ANCC - Apache
Nation Chamber of Commerce
ANCC - APACHE
NATION CHAMBER OF COMMERCE
"FORGING SELF DETERMINED SUSTAINABILITY THROUGH TRADE"
The Question of Apache Sovereignty
A collection of
books on Indian law, documentation of patterns in
abuse and process appear to reveal themselves, providing a
strategy that actually leverages traditional values and
gains position for the Apache.
The Apache are sovereign. They have rights unless and until
they give away their rights. Regardless, there are rights
and under certain conditions those rights the Apache cannot
relinquish. A treaty does not list all the (Sovereign Indian
and US citizen) rights, and no treaty was ever intended to
“Federal Indian law
has as its most important legal principle the recognition of
Indian tribes as sovereign nations. Most everyone is
familiar with Indian treaties in American history. Treaties
are made between sovereign governments, so what is an Indian
tribe? A sovereign government! Some people think that Indian
treaties are ancient history, but no – treaties are the
supreme law of the land according to the U.S. Constitution
unless they have been changed by acts of Congress.”
of the Native American Rights Fund
In 1492 the
indigenous People observed Christopher Columbus arriving in
the New World. Around 1550 the Indians saw Spanish introduce
slavery and African slaves to Mexico, North America. In 1607
North American Indians saw European illegal immigrants
camped out to create Jamestown, Virginia. The North American
Indian border was trespassed by the English, French,
Spanish, Dutch immigrants and colonists.
European nations as
well as the Founders of the United States regarded Indian
tribes as having both the right and the ability to govern
their people as sovereign nations, to make treaties, and to
“We must affirm the
rights of the first Americans to remain Indians while
exercising their rights as Americans. We must affirm their
rights to freedom of choice and self-determination.”
President Lyndon Johnson
the states from acquiring any additional authority over
Indian reservations under P.L. 280 without the consent of
the affected tribe.
Congress has since restored to
federal status nearly all the tribes terminated during the
“This, then, must be the goal of any new
national policy toward the Indian people: to strengthen the
Indian sense of autonomy without threatening this sense of
President Richard Nixon
Indian Child Welfare Act gives Indian
tribes and Indian families substantial protections against
the removal of Indian families from their homes by state
agencies and state courts.
Government Tax Status Act authorizes Indian tribes many of
the same tax advantages enjoyed by the states, such as the
ability to issue tax-exempt bonds to finance government
intends to restore tribal governments to their rightful
place amount governments of this nation and to enable tribal
governments, along with State and local governments, to
resume control over their own affairs.”
President Ronald Reagan
Indian Gaming Regulatory Act confirmed
Indian tribe authority to engage in gaming to raise revenue
and promote economic development.
Congress amended the
Indian Arts and Crafts Act prohibiting goods labeled as
“Indian” unless they were made by Indians. The law also
permits Indians to recover damages against those who violate
Clinton issued an executive order requiring all federal
agencies to conduct business with Indians on a “government
to government” basis, respectful of tribal sovereignty.
Clinton issued an executive order reaffirming “the right of
Indian tribes to “self-government,” while also requiring
federal agencies to work to protect “tribal trust resources,
Indian tribal treaty and other rights.”
President Barack Obama issued an
executive order requiring federal agencies to engage in
meaningful consultation with tribal governments prior to
taking any action that may impact the tribes’ interests.
President Obama signed the
United Nations Declaration of the Rights of Indigenous
Peoples recognizing the inherent and fundamental rights
of native peoples throughout the world.
“Native Americans must be full partners
in our nation’s economy, thrive in safe communities, and
have equal access to quality education and health care.”
David J. Hayes
Deputy Secretary of the Department of the
US Supreme Court
Since the 1970s,
Indian interests have lost more than 80 percent of the cases
decided by the Court, a worse success rate than convicted
criminals have fared on the merits of their cases. Over the
last 20 years, the Supreme court has led a massive assault
on tribal sovereignty. Since 1968 the Court decided numerous
cases involving the rights of Indians and tribes, and it
ruled against Indian interests in the vast majority of the
The same person can
be considered an Indian in some situations and not in
others, depending on how “Indian” is defined in the
situation. Each government – tribal, state and federal –
determines who is an Indian. This can result in someone
being determined to be an Indian under tribal but not under
federal law, under federal but not tribal law, under tribal
but not state law, and so forth.
Indian tribes have
the authority to determine who is an Indian for tribal
purposes, but not for federal purposes. To be considered an
Indian for federal purposes, an individual must have some
Indian blood; consequently, a non-Indian adopted into an
Indian tribe cannot be considered an Indian under federal
Congress passed a
law granting citizenship to all Indians born in the United
States. An Indian can be both a citizen of the United States
and a member of an Indian tribe and have all the benefits
and obligations that arise out of that dual status.
There is no
universally accepted definition of the term Indian Tribe.
Each government – tribal, state, and federal – is permitted
to create its own definition of Indian tribe for its
own purposes. Connecticut has extended formal recognition to
five Indian tribes, all of which have reservations, but only
two of them are recognized as tribes by the federal
The primary method
of obtaining federal recognition is by meeting several
requirements established by the Department of the Interior.
Tribal members can enforce a
treaty their ancestors made with the United States even
though the federal government refuses to recognize the
continued existence of the tribe.
Tribes not officially recognized
by the Department of the Interior may participate in federal
programs that Congress has not limited to federally
Tribes may be defined by their
political, rather than by their historical or cultural
Each Indian tribe has the right to
choose its own name.
The terms nation, tribe,
community, Rancheria and band have been
used interchangeably in Indian treaties and statutes.
is all land under the supervision of the U.S. government
that has been set aside primarily for the use of the
Indians, defined in a federal criminal statute, Title 18 of
the U.S. Code, section 1151
… means (a) all land within the limits of any Indian
reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation, (b)
all dependent Indian communities within the borders of the
United States whether within the original or subsequently
acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not be extinguished, including
rights-of-way running through the same.
As a general rule
Indian country falls under the primary civil, criminal, and
regulatory jurisdiction of the federal government and the
resident Tribe rather than the states. The decision whether
a territory is Indian country is an issue of law rather than
of fact; therefore, a judge makes this determination, not a
includes all land within the boundaries of an Indian
reservation, including land not in trust status that is
privately owned by a non-Indian, by an Indian, or by the
tribe. Rights-of-way through an Indian reservation such as
railroad tracks, utility power lines, and state and federal
highways, remain a part of Indian country. Thus, it does not
matter who owns the land; if the land is located within the
boundaries of an Indian reservation, it is Indian country.
Only two factors are
relevant in determining if land is a dependent Indian
community: (1) whether the federal government intended to
set the area apart primarily for Indians and (2) whether the
federal government substantially supervises its use.
Non- Indians are
permitted to live in Indian country.
reservation is land that has been set aside by the federal
government for the use and benefit of one or more Indian
The terms Indian
reservation and Indian country are often used
interchangeably but they are not the same. Indian country is
a larger concept because it includes not only all Indian
reservations, but all dependent Indian communities and trust
and restricted allotments outside a reservation.
Doctrine of Discovery
The US government
had become the owner of all the land within the United
States by virtue of the “discovery“ of the North American
continent by Europeans ( who were then replaced by the
United States) and the “conquest“ of its inhabitants. The
European concept was Indians were “heathens” and their land
could be taken from them and given to “Christian people. “
The principles of
Indian title are the following:
the federal government acquired
ownership of all the land within the United States by
discovery and conquest and the Indians lost all rights of
Indians retain a perpetual right
to remain on their aboriginal territory until such time as
Congress decides to take this land for another purpose
Indian title is a possessory and
not an ownership interest - Indians have a right to possess
their ancestral land but not to own the land unless Congress
gives them ownership rights
Indian title may not be sold by
the Indians without authorization from the federal
government, or lost or removed except by an express act of
If the United States
allows a railroad to use certain reservation land, the
railroad takes that land subject to Indian title unless
Congress clearly indicates otherwise. New states entering
the Union were required to respect any Indian title that
existed within their borders.
The tribe’s interest
in continued occupancy is so important that the tribe is
entitled to bring a court action to eject trespassers.
Indian title includes the right to occupy the property as
well as to use its natural resources such as water and
timber and to hunt and fish on the property. Likewise when
Congress extinguishes Indian title the tribe loses its
interest in the land as well as the right to use the natural
resources found on or within the land.
Individual Indians Can Claim Indian
Title to Land
who can show their lineal descendants held and exclusively
occupied, as individuals, a particular tract of land from
time immemorial and this title has never been extinguished
by Congress, have a continued possessory interest (Indian
title) in that land.
Courts Cannot Reverse a Congressional
Decision to Extinguish Indian Title
The Supreme Court
has held the extinguishment of Indian title by Congress is
not subject to review by the courts. Indian title may not be
extinguished even by a president or a federal agency.
Doctrine of Trust Responsibility
The Supreme Court
confirmed in 2011 there exists “a general trust relationship
between the United States and the Indian people.” The
federal government “has charged itself with moral
obligations of the highest responsibility and trust, .... to
the fulfillment of which the national honor has been
Most of the land
mass of the United States was obtained by the federal
government through treaties in which the United States
obtained land and peaceful relations in exchange for giving
the Indians a set of promises. As a result of these
treaties, the federal government acquired a legal duty as
well as a moral obligation, to keep its part of the bargain,
now that Indians have kept theirs.
This principle that
the federal government has a duty to fulfill its promises is
known as the doctrine of trust responsibility. This
doctrine has been a cornerstone of federal Indian law for
nearly 200 years.
A trust is created
whenever one party places something of value under the
control of a second party for the benefit of a third-party.
The person or entity who holds the trust property is called
the trustee, while the person for whom the trust is
created is called the beneficiary.
At a minimum, the
trustee is obligated to remain loyal to the beneficiary; to
act in the beneficiary’s best interests; to act with all the
skill, care, diligence, and expertise at his or her
disposal; and to preserve, protect, and maintain the trust
In 2008 a Federal appellate court
noted that a cornerstone of the trust obligation is to
promote a tribes political integrity.
An earlier 1977
Senate report expressed this obligation as follows:
The purpose behind the trust doctrine
is and always has been to ensure the survival and
welfare of Indian tribes and people. This includes an
obligation to provide those services required to protect
and enhance Indian lands, resources, and
self-government, and also includes those economic and
social programs which are necessary to raise the
standard of living and social well-being of the Indian
people to a level comparable to the non-Indian society.
A broad application
of the trust doctrine transcends specific treaty promises
and imposes a duty to promote tribal sovereignty and
Statues can and
frequently do create trust responsibilities.
Statutes are the vehicles by which
congress creates the programs and services necessary to
fulfill its treaty promises. Congress ended treaty making
with Indian tribes in 1871. Once that happened, the primary
means by which Congress could satisfy its treaty commitments
was by enacting laws that created programs or services for
Indians and tribes. The Supreme Court noted that Congress
may fulfill its treaty obligations and its responsibilities
to the Indian tribes by enacting legislation dedicated to
their circumstances and needs. Statutes should be viewed as
extensions of the treaties.
Congress has passed laws that
place Indian property in the hands of federal agencies, and
which require the agencies to manage that property in a
certain fashion. Whenever Congress removes the tribe’s
ability to manage its own resources and confers that power
on a federal agency, courts must infer Congress intended to
impose on that agency traditional fiduciary duties unless
Congress has unequivocally expressed an intent to the
contrary. In short, it is now clear, as one federal court
recently stated that the trust relationship arises out of
With respect to
Congress the trust responsibility is a moral and ethical
rather than a legally enforceable duty. In fact if Congress
decides to terminate an Indian program or even terminate an
Indian tribe, a federal court has no authority to prevent
it. Indians this must rely on the good faith of Congress to
keep the promises that Congress made more than a century ago
in exchange for Indian land and peaceful relations.
However Indians and
tribes can compel federal officials to perform the
duties that Congress has delegated to them. Although
Congress has the authority to modify a trust relationship,
administrative agencies do not. Federal officials must
faithfully execute their trust duties, and courts must
carefully scrutinize their actions. Federal agency
responsible for implementing this nation’s Indian programs
have an overriding duty to deal fairly with Indians, and
their actions must be judged by the stricter standards that
apply to a fiduciary.
The doctrine of
trust responsibility demonstrates Indians are not receiving
“free“ services. Rather, the services were prepaid.
Tribes relinquished their homelands and agreed to move
peacefully to much smaller territories in exchange for these
When a treaty
promises as most treaties do that the federal government
will protect tribal land, this guarantee prevents federal
officials from selling or otherwise disposing of that land
except in limited situations; from diverting water away from
that land, thereby rendering it less available habitable,
and from denying Indians the ability to access or use their
land. Similarly, when federal statute places Indian property
such as oil, gas, minerals, or timber under the strict
control and management of federal officials as some statutes
do, the federal government thereby acquires fiduciary duties
to manage those trust resources wisely in the best interest
of the Indian beneficiaries.
government is entitled the fashion an Indian program and
it’s trust relationship with Indian tribes however it wishes
and the government has often structured the trust
relationship to pursue its own policy goals. In other words
the trust relationship has been altered and administered as
an instrument of federal policy. Indians must rely on the
integrity and honor of the United States to administer
programs in the best interest of the Indians.
The Mitchell Doctrine
When a law confers
on the government pervasive and comprehensive control over a
tribal resource, a fiduciary duty is created with respect to
the management of that resource, and the government can be
held liable in damages for mismanagement. In this situation
a money mandating remedy may be inferred even if the law
does not create an express right to damages.
Once a tribe
acquires primary responsibility over a trust resource then
the tribe becomes responsible for any mistakes made in
managing it. Along with greater control comes great
Duty of Consultation
may no longer make decisions that directly impact tribal
interest without properly consulting with Indian tribes.
President Bill Clinton April 29, 1994 issued a presidential
memorandum reaffirming the government to government
relationship between United States and Indian tribes which
states each executive department and agency shall consult,
to the greatest extent practical, and to the extent
permitted by law, with tribal governments prior to taking
actions that affect federally recognized tribal governments.
In 2009 President
Barack Obama issued a presidential memorandum mandating that
within 90 days of its issuance, each federal agency
implement a written government to government consultation
policy with Indian tribes. Consultation is about
communication, respect, and partnership. Through meaningful
consultation, a federal agency can respect tribal
sovereignty, honor the trust relationship, learn and
appreciate tribal values, avoid misguided errors and false
presumptions, and make informed decisions on what is the
best course of action.
of consultation is just as important as the substance of
consultation. As part of the consultation process, an agency
inform the tribe of all relevant
facts, and do so as early in the decision making process as
give the tribe sufficient time to
consider the situation, and provide the tribe with technical
assistance and additional data if the tribe request;
maintain a dialogue with the
tribe, address the tribe’s concerns in a timely manner, keep
the tribe informed of developments, and be open to looking
at things from the tribes perspective;
document the consultation process
by notifying the tribe in writing of developments and
potential plans, and request written comments from the
accept the tribe’s recommendations
unless compelling reasons require otherwise;
send a written and detailed
explanation of the reasons for that decision when the
tribe’s recommendation is not accepted.
Several courts have
invalidated decisions by federal agencies that have been
made without adequate consultation with the affected tribe.
responsibility extends to off-reservation activities that
affect reservation Indians.
federal agencies undertaken off the reservation that would
diminish on-reservation water supplies or pollute
reservation air or water have been held to violate the trust
doctrine. In a recent case however a federal court held that
the Trust Doctrine did not extend to off-preservation
activities regulated by the federal agency on privately
owned land unless the treaty or statute especially require
the agency to protect tribal interests.
relationship may only be terminated by an express act of
Congress; termination will not be implied. Even the tribe
may not terminate the relationship.
have often ignored or improperly executed their trust
obligations, mismanaged tribal trust resources, and
inhibited tribes from becoming self-governing. Congress has
broken nearly all of its Indian treaties, terminated Indian
tribes, and failed to adequately supervise the management of
trust duties by federal agencies. Congress has a trust
responsibility to enhance the social and economic well-being
of Indian people, and yet Indians are the most disadvantaged
and impoverished group in our society.
Tribes can become dependent on federal
help, making it less likely they will become
A treaty including
one between the United States and an Indian tribe is
essentially a contract between two sovereign nations. (US
The Supreme Court
noted Indian tribes were regarded by the nations of Europe
and by the United States as distinct, independent political
communities, retaining their original natural rights, and
ranked among those powers capable of making treaties.
declares that a federal treaty, just like a federal statute,
is the supreme law of the land.
superior to state constitutions and state laws. If a state
law conflicts with the provisions of a treaty, the treaty
The treaty may not
deprive a citizen of a right guaranteed by the Constitution;
the Constitution is always superior to any law or treaty.
The United States has signed scores of treaties with foreign
countries, covering such subjects as trade, fishing on the
high seas, international travel, rules of war, and the use
of nuclear energy.
Not a single California tribe has a
treaty with the United States. The U.S. Senate refused
to ratify those treaties, and thus they were legally
Nearly four hundred
treaties have been signed between Indian tribes and the
United States. Congress passed a law in 1871 that ended
treaty making with Indian tribes. Until 1871 treaties were
the accepted method by which the United States conducted its
formal relations with the Indians.
treaties varied from one tribe to another nearly all of them
expressly recognize the sovereignty of the tribes and many
contained express assurances that the federal government
would “protect the tribes.” Most treaties also guaranteed
the tribe such things as food, clothing, medical care,
education and other services. In exchange for peace and land
the United States promised to create a federally protected
reservation for the tribe to respect the tribe sovereignty
and to provide for the well-being of tribal members.
The main purpose of an Indian treaty
was to take land from the tribe.
promises were given by the federal government in exchange,
no effort was made in any of these treaties to list the many
rights that these sovereign tribal governments retained.
Reserve Rights Doctrine
The Supreme Court
explained there an Indian treaty therefore should be viewed
not as a grant of rights to the Indians, but a grant of
rights from them. These treaties were intended to list the
rights the tribes were relinquishing, not those they were
retaining. The tribes have many rights in addition to those
listed in treaties. In fact, any right that a sovereign
nation would normally possess that is not expressly
extinguished by a treaty or by a subsequent federal statute
is presumptively reserved by the tribe. This is the
fundamental principle of Indian law known as the reserve
The tribe retains
the right to fish on its reservation even if that right is
not conferred in its treaty; the treaties silence on the
subject means this inherent right has not been lost.
When a treaty
recognizes the tribe’s right to engage in an activity the
tribe has historically engaged in, such as hunting or
fishing, the treaty is not viewed as a source of those
rights. Rather the treaty merely recognizes rights that the
tribe has always possessed.
Since 1871 Congress
prohibited the federal government from entering into
additional treaties with Indian tribes.
Until then, Indian tribes had been
viewed by the federal government as sovereign nations whose
consent was required before the federal government could
take any action affecting them, such as removing tribal
Since then, Congress has regulated
Indian affairs through legislation.
Now, Congress can do
anything it wanted me too merely by passing a law regardless
of a tribe’s opposition. In fact, treaties in which Congress
had promised a tribe to never take tribal land without the
tribe’s consent could now be broken by the passage of a
statute. In this way, Congress could frequently confiscate
land that had been promised to tribes in peace treaties.
Section 71 states
“no obligation of any treaty … shall be hereby invalidated
or impaired.” The passage of section 71 did not affect any
existing Indian treaty. But that does not mean that every
Indian treaty is still valid today.
The Supreme Court
holds it is entirely in the discretion of Congress whether
to honor or abrogate an Indian treaty. The Supreme Court has
consistently upheld the principle that Congress has the
power to abrogate Indians treaty rights.
To Indians, a treaty
creates a solemn bond between the participants, and
violating a treaty is unpardonable. Treaties are sacred
covenants. The tribes that relinquish their lands in
treaties fully expect of the United States to honor its
The Fifth Amendment
to the Constitution provides that Congress may not deprive
anyone “of private property … without just compensation.”
The Supreme Court has held Indian treaty rights are a form
of private property protected by the Just Compensation
Clause. Therefore when Congress abrogates an Indian treaty
it must adequately compensate the tribe for the value of any
rights or property that is lost. However money often
provides a little actual compensation to people who have
lost their homes and sacred lands.
Canons of Treaty Construction
The Supreme Court
developed three rules governing the interpretation of Indian
treaties. The rules are called the canons of treaty
Ambiguities and treaties must be
resolved in favor of the Indians.
Treaties must be interpreted as
the Indians would have understood them at the time the
treaty was signed.
Treaties must be construed
liberally in favor of the Indians.
The Supreme Court
(1999) … “interprets Indian treaties to give effect to the
terms as the Indians themselves would have understood them,”
interpreting them “liberally in favor of the Indians.”
in the Treaty Making Process
Indian treaties were always
written in English.
The Indians could not be certain
what they were signing.
Tribes were dependent on
government interpreters to explain the street is to them.
Most treaties were signed under
the threat of force and therefore were inherently unfair.
Treaties create a trust
relationship between the tribe and the United States, a
relationship that requires the federal government to
enhance, not injure tribal interests.
It should be presumed that the
treaty was intended to provide the tribe with what it needed
receive the benefit of the doubt when questions arise
regarding how a treaty should be interpreted.
The Supreme Court explained in the 1989
case interpreting several Indian treaties:
Accordingly, it is the intention of the
parties, and not solely that of the superior side, that must
control any attempt to interpret the treaties. When Indians
are involved, the court has long given special meaning to
this rule. It has held that the United States, as the party
with presumptively superior negotiating skills and superior
knowledge of the language in which the treaty is recorded,
has a responsibility to avoid taking advantage of the other
side. The treaty must therefore be construed, not according
to the technical meaning of its words to learned lawyers,
but in the sense in which they would naturally be understood
by the Indians.
The Supreme Court has stated
statutes are to be construed liberally in favor of the
Indians, with ambiguous provisions interpreted to their
A violation of an Indian treaty is
a violation of federal law.
A state may not take actions
inconsistent with an Indian treaty.
Treaty rights may be raised as a
defense to a state or federal criminal prosecution.
If the treaty protects the
activity for which the defendant is being prosecuted, the
charges must be dismissed.
belong not just Indians; they belong to everyone in the
United States. The citizens of this country have a legal
moral and ethical duty to enforce these treaties. Indians
paid dearly for the treaty rights. The United States must
keep its end of the bargain.
Treaties are not
ancient documents that no longer need to be enforced. This
is the same with the Declaration of Independence and US
Constitution which are also ancient documents.
The mere passage of
time has not eroded and cannot erode the rights guaranteed
by solemn treaties that both sides pledged on their honor to
uphold. The extent to which the United States honors its
treaty commitments to Indian tribes reflects the extent to
which our society is committed to the rule of law and
justice. The integrity of our country depends on it.
ANCC - APACHE
NATION CHAMBER OF COMMERCE
"FORGING SELF DETERMINED SUSTAINABILITY THROUGH TRADE"
NOTICE. Apache Nation Chamber of Commerce, ANCC, The ANCC,
Apache Nde Nation Chamber of Commerce, Apache Chamber,
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Nation Chamber of Commerce.
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