money so they could retire decently, but also they could put their children through college if they wanted to. you see that moving across the generations, because you have the porters that have this first economic impact, and it is magnified in that next generation, and the next generation takes it even further. by the time we get a couple generations down the road, we have a class of people that, because of the work pullman porters have done, are coming out into society and doing some incredible things. ♪ ♪ >> ♪ those pullman porters on parade ♪ american history tv is featuring green bay, wisconsin.

to learn more about green bay, go to c-span.org/localcontent. you are watching american history tv on c-span 3. professor robert clinton discusses the history of treaties between native americans and non-native settlers. he traces evolution of anglo-american treaties and how they shifted from the relationship agreements to the sovereign agreement with the federal government. he also serves as the chief justice of the winnebago tribe supreme court. this event is a portion of the symposium hosted by the national museum of the american indian. this is about an hour.

>> it is my great pleasure to introduce united states senator. we are honored today by the presence of the senator who will give opening remarks. he is a third-generation farmer from montana and a former teacher. following election to the montana senate, he rose to minority whip and minority leader before becoming president of the state senate in 2005. he was elected to the u.s. inate in 2006 and again 2012. he is the chairman of the indian affairs committee and serves on the veterans affairs, homeland security, indian affairs, banking, and appropriation committees. he is an outspoken voice for rural america and an advocate

for small businesses. he is a champion of american indian nations. poverty.o alleviate lease join me in welcoming him -- please join me in welcoming him. [applause] >> thank you for that kind introduction. thank you for the warm welcome. it is great to be here today to celebrate the opening of the exhibit. this exhibit is a tangible reminder of the federal government's relationship with the sovereign tribal nations of this country. it is a reminder of the obligations the united states has to honor and uphold our treaties with indian country. united states has 566 recognized tribes as sovereign entities with their own governments and laws.

sovereign is the key word. the treaty is formal, written agreements between sovereign states. the constitution clearly states the treaty is the supreme law of the land. document shown in this exhibit displayed in glass cases, but don't mistake them for relics of the past. history shows the newly formed government of this country learned a lot from its relationship. early leaders of this nation based many of the guiding principles that we cherish today on the in mind democratic tenets of these tribal governments. one of the very first treaties entered into by the united states government was the treaty -- the document is on display here in anchorage my senate caught -- i encourage my senate

colleagues to take a look. it is a reminder of the long-lasting bonds between united states and indian country. there is no time limit legitimacy and impact of these documents. they do not have an expiration date and they do not become less relevant over time. as the constitution and the bill of rights, they are living, guiding documents. many of the treaty signed by the tribes were exchange for large portions of their lands. they were negotiated by the tribes in good faith in exchange for the promise of support. support that would address their citizens health, education, and welfare. often, these tribes gave up some of their best territories and in exchange, the federal government made promises through these treaties to provide for and protect the tribes and to work with them to ensure their survival of their culture. the tribes often signed peace

treaties and made sacrifices as a last option. done with the intent to benefit their people and their descendents. the relationship between united states government and indian country has gone through several cycles. good.ood, some not so over time, we have seen both constructive and destructive language impacted. some of the worst came during the tenure of president andrew jackson and the indian removal act. tribes,astated some new particularly those driven across this country in what is known as the trail of tears. we recognize our commitment and our debt to the tribal nations of this country. indian affairs committee exists because of our governments promised to indian country. our mission is to uphold these treaties and to ensure tribes only survived, but thrive. tribal treaties help establish the indian health service, the

bureau of indian affairs, and my committee, the indian affairs committee, will continue to push for better health care delivery in indian country, better .esource management, , i continue to champion our obligations to the tribe and ensure that their sovereign rights are protected. my committee means vigilant -- maintains vigilant oversight over the agencies dedicated to providing services. during my tenure as chairman of the indian affairs committee, we've had tough discussions with the indian health service over delivery of health care services. we are woefully under serving and underfunding our obligations . we have also pressed for faster resolution. i believe those final payments are being sent -- sent out to tribal members as we speak. we will continue to fight for the rights of tribes as we near the end of the session of

congress. we still have a number of big issues on the table. i am working with indian country and my colleagues in the senate to address them. one of the greatest assets of the indian affairs committee is the bipartisan support for indian country. my colleagues on the committee are committed to ensuring that we honor our treaties and other agreements with the tribes. we are working together to improve the lives of all native americans and that kind of bipartisanship is rare in today's congress. i am honored to be here today to share the opening of this important exhibit and i helped the people who come see it will leave here with a better understanding of the unique relationship the united states has with indian tribes of this country. i hope they understand the treaties they see behind this class remain vital and relevant documents. you very much. [applause]

>> thank you, senator, for your eloquent and honorable remarks. it is my great pleasure to ,ntroduce kevin washburn assistant secretary for indian affairs at the u.s. department of the interior. in addition to carrying out the department's responsibilities regarding the management of tribal an individual indian assets,nds and assistant secretary responsible for promoting the self-determination and economic self-sufficiency of the nation's 566 federally recognized american indian and alaska native tribes and there are 2 million enrolled members. a former law school professor and dean, washburn also served

as general counsel for the national indian gaming commission and as an assistant united states attorney in albuquerque, new mexico. he is a well-known scholar of federal indian law. he is a co-author and editor of the leading legal treaties in the field of indian law. today with the presence of the assistant secretary washburn, who will provide introductory remarks. join me in welcoming the honorable kevin washburn. [applause] >> thank you. it is wonderful to be here. i want to tell you i was inspired to be here. i was thrilled to be invited. i was trying to figure out what

to talk about, but i read this book and it is absolutely terrific. it is very thoughtful and inspiring and the beautiful thing about it, long after this event exist in our memories, the book will continue to exist. it is full of insightful research and great thoughts from a number of my friends and great scholars, including matthew fletcher and bob clinton. a masterful historical essay. colleagues is featured in the book. great pictures in the book, too. a delightful picture of a young billy frank junior. older forrester are and that was neat -- forest gerard and that was neat as

well. i want to thank the senator for going first. treaties mightn not be a welcome place for a federal official. then she went easy on him, i am willing to be here -- since you went easy on him, i am willing to be here. rest assured, he said he has on the bureau of indian affairs and education as well. treaties with the federal government might be a touchy subject. they legitimized the settling of the united states and they gave

it legal cover. the southeastern united states would no doubt look a lot different than it does now. without treaties, there would be no united states as we know it today. in some respects, that is a tragedy for indian tribes. treaters -- treaties are symbols of positive things, too. for all the evil associate with treaties, they are evidence of a unique relationship and a great source of pride to indian people. these treaties have been broken more often than they have been kept, of course, but they are important symbol of a standing in the american quality that is truly unique and a reflection of important legal rights. in my office, i have more than once had tribes talk to me about their treaty rights when their

lawyers know they do not have a treaty. they will talk to me about their treaty rights. book, itn notes in the has come to something much broader then just treaty rights. they have come to mean indian rights, to a degree. it's a very rhomb located history, our relationship with treaties, and to some of us -- complicated history, our relationship with treaties, and to some of us, it is a very personal history. i am currently a law professor life ie, and that is the will go back to, no later than january 27, 2017. not that i am counting the days. just as the constitution defines

the governmental relationship between the united states and each state, the treaties define the relationship between the united states and each of the tribes. like federal constitutional rights, which are known to have a penumbra, they exude a broader meaning than just the words on the page. tribal laws also have greater meaning. they are known as the trust responsibility. this penumbra extends beyond treaties and beyond tribes with treaties to all of the tribes. one is tempted to think that treaties are unimportant, today. their role is the back own of the relationship, the trust responsibility, that continues their importance. that is one of their continued reason for being. one only needs to read the

essays in this book to see the importance of treaties. especially in modern times for protecting the rights of indians. it's an inspirational story. i do a lot of thinking about treaties, not just in my current job. into every, i was testifying on behalf of the united states -- in february, i was testifying on behalf of the united states in treaty defense. a delegation is usually sent to defend the united states performance on treaty. -- on treaties. beingruary, the u.s. was evaluated by the u.n. human rights committee on its covenant on political and civil rights. the panel asked me to attend. the delegation asked me to

attend. you can imagine what this is like. there is a panel of experts from around the world that are critically questioning the united states delegation, and there is a delegation of american officials that have to take a beating, in some respects. and they asked questions about guantanamo,nalty, homelessness, and all sorts of other issues. one of the committee members started pressing me on what if the united states just apologized to the tribes and be done with it? that was sort of the attitude, and i said you know, we will never be done with it. as long as the united states occupies north america, we will always have obligations to the indian tribes. [applause] general of the united

states department of defense, when i said the united states was occupying north america, he was alarmed to think we were merely occupying north america. but anyway, it was quite to see our perspective on the international stage. i have a lot of problems with treaties, a lot of complaints. the treaties are of course imperfect, not just because they took away a lot of land as they were preserving other land, but i have some tremendous practical frustrations with them today. one is that they came with excellent descriptions of land. they described the land that was going to be retained in great detail, and that's good. it's good to have clear descriptions, but treaties also retained water rights for tribes. the water rights were not so well described.

rights were important, but water rights were exceedingly important. the rights to water are unquantified, and to some degree unknown. they aren't extremely important resource, and an extremely valuable resource. -- they are an extremely valuable resource and an important resource. because water rights are not clearly defined, other people are using those rights and they are using them without compensating the tribes. as a trustee, that weighs heavily on my soul, that fact, and we have to work on them. we have to do better. we have to quantify the water rights. we have to work on that kind of thing. treaties were precursors to a relationship that has today come to be filled with much more mundane agreements.

a 638f you know what contract means. for those who don't, each year, to meet the federal trust responsibility to indian tribes, we actually provide contracts to indian tribes to provide those services to people because they do a better job than providing services to their own people. we signed thousands of those contracts each year. those agreements, again, are .ort of the progeny of treaties for many years, we have not paid tribes the full amount of money they have contracted for under those 630 at contracts and self-governance contracts. these costs of not been fully paid and we have to start meeting those obligations and those promises as well. that is one of the ways we are trying to mend our ways and begin to abide by those agreements, which after all are

the modern progeny of treaties. the relationship between tribes is both mundane in some respects -- 630 eight contracts, for example -- and complex. toward then essay end of this great book is a discussion about the indian reorganization act. there is a great jam in their about law. although that law is 80 years old, it gives my office a way to remedy some of this. john collier for those powers. they are the ones who helped mastermind that and get those laws passed through congress. indeed, the most gratifying part of my job is using one of those powers to issue reclamation proclamations. my office has the power to issue reservations.

it is a lot easier. with the stroke of a pen and some work with a tribe, we can expand or extend a reservation. we have done that four times this year. that is one of the most gratifying parts of my job. a close second is taking land into trust for a tribe and restoring homeland that way. roughly 200 64,000 acres of land into trust for indian tribes across the land. of course, this is a drop in the bucket of all the land that was lost, but it is something. it is something we are learning .ndex handing hard to live up to the trust established. in any given year, that usually involves budgets.

and will be with you all day today because i have several -- i won't be with you all day today because i have several other meetings. one of the meetings is at the white house on budgets. as a law professor, i don't always enjoy bureaucratic meetings about the budget. one of the reason someone becomes a law professor is so that other people will have to think about the budget. in 2013, barack obama established the white house native american affairs council. this council is really important. break its purposes is to down silos between federal agencies. one of the wonderful developments of the last nerdy that -- last 30 the offices of indian affairs programs. some are fairly large offices.

what has happened is be -- we have become silos into ourselves. one of the purposes of the presidents council is to ensure that we are talking to one the federalss government. another purpose is to make sure we are serving tribes not just with our indian programs but with our general programs. , my boss, who chairs this counsel, said look, we need to andoordinating our budget meeting around how we serve tribes with this budget. so today about six or seven different cabinet agencies are going to get together with the office of management and budget, something most of you don't know exist and don't need to know exist. it's not very interesting, but we're going to get together and present our budget to one another so we know what our

sister agencies are doing. we have to be talking to one another. just to give you a sense of this, in interior, the annual budget for indian programs overall is around a billion dollars. hud has around $650 million a year they give out and the department of justice has around $300 million. there is a lot of money here that adds up, but we have to be coordinated in how we do this. -- secretaryrnoon jewell said there has to be a better way to run a railroad, so this afternoon, we're going to get together to share among federal agencies about what we are doing with the budget and trying to break that down. a modest first step,

but an important and historic one. is tor goal i mentioned influence agency policy decisions. another thing that is important that we really want to is you have indian programs, but some of your general programs have obstacles so that your tribes cannot participate. for example, they might allow state and local programs to participate, but not tribes, or they might allow nonprofits to participate, but not tribes. so we need to have a discussion about how to make more of those programs available to tribes. so, while you all will be here engaging in a very lively, intellectual symposium, i will be meeting with six different cabinet agencies and poring over spreadsheets with lots of numbers on them. so you will be having a more and isting discussion,

would certainly rather be here, but i vow to year that i will be working hard to ensure that the at the white house, if not interesting, is important and fruitful. i am trying to help us do much better in meeting some of the very high aspirations you see in some of the treaties we will be talking about today. i wish you a very good day, and i tell you, i will be looking longingly back in this direction and wishing i were here, but i thank you for being here and i want to encourage you to get this book and soak it up. it's absolutely terrific. inc. you so much for having me and allowing me to be part of this historic event. thank you. [applause] >> thank you assistant secretary and professor.

our next speaker is the ,istinguished robert clinton foundation professor of law at the sandra day o'connor college of law at arizona state university and an affiliated faculty member of the asu american indian studies program. a faculty fellow at laws, science l and innovation. he is committed to writing about tribal law, american indian ,istory, federal court cyberspace law, copyrights and civil procedure. his publications include indian lawticles on and federal policy, constitutional law and federal jurisdiction. professor clinton, welcome.

>> while we are getting the want tont set up, i thank everyone for getting me involved in this project and to all of the wonderful staff for on bothitality and help ssay in the book -- e book. what i'm going to try to do with you for the brief time i have available is to do a 400 year plus historical survey about , andns and indian treaties to try to put them in some waspective, some of which artie referred to. they sickly, -- already referred to.

basically, treaties are an interesting phenomenon, particularly of north america. it's tempting to think that broughteuropeans treaties to north america, but that's not true. we know, if we think about it, that at the time of first a rich staffe was of tribal alliances and tribal negotiations between the original occupants of north america. ,n fact, if you think about it i will not try to pronounce this an era cory since i am not in iroquoispeaker -- iroquoism not an era co speaker, formed the original treaty of the nation.

treaty relationships had already fellestablished and they into pace with the idea of negotiating sovereign to sovereign with indian tribes. we are tempted to think of as memorialized documents, but that is not the way treaty relationships were understood either by europeans or the native community, but it evolved into that on the western side, on the colonial side, creating all kinds of problems and misunderstandings. to look at the treaties themselves both during the colonial time and the treaties with the united states, you find a common path. there is the initial first contact treaty. i like to call it the friendship

treaty. generally, the western colonial powers are seeking friendly relationship with the tribes. , trying to create exclusivity with a particular colonial power. was not a treaty asking for land. the next one was. the one after that asked for land, and more eventually removal. referred toshington treaties being a colonial vehicle for dispossession of native land during the colonial time and the american treaty time. vehiclesntially were

-- and for saying forcing the doctrine of discovery. you know that derives from the british planes, the colonial authority of north america, that tobasically was designed rationalize colonial dispossession of the native the soil of north america, and basically, it created a relationship that provided a basis of this of whichn, one basis was "consent." what are treaties? consents in the doctrine of discovery. the doctrine of discovery is reviled by native people and the treaties are not.

it's a very interesting contradiction, contradiction assistant secretary washburn referred to and that we need to explore. country,y in indian treaties are revered icons despite being the vehicles for dispossession. many tribes claim the font of their power and indian rights in treaties. there is only one tribe out of the 22 in arizona that has a treaty with the united states, the navajo nation. all of the other tribes have no treaties. yet you will frequently hear non-treaty tribal members

referring to their treaty rights, talking about enforcement under the rights of a treaty they do not have. treaties have become synonymous and both indian rights indian sovereign power. interestinga rather situation. you see demonstrations. the treaty organization holding a meeting. treaty is an iconic emblem of that source of power. well, of course, this all creates a bit of the contradiction. if treaties are in fact the his store coal vehicle for the doctrine of discovery and therefore dispossession of indigenous people of their

aboriginal lands, how is it they iconic sources of native power and rights? it is that history i want to focus your attention on briefly in my remaining time. neither the british nor european, generally colonial indians, side, nor the thought of treaties and alliances as a memorialized document. the british side had conceptions of alliances that were top down, familial relationships.

marriages were common in europe as a vehicle of creating alliances. by contrast, the indians, the native people, the native nations, viewed alliances in kinship terms. they were organized around extended families. they thought of political relationships as kinship relationships, and you see this played out in the references in the colonial treaties themselves, some of which are quoted in the book. i won't go into detail now, but , strangelydea enough, not only on the indian on theut also initially european side, was kinship. europeanrence is the

conception of the relationship was monarchical down. native conception was much more horizontal, though there was some level of hierarchy, but it was a sickly a platter, -- it a platter, not hierarchical. so, kinship terminology shows up in the negotiations with the shoshone who would meet periodically for reasons i am about to talk about with the commissioners and other representatives from the northeast colonies to basically renew the covenant change, the alliance, the kinship which against theogether french or some other interloper

with the interfere document. so treaties in the 17th and early 18th centuries are about kinship. they are about forming alliances, and just as you don't have a document that knits together your family, you have family burying ends. you have relationships. it's organic. it's ongoing. -- ifr way, the document there was one at all, and generally there was not -- was not the object of a treaty in the 17th or early between thees british colonial authorities and

native peoples. the point of the discussion was the kinship alliance, the relationship. it was a family reunion, if you will. it was to work out differences in an organic relationship, just as today nato periodically work -- meets to work out relationships among the families of the nato alliances and there is not an expectation that a new document will come out of that relationship. this document, the print will be hard to read from a distance, but it was published is of amin franklin treaty held at albany between the shoshone and the albany commissioners and representatives from massachusetts, connecticut, and pennsylvania. this is a treaty held at a

particular point. does the document reflect a memorialized agreement signed by two parties? not at all. it is a meeting of the two parties. it is an organic concept. began as anies organic relationship on both sides, not just on the indian side. now, the critical relationship was, at least from the native, , that the feeling natives had agency and the relationship. they were actors. they brought their concerns to the table. they were consulted about the relationship. they in fact were not told what the policy was.

consulted in the policy formulation. they were active actors and they were consulted in the relationship, and then ultimately, for anything to change, they had to consent to it. so these are the three critical elements, particularly from an indigenous point of view, about the treaty relationship, however it is cast in familial terms, consultation, and informed and free consent. those are the core elements of a treaty relationship. and we are going to see that they are road over time. and these treaties relationship were often , not a document so much as a else, a ceremonial gift -- as a belt, a ceremonial

gift. the twoa replica of of a 16 12um belt agreement or treaty relationship .ith the dutch this is the president buchanan piece metal that i believe is in , also given out to memorialize the relationship. it turns out that the problem not on thees begins native side but, like many on the westerns side, begins on the

anglo-american side. of what a treaty is begins to start changing in isope in 1648, which generally the beginning of international relations in the modern sense in europe. increasingly, treaties are formalized in documents, in , the idea ofage monastic alliance begins to favor of written documents, and that begins to trickle to north america. but from the native side, the idea that a treaty is an organic or dynamic kinship relationship continues. when they think they are making british ort with the , it is an organic

kinship relationship within their culture in a way that increasingly is not understood by the people with whom they are making the agreements, who simply want a signature on the bottom line of the document to get the informed consent for whatever the treaty says, usually the dispossession of the native people. we see an increased focus of westerners on a memorialize treaty beginning in the late 18th and consent during -- continuing into the 19th century. now, of course, treaties are negotiated a multiple languages. most of the time, they spoke english and their native language. there may have been an interpreter. jargon may have been used. to focus one going

a memorialized document instead of the kinship relationship, you have a problem because the native languages, at least in north america, were all oral languages. they were not, at this point, written languages. a possibility that the memorialized document might not reflect the common understanding and still might be to the advantage of the party who is negotiating the memorialization, i.e. either british or later the americans. it has long been said by native people that the language of doesn't reflect the understanding of these treaties as they understand them through their oral tradition. and of course, with an increased a lot oflanguage, people don't understand that but

you can begin to see why this might be true, it turns out there is proof of that fact in a treaty not from north america, but the major treaty in new in 1840. it turns out the missionaries had been with the natives for quite a while before that treaty languageiated, and the -- and many of the people were literate in the language. any other treaty in north america, that treaty was written and memorialized in language in two different languages. maori.ish and in the first one of course is seated all sovereignty to the crown. maori, and it m

appears to give a lot less. it cedes no governmental authority to the crown. that's a big difference. you can see that the white fang treaty, where there is documented proof in two languages, does not say the same thing in english and in maori. the native understanding that the memorialized document does not capture the agreement is probably true in many more instances than we might guess. now, out of this phenomenon come three canons of interpretation that in fact we use commonly, but of course have increasingly ignored in indian law. very important,

historically. the treaties should be liberally construed in favor of the indians and the ambiguity in treaty terms should be interpreted in favor of the indians. and of course, these canons of instruction were originally -- this is what secretary washburn talked about would in fact be upheld and that the united states would act with utmost respect for the indians. the increased abandonment on any on instruction and the federal courts said all too much about what the federal courts

had been doing recently and whether they were acting with utmost good faith in their upholding of the western side of what should be a bilateral treaty relationship. if you understand treaty relationships internationally, you know that a treaty doesn't happen overnight and you write it on paper and whatever is on the paper happens. witheopolitical balance forces arrayed on one side or another, the leverage, affects whether the treaty is going to be enforced, and unfortunately that is true of the evolution of the anglo-american treaty relationship. if one looks at the british colonial treaty and then one looks at the early american , most of them are negotiated at arm's length between great britain initially and its representatives or the

colonies, and later the you needed to -- later the united states representatives with to literally threaten the security of a colony and even the united states. until the war of 1812. many of you know the history of the war of 1812. with thethe alliance british was ultimately defeated in the war. was the last opportunity for that kind of alliance. the geopolitical relationship in north america. if you look at the treaty after the war of 1812, you see increasingly that the united states is more and

more dictating terms of treaties and less and less negotiating .erms of treaties the treaties are more and more boilerplate to look like each other. and less and less individually thetiated because geopolitical situation has changed. and during this time, the , moves i teach that increasingly to domestic policy, which is not aslly the same thing negotiated international law. war ofore -- because the 1812 a lemonade the last theibility of an alliance,

treaty relationship gradually changes. them point to make by looking at a culmination. in 1868, three years before a , to treaties are negotiated. ,he treaty of fort laramie which ends red clouds war, and treaty of 1868 -- and with the nominal. the geopolitical difference tween the parties could not have .een any more different the lakota and allies had just ffought red clouds war successfully in the united states were suing for peace.

the lakota had not been defeated. they had one. they had pushed calvary out of lakota country. in fact, if conquest is the basis of all right, you should all be speaking lakota today. but you're not. they were in a strong negotiating position in theory. , the novel who were petitioning to go back to their homelands. -- not a whole were petitioning to go back to their homelands. they had -- navajo were petitioning to go back to their homelands. they had not won militarily. you would think the treaties would be very, very different.

if you look at them closely, they look very much the same. there boilerplate. they have similar provisions. if you look really closely, with thatroscope, you can see the united states try to make sure westerners were not settling in lakota country. part, in termst of the treaties, 97% are alike. so indian bargaining leverage had pretty much disappeared. this, by the way, is a very of a treatyre negotiation that was .hotographed

this is the fort laramie negotiation with the united states commissioners sitting on chairs, the lakota delegation .itting on the ground that's sherman third from the left. page of thefirst handwritten version of that treaty. by the last third of the 19th century, in my view, two out of the three elements of treaty making had disappeared. native agency and native consultation had virtually been abandoned. increasingly, the terms of the treaty were coming down from washington and the treaty commissioners were going out to washington to do what?

to get the only ones that marginally remained, get them to sign on the dotted line, get consent. so, consent still was thought to be the requirement for a treaty and a constitutional requirement ,or the imposition of policy but by the beginning of the 20th century, even the formal requirements of native consent disappeared from the implementation of federal policy. how did that happen? how did it come about? that this idea of agency consultation and consent with which the relationship began ended without any of them by the beginning of the 20th century. well, the federal judiciary formed many of the things that came to indian country.

in the late 19th century, you will recall that america was involved in its first major colonial assertion of power over a whole lot of people who had not signed up for the american project. by the gunboat diplomacy in the caribbean and latin america. when columbia wouldn't agree to the panama canal, we just took it away from them. if that's not colonialism, i don't know what is. we overthrew the indigenous monarchy, a recognized republic, the republic of hawaii which with we, great britain and many other nations had treaty relationships, and then after the president declared that overthrow unauthorized and illegal, the people who did it handed hawaii over to the united states and said we'll take it

and hawaii became a state. so the late 19th century as the american colonial expansion. it comes to an end with this no indianat says nation or tribe within the united states shall be ignored or recognized as an independent nation, tribe or power within the -- with whom the united --tes may contract by treaty and then it goes on. it is often thought the treaty making in 1871 was different. the statue -- statute was result of a fight in the house and senate over who was making indian policy. why? it was expensive. you had to send out doctors,

agriculturalists, and who begins appropriations bills by custom? the house. but who ratifies treaties? the senate. is the house involved? no. not in treaties. do?hat do they they give up appropriations for a couple of years in order to get a say in this whole thing, and the result is the statute. but the statute wasn't intended to end negotiations with tribes, which is what many people think it did and was intended to do. not at all. all that happened after the statute was passed was that we sent treaty commissioners out and they got agreements with

tribes, and then what happened? we bring them back to washington and ratify them as statutes. what's the advantage of ratifying them as statutes? they go through the house as well as the senate. so if you look closely at the implemented, many supreme court cases talk about , there is almost invariably an agreement that was negotiated which, from the tribes standpoint, is a treaty, but it was ratified as a statute. what happened with the lakota? an independent commission one out there to negotiate. they only got 10% to agree but they brought it back as an agreement and it got passed as a statute. very first case of the taking of the black

hills. where the united states did consentg without true that nevertheless was passed by statute. now, it turns out, ultimately, these agreements, because they were passed by statute and went ,hrough both houses of congress soon started getting amended in congress. wait a minute. you have an agreement. but the house wanted changes. do they go back in and negotiate with the tribe? no, they amended and it goes through. wait a minute. the whole idea of agency consultation and consent gets ameliorated in the form of the ratification. are familiarf you with the history of the fast track trade again -- trade

this'll sound very familiar. a's the same problem in modern context where they tried to amend international agreements that are being congress.y the the final blow to even the in a caseea comes that was once called the dred scott of indian law. lone wolf versus hitchcock decided in 1903. that indian consent is not required to aggregate indian treaty rights. wait a minute. if we don't need consent, then do we have to negotiate anymore. we've already eliminated agency in consultation. , true treatyrnight

making ends for at least 40 years. now, notice what i just said. it's not the 1871 statute that ended treaties. it's the united states supreme court. made in 1903. here we have lone wolf, a leader who brought this case to try to thwart the implementation of allotment on his reservation -- upuccessfully -- and wound creating a president that was even more devastating -- preece precedent that was even more devastating. i think we can begin to see why it is not surprising that in the

20th century natives would look on treaties as sources and forms of rights even though the were also the sources of dispossession under the doctrine of discovery. ?hy would they do that because true treaty making, not , had tribalby 1870 agency, tribal consultation, and true and informed tribal consent , all three of which were gone by the 20th century. as what we now call the beltway, as washington, d.c., increasing we dictated indian policy to indian country instead of consulting indian country about its relationships with indian

country. but the story is not entirely bleak as assistant secretary washburn referred to. we are actually seeing a return of treaty making. just like in 1871, agreements weren't treaties, we don't call the current things we are doing treaties either, but that is exactly what they are, they are sovereign to sovereign agreements in which the tribe consulted, they are and they have consent. began and is often overlooked with a proposal that was part of the indian records act thatzation never got passed in congress. one of the reasons john collier proposed the recognition of

tribal governments through the constitutional process is he was proposing to contract with them the service.manage congress never passed the of collier'sart proposal. it just passed the recognition of the government's part. but that was just a means to the end. ultimately when public law 638 was passed in the 19 70's, it spurns the beginning of a rejuvenation of sovereign to sovereign agreements in which agency, they can

take it or not, they can decide what they want to do. they are consulted about the relationships, and the policy doesn't go into effect unless they agree. notice 638 contracting creates treaties. is referring to are all modern treaties. treaty making is back. examples of modern treaty making, tribal state gaming contracts. it is an important burden on some of the tribes gaming desires, but what are they, negotiated agreements between an indian tribe and a sovereign state. federal government requires them. yes you cannot game in class three without them, but they are treaties. treaties have not just

with the nation, but treaties with the state and local government, and we have more of them. think about what happens when assistants that' secretary washburn talked about are settled. ultimately, they can send. -- consent. treaties.all modern they are treaties made ancillary litigationon, but forced the treaty making. they are still treaties. fishing rights settlements, , thecularly in michigan treaty was not so much mitigated as it was negotiated. michigan, the

tribes, and the federal government are involved. increasingly, tribes and states are getting together on tax agreements. there are crossed up the visitation agreements with counties, sometimes with states. so, we have witnessed an interesting curve in the policy of federal law, negotiations for the first 300 years, and effort of colonial imposition of policy on tribes for maybe 100 years, a , and now we are witnessing a return of indian .reaty making i have already made that point.

here we have an agreement between governor cuomo and the nation. i assumed the head of that document does not say treaty. it probably says agreement or memorandum of understanding. but what is it? it is a modern treaty. why are we doing all of this? for the seventh generation, for the powwow toddlers future and the future of her children and her children's children and many others out to the seventh generation. enjoyedvery same powers

before the british came, her descendents will enjoy in the future. nation that fully has agency consultation and consent. thank you for your time. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2014] >> you are watching american history tv all weekend every weekend on c-span tv. join the conversation on facebook at c-span history. camhe 2015 student competition is underway. this competition for middle and high school students will award prizes totaling $100,000. create a documentary on the

topic "the three branches and you." documentaries must show varying points of view and be submitted by january 20, 2015. grab a camera and get started today. >> monday night on "the communicators," technology in the 2014 campaign. >> historically, digital tools were largely thought of as ,-mail, online contributions the website, but i think it has evolved. that enable the shoe leather side of the campaign, the campus saying, the .hone calling, the direct mail we have seen many more -- come onlinene where you can do interaction through social network.

>> we have moved from the broadcast era and are still at where broadcast television had dominated. it is moving into a relationship era. if you are going -- when you don't have someone who is advocating for it and influencing their sphere, we have gotten really good at politics. job of to do a better making sure we know who the right messenger is to deliver that message. >> monday night at 9:00 on the communicators. >> each week, "american artifacts" take city museums and historic places. from the founding of the united states, george washington