Treaties still very much a part of Indian law

Boos, Steven Enlarge photo

Boos, Steven

An acquaintance who knows that I represent tribes recently commented that the government had broken all of its treaties with Indian tribes and treaties no longer had any legal significance. In fact, my friend was wrong and Indian treaties can still have powerful legal effects.

Navajo Mountain is one of the most isolated places in North America. This ancient volcanic feature rises out of the rugged landscape north of Page, Ariz., and south of Monument Valley. Fly over this landscape and you will see vast, impassable red-rock canyons stretching for mile after mile away from the base of the mountain.

The Navajo and San Juan Southern Paiute communities along the eastern base of the mountain are located within a few miles of Monument Valley and the schools are located there, but this landscape makes it impossible for Navajo Mountain residents to reach Monument Valley.

Historically, high school kids from Navajo Mountain, who lived within the San Juan County, Utah, school district, could only attend the Monument Valley high school if they were willing to spend eight hours on a bus every day. Instead, most of these kids ended up at the Bureau of Indian Affairs boarding school in Tuba City, Ariz.

My colleagues and I made clear to the San Juan County school district officials that they had a constitutional duty to provide these kids with an education and we demanded that the district build a high school at Navajo Mountain. The district refused and we filed suit in the United States District Court for Utah. Our claims were based, in part, on the Treaty of 1868 between the Navajo Indians and the United States.

For many years, seemingly during the time when there was greater military equality between tribes and the United States, the government entered into treaties with tribes. A primary purpose of these treaties was to define territorial boundaries for tribes (and to guarantee the authority of tribes to exclude non-Indians from those territories), but they also included promises by the United States to provide certain services to tribes. In 1868, the government sent representatives to a number of tribes, along with a boiler-plate, form treaty. Consequently, the Sioux Treaty of 1868, the Ute Treaty of 1868 and the Navajo Treaty of 1868 all have astonishingly similar terms and only minor differences in detail. For example, the government promised the Sioux that it would supply them with agricultural supplies and equipment; a provision not found in the Ute and Navajo treaties.

In the late 19th century, after the tribes had been conclusively defeated in military terms, the United States stopped entering into treaties with Indians. In many cases, the provisions defining territorial boundaries were disregarded. The current Sioux and Ute reservations contain a fraction of the land guaranteed to those tribes in their respective 1868 treaties. This did not mean the treaties were dead.

Federal statutes often apply to Indian Country, but don’t automatically apply. Attorneys and courts study tribal treaties to understand whether there is anything in the treaty that prevents application of the federal law. When the United States Court of Appeals for the 10th Circuit (which includes Colorado) looked at whether the Occupational Safety and Health Act, or OSHA, applied to the Navajo Nation, the Court noted that the Navajo Treaty of 1868 gave the Navajos an absolute right to exclude non-Indians from its territory. Because OSHA depended on the work of federal inspectors who the nation could exclude based on the treaty, the court ruled that OSHA did not apply on Navajo land.

We also look to treaties to see whether they contain any explicit promise by the United States to tribes to perform a particular service that has become a “trust responsibility.” This is what happened in the Navajo Mountain case. We argued, and the United States District Court agreed, that the Navajo Treaty of 1868 created an on-going duty to provide an education to Navajo children, even in such remote locations as Navajo Mountain.

It is also important to realize that tribal treaties don’t cover every legal claim by Indians. If a promise isn’t stated in a treaty, tribes must look elsewhere to find a legal basis for their claim. I sometimes have tribal clients tell me that they have a right to health care guaranteed in the “Treaty of 1868.” Unfortunately, the 1868 treaties I have reviewed are silent on the issue of health care, so I tell tribes with 1868 treaties that they need to use other sources for these claims.

Indian treaties are very much alive and form a regular backdrop to our analysis of legal issues in Indian Country.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.

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