The Treaties of the Eastern Shawnee Tribe

Prof. Robert J. Miller (Eastern Shawnee)Prof. Robert J. Miller (Eastern Shawnee)

Sandra Day OSandra Day O’’Connor College of LawConnor College of Law

Arizona State University, Phoenix ArizonaArizona State University, Phoenix Arizona

Johnson v. McIntosh, 21 U.S. 543 (1823).

Country settled on Discovery & Conquest Country settled on Discovery & Conquest Discovery limited tribal real property rights Discovery limited tribal real property rights Discovery limited tribal sovereign rightsDiscovery limited tribal sovereign rights

Royal Proclamation of 1763 Delineated the boundaries of tribal lands as Delineated the boundaries of tribal lands as

west of the crest of the Appalachia Mts. west of the crest of the Appalachia Mts. Colonists were not to enter this area or Colonists were not to enter this area or purchase lands without Royal permissionpurchase lands without Royal permission

European treaties with tribal nations 1530s-European treaties with tribal nations 1530s- Colonial and state treatiesColonial and state treaties US/Indian treaties 1778-1789 & 1789-1871 US/Indian treaties 1778-1789 & 1789-1871

NW Ordinance of 1787““utmost good faith shall utmost good faith shall

always be observed towards always be observed towards the Indians; their lands & the Indians; their lands &

property shall never be taken property shall never be taken from them without their from them without their

consent; and in their consent; and in their property, rights & liberty they property, rights & liberty they

never shall be invaded or never shall be invaded or disturbed, unless in just and disturbed, unless in just and

lawful warslawful wars””

COMMERCE

Art. I, Section 8Art. I, Section 8

““The Congress shall have Power . . . to The Congress shall have Power . . . to regulate Commerce with foreign Nations, regulate Commerce with foreign Nations, and among the several States, and with the and among the several States, and with the Indian tribes . . . .Indian tribes . . . .””

Treaties

Article VIArticle VI““This Constitution, and the Laws of the This Constitution, and the Laws of the

United States . . . and all Treaties United States . . . and all Treaties made, or which shall be made . . . made, or which shall be made . . . shall be the supreme Law of the shall be the supreme Law of the Land; and the Judges in every State Land; and the Judges in every State shall be bound thereby, any Thing in shall be bound thereby, any Thing in the Constitution or Laws of any State the Constitution or Laws of any State to the Contrary notwithstanding.to the Contrary notwithstanding.””

Legislative Enforcement of the Treaty Promises

1790 Act declared that 1790 Act declared that ““no sale of lands made no sale of lands made by any Indians, or any nation or tribe of by any Indians, or any nation or tribe of Indians within the United States, shall be Indians within the United States, shall be valid to any person or persons, or to any valid to any person or persons, or to any state . . . unless the same shall be made and state . . . unless the same shall be made and duly executed at some public treaty, held duly executed at some public treaty, held under the authority of the United States.under the authority of the United States.””

The Status of Indian Treaties in United States Law

375 treaties with tribes between 1778-1871375 treaties with tribes between 1778-1871 Treaties are contracts between nationsTreaties are contracts between nations United States v. WinansUnited States v. Winans (1905) (reserved rights) (1905) (reserved rights)