The tribe, the empire, and the nation: enforceability of pre-revolutionary treaties with Native American tribes.

• Author: Kinney, Adam F.

If there fall out any wars between us and them, what their fight is likely to be, we having advantages against them so many manner of ways, as by our discipline, our strange weapons and devices else, especially by ordinance great and small, it may easily be imagined; by the experience we have had in some places, the turning up of their heels against us in running away was their best defence.

--Thomas Harriot, 1588 (1)

Thomas Harriot's insightfulness in the late sixteenth century carried a prophetic chill as, despite the Natives' flight, the Western Age of Exploration precipitated the virtual destruction of various Native American cultures that had flourished in North America for millennia. (2) Although many lament this loss, current attitudes concerning the rights and powers of Native American tribes in the United States betray the same base self-interest of our colonial forefathers. These attitudes of passive sympathy came to the forefront in a recent series of decisions concerning the construction of a new reservoir on the Mattaponi River in southeastern Virginia. The Mattaponi tribe, a remnant of the once great Powhatan Confederacy, alleges that the construction of this reservoir--which, due to rapid population growth, is becoming a necessity for Virginia--infringes upon rights guaranteed in the 1677 Treaty of Middle Plantation. (3) The Mattaponi case is complex, presenting a number of difficult questions. One of these questions, however, has never been seriously discussed by legal scholars: whether pre-revolutionary treaties between Native American tribes and the British Empire are enforceable under the Supremacy Clause of the United States Constitution. (4) This note seeks to answer this question using the Mattaponi case as a lens for analysis.

Resolving this issue requires an understanding of various historical and legal elements. This note begins with discussions of the British colonial presence in Virginia, the inception of the Treaty of Middle Plantation, and the procedural history of Mattaponi Indian Tribe v. Commonwealth of Virginia. (5) Having illustrated the historical and procedural contexts of the case, this note then turns to the intent of the framers to provide the federal government with complete power over Native American affairs and treaty-making and how this intent should be applied to the Mattaponi case. This note then presents the international law doctrine of universal succession as a plausible explanation of how the framers may have understood the United States' obligations to Native American tribes that had treated with the British. (6) Finally, this note will discuss some of the basic elements of federal Native American law and why their application in the Mattaponi case produces the most just result for the Mattaponi. In short, this note advocates the application of the doctrine of universal succession to pre-revolutionary treaties between the British and Native American tribes. This would result in a presumption of enforceability at the federal level for these treaties, and afford them the protections of the established body of federal Native American law, as opposed to the possibly divergent and unfavorable Native American law developed by the states.

THE COLONIAL EXPERIENCE

The Mattaponi's plight did not begin with Virginia's decision to abrogate their tribal rights in favor of assuring an adequate water supply. In fact, the issues of tribal rights and sovereignty are rooted in the first encounters between the Native Americans and the colonial powers of the sixteenth and seventeenth centuries. Historians estimate that in 1600 approximately 500,000 Native Americans lived east of the Allegheny Mountains and that some 30,000 of those lived in the lower Chesapeake region. (7) Unfortunately, by 1677 only five percent of the population of the great Powhatan Confederacy of the lower Chesapeake remained, due primarily to exposure to the European powers, which brought the ravages of disease, depletion of game, and increased warfare to North America. (8) The Mattaponi are descendents of the tribes that once constituted the Powhatan Confederacy and have settlements along the Mattaponi River. (9)

The English, in contrast, enjoyed comparative prosperity in Virginia during the latter part of the seventeenth century with nearly 30,000 inhabitants and enjoying frequent land acquisitions. (10) Despite this significant population growth, Virginia as a society remained developmentally stunted. (11) Wars with the Dutch, royal indebtedness, the stirrings of revolution in Britain, an entrenched colonial government, and an average of four to six times as many men as women in the colony made for a volatile environment. (12) What growth the British had sustained resulted from a lasting peace in the colony since 1646, when the royal governor removed all indigenous inhabitants from the Jamestown Peninsula in an effort to insulate the British from the native populations. (13) This period of peace came to a close, however, as the British expanded beyond the pale of the Jamestown peninsula and once again made contact with the tribes of the former Powhatan Confederacy. (14)

By the summer of 1676 rebellion had shattered the tenuous peace. Nathaniel Bacon, a disenchanted colonist, exploited and fostered the fears and prejudices of former indentured servants who were finding that the opportunities to acquire fertile land were not as plentiful as they had been told before leaving England. Bacon drew these poor and discontented colonists to his side with promises of land--land that he intended to wrench from the hands of the "barbarous heathen." (15) Bacon leveled several charges against the royal governor in a declaration on July 30, 1676, but what is striking about his complaints against the governor is the focus upon the Native Americans as being the central problem of colonial Virginia. (16) Bacon accused Governor Berkeley of maintaining a monopoly on the beaver trade in favor of the Native Americans rather than the loyal subjects of the crown. (17) He further alleged that the governor had "protected, favored, and emboldened the Indians against his Majesty's loyal subjects, never contriving, requiring, or appointing any due or proper means of satisfaction for their many invasions, robberies, and murders committed upon [the British]." (18) Bacon's conception of the Native Americans as being the true obstacle to the success of his followers resulted in violent confrontations between the various tribes in Virginia and the colonists, affecting even those tribes that had been friendly towards the British. (19)

Despite initial intensity, Bacon's Rebellion quickly faded after Bacon's illness and death in October of 1676. (20) Without his charismatic, unifying influence the Rebellion faltered and was followed by several months of chaos in the colony. (21) Unfortunately, despite the relatively short life of the Rebellion, the British faced a substantial challenge in restoring the tenuous calm that had preceded the violence. (22)

THE TREATY OF MIDDLE PLANTATION

Having quelled the colonists' revolt, the British quickly began mending relations with the Native American tribes. The Treaty of Middle Plantation, executed on behalf of King Charles II with the remaining tribes of the Powhatan Confederacy, resulted from this attempt to bring order back to the colonies and restore peace with the Native Americans. Few Native American settlements remained in colonial Virginia in the aftermath of the Rebellion, and the few that did remain were weary from years of warfare with the British and other Native American tribes. The British maintained that the Treaty would provide the tribes with certain lands and rights similar to those enjoyed by the colonists. (23) The Treaty held that the "Indian Kings and Queens" would "henceforth acknowledge to have their immediate Depenency [sic] on, and own [sic] all Subjection to the Great King of England." (24) In addition to recognizing the King of England as their overlord, the Native American signatories of the Treaty were required to convey "Three Indian Arrows" per year in lieu of quit rent, (25) as well as a tribute of twenty beaver skins to the governor as evidence of their "Obedience to the Right Honourable [sic] His Majesties Governour [sic] ... in acknowledgement [that] they hold their Crowns and Lands of the Great King of England." (26) The payment of tribute to the King's governor created a guardian-trust relationship between the tribes of the Powhatan Confederacy and the British Empire. (27) This relationship relieved the tribes of some of the vestiges of their sovereignty in return for peace and the protection of the more powerful British Empire. In return for the Native American's promises of fealty, the British guaranteed them "land sufficient to plant upon." This provision indicates a desire by the English, at least on the face of the Treaty, to deal fairly with the Native Americans to achieve a lasting peace.

Additionally, the tribes received a guarantee that to preserve peace, "no English shall Seat or Plant nearer then [sic] three miles of any Indian Town; and whosoever hath made, or shall make any Incroachment [sic] upon their Lands, shall be removed from thence, and proceeded against as by the former Peace made." (28) While the guarantee of sufficient land to plant on does not contain any reference to specific lands, this clause provides for the protection of an identifiable parcel of land surrounding the site of the traditional tribal village. Furthermore, the members of the confederacy were also allowed to

enjoy their wonted conveniences of Oystering, Fishing, and gathering Tuchahoe, Curtenemons, Wild Oats, Rushes, Puckoone, or any thing else (for their natural support) not useful to the English, upon the English Dividends; Always provided they first repair to some Publick[sic] Magistrate of good Repute, and inform him of their number and business, who shall...