MANDATORY COMMANDS AND GUARANTEES OF
The Word "SHALL" As Contained The
THE CONSTITUTION OF THE UNITED STATES
Article I, Section 8, Clause 3, the Commerce Clause and Section 10 Clause 1, the Contracts Clause.
The Commerce Clause mandates as follows:
"Powers delegated to congress" ...To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;...
The Contracts Clause mandates as follows:
...No State shall ...pass any...Law impairing the Obligation of Contracts...
Article IV, Section 2, Clause 1, The Privileges and Immunities Clause of the Constitution mandates as follows:
...The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States...
Article VI, Clause 2, The Supremacy Clause mandates as follows:
...2. This Constitution and the laws of the United States which shall be made pursuant thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding...
Indian treaties were, and remain today, the Supreme Law of the Land, superior to the laws of any state, and protected by Article VI of the United States Constitution. Only the Congress, through the exercise of it's plenary power over Indian affairs, may terminate Indian treaty rights, guarantees and privileges. See: Menominee Tribe v. United States 391 U.S. 404 88 S.Ct. 1705, 20 L.Ed.2d 745 (1968) Oyler v. Allenbrand 23 F.3d. 292, 294 (1994)
UNITED TRIBE OF SHAWNEE INDIANS TREATIES AND ACTS OF CONGRESS
The United Tribe of Shawnee Indians treaties, their vested treaty rights, mandatory guarantees and privileges, are as follows:
Article VII of the Treaty with the Shawnee, January 31, 1786, (7 Stat. 26) mandates as follows:
"If any citizen of the United States shall presume to, settle upon the lands allotted to the Shawanoes by this treaty, he or they shall be put out of the protection of the United States."
Article VI of the Treaty with the Shawnee, etc., August 3, 1795, (7 Stat. 77), mandated the following:
"may drive off the settler, or punish him in such manner as they shall think fit;"
On September 29, 1817 the United States entered into a Treaty with the Wyandot, Seneca, Delaware, Shawnee, Potawatomi, Ottawa and Chippewa (7 Stat. 160).
Article 15 concerned taxes of any kind as follows: ...The tracts of land herein granted to the chiefs, for the use of the Wyandot, Shawnee, Seneca and Delaware Indians, and the reserve for the Ottawa Indians, shall not be liable to taxes of any kind so long as such land continues the property of the said Indians.
See also: The Kansas Indians (Blue Jacket v. The Board of Commissioners of the County of Johnson), 72 U.S. (5 Wall) 737, (1867). and Parker v. Winsor, 5 Kan. 362 (1870).
On May 28, 1830 the Congress of the United States, passed an Act (4 Stat. at L. p. 411 chap. 148) whereby the President of the United States was directed to select a country west of the Mississippi, to remove and settle the Indians upon.
Section 3 of the Act provided as follows: ...That in making any such exchange or exchanges, it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guarantee to them, and their heirs and successors, the country so exchanged with them; and if they prefer it, that the United States will cause a patent or grant to be made and executed to them for same... See: May 28, 1830 Act of Congress (4 Stat. at L. p. 411 chap. 148)
In 1831 the United States Government and the Shawnee entered into a treaty. Treaty with the Shawnee, August 8, 1831 (7 Stat. 355), under the authority of the Act of Congress, Sess. 1, Ch. 148 approved May 28, 1830.
Article X, states as follows:
...The lands granted by this agreement and convention to the said band or tribe of Shawnee, shall not be sold or ceded by them, except to the United States. And the United States guarantee that the said lands shall never be within the bounds of any state or territory, nor subject to the laws thereof: And further, that the President of the United States will cause said tribe to be protected at their intended residence, against all interruptions or disturbances from any other tribe or nations of Indians, or from any other person or persons whatever... See also: The Kansas Indians (Blue Jacket v. The Board of Commissioners of the County of Johnson), 72 U.S. (5 Wall) 737, (1867). and Parker v. Winsor, 5 Kan. 362 (1870).
The Act to Organize the territory of Kansas (Act of May 30, 1854, ch. 59, section 19, 10 Stat.283) was passed May 30, 1854.
The jurisdiction of the territory created by the Kansas Organic Act, as to rights of the Indians within subject territory was not to extend to the Indians, their rights of person or property, "so long as such rights should remain unextinguished by treaty with them".
Section 19, of the Organic Act mandates the following:
...That nothing in this act contained shall be construed to impair the rights of persons or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which with any Indian tribe is now, without the consent of said Tribe, to be included within the territorial limits or jurisdiction of any state or Territory; but all such territory shall be excepted out of the boundaries and constitute no part of the territory of Kansas, until such tribe shall signify their assent to the President of the United States to be included within said Territory of Kansas...
On July 29, 1859, a Constitution for the State of Kansas was formed.
Section I of the Constitution mandates that:
...That all rights of individuals should continue as if no state had been formed or change in government made...
On January 29, 1861, an Act for the Admission of Kansas into the Union (Act of January 29, 1861, ch. 20, section I, 12 Stat.126) was passed by the Congress of the United States.
Section I of the Act for Admission is identical to Section 19 of the Kansas Organic Act and mandates as follows:
...That nothing contained in the said Constitution respecting the boundary of said State shall be construed to impair the rights of person or property now pertaining to the Indians of said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indian tribe, is not, without the consent of such tribe, to be included within the territory limits or jurisdiction of any State or Territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the State of Kansas, until said tribe shall signify their assent to the president of the United States to be included within said state, or to, affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never passed... See also: The Kansas Indians (Blue Jacket v. The Board of Commissioners of the County of Johnson), 72 U.S. (5 Wall) 737, (1867). and Parker v. Winsor, 5 Kan. 362 (1870).