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TRIBAL RELATIONS 3 PAMPHLETS '',' 0 ' ~ 'I "'I "'.,. --'· · ~ . .,.ol, -1 i IN~ d 1 UTE
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The Indian & The Law:2 By THEODORE H. HAAS, Chief Counsel
United States Indian Service
A brief layman's answer to the questions:
1. What is an Indian tribe?
2. What is an Indian band?
3. Why is there an Indian Bureau?
4. What power has Congress over Indian affairs?
5. What power has Congress delegated to the Indian Bureau?
6. What power over Indians has Congress transferred to the States?
7. Are there actually any "Indians, not taxed?"
8. What state and federal taxes do Indians pay?
9. What is "Indian title" to land?
10. Do Indians generally own the minerals under their lands, and
the forests on it?
• 11. What are: Allotments, patents in fee, restricted propertyl
12. Can an Indian reservation include coastal water rights?
13. What is tribal property?
14. Why has the government supervised the leasing of Indian land?
15. May Indian land be "condemned" for public use?
•
UNITED STATES INDIAN SERVICE
1949
DEPARTMENT OF THE INTERIOR
J. A. KRUG, Secretary
UNITED STATES INDIAN SERVICE
JOHN R. NICHOLS, Commissioner
WILLIAM ZIMMERMAN, JR., Assistant Commissioner
JOHN H. PROYINSE, Assistant Commissioner
EDUCATION DIVISION Willard W. Beatty, Director
P. W. Danielson, Associate Director
Haskell Institute Printing Department
October 1949-1 OM
Additional copies of this pamphlet may be obtained from
United States Indian Service
Washington 25, D. C.
or
Haskell Institute, Lawrence, Kansas
TRIBAL RELATIONS PAMPHLETS 3
The Indian & The Law-2 By THEODORE H. HAAS, Chief Counsel
United States Indian Service
A brief layman's answer to the questions:
1. What is an Indian tribe?
2. What is an Indian band?
3. Why is there an lnd~an Bureau?
4. What power has Congress over lndiaf'l affairs?
5. What power has Congress delegated to the Indian Bureau?
6. What power over Indians has Congress transferred to the States?
7. Are there actually any "Indians, not taxed?"
8. What state and federal taxes do Indians pay?
9. What is "Indian title11 to land?
10. Do Indians generally own the minerals under their lands, and
the forests on it?
11. What are: Allotments, patents in fee, restricted property?
12. Can an Indian reservation i~clude coastal water rights?
13. What is tribal property?
14. Why has the government supervised the leasing of Indian land?
15. May Indian land be "condemned" for public use?
UNITED STATES INDIAN SERVICE
1949
HOW THIS BOOK CAME TO BE
This is the second of two pamphlets on The Indian and the Law, which
between them review the high points of Felix S. Cohen's Handbook on Indian
law. They are not exhaustive, but contain a basically correct interpretation of
many puzzling questions about the legal status of the American Indian today.
Each section summarizes a chapter in Cohen's Handbook, which can be re
ferred to for more complete and exact information. There will be found amp
lification and profuse citations, as well as four chapters devoted to special
problems of a few Indian tribes. Mr. Theodore H. Haas, Chief Counsel for the
Indian Service, has prepared this material at my request during his week ends
and holidays. He and I have worked together to simplify the language so as to
bring the ideas as close to the understanding of a nontechnical layman as
possible. At the risk of lowering his prestige as a lawyer, Mr. Haas has per
mitted many of my suggested simplifications to stand, even though he recog
nized often that I was insisting upon the omission of some stray point that had
no pertinence to the main argument, yet the omission of which might lead
some carping critic to question his legal thoroughness.
The need for this book grows out of the fact that the status of the Indian
today is the result of almost 400 treaties, and more than 5,000 federal statutes
relating to Indians. This maze of Indian law was digested in 1937-38, through
the efforts of Felix S. Cohen, Assistant Solicitor in the Department of Interior,
with the assistance of Theodore H. Haas and others. The Handbook of Indian
Law, issued by the Department of Interior in 1941, contains 662 thin but large
size pages of fine print. It is the final resort of those who want to know what is
the law. This little pamphlet and its companion can only summarize the
substance.
The Education Division of the Indian Service is thankful to Mr. Haas for
having prepared this material for use in high schools of the Indian Service, and
as an assistance to Tribal Council members and members of Indian tribes in
their efforts to understand the legal structure of which they are a part.
August 1949.
ii
Willard W . Beatty,
Director of Education.
CONTENTS
HOW THIS BOOK CAME TO BE ii
FEDERAL POWER OVER INDIAN AFFAIRS .................. .
1. CONGRESS: Commerce With Indian Tribes . . . . . . . . . . . . . . 1
2. CONGRESS: Treaty-Making . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. CONGRESS: War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4 . CONGRESS: Pub I ic Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. CONGRESS: Tribal Property . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. CONGRESS: Individual Property . . . . . . . . . . . . . . . . . . . . . . . 3
7 . CONGRESS: Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. CONGRESS: Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. ADMINISTRATIVE: Establishment of Indian Bureau . . . . . . . 5
2. ADMINISTRATION : Organization and Activities of Bureau . . 6
3. ADMINISTRATION: Source of Services to Indians . . . . . . . . . 7
4 . ADMINISTRATION: Delegation .... : . . . . . . . . . . . . . . . . . . . 8
5. ADMINISTRATION: Tribal Lands . . . . . . . . . . . . . . . . . . . . . . 9
6. ADMINISTRATION: Membership . . . . . . . . . . . . . . . . . . . . . . 10
TRIBAL PROPERTY
Right of Discoverer to Lands . ............ . ............. .
Rights of Individual Members in Tribal Property ............. .
Tribal Lands Sometimes Treated As Public Lands ............ .
Ownership by More Than One Tribe . . ... .. .. . ........... .
Title by Aboriginal Possession, Treaty, Statute and Purchase ... .
Executive Order Reservations ... , ... , , , ................. .
Purchase of Land by Tribes ............................. .
Extent of Tribal Rights in Land ........ · ................. .
Tribal Water Rights . . ............................... .
Tribal Right vs . State Right in Navigable Waters ............. .
Irrigation Charges ..... . ................ . · .. _.' .· ........... .
Tribal Conveyances : . : . : . : . : : : . : ... : : ... : . ·· ........ ~ · ... .
Tribal Right to Receive Funds-Claims ........ . .......... .
Tribal Right to Spend Funds in Treasury .. : .. : ..... · ........ .
INDIVIDUAL RIGHTS IN REAL PROPERTY ..... : . . : . . · ........ .
Allotment ••• 0 •• 0 .. . 0 • •• • • • •• • • 0 •• • • • •••• • •••••••••••••••••
Patents in Fee ..................................... .
Ending of Allotment Policy ............................. .
Freedom from Encumbrances .............. . ...... · ...... .
Restricted Funds ••• 0 ••• 0. 0 •••• • •• 0 •••••• 0 •••••••••••••
10
10 10 11 11 1 1 12 12 13 13 14 14 14 14 15
15
15 16 16 17 17
CONTENTS (Continued)
TRIBAL AND ALLOTTED LANDS-PROTECTION AND LEASING . . 17
Leasing of Indian Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Who Owns Improvements? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 Trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sale of Trust Livestock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Condemnation of Indian Lands . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rights-of-Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Hunting and Fishing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TAXATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Real Property Tax-Local, State and Federal . . . . . . . . . . . . . . . . 22 State I nco me Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 State Gross Production Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 State Inheritance Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 State Sales Tax ................................. : . . . . 23 State Personal Property Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Federal Income Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Federal Capital Gains Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Federal Estate Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Taxation of Tribal Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 25
WHAT IS AN INDIAN TRIBE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
What is an .Indian Band? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Legal Status ............ ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Corporate Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Contractual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ~opacity to Sue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
INDIAN TRADE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IN,DIAN LIQUOR LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
THE INDIAN AND THE STATE GOVERNMENT . . . . . . . . . . . . . . . . 32
SPECIAL STATUTES
RESERVED STATE POWER OVER INDIAN AFFAIRS
iv
34
34
THE INDIAN AND THE LAW-2
FEDERAL POWER OVER INDIAN AFFAIRS
1. CONGRESS: Commerce With Indian Tribes
THE NATION'S CONCERN with Indian affairs is so pervasive and broad that it is said to be plenary or complete. The broad river of Federal power is swollen by many tributaries . The most important is the power to make
treaties, to make war, regulate commerce with Indian tribes, to make expenditures for the general welfare and to control the territory or other property of the United States.
Like all other Federal powers, the source of Federal Indian law is derived from the Constitution of the United States. The only power of Congress which expressly mentions Indians is the power "to regulate commerce among the Indian tribes." This Federal power has been broadly construed to include all transactions by which the Indians dispose of land or other property in exchange for money or other products. Many aspects of intercourse, such as crimes by whites against Indians and by Indians against whites, survey of land, trespass and settlement by whites in Indian country, and the furnishing of services and money by the Federal Government have been held to come within this commerce power.
2. CONGRESS: Treaty-Making
The treaty power is granted by the Constitution to the President with the consent of two-thirds of the Senate. Many statutes have also been passed relating to or supplementing treaties. In fact, this has been the source of many Federal services to Indians.
3. CONGRESS: War Our national policy towards hostile Indian groups has been war. Over a
thousand statutes, public and private have been enacted by Congress dealing with Indian warfare. Part of our expansion in territory, such as the occupation of Florida by United States troops, was deemed necessary to protect the inhabitants of Florida against hostile Indians on the peninsula . Our Federal Indian law books are still studded with obsolete statutes dealing with the hostility of Indians, many of which were passed as late as the last half of the nineteenth century. For example, an 1 862 statute authorized the breaking of treaties with tribes which had engaged in hostilities. This law was aimed at some tribes in-
. .· I
1
eluding an important group in Oklahoma, most of whose members joined the
Confederacy. In 1867 a law authorized the withholding of annuities from hos
tile Indians, and in 1875 a law was passed forbidding payments to Indian
bands at war. 4. CONGRESS: Public Lands
The control by Congress over the public domain and territory has of
fered the means for broad control over the Indians and the effectuation of
many Indian policies, such as the western removal of Indians and the estab
lishment and allotment of reservations. The control over the Alaska natives
is partly based on this power. Even after a state is admitted to the Union, the
Federal Government usually keeps control of Indian lands through provisions
in the act admitting a new state.
S. CONGRESS: Tribal Property
The control of Congress over tribal property, as well as tribal relations,
has also been called "plenary" by the courts. Property or funds may be al
lotted or divided among the members. Certain it is that Congress has a very
wide power to manage and dispose of tribal lands. The courts hold that this
control is a political function which they will not exercise. Tribal lands also
may be disposed of for pub I ic or private purposes. Consequently, Congress
has wide power, ranging from the control and the use of the land and the ex
tinguishment of the rights of the Indians, to the grants of adverse interest,
such as rights-of-way. . .. The one limitation is that "plenary" authority does not mean absolute
power and must be founded upon some reasonable basis. Otherwise the United
·States is I iable under the fifth amendment to the Constitution, which prohibits
the taking of property without the payment of just compensation. The value
of minerals and timber must be paid for, as well as the surface, but until
Congress passes legislation permitting suits by the Indians against the United
States, the right is an imperfect one. The Indian Claims Commission Act per
mits suits against the United States by tribes, bands or other identifiable
groups in the Indian Claims Commission for claims occurring before August
13, 1946. The suits must be filed within 5 years and must be determined
by the Commission within l 0 years of the passage of the act. Appeals may
be taken on legal issues to the Courts of Claims and Supreme Court, but find
ings of facts made by the Commission are treated with the same effect as if
they were made by a court or jury.
Suits occurring subsequently may be brought in the Court of Claims.
Prior to the passage of the Claims Commission Act, any tribe before suing
was re~uired to induce the Congress to pass an act allowing suit, called a ju
risdictional act. This process often took a long time, and the language of
these laws varied. Special enabling laws had to be passed because under the
common law a sovereign nation cannot be sued without its consent. While non
Indian groups were permitted to sue the United States, in 1863 Congress pro-
hibited suits by Indian tribes based on treaty violations. Subsequently, at various times the Court of Claims was granted jurisdiction to adjudicate claims brought by certain Indian tribes for wrongs alleged to have been committed by the United States, such as the taking of Indian lands, timber or minerals without just compensation .
Claims now may be brought before the Indian Claims Commission not only for violation of treaties but also for "unfair dealings." Hence our first Americans can now vindicate against the Government their property rights and contracts. The principle established by the Claims Commission Act is that a conquered people is entitled to come into court and receive compensation for injuries suffered at the hands of the conqueror.
Under the old jurisdictional laws many judgments recovered against the United States were red uced or completely eliminated by offsets or deductions, which consisted of governmental expenditures on behalf of the Indian group for administrative, educational, highway and certain other purposes. Under the Indian Claims Commission Act no offsets can be made from the Commission's award for such expenditures made before the date of the law or treaty u-nder which the claim arose.
Since tribes receive money from these claims against the United States, arising usually from the disposition of tribal lands, congressional power over these funds is also very broad . As in the case of lands Congress cannot divert tribal funds from the tribe in the absence of tribal consent without being liable for the amount diverted . The Court of Claims, however, tends to uphold expenditures authorized by Congress when made for tribal purposes. A different rule may be applied if tribal money of tribes with I.R.A. constitutions is expended without the consent of the tribal governing body, because the law authorizes the Indians to veto the disposal of land or other tribal assets .
6. CONGRESS: Individual Property The power of Congress over individual lands also springs from the power
over tribal lands, from which individual lands usually are derived. This power, though more limited, is broad enough to cover the supervision of the alienation of individual lands. Congressional power has been largely directed towards the release, extension or reimposition of restrictions surrounding their alienation. The policy zigzagged. At times emphasis has been placed upon conserving Indian lands; at otber times the trend has been toward encouraging their sale to non-Indians.
The extent of the power of the Government over an Indian while he is sti II under Federal protection is illustrated by the fact that Congress may reimpose restrictions on property already freed from restrictions, or delegate such power to an executive officer. This power includes permitting alienation upon such terms as Congress, or the Federal officer delegated the power, deems advisable from the standpoint of the protection of the Indian. If Indian land is sold in violation of restrictions, despite the gobd faith of the grantee of
3
the land conveyed, the conveyance is void. Such restrictions, however, cannot
be made retroactive so a.s to invalidate a conveyance made by an Indian before
the restriction was imposed. Congress determines the time and extent to which
such controls over restricted or trust property shall be lifted, and such controls
or guardianship have continued even though Indians have become citizens.
Despite these limitations, individual Indian land, like any private prop
erty, cannot be taken from the Indians without due process of law. An allot
ment may be condemned for public service if just compensation is paid. While
the restriction on alienation may be lengthened or shortened by Congress,
the provision that the land should be nontaxable is often a vested or property
right which binds the state and Federal governments. The same general prin
ciples concerning the power of Congress over restricted lands apply to indi
vidual funds . In 1901 Congress enacted a law permitting the condemnation of
lotted Indian lands for a public project, like a dam site or military camp, which
Congress has sometimes passed laws for the acquisition of tribal and al
lotted Indian lands for a public project, like a dam site or military camp, which
provide that the Government officials involved should seek to reach an agree·
ment with the Indians on what payments should be made for the lands .
If an agreement cannot be reached, the United States may file a declaration
of taking and seize the property. A jury (if requested), aided by a judge, after
hearing the appraisals of experts would then make a finding of the fair value
of the property at the time of the taking . This means the cash price that the
land would bring if neither the seller nor buyer were compelled to make a con
tract of sale . The same tests would be used in the court for Indian and non
Indian property. In such actions the United States Attorney represents the
Government. The Ind ian can reta in a lawyer of his own choice . The Govern
ment sometimes will provide counsel to help the Indian rece ive a square deal
when restricted or trust property is involved .
The principle of Federal protection of the Indian, especially his land,
applies to the purchase price of land. In this way various types of tribal and
individual funds are subject to Federal control. The individual Indian's funds,
which are also subject to control, are usually derived from the following
sources: l. Proceeds, including income, from restricted allotted lands.
2 . Tribal funds individualized by per capita distributions to the Indians .
3. Payments from the Federal Government in money or goods in satis
faction of treaties-often in payment for land taken by the Govern
ment. 4. Payments of damages for loss of property.
5. Proceeds from the sale of restricted crops and livestock.
In recent years there has been some relaxation by Congress and the In
terior Department of the extensive control over funds. Individual Indian ac
:: coutitsw.hich are small have been closed and the proceeds paid to the Indians.
Some of the tribal funds held in the treasury of the tribe may be spent by
tribal councils under their constitutions, which often require Secretarial ap
proval for the expenditure of very Iorge amounts but without the necess ity of
Congressional appropriations. Congress has also permitted a few tribes to
spend funds in the United States Treasury without the usual requirement of a
special Act of Congress for each expenditure . The Secretory of the Interior
must approve such expenditures.
7. CONGRESS: Membership
The United States may assume full control over Indian tribes and deter
mine membership in the tribes for the purpos·; of distributing funds in lands
and adjusting rights in tribal property. As port of its power to administer
tribal property, Congress may change the ordinary rule that tribal property
may be distributed only to tribal members . In the exercise of this power a
Federal low provides that children born of a marriage of a white man to on
Indian woman, who was a member at the time of her death, shall hove the
some rights and privileges to the property of the tribe as other members. En
rollment alone does not give a vested right in tribal property, and Congress
may, therefore, direct a per capita distribution on the basis of a new tribal
roll, even though inconsistent with prior lows and treaties with the tribe.
8. CONGRESS: Boards
Congress may establish boards or commissions to handle certain phases
of Indian affairs. For example, the Indian Arts and Crofts Boord was es
tablished in 1936 to promote the economic welfare of Indians through the
development and marketing of Indian arts and crofts. The Indian Claims
Commission was created in 1948 to determine claims of Indian tribes against
the Government. Congress frequently authorizes a board or official to determine con
troversies arising out of Indian relations, such as the power to determine
membership. If, as is usual, this board or official is granted the sole power of
decision, the Federal courts cannot reexamine their findings unless there is
very clear evidence of freud, mistake, arbitrary action or a denial of a full
hearing.
1. ADMINISTRATIVE: Establishment of Indian Bureau
The Indian Bureau was first established in 1826 in the War Department .
It was transferred to the newly created Department of the Interior in 1849.
At the beginning the objective of the Bureau was to make treaties with the
~ndians whereby they would give up the lands that the settlers wanted , to reg
ulate trade with the Indians, to provide for t heir removal from lands wanted
by the settlers, and to civilize the Indians through manual training, agri
culture and mechanics. Later the reservat ion pol icy of concentrat ing large
numbers of Indians on smaller lands was followed. This was desirable because
if the Indians continued to hunt and f ish and live a nomadic life they used
5
more land than if they settled in a small reservation and were fed rations to keep them from interfering with the non-Indians.
It is clear that the Indian Bureau policies were mainly directed in accordance with statutes passed by Congress to protect non-Indians and assist the pioneers in the conquest of the West. It was deemed desirable to help the Indians by rations and otherwise only as a means of pacifying them and securing their lands. Later it was thought desirable to break up their tribal organizations, customs and communal lands as a means of liquidating the Indian problem. Citizenship was gradually granted to most of the Indians, and by 1924 all Indians born in the United States were citizens. This created an
.anomalous condition. At the beginning the Indian Bureau could function as the agency for the United States in an endeavor to help the citizens of the United States in their relations with the dependent Indian tribes. Now the Indian Bureau became the representative of two groups of citizens.
2. ADMINISTRATIVE: Organization and Activities of Bureau
The Bureau of Indian Affairs, or the Indian Service as it is frequently called, performs most of the functions of the Government with respect to Indians. Its principal work is performed in 26 states and Alaska. It provides educational facilities through the operation of about 250 day schools and 50 boarding schools. The Bureau furnishes medical services to Indians through about 60 hospitals and many clinics. It also assists tribal officers in maintaining law and order and furnishing social services. An important part of its program is to provide assistance for agriculture and stock raising (extension work and loans), buildings and utilities, land management, soil, forest and wildlife protection and management, and the development and conservation of natural resources.
The Bureau's functions are mainlyexercised through more than fifty field offices, each covering one or more reservations, comprising about eleven thousand employees, under a Central Office in Washington, D. C., of about two hundred employees. In recent years the pol icy has been to delegate increased powers to the field officials. A typical field office is headed by a superintendent. His principal aides are the heads of the larger divisions, such as administration, education, health, engineering, which covers irrigation, construction and roads, welfare, law and order, and resources, which includes forestry, soi I and moisture conservation, land and extension and credit. Thus, an Indian agency virtually duplicates the principal public services rendered by the Federal, state and local governments for non-Indians. The administrative offices, hospitals, schools, water and heating plants, and employees' homes furnished by the Government are usually grouped together in a little settlement located in a small town near the center of the reservation. Ten schools and five hospitals are located off the reservation aside from Alaska, which is organized as a single jurisdiction.
6
3. ADMINISTRATIVE: Source of Services to Indians
Manyof the Federal services to Indians grewout of treatyprovisions. Most of the treaties, even the earliest, contained Government promises to help the Indians learn the white man's culture by affording the benefits of general education or .training in mechanical or industrial arts like blacksmithing, farming and milling. A much cited provision in the treaty with the Navaho provides that in return for the Indians bringing their children to school the Federal Government would furnish for 1 0 years one teacher for every 30 pupils. The Federal expenditures for Indian education rose rapidly after the Civil War when many non-Indian reservation schools were first established. About a third of the Bureau's budget is now spent for educational purposes.
Appropriations for health services to Indians, which is the most costly Bureau function next to education, began in 1832. While the army medical staff provided some treatment to Indians during the army control, the first hospitals were established under civilian administration between 1880 and 1890. In 1924 a division of health was established in the Indian Bureau. While the regulations permit the charging of fees for medical, dental and hospital service, if the Indians cannot afford to pay such charges, they need not be charged. Such charges amount to only a few thousand dollars per year. Indigent Indians recognized as tribal members are admitted without cost to hospitals, and in tribal hospitals supported by the tribe all tribal members are entitled to free hospitalization. Priority of admission is based on the necessity for hospitalization and the degree of Indian blood. White wives of Indians, Indian children from Government schools, Indian widows of whites or of nonrestricted Indians, if residing on reservations, are eligible for admission. Indian wives and children of white men are not admitted unless residents on reservations and participants in tribal affairs.
The common belief that Indians receive rations from the Federal Government is false. At the present time, when relief is given in the form of food and supplies, labor is required of the recipients wherever possible. Relief is frequently given in the form of supplies, food and clothing, rather than cash. All the states except New Mexico and Arizona provide the Indians with sociat security benefits. Direct aid is thereby furnished for needy who are aged, children or blind.
The first Government irrigation project on Indian land was begun in 1867 at the Colorado River Indian Reservation in Arizona. At first the Government paid for all these costs. In 1914, however, construction charges for
irrigation work became reimbursable on the basis of individual benefits re
ceived. To meet the difficulties of collection of these assessments, a statute
known as the Leavitt Act was passed in 1932 which authorized the Secretary
of the Interior to adjust and eliminate reimbursable charges due from Indians
or tribes of Indians. All uncollected irrigation construction charges were
7
cancelled and no more assessments of construction charges should be made
so long as the lands remain in Indian ownership. The Indians are liable for operation and maintenance charges, but under
an act passed in 1914 an agency superintendent may secure their deferral if
the Indian is indigent. Such charges become a lien on the land and makes
sale more difficult if the Indian later secures a fee patent. Credit and forestry management services had their inception in 1908.
Federal credit to the Indian was greatly expanded by the Indian Reorganiza
tion Act. The revolving credit fund was then established, which is used for
loans to Indian tribes and organizations and to a lesser extent to individual
Indians. Loans are made for various business, industrial and agricultural
purposes. Several tribes have supplemented this fund by establishing tribal
loan funds. The Government's loan system to enable Indians to receive a high
school or college education has also been similarly supplemented . The major divisions which direct the Bureau's economic program were
founded in the 1930's.
4. ADMINISTRATIVE: Delegation
Congress has delegated much of its power over Indians to administrative
officials. The use of vague terms in Indian law.~ like guardianship and ward,
and the fact that the relationship between the Bureau and Indians for a long
time was that of conqueror and conquered have caused some officials to be
lieve that they were in fact, dictators. It is true that Congress has delegated
very broad power to administrative authorities, but they act without authority
unless vested by a Federal law with express or implied authority. One of the important ways in which the administrative power is exer
cised by the central office of a Bureau is by the making of rules which have
the force of statutes. To be effective, rules which apply generally and do not
merely concern the internal management of the Bureau must be published in
a daily publication called the Federal Register. This requirement was laid
down by the Administrative Procedure Act. Another important power is to interpret the meaning of a law. The views
of the executive department charged with its administration, will usually be
followed by the courts, especially if the construction is consistent over a long
period of time. This rule is especially applicable if considerable property is
affected by the interpretation. At one time many statutes gave express power over Indian affairs to the
President. Most of the recent statutes refer to the Secretary of the Interior,
while some refer to the Commissioner of Indian Affairs or his authorized rep
resentative. As the functions of government increased in number and com
plexity, it became clear that the Secretary or even the Commissioner could not
perform all the duties required of them by a statute, and that even the burden
of signing many papers was excessive. Powers which are merely ministerial or
routine can be delegated by the Secretary or the Commissioner even in the
8
absence of an express delegation statute. Discretionary authority/ which often requires a difficult choice of what to do/ presents a more complex problem. To remove any doubt on the question of what could and what could not be delegated/ Congress in 1946 passed a law permitting the Secretary to delegate any of his power regard ing Indian affairs to the Commissioner and the Commissioner to subdelegate to his principal aides in the central office in Washington and to his administrative assistants in the field . The statute requi res
1 however
1 that the Secretary pub I ish the rules set
ting forth how delegated powers should be exercised. It also provides for appeals to him from the decisions of his subordinates. An important power wh ich has been delegated to f ield officials is the power of the Secretary of the Interior to enter into contracts with states/ territories and private nonprofit institutions for the education/ medical attention/ agricultural ass istance and rei ief of Indians. Fed era I moneys and Federal foci I ities
may be turned over to such state or private agencies.
5. ADMINISTRATIVE: Tribal Lands
(a) Acquisition .
At one time the President and Secretary of the Interior, as well as Congress, were able to establish Indian reservations, but since 1927 the boundaries of a reservation created by an executive order for the use and occupation of the Indians cannot be changed except by an act of Congress. There ore two laws which affect this rule. Temporary withdrawals of public land may be made by the Secretary of the Interior, and reservations may be established in Alaska with the consent of the affected Indian communities. The Secretary, except in the states of Arizona and New Mexico, may acquire lands for Indian tribes under two provisions of the Indian Reorganization Act, one permitting the restoration to tribal ownership of surplus lands on Indian reservations formerly open for sale, and the other by acquiring lands through purchase, gift or otherwise, inside or outside of reservations .
(b) Alienation .
It is well recognized that the Indian tribes own land in their possession and hove the right to dispose of such land . Many laws, however, prescribe the manner and terms under which Indian land may be sold, leased or otherwise disposed of. The first Indian Intercourse Act passed in 1790 provided that all alienations of Indian land shall be made through some public treaty authorized or executed by the United States. Such treaties generally provided for the sale of Indian land to the Federal Government/ but in a few cases pr ivate individuals were designated as the purchasers.
Apart from treaties many laws provide for the sale or lease of Indian lands. Usually/ but not always, the consent of the Indian tribe or individual owner is required for the sole or lease of Indian londs1 timber or minerals. There are sometimes a few exceptions to this requirement. For example
1 the
9
Indian Right-of-Way Act of 1948 req uires consent except in a few special cases as when the heirs of a deceased owner of the land have not been determined, or the owners are so numerous as to make consent impracticable.
6. ADMINISTRATIVE: Membership
The Secretary of the Interior or an administrative board, like the Dawes Commission, has frequently been granted the power to examine and determine questions of fact concern ing tribal membership. In the absence of fraud or arbitrary action, the court wi ll not issue a writ of mandamus or order against such officials if the quest ion involves the exercise of judgment or discretion. Such an order may be i.ssued in a proper case to compel an oHicial to perform a ministerial or routine act.
TRIBAL PROPERTY Right of Discoverer to Land
Discovery was the ma in basis for the claims of France, Great Britain and other countries to various portions of land in the New World. When touching new land for the first time, the explorers would claim it on behalf of the king of their native land. Under international law, the country discovering new territory gains the legal title . Hence, such title in Indian lands in the territory of the original thirteen colonies usually rests in the state wherein the lands are situated. In the rest of the country, it is usually in the United States. The Federal Government has the sole right to extinguish equitable or Indian title, which is the right to continue to use and occupy the land in their possession. Extinguishment of title can be effected by conquest, purchase, or abandonment. Indian title cannot be sold to anyone but the United States without the consent of the Congress, either automatically by the passage of a law or by authorizing a Federal official like the Secretary of the Interior to make the sale . Extinguishment also takes place automatically if the natives leave the land permanently in order to make a new home elsewhere. This is called abandonment.
Rights of Individual Members in Tribal Property An individual member of a tribe cannot ordinarily sell, devise, mortgage
or otherwise dispose of his share of tribal property, unless and until this property is actually divided among the membership by allotment or by distribution of funds . Thereafter it is individual and not tribal property. The individual member generally loses his right to share in the tribal property when he loses or abandons his membership or dies. Hence, if his children are not members, they cannot ordinarily share in any distribution of tribal property. There are three major exceptions to this general rule: ( 1) The improvements of a member on tribal land have been recognized as his . (2) In some tribes, like the Eastern Cherokee Band of North Carolina, a member who is assigned land has been granted by the tribe the right to transfer or sell his rights to another member of the tribe . (3) Some of the tribes have permitted
10
0 member assigned a tract of land to designate on heir to the land upon his death .
While generally only a · member is entitled to a share in tribal property, there are several statutes and treaties which guarantee to certain Indians who leave the tribe the right to share in tribal property. The most important provisions of this kind ore found in four lows passed between 1875 and 1897. This period was the climax of strenuous efforts of the Government to induce Indians · to leave their tribes and become formers in conformity with the white man's civilization. These laws protect the important tribal rights of Indian ollottees, homesteaders, Indian women who become citizens of the United States by marrying a citizen, and the children of on Indian woman who married a white man.
Triba l Lands Sometimes Treated As Public Lands
Indian tribal lands ore not public lands for most purposes, but since the United States owes certain protective responsibilities to many tribes by treaties and agreements with them, Indian tribal lands hove for some purposes been t reated as public lands when such treatment is beneficial to the Indian tribe concerned. For example, tribal lands may be considered public lands of the United States for the purpose of erecting Federal buildings thereon, at least where Congress has directed such action or where the tribe itself has consented to it. This is contrary to the usual rule that the United States will not erect buildings on private land . Indian lands occasionally hove become subject to certain lows affecting the public domain . In one case this was harmful to the Indians-the Popogo Indian Reservation was mode subject to the mineral leasing lows of the United States in 1934, with the result that the Papagos have lost a great deal of land to prospectors.
Ownership by More Than One Tribe
Ordinarily, there is merely one tribe involved in the order setting up reservations. This rule was broken occasionally during the period in which the United States was trying to segregate all Indians on smaller tracts of land . The Shoshones recovered a Iorge judgment against the United States because, without their consent, another tribe, the Arapahoes, were placed on their lands. In the case of a reservation estobl ished in 1882 for the Hopi I ndions, and others who may be settled there by the Secretory of the Interior, it has been held by the Solicitor of the Department of the Interior that any Navahos who settled on the land prior to the approval of the Hopi constitution by the Secretory of the Interior, and their descendants, could continue to use and occupy the reservation lands.
Title by Aboriginal Possession, Treaty, Statute and Purchase
Much Indian title is derived from aboriginal possession, that is, possession at the time of the coming of the whites, or as an exchange of their
11
original lands for other lands. This might be done by treaty, by law of Congress, or by an act of the Secretary of the Interior or some other Federal official. A formal action of the Government is unnecessary; possession from time immemorial is enough.
Congress has sometimes authorized the purchase of lands for an Indian tribe . The Secretary of the inte rior is authorized to make temporary withdrawals of su rpl us land of Indian reservations from other disposition until the matter of pe rmanent restoration of ownership to the tribe under the Indian Reorganization Act may be given consideration. While the two major methods of establishing an Indian reservat ion by statute were the withdrawal of public lands and the purchase of private lands, sometimes, as in the case of the Arizona Boundary Act, provision i.s made for the sale of private lands in exchange for public lands, and the public lands are made part of the reservation .
Executive Order Reservations
The practice of establish ing Ind ian reservations by executive order of the President or Secretary of the Interior goes back at least to 1855. There was some question of the power of the President and the Secretary to do so, and the Attorney General upheld its legality in 1882 chiefly on the basis that the practice had been followed for many years and Congress had not objected. The General Allotment Act of 1887 made these reservations legal, and for many purposes, executive order rese rvations have the same validity as statutory reservations.
At the present time neither the President nor the Secretary of the Interior can change the boundary of a permanent Indian reservation or establish new Indian reservations except in Alaska . Under the Alaska Welfare Act, a reservation may be established by the Secretary in that Territory, provided the natives vote their agreement. It has been held by the Supreme Court that such reservat ions of pu blic lands, including coastal waters, as well as certain other executive reservations, do not convey any permanent right of use and occupancy on the Indian beneficiar ies, and hence Congress or the President may end such rights without being liable for compensation. There may be one exception to the rule . By 1949 the courts have not yet passed on the meaning of the provision in the Indian Cla ims Commission Act allowing claims based upon fair and honorable dealings that are not recognized by any existing rule of law.
Purchase of Land by Tribes
Tribes can purchase land from private parties or allotted lands in heirship status by using funds in their own treasury. Such lands are within the protection of the Federal Government, so that adverse possession cannot deprive the Indians of such land . It has been held that the lands used and occupied by Indians in the Florida or the Louisiana territory, borh of which were purchased by the Federal Government, have the same status as the lands which the United States acq ui red by conquest.
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Extent of Tribal Rights in land
When a reservation is established by a treaty or statute, the tribal rights
secured to the occupants of the reservation depend upon the language or
purpose of Congress . Ambiguous laws or treaties are interpreted in the light
of the circumstances of the group for whose protection they were passed.
Hence, if the group are fishermen, the intention to include their fishing
grounds wi II be assumed if the statutory language is not clear. Where it is
doubtful whether a general law was intended to apply to Indians, the courts
will generally hold that it does not, if the law would hurt the Indians. Since
Congress may dispose of lands of the United States, it may convey to or
recognize such rights in the Indians as it deems just, even a title equal to fee
simple . In fact, the only clear distinction between most Indian title and a fee
simple is that Indian lands are subject to statutory restrictions upon aliena
tion.
The tribe owns the sub-surface or mineral rights, as well as the timber
growing on tribal land, unless there is some specific language in the papers
creating the reservation to the contrary. There is a general law passed in 1910
that mature, living, dead or "down" timber on tribal lands of any Indian res
ervation may be sold under regulations prescribed by the Secretary of the
Interior, and the proceeds of such sale may be used for the benefit of Indians
of such reservation. This act does not apply in the states of Minnesota and
Wisconsin. In 1926 Congress provided that any proceeds derived from such
sale should be credited to the funds of such tribe in the United States Treas
ury.
Tribal Water Rights
The early treaties with the Indians seldom mentioned and never defined
water rights. The Indian way of life, however, was built to a large extent on
fishing and hunting, and later, on agriculture. Hence, it was essential that
the tribe be assured some right to the waters within or on the border of the
reservation. The Federal Government has the power to reserve the waters
flowing through the territories, and except them from appropriation under
the state laws. The Supreme Court of the United States in the Winters case
held, on January 6, 1908, that where land in a territory in a dry region was
reserved by treaty to an Indian tribe, there was reserved for the use of the
Indians, waters of the streams of the reservation necessary for the irrigation
of their land. Hence, a sufficient amount of water from the Milk River,
which flows on the Fort Belknap Reservation, North Dakota, could not be di
verted by settlers on the public lands above and outside the reserve so as to
prejudice the rights of the Indians to irrigate the irrigable land of such res
ervation or such part of the land as the Indians reasonably might be expected
to use. Nevert-heless, the extent of the reserved water right depends to a great
degree upon the amount of water which the Indians actually use. The Indian
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water rights may be lost if the water is not used after a sufficient period of time and is needed by others elsewhere .
Tribal Right vs. State Right in Navigable Waters Unless navigable waters, that is, waters which are deep enough for com
mercial boats, have been reserved to the tribe in a territory when the reservation is set up, the Indian tribe merely has the right of use together with citizens of the state. Where unreserved, the title to land underlying navigable waters passes to the state upon its admission, while title to land unde.rlying unnavigable waters remains in the United States.
Irrigation Charges Allottees and tribes need not pay the construction charges of irrigation
works, but the unpaid charges become a charge on the land which must be paid before it is sold to a non-Indian . The Indian is liable for the operation and maintenance charges; but, if he is indigent, these payments may also be postponed. In this case they, too, become a charge on the land.
Tribal Conveyances Most of the colonies, at least since 1633, provided that Indians could not
convey their lands without the agreement of certain colonial officials . Federal laws from the beginning of the nation have prevented such sales without the permission of the Congress. Treaties and statutes contain provisions for the conveyance of tribal lands. In some cases Congress has provided for the sale of tribal lands to a particular company and has even sometimes fixed the exact price of the conveyance. Unless this price is the highest that the Indians can secure, such a stipulation is unfair to the Indians. Furthermore, it is often desirable to provide in such a law that the land would revert to the Indians in case it is no longer used for the public purposes, for which the conveyance is justified before the Congress.
Pressure by whites, aided by state and Federal officials, frequently was the main factor in inducing Indians to sell their lands, or exchange them for other lands. For example, after the passage of the Federal Removal Act in Jackson's Administration, the Cherokees were told that if they did not sign treaties agreeing to sell their lands in Georgia and remove to the Indian Territory, the Federal Government would place them under state law. Furthermore, the Federal officials made no attempt to protect their lands from trespass by non-Indians, which was often encouraged by state officials.
Tribal Right to Receive Funds-Claims The principal source of tribal income, at least since the Revolution, has
been the sale of tribal resources-chiefly land, timber, minerals and water power. A few tribes or groups, like the Menominees of Wisconsin, the Shoshones of Wyoming and the Indians of California, have recovered large judgments against the United States for its failure to protect lndion resources. The Indians lost the first few cases tried by the Indian Claims Commission on
14
the ground of res adjudicata, which means that the claim had previously been dec ided by another court, the Court of Claims, against the Indians.
Tribal Right to Spend Funds in Treasury Tribal funds in the Federal Treasury must be expended by authorization
of an act of Congress . There are two major exceptions to this rule . Without a special appropriation by Congress, but with the approval of the Secretary of the Interior, ( 1) A few tribes may use their funds for purposes they wish, (2) Indian Bureau officials may expend tribal funds in the Treasury for the following purposes :
(a) Equaliza t ion of allotments . (b) Education of Indian children in accordance with law. (c) Per capita and other payments. (d) Insurance . (e) Expenses of tribal councils, committees or delegates up to the
amount allowed by Congress for this purpose in the annual appropriation acts. However, other tribal funds which are not in the Treasury may be used by the tribe, subject to limitations contained in the constitutions and charters and in tribal loan or trust agreements with the United States.
INDIVIDUAL RIGHTS IN REAL PROPERTY In the beginning, most Indian tribes had all their land in tribal owner
ship. This is still true of most of the reservations in the Southwest. On most of the northern reservations and in Oklahoma, Indian lands are held in varying degrees of individual ownership. There is some land in tribal ownership in most of the resevations . Today there are about 20,000,000 acres of allotted lands and about 36,000,000 acres of tribal lands .
Allotment Allotment means the division of tribal lands among individual members
of the tribe . For over fifty years prior to the passage of the General Allotment Act, or Dawes Act, in 1887, various treaties and statutes provided for the breakup of tribal lands and tribal existence by means of allotment. From 1887 to the 1920's, allotment was the keystone of Federal policy-the main means, it was hoped, to break up the tribal organization and property, and assimilate Indians into the main stream of American life and culture. The basic provision of the General Allotment Act was the authorization to the President to allot land to Indians living on reservations whenever, in his opinion, the reservation or any part thereof might be advantageously utilized for agricultural or grazing purposes. The agricultural allotments could not exceed 80 acres; the grazing land, 160 acres; and the irrigable land (capable of irrigation without too much expense), 40 acres. In addition to the 1887 Act, Congress passed special acts authorizing the allotments of land on specific reservations. The 1887 Act also provided for the allotment of unappropriated public lands to Indians not residing on reserva.tions who otherwise could not receive an allotment. An Indian could not be a
15
member of more than one tribe for this purpose and accordingly could not
have allotments on two reservations . The Indians themselves had the right to
make t,he allotment selection. Heads of families could select for their minor
children and the Indian agent for orphan children. A preferential right was
given to Indians in making a selection of land which they occupied and on
which they had made improvements prior to the passage of the act entitling
them to allotment. If an Indian failed to make a selection within four years
after the President authorized the allotment of a particular reservation, the
Secretary of the Interior could direct the allotting agent of such tribe to moke
a selection for him. Patents in Fee
Restrictions on alienation run with the land, and hence even though a
restriction is removed on one allotment, the other allotments of the individual
Indian will still be subject to the restriction. After an allotment has been ap
proved by the Secretary of the Interior, the present law provides that the
allottee may apply for a patent in fee before or at the end of the trust period .
If granted, he is entitled to absolute ownership of the property, i.e. like or
dinary white-owned land . It can be sold or leased without Government ap
proval. In many cases, patents in fee were given without the consent of the
Indians. In 1909 Congress authorized the Secretary to cancel any such pat
ents of unsuitable land and the exchange therefor of other land.
In contrast to trust patents, other allotment acts provide for the issuance
of restricted fee patents. These contain a clause that the land shall not be
alienated without the approval of the Secretary of the Interior. Application
may be made for the removal of this restriction, and upon approval thereof,
the allottee also has full rights of a white owner. This type of land holdings
was used frequently in Oklahoma.
An allottee ordinarily acquires, by virtue of his allotment, full posses
sory rights with respect to the improvements and the timber upon his allot
ment, as well as the minerals beneath it. Occasionally special allotment acts,
like the Osage Allotment Act, provide for the reservation of the minerals to the
tribe. Until he is granted a fee patent, or the restrictions are removed, allotted
lands while held in trust by the United States cannot be sold by an Indian with
out the consent of a Federal official. It was soon clear that the hope of the
allotment policy that the Indians would be able to exercise wisely the ownership
of their land at the expiration of 25 years, or as extended by the President,
was too optimistic. Ending of Allotment Policy
The basic land policy of the Indian Service is to save Indian land for the
greatest degree of Indian use and to conserve and build up the land. In line
with this objective, the Indian Reorganization Act ended the allotment of
Indian lands, postponed indefinitely the ending of the trust period of existing
16
allotments, and authorized the Secretary of the Interior to enlarge Indian
lands by restoration of surplus lands and by purchase, and to establish a
policy of sound range and forest management.
Freedom from Encumbrances
The United States agreed to turn over to the Indians at the end of the
trust period land free and clear of all encumbrances. Mortgages on re
stricted lands are prohibited. Mortgages on growing crops have been upheld .
Restricted lands cannot be encumbered by judgments entered against an al
lottee, whether based on tort or contract. Contracts providing for the sale of
allotted lands are void, and any molley received by an Indian is not returnable
to the attempted purchaser, even though he paid the money in good faith and
the Indian acted in bad faith with the intention of deceiving the purchaser.
The inabi I ity to mortgage trust or restricted property is one of the reasons why
many Indian veterans are unable to secure a loan from banks and credit con
cerns and thereby secure some of the benefits of the Gl bill of rights. The
Federal Government guarantees part of the loan, but if the Indian lacks suf
ficient security, many private lending companies refuse to make loans.
At the death of an allottee if there is no will governing the allotted prop
erty, it descends in accordance with the state laws, which are administered
by officers called Examiners of Inheritance. After the heirs have been deter
mined, the Secretary of the Interior may have the lands partitioned or divided .
However, the IRA authorizes the Secretary of the Interior to approve ex
changes of allotted lands of equal value whenever such exchange, in his judg
ment, is expedient and beneficial for the proper consolidation of Indian lands
and for the benefit of cooperative organizations.
Restricted Funds
The trust or restriction attaches to the proceeds of the sale of an allot
ment which may not be spent without the approval of the Secretary of Interior
or his authorized representative . The funds derived from the proceeds of the
sale may be invested in other lands. The Secretary, as a part of his approving
powers, may require that the deed contain a clause restricting the land
against alienation without his approval.
TRIBAL AND ALLOTTED LANDS-PROTECTION AND LEASING
While most of the laws dealing with tribal and allotted lands have been
treated in separate sections, it would be helpful to discuss some rules of law
which apply in whole or in part to both tribal and individual Indian lands I ike leasing, condemnation and trespass. '
Leasing of Indian Lands
At one time, there was a general prohibition against leasing by the tribes
or individuals of their lands, but beginning in the last quarter of the nine-
17
teenth century, various authorizing statutes were passed . Some of them dealt with particular tribes, but beginning in 1891 some general statutes were passed for leases of tribal lands for varying length of years.
Indians, as individuals or as tribes, are prevented under existing law from leasing their restricted lands for periods longer than five years in cases where the lands are to be used for religious, educational, recreational, business or farming purposes. The principal exceptions to the limitation are : (a) lands in the State of Washington, which may be leased for periods of 25 years for these purposes, except farming, (b) lands in any state which are capable of irrigation may be leased for periods of 10 years for farms, under certain circumstances, (c) lc:inds belonging to incorporated tribes may be leased for a period of 1 0 years for such purposes as are permitted by the tribal charter, and (d) land may be leased for mining so long as incomeproducing minerals are found.
In February of 1948, the Interior Department adopted regulations which enabled individual Indians to make their own leases and collect their own rentals for themselves and their minor children. Indians shown to be incapable of managing their own affairs may have this privilege taken away, and then the old system would again be followed, whereby the superintendent made the lease, after advertising, to the highest and best bidder. The superintendent still executes leases for incompetent Indians, minor allottees and nonresident allottees whose whereabouts are unknown.
Permits
In cases where a lease cannot be made, permits may be granted by the tribe for the use of tribal land. A permit, unlike a lease, does not give any interest in land to the permittee and may be revoked at any time .
Who Owns Improvements?
The ordinary rule of law is that if a person to whom land is leased or permitted makes improvements on the land, they belong to the owner of the
land at the end of the term. The one exception to this rule is that the lease
or permit may contain a provision whereby the lessee or permittee may re
move or continue to have the ownership of the improvements. This is one of the reasons why when land is leased for certain purposes, such as farming
operations, which require considerable improvements in the lands before a
profitable crop may be secured, the lessee may not be willing to take a short
term lease on the premises. Sometimes churches, missions and local govern
ments hesitate to erect a permanent building unless they are assured of a long
tenure or are allowed by a Congressional act to buy the land on which the
church is to be built or the improvements are to be made. That is why a gen
eral bill authorizing certain leases for 25 years is advocated by the Indian
Bureau and many Indians.
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Trespass
Until recently, the American Indian policy was largely designed to settle problems arising out of the relations between settlers and traders and Indians. Many treaties and laws contain provisions to permit the Indians to live by themselves and without interference from whites . The problem of keeping off Indian lands those individuals who might harm the Indians is still important in some places. The Nonintercourse Act of June 30, 1834, imposed criminal penalties on those who should, without Federal authorization, trade with the Indians, enter the Indian country, purchase Indian lands and settle t·hereon, drive livestock on Indian lands to graze, introduce intoxicants or publish or distribute in the Indian country any statement that might tend to disturb the peace. Some of these laws have been repealed, including the provision interfering with free speech, and a later provision authorizing the Commissioner of Indian Affairs to remove from the reservation detrimental persons.
A provision appears in the Indian Appropriation Act of July 4, 1884, for the allotment to Indians of lands on the public domain of the United States. This principle is the opposite of the Removal Act of 1834 and provides for assimilation instead of segregation .
Today, a trespasser on tribal land may be compelled to leave by the officials or members of the tribal council, acting in accordance with a tribal ordinance. Just like any other land owner, Indians may use such reasonable force as is necessary to remove persons going on their land unlawfully. In a proper case, the United States Department of Justice, at the request of the Indians, acting through the Department of the Interior, will bring an ejectment action against a trespasser. In a very rare case, if a person trespasses frequently and the suit for damages or ejectment proves inadequate, an injunction may be sought from the court by the Indians or the Government to prevent the trespasser from staying or coming on tribal land.
Congress has passed two special laws offering protection against trespasses on Indian land by stockmen or ·hunters . One law provides that persons driving stock to feed on land belonging to any Indian or Indian tribe without the consent of the tribe are liable for a penalty of one dollar for each animal of such stock. Prosecution will not usually be brought unless there is clear evidence showing the ownership of the trespassing cattle and other data showing exactly the time and place of the trespass.
The other special statute provides that any non-Indian within the lands of any Indian tribe with whom the United States has existing treaties who hunts, except for subsistence, in the Indian country is subject to forfeit all traps, guns, and ammunition in his possession, and all pelts so taken, and shall be liable for an additional penalty of $500. This law is difficult to enforce.
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Sale of Trust Livestock
Restricted funds may be used by the United States to purchase trust or
restricted livestock. These animals are purchased for or issued to an Indian
or an Indian organization by the United States. Title to the cattle and their
issue is held in the United States in trust for the Indian and Indian organiza
tion and must be branded ID by the Indian. An Indian or non-Indian commits a
crime when he sells restricted or trust livestock without a permit from the Res
ervation Superintendent.
Condemnation of Indian Lands
Under the Federal Constitution, any lands, including Indian lands, may
be taken for Federal purposes if just compensation is paid. State and local
governments, however, cannot condemn Indian land without the permission
of the Federal Government. In 1901 Congress passed a law permitting the
condemnation of allotted lands. A similar law can always be enacted for
tribal lands. Indian lands are usually not taken for a public purpose, like a
dam or army base, without an attempt being made to reach a fair measure
of compensation by negotiation. Frequently, the Indian Bureau assists the
Government agency which desires land in dealing with the Indians, and some
times the Indian Bureau attempts to make a fair appraisal of the land in
question. If an agreement is not reached by the Indian tribes and the Indian
allottees involved, then it is necessary to take the matter into court, and the
Indian allottee or tribe will then merely receive the fair market value of their
land under the law of the state or territory where the land is located . The
Indian or tribe would then be awarded the same compensation as any other
person, white or Indian. Despite the fact that land may be more valuable be
cause it means more to the Indians than to the non-Indians, and despite the
fact that a treaty might be involved in the case, the same standard of value
would govern the Indian case and the non-Indian case. This means "just
compensation as of the date of the taking,"-the cash price that the land
would bring in a sale by a ready seller to a ready buyer. This has been ex
plained as meaning when one is willing, but not compelled, to sell to another
person willing, but not compelled, to buy. The law does not include money to
pay for hardships due to the loss of one's home or farm or other method of
making a living. A jury (if requested), aided by a judge, after hearing all the evidence,
including appraisals of experts, would make the finding of the fair value. If
the tribe feels that it is not getting a square deal because a treaty was vi
olated, it could sue before the Indian Claims Commission, if the taking took
place on or before August 13, 1946, and in the Court of Claims if subsequent
to that date. The Department of Justice defends the interests of the United
States in any claims suits. Even if the tribe negotiated and reached an agree
ment on the value of the land, it could include in the agreement the right to
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sue in the Court of Claims, or to petition Congress for additional sums of
money or land. Rights-of-Way
The Secretary of the Interior, with the consent of the allottee or tribe concerned, is authorized to grant rights-of-way across Indian lands for various purposes. The consent of the proper tribal officials is necessary when tribal lands are involved, which are covered by the Indian Reorganization Act. The individual allottee must consent to rights-of-way across his land, except if ( 1) the land is owned by more than one person, and the owners of a majority interest in the land consent to the grant; (2) the whereabouts of the owner of all or part of the land is unknown, and a majority of the owners whose whereabouts are known consent; (3) the heirs or devisees of a deceased owner of the land have not been determined, and the grant will cause no substantial injury to the land; or (4) it would be impracticable to obtain the consent of the owners because they are so numerous, and the grant would cause no substantial injury to the land. In all cases the owners shall be awarded adequate compensation.
Hunting and Fishing
State laws regulating hunting and fishing do not apply to members of Indian tribes on their restricted allotments within their reservation or on their tribal Indian lands. An excepion to this rule is that an Indian who has been granted a fee patent before 1906 is subject to the state laws, including the conservation laws. Furthermore, all the state laws, including the tax laws, apply to non-Indians, whether lessees of Indian lands, white traders within the reservation or Government employees, with the same force and effect as if they were off the reservation. An Indian is subject to state conservation laws (1) when hunting and fishing on an allotment from the public domain, (2) when outside the reservation (even when protected by a treaty provision, such as was made with many tribes in the Northwest, for ancient fishing and hunting places which are off the reservation) . Members of tribes protected by
such treaties may not be required to buy a state fishing license. These provisions give the Indians a property right, called an easement. Yet, they have not an exclusive right to fish and hunt, but merely a right in common with other citizens, on all lands within the reservation which, though formerly allotted, are no longer restricted or held in trust.
The Conservation Commissioners of several states have urged the Federal Government to extend state conservation laws to Indians while hunting or fishing on their reservations. For many years, the Department of the Interior has been endeavoring to secure the enactment of a law authorizing the Secretary of the Interior to establish conservation regulations for tribes which do not pass adequate laws for the protection of wildlife on their reservation.
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TAXATION There are two provisions in the Federal Constitution which refer to In
dians. The most important provision empowers the Congress to regulate trade
with Indian tribes. The other provides that "Indians not taxed" shall not be
counted for the purposes of determining the amount of representation in
Congress of the various states. In 1940 the Bureau of the Census concluded
that this phase was now obsolete because Indians paid a great variety of
taxes, Federal, state and tribal. Originally, Indians were not taxed because
they were not citizens of the United States and were not subject to the juris
diction of the state and local governments. They are now citizens of the
United States and the state where they live, and subject to many state laws.
It already has been pointed out that Indians on reservations are not subject
to state laws unless and unti I the Federal Government permits the state laws
to apply or the tribe adopts the state law as its law. Besides, when personal
property is bought by or for tribal Indians for use on the reservation to aid in
the Federal Government's policy of assisting Indians, the state cannot tax
such property. This freedom from taxation is due to an old principle of law
that a state cannot interfere with operations employed by the Federal Gov
ernment in carrying out its powers. Since tribal enterprises are frequently
instrumentalities of the Federal Government their property is not subject to
state or local taxation without the consent of the Congress.
Non-Indians living or doing business on these reservations are not cov
ered by this immunity. Hence, their personal property on the reservation and
their profits from leases on Indian lands may be taxed by the state or local
governments just as though they were off the reservation.
In general, the tendency of the courts, including the Supreme Court, is
to hold restricted Indians liable for the payment of certain Federal and state
taxes from which they were formerly exempt. These decisions are based on in
terpretations of laws and like the decisions in tax cases involving non-Indians
reflect the court's recognition of the increased governmental need for taxes.
Real Property Tax-Local, State and Federal
Tribal lands have never been held subject to real property taxation by
the local, state or Federal Government. Of course, land could be purchased
by the tribe with the express provision in a Federal statute that they were
subject to taxation. The Federal laws provide exemption from real property taxes on re
stricted individual real property, the title to which is in the individual Indian,
such as was the 160-acre allotments to the members of tribes in eastern
Oklahoma, and property held in trust for the Indians for a specified period
or indefinitely by the United States. Like most rules of Indian law there is
even an exception to this rule. Lands on the Omaha and Winnebago Res
ervations of Nebraska are subject to taxation but are not subject to sale for
delinquent taxes.
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When a tax immunity is offered to individual Indians by Federal law or treaty by way of inducement to a voluntary transaction, I ike the sale of other Indian land, the courts have held that the immunity becomes contractual in the sense that the individual Indians acquire a vested right to the exemption which even the Congress cannot take away.
State I nco me Tax
The revenue from tribal lands or restricted or trust lands is generally exempt from state income tax.
State Gross Production Tax The Federal Government has permitted the states to levy a gross produc
tion tax on the production derived from individual restricted or trust lands of the members of many of the tribes, including Osages, Five Civilized Tribes, Blackfeet, Crow, Kaws, Poncas and Pawnees. Most of these statutes were passed on the basis that the revenue from these lands was quite substantial.
State Inheritance Tax Except in a · few states, like California, Oklahoma and Washington, at
tempts have not been made to levy an inheritance tax on restricted Indian estates. This is due to the fact that most state laws do not tax inheritances which are valued at less than fifteen or twenty thousand dollars, of the heirs or devisees include a spouse or children. In Oklahoma, however, the restricted estates of the members of the Five Civilized Tribes and the Osage Tribes, with the exception of their nontaxable homestead, have been held subject to the inheritance tax laws of the State of Oklahoma. If a state cannot levy a real property tax on trust land, it cannot levy an inheritance tax on its transfer by death.
State Sales Tax
An Indian is subject to state sales taxes for purchases made off the reservation but not for purchases made on the reservation. However a non-Indian is subject to a sales tax on purchases made on the reservation, unless he buys from an Indian.
State Personal Property Tax
Restricted or trust cattle or other personal property used by Indians on reservations are not subject to state personal property taxes.
Federal Income Tax Unless an Indian can point to an express exemption in a treaty or statute,
he is liable for Federal income taxes for all income derived from restricted or trust property. Furthermore, the income of restricted Indians, from the investment of their restricted funds, is subject to the payment of Federal income taxes. The Bureau of Internal Revenue has ruled that income from the restricted homesteads of the Blackfeet, Creek, Osage and Seminole Tribes is tax-exempt. Reinvested income from such tax-exempt homesteads or other tax-exempt property which results in income or profits would be taxable; for
23
example, interest in government bonds or profits from cattle, which were pur
chased with such income. Federal Capital Gains Tax
When an Indian received an allotment of land as a distributive share of
the tribal property to which he is entitled, he is not subject at the time of the
allotment to an income tax because the distribution represents a part of the
capital assets of the tribe . An Indian who is permitted to sell by the removal of
restrictions or after the issuance of a patent in fee would be liable for Federal
income taxes on the difference between the value of the land when fully ac
quired and the sales price received, the tax being computed upon the capital
gain basis. That is to say, if he held the land less than six months after full
acquisition, the entire profit would be subject to tax. If the land was held for
six months or more, only 50 percent of the profit would be subject to tax. The
basic date of the valuation of property for the capital gain tax is figured as of
March 1, 1913, or the date subsequent thereto, if the property was acquired
after the former date. Federal Estate Tax
The Federal estate tax statutes in force at this time grant a basic exemp
tion of $60,000. Any Indian dying leaving an estate valued at less than this
figure would not be liable for Federal estate taxes. Shou·ld the estate exceed
this valuation, it would be subject to Federal estate taxes, excluding from the
computation of the tax the value of the descendant's 160-acres homestead.
Taxation of Tribal Enterprise
In general, the unemployment insurance tax and the Social Security taxes
are very beneficial. In most states the unemployment insurance tax is paid by
the employer and amounts to three percent of the employees' wages. The So
cial Security tax is paid, in part, by workers up to the age of 65. The
employer also pays a like amount of this tax. It has been held that Indian tribal
enterprises are generally subject to the Social Security taxes. The same de
cision may be expected with regard to state unemployment insurance taxes .
On May 1, 1939, the Treasury Department held that native-owned stores
in Alaska, owned and operated by groups of Indians who are "wards of the
Government," are exempt from Federal income tax under 26 U. S. Code, Sec
tion 101 (8), which exempts among others "organizations not organized for
profit but operating exclusively for the promotion of social welfare." It is be
lieved that Indian-chartered corporations, unincorporated tribes and bands are
exempt from Federal income taxes under the provisions of this section .
True cooperatives are non-profit as their earnings (savings) are returned
to members in the form of patronage refunds. Indian agricultu·ral cooperatives,
like other such cooperatives, are subject to income tax unless it can be shown
that not more than 15 percent of the amount of the purchases is from
non-members, and that the amount of the products marketed for non-mem
bers does not exceed the amount marketed for members.
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Returns
As most of the restricted Indians and their estates are liable to Federal taxes, every precaution should be taken in paying what a white man similarly situated would pay. Care should be exercised with reference to the filing of returns and the claiming of appropriate exemptions, and all necessary steps required by tax laws should be taken so that these Indians and their estates will not pay taxes which are not due or be subject to penalties for non-payment of taxes which are due. Tribal enterprises and corporations and other organizations whether claiming exemption or not should file annual returns and keep permanent books of accounts and records, including inventories, so as to show the items of gross income, receipts and expenditures. Such records should be available for inspection by the inspectors of the Federal Bureau of Internal Revenue.
WHAT IS AN INDIAN TRIBE? The q uestion of what is an Indian tribe has been discussed a great deal
almost as frequently as the subject of what is an Indian. Ordinarily the question of whether a tribe exists has been treated by the courts as a simple yes-orno question . Just as an individual may be an Indian for some purposes and not for another, so an Indian group may be a tribe for the purpose of a certain law and not for another law. Another similarity between problems involving what is an Indian and what is an Indian tribe, is that the term "tribe " like the term "Indian " is commonly used in two senses, an ethnological sense and a legal or political sense.
Groups that consist of several ethnoligical tribes, sometimes speaking different languages and having different customs, have been recognized as a single tribe for certain administrative and political purposes. For example, the Fort Berthold Affiliated Tribes are composed of three distict groups, the Arickaras,Gros Ventres and Mandans . They were placed together on a single reservation one hundred years ago. They act as a single tribe for most purposes and have a common tribal council, which operates under an l.R.A constitution and charter. The Flathead Indian tribes consist of a confederation of the Salish Tribe and Koutenai Tribe. On the other hand, a single tribe from an ethnological standpoint may sometimes be divided into a number of independent tribes in a legal sense. Examples of this situation are offered by the Sioux, the Chippewas and the Shoshones.
Most basic questions of tribal existence in a legal sense arise out of the meaning of the term "Indian tribes" in the grant of power by the Federal Constitution to the Congress "to regulate commerce with the Indian tribes .11 The application or constitutionality of congressional or state legislation affecting individual Indians often depends upon whether they are living in tribal rela tions within the meaning of the term "Indian tribes ." The courts have held that it is up to Congress and the Department of the Interior and not the judiciary to determine whether a tribe exists. Of course, neither the Congress nor the
25
Secretary of the Interior can act arbitrarily or unreasonably in this determina
tion. That is, they cannot call a community or body of people an Indian tribe if
"there is no basis in fact for such a holding. On the other hand, Congress and
not the courts will determine whether and to what extent and for what time a
distinctly Indian community will be recognized and dealt with as a dependent
tribe requiring the protection of the United States. For this reason, an attempt
by the state courts of New York to determine that the Oneidas have ceased to
exist as a tribe was set aside on appeal.
WHAT IS AN INDIAN BAND?
Sometimes it is necessary to determine what is a band. Many cases in
volving this point arose under the Indian Depredation Act of 1891, which gave
to the Courts of Claims jurisdiction over claims for property of citizens taken
or destroyed by Indians belonging to any band, tribe or nation at peace with
the United States. A band requires common leadership, independence of ac
tion and continuous existence, but it need not inhabit a particular territory nor
be a party to a treaty. The organization may be less permanent than that of a
tribe, but it must be of sufficient strength to be capable of waging war. Some
times the band came into existence for the purpose of waging war against the
United States. This was true of several Apache bands like the Chiricahuas, a
band of Apaches, some of whom were imprisoned at Fort Sill, Oklahoma,
where they have remained. Other Chiricahuas now live with the Mescalero
Apaches in New Mexico.
Many questions arose concerning the definition of a tribe in Section 19
of the Indian Reorganization Act, which refers to any Indian tribe or organ
ized band residing on one reservation . As a result, many opinions were written
by the Solicitor for the Interior Department as to the tribal status of a group
seeking to organize. The main considerations which have been relied upon in
reaching the conclusion that a group constitutes a tribe or band have been:
(1) A treaty has been made with the United States. (2) An act of Congress or
executive order of the President or Secretary of the Interior has called the
group a tribe. (3) It has been treated as having collective rights in tribal lands
or funds. (4) Other Indian tribes have treated the group as a tribe or band.
(5) It has exercised political authority over its members through a tribal
counc il or other governmental form.
Other factors considered were appropriation items for the group and its
social solidarity. Ethnological and historical considerations were also given
great weight in determining the question of tribal existence. This was the
main basis upon which it was held that towns of the Creek nation could or
ganize under the Oklahoma Welfare Act. In historical t imes these towns
governed themselves. Of course, some groups might lose their identity as a tribe or band. The
group must continue to retain its character as a tribe or band down to the pres
ent time.
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Generally the termination of a tribe is shown affirmatively by an act of Congress, treaty provision or tribal action, and negatively by members of the tribe no longer acting together. The mere allotting of tribal land or the granting of citizenship to the members of the tribe does not terminate the tribal existence. They are, however, relevant factors to be considered in determining whether the tribe still exists . Other factors are: the physical separation of a group from the main body of the tribe and the cessation of its tribal affairs and tribal government. For example, the Cherokees in North Carolina by not removing themselves to Indian territory over one hundred years ago lost their membership in the Cherokee Nation but were considered a band in a treaty and in many laws. Frequently a treaty or an act of Congress has declared that a certain tribe was liquidated as of a certain date. Subsequently, other statutes treated the tribe as in existence for certain purposes. Since a tribe often seems to live longer than legislators or administrators believe possible, the courts have laid down a rule that an exercise of the Federal power to dissolve a tribe must be demonstrated by statutory or treaty provisions which are positive and clear.
Leg a I Status
Indian tribes originally could make treaties. Since 1871, when treatymaking was abolished, they have signed conventions, agreements, constitutions or charters . Once they could also make war. When a state of war existed, acts which would constitute murder or manslaughter might be justified, whether committed by Indians or the military forces of the United States. Hostile Indians were also treated as prisoners of war. The power of an Indian tribe to engage in war is now gone. The last Indian wars of any size were waged by the Apaches toward the close of the nineteenth century. An uprising of Indians in Minnesota during Lincoln's Presidency was not considered a war and about sixty Indians were hanged as murderers. Some tribes still make declarations of war, as a New York tribe did against Germany. The Seminoles of Florida boast that they never made peace with the United States in the war which took place toward the close of the nineteenth century.
The Courts have held that an Indian tribe is not a foreign state within the meaning of the provision in the Federal Constitution, allowing suit in the Federal courts for controversies between a state and foreign states. Eminent domain or the power of the Federal or state government to take tribal lands for public purposes requires a permissive statute by the Congress.
An Indian tribe has been treated for some purpose as an instrumentality or agency of the Federal Government. For example, it has been delegated certain functions by the Secretary of the Interior, such as the leasing of individual lands for a fee. Furthermore, the granting of a Federal corporate charter to an Indian tribe under the Indian Reorganization Act confirms the character of the tribe as a Federal instrumentality or agency. The tribes are not liable for
27
the acts of individual members unless pursuant to a treaty or statute. Such
liability has been imposed only in rare instances.
Corporate Capacity
The Pueblos of New Mexico were incorporated by laws of the Territory of
New Mexico. By Federal charter many Indian tribes have been granted the
right to sue, the capacity of being sued and the power to execute contracts
that bind the tribe (but not individual members), even when in the course of
time its entire membership has changed. A distinction has frequently been
made between tribal and individual property rights. For example, in a claims
case against the United States a distinction has been drawn between the claims
of the Sioux Tribe and the claims of individual members. The court held that
damages to members through denial of educational promises in treaties could
not be a basis for recovery by the tribe because they damaged mainly its indiv
idual members. When an Indian tribe is established as a corporation it has sometimes
been held to be entitled to certain benefits granted to corporations in an act of
Congress. For example the Pueblos of New Mexico have been held entitled to
receive privileges under the Taylor Grazing Act as a corporation authorized to
conduct business under the laws of the state. The incorporation under the In
dian Reorganization Act does not relieve the tribe of any tribal obligations or
deprive it of any tribal property.
Contractual Capacity
An Indian tribe has legal capacity to enter into binding contracts. Except
where Federal or tribal laws provide otherwise, such contracts are subject gen
erally to the same rules of contract law that are applied to contracts of non
Indians. Consequently, a tribe is not bound by a contract which is made by an
unauthorized agent of the tribe, but if the tribe accepts the benefits of services
for which he has contracted, the tribe like any other party, may not deny the
authority of its agent. Furthermore, a tribal representative is not personally
liable for a c·ontract made on behalf of a principal, nor is a tribal officer liable
for a tribal debt.
The usual rules of contract law also govern the interpretation of contracts
and various other matters unless Congress expressly varies the rule of contract,
as it has sometimes done, to allow oral agreements to modify the written con
tract, though this is contrary to the usual provision of the Statute of Frauds.
Agreements between Indian tribes become effective only upon ratification by
Congress, and the effec ti ve date is ordinarily the date of such ratification and
not the date of the agreement.
Contracts, whether made with attorneys, engineers or other individuals,
for services with Indians tribes relative to their lands or claims must be ap
proved by the Secretary of the Interior and the Commissioner of Indian Affairs.
A special procedure must be followed in these types of agreements, which in-
28
eludes signing before a judge of a Court of Record. Persons making contracts without complying with these laws are subject to prosecution.
Capacity to Sue Statutes have been passed authorizing suits by Indian tribes ( 1) against
the United Sta tes, and (2) against third parties to determine questions of ownersh ip or to de termine the measure of compensation due from third parties for property taken . There are also a few statutes authorizing suits against tribes. For example, t he Depredat ion Statutes allowed the execution of a judgment gained in a sui t against the tribes upon the tribal funds of the tribes in the Uni ted States Treasury, with the approval of the Secretary of the Interior. Another example is the Act of May 29, 1908, which conferred jurisdiction upon the Courts of Claims to decide a suit by certain traders against the Menominee Tribe and members thereof .
In the absence of a clear congressional authorization, it appears as if a suit agai nst a n Indian tribe cannot be brought without its consent. It would appear, however, as if the Indian tribe may waive its immunity from suit and voluntarily appear in a case to defend itself. The objectives of a suit by an unincorporated tribe can frequently be attained by individual members bringing a representative suit on behalf of all the members. Such a suit is permitted by the Ind ian Claims Commission Act.
INDIAN TRADE Aside from the treaty power, the major source of Federal power over In
dians is the provis ion in the Constitution conferring upon the Congress the power "to regulate commerce with the Indian tribes." Since at the time of the adoption of the Constitution matters internal to the tribes were left largely in the hands of tribal governments, the Federal power over Indian tribes was generally invoked in regard to transactions by which the Indians were persuaded to dispose of their lands or other property in exchange for liquor, munitions or other products of the white man's civilization.
Following the practice of colonial governments, which from early pioneer days licensed traders dealing with the Indians, the Congress since its first session in 1789 has frequently legislated with respect to Indian trade. For example some treaties contain provisions granting to the Federal Government tre exclusive power to have commercial dealings with the tribes. In 1790 the President or officers approved by him were authorized to license traders, and all unauthor ized traders with the Indians were liable to forfeit their goods. Private enterprise did not succeed in this field, and at the insistence of President Washington, he was authorized in 1796 to establish the first Government-owned and operated enterprises, consisting of trading posts in the western frontiers or in the Indian country. The trader in charge was an agent of the United States paid by the Government, and the goods were sold to the Indians at cost. In 1822 the trading posts were closed and Indian trade became for the most part under Government supervision and license.
The existing laws are the result of many amendments to the original trading laws. They authorize the Commissioner of Indian Affairs to appoint traders with the Indian tribes and to regulate the kind and quality of goods and the price at which said goods shall be sold to the Indians. Hence the trade with the Indians was first responsible for three of the important activities of the Government: ( 1) I icensing of certain occupations; (2) Government ownership and operation of a business enterprise; and (3) Government control of prices.
Regulation is confined to Indian traders in the Indian country. A trader to be licensed must prove to the satisfaction of the Commissioner that he is the proper person to secure a license. Ordinarily the Commissioner will not issue or renew a license without the approval of the tribal council. If a trader were licensed in spite of tribal protest, the council could prevent him from having a store on tribal land.
Any unlicensed individual producing goods or trading in the Indian country who is not a full-blood Indian is subject to the penalty of the forfeit of merchandise offered for sale to the Indians or found in his possession and an additional penalty of $5,000. No license may be issued to any person employed in the Bureau of Indian Affairs, or his wife, since a Government official cannot have an interest in trade with the Indians. A license to trade is not required in Alaska.
The trading regulations contain various restrictions. They prohibit gambling, trading on Sunday, the sale of harmful drugs and the sale of tobacco to minors under 18 years of age.
The personal property, including the stock and trade, of a licensed trader is ordinarily subject to state taxation . The tribes may levy a tax on licensed traders with the approval of the Commissioner of Indian Affairs. As owners of the land on which most traders conduct their business, and in the exercise of their powers of government, a tribe may impose any conditions to the use of its land that it deems proper, including the control of prices and charging of rent.
INDIAN LIQUOR LAW The explorers of the New World found that in the New England regions
and the Middle West, through British Columbia and Alaska, the Indians and Eskimos lacked alcoholic beverages. Soon the new drinks became popular objects of trade and even played a role in treaty-making, various exchanges of land and goods and even were a cause of wars.
Some of the colonies restricted trade with the Indians, including traffic in liquor and guns. In response to a verbal plea of an Indian chief, President Thomas Jefferson asked Congress in 1802 to take steps to control the liquor traffic with the Indians. Congress forthwith authorized the President to regulate the selling and distribution of spirituous liquors among the Indian tribes. Several treaties with the Indians and with foreign nations prohibited the traffic
30
in liquor with the Indians . The control of liquor with regard to Indians is very
broad. It is based on the power over commerce with the Indians, plus the power
to make treaties, plus the power over the United States te rritory and other pro
perty, plus the recognized relations of tribal Indians to the Uni ted States . The
Indian commerce power illustrates the breadth of congressional power in this
field . It covers traffic which may be wholly within one state, and extends to
transactions not only with the tribes as a group but also to individual members
of the tribe . The Indian Liquor Law falls into two main catagories:
( 1) The .sale, gift, or other disposition of intoxicants to any Indian who has
restricted land or who is a ward under the guardianship of the United States
is a misdeamenor punishable for the first offense by imprisonment of not
more than one year, and by a fine not exceeding $2,000, and imprisonment of
not more than five years for any additional offense . This provision is not
violated by an Indian purchasing or otherwise receiving illicit liquor, but the
seller is guilty even if he did not know that the purchaser was an Indian allot
tee or a ward. (2) The second major prohibition measure prohibits the introduction of
intoxicants (even near beer) into the Indian country or attempts to sell such in
toxicants. The mere transportation to Indian country when the destination is
beyond and the transporter does not intend to stop and dispose of the liquor is
no offense. in 1918, as an additional aid to the enforcement, Congress provided that
the possession of intoxicants in the Indian country shall be an independent
offense. Possession means the physical control and power to dispose of liquor,
knowledge of possession and location of liquor within the Indian country.
Drinking from the bottle of another is not enough . But an accused who breaks
a full liquor bottle after being discovered with it would be guilty of the offense
because these facts are evidence of possession, knowledge and control. The
setting up of a distillery on a reservation to manufacture ardent spirits, or the
brewing of beer, constitute independent crimes.
Federal enforcement officers have the right to search packages, wagons
and automobiles without a warrant and to seize and subsequently secure gov
ernmental ownership of the automobile or other vehicle which is used in intro
ducing or attempting to introduce the intoxicants in the Indian country and to
places where their introduction is prohibited by treaty or Federal statute. Gen
era lly the veh icle is forfeit even if the owner had nothing to do with the illegal
act. One Federal District Judge in Idaho refused to declare forfeit a Ford
owned by an Indian who picked up a hitchhiker who, unknown to the driver,
possessed intoxicants while they were driving through Indian country.
In 1907 Congress empowered special officers of the Indian Se .... rvice to ex
ercise the powers of searching and seizing intoxicating liquors, subject to the
constitutional restriction on unreasonable searches and seizures. In 1912 such
31
officers were given the powers of United States Marshals and Deputy Marshals. This power was taken away from them in 1948.
The Federal Indian laws in Oklahoma regarding liquor are different from those for the rest of the country. In 1917 Osage County in Oklahoma was brought within the Indian Liquor Law, and Indian lands in the eastern part of Oklahoma known as the former Indian territory are subject to these laws. Since 1933, however the Federal law provides that 3.2 beer for Indians is a matter of local option in Oklahoma. In 1948 Alaska reservations became subject to the Indian liquor laws but the Indian Prohibition Law does not apply elsewhere in the Territory. Sacramental wine may be introduced into Indian country, and by an amendment in 1948 liquor also may be introduced for mechanical, scientific and medicinal purposes.
Several state laws supplementing similar Federal laws prohibit the sale to Indians of intoxicants. Some state laws make illegal the use or transportation of peyote by Indians and non-Indians. However, peyote is not covered by the Federal Harrison Act, which regulates the sale and use of certain harmful narcotic drugs.
THE INDIAN AND THE STATE GOVERNMENT In 1832 the United States Supreme Court decided in the famous case
Worcester v. George that state laws are not enforceable within the territory of an Indian tribe in matters affecting Indians. Consequently, the State of Georgia had no right to imprison a white missionary residing on an Indian reservation with the consent of tribal and Federal authorities, who refused to conform to state laws governing Indian affairs . The highest court of the land did not then possess its present prestige . The State of Georgia refused to obey its order, and President Andrew Jackson declined to assist in its enforcement. The missionary was kept illegally in prison for over a year. T·hen he was persuaded to ask for and was granted a pardon from the Governor. Today this well-established principle of law is still challenged, but the Supreme Court has repeatedly reaffirmed it.
The state's lack of power is due to the fact that the control of Indian affairs has been granted to the Federal Government by the Constitution. But this does not prevent the Congress from delegating back to the states some of its powers over Indians. The organs of the state, like the courts or legislatures, when exercising these powers, act as Federal agencies, and apparently this delegation of authority may be withdrawn whenever the Congress desires . Any revocation of such a grant seems unlikely. In fact, Federal laws in this field are increasing rapidly because Indians are no longer so dependent on the Federal Government for protection, and the policy is to treat them like other citizens whenever praticable. As a consequence, while the Federal Government increases its activities for most citizens, it intends to decrease gradually its special activities for Indians when . they are no longer necessary.
32
The first and most important field m which state laws have been applied
generally to Indians is the field of inheri tance . The General Allotment Act of
1887 provides that after patents are issued to lands allotted to Indians, the
land shall be inherited by the heirs of a deceased Indian according to the laws
of the state or territory where the land is located . Tribal control was thus with
drawn from all matters of descent and partition concerning these allotments,
except insofar as these matters are otherwise covered by Federal statutes. Be
tween 1887, the date of the General Allotment Act, and 1910, no definite Fed
eral statute governed the inheritance of allotments, and whenever the allot
tees died the state laws were enforced by various courts. In 191 0 the Secretory
of the Interior was granted full power to determine heirs and partition allot
ments, to administer the estates of the allottees, and to sell heirship lands.
An amendment to this law in 1913, permits an Indian to dispose of trust
property, real and personal, by will or contract approved by the Secretary of
the Interior. Consequently, an Indian woman by a· will written in accordance
with regulations of the Department of the Interior and approved by the Sec
retory of the Interior may devise restricted lands to persons other than her
husband, even though the state law prohibits a married woman from be
queathing two-thirds of her property away from her husband . Under the In
dian Reorganization Act on Indian's real property and shares in a tribal cor
poration may be devised only to his heirs, to members of the tribe of the res
ervation, or the tribe itself.
A second body of state laws which have been extended over Indian reser
vations beginning in 1 898 by the Federal Assimilative Crimes Act makes of
fenses by non-Indians against Indians or their property, or vice verso, punish
able in the Federal courts in accordance with state lows existing at the time of
the enactment in question. Two of the major crimes1 rape and burglary, com
mitted by an Indian against another Indian on an Indian reservation follow as
to definition and punishment the laws of the state where committed. The other
eight crimes are subject to the same laws and penalties as if the offense was
committed within the exclusive jurisdiction of the United States.
The third field is the inspection of health and educational conditions and
enforcement of sanitation and quarantine regulations, as well as compulsory
school attendance. In 1925 Congress authorized the enforcement of such state
laws upon Indian reservations by state officials under rules prescribed by the
Secretary of the Interior. Before the enforcement of state health laws upon
Indian tribal lands, the regulations require the posting of a schedule of state
sanitation and quarantine regulations which are to be applied. The Indians of
the reservation are then afforded on opportunity to make protests or recom
mendations with respect to specific state regulations thus proposed for exten
sion to the reservation. If no objections ore received, the Secretory of the In
terior approves the proposals and the state laws apply to the Indians on their
33
reservations, except that state laws in conflict with an ordinance of an I.R.A.
tribe are inapplicable to a reservation under this law.
State compulsory school attendance laws may be enforced against Indian
children and their parents or guardians. There is one exception to this law. If
the tribe possesses a governing body, it must pass a resolution consenting to
.such application. The tribe may elect to provide for enforcement of compulsory
attendance by tribal courts.
SPECIAL STATUTES
Many acts of Congress have also conferred many powers upon courts,
legisla tures and administrative officials of various states. The most important
field has been the extension of state criminal laws to offenses by Indians
against Indians . An early example of such action is the act of February 21,
1863, whereby the Winnebago Indians were removed from Minnesota, allotted
lands farther west and made subject to the criminal laws of the state or terri
tory in which they happened to reside . In 1940 the Indians of Kansas were
made subject to state laws, although the Federal courts retained the power to
punish concurrently any of the 10 major crimes committed by Indians on In
dian land . Subsequently, laws have been passed to the same effect for the In
dians of the Devils Lake Reservation (Fort Totten) in North Dakota and the
Sac and Fox Indians of Iowa. The provision for concurrent Federal jurisdiction
was omitted from the laws placing 8000 Indians of New York under the state
criminal laws. Another important area in which Indians have been subjected to state
laws is taxation. The most noteworthy example occurs in Oklahoma where
over 100,000 Ind ians reside. This state was authorized to tax oil and gas pro
duction from Indian lands, and mineral production from the Five Civilized
Tribes' lands in Oklahoma . Other examples of the application of state laws to
particular tribes and areas include the fields of probate, acquisition of water
rights, the recording of leases and the imposition of liens upon cut timber.
Sometimes states pass laws to supplement the protections of Indians
which are provided by Federal law. Thus, a few states forbid the sale of liquor,
guns and ammun ition to Indians. Other examples are as follows: (1) The
New York Sta te laws, which prohibit trespass upon Indian lands, and (2) the
North Carolina law, which requires school attendance of the Eastern Cher
okees, the principal Indians of the state . These laws have been upheld by the
courts as an exception to the general rule that Federal control over Indian af
fairs on Indian reservat ions is exclusive. In all these cases the state law is an
aid to the carrying out o-f Federal Indian law and policy.
RESERVED STATE POWER OVER INDIAN AFFAIRS
The second major field which i.s an exception to the general rule that full
authority over Indian affairs on Indian reservations rests in the Federal Gov
ernment to the exclusion of state governments, is where the matter involves
34
primarily non-Indians. In all such cases the state has jurisdiction unless there
is involved a subject matter of special Federal concern. Hence, once a state is
admitted to the Union, the United States no longer has the sole and exclusive
jurisdiction over an Indian reservation . Consequently, a non-Indian committing
a crime against a non-Indian is punished under the criminal laws of the state
if the offense · is committed on an Indian reservation the same as if the crime
were committed off the reservation. In a few instances non-Indians outside of Indian country may come with
in the scope of Federal Indian law. Thus, it has been made criminal for a non
Indian to transfer to another non-Indian restricted property, such as cattle,
taken from a reservation; also for an employee of the Indian Bureau to trade
with Indians, with the exception of purchasing from them arts and crafts for
personal use. The Indian who is off the reservation is subject to the laws of the state in
which he finds himself to the same extent as a non-Indian. Indians exercising
hunting and fishing treaty rights off the reservation are even subject to state
conservation laws. Nevertheless, the Federal power over Indians may be exer
cised while he is away from Indian country. The oldest law of this type is the
Indian Liquor Law, which prohibits the sale or gift of intoxicants to Indians
anywhere in the United States. Secondly, the removal of restricted cattle from
the reservation would not free them from Federal restrictions.
35
For your better understanding of the
Indian Problem:
LEAFLETS
Indians Are Citizens! by Felix S. Cohen
Should Indians Vote? by Theodore H. Haas
How We Bought the United States by Felix S. Cohen
The Public Share In Indian Assimilation by Wi ll iam E. Warne
When An Indian Enters the Business World by Ruth ·underhill
Indian Rights and Their Protection by Vfilliam E. Wa rne
A Year of Opportunity by W ill ia m Zi mmerman, J r.
Significant Dates in the History of the Indian Service
Pamphlet 1-Questions on Indian Culture
Pamphlet 11- Questions on Education, Hea lth, Land, Citizenship, Etc.
Pamphlet Ill- Statistical Tables on Hospita ls, Schools a nd Populat ion
Free on request
T RIBAL RELATIONS PAMPHLETS
1. Ten Years of Tribal Government under the Indian Reorganization Act by T heodore H. Haas Inc lud ing copies of the act; and a list of t ribes organized under the act -
2. The Indian and the Law I by Theodore H. Haas
3. The Indian and the Law II by Theodore H. Ha a s
A ll o.f t hese pub lications were prepared by the staff of the United States Ind ian Service and pr inted by India n pupils in the print shops of t he vocat ional schools of the Indian Service.
HASKELL INSTITUTE
Lawrence, Kansa s
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