I am teaching a course called "The Search for Native American Justice
through the Law" in the fall. Although I am not an expert yet on this
topic and still have a lot to learn, the courts definitely do not treat
Indian treaties the same as foreign treaties. As Gavin says below Indian
'nations' are not really considered foreign nations - they have this
special 'domestic dependant nations' status. Congress is given the power
to regulate interstate commerce and in that same section of the
Constitution it also gives them the power to regulate trade with the
Indian tribes.
I do recall reading that the reason the words 'till the sun no longer
shines and the grass no longer grows' (which appear in a lot of broken
treaties) really means 'until US Congress changes its mind' because it
was held that treaties with the above language could not be binding on
later Congresses.
Nancy White
Central Michigan
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Gavin Clarkson
Sent: Tuesday, April 20, 2004 1:42 PM
To: [log in to unmask]
Subject: Re: NAFTA vs. Tribal Treaties
Although US v. Lara is a tremendous victory for Indian tribes, I'm not
sure that the courts would automatically treat tribal treaties the same
as foreign treaties.
Justice Marshall's characterization of tribes as "domestic dependant
nations" is still used to differentiate tribes from foreign nations.
Congress ceased making treaties with tribes in 1871, but they still
ratify foreign treaties occasionally.
--
Gavin Clarkson
Assistant Professor
University of Michigan
School of Information
School of Law
Native American Studies
303C West Hall
Ann Arbor, MI 48109-1092
734-763-2284
[log in to unmask]
http://www.si.umich.edu/~gsmc
--- previous message ---
The notion that the treaty power might extend further than the Commerce
Clause, though not necessarily without *any* regard to federalism, was
settled in Missouri v. Holland. This decision is regarded by some as
questionable, esp. in light of recent federalism cases. But earlier
today, the Supreme Court reiterated, in United States v. Lara, that:
"The treaty power does not literally authorize Congress to act
legislatively, for it is an Article II power authorizing the President,
not Congress, "to make Treaties." U.S. Const., Art. II, sec. 2. But,
as Justice Holmes pointed out, treaties made pursuant to that power can
authorize Congress to deal with "matters" with which otherwise "Congress
could not deal." Missouri v. Holland, 252 U. S. 416, 433 (1920) . . .
This doesn't precisely resolve the question you posed - nor the question
of whether there are other potential infirmities here, such as
delegating quasi-judicial, quasi-legislative power to tribunals
appointed outside the Article III process - but it does suggest that
Article I, and the 14th Amendment, don't state the limits of the treaty
power, nor (in all
likelihood) the power to make congressional-executive agreements.
Best regards,
Ed Swaine
P.S. I realize this response will likely incite some Maureresque slur
against Penn, but I am prepared to contact representatives of Auburn,
Clemson, UT Austin, and Canada to put together a defamation suit. Well,
okay, not Canada. But everybody else.
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