displaced by a stronger, more centralized one.

Treaties are important, but we have to ask, Is it OK that in the United States there is a government who has its basis in race and heredity? those treaties were signed in a very different time and era, and they're not applicable nor do they make sense today. Let's not let our emotions disguise the modern implications of these treaties. We have to adapt them to modern times. Are reservations and tribal sovereignty even really in the best interests of the members of those tribes? or does it merely continue for the indian continued dependence on the federal government?

treaties are not Bible text. Even the Constitution can be changed, and there is good reason for that. treaties are merely textual agreements, not permanent features. They're only law insofar as we agree to them. The Natives are just as capable of doing the same, only that their power is much weaker than ours by virtue of the reality that only 2% of the modern United States constituted native Americans. The only way to get justice in the way some seek it would be by basically dissolving half the United States or more.

and if outright conquest is better for the United States, so be it. To me, what we did to the Native Americans constituted a conquest, and the 'agreement' was in name only. The treaties were merely pretexts, excuses for the practical facts on the ground.

 

[dennishoddy]

It's not so easy to change the Constitution. Our 1A and 2a dates before the treaties and I don't want to change that.

 

[Dave70968]

Treaties are important, but we have to ask, Is it OK that in the United States there is a government who has its basis in race and heredity? those treaties were signed in a very different time and era, and they're not applicable nor do they make sense today.

As Dennis points out, there are those who say the same of several provisions in the Constitution that predate those treaties. As Dennis also points out, there's a procedure for changing those provisions. The article notes that court precedents--affirmed as recently as two years ago--that there's also a procedure for disestablishing reservations and otherwise abrogating the treaty.

That procedure has not been followed. The state and feds are both arguing that "well, we've stomped on it so long and so hard that it just doesn't apply anymore." Do you really want that precedent to be established? Do you want that to be on the books when the Brady Bunch brings a challenge against the Second Amendment, and points out the Army-Navy Laws, NFA '34, GCA '68, the Brady Bill, the AWB, capacity restrictions, ownership qualifications, and a whole host of other infringements as a basis for saying "yeah, that dated old thing was from a different time, and besides, we've stomped on it so much that it doesn't count anyway, process be damned?" Because that's the argument here.

treaties are not Bible text. Even the Constitution can be changed, and there is good reason for that.

Yes, and there's a clearly-defined process for changing both. It hasn't been followed here.

and if outright conquest is better for the United States, so be it. To me, what we did to the Native Americans constituted a conquest, and the 'agreement' was in name only. The treaties were merely pretexts, excuses for the practical facts on the ground.

So...our laws and our solemn promise are merely pretexts, "agreements" that aren't worth the paper they're written on? What do you think that will do for our credibility in negotiating future treaties if we make it our policy that they're utterly meaningless, and we'll do as we damned well please, whenever it pleases us?

Think about the power you propose, and imagine it in the hands of someone who would use it against you.

 

[Frederick]

As Dennis points out, there are those who say the same of several provisions in the Constitution that predate those treaties. As Dennis also points out, there's a procedure for changing those provisions. The article notes that court precedents--affirmed as recently as two years ago--that there's also a procedure for disestablishing reservations and otherwise abrogating the treaty.

That procedure has not been followed. The state and feds are both arguing that "well, we've stomped on it so long and so hard that it just doesn't apply anymore." Do you really want that precedent to be established? Do you want that to be on the books when the Brady Bunch brings a challenge against the Second Amendment, and points out the Army-Navy Laws, NFA '34, GCA '68, the Brady Bill, the AWB, capacity restrictions, ownership qualifications, and a whole host of other infringements as a basis for saying "yeah, that dated old thing was from a different time, and besides, we've stomped on it so much that it doesn't count anyway, process be damned?" Because that's the argument here.


Yes, and there's a clearly-defined process for changing both. It hasn't been followed here.

So...our laws and our solemn promise are merely pretexts, "agreements" that aren't worth the paper they're written on? What do you think that will do for our credibility in negotiating future treaties if we make it our policy that they're utterly meaningless, and we'll do as we damned well please, whenever it pleases us?

Think about the power you propose, and imagine it in the hands of someone who would use it against you.

first off, i'd like to say that i appreciate your argumentation and the points you make. I would say that in many cases you have good points.

I would concede that it would be better that such treaties be modified or abrogated by the Congress, as opposed to just unilaterally ignored.

If the Native American governments were more representative of the potential populace they would be governing , i would have no problems with it. The issue for me is that the Native American government is based on race and heredity, which would then be extended to half of Oklahoma.

as far as our credibility, look at what we did with the Iran deal, and NAFTA. Treaties are important, but they're agreements and nothing more. larger countries write agreements with smaller countries all the time, since time immemorial. What happens when a stronger country no longer wants to follow that treaty? They can abrogate it and they often do. I see treaties merely as temporary agreements. We should seek to follow them in good faith, but no treaty should be permanently binding. We disregarded the treaty and that was wrong, but i also believe we have the unilateral right to dissolve the treaty as a sovereign nation.

I think when a treaty no longer reflects the time and reality it was crafted it, it is not only the right of a nation to abrogate or negotiate a new treaty, but it is necessary to do so.

do we really want the 6% of native Americans in Oklahoma to be able to levy taxes on majority of Oklahoma without our consent? Isn't that what we had a revolution for?

 

[Dave70968]

first off, i'd like to say that i appreciate your argumentation and the points you make. I would say that in many cases you have good points.

I would concede that it would be better that such treaties be modified or abrogated by the Congress, as opposed to just unilaterally ignored.

If the Native American governments were more representative of the potential populace they would be governing , i would have no problems with it. The issue for me is that the Native American government is based on race and heredity, which would then be extended to half of Oklahoma.

as far as our credibility, look at what we did with the Iran deal, and NAFTA. Treaties are important, but they're agreements and nothing more. larger countries write agreements with smaller countries all the time, since time immemorial. What happens when a stronger country no longer wants to follow that treaty? They can abrogate it and they often do. I see treaties merely as temporary agreements. We should seek to follow them in good faith, but no treaty should be permanently binding. We disregarded the treaty and that was wrong, but i also believe we have the unilateral right to dissolve the treaty as a sovereign nation.

I think when a treaty no longer reflects the time and reality it was crafted it, it is not only the right of a nation to abrogate or negotiate a new treaty, but it is necessary to do so.

do we really want the 6% of native Americans in Oklahoma to be able to levy taxes on majority of Oklahoma without our consent? Isn't that what we had a revolution for?

There's a very simple solution to that problem. As you say, we can abrogate a treaty. As I've said, there's a process for doing so. Nothing about a court decision in the appellant's favor would stop the Congress from stepping up and taking the appropriate steps to do so, even after such a decision is rendered.

Whether the political will exists is a political question, not a legal question, and such things are "non-justiciable."