hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
Aunty:
If the indians had never been made citizens, they would have had some, although likely reduced, rights under the U.S. constitution. Those individuals who are legally in the U.S. still have certain rights, although generally not the full panoply of rights granted to U.S. citizens. The Gitmo detainees rights, or lack thereof, will likely hinge, to a certain extent on the extent to which Guantanamo Bay is considered U.S. soil.
As for any lawsuits against the U.S., I have not done the research, but it is unlikely a lawsuit would have been brought on those grounds since the powers you are talking about are those that are specifically reserved to the feds in the constitution. However, lawsuits have been brought regarding specific terms, enforcement, etc. . ., of those treaties.
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
It would seem that the existence of the treaties violate states rights in some situations though, by creating new nations within the US. Because some were US territories and not states at the time, there likely wouldn't have been many, but there had to be some.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008 
|
hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
I could be wrong, but my gut tells me that the view would be that it did not create new nations within the states, but rather recognized their existence. In other words, the nations existed regardless of the treaties. If they did not, there would have been nobody for the U.S. to negotiate or enter into treaties with.
I think the question you are asking is whether there were any lawsuits because of the feds' appropriation of state or territorial lands for the exclusive use of the tribes. I suspect that if the reservations were created in territories, the answer would be no since a territory exists at the pleasure of the federal government and it can essentially do as it pleases within the territory. If the reservations were created in states, then I suspect that the feds had to make concessions to the states as part of the treaty process. That's just my gut talking, though, and it frequently makes odd noises.:)
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
The problem I see with your line of thinking is that many reservations were created for specific tribes in places they did not formerly occupy, so they didn't already exist there.
I'm not even sure creating a different countries (sovereign nations) within a country WAS Constitutional, to tell you the truth.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
Good point on the fact that many tribes were moved out of their traditional areas. I still think that, from a legal perspective, the view would be the treaties could originally be negotiated with the tribes because a.) they were sovereign nations; and b.) had some claim to the lands the government was negotiating for. If either one of those did not exist, there would be no basis to enter into a treaty since they would not have any authority to make the agreements in the first place.
I suspect, but do not know, that the treaties were negotiated while the tribes were in their traditional areas, and they were moved after-the-fact. So, the question is then whether the feds had the authority to create the reservations (as opposed to nations) vis-a-vis the states. I suspect that there were a lot of smoke filled room meetings and greased palms, in order to get the job done.
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
WOW!
I found an interesting link and they claim tribes aren't actually soveriegn because;
Quote:
The United States Congress has complete authority over Indian affairs. It can disband the Indian tribes as it did under the Indian General Allotment[Dawes] Act of 1887 . . . or it can permit them to organize as it did under the Indian Reorganization Act of 1934. Congress can overrule court decisions dealing with Indian tribes."
http://www.citizensalliance.org/links/pages/articles/Expose_Part_2.html
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Todd R
Offline
Chromer
Profile Status:
Reged: 10/29/01
Posts: 902
Loc: Seattle, Washington
|
|
The Indian Tribes in the U.S. are "dependent sovereigns", not sovereign nations, and not just US citizens...and if you can wrap your brain around that, then you are a better person than I, or most of the legal minds I've talked to about it...so far the best I can come up with is that if the Indians need something from the Government, they refer to themselves as "dependents" with a trust relationship and say the feds owe it to 'em...when they want to assert their own authority, they refer to themselves as a sovereign nation.
Just to be fair, the feds refer to them as dependents when they want something from them, and refer to them as sovereigns to avoid giving them stuff, too...
hmitchel,
The treaties don't need any language giving anyone the authority to change or abrogate them for Congress to do it...they would require language in order for the President to do it, since the President has no inherent power to enter into treaties without the advice and consent of Congress.
Treaties are no more, and no less, than federal laws. Federal laws are created, modified, and abolished by Congress, and Congress alone...they need no permission from anyone to do it.
"One of the least understood facts about Indian treaties is that they may be abrogated unilaterally by Congress."
"Indian treaties as well as international treaties stand on the same footing as federal statutes, they can be repealed or modified by later federal statutes."
*Those quotes are from "American Indian Law" by William Canby, oft-cited and nationally recognized American Indian Law expert and commentator.
"The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entereed into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power may be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians."
Lone Wolf v. Hitchcock, 187 US 553, 566 (1903).
Abrogating treaty rights may, however, lead to the duty of compensation on the part of the government...the feds may have to pay for whatever rights they have abrogated. See, generally, Menominee Trive v. United States, 391 U.S. 404 (1968), and U.S. v. Creek Nation, 295 U.S. 103 (1935).
--------------------
http://www.rvrfshr.com
For all your fishing hardware needs!
"Correct in Design"
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Thanks Todd. I can tell you that some of the thoughts expressed in the link I posted had never even occurred to me. Pretty confusing stuff.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
Todd:
As I've said before, I agree with you that they can be abrogated. I also agree with you that the tribe's relation is extremely difficult to get a complete grasp of and, in fact, has always seemed to be a bit of a moving target. After looking at some case law, they appear to be a quasi-sovereign nation, whatever that means.
Here are some direct quotes from the U.S. Supreme Court:
"A treaty, including one between the United States and a Native-American Indian tribe, is essentially a contract between two sovereign nations."
As for the Lone Wolf v. Hitchcock quote, that is something I also came across and, like I've said before, I don't disagree that Congress can abrogate (withdraw from) the treaties as they deem appropriate.
"We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation 14 by destroying property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians." Menominee Tribe of Indians v. United States, 391 U.S. 404. Given this language, it looks as though if Congress takes any act contrary to the express language of the treaties, the US would be subject to a claim for damages, typical of breach of contract action.
After looking briefly at U.S. Supreme Court case law, I have not been able to find anything that definitively states whether Congress can change the terms of a treaty without the consent of the tribe (although I will admit it is suggested and at least one circuit court has expressly held they can modify the terms as they can a statute.) The fact that the US would be subject to a claim for damages for failing to comply with those terms suggests that, at a minimum, there are consequences for either modifying or abrogating the terms of a treaty, just as there would be for any other treaty or contract. That fact alone suggests that, all political considerations aside, there are substantial economic disincentives for unilaterally modifying a treaty, even if Congress can do so.
Thanks for the nice little intellectual exercise!
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
Todd R
Offline
Chromer
Profile Status:
Reged: 10/29/01
Posts: 902
Loc: Seattle, Washington
|
|
Financial, social, or integrity reasons to stick to the terms of the treaty are another whole ball of wax, which is why I stated above that the treaties aren't going anywhere...they are, after all, a solemn promise that our government made to the treaty tribes in exchange for commitments from them.
The fact that Congress can unilaterally modify or abrogate the treaties does not change that promise into something else...and the fact that sportfishermen and commercial fishermen don't like Indian treaty rights falls about 99.9% short of a good reason to do so.
Fish on...
Todd
--------------------
http://www.rvrfshr.com
For all your fishing hardware needs!
"Correct in Design"
|
hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
Fish on . . .
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Quote:
The fact that Congress can unilaterally modify or abrogate the treaties does not change that promise into something else...and the fact that sportfishermen and commercial fishermen don't like Indian treaty rights falls about 99.9% short of a good reason to do so.
I wouldn't push the feds too far though. There is always a breaking point and Congress has been known to be just as fickle as the Supreme Court over the years.
The more tribal casinos make, the less sympathy the feds will have. A lot of Boldt's decision was based on the tribes economic outlook, which has changed considerably.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Todd R
Offline
Chromer
Profile Status:
Reged: 10/29/01
Posts: 902
Loc: Seattle, Washington
|
|
"The more tribal casinos make, the less sympathy the feds will have."
I disagree, because when we say "the feds", what we mean is "Congress", and when we say "Congress", what we mean is those who vote for legislators...and 99% of the country could care less about fishing in the Northwest, and most of them that do have an opinion would probably support tribal netting before they'd support sportfishing or commercial fishing.
I agree that there is language in the Boldt Decision regarding a "moderate living", but with the exception of the very few, most tribal members are pretty damn poor still...not every tribe has a casino, not everyone who belongs to a tribe who does has a job there, and not everyone who has a job at a casino makes more than $10 an hour, either.
I think people around here would suffer some serious culture shock if they were to leave the PNW and start asking people about tribal fishing rights...they don't see or know the things that we do, and even if they did they probably wouldn't care.
Fish on...
Todd
--------------------
http://www.rvrfshr.com
For all your fishing hardware needs!
"Correct in Design"
|
Gooose
Offline
Ancient Mod
Profile Status:
Reged: 09/14/01
Posts: 11154
Loc: Area 12
|
|
I have to disagree also. Over turning Boldt would also require negating all that has stemmed from his decision including Judge Orricks decision in Boldt II and the most recent decision regarding the Culvert case along with several other agreements/settlements regarding water and habitat agreed upon following Boldt I. Plus the Rafeedie Shellfish ruling which is an extension of Boldt and the recent settlement agreement regarding commercial shellfish tidelands. Might as well throw in U.S. vs Oregon also as that is intertwined with U.S. vs Washington. No conceivable Congress is going to touch it.
--------------------
Independent Advocate For The Fish
Not Represented By Any Organization
It's Gonna Be A Long Winter
There's lies, damned lies and then there are statistics......Mark Twain
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Quote:
I disagree, because when we say "the feds", what we mean is "Congress", and when we say "Congress", what we mean is those who vote for legislators...and 99% of the country could care less about fishing in the Northwest, and most of them that do have an opinion would probably support tribal netting before they'd support sportfishing or commercial fishing.
I wasn't giving sport fishing any thought at all Todd. I was thinking about the dams on the Columbia and perpetual mitigation for the lost tribal fisheries, and now the tribes wanting the dams breached, federal hatchery funding, the culvert issue that our Senators will sympathize with... That kind of stuff.
The same Congress that WILL eventually tell disabled vets that they're VA entitlements will have to be reduced will be the same Congress that tells the tribes to suck eggs. Not that I want to get political about it, but sooner or later, they're going to have to cut back. Not all tribes have casino's, but most do and you can bet the feds are interested in who gets how much and where it's all going.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Gooose
Offline
Ancient Mod
Profile Status:
Reged: 09/14/01
Posts: 11154
Loc: Area 12
|
|
The dam breaching issue would require negating U.S. vs Oregon. The Culvert case is a part of Boldt aka U.S. vs Washington. Politicians will love it as it's another way to route public funds to the habitat restoration Mafia. Those funds will be routed thru the counties and municipalities whom of course will get their share of those funds. Realize that those public funds won't be real dollars but will be derived from selling bonds aka public debt. 
--------------------
Independent Advocate For The Fish
Not Represented By Any Organization
It's Gonna Be A Long Winter
There's lies, damned lies and then there are statistics......Mark Twain
|
Todd R
Offline
Chromer
Profile Status:
Reged: 10/29/01
Posts: 902
Loc: Seattle, Washington
|
|
Paying VA benefits costs money...real money...keeping the status quo with tribal fisheries and all the legal cases surrounding them also costs money...really really real money...but that money also funds political cronyism which is part and parcel the American Way...funding VA Benefits is just another bottomless entitlement that doesn't buy much in the way of votes or economic support, at least not anywhere near the league that cronyism and pork barrelism does...
I don't think there's any problem with "push the feds too far", because they're being pushed in the direction they already want to go...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
Fish on...
Todd
--------------------
http://www.rvrfshr.com
For all your fishing hardware needs!
"Correct in Design"
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Quote:
...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
That's my point. That's basically what the tribes are demanding is environmentalism, conservation and resource equity. It will eventually cost more than Congress thinks is reasonable. Maybe not this Congress today, but the pendulum ALWAYS swings.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Mojo
Offline
Smarter than you are...
Profile Status:
Reged: 09/10/03
Posts: 7660
Loc: Bootsville, Idaho
|
|
Quote:
AuntyM said:
Quote:
...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
That's my point. That's basically what the tribes are demanding is environmentalism, conservation and resource equity. It will eventually cost more than Congress thinks is reasonable. Maybe not this Congress today, but the pendulum ALWAYS swings.
Really Marsha? If that is the case, why are they going to net 61,000 steelhead from the Snake and Clearwater in Idaho (soon), with wild impacts approaching 5% (which will shut down all sport fishing since we have a combined 4% wild impact per NMFS)? Where is the environmentalism and conservation in that? Answer me this, what the hell are they gonna do with 61,000 boot Idaho steelhead? I guess there must be a huge market for catfood somewhere...
GRRRRRR....
--------------------
Tight Lines,
Mojo
TEAM MOOSE DROOL
TEAM SMOKIN' MERC
TEAM JACKSON BALDWIN
Alaksa Nitro Baits Pro Staff
"It's Gonna Be A Long Winter"
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Quote:
Where is the environmentalism and conservation in that? Answer me this, what the hell are they gonna do with 61,000 boot Idaho steelhead? I guess there must be a huge market for catfood somewhere...
You sound pissed. They just want the ones with decent egg skeins. They'll toss the rest.
You know damn good and well some tribes say one thing and do another. Everything is the white man's fault and they're going to make us pay. Until Congress says no. Congress will say no when tribal interests threaten big business profits.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Quillback
Offline
South of the Mason/Dixon line
Profile Status:
Reged: 02/08/02
Posts: 2642
Loc: Arkansas
|
|
When you think about how much it costs to produce those steelhead, we'd be better off just giving the tribes $10/fish and ask them not to net. $610,000 is nothing compared to $400 million spent per year on the Big C.
--------------------
I'd rather be fishing
|
Trouthead
Offline
Subject of the Puritan Rep. of Washington
Profile Status:
Reged: 09/17/02
Posts: 4487
|
|
Check this out. What if the Tribes want to eliminate the treaty?
http://news.yahoo.com/s/afp/20071220/lf_...gpFedBS8VN34T0D
--------------------
Trouthead
ABU/Ambassaduer Rest Home - Ma๎tre d' (New residents welcome)
C.A.S.T. volunteer, supporter and advocate
http://www.castforkids.org/
|
hmitchel
Offline
steelie
Profile Status:
Reged: 08/22/05
Posts: 231
Loc: Idaho
|
|
An interesting thought, but, in the view of the Courts it is the United States that owns the land on which the indians live. If they do not own the land and so do not have sovereign territory, and have otherwise renounced their citizenship, they may be in risk of being deported to who knows where. In likelihood it is just an academic exercise, though, without anything likely to come of it.
--------------------
"Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country." - George W. Bush Sept. 6, 2004, at a rally in Poplar Bluff, Mo.
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
Reged: 05/07/01
Posts: 10252
Loc: Harstine Island
|
|
Send them to Gitmo. They might decide they're citizens after all.
--------------------
Landslide: Stevie Nicks greatest song!
http://www.ccapnw.org
The Monster Breathes!
"Don't fall in!" Doug Richert Sr. 10/18/2008
|
Gooose
Offline
Ancient Mod
Profile Status:
Reged: 09/14/01
Posts: 11154
Loc: Area 12
|
|
Reservation lands are held in trust by the U.S. Ownership resides with the tribes. Bit of a difference there.
--------------------
Independent Advocate For The Fish
Not Represented By Any Organization
It's Gonna Be A Long Winter
There's lies, damned lies and then there are statistics......Mark Twain
|
AuntyM
Offline
Looking for a few good fish!
Profile Status:
|
Previous
Index
Next
Threaded
[Re: 
Edit
Reply
Quote
