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Article VI u.s. constitution and Analogy of Treaty Interpretation

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All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

1. The Supreme Court has explained that “courts of law are required to interpret treaties as any other contract by giving effect to the intent of the parties as manifested by the terms thereof.” Zschernig v. Miller, 243 Or 567, 574, 412 P2d 781 (1966), rev’d on other grounds, 389 US 429, 88 S Ct 664, 19 L Ed 2d 683 (1968). More specifically, in Seufert Bros. v. Hoptowit et al, 193 Or 317, 322-23, 237 P2d 949 (1951), cert den, 343 US 926 (1952), the court set out the guidelines for interpreting

2. “It is well established that, in construing a treaty between the United States and Indians, the courts will construe it liberally in favor of the Indians, and in the sense in which its provisions would naturally be understood by the Indians [indigenous peoples]. However, despite this rule of liberal construction, treaties cannot be rewritten or expanded beyond their clear terms, and the obvious, palpable meaning of their words cannot be disregarded, in order to achieve the asserted understanding of the parties.

3. “Of course treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. But even Indian treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.” (Citations and internal quotation marks omitted.) See also Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 US 658, 675, 99 S Ct 3055, 61 L Ed 2d 823 (1979) (“A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. When the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm’s length.” (Citation omitted.)); Antoine, 420 US at 199-200 (treaty must be interpreted by liberally construing any ambiguities in the text in favor of the tribe)”.

4. “Treaty interpretation, then, is a form of contract interpretation. When interpreting a contract, we first examine the text and context to determine if the contract provision is ambiguous. Berry v. Lucas, 210 Or App 334, 338, 150 P3d 424 (2006). A contract is ambiguous if it is susceptible to more than one reasonable interpretation. Batzer Construction, Inc. v. Boyer, 204 Or App 309, 313, 129 P3d 773, rev den, 341 Or 366 (2006). At that first level, we also consider extrinsic evidence of “the circumstances underlying the formation of the contract.” Id. at 317. Finally, if the “provision remains ambiguous after the first two steps have been followed, the court relies on appropriate maxims of construction” to determine the provision’s meaning. Yogman v. Parrott, 325 Or 358, 364, 937 P2d 1019 (1997)”.

5.. “In general, one of those maxims is that ambiguous language in a contract is construed against the drafter. Berry, 210 Or App at 339. The analog in construing treaties between the United States and Native Americans is, as the court stated in Seufert Bros., that ambiguities should be construed in favor of the Native Americans, at least when the treaty terms are drafted by the United States. 193 Or at 323”.

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