[Congressional Record Volume 148, Number 125 (Monday, September 30, 2002)]
[Senate]
[Pages S9591-S9592]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           TREATY TRIBES LOCATED IN THE STATE OF SOUTH DAKOTA

 Mr. JOHNSON. Mr. President, I am honored to represent a State 
that has nine treaty tribes. It has become increasingly clear that 
nothing is more important to the tribes of South Dakota than the 
recognition of the obligations this Nation has to the Indian people of 
South Dakota as spelled out by the treaties entered into by the United 
States Government and the tribes of South Dakota. Especially at the 
urging of President John Steele of the Oglala Sioux Tribe and Chairman 
Andrew Grey of the Sisseton-Wahpeton Sioux Tribe, I offer this 
statement pertaining to this issue of critical importance to the tribes 
located within my home State of South Dakota. As you know, the South 
Dakota tribes have a proud history of providing leadership to Indian 
issues. I thank President Steele and Chairman Grey for helping me 
understand this issue. It is with the utmost respect that I share with 
you some of our tribes' perspective on what treaties mean to them, as 
follows:

       It is important to note that each of the Tribes located in 
     the State of South Dakota have entered into treaties with the 
     Federal Government. All federally recognized Indian tribes 
     and villages are often categorized into the same class. 
     However, important rights were guaranteed to the South Dakota 
     tribes by treaty, and many of these rights continue to be 
     enforceable today. From the first treaty with the Delawares 
     in 1787 until the end of treaty-making in 1871, hundreds of 
     agreements were entered between the Federal Government and 
     various bands and tribes of Indians. Provisions of the 
     treaties differ widely, but it was common to include a 
     guarantee of peace, a delineation of boundaries, often with a 
     cession of specific lands from the tribe to the Federal 
     Government, a guarantee of Indian hunting and fishing rights, 
     often applying to the ceded land, a statement that the tribe 
     recognized the authority or placed itself under the 
     protection of the United States, and an agreement regarding 
     the regulation of trade and travel of persons in the Indian 
     territory. Treaties also commonly included agreements by each 
     side to punish and compensate for acts of depredation by 
     ``bad men'' among their own number, a clause that still can 
     support a claim against the Unites States. See Tsosie v. 
     United States, 825 F.2d 393 (Fed.Cir. 1987).
       Indian treaties stand on essentially the same footing as 
     treaties with foreign nations. Because they are made pursuant 
     to the Constitution, they take precedence over any 
     conflicting State laws by reason of the Supremacy Clause. 
     U.S. Const., Art. VI, Sec. 2; Worcester v. Georgia, 31 U.S. 
     (6 Pet.) 515 (1832). They are also the exclusive prerogative 
     of the Federal Government. The First Trade and Intercourse 
     Act, 1 Stat. 137 (1790), forbade the transfer of Indian lands 
     to individuals or States except by treaty ``under the 
     authority of the United States.'' This provision, repeated in 
     later Trade and Intercourse Acts, has become of tremendous 
     importance in recent years, for several eastern States 
     negotiated large land cessions from Indian tribes near the 
     end of the eighteenth century. In County of Oneida v. Oneida 
     Indian Nation, 470 U.S. 226, (1985), the Court held invalid a 
     treaty entered in 1795 between the Oneidas and the State of 
     New York. The treaty, which had been concluded without the 
     participation of the Federal Government, transferred 
     100,000 acres of Indian lands to the state. The Court held 
     that the tribe still had a viable claim for damages. 
     Similar claims exist in other eastern states; in Maine, 
     the likely invalidity of a 1795 state-tribal treaty 
     clouded land titles covering about sixty percent of the 
     State until legislation settled the issue. See Joint 
     Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 
     370, 1st Cir.1975; Maine Indian Claims Settlement Act, 
     P.L. 96-420, 94 Stat. 1785, 1980.
       Not only is the treaty-making power exclusively federal, it 
     is almost entirely presidential. While it is true that two-
     thirds of the Senate must concur in any treaty, the 
     initiation of the process and the terms of negotiation are 
     inevitably controlled by the executive branch. Indeed, there 
     were many instances, especially in California, where 
     executive officials negotiated treaties and acted upon them 
     despite the failure of the Senate to ratify them. In the 
     middle of the eighteenth century, Congress and particularly 
     the House of Representatives grew increasingly resentful of 
     being excluded from the direction of Indian affairs. The 
     ultimate result was the passage in 1871 of a rider to an 
     Indian appropriations act providing that ``No Indian nation 
     or tribe . . . shall be acknowledged or recognized as an 
     independent nation, tribe, or power with whom the United 
     States may contract by treaty.'' 25 U.S.C.A. Sec. 71. The 
     rider also specified that existing treaty obligations were 
     not impaired. As an attempt to limit by statute the 
     President's constitutional treaty-making power, the rider may 
     well be invalid, but it accomplished its purpose nonetheless 
     by making it clear that no further treaties would be 
     ratified. Indian treaty-making consequently ended in 1871. 
     Thereafter formal agreements made with the tribes were either 
     approved by both houses of Congress or were simply embodied 
     in statutes.
       Congress, in declaring that Indian tribes should no longer 
     be acknowledged as independent political entities with whom 
     the Untied States might contract by treaty, did not end the 
     tribal organization of Indian communities. The solution to 
     the 1871 Act was the use of ``treaty substitutes that 
     consisted of agreements that were directed and authorized by 
     Congress. Yet, other agreements were negotiated by the Indian 
     Office to solve particular needs or resulted from Indian 
     initiative. Most concerned cessation of land or other 
     modification of boundaries whereby the need to declare peace 
     between two sovereign nations was no longer an essential 
     goal. Although such agreements were similar to treaties, 
     Tribal consent was no longer a prerequisite to establish a 
     binding agreement.
       Many reservations were established by Executive Order 
     issued by the President of the United States. Although no 
     general law existed authorizing set asides for Indian use, 
     Congress and the public acquiesced and the Courts upheld the 
     action. Executive orders differed from treaties wherefore 
     they could be easily changed and a new one substituted as 
     occasion demanded. They were neither uniform in terminology 
     nor scope. In addition, a reservation could be established by 
     administrative action prior to the issuance of an executive 
     order and later sanctioned by the official action taken by 
     the President. A 1952 Report by the Commissioner of Indian 
     Affairs found that of the total of 42,785,935 acres of Tribal 
     trust land only 9,471,081 acres had been established by 
     Treaty

[[Page S9592]]

     and the remaining 23,043,439 acres of trust land were 
     established by executive order.
       Federally-recognized Indian tribes in South Dakota signed 
     the Treaty of Fort Laramie with the desire to declare peace 
     and thereby perpetuate a Nation-to-Nation relationship with 
     the Federal Government. The common misperception that most 
     Tribes have entered into treaties with the United States 
     serves as a great injustice to Tribes who have entered into 
     such formal and solemn agreements. In 1890 there were 162 
     established Tribes; 56 of those were established by executive 
     order, 6 by executive order under the authority of Congress, 
     28 by acts of Congress, 15 by treaty and executive order, 5 
     by treaty or agreement and an act of Congress, 1 by 
     unratified treaty and 51 by treaty or agreement. The treaty 
     establishing the South Dakota Tribes is a contract negotiated 
     between sovereign nations, relating to peace and alliance 
     formally acknowledged by the signatories of the nations. The 
     United States entered into such agreement because they 
     desired peace and cessions of land from the Sioux Tribes, and 
     in return they made promises that must be upheld. In 
     conclusion, it is appropriate to recognize the special status 
     of the treaty tribes located in South Dakota.

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