The Indian & The Law-1

By THEODORE H. HAAS, Chief Counsel

United States Indian Service

A brief layman's answer to the questions:

  1.    What Powers of Self-Government Has an Indian Tribe?

  2.    Who Can Enforce Law and Order on an Indian Reservation?

  3.    What Authority Has a Tribal Court?

  4.    Can a Tribe Control Domestic Relations?

  5.    Can a Tribe Determine Its Own Membership?

  6.    Does a Tribe Control Tribal Property?

  7.    Can an Indian Tribe Levy Taxes?

  8.    What is an Indian Reservation?

  9.    What Law Applies to an Indian Away From the Reservation?

10.    Who is an Indian?

11.    What Are the "Ten Major Crimes?"

12.    Can an Indian "Emancipate" Himself?

13.    Are Indian Treaties Still in Force?

14.    Who Can Trade With an Indian?

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. PROVINSE, Assistant Commissioner

EDUCATION DIVISION

Willard W. Beatty, Director

P. W. Danielson, Associate Director

Haskell Institute Printing Department

June 1949--10M

Additional copies of this pamphlet may be obtained from

United States Indian Service

Washington 25, D. C.

or

Haskell Institute, Lawrence, Kansas

 

CONTENTS

 

S

HOW THIS BOOK CAME TO BE	......................................................	v
SOURCE OF INDIAN AUTHORITY	......................................................	1
Legal Status of Indians	......................................................	1
Tribal Power Today	......................................................	2
TRIBAL POWERS IN THE ADMINISTRATION OF JUSTICE	......................................................	3
Before the Coming of the Whites	......................................................	3
After the Coming of the Whites	......................................................	4
The Ten Major Crimes	......................................................	5
INDIAN COURTS	......................................................	5
Traditional Courts	......................................................	5
Courts of Indian Offenses	......................................................	6
Tribal Courts	......................................................	7
Drift Toward State Law and Order Control	......................................................	8
TRIBAL REGULATION OF DOMESTIC RELATIONS	......................................................	8
POWER TO DETERMINE TRIBAL MEMBERSHIP	......................................................	9
Membership May be Terminated	......................................................	10
TRIBAL CONTROL OF DESCENT AND OF PERSONAL PROPERTY	......................................................	10
TRIBAL POWER OVER REAL PROPERTY	......................................................	10
Control Over Tribal Funds	......................................................	11
STATUTORY POWERS OF INDIAN ADMINISTRATION	......................................................	12
Tribal Relations With Governmental Agencies	......................................................	13
TAXING POWER OF AN INDIAN TRIBE	......................................................	13
WHAT IS AN INDIAN RESERVATION?	......................................................	13
Indians Can't be Restricted to Reservations	......................................................	14
What is a "Reservation?"	......................................................	14
What is Indian Country?	......................................................	15
Who Holds Title to an Indian Reservation?	......................................................	16
LEGAL STATUS OF OFF-RESERVATION INDIANS	......................................................	17
Reservation Authorities Can't Compel Return	......................................................	17
WHO IS AN INDIAN?	......................................................	18
Sometimes an Indian-Sometimes Not!	......................................................	18
Indian by Blood Not Necessarily a "Legal Indian"	......................................................	19
Congressional Benefits Limited by Blood Quantum	......................................................	19
Indian May Lose Status as an Indian	......................................................	20
Federal Government Deals With Tribes, Not Individuals	......................................................	20
Single Definition Impractical	......................................................	21
INDIAN TREATIES	......................................................	22
Colonial Period	......................................................	22
Treaties With Great Britain	......................................................	23
Treaties With the New Nation	......................................................	23
Legal Force of Indian Treaties	......................................................	23
Enforcement of Treaties	......................................................	24
Interpretation of Indian Treaties	......................................................	24
Scope of Treaties	......................................................	24
Federal Indian "Services" Result of Treaties	......................................................	26
INDIAN TRADE	......................................................	26
Unauthorized Trader Subject to Penalty	......................................................	27
Traders Subject to State Taxation-and Tribal Taxes, Too	......................................................	27
INDIAN LIQUOR LAW	......................................................	27
WARDSHIP-OR THE LEGAL STATUS OF THE INDIAN	......................................................	29
No Control Over Domicile	......................................................	30
Education and Maintenance	......................................................	30
Control of Property	......................................................	30
Protective Power of Government Limited to Property	......................................................	30
Legal Services	......................................................	31
Suits Against Federal Government	......................................................	32
"INCOMPETENCY"	......................................................	32
Secretary Can Declare Competency	......................................................	32
"EMANCIPATION" CAN BE ACHIEVED VOLUNTARILY	......................................................	32
CITIZENSHIP	......................................................	33
RACIAL DISCRIMINATION	......................................................	33

HOW THIS BOOK CAME TO BE

    Today, almost 400 treaties and more than 5000 federal statutes control government relations with the Indians of the United States. For many years, Indian law was a maze in which many a good lawyer lost his way. For over a year, Felix S. Cohen whose over 14 years with the Department of the Interior culminated with service as Acting Solicitor and Chairman of the Board of Appeals, with the assistance of Theodore H. Haas and others, struggled to bring together a compendium of Indian law. The result of their efforts was the Handbook of Indian Law, issued by the Department of the Interior in 1941. Into 662 thin but large sized pages of fine print, a digest of the basic intent of this mass of legislation, with copious citations, was crammed. It has become a landmark in the understanding of the legal status of the Indian.

    Great as was this improvement in the previously chaotic situation, Cohen's handbook is still a forbidding and massive document. It has always seemed to me that the basic status of the Indian could be reduced to layman's language, and introduced into the civics classes of the Indian high schools, made available to Tribal Councils, and circulated among interested tribal members and Indian Bureau officials to clarify greatly many moot points which are the subject of much misunderstanding among Indians and non-Indians. I therefore urged Mr. Haas, who is now Chief Counsel for the Indian Service, to take time out of his weekends and holidays to prepare a document which could be used for these purposes. I have worked with him to simplify the language so as to bring the ideas as close to the understanding of the non technical layman as possible. At the risk of lowering his prestige as a lawyer, Mr. Haas has permitted many of my simplifications to stand, even though he recognized at times that I was insisting upon the omission of some stray point that had no pertinence to the main argument, yet which a carping critic might cite as a technical error. Of course I realize that specific legal problems of Federal Indian law are often so complicated and varied that no book can be a substitute for consulting a lawyer who is expert in this field.

    This is the first of two pamphlets on The Indian and the Law, which between them will review the high points of Cohen's Handbook. They will not attempt to be exhaustive, but will contain the basically correct interpretation of many puzzling questions about the legal status of the American Indian, today. Each section can be traced into the Handbook itself, by those who need more exact information. There they will find amplification and profuse citations as well us four chapters devoted to the special problems of o few Indian tribes.

    The Education Division of the Indian Service is thankful to Mr. Haas for having prepared this material for its use.

                                                                                                                                 Willard W. Beatty,
June 1949                                                                                                               Director of Education.

  THE INDIAN AND THE LAW

SOURCE OF INDIAN AUTHORITY

BEFORE THE COMING of the white man to America, it is believed that somewhat less than a million Amerindians occupied America north of Mexico, and including Alaska. They were probably divided into about 600 distinct tribes or bands, which differed widely from one another in language and customs. A majority of them appear to hove lived in small groups, numbering a few hundred people, like a Sioux band or o Pueblo village. The largest may have included a few thousand persons. Their forms of political organization varied greatly. Some language families were broken up into village groups, like the Eskimo, which seemed to luck any organized political power. Others, like the Navaho or Apache divided into separate autonomous bands or extended family groups, without tribal unity. Others, like the Sioux bands, while lacking a central government, occasionally united on mutters of interest to all, such as war.

    At the other extreme, were tribes with cohesive organizations, which at times formed into confederacies with other similar tribes, as the Iroquois Confederacy, which appears to have lasted several hundred years, and at its height may have controlled a large part of thee territory now comprising the northeastern part of the United States.

    In some tribal groups, the organization was patrilineal, with descent and authority passing through the male line--others, were matrilineal in structure, and descent and leadership passed through the mother's line. Some tribes were wholly democratic in organization, electing their leaders and making other significant decisions us a result of full community participation, sometimes even going to the extent of requiring unanimity of all adult tribesmen in arriving at vital decisions. In other tribes was found a scheme of hereditary chieftainship. And in others, the basic control was vested in a hereditary priesthood.

Legal Status of Indians

    The important point, however, is that regardless of the size of the group, or its scheme of organization, all were self-governing.

    An Indian tribe in the United States is still recognized by the United States Supreme Court us a distinct, independent, political body possessing all the powers of self-government of any sovereignty, except insofar as those

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 powers have been extinguished.¹ Since under the Federal Constitution Indian affairs are subject to the control of the Federal government rather than of the states, any modification or repeal of tribal powers must come from a Congressional statute or a treaty. It is not generally known that to this day the laws, customs or decisions of tribal authorities are controlling in large areas of civil and criminal law, including questions of tribal membership, tribal property and tribal taxation, the form of tribal government, domestic relations and inheritance. A long period of administrative and statutory attempts to terminate tribal government resulted in retrogression socially, economically and politically. Consequently the Federal government during the past two decades adopted a new policy of encouraging greater participation by Indians in the management of their own affairs. This democratic program offers a means whereby functions performed by the Indian Bureau may be transferred to Indian tribes or organizations. In addition to political functions, proprietary activities and enterprises, as with many other local governments, now constitute an increasingly important function of Indian tribes. In this way Indian groups have begun to utilize to a greater extent some inventions of the industrial era while retaining ancient customs which remain meaningful to them.

1. Montoya v U. S., (180 U. S., 261,266)
Worcester v Georgia, (6 Pet. 515,559)

Tribal Power Today

    The power of the tribe to determine its own form of government includes the power to interpret its own laws and ordinances; such interpretations will ordinarily be followed by the courts and other government agencies. Since many tribes are trying to learn more about procedures in non-Indian society, tribal delegates and leaders frequently try to conform to the current practices in state, local and Federal governments. In fact, many tribes have adopted as the laws of their tribe many state statutes, such as laws governing marriage. The Indian Reorganization Act brought about a basis for the adoption of tribal constitutions, approved by the Secretary of the Interior, which could not thereafter be changed except by mutual agreement or by act of Congress. Generally the constitutions delegate to an elected body, usually called the Tribal Council or Business Council, the power to pass laws on many subjects and to elect tribal officials, which include a tribal chairman and judges. Unlike the early days, a secretary is now chosen because the necessity for written laws and other records is now recognized, and a treasurer to take care of tribal funds.

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ance is not in effect until the Secretary approves it, regardless of how long his action is delayed.

    Resolutions or ordinances subject to Secretarial review become effective when approved by the Superintendent within ten days after passage. If the Secretary does not rescind or veto the ordinance within 90 days after its passage, it stays in effect.

    The power of review and approval has been delegated to the Commissioner of Indian Affairs. In the rare case, however, where the Commissioner vetoes an ordinance, his action must be sustained by the Secretary of the Interior. Very few ordinances are vetoed. The usual grounds for such action is that the tribal action violates the tribal constitution or a Federal law, or is an injustice to a minority group within the tribe.

TRIBAL POWERS IN THE ADMINISTRATION OF JUSTICE

    The power to preserve law and order is one of the most important powers of a nation. What is regarded as criminal in each society varies greatly with its needs. Laws and institutions cannot be understood without a knowledge of the religion, family background, traditions, and likes and dislikes of a group. The attitude of the Sioux towards the taking of a horse illustrates the differences between various people as to what constitutes the crime. A man would be honored who was adept at taking a horse, especially from the enemy, and the whites were enemies during a long period of border warfare with the Plains tribes. This is not very different, however, from our own views during war. Someone who captures enemy equipment is a hero. But the Sioux had the same view during periods of peace. We can understand the truth of an anecdote of an old Comanche chief who said that he had four sons who were a great comfort to him in his declining years as they could steal more horses than any other young men in the tribe.

    Despite variations, a bird's-eye view of the methods of administering criminal justice by Indian tribes will broaden our understanding of their government. A brief history of the legal changes in the exercise of this power will illustrate how other tribal powers may be modified by the Federal government.

Before the Coming of the Whites

    Regular police, judges, and jails were unknown among most of the early Indian tribes. The private property of most Indians was usually limited to their weapons, clothing and houses, and later their horses. Consequently, the cause of over ninety per cent of our crimes was lacking. The solution of the few offenses against the public order was easier than at present, with our thousands of laws passed by federal, state, and local governments, There was no need for lawyers to argue about whether the state, federal, or tribal court was the proper tribunal to try an accused.

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all were neighbors and knew each other, the desire for public esteem usually prevented the breaking of recognized social rules. Infractions, when they occurred, could usually be settled by the family, who would persuade the erring youth not to bring shame upon them, or if matters became worse, the chief might attempt to curb the youth by a talk. If, nevertheless, a member continued to be a menace to the community, more drastic actions were taken. Primitive justice is usually swift, certain, and drastic. Exile, death, and whipping were occasionally inflicted by some of the tribes as punishment of persistent violation of customs. Exile, which was frequently used by some of the Plains tribes, was imposed by the elder men of the tribe, and might be of a temporary or permanent duration. This punishment was very serious. Unless the exiled man was adopted into another tribe, he might find it difficult to shift for himself.

    Blood feuds were frequent between families of the Plains Indians, the Eskimo, and the Iroquois. A relative of a murdered Indian, far example, would take revenge by retaliation against the murderer or his family. Some times adjustments would be made by agreement, such as gifts to the injured person or to the family to atone for the crime against the family. The Eskimos usually left punishment to the family. Their usual punishment seemed mild to us. It was ridicule by a song contest, with the members acting as spectators. An intractable menace to the village might be killed by the elders.

After the Coming of the Whites

    The colonies and later the new nation did not interfere with the Indian tribes' handling of their law-and-order problems among their own members. In some cases, treaties by the United States and the Indian tribes in recognizing this power, contained provisions enabling the punishment of non-Indians or the turning over to the United States for punishment of whites who violated the peace and order of the Indian community. It was natural that there should be no interference in the administration of justice by the tribes upon their own members, especially since even in the early part of the nineteenth century it was impossible for the new nation to preserve law and order among non-Indians in the vast area west of the Mississippi. The army was too small to attempt to cope with offenses other than the actual hostility of Indian groups. Even as late as the 1880's many crimes between Indians on their lands, including murder, were settled by agreement and compensation as in the early days. One murder which was settled in this way by adjustment to the satisfaction of the Indian community shocked many whites. Since this feeling resulted in an important change in the law, the facts in this case are worth knowing. Spotted Tail, a Sioux leader, appropriated the wife of a crippled Sioux named Medicine Bear. He offered the offended husband a compensation for his loss. While these, negotiations were proceeding, a friend of Medicine Bear named Crow Dog transformed the matter into a blood feud on August 5, 1881, by shooting the adulterer to death. The murder occurred

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 in a reservation in the Dakota Territory. An adjustment was then made by the friends of Crow Dog who went into hiding. Crow Dog was tried and convicted in the Federal Court, but his attorney obtained a writ of habeas corpus from the Supreme Court of the United States. The Court unanimously held that Crow Dog in his relations with other Indians on the reservation was governed entirely by tribal law and was responsible only to tribal authorities.

The Ten Major Crimes

     Two years later in response to public pressure Congress passed a law making it a crime triable in federal courts, for an Indian to murder another Indian on an Indian reservation. This law also includes the crimes of manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. The crimes of assault with a dangerous weapon, incest, and robbery were added in 1932 to make up the ten major crimes now included.

    Even before the passage in 1885 of the first federal law which interfered with the control by Indian tribes of crimes committed by their members against other Indians on their reservations, some white customs concerning law and order had already affected the Indians. In the early part of the nineteenth century the Cherokees, while still living in the Southeast, had created a police force. Several other tribes after they moved to the West did the same. Some of these tribes also established regular criminal and civil courts. The first regular employment of police was in 1872 when a thousand Navahos were selected by General Howard to guard reservation boundaries, arrest thieves, and recover stolen stock. While this force was discontinued by an order from Washington, D. C., several other Indian police forces were created elsewhere. Their success caused the establishment, with Congressional sanction in 1878, of legal police forces on the reservations. $30,000 was appropriated to pay 50 officers and 430 privates. While the pay of this force was very small, they performed valuable services in checking liquor consumption, reducing the number of Indian raids, and preventing the trespass by whites on Indian reservations.

INDIAN COURTS*

    There are three different types of Indian Courts or Tribunals in which Indians may be tried, i.e., Traditional Courts, Courts of Indian Offenses and Tribal Courts.

Traditional Courts

    The oldest, but not necessarily the best known, is the traditional court or tribunal which in many instances had definitely prescribed punishment to fit each type of offense. These courts generally operated under an unwritten Code and as necessity arose. Among the Apaches infidelity on the part of a wife was punishable by cutting off the end of her nose; larceny among the

__________

*The following material on Indian Courts was prepared by Louis C. Mueller, Chief Special Officer in 1946.

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Seminoles is reported to have been punishable by cutting off an ear, and among the Cheyennes it was not uncommon to banish a member of the tribe for certain serious offenses. When such a member was banished he might, three or five years later, return to the tribe and request to be reinstated. These appeals for reinstatement were often favorably received and constitute the earliest form of pardon. Commission of certain offenses, such as murder, among some tribes, barred the offender from holding certain tribal offices. These traditional courts continue to operate among the Pueblos and the Hopis although such drastic punishments are no longer imposed.

Courts of Indian Offenses

    The Courts of Indian Offenses were first established by Commissioner Price in compliance with instructions issued by Secretary of the Interior Teller December 2, 1882. Secretary Teller, writing to Commissioner Price on this subject, stated that there were certain practices among the Indians he felt should be discouraged. He mentioned the injurious phases of certain dances and rituals, plural marriage, the medicine man and the destruction of property following death. The rules promulgated by the Commissioner stipulated that it should be known as the "Court of Indian Offenses," and that it be presided over by three Indians, each to be styled "Judge of the Court of Indian Offenses." The first three ranking officers of the Indian Police force were to be designated as Judges. Appeals might be taken from the Indian Court to the Indian Bureau. The Indian Bureau Regulations issued September 22, 1884, established these courts.

    The original regulations were amended on March 12, 1894. The Judges could then be selected from the body of the Tribe, provision was made for the disposition of funds collected as fines, and Indians were not permitted to leave their reservation except by consent and approval of their superintendent.

    The Indian Bureau Regulations of April 1, 1904, reveal little change in these regulations. Under the 1904 Regulations, the offenses consisted of participating in a Sun Dance, entering into plural marriage, operating as a "Medicine Man," destruction or theft of property, giving or offering money to a friend or relative to procure a girl for the purpose of cohabiting with her, intoxication or the trafficking in intoxicants, and unauthorized leaves of absence from the reservation. These Regulations continued in force with little or no change until the present Departmental Regulations were approved by Secretary Ickes, November 27, 1935.

6

provision which attempted to control the right of an Indian to leave the reservation without a permit were omitted. The list of offenses was short in comparison to state codes, was written in a style easily understood and easily translated. Indians for the first time in their own courts, enjoyed the right to bail, trial by jury, probation and parole and many other privileges.

Tribal Courts

    Following Secretarial approval in 1937, steps were taken to acquaint the various Tribal Councils, agency personnel, Indian Judges and Indian Police with the provisions of these new Regulations. At this same time many tribes, having voted favorably on the Indian Reorganization Act, had adopted constitutions which granted them the privilege of establishing and operating courts of their own which, for the sake of distinguishing them from the Court of Indian Offenses, are called Tribal Courts. To assist the Indians of each reservation to develop a law and order code suited to the customs of their own tribe, representatives of the Indian Service visited one reservation after another explaining the new Regulations to the tribes not under the Indian Reorganization Act and discussing with the organized tribes the structure of their Tribal Court. As was only natural, the Departmental Regulations were used as a basis for discussing the style and structure of the Tribal Courts. With one or two notable exceptions the organized tribes adopted regulations similar or identical to the Departmental Regulations.

    Many worthwhile recommendations have resulted from these discussions with Tribal Councils, some of which have been added to the Departmental Regulations by amendment. Councils on both organized and unorganized reservations have passed special ordinances to meet conditions peculiar to their respective jurisdictions.

    Admittedly, much needs to be done to bring Indian courts to a greeter degree of perfection, but the tribes have generally accepted their responsibility seriously and approached their problems in a realistic and intelligent manner. The remedy in present unsatisfactory situations lies largely in the field of education, One of the first jury trials resulted in an acquittal notwithstanding the presentation of uncontradicted evidence of guilt. Questioning of the jury later revealed that their verdict was based on the fact that they had not seen the alleged offense committed.

    There is some question as to how satisfactory the Anglo-Saxon conception of justice (as expressed in the Codes) is with respect to settling all disputes among Tribal groups or between individuals who are inclined to cling to traditional customs, attitudes and practices.

    In some instances, there is evidence of adherence to both custom and the Code. For example, a case arose some time ago involving a trial marriage approved by tribal custom. This trial marriage was with full knowledge and approval of the girl's parents, but when the prospective groom moved out and legally married another girl, these same parents insisted on a prosecution for

7

 illicit cohabitation.  It is probably not necessary to note that Indian Judge refused to entertain a formal complaint.

    Three questions invariably arise regarding the operation of these courts.  First, the Indian Courts have no jurisdiction over Whites; these courts, as the name implies, are Indian Courts operated by and for Indians.  Second, generally the court has no jurisdiction outside the exterior boundaries of the reservation.  Third, the Court does have jurisdiction over an Indian committing an offense anywhere inside the exterior boundaries of the reservation. If the offense, however, is committed on deeded land and is in violation of a state law, and if state authorities choose to prosecute, the state jurisdiction has priority.  Fourth, Tribal law may provide for the punishment of offenses committed a member off the reservation upon his return.  This has rarely been done.

Drift Toward State Law and Order Control

    Under regulations adopted in 1904 superintendents had often acted as legislators, policemen, judges, juries and courts of appeals. The administration of justice on allotted Indian reservations is complicated by the interspersion of fee patented lands on which the jurisdiction of the tribe is dubious.  The small size of many reservations, the increased facility of transportation, the lack of an extradition procedure for alleged criminals who leave the reservation boundaries, and the acculturation of a large proportion of Indian groups have caused some Indians to favor the granting to state courts of jurisdiction over the administration of justice on reservation lands. Even some of the oldest republics in the world, the Pueblos, have had some difficult law and order problems in which old sanctions have not always been as effective as in the past. In response to complaints, emanating from some young Indians largely, the All-Pueblo Council, composed of the Governors of 19 Pueblos, recently appointed a committee to reduce their law and order code to writing.

    By Congressional statutes, the States of New York, Kansas and Iowa have acquired jurisdiction over crimes committed by Indians against Indians on Indian reservations.  The State of North Dakota acquired the same power over one reservation, Fort Totten. Additional grants of power over to other states will probably be made within the next few years.  In fact, Congress seems disposed to confer such jurisdiction on all states, especially where the Indian tribes have not organized tribal courts, or where the tribal member prefer that the states assume jurisdiction.

TRIBAL REGULATION OF DOMESTIC RELATIONS

    In 1916, the Supreme Court in the case of the United States v. Quiver, 241 U.S.602 decided that two Sioux Indians committing adultery on an Indian reservation were not subject to prosecution, since questions involving domestic relations and sex crimes have always been left to tribal customs and laws.  The courts recognize the validity of Indian custom marriage, divorce

8

and adoption between members of a tribe living on a reservation even if the marriage is polygamous. The Interior Department recognizes such customs for the purposes of inheritance and for many other purposes, including law and order and paternity cases. The one exception to this rule is that by federal law for inheritance purposes Indian custom marriages must be recorded either in accordance with Departmental regulations or state and tribal laws. A substantial and increasing number of Indian tribes have abolished "Indian custom" marriage and divorce, and have adopted the state legal requirements as their own laws. The fact that Indians may be married under state licenses outside the reservation does not prevent the tribe from granting a divorce, though often state laws do not recognize such divorces.

    Custom, whether dealing with marriages or other matters, controlled the individual much more in early society than today. Some of the tribes had rigid prohibitions regarding the choice of spouse. For example, members of the Blackfeet could not marry a member of the same village, and the Tlingit and Haida Indians in southeastern Alaska prohibited marriages between members of the same moiety. Most of these old restrictive customs are no longer observed.

POWER TO DETERMINE TRIBAL MEMBERSHIP

    An Indian tribe like any other political government and most private organizations has the right to determine the question of who shall be a member. This was not a difficult function in the early days. The tribesmen lived and worked together like an enlarged family. Their food gathering like hunting and fishing, was a communal enterprise. Very rarely an individual who insisted on violating the rules of social conduct would be exiled and thus lose his membership, or someone might be adopted from another group. Runaway slaves or prisoners of war, whether Indians or whites, gained tribal membership in this way. Congress can take away this power, as well as all other powers of the tribes. In a few cases, the Congress has fixed the degree of blood required for membership. More frequently it has determined how census rolls shall be prepared for the purposes of distributing tribal funds or lands, like a per capita payment of money or an allotment of land. Enrollment does not ordinarily give vested right in tribal property. Hence, Congress and a tribe also, may disregard the existing membership rolls of a tribe and direct that the per capita distribution be made upon the basis of a new roll. Such a roll may permit distribution to non-members, even though to do so the law repeals provisions in prior laws or treaties with the tribe. Unless Congress or the tribe has authorized the distribution of tribal assets to persons who are members at a certain date, no property rights are generally vested to tribal property or money. A person cannot be a member of two tribes at once with respect to allotment and other distribution of tribal property or Federal benefits, but in a few rare cases, it has been recognized that a person can belong to two tribes for voting or other purposes.

9

Membership May Be Terminated

    Indian tribes may not only classify types of membership and thereby qualify the property rights of certain members, but also the voting rights. Just as a tribe may ordinarily revoke membership a member of a tribe is also at full liberty to terminate his tribal relationship whenever he wishes.

TRIBAL CONTROL OF DESCENT AND OF PERSONAL PROPERTY DISTRIBUTION

    Unless and until Congress legislates, the tribes have power to prescribe how the property of its members shall be distributed after death. This power, like other tribal powers, may be exercised through the unwritten customs or usages or unwritten laws of the tribe. A tribe may provide that the property of a deceased who does not have any recognized heir shall go to the tribe. By acts of Congress the inheritance of possessory interest to allotments of land must be determined in accordance with the law of the state where the land is located. Since 1910, hearing examiners of the Indian Bureau travel to the various Indian reservations to determine the heirs and approve the wills of Indians who die owning allotted lands. Personal property on an Indian reservation and assignment of tribal property descend according to tribal laws.

TRIBAL POWER OVER REAL PROPERTY

    The power of an Indian tribe with respect to property derives from its right as an owner of property, as well as its power as a sovereign to regulate the use and disposition of individual property among its members. The sovereignty of a tribe extends over the property as well as the person of its members. For example, the tribal governments may pass ordinances which determine the validity of contracts between its members. The management of tribal property is increasingly becoming the major function of most tribal councils. It comprises the granting of loans from their own money or from a revolving credit fund borrowed from the federal government; the granting of relief and rehabilitation to needy members, the making of leases, permits, and assignments of tribal land, and the management of various kinds of tribal enterprises. The economic functions of many tribes are becoming more important than their political functions. An increasing number of ordinances have been enacted to protect fish and wild life on the reservations and to provide a more equitable use of tribal land, such as conserving it from over-grazing. Like other land owners, a tribe can charge rent to traders or other persons using tribal lands. Similarly, it can require persons not having any lawful right to be on tribal lands to leave. Until 1934, the Commissioner of Indian Affairs had authority to remove undesirable persons from Indian country which was then terminated.

    If a person without such a right refuses to leave the tribal lands when asked, the tribal officials can use all necessary force to evict. Sometimes it is

10

necessary to request the Indian Bureau to ask the Attorney General of the United States to bring an action of trespass against a recalcitrant person. Sometimes it has even been necessary to bring such suits against tribal members who occupy tribal land without the consent of the governing body of the tribe. Some of the instances grew out of a misunderstanding of the status of the land or improvements in question.

    Until the aIIotment system came into vogue by federal law, the basic pattern of land ownership for most tribes was common ownership of hunting, fishing and agricultural lands. Much of the farm land would be assigned by the tribe to the various families, usually for as long a period as they would use and occupy it. When such use ended the tribe would assign it to another family. The basic pattern of land ownership in our culture is individualistic. If a person uses and occupies land for a long time, he frequently feels that he is or should be the owner. This is especially true if he erects a home on it or makes other improvements. The rule of law is that if you occupy land of another under permit or lease, the improvements belong to the land owner, unless the permit or lease provides that they shall belong to the permittee or lessee after the termination of the permit or lease. This legal principle applies to Indian land, whether tribal or individual, with the same force as to non-Indian land.

    A tribe may not sell or mortgage realty, except with the consent of the Federal Government. Congress must pass a statute consenting to such alienation or granting to a Federal official, like the Commissioner of Indian Affairs, the power to consent.

Control Over Tribal Funds

    The various tribes vary greatly in their resources. Some have little or no tribal lands or funds. Others have large income from monies in their own treasuries, which are usually under their control, and monies in the United States Treasury which usually bear interest ranging from 3% to 5%. By 1949 a few tribes were able to spend money in the treasury for tribal purposes with the approval of the Secretary of the Interior without requiring a special act of Congress for each such expenditure. The Department is advocating a general bill which would grant the same authority to all tribes. Congress annually has appropriated a sum of money which the Indian Bureau allots upon request to the tribes for expenses of sending tribal delegations to Washington, D. C., to confer with Bureau officials and Congressmen. Since this money comes from tribal funds on deposit in the United States Treasury, tribes cannot finance their delegations in this way, unless they possess such funds.

    Tribes have voluntarily limited their power over their money by adopting limitations in their constitutions or charters and agreeing to restrictions in

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loan or trust agreements with the federal government. This is not unusual among non-Indian borrowers or grantees who agree to certain limitations to the use of their property in return for a loan or grant of money.

STATUTORY POWERS OF INDIAN ADMINISTRATION

     Various statutes have delegated certain powers to Indian tribes, such as the Indian Reorganization Act which granted organized tribes the right to be advised concerning appropriation estimates or federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and Congress. An opportunity to exercise this power has thus far been rarely given to tribes by the Government, except with respect to appropriations dealing with tribal funds. The Indian Reorganization Act also gives organized tribes the power to prevent the sale or disposition of tribal lands or other assets, including tribal funds, without its consent. This law also enables such tribes to fix the terms of their contracts with lawyers without the approval of the Secretary of the Interior, except that he must approve the choice of counsel and the amount of the fees. If the tribe is not organized under the IRA the Secretary must approve all the terms of a contract under which the tribe retains an attorney. By the Act of February 5, 1948, 62 Stat. 18, a right of way cannot be granted over any lands belonging to organized tribes without the consent of the proper tribal authorities. The Act of February 15, 1929, as amended in 1946, requires the consent of tribal governing bodies to the enforcement of state compulsory school attendance laws against Indian children and parents living on Indian lands.

    Tribes organized under the IRA are also empowered to carry on many duties which had been performed by Indian Bureau officials, through the organization of tribal enterprises or in other ways. The Solicitor of the Department of the Interior recently issued an opinion holding that the Department may delegate to a tribal government the clerical and ministerial duties involved in the leasing of tribal and individual lands, so long as the Department retains control of general procedures. Acting within this opinion the administrative work connected with leasing and land adjustment of Indian lands which has heretofore been handled entirely by government employees have been transferred in many cases to tribal enterprises. This principle may be applied without additional legislation in many other important fields, since an Indian tribe is an instrumentality of the Federal government.

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Tribal Relations With Governmental Agencies

    As more and more functions of the Federal Government are transferred to state and local governments, tribal relations with these governments may become as important as tribal relations now are with the Indian Bureau, the Department of the Interior and the Congress. Under tribal constitutions, recommendations of the tribe can always be made to any Government Agency on any subject and contracts may be negotiated by the tribes with such state and local governments.

TAXING POWER OF AN INDIAN TRIBE

    The power to tax has been said to be the power to destroy, but without the power to levy taxes, governments could not be maintained. In some cases, taxation may be the only or at least the main source of revenue of a tribe. An Indian tribe may tax its own members and non-members doing business within the reservation. A typical I. R. A. constitution authorizes the levy of taxes upon tribal members and, subject to review by the Secretary of the Interior, on non-members doing business within the reservation. Tribal tax ordinances have imposed sale taxes and license, permit and poll taxes on tribal members and permit and license taxes on non-members doing business on the reservation.

    If a person is not a government official on official business, an owner of land, a tribal member or the spouse of a member, or has no other lawful right to be on a reservation, he may be excluded or removed by the tribe from the reservation, or may be allowed to continue to reside or do business there on the condition that he pays rent or taxes for the privilege. The payment of a tax or license fee may be made a condition of the grant of a tribal lease, permit or other privilege.

WHAT IS AN INDIAN RESERVATION?

    Most questions of law affecting Indians arise out of events occurring on or near Indian reservations. This is understandable because about three-fourths of the Indians in the United States live on reservations most of the time. Their trips are for the most part to towns near their homes. For a few months each year about one-fourth of these Indians work off the reservation as migratory workers on railroads or in the harvesting of cotton, potato, beet or other crops. A like number dwell in outside cities. Many of the Indians who live permanently outside of the reservations return to the reservations in times of depression and mass unemployment. This trend is similar to that among other groups of people who originally earned their livelihood as farmers and ranchers in rural regions. When the factories close down and commercial employment becomes scarce, they are able to go back to the farm as laborers

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or as cattle workers. The lower expenses of living in the country are decisive at such bleak times.

    A greater acquaintance with Indian affairs has resulted from the increase of living and working together by Indians and non-Indians in many parts of the United States. Nevertheless, many state, municipal, county and other local officials are still hazy on questions of Indian law such as the following:

1. What is a reservation?

2. What is the authority of the state and local governments over Indians while they are off the reservation?                              

    Perhaps no term in Indian law, except "ward," is subject to more misunderstanding than "reservations." It conjures up a host of different pictures to people with varying backgrounds. General Sherman is said to have cynically described an Indian Reservation as "a tract of land entirely occupied by Indians and entirely surrounded by white thieves." To most Indians who reside on reservations, it means land which they use and occupy; it provides a place where they make a living; it is a home for themselves and their children.

Indians Can't be Restricted to Reservations

    Some people think of reservations as a kind of concentration camp in which Indians are segregated from the rest of the population.

    This misapprehension originated with early attempts by the army, abetted by the Indian Bureau, to keep Indians within a restricted area. The courts found, as they did when a similar attempt was made during the war to confine persons of Japanese ancestry to relocation centers, that such confinement of any citizen who is not accused of a crime is illegal and unconstitutional. Some credence has been given to some of the invalid regulations which were originally adopted for this purpose because some of them were still on the books up to about fifteen years ago and because many officials of the Indian Bureau found it difficult to change habits of thinking acquired over a long period of time. Actually Indians on reservations are owners of land and, like other owners, may stay on their land or go whenever they please.

What is a "Reservation?".

    Let us now give a lawyer's definition of an Indian reservation. The Supreme Court explains its meaning in the case of United States v. Celestine, 215 U. S. 278 (1909). Justice Brewer, speaking for a unanimous court, said:

    "The word is used in the land law to describe any body of land, large or small, which Congress has reserved from sale for any purpose. It may be a military reservation, or an Indian reservation, or, indeed, one for any purpose of which Congress has authority to provide, and when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress." (p. 285).

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---

    Like almost every term in Indian Law, "Indian Country" has been used in many senses. It may be defined as "country within which Indian laws and customs and Federal laws relating to Indians generally govern."  As we have shown in our discussion of Who Is an Indian,  the control of the Federal Government over Indians is mainly exercised through the control of Indian land. Of course, there are exceptions like the portion of the Indian Liquor Law, which prohibits the sale of liquor to Indians anywhere in the United States. It is also true that tribal law may, if the tribal governing body desires, apply to acts by members done off the reservation. The Hopi tribe made it a crime to conduct for profit their religious services off the reservation. A guilty member could be punished when he returned to the reservation.

    It is not necessary, as a matter of law, that the legal title to the lands involved should be in the United States, though this is the common method. The fee is lodged elsewhere in several reservations. For example, the Pueblos of New Mexico have the fee for the Pueblo reservations, the fee of the Tonawanda Reservation in New York is in the Comptroller General of the State of New York, the fee of the Sac and Fox Indian Reservation in Iowa is in the Secretary of the Interior, and title to some 100,000 acres of the Seminole Reservation in Florida is in the Board of Commissioners of State Institutions of Florida. Furthermore, land may be legally an Indian reservation even though it is commonly known by another name; for example, as Pueblos (certain Indian villages in New Mexico), rancherias (small Indian tracts in California), and colonies (the Reno Colony in Nevada).

    The Tribal Court ordinarily has no authority to punish the woman for a crime committed off the reservation. Certainly neither the local authorities nor the superintendent has the power to compel the woman to leave the city and come back to the reservation. However, it may be cheaper for the state or local officials to disregard their own obligations and to treat the Indian as a special obligation of the Indian Service. The local officials who take this action are often the first ones to condemn Indian Bureau officials for usurping powers which they do not possess. Furthermore, such procedures give the impression that the superintendent has powers over delinquent Indians which have not been vested in him.

    Perhaps the whole misunderstanding arises out of a misconception which still exists in the minds of many people and among some Indians and Indian 

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Bureau officials, namely, that Federal administrators, even in the absence of some statutory or treaty authority, have some omnipotent, omnipresent and overall authority over Indians because of their status as "wards," which they do not possess over other citizens. In 1868 the Supreme Court of the United States settled this question for all federal officials. The Court said in the case of "The Floyd Acceptances"  (7 Wall. 666, 7): "We have no officers in this Government from. the President down to the, most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority."
 

WHO IS AN INDIAN?

    The Indians of the area now called the United States were estimated at less than 800,000 at the time of the discovery of the new world. They were reduced to about 240,000 by 1887 but started increasing in the early part of the 19th century and now number over 400,000. While the death-rate of Indians has declined continuously since the turn of the century, it is still much higher than the rest of the population. The Indian birth rate has declined little, if any, during that period, and hence Indians are our fastest-growing population group. It has been predicted by a statistician of the Bureau that in fifty years this nation's Indian population will reach the some number as in 1492.
    An American Indian is sometimes called Amerindian to distinguish him from an East Indian or an inhabitant of India. A full-blood American Indian is a descendant of the original people of the new world who has no known mixture of other races. Descendants of those who inter-married with other races are generally called mixed-bloods. Formerly the word mixed-breed was used, but to some it has a derisive meaning because of the mistaken racist belief that they possess all the vices of both races but none of the virtues of either. The mixed-bloods typically bridge the gap between the Indian and white races. A few million people have a very small degree of Indian blood but are never regarded as Indians. The extent of this mixture with other faces determines the degree of the so-called biological or racial Indian.
 

Sometimes An Indian-Sometimes Not!

The determination of who is an Indian in the legal sense in any specific case depends upon the specific wording of some treaty, statute, or rule involved. The provisions vary greatly, and a person may be legally an Indian for some purposes and not for others. Many statutes just refer to Indians without defining the term. Such a law is usually interpreted to include some one who meets the following two qualifications: (1) Some of his ancestors lived in America before it was discovered by the white race (a biological Indian), and (2) The community in which he lives regards him as an Indian. A white man cannot meet the first test. Hence, even though adopted into an Indian tribe, he was held not to be on Indian within the meaning of the

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Trade and Intercourse Act of 1834, which provides that crimes by an Indian against the person or property of another Indian in Indian country shall be subject to Federal law. He would be a legal Indian for some purposes, however, such as being entitled to certain privileges in the tribe, and being amenable to their laws and usages. For the purpose of most Federal Indian laws and within the definition of Indian in the Indian Reorganization Act, the Natives of Alaska, which include Aleuts and Eskimos as well as several Indian tribes, are regarded as Indians. For a time, however, some courts and officials did not regard the Natives of Alaska or the Pueblo Indians of the Southwest as having the same status as other Indians. Some of these decisions were based on a misconception of Indians--an erroneous belief that "true Indians" were all improvident, lazy and savage.
 

Indian by Blood Not Necessarily a "Legal Indian'

    In determining whether a person is considered to be an Indian, under laws mentioning (but not defining) an Indian, the courts have heeded the recognition by the tribe or society of Indians and the recognition by the Federal Government as expressed in a treaty or statute. As a result, descendants of several Indian tribes with whom the United States never signed any treaty, and who are not specifically covered by any statute are not regarded as legal Indians with respect to Federal laws, Descendants of many such tribes live along the Atlantic Seaboard and Gulf Coast. The largest such group, numbering about 15,000, is the "Croatans" of North Carolina. Though predominantly Indian, the blood of this group has a mixture of Negro and white ancestry. It is without a trace of Indian culture and its attempts to secure recognition by the Federal Government as Indians have failed.

    Generally a high degree of color increases the handicaps of members of a minority race, That is one of the reasons why an individual with a high degree of Indian blood will be more likely to follow the customs of his people than one who might pass as a white man. An Indian who thus retains many of the old habits of living of his people is often referred to as o "Blanket Indian." There is a strong feeling on the part of some of these Indians that other Indians are too much like white people and that the Government should devote all its efforts to aid full-bloods. They resent the increasing power gained by the mixed-bloods who number over 60 per centum of the Indian population. Most of the full-bloods live in the Southwest.

 

Congressional Benefits Limited by Blood Quantum

    A realization of the greater need for protection of many dark-skinned Indians has caused Congress to limit the recipients of certain benefits to those with a certain quantum of Indian blood. Thus, most of the money appropriated for loans can only be used for Indians of one-fourth or more Indian blood. The same requirement must be met for admission to Federal Indian boarding schools. Regulations of the Indian Bureau and the Civil Service Commission have also imposed the standard of one-fourth degree of

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Indian blood for preference in employment in the Bureau and exemption from certain civil Service requirements. By the same method, when funds are insufficient to meet all demands, preference is given to those with a high degree of Indian blood, with respect to credit loans and admission to Indian hospitals and sanitoriums. Many tribes also prescribe a minimum degree of Indian blood or of the blood of the tribe for a person to be enrolled as a member. Aside from these limitations, generally, no specific amount of Indian blood is necessary in order to be regarded as an Indian by the Indian Bureau.

    Though a white man cannot by association become an Indian within the meaning of many statutes, an Indian under some circumstances may lose his identity as an Indian. For example, an Indian who is landless, or possesses only fee patent land has no restricted funds, and gives up or loses his tribal membership, ceases to be an Indian within the meaning of the Indian Liquor Law. This is the one Federal law which is racially discriminatory to Indians because it applies to anyone with any degree of Indian blood who may be considered as under the protection of the Federal Government. This law did not apply to the Natives of Alaska during most of the period preceding codification of the Federal criminal laws in 1948. The new code was interpreted administratively to make the Indian Liquor Law applicable to Indian reservations in Alaska as well as in the United States.

    Differences in race, nationality, language, and religion can cause sharp and serious differences and hostilities, but they need not do so . A sense of difference and exclusion, of group consciousness and solidarity, usually arises because of the rebuffs administered by the prejudiced members of the dominant group. These include attempts to compel assimilation. The status and attitude of the minority race are shaped largely by whether the dominant community receives them with open arms or erects barriers to their entrance into ,its society. The development of railroads, highways, and other forms of transportation and communication, the penetration of traders and missionaries, the development of cities and industries, the common experiences in the army or other labor, or in public schools combine with the increased dilution of blood to reduce the degree of lndianness of most Indians. Assistance in increasing their income and greater opportunities for managing their own resources and affairs will quicken assimilation. While the price of success will sometimes mean the loss or diminution of group ties, it should lead some Indians to a richer, fuller life than the limited opportunities offered by many reservations.

INDIAN TREATIES
Colonial Period

     The American colonial governments made man treaties and passed many statutes dealing with the Indians. Treaties with the Indians of New York, the Carolinas, and Georgia were made partly by the colonies and partly by the agents of Great Britain. Indian tribes of many other colonies dealt directly with the mother country. Before the settlement of Pennsylvania and Rhode Island,  William Penn and Roger Williams respectively treated with the Indians for their rights to the soil. The laws of the New Netherlands Colony issued about 1630 required the patrons to purchase from the Sachems the ground on which they proposed to settle. Many of the early colonial laws also applied the principle that the sale of Indian lands must be controlled by the government and could not safely be left to individual colonists. By the middle of the 18th century nine colonies had laws forbidding the purchase of Indian lands without the approval of the constituted authorities. Among the laws adopted in 1690 by the first general assembly of the Burgesses of Virginia were restrictions on the number of Indians allowed to settle with the whites.

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           Treaties With Great Britain
 

    After the outbreak of the French and Indian War, Great Britain temporarily took over from the individual colonies the problem of dealing with the natives. The Crown attempted vainly to prevent the influx of settlers west of the Appalachians in disregard of Indian rights, and on several occasions the Crown indicated its belief in the sanctity of treaty obligations, including those relating to Indian land tenure.

Treaties With the New Nation

    Under the Articles of Confederation the right of treating with Indians was reserved to the states in which the Indians resided. The Confederation reserved the right to regulate Indians and Indian affairs with Indians not residing in the states.

    The Federal Constitution contained a provision authorizing the making of treaties with Indian tribes. This was the principal source of Congressional authority over Indian affairs and of present services to Indians. Many statutes have been enacted to fulfill these obligations. Beginning with an Indian treaty submitted to the Senate by President Washington in 1789, successive Presidents with the consent of the Senate entered into and concluded treaties with most tribes and bands within the United States. The number reached 241 by 1842 or an average of about four a year. By 1868 when the last Indian treaty was made with the Nez Perce Indians the total reached 371. Many other treaties were negotiated but never ratified by the Senate.

    There are several common misapprehensions about Indian treaties. Many non-Indians do not know that these documents have the same effect as treaties with foreign countries, and that though treaty making was abandoned in 1871, the treaties then in existence did not lose their force. The only change was to substitute agreements with tribes, which must be ratified by both houses of Congress for treaties which required only Senatorial ratification. At the other extreme, many Indians attribute excessive power to treaties. They do not know that Indian treaties, like treaties with foreign nations, can be modified not only by the mutual consent of the parties, but also by a subsequent federal statute, A later treaty can also modify an earlier law in the same way. The power of congress to violate treaties does not authorize officials of the executive departments to commit the same sin.

    The first case in which the courts held that a treaty with an Indian tribe was not secure against modification by a subsequent act of Congress is known as the Cherokee Tobacco Case (78 U. S. 616). In framing the treaty of 1866 by which the Cherokee Nation ended its hostilities with the United States during the Civil War, a clever Cherokee named Boudinot  secured the incorporation of a clause exempting Cherokees from the operation of the Federal Revenue laws. He thereupon established in the Cherokee Nation a factory for the

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manufacture of tobacco which he marketed in the Indian territory and adjacent states without paying the revenue tax, which companies in the states were required to pay. He was prosecuted in the Indian territory, and on appeal it was held that the exemption in the treaty could not prevail against a subsequent law of the United States.

    Until the last decade of the treaty making period in the 1860's, terms familiar to modern international relations and diplomacy were used in Indian treaties. They frequently contained clauses guaranteeing the integrity of the tribe and relating to peace, war, boundaries, passports, extradition and foreign relations.

    As the new democracy became stronger and the powers of Indian tribes waned, the terms of the treaties became less favorable to the Indians. Language forms indicating that the parties were equal were replaced by terms emphasizing the dependence of the Indians on the United States. Some of the last treaties provide for the termination of treaty making, or even of tribal existence.

    In some cases, Indian treaties conferred on Congress the power to legislate on Indian Affairs, and the President was frequently granted administrative power' as "the Great White Father;" for example, to invest tribal money in stocks or to approve attorneys chosen by the Chiefs and Headmen. The main basis for many treaties was the cession of lands. In some cases, to soften the shock of land cession, the Indian tribes were guaranteed special rights in ceded lands. For example, in many treaties of the Northwest, they were granted other lands and the right to hunt and fish in their usual hunting and  fishing places off the reservation.

       During the period between the War of 1812 and the Mexican War, Indian treaty making was concerned almost solely with removing certain tribes of natives to the vacant lands lying to the west. These treaties provided for an exchange of land in the east in return for land west of the Mississippi. The first and most important of these treaties was concluded with the southeastern tribes, later known as the "Five Civilized Tribes," Many of these treaties provided that whites would be excluded from the new Indian lands which were never to be embraced within any state or territory. Some were signed under threat that the Indians would otherwise lose federal protection and be subject to state laws. Such threats or other duress or even evidence of fraud will not be investigated by the courts in considering the effect of a ratified treaty; neither will they inquire whether an Indian tribe was properly represented by its authorized headmen, These are political questions, the courts held, to be settled by the executive branch of the government.

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     During the years 1828-1840, when the migration program was at its height, treaties were concluded with the Sioux, Chippewa, Osages and many others Indian tribes providing for a considerable restriction of their lands.

    A group of post Civil War treaties were made with the Five Civilized Tribes and other tribes after their removal to the Oklahoma Territory. They contained provisions abolishing slavery and giving assurances that the civil and property rights of freedmen would be protected.

    The major functions of the Indian Service in rendering certain federal functions to Indians had their origin in various obligations of federal aid which constituted part payment by the ceding of lands. While generally the consideration paid to the Indians was in terms of money, the federal government in some cases undertook to furnish specified goods or services for a designated period of years. For example, the Navahos were promised for ten years one teacher for each 30 pupils, and they agreed that their children should attend the schools.

    Since Indians had little use for money, the practice arose of placing the money in trust in the United States Treasury and expending the principal or the interest of such funds for food, clothing, livestock, farm implements and the pay of blacksmiths, teachers, doctors and other skilled employees. To this day Indian funds are expended for these purposes, usually in accordance with the wishes of the Indians.

INDIAN TRADE

    Aside from the treaty power, the major source of Federal power over lndians is the provision in the Constitution conferring upon the Congress the power "to regulate commerce with the Indian tribes." At the time of the adoption of the Constitution matters internal to the tribes were left largely in the hands of tribal governments. Hence, the Federal power over Indian tribes was generally invoked in regard to transactions by which the Indians sought to dispose of their land 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. Many treaties contained trading provisions, like the grant to the Federal Government of the 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 unauthorized traders with the Indians were liable to forfeit their goods. Private enterprise did not succeed in this field, and in 1796 at his insistence, President Washington was authorized to establish the first government-owned and operated enterprise, consisting of trading posts in the western frontiers or in the Indian country. The trader in charge was an agent 

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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 came 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) licensing 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 may be required to prove to the satisfaction of the Commissioner that he is the proper person to secure a license. Ordinarily the Commissioner will not issue a license or renew a license without the approval of the tribal council,

Unauthorized Trader Subject to Penalty

    Any unauthorized trader introducing 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 eighteen years of age,

Traders Subject to State Taxation-and Tribe! Taxes, Too

through British Columbia and Alaska. Soon the new drinks became popular objects of trade and even played a role in treaty-making and 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 by 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 also prohibit this traffic.
    The control of the distribution of liquor 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 territory and other property of the United States, plus the recognized relations of tribal Indians to the United States. The power over trading with Indians 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 tribes. The Indian Liquor Law falls into two main categories:

    No subject in the whole realm of Indian affairs is so confused as the status of an Indian. Often we refer to the Indians as wards of the Government, but this term has been used in so many ways and so ambiguously since Chief Justice Marshall first applied it to Indian tribes in 1831 that it is now more confusing than helpful. Marshall first used the term to describe the relationship between the United States and Indian tribes and to denote a special responsibility for protection, which the United States owes to Indian tribes by virtue of treaties and the grant of power to the Federal Government over Indians in the United States Constitution. Since it has subsequently been applied to individual Indians as well as tribes and been frequently used by courts, legislators, officials and Indians, it might be helpful to discuss the differences  

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between the legal position of Indians and the ordinary relationship between a guardian and a ward.

 

    The guardian can usually decide where the ward is to reside. In a series of treaties in 1865 many Indian tribes agreed that their members were not to leave their reservation without the written consent of the agent or superintendent. Many peaceful Indians were kept on the reservations and treated like prisoners of war while the last Indian wars were being fought in the Middle West. The regulations of the Indian Bureau controlled the movement of Indians up to 1934, when such regulations, which had been largely disregarded since the turn of the century, were eliminated. Any Indian is now entirely free to come on and go off a reservation as he pleases. He can live and work on the reservation, or he can live and work elsewhere. If he chooses, he can move away from the reservation and never come back.

    A guardian must educate, provide for and maintain his ward out of the ward's property. In this the Indian status is not true wardship. An Indian is not entitled to rations, payments or continuous support from the government. He is, however, entitled to education, social security or any other services by the state, Federal or local governments on the same basis as a non-Indian. The fact that the Federal Government owes certain special obligations to members of some tribes because of treaties and agreements does not detract from this obligation any more than Federal pensions to veterans or governmental exemption from certain taxes granted to veterans and homesteaders do not detract from their rights to governmental services. Hence, an Indian can go to public schools or to Federal Indian schools as he wishes. Some tribal monies have been used to pay for education, hospital and other services, and these expenditures, when applied as "offsets" have frequently diminished or wiped out claims which courts have decided Indian tribes were entitled to against the United States. In 1946 the Indian Claims Commission Act changed this unjust system. Such expenditures by the Federal government for Indians of any tribe cannot be deducted from awards mode by the Commission to that tribe.

Government extend merely over certain restricted property of the Indians and not over his person. Hence, Indians even before they became citizens were able to sue and be sued and make contracts with other people the same as any other person. The one exception was and is that some contracts concerning their restricted or trust property must be approved by a Federal official. The purpose of the restrictions in various statutes is to prevent the unwise sale of . the land or the spending of money. Such lands cannot be sold or mortgaged without the consent of a Federal official or of the Congress. Creditors are hampered by several statutes from collecting on their judgments against the restricted property or funds of Indians. By an amendment to the General Allotment Act in 1906, allotments cannot be sold to pay for any debt contracted prior to the issue of the final patent in fee. However, mortgages on crops growing on allotted lands are enforceable if the allottee has been granted the privilege of making his own leases.
 

    Another duty of the guardian is to enforce or defend the rights of the ward, by bringing suit on his behalf, if necessary, or defending him in a suit brought against him. Since the title to most Indian lands is in the United States, the Departments of Justice and Interior frequently furnish legal services in matters involving property rights of the Indians to their trust lands or restricted funds, including the breach of a lease on restricted lands like the failure of the lessee to comply with a provision to pay rent or make improvements or practice conservation on the leased premises. Suits have also been brought by the Department of Justice, at the request of the Department of the Interior, to protect property rights guaranteed by treaties, such as fishing in the usual and accustomed places off the reservation. Generally a suit cannot be brought by a Federal official without the consent of the Attorney General. If the field officials of the Indian Bureau request him to do so, the United States Attorney may bring the following classes of suits without such prior consent: actions to evict, to enjoin trespass, to collect delinquent rentals, and for damages of between $25 and $1,000,  

     But Indians are not entitled to legal services with respect to ordinary matters in which the Government has no special concern, for example, defense to an ordinary criminal charge or a civil action for negligence in driving an automobile into a pedestrian, or for a breach of a lease on unrestricted lands. Indians when engaged in a court action are also subject to the same defenses as other people except with respect to restricted property, They, like others, may lose their rights because of laches or the running out of the Statutes of Limitations, which requires the beginning of a suit within a period of time prescribed by law.  A judgment entered in a suit against on Indian may be enforced against any unrestricted property which the Indian judgment debtor may own, free from Federal control.

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    The whole question of incompetency, like that of wardship, has been confused by the frequent use of the term "incompetency" to cover various types of meanings. In some statutes and treaties "incompetency" is used in the ordinary way, namely, inability to manage one's own affairs, but frequently an Indian is said to be incompetent in another sense, that is, his land is restricted so that he cannot sell or mortgage it. Vice-President Curtis was an "incompetent" Indian in this sense. He could not dispose of his trust property by deed or will without securing the approval of the Secretary of the Interior.

   CITIZENSHIP
 

    All Indians born in the United States have been citizens since 1924. Two-thirds of them became citizens by treaties or by special or general statutes naturalizing members of certain tribes or Indians with allotments. Citizenship was conferred as a reward for accepting the allotment of land, serving in the United States Army during World War I or marrying a white man. This selective process, which covered a century, was ended by the Indian Citizenship Act of 1924, which was a reward to all Indians because of those who had served so loyally in World War I. In some cases the Indians did not welcome Federal citizenship. In part this was due to an ill-founded fear that citizenship would end tribal membership, as well as the special protection by the Federal Government. Citizenship, though often associated with possession of unrestricted property, is unrelated to it. For example, incompetent persons and minors are citizens but cannot dispose of or control their property.

RACIAL DISCRIMINATION

    Pope Paul III on January 4, 1537 officially proclaimed the proposition that Indians ore human beings. The basic fabric of the democratic way of life--that all races are entitled to equal treatment--is affirmed by several provisions in the Federal Constitution and many state constitutions. Several discriminatory Federal laws have been repealed which were largely aimed at Indians when some of them were at war with the United States. These include the right of the Commissioner of Indian Affairs, with the approval of the Secretary, to remove any person from the reservation whose presence, in his judgment, "may be detrimental to the peace and welfare of the Indians." Other statutes of this kind authorized the President to employ military forces to enforce various laws and to arrest absconding Indians.

    An increasing number of states, perhaps almost half, have enacted civil rights laws prohibiting racial discrimination, and such discrimination is prohibited in some specific Federal statutes. Several states and cities hove also passed Fair Employment Practice Acts setting up a commission or bureau to prevent discrimination in employment or in other ways because of race, religion or creed.

    While most state laws discriminating against Indians have been repealed, a few are still on the statute books. They prohibit Indians from serving on a jury or testifying in a law suit involving a white man. The Supreme Court has held that the systematic exclusion of members of a particular race from a jury whether grand or trial would necessitate a reversal of the conviction and a new trial before a jury properly selected. The same illegality nullifies obsolete laws which exclude Indians from voting, holding public office or testifying if a different standard of qualification was applied to Indians than to whites. Even if such laws are not repealed, they are unconstitutional, and 

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their enforcement by state officials might violate the Federal Civil Rights Laws. Where an Indian is abused by any state or local officer and the state officials fail to act, the matter may be referred to the Department of Justice for criminal prosecution by the Civil Rights Section of the Criminal Division. The most usual type of case involves police brutality, unwarranted arrest, or other official interference with the rights of the victim. When any person, whether an official or not, denies on the basis of race, the right of an Indian to vote in any state or federal election, a prosecution may also be brought under the Federal Civil Rights Laws.

    Seven of the thirty state miscegenation laws which prohibit the intermarriage between certain races apply to Indians. The California Supreme Court in 1948 held that the state law which prohibited marriage between whites, negroes and other races violated the state and Federal constitutions.

    There is one series of laws which some people feel is discriminatory in favor of the Indians. These laws give to Indians preference for employment in the Indian Bureau. For over a century Congress has manifested its intention of permitting Indians to receive special consideration for employment in the Indian Bureau. This was motivated by a belief that such work would help "civilize" Indians. It was also felt that Indians would be more likely to know one of the Indian languages and Indian customs and feel a bond and sympathetic understanding toward the members of their own race. The fact that these laws were often not followed by administrative authorities is indicated by the frequency with which Congress has repassed such laws. The last provision of this kind was contained in the Indian Reorganization Act of 1934. Indian preference applies primarily to admission to the Service, but if two applicants for promotion are considered otherwise equally qualified but one is an Indian and one not, the Indian should be granted the promotion.

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To be published during fall 1949
THE INDIAN THE LAW-II

by Theodore H. Haas, Chief Counsel

United States Indian Service

To answer the following 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 property?

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?