PAGE 8 JULY 19, 1978
KNOW YOUR TREATY, PART 1
A Series by Cynthia Stowell
TREATIES ARE LIVING DOCUMENTS
It was 123 summers ago that
delegations of Middle Oregon
Indians and government offi
cials gathered at Wasco on the
Columbia River and signed a
“paper” that permanently alter
ed a way of life and structured
Indian-whifF relations through
the next century.
It was after just three days
of discussion that 152 signatures
were affixed to the 1855 Treaty
with the Tribes of Middle Ore
gon, a document that has passed
the many tests of time and
exists today as a valid law of the
land.
Along with hundreds of other
treaties negotiated between the
United States government and
Indian tribes, this 1855 treaty
and the rights it reserved have
had to withstand countless chai-'
lenges from private citizens,
lawmakers and even the White
House through the years.
The assertion of land claims
and treaty rights in recent years
has resulted in a growing anti
treaty sentiment nationwide, as
reflected in proposed legislation,
unfavorable court decisions, the
formation of opposition groups
and the statements of public
officials. As natural resources
become scarcer, tribal reserved
lands, water and minerals look
increasingly attractive to non
Indians.
“Modify the treaties,” says
Washington governor Dixy Lee
Ray, whose home state has been
a fishing rights battleground for
the last decade. Her state has
also produced two congressmen ,
who have responded to the crisis
by introducing legislation threa
tening to destroy or diminish
treaties. While Meeds’ H.R. 9951
would severely limit the Indian’s
unlimited right to watef on or
bordering reservations, Cunn
ingham’s H.R. 9054 would do
away with treaties altogether.
At least one nationwide
group has formed in opposition
to treaty rights and the unique
status of American Indians (In
terstate Congress for Equal
Rights and Responsibilities) and
voters in Montana and Maine
are also rallying against their
Indian populations.
The federal courts are not
the refuge they once were since
issuing such recent decisions as
Oliphant v. Suquamish Indian
Tribe, which limited tribal juris
diction on reservations. Even
the White House appears to be a
bit confused about how the
government’s trust responsibili
ty should be administered and to
what extent treaty water rights
exist.
With such uncertain com
mitment to Indian treaties and
rights even at the highest gov
ernmental levels, it is vital that
what extent were certain provis
ions carried out? How have
treaty points been interpreted in
the years since?
Such background should
serve to enhance understanding
and appreciation of the Warm
Springs Treaty as a living doc
iWiWfMlfl JliäEJEf
fis
Indian people understand the
special relationship they have
with the federal government,
that they know their rights and
the documents and decisions
from which they flow. We all
speak of “the treaty” and ’’trea
ty rights,” putting, much faith in
words with which many of us
art not all that familiar.
What is a treaty? Why did
the U.S. government negotiate
treaties with Indian tribes. What
rights does a treaty reserve?
Can a treaty be abrogated or
modified? What are the specifics
of the treaty of 1855 that created
the Warm Springs Indian Reser
vation?
This series of articles will
present and explain the Treaty
With the Tribes of Middle Ore
gon (henceforth to be referred to
as the Warm Springs Treaty).
The text of the treaty will be
printed word for word, a section
at a time.
In addition to clarifying lan
guage and drawing attention to
the points of particular interest,
the accompanying articles will
attempt to place the treaty in a
historical and legal context.
How is the treaty a product
of its time as well as a depart
ure? In what manner and *to
ument rather than relegate it to
dusty files.
Every reader of the treaty
might well have a different
imterpretation of its terms and
provisions. Courts have devoted
much time to resolving such
disputed points. Thus the analy
sis presented here, although
prepared with the assistance of
tribal attorneys, authoritive
texts, and local wisdom, may
also be challenged.
Perhaps then the real exam
ination will begin.
Treaties:
An Overview
Treaty-making was one
method used by the federal
government to regulate econom
ic and political relations be
tween the native peoples of
North America and the growing
numbers of white settlers. Prior
to the revolutionary war, treat
ies of commerce were frequent
ly negotiated between the var
ious colonizing nations and In
dian tribes.
During the century-long
treaty-making period which end
ed with the Indian Appropria
tions Act of 1871, the United
States created as many types of
treaties as it fashioned Indian
policies. The Continental Con
gress sought friendship, thus
making treaties of alliance. Af
ter the revolution treaties of
conquest marked military vic
tories over the Indians.
As settlers populated Indian
lands, treaties of boundary be-'
came necessary to define and
limit territories. A more agress
ive way of accomplishing the
same end was the treaty of land
acquisition, common during the
Jefferson administration. Mani
fest destiny was the watchword
of treaty-makers in the early
1800’s.
Andrew Jackson’s removal
policy dominated the mid-19th
century and saw many treaties
of exchange, whèreby land in
thé west was offered in ex
change for that occupied by
eastern tribes.
The treaties of cession that
formalized Indian-white rela
tions in the far west operated on
the same shuffling principle, a
practical means of eliminating
conflict by removing half the
problem. The unhappy result
was often the separation of In
dians from their traditional
lands and the tossing together of
incompatible tribes on reserva
tions.
Other less common types of
treaties provided for the allot
ment of tribal lands to individual
Indians, determined criminal
and civil jurisdiction and direct
ed internal tribal affairs.
Treaty-making came to an
end in 1871 as the nation gave up
on separating Indians from
whites and attempted to assimi
late the dwindling minority.
The 1855 Treaty with the
Middle Oregon Tribes is a treaty
of cession wherein 10 million
acres of territory claimed by
five tribes and bands were sold
to the government and 600,000
acres of unfamiliar land were
reserved for the tribes’ exclu
sive use, with certain rights to
the ceded land also preserved.
The Warm Springs Treaty,
like all Indian treaties, was
negotiated by agents of the
President of the United States
and ratified by two-thirds of the
Senate. Essentially, treaty-mak
ing with Indian tribes was done
in the same manner as inter
national treaties. Indian tribes
were in fact foreign powers.
The status of tribes has
since become that of “dependent
nations” but the treaties con
tinue to be valid, providing the
ground rules for relations be
tween Indians and non-Indians
and defining tribal rights. As
Felix Cohen stated in his Hand
book of Federal Indian Law,
“Although treaty making itself
is a thing of the past, treaty
enforcement continues.” (p.33)
However, Congress has the
power to enact legislation in
conflict with treaties, meaning
in effect that it can cancel
treaties. The termination policy
of the 1950’s brought this power
to bear on treaty tribes under
the guise of mutual consent,
which is the accustomed way of
modifying treaties.
If treaties formed the bones
of the present-day status of
Indian tribes, then court inter
pretations have provided the
flesh. It is in the courts that
treaties have been kept alive
and made relevant to changing
times and circumstances. Ad
hering to the principle that am
biguities in treaties are resolved
in favor of the Indians, federal
courts have continually upheld
specific treaty rights, establish
ing precedents for all tribes’
relations with non-Indians.
So even though not every
treaty guarantees to every tribe
the same rights, certain univer
salities have developed through
the years. For example, the
trust or guardian relationship
assumed by the federal govern
ment was not specified in the
earlier treaties but has spread
its protective wings over all
tribes, coloring treaty interpre
tation.
When reviewing the Warm
Springs Treaty it is useful to
remember what it has in com
mon with other treaties but also
how it is unique as a local
response to problems in the re-
gon Territory. Examination of
the treaty cannot rest on the
original words alone, however,
but must bring to light later
legislation, court interpretation,
and national policy that have
further defined the treaty, at
times threatening it and at other
times confirming it as a living
document.
Next: Treaty grew from tension
between settlers and Middle
Oregon Indians.
NOTICE
FROM: ELLEN SQUIEMPHEN
Who ever borrowed my
tractor tire, I wish it would be
returned. Would appreciate it
very much, really need it.
Thank you.
"SHOW ME" PROGRAM SET
“This is another phase of the
An informal “show-me” pro
gram will be presented by the land management process on
Forest Service on the Clacka the 350,000 acre Clackamas
Planning Unit begun in 1976,”
mas Planning Unit at Estacada
High School at 7:30 p.m., July 19 said Dahlin. “We’re looking for
and Santiam High School at feedback from the public on the
7:30; p.m., July 26, according to approach taken thus far,” he
Joel Dahlin, Estacada District added.
The Clackamas Planning
Ranger, Mt. Hood National For
Unit lies within the southern
est.
The purpose of the show me portion of the Mt. Hood National
program is to review the inven Forest and the northern portion
tory and suitability analyses for of the Willamette National For
LITTER PATROL - The Kah-Nee-Ta Highway should look a bit spiffier since the YCC (Youth I
a number of resources including est. Within its boundaries are Conservation Corps) crews hiked the length with their giant garbage bags. Jakeen Roth (above) said!
timber and geothermal poten the Bull of the Woods and Olallie she was relieved to get off the trail maintenance detail in the reservation’s high country where bugs and |
Roadless (RARE II) areas.
tial.
boredom got the best of her. But some were happy to get back to the, cool woods for ipor? frail work, later
is the week. Fencing for grazing studies*will be another project Tw