No.2. TREATIES WITH INDIAN TRIBES
By John A. Fleming
There is a misconception about treaties made by the President, with appropriate 
concurrence from the Senate, which is that such treaties are assumed, if not 
believed to be, " the Law of the Land" and requires an act of Congress to 
specifically change or nullify that treaty. The Indian Industry has been pushing 
this concept for years. This concept has no validity stemming from the 
Constitution.

First of all, we must remember that the powers of the President(see Article II, 
of our U.S. Constitution) does not include Legislative Power. This is important 
when we realize that treaties are broken down into two types……self executing( 
not needing Legislative Power to implement) and non self executing(i.e. 
Legislative action would be required by the Congress to implement).

The term "law of the land", as applicable to treaties is, by it self, both not 
complete and misleading. This phrase came from Article VI, clause 2, of the U.S. 
Constitution, which says " This Constitution, and the Laws of the United States 
which shall be made Pursuance thereof; and all treaties made, or which shall be 
made under the Authority the United States, shall be the supreme Law of the 
Land;". The operative words usually missed being "under the Authority of the 
United States," and this simply means if the treaty meets the standards of the 
Constitution-it ranks up there as part of the supreme Law of the Land.

The treaties we usually hear of mostly relate to the rights and lands "given" to 
Indian tribes-all of which require Legislative action by the Congress to provide 
such rights and or land (as a treaty may direct) to tribes by statute. Such 
Constitutional Power, to give Indian tribes land, water rights, hunting and or 
fishing rights, sovereignty, etc., within Territorial or State borders, is 
non-existent! The Congress has no such Power given to it from the Constitution. 
Once you have read the Articles of Confederation, the Northwest Ordinance of 
1787, the U.S. Constitution, and related historical documents, you will see that 
there is no such power.

It is not unusual for the federal government branches to wrongfully use power 
that it does not posses to accomplish things that government thinks ought to be 
done. What is unthinkable is that there isn't any effective oversight by the 
several States, because the powers illegally used by the federal government 
regarding Congressional statutes giving rights and land to tribes, is residual 
power belonging to the States or the citizens of the States(the Body-politic of 
each of the several States).

One last consideration for such a short article on this subject is that of the 
tribes universal claim of the right to self government. A review of Indian 
treaties does demonstrate that a number of treaties provided for tribes to make 
their own laws and to continue to govern themselves; however, each such grant of 
power had the proviso that such power must never be inconsistent with the 
Constitution of the United States.
July 19,1999/ John A. Fleming

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Article posted: Tuesday, October 26, 1999

Copyright © 1999 All rights for republication revert to the original author.