Indian Law

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Indian Law Treatise
Table of Contents
The Field of Indian Law: Indians and Indian Country
The field of Indian law
Definitions of "Indian"
Indian country
The Office of Indian Affairs
The development of the Indian Service
The development of Indian Service policies
The administration of the Indian Service
Indian Treaties
The legal force of Indian treaties
Interpretation of treaties
The scope of treaties
A history of Indian treaties
The end of treaty-making
Indian agreements
Federal Indian Legislation
The beginnings: 1789
Legislation from 1790 to 1799
Legislation from 1800 to 1809
Legislation from 1810 to 1819
Legislation from 1820 to 1829
Legislation from 1830 to 1839
Legislation from 1840 to 1849
Legislation from 1850 to 1859
Legislation from 1860 to 1869
Legislation from 1870 to 1879
Legislation from 1880 to 1889
Legislation from 1890 to 1899
Legislation from 1900 to 1909
Legislation from 1910 to 1919
Legislation from 1920 to 1929
Legislation from 1930 to 1939
Indian appropriation acts: 1789 to 1939
The Scope of Federal Power Over Indian Affairs
Sources of federal power
Congressional power—Treaty-making
Congressional power—Commerce with Indian tribes
Congressional power—National defense
Congressional power—United States territory and property
Congressional power—Membership
Administrative power—Introduction
The range of administrative powers
Administrative power—Tribal lands
Administrative power—Tribal funds
Administrative power—Individual lands
Administrative power—Individual funds
Administrative power—Membership
The Scope of State Power Over Indian Affairs
Federal statutes on state power
Reserved state powers over Indian affairs
The Scope of Tribal Self-government
The derivation of tribal powers
The form of tribal government
The power to determine tribal membership
Tribal regulation of domestic relations
Tribal control of descent and distribution
The taxing power of an Indian tribe
Tribal powers over property
Tribal powers in the administration of justice
Statutory powers of tribes in Indian administration
Personal Rights and Liberties of Indians
Eligibility for public office and employment
Eligibility for state assistance
Right to sue
Right to contract
The meanings of "incompetency"
The meanings of "wardship"
Civil liberties
The status of freedmen and slaves
Individual Rights in Tribal Property
The nature of individual rights in tribal property
Dependency of individual rights upon extent of tribal property
Eligibility to share in tribal property
Transferability of the right to share
Rights of user in tribal property
Individual rights upon distribution of tribal property
The Rights of the Indian in his Personalty
Nature and forms of Individual personal property
Sources of individual personal property
Sources of individual personal property—Proeeeds from allotted lands
Sources of individual personal property—Individualization of tribal funds
Sources of individual personal property—Payments from the Federal Government
Sources of individual personal property—Payments of damages
Federal protection Of individual personal property
Expenditure and investment of individual Indian moneys
Deposits of individual Indian moneys
Bequest, descent and distribution of personal property
Individual rights in personalty—Crops
Individual rights in personalty—Livestock
Individual Rights in Real Property
Background of the allotment system
Right to receive allotment
Possessory rights in allotted lands
Alienation of allotted lands
Leasing of allotted lands
Descent and distribution of allotted lands
Federal Services for Indians
Health services
Rations, relief, and rehabilitation
Social security benefits
Federal loans
Reclamation and irrigation
Federal legal services
Sources of limitations on taxing power of the states
State taxation of tribal lands
State taxation of individual Indian lands
State taxation of personal property
State sales taxes
State inheritance taxes
Federal taxation
Tribal taxation
The Legal Status of Indian Tribes
Tribal existence
Termination of tribal existence
Political status
Corporate capacity
Contractual capacity
Capacity to sue
Tribal hunting and fishing rights
Tribal Property
Definition of tribal property
Forms of tribal property
Sources of tribal rights in real property
Aboriginal possession
Treaty reservations
Statutory reservations
Executive order reservations
Tribal land purchase
Tribal title derived from other sovereignties
Protection of tribal possession
Extent of tribal possessory rights
The territorial extent of Indian reservations
The temporal extent of Indian titles
Subsurface rights
Tribal timber
Tribal water rights
Tribal rights in improvements
Tribal conveyances
Tribal leases
Tribal licenses
Status of surplus and ceded lands
Tribal rights in personal property
Tribal right to receive funds
Tribal right to expend funds
Indian Trade
History of legislation
Present law
Indian Liquor Laws
Historical background
Sources and scope of federal power re liquor traffic
Existing prohibitions and enforcement measures
Locality where those measures apply
Enforcement agencies, jurisdiction, and procedure
Criminal Jurisdiction
Crimes in Indian country
Crimes in Indian country by Indian against Indian
Crimes in Indian country by Indian against non-Indian
Crimes in Indian country by non-Indian against Indian
Crimes in Indian country by non-Indian against non-Indian
Crimes in areas within exclusive federal jurisdiction
Crimes in which locus is irrelevant
Civil Jurisdiction
Federal courts
Court of Claims
Federal administrative tribunals
State courts
Tribal courts
Pueblos of New Mexico
Status of Pueblos under Spanish law
The Pueblos under Mexican rule
The Pueblos under the New Mexican territorial government
The Pueblos in the State of New Mexico
Pueblo self-government
Pueblo land titles
The relation of the Pueblos to the Federal Government
The relation of the Pueblos to the state
The Pueblo as a corporate entity
Alaskan Natives
Classification of Alaskan natives
Classification of natives under Russian rule
Treaty of cession
Sources of federal power
Status of natives
Property rights
Tribes and associations
New York Indians
Historical background
Present status of tribal government
Special Laws Relating to Oklahoma
Oklahoma tribes
Government of Indian Territory
Termination of tribal government—Five Civilized Tribes
Enrollment—Five Civilized Tribes
Alienation and taxation of allotted lands of Five Tribes
Leasing of allotted lands of Five Civilized Tribes
Trusts of restricted funds of members of Five Tribes
Inheritance among Five Civilized Tribes
Special laws governing Osage tribe
Oklahoma Indian Welfare Act


We in this country are slowly learning to appreciate the significance of the problem of Indian rights for the cause of democracy here in the United States and throughout the Western Hemisphere. Over the radio, a few months ago, came the words of a man who knows more than any one else in the world about Indians as human beings. His words are a better introduction to the Indian problem than I can write.

What sort of treatment dominant groups give to subject groups—how governments treat minorities—and how big countries treat little countries: This is a subject that comes down the centuries, and never was it a more burning subject than in this year 1939— even in this month, December 1939.

So the question: How has our own country treated its oldest and most persisting minority, the Indians; how has it treated them, and how is it treating them now? This is an important question, I believe that nearly all Americans realize the importance of this question. Many millions of our citizens feel an interest, curious and sympathetic and sometimes enthusiastic, in our Indian minority.

What I shall describe will be a bad beginning which lasted a long time, which broke Indian hearts for generation after generation, which inflicted destructions that no future time can wholly repair. Then I shall describe how the long-lasting bad record was changed to something good; how, although the change came so late, it did not come too late; how when the change came, it still found hundreds of Indian tribes ready to respond to the opportunity which at last had been given them. I shall describe how the good change has developed across three Presidencies, so that it is not an achievement or program of a single

political party. But I shall describe, too, the decisive and immense good change which has come under President Franklin D. Roosevelt and Secretary of the Interior, Harold L. Ickes.[1]

I shall not quote the main body of Commissioner Collier's speech, for that reappears, amplified and developed somewhat, in the pages that follow. I quote, again, only his final words:

No, the task is not finished. It is only well begun. But one part of the task is finished, and it marks and makes an epoch. The repressions which crushed the Indian spirit have been lifted away. From out of an ancient and dark prison house the living Indian has burst into the light, into the living sunlight and the future. All of his age-tempered powers and his age-tried discipline are still there. He knows that the future is his; and that the century of dishonor, for him, is ended.

But he needs our continuing help, and our nation's debt to him is not yet paid.

The thing we have started to do, and with your help, you citizens of our country, will continue to do, is to aid the Indian work out his own destiny. We have helped him to retain and to rebuild the richness of his own national life, and in doing this we think we have enriched the national life, the national heritage and the national honor of 130,000,000 Americans. This is the way the democracy of the United States is solving the minority problem of its first Americans.

Let me carry your thought beyond our own national borders. Our Indians are a tiny, though now a growing minority. But south of the Rio Grande, the Indians number not hundreds of thousands, but millions. Pure-blooded Indians are the major population in Mexico, in Guatemala, Honduras, Peru, Ecuador. There are thirty million Indians — one growing race, and one of the world's great races. And that race is marching toward power* It may be that the most dependable guarantee of the survival and triumph of real democracy in our hemisphere, south of the Rio Grande, is this advance toward power of the Indians, who from most ancient times, and now, are believers in, and practicers of local democracy.

What we are doing—what with your help we shall do—to meet our own Indian minority problem has

a deep significance to these 30,000,000 other Indians, and to all the countries where they are located. Here we enter within the battleground and effort-ground of our Western Hemisphere destiny. It is upon this scale of two continents, and of a democracy defended and increased through at least one-half of our globe, that world-history will view our own record with our Indian minority.

Against this background of history and of struggle and hope, the federal law governing Indian affairs may be viewed not, as it has too often been viewed, as a curious collection of anachronisms and mysteries, but rather as a revealing record in the development of our American constitutional democracy. The decline of dictatorship in the Indian country is fresh enough in our national memory so that we may perhaps profit from an analysis of weaknesses that dictatorial bluster ever seeks to conceal, and from an understanding of the ways in which the forms and forces of democracy have, in this small sector of an endless battle line, won victory.


For more than a century, Supreme Court Justices, Attorneys General, and Commissioners of Indian Affairs have commented on the intricate complexity and peculiarity of federal Indian law. Yet until now no writer lias attempted to gather into a single work these intricacies. The reason may perhaps best be appreciated by those who have attempted that task. The federal law governing Indians is a mass of statutes, treaties, and judicial and administrative rulings, that includes practically all the fields of law known to textbook writers — the law of real property, contracts, corporations, torts, domestic relations, procedure, criminal law, federal juris- diction, constitutional law, conflict of laws, and international law. And in each of these fields the fact that Indians are involved gives the basic doctrines and concepts of the field a new quirk which sometimes carries unpredictable consequences.

To survey a field which includes, for instance, more than four thousand distinct statutory enactments, one must generalize. And generalization on the subject of Indian law is peculiarly dangerous.

For about a century the United States dealt separately with the various Indian tribes and the legal rights of the members of each tribe were fixed by treaty,[2] These treaties are for the most part still in force and of recognized validity. In them one finds reflected the very wide pre-Columbian divergencies that existed, for instance, between the great agricultural towns and confederacies of the Southeast and the loosely organized nomadic hunters of the Plains area, or between the small fish-eating, slave-owning bands of the Northwest Coast and the great constitutional democracy that was the League of the Iroquois.

When Congress in 1871 enacted a law[3] prohibiting further treaty making with the Indian tribes, the form of governmental dealing with the Indians was changed, but the essential character of those dealings was not modified. Congress continued to deal with the Indian tribes, in large measure, through “agreements,” ratified by both Houses of Congress, which do not differ from treaties in legal effect. The only substantial change accomplished by the law of 1871 was that whereas Indian treaties were submitted for the ratification of the Senate alone, as the Constitution of the United States provides,[4] agreements are ratified by the action of both Houses, and thus the House of Representatives, which had long been excluded from equal participation in Indian affairs, has achieved an equal status with the Senate in that field. Apart from treaties and agreements with particular tribes, the dealings of the Federal Government with the Indians have been predominantly by way of special statutes applying to named tribes, and, most recently, by way of tribal constitutions and tribal charters, all varying very considerably among the different tribes. Until the last years of the nineteenth century there was very little general legislation applying a uniform pattern to all tribes, and what little there was usually turns out, on analysis, to be in the nature of generalization from provisions that had appeared in several treaties.

During what may be roughly defined as the allotment period — from 18S7, when the General Allotment law [5] was passed, to 1933, when the process of allotment came to an end — -there developed a tendency to impose upon all Indian tribes a uniform pattern of general laws and general regulations. This tendency was commonly justified in terms of administrative efficiency and economy, and to this justification there was sometimes added the thought that Indian treaties, special statutes, and regional differences were all outworn relics which had to be sacrificed in the march of national progress. The effect, however, of this policy of ignoring the special rights conferred on individual tribes by treaty and statute and ignoring the political autonomy and cultural diversity of the tribes was to cause tremendous and widespread resentment among the Indians. The Indians found Indian and white champions. Protest against mistreatment of the Indian led to many investigations, A survey was conducted by the Institute for Government Research at the request of Secretary of Interior Work. The results of this study, published in 1928 under the title: “The Problem of Indian Administration,” gave direction for more than a decade to Indian reform. On February 1, 1928, the Senate authorized its Committee on Indian Affairs to carry out an intensive survey of the condition of the Indians in the United States.[6]

These investigations have brought to light many of the evils resulting from attempts to impose a uniform pattern of treatment upon groups with different wants, and thus have strengthened the tendency towards special consideration of the legal problems of particular tribes. The policy of superseding the old pattern of uniformity and absolutism found expression in the Wheeler-Howard (Indian Reorganization) Act. Pursuant to this law, approved on June 18, 1934,[7] more than a hundred tribes in the United States adopted their own constitutions for self-government.[8] Practically all the regulations of the Indian Service have now been made subject to modifications for particular tribes through the provisions of these tribal constitutions and tribal ordinances.

These considerations indicate that a work on federal Indian law must deal with law made for, and in large part by, diverse groups with divergent economic interests, political institutions, and levels of cultural attainment.

Anyone who has worked in the field of Indian litigation is frequently asked by otherwise well informed people whether he understands "the Indian language." There are, in fact, more than 200 different Indian languages, some of them as distinct from each other as English and Chinese. This linguistic diversity is paralleled by diversities in the conditions and legal problems of more than 200 different Indian reservations.

Common opinion pictures the original American dressed in feathers and wampum, his belt adorned with scalps, mounted on a horse, gazing after buffalo. This picture blurs over the fact that many Indians, before white contact, wore farmers and fishermen who had never seen feather head-dresses, wampum, scalps, or buffalo, that no Indian ever rode a horse before the Spaniards brought horses into North America, and that the special combination of striking Indian peculiarities which the modern "circus Indian" embodies did not exist before the rise of modern American showmanship.

Just as the popular picture of the Indian embodies a false juxtaposition of traits, so the popular view of Indian law embodies a false juxtaposition of ideas.

The popular view of the Indian's legal status proceeds from the assumption that the Indian is a ward of the Government, and not a citizen, that therefore he cannot make contracts without Indian Bureau approval, that he holds land in common under “Indian title,” that he is entitled to education in federal schools when he is young, to rations when he is hungry, and to the rights of American citizenship when he abandons his tribal relations.

This is, on the whole, a thoroughly false picture, although historical exemplification may be found for each feature.

It would be absurd to set up in place of this false and oversimplified picture of federal Indian law any other equally simple picture. It may be worth while, however, to set forth certain hypotheses concerning the recurrent patterns of federal Indian law, which will be tested against decisions, statutes, and treaties in the pages that follow. These hypotheses may be conveniently grouped under four leading principles:

  1. The principle of the political equality of races;
  2. the principle of tribal self-government;
  3. the principle of federal sovereignty in Indian affairs; and
  4. the principle of governmental protection of Indians.

POLITICAL EQUALITY[edit | edit source]

The right to be immune from racial discrimination by governmental agencies is an essential part of the fabric of democratic government in the United States. In part, this right is constitutionally affirmed by the fifth, fourteenth, and fifteenth amendments to the Federal Constitution * in part, the right is embodied m statutes providing penalties for racial discrimination by agencies of Federal and State Government; and, in part, the right is no more than a moral right implicit in the character of democratic government but not always protected by adequate legal machinery.

Despite a widely prevalent impression to the contrary, all Indians born in the United States are citizens of the United States and of the state in which they reside.[9] As citizens they are entitled to the rights of suffrage guaranteed by the fifteenth amendment,[10] and they are likewise entitled to hold public office,[11] to sue,[12] to make contracts,[13] and to enjoy all the civil liberties guaranteed to their fellow citizens.[14] These rights take on a special significance against the background of highly organized administrative control. They indicate that a body of federal Indian law, considered as “racial law,” would be as much an anomaly as a body of federal law for persons of Teutonic descent, and that the existence of federal Indian law can be neither justified nor understood except in terms of the existence of Indian tribes.

TRIBAL SELF-GOVERNMENT[edit | edit source]

The principle that an Indian tribe is a political body with powers of self-government was first clearly enunciated by Chief Justice Marshall in the case of Worcester v. Georgia.[15] Indian tribes or nations, he declared, ". . . had always been considered as distinct, independent, political communities, retaining their original natural rights, . . . ." (P. 559.)

To this situation was applied the accepted rule of international law: "the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government—by associating with a stronger, and taking its protection. (P. 560.)

From these premises the courts have concluded that Indian tribes have all the powers of self-government of any sovereignty except insofar as those powers have been modified or repealed by act of Congress or treaty. Hence over large fields of criminal and civil law, and particularly over questions of tribal membership, inheritance, tribal taxation, tribal property, domestic relations, and the form of tribal government, the laws, customs, and decisions of the proper tribal governing authorities have, to this day, the force of law.[16]

FEDERAL SOVEREIGNTY[edit | edit source]

The doctrine that Indian affairs are subject to the control of the Federal Government, rather than that of the states, derives from two legal sources.[17] In the first place, the Federal Constitution expressly conferred upon the Congress of the United States the power “to regulate commerce with the Indian tribes,”[18] Matters internal to the tribe itself even to this day have been left largely in the hands of tribal governments. Federal power has generally been invoked in matters arising out of commerce with the Indian tribes, in the broad sense in which that phrase has been used to include all transactions by which Indians sought to dispose of land or other property in exchange for money, liquor, munitions or other products of the white man's civilization. The growth of the commerce clause has meant the expansion of federal power in Indian affairs, at the expense of state power.

Supplementary to the express constitutional power over commerce with the Indian tribes which was conferred upon Congress, the Federal Government was constitutionally endowed with plenary power over the making of treaties. Since the Federal Government had made several treaties with Indian tribes prior to the adoption of the Constitution in 1787, and continued to make such treaties for more than eight decades thereafter, the growth of federal power over Indian relations, at the expense of all claims of state power, was continuous and unchecked during the period m which the outlines of our present law of Indian affairs were established.

At the present time it may be laid down as a rough general rule that Indians on an Indian reservation are not subject to state law. This exemption is of particular importance in the fields of criminal law and taxation. The general rule has been modified in a few particulars by congressional action conferring upon the state specific power over certain subjects. Perhaps the most important of those laws delegating power to the states is the General Allotment Act,[19] which provides that, when tribal lands have been individualized, the individual parcels shall be inherited in accordance with the laws of the state. Another important exception to the general rule of federal sovereignty exists in the case of Oklahoma, where very extensive powers over Indians have been conferred upon the government of the state.[20] In both of these cases, as well as in various other matters, the power of the state is defined by federal legislation.[21]


Most of the legislation of the United States with respect to Indian affairs is subject to a dual interpretation. To the cynic such legislation may frequently appear as a mechanism for the orderly plundering of the Indian. To those more charitably inclined, the Government has appeared as the protector of the Indians against individuals who wished to separate the Indian from his possessions. Without attempting to anticipate the judgment that history will render on this conflict of doctrine, it may be said that at least the theory of American law governing Indian affairs has always been that the Government owed a duty of protection to the Indian in his relations with non-Indians. As was said by the Supreme Court of the United States in the case of United States v. Kagama:[22]

Because of the local ill feeling, the people of the States where they [the Indian tribes] are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.

(P. 384.)

As a practical matter the individuals against whom the Indian needed the most vigorous kind of protection were the trader and the settler. Both wanted Indian land. The trader also wanted furs. The trader offered directly or indirectly, in exchange for land or furs, kettles, knives, clothing, liquor, firearms, ammunition, and other commodities. Some of these commodities were unknown in the pre-Columbian cultures, and the tribes had developed no adequate social controls over their use; the byproducts of this trade were disease violence, and, in many cases, the destruction on the game on which the Indians had subsisted. The settler wanted Indian land. Often he offered, in exchange for the land, the trader’s goods; often he took the land without offering any quid pro quo. This intercourse between Indians and whites threatened the decimation of Indians through violence, disease, and starvation and imposed upon the Federal Government a tremendous cost for military protection of the white frontier families against the not always discriminating retaliation of the despoiled natives. The effort to control this intercourse was the guiding motif of federal Indian legislation down to our own generation.

Thus the problems of federal Indian law have been primarily the problems of (1) the regulation of Indian traders (2) controlling the disposition of Indian land, (3) the protection of that land against trespass, and (4) the control of the liquor traffic. A few words on each of these four points may suggest the general contours of our federal law on Indian affairs.

The regulation of Indian traders[edit | edit source]

In 1790 Congress adopted the policy of regulating trade with the Indians through a system of licensing traders.[23] Except for a brief period, from 1796 to 1822, when a system of Government trading houses was maintained, the principle of control of Indian trade through licenses has been in force. Under this system federal supervision of the character and quality of goods sold and prices charged has been possible. Sales of liquor, and of firearms and ammunition not needed for useful purposes, have been banned. The system depended very largely for its effectiveness upon the isolation of the Indian groups affected, and in recent years the growth of towns and cities upon or near various Indian reservations and the development of trade have introduced elements of uncertainty into the question of the present efficacy and future development of our federal control over Indian trade.

Controlling the disposition of Indian land[edit | edit source]

The problem of federal control over the disposition of Indian lands becomes a very esoteric legal problem if pursued into the mysteries which have been created by those who sought to deduce specific limitations upon Indian land sales from the inherent attributes of the general concept of “Indian title,” The notion of “Indian title,” as a supposed special form of tenure involving rights of possession but no right of alienation, is a notion that depends upon certain feudal doctrines of sovereignty, dominion, and seizin, on which endless controversy is possible. The subject, however, loses much of its mystery if the sale of land be viewed against the background of federal control over other types of Indian trade. The fact is that, while recognizing that the Indian tribes owned lands in their possession and had the right to dispose of them the Federal Government has always circumscribed such disposition by means of laws prescribing the manner and terms upon which Indian land may be alienated.[24] The economic significance of this control is apparent in the following statement of the United States Supreme Court:[25]

The Indian right to the lands as property, was not merely of possession; that of alienation was concomitant; both were equally secured, protected and guarantied by Great Britain and Spain, subject only to ratification and confirmation by the license, charter or deed from the governor representing the Icing. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resident among them, to provide for their wants ; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which, by their laws or municipal regulations, was necessary to vest a title.

(Pp. 758-759.)

The first Indian Intercourse Act[26] provided that all alienations of Indian land should be made "at some public treaty, held under the authority of the United States." In the land sales that were made by treaty the United States was generally the purchaser, but in a few cases States or private individuals were designated as purchasers of the land sold.

Apart from treaties, a series of special statutes, generally but not always dependent upon the consent of the Indians concerned, provided for the sale of Indian lands. Other statutes, general as well as special, have provided for the leasing, by the Indians or by the Secretary of the Interior on their behalf, of Indian lands and minerals and the sale of Indian-owned timber.[27] Legislation authorizing the allotment of tribal lands, and supplementary laws dealing with such allotments, have provided for the sale or lease of allotted lands, under various degrees of federal administrative supervision.[28]

By maintaining its control over the transactions by which Indians dispose of land, the United States has been able to establish a degree of control over the moneys or other quid pro quo received by the Indians in connection with such disposition.[29] Thus various types of tribal and individual funds, generally representing returns from the disposition of Indian land and subject to federal control, have been established, and a good deal of the attention which Congress and the Interior Department have given to the Indian problem has been directed to the proper use of this money. Part of this vast fund, obtained from the disposition of Indian natural resources, has been used for the administration of education, health, and other public services on the Indian reservations; part of it has been distributed to the Indians in per capita payments, and part has been utilized, with or without the consent of the Indians, for expenses of government administration on the reservations. The various service functions of the Indian Service which have developed out of the administration of these funds must be left for later treatment.[30] It is enough for our present purposes to note that the principle of federal protection of the Indian, applied specifically to Indian lands, continued to exert its force beyond the transaction of Indian land sale, and that by virtue of this principle federal control came to be extended over almost the entire economic life of the Indian.

The protection of that land against trespass[edit | edit source]

The protection of Indian land against trespass was one of the first responsibilities assumed by the Federal Government. The promise of such protection for lands retained by the Indian tribes was an important quid pro quo in the process of treaty-making by which the United States acquired a vast public domain.[31] This promise of protection was sometimes backed up by a treaty provision declaring that trespassers put themselves outside the protection of the Federal Government, and might be dealt with by the tribes themselves according to their own laws and customs.

It is characteristic of the piecemeal approach characterizing federal legislation on Indian affairs that despite the importance of the subject of trespass upon Indian lands no general legislation on the subject has ever been enacted. Apart from the various treaty provisions with particular tribes, there are separate laws dealing with trespass by unlicensed traders, by horse thieves, and other criminals or would-be criminals, by settlers, by persons driving livestock to graze on Indian lands, and by hunters and trappers.[32] But there is to this day no general law which can be invoked against those trespassers whose occupation Congress has not foreseen. Ordinary civil actions have been brought by, or on behalf of, Indians and Indian tribes to protect Indian lands against trespass, but Indian unfamiliarity with legal procedure has often rendered this remedy ineffective. In recent years the Federal Government has devoted considerable attention, to litigation for the protection of Indian lands against trespass. The right of the Federal Government to bring such suits has been justified either on the theory that title to the lands rested with the Federal Government or on the more general theory that the Federal Government has a special obligation, as guardian of the Indians, to protect their lands against trespass even where full title in fee simple is held by the Indian tribe.[33] It is pertinent to note, finally, that the federal protection of Indian lands against trespass by State authorities has given rise to the established doctrine that such lands are not subject to State land taxes.[34] This doctrine has been invoked, in turn, by state authorities as a reason for not rendering to reservation Indians various public services that are rendered to other citizens of the state, e, g. public education.[35]

The control of the liquor traffic[edit | edit source]

In the belief that a great deal of Indian disorder was the result of traffic in intoxicants, Congress early established a total prohibition law for the Indian country.[36] This law has been maintained in force continuously for more than a century. The breaking down of early conditions of isolation has made the enforcement of this legislation an increasingly difficult problem.

SUMMARY[edit | edit source]

In each of the foregoing four fields of legislation the principle of federal protection of the Indians has been carried into effect by means of some typo of federal control over transactions between Indians and non-Indians, whether through complete prohibition, licensing, or the prescribing of conditions governing particular transactions, It is fair to say that historically and logically federal control over transactions of these four types is at the root of the entire body of federal legislation on Indian affairs. Thus this tremendous and unwieldy mass of legislation, comprising more than 4,300 distinct enactments, may be viewed in its entirety as the concrete content of the abstract principle of federal protection of the Indian.

In terms, this principle, an offspring of the more general one of federal sovereignty over Indian affairs, is entirely consistent with the principles of racial equality and of tribal self-government m matters internal to the tribe. In practice, however, the unsolved problems of our federal law in the field of Indian affairs all deal fundamentally with the demarcation of domain among these independent competing principles,

METHOD OF TREATMENT[edit | edit source]

This handbook does not purport to be a cyclopedia. It does not attempt to say the last word on the varied legal problems which it treats. If one who seeks to track down a point of federal Indian law finds in this volume relevant background, general perspective, and useful leads to the authorities, the handbook will have served the purpose for which it was written. More than this might have been done if it had been possible to carry through the work on the scale in which it was originally planned by Assistant Attorney General McFarland.

The method of this handbook is dictated by its subject matter. Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored. As I have elsewhere observed,[37] the groups of human beings with whom Federal Indian law is immediately concerned have undergone, m the century and a half of our national existence, changes in living habits, institutions, needs and aspirations far greater than the changes that separate from our own age the ages for which Hammurabi, Moses, Lycurgus, or Justinian legislated. Telescoped into a century and a half, one may find changes in social, political, and property relations which stretch over more than 30 centuries of European civilization. The toughness of law which keeps it from changing as rapidly as social conditions change in our national life is, of course, much more serious where the rate of social change is 20 times as rapid. Thus, if the laws governing Indian affairs are viewed as lawyers generally view existing law, without reference to the varying times in which particular provisions were enacted, the body of the law thus viewed is a mystifying collection of inconsistencies and anachronisms. To recognize the different dates at which various provisions were enacted is the first step towards order and sanity in this field.

Not only is it important to recognize the temporal “depth” of existing legislation, it is also important to appreciate the past existence of legislation which has, technically, ceased to exist. For there is a very real sense in which it can be said that no provision of law is ever completely wiped out. This is particularly true in the field of Indian law. At every session of the Supreme Court, there arise eases in which the validity of a present claim depends upon the question: “What was the law on such and such a point in some earlier period?” Laws long repealed have served to create legal rights which endure and which can he understood only by reference to the repealed legislation. Thus, in seeking a complete answer to various questions of Indian law, one finds that he cannot rest with a collection of laws “still in force,” but must constantly recur to legislation that has been repealed, amended, or superseded.

Important, however, as is the historical factor in the understanding of federal Indian law, a mere chronology of laws and decisions would be of little value. Systematic analysis is needed, the more so because no treatise has ever been written on the subject of federal Indian law. Indeed the subject hardly exists, as yet, except as a mass of rules and laws relating to a single subject matter. Unfortunately relation to a single subject matter is not enough to establish systematic interconnections among the rules and statutes so related. This any lawyer can see for himself by referring to treatises on “the law of horses” or “the law of fire engines.” Federal Indian law does exhibit a systematic interconnectedness of parts, but to discover and define the common standards, principles, concepts, and modes of analysis that run through this massive body of statutes and decisions is an analytical task of the first order.

History and analysis need to be supplemented by an understanding of the actual functioning of legal rules and concepts, the actual consequences of statutes and decisions. Language on statute books, in the field of Indian law as in other fields, frequently has only a tenuous relation to the law-in-action which courts and administrators and the process of government have derived from the words of Congress. The words of court opinions frequently have as tenuous a relation to the actual holdings. Magic “solving words” like “Indian title,” “wardship,” and “competency,” are often used to establish connections, between a case under consideration and some precedent, that turn out on reflection to be purely verbal. Functional study of the federal Indian law in action is essential to a work that may serve the practical purposes of administrators.

While it has been fashionable in some circles to consider historical, analytical, and functional approaches to legal problems as mutually exclusive and antagonistic, a more tolerant and useful viewpoint is expressed in the keynote article of one of the most promising of the newer legal periodicals:

Precisely because it is a very different question from these questions that have occupied so large a part of traditional jurisprudence, the question of the human significance of law must be posed as a supplement to established lines of inquiry in legal science rather than as a substitute for them. Indeed, there is an intimate and mutual interdependence among these lines of inquiry, historical, analytical, ethical, and functional.

The law of the present is a tenuous abstraction hovering between legal history and legal prophecy. The functionalist cannot describe the present significance of any rule of law without reference to historical elements. It is equally true that the historical jurist cannot reconstruct the past unless he grasps the meaning of the present.

The functionalist must have recourse to the logical instruments that analytical jurisprudence furnishes. Analytical jurisprudence, in turn, may develop more fruitful modes of analysis with a better understanding of the law-in-action.

Functional description of the workings of a legal rule will be indispensable to one who seeks to pass ethical judgments on law. The functionalist, however, is likely to be lost in an infinite maze of trivialities unless he is able to concentrate on the important consequences of a legal rule and ignore the unimportant consequences, a distinction which can be made only in terms of an ethical theory.[38]

When I assigned to the writer of these words the task of applying to the field of Indian law the standards of scholarship which he had written about and demonstrated in several other fields,[39] I did so with the conviction that the resulting work would be a contribution to legal scholarship and legal method as well as to the immediate field of Indian law. Assistant Solicitor Felix S. Cohen has brought to bear in the writing of this work not only an unusual equipment in fields of research but seven years of practical experience in handling on the various Indian reservations the most difficult controversies that have arisen during that period and m drafting a significant part of the legislation about which he writes.

(Signed) Nathan R. Margold,

Department of the Interior, July 3, 1940.

  1. America's Handling of Its Indigenous Indian Minority, an address fey John Collier, December 4, 1939, 7 Indians at Work, No. 5, January, 1940, pp. 11, 26.
  2. See Indian Treaties for an analysis of these treaties.
  3. Act of March 3, 1871, 16 Stat. 544, 566, R. S. 2079, 25 U.S.C. 71.
  4. Article II, sec. 2
  5. Act of February 8, 1887, 24 Stat. 388, 25 U.S.C. 331 et seq.
  6. Text of the resolution:

    Whereas there are two hundred and twenty-five thousand Indians presently under the control of the Bureau of Indian Affairs, who are, in contemplation of law, citizens of the United states but who are in fact treated as wards of the Government end are prevented from the enjoyment of the free and independent use of property and of liberty of contract with respect thereto; and

    Whereas the Bureau of Indian Affairs handles, leases, and sells Indian property or great value, and disposes of funds which amount to many millions of dollars annually without responsibility to civil courts and without effective responsibility to Congress; and

    Whereas it is claimed that the control by the Bureau of Indian Affairs of the persons and property of Indians is preventing them from accommodating themselves to the conditions and requirements of modem life and from exercising that liberty with respect to their own affairs without which they can not develop into self-reliant, free, and independent citizens and have the rights which belong generally to citizens of the United States; and

    Whereas numerous complaints have been made by responsible persons and organizations charging improper and Improvident administration of Indian property by the Bureau of Indian Affairs; and

    Whereas it is claimed that preventable diseases are widespread among the Indian population, that the death rate among them Is sot only unreasonably high hut is increasing, and that the Indians In many localities are becoming pauperized; and

    Whereas the acts of Congress passed in the last hundred years having as their objective the civilization of the Indian tribes seem to have failed to accomplish the results anticipated; and

    Whereas it is expedient that said acts of Congress and the Indian policy incorporated in said acts be examined and the administration and operation of the same as affecting the condition of the Indian population be surveyed and appraised; Now, therefore, be it

    Resolved, That the Committee on Indian Affairs of the Senate is authorized and directed to make a general survey of the conditions of the Indians and of the operation and effect of the laws which Congress has passed for the civilization and protection of the Indian tribes; to investigate the relation of the Bureau of Indian Affairs to the persons and property of Indians and the effect of the acts, regulations, and administration of said bureau upon the health, improvement, and welfare of the Indians; and to report its findings In the premises, together with recommendations for the correction of abuses that may be found to exist, and for such changes in the law as will promote the security, economic competence, and progress of the Indians.

    Said committee is authorized to send for persons, books, and papers, to administer oaths, to employ such clerical assistance as is necessary, to sit during any recess of the Senate, and at such places as it may deem advisable. Any subcommittee, duly authorized thereto, shall have the powers conferred upon the committee by this resolution.

    The expenses of said investigation shall be paid out by the contingent fund of the Senate and shall not exceed $30,000.

    Res. 79, 70th Cong., 1st sess.

  7. 48 Stat. 984, 25 U.S.C. 461 et seq. For subsequent amendments and extensions, see The Scope of Tribal Self-government.
  8. See The Scope of Tribal Self-government.
  9. See Personal Rights and Liberties of Indians: Citizenship
  10. See Personal Rights and Liberties of Indians: Suffrage.
  11. See Personal Rights and Liberties of Indians: Eligibility for public office and employment.
  12. See Personal Rights and Liberties of Indians: Right to sue.
  13. See Personal Rights and Liberties of Indians: Right to contract.
  14. See Personal Rights and Liberties of Indians: Civil liberties.
  15. 31 U.S. (6 Pet.) 515 (1832).
  16. See The Scope of Tribal Self-government.
  17. See The Scope of Federal Power Over Indian Affairs.
  18. Art. I, sec. 8.
  19. Act of February 8, 1887, 24 Stat. 388, 25 U.S.C. 331 et seq. See Individual Rights in Real Property.
  20. See Special Laws Relating to Oklahoma.
  21. See The Scope of State Power Over Indian Affairs.
  22. 118 U.S. 375, 384 (1886). The comma after "them" in the third line of the quotation appears in the Supreme Court Reporter edition but not in the U.S. Reports edition. It is essential to the sense of the passage.
  23. See Indian Trade.
  24. See Tribal Property.
  25. Mitchel v. United States, 9 Pet. 711, 758-759 (1835). And see Tribal conveyances.
  26. Act of July 22, 1790, 1 Stat. 137.
  27. See Tribal Property.
  28. See Individual Rights in Tribal Property, Individual Rights in Real Property.
  29. See The Rights of the Indian in his Personalty.
  30. See Federal Services for Indians.
  31. Indian Treaties
  32. See Act of July 22, 1790, 1 Stat, 137; Act of March 1, 1793. 1 Stat. 329; Act of May 19, 1796, 1 Stat. 469; Act of March 3, 1799, 1 Stat. 743; Act of March 30, 1802, 2 Stat. 139; Act of June 30, 1834, 4 Stat. 729.
  33. See Protection of tribal possession: Effect of title upon possessory right.
  34. The New York Indians, 5 Wall. 761 (1866). And see Taxation.
  35. The Scope of State Power Over Indian Affairs
  36. See Indian Liquor Laws.
  37. U.S. Department of the Interior, Office of the Solicitor, Statutory Compilation of the Indian Law Survey: A Compendium of Federal Laws and Treaties Relating to Indians, edited by Felix S. Cohen, Chief, Indian Law Survey, with a Foreword by Nathan R, Margold, Solicitor, Department of the Interior (1940, 46 vols.) vol. 1, pp. ii-iii.
  38. F. S. Cohen, The Problems of a Functional Jurisprudence, 1 Modern Law Review (London) (1937) 5, 7.
  39. The Ethical Basis of Legal Criticism (1931), 41 Yale Law Jour. 201; Ethical Systems and Legal Ideals (1933); (In collaboration with Mr. Justice Shlentag) Summary Judgments In the Supreme Court of New York (1932), 32 Col. Law Rev. 826; The Subject Matter of Ethical Science (1B32), 42 Int. Jour, of Ethics 397; Modem Ethics and the Law (1934), 4 Brooklyn Law Rev, 33; Transcendental Nonsense and the Functional Approach (1935), 35 Col, Law Rev, 809; Anthropology and the Problems of Indian Administration (1937), IS Southwestern Social Science Quarterly No- 2; The Relativity of Philosophical Systems and the Method of Systematic Relativism (1939), 86 Journal of Philosophy 67; The Social and Economic Consequences of Exclusionary Immigration Laws (1939), 2 Nat. Lawyers Guild Quart, 171; Indian Rights and the Federal Courts (1940), 24 Minn, Law Rev, 145.