WHY YOU DESERVE BETTER TRIBAL GOVERNMENT: Part 4, Treaties – What to do about them, and what to do with them.

By Rob Trepp
Edited by Eddie Mouss

Every Muscogee citizen that wants to have a background on our political history needs to review our treaties. They actually start before the 1763 Treaty with four southern governors at Charleston, colony of Carolina, as well as with France and Spain and Great Britain. Resources are limited and the Muscogee (Creek) Nation\’s tribal government has not committed to acquiring the text of many documents or posting that on tribal web pages for tribal members to study.

Our United States treaties are easily found at:

The land areas discussed in each treaty are found in maps which are available at: http://usgwarchives.net/maps/cessions/

I have been unable to find a free website for the complete edition of Royce\’s book on land cessions, which keys actual treaty language one section of the book to the large numbers shown on the maps.

Of course those books show and describe lands we ceded. They don\’t show any relinquishment of north Florida by us, even though the only significant fact about the north boundary of Florida is that it defined the line between the United States and Spain.

Andrew Jackson could not take lands from us in 1814 that were in Spanish territory, and the Indian Claims Commission defined the Seminole claim to Florida lands as bounded on the north on the old Spanish Road from Pensacola to St. Augustine, leaving a vast area we should still pursue a claim to.

Also notice that our 1832 Treaty is an allotment agreement, not a Removal treaty. We have never asked any court to give us any equitable relief for the loss of life our ancestors endured — only property losses were ever discussed.

Our 1835 Treaty (shown as \”Comanche and others\” in the list above) is incredibly important because of its discussion of hunting rights in Article 4. The rights to hunt and fish and gather wild plants, not only in our own boundaries but also in whatever area the 1835 rights can actually be defined, but also \”as by custom\” on any unsettled lands in our old homelands back east are rights of incredible importance, especially because the Treaty shows they are tribal rights, not individual rights, and cannot be exercised by individuals without some tribal authority.

But it is in our 1866 Treaty that the most powerful definition of our rights persists. The first half of Article 10 might sound good, but was actually used as the purpose of the Curtis Act of 1898 which would have imposed a federal allotment if the Nation did not reach an agreement. So read that, then read the second half very carefully:

ARTICLE 10.
The Creeks agree to such legislation as Congress and the President of the United States may deem necessary for the better administration of justice and the protection of the rights of person and property within the Indian territory: Provided, however, said legislation shall not in any manner interfere with or annul their present tribal organization, rights, laws, privileges, and customs.

The second half, the \”proviso\”, sets an absolute limit on the first half.

Yes, Congress has a \”plenary (absolute) power\” in Indian affairs (based on its war making power and regulation of commerce with tribes), but that does not mean that damage done by Congress can be done without compensation, and the Curtis Act took our schools and orphanages, closed our courts, and made our laws unenforceable in federal court (there was no territorial court), destroyed our settled communities, attracted non-members until they outnumbered us, and almost destroyed our tribal government and certainly repressed it (\”bureaucratic imperialism\”, according to a federal court) for almost 75 years.

But that article also sets a standard toward federal action that we must all stand up for:

\”… shall not in any manner interfere with or annul their present tribal organization, rights, laws, privileges, and customs.\”

So, yes, our treaty history is difficult to study because time after time, more land is being given up. And, it is no different with our allotment Agreements:

But in the Curtis Act and these agreements we find that we are subject to Mansfield\’s Digest of the Statutes of Arkansas, some where we were legislatively dumped and never pushed elsewhere.  That has advantages we have never tried to exploit, and any disadvantages can be resolved by a new law that amends or repeals or replaces what should not be applied to us anymore.  Just because some council representatives did not try to understand that and left Mansfield\’s off the list of applicable laws does not make it inapplicable.

One advantage of the laws in Mansfield\’s is that it established our waterways as public rights-of-way to the historic high-water mark.  And any provisions of Arkansas we do not want can be repealed or amended by our legislative powers under Section 9 of the Oklahoma Indian Welfare Act.

The 1906 \”Five Tribes Act\” tries (and ultimately fails) to clean up the messes of the allotment process but leaves us our tribal government (in Second 28).: http://digital.library.okstate.edu/kappler/vol3/html_files/SES0169.html

And if you think I am skipping over details, you have no idea how true that is.  Each Treaty has a mountain of documentation filed somewhere (undoubtedly, many \”somewheres\”) that shows the requests to make a treaty, instructions to the federal delegates, journals of discussions between tribal and federal delegates, reports to and from federal delegates, Senate committee hearings and reports, Senate debate and amendment, Presidential files about its ratification, Executive Orders and departmental instructions on implementation, and much more.

Those files are essential because, if our Nation ever finds itself in court opposed to some random federal action, the federal attorneys have those files to use, and we don\’t.

One example of the type of information available is presented in a detailed analysis found at:

http://avalon.law.yale.edu/18th_century/gw008.asp

And that is just about the different drafts of the question to be presented to the Senate before the 1790 Treaty was negotiated.

There are literally mountains of documentary evidence that need to be obtained and digitized. But the short conclusion is, whatever the Treaties recognize as ours is truly ours, and whatever the Treaties and Agreements and Acts of Congress take from us is either something we can restore (using Section 9 of the 1936 Oklahoma Indian Welfare Act), or is something we can seek equitable compensation for.

Restoration of any limit found in federal law must be tied directly to our Constitution, which already provides for a judiciary and taxation powers (among others) but also has two \”elastic clauses\” within the legislative powers of our National Council, so if we have the will and apply ourselves diligently to the proper preparation, there is a long path we can follow to success.

This requires a National Council, and legislative staff, committed to the long term restoration of what has been rightfully ours all along.
 

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About the Author

Robert Trepp (Escaswvlke, Loca’pokv) is a life-long resident of the Muscogee Nation, diploma from Nathan Hale in Tulsa, BA and MA in Political Science from University of Arkansas (Fayetteville), consultant to 1975 Election Board (first election of Principal Chief and Second Chief since 1903), manpower planner, research specialist, research manager, Director of Government Policy and Research, clerk for Muscogee National Council, member of 1979 Constitution Commission, member of first Gaming Operations Authority board, Chief of Staff and Acting Director of Community Services for Principal Chief Bill S. Fife.  

Successful tribal projects included Citizenship Code, Title I of Judicial Code, research that led to Muscogee Nation v. Hodel (first re-recognition of any Five Tribes courts), seven years lobbying to open Commodity Distribution to Oklahoma tribes, Gaming Code (first in Oklahoma), and multi-million dollar Housing Rehabilitation grant.  Trepp testified to the Senate Select Committee on Indian Affairs on complex issues regarding the protection of native sites in the southeast.

Trepp is Vice President – Sales for Prescor LLC in Sapulpa, and CEO of the National Indian Monument and Institute, which just completed its 30th Tulsa Indian Arts Festival.