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  • Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

William L. Kovacs

July 2020

Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

The events of the summer of 2020 bring issues of justice, inequality, racism, and civil rights to national attention. President Trump and Congress took strong action against China for violating its 1997 agreement with the United Kingdom to protect Hong Kong’s freedoms for fifty years, under the “One country, two systems” agreement. Unfortunately, the U.S. ignores the many broken treaties signed with Native Americans. It is estimated the U.S. entered into more than 500 treaties with native Americans and it breached all of them in some way.

Also in July 2020, the U.S. Supreme Court, in McGirt v. Oklahoma, recognized the Creek Nation’s ownership rights to almost half the state of Oklahoma. The McGirt decision along with a 1980 decision in U.S. v. Sioux Nation, awarding the Sioux Nation compensation for lands illegally taken in 1877, raises the question of whether the U.S. has acted as bad or worse than China in taking land from native Americans by military force. Fortunately, the cases open avenues for the U.S. to remedy wrongs.

The common denominator between Hong Kong, Creek Nation, and the Sioux Nation, is the willfulness of sovereigns to violate the rights of people by unilaterally withdrawing treaty obligations, to accumulate more power.

China does not pretend to respect the rights of those living under its control. President Trump claims the U.S. is exceptional. He is certainly willing to call China on its abuse of rights. He now has the opportunity to prove the U.S. respects the rights of native Americans.

The Creek Nation decision arises out of a jurisdictional dispute as to whether a native American Indian can be tried in state court for a crime committed on the reservation? Oklahoma prosecuted Jimcy McGirt in state court on felony charges. McGirt argued that since the crime was committed on the reservation, Oklahoma did not have jurisdiction over the crime. Oklahoma argued it has jurisdiction since the reservation was disestablished by federal actions. The Supreme Court needed to determine whether the Creek Nation reservation still existed to determine McGirt’s rights.

The historical significance of the laws governing the Creek Nation reservation is monumental. The tribe was forced by the military in the early 1830s to leave its ancestral lands in Georgia and Alabama and to re-locate in new lands in the west. As part of the new treaty, the U.S. “solemnly agreed” that the new lands would be “secure forever” and that “no state… shall ever pass laws for the government of such Indians.” This forced re-location is best known as the “Trail of Tears.”

To determine the status of the Creek Nation reservation, the court reviewed the 1833 Treaty that established the boundaries of the reservation and the many actions of federal and state governments to coerce or defraud the Creek Nation to abandon their reservation, so it would revert to the government.

The Court noted that when it comes to tribal relations, Congress has the authority to breach its own promises to Native Americans, including divesting reservation land and diminishing its boundaries. In fact, Congress can do about whatever it wants to native Americans, but it must be explicit in what it seeks to do. Moreover, in the 190 years of conflict over its land, the Creek Nation “would not, under any circumstances, agree to cede any portion of their lands.”

The Supreme Court made it clear, “If Congress wishes to withdraw its promises, it must say so. Unlawful acts performed long enough…are never enough to amend the law.” As to the Creek Nation, Congress did not clearly state the reservation was disestablished. Therefore, ownership of the territory, subject to the treaty, rests with the Indians.

In Sioux Nation, like in Creek Nation, the tribe never ceded its territory to the U.S., nor accepted the compensation awarded it by the Supreme Court for the illegal taking. The dispute of ownership of federal lands continues after 153 years.

Specifically, The Fort Laramie Treaty of 1868 provided that “No treaty for the cession of any portion or part of the reservation…shall be of any validity or force as against the said Indians, unless executed by at least three-fourths of all the adult male Indians…”

The decision to abandon U.S. treaty obligations and take the land of the Sioux Nation was first made by President Grant (not Congress), in 1875, by allowing settlers to occupy the territory. Only after the treaty obligations were de facto abandoned did president Grant form a commission to deal with the Sioux Nation.

The Indian Commission drafted a new “treaty” in advance of meeting with the Indians. The Indian Commission made it clear the U.S. would stop providing rations (food) to the Indians unless the new “treaty” was signed. Approximately ten percent of the Sioux male Indians signed the agreement, notwithstanding that the Treaty of Laramie, could not be changed unless ratified by three-fourths of the male, Sioux Indians.

The Indian Commission sent the revised “treaty” to Congress, which ratified it as the 1877 Act.

By ratifying the 1877 Act, Congress merely ratified an agreement between the Indian Commission and ten percent of the needed Indian parties. In short, Congress ratified nothing.

Since the ruling in Creek Nation is the latest and most definitive Supreme Court holding on the taking of Indian lands, the standard for Congress withdrawing such treaties is an Act of Congress that clearly states the treaty is withdrawn. This did not occur in either case. As the court notes in Creek Nation, no matter the illegal activity, or coercive efforts by the U.S., such acts “are never enough to amend the law.”

The 1877 Act, merely ratifies an agreement between an Indian Commission and a small subset of the Sioux tribe. Clearly Congress made a mistake that caused the Sioux Nation to suffer for over a century. The larger issue, however, – will the U.S. recognize the Sioux Nation as the owner of the land it never relinquished? If not, how does our breach of treaty obligations differ from China? Both countries took territory and abolished rights?

The U.S. has an opportunity to remedy a long-standing wrong. It is rare when these opportunities arise. Such an opportunity should not be missed. Congress could easily reaffirm the Treaty of Laramie of 1868 and with the president’s signature, the U.S. would perform an exceptional act.

This article was first published in medium.com on July 22, 2020





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  • Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

William L. Kovacs

July 2020

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mr. President, in your July 3rd Mount Rushmore speech, in the Black Hills of South Dakota, you exclaimed we are “…the most just and exceptional nation ever to exist on earth.” You have an opportunity to prove it. Honor the 1868 Treaty to re-establish a Sioux Nation Reservation (“Sioux”) on the sacred lands taken from them by military force.

President Obama supported this effort. You have a chance to close, perhaps the largest real estate deal in history.

Your speech was heavy on exceptionalism but avoided mention of the illegal seizure of Sioux lands 143 years ago, a fact recognized by the U.S. Supreme Court in 1980.

The talk about “witnessing a merciless campaign [by protesters] to wipe out our history, defame our heroes, erase our values, …, and unleash a wave of violent crime in our cities, was expected. You called the protestors the “…very definition of totalitarianism,” proposing ten years in jail for anyone damaging national monuments. You made your point, but please do not forget the violence the U.S. inflicted on the Sioux when it wanted their land for passage, gold, timber, and cattle grazing.

As Paul Harvey said – “And now the rest of the story.”

To end the Indian Wars, the federal government and the Sioux negotiated the Treaty of Fort Laramie (1868), pledging to cease the war between the parties forever. The U.S. pledged that the Sioux Nation (parts of North Dakota, South Dakota, Wyoming, Nebraska, and Montana) would be set apart for the absolute and undisturbed use and occupation of the Indians.

The Indians pledged safe travel through their territory, peace and that if any “bad men among the Indians shall commit a wrong or depredation upon the person or property… subject to the authority of the U.S., the Indians shall deliver the wrongdoer to the U.S.”

After ratification, gold was discovered in the Black Hills. Americans demanded to open the territory for settlement. Additionally, the final construction of the Union Pacific Railroad increased travel through the territory.

More settlers and travelers led to clashes between tribes, leading to open hostilities. In 1876, President Grant secretly allowed settlers to move into Indian territory. Grant unilaterally ordered the removal of certain tribes from the territory. In 1877, open war broke out, and the U.S. government annexed the lands protected by the treaty.

From 1877 to 1980, Congress offered money to settle with the Indians, but the Sioux Nation never accepted being forcibly deprived of their lands.

In 1923 the Sioux filed suit in the Court of Claims, but the case was dismissed in 1942. Between 1946 and 1958, Indian claims commissions attempted to determine compensation, and the Court of Claims finally awarded $17. 5 million to the Sioux Nation but without interest from the date of seizure in 1877. The Sioux refused the money.

Litigation continued until 1980 when the Supreme Court ruled since there was a taking of tribal property, there was an “… implied an obligation on the government’s part to make just compensation to the Sioux.” The Supreme Court held that obligation consisted of the $17.5 million Court of Claims damage award, plus interest from the taking date, about $1.5 billion today. The Sioux again refused the money.

Throughout a century of proceedings, the U.S. viewed the taking as an eminent domain proceeding to be settled by money. The Sioux Nation, never relinquished claim to the territory, considering the seizure as a violation of U.S. treaty obligations.

This stalemate is untenable in a democratic society. While the Fifth Amendment of our Constitution requires “just compensation” for the taking of property; it also requires that before the property can be taken, the owners must be extended due process. The Sioux never received due process before the U.S. seizing its property.

The U.S. alternative would be to claim the territory under the right of conquest, extinguishing all Indian rights. This doctrine would merely confirm what happened. The right of conquest was legal in 1868, but presently, it is illegal and perhaps a war crime under Nuremberg Principles. Not a good political move.

President Trump, you can prove the U.S. is still exceptional by abandoning ownership claims to Sioux territory. Most of the land is still sparsely inhabited. Moreover, since the U.S. owns 47% of the west, other adjoining lands may substitute for highly populated areas in the territory.

Resolving this dispute with the Sioux may be the largest real estate deal in history. It will also right a tremendous wrong.

This article was first published in medium.com