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The treaties between the United States and the Indians constitute a critical recognition and guarantee of Indian rights. They envision a "measured separatism"' for an important minority that is determined to maintain a distinct cultural and political identity.' Non-treaty rights are fragile: The Supreme Court has held that Indians are not citizens within the meaning of the Fourteenth Amendment,' and that Congress has "plenary power" over Indian affairs by virtue of its guardianship over their interests. Moreover, the United States has ended the formal negotiation process with the Indians, and apparently no further treaties will be concluded. Thus, Congress' power to abrogate the Indian treaties limits the Indians' ability to maintain their unique communities.

Notwithstanding the importance of the treaties, the Supreme Court has repeatedly recognized the power of Congress to abrogate them unilaterally when Congress has clearly expressed its intent to do so. However, the Court has never clearly described the basis for this power. In 1871, the Court suggested in The Cherokee Tobacco3 that congressional abrogation is an application of the last-in-time rule, under which a treaty may supersede a prior statute and a statute may supersede a prior treaty. Thirty-two years later, the Court offered two other justifications in Lone Wolf v. Hitchcock. Lone Wolf hints that abrogation can be justified by Congress' plenary power over Indian affairs." In addition, the decision suggests that abrogation can be viewed as an application of the international law doctrine of rebus sic stantibus, under which one party may terminate a treaty due to a fundamental change in circumstances.

This Note argues that none of these three justifications is persuasive and that the Court should give increased protection to Indian treaties. Section I provides the relevant background on treaties. Section II examines the justifications and concludes that none of them is persuasive. Finally, Section III proposes that congressional abrogation be limited by a "last-in-time plus" rule that would require Congress to provide both an express statement of abrogation and an acceptable reason as measured by the requirements for treaty termination under international law. This standard acknowledges the extensive congressional power over Indian affairs, while also recognizing the importance of the treaties and the unique status and history of the Indian peoples.



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