NO.5..  Concerning Indians, their Tribes and the Federal Government
By: John A. Fleming

As with claims of sovereignty, most if not all Indian tribes that are, or want 
to be, "federally recognized tribes", claim treaty rights to certain lands. We 
have learned that when dealing with treaties, if it is a non self executing 
treaty and requires the U.S. Congress to provide dollars, land and or "rights" 
such as the right to govern themselves, to hunt, fish, pick berries etc. on 
certain lands or waters, or water rights of some nature, the Congress alone has 
that function (the legislative function) and must itself deal with those issues. 
That means the Congress, if it has the power or can demonstrate that such an 
action is necessary and proper in the exercise of an existing delegated power 
from the Constitution, can pass the necessary statutes to provide for the 
requirements as demanded by the treaty.

What this means is simple: the Congress must review the ownership facts and 
requirements of any land or right it wishes to give, sell, trade or in any way 
alter or dispose of, and it must determine if it has Constitutional power to 
take such action. Without such right and power it can not Constitutionally 
provide by statute any treaty requirements.

Believe it or not, the Articles of Confederation are as important to this matter 
as the U.S. Constitution. In fact, the Treaty with Great Britain (1783), the 
Land Deed of Virginia conveying its Northwest territories to the U.S. in 
Congress assembled (March 1, 1784) and related documents and Ordinances are very 
important in this matter.

The Articles of Confederation actually spell out what powers it delegated to 
Congress-it even said what they could not do in some cases. Regarding Indians, 
it said in Article IX, "the United States in Congress Assembled shall have the 
sole and exclusive power of regulating the trade and managing all affairs with 
the Indians, not members of any State, provided that the legislative right of 
any State within its own limits be not infringed or violated" . This is a clear 
declaration to the world that the States did not give up their sovereign powers 
and jurisdiction over Indians within their  borders-which includes their 
territories. This element of sovereignty for each State, regarding people within 
their borders, was theirs-from the day they individually declared their 
independence from Great Britain, and it was again affirmed in the Articles of 
Confederation. The process of revising the Articles, by the Federal Convention 
at Philadelphia, did not change, alter, or in any way give more State 
sovereignty to the general (federal) government-those delegates did not have 
power to do that---only to revise. The Articles were superseded by the 
Constitution in 1789, but that document, the Articles, remains the basis for 
understanding what real governmental powers the original States delegated to the 
federal government.

All of this means that before we, as Citizens of our County and our State, 
calmly let the federal rules and laws dictate what tribes do, some of which 
conflicts with both Constitutions we live under and indeed conflict with and are 
offensive to the State and local rules and laws reflecting a majority view, must 
force our elected and appointed political leaders to explain how the federal 
government can have and maintain plenary (total) control over Indian tribes when 
both the Articles and the Constitution fail to give them such power. The federal 
government actions on this matter obviously are not receiving any oversight from 
our State and local governments……..the very governments that we, the Citizens, 
participate in and whose elected and appointed officials are bound by their oath 
of office to support the U.S. Constitution.

John A. Fleming
July 29, 1999
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Article posted: Monday, September 20, 1999

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