The Indian & The Law -- 2

By THEODORE H. HAAS, Chief Counsel
United States Indian Service


A brief layman's answer to the questions:

1. Whet 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?





J. A. KRUG, Secretary


JOHN R. NICHOLS, Commissioner
WILLIAM ZIMMERMAN, JR., Assistant Commissioner
JOHN H. PROVINSE, Assistant Commissioner


Willard W. Beatty, Director
P. W. Danielson, Associate Director


Haskell Institute Printing Department
October 1949--10M

Additional copes of this pamphlet may be obtained from
United States Indian service
Washington 25, D. C.
Haskell Institute, Lawrence, Kansas


    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 referred to for more complete and exact information. There will be found amplification 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 non-technical layman as possible. At the risk of lowering his prestige as a lawyer, Mr. Haas has permitted many of my suggested simplifications to stand, even though he recognized 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.                                                                                         Willard W. Beatty,
                                                                                                                Director of Education.








    1.    CONGRESS: Commerce With Indian Tribes 1
    2.    CONGRESS: Treaty-Making 1
    3.    CONGRESS: War 1
    4.    CONGRESS: Public 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
    Right of Discoverer to Lands 10
    Rights of Individual Members in Tribal Property 10
    Tribal Lands Sometimes Treated as public Lands 11
    Ownership by More Than One Tribe 11
    Title by Aboriginal Possession, Treaty, Statute and Purchase 11
    Executive Order Reservations 12
    Purchase of Land by Tribes 12
    Extent of Tribal Rights in Land 13
    Tribal Water Rights 13
    Tribal Right vs. State Right in Navigable Waters 14
    Irrigation Charges 14
    Tribal Conveyances 14
    Tribal Right to Receive Funds-Claims 14
    Tribal Right to Spend Funds in Treasury 15
    Allotment 15
    Patents in Fee 16
    Ending of Allotment Policy 16
    Freedom from Encumbrances 17
    Restricted Funds 17


CONTENTS (Continued)

    Leasing of Indian Lands 17
    Permits 18
    Who Owns Improvements? 18
    Trespass 19
    Sale of Trust Livestock 20
    Condemnation of Indian Lands 20
    Rights-of-Way 21
    Hunting and Fishing 21
    Real Property Tax--Local, State and Federal 22
    State Income 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 Band? 26
    Legal Status 27
    Corporate Capacity 28
    Contractual Capacity 28
    Capacity to Sue 29





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 oil transactions by which the Indians dispose of land or other property in change for money or other products. Many aspects of intercourse, suck

crimes by whites against Indians and by Indians against whites, survey of I( trespass and settlement by whites in Indian country, and the furnishin:

services and money by the Federal Government have been held to come wi this commerce power.

2. CONGRESS: Treaty-Making

The treaty power is granted by the Constitution to the President with

consent of two-thirds of the Senate. Many statutes have.also been passec

this has been the source of nlating to or supp 2 I menting treaties. In fact, Federal services to Indians.


Our national policy towards hostile Indian groups has been war. O\

thousand statutes, public and private have been enacted by Congress dei with Indian warfare. Part of our expansion in territory, such as the OCCUPC of Florida by United States troops, wos deemed necessary to protect th

habitants of Florida against hostile Indians on the peninsula. Our Federc dian law books are still studded with obsolete statutes dealing with the has of Indians many of which were passed as late as the last half of the ninete

century. For example an 1862 statute authorized the breaking of treaties tribes which had engaged in hostilities. This law was aimed at some tribe:


cluding an important group in Oklahoma, most of whose members joined the Confederacy. In 1867 a law authorized the withholding of annuities from hostile 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 offered the means for broad control over the Indians and the effectuation of many Indian policies, such as the western removal of Indians and the establishment 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.

5. 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 allotted 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 public or private purposes. Consequently, Congress has wide power, ranging from the control and the use of the land and the extinguishment 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 liable 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 permits 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 10 years of the passage of the act. Appeals may be taken on legal issues to the Courts of Claims and Supreme Court, but findings 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 required to induce the Congress to pass an act allowing suit, called a jurisdictional 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. White 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 reduced 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 under 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 to wards the release, extension or reimposition of restrictions surrounding their alienation. The policy zigzagged. At times emphasis has been placed upon conserving Indian lands; at other 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 still 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 good faith of the grantee of



the land conveyed, the conveyance is void. Such restrictions, however, cannot be made retroactive so as 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 hove become citizens.

    Despite these limitations, individual Indian land, like any Private Property, cannot be taken from the Indians without due process of law. An allotment 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 Principles concerning the power of Congress over restricted lands apply to individual 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 allotted 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 agreement 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 contract 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 Indian can retain a lawyer of his own choice. The Government sometimes will provide counsel to help the Indian receive 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:

    1. 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 satisfaction of    
         treaties--often in payment for land taken by the Government.
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 Interior Department of the extensive control over funds. Individual Indian accounts which 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 approval for the expenditure of very large amounts but without the necessity 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 Secretary of the Interior must approve such expenditures.

7. CONGRESS: Membership

    The United States may assume full control over Indian tribes and determine membership in the tribes for the purpose of distributing funds in lands and adjusting rights in tribal property. As part 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 law provides that children born of a marriage of a white man to an Indian woman, who was a member at the time of her death, shall have the same rights and privileges to the property of the tribe as other members. Enrollment 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 laws 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 Crafts Board was established in 1936 to promote the economic welfare of Indians through the development and marketing of Indian arts and crafts. 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 controversies 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 fraud, 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 Indians whereby they would give up the lands that the settlers wanted, to regulate trade with the Indians, to provide for their removal from lands wanted by the settlers, and to civilize the Indians through manual training, agriculture and mechanics. Later the reservation policy of concentrating large numbers of Indians on smaller lands was followed. This was desirable because if the Indians continued to hunt and fish and live a nomadic life they used



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 lndians 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 mainly exercised 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 policy 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, low and order, and resources, which includes forestry, soil 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.




3. ADMINISTRATIVE: Source of Services to Indians

    Many of the Federal services to Indians grew out of treaty provisions. 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, forming 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 10 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 non-restricted 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 stores except New Mexico and Arizona provide the Indians with social 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 received. 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




cancelled and no more assessments of construction charges should be made so long as the Iands 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 Reorganization 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.


    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 believe that they were in fact, dictators. It is true that Congress has delegated very brood 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 exercised 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 deportment 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 representative. As the functions of government increased in number and complexity, it become 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




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 regarding 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 requires, however, that the Secretary publish the rules setting forth how delegated powers should be exercised. It also provides for appeals to him from the decisions of his subordinates. An important power which has been delegated to field 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 assistance and relief of Indians. Federal moneys and Federal facilities may be turned over to such state or private agencies.


(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 are 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 have 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 private 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 sale or lease of Indian lands, timber or minerals. There are sometimes a few exceptions to this requirement. For example, the




Indian Right-of-Way Act of 1948 requires 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.


    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 concerning tribal membership. In the absence of fraud or arbitrary action, the court will not issue a writ of mandamus or order against such officials if the question involves the exercise of judgment or discretion. Such an order may be issued in a proper case to compel an official to perform a ministerial or routine act.

Right of Discoverer to Land

    Discovery was the main 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 con 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


a member assigned a tract of land to designate an 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 are found in four laws 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 farmers in conformity with the white man's civilization. These laws protect the important tribal rights of Indian allottees, homesteaders, Indian women who became citizens of the United States by marrying a citizen, and the children of an Indian woman who married a white man.

Tribal Lands Sometimes Treated As Public Lands

    Indian tribal lands are 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 have for some purposes been treated 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 have become subject to certain laws affecting the public domain. In one case this was harmful to the Indians--the Papago Indian Reservation was made subject to the mineral leasing laws 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 large judgment against the United States because, without their consent, another tribe, the Arapahoes, were placed on their lands. In the case of a reservation established in 1882 for the Hopi Indians, and others who may be settled there by the Secretary 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 Secretary 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




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 Interior is authorized to make temporary withdrawals of surplus land of Indian reservations from other disposition until the matter of permanent restoration of ownership to the tribe under the Indian Reorganization Act may be given consideration. While the two major methods of establishing an Indian reservation 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 is 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 establishing Indian 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 reservations 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 reservations of public lands, including coastal waters, as well as certain other executive reservations, do not convey any permanent right of use and occupancy on the Indian beneficiaries, 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 Claims 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, both of which were purchased by the Federal Government, have the same status as the lands which the United States acquired by conquest.



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 will 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 alienation.

    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 reservation 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 Treasury.

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 flawing 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 or 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 diverted 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 reservation or such part of the land as the Indians reasonably might be expected to use. Nevertheless, the extent of the reserved water right depends to a great degree upon the amount of water which the Indians actually use. The Indian




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 commercial 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 underlying 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 Indian resources. The Indians lost the first few cases tried by the Indian Claims Commission on




the ground of res adjudicata, which means that the claim had previously been decided 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 motor 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) Equalization 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 thus 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.


    In the beginning, most Indian tribes had all their land in tribal ownership. 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 reservations. Today there are about 20,000,000 acres of allotted lands and about 36,000,000 acres of tribal lands.


    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 port 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 reservations who otherwise could not receive an allotment. An Indian could not be a



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 the 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 make 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 approved 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 ordinary white-owned land. It can be sold or leased without Government approval. In many cases, patents in fee were given without the consent of the Indians. In 1909 Congress authorized the Secretary to cancel any such patents of unsuitable land and the exchange therefore 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 possessory rights with respect to the improvements and the timber upon his allotment, 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 without 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




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 restricted lands are prohibited. Mortgages on growing crops have been upheld. Restricted lands cannot be encumbered by judgments entered against an allottee, whether based on tort or contract. Contracts providing for the sale of allotted lands are void, and any money 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 inability 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 concerns and thereby secure some of the benefits of the GI bill of rights. The Federal Government guarantees part of the loan, but if the Indian lacks sufficient security, many private lending companies refuse to make loans.

    At the death of an allottee if there is no will governing the allotted property, it descends in accordance with the state laws, which are administered by officers called Examiners of Inheritance. After the heirs have been determined, the Secretary of the Interior may have the lands partitioned or divided. However, the IRA authorizes the Secretary of the Interior to approve exchanges of allotted lands of equal value whenever such exchange, in his judgment, 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 allotment 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.


    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, like 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-




teenth century, various authorizing statutes were passed. Some of them dealt with particular tribes, but beginning in1891 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) lands belonging to incorporated tribes may be leased for a period of 10 years for such purposes as are permitted by the tribal charter, and (d) land may be leased for mining so long as income producing 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 non-resident allottees whose whereabouts are unknown.


    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 remove 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 governments 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 general bill authorizing certain leases for 25 years is advocated by the Indian Bureau and many Indians.





    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 thereon, 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.




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 organization 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 Reservation Superintendent.

Condemnation of Indian Lands

    Under the Federal Constitution, any lands, including Indian lands, may be taken far 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 explained 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 violated, 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 agreement on the value of the land, it could include in the agreement the right to 


sue in the Court of Claims, or to petition Congress for additional sums of money or land.


    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 exception 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 mode 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





    There are two provisions in the Federal Constitution which refer to Indians. 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 jurisdiction 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 until 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 Government 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 covered 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 interpretations 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 restricted 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 on exception to this rule. Lands on the Omaha and Winnebago Reservations of Nebraska are subject to taxation but are not subject to sale for delinquent taxes.




    When a tax immunity is offered to individual Indians by Federal law or treaty by way of inducement to a voluntary transaction, like 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 Income 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 production 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, attempts 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




example, interest in government bonds or profits from cattle, which were purchased 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 acquired 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 exemption of $60,000. Any Indian dying leaving an estate valued at less than this figure would not be liable for Federal estate taxes. Should 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 Social 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 decision 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, Section 101 (8), which exempts among others "organizations not organized for profit but operating exclusively for the promotion of social welfare." It is believed that Indian-chartered corporations, unincorporated tribes and bonds 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 agricultural 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-members does not exceed the amount marketed for members.





    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.


    The question 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-or-no 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 ethnological 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 distinct groups, the Arickaras, Cros 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 I.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." The application or constitutionality of congressional or state legislation affecting individual Indians often depends upon whether they are living in tribal relations 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


Secretary of the Interior can act arbitrarily or unreasonably in this determination. 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 defendant 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.


    Sometimes it is necessary to determine what is a band. Many cases involving 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 action 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. Sometimes 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 organized 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 council 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 organize under the Oklahoma Welfare Act. In historical times 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 bond down to the present time.

Secretary of the Interior can act arbitrarily or unreasonably in this determination. 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 defendant 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.


    Sometimes it is necessary to determine what is a band. Many cases involving 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 action 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. Sometimes 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 organized 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 council 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 organize under the Oklahoma Welfare Act. In historical times 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 bond down to the present time.




    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.

Legal Status

    Indian tribes originally could make treaties. Since 1871, when treaty making 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 on 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




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 individual 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 Indian Reorganization Act does not relieve a 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 generally 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 contract 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 contract, 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 effective 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 approved 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-




cludes 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 States, and (2) against third parties to determine questions of ownership or to determine the measure of compensation due from third parties for property taken. There are also a few statutes authorizing suits against tribes. For example, the Depredation Statutes allowed the execution of a judgment gained in a suit against the tribes upon the tribal funds of the tribes in the United 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 against an 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 Indian Claims Commission Act.


    Aside from the treaty power, the major source of Federal power over Indians is the provision 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 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 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) 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 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. lf 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.


    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


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 territory and other property, plus the recognized relations of tribal Indians to the United 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 fails into two main categories:

    (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 misdemeanor 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 allottee 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 intoxicants. 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 governmental ownership of the automobile or other vehicle which is used in introducing or attempting to introduce the intoxicants in the Indian country and to places where their introduction is prohibited by treaty or Federal statute. Generally the vehicle 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 Service to exercise the powers of searching and seizing intoxicating liquors, subject to the constitutional restriction on unreasonable searches and seizures. In 1912 such




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.


    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. Then 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 practicable. 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.




    The first and most important field in which state laws have been applied generally to Indians is the field of inheritance. 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 withdrawn from all matters of descent and partition concerning these allotments, except insofar as these matters are otherwise covered by Federal statutes. Between 1887, the date of the General Allotment Act, and 1910, no definite Federal statute governed the inheritance of allotments, and whenever the allottees died the state laws were enforced by various courts. In 1910 the Secretary of the Interior was granted full power to determine heirs and partition allotments, 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 Secretary of the Interior may devise restricted lands to persons other than her husband, even though the state law prohibits a married woman from bequeathing two-thirds of her property away from her husband. Under the Indian Reorganization Act an Indian's real property and shares in a tribal corporation may be devised only to his heirs, to members of the tribe of the reservation, or the tribe itself.

    A second body of state laws which have been extended over Indian reservations beginning in 1898 by the Federal Assimilative Crimes Act makes offenses by non-Indians against Indians or their property, or vice versa, punishable in the Federal courts in accordance with state laws existing at the time of the enactment in question. Two of the major crimes, rape and burglary, committed 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 land 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 an opportunity to make pretests or recommendations with respect to specific state regulations thus proposed for extension to the reservation. If no objections are received, the Secretary of the Interior approves the proposals and the state laws apply to the Indians on their




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.


    Many acts of Congress have also conferred many powers upon courts, legislatures 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 territory 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 Indian land. Subsequently, laws have been passed to the same effect for the Indians 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 Indians reside. This state was authorized to tax oil and gas production 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 ammunition to Indians. Other examples are as follows: (1) The New York State laws, which prohibit trespass upon Indian lands, and (2) the North Carolina law, which requires school attendance of the Eastern Cherokees, 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 affairs on Indian reservations is exclusive. In all these cases the state law is an aid to the carrying out of Federal Indian law and policy.


    The second major field which is an exception to the general rule that full authority over Indian affairs on Indian reservations rests in the Federal Government to the exclusion of state governments, is where the matter involves



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 within 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 exercised 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.




For your better understanding of the
Indian Problem:


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 William E. Warne
When An Indian Enters the Business World by Ruth Underhill
Indian Rights and Their Protection by William E. Warne
A Year of Opportunity by William Zimmerman, Jr.
Significant Dates in the History of the Indian Service
Pamphlet I--Questions on Indian Culture
Pamphlet II--Questions on Education, Health, Land, Citizenship, Etc.
Pamphlet Ill--Statistical Tables on Hospitals, Schools and Population

Free on request


1. Ten Years of Tribal Government under the Indian Reorganization Act by Theodore H. Haas
Including copies of the act; and a list of tribes 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. Haas

All of these publications were prepared by the staff of the United States Indian Service and printed by Indian pupils in the print shops of the vocational schools of the Indian Service.


Lawrence, Kansas

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