Indian Law/The Field of Indian Law: Indians and Indian Country

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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

The field of Indian law[edit | edit source]

Indians are human beings, and like other human beings become involved in lawsuits. Nearly all of those lawsuits involve prob- lems in the law of contracts, torts, and other recognized fields which have no particular relevance to Indian affairs. In many cases the only legal problems presented are of this character. Not every lawsuit, therefore, which involves Indians can bo considered a part of our Indian law. Conversely, not every case that presents a problem of Indian law involves Indians as liti- gants. Most of the land in the United States, for example, was purchased from Indians, and therefore almost any title must depend for its ultimate validity upon issues of Indian law even though the last Indian owners and all tlieir descendants be long forgotten.

Our subject, therefore, cannot be defined in terms of the parties litigant appearing in any case. It must be defined rather in terms of the legal questions which are involved in a case. Where such questions turn upon rights, privileges, powers, or immuni- ties of an Indian or an Indian tribe or an administrative agency set up to deal with Indian affairs, or where governing rules of law are affected by the fact that a place is under Indian owner- ship or devoted to Indian use, the case that presents such questions belongs within the confines of this study.

Further, we shall use the term “federal Indian law” to cover not only decisions of courts, strictly so-called, but also decisions of administrative agencies and such materials, contained in statute, treaty. Executive order, or governmental regulation, custom and practice, as are accorded, by courts and administnu tors, “the force of law,”

Tills subject matter is treated, in the course of this volume, from several distinct perspectives.

In the present chapter the scope of federal Indian law is con- sidered, particularly in terms of the class of persons and places with which this branch of law deals.

The following three chapters treat, from an historical perspec- tive, tile three basic strands of development which make up the federal Indian law— administration (Chapter 2), treaty-making (Chapter 3), and legislation (Chapter 4),

The following three chapters deal with the problems of federal Indian law in terms of the question, “From what governmental

source do legal relations flow?” These chapters deal, respec= tivoly, with the powers of federal (Chapter 5), state (Chapter 6), and tribal (Chapter T) governments.

Chapters 8 to IT treat the substantive law of the field from the standpoint of the generic question : What are the rights, powers, privileges, and immunities of the parties?

Of these chapters, the first four deal with the legal status of individual Indians, treating personal rights and liberties (Chap- ter S) , rights of participation in tribal property (Chapter 9) , indi- vidual rights in personal property (Chapter 10), and individual rights in real property (Chapter II),

The following two chapters deal with rights, vested both in tribes and in individuals, which are subsumed under the headings “Federal Services for Indians” (Chapter 12) and “Taxation” (Chapter 13),

The substantive rights, powers, privileges, and immunities of Indian tribes form the subject of Chapters 14 and 15, the former dealing generally with "The Status of Indian Tribes” the latter with “Tribal Property.”

The final two chapters of this substantive law section of the Handbook deal with matters involving primarily the legal posi- tion of two classes of non-Indians who have a special relation to Indian affairs, to wit: traders (Chapter 16) and purveyors of liquor (Chapter IT).

Chapters IS and 19 deal with problems of court jurisdiction, the former in the field of criminal law, the latter in the field of civil law.

The last four chapters of this Handbook treat of four groups of Indians occupying peculiar positions in the law. Chapter 20 deals with the Pueblos of New Mexico : Chapter 21 analyzes the peculiar problems of the Natives of Alaska ; Chapter 22 com- ments briefly on the New York Indians: and Chapter 23 offers a sketch of “Special Laws Relating to Oklahoma.”

With these comments on the substance and structure of the volume, we turn to a more explicit delimitation of the persons and places that are the primary subjects of our federal Indian law.

In this demarcation of domains we may properly begin by considering the various definitions that have been offered of the terms “Indian” and “Indian country.”




Definitions of "Indian"[edit | edit source]

The term "Indian” may be used in an ethnological or in a legal sense, Etlmologically, the Indian race may be distin- guished from the Caucasian, Negro, Mongolian, and other races. If a person is three-fourths Caucasian and one-fourth Indian, it is absurd, from the ethnological standpoint, to assign him to the Indian race. Yet legally such a person may be an Indian, From a legal standpoint, then, the biological question of race is generally pertinent, but not conclusive* Legal status depends not only upon biological, but also upon social factors, such as the relation of the individual concerned to a white or Indian com- munity. This relationship, in turn, has two ends — an individual and a community* The individual may withdraw from a tribe or be expelled from a tribe ; or he may be adopted by a tribe. He may or may not reside on an Indian reservation. He may or may not be subject to the control of the Federal Government with respect to various transactions* All these social or political factors may affect the classification of an individual as an "Indian” or a "non-Indian” for legal purposes, or for certain legal purposes. Indeed, in accordance with a statute reserving jurisdiction over offenses between tribal members to a tribal court, a white man adopted into an Indian tribe has been held to be an Indian,* 1 * * and the decided cases do not foreclose the argu- ment that a person of entirely Indian ancestry who has never had any relations with any Indian tribe or reservation may be considered a non-Indian for most legal purposes.

What must be remembered is that legislators, when they use the term "Indian” to establish special rules of law applicable to "Indians,” are generally trying to deal with a group distin- guished from "non-Indian” groups by public opinion,- and this public opinion varies so widely that on certain reservations it is common to refer to a person as an Indian although 15 of his 16 ancestors, 4 generations back, were white persons ; while in other parts of the country, as in the Southwest, a person may be considered a Spanish-Ameriean rather than an Indian although his blood is predominantly Indian.

The lack of unanimity which exists among those who would attempt a definition of Indians is reflected in the difference in instructions to the enumerators of the 1930 and 1940 censuses.

  • Noflre y. United mates , 164 U. S, 657 (1897).

1 A graphic example of the borrowing by courts of uncritical impres- sions of what constitutes an Indian is found in a series of easer; on the question whether the natives of the Pueblos are “Indians.’* In 1869, the Supreme Court of the Territory decided that they could not be considered Indians because they were “honest, industrious, and law abiding citizens” and “a people living for three centuries in fenced abodes and cultivating the edit for the maintenance of themselves and families, and giving an example of virtue, honesty, and industry to their more civilized neighbors,’*

United mates V. Lucero, 1 N, M. 422, 438, 442 (1869). In 1876, the Supreme Court, likewise, held that these people could not be considered Indians because they were “a peaceable, Industrious, intelligent, honest, and virtuous people * * * Indians only in feature* complexion, and

a few of their habits * * *SM United States v, Joseph, 94 IT, S. 014

616 (1878), So long as these impressions continued to prevail, efforts of the Indian Bureau to assert full powers of "guardianship” over the Pueblos were unsuccessful. See Chapter 20, sec. 3, infra . In 1913 how- ever, the Indian Bureau compiled enough reports of Immorality among the Pueblos to convince the Supreme Court that its earlier observations on Pueblo character had been based upon erroneous information and that these people were really Indians needing Indian Bureau supervision. The Court, per Tan Bevsnter, J., quoted at length from agents* reports of drunkenness, debauchery, dancing, and communal life in support of the conclusion that they were Indians, being a “simple, uninformed and inferior people,” United States v. Sandoval, 231 U, S, 28. 39-47 (1913). It may be doubted whether the conception of what makes a man an Indian, Implicit in all these opinions, would be accepted today.

The test of "common understanding” is advanced by Cardozo, J,f in Morrison v. California, 291 U. S, 82, 86 (1984), in support of the view that "not improbably” a person with Indian blood of less than one-fourth degree is to be regarded as an Indian.

In the 1030 census enumerators were Instructed to return as Indians not only those of full Indian blood, but also those of mixed white and Indian blood, "except where the percentage of Indian blood is very small” or where the individual was “regarded as a white person in the community where lie lives.” The Instruc- tions further specified that “a person of mixed Indian and Negro blood shall be returned as a Negro unless the Indian blood pre- dominates and the status as an Indian is generally accepted in the community.” -

In the 1940 census on the other hand, enumerators were directed that "a person of mixed white and Indian blood should be returned as Indian, if enrolled on an Indian agency or reserva- tion roll ; or if not so enrolled, if the proportion of Indian blood is one-fourth or more, or if the person is regarded as an Indian in the community where he lives.” The provision concerning persons of mixed Indian and Negro blood was changed to provide for the return of such an individual ns Negro, unless the Indian blood very definitely predominates and he is universally accepted in the community as an Indian.4

Recognizing the possible diversity of definitions of "Indian- hood,” we may nevertheless find some practical value in a defini- tion of "Indian” as a person meeting two qualifications: (s) That some of his ancestors lived in America before its discovery by the white race, and (6) that the individual is considered an "Indian” by the community in which lie lives.

The function of a definition of "Indian” is to establish a test whereby it may be determined whether a given individual is to be excluded from the scope of legislation dealing with Indians.

A typical statute dealing with Indians is the Trade and Intercourse Act of I8S4,5 which in section 25 provides :

  • * * 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

? The Indian population of the United States and Alaska, 1930, TJ. S. Department of Commerce, Bureau of the Census, Washington, B. C. For a discussion of statutes distinguishing between Indians and freedmen see Chapter S, see. 11.

  • The results of the 1940 census are not available at the time of publica-

tion of this book so that it is not possible to compare the possible differ- ences in results occasioned by the difference of instructions to enumera- tors. In the census of 1910, though the question of who should be re- turned as Indian was left to the discretion of the enumerator, he was obliged, once he had decided an individual was an Indian, to obtain information concerning tribe and blood, According to the census of 1930 there were 332,393 Indians in continental United States and 29,983 In Alaska, while In 1910 there were 265,683 Indians in continental United States and 25,331 in Alaska. In commenting on the results of these two censuses, Dr. George B, L. Arner, in The Indian Population of the United States and Alaska, 1980— U* S. Department of Commerce, Bureau of the Census, stated '

In the case of the Indian population, rates of Increase or de- crease are of little significance, as the size of the Indian population depends entirely upon the attention paid to the enumeration of mixed bloods, and the Interpretation of the term “Indian” In the instructions to enumerators. It is not without significance that at the two censuses in which specific questions were asked os to tribe and blood, the number of Indians should have been much larger than at censuses in which these questions were not asked* If the definition of the Indian population were limited to Indians maintaining tribal relations, the enumeration of the Bureau o* Indian Affairs Is probably more nearly accurate than that of the census. This enumeration in 1932. showed a total of 228 381. On the other hand, if all persons having even a trace of Indian blood were returned as Indians, the number would far exceed even the total returned at the census of 1930. (P. 2.)

As of January 1, 1839, the Bureau of Indian Affairs estimated that there were under its jurisdiction 351,878 Indians la continental United States and 29,983 in Alaska, or a total of 381,861. This number includes indi- viduals of as little as Indian blood entitled to certain rights or bene- fits as Indians, as well as white persons adopted into an Indian tribe. Statistical Supplement to the Annual Report of the Commissioner of In- dian Affairs, 1939. ^

s Act of June 30, 1834, see, 25, 4 Stat, 729, R. S. I 2145, 25 TJ. $. C, 217,






United States, slml! be in force in the Indian country: Provided, The same shall not extend to crimes committed by one Indian against the person or property of another Indian, (F. 733.)

Lacking other criteria than the words of the statute, the courts have, reasonably enough, taken the position that the term “Indian” is one descriptive of an individual who has Indian blood in his veins and who is regarded as an Indian by the society of Indians among whom he lives. Thus, in holding that a white man who is adopted Into an Indian tribe does not thereby become an Indian within the meaning of the foregoing statute,* 01 * * * * 6 the Court, in United States v9 Rogers? said*

  • * * And we think it very clear, that a white man who

at mature age is adopted in an Indian tribe does not thereby become an Indian, and was not Intended to be embraced in the exception above mentioned. He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages Yet he is not an Indian ; and the exception is con- fined to those who by the usages and customs of the Indians are regarded ns belonging to their race. It does not speak of members of a tribe, but of the race generally,5 * * of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs, (Fp. 573“ 573.)

Though a white man cannot by association become an Indian, within the application of the foregoing statute, an Indian may, nevertheless, under some circumstances, lose his identity as an Indian. It has been held that the General Allotment Act- operates to make Indians who are descendants of aboriginal tribes, but who have taken up residence apart from any tribe and adopted habits of civilization, non-Indians, within the mean- ing of an Alaska statute defining Indians for the purpose of liquor r egulation ns “aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood who have not become citizens of the United States,” 0

In upholding the constitutionality of the federal statute making murder of an Indian by another Indian on an Indian reservation a federal crime, the Supreme Court declared:

the fair inference is that the offending Indian shall belong to that or some other tribe.10

On the other hand, an Indian does not lose his identity as such within the meaning of federal criminal jurisdictional acts, even though he has received an allotment of land, is not under the control or immediate supervision of an Indian agent, and has become a citizen of the United states and of the state in which he resides.11 * *

eAct of June 30, 1834, 4 Stat. 720.

t 4 How. Q67 (1846), Accord: United States v. Ragsdale, 27 Fed, Cas. No. 16113 (C, C. Ark., 1847) ; E.v Parte Morgan , 20 Fed. 298 (D. C. W. D. Ark., 1883) ; ’Westmoreland v. United States. 155 IT, S. 545 (1895) ; AWeriy v. United States , 162 U, S. 499 (1896) (holding that a Negro does not by adoption into a tribe become an Indian).

The same rule would seem to apply to a white man married to an Indian woman and residing on a reservation. At least, it has been held that a white roan, married to an Indian woman, residing on a reserva- tion, and made a member of the tribe or nation, is not an Indian en- titled to share in trioal funds or In the allotment of Indian lands. Red Bird v. United States, 203 U. S, 76 (1906).

"Act of February 8, 1887, 24 Stat, 3S8, 25 XJ. S. C 331, at seq.

» Nagle v. United States , 191 Fed, 141 (C. C. A 9. 1911).

io United States v. Kagama, 118 U, S. 375, 383 (1886). And see Chapter 14, fn. 9.

11 United States v, Flynn, 25 Fed. Cas. No, 15124 (C. C. Mins. 1870) * Hallotcell v. United States , 221 17. S, 317 (1911) ; United States v. Ktya, 128 Fed. 879 (D. C, N. D. 1903) ; United States V. Oelestine , 215 U. S. 278 (1909) ; United States v. Sutton, 215 U. S. 291 (1909), Also see Chapter 8, sec- 20,

Within the moaning of those various statutes which though applicable to Indians do not define them, the courts, in defining the status of Indians of mixed Indian and other blood” have largely followed the test laid down in United States v. Rogers,1* to the effect that an individual to be considered an Indian must not only have some degree of Indian blood but must in addition bo recognized as an Indian. In determining such recognition the courts have heeded both recognition by the tribe or society of Indians and recognition by the Federal Government as expressed in treaty and statute.14

Thus In United States v, Higgins15 it was said:

In determining as to what class half-breeds belong, we may refer, then, to the treatment and recognition the executive and political departments of the government have accorded them. * * * (F; 350.)

Considering the treaties and statutes in regard to half- breeds, I may say that they never have been treated as white people entitled to rights of American citizenship* Special provision has been made for them,- special reser- vations of land, special appropriations of money. No such provision lias been made for any other class. It is Well known to those who have lived upon the frontier in America that, as a rule, half-breeds or mixed-blood Indians hove resided with the tribes to which their mothers belonged ; that they have, as a rule, never found a welcome home with their white relatives, but with their Indian kindred. It is tout just, then, that they should be classed as Indians, and have all of the rights of the Indian. In 7 Op. Attys. Gen. 746, it is said, “Half-breed Indians are to be treated as Indians, in all respects, so long as they retain their tribal relations.” (P. 352.)

3?The term “mixed blood Indian’* hag been held to Include not only those of half white or more than half white blood, but every Indian having an identifiable admixture of white blood, however small. United States v. Detroit First Nat . Bank, 234 U. S, 245 (1914) ; State v. moolis,

01 Wash. 142. 112 Fac. 28D (1910), For a discussion of distinctions based on degrees of Indian blood, see Chapter 8, see. SB(I) (a),

M Supra , fn. 7.

« Numerous treaties, ns well as statutes, have recognized individuals

of mixed blood as Indians. Treaty of September 29, 1817, with the

Wyandot and other tribes, 7 Stat, 163 ; Treaty of October 6, 1818, With the Miami Indians, 7 Stat. 191; Treaty of August 4, 1824, with the Sac

and Fox Indians, 7 Stat. 229 ; Treaty of November 15, 1824, with the Quapaw Indians, 7 Stat. 233 ; Treaty of June 2, 1825, with the Osage Indians 7 Stat. 240 ; Treaty of June 3, 1825, with the Kansas Indians,

7 Stat, 245 ; Treaty of August 5, 1820, with the Chippewas, 7 Stat. 291 ; Treaty of October 16, 1826, with the Pottawatomie Indians, 7 Stat. 298, 299 ; Treaty of October 23, 1826, with the Miami Indians, 7 Stat, 302 % Treaty of August 1, 1829, with the Winnebago Indians, 7 Stat. 824 ; Treaty of July 15, 1880, with the Sioux Indians, 7 Stat. 330 ; Treaty of August 30, 1831, with the Ottawa Indians, 7 Stat. 362 ; Treaty of September 15, 1832, with the Winnebago Indians, 7 Stat. 872 ; Treaty of September 21, 1832, with the Sac and Fox Indians, 7 Stat. 374;

Treaty of October 27, 1832, with the Pottawatomie Indians, 7 Stat. 400 ; Treaty of March 28, 1836, with the Ottawa and other Indians, 7 Stat 493 ; Treaty of July 29. 1837, with the Chippewa Indiana, 7 Stat 537 ;

Treaty of September 29, 1837, with the Sioux Indians, 7 Stat 539 ; Treaty of November 1, 1837, with the Winnebago Indians, 7 Stat 545 ; Treaty of October 4, 1842, with the Chippewa Indiana, 7 Stat. 592;

Treaty Of October 18, 1848, with the Menominee Indians, 9 Stat. 952 ;

Treaty of March 15, 1854, with the Ottoe and Missouria Indians, 10 Stat. 1038; Treaty of February 22, 1855, with the Chippewa Indians, 10 Stat. 1169 * Treaty of February 27, 1855, with the Winnebago Indians, 10 Stat. 1174 ; Treaty of September 24, 1857, with the Pawnee Indians, 11 Stat- 731 ; Treaty of March 12, 1858, with the Ponca Indians, 12 Stat. ©99 % Treaty of September 29, 1865, with the Osage Indians, 14 Stat. 689; Treaty of October 14, 1865, with the Cheyenne Indians, 14 Stat- 705 ;

Treaty of March 21. 1866, with the Seminole Indians, 14 Stat. 750;

Act of April 27, 1816, 6 Stat. 171 ; Act of June 30, 1834, 4 Stat. 740 ; Act of March 2. 1837, 6 Stat. 689 ; Act of June 5, 1872, 17 Stat. 226 ; 25 tr S. C, 479, 25 u. S. C. 163; Act of May 27, 1008, 35 Stat 312, 25 U. S. C. 184, 28 U. S. C- 41(24).

In at least one treaty, children are described as quarter-blood Indians. Treaty of September 29, 1817, with the Wyandot and other tribes, 7 Stat. 168.

is 103 Fed. 348 (C, C. Mont. 1900),






Presumptively, a person of mixed blood residing upon a reser- vation, and enrolled in a tribe, is an Indian for purposes of legislation on federal criminal jurisdiction/0 It has been held1* that an individual of less than one-half Indian blood enrolled in a trihe and recognized as an Indian by the tribe is an Indian within the Act of March 4, 1900/ m extending federal jurisdiction to rape committed by one Indian against another within the limits of an Indian reservation. Likewise, it has boon held1® that mixed bloods who are recognized by the tribe as members thereof may properly receive allotments of lands as Indians. In Sully v, United States** where one-eighth bloods were in- volved, the court stated that the persons were “of sufficient Indian blood to substantially handicap them in the struggle for existence,” and held that they were Indians and were entitled to be enrolled as such.

Citizenship has been denied a person of half white and half Indian blood on the ground that such an individual is not. a “white person” within the meaning of that phrase ns used in the statute.31

On the question of the status of offspring of white and Indian or Negro and Indian parents, there are conflicting lines of authority. One holds to the common law doctrine that the off- spring of free parents assumes the status of the father; the other to the general tribal custom that the offspring assumes the status of the mother.33

In the first category are decisions to the effect that the off- spring of the union between a white man 23 and an Indian woman or between a Negro 24 and an Indian -woman assume the status of the father and are therefore not Indians within the meaning of statutes extending or denying federal jurisdiction over crimes committed by an Indian against another Indian, And there are holdings that where a child is born off the reservation of a white father and an Indian mother, he will not, by returning to the reservation, and receiving an allotment of land as an Indian, be classed as an Indian so as either to exempt his property from state taxation * or to bring himself within the criminal jurisdic- tional statutes relating to Indians.28

In the second category we find many cases which follow the usual tribal custom wherein it is held that the offspring of an Indian mother and a white or Negro father assumes the status of the mother.37 Here again the ultimate question of the status of

u Famous Smith y. Untied States, 151 U. S. 50 (1894).

37 United States v, Gardner, 189 Fed. 690 (D. C. R D, Wia. 1911). Accord; State v. Campbell, 53 Minn. 354, 55 N. W. 553 (1893)

n 85 Stnt. 1088, 1161,

15 Sloan v. United States, US Fed. 283 <C. C. Neb, 1902).

    • 195 Fed. 113 (C, C. S. D. 1912).

14 In re Camille f 0 Fed, 256 (C, C- Ore. 1880) (Construing R. S. § 671.)

u On tribal power over determination of membership see Chapter 7, sec. 4.

Parte Reynolds , 20 Fed- Cas, No. 11719 (B. C. W D Ark


24 United States V. Ward , 42 Fed. 320 (C, C. S. D. Cal, 1890),

25 United States y, Higgins, 110 Fed. 6Q9 (C. O, Mont. 1901). gee Chapter 13, see, 4,

    • United States v. Hadley , 99 Feel. 437 (C. C. Wash. 1800). gee

Chapter 18,

m In United states v. Higgins, 103 Fed. 343, 352 (C. C, Mont, 1900), it vmn held that one horn of a white father and an Indian mother, and who was a recognized member of the tribe of Indians in which his mother belonged, was not subject to taxation under the laws of the state in which he resided. In Vezina v, United States, 245 Fed. 411 (C, C, A. 8, 1917) the daughter of a half- to three-fourths blood Chippewa woman and a white man was held to be by blood a member of the Fond du Lac Band of Chippewas of Lake Superior, the court thereby oyerruling the actios of the Department of Indian Affairs in refusing enrollment and allotment to the daughter. And in Alberty v. United States, 162 TJ, S. 499 (1896), the court held that an illegitimate child, born of an Indian man and a colored woman, takes the status of its mother and is therefore not an Indian.

the individual will depend on his or his mother’s recognition as an Indian by the tribe. In this connection the language of the court in Waldron v. United States** may be noted:

  • * * 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 os 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.

  • * * * *
  • * * The United Stales have never, so far ns legis=

iation is concerned, recognized the technical rule of the common law in reference to the children born of a white father and an Indian mother. In 1807, Congress in the Indian appropriation act of that year (Act June 7, 189?, e. 3, 30 Sfat, 00), declared:

“That all children, horn of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption* where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the trihe to which the mother belongs or belonged at the time of her death by blood, as any other member of file tribe, and no prior act of Congress shall be construed ns to debar such child of such rights,”

In Davison v, Gibson, no Fed, 445, 5 O. O, A. 545* the Circuit Court of Appeals of this circuit said :

“It is common knowledge, of which the court should take judicial knowledge* that the domestic relations of the Indians of this country have never been regu- lated by the common law of England, and that that law is not adapted to the habits* customs, and mam nets of the Indians.”

The court has considered the cases cited by counsel for defendants wherein, upon? certain facts* persons were held not to be Indians; but these cases either seek to invoke what they say was the common law, or are in criminal proceedings. These cases, so far as they seek to invoke the common law to the Indians, are not fol- lowed* for reasons herein stated, and, so far as they seek to construe criminal statutes, are Inapplicable as there is a wide distinction to be made between the construction of a criminal statute and a contract between a tribe of Indians and the United States. (Pp, 419^-420.)

That, however, even with reference to statutes on federal criminal jurisdiction, the child of an Indian mother may assume her status is borne out by the decision of the court in United States v. Sanders ®

Likewise, it has been held 50 that the child of a white father and an Indian mother, abandoned by the father and residing in tribal relationship with the mother, is an Indian within the meaning of a statute defining the offense of selling liquor to Indians.

In the foregoing discussion notice has been taken with but a single exception only of those statutes wherein no definition of the word “Indian1- was attempted.

Although Congress has classified Indians for various particular purposes, it has never laid down a classification and either speei= fled or implied that Individuals not falling within the classifica- tion were not Indians, In various enactments classification has

25 143 Fed, 413 (C, C. S. D, 1905) ; see also Siati x Miffed Blood, 20 Op A. G. 711 (1894),

20 27 Caf?. No. 16220 (C. C. Ark, 1847), Of. Ex Parte Pcro, 90 F. 2d 28 (C- G, A, 7, 1938) (holding that the child of an Indian mother and a half-blood father who lives on the reservation and is recognized as an Indian, is an Indian within federal criminal jurisdictional statutes),

30 FarreU v. United States, 110 Fed. 942 (C. C, A. 8, 1901). Accord: Halbert v. United States, 283 U. S- 753 (1931).



Imh»ii based primarily upon t lit1 presence of some quantum of Indian blood. Thun, the Indian Appropriation Aid of May 25. ] provides :

X„ npiirnpriiit loin except appropriations iimdfi pursuant to iw'ii ties, slmll bo used to educate children of less than cmu-foui'lli Indian blood * * * *

For the purpose of controlling the truffle in liquor with the Indiana Congress bus classified Indians under the “charge of any Indian superintendent or agent,”32 By a later act*1 the classi- fication was changed to include "any Indian to whom allotment of hind lias been made while the title to the same shall be held in trust by the Government” or “any Indian a ward of the Gov- ernment under charge of any Indian superintendent or agent or "any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship,” This classi- fication is perhaps as broad as any that may be found in con- gressional enactment, extending us it does to all mixed bloods providing only that they be considered as wards of the government.34

Various special acts relating to certain tribes have provided for the removal of restrictions on alienation from lands of the members of the tribe of less than one-lmlf Indian blond.* Other acts have used the term “mixed blood,”30

In the Act of March 4, 1031,” relating to the Eastern Band of Che tokens of North Carolina, Congress states*

sit * ti« That thereafter no person of less than one- sixteenth degree of said Eastern Cherokee Indian blood shall be recognized as entitled to any rights with the Eastern Band of Cherokee Indians except by inheritance from a deceased member or members: * * * (P-

1518. )

Congress had previously recognized Indians of less than this degree of blood for in the Act of June 4, 1924” it provided :

That any member of said band whose degree of Indian blood is less than one-sixteenth may, in tlie discretion of the Secretary of Interior, be paid a cash equivalent in lieu of an allotment of land. (F. 379,)

40 Stat QG4. 25 V. S. C, 297, n M

Act nf July 23, 1892, 27 Stut. 260, 2bl. sa Aut uf Jiiiumry 30, 1807, 29 Stat. OOG. See Chapter 17.

For a discussion of wardship see Chapter 8, sec. 9. as Act of May 27, 1908, 35 Stat. 312 (Five Civilised Tribes) ; Act of March 3, 1921, 41 Stat. 1249 (Osage),

ao Act of June 21, 1006, 34 Stat. 353; Act of March 1, 1907, 34 Stat,


37 46 Stat. 1518,

3*43 Stat. 366,

A recent statutory definition of an Indian is that contained in the Indian UGurgnnization Act,” which in section 19 provides:

Tin* term "Indian” us used in this Act shall include all persons of Indian descent who are members of any recog- nized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, bn .Tune 1, 1934, residing within the present boundaries of anv Indian reservation, and shall further include all other persons of one-lmlf or more Indian blood. For the pur- poses of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.-10 (P. 988,)

In this act as in the foregoing acts, the definition of "Indian” is limited in Its connotation to the purposes of the legislation.

Apart from statute, the administrative agencies of the Federal Government dealing with Indian affairs commonly consider a person who is of Indian blood and a member of a tribe, regardless of degree of blood* an Indian.41

Thus the Indian Law and Order Regulations approved by tlie Secretary of the Interior on November 27, 1930/“ contain the provision :

For the purpose of the enforcement of the regulations in this part, nn Indian shall be deemed to be any person of Indian descent who is ft member of any recognized Indian tribe now under Federal jurisdiction * * *

This definition exemplifies the idea that in dealing with Indians the Federal Government is dealing primarily not with a particular race as such but with members of certain social- political groups towards which the Federal Government lias assumed special responsibilities.

3D Act of June 18, 1034, 48 Stat. 984, 25 TL B. C. 461, ct seq,

.40 F0r further definitions of Alaskan natives as Indians see Chapter

21, sec. 1, ... „ . . , , .

4i too, however, one finds administrative regulations which

classify Indians according to blood quantum for particular purposes. Thus by Executive order of January 31, 1939, Indians of one-fourth or more Indian blood were exempted insofar as positions in the Bureau of Indian Affairs were concerned, from Civil Service examination, Chapter 8, sec. 4B(2). On the other hand regulations concerning the admission of Indians Into Indian hospitals and sanitoria provide that *

85 2. Persons who are In need of hospitalization and who are euro lied Indians, recognized members of a tribe, and_ who are unable to provide such hospitalization from their own funds, may be admitted to such Institutions.

85.4. Preference should he given to those of a higher degree of Indian blood. * * *

(25 C. F. R. SG.2 and 85.4)

«25 C. F, R- 161,2,

Indian Country[edit | edit source]

Although the term "Indian country" has been used In many senses, it may perhaps be most usefully defined as country within which Indian laws and customs and federal laws relating to Indians are generally applicable. The phrase ‘-generally appli- cable" is used because for certain purposes tribal law and custom and federal law relating to Indians have a validity regardless of locality. Tims, for example, Congress has made It a crime to sell liquor to Indians anywhere in the United States/11 and the status which an Indian acquires by tribal custom marriage will generally be recognized in all parts of the United States/1

The greater part, however, of the body of federal Indian law and tribal law applies only to certain areas which have a peculiar

43 Act of July 23. 1892. 27 Stat. 280, as amended by Act of June 10, 1938, 52 Stat. 096, 25 U. S. 0. 241. And see Chapter 17, sec. 3.

“54 I. B. 39 (1932) ; and see R. A. Brown, The Indian Problem and q v (1930) 39 Yale I/. J. 307, 315, See also Chapter 7, see. 5,


relation to the Indians and which in their totality comprise the Indian country.

Tho Indian country at any particular time must be viewed with reference to the existing body of federal and tribal law. Until 1817 it is country within which the criminal laws of the United States are not generally applicable, so that crimes w Indian country by whites against whites, or by Indians, are not cognizable in state or federal courts* any more than crimes committed on the soil of Canada or Mexico, Treaties defined the boundaries between the United States, or the separate states,

« under the Act of July 22, 1790, 1 Stat. 137, federal jurisdiction was extended over any crime committed by a citizen or Inhabitant of the United States against the parson or property of any friendly Indian in any town, settlement, Or territory belonging to any nation or tribe of Indians. Since the act specified that it waft to be in force only for 2 years, it was superseded by the Act of March 1, 1793, 1 JJ29, wh^e^

extended federal jurisdiction ns before.

Chapter 18.

On criminal jurisdiction see



and the territories of the various Indian tribes or nations,45 Within these territories the Indian tribes or nations had not only full jurisdiction over their own Citizens, but the same jurisdiction over citizens of the United States that any other power might lawfully exercise over emigrants from the United States.47 Treaties between the United States and various tribes commonly stipulated that citizens of the United States within the territory of the Indian nations were to be subject to the laws of those nations.45

It is against this legal background that the first legislative definitions must be understood. As early as July 22, 1790,^ Congress used the expression “Indian country’1 in the first trade and intercourse act, apparently with the meaning of country belonging to the Indians, occupied by them, and to which the Government recognized them as having some kind of right and title. In the Act of March 1, 1793,“ Indian country and Indian territory were used synonymously.

The Act of May 19, 179G. 51 contained the first statutory delim- itation of Indian country, fixing, according to the then existing treaties, the boundary line between Indian country and the United States. In this act, as in those which followed it, the term ‘‘Indian country” is used as descriptive of the country within the boundary lines of the Indian tribes. In 1799, 83 and again in 1802, 53 the boundary of Indian country was redefined by Congress to conform with new treaties. In each instance it was provided that a citizen or inhabitant of the United States committing a crime against a friendly Indian, or Indians within Indian country should be subject to the jurisdiction of the fed- eral courts. In both of these acts the words ‘‘Indian country” and “Indian territory” are used synonymously,6*

4i Treaty of January 21, 1785, with the Wiandot, Delaware, Chippawa, and Ottawa Nations, 7 Stat. 16; Treaty of November 28, 1785, with the Oherokqes, 7 Stat. 18 ; Treaty of January 3, 1780, with the Choctaw Nation, 7 Stat, 21 * Treaty Of January 10, 1786, with the Chickasaw Nation, 7 Stat, 24; Treaty of January 9, 1789, with the Wyandot, Dela- ware, Ottawa, Chippawa, Pottawattima, and Sac Nations, 7 Stat. 28 { Treaty of August 7, 1780, with the Creek Nation, 7 Stat. 35 ; Treaty of July 2, 1791, with the Cherokee Nation, 7 Stat. 39 ; Treaty of August 3, 1795, with the Wyandots, Delawares, Shawanoes, CKtawas, Ghipewns, pntawatimes, Miamis, Eel River, Weea’s, Kickapoog, Piankashaws, and Easkaskiaa, 7 Stat, 49 ; Treaty of October 2, 1798, with the Cherokee Nation, 7 Stat, 62 ; Treaty of December 17, 1801, with the Chactaw Nation, 7 Stat. 60 j Treaty of October 17, 1802, with the Choctaw Nation,

7 Stat. 73 ; Treaty of November S, 1804, with the Sac and Fox, 7 Stat. 84 ; Treaty of July 4, 1805, with the Wyandot, Ottawa, Chippawa, Mou- ses and Delaware, Shawauee, and Pottawatiraa Nations, 7 Stat. 87. See also Chapter 3, secs. 3A(2), 3A(3).

47 It Is interesting to note iu this connection that some of the early Trade and Intercourse Acts contained a provision requiring a citizen or Inhabitant of the United States to acquire a passport before going into the country secured by treaty to the Indians. Act of May 19, 1796,

1 Stat. 469 ; Act of March 3, 1799, 1 Stat, 743 ; Act of March 30, 1802,

2 Stat, 139. The provision was modified in the Act of June 30, 1834, 4 Stat, 729 so as not to apply to citizens of the United States, See Chap- ter 3, gee, 3A(3) i Chapter 4, sec. 6,

48 Treaty of January 21, 1785, with the Wiandot, Delaware, Chip- pawa, and Ottawa Nations, 7 Stat, 16 ; Treaty of November 28, 1785, With the Cherokees, 7 Stat, IS ; Treaty of January 3, 1786, with the Choctaw Nation, 7 Stat. 21 ; Treaty of January 10, 1788, with the Chickasaw Nation, 7 Stat, 24 ; Treaty of January 31, 1786, with the Shawanoe Na- tion, 7 Stat. 26 ; Treaty of January 9, 1789, with the Wyandot, Delaware, Ottawa, Chippawa, Fattawaftlma, and Sac Nations, 7 Stat, 28; Treaty of August 7, 1790, with the Creek Nation, 7 Stat. 35 ; Treaty of July 2, 1791, with the Cherokee Nation, 7 Stat, 39 ; Treaty of August 3, 1795, with the Wyandots, Delawares, Shawanoes, Ottawas., Chipewai, Futa» wa times, Miamis, Eel Biver, Weea's, Efckapoog, Piankaabawg, and Easkaskias, 7 Stat. 49.

« 1 Stat. 137.

“ 1 Stat, 329, similarly In the Act of March 3, 1799, 1 Stat. 743, and in Act of March 30, 1802, 2 Stat. 189.

51 1 Stat. 469.

» Act of March 3, 1799, 1 Stat. 743.

63 Act of March 30, 1802, 2 Stat. 139.

“ For a later meaning of the term “Indian territory” see Chapter 23.

The inconvenience of a territory in which white desperados could escape the force of state and federal law made itself felt in the Act of March 3, 1817,“ which extended federal law to cover crimes committed by an Indian or white person within any town, district, or territory belonging to any nation or tribe of Indians, subject, however, to the limitation that the act should not he construed to extend to an offense by one Indian against another Indian within any Indian boundary,

Indian country In all these statutes is territory, wherever situated, within which tribal law is generally applicable, fed- eral law is applicable only in special cases designated by statute, and state law is not applicable at alL This conception of the Indian country reflects a situation which finds its counterpart in international law in the case of newly acquired territories, where tlie laws of those territories continue in force until repealed or modified by the new sovereign. We find that Con- gress, when called upon to define Indian country in the Act of June 30, 1834, 60 said :

  • * * That all that part of the United States west of

the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country.

Whether Indian reservations within the exterior boundariea of a state but exempted by treaty or statute from state jurisdic- tion were included within the foregoing distinction is a question not free from doubt.67 Such doubts, however, were resolved by a series of judicial decisions and by the failure to include sec- tion 1 of the Act of 1834 68 in the Revised Statutes, thereby repealing it.^

No subsequent statutory definition of Indian country appears, though for purposes of defining federal criminal jurisdiction reference is made In numerous acts 50 to “Indian country.”

Stat. 383.

w4 Stat. 729. In the report of the Committee of Indian Affaire to the House of Representatives concerning, among others, this act we find the following interesting commentary suggesting a basis for the definition of Indian country as therein contained.

The Indian country * m m w|]] include all the territory of the United States west of the Mississippi, not within Uoniiiana, Missouri, and Arkansas, and those portions east of that river, and not within the limits Of any State, to which th9 Indian title is not extinguished. The Southern Indians are not embraced within it. Most of them have agreed to emigrate. To all their lands, with the exception of those of a part of a single tribe, the Indian title hag been extinguished: and the States in which the Indians Of that excepted tribe remain, have extended their laws over them.

This act is intended to apply to the whole Indian country, as defined in the first section. On the west side of the Mississippi its limits can only be changed by a legislative act ; on the east side of that river it will continue to embrace only those sections of country not within any State to which the Indian title shall not be extinguished. The effect of the extinguishment of the Indian title to any portion of it, will be the exclusion of such portion from the Indian country. The limits of the Indian country will thus he rendered at all times obvious and certain. By the intercourse act of 1802. the boundary of the Indian country was n line of metes and hounds, variable from time to time by treaties. And, from the multiplicity of those treaties, it is now somewhat difficult to ascertain what, at any given period, was the boundary or extent of the Indian country. (F. 10.)

H. Kept. No. 474, 23d Cong., 1st sess., vol. 4, May 20, 1834.

67 It was early held that lands in territorial status to which Indian title had not been extinguished and which were exempted by Treaty or statute from state jurisdiction remain Indian country within the meaning of the 1834 Act, notwithstanding the admission of the state into the Union. United States v. liridlcman, 7 Fed. 894 (D„ C. Ore. 1881).

«4 Stat. 729.

®R. S. | 5596; Donnelly V United States, 228 U. S. 243, 268 (1013).

« Act of March 27, 1854, 19 Stat. 289, 270 ,* Act of February IS, 1875,

18 Stat. 316, 318, R. S. | 2146, 25 U. S. C- 218. For statutes making it a criminal offense to introduce liquor into “Indian country” see Chapter 17, see. 3.


Notwithstanding the repeal of section 1 of the Act of 1884 the Supreme Court, when called upon to determine whether certain land was Indian country, applied in n number of instances the io i i contained therein, 83

The first case** to reach tlic Supreme Court after the repeal of section 1 of the 1834 net involved the legality of the seizure of liquor by a military officer under the authority contained in the Act of 1834, as amended by the Act of 1SG4. The legality of the seizure depended on whether or not it was made Jn Indian country, the locus being at a point within the territory of Dakota. In an unusual opinion the Court, per Mr. Justice Miller, matte the following observations ,*

Notwithstanding the immense changes which have since taken place in the vast region covered by the act of 1834, by the extinguishment of Indian titles, the creation of States and the formation of territorial governments, Con- gress has not thought it necessary to make any new defi- nition of Indian country. Yet during all this time a large body of laws has been in existence, whose operation was confined to the Indian country, whatever that may be. And men have been punished by death, by fine, and by imprisonment, of which the courts who so punished them had no jurisdiction, if the offences were not committed in the Indian country as established by law. These facts afford the strongest presumption that the Congress of the United States, and the judges who administered those laws, must have found In the definition of Indian country, in the act of 1834, such an adaptability to the altered cir- cumstances of what was then Indian country as to enable them to ascertain what it was at any time since then, <P, 207.)

After analyzing the definition as contained in section 1 of the 1834 Act the Court further said :

  • * * if the section be read as describing lands west

of the Mississippi, outside of the States of Louisiana and Missouri, and of the Territory of Arkansas, and lands east of the Mississippi not included in any State, but lands alone to which the Indian title has not been extinguished, we have a description of the Indian country which was good then, and which is good now, and which is capable of easy application at any time.

  • * m * *

It follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress. (Fp, 208-209.)

In following the Bates decision, the courts have held that reser- vation lands to which Indian title has not been extinguished come within the definition of Indian country as contained in the 1834 Act, whether situated within a territory 44 or state *

Ordinarily, Indian title Is extinguished by cession under treaty or act of Congress, and the land ceases to be Indian coun- try when the cession becomes effective.00 Where the land, how- ever, is held by the United Stales in trust, to be sold for the

« 4 Stilt- 729, 738.

^ Bates v, Clarke 90 U. S. 204 (1877) ; Ex Parte Crate Dag , 10D U. 8. 556 (1883) i United States v. LeBrisf 121 U. S. 278 (1887) ; Clairmont V. United States, 225 U, 3. 551 (1912).

« Bates v. Clark, 9B U. S. 204 (1887).

Ex Parte Cram Dog, 109 U. B. 558 (18S3).

  • United States v. LeBris t 121 TJ. B, 278 (1887). Gf. United States V.

Forty-Three Gallons of Whiskey, 108 U> S. 491 (1883) (holding that, by statute, ceded Indian lands may remain Indian country for the purpose of enforcing federal liquor laws) * Clairmont V. United State 225 U. S, 551 (1912) ■ Die ft. v. United States , 208 U. S, 340 (1908).

« United States v. La Plant , 200 Fed. 92 (D. C. S. D. 1911) (holding that land held under “mere occupancy’7 ceased to be Indian reservation land when cededi even before sale to private parties) ; United States v. Myers, 206 Fed. 387 (C« C. A. 8, 1913).


benefit of the Indian tribe, the courts have held that it remains “Indian land” until actually sold,07

The first important extension of the rule laid down in the Bates case occurred in 1913 in the case of Donnelly v. United States }m which involved tlic question of whether the jurisdiction of the United States extended to the crime of murder committed on au xecutive-ordcr Indian reservation. In holding that federal imtnal law was applicable, the Court said ;

It is contended for plaintiff in error that tlic term ■‘Indian country" is confined to lauds to which the Indians retain their original right of possession, and is not appli- cable to those set apart as an Indian reservation out of the public domain, and not previously occupied by the Indians.

  • * * In the Indian Intercourse Act of June 30, 1834,

4 Stat. 729, e. 101, the first section defined the “Indian country" for the purposes of that act. But this section was not reenacted in the Revised Statutes, and it was therefore repealed by § 5590, Rev. Stat. Ex parte Crow Dog, 109 U. S. 550, 561 ; United States v, he Bris, 121 U, S. 278, 280; Clairmont v. United States , 225 U. S. 551, 557, Under these decisions the definition as contained in the act of 1834 may still "be referred to in connection with the pro- visions of its original context that remain in force, and may be considered in connection with the changes which have taken place in Our situation, with a view of deter- mining from time to time what must be regarded as Indian country where it is spoken of in the statutes." With reference to country that was formerly subject to the Indian occupancy, the cases cited furnish a criterion for determining what is “Indian country," But “the changes which have taken place in our situation" are so numerous and so material, that the term cannot now be confined to land formerly held by the Indians, and to which their title remains unextinguished. And, in our judgment, nothing can more appropriately be deemed “Indian country," within the meaning of those provisions of the Revised Statutes that relate to the regulation of the Indians and the government of the Indian country, than a tract of land that, being a part of the public domain, is lawfully set apart as an Indian reservation, (P. 268- 269.)

In the same year, the Supreme Court in the case of United States v. Sandoval 05 held that the lands of the Pueblo Indians come within the definition of Indian country for the purpose of federal liquor regulation. The Pueblo lands were not, strictly speaking, a reservation, but were lands held by communal owner- ship in fee simple. It would seem that the term Indian country as applied to the Pueblos means any lands occupied by “dis- tinctly Indian communities" recognized and treated by the Gov- ernment as “dependent communities" entitled to Its protection,70 The foregoing decisions are concerned with lauds in tribal tenure. While the Supreme Court in the Donnelly case elim- inated the necessity for original tribal title as a condition to the application of federal criminal law, it failed to consider the applicability of the category of Indian country to the individual Indian holdings.

Under the practice of allotting lands in severalty to indi- vidual Indians, title to the allotted land was held in trust by the Government for the benefit of tlie allottee, or vested in the

^ Ash Sheep Go. v. United States , 252 U. S. 159 (1920), aflTg 250 Fed. 591 (C. C. A. 9, 1918), and 254 Fed. 59 (C. C. A. 9, 1918). And see Chapter 15, Bee. 21.

m 228 U. S. 243 (1013). Accord; Pronovost v. United States, 232 U, S. 487 (1014). (“An Indian reservation is Indian country.77)

231 U. S. 28 (1013).

70 For a fuller discussion of this case see Chapter 20, sec. 4, In holding that jurisdiction to punish the offense of lareeney committed within a Pueblo resided in the Federal Government, the Court defined Indian country as “any uneeded lands owned or occupied by an Indian nation or tribe of Indians.” United States v. Chavez, 290 U. S, 357 (1933).



alluttcu subject to n restraint against alienation. Obviously, in either case tribal title is not involved.

By virtue of a series of murders committed on allotted lands, the Supreme Court wins called upon to decide whether such lands were Indian country for the purpose of federal criminal juris- diction. In the ease of United States v. Pelican™ a case Involv- ing the murder of an Indian upon a trust allotment, the court held that trust allotments retain, during the trust period, a distinctive Indian character, being devoted to “Indian occupancy under the limitations imposed by Federal legislation,” and that they were embraced within the term “Indian country,” Thereafter in United States v. It a nisei; 73 Indian country was held to include a restricted allotment as well, the court saying:

The sole question for our determination, therefore, is whether the place of the crime is Indian country within the meaning of § 2145, The place is a tract of land con- stituting nn Indian allotment, carved out of the Osage Indian reservation and conveyed In fee to the allottee named in the indictment, subject to a restriction against alienation for a period of 25 years. That period lias not elapsed, nor has the allottee ever received a certificate of competency authorizing her to sell. (P. 470.)

  • * * it would be quite unreasonable to attribute to

Congress an intention to extend the protection of the crim- inal law to nn Indian upon a trust allotment and withhold it from one upon a restricted allotment ; and We find noth- ing in the nature of the subject matter or in the words of the statute which would justify us in applying the term Indian country to one and not to the other. (Pp, 471—472,)

Thus, the application of Federal criminal law is extended to cover lands to which the tribal title has been extinguished and title lias been vested in an individual.

The last important step in the application of Federal criminal law to lauds in tribal tenure has been to extend it to lands, wher- ever situated, which have been purchased by the Federal Gov- ernment and set apart for Indian occupancy.

In this connection it is well to note the illuminating opinion of Mr. Justice Black in the ease of United States v, McGofwan holding that Indian country comprises lands wherever situated, which have been validly set apart for the use and occupancy of Indians. The Court declared:

The Reno Indian Colony is composed of several hundred Indians residing on a tract of 2 8,38 acres of land owned by the United States and purchased out of funds appropri- ated by Congress in 1017 and in 1926, The purpose of Congress in creating this colony was to provide lands for needy Indians scattered over the State of Nevada, and to equip and supervise these Indians in establishing a permanent settlement.

The words “Indian country” have appeared in the stat- utes relating to Indians for more than a century. We must consider “the changes which have taken place in our situation, with a view of determining from time to time what must he regarded as Indian country where it is spoken of in the statutes,” Also, due regard must be given to the fact that from an early period of our history, the Go%ernment has prescribed severe penalties to enforce laws regulating the sale of liquor on lands occupied by Indians under government supervision, Indians of the Reno Colony have been established in homes under the super- vision and guardianship of the United States. * The policy of Congress, uniformly enforced through the decisions of this Court, has been to regulate the liquor traffic with In- dians occupying such a settlement. This protection is extended by the United States “over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State,”

The fundamental consideration of both Congress and the Department of the Interior in establishing this colony has

«232 U. 3. 442 (1914). Of. United States V. Sutton, 215 U, 8^291 (1909) ; Rallowelt v. United States, 221 XL S, 317 (1911) ; Eg Parte Van Moore , 221 Fed. 954 <D. C- S. B. 1915),

^ 271 TJ. 3. 467 (1926).

73 302 U. 3. 535 (1938).

been the protection of a dependent people. Indians in this colony have been afforded the same protection by the government as that given Indians in other settlements known as “reservations.” Congress alone has the right to determine the maimer in which this country’s guardian- ship over the Indians shall be carried out, and it is im- material whether Congress designates a settlement as a “reservation" or “colony,”

The Reno Colony has been validly set apart for the use of the Indians, It is under the superintendence of the Government, The Government retains title to tlie lauds which it permits the Indians to occupy, * * *

When we view the facts of this ease in the light of the relationship which has long existed between the Govern- ment und the Indians— -aiul which continues to date — it is not reasonably possible to draw any distinction between this Indian “colony” and “Indian country.” We conclude that S 247 of Title 25, supra, does apply to the Reno Colony. (Pp. 537-539. ) 74

The foregoing decisions leave open the question of whether an allotment within the exterior boundaries of an Indian reserva- tion which is held by the allottee in fee simple may be subject to the application of federal criminal law and tribal law, or whether such land is subject to the exclusive jurisdiction of the state,74 Whether land acquired by the United States and used for Indian purposes which do not. involve Indian occupancy right, o. //., school, hospital, or agency sites not within a reservation, are “Indian country” is a queston which lias not been definitely settled by any court decision. Administrative practices and rulings, however, indicate that such lands are not considered “Indian country,”70

u It lias boon indicated tlmt in the light of the McGowan case lands purchased under the Indian Reorganization Act (Act of June 18. 1934, 48 Still. 984) not yet proclaimed a reservation or added to an existing reservation, urc purchased for the purpose of being Indian reservations and that therefore the Federal Government has law and order jurisdiction over the Indians on such purchased lands pending the formal declaration of their reservation status. Memo. Sol. I, D., February 17, 1939,

15 See Chapter 18,

Tim Solicitor for the Interior Department, after analyzing the McGowan case, commented :

A legal situation similar to that presented by the Reno Indian colony !>as occurred in the case of some of the abandoned military reservations which were turned over to tills Department for Indian school purposes under the act of July 31, 1882 (22 St at, 181, 25 U. 3, C. A, sec, 270), and which have been accented as Indian reservations. In these In stun cos title to the land was hold by the United States without any formal trust designation, hut the land was occupied by Indians whose occupancy rights enino to be recognized liy Congress and by tlio Department. Ex- amples are tlie Fort. Bfdsvell and Fort Mohave reservations, in dealing with which Congress expressly referred to the rights of tlie Indians in the reservations, (See act of January 27, 193L3, 37 Stat. G52, and act of June 25, 1910, 36 Stat. 805, 858.) An- other example is the Fort Totten Reservation which was recog- nized in the act of April 27, 1004 <33 Stat, 319) as oart of the Devils Lake Indian Reservation and belonging to the Indians residing on the reservation. In the case of LaDukc v. Me tin, 45 N. D. 349, 177 N. W, 673, the court reviewed the history of this military reservation devoted to Indian school purposes and ac- knowledged the fact that it might be considered an "Indian reservation *” .

These examples donionstrato that lands held by the United States without a declaration of trust mid used for school or othef institutional purposes may be considered Indian reservations where Indian communities have occupancy rights in the land. They point tlie distinction between this type of land and lands held exclusively by the United States for institutional purposes where there are no Indian residents nor Indian occupancy rights. The latter class of lands is best Illustrated by the nonreserva- tion schools and hospitals which the Department has itself jint clnssifled as Indian reservations, Wf- Handbook of October 15, 1929, “General Data concerning Indian Reservations.”)

Another way of demonstrating this conclusion is by reference to the general proposition that Indian country is country where not only Federal laws hut. also Indian laws and customs apply. It is apparent that Indian laws apply only in areas occupied by Indian groups and communities and not to lands held for Federal Institutions in Pierre, Phoenix, or any other non-Indian com- munity.

In brief, my conclusion is that land® held bv the United States and purchased for the purpose of establishing Federal institutions for Indian welfare are not Indian country nor Indlun reservations unless an Indian tribe or group 1ms occupancy rights in, the land. Such lands may be ^reservations of the United States” as, for example, that term is used in right-of-way statutes (Memo, Solicitor, I. t>., July 1, 1938), but they would not be “Indian reservations,”

Memo. Sol, I. Dm July 9, 1940,