First Ministers’ Conference on Aboriginal Constitutional Matters, Supporting Documentation on the Treaties (15-16 March 1983)

Document Information

Date: 1983-03-15
By: Secretariat of the Conference
Citation: First Ministers’ Conference on Aboriginal Constitutional Matters, Supporting Documentation on the Treaties, Doc 800-017/006 (Ottawa: 15-16 March 1983).
Other formats: Coming soon.

DOCUMENT: 800-17/O06




March 15-16, 1983


MARCH 15-16, 1983


RE: Summary of American case law of those decisions
which most positively stated (i) that Indian treaties
are of an international character and (ii) most
Indian treaties are to be interpreted liberally

1. Re: Case law stating that Indian treaties are of an international
character. That treaties with Indian tribes are of the same
dignity as treaties with foreign nations is a principle which
has been confirmed by the Supreme Court of the United States.
When critics complained that Indian tribes were not “nations”
in the European sense, the Supreme Court in Worcester v. Georgia
31 U.S. S15, (1832) responded that: “I.”

lhe words “treaty” and “nation” are words of
our language, selected in our diplomatic and
legislative proceedings, by ourselves, having
each a definite and well understood meaning.
we have applied them to Indians as we have
applied them to other nations of the earth.
They are applied to all in the same sense. (at p. 559)

In Worcester v. Georgia, supra, a non-Indian was arrested for living
within CherokEe territory without permission from the state authorities.
He was convicted for violating a Georgia law that required such permis-
sion and was sentenced to four years at hard labor by a Georgia court.
On appeal, Supreme Court overturned Worcester’s conviction and declared
the state law unconstitutional.

In reaching its decision the Supreme Court relied upon the constitutio-
nal doctrine that the regulation of Indian affairs was granted to the
federal government rather than the states: “(Georgia’s laws) interfere
forcibly with relations between the United States and the Cherokee
Nation, the regulation of which according to settled principles of
our Constitution, are committed exclusively to the government of the
Union.” at P. 561

The Court recognized that Indian nations were “distinct political
communities, having territorial boundaries within which their autho-
rity is exclusive and having rights to all lands within those bound-
aries”…at p. 557, Moreover, the court noted that the sovereign na-
ture of Indian tribes had also been recognized by the federal govern-
nent in treaties with Indian nations, at p. 556. Since the Cherokee
Nation retained its inherent sovereignty, the state of Georgia could
not impose its laws over the Cherokee Nation. Instead, the relation-
ship between the Cherokee Nation and citizens of the U.S. was Strictly
a matter between the Cherokees and the federal government.

February 18, 1982
Page two

The case of Turner v. American Baptist Missionary Union 24 Fed. Case
No. 14251 (c.c. Mich. 1852) gave an eloquent definition of the legal
status of Indian treaties:

It is contended that a treaty with Indian tribes, has
not the same dignity or effect, as a treaty with a foreign
and independent nation. This distinction is not authorized
by the Constitution. Since the commencement of the govern-
ment treaties have been made with the Indians, and the
treaty-making power has been exercised in making them. They
are treaties, within the meaning of the Constitution, and,
as such, are the supreme laws of the land (p. 346)

In 1828 Attorney General William Wirt wrote an opinion. (2 op.
A.G. 1lO) for President Andrew Jackson in which he discussed the
question of the dignity of Indian treaties. In this opinion
pertaining to the Treaty of Indian Spring, the Attorney General
found it necessary to answer the contention that treaties with
Indians were not effective because they were not treaties with
an independent nation, and because even if independent the Indians
were uncivilized. In discussing the first objection the Attorney
General said in part:

If it be meant to say that, although capable of treating,
their treaties are not to be construed like the treaties of
nations absolutely independent, no reason is discerned for
this distinction in the circumstance that their independence
is of a limited character. If they are independent to the
purpose of treating, they have all the independence that is
necessary to the argument…The point, then, once conceded,
that the Indians are independent to the purpose of treating,
their independence is, to that purpose, as absolute as that of
any other nation.

Nor can it be conceded that their independence as a nation is
a limited independence. Like all other independent nations,
they are governed solely by their own laws. Like all other
independent nations, they have the absolute power of war and
peace. Like all other independent nations, their territory
is inviolable by any other sovereignty. Questions have arisen
as to the character of their title to that territory; but these
discussions have resulted in this conclusion: that, whether their
title be that of sovereignty in the jurisdiction or the soil, or
a title by occupancy only, it is such a title as no other nation
has a right to interfere with, or to take from them; and which
no other nation can rightfully acquire, but by the same means
by which the territory of all other nations, however absolute
their independence may be acquired–that is, by cession or

February 18, 1982
Page three

As a nation they are still free and independent. They are
entirely self-governed–self-directed. They treat, or refuse
to treat, at their pleasure; and there is no human power
which can rightfully control them in the exercise of their
discretion in this respect. In their treaties, in all their
contracts with regard to their property, they are as free,
sovereign, and independent as any other nation. And being
bound, on their own part, to the full extent of their contr-
acts, they are surely entitled, on every principle of reason,
justice and equity to hold those with whom they thus treat
and contract equally bound them. Nor canal discover the
slightest foundation for applying different rules to the con-
struction of their contracts from those which are applied to
all other contracts, because they reside within the local
limits of the sovereignty of Georgia. (pp. 132-135)

As noted by Felix Cohen, an eminent American scholar of Indian law, “The
fact that Congress has, by legislation, repealed, modified, or disregarded
various Indian treaties has been thought by some to show that Indian treaties
are of inferior legal validity. The fact is, however, that the power of
Congress to enact legislation in conflict with treaties is well established
in the field of foreign affairs.” Cohen, Handbook of Federal Indain Law,
pp. 34-35.

The fact that the United States has broken treaties reflects negatively
upon the integrity of the United States, not upon the integrity of the
Indian treaties. Indian treaties have as much force as treaties with any
other nation. This latter principle was once again recently enunciated by
the Supreme Court in Washington v. Washinggon State Comnercial Passenger
Fishingn Vessel Association 443. UIS. 658 (1979).

At issue in the case was the interpretation of various treaties signed in
1854 and 1855 between the United States and a number of Indian nations
living in the coastal regions of Washington state. In these treaties,
the tribes relinquished their interests in a vast amount of land in ex-
change for monetary compensation, relatively small parcels of land, and
other guarantees such as protection of their Wright of taking fish at
usual and accustomed grounds…in common with all citizens of the territory.”

The major issue was the interpretation of this phrase. The Supreme Court
held that the term “in Common with” meant Indians had a right to take a
certain amount of the harvestahle fish, (45 to 50 percent), rather than
merely an opportunity to try to catch some fish.

February 18, 1982
Page four

The Court reasoned that the treaties were signed between
sovereign nations which reserved to themselves an approxi-
mately equal percentage of a harvestable natural resource.
Thus the Court stated:

…a treaty, including one between the United
Statesfand an Indian tribe, is essentially a
contract between two sovereign nations. when
the signatoryrnations have not been at war,
and neither is vanquished, it is reasonable to
assume that they negotiated as equals at arms
length. There is no reason to doubt that this
assumption applies to the treaty at issue here.
Accordingly, it is the intention of parties,
and not solely that the superior side that must
control any attempt to interpret the treaties.
at pp. 676 (Emphasis supplied)

* Please see attached copies of all cases referred to above. Also, please
note, that although you only asked for a summary of pertinent case law, we
have also enclosed a section from The Handbook of Federal Indian Law by
Felix Cohen pertaining to those aspects of treaty provisions with Indian
tribes which illustrate the international status of Indian tribes.

February 18, 1982
Page five

II. Liberal interpretation of Indian treaties

In recognition of the cultural differences and disadvantages under which
Indians operated during treaty negotiations, several rules of construction have
been developed by the United States courts to interpret Indian treaties. In
the landmark decision of Worcester v. Georgia 31. U.S. 350, 393 (1832) the
Supreme Court stated that, “the language used in treaties with Indians shall
never be construed to their prejudice.” Since that time the Supreme Court
has developed a set of rules for interpreting Indian treaties that in general
have been fair to Indian people. The courts have recognized that the wording
of treaties did not always coincide with what was told to the Indians at the
signing ceremony. United States courts have also recognized the difference
between written treaties and the oral tradition of Indian nations, and have
made an effort to compensate for the difference.

In accord with the above, the following interpretive doctrines have been
carved out by the courts:

1. In interpreting Indian treaties, ambiguities are no be resolved in
favor of the Indians.

In McClanahan v. State Tax Commission of Arizona 411 U.S.
l64, 174 (1973)the Supreme Court held that Arizona could
not impose its state income tax on a reservation Indian
who earned her entire income on the reservation. The
treaty between the Navajo and the United States which the
court was called upon to interpret nowhere explicitly
stated that the Navajos were to be free from state law or
exempt from state income tax.

However, the court interpreted the treaty as follows:

The agreement provided, in relevant
part, that a prescribed reservation
would be set aside “for the use and
occupation of the Navajo tribe of
Indians” and that “no persons except
those herein so authorized to do, and
except such officers, soldiers,
agents, and employees of the govern~
ment, or of the Indians, as may be
authorized to enter upon Indian re~
servations in discharge of duties
imposed by law, or the orders of the
President, shall ever be permitted
to pass over, settle upon, or reside
in, the territory described in this

February 18, 1982
Page six

The treaty nowehere explicitly states
that the Navajos were to be free from
state law or exempt from state taxes.
But. the document is not to be read as
an ordinary contract agreed upon by
parties dealing at arm’s length with
equal bargaining positions. We have
occasion in the past to describe the
circumstances under which the agree-
ment was reached. “At the time this
document was signed the Navajos were
an exiled people, forced by the United
States to live crowded together on a
small piece of land on the Pecos River
in eastern New Mexico, some 300 miles
east of the area they had occupied
before the coming of the white man.
In return for their promises to keep
peace, this treaty “set apart” for
“their permanent home” a portion of
what had been their native country.”
Williams v. Lee, 358 U.S., at 221,
79 S. Ct., at 271.

It is circumstances such as these which
hgve led this’Court in interpreting
Indian treaties, to adopt the general
rule that “(d)oubtful expressions are
to be resolved in favor of the weak ahd
defenseless people who are the wards of
the nation, dependent upon its protec-
tion and wood faith.” Carpenter v. Shaw,
280 u.s. 363, 367, SO S. Ct. 121, 122,
74 L. Ed. 478 (1930) (Emphasis supplied)

February 18, I982
Page seven

In Winters v. United States 207 U.S. S64 (1908) although water rights
were not explicitly reserved by the Gros Ventre and Assiniboine bands or tribes
in the hey 1888 agreement whereby they ceded their lands in exchange for the
creation of the Fort Belknap Indian Reservation, these water rights were
found to be implied through application of the above stated interpretive canon.

In finding that water rights should be interpreted to be implicit in the
agreement, because they were necessary for the purposes for which the reserv-
ation was created, the court reasoned as follows:

The case, as we view it, turns on the agreement of
May, 1888, resulting in the creation of Fort Belknap
Reservation. In the construction of this agreement
there are certain elements to be considered that are
prominent and significant. The reservation was a part
of a very much larger tract which the Indians had the
right to occupy and use, and which was adequate for
the habits and wants of a nomadic and uncivilized
people. It was the policy of the government, it was
the desire of the Indians, to change those habits and
to become a pastoral and civilized people. If they
should become such, the original tract was too exten-
sive; but a smaller tract would be inadequate with-
out a change of conditions. The lands were arid,
and, without irrigation, were practically valueless.
And yet, it is contended, the means of irrigation were
deliberately given up by the Indians and deliberately
accepted by the government. The lands ceded were, it
is true, also arid; and some argument may be urged, and
is urged, that with their cession there was the cession
of the waters, without which they would be valueless,
and “civilized communities could not be established
thereon.” And this, it is further contended, the
Indians knew. and vet made no reservation of the waters.
We realize that there is a conflict of implications, but
rthat wh1ch.makes’for’the retention of the waters is of
greater force than that which makes for their cession.
the Indians had command or the lands and the waters,–
command of all their beneficial use, whether kept for
hunting, “and grazing roving herds of stock,” or turned
to agriculture and the arts of civilization. Did they
give up all this? Did they reduce the area of their
occupation and give up the waters which made it valuable
or adequate/ And, even regarding the allegation of the
answer as true, that there are springs and streams on
the reservation flowing about 2,900 inches of water,
the inquiries are pertinent. If it were possible to be-
lieve affirmative answers, we might also believe that the
Indians were awed by the power of the government or
deceived by its negotiators. Neither view is possible.
The government is asserting the rights of the Indians.

February 18, 1982
Page eight

But extremes need not be taken into account.
by a rule of interpretation of agreements and
treaties with the Indians, ambiguities occur-
ing will be resolved from the standpoint of
the Indians. And the rule should certainlyhe
applied to determine between two inferences,
one of which would support the purpose of the
agreement and the other impair or defeat it.
On account of their relations to the government,
it cannot be supposed that the Indians were
alert to exclude by formal words every infer-
ence which might militate against or defeat the
declared purpose of themselves and the govern-
ment, even if it could be supposed that they
had the intelligence to foresee the “double
sense” which might some time be urged against
them, (Emphasis supplied) at p. 211

In Carpenter v. Shaw 280 U.S. 363 (1930) the Supreme Court denied the State
of Oklahoma the right to impose a state tax on the royalty interests in
petroleum and natural gas generated from Indian allotment lands. The state
contended that although under the Atoka Agreement with the Choctaw and Chick-
asaw tribes allotment lands were to be non-taxable, the royalty tax was a
tax imposed only on oil and gas when severed from the land and was therefore
a tax on personalty not embraced within the tax exemption of the Atoka Agree-

The court in holding that the provision of the Atoka Agreement that “the
lands allotted shall be non-taxable while title remains in the allottees”
could not be restricted only to land or real estate taxes, reasoned as

While in general tax exemptions are not to be
presumed and statutes conferring them are to be
strictly construed, Heiner v. Colonial Tr. Co.,
275 U.S. 232, 48 S. Ct. 65, 72 L. Ed. 256, the
contrary 15 the rule to be applied to tax exemp-
tions secured to the Indians by agreement
between them and the national government.

Such provisions are to be liberally construed.
Doubtful expresseions are to be resolved in
favor of the weak and defenseless people Who are
the wards of the nation, dependent upon its
protection and good faith.

Having in mind the obvious purpose of the Atoka
Agreement to protect the Indians from the burden
of taxation with respect to their allotments and .
this applicable principle of construction, we
think the provision that “the lands allotted
shall be non-taxable while the title remains in
the allottees”

February 18, 1982
Page nine

cannot be taken to be restricted only to
those taxes commonly known as land or real
estate taxes, but must be deemed at least
to embrace a tax assessed against the
allottees with respect to a legal interest
in their allotment.lesS than the whole,
acquired or retained by them by virtue of
their ownership.

2. Another major principle in interpreting Indian treaties is that the
terms of a treaty are to be interpreted or construed not according to the
technical meaning of the words, but in the way in which they would naturally
be understood by the Indians at the time of signing.

The Supreme Court in Jones 3, Meehan l7S U.S.l, 10-11 (1899) listed
its reasons for adopting this principle.

In construing any treaty between the United
States and an Indian tribe, it must always…
be borne in mind that the negotiations for
the treaty are conducted, on the part of the
United States, an enlightened and powerful
nation, by representatives skilled in diplo-
macy, masters of a written language, under-
standing the modes and forms of creating the
various technical estates known to their law,
and assisted by an interpreter employed by
themselves; that the treaty is drawn up by
them and in their own language; that the
Indians, on the other hand, are a weak and
dependent people, who have no written langu-
age and are wholly unfamiliar with all the
forms of legal expression, and whose only
knowledge of the terms in which the treaty is
framed is that imparted to them by the inter-
preter employed by the United States; and that
the treaty must therefore be construed, not
according to the technical meaning of its words
to learned lawyers, but in the sense in which
they would naturally be understood by the

In Choctaw Nation v. Oklahoma 397 U.S. 620, (1970) the Supreme Court
applied the above stated interpretive canon to hold that under various
treaties (including the Treaty of Dancing Rabbit Creek in 1830 and the Treaty
of New Echola in 1835 between the United States and the Cherokees) and patents
issued thereunder, that the Cherokee, Choctaw and Chickasaw Nations received
title to lands underlying the Arkansas River in Oklahoma. The Court so held,
in opposition to the states contention that the bed of the Arkansas River was
not included in the grants to the Indian nations. The state contended that,

February 18, 1982
Page ten

“the Arkansas River was not included in grants to petitioners even by
accepted standards of ordinary conveyancing since to a skilled draftsman,”
“the land descriptions in the treaties, standing alone, actually exclude
the river beds.” at p. 628/

The court rejected the states contention as follows: “Together the petition-
ers (Indian tribes) were granted fee simple title to a vast tract of land
through which the Arkansas River winds its course. The natural inference

from those grants is that all land within their metes and bounds was conveyed,
including the banks and beds of the rivers” at p. 634. In reaching this
conclusion the court stated:

About all that can be said about the treaties
from the standpoint of a skilled draftsman is
that they were not skillfully drafted. More
important is the Fact that these treaties are
not to be considered as exercises in ordinary
conveyances; The Indian nations did not seek
out the United States and agree upon an exchange
of lands in an arm’s-length transaction. Rather,
treaties were imposed upon them and and that had no
choice but to consent. As a consequence, this
Court has often held that treaties with the
Indians must be interpreted as they would have
understood them, see. e.g., Jones V. Meehan, 175
U.S. O, 11 (1899), and any doubtful expressions
in them should be resolved in the Indians’
favor, at pp. 630-631 (Emphasis supplied)

In United States v. Shoshone Tribe 304IJ.S. 111 (1938) the Supreme Court up-
held the Shoshones contention that the language in the Treaty of July 2, 1863
whereby a reservation was created “(to be) set apart for the absolute and
undisturbed occupation or the Shoshone Indians” thereby included the ownership
of timber and minerals within the reservation.

In reaching its conclusion the Court stated:

The phrase “absolute and undisturbed use and
occupation” is to be read, with other parts of
the document, having regard to the purpose of
the arrangement made, the relation between the
parties, and the settled policy of the United
States fairly to deal with Indian tribes. In
treaties made with them the United States seeks
no advantage for itself; friendly and dependent
Indians are likely to accept without discrimi-
nating scrutiny the terms proposed. They are
not to be interpreted narrowly, as sometimes
may be writings expressed in words of art
employed by conveyances, but are to be con-

February 18, 1982
Page eleven

strued in the sense in which naturally the
Indians would understand them. Worcester V.
Georgia, 6 Pet. SIS, 582. Jones v. Heehan,
175 U.S. 1, ll. Starr v. Long Jim, 227 U.S.
613, 622-623.

The principle purpose of the treaty was that
the Shoshones should have, and permanently
dwell in, the defined district of country. To
that end the United States granted and assured
to the tribe peaceable and unqualified posses-
sion of the land in perpetuity. Minerals and
standing timber are constituent elements of
the land itself…As transactions between a
guardian and his wards are to be construed
favorably to the latter, doubts, if there were
any, as to ownership of lands, minerals or
timber would be resolved in favor of the tribe.
(Emphasis supplied)

In Washington v. Washington State Commercial Passenger Fishing Vessel
Association 443. U.S. 658 discussed supra, at pp. 3-4 the Supreme
Court once again applied the above stated interpretive canon. In interpreting
the various treaties which entitled the Indian tribes to the “right of taking
fish at usual and accustomed grounds…incommon with all citizens of the
territory,” the Supreme Court held that “in common with meant the Indians had
a right to take 45 to 50 percent rather than merely an opportunity to catch
some fish.. Pointing out that, “the treaty must be construed, not according
to the technical meaning of its words to learned lawyers, but in the sense
which they would naturally be understood by the Indians” at p. 676, the Court
also stated:

“It is absolutely clear, as Governor Stevens
himself said, that neither he nor the Indians
intended that the latter ‘should be excluded
from their ancient fisheries,’ and it’s
accordingly inconceivable that either party
deliberately agreed to authorize future settlers
to crowd the Indians out of any meaningful use
of their accustomed places to fish. That each
individual Indian would share and ‘equal opportu-
nity’ with thousands of newly arrived individual
settlers is totally foreign to the spirit of the
negotiations. Such a ‘right,’ along with the
$207,500 paid the Indians, would hardly have been
sufficient to compensate them for the millions
of acres they ceded to the territory.”

February 18, 1982
Page twelve

Because the Indians had always exercised
the right to meet their subsistence and
commercial needs by taking fish from treaty
area waters, they would be unlikely to”
perceive ‘reservation’ of that right at merely
the chance, shared with millions of other citi-
zens, occasionally to dip their nets into the
territorial waters. at pp. 676-677.

The goal in interpreting Indian treaties is to achieve the reasonable
expectations of the weaker party and to rectify the unequal bargaining posi-
tion of the tribes, in Tulee V. Washington 315 U.S. 681, 684-685 (l942), the
Supreme Court recognized the duty of the United States to carry out the terms
of a treaty, as they were understood by the Indians, when it stated that:

It is our responsibility to see that the terms
of the treaty are carried out, so far as possi-
ble, in accordance with the meaning they were
understood to have by the tribal representatives
at the council, and in a spirit which generously
recognizes the full obligation of this nation to
protect the interests of a dependent people.

Finally, Indian treaties must be liberally interpreted in favor of the
Indians. This principle has led the Supreme Court to extend the original rule
that technical terms should be construed in the sense they would naturally be
understood by the Indians, to include the whole treaty in general. In Choctaw
Nation and Cherokee Nation v. State of Oklahoma 397 U.S. 620, 630-31, (1970)
discussed, supra, the Supreme Court said:

The Indian Nations did not seek out the United
States and agree upon an exchange of lands in
an arms length transaction. Rather, treaties
were imposed upon them and they had no choice
but to consent. As a consequence, this Court
has often held that treaties with the Indians
must be interpreted as they would have under-
stood them…and any doubtful expressions in
them should be resolved in the Indians’ favor.

The same principle has been held to extend to agreements not predicated
upon a treaty, such as in the executive orders which have created reservations.
In United States v. Walker River Irrigation District l04 F. 2d. 334 (1939)
where by executvie order land was set aside for “Indian purposes” with no
express reservation of water rights on the land, the court followed the
Winters Doctrine to find such rights reserved. In so doing, the court reasoned:

February 18, 1982
Page thirteen

We see no reason to believe that the intention to reserve need be
evidenced by treaty or agreement. A statute or an executive order setting
apart the reservation may be equally indicative of the intent. While in the
Winters case the court emphasized the treaty, there was in fact no express
reservation of water to be found in that document. The intention had to be
arrived at by taking account of the circumstances, the situation and needs of
the Indians and the purpose for which the lands had been reserved. at p. 336…
Treaties with the Indians and statutes disposing of property for their benefit
have uniformly been given a liberal interpretation favorable to the Indian
wards. Choate v. Trapp, 224 U.S. 665, 32 S. Ct. 565, 56 L. Ed. 941; Alaska
Pacific Fisheries v. United States, supra; United States v. Nez Perce County,
9 Cir., 95 F. 2d 232. The rule has its basis in the obligation which the
Government has assumed toward a dependent people. We see no reason why the
same rule should not apply in the construction of executive orders. at p. 377.
See also Jones v. Meehan 175 U.S. 1, 11 (1899) discussed, supra, and Tulee
v. Washington 315 U.S. 681, 684-685 also discussed supra.

Please see attached copies of all cases referred to above.

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