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States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the State within whose limits they resided."

    True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self-government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. Cherokee Nation v. Kansas Railway Co., 135 U.S. 641, where the cases are fully reviewed. But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee Nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States. It follows that as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment, which, as we have said, had for its sole object to control the powers conferred by the Constitution on the National Government. * * * (At pp. 382-384).

    Added recognition of the sovereign character of an Indian tribe is found in the case of Turner v. United States and Creek Nation (51 Ct. Cls. 125, aff'd 248 U.S. 354). Rejecting a claim against the Creek Nation based upon the allegedly illegal acts of groups of Indians in destroying the fence of a cattle company, the Court of Claims declared:

* * * we must apply the rule of law applicable to established governments under similar conditions. It is a familiar rule that in the absence of a statute declaring a liability therefor neither the sovereign nor the governmental subdivisions, such as counties or municipalities, are responsible to the party injured in his person or estate by mob violence. * * * (At p. 153.)

    The contention that the United States courts had jurisdiction in a case of this sort was based upon the language of a treaty with the Sioux, rather than upon considerations applicable generally to the various Indian tribes. The most important of the treaty clauses upon which the claim of Federal jurisdiction was based provided:

    And Congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life. (At p. 568.)

    It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all, that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor and by education, it was hoped might become a self-supporting and self-governed society. * * * (At pp. 568-569).

    In finally rejecting the argument for Federal jurisdiction the Supreme Court declared:

* * * It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. (At p. 571).

    We shall defer the question of the exact scope of tribal jurisdiction for more detailed consideration at a later point. We are concerned for the present only in analyzing the basic doctrine of tribal sovereignty. To this doctrine the case of Ex parte Crow Dog contributes not only an intimation of the vast and important content of criminal jurisdiction inherent in tribal sovereignty, but also an example of the consistent manner in which the United States Supreme Court has opposed the efforts of lower courts and administrative officials to infringe upon tribal sovereignty and to assume tribal prerogatives without statutory justification. The legal powers of an Indian tribe, measured by the decisions of the highest courts, are far more extensive than the powers which most Indian tribes have been actually permitted by omnipresent officials to exercise in their own right.

    The doctrine of tribal sovereignty is well summarized in the following passage in the case of In re Sah Quah (31 Fed. 327):

    From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs, subject, however, to such restraints as were from time to time deemed necessary for their own protection, and for the protection of the whites adjacent to them. Cherokee Nat. v. Georgia, 5 Pet. 1, 16, 17; Jackson v. Goodell, 20 Johns. 193 (At. p. 329.)

    And in the case of Anderson v. Mathews (174 Cal. 537, 163 Pac. 902), it was said:

* * * The Indian tribes recognized by the federal government are not subject to the laws of the state in which they are situated. They are under the control and protection of the United States, but they retain the right of local self-government, and they regulate and control their own local affairs and rights of persons and property, except as Congress has otherwise specially provided by law. * * * (At 163 Pac. 905.)

    The acknowledgment of tribal sovereignty or autonomy by the courts of the United States has not been a matter of lip service to a venerable but outmoded theory. The doctrine has been followed through the most recent cases, and from time to time carried to new implications. Moreover, it has been administered by the courts in a spirit of whole-hearted sympathy and respect. The painstaking analysis by the Supreme Court of tribal laws and constitutional provisions in the Cherokee Intermarriage Cases (203 U.S. 706) is typical, and exhibits a degree of respect proper to the laws of a sovereign state. If verbal recognition is needed, there is the glowing tribute which Judge Nott pays to this same Cherokee Constitution in the case of Journeycake v. Cherokee Nation and United States (28 Ct. Cls. 281, 317-318):

    The constitution of the Cherokees was a wonderful adaptation to the circumstances and conditions of the time, and to a civilization

that was yet to come. It was framed and adopted by a people some of whom were still in the savage state, and the better portion of whom had just entered upon that stage of civilization which is characterized by industrial pursuits; and it was framed during a period of extraordinary turmoil and civil discord, when the greater part of the Cherokee people had just been driven by military force from their mountains and valleys in Georgia, and been brought by enforced immigration into the country of the Western Cherokees; when a condition of anarchy and civil war reigned in the territory-a condition which was to continue until the two branches of the nation should be united under the treaty of 1846 (27 C. Cls. R., 1); yet for more than half a century it has met the requirements of a race steadily advancing in prosperity and education and enlightenment so well that it has needed, so far as they are concerned, no material alteration or amendment, and deserves to be classed among the few great works of intelligent statesmanship which outlive their own time and continue through succeeding generations to assure the rights and guide the destinies of men. And it is not the least of the successes of the constitution of the Cherokees that the judiciary of another nation are able, with entire confidence in the clearness and wisdom of its provisions, to administer it for the protection of Cherokee citizens and the maintenance of their personal and political rights. (At pp. 317-318.)

    If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausibility in this reasoning. But they are strangers to the common law.⁴ They derive their jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew. With them, "to indict" is to file a written accusation charging a person with a crime.

    The Choctaw constitution was not drawn by geologists or for geologists, or in the interests of science, or with scientific accuracy. It was framed by plain people, who have agreed among themselves what meaning should be attached to it, and the courts should give effect to that interpretation which its framers intended it should have.

    Thus, U.S. Code, title 25, section 63, provides that the President may "consolidate one or more tribes, and abolish such agencies as are thereby rendered unnecessary," but that such action may be undertaken only "with the consent of the tribes to be affected thereby, expressed in the usual manner."

    Section 111 of the same title provides that payments of moneys and distribution of goods for the benefit of any Indians or Indian tribes shall be made either to the heads of families and individuals directly entitled to such moneys or goods or else to the chiefs of the tribe, for the benefit of the tribe, or to persons appointed by the tribe for the purpose of receiving such moneys or goods. This section finally provides that such moneys or goods "by consent of the tribe" may be applied directly by the Secretary to purposes conducive to the happiness and prosperity of the tribe.

    Section 115 of the same title provides:

    The President may, at the request of any any Indian tribe, to which an annuity is payable in money, cause the same to be paid in goods, purchased as provided in section 91.

    Other statutory provisions of general import, confirming or delegating specific powers to the Indian tribes or their officers, are: U.S. Code, title 25, sections 48, 130, 132, 159, 162, 184, 218, 225, 229, 371, 397, 398, 402.

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    ⁴ See Waldron v. United States, 143 Fed. 413; Hanson v. Johnson, 246 Pac. 868 (Okla.).
 

    These latter provisions are discussed later under relevant headings.

    The whole course of Congressional legislation with respect to the Indians has been based upon a recognition of tribal autonomy, qualified only where the need for other types of governmental control has become clearly manifest. As was said in a report of the Senate Judiciary Committee (prior to the enactment of U.S. Code, title 18, sec. 548): "Their right of self-government, and to administer justice among themselves, after their rude fashion, even to inflicting the death penalty, has never been questioned." (Sen. Rep. No. 268, 41st Congress, 3d session.)

    It is a fact that State governments and administrative officials have frequently trespassed upon the realm of tribal autonomy, presuming to govern the Indian tribes through State law or departmental regulation or arbitrary administrative fiat, but these trespasses have not impaired the vested legal powers of local self-government which have been recognized again and again when these trespasses have been challenged by an Indian tribe. "Power and authority rightfully conferred do not necessarily cease to exist in consequence of long nonuser." (United States ex rel. Standing Bear v. Crook, 5 Dill. 453, 460.) The Wheeler-Howard Act, by affording statutory recognition of these powers of local self-government and administrative assistance in developing adequate mechanisms for such government, may reasonably be expected to end the conditions that have in the past led the Interior Department and various State agencies to deal with matters that are properly within the legal competence of the Indian tribes themselves.

    Neither the allotting of land in severalty nor the granting of citizenship has destroyed the tribal relationship upon which local autonomy rests. Only through the laws or treaties of the United States, or administrative acts authorized thereunder, can tribal existence be terminated. As was said in the case of United States v. Boylan (265 Fed. 165) with reference to certain New York Indians over whom State courts had attempted to exercise jurisdiction:

* * * Congress alone has the right to say when the guardianship over the Indians may cease. U.S. v. Nice, 241 U.S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192; Tiger v. Western Inv. Co., 221 U.S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. Accordingly it has been held that it is for Congress to say when the tribal existence shall be deemed to have terminated, and Congress must so express its intent in relation thereto in clear terms. Until such legislation by Congress, even a grant. of citizenship does not terminate the tribal status or relieve the Indian from the guardianship of the government. U. S. v. Nice, 24 1 U.S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192. * * * (At p. 171.)

* * * The right of self-government has never been taken from them. * * *

    At all times the rights which belong to self-government have been recognized as vested in these Indians. * * * (At p. 173.)

* * * The agreement to maintain the agent and the retention and exercise of the power to control the liquor traffic are not inconsistent, as we have seen, with the allotment of the lands in severalty, or with the grant to the allottees of the immunities and privileges of citizenship. Neither the act of 1887 nor any other act of congress or treaty with these Indians required those who selected allotments and received patents and the privileges and immunities of citizenship to sever their tribal relation, or to surrender any of their rights as members of their tribes, as a condition of the grant, so that after their allotments, as before, their tribal relation continued. And finally the legislative and executive departments of the government to which the subject matters of the relations of the Indians and their tribes to the United States, and the regulation of the commerce with them, has been specially intrusted, have uniformly held that congress retained, and have constantly exercised, the power to regulate intercourse with these Indians, and to prohibit the traffic in intoxicating liquors with them, since these patents issued, to the same extent as before their lands were allotted in severalty. It is the settled rule of the judicial department of the government, in ascertaining the relations of Indian tribes and their members to the nation, to follow the action of the legislative and executive departments to which the determination of these question has been especially intrusted. U.S. v. Holliday, 3 Wall. 407, 419, 18 L. Ed. 182; U.S. v. Earl (C. C.) 17 Fed. 75, 78. (At p. 951.)

    In reference to all matters of this kind,  it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. (At p. 419.)

    There are, of course, a number of instances in which tribal autonomy has been terminated by act of Congress or by treaty. See, for example, Wiggan v. Conolly (163 U.S. 56); United States v. Elm (2 Cin. Law Bull. 307, 25 Fed. Cas. No. 15,048); and cf. act of April 26, 1906 (34 Stat. 137). But to accomplish this, the provisions of treaty or statute must be positive and unambiguous. (Morrow v. Blevins, 23 Tenn. 223; Jones v. Meehan, 175 U.S. 1.)

    Save in such instances, the internal sovereignty of the Indian tribes continues, unimpaired by the changes that have occurred in the manners and customs of Indian life, and, for the future, remains a most powerful vehicle for the movement of the Indian tribes towards a richer social existence.

    Since any group of men, in order to act as a group, must act through forms which give the action the character and authority of group action, an Indian tribe must, if it has any power at all, have the power to prescribe the forms through which its will may be registered. The first element of sovereignty, and the last which may survive successive statutory limitations of Indian tribal power, is the power of the tribe to determine and define its own form of government. Such power includes the right to define the powers and duties of its officials, the manner of their appointment or election, the manner of their removal, the rules they are to observe in their capacity as officials, and the forms and procedures which are to attest the authoritative character of acts done in the name of the tribe. These are matters which may be determined even in a modern civilized nation by unwritten custom as well as by written law. The controlling character of the Indian tribe's basic forms and procedures has been recognized by State and Federal courts, whether evidenced by written statute or by the testimony of tradition.

    Thus, in the case of Pueblo of Santa Rosa v. Fall (273 U.S. 315) the Supreme Court recognized that by the traditional law of the Pueblo the "Captain" of the Pueblo would have no authority to convey to attorneys the claims of the Pueblo or to authorize suit thereon, and that such acts without the approval of a general council would be null and void.

    To the same effect, see 7 Op. Atty. Gen. 142 (1855).

    In 5 Op. Atty. Gen. 79 (1849) the opinion is expressed that a release to be executed by the "Creek Indians" would be valid "provided, that the chiefs and headmen executing it are such chiefs and headmen and constitute the whole or a majority of the council of the Creek Nation."

    In Rawlins and Presbey v. United States (23 Ct. Cls. 106) the court finds that a chief's authority to act in the name of the tribe has been established by the tacit assent of the tribe and by their acceptance of the benefits of his acts.

    In the case of Mount Pleasant v. Gansworth (271 N. Y., Supp. 78) it is held that the Tuscarora tribal council has never been endowed with probate jurisdiction, that no other body has been set up by the tribe to exercise probate powers, and hence that State courts may step in to remedy the lack. Whether or not the final conclusion is justified, in the light of such casesas Patterson v. Council of Seneca Nation (245 N. Y. 443; 157 N. E. 734), the opinion of the court indicates at least that the limitations which a tribe may impose upon the jurisdiction of its own governmental bodies and officers will be respected.

    Not only must officers presuming to act in the name of an Indian tribe show that their acts fall within their allotted function and authority, but likewise the procedural formalities which tradition or ordinance requires must be followed in executing an act within the acknowledged jurisdiction of the officer or set of officers.

    In 19 Op. Atty. Gen. 179 (1888) it is held that a decree of divorce which has not been signed by a judge or clerk of court, as required by the laws of the Choctaw Nation, is invalid.

  In re Darth (265 N. Y. Supp. 86) involves action of a special tribal council meeting to which only a few of the members of the council were invited. The action was declared invalid on the ground that the council's rules of procedure required due notice of a special meeting to be given to all members of the council. Based on an analogy taken from corporation law, the rule was laid down that violation of this requirement rendered the acts of the council invalid.

    In 25 Op. Atty. Gen. 308 (1904) it appeared that certain sums were to be paid to attorneys "only after the tribal authorities, thereunto duly
 

and specifically authorized by the tribe, shall have signed a writing * * *." By resolution of the tribe the business committee had been authorized to sign the writing in question. The signatures of the business committee, in the opinion of the Attorney General, met the statutory requirement:

    The proceedings of the council were regular, and the motions were carried by a sufficient number of voters, though less than a majority of those present, See State v. Vanodel (131 Ind. 388); Attorney General v. Shepard (62 N. H. 383); and Mount v. Parker (32 N. J. Law, 341).

    Based upon the analogy of the constitutional law of the United States, the doctrine has been applied to Indian statutes and constitutional provisions that statutes deemed by the courts to be violative of constitutional limitations are to be regarded as void. See Whitmire, Trustee, v. Cherokee Nation (30 Ct. Cls. 138); Delaware Indians v. Cherokee Nation (38 Ct. Cls. 324); 19 Op. Atty. Gen. 229 (1889).

    Statutes of Congress have recognized that the authority of an Indian tribe is customarily wielded by chiefs and headmen. ⁵

    Other congressional legislation has specifically recognized, the propriety of paying salaries to tribal officers out of tribal funds.⁶
 
 

    The courts have consistently recognized that in the absence of express legislation by Congress to the contrary, an Indian tribe has complete authority to determine all questions of its own membership.⁷ It may thus by usage or written law determine under what conditions persons of mixed blood shall be considered members of the tribe. It may provide for special formalities of recognition, and it may adopt such rules as seem suitable to it, to regulate the abandonment of membership, the adoption of non-Indians or Indians of other tribes, and the types of membership or citizenship which it may choose to recognize. The completeness of this power receives statutory recognition in U.S. Code, title 25, sec. 184, which provides that the children of a white man and an Indian woman by blood shall be considered members of the tribe if, and only if, "said Indian woman was * * * recognized by the tribe."⁸ The power of the Indian tribes in this field is limited only by the various statutes of Congress defining the membership of certain tribes for purposes of allotment or for other purposes, and by the statutory authority given to the Secretary of the Interior to promulgate a final tribal roll for the purpose of dividing and distributing the tribal funds.⁹

    The power of an Indian tribe to determine questions of its own membership arises necessarily from the character of an Indian tribe as a distinct political entity. In the case of Patterson v. Council of

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    ⁵U. S. Code, title 25. sec. 130:

   "Withholding of moneys or goods on account of intoxicating liquors. No annuities, or moneys, or goods, shall be paid or distributed to Indians * * * until the chiefs and headmen of the tribe shall have pledged themselves to use all their influence and to make all proper exertions to prevent the introduction and sale of such liquor in their country."

    U. S. Code, title 25, sec. 132:

   "Mode of distribution of goods. Whenever goods and merchandise are delivered to the chiefs of a tribe, for the tribe, such goods and merchandise shall be turned over by the agent or superintendent of such tribe to the chiefs in bulk, and in the original package, as nearly as practicable, and in the presence of the headmen of the tribe, if practicable, to be distributed to the tribe by the chiefs in such manner as the chiefs may deem best, in the presence of the agent or superintendent. (R. S. Sec. 2696.) "

    ⁶U. S. Code, title 25. sec. 162, after providing generally for the segregation, deposit and investment of tribal funds, contains the following qualification:

   "And provided further, That any part of tribal funds required for support of schools or pay of tribal officers shall be excepted from segregation or deposit as herein authorized and the same shall be expended for the purposes aforesaid."

    ⁷ It must be noted that property rights attached to membership are largely in the control of the Secretary of the Interior rather than the tribe itself. See heading, infra. "Tribal Powers Over Property."

  ⁸ "Rights of children born of marriages between white men and Indian women. All children born of a marriage solemnized prior to June 7, 1897, between a white man and an Indian woman by blood and not by adoption. where said Indian woman was on that date, or was at the time of her death. recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right. (June 7, 1897, c. 3, sec. 1, 30 Stat. 96.) "

    ⁹U. S. Code, title 25. sec. 163:

  "Roll of membership of Indian tribes. The Secretary of the Interior is authorized, wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian blood, and when approved by the said Secretary are declared to constitute the legal membership of the respective tribes for the purpose of segregating the tribal funds as provided in the preceding section, and shall be conclusive both as to ages and quantum of Indian blood: Provided, That the foregoing shall not apply to the Five Civilized Tribes or to the Osage Tribe of Indians, or to the Chippewa Indians of Minnesota, or the Menominee Indians of Wisconsin. (June 30, 1919, c. 4. sec. 1, 41 Stat. 9.)"
 

Seneca Nation (245 N. Y. 433; 157 N. E. 734), the Court of Appeals of New York reviewed the many decisions of that court and of the Supreme Court of the United States recognizing the Indian tribe as a "distinct political society, separated from others, capable of managing its own affairs and governing itself" (per Marshall, C.J., in Cherokee Nation v. Georgia, 5 Pet. 1), and, in reaching the conclusion that mandamus would not lie to compel the plaintiff's enrollment by the defendant council, declared:

    Unless these expressions, as well as similar expressions many times used by many courts in various jurisdictions, are mere words of flattery designed to soothe Indian sensibilities, unless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching State legislation, then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted.

            *                                *                                *                                *                                *

    It must be the law, therefore, that, unless the Seneca Nation of Indians and the state of New York enjoy a relation inter se peculiar to themselves, the right to enrollment of the petitioner, with its attending property rights, depends upon the laws and usages of the Seneca Nation and is to be determined by that Nation for itself, without interference or dictation from the Supreme Court of the state.

    The conclusion is inescapable that the Seneca Tribe remains a separate nation; that its powers of self-government are retained with the sanction of the state; that the ancient customs and usages of the nation except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of a sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York state; that, above all, the Seneca Nation retains for itself the power of determining who are Senecas, and in that respect is above interference and dictation.

    In this proceeding the court has been informed as to the usages and customs of the different tribes of the Sioux Nation, and has found as a fact that the common law does not obtain among said tribes, as to determining the race to which the children of a white man, married to an Indian woman, belong; but that, according to the usages and customs of said tribes, the children of a white man married to an Indian woman take the race or nationality of the mother.

    It was the Indians, and not the United States, that were interested in the distribution of what was periodically coming to them from the United States. It was proper then that they should determine for themselves, and finally, who were entitled to membership in the confederated tribe and to participate in the emoluments belong to that relation.

    The certificate of the chiefs and councilors referred to is possibly as high a grade of evidence as can be procured of the fact of the determination by the chiefs of the right of membership under the treaty of February 23, 1867, and seems to be such as is warranted by the usage and custom of the Government in its general dealings with these people and other similar tribes. (At page 116.)

   In re William Banks (26 L. D. 71); Black Tomahawk v. Waldron (19 L. D. 311); 20 Op. Atty. Gem. 711 (1894); Western Cherokee Indians v. United States (27Ct. Cls. 1, 54); United States v. Heyfron (two cases) (138 Fed. 964, 968).

    In the Cherokee Intermarriage Cases (203 U. S. 76), the Supreme Court of the United States considered the claims of certain white men, married to Cherokee Indians, to participate in the common property of the Cherokee Nation. After carefully examining the constitutional articles and the statutes of the Cherokee Nation, the court reached the conclusion that the claims in question were invalid, since, although the claimants had been recognized as citizens for certain purposes, the Cherokee Na-
 

tion had complete authority to qualify the rights of citizenship which it offered to its "naturalized" citizens, and had, in the exercise of this authority, provided for the revocation or qualification of citizenship rights so as to defeat the claims of the plaintiffs. The Supreme Court declared (per Fuller, C. J.):

    The distinction between different classes of citizens was recognized by the Cherokees in the differences in their intermarriage law, as applicable to the whites and to the Indians of other tribes; by the provision in the intermarriage law that a white man intermarried with an Indian by blood acquires certain rights as a citizen, but no provision that if he marries a Cherokee citizen not of Indian blood he shall be regarded as a citizen at all; and by the provision that if, once having married an Indian by blood, he marries the second time a citizen not by blood, he loses all of his rights as a citizen. And the same distinction between citizens as such and citizens with property rights has also been recognized by Congress in enactments relating to other Indians than the Five Civilized Tribes. Act August 9, 1888, 25 Stat. 392, c. 818; act May 2, 1890, 26 Stat. 96; c. 182; act June 7, 1897, 30 Stat. 90, c. 3. (At page 88.)

    * * * The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows or widowers) citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated. (At Page 95.)

    An Indian tribe may classify various types of membership and qualify not only the property rights, but the voting rights of certain members. Thus in 19 Op. Atty. Gen. 389 (1888) the view is expressed that a tribe may by law restrict the rights of tribal suffrage, excluding white citizens from voting, although by treaty they are guaranteed rights of "membership."

    Similarly, an Indian tribe may revoke rights of membership which it has granted. In Roff v. Burney (168 U.S. 218), the Supreme Court upheld the validity of an act of the Chickasaw legislature depriving a Chickasaw citizen of his citizenship, declaring:

    The citizenship which the Chickasaw legislature could confer it could withdraw. The only restriction on the power of the Chickasaw Nation to legislate in respect to its internal affairs is that such legislation shall not conflict with the Constitution or laws of the United States, and we know of no provision of such Constitution or laws which would be set at naught by the action of a political community like this in withdrawing privileges of membership in the community once conferred. (At page 222.)

    Indian members of one tribe can sever their relations as such, and may form affiliations with another or other tribes. And so they may, after their relation with a tribe has been severed, rejoin the tribe and be again recognized and treated as members thereof, and tribal rights and privileges attach according to the habits and customs of the tribe with which affiliation is presently cast. As to the manner of breaking off and recasting tribal affiliations we are meagerly informed. It was and is a thing, of course, dependent upon the peculiar usages and customs of each particular tribe, and therefore we may assume that no general rule obtains for its regulation.

    Now, the first condition presented is that the mother of Philomme was a full-blood Walla Walla Indian. She was consequently a member of the tribe of that name. Was her status changed by marriage to Tawakown, an Iroquois Indian? This must depend upon the tribal usage and customs of the Walla Wallas and the Iroquois. It is said by Hon. William A. Little, Assistant Attorney General, in an opinion rendered the Department of the Interior in a matter involving this very controversy:

"That inheritance among these Indians is through the mother and not through the father, and that the true test in these cases

is to ascertain whether parties claiming to be Indians and entitled to allotments have by their conduct expatriated themselves or changed their citizenship."

But we are told that:

    "Among the Iroquoian tribes kinship is traced through the blood of the woman only. Kinship means membership in a family; and this in turn constitutes citizenship in the tribe, conferring certain social, political, and religious privileges, duties, and rights, which are denied to persons of alien blood." Handbook of American Indians, edited by Frederick Webb Hodge, Smithsonian Institute, Government Printing Office, 1907.

    Marriage, therefore, with Tawakown would not of itself constitute an affiliation on the part of his wife with the Iroquois tribe, of which he was a member, and a renunciation of membership with her own tribe. (At page 886).

    But notwithstanding the marriage of Philomme to Smith, and her long residence outside of the limits of the reservation, she was acknowledged by the chiefs of the confederated From the testimony adduced herein, read in connection with that taken in the case of tribes to be a member of the Walla Walla tribe. From the testimony adduced herein, read in connection with that taken in the case of Hy-yu-tse-mil-kin v. Smith, supra,it appears that Mrs. Smith was advised by Homily and Show-a-way, chiefs, respectively, of the Walla Walla and Cayuse tribes, to come upon the reservation and make selections for allotments to herself and children, and that thereafter she was recognized by both these chiefs, and by Peo, the chief of the Umatillas, as being a member of the Walla Walla Tribe. It is true that she was not so recognized at first, but she was finally, and by a general council of the Indians held for the especial purpose of determining the matter. (At page 888.)

    The weight given to tribal action in relation to tribal membership is shown by the case of Nofire v. United States (164 U.S. 657). In that case the jurisdiction of the Cherokee courts in a murder case, the defendants being Cherokee Indians, depended upon whether the deceased, a white man, had been duly adopted by the Cherokee Tribe. Finding evidence of such adoption in the official records of the tribe, the Supreme Court held that such adoption deprived the State court of jurisdiction over the murder and vested such jurisdiction in the tribal courts.

    A similar decision was reached in the case of Raymond v. Raymond (83 Fed. 721), in which the jurisdiction of a tribal court over an adopted Cherokee was challenged. The court declared (per Sanborn, J.):

    It is conceded that under the laws of that nation the appellee became a member of that tribe, by adoption, through her intermarriage with the appellant. It is settled by the decisions of the supreme court that her adoption into that nation ousted the federal court of jurisdiction over any suit between her and any member of that tribe, and vested the tribal courts with exclusive jurisdiction over every such action. Alberty v. U.S. 162 U.S. 499, 16 Sup. Ct. 864; Nofire v. U.S., 164 U.S. 657, 658, 17 Sup. ct. 212.

    Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his

old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also states that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca Tribe of Indians, and had resolved to disband as a tribe, or band, of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able so to do went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, for removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected, and formed a part of what was to them a melancholy procession homeward.

    * * * What is here stated in this connection is mainly for the purpose of showing that the relators did all they could to separate themselves from their tribe and to sever their tribal relations, for the purpose of becoming self sustaining and living without support from the government. This being so, it presents the question as to whether or not an Indian can with draw from his tribe, sever his tribal relation therewith, and terminate his allegiance thereto, for the purpose of making an independent living and adopting our own civilization.

    If Indian tribes are to be regarded and treated as separate but dependent nations, there can be no serious difficulty about the question. If they are not to be regarded and treated as separate, dependent nations, then no allegiance is owing from an individual Indian to his tribe, and he could, therefore, withdraw therefrom at any time. The question of expatriation has engaged the attention of our government from the time of its very foundation. Many heated discussions have been carried on between our own and foreign governments on this great question, until diplomacy has triumphantly secured the right to every person found within our jurisdiction. This right has always been claimed and admitted by our government, and it is now no longer an open question. It can make but little difference, then, whether we accord to the Indian tribes a national character or not, as in either case I think the individual Indian possesses the clear and God-given right to withdraw from his tribe and forever live away from it, as though it had no further existence. If the right of expatriation was open to doubt in this country down to the year 1868, certainly since that time no sort of question as to the right can now exist. On the 27th of July of that year Congress passed an act, now appearing as section 1999 of the Revised Statutes, which declares that: "Whereas, the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and, whereas, in the recognition of this principle the government has freely received emigrants from all nations, and invested them with the rights of citizenship. * * * Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic."

have no legal right of appeal even if his adoption without Department approval were valid, "it hardly is necessary to pass upon that point."

    The power of an Indian tribe to determine its membership is subject to the qualification, however, that in the distribution of tribal funds and other property under the supervision and control of the Federal Government, the action of the tribe is subject to the supervisory authority of the Secretary of the Interior. See United States ex rel. West v. Hitchcock, 205 U.S. 80; Mitchell v. United States, 22 Fed. 2d, 771; United States v. Provoe, 38 Fed. 2d, 799; reversed on other grounds, 283 U.S. 753. See also Wilbur v. United States, 281 US. 206. The original power to determine membership, including the regulation of membership by adoption, nevertheless remains with the tribe, and in view of the broad provisions of the Wheeler-Howard Act, it is my opinion that the Secretary of the Interior may in the future define and confine his power of supervision in accordance with the terms of the constitution adopted by the tribe itself and approved by him.

    The Indian tribes have been accorded the widest possible latitude in regulating the domestic relations of their members. Indian custom marriage has been specifically recognized by Federal statute, so far as such recognition is necessary for purposes of inheritance." Indian custom marriage and divorce have been generally recognized by State and Federal courts for all other purposes. Where Federal law or written laws of the tribe do not cover the subject, the customs and traditions of the tribe are accorded the force of law, but these customs and traditions may be changed by the statutes of the Indian tribes. In defining and punishing offenses against the marriage relationship, the Indian tribe has complete and exclusive authority in the absence of legislation by Congress upon the subject. No law of the State controls the domestic relations of Indians living in tribal relationship. The authority of an Indian tribal council to appoint guardians for incompetents and minors is specifically recognized by statute,¹² although this statute at the same time deprives such guardians of the power to administer Federal trust funds.

    The completeness and exclusiveness of tribal authority over matters of domestic relationship is clearly set forth by Mr. Justice Van Devanter in the opinion of the Supreme Court in United States v. Quiver (241 U.S. 602, at 603-605):

    At an early period it became the settled policy of Congress to permit the personal and domestic relations of Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian Intercourse Acts of May 19, 1802, c. 13, 2 Stat. 139, provided for the punishment of various offenses by white persons against Indians and by Indians against each other; and the act of June 30, 1834. c. 161, Sec. 25, 4 Stat. 729, 733, while providing that "so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country," qualified its action by saying, " the same shall not extend to crimes committed by one Indian against the person or property of another Indian." That provision with its qualification was later carried into the Revised Statutes as Secs. 2145 and 2146. This was the situation when this court, in Ex parte Crow Dog, 109 U.S. 556, held that the murder of an Indian reservation was not punishable under the laws of the United States and could be dealt with only according to the laws of the tribe. The first change came when, by the

    ¹¹ U. S. C.. title 25. sec. 271, which provides:

    "Descent of land.-For the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of section 348. whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together * * *"

    ¹² U.S.C., title 25, sec. 159, which provides:

    "Moneys due incompetents or orphans.-The Secretary of the Interior is directed to cause settlements to be made with all persons appointed by the Indian councils to receive money due to incompetent or orphan Indians, and to require all moneys found due to such incompetent or orphan Indians to be returned to the Treasury; and all moneys so returned shall bear interest at the rate of 6 per centum per annum, until paid by order of the Secretary of the Interior to those entitled to the same. No money shall be paid to any person appointed by any Indian council to receive moneys due to incompetent or orphaned Indians, but the same shall remain in the Treasury of the United States until ordered to be paid by the Secretary to those entitled to receive the same, and shall bear 6 per centum interest until so paid." (R. S. sec. 2108.)
 

act of March 3, 1885, c. 341, Sec. 9, 23 Stat. 362, 385, now Sec. 328 of the Penal Code, Congress provided for the punishment of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny when committed by one Indian against the person or property of another Indian. In other respects the policy remained as before. After South Dakota became a State, Congress, acting upon a partial cession of jurisdiction by that State, c. 106 Laws 1901, provided by the act of February 2, 1903, c. 351, Stat. 798, now Sec. 329 of the Penal Code, for the punishment of the particular offenses named in the act of 1885 when committed on the Indian reservations in that State, even though committed by others than Indians, but this is without bearing here, for it left the situation in respect of offenses by one Indian against the person or property of another Indian as it was after the act of 1885.

    We have now referred to all the statutes. There is none dealing with bigamy, polygamy, incest, adultery, or fornication, which in terms refers to Indians, these matters always having been left to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative officers.

    Carney v. Chapman, 247 U. S. 102; Boyer v. Dively, 58 Mo. 510; Johnson v. Dunlap, 68 Okla. 216, 173 Pac. 359; Cyr v. Walker, 29 Okla. 281, 116 Pac. 931; Hallowell v. Commons, 210 Fed. 793; Earl v. Godley, 42 Minn. 361; Ortley v. Ross. 78 Neb. 339; People ex rel. La Forte v. Rubin, 98 N. Y. Supp. 787; Butler v. Wilson, 54 Okla. 229, 153 Pac. 823; Proctor v. Foster, 107 Okla. 95, 230 Pac. 753; Davis v. Reeder, 102 Okla. 106, 226 Pac. 880; Pompey v. King, 101 Okla. 253, 225 Pac. 175; Buck v. Brunson, 34Okla. 807, 127 Pac. 436; Johnson v. Johnson, 30 Mo. 72; Unussee v. McKinney, 270Pac. 1096 (Okla.); and cf. Connolly v. Woolrich (1867), 11 Lower Can. Jur. 197.

    * * * The testimony now in this case shows what, as matter of history, we are probably bound to know judicially, that among these Indians polygamous marriages have always been recognized as valid, and have never been confounded with such promiscuous or informal temporary intercourse as is not reckoned as marriage. While most civilized nations in our day very wisely discard polygamy, and it is not probably lawful anywhere among English speaking nations, yet it is a recognized and valid institution among many nations, and in no way universally unlawful. We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes. They did not occupy their territory by our grace and permission, but by a right beyond our control. They were placed by the Constitution of the United States beyond our jurisdiction, and we have no more right to control their domestic usages than those of Turkey or India. * * * We have here marriages had between members of an Indian tribe in tribal relations, and unquestionably good by the Indian rules. The parties were not subject in those relations to the laws of Michigan, and there was no other law interfering with the full jurisdiction of the tribe over personal relations. We cannot interfere with the validity of such marriages without subjecting them to rules of law which never bound them.

    The jurisdiction of a tribal court over divorce actions is recognized in Raymond v. Raymond (83 Fed. 721); 19 Ops. Atty. Cert. 109 (1888).

    It is well settled that an Indian tribe has the power to prescribe the manner of descent and distribution of the property of its members, in the absence of contrary legislation by Congress. Such power may be exercised through unwritten customs and usages, or through written laws of the tribe. This power extends to personal property as well as to real property. By virtue of this authority an Indian tribe may restrict the descent of property on the basis of Indian blood or tribal membership, and may provide for the escheat of property to the tribe where there are no recog-
 

nized heirs. An Indian tribe may, if it so chooses, adopt as its own the laws of the State in which it is situated and may make such modifications in these laws as it deems suitable to its peculiar conditions.

    The only general statutes of Congress which restrict the power of an Indian tribe to govern the descent and distribution of property of its members are section 5 of the General Allotment Act (U. S. Code, title 25, sec. 348),¹³ which provides that allotments of land shall descend "according to the laws of the State or Territory where such land is located," the act of June 25, 1910, c. 431, Sec. 1, 36 Stat. 855 (U. S. Code, Title 25, Sec. 372) ,¹⁴ which provides that the Secretary of the Interior shall have unreviewable discretion to determine the heirs of an Indian in ruling upon the inheritance of individual allotments issued under the authority of the General Allotment Law, and section 2 of the same act (U. S. Code, title 25, sec. 373),¹⁵ which gives the Secretary of the Interior final power to approve and disapprove Indian wills devising restricted property.

    These statutes abolish the former tribal power over the descent and distribution of property, with respect to allotments of land made under the General Allotment Act, and rendered tribal rules of testamentary disposition subject to the authority of the Secretary of the Interior. They do not, however, affect intestate succession to personal property or interests in land other than allotments (e. g., possessory interests in land to which title is retained by the tribe). With respect to all property other than allotments of land made under the General Allotment Act, the inheritance laws and customs of the Indian tribe are still of supreme authority.¹⁶

    The authority of an Indian tribe in the matter of inheritance is clearly recognized by the United States Supreme Court in the case of Jones v. Meehan (175 U.S. 1), in which it was held that the eldest male child of a Chippewa Indian succeeded to his statutory allotment in accordance with tribal law. The court declared:

    The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only.

    But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages, and customs of the tribe, and not by the law of the State of Minnesota, nor by any action of the Secretary of the Interior. (At page 29.)

    United States v. Shanks (15 Minn. 369); Dole v. Irish (2 Barb. [N. Y.] 639); Hastings v. Farmer (4 N. Y. 293, 294); The Kansas Indians (5 Wall. 737); Waupemanqua v. Aldrich (28 Fed. 489); Brown v. Steele (23 Kan. 672); Richardville v. Thorp (28 Fed. 52).

    In the case of Gray v. Coffman (3 Dill. 393, 10

__________
    ¹³ "Patents to be held in trust; descent and partition.-Upon the approval of the allotments provided for in sections 331 to 334, inclusive, and 336 by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: * * *"

    ¹⁴Ascertainment ofheirs of deceased allottees.-When any Indian to whom an allotment of land has been made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior upon notice and hearing under such rules as he may prescribe, shall ascertain the legal heirs of such decedent and his decision thereon shall be final and conclusive. * * *"

    ¹⁵ "Disposal by will of allotments held under trust.-Any persons of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: * * *"

    ¹⁶ The foregoing general analysis is inapplicable to the Five Civilized Tribes, Congress having expressly provided that State probate courts shall have jurisdiction over the estates of allotted Indians of the Five Civilized Tribes leaving restricted heirs. (Act of June 14, 1918, c. 101, sec. 1; 40 Stat. L. 606; U. S. Code, title 25, sec. 375.)
 

Fed. Cases, No. 5,714), the court held that the validity of the will of a member of the Wyandot tribe depended upon its conformity with the written laws of the tribe. The court declared:

    The Wyandot Indians, before their removal from Ohio, had adopted a written constitution and laws, and among others, laws relating to descent and wills. These are in the record and are shown to have been copied from the laws of Ohio and adopted by the Wyandot tribe, with certain modifications, to adapt them to their customs and usages. One of these modifications was that only living children should inherit, excluding the children of deceased children, or grandchildren. The Wyandot council, which is several times referred to in the treaty of 1855, was an executive and judicial body and had power, under the laws and usages of the nation, to receive proof of wills, etc.; and this body continued to act, at least to some extent, after the treaty of 1855.

    * * * under the circumstances, the court must give effect to the well-established laws, customs, and usages of the Wyandot tribe of Indians in respect to the disposition of property by descent and will.

    Tribal autonomy in the regulation of descent and distribution is recognized in the case of Woodin v. Seeley (141 Misc. 207; 252 N. Y. Supp. 818). In this case, and in the case of Patterson v. Council of Seneca Nation (245 N. Y. 433; 157 N. E. 734), the supremacy of tribal law in matters of inheritance and membership rights is defended on the ground-

that when Congress does not act no law runs on an Indian reservation save the Indian tribal law and custom.

    If it were true that, upon the death of a tribal Indian, his property, real and personal, became subject to the laws of the state directing the mode of distribution of estates of decedents, it is apparent that irremediable confusion would be caused thereby in the affairs of the Indians * * * (At page 262.)

    The Creek Council, in the exercise of its lawful function of local self-government, saw fit to limit the legal rights of an illegitimate child to that of sharing in the estate of his putative father, and not to confer upon such child generally the status of a child born in lawful wedlock (Oklahoma Land Company v. Thomas, 34 Okla. 681, 127 Pac. 8.)

    In the case of Dole v. Irish (2 Barb. 639) it was held that a surrogate of the State of New York has no power to grant letters of administration to control the disposition of personal property belonging to a deceased member of the Seneca tribe. The court declared:

    I am of the opinion that the private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration; and that the letters of administration granted by the surrogate to the plaintiff are void. I am also of the opinion that the distribution of Indian property according to their customs passes a good title, which our courts will not disturb; and therefore that the defendant has a good title to the horse in question and must have judgment on the special verdict. (At pages 642-643.)

    In the case of Mackey v. Coxe (18 Hoe. 100), the Supreme Court held that letters of administration issued by a Cherokee court were entitled to recognition in another jurisdiction, on the ground that the status of an Indian tribe was in fact similar to that of a Federal territory.

    In the case of Meeker v. Kaelin (173 Fed. 216), the court recognized the validity of tribal custom in determining the descent of real and personal property and indicated that the tribal custom of the Puyallup band prescribed different rules of descent for real and for personal property.

    Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.

    The case of Buster v. Wright (135 Fed. 947, app. dism., 203 U.S. 599), contains an excellent analysis of the taxing power of the Creek Nation:

    Repeated decisions of the courts, numerous opinions of the Attorneys General, and the practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek Nation had lawful authority to require the payment of this tax as a condition precedent to the exercise of the privilege of trading within its borders, and that the executive department of the government of the United States had plenary power to enforce its payment through the Secretary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police. Morris v. Hitchcock,194 U.S. 384, 392, 24 Sup. Ct. 712, 48 L. Ed. 1030; Crabtree v. Madden, 4 C. C. A. 408, 410, 413, 54 Fed. 426, 428, 431; Maxey v. Wright, 3 Ind. T. 243, 54 S. W. 807; Maxey v. Wright, 44 C. C. A. 683, 105 Fed. 1003; 18 Opinions of Attorneys General, 34, 36; 23 Opinions of Attorneys General, 214, 217, 219, 220, 528. * * *

    * * * It may not be unwise, before entering upon the discussion of this proposition, to place clearly before our minds the character of the Creek Nation and the nature of the power which it is attempting to exercise.

    The authority of the Creek Nation to prescribe the terms upon which noncitizens may transact business within its borders did not have its origin in act of Congress, treaty, or agreement of the United States. It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the superior power of the republic it is taken from it. Neither the authority nor the power of the United States to license its citizens to trade in the Creek Nation, with or without the consent of that tribe, is in issue in this case, because the complainants have no such licenses. The plenary power and lawful authority of the government of the United States by license, by treaty, or by act of Congress to take from the Creek Nation every vestige of its original or acquired governmental authority and power may be admitted, and for the purposes of this decision are here conceded. The fact remains nevertheless that every original attribute of the government of the Creek Nation still exists intact which has not been destroyed or limited by act of Congress or by the contracts of the Creek tribe itself.

    Originally an independent tribe, the superior power of the republic early reduced this Indian people to a "domestic, dependent nation" (Cherokee Nation v. State of Georgia, 5 Pet. 1-20, 8 L. Ed. 25), yet left it a distinct political entity, clothed with ample authority to govern its inhabitants and to manage its domestic affairs through officers of its own selection, who under a Constitution modeled after that of the United States, exercised legislative, executive, and judicial functions within its territorial jurisdiction for more than half a century. The governmental jurisdiction of this nation was neither conditioned nor limited by the original title by occupancy to the lands within its territory. * * * Founded in its original national sovereignty, and secured by these treaties, the governmental authority of the Creek Nation, subject always to the superior power of the republic, remained practically unimpaired until the year 1889. Between the years 1888 and 1901 the United States by various acts of Congress deprived this tribe of all its judicial power, and curtailed its remaining authority until its powers of government have become the mere shadows of their former selves. Nevertheless its authority to fix the terms upon which noncitizens might conduct business within its territorial boundaries guaranteed by the treaties of 1832, 1856, and 1866, and sustained by repeated decisions of the courts and opinions of the Attor-

neys General of the United States, remained undisturbed.

    * * * It is said that the sale of these lots and the incorporation of cities and towns upon the sites in which the lots are found authorized by act of Congress to collect taxes for municipal purposes segregated the town sites and the lots sold from the territory of the Creek Nation, and deprived it of governmental jurisdiction over this property and over its occupants. But the jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it, or by the existence of municipalities therein endowed with power to collect taxes for city purposes, and to enact and enforce municipal ordinances. Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners. (At pp. 949-952.)

    In the latter case, the Court of Appeals of the District of Columbia, considering the validity of a tax or fee imposed by the Chickasaw Nation upon the owners of all cattle grazed within the Chickasaw territory, analyzed the status and powers of the Chickasaw Nation in these terms:

    A government of the kind necessarily has the power to maintain its existence and effectiveness through the exercise of the usual power of taxation upon all property within its limits, save as may be restricted by its organic law. Any restriction in the organic law in respect of this ordinary power of taxation, and the property subject thereto, ought to appear by express provision or necessary implication. Board Trustees v. Indiana, 14 How. 268, 272; Talbott v. Silver Bow Co., 139U.S. 438, 448. Where the restriction upon this exercise of power by a recognized government, is claimed under the stipulations of a treaty with another, whether the former be dependent upon the latter or not, it would seem that its existence ought to appear beyond a reasonable doubt. We discover no such restriction in the clause of Article 7 of the Treaty of 1855, which excepts white persons from the recognition therein of the unrestricted right of self-government by the Chicasaw Nation, and it full jurisdiction over persons and property within its limits. The conditions of that exception may be fully met without going to the extreme of saying that it was also intended to prevent the exercise of the power to consent to the entry of non-citizens or the taxation of property actually within the limits of that government and enjoying its benefits. (Morris v. Hitchcock,21 App. D.C. 565, 593.)

    * * * in the absence of express contradictory provisions by treaty, or by statute of the United States, the Nation (and not a citizen) is to declare who shall come within the boundaries of its occupancy, and under what conditions. (At page 36.)

See, to the same effect, 17 Ops. Atty. Gen. 134; 18 Ops. Atty. Gen. 34.

    The power of an Indian tribe to exclude non members of the tribe from entering upon the reservation was first clearly formulated in an opinion of the Attorney General rendered in 1821 with respect to the lands of the Seneca Indians:

    So long as a tribe exists and remains in possession of its lands, its title and possession

are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. (1 Op. Atty, Gen. 465, 466).

    Although the last implication of this doctrine, if originally valid, has been superseded by many statutes authorizing and directing officers and agents of the United States to enter upon Indian lands for various purposes, the basic principle that an Indian tribe may exclude private individuals from the territory within its jurisdiction, or prescribe the conditions upon which such entry will be permitted, has been followed in a long line of cases.

    Two grounds for this power of exclusion are established by the decided cases: first, the Indian tribe may exercise, over all tribal property, the rights of a landowner; second, the tribe may, in the exercise of local self-government, regulate the relations between its members and other persons, so far as may be consistent with Congressional statutes governing trade and intercourse.

    In Rainbow v. Young (161 Fed. 835) it was held that the Indian superintendent and Indian police had power to remove an attorney seeking to collect fees on a day when lease money was being paid to the Indians. In addition to the specific authority to remove undesirable persons granted by Revised Statutes, sec. 2149 (recently repealed by act of May 21, 1934, 48 Stat. 787), the court found that the power to remove nonresidents was incidental to the general powers of a landowner, which the United States was qualified to exercise with respect to Indian lands:

    Besides, the reservation from which Mr. Sloan was removed is the property of the United States, is set apart and used as a tribal reservation and in respect of it the United States has the rights of an individual proprietor (citing cases) and can maintain its possession and deal with intruders in the like manner as can an individual in respect of his property. (At p. 837.)

    As was said in the case of Stephenson v. Little (18 Mich. 433), in which it was held that the United States Government as a landowner might, through officials of the Land Office, seize and direct the sale of timber cut on public lands even though other timber had been mixed with that so cut:

    It seems to me there can be no doubt that the Government has all the common-law rights of an individual in respect to depredations committed on its property, and that where there is no statute making it the duty of any particular official to enforce those rights, it is ex-necessitate rei made the duty of the Executive Department of the Government to enforce them (At page 440.)

    The cases cited with respect to the power of an Indian tribe to tax nonmembers, as a condition of entry or residence within the jurisdiction of the tribe, confirm the foregoing conclusions, and indicating further that the power of an Indian tribe to exclude nonmembers is not limited to lands in tribal ownership.

    Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign payer of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority. Morrisv. Hitchcock (194 U.S. 384) and other cases cited under heading "The Taxing Power of an Indian Tribe."

    The powers of an Indian tribe with respect to property derive from two sources. In the first place, the tribe has all the rights and powers of a property owner with respect to tribal property. In the second place, the Indian tribe has, among its powers of sovereignty, the power to regulate the use and disposition of individual property among its members.
 

    The powers of an Indian tribe over tribal property are no less absolute than the powers of any landowner, save as restricted by general acts of Congress restricting the alienation or leasing of tribal property," and particular acts of Congress designed to control the disposition of particular funds or lands.

    The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create any vested rights in the occupant as against the tribe is supported by a long line of court decisions:

   Sizemore v. Brady, 235 U.S. 441; Franklin v. Lynch, 233U.S. 269; Gritts v. Fisher, 224 U.S. 640 Journeycake v. Cherokee Nation and United States, 28 Ct. Cls. 281; Sac and Fox Indians of Iowa v. Sac and Fox Indians of Oklahoma and the United States, 45 Ct. Cls. 287, aff'd 220U.S. 481; Hayes v. Barringer, 168 Fed. 221; Dukes v. Goodall, 5 Ind. T. 145, 82 S. W. 702; In re Narragansett Indians, 20 R. I. 715; Terrance v. Gray, 156 N. Y. Supp. 916; Reservation Gas Co. v. Snyder, 88 Misc. 209; 150 N. Y. Supp. 216; Application of Parker, 237 N. Y. Supp. 135; McCurtain v. Grady; 1 Ind. T. 107, 38 S. W. 65; Whitmire, trustee, v. Cherokee Nation, 30 Ct. Cls. 138; Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178.

lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. (At p. 446.)

    As the tribe could not sell, neither could the individual members, for they had neither an undivided interest in the tribal land nor vendible interest in any particular tract. (At p. 271.)

    The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies his right of property does not descend: if he removes from the community it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property in the land as perfect as that of any other person; and his children after him will enjoy all that he enjoyed, not as heirs but as communal owners.

    With this power of regulation and control of the public domain and the jus disponendi lodged in the government of the Nation, it is plain that the communal element has been reduced to a minimum and exists only in the occupied lands. And it is manifest that with the growth of civilization, with all of its intricacies and manifold requirements, the communal management of the public domain would have been utterly insufficient and, if it had continued, would have been a barrier to the advancement of civilization itself.

   "Purchases or grants of lands from Indians.-No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. * * *"

    U.S. Code, title 25, sec. 85. provides:

   "Contracts relating to tribal funds or property.-Nocontract made with any Indian. where such contract relates to the tribal funds or property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given. (June 30, 1913, c. 4, sec. 18, 38Stat. 97.)"

    Statutes restricting tribal powers to lease tribal lands are cited at pages 53-54, infra.

    The foregoing restrictions are partially modified by the Wheeler-Howard Act (48 Stat. 984), sets. 4,6, 17.

    It is recognized that property held by the United States in trust for an Indian tribe is, like other trust property, subject to terms of the trust with respect to the use and disposition of corpus and income. Thus it is provided that tribal funds held by the United States in trust for Indian tribes may be expended only in accordance with annual statutory appropriations, except for certain designated purposes as to which annual statutory appropriation is not required. See act of May 18, 1916, c. 125. sec. 27, 39 Stat. L. 159.
 

    With these powers of absolute ownership lodged in the Cherokee government, the power to alienate, the power to lease, the power to grant rights of occupancy, the power to restrict rights of occupancy, and with the exercise of those powers running back to the very year of the adoption of the constitution, and receiving from that time to the present the unquestioning acquiescence of the former communal owners, the Cherokee people, it is apparent that the "public domain" of the Cherokee Nation is analogous to the "public lands" of the United States or the "demesne lands of the Crown," and that it is held absolutely by the Cherokee government, as all public property is held, a trust for governmental purposes and to promote the general welfare.

    * * * At that time these were the lands of the Choctaw and Chickasaw Nations, held by them, as they held all their lands, in trust for the individual members of their tribes, in the sense in which the public property of representative governments is held in trust for its people. But these were public lands, and, while the enrolled members of these tribes undoubtedly had a vested equitable right to their just shares of them against strangers and fellow members of their tribes, they had no separate or individual right to or equity in any of these lands which they could maintain against the legislation of the United States or of the Indian Nations. Stephens v. Cherokee Nation, 174 U.S. 445, 488, 19 Sup. Ct. 722, 43L. Ed. 1041, Cherokee Nation v. Hitchcock,187 U.S. 294, 23 Sup. Ct. 115, 47 L. Ed.183: Lone Wolf v. Hitchcock, 187 U.S. 553, 23 Sup. Ct. 216; 47 L. Ed. 299; Wallace v. Adams,143 Fed. 716, 74 C. C. A. 540; Ligon v. Johnston (C. C. A.), 164 Fed. 670.

    The extent of any individual's interest in tribal property is subject to such limitations as the tribe may see fit to impose.

   Thus, in Reservation Gas Co. v. Snyder, supra, it was held that an Indian tribe might dispose of minerals on tribal lands which had been assigned to individual Indians for private occupancy, since the individual occupants had never been granted any specific mineral rights by the tribe.

    In Terrance v. Gray, supra, it was held that no act of the occupant of assigned tribal land could terminate the control duly exercised by the chiefs of the tribe over the use and disposition of the land.

    In Application of Parker, supra, it was held that the Tonawanda Nation of Seneca Indians had the right to dispose of minerals on the tribal allotments of its members and that the individual allottee had no valid claim for damages.

    In the case of McCurtain v. Grady, supra, a provision of the Choctaw constitution conferring upon the discoverer of coal the right to mine all coal within a mile radius of the point of discovery was upheld as a valid exercise of tribal power.

    In Whitmire, trustee, v. Cherokee Nation, supra, the Court of Claims held that the general property of the Cherokee Nation, under the provisions of the Cherokee constitution, might be used for public purposes, but could not be diverted to per capita payments to a favored class.

    The chief limitation upon tribal control of membership rights in tribal property is that found in acts of Congress guaranteeing to those who sever tribal relations to take up homesteads on the public domain,¹⁸ and to children of white men and Indian women, under certain circumstances,¹⁹ a continuing share in the tribal property. Except for these general limitations and other specific statutory limitations found in enrollment acts and other special acts of Congress, the proper authorities of an Indian tribe have full authority to regulate the use and disposition of tribal property by the members of the tribe.

    The authority of a tribal council to lease tribal lands is specifically confirmed by U.S. Code, title

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    ¹⁸ U. S. Code, title 43. sec. 189, provides that an Indian severing tribal relations to take up a homestead upon the public domain "shall be entitled to his distributive share of all annuities, tribal funds, lands and other property, the same as though he had maintained his tribal relations." For a discussion of this and related statutes, see Oakes v. United States (172 Fed. 305).

    ¹⁹ U.S. Code, title 25, sec. 184:

   "Rights of children born of marriages between white men and Indian women.-All children born of a marriage solemnized prior to June 7, 1897, between a white man and an Indian woman by blood and not by adoption, where said Indian woman was on that date, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right. (June 7, 1897, c. 3, sec. 1, 30 Stat. 90.) "
 

25, sections 397, 398, and 402.²⁰ Although the exercise of such authority is made subject to the approval of the Secretary of the Interior, it has been said that:

    From the language of this statute it appears reasonably certain that it was the legislative purpose to confer primary authority upon the Indians, and that the determination of the council should be conclusive upon the government, at least in the absence of any evidence of fraud or undue influence. (White Bear v. Barth, 61 Mont. 322, 203 Pac. 517.)

   See United States v. Hunter, 4 Mackey (D. C.) 531; Kirby v. United States, 273 Fed. 391, aff'd., 260 U.S. 423.

    Similarly, U.S. Code, title 25, section 180, imposing a penalty upon persons settling on Indian lands, has been judicially interpreted as implying that an Indian tribe has power to permit such settlement upon such terms as it may prescribe. The cases on this subject have been analyzed under the heading "The Power of an Indian Tribe to Exclude Nonmembers From Its Jurisdiction."

    The authority of an Indian tribe in matters of property is not restricted to those lands or funds over which it exercises the rights of ownership. The sovereign powers of the tribe extend over the property as well as the person of its members.

    Thus, in Crabtree v. Madden (54Fed. 426), it is recognized that questions of the validity of contracts among members of the tribe are to be determined according to the laws of the tribe.

    See, to the same effect:

   In re Sah Quah,31 Fed. 327; Jones v. Laney, 2 Tex. 342.

    Their laws and customs, regulating property, contracts, and the relations between husband and wife, have been respected, when drawn into controversy. In the courts of the State and of the United States. (At p. 348.)

    The law of real property is to be found in the law of the situs. The law of real property in the Cherokee country, therefore, is to be found in the constitution and laws of the Cherokee Nation.

    In the caseof James H. Hamilton v. United States (42 Ct. Cls. 282), it appeared that land, buildings, and personal property owned by the claimant, a licensed trader, within the Chickasaw reservation, had been confiscated by an act of the Chickasaw legislature. The plaintiff brought suit to recover damages on the theory that such confiscation constituted an "Indian depredation." The Court of Claims dismissed the suit, declaring:

    The claimant by applying for and accepting

   "Leases of Lands for grazing or mining.-Where lands are occupied by Indians who have bought and paid for the same, and which lands are not needed for farming or agricultural purposes, and are not desired for individual allotments, the same may be leased by authority of the council speaking for such Indians, for a period not to exceed five years for grazing, or ten years for mining purposes in such quantities and upon such terms and conditions as the agent in charge of such reservation may recommend, subject to the approval of the Secretary of the Interior. (Feb. 28, 1891, c. 383. Sec. 3, 26 Stat. 795.) "

    U.S. Code, title 25, sec. 398:

   "Leases of unallotted lands for oil and gas mining purposes.-Unallotted land on Indian reservations other than lands of the Five Civilized Tribes and the Osage Reservation subject to lease for mining purposes for a period of ten years under the preceding section may be leased at public auction by the Secretary of the Interior, with the consent of the council speaking for such Indians, for oil and gas mining purposes."

    U.S. Code, title 25, sec. 402:

   "Leases of surplus lands.-The surplus lands of any tribe may be leased for farming purposes by the council of such tribe under the same rules and regulations and for the same term of years as is now allowed in the case of leases for grazing purposes (Aug. 15, 1894, c. 200, Sec. 1, 28 Stat. 305.)"
 

a license to trade with the Chickasaw Indians, and subsequently acquiring property within the limits of their reservation, subjected the same to the jurisdiction of their laws. (At p. 287.)

    The power of an Indian tribe to regulate the inheritance of individual property owned by members of the tribe has been analyzed under a separate heading.

    It clearly appears, from the foregoing cases, that the powers of an Indian tribe are not limited to such powers as it may exercise in its capacity as a landowner. In its capacity as a sovereign, and in the exercise of local self-government, it may exercise powers similar to those exercised by any State or nation in regulating the use and disposition of private property, save insofar as it is restricted by specific statutes of Congress.

    The laws and customs of the tribe, in matters of contract and property generally (as well as on questions of membership, domestic relations, inheritance, taxation, and residence), may be lawfully administered in the tribunals of the tribe, and such laws and customs will be recognized by courts of State or Nation in cases coming before these courts.²¹

    The powers of an Indian tribe in the administration of justice derive from the substantive powers of self-government which are legally recognized to fall within the domain of tribal sovereignty. If an Indian tribe has power to regulate the marriage relationships of its members, it necessarily has power to adjudicate, through tribunals established by itself, controversies involving such relationships. So, too, with other fields of local government in which our analysis has shown that tribal authority endures. In all these fields the judicial powers of the tribe are coextensive with its legislative or executive powers.

    Washburn v. Parker (7 Fed. Sup. 120); Raymond v. Raymond (83 Fed. 721); 19 Op. Atty. Gen. 109 (1888); 7 Op. Atty. Gen. 174 (1855).

    The decisions of Indian tribal courts, rendered within their jurisdiction and according to the forms of law or custom recognized by the tribe, are entitled to full faith and credit in the courts of the several States.

    As was said in the case of Stanley v. Roberts (59 Fed. 836, app. dism., 17 Sup. Ct. 999, memo. dec.):

    * * * the judgments of the courts of these nations, in cases within their jurisdiction, stand on the same footing with those of the courts of the territories of the Union and are entitled to the same faith and credit. (At page 845.)

    The Cherokee Nation * * * is a distinct political society, capable of managing its own affairs and governing itself. It may enact its own laws, though they may not be in conflict with the constitution of the United States. It may maintain its own judicial tribunals, and their judgments and decrees upon the rights of the persons and property of members of the Cherokee Nation as against each other are entitled to all the faith and credit accorded to the judgments and decrees of territorial courts (At page 722.)

    The question of the judicial powers of an Indian tribe is particularly significant in the field of law and order. For in the fields of civil controversy the rules and decisions of the tribe and its officers have a force that State courts and Federal courts will respect. But in accordance with the well-settled principle that one sovereign will not enforce the criminal laws of another sovereign, State courts and Federal courts alike must decline to enforce penal provisions of tribal law. Responsibility for the maintenance of law and order is therefore squarely upon the Indian tribe, unless this field of jurisdiction has been taken over by the States or the Federal government.

    It is illuminating to deal with the question of tribal criminal jurisdiction as we have dealt with other questions of tribal authority, by asking, first, what the original sovereign powers of the tribes were, and then, how far and in what respects these powers have been limited.

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    ²¹ See: Cuthbert Pound, "Nationals Without a Nation," 22 Columbia Law Rev. 97, 101-102 (1922); W. G. Rice, Jr., "The Position of the American Indian in the Law of the United States", 16 Jour. Comp. Leg. (3d Series), part 1, p. 78 (1934).
 

    So long as the complete and independent sovereignty of an Indian tribe was recognized, its criminal jurisdiction, no less than its civil jurisdiction, was that of any sovereign power. It might punish its subjects for offenses against each other or against aliens and for public offenses against the peace and dignity of the tribe. Similarly, it might punish aliens within its jurisdiction according to its own laws and customs.²² Such jurisdiction continues to this day, save as it has been expressly limited by the acts of a superior government.

    It is clear that the original criminal jurisdiction of the Indian tribes has never been transferred to the States. Sporadic attempts of the States to exercise jurisdiction over offenses between Indians, or between Indians and whites, committed on an Indian reservation, have been held invalid usurpation of authority.

    The principle that a State has no criminal jurisdiction over offenses involving Indians committed on an Indian reservation is too well established to require argument, attested as it is by a line of cases that reaches back to the earliest years of the Republic. See Worcester v. Georgia, 6, Pet. 515; United States v. Kagama, 118 U.S. 375; United States v. Thomas, 151 U.S. 577; Toy v. Hopkins, 212 U.S. 542; United States v. Celestine, 215 U.S. 278; Donnelly v. United States, 228 U.S. 245; United States v. Pelican, 232 U.S. 442; United States v. Ramsey, 271 U.S. 467; United States v. King, 81 Fed. 625: In re Lincoln, 129 Fed. 297; United States v. Hamilton, 223 Fed. 685; Yohyowan v. Luce, 291 Fed. 425; State v. Campbell, 53 Minn. 354, 55 N. W. 553; State v. Big Sheep, 75 Mont. 219, 243 Pac. 1067; Ex parte Cross, 20 Nebr. 417; People ex rel. Cusick v. Daly, 212 N. Y. 183, 105 N. E. 1048; State v. Cloud, 228 N. W. 611 (Minn.); State v. Rufus, 237 N. W. 671 (Wis.).

    A State, of course, has jurisdiction over the conduct of an Indian off the reservation.²³ A State also has jurisdiction over some, but not all, acts of non Indians within a reservation.²⁴ But the relations between whites and Indians in "Indian country" and the conduct of Indians themselves in Indian country are not subject to the laws or the courts of the several States.

    The denial of State jurisdiction, then, is dictated by principles of constitutional law.

    On the other hand, the constitutional authority the Federal Government to prescribe laws and to administer justice upon the Indian reservation is plenary. The question remains how far Congress has exercised its constitutional powers.

    The basic provisions of Federal law with regard to Indian offenses are found in sections 217 and 218 of U.S. Code, title 25:

    Sec. 217. General laws as to punishment extended to Indian country.-Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. (R. S. Sec. 2145.)

    Sec. 218. Exceptions as to extension of general laws.-The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. (R. S. Sec. 2146; Feb. 18, 1875, c. 80, Sec. 1, 18 Stat. 318.)

    Such was the law when the case of Ex parte Crow Dog (109 U.S. 556), which has been discussed in an earlier connection, arose. The United States Supreme Court there held that Federal courts had no jurisdiction to prosecute an Indian

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    ²² This power is expressly recognized, for instance, in the Treaty of July 2, 1791, with the Cherokees (7 Stat. 40) providing: "If any citizen of the United States, or other person not being an Indian, shall settle on any of the Cherokee lands, such person shall forfeit the protection of the United States, and the Cherokees may punish him or not as they please." (Sec. 8.)

    ²³ See Pablo v. People (23 Colo. 134) (upholding State jurisdiction over murder of Indian by Indian outside of
reservation).

    ²⁴ See United States v. McBratney (164 U. S. 621) (declining Federal jurisdiction over murder of non-Indian by non-Indian on reservation).
 

for the murder of another Indian committed on an Indian reservation, such jurisdiction never having been withdrawn from the original sovereignty of the Indian tribe.

    Shortly before the decision in this case an opinion had been rendered by the Attorney General in another Indian murder case holding that where an Indian of one tribe had murdered an Indian of another tribe on the reservation of a third tribe, even though it was not shown that any of the tribes concerned had any machinery for the administration of justice, the Federal courts had no right to try the accused. The opinion concluded:

    If no demand for Foster's surrender shall be made by one or other of the tribes, founded fairly upon a violation of some law of one or other of them having jurisdiction of the offense in question according to general principles, and by forms substantially conformable to natural justice, it seems that nothing remains except to discharge him (17 Ops. Atty. Gen. 566, 570.)

    The right of an Indian tribe to inflict the death penalty had been recognized by Congress, in the report cited above, at page 20.
 
    Following the Crow Dog decision Congress passed the act of March 3, 1885, sec. 9 (23 Stats. L. 385), which, with an amendment, became sec. 328 of the U.S. Criminal Code of 1910 and now sec. 548 of title 18 of the U.S. Code. This section provides for the prosecution in the Federal courts of Indians committing, within Indian reservations, any of the ten (formerly seven, then eight) specifically mentioned offenses (whether against Indians or against non-Indians),: murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny.²⁵

    Although this statute does not expressly terminate tribal jurisdiction over the enumerated crimes, and might, if the question were an original one, be interpreted as conferring only a concurrent jurisdiction upon the Federal courts, it has been construed for many years as removing all jurisdiction over the enumerated crimes from the Indian tribal authorities.

    Thus, in the case of United States v. Whaley (37 Fed. 145), which arose soon after the passage of the statute in question, it had appeared fitting to the tribal council of the Tule River Reservation that a medicine man who was believed to have poisoned some twenty-one deceased patients should be executed, and he was so executed. The four tribal executioners were found guilty of manslaughter, in the Federal court, on the theory that the act of March 3, 1885, had terminated tribal jurisdiction over murder cases. Whether tribal authorities may still inflict the death penalty for offenses other than the enumerated ten major crimes is a matter of some doubt.

    The lacunae in this brief criminal code of ten commandments are serious, and indicate the importance of tribal jurisdiction in the field of law and order.

    "Assault" cases that do not involve a "dangerous weapon" or where "intent to kill" cannot be proven, cannot be prosecuted in the Federal court, no matter how brutal the attack may be, or how near death the victim is placed, if death does not actually ensue; men brutally beating their wives and children are, therefore, exempt from prosecution in the Federal courts, and, as above shown, the State courts do not have jurisdiction. Even assault with intent to commit rape or great bodily injury is not punishable under any Federal statute.²⁶

    Aside from rape and incest the various offenses involving the relation of the sexes (e.g., adultery, seduction, bigamy, and solicitation), as well as those involving the responsibility of a man for the support of his wife and children, are not within the cases that can be prosecuted in Federal courts.²⁷

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²⁵ "548. (Criminal Code, section 328.) Indians committing certain crime; acts on reservations; rape on Indian woman.-All Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny on and within any Indian reservation under the jurisdiction of the United States Government, including rights-of-way running through the reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States: Provided, That any Indian who commits the crime of rape upon any female Indian within the limits of any Indian reservation shall be imprisoned at the discretion of the court: Provided further, That as herein used the offense rape shall be defined in accordance with the laws of the State in which the offense was committed.

    The foregoing shall extend to prosecutions of Indians in South Dakota under section 549 of this title. (As amended June 28, 1932. c. 284.47 Stat. 337.)"

    ²⁶ United States v. King (81 Fed. 625).

    ²⁷ See United States v. Quiver (241 U. S. 602), discussed above under heading, "The Power of an Indian Tribe to Regulate Domestic Relations."
 

    Other offenses which may be mentioned, to which no State or Federal laws now have applications, and over which no State or Federal court now has any jurisdiction, are: kidnapping, receiving stolen goods, poisoning (if the victim does not die), obtaining money under false pretenses, embezzlement, blackmail, libel, forgery, fraud, trespass, mayhem, bribery, killing of another's livestock, setting fire to prairie or timber, use of false weights and measures, carrying concealed weapons, gambling, disorderly conduct, malicious mischief, pollution of water supplies, and other offenses, against public health.²⁸

    It is not clear whether the foregoing offenses, which are not punishable in the Federal courts when committed by one Indian against another, are likewise exempt from punishment when committed by a non-Indian against an Indian, or by an Indian against a non-Indian, if the offense occurs within the boundaries of Indian country.

    In these circumstances the wrongdoer is clearly not subject to State law. He is, however, subject to the provisions of the United States Criminal Code which deal with a meager list of "offenses within admiralty, maritime, and territorial jurisdiction of the United States." ²⁹ The offenses specifically dealt with in this Federal criminal code do not include any of the offenses above enumerated except simple assault, various sex offenses, receiving stolen goods, and attempts at murder. There is, however, in the United States Criminal Code a provision (U.S. Code, title 18, sec. 468) which makes acts committed upon land within the exclusive jurisdiction of the United States subject to Federal prosecution whenever made criminal by State law. It may be argued that this provision applies to offenses committed by an Indian against a non-Indian or by a non-Indian against an Indian, but no decision so holding has been found.³⁰

    On the foregoing analysis the limitations of Federal jurisdiction in the Indian country are apparent. The only offenses punishable in the Federal courts when committed within an Indian reservation are: the ten major crimes specially designated in U.S. Code, title 18, section 548: the special "reservation offenses" included in U.S. Code, title 25 (chiefly involving the sale of liquor); the ordinary Federal crimes applicable through out the United States (such as counterfeiting, smuggling,³¹ and offenses relative to the mails), and, with respect to offenses committed by an Indian against a non-Indian or by a non-Indian against an Indian, the special "territorial" offenses for which punishment is provided in chapters 11 and 13 of U.S. Code, title 18.

    The difficulties of this situation have prompted agitation for the extension of Federal or State laws over the Indian country, which has continued for at least five decades, without success.³² The propriety of the object sought is not here in question, but the agitation itself is evidence of the large area of human conduct which must be left in anarchy if it be held that tribal authority to deal with such conduct has disappeared.

    Fortunately, such tribal authority has been repeatedly recognized by the courts. and although it has not been actually exercised always and in all tribes, it remains a proper legal basis for the tribal administration of justice wherever an Indian tribe desires to make use of its legal powers.

    The recognition of tribal jurisdiction over the offenses of tribal Indians accorded by the Supreme Court in Ex parte Crow Dog, supra, and United States v. Quiver, supra, indicates that the criminal jurisdiction of the Indian tribes has not been curtailed by the failure of certain tribes to exercise such jurisdiction, or by the inefficiency of its at-

    ²⁸ Cf. statements of Assistant Commissioner Merritt, before House Committee on Indian Affairs, 69th Congress, on H. R. 7826. Hearings ("Reservation Courts of Indian Offenses"), p. 91.

    ²⁹ See DonnelIy v. United States (228 U. S. 243) (murder of Indian by non-Indian upon reservation held within exclusive Federal jurisdiction).

    ³⁰ United States v. Barnaby (51 Fed. 20) held that this section had no application to crimes committed by one Indian against another. The court declared:

    "This attempt to adopt territorial and state laws may be classed as indolent legislation, not well adapted to producing order upon Indian reservations, or in those places under the exclusive jurisdiction of the general government, and allowing men guilty of crimes, demanding in all civilized governments punishment, as in this case, to escape their just desserts. The motion in arrest of judgment is sustained, and the defendant discharged from custody."

    ³¹ See Bailey v. United States (47 Fed. Id, 702), confirming conviction of tribal Indian for offense of smuggling.

    ³² See Harsha, "Law for the Indians," 134 North American Review 272;

    James Bradley Thayer, "A People Without Law," 68 Atlantic Monthly 540, 676 (1891);

    Austin Abbott, "Indians and the Law," 2 Harv. Law Rev. 167 (1888);

    William B. Hornblower, "The Legal Status of the Indians," 14 Rep. Am. Bar Ass'n 261 (1891);

    Resolution of American Bar Association. August, 1891, in 15 Rep. Am. Bar Ass'n 422 (1892);

    Cuthbert Pound, "Nationals Without a Nation," 22 Columbia Law Rev. 97 (1922);

    Meriam and Associates, "The Problem of Indian Administration," (1928), chapter 13;

    Ray A. Brown, "The Indian Problem and the Law," 39 Yale L. J. 307 (1930);

    Report of Brown, Mark, Cloud, and Meriam on "Law and Order on Indian Reservations of the Northwest," Hearings Subcommittee of the Senate Committee on Indian Affairs, part 26, page 14,137 et seq. (1932).
 

tempted exercise, or by any historical changes that have come about in the habits and customs of the Indian tribes. Only specific legislation terminating or transferring such jurisdiction can limit the force tribal law.

    A recent writer,³³ after carefully analyzing the relation between Federal and tribal law, concludes:

    This gives to many Indian tribes a large measure of continuing autonomy, for the federal statutes are only a fragment of law, principally providing some educational, hygienic, and economic assistance, regulating land ownership, and punishing certain crimes committed by or upon Indians on a reservation. Where these statutes do not reach, Indian custom is the only law. As a matter of convenience, the regular courts (white men's courts) tacitly assume that the general law of the community is the law in civil cases between Indians, but these court will apply Indian custom where it is proved. (At p. 90.)

    On the other hand, it is argued by the United States Agent that the courts of the Choctaws can have no jurisdiction of any case in which a citizen of the United States is a party * * *.

    In the first place, it is certain that the Agent errs in assuming the legal impossibility of a citizen of the United States becoming subject, in civil matters, or criminal either, to the jurisdiction of the Choctaws. It is true that no citizen of the United States can, while he remains within the United States, escape their constitutional jurisdiction, either by adoption into a tribe of Indians, or any other way. But the error in all this consists in the idea that any man, citizen or not citizen, becomes divested of his allegiance to the United States, or throws off their jurisdiction or government, in the face of becoming subject to any local jurisdiction whatever. This idea misconceives entirely the whole theory of the Federal Government, which theory is that all the inhabitants of the country are, in regard to certain limited matters, subject to the federal jurisdiction, and in all others to the local jurisdiction, whether political or municipal. The citizen of Mississippi is also a citizen of the United States; and he owes allegiance to, and is subject to the laws of, both governments. So also an Indian, whether he be Choctaw or Chickasaw, and while subject to the local jurisdiction of the councils and courts of the Nation, yet is not in any possible relation or sense divested of his allegiance and obligations to the Government and laws of the United States.

    Recognition of tribal authority in the administration of justice is found in the statutes of Congress, as well as in the decisions of the Federal courts.

    U.S. Code, title 25, section 229, provides that redress for a civil injury committed by an Indian shall be sought in the first instance from the "Nation or tribe to which such Indian shall belong." This provision for collective responsibility evidently assumes that the Indian tribe or nation has its own resources for exercising disciplinary power over individual wrongdoers within the community.

    We have already referred to U.S. Code, title 25, section 218, with its express assurance that persons "punished by the law of the tribe" shall not be tried again before the Federal courts.

    What is even more important than these statutory recognitions of tribal criminal authority is the persistent silence of Congress on the general problem of Indian criminal jurisdiction. There is nothing to justify an alternative to the conclusion that the Indian tribes retain sovereignty and jurisdiction over a vast area of ordinary offenses over which the Federal Government has never pre-

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    ³³ W. G. Rice, Jr.. "The Position of the American Indian in the Law of the United States," 16 Jour. Comp. Leg. (3d series), part 1, page 78 (1934).

    ³⁴ The jurisdiction of the Indian tribe ceases at the border of the reservation (see 18 Op. Atty. Gen. 440, holding that the authority of the Indian police is limited to the territory of the reservation), and Congress has never authorized appropriate extradition procedure whereby an Indian tribe may secure jurisdiction over fugitives from its justice. See Ex parte Morgan (20 Fed. 298).