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 firstname.lastname@example.org.