Posted on 07/16/2004 8:59:00 AM PDT by neverdem
Sorry but my cousins' Mohawk St. Regis (Akwesasne) Treaties of 1784 and 1794 not subject to some U.S. laws.
OSHA Commission upholds Mohawk treaty rights
Posted: June 18, 2002 - 1:00pm EST
http://www.indiancountry.com/index.php?1024276937
Sometimes a good decision on native sovereignty and treaty rights comes from an unlikely case.
Recently the St. Regis (Akwesasne) Mohawk Tribe challenged the right of investigators from the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor to conduct inspections at the tribe’s Akwesasne Mohawk Casino. The U.S. District Court in Northern New York approved a warrant for OSHA investigators to inspect the gaming enterprise. They found some OSHA code violations.
As a member of the Six Nations or Iroquois Confederacy, the Mohawks argued to the U.S. Occupational Safety and Health Review Commission that applying the federal OSHA Act of 1970 "abrogated rights guaranteed" by treaties between them and the United States. They relied on a framework for analysis held in a 1996 case that "a federal statute will not apply to [Indians] ... if … the application of the law to the tribe would abrogate rights guaranteed by Indian treaties."
The Mohawks argued that unlike other treaty cases, where treaties may not have been specific enough, the treaties they invoked, the 1784 Treaty of Fort Stanwix and the 1794 treaty of Canandaigua, contained language that was specific to their contention that their management of their own enterprises on tribal land was protected.
The Commission agreed with the Mohawk argument. It has issued an "ORDER" concluding "the application of the OSHA Act of 1970 in fact ‘abrogated rights guaranteed by treaties.’" In an unusually well reasoned reading of applicable treaties and case law, the Commission also concluded that the federal government had no "subject matter jurisdiction" in the case.
The Commission reviewed other Indian cases where OSHA has been applied. But it found that the treaties invoked by the Mohawks under their Six Nations status had more specific language that pertained directly to the case. In decisions stemming from Navajo cases, treaty language was deemed insufficiently protective of the Indian use of Indian land. The language of the two treaties cited by the Mohawks and the expressed treaty rights, says the Commission, "are far-reaching in comparison to those at issue in Navajo Products and Warm Springs, supra. The treaties at issue here go further than assuring the Six Nations’ interest in their lands but they also promised unbridled control over how that land is used."
So it is that Mohawks today can say Niáweh (thank you) to their ancestors, for the wisdom of their forethought in the exercise of their sovereignty. The Treaty of Fort Stanwix of 1784, after describing the geographical boundaries of "the lands of the Six Nations," provided that the Indians, "shall be secured in the peaceful possession of the lands ..."
The Treaty of Canandaigua stated that, "The United States will never claim the same nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States ..."
Stated the Commission, under the signature of Judge Michael H. Schoenfeld: "In essence, the treaties vowed that the United States would leave the Six Nations alone regarding their activities on their own lands. In this regard, the fact that the Casino is a tribal, not an individual, enterprise sways heavily in their favor. The solemn promises of 1784 and 1794 are paramount to the 1970 goals of the Act."
This is very strong and welcome language. It is also a serious lesson for all Indian people on the nature of language in any and all legal documents forged with other governments. Sovereignty not explicitly given up is sovereignty retained. The tribal nations have to give it up to lose it. Even military conquest, coercion, oppression or occupation, do not obliterate Indian title and governance over Indian country lands. "... [H]ere," said the Commission, "the sought-after application of federal law would serve to abrogate rights specifically promised by treaty."
For any American Indian government so protected by treaty, and in particular for the Six Nations, the appropriate reasoning and strong language from the OSHA Review Commission is particularly welcome. It is an excellent principal to invoke.
-- After all, this is exactly what the Founding Fathers had in mind. Your state decides. [gun rights]
Mindboggling delusion paulsen. We the people have an inalienable RKBA's, a power we have never surrendered to any state. We have only delegated certain portions of this power to fed/state/local governments, under our Constitutional rule of law.
If your state wants concealed carry, fine. If another state doesn't, that's fine too. Your state wants "assault-style" weapons, fine. California doesn't? Screw 'em.
You simply ignore our most basic self evident rights, paulsen. Rant on in your dementia.
If the RKBA is an absolute burning issue with you, the FF figured there would be a state right up your alley. Move to it.
You should move paulsen. To a socialist state w/gun control. England might welcome you.
Now, here's what's going to be interesting -- and you heard it from robertpaulsen first. Watch what happens when the 1994 federal AWB expires, and it will expire. Watch how many states rush to pass their own AWB to fill the gap. You say it's the big bad federal government banning guns via the AWB? You ain't seen nothing yet.
Got the hardly waits, dontcha paulsen.. Gawd but you are such an obvious Brady buncher shill. Amazing you still have the chutzpah to attempt to pass yourself off as a conservative.
I disagree. The most problematical federal rulings are those which invent a "collective right". Next most problematic is the notion from US vs. Miller that the government should be the arbiter of which weapons are suitable. That is a decision best left to the individual faced with a need.
If the Founders had meant to restrict the arms protected to only those which the courts or the legislature found acceptable, they could have said so.
robertpaulsen also said: "That takes some imagination. "
You think it takes imagination to suppose that the courts would do to the Second Amendment exactly that which the courts did to the First Amendment in Gitlow? Remember, the court looked to the First Amendment which states "Congress shall make no law..." and failed to apply that standard to the states. They invented a presumption that people should be disallowed any right which might threaten the state.
Thanks for compiling the list! Excellent! Bookmarked
Doesn't the Constitution state VERY clearly that the right of the people to keep and bear arms shall not be infringed? The argument ends right there.
Tell that to those that want my our guns.
Alas, you can't talk to those who wish to be deaf.
From time to time, I’ll post or ping on noteworthy articles about politics, foreign and military affairs. Let me know if you want off my list. This is a combined list.
In comment# 178 you'll find a compilation from apparently all the state constitutions of the relevant text regarding the right to keep and bear arms in each state.
Me too. But some folks, such as Sarah Brady and the Million Moms, deliberately misconstrue the plain meaning of the Second Amendment because they don't like what it says.
Doesn't the Constitution state VERY clearly that the right of the people to keep and bear arms shall not be infringed? The argument ends right there.
I agree and so does Justice Clarence Thomas. In a footnote to his opinion in Printz vs US he wrote:
Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.
The gun grabbers will use hook or crook to get around the Second Amendment. Justice Clarence Thomas wrote an interesting opinion in Printz vs US.
Justice Thomas, concurring.
The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." See ante, at 25. Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ("This government is acknowledged by all to be one of enumerated powers"). "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U.S. 144 (1992).
In my "revisionist" view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce . . . among the several states," does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion).
Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must "temper our Commerce Clause jurisprudence" and return to an interpretation better rooted in the Clause's original understanding.
Historically, it was common for trading ships to be armed with cannon, so I would imagine so.
That must be why we negotiate arms limitation treates with foreign nations. Wouldn't want them to have too many small arms. </sarcasm
Arms includd cannon in the days when the second amendment was ratified. If you, or your group, could afford them, you could own them. And the Constitution means now what it meant then.
Cannor are indeed ordanance, but both cannon and muskets are arms. We have an Arms Control and DisArmament Agency, not an Ordance Control Agency. The Strategic Arms Limitation Treaty did not concernt AR-15s and AK-74s.
From the 1828 Webster's Dictionary. 'ARMS, n. plu. [L. arma.]
1. Weapons of offense, or armor for defense and protection of the body.
2. War; hostility.
Arms and the man I sing.
To be in arms, to be in a state of hostility, or in a military life.
To arms is a phrase which denotes a taking arms for war or hostility; particularly, a summoning to war.
To take arms, is to arm for attack or defense.
Bred to arms denotes that a person has been educated to the profession of a soldier.
3. The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.
4. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.
5. In botany, one of the seven species of fulcra or props of plants, enumerated by Linne and others. The different species of arms or armor, are prickles, thorns, forks and stings, which seem intended to protect the plants from injury by animals.
Sire arms, are such as may be charged with powder, as cannon, muskets, mortars, &c.
A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary.
In falconry, arms are the legs of a hawk from the thigh to the foot.
The Congress *hired* no one (in this context). They issued permision for private individuals (and groups of them) to attack shipping of a particular nation or group of nations. The privateers could take and sell any ships or cargo they captured. It was in effect legalized piracy. The "pay" came only in the form of booty. Most of the ships were owned by citizens, and mostly crewed by them as well. But the key point here is ownership. The ships, and the cannon they mounted, were not government owned. The Constitution clearly contemplates that citizens (and others) were to continue owning armed ships, or at least armable ships and the guns to arm them with. (The guns might be stored ashore until needed, to allow more "payload" during times of "peace".)
It wouldn't make much sense for the privateers to only be able to aquire and own their guns after being granted the Letter of Marque, since if they could procure the guns quickly, so could an expanded Navy.
Opinions differed in the antebellum period (before the Civil War), some state courts ruled that the second amendment restricted the states, others did not. Federal court ruling were thin, but generally indicated that it did not constrain the states. However the intent of the 14th amendment, as explicated stated by it's authors, was to apply the restrictions of first 8 amendments to the state governments. The Courts did not at first "interpret" it that way, favoring states' "rights" (actually powers) but later courts, rather than straightforwardly overturning the earlier rulings as clearly in error (something courts are loath to do, because it admits that judges and justices can be wrong), they instead came up with the bogus "incorporation" doctrine, using the "due process" provision of the 14th. The nice thing, from the Courts viewpoint, is that it gives them the power to determine what rights are protected, and which are not.
Not just the Concord militiamen or minutemen (as you know I'm sure, the minutemen were an especially well trained subset of the militia), but those from many other towns as well. Lexington of course, but also Lincoln, Menotomy(sic) (now Arlington), Medford, Bedford, Salem, Danvers, Beverly and others. Not all those made it to the fight at the bridge, but all made it to the running gun battle on the road back to Boston/Breed's Hill. Many more from even farther away made it into the later Bunker Hill battle.
But who were the members of the Miltia and Minutemen, but common citizens? The militia was organized along town or township lines, but wasn't really a part of the town government in the usual sense. The US Supreme Court in Miller defined the Militia as "all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." "
You actually might want to check out post 177 and the link to the definition of a destructive device. I suspect that the legal term you are searching for is not ordinance, but destructive device.
The anti-federalists were, but the Federalists won the argument and the Constitution explicitly empowers the Congress to raise and support Armies. However the anti-federalists got the "bone" of the funding for those armies (we have two you know, a ground army and an air army, which we call the Air Force) was limited to two years. In practice the funding for the DoD (and it's predecessors War and Navy departments) is for a single year.
Well not quite. The National Guard is a componet of the militia, but it is not the whole militia, even by federal definition. However states have their own definition. The Texas definition, for example, has a wider age range, and includes women as well as men. It only excludes a very few public officials. All are subject to emergency call by the governor.
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