The Treaty of 1868, A Field of Industrial Hemp, And The Controlled Substances Act by Paul Wess

Treaty abrogation generally

It is well settled that Congress has the power to abrogate, in whole or in part, treaties made with Indian nations.[76] Congress’s power to abrogate Indian treaties is rooted in its plenary authority over Indians’ property derived from the practical effect of the guardian-ward relationship between the federal government and the Indian nations.[77] While in the international arena the “later in time” rule is almost always strictly applied,[78] because of the guardian-ward relationship between the United States government and the Indian nations, “the courts have been much less willing to imply abrogations.”[79] In United States v. Dion,[80] the Court enunciated its latest Indian treaty abrogation standard. In that opinion the Court recognized that although a requirement of Congress’s “clear and plain” intent must be demonstrated,[81] ever since Lone Wolf was decided in 1903 courts have formulated different standards for determining how a “clear and plain” intent must be demonstrated,[82] as well as whether the intent was to, or not to, include the Indians in the subsequent enactment. However, after recognizing 83 years of cacophonous Indian treaty abrogation law,[83] the Court provided no analysis of why different standards have been used in different cases; though it did formulate a new standard.

An early example of what constituted “clear and plain” Congressional intent is illustrated in United States v. Santa Fe Pacific Railroad Company.[84] In that case, the Walapai Tribe, located in Arizona, sought to enjoin the Santa Fe Railroad Co. (Santa Fe) from interfering with the possession and occupancy by the Indians of their ancestral lands in northwest Arizona. Santa Fe claimed full title to the ancestral lands under a grant of those lands to Santa Fe’s predecessor in interest, the Atlantic and Pacific Railroad Co. The grant to the Atlantic and Pacific RR Co. was provided for in the Act of July, 1866.[85] Paving the way for the act of 1866, and thus the railroad, was the Act of March 3, 1865,[86] which provided that certain lands along the Colorado River in the Territory of Arizona, comprised of about seventy-five thousand acres of land, “shall be set apart for an Indian reservation for the Indians of said river and its tributaries.”[87] The question the Court confronted was whether the act of 1865, by mere creation of a reservation along the Colorado River, Congress intended to extinguish the Walapai’s aboriginal title in their ancestral home laying outside the reserved land. If Congress did intend to extinguish the Walapai’s aboriginal title by the act of 1865, then the Santa Fe possessed a full fee interest in the land in question. If, however, Congress did not so intend, the Santa Fe took the fee subject to the Walapai’s aboriginal title.[88]

The Court concluded Congress did not intend the act of 1865 to extinguish the Walapai’s aboriginal title stating:

We search the public records in vain for any clear and plain indication that Congress was doing more than making an offer to the Indians, which it was hoped would be accepted as a compromise of a troublesome question [the question of whether aboriginal title had already been extinguished, or ever existed due to the fact that they were Mexican cession lands]. We find no indication that Congress by creating that reservation intended to extinguish all of the rights which the Walapais had in their ancestral home. That Congress could have effected such an extinguishment is not doubted. But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.[89]

Thus, since the act did not state an intent to extinguish aboriginal title expressly on its face, nor did the congressional records so expressly state or indicate, the Court could not find an extinguishment.

The Court reasoned, first, that doubtful expressions must be resolved in favor of the Indians, and second, the Walapai did not intend or agree to leave their ancestral lands; it was not their understanding that the mere congressional creation of a reservation worked as a cession of their land.[90] The reason ambiguities must be so resolved, and the Indians’ understanding must be regarded, is because the Indians, according to the Court, are “a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.”[91] Likewise, the reason a unilateral act on the part of Congress that a third party contends was intended by Congress to take away an Indian tribe’s right—whether aboriginal, treaty, or statutory—must be clearly expressed or plainly indicated is because the Indians are subject to Congress’s plenary power and thus “wholly dependent upon its protection and good faith.”[92] Therefore, unless Congress’s intent to abrogate is clear and plain, Congress could not have intended an abrogation. If the Court held otherwise, any inadvertent failure on the part of Congress to consider Indian treaty rights when making laws, or any lack of forethought in considering how proposed legislation would affect Indian treaty rights, would be a breach of its duty of protection and good faith in dealing with the Indians.[93]

The Santa Fe Court analyzed the abrogation issue in light of Congress’s solicitous relationship toward Indian nations, which entailed resolving Congress’s doubtful intentions in favor of the Indians, and interpreting the act in light of the understanding of the Indians. Forty-five years later, however, the Dion Court took a different analytical approach. The Dion Court did not mention or imply in its opinion that a special relationship exists between Congress and Indian nations; nor does the opinion mention or imply that Congress’s doubtful intentions must be resolved in favor of the Indians or that an act of Congress should be interpreted in light of the understanding of the Indians.[94] Rather, the Dion Court focuses on just how tenuous evidence of Congress’s intent can be and still constitute “clear and plain” intent; on resolving Congress’s ambiguous intent in favor of Congress; and on what the Court believed Congress understood it meant when it enacted the Eagle Protection Act.[95]

The Dion Standard

Although recognizing that Congress’s intent to abrogate a treaty by express statement to that effect is preferable for the purpose of ensuring legislative accountability for the abrogation of treaty rights,[96] the Court has not rigidly required explicit statement “where the evidence of congressional intent to abrogate is sufficiently compelling.”[97] Evidence of intent to abrogate may be found from clear and reliable evidence in the legislative history of a statute.[98] Thus, “What is essential is clear evidence that Congress [1] actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [2] chose to resolve that conflict by abrogating the treaty.”[99]

In Dion, defendant relied on an 1858 treaty between the Yankton Sioux and the United States, which was stipulated to have reserved to the Yankton an exclusive right to hunt and fish on their reservation land,[100] to establish his reserved right to hunt and kill otherwise federally protected eagles on his reservation. The United States argued that the Eagle Protection Act (EPA), a federal statute of general applicability that criminalizes certain acts wherever and by whomever committed,[101] abrogated the defendant’s right to hunt and kill bald or golden eagles. After examining the legislative history of the EPA, which contained the contents of a letter written to the subcommittee from an Assistant Secretary of the Interior noting the “continued veneration of eagles and the use of eagle feathers in religious ceremonies,”[102] and that this religious use was “one of the threats to the continued survival of the golden eagle that necessitated passage of the bill,”[103] the Court concluded that Congress believed that it was abrogating the Indians’ rights to take eagles.[104] Thus, it is important to understand that, unlike the Santa Fe Court supra, the Dion Court’s “clear and plain” intent inquiry resolves Congress’s ambiguous intent in favor of Congress, not the Indians, and focuses on what Congress understood the effect of its enactment would be, despite its Indian wards.

According to the first prong of the Dion standard, clear evidence is required that Congress actually considered the conflict between the EPA and Indian treaty rights. Congress’s intent regarding Indian treaty rights to hunt eagles on their reservations is clearly ambiguous. Under the Eagle Protection Act,

Whenever . . . the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof . . . for the religious purposes of Indian Tribes . . . [the Secretary] may authorize the taking of such eagles. . . .[105]

Neither the face of the EPA, nor its legislative history, including the comments of the Assistant Secretary, clearly indicate that Congress intended the EPA to apply to Indians at all, let alone abrogate their treaty rights to hunt eagles on their reservations. Congress could have intended the EPA to apply only to non-Indians who supplied Indians with eagle feathers. Congress could have intended the EPA to apply to Indians and non-Indians alike regarding off-reservation eagle hunting. Indeed, if Indians hunted eagles as assiduously as the Court implies, there would be no eagles on Indian reservations for the EPA to protect. While the evidence is clear that Congress was actually aware that Indian tribes use eagle feathers in their religious ceremonies, there is no clear evidence that Congress was aware that Indian tribes even had treaty rights to hunt eagles. There is certainly no evidence that Congress actually considered the consequences the EPA would have on Indian treaty rights to hunt eagles. Thus the mere appearance of the word “Indian” in connection with an act of Congress cannot constitute clear evidence that Congress actually considered Indian treaty rights.

Neither the Eagle Protection Act’s statutory language, nor its legislative history expressly states that Indian treaty rights were to be abrogated. Taking the Dion Court at its word,[106] the Court’s analysis should have ended there, Dion’s treaty defense upheld, and Congress left to follow established Indian treaty abrogation rules if it expects its legislation to be sustained by the Court, which would be consistent with the Court’s duty to ensure legislative accountability for the abrogation of treaty rights.[107] Yet the “surrounding circumstances,” the Indian’s ostensible conflicting interest with the purpose of the act, provided the Court with a justificatory purpose for finding a clear intent to abrogate the treaty right, absent clear and plain language from Congress to do so either on the face of the statute or in its legislative history. Therefore, the implicit meaning of the “actually considered the conflict” language in Dion includes the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated.[108]

The purpose of a Congressional act is an important circumstance in determining congressional intent. The Supreme Court has long recognized that “reasonable and non-discriminatory conservation statutes implicitly affect treaty rights to the extent necessary to achieve their conservation purpose.”[109] For example, in Kennedy v. Becker,[110] the Court upheld a New York State appellate division ruling that Indians having a treaty right to fish in waters under the jurisdiction of the state of New York were subject to §176 of the conservation law of New York.[111] The Court so held because:

It is said that the state would regulate the whites and that the Indian tribe would regulate its members, but if neither could exercise authority with respect to the other at the locus in quo, either would be free to destroy the subject of the power. Such duality of sovereignty, instead of maintaining in each the essential power of preservation, would in fact deny it to both.”[112]

Likewise in Puyallup Tribe v. Washington,[113] the Court held that while the Puyallup and Nisqually Indians’ right to fish “at all usual and accustomed” [114] places may not be qualified by the state, the “manner of fishing, the size of the take, [etc.] . . . may be regulated by the State in the interest of conservation,” [115] as long as the regulation does not discriminate against the Indians. In support of its holding, the Court cited Tulee v. Washington,[116] quoting:

[W]hile the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee. . . .”[117]

Interestingly, the Court stated that it would have “quite a different case if the Treaty had preserved the right to fish at the ‘usual and accustomed places’ in the ‘usual and accustomed’ manner,”[118] implying that because it was assumed by the Court that “fishing by nets was customary at the time of the Treaty,”[119] if the treaty had provided for the guarantee of the accustomed manner, the State may not be able to regulate the manner even for conservation purposes.

Therefore the proposition implicit in Dion, that Congress may abrogate a treaty right on the basis of the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated, is grounded in case law that addresses how state conservation law may affect, not abrogate, treaty rights when the Indians attempt to exercise those rights while on land under the jurisdiction of the state and not on reservation land. To the extent that Dion abrogated a treaty right of an Indian exercising that right while on reservation land, it did so for a narrow purpose—Dion allows a complete ban of all treaty taking when a complete ban is necessary to assure the survival of a species.[120]

Applying the Dion Standard

Analysis begins with the face of the act, recognizing that the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.[121] The Controlled Substances Act (CSA) is a federal statute of general applicability making the production,[122] manufacture, and distribution[123] of controlled substances[124] criminal wherever and by whomever committed. Such laws are applicable to Indians unless there exists a treaty right that exempts the Indian from the operation of the particular statute.[125] Therefore the CSA is applicable to the members of the Oglala Sioux Tribe unless a treaty right exists which exempts the Oglala from its operation. Since, as concluded above, the Oglala’s treaty right to engage in “agriculture” extends to a right to grow industrial hemp, the CSA does not apply to the Oglala unless Congressional intent to the contrary is clear from the surrounding circumstances or legislative history of the act, despite the absence of a Congressional expression on the face of the act to abrogate treaty rights.[126]

Applying the Dion standard, the CSA should not be construed as to have abrogated the Oglala’s treaty right to grow industrial hemp. First of all, there is no clear evidence that Congress actually considered the effect the CSA would have on those Indian tribes’ possessing a reserved treaty right to grow industrial hemp.[127] Secondly, since Congress did not consider the act’s effect on Indian treaty rights, it a fortiori did not choose to resolve the conflict by abrogating the treaty. Finally, unlike the Eagle Protection Act, the CSA is not a conservation statute, which is an important distinction when considering the implicit meaning of “actually considered the conflict”: that Congress may abrogate a treaty right on the basis of the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated.

There is no such frustration of purpose between the Oglala’s treaty right to grow industrial hemp and the CSA. In fact the tribal ordinance renders the growth of industrial hemp in perfect harmony with the CSA. The purpose of the CSA is to prevent the “illegal importation, manufacture, distribution, and possession and improper use of controlled substances [because they] have a substantial and detrimental effect on the health and general welfare of the American people.”[128] The tribal ordinance is in accord with this purpose by criminalizing the “planting, growing, cultivating, harvesting or gathering, selling . . . or possessing marijuana”[129] and other controlled substances. The Oglala Sioux Tribe expressly wants only to exercise its reserved treaty right to grow industrial hemp, which has more than 25,000 proper purposes,[130] all of which have, or would have, a substantial and beneficial effect on the health and general welfare of the Oglala Sioux Tribe. The Oglala’s ordinance allows the growth of the same plant that it is legal for American businesses to import from other countries, yet, in harmony with the CSA, criminalizes the growth of the plants that the CSA prohibits.[131]

Furthermore, it must be remembered that Congress’s power to ultimately control and manage Indians’ affairs is not absolute; [132] Congress has a duty to protect and advance the Indians’ best interests. Industrial hemp is the most utilitarian plant that the Oglala Sioux Tribe could choose to grow. It is difficult to imagine a more appropriate plant to fulfill the purpose of the 1868 treaty. Because hemp resembles so closely the marijuana plant that is illegal to grow on the reservation, it requires the regulation by themselves of their own domestic affairs and the administration of their own laws to ensure that industrial hemp, and not marijuana, is grown on the reservation.[133] It is difficult to imagine, and bitterly ironic, that Congress would intend to prohibit the Oglala Sioux from growing a crop that so perfectly fulfills the overall scheme of the 1868 treaty. Therefore it is difficult to imagine, regarding a reservation where most people subsist on about $9,000 per year and suffers from 85% unemployment,[134] that Congress would intend to abrogate a reserved treaty right, one in which it was hoped would make the Oglala Tribe self-supporting when the treaty was signed, and not even hint that it was doing so.

* The author received his J.D. in May, 2001. He can be contacted at paulwess@yahoo.com; 401 S. Birchwood Dr., Apt. D, Fremont, NE 68025; (402) 727-0271.

[1] See United States v. Wheeler, 435 U.S. 313, 322 (1978).

[2] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998).

[3] Id. at 1.

[4] Id.

[5] Id.

[6] “Hemp is a distinct variety of the plant species cannabis sativa L. Due to the similar leaf shape, hemp is frequently confused with marijuana. Although both plants are from the species cannabis, hemp contains virtually no THC, . . . the active ingredient in marijuana. Hemp cannot be used as a drug because it produces virtually no THC. . . .” <html://naihc.org/hemp_information/hemp_defined.html#plant>.

[7] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998).

[8] Id. at 1.

[9] Id.

[10] Oglala Sioux Tribal Penal Code, Title 9, Section 106 – Marijuana, and Section 106.00 – Controlled Drugs and Substances.

[11] See id.

[12] Controlled Substances Act of 1970, 21 U.S.C. § 801 et seq. (repealing the 1937 tax statute, 84 Stat. at 1291-92).

[13] See 21 U.S.C. §802(16).

[14] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998), at 2 (emphasis omitted).

[15] Id. at 3.

[16] North American Hemp Council, Inc. <html://naihc.org/hemp_information/hemp_facts.html#history>.

[17] Thomas Ballanco is the attorney who drafted OST Ordinance 98-27 for the Tribal Council. See David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D2.

[18] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 00-13 (2000). The fifth paragraph of Ordinance No. 00-13 states: “Be it further ordained, that the Oglala Sioux Tribal Council does agree with Thomas J. Ballanco’s, Esquire, offer that he will represent any persons or entity, who is prosecuted for cultivating Industrial Hemp or wild Industrial Hemp upon the Pine Ridge Reservation.”

[19] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27. (1998). Paragraph eleven provides “that any members of the Oglala Sioux Tribe who wish to harvest or cultivate industrial hemp must first organize, or join an existing, a land use association. Each land use organization making use of industrial hemp will then appoint, and arrange for the compensation of, a liaison who will file a quarterly report to the Land Committee of the Oglala Sioux Tribal Council, delineating with specificity the industrial hemp acreage to be cultivated and/or harvested, the end products to be manufactured and the progress since the land use association, the Oglala Sioux Tribal Council and any interested law enforcement agencies.”

[20] See David Rooks, Lakota hemp growers headed for legal showdown, Indian Country Today, May 24,2000, at LT1.

[21] Id. Neither McBride nor Ecoffey attended the planting.

[22] David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D1.

[23] Id.

[24] David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D2 (quoting Thomas Ballanco).

[25] Id.

[26] David Rooks, Lakota hemp growers headed for legal showdown, Indian Country Today, May 24,2000, at LT1 (quoting Thomas Ballanco).

[27] Barbara Bad Wound, Give the hemp back, say growers, Indian Country Today, September 13, 2000, at D1 (quoting Thomas Ballanco).

[28] David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D1 (quoting Thomas Ballanco).

[29] See id. at D3.

[30] See 21 U.S.C. § 802(16) (defining “marijuana” as “all parts of the plant Cannabis sativa L. . . .”); See New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1 (1^st Cir. 2000) (holding 21 U.S.C. § 802(16) includes all cannabis sativa plants regardless of THC content); see also United States v. Traynor, 990 F.2d 1153, 1160 (9^th Cir. 1993) (stating “it is not obviously irrational for Congress not to distinguish between male and female marijuana plants, regardless of the THC level); United States v. Proyect, 989 F.2d 84, 87-88 2d Cir.) (reasoning that Congress intended courts to treat all cannabis sativa plants alike, regardless of sex or THC content), cert. denied, 510 U.S. 822 (1993); United States v. Curtis, 965 F.2d 610, 615-16, (8^th Cir. 1992); United States v. Spann, 515 F.2d 579, 583-84 (10^th Cir. 1975).

[31] See 21 U.S.C.A. §822 (a)(1) (requiring “[e]very person who manufactures” to register). See also North American Industrial Hemp Council, Inc., <html://naihc.org/hemp_information/hemp_facts.html#history> (stating, “The US Drug Enforcement Agency classifies all C. sativa varieties as "marijuana." While it is theoretically possible to get permission from the government to grow hemp, DEA would require that the field be secured by fence, razor wire, dogs, guards, and lights, making it cost-prohibitive”).

[32] See David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D3 (referring to statements made by Ted McBride, though not directly quoting him).

[33] Treaty with the Sioux—Brule, Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, and Santee—and Arapaho, Apr. 29,1868, 15 Stats., 635 (1868).

[34] United States v. Sioux Nation of Indians, 448 U.S. 371, 374 (1980).

[35] See EDWARD LAZARUS, BLACK HILLS/WHITE JUSTICE: THE SIOUX NATION VERSUS THE UNITED STATES, 1775 TO THE PRESENT 38-53 (HarperCollins 1991); see also DEE BROWN, BURY MY HEART AT WOUNDED KNEE: AN INDIAN HISTORY OF THE AMERICAN WEST 134-146 (Holt, Rinehart & Winston 1970).

[36] See LAZARUS supra note 35, 45.

[37] Treaty supra note 33, 636.

[38] Id. at 637.

[39] Id.

[40] Id. at 639.

[41] See e.g. McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 174 (1973).

[42] Id.

[43] Jones v. Meehan, 175 U.S. 1, l1 (1899).

[44] See Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows Upon the Earth”—How Long a Time is That?, 63 Cal.L.Rev. 601, 617 (1975) (citing for example McClanahan v. State Tax Comm’n, 411 U.S. 164, 174 (1973) for the proposition that ambiguous expressions be resolved in favor of the Indians; Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) for the proposition that treaties must be interpreted as the Indians would have understood them; and Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943) for the proposition that treaties must be liberally construed in favor of the Indians). [Footnotes omitted].

[45] Indeed, General Sherman, in a letter to General Sheridan stated that “it would be better ‘to invite all the sportsmen of England and America this fall for a Great Buffalo Hunt and make a grand sweep of them all.’ That would make farmers of the Sioux.” LAZARUS supra note 35, 52.

[46] Ex parte KAN-GI-SHUN-CA, (otherwise known as Crow Dog,), 109 U.S. 556 (1883).

[47] See also United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116 (1938); Carpenter et al. v. Shaw, 280 U.S. 363, 367 (1930).

[48] See SIDNEY L. HARRING, CROW DOG’S CASE 1 (Cambridge University Press 1994).

[49] Title 28, 18 St. 318 §§2145, 2146 (1875).

[50] See id.

[51] Crow Dog, 109 U.S. 556 (1883) at 562.

[52] Id. at 563 (quoting the Treaty of 1868).

[53] Id. at 566 (quoting the Treaty of 1868).

[54] Id. at 568

[55] Id.

[56] Id.

[57] Id.

[58] See id.

[59] Choctaw Nation v. Oklahoma et al., 397 U.S. 620 (1970). See also Starr v. Long Jim, 227 U.S. 613, 623 (1913).

[60] Choctaw Nation, 397 U.S. at 635.

[61] Id.

[62] Act of February 28, 1877, 19 St. 254.

[63] See Crow Dog, 109 U.S. 556 at 564.

[64] Id.

[65] Id. at 569-70. See also Act of February 28, 1877, 19 St. 254 (Article 4 stating, “The government of the United States and the said Indians being mutually desirous that the latter shall be located in a country where they may eventually become self-supporting and acquire the arts of civilized life . . .”).

[66] Id. at 568 (stating also that the Sioux tribe with whom the United States was treating was a “distinct political body”).

[67] See HARRING supra note 48.

[68] Crow Dog, 109 U.S. 556 at 569.

[69] Id. at 565-66 (quoting the act of 1877).

[70] See Treaty supra note 33, art. 9.

[71] To the extent that Article 4 purports the Indian’s desires, it is yet another “white” lie. “Taking up the plow meant renouncing the culture, as surely as cutting off the ceremonial braid or giving up the breechclout for pants—other innovations foisted on them by the whites. Even the assimilationists who accepted the transition, the men relegated farming to the women. Working a field lay beneath the dignity of a trained hunter and warrior, even if he no longer hunted or fought.” LAZARUS supra note 35, 52.

[72] For an excellent discussion of what the horse meant to the life and culture of the Sioux, see STEPHEN E. AMBROSE, CRAZY HORSE AND CUSTER: THE PARALLEL LIVES OF TWO AMERICAN WARRIORS, 8-10 (Doubleday 1975).

[73] LAZARUS supra note 35.

[74] LAZARUS supra note 35, 67.

[75] “George Washington and Thomas Jefferson both grew hemp, Ben Franklin owned a mill that made hemp paper, [and] Jefferson drafted the Declaration of Independence on hemp paper.” Hemp was grown commercially . . . in the United States [from colonial times] until the 1950s. North American Industrial Hemp Council, Inc., <html://naihc.org/hemp_information/hemp_facts.html#history>.

[76] See Lone Wolf v. Hitchcock, 187 U.S. 553, 564-67 (1903) (stating, “The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which well not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.”); Memominee Tribe of Indians v. United States 391 U.S. 404, 412-13 (1968).

[77] See Lone Wolf, 187 U.S. 553.

[78] “[A] later enactment which is inconsistent with a prior treaty acts as an implied abrogation.” Wilkinson supra note 45, 622. “It is long settled that ‘the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty’ with a foreign power.’” United States v. Dion, 476 U.S. 734, 738 (1986) (quoting Fong Yue Ting v. United States, 149 U.S. 689,720 (1893)).

[79] Wilkinson supra note 45, 622.

[80] Dion, 476 U.S. 734 (1986).

[81] See e.g. Leavenworth, Lawrence, and Galveston R.R. Co. v. United States, 92 U.S. 733, 740 (1875) (requiring express declaration or intent); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587 (1977) (requiring an examination of the statute’s legislative history).

[82] See Dion, 476 U.S. 734 at 739.

[83] See e.g. Menominee Tribe v. United States, 391 U.S. 404 (1968), Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp.1001 (D. Minn. 1971), and Kimball v. Callahan, 493 F.2d 564, 568-69 (9^th Cir.), cert. denied, 419 U.S. 1019 (1974) for the proposition that abrogation will not be lightly implied; see United States v. Cutler, 37 F. Supp. 724 (E.D. Idaho 1941) for the proposition that statutes should be given a liberal construction in favor of Indian treaty rights; see Leavenworth, Lawrence, and Galveston R.R. Co. v. United States, 92 U.S. 733 (1875), and Frost v. Wenie, 157 U.S. 46 (1895) for the proposition that there should be express legislative reference to Indian treaty rights in the act or in its legislative history.

[84] 314 U.S. 339 (1941). Note that Santa Fe is not a treaty abrogation case. However, since Santa Fe so aptly illustrates early principles of the “clear and plain” requirement, it is used as an example of the “clear and plain” requirement in Wilkinson and Volkman’s article on treaty abrogation, supra note 45, and is cited by the Dion Court for the proposition that Congress’s intent to abrogate a treaty must be clear and plain. Similarly, Santa Fe is used in this article for the purpose of illustration because it provides some good analysis of the Court’s reason for requiring Congress’s clear and plain intent.

The Walapai did not base their claim to the northwest Arizona land in question on a treaty with the United States government; rather, they based their claim on their aboriginal title surviving the Mexican cession. However, the analysis is the same as a in a treaty abrogation case because (1) Cramer v. United States, 261 U.S. 219 concluded that whatever occupancy was recognized under Mexican law, after the Mexican cession, would not be treated differently than the original tribal occupancy recognized from the beginning under U.S. law; and (2) Cramer states that “the fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive.” Id. at 229. Therefore it is not true “that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal governmental action.” 314 U.S. at 347. See also United States v. Shoshone Tribe of Indians, 304 U.S. 111, 118 (1938); United States v. 5,677.94 Acres of Land, 152 F. Supp. 861 (D. Mont. 1957).

[85] Act of July 27, 1866, 14 Stat. 292.

[86] Act of March 3, 1865,13 Stat. 541, 559.

[87] Santa Fe, 314 U.S. 339 at 351 (quoting the Act of March 3, 1865).

[88] Id.

[89] Id. at 353-54 (emphasis added).

[90] See id.

[91] Id. at 354.

[92] Id. See also Tulee v. State of Washington, 315 U.S. 681, 684-85 (1942) (stating that it is the Courts responsibility “to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.”).

[93] The inherent danger to the Indian’s rights lies not only in Congress’s relationship to the Indians, but necessarily to its constituents as well. Since before King George III’s Royal Proclamation of 1763, there has been an extremely high tension between the acknowledged aboriginal rights of the Indians to possession of their ancestral land, and the desire of Anglo settlers to acquire that land for their own use and benefit. Consequently, Congress, just as the colonial government before it, and the Crown before that, must pander to its constituents in that it must “provide gratification for [their] desires;” therefore the risk is great that Congress will pander the Indians, exploiting their weakness in their status as wards, or simply forget about them rather than diligently protecting their interests.

[94] See also South Dakota v. Bourland, 508 U.S. 679, 687 (1993), which only mentions the liberal construction rule in a parenthetical following a cite to County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251 (1992).

[95] Bald Eagle Protection Act, 54 Stat. 250, 16 U.S.C. §668 et seq.

[96] See Dion, 476 U.S. 734 at 739.

[97] Id.

[98] See id.

[99] Id. at 739-40 (bracketed numbers supplied). See also South Dakota v. Bourland, 508 U.S. 679, 693 (1993) (applying the Dion standard).

[100] Dion, 476 U.S. at 737.

[101] See United States v. Fryberg, 622 F.2d 1010, 1013 (9^th Cir. 1980) (quoting United States v. Top Sky, 547 F.2d 486 (9^th Cir. 1976)).

[102] Dion, 476 U.S. at 741 (referring to reports in the House Hearings 2-3, quoting letters from Assistant Secretary of the Interior Department Frank Briggs).

[103] Id. at 743.

[104] Id.

[105] Bald Eagle Protection Act, 54 Stat. 250, 16 U.S.C. §668(a).

[106] See Dion, 476 U.S. 734, 738, 39. The Court cited for its guidance “Cohen 223,” and United States v. Santa Fe Pacific Railroad Company, 314 U.S. 339, 353-54 (1941) for the proposition that the Court requires that Congress’s intention to abrogate be “clear and plain”; Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979) for the proposition that absent explicit statutory language, the Court has been extremely reluctant to find congressional abrogation of treaty rights; and Menominee Tribe v. United States, 391 U.S. 404 (1968) for the proposition that the Court does not construe statutes as abrogating treaty rights “in ‘a backhanded way.’” The Court merely cites “Cohen 223,” see 476 U.S. 734 (1986) at 738. In 1986 the Court could have been referring to either of two editions of Cohen’s handbook: FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941 ed.) United States Government Publishing Office; or FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1982 ed.) LEXIS Law Publishing 1982.

[107] The Dion Court’s legal analysis is particularly sloppy; the Court either ignored its treaty abrogation precedent, or it concluded that a single letter, written by an Interior Department assistant secretary, pointing out that the use of eagle feathers is important to many Indian tribes for religious purposes, and passed around between the House and Senate constitutes clear and plain intent. Either makes bad law.

[108] The Court concluded that the fact that Congress, immediately after the passage of the amendments to the act in 1962, authorized permits “only to ‘individual Indians who are authentic, bona fide practitioners of such religion’. . . reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle . . . [was] inconsistent with the need to preserve those species.” Id. at 744-45.

[109] United States v. Fryberg, 622 F.2d 1010, 1014 (9^th Cir. 1980).

[110] 241 U.S. 556 (1916).

[111] Id. at 560.

[112] Id. at 563

[113] 391 U.S. 392 (1968).

[114] Id. at 398.

[115] Id.

[116] 315 U.S. 681, 684 (1942).

[117] Id. (emphasis supplied).

[118] Puyallup Tribe, 391 U.S. 392 at 398.

[119] Id.

[120] See United States v. Fryberg, 622 F.2d 1010, 1015 (9^th Cir. 1980).

[121] See Menominee Tribe v. United States, 391 U.S. 404, 412-13 (1968).

[122] See 21 U.S.C.A. §802 (22).

[123] See 21 U.S.C.A. §822 (a)(1).

[124] See 21 U.S.C.A. §802 (6).

[125] Id. (referring to United States v. Burns, 529 F.2d 114, 117 (9^th Cir. 1976)).

[126] See United States v. Fryberg, 622 F.2d 1010, 1013 (9^th Cir. 1980).

[127] The legislative history of the Act is void of Congress’s regard for Indian treaty rights. Even so, mere mention in the legislative history would not in and of itself be determinative.

[128] 21 U.S.C.A. §801(2).

[129] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998) at 2.

[130] See North American Industrial Hemp Council, Inc., <http://www.naihc.org/hemp_information/hemp_facts.html>.

[131] Somewhat ironically, unlike the tribal ordinance, the CSA allows the growth of marijuana by persons who get a permit from the government.

[132] The contrary assertion found in Lone Wolf “has long since been discredited in taking cases.” See United States v. Sioux Nation of Indians, 448 U.S. 371, 413 (1980).

[133] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998) at 1 (stating that “law enforcement agents and farmers can learn to readily distinguish between the different varieties of Cannabis sativa”).

[134] See The Net Economy, <http://www.theneteconomy.com/article.asp?section=7&aritcle_id=120400_revo_2>.

[135] 362 U.S. 99 (1960).

[136] 16 U.S.C.A. §§836, 836(a).

[137] 362 U.S. 99 at 116.

[138] Id.

[139] Id. at 123.

[140] 542 F.2d 1002 (8^th Cir. 1976).

[141] Id. at 1005.

[142] 319 U.S. 598 (1943).

[143] 125 Cal.App.3d 1044 (1981), cert. denied, 459 U.S. 828 (1982).

[144] Id. at 1052-53.

[145] 751 F.2d 1113 (9^th Cir. 1985).

[146] 29 U.S.C. §§ 651-678 (1982).

[147] 751 F.2d at 1115.

[148] Id. (citing Confederated Tribes of Warm Springs Reservation of Oregon v. Kurtz, 691 F.2d 878 (9^th Cir. 1982), cert. denied, 460 U.S. 1040 (1983) (holding that absent a “definitely expressed exemption” tribes and their members are subject to federal excise taxes); United States v. Fryberg, 622 F.2d 1010 (9^th Cir. 1980), cert. denied, 449 U.S. 1004 (1980) (holding that Eagle Protection Act abrogates treaty hunting rights); Fry v. United States, 557 F.2d 646 (9^th Cir. 1977), cert. denied, 434 U.S. 1011 (1978) (holding that Indian logging operations are subject to federal taxes); United States v. Burns, 529 F.2d 114 (9^th Cir. 1975) (holding that federal gun control law applies to Indians, citing Tuscarora)).

[149] Id. at 1116 (citing United States v. Farris, 624 F2d. 890 (9^th Cir. 1980), cert. denied, 449 U.S. 1111(1981)).

[150] Id. at 1117.

[151] See Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp.1001, 1005 (D. Minn. 1971) (stating, “If it is the intention of Congress to [affect or abrogate a treaty right], then Congress [knows] how to say so in clear language”).

[152] See supra note 131.

[153] See supra note 2.

[154] See supra note 99 and accompanying text.

[155] According to The Net Economy supra note 143, most people on Pine Ridge reservation live on about $9,000 per year.

[156] David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D1 (quoting Alex White Plume).

	I Introduction We did not ask you white men to come here. The Great Spirit gave us this country as a home. You had yours. We did not interfere with you. The Great Spirit gave us plenty of land to live on, and buffalo, deer, and antelope and other game. But you have come here; you are taking my land from me; you are killing off our game, so it is hard of us to live. Now, you tell us to work for a living, but the Great Spirit did not make us to work, but to live by hunting. You white men can work if you want to. We do not interfere with you, and again you say, why do you not become civilized? We do not want your civilization! We would live as our fathers did, and their fathers before them. ------Crazy Horse (Oglala Lakota)
	But living as their fathers before them was not to be. . . . So one hundred and twenty-three years after the death of Crazy Horse, and thus, the end of a free and mobile way of life, another Oglala Lakota man decided to try and support his family by farming; just what the United States government has always wanted him to do.
	An Exercise of Self-Government On the 28^th day of July 1998, the Oglala Sioux Tribal Council, exercising its sovereign right to prescribe laws applicable to tribal members and enforce them through criminal sanctions,[1] adopted Tribal Ordinance 98-27,[2] which authorizes Oglala Sioux tribal members to grow industrial hemp as a cash crop on reservation land. The ordinance begins with the recognition that, today, industrial hemp is a profitable international commodity that is grown in more than thirty countries including Canada, France, England, Russia, China, Germany and Australia.[3] Next, invoking the Fort Laramie Treaty of 1868, the ordinance states that both the tribe and the United States government acknowledge that the tribe retains the right to grow food and fiber crops from the soil.[4] Having established that industrial hemp is an internationally recognized commodity, and that the United States government acknowledges the tribes’ retained treaty right to engage in agriculture, the ordinance then creates a nexus between the present and the past by stating “that industrial hemp was a viable and profitable crop grown in the Pine Ridge region when the treaties were entered between the United States and the Oglala Sioux Tribe.”[5] Having averred a present treaty right to grow industrial hemp, the ordinance then distinguishes industrial hemp from its cousin plant, marijuana,[6] based on the amount of tetrahydrocannabinal present in the respective plants,[7] which, according to the ordinance, is a genetic difference between industrial hemp and marijuana that is both consistent and predictable.[8] Thus, the ordinance is consistent with, and furthers the tribe’s policy of prohibiting the use of marijuana on the reservation.[9] While maintaining the Oglala Sioux Tribal Penal Code’s[10] proscription against planting, growing, cultivating, harvesting or gathering, selling, or possessing marijuana,[11] the penal code was amended by the ordinance to provide a definition of “marijuana,” and a separate definition of “industrial hemp” in order for tribal members to legally grow industrial hemp on reservation land. The definition of “marijuana” in the ordinance is virtually identical to the definition of “marijuana” found under the Controlled Substances Act (CSA):[12] The term “marihuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. [13] One difference is, where the definition under the CSA begins to state what is excluded from the definition of “marijuana”—the mature stalks, fiber, derivatives of the fiber, etc.—the definition of “marijuana” under the ordinance ends. The ordinance’s separate definition of “industrial hemp” by implication contains all that which is excluded from the definition of “marijuana” under the CSA, but cannot adopt the CSA’s language of exclusion for its definition of “industrial hemp” because that language very narrowly describes harvested plants currently imported from other countries. Thus, the ordinance and the Act agree on what “marijuana” is; they also agree on what it is not—almost. Another difference is, while the ordinance distinguishes between “marijuana” and “industrial hemp” by their respective THC concentrations, the CSA does not. The ordinance defines “marijuana” as: [a]ll parts of the plant of the genus Cannabis whether growing or not, the seeds thereof, resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin that contains one percent or more concentration of [THC] by weight. Marijuana does not include industrial hemp as defined in this section.[14] The separate definition of “Industrial hemp” is: [a]ll parts and varieties of the plant Cannabis sativa, both indigenous and imported, that are, or have historically been, cultivated and harvested for fiber and seed purposes and contain a [THC] concentration of one percent or less by weight.[15] Under the ordinance, “marijuana” includes the variety of Cannabis sativa that is grown specifically for its high THC concentration and concomitant psychotropic effect, the possession of which is a crime punishable by fine and/or jail time under the Oglala penal code; the variety the Tribal Council decided was not good for the People and has always criminalized. “Industrial hemp,” however, includes the variety of Cannabis sativa upon which the Declaration of Independence is written,[16] and perhaps the 1868 treaty; the variety that the founders of this nation grew for paper, clothing, foodstuffs, lubricants, fuels, building materials, etc.; the variety that contains mere trace amounts of THC and therefore has no psychotropic effect; the variety that would bring some prosperity to a poverty stricken reservation.
	The Planting of the Field Under the auspices of Ordinance 98-27, and attorney Thomas Ballanco’s[17] offer to represent any person or entity prosecuted for cultivating industrial hemp on the Pine Ridge Reservation,[18] Alex White Plume, along with members of his tiyospaye, Wa Cin Hin Ska,[19] in early May 2000, planted an acre and a half field of industrial hemp along the banks of Wounded Knee Creek.[20] Prior to planting the crop, Mr. White Plume invited U.S. Attorney Ted McBride and BIA Superintendent Bob Ecoffey to the planting.[21] However, nearly four months later, under the auspices of the Controlled Substances Act, early in the morning on August 24, armed Drug Enforcement Agency agents and FBI officers destroyed Mr. White Plume’s field. [22] According to one account, twenty-five federal agents wearing bulletproof vests surrounded the field, while two small-engine planes and one helicopter flew reconnaissance overhead. By 8:30 a.m. the agents had confiscated virtually all the hemp plants.[23]
	The Argument For a Treaty Right Thomas Ballanco has offered a two fold argument in support of Mr. White Plume’s right to grow industrial hemp on reservation land: First, (a) “in the 1800s industrial hemp was a staple agricultural crop and [(b)] that in the 1868 treaty Congress was trying to get the Indians to switch over to an agricultural base.”[24] Therefore, “There’s no doubt that American Horse and Red Cloud could have gone right from the treaty meeting and planted some industrial hemp,”[25] said Ballanco. “The right to cultivate industrial hemp on the reservation was retained by the various treaties between the United States and the Oglala Lakota (Sioux) nation, specifically the Treaty of 1868.”[26] Furthermore, Ballanco said, “The legislative history indicates that Congress never intended to restrict the legitimate production of industrial hemp in the United States, let alone to abrogate any reserved treaty rights allowing for cultivation of industrial hemp on the Pine Ridge Reservation.”[27] Second, as discussed above, the ordinance makes a distinction between “industrial hemp” and “marijuana,” based on tetrahydrocannabinal (THC) concentration by weight. Under the ordinance, plants containing one percent or less THC concentration by weight are “industrial hemp”, and, therefore, legal to grow. “OST Ordinance 98-27,” said Ballanco, “is a more sophisticated piece of legislation than any of the outdated and vague U.S. federal and state laws regarding marijuana. It is based on a more precise understanding of chemistry and botany and is modeled after the legal structure that has proved successful in more than thirty nations around the world.”[28]
	The Argument Against a Treaty Right The federal government’s argument, articulated by U.S. Attorney Ted McBride,[29] that Mr. White Plume has no treaty right to grow industrial hemp on reservation land, and that he is in violation of federal law, is that the federal government does not distinguish between industrial hemp and marijuana based on THC content. [30] Therefore, the government does not support the tribe’s ordinance. “The government requires that anyone wishing to grow industrial hemp must register it with the DEA,[31] whether on a reservation or not.”[32] Implicit in Mr. McBride’s statements is that the CSA has abrogated any treaty right to grow industrial hemp that the Oglala may have had.
	II The Relevant Provisions of The Treaty of 1868 The Fort Laramie Treaty of 1868[33] “was concluded at the culmination of the Powder River War of 1866-67, a series of military engagements in which the Sioux tribes . . . fought to protect the integrity of earlier-recognized treaty lands from the incursion of white settlers.”[34] Because these engagements had gone particularly well for the Sioux, and a continuing military campaign to establish and keep peace in the western territory would be too costly to the United States,[35] the United States sought peace through agreement. And because the Indian Bureau attributed the Indian’s “savage” and “uncivilized” existence, in part, to their nomadic and hunting way of life, the peace commission sent to treat with the Indians was instructed to establish reservations with enough arable land for the Indians to become self-supporting farmers.[36] Therefore, desirous of peace, Article 1 states that “[f]rom this day forward all war between the parties to this agreement shall forever cease. The Government of the United States desires peace, and its honor is hereby pledged to keep it.”[37] And desirous to turn a free roaming, hunting culture into a group of yeoman farmers, the treaty provides for the grant of land to individual Indians interested in farming; it promises those who wish to farm seed and implements; and it promises prizes as an inducement to the Indians to farm well. Article 6 says: [i]f any individual belonging to said tribes of Indians, or legally incorporated with them, being the head of a family, shall desire to commence farming, he shall have the privilege to select, in the presence and with the assistance of the agent then in charge, a tract of land within said reservation, not exceeding three hundred and twenty acres in extent . . . .[38] Article 8 says: When the head of a family or lodge shall have selected lands and received his certificate . . . and the agent shall be satisfied that he intends in good faith to commence cultivating the soil for a living, he shall be entitled to receive seeds and agricultural implements for the first year, not exceeding in value one hundred dollars. . . .[39] Finally, Article 14 promises that the sum of five hundred dollars annually, for three years from date, shall be expended in presents to the ten persons of said tribe who in the judgment of the agent may grow the most valuable crops for the respective year.[40] Thus, while it is clear that the agreement goes beyond a mere provision for the Indians’ occupation in farming by inducing them with land, seed, implements, and valuable gifts, the question is whether, at the time the agreement was made, the Indians would have understood “commence farming,” “cultivating the soil for a living,” and “valuable crops” to include growing industrial hemp.
	III Interpretation of Rights in Indian Treaties A court’s analysis must begin with the language of the particular treaty that the United States Government entered into with a particular tribe.[41] However, due to the disparate understanding of the parties regarding both the substantive terms of the treaty and the procedure of the treating process, a treaty should not be read as an ordinary contract.[42] The Supreme Court has recognized from early on that: the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; . . . the treaty is drawn up by them and in their own language; . . . the Indians, on the other hand, are . . . wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States . . . .[43] As a result, the Court has developed three primary rules of treaty interpretation to ameliorate the harsh consequences of this initial power imbalance: “ambiguous expressions must be resolved in favor of the Indian parties concerned; Indian treaties must be interpreted as the Indians themselves would have understood them; and Indian treaties must be liberally construed in favor of the Indians.”[44] In this case, the interpretive problems do not arise as a result of ambiguous expressions. The language in Articles 6, 8, and 14 means just what it says: any tribal member who wished to farm could select 320 acres to do so. Once the tribal member convinced the reservation agent that he was serious about farming, the agent had to provide him seed and farming implements. If the tribal member produced one of the ten best crops, he would receive valuable prizes. It is beyond dispute, therefore, that the Sioux retained their sovereign right to engage in agriculture.[45] The question is: what would the Sioux have understood the terms “farming,” “cultivating the soil for a living,” and “valuable crops” to mean? construing the treaty liberally in their favor. Indian treaties must be liberally construed in favor of the Indians Ex parte Crow Dog[46] is an early example of the Supreme Court interpreting the plain language of a treaty, the very Fort Laramie Treaty of 1868 implicated in the present case, and construing it liberally in favor of the Indians.[47] On August 5, 1881, Crow Dog shot and killed Spotted Tail on the Great Sioux Reservation in Dakota Territory. Both men were members of the Brule band of Sioux. [48] In Crow Dog, the central issue the Court confronted was whether a federal statute,[49] purporting to exempt from the general laws of the United States crimes committed by one Indian against the person or property of another Indian, or an Indian who had been punished by the local law of the tribe[50] was “repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of . . . 1868 . . . and an act of congress, approved . . . [in] 1877.”[51] The treaty provision, and provision of the act of 1877, on which the government principally relied were Articles 1 and 8 respectively. Article 1 states, in relevant part, If bad men among the Indians shall commit a wrong . . . upon . . . any one, white, black, or Indian, subject to the authority of the United States . . ., the Indians herein named solemnly agree that they will . . . deliver up the wrong-doer to the United States, to be tried and punished according to its laws. And in case they willfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States.[52] Article 8 states that “congress shall, by appropriate legislation, secure to them an orderly government; [the Indian parties to the treaty] shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.”[53] The two articles taken together seem to clearly provide that the Indian parties to this particular treaty agreed to turn all wrongdoers within Indian country over to the jurisdiction of the United States, and to subject themselves to the laws of the United States and not their own laws. Yet the Court did not so find. According to the Court, Article 1 did not apply to a case of one Indian committing a wrong upon another Indian of the same tribe. The Court came to this conclusion because, according to Article 1, failure to deliver the Indian wrongdoer to the United States would result in a deduction from the annuities due to the tribe, the value of which serving as compensation for the injured person. The Court said this provision “points quite distinctly to the conclusion that the injured person cannot himself be one of the same tribe.”[54] Presumably this is because withholding annuities due to the tribe, as a whole, would not in fact obtain if those same annuities ended up in the hands of an injured person of that same tribe; however, this conclusion is not a necessary one. Equally plausible would be the conclusion that the value of the annuities equaling the compensation for the injury would be deducted from those due the tribe and given directly to the injured person by the BIA or some other agent to ensure the injured person received them. Other conclusions suggest themselves as well, yet the Court rejected the government prosecutor’s construction of the language in Article 1 and construed it liberally, favoring the Indians. Similarly, Article 8’s plain language that the Indian parties to the agreement “shall be subject to the laws of the United States,”[55] which the government prosecutor argued meant that Crow Dog was subject to a charge of capital murder under Federal law and therefore subject to the jurisdiction of the United States Federal and Territorial court, according to the Court had “no such effect as that claimed for them.”[56] The Court concluded that the words “subject to the laws of the United States” meant those laws that applied to them as Indians, and did not mean that the general laws of the United States applied to Indians, as individuals, in Indian country. The Court explained its chosen construction as being compelled by the circumstances surrounding the transaction. The chief purpose of the 1868 treaty, and its subsequent amendment codified in the act of 1877, was to introduce to the Indians the “arts of civilized life,”[57] which included the ability to govern and regulate themselves and their own domestic affairs, and the preservation of order and peaceful relations among their members by administering their own laws and customs.[58] Treating individual Indians, or treating the different tribes as though they were merely made up of individual Indians, as being subject to the general laws of the United States would necessarily be diametrically opposed to the main purpose of the treaty. The laws of the United States that necessarily applied to the Indians were those such as the act of 1877 that was to forcibly remove the Sioux to their new Indian country proper, and the federal statute originally at issue, which purported to exempt Indian on Indian crimes from federal jurisdiction. Again, as in Article 1, the Court chose to adopt the arguably more strained construction of the treaty language that favored the Indians. Indian treaties must be interpreted as the Indians themselves would have understood them It is important to understand that a court interpreting a treaty is not obliged to simply give the Indians a better deal than what their opponent contends they should receive; rather, a concomitant component of a liberal construction in favor of the Indians is an interpretation of the treaty and its terms as the Indians would have understood them. For example, in Choctaw Nation v. Oklahoma,[59] the Court decided whether the United States had intended to, and did by treaty, convey to the Choctaw title to the bed of the Arkansas River within the borders of their reservation. The Court decided in favor of the Choctaw based largely on its disbelief that the Choctaw would have understood the treaty to mean that they would be prohibited from exercising their “basic” [60] ownership rights to the river bed, such as entering upon and taking sand and gravel from the river when the water was low, especially in light of the fact that the Choctaw were promised sovereignty over their new lands.[61] Similarly in Crow Dog, the Court based its ruling in favor of Crow Dog and, thus, tribal jurisdiction over Indian on Indian matters largely on the basis that at the time the 1868 treaty was ratified by the Indians, and the terms of the subsequent act of 1877[62] were negotiated with them, the Indians understood that the cumulative effect of the treaty and the act were meant to fulfill the larger purpose of the United States government; namely, their civilization, self-support, and self-government.[63] Moreover, the Indians understood that the continuation of subsistence rations provided for them by provision of the act of August 15, 1876 were conditioned on terms in the act of 1877 that were designed to encourage the Indians to become self-supporting.[64] In addition, it was understood by the Indians that the entire Sioux nation was to be removed by operation of the act of 1877 to a new permanent reservation where they were to be instructed in and encouraged to adopt the practice of agriculture.[65] Therefore, the Indians understood that all of these arrangements were for the purpose of self-government, “the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs.”[66] Indeed, that understanding was evidenced when, after the death of Spotted Tail, the Indians did not deliver the wrongdoer, Crow Dog, over to United States authorities. Rather, according to their understanding, the tribal council met and, following Brule law, sent peacemakers to both families to restore harmony and order. The families agreed to a payment of $600 and gifts of eight horses and one blanket, which were quickly delivered to Spotted Tail’s people.[67] The understanding of the Indians regarding agriculture In the present case, the treaty provisions and the circumstances under which the agreement was reached provide an even more favorable argument for the retained right of the Sioux to grow industrial hemp than they did for escaping submission to the general laws of the United States in the Crow Dog case. As stated above, a major part of the entire scheme of the agreement was to urge the Indians, “as far as it could successfully be done, into the practice of agriculture.”[68] Article 4 of the act of 1877 states in relevant part, The government of the United States and the said Indians being mutually desirous that the latter shall be located in a country where they may eventually become self-supporting and acquire the arts of civilized life, it is therefore agreed that the said Indians shall select a delegation . . . who shall . . . visit the Indian country . . . with a view to selecting therein a permanent home for the said Indians. [After selecting a site satisfactory to the Indians and the United States] the said Indians agree that they will remove to the country so selected within one year from this date. And the said Indians do further agree in all things to submit themselves to such beneficent plans as the government may provide for them in the selection of a country suitable for a permanent home, where they may live like white men.[69] The import of this particular provision is that the “arts of civilized life”—farming, black-smithing, carpentry, engineering, and milling[70] —were a necessary precondition for the Indians to eventually become self-supporting. The entire scheme of the agreement did not include hunting as a means of subsistence for food or clothing and therefore the Indians would have to rely on government rations for a term of years, then on their own agricultural goods for food and clothing. In fact the government was so desirous[71] that the Indians learn the “arts of civilized life” and “live like white men” that on October 22, 1876 government troops went through the Indian’s belongings and confiscated all their guns and horses[72] in spite of the fact that the act of 1877, negotiated just prior to October 22, 1876, promised to secure their persons and property.[73] Therefore, by design of the United States government the tacit understanding of the Indians was from that day forward they were to quit the chase as a means of supplying themselves with food and clothing and begin to rely on agriculture, including some domesticated livestock for meat, for their subsistence. What, then, would the Sioux have understood the terms “farming,” “cultivating the soil for a living,” and “valuable crops” to mean? First of all, the Sioux would have understood that they were, albeit disarmed and dismounted, a sovereign nation and, as such, they retained all the rights of self-government they did not give away in the 1868 treaty or that were unilaterally taken from them in the act of 1877. Secondly, the Sioux would have understood that since their ability to hunt on a scale sufficient to feed and clothe the People was taken from them, they must come to rely on agriculture for their food and clothing. Therefore it necessarily follows that the Sioux would have understood that they retained the right to grow any crop necessary in order to satisfy their need for food and clothing and to fulfill the entire scheme of their agreement with the United States government. Furthermore, the commissioners who negotiated the agreement and the BIA agent charged with the oversight of the Sioux would have helped shape the Sioux’s’ understanding of which crops they would need to grow in order to achieve self-sufficiency. Since it had cost the federal government from the signing of the 1868 treaty 1.25 million per year to feed and clothe the Sioux—a burden the federal government was increasingly unwilling to bear[74]—it is reasonable that the commissioners would have encouraged the Sioux to grow crops, including industrial hemp, that would ease the government’s financial burden. It would have been reasonable and consistent for the government to encourage the Sioux as part of its overall scheme for them to grow crops not only for food, but also fiber—such as hemp—for making their cloths and, eventually, for all of the products the citizens of the United States used hemp for.[75] Looking at it another way, as in Choctaw, it is difficult to believe that the Sioux would retain, or understand that they retained, only the right to grow corn or wheat, for example, and, knowing that the government was going to refrain from providing them with clothing in the near future, and knowing that they could not possibly clothe themselves from their small heard of cattle, not retain the right to grow fiber crops for clothing. If the Sioux could not clothe themselves, then they could not become self-supporting. Therefore, since the terms “farming,” “cultivating the soil for a living,” and “valuable crops” are unambiguous and all inclusive; and since these terms placed into the larger framework of the treaty as a whole must be liberally construed in favor of the Indians; and since the Sioux by design of the United States government could not escape the understanding that their future survival depended upon their success in agriculture; and since everywhere else in the country where agriculture was part of the economy hemp was grown as cash crop; a court must conclude that the Sioux, as expressed in the 1868 treaty and surviving the act of 1877, retained their sovereign right to grow industrial hemp on their reservation set aside for their exclusive use, chosen for the purpose of agriculture.
	IV Treaty Abrogation Treaty abrogation generally It is well settled that Congress has the power to abrogate, in whole or in part, treaties made with Indian nations.[76] Congress’s power to abrogate Indian treaties is rooted in its plenary authority over Indians’ property derived from the practical effect of the guardian-ward relationship between the federal government and the Indian nations.[77] While in the international arena the “later in time” rule is almost always strictly applied,[78] because of the guardian-ward relationship between the United States government and the Indian nations, “the courts have been much less willing to imply abrogations.”[79] In United States v. Dion,[80] the Court enunciated its latest Indian treaty abrogation standard. In that opinion the Court recognized that although a requirement of Congress’s “clear and plain” intent must be demonstrated,[81] ever since Lone Wolf was decided in 1903 courts have formulated different standards for determining how a “clear and plain” intent must be demonstrated,[82] as well as whether the intent was to, or not to, include the Indians in the subsequent enactment. However, after recognizing 83 years of cacophonous Indian treaty abrogation law,[83] the Court provided no analysis of why different standards have been used in different cases; though it did formulate a new standard. An early example of what constituted “clear and plain” Congressional intent is illustrated in United States v. Santa Fe Pacific Railroad Company.[84] In that case, the Walapai Tribe, located in Arizona, sought to enjoin the Santa Fe Railroad Co. (Santa Fe) from interfering with the possession and occupancy by the Indians of their ancestral lands in northwest Arizona. Santa Fe claimed full title to the ancestral lands under a grant of those lands to Santa Fe’s predecessor in interest, the Atlantic and Pacific Railroad Co. The grant to the Atlantic and Pacific RR Co. was provided for in the Act of July, 1866.[85] Paving the way for the act of 1866, and thus the railroad, was the Act of March 3, 1865,[86] which provided that certain lands along the Colorado River in the Territory of Arizona, comprised of about seventy-five thousand acres of land, “shall be set apart for an Indian reservation for the Indians of said river and its tributaries.”[87] The question the Court confronted was whether the act of 1865, by mere creation of a reservation along the Colorado River, Congress intended to extinguish the Walapai’s aboriginal title in their ancestral home laying outside the reserved land. If Congress did intend to extinguish the Walapai’s aboriginal title by the act of 1865, then the Santa Fe possessed a full fee interest in the land in question. If, however, Congress did not so intend, the Santa Fe took the fee subject to the Walapai’s aboriginal title.[88] The Court concluded Congress did not intend the act of 1865 to extinguish the Walapai’s aboriginal title stating: We search the public records in vain for any clear and plain indication that Congress was doing more than making an offer to the Indians, which it was hoped would be accepted as a compromise of a troublesome question [the question of whether aboriginal title had already been extinguished, or ever existed due to the fact that they were Mexican cession lands]. We find no indication that Congress by creating that reservation intended to extinguish all of the rights which the Walapais had in their ancestral home. That Congress could have effected such an extinguishment is not doubted. But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.[89] Thus, since the act did not state an intent to extinguish aboriginal title expressly on its face, nor did the congressional records so expressly state or indicate, the Court could not find an extinguishment. The Court reasoned, first, that doubtful expressions must be resolved in favor of the Indians, and second, the Walapai did not intend or agree to leave their ancestral lands; it was not their understanding that the mere congressional creation of a reservation worked as a cession of their land.[90] The reason ambiguities must be so resolved, and the Indians’ understanding must be regarded, is because the Indians, according to the Court, are “a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.”[91] Likewise, the reason a unilateral act on the part of Congress that a third party contends was intended by Congress to take away an Indian tribe’s right—whether aboriginal, treaty, or statutory—must be clearly expressed or plainly indicated is because the Indians are subject to Congress’s plenary power and thus “wholly dependent upon its protection and good faith.”[92] Therefore, unless Congress’s intent to abrogate is clear and plain, Congress could not have intended an abrogation. If the Court held otherwise, any inadvertent failure on the part of Congress to consider Indian treaty rights when making laws, or any lack of forethought in considering how proposed legislation would affect Indian treaty rights, would be a breach of its duty of protection and good faith in dealing with the Indians.[93] The Santa Fe Court analyzed the abrogation issue in light of Congress’s solicitous relationship toward Indian nations, which entailed resolving Congress’s doubtful intentions in favor of the Indians, and interpreting the act in light of the understanding of the Indians. Forty-five years later, however, the Dion Court took a different analytical approach. The Dion Court did not mention or imply in its opinion that a special relationship exists between Congress and Indian nations; nor does the opinion mention or imply that Congress’s doubtful intentions must be resolved in favor of the Indians or that an act of Congress should be interpreted in light of the understanding of the Indians.[94] Rather, the Dion Court focuses on just how tenuous evidence of Congress’s intent can be and still constitute “clear and plain” intent; on resolving Congress’s ambiguous intent in favor of Congress; and on what the Court believed Congress understood it meant when it enacted the Eagle Protection Act.[95] The Dion Standard Although recognizing that Congress’s intent to abrogate a treaty by express statement to that effect is preferable for the purpose of ensuring legislative accountability for the abrogation of treaty rights,[96] the Court has not rigidly required explicit statement “where the evidence of congressional intent to abrogate is sufficiently compelling.”[97] Evidence of intent to abrogate may be found from clear and reliable evidence in the legislative history of a statute.[98] Thus, “What is essential is clear evidence that Congress [1] actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [2] chose to resolve that conflict by abrogating the treaty.”[99] In Dion, defendant relied on an 1858 treaty between the Yankton Sioux and the United States, which was stipulated to have reserved to the Yankton an exclusive right to hunt and fish on their reservation land,[100] to establish his reserved right to hunt and kill otherwise federally protected eagles on his reservation. The United States argued that the Eagle Protection Act (EPA), a federal statute of general applicability that criminalizes certain acts wherever and by whomever committed,[101] abrogated the defendant’s right to hunt and kill bald or golden eagles. After examining the legislative history of the EPA, which contained the contents of a letter written to the subcommittee from an Assistant Secretary of the Interior noting the “continued veneration of eagles and the use of eagle feathers in religious ceremonies,”[102] and that this religious use was “one of the threats to the continued survival of the golden eagle that necessitated passage of the bill,”[103] the Court concluded that Congress believed that it was abrogating the Indians’ rights to take eagles.[104] Thus, it is important to understand that, unlike the Santa Fe Court supra, the Dion Court’s “clear and plain” intent inquiry resolves Congress’s ambiguous intent in favor of Congress, not the Indians, and focuses on what Congress understood the effect of its enactment would be, despite its Indian wards. According to the first prong of the Dion standard, clear evidence is required that Congress actually considered the conflict between the EPA and Indian treaty rights. Congress’s intent regarding Indian treaty rights to hunt eagles on their reservations is clearly ambiguous. Under the Eagle Protection Act, Whenever . . . the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof . . . for the religious purposes of Indian Tribes . . . [the Secretary] may authorize the taking of such eagles. . . .[105] Neither the face of the EPA, nor its legislative history, including the comments of the Assistant Secretary, clearly indicate that Congress intended the EPA to apply to Indians at all, let alone abrogate their treaty rights to hunt eagles on their reservations. Congress could have intended the EPA to apply only to non-Indians who supplied Indians with eagle feathers. Congress could have intended the EPA to apply to Indians and non-Indians alike regarding off-reservation eagle hunting. Indeed, if Indians hunted eagles as assiduously as the Court implies, there would be no eagles on Indian reservations for the EPA to protect. While the evidence is clear that Congress was actually aware that Indian tribes use eagle feathers in their religious ceremonies, there is no clear evidence that Congress was aware that Indian tribes even had treaty rights to hunt eagles. There is certainly no evidence that Congress actually considered the consequences the EPA would have on Indian treaty rights to hunt eagles. Thus the mere appearance of the word “Indian” in connection with an act of Congress cannot constitute clear evidence that Congress actually considered Indian treaty rights. Neither the Eagle Protection Act’s statutory language, nor its legislative history expressly states that Indian treaty rights were to be abrogated. Taking the Dion Court at its word,[106] the Court’s analysis should have ended there, Dion’s treaty defense upheld, and Congress left to follow established Indian treaty abrogation rules if it expects its legislation to be sustained by the Court, which would be consistent with the Court’s duty to ensure legislative accountability for the abrogation of treaty rights.[107] Yet the “surrounding circumstances,” the Indian’s ostensible conflicting interest with the purpose of the act, provided the Court with a justificatory purpose for finding a clear intent to abrogate the treaty right, absent clear and plain language from Congress to do so either on the face of the statute or in its legislative history. Therefore, the implicit meaning of the “actually considered the conflict” language in Dion includes the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated.[108] The purpose of a Congressional act is an important circumstance in determining congressional intent. The Supreme Court has long recognized that “reasonable and non-discriminatory conservation statutes implicitly affect treaty rights to the extent necessary to achieve their conservation purpose.”[109] For example, in Kennedy v. Becker,[110] the Court upheld a New York State appellate division ruling that Indians having a treaty right to fish in waters under the jurisdiction of the state of New York were subject to §176 of the conservation law of New York.[111] The Court so held because: It is said that the state would regulate the whites and that the Indian tribe would regulate its members, but if neither could exercise authority with respect to the other at the locus in quo, either would be free to destroy the subject of the power. Such duality of sovereignty, instead of maintaining in each the essential power of preservation, would in fact deny it to both.”[112] Likewise in Puyallup Tribe v. Washington,[113] the Court held that while the Puyallup and Nisqually Indians’ right to fish “at all usual and accustomed” [114] places may not be qualified by the state, the “manner of fishing, the size of the take, [etc.] . . . may be regulated by the State in the interest of conservation,” [115] as long as the regulation does not discriminate against the Indians. In support of its holding, the Court cited Tulee v. Washington,[116] quoting: [W]hile the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee. . . .”[117] Interestingly, the Court stated that it would have “quite a different case if the Treaty had preserved the right to fish at the ‘usual and accustomed places’ in the ‘usual and accustomed’ manner,”[118] implying that because it was assumed by the Court that “fishing by nets was customary at the time of the Treaty,”[119] if the treaty had provided for the guarantee of the accustomed manner, the State may not be able to regulate the manner even for conservation purposes. Therefore the proposition implicit in Dion, that Congress may abrogate a treaty right on the basis of the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated, is grounded in case law that addresses how state conservation law may affect, not abrogate, treaty rights when the Indians attempt to exercise those rights while on land under the jurisdiction of the state and not on reservation land. To the extent that Dion abrogated a treaty right of an Indian exercising that right while on reservation land, it did so for a narrow purpose—Dion allows a complete ban of all treaty taking when a complete ban is necessary to assure the survival of a species.[120] Applying the Dion Standard Analysis begins with the face of the act, recognizing that the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.[121] The Controlled Substances Act (CSA) is a federal statute of general applicability making the production,[122] manufacture, and distribution[123] of controlled substances[124] criminal wherever and by whomever committed. Such laws are applicable to Indians unless there exists a treaty right that exempts the Indian from the operation of the particular statute.[125] Therefore the CSA is applicable to the members of the Oglala Sioux Tribe unless a treaty right exists which exempts the Oglala from its operation. Since, as concluded above, the Oglala’s treaty right to engage in “agriculture” extends to a right to grow industrial hemp, the CSA does not apply to the Oglala unless Congressional intent to the contrary is clear from the surrounding circumstances or legislative history of the act, despite the absence of a Congressional expression on the face of the act to abrogate treaty rights.[126] Applying the Dion standard, the CSA should not be construed as to have abrogated the Oglala’s treaty right to grow industrial hemp. First of all, there is no clear evidence that Congress actually considered the effect the CSA would have on those Indian tribes’ possessing a reserved treaty right to grow industrial hemp.[127] Secondly, since Congress did not consider the act’s effect on Indian treaty rights, it a fortiori did not choose to resolve the conflict by abrogating the treaty. Finally, unlike the Eagle Protection Act, the CSA is not a conservation statute, which is an important distinction when considering the implicit meaning of “actually considered the conflict”: that Congress may abrogate a treaty right on the basis of the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated. There is no such frustration of purpose between the Oglala’s treaty right to grow industrial hemp and the CSA. In fact the tribal ordinance renders the growth of industrial hemp in perfect harmony with the CSA. The purpose of the CSA is to prevent the “illegal importation, manufacture, distribution, and possession and improper use of controlled substances [because they] have a substantial and detrimental effect on the health and general welfare of the American people.”[128] The tribal ordinance is in accord with this purpose by criminalizing the “planting, growing, cultivating, harvesting or gathering, selling . . . or possessing marijuana”[129] and other controlled substances. The Oglala Sioux Tribe expressly wants only to exercise its reserved treaty right to grow industrial hemp, which has more than 25,000 proper purposes,[130] all of which have, or would have, a substantial and beneficial effect on the health and general welfare of the Oglala Sioux Tribe. The Oglala’s ordinance allows the growth of the same plant that it is legal for American businesses to import from other countries, yet, in harmony with the CSA, criminalizes the growth of the plants that the CSA prohibits.[131] Furthermore, it must be remembered that Congress’s power to ultimately control and manage Indians’ affairs is not absolute; [132] Congress has a duty to protect and advance the Indians’ best interests. Industrial hemp is the most utilitarian plant that the Oglala Sioux Tribe could choose to grow. It is difficult to imagine a more appropriate plant to fulfill the purpose of the 1868 treaty. Because hemp resembles so closely the marijuana plant that is illegal to grow on the reservation, it requires the regulation by themselves of their own domestic affairs and the administration of their own laws to ensure that industrial hemp, and not marijuana, is grown on the reservation.[133] It is difficult to imagine, and bitterly ironic, that Congress would intend to prohibit the Oglala Sioux from growing a crop that so perfectly fulfills the overall scheme of the 1868 treaty. Therefore it is difficult to imagine, regarding a reservation where most people subsist on about $9,000 per year and suffers from 85% unemployment,[134] that Congress would intend to abrogate a reserved treaty right, one in which it was hoped would make the Oglala Tribe self-supporting when the treaty was signed, and not even hint that it was doing so.
	V Federal Statutes of General Applicability In Federal Power Commission v. Tuscarora Indian Nation,[135] a case construing a federal statute[136] that ultimately led to a taking of Tuscarora land, which was held in fee, for the purpose of a power project, the Court stated that “it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests.”[137] The Court flatly rejected the Tuscarora’s argument that general acts of Congress do not apply to Indians unless the act in question clearly manifests an intention to include them.[138] However, since the majority held that the lands taken for the project were not subject to a treaty,[139] the Court did not discuss treaty abrogation standards. Tuscarora has not been cited with approval for its rejection of express Congressional intent to include Indians in cases where rights guaranteed by treaty are in issue. For example, in United States v. Winnebago Tribe of Nebraska,[140] the court rejected the United State’s reliance on Tuscarora by stating: reliance upon [Tuscarora] . . . that the general statutes of the United States apply to Indians and non-Indians alike, is misplaced. Contrary to the facts presented here, the Indian lands taken in Tuscarora were not held in trust by the United States and were not reserved by treaty. As we stated in White . . . the general rule of Tuscarora does not apply when the interest sought to be affected is reserved to the Indians by treaty.”[141] Moreover, the principal case upon which Tuscarora relied for its rejection of express Congressional intent to include Indians, Oklahoma Tax Commission v. United States,[142] which held that Oklahoma State inheritance tax was applicable to certain property owned by Indians, has not been followed for that proposition either. For example, in Estate of Johnson,[143] the Court rejected California’s jurisdiction to impose a state inheritance tax on intestate transfer of personal property and nontrust reservation real property from one reservation Indian to another. The Court distinguished Oklahoma Tax Comm’n by stating that it “relied upon the old doctrine of assimilation . . . [and that the Indians in that case] had no effective tribal authority and had been assimilated into the general community.”[144] However, the Tuscarora rule, that a general statute in terms applying to all persons includes Indians, was applied in Donovan v. Coeur d’Alene Tribal Farm,[145] though in the latter case, the rule was more developed. Coeur d’Alene Tribal Farm confronted the issue of whether congress, in enacting the Occupational Safety and Health Act (OSHA),[146] intended the Act to apply to the Coeur d’Alene Tribal Farm, a commercial enterprise wholly owned by the Coeur d’Alene Indian Tribe, or whether the silence of its application to Indians was an expression of Congress’s intent to exclude tribal businesses from the scope of the Act.[147] The rule the Coeur d’Alene Tribal Farm court applied, as was mentioned, was derived from Tuscarora. The court stated that the language, “a general statute in terms applying to all persons includes Indians and their property interests,” had guided many of its decisions.[148] However, there are three exceptions to this general rule: A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations. . . . In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them.[149] Unfortunately, there was no treaty between the United States and the Tribe. Since neither of the other two exceptions applied to the Coeur d’Alene, the court held that OSHA applied to the Coeur d’Alene Tribal Farm. Unlike the Coeur d’Alene Tribe and the Tuscaroras, the Oglala Sioux Tribe has a treaty with the United States that the Oglala can point to that establishes their reservation land and their reserved right to farm. Moreover, the Oglala have effective tribal authority over their reservation and thus have not been assimilated into the general community. Therefore the second exception to the general rule hits squarely on the CSA’s applicability to the Oglala on their reservation and their treaty right to engage in agriculture, and therefore the CSA does not apply to the Oglala Sioux Tribe.
	VI A Proposed Abrogation Standard The Coeur d’Alene Tribal Farm court presumed “that Congress does not intend to abrogate rights guaranteed by Indian treaties when it passes general laws, unless it makes specific reference to Indians.”[150] Such a presumption is consistent with a reviewing court’s responsibility of ensuring that Congress fulfills its duty of utmost good faith in dealing with the Indians’ property and best interests. If Congress inadvertently fails to consider the Indians’ best interests, the rule would automatically presume that those interests were maintained according to the Indians’ treaty rights—no harm done. If, however, Congress really did want the legislation to apply to the Indians but inadvertently omitted an express intention to do so, Congress is free to rebut the presumption by amending the act. If this proves troublesome for Congress, and it may if courts apply the rule consistently, then perhaps Congress will learn to think about the consequences of its actions and how those actions affect their responsibility to the Indians. Therefore, if Congress acts without due consideration and an ambiguous intent results, courts should presumptively uphold the claimed treaty right, allowing Congress to fix the act itself if its intent was to abrogate.[151]
	VII Conclusion They made us many promises, more than I can remember, but they never kept but one; they promised to take our land, and they took it. --------- Red Cloud (Oglala Lakota) It is clear that the Oglala Sioux have a treaty right to grow industrial hemp on their reservation. At the time the 1868 treaty was signed, both the United States government and the Indians would have understood “commence farming,” “cultivating the soil for a living,” and “valuable crops” to include growing industrial hemp. There can be no doubt that at the time the 1868 treaty was signed any tribal member could have and would have been encouraged to grow industrial hemp. At the time the treaty was signed the United States government wanted nothing more than for the Sioux to become self-supporting farmers tucked quietly away on reservations. Since the United States government took away the Sioux’s ability to hunt for their food or skins for clothing, they necessarily would have had to grow industrial hemp along with food crops in order to satisfy their need for food and clothing. It is difficult to imagine, therefore, that Congress intended to abrogate the Sioux’s treaty right to grow industrial hemp by enacting the Controlled Substances Act. The purpose of the Controlled Substances Act is to prevent the detrimental effect of mind-altering substances on the health and welfare of the American people.[152] While this purpose is commendable, the Act is not undermined by the growth and manufacture of industrial hemp because hemp is not suitable for drug use—it has no mind-altering effect. Thus the government’s purpose in enacting the Controlled Substances Act, and the government’s purpose when it negotiated the 1868 treaty with the Sioux are perfectly compatible. In fact, Oglala Sioux Tribal Ordinance 98-27[153] best reconciles the purposes of the Controlled Substances Act and the 1868 treaty by criminalizing mind-altering marijuana while allowing the growth and manufacture of utilitarian industrial hemp. Thus applying the Dion standard, that Congress actually considered the conflict between its enactment and the Indian treaty right and chose to resolve that conflict by abrogating the treaty right,[154] a trial court must find that the enactment of the Controlled Substances Act did not abrogate the Sioux’s treaty right to grow industrial hemp. First of all, as stated above, there is no necessary conflict between the Controlled Substances Act and the Sioux’s treaty right to grow industrial hemp. Therefore the implicit meaning in Dion that “actually considered the conflict” includes the extent to which the purpose of a statute would be frustrated if the treaty right were not abrogated does not apply. Secondly, there is no evidence that Congress thought about Indians when it passed the Act. Neither the language in the statute, nor its legislative history indicates that Congress actually considered the effect the Act would have on Indian treaty rights. Indian treaty rights are invaluable to Indians. In addition to being emblems of their national sovereignty, treaty rights, or the lack of them, have practical everyday consequences on Indian pocketbooks and dinner tables throughout Indian Country. For example, Mr. White Plume and his tiyospaye invested $9,000[155] in their hemp field in hopes that the profit from the crop would carry them through the winter.[156] Yet the Drug Enforcement Agency and the FBI confiscated the entire crop with the intent to destroy it before it was ever decided whether or not the Controlled Substances Act applied to Mr. White Plume’s hemp field. Meanwhile Mr. White Plume’s tiyospaye’s entire investment is gone. Mr. White Plume’s case is a prime example of why Congress must regard treaty rights, and why Congress’s intent regarding treaty rights must be clear and plain. Thus a court’s duty is to protect the Indians’ invaluable treaty rights until Congress expresses a clear and plain intention to abrogate them, exercising its utmost good faith in dealing with the Indians.
	ã Copyright by Paul Wess 2000, 2001. * The author received his J.D. in May, 2001. He can be contacted at paulwess@yahoo.com; 401 S. Birchwood Dr., Apt. D, Fremont, NE 68025; (402) 727-0271. [1] See United States v. Wheeler, 435 U.S. 313, 322 (1978). [2] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998). [3] Id. at 1. [4] Id. [5] Id. [6] “Hemp is a distinct variety of the plant species cannabis sativa L. Due to the similar leaf shape, hemp is frequently confused with marijuana. Although both plants are from the species cannabis, hemp contains virtually no THC, . . . the active ingredient in marijuana. Hemp cannot be used as a drug because it produces virtually no THC. . . .” <html://naihc.org/hemp_information/hemp_defined.html#plant>. [7] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998). [8] Id. at 1. [9] Id. [10] Oglala Sioux Tribal Penal Code, Title 9, Section 106 – Marijuana, and Section 106.00 – Controlled Drugs and Substances. [11] See id. [12] Controlled Substances Act of 1970, 21 U.S.C. § 801 et seq. (repealing the 1937 tax statute, 84 Stat. at 1291-92). [13] See 21 U.S.C. §802(16). [14] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998), at 2 (emphasis omitted). [15] Id. at 3. [16] North American Hemp Council, Inc. <html://naihc.org/hemp_information/hemp_facts.html#history>. [17] Thomas Ballanco is the attorney who drafted OST Ordinance 98-27 for the Tribal Council. See David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D2. [18] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 00-13 (2000). The fifth paragraph of Ordinance No. 00-13 states: “Be it further ordained, that the Oglala Sioux Tribal Council does agree with Thomas J. Ballanco’s, Esquire, offer that he will represent any persons or entity, who is prosecuted for cultivating Industrial Hemp or wild Industrial Hemp upon the Pine Ridge Reservation.” [19] Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27. (1998). Paragraph eleven provides “that any members of the Oglala Sioux Tribe who wish to harvest or cultivate industrial hemp must first organize, or join an existing, a land use association. Each land use organization making use of industrial hemp will then appoint, and arrange for the compensation of, a liaison who will file a quarterly report to the Land Committee of the Oglala Sioux Tribal Council, delineating with specificity the industrial hemp acreage to be cultivated and/or harvested, the end products to be manufactured and the progress since the land use association, the Oglala Sioux Tribal Council and any interested law enforcement agencies.” [20] See David Rooks, Lakota hemp growers headed for legal showdown, Indian Country Today, May 24,2000, at LT1. [21] Id. Neither McBride nor Ecoffey attended the planting. [22] David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D1. [23] Id. [24] David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D2 (quoting Thomas Ballanco). [25] Id. [26] David Rooks, Lakota hemp growers headed for legal showdown, Indian Country Today, May 24,2000, at LT1 (quoting Thomas Ballanco). [27] Barbara Bad Wound, Give the hemp back, say growers, Indian Country Today, September 13, 2000, at D1 (quoting Thomas Ballanco). [28] David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D1 (quoting Thomas Ballanco). [29] See id. at D3. [30] See 21 U.S.C. § 802(16) (defining “marijuana” as “all parts of the plant Cannabis sativa L. . . .”); See New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1 (1^st Cir. 2000) (holding 21 U.S.C. § 802(16) includes all cannabis sativa plants regardless of THC content); see also United States v. Traynor, 990 F.2d 1153, 1160 (9^th Cir. 1993) (stating “it is not obviously irrational for Congress not to distinguish between male and female marijuana plants, regardless of the THC level); United States v. Proyect, 989 F.2d 84, 87-88 2d Cir.) (reasoning that Congress intended courts to treat all cannabis sativa plants alike, regardless of sex or THC content), cert. denied, 510 U.S. 822 (1993); United States v. Curtis, 965 F.2d 610, 615-16, (8^th Cir. 1992); United States v. Spann, 515 F.2d 579, 583-84 (10^th Cir. 1975). [31] See 21 U.S.C.A. §822 (a)(1) (requiring “[e]very person who manufactures” to register). See also North American Industrial Hemp Council, Inc., <html://naihc.org/hemp_information/hemp_facts.html#history> (stating, “The US Drug Enforcement Agency classifies all C. sativa varieties as "marijuana." While it is theoretically possible to get permission from the government to grow hemp, DEA would require that the field be secured by fence, razor wire, dogs, guards, and lights, making it cost-prohibitive”). [32] See David Melmer, Reservation hemp crop destroyed by feds, Indian Country Today, August 30, 2000, at D3 (referring to statements made by Ted McBride, though not directly quoting him). [33] Treaty with the Sioux—Brule, Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, and Santee—and Arapaho, Apr. 29,1868, 15 Stats., 635 (1868). [34] United States v. Sioux Nation of Indians, 448 U.S. 371, 374 (1980). [35] See EDWARD LAZARUS, BLACK HILLS/WHITE JUSTICE: THE SIOUX NATION VERSUS THE UNITED STATES, 1775 TO THE PRESENT 38-53 (HarperCollins 1991); see also DEE BROWN, BURY MY HEART AT WOUNDED KNEE: AN INDIAN HISTORY OF THE AMERICAN WEST 134-146 (Holt, Rinehart & Winston 1970). [36] See LAZARUS supra note 35, 45. [37] Treaty supra note 33, 636. [38] Id. at 637. [39] Id. [40] Id. at 639. [41] See e.g. McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 174 (1973). [42] Id. [43] Jones v. Meehan, 175 U.S. 1, l1 (1899). [44] See Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows Upon the Earth”—How Long a Time is That?, 63 Cal.L.Rev. 601, 617 (1975) (citing for example McClanahan v. State Tax Comm’n, 411 U.S. 164, 174 (1973) for the proposition that ambiguous expressions be resolved in favor of the Indians; Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) for the proposition that treaties must be interpreted as the Indians would have understood them; and Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943) for the proposition that treaties must be liberally construed in favor of the Indians). [Footnotes omitted]. [45] Indeed, General Sherman, in a letter to General Sheridan stated that “it would be better ‘to invite all the sportsmen of England and America this fall for a Great Buffalo Hunt and make a grand sweep of them all.’ That would make farmers of the Sioux.” LAZARUS supra note 35, 52. [46] Ex parte KAN-GI-SHUN-CA, (otherwise known as Crow Dog,), 109 U.S. 556 (1883). [47] See also United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116 (1938); Carpenter et al. v. Shaw, 280 U.S. 363, 367 (1930). [48] See SIDNEY L. HARRING, CROW DOG’S CASE 1 (Cambridge University Press 1994). [49] Title 28, 18 St. 318 §§2145, 2146 (1875). [50] See id. [51] Crow Dog, 109 U.S. 556 (1883) at 562. [52] Id. at 563 (quoting the Treaty of 1868). [53] Id. at 566 (quoting the Treaty of 1868). [54] Id. at 568 [55] Id. [56] Id. [57] Id. [58] See id. [59] Choctaw Nation v. Oklahoma et al., 397 U.S. 620 (1970). See also Starr v. Long Jim, 227 U.S. 613, 623 (1913). [60] Choctaw Nation, 397 U.S. at 635. [61] Id. [62] Act of February 28, 1877, 19 St. 254. [63] See Crow Dog, 109 U.S. 556 at 564. [64] Id. [65] Id. at 569-70. See also Act of February 28, 1877, 19 St. 254 (Article 4 stating, “The government of the United States and the said Indians being mutually desirous that the latter shall be located in a country where they may eventually become self-supporting and acquire the arts of civilized life . . .”). [66] Id. at 568 (stating also that the Sioux tribe with whom the United States was treating was a “distinct political body”). [67] See HARRING supra note 48. [68] Crow Dog, 109 U.S. 556 at 569. [69] Id. at 565-66 (quoting the act of 1877). [70] See Treaty supra note 33, art. 9. [71] To the extent that Article 4 purports the Indian’s desires, it is yet another “white” lie. “Taking up the plow meant renouncing the culture, as surely as cutting off the ceremonial braid or giving up the breechclout for pants—other innovations foisted on them by the whites. Even the assimilationists who accepted the transition, the men relegated farming to the women. Working a field lay beneath the dignity of a trained hunter and warrior, even if he no longer hunted or fought.” LAZARUS supra note 35, 52. [72] For an excellent discussion of what the horse meant to the life and culture of the Sioux, see STEPHEN E. AMBROSE, CRAZY HORSE AND CUSTER: THE PARALLEL LIVES OF TWO AMERICAN WARRIORS, 8-10 (Doubleday 1975). [73] LAZARUS supra note 35. [74] LAZARUS supra note 35, 67. [75] “George Washington and Thomas Jefferson both grew hemp, Ben Franklin owned a mill that made hemp paper, [and] Jefferson drafted the Declaration of Independence on hemp paper.” Hemp was grown commercially . . . in the United States [from colonial times] until the 1950s. North American Industrial Hemp Council, Inc., <html://naihc.org/hemp_information/hemp_facts.html#history>. [76] See Lone Wolf v. Hitchcock, 187 U.S. 553, 564-67 (1903) (stating, “The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which well not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.”); Memominee Tribe of Indians v. United States 391 U.S. 404, 412-13 (1968). [77] See Lone Wolf, 187 U.S. 553. [78] “[A] later enactment which is inconsistent with a prior treaty acts as an implied abrogation.” Wilkinson supra note 45, 622. “It is long settled that ‘the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty’ with a foreign power.’” United States v. Dion, 476 U.S. 734, 738 (1986) (quoting Fong Yue Ting v. United States, 149 U.S. 689,720 (1893)). [79] Wilkinson supra note 45, 622. [80] Dion, 476 U.S. 734 (1986). [81] See e.g. Leavenworth, Lawrence, and Galveston R.R. Co. v. United States, 92 U.S. 733, 740 (1875) (requiring express declaration or intent); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587 (1977) (requiring an examination of the statute’s legislative history). [82] See Dion, 476 U.S. 734 at 739. [83] See e.g. Menominee Tribe v. United States, 391 U.S. 404 (1968), Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp.1001 (D. Minn. 1971), and Kimball v. Callahan, 493 F.2d 564, 568-69 (9^th Cir.), cert. denied, 419 U.S. 1019 (1974) for the proposition that abrogation will not be lightly implied; see United States v. Cutler, 37 F. Supp. 724 (E.D. Idaho 1941) for the proposition that statutes should be given a liberal construction in favor of Indian treaty rights; see Leavenworth, Lawrence, and Galveston R.R. Co. v. United States, 92 U.S. 733 (1875), and Frost v. Wenie, 157 U.S. 46 (1895) for the proposition that there should be express legislative reference to Indian treaty rights in the act or in its legislative history. [84] 314 U.S. 339 (1941). Note that Santa Fe is not a treaty abrogation case. However, since Santa Fe so aptly illustrates early principles of the “clear and plain” requirement, it is used as an example of the “clear and plain” requirement in Wilkinson and Volkman’s article on treaty abrogation, supra note 45, and is cited by the Dion Court for the proposition that Congress’s intent to abrogate a treaty must be clear and plain. Similarly, Santa Fe is used in this article for the purpose of illustration because it provides some good analysis of the Court’s reason for requiring Congress’s clear and plain intent. The Walapai did not base their claim to the northwest Arizona land in question on a treaty with the United States government; rather, they based their claim on their aboriginal title surviving the Mexican cession. However, the analysis is the same as a in a treaty abrogation case because (1) Cramer v. United States, 261 U.S. 219 concluded that whatever occupancy was recognized under Mexican law, after the Mexican cession, would not be treated differently than the original tribal occupancy recognized from the beginning under U.S. law; and (2) Cramer states that “the fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive.” Id. at 229. Therefore it is not true “that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal governmental action.” 314 U.S. at 347. See also United States v. Shoshone Tribe of Indians, 304 U.S. 111, 118 (1938); United States v. 5,677.94 Acres of Land, 152 F. Supp. 861 (D. Mont. 1957). [85] Act of July 27, 1866, 14 Stat. 292. [86] Act of March 3, 1865,13 Stat. 541, 559. [87] Santa Fe, 314 U.S. 339 at 351 (quoting the Act of March 3, 1865). [88] Id. [89] Id. at 353-54 (emphasis added). [90] See id. [91] Id. at 354. [92] Id. See also Tulee v. State of Washington, 315 U.S. 681, 684-85 (1942) (stating that it is the Courts responsibility “to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.”). [93] The inherent danger to the Indian’s rights lies not only in Congress’s relationship to the Indians, but necessarily to its constituents as well. Since before King George III’s Royal Proclamation of 1763, there has been an extremely high tension between the acknowledged aboriginal rights of the Indians to possession of their ancestral land, and the desire of Anglo settlers to acquire that land for their own use and benefit. Consequently, Congress, just as the colonial government before it, and the Crown before that, must pander to its constituents in that it must “provide gratification for [their] desires;” therefore the risk is great that Congress will pander the Indians, exploiting their weakness in their status as wards, or simply forget about them rather than diligently protecting their interests. [94] See also South Dakota v. Bourland, 508 U.S. 679, 687 (1993), which only mentions the liberal construction rule in a parenthetical following a cite to County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251 (1992). [95] Bald Eagle Protection Act, 54 Stat. 250, 16 U.S.C. §668 et seq. [96] See Dion, 476 U.S. 734 at 739. [97] Id. [98] See id. [99] Id. at 739-40 (bracketed numbers supplied). See also South Dakota v. Bourland, 508 U.S. 679, 693 (1993) (applying the Dion standard). [100] Dion, 476 U.S. at 737. [101] See United States v. Fryberg, 622 F.2d 1010, 1013 (9^th Cir. 1980) (quoting United States v. Top Sky, 547 F.2d 486 (9^th Cir. 1976)). [102] Dion, 476 U.S. at 741 (referring to reports in the House Hearings 2-3, quoting letters from Assistant Secretary of the Interior Department Frank Briggs). [103] Id. at 743. [104] Id. [105] Bald Eagle Protection Act, 54 Stat. 250, 16 U.S.C. §668(a). [106] See Dion, 476 U.S. 734, 738, 39. The Court cited for its guidance “Cohen 223,” and United States v. Santa Fe Pacific Railroad Company, 314 U.S. 339, 353-54 (1941) for the proposition that the Court requires that Congress’s intention to abrogate be “clear and plain”; Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979) for the proposition that absent explicit statutory language, the Court has been extremely reluctant to find congressional abrogation of treaty rights; and Menominee Tribe v. United States, 391 U.S. 404 (1968) for the proposition that the Court does not construe statutes as abrogating treaty rights “in ‘a backhanded way.’” The Court merely cites “Cohen 223,” see 476 U.S. 734 (1986) at 738. In 1986 the Court could have been referring to either of two editions of Cohen’s handbook: FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941 ed.) United States Government Publishing Office; or FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1982 ed.) LEXIS Law Publishing 1982. [107] The Dion Court’s legal analysis is particularly sloppy; the Court either ignored its treaty abrogation precedent, or it concluded that a single letter, written by an Interior Department assistant secretary, pointing out that the use of eagle feathers is important to many Indian tribes for religious purposes, and passed around between the House and Senate constitutes clear and plain intent. Either makes bad law. [108] The Court concluded that the fact that Congress, immediately after the passage of the amendments to the act in 1962, authorized permits “only to ‘individual Indians who are authentic, bona fide practitioners of such religion’. . . reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle . . . [was] inconsistent with the need to preserve those species.” Id. at 744-45. [109] United States v. Fryberg, 622 F.2d 1010, 1014 (9^th Cir. 1980). [110] 241 U.S. 556 (1916). [111] Id. at 560. [112] Id. at 563 [113] 391 U.S. 392 (1968). [114] Id. at 398. [115] Id. [116] 315 U.S. 681, 684 (1942). [117] Id. (emphasis supplied). [118] Puyallup Tribe, 391 U.S. 392 at 398. [119] Id. [120] See United States v. Fryberg, 622 F.2d 1010, 1015 (9^th Cir. 1980). [121] See Menominee Tribe v. United States, 391 U.S. 404, 412-13 (1968). [122] See 21 U.S.C.A. §802 (22). [123] See 21 U.S.C.A. §822 (a)(1). [124] See 21 U.S.C.A. §802 (6). [125] Id. (referring to United States v. Burns, 529 F.2d 114, 117 (9^th Cir. 1976)). [126] See United States v. Fryberg, 622 F.2d 1010, 1013 (9^th Cir. 1980). [127] The legislative history of the Act is void of Congress’s regard for Indian treaty rights. Even so, mere mention in the legislative history would not in and of itself be determinative. [128] 21 U.S.C.A. §801(2). [129] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998) at 2. [130] See North American Industrial Hemp Council, Inc., <http://www.naihc.org/hemp_information/hemp_facts.html>. [131] Somewhat ironically, unlike the tribal ordinance, the CSA allows the growth of marijuana by persons who get a permit from the government. [132] The contrary assertion found in Lone Wolf “has long since been discredited in taking cases.” See United States v. Sioux Nation of Indians, 448 U.S. 371, 413 (1980). [133] See Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27 (1998) at 1 (stating that “law enforcement agents and farmers can learn to readily distinguish between the different varieties of Cannabis sativa”). [134] See The Net Economy, <http://www.theneteconomy.com/article.asp?section=7&aritcle_id=120400_revo_2>. [135] 362 U.S. 99 (1960). [136] 16 U.S.C.A. §§836, 836(a). [137] 362 U.S. 99 at 116. [138] Id. [139] Id. at 123. [140] 542 F.2d 1002 (8^th Cir. 1976). [141] Id. at 1005. [142] 319 U.S. 598 (1943). [143] 125 Cal.App.3d 1044 (1981), cert. denied, 459 U.S. 828 (1982). [144] Id. at 1052-53. [145] 751 F.2d 1113 (9^th Cir. 1985). [146] 29 U.S.C. §§ 651-678 (1982). [147] 751 F.2d at 1115. [148] Id. (citing Confederated Tribes of Warm Springs Reservation of Oregon v. Kurtz, 691 F.2d 878 (9^th Cir. 1982), cert. denied, 460 U.S. 1040 (1983) (holding that absent a “definitely expressed exemption” tribes and their members are subject to federal excise taxes); United States v. Fryberg, 622 F.2d 1010 (9^th Cir. 1980), cert. denied, 449 U.S. 1004 (1980) (holding that Eagle Protection Act abrogates treaty hunting rights); Fry v. United States, 557 F.2d 646 (9^th Cir. 1977), cert. denied, 434 U.S. 1011 (1978) (holding that Indian logging operations are subject to federal taxes); United States v. Burns, 529 F.2d 114 (9^th Cir. 1975) (holding that federal gun control law applies to Indians, citing Tuscarora)). [149] Id. at 1116 (citing United States v. Farris, 624 F2d. 890 (9^th Cir. 1980), cert. denied, 449 U.S. 1111(1981)). [150] Id. at 1117. [151] See Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp.1001, 1005 (D. Minn. 1971) (stating, “If it is the intention of Congress to [affect or abrogate a treaty right], then Congress [knows] how to say so in clear language”). [152] See supra note 131. [153] See supra note 2. [154] See supra note 99 and accompanying text. [155] According to The Net Economy supra note 143, most people on Pine Ridge reservation live on about $9,000 per year. [156] David Rooks, DEA and FBI agents raid family crop, Indian Country Today, September 6, 2000, at D1 (quoting Alex White Plume).
	Natives Unite

Indian treaties must be liberally construed in favor of the Indians

Indian treaties must be interpreted as the Indians themselves would have understood them

The understanding of the Indians regarding agriculture

The Dion Standard

Applying the Dion Standard