"Always the United States government representatives say that the 1868 Treaty is either void or not in force. I think we can do the same thing. We never broke a treaty but I think we could void all of our treaties legally. It would be the same thing because we are sovereign nations. We made the Treaty with the United States Government as a nation. We want to get the land back." (1) Matthew King, late Lakota Nation spokesperson

"Now we have been told several times that we cannot negotiate on treaties, that we can't talk about treaties. To us if there isn't treaties, there isn't a United Sates, because it took treaties to make such a big nation as the United States. By one treaty after another, land was turned over to them, and it became a big nation. (2) Phillip Deere, late Medicine Man, Creek Nation

In his Final Report, the Special Rapporteur Miguel Alfonso Martínez, made the decision to explore five circumstances under which indigenous peoples were affected by states and colonial powers that encountered them: (i) treaties concluded between States and indigenous peoples; (ii) agreements made between States or other entities and indigenous peoples; (iii) other constructive arrangements arrived at with the participation of the indigenous peoples concerned; (iv) treaties concluded between States containing provisions affecting indigenous peoples as third parties; and (v) situations involving indigenous peoples who are not parties to, or the subject of any of the above-mentioned instruments. (3)

In the case of the United States in relation to indigenous peoples, each of these five circumstances apply depending on time and region, and except for direct treaty making with Native Americans since 1871, the other four circumstances appear after that time as well as concurrently with formal treaty making. All the areas of study are important and relevant in the United States and for indigenous peoples in other parts of the world. However, in this brief paper I will comment on only two categories related to indigenous peoples and the United States: treaties between the United States and Native Americans and treaties between States with provisions affecting Native Americans as third parties. As the words of the late Matthew King and Phillip Deere suggest, what is now the United States grounded the legality of its expansion from the original thirteen British colonies that clung to a tiny slice of the Atlantic Coast of North America and which proclaimed independence in 1776, on negotiations and completion of formal treaties with the indigenous nations, peoples who lived and used every part of North America. The majority of these treaties were peace treaties that followed inconclusive wars of aggression--often reaching levels of genocide--by the United States, or wars of resistance to colonization by the indigenous nations.

Article VI of the Constitution of the United States makes clear the status of such treaties: "… and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

These treaties between indigenous nations and the United States, 371 of them (4), were promulgated during the first century of the existence and continental expansion of the United States until a rider was inserted into the Indian Appropriation Act of March 3, 1871, stipulating: ''That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.'' (5)

In relation to such treaties, the Special Rapporteur has recommended: "the fullest possible implementation in good faith of the provisions of treaties/agreements between indigenous peoples and States, where they exist, from the perspective of seeking both justice and reconciliation. In the event that the very existence (or present-day validity) of a treaty becomes a matter of dispute, a formal recognition of that instrument as a legal point of reference in the State's relations with the peoples concerned would contribute greatly to a process of confidence-building that may bring substantial benefits. In this context, the completion of the ratification process of draft treaties/agreements already fully negotiated with indigenous people is strongly recommended by the Special Rapporteur." (6)

If this recommendation were implemented, as it must be, the United States would be obligated to restore land and resources illegally taken following its unilateral legislative end to treaty making with indigenous peoples, and enacting legislation that contradicted terms of existing treaties. The federally recognized indigenous land base under trusteeship today comprises some 50 million acres, or 78,000 square miles, of non-contiguous territories across the continental United States (excluding Alaska and Hawaii). In 1871, however, when treaty making ended, and indigenous resistance was suppressed, indigenous land holdings were three times that amount. The dramatic land loss since 1871 was mainly due to the 1880s Dawes and Curtis acts of the US Congress, which enacted allotment of indigenous territories into small family plots at the time of the lowest indigenous population. All land left over from the reservation total after allotment into 120-acre plots was declared surplus land and part of the US public domain, and was subsequently made marketable. This surplus land totaled two-thirds of the entire Indian land base. The Indian Reorganization Act and the Indian Claims Court established during the "New Deal" Rooseveltian reform era, halted allotment and allowed for indigenous communities to purchase contiguous lands if they became marketable, but provided only monetary compensation, not land restoration, for lands illegally taken. (7)

It should be noted that the moral credibility, if not the legality of United States' existence, not that of the indigenous nations, is in question. (8)

Regarding treaties between States with provisions affecting indigenous peoples as third parties, the Special Rapporteur cites the 1494 Treaty of Tordesillas, the 1713 Treaty of Utrecht, the 1751 Border Treaty between Sweden/Finland and Norway/Denmark, the 1763 Treaty of Paris, the 1794 Jay Treaty, the 1819 Adam-Onis Treaty, the 1848 Treaty of Guadalupe-Hidalgo, the 1867 Purchase of Alaska, the 1916 Migratory Birds Convention and the 1989 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries. (9)

The Special Rapporteur states, regarding this category of treaties: "It follows that the issue of treaties affecting indigenous peoples as third parties may continue to be relevant insofar as they remain in force and insofar as indigenous peoples already participate--or may in the future--in the implementation of their provisions." He suggests that the 1794 Jay Treaty and the 1848 Treaty of Guadalupe-Hidalgo warrant further study since "both [are] of apparent special significance for the indigenous nations along the borders of the United States with Canada and Mexico respectively." (10)

I will comment only on the 1848 Treaty of Guadalupe-Hidalgo between the United States and the Republic of México, in relation to the Pueblo Indians of New Mexico. (11) That treaty marked the end of the United States invasion of México and, under threat of the US occupying all of México, that country transferred the northern half of its territory to the United States.

In my study of the history of land tenure in New Mexico, I point out that following Mexican independence in 1821, the new State discontinued the Spanish colonial practice of assigning racial status. Although the Pueblo Indians were legally Mexican citizens, the sovereignty of the 22 Pueblo city-states were acknowledged as evidenced when Pueblo Indian territories were exempted from the Mexican misguided and short-lived policy of land division through allotment. (12)

In fact, the Spanish province of New Mexico was colonized through the instrument of merced, or land grants, a practice that independent México continued. Some of these were individual grants to wealthy ranchers, but the majority was in the form of community land grants or ejidos. Article 8 of the Treaty of Guadalupe Hidalgo provided, in part: "In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States."

However, the United States Court of Private Land Claims that was established to confirm land titles, in practice realized the goal of disenfranchising the former Mexican citizens of most of their lands, particularly the common lands that accompanied land grants, leaving only small family plots. The land grant issue in New Mexico from 1848 to the present has not been settled. Descendants of the former Mexican citizens whose properties were guaranteed by the treaty have continued to seek the reversal of disenfranchisement.

As the corruption and unfairness of the land title process became clear, the Pueblo Indians of New Mexico took the route of litigation to gain United States trust status as "Indian tribes," which they finally gained through a 1913 United States Supreme Court decision. (13) This status, however, does not preclude Pueblo Indian access to the terms of the Treaty of Guadalupe Hidalgo if they choose to do so.

In the treaty, the sovereign Pueblo Indian city-states were treated in the same manner as the Spanish and Mexican community land grants. In a preliminary report of a study undertaken in 2001 by the US General Accounting Office of the New Mexico land grants, there is only a brief reference to Pueblo status under the Treaty: Titled, "Common Lands of Indigenous Pueblo Cultures Antedated Arrival of Spanish Explorers," the section states: "The third type of community land grants we identified encompasses grants extended by Spain to the indigenous pueblo cultures in New Mexico to protect communal lands that had existed for centuries before the Spanish settlers arrived. For the most part, the pueblo settlements these colonists encountered in the sixteenth century were permanent, communally owned villages, where inhabitants engaged in agricultural pursuits. Spain declared itself guardian of these communities, respected their rights to land adjacent to the pueblos, and protected pueblo lands from encroachment by Spanish colonists. Spain made grants to these communities in recognition of their communal ownership of village lands. México continued to recognize pueblo ownership of land and considered pueblo residents to be Mexican citizens." (14)

Pueblo Indian governments in New Mexico have not participated in the GAO study, and these are clearly not the terms that Pueblo Indians use to describe Spanish invasion and colonization of their territories, which reduced the number of native city-states from 98 to 22, and exterminated 90 percent of the Pueblo population. Following 82 years of violent repression and land theft by the Spanish colonizers, the Pueblos revolted in 1680 and drove the settlers to El Paso. It would be 12 years before the Spanish attempted reconquest, which they again carried out brutally. However, in fear of another large-scale revolt and needing the colony to protect its mining areas in the interior, the Spanish authorities respected Pueblo territories and autonomy, as did the Mexican state when it took over.

In 1980 I wrote: "Cultural integrity is related to Pueblo land tenure still. Though land no longer provides primary subsistence, the political power of holding some two million acres of land in New Mexico and vital natural resources, and the potential for controlling water distribution in the area are related to both resistance to colonialism and cultural integrity. But the control of land and water is also related to the citizenship status of the Pueblos as a part of the Republic of México. As Mexican citizens, Pueblos are protected under the Treaty of Guadalupe Hidalgo that puts them, under United States jurisdiction, in a strong position. The confirmation of Pueblo land was based on the Treaty, which guaranteed property rights of Mexican citizens, not on ancient rights as aboriginal people. Only after such confirmation did the Pueblos begin the struggle for United States trust protection as Indians." (15)

Although this reflected the thinking of many Pueblo leaders in the 1960s and 1970s, Pueblo leaders today are more cautious about acknowledging the treaty made between two states, neither of which recognized their full sovereignty. Furthermore, the continued use and celebration by New Mexico representatives of the Hispanic population of Spanish conquest and conquerors that the Pueblos consider to have been vicious racists who sought to destroy them has prevented collaboration regarding the treaty and land grants. (16)

It is important that the Treaty of Guadalupe Hidalgo not be treated in the same manner as the 1794 Jay Treaty upon which, among other considerations, the Haudenosee base their sovereignty. The Pueblo Indians of New Mexico should not be considered as one with or even in agreement with the Hispanic land grant struggle. They do not require the Treaty to support their claims to aboriginal title. However, the central struggle of Pueblo Indians in New Mexico is over water rights, without which the land, which is semi-arid, itself is useless. The water rights of federal Indian reservation lands have been exempted by US courts--the "Winters Doctrine"--from the standard US common law water rights that fall to the states to decide based on preemption, or "use it or lose it." The reservations' water rights function under "implied reservations" of water. But in 1973, a US federal court decided that the Winters doctrine, which preceded Pueblo Indian federally recognized Indian status, did not apply to the Pueblos. It may be that the property rights guaranteed under the Treaty of Guadalupe Hidalgo will be useful in the Pueblo struggle for aboriginal water rights. (17)

However, as Petuuche Gilbert, Acoma Pueblo council member, comments: "The Treaty of Guadalupe Hidalgo does not recognize our sovereign rights and right of self-determination but instead relegates us to domestic law and policies. I think it should be said that we remain colonized people and our human right to self-determination is undermined and prevented by the United States, by its laws and policies built on conquest and discovery."

The Treaty of Guadalupe Hidalgo does reveal that it is not only "Indian treaties" that the United States breeches, but also treaties between states.

Surely, the most important first step for expanding and implementing this important study undertaken by the Special Rapporteur is his recommendation: "The establishment, at the earliest possible date, of a section within the United Nations Treaty Registry with responsibility for locating, compiling, registering, numbering and publishing all treaties concluded between indigenous peoples and States. Due attention should be given in this endeavour to securing access to the indigenous oral version of the instruments in question." (18)

REFERENCES:

(1) Matthew King, the late historian and spokesperson of the Lakota Nation, testifying at the "Sioux Treaty Hearing," (United States v. Consolidated Wounded Knee Cases) in US federal court, December 1974. For all the testimony by traditional Lakota elders and others at that hearing, see: Roxanne Dunbar Ortiz, The Great Sioux Nation: Sitting in Judgment on America. New York: Random House Books, 1977, pp. 153-156.

(2) Phillip Deere of the Creek Nation, the late medicine man, testifying at the "Sioux Treaty Hearing," full testimony in The Great Sioux Nation, pp. 74-78.

(3) E/CN.4/Sub.2/1999/20. Para. 34.

(4) 371 is the total number of treaties signed by both parties, ratified by the US Congress, and proclaimed by the US President. Many more treaties by the United States and Native nations that were not ratified, or if ratified not proclaimed, the California Native peoples treaties being the most numerous.

(5) 16 Stat. 566; Rev. Stat. Sec. 2079; 25 U.S.C. Sec. 71.

(6) E/CN.4/Sub.2/1999/20. Para. 319.

(7) Roxanne Dunbar Ortiz, Indians of the Americas: Human Rights and Self-Determination. London: Zed Books, 1984, p. 137.

(8) It should also be noted the United States foreign policy of aggression, militarism, and unilateralism is not new, rather based on the initial foreign policy toward the indigenous nations of North America. See: Roxanne Dunbar Ortiz, "The Grid of History: Cowboys and Indians," in Monthly Review 55: 3 (July-August 2003) 83-93. http://www.monthlyreview.org/0703dunbarortiz.htm

(9) E/CN.4/Sub.2/1992/32, Paras. 363-390

(10) E/CN.4/Sub.2/1999/20. Para. 49.

(11) Indigenous peoples in all the treaty territory, but particularly in the settled Mexican provinces of New Mexico and California, were affected by the transfer of State authority and deserve attention.

(12) Roxanne Dunbar Ortiz, Roots of Resistance: Land Tenure in New Mexico, 1680-1980. Los Angeles: University of California American Indian Studies Center and Chicano Studies Research Center, 1980.P. 83.

(13) United States v. Sandoval, U.S. Reports, vol. 231, p.28 (1913). At that time, the United States regarded federally recognized Indians as incompetent wards of the government. The decision states in part: "They [the Pueblos] are essentially a simple, uninformed, inferior people."

(14) United States General Accounting Office (GAO), Treaty of Guadalupe Hidalgo: Definition and List of Community Land Grants in New Mexico, Exposure Draft. Report No. GAO-01-330. Pp. 19-20. Also may be downloaded at: http://www.gao.gov/guadalupe/

(15) Roots of Resistance. P. 129.

(16) See: Christine A. Klein, "Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo," New Mexico Law Review, 26 (Spring 1996) pp. 205-55. Klein compares Pueblo Indian land rights under the Treaty with those of former Mexican citizens' claims to lands. Klein also reviews the evolving meaning of the guarantees of the Treaty (held not to be self-executing) over time as Congress passed increasingly strict implementation legislation. She also compares land rights in New Mexico with those in California. This is a useful survey of the Treaty and its implications for New Mexico Pueblos, as well as the indigenous peoples of California.

(17) See: Joe Sando, The Pueblo Indians. San Francisco: Indian Historian Press, 1976, p. 129; Dunbar Ortiz, Roots of Resistance, pp. 119-120.

(18) E/CN.4/Sub.2/1999/20. Para. 322 (b)
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