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Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth". How Long a Time Is That?

1975; UC Berkeley School of Law; Volume: 63; Issue: 3 Linguagem: Inglês

10.2307/3479850

1942-6542

Charles F. Wilkinson, John M. Volkman,

International Law and Human Rights

In this insightful analysis of the role of the courts in determining whether an Indian treaty has been abrogated by Congress, the authors argue that confusion over the proper judicial test for finding an abrogation all too often results in the destruction of precious American Indian treaty rights.They propose an objective test fully consonant with the importance of treaty guarantees and the unique relationship of American Indians to the federal government: that Indian treaty rights should be abrogated only by express legislative action stating both the specific promises about to be broken and the intent of Congress to break them. Many of the unique and most cherished rights of AmericanIndians are preserved in treaties.The duration of the treaty-guaranteed rights to live, hunt, and fish on ancestral lands is typically described as "forever" 1 or "permanent."' 2 United States Senator Sam Houston used the following language to characterize the perpetual nature of these promises:As long as water flows, or grass grows upon the earth, or the sun rises to show your pathway, or you kindle your camp fires, so long shall you be protected by this Government, and never again be removed from your present habitations. 3 The most visible treaty rights are related to the many treaty-created reservations.There are, however, numerous other rights that vary according to the individual treaties, including educational benefits, 4 1.See, e.g.