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Federal Indian law and treaties: friend or foe?

At one time, treaties between Indian tribes and the U.S. government formed the cornerstone of Indian law. A cornerstone laid with care and dignity in order to establish a diplomatic and legal structure that guaranteed the vitality and endurance of these mutually exchanged promises and undertakings. Yet today this treaty cornerstone appears to be eroding, perhaps even on the brink of collapse. Why? The answer points to a growing historical disregard - even amnesia - manifested by Congress and the U.S. Supreme Court about this shared heritage and foundational understanding.

This foundational understanding was originally forged in the diplomatic context of military and indigenous-settler encounters and consists of several distinct elements. They include a recognition of tribal sovereignty, a federal commitment to tribes in the areas of education and health care, a mutual recognition of the federal obligation to act with "trust" in regard to tribal land and resources, and an ongoing bond of respect and friendship. These federal obligations were not the result of unilateral generosity, but flowed from a bargained-for exchange in which the federal government achieved its objectives of an end to hostilities and the transfer of significant amounts of tribal land.

This cluster of mutual duties and responsibilities was clearly recognized in many Supreme Court cases such as United States v. Winans (1905) and Winters v. United States (1908). These cases - which remain good law today - are noteworthy for their adherence to both the letter and spirit of the fundamental treaty endeavor. As the Winans court noted, "the treaty was not a grant of rights to the Indians, but a grant of rights from them - a reservation of those rights not granted."

Even in the context of many other treaties negotiated on unfavorable terms to tribes due to their unequal bargaining position, the Court fashioned unique canons of construction in order to maintain fidelity to an essential mutuality. These canons are essentially threefold: treaty ambiguities must be resolved in favor of Indian parties, treaties must be interpreted as the tribes would have understood them, and Indian treaties must be liberally construed in favor of the Indians.

While neither of the mentioned cases nor the canons of construction have been explicitly overruled or limited by either the Supreme Court or Congress, these principles have clearly fallen on hard times. The Court appears ever more willing to find congressional intent to abrogate treaties in such cases as United States v. Dion (1986) or to find a lack of the requisite ambiguity to invoke the canons of construction in such cases as South Dakota v. Yankton Sioux Tribe (1998).

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The Court has also greatly muted its recognition of tribal sovereignty as a core element of the treaty relationship. The Court has increasingly - though not absolutely - required some kind of congressional authorization to support tribal authority over non-Indians (especially on fee land) in the run of cases from Montana v. United States (1981) through Nevada v. Hicks (2001). Treaty discussion in these cases is sparse to non-existent.

The critical point is not simply to point out - as others already have - the Supreme Court's waivering, perhaps fatally fading, recognition of tribal sovereignty involving non-Indians, but rather to challenge tribes and the Indian law community to undertake new and creative ways of renovating the meaning and importance of treaties for contemporary Indian law and politics. In other words, the goal is not to employ a taxonomy of finger-pointing, but to engage in a process of translation that seeks to contemporize the core commitments of treaties to tribal sovereignty, to a beneficial "trust" relationship and to the provision of bargained-for services. For example, what exactly do those "old" treaty promises to education and health care mean today? What does a more balanced trust relationship mean? What does the government-to-government relationship mean? In all this, there is perhaps a "new" treaty agenda to establish reliable and enduring benchmarks for a new era.

As Rob Williams of the University of Arizona School of Law has noted, the original essence of treaty relations consisted of a way to establish connections on a multi-cultural frontier. In these connections of aid and hospitality characterized by continuance, renewal, and forgiveness, there is the ongoing responsibility to rework and to reinvigorate this precious legacy.

While the Supreme Court and Congress continue to avoid the challenges of this legacy, the rest of us should not. For we need to remember that Indian law provokes the deepest and most enduring questions about the nature of law in our society. The entire field rests, sometimes precariously, on the viability and vitality of the historical promises contained in treaties. The future course of Indian law is inseparable from the fate of these sovereign covenants. Time has wrought its changes, but the basic challenge to fashion a just and pluralistic society remains. It is the cornerstone responsibility of treaty law to be an intellectual and moral lodestar in this effort.

Frank Pommersheim is a professor of law at the University of South Dakota School of Law.