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Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1941.
Under Section 16 of the Wheeler-Howard Act (Public No. 383, 73d Congress) the"powers vested in any Indian tribe or tribal council by existing law", are those powersof local self-government which have never been terminated by law or waived by treaty.
Among these powers are the following:
1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.
2. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe and to grant or withhold the right of tribal suffrage and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrollment and property rights of members.
3. To regulate the domestic relations of its members.
4. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land.
5. To levy dues, fees, or taxes upon the members of the tribe and upon non-members residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.
6. To remove or to exclude from the limits of the reservation non-members of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal laws governing trade with the Indian tribes.
7. To regulate the use and disposition of all property within the jurisdiction of the tribe, and to make public expenditures of tribal funds, where legal title to such funds lies in the tribe.
8. To administer justice with respect to all disputes and offenses of or among the members of the tribe, other than the ten major crimes reserved to the Federal courts.
9. To prescribe the duties and to regulate the conduct of Federal employees, but only in so far as such powers of supervision may be expressly delegated by the Interior Department.
UNITED STATES DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SOLICITOR,
Washington, October 25, 1934.
M-27781.
The Honorable The SECRETARY OF THE INTERIOR.
MY DEAR MR. SECRETARY: My opinion has been requested on the question of what powers may be secured to an Indian tribe and incorporated in its constitution and by laws by virtue of the following phrase, contained in section 16 of the Wheeler-Howard Act (Public No. 383, 73d Congress):
In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest ***.
The question of what powers are vested in an Indian tribe or tribal council by existing law cannot be answered in detail for each Indian tribe without reference to hundreds of special treaties and special acts of Congress. It is possible, however, on the basis of the reported cases, the written opinions of the various Executive departments, and those statutes of Congress which are of general import, to define the powers which have heretofore been recognized as lawfully within the jurisdiction of an Indian tribe. My answer to the propounded question, then, will be general, and subject to correction for particular tribes in the light of the treaties and statutes affecting such tribe wherever such treaties or statutes contain peculiar provisions restricting or enlarging the general authority of an Indian tribe.
In analyzing the meaning of the phrase in question, I note that the general confirmation of powers already recognized, is found in conjunction with specific grants of the following powers: "To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments." Furthermore, when a constitution has been adopted by a majority of the adults of an Indian tribe or tribes residing on the same reservation, the Secretary of the Interior is directed to "advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and the Congress."
I note, also, as relevant to the question of construction, that one of the stated purposes of the Act in question is "to grant certain rights of home rule to Indians."
I assume, finally, that any ambiguity in the phrase which I am asked to interpret ought to be resolved in accordance with:
*** the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. United States (248 U. S. 78, 89).
And see, to the same effect, Seufert Bros. Co. v. United States (249 U. S. 194); Choate v. Trapp (224 U. S. 665); Tones v. Meehan (175 U. S. 1).
Bearing these considerations in mind, I have no doubt that the phrase "powers vested in any Indian tribe or tribal council by existing law" does not refer merely to those powers which have been specifically granted by the express language of treaties or statutes, but refers rather to the whole body of tribal powers which courts and Congress alike have recognized as properly wielded by Indian tribes, whether by virtue of specific statutory grants of power, or by virtue of the original sovereignty of thetribe in so far as such sovereignty has not been curtailed by restrictive legislation or surrendered by treaties. Had the intent of Congress been to limit the powers of an Indian tribe to those previously granted by special legislation, it would naturally have referred to "existing laws" rather than "existing law" as the source of such powers. The term "law" is a broader term than the term "laws" and includes, as well as "laws", the materials of judicial decisions, treaties, constitutional provisions and practices, and other sources controlling the decisions of courts. Furthermore, it was clearly not the purpose of Congress to narrow the body of tribal powers which have heretofore been recognized by the courts. It would therefore be contrary to the manifest intent of the
Act to interpret this phrase in a narrow sense as referring only to express statutory grants of specific powers.
Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in, general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. The powers of sovereignty have been limited from time to time by special treaties and laws designed to take from the Indian tribes control of matters which, in the judgment of Congress, these tribes could no longer be safely permitted to handle. The statutes of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or its positive content. What is not expressly limited remains within the domain of tribal sovereignty, and therefore properly falls within the statutory category, "powers vested in any Indian tribe or tribal council by existing law."
The acts of Congress which appear to limit the powers of an Indian tribe are not to be unduly extended by doubtful inference. What was said in the case of In re Mayfield (141 U. S. 107) is still pertinent:
The policy of Congress has evidently been to vest in the inhabitants of the Indian country such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization. We are bound to recognize and respect such policy and to construe the acts of the legislative authority in consonance therewith. *** (At pp. 115-116.)
From the earliest years of the Republic the Indian tribes have been recognized as "distinct, independent, political communities" (Worcester v. Georgia, 6 Pet. 515, 559), and, as such, qualified to exercise powers of self-government, not by virtue of any delegation of powers from the Federal Government, but rather by reason of their original tribal sovereignty. Thus treaties and statutes of Congress have been looked to by the courts as limitations upon original tribal powers, or, at most, evidences of recognition of such powers rather than as the direct source of tribal powers. This is but an application of the general principle that "It is only by positive enactments, even in the case of conquered and subdued nations, that their laws are changed by the conqueror" (Wall v. Williamson, 8 Ala. 48, 51, upholding tribal law of divorce).
In point of form it is immaterial whether the powers of an Indian tribe are expressed and exercised through customs handed down by word of mouth or through written constitutions and statutes. In either case the laws of the Indian tribe owe their force to the will of the members of the tribe.
The earliest complete expression of these principles is found in the case of Worcester v. Georgia (6 Pet. 515). In that case the State of Georgia, in its attempts to destroy the tribal government of the Cherokees, had imprisoned a white man living among the Cherokees with the consent of the tribal authorities. The Supreme Court of the United States held that his imprisonment was in violation of the Constitution, that the State bad no right to infringe upon the Federal power to regulate intercourse with the Indians, and that the Indian tribes were, in effect, wards of the Federal Government entitled to exercise their own inherent rights of sovereignty so far as might be consistent with Federal law. The court declared, per Marshall, C. J.:
The Indian nations had always been considered as distinct, independent, political communities, *** (At p. 559.)
*** and 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. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. "Tributary and feudatory states," says Vattel, "do not thereby cease to be sovereign and independent states, so long as self-government, and sovereign and independent authority, are left in the administration of the state." At the present day, more than one state may be considered as holding its right of self-government under the guaranteeand protection of one or more allies.
The Cherokee nation then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties,
and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. The act of the state of Georgia, under which the plaintiff in error was prosecuted, is, consequently void, and the judgment a nullity. *** (At pp. 560-561.)
In the recent case of Patterson v. Council of Seneca Nation (245 N. Y. 433, 157 N. E. 734) the New York Court of Appeals gave careful consideration to the present status of the Seneca tribe and of its legislative and judicial organs of government. Reviewing the relevant Federal cases, the court reached the conclusion that the powers which the Seneca Council and the Seneca Peacemakers' Court sought to exercise were powers derived from the sovereignty of the Seneca Nation, and that no act of New York State could diminish this sovereignty although proper legislation, enacted at the request of the Indians themselves, might supplement the provisions of the tribal constitution. After reviewing the relevant State legislation, the court declared:
*** Thus did the Seneca Nation, far from abdicating its sovereign powers, set up a strong central government, distribute all governmental powers among three departments, empower a legislative body to be called the "Councillors of the Seneca Nation" to make necessary laws, create a president to execute them, and establish a Peacemakers' Court and a Surrogate's Court to interpret the laws of the Nation and decide causes. Thus did the Legislature of the state of New York twice approve of the Constitution adopted and the government set up. It was not accurate to say, therefore, that the state of New York in the year 1849 "assumed governmental control" of the Indians. On the contrary, in that year and subsequently, by its approval of the Indian Constitution in its original and amended form, the state of New York acknowledged the Seneca Indians to be a separate nation, a self-governing people, having a central government with appropriate departments to make laws, to administer and to interpret them. ***
The force of the Seneca Constitution, the court found, derived not from the sovereignty of New York State, but from the original sovereignty of the Seneca Nation:
Various statutes passed by the New York Legislature in relation to the Indians are now embodied in the "Indian Law." Article 4 of that law is entitled "The Seneca Indians." It doubtless embodies the statutes passed pursuant to the request of the Seneca Nation contained in its Constitution of 1848. This article purports to set up a government for the Seneca Nation, consisting of three departments, exactly as provided in the Indian Constitution. It must. be held, however, that the Indian Nation itself created these departments and the system of government set up by its Constitution, the force of which had been expressly acknowledged by the New York Legislature. It purported to set up a Peacemakers' Court. The source of jurisdiction of that court, however, was the Indian Constitution, not the Indian Law. Thus, in Mulkins v. Snow, supra, this court said:
"The Peacemakers' Court is not a mere statutory local court of inferior jurisdiction. It is an Indian court, which has been recognized and given strength and authority by statute. It does not owe its existence to the state statute and is only in a qualified sense a state court." ***
The respondent argues that the jurisdiction of the Peacemakers' Court is limited by the Indian Law (section 46) to "matters, disputes, and controversies between any Indians residing upon such reservation" which may arise upon "contracts or for wrongs." We answer that, the Peacemakers' Court is the creation not of the state but of the Indian Constitution; that by such Constitution as amended in 1898, the Peacemakers' Courts are given "exclusive jurisdiction in all civil causes arising between individual Indians residing on said reservations, except those which the Surrogate's Courts have jurisdiction of", without reference to "contracts" or to "wrongs". The Indian Law does not deny comprehensive jurisdiction; it merely fails to use terms apparently bestowing it. The Indian Constitution does bestow it. ***
Thus the doctrine first laid down by Chief Justice Marshall in the early years of the Republic was reaffirmed but a few years ago with undiminished vigor by the New York Court of Appeals.
The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e. g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe,1 i. e., its powers of local self-government. These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.
A most striking affirmation of these principles is found in the case of Talton v. Mayes (163 U. S. 376). The question was presented in that case whether the Fifth Amendment of the Federal Constitution operated as a limitation upon the legislation of the Cherokee Nation. A law of the Cherokee Nation authorized a grand jury of five persons to institute criminal proceedings. A person indicted under this procedure and held for trial in the Cherokee courts sued out a writ of habeas corpus, alleging that the law in question violated the Fifth Amendment to the Constitution of the United States, since a grand jury of five was not a grand jury within the contemplation of the Fifth Amendment. The Supreme Court held that the Fifth Amendment applied only to the acts of the Federal Government; that the sovereign powers of the Cherokee Nation, although recognized by the Federal Government, were not created by the Federal Government; and that the judicial authority of the Cherokees was, therefore, not subject to the limitations imposed by the bill of rights:
The question, therefore, is, does the Fifth Amendment to the Constitution apply to the local legislation of the Cherokee nation so as to require all prosecutions for offences committed against the laws of that nation to be initiated by a grand jury organized in accordance with the provisions of that amendment. The solution of this question involves an inquiry as to the nature and origin of the power of local government exercised by the Cherokee nation and recognized to exist in it by the treaties and statutes above referred to. Since the case of Barron v. Baltimore, 7 Pet. 243, it has been settled that the Fifth Amendment to the Constitution of the United States is a limitation only upon the powers of the General Government, that is, that the amendment operates solely on the Constitution itself by qualifying the powers of the National Government which the Constitution called into being.
The case in this regard therefore depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this court have long since answered the former question in the negative. In Cherokee Nation v. Georgia, 5 Pet. 1, which involved the right of the Cherokee nation to maintain an original bill in this court as a foreign State, which was ruled adversely to that right, speaking through Mr. Chief Justice Marshall, this court said (p. 16):
"Is the Cherokee nation a foreign State in the sense in which that term is used in the Constitution?
"The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a State, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a State from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a State, and the courts are bound by those acts."
It cannot be doubted, as said in Worcester v. The State of Georgia, 6 Pet. 515, 559, that prior to the formation of the Constitution treaties were made with the Cherokee tribes by which their autonomous existence was recognized. And in that case Chief Justice Marshall also said (p. 559):
"The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights. *** The very term 'nation,' so generally applied to them, means a 'people distinct from others. The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties."
In reviewing the whole subject in Kagama v. United States, 118 U. S. 375, this court said (p. 381):
"With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but was a separate people with the power of regulating their internal and sociol relations, and thus far not broughtunder the laws of the Union, or of the State within whose limits they resided."
True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. Cherokee Nation v. Kansas Railway Co., 135 U. S. 641, where the cases are fully reviewed. But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States. It follows that as the powers of local self government enjoyed by the Cherokee nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment, which, as we have said, had for its sole object to control the powers conferred by the Constitution on the National Government. *** (At pp. 382-384.)
And see, to the same effect, Ex parte Tiger (2 Ind. T. 41, 47 S. W. 304). It is recognized, of course, that those provisions of the Federal Constitution which are completely general in scope, such as the Thirteenth Amendment, apply to the members of Indian tribes as well as to all other inhabitants of the nation. In re Sah Quah (31 Fed. 327).
Added recognition of the sovereign character of an Indian tribe is found in the case of Turner v. United States and Creek Nation (51 Ct. Cls. 125, aff'd 248 U. S. 354). Rejecting a claim against the Creek Nation based upon the allegedly illegal acts of groups of Indians in destroying the fence of a cattle company, the Court of Claims declared:
*** we must apply the rule of law applicable to established governments under similar conditions. It is a familiar rule that in the absence of a statute declaring a liability therefor neither thesovereign nor the governmental subdivisions, such as counties or municipalities, are responsible to the party injured in his person or estate by mob violence. *** (At p. 153.)
An extreme application of the doctrine of tribal sovereignty is found in the case of Ex parte Crow Dog (109 U. S. 556), in which it was held that the murder of one Sioux Indian by another upon an Indian reservation was not within the criminal jurisdiction of any court of the United States, but that only the Indian tribe itself could punish the offense.
The contention that the United States courts had jurisdiction in a case of this sort was based upon the Ian of a treaty with the Sioux, rather than upon considerations applicable generally to the various Indian tribes. The most important of the treaty clauses upon which the claim of Federal jurisdiction was based provided:
And Congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life. (At p. 568.)
Commenting upon this clause, the Supreme Court declared:
It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very Purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all, that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people, who, through the discipline of labor and by education, it was hoped might become a self-supporting and self-governed society. *** (At pp. 568-569.)
In finally rejecting the argument for Federal jurisdiction the Supreme Court declared:
*** It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free through savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. (At p. 571.)
The force of the decision in Ex parte Crow Dog was not weakened, although the scope of the decision was limited, by subsequent legislation which withdrew from the rule of tribal sovereignty a list of seven major crimes, only recently extended to ten.1 Over these specified crimes jurisdiction has been vested in the Federal courts. Over all other crimes, including such serious crimes as kidnaping, attempted murder, receiving stolen goods, and forgery, jurisdiction resides not in the courts of Nation or State but only in the Indian tribe itself.
We shall defer the question of the exact scope of tribal jurisdiction for more detailed consideration at a later point. We are concerned for the present only in analyzing the basic doctrine of tribal sovereignty. To this doctrine the case of Ex parte Crow Dog
contributes not only an intimation of the vast and important content of criminal jurisdiction inherent in tribal sovereignty, but also an example of the consistent manner in which the United States Supreme Court has opposed the efforts of lower courts and administrative officials to infringe upon tribal sovereignty and to assume tribal prerogatives without statutory justification. The legal powers of an Indian tribe, measured by the decisions of the highest courts, are far more extensive than the powers which most Indian tribes have been actually permitted by omnipresent officials to exercise in their own right.
The doctrine of tribal sovereignty is well summarized in the following passage in the case of In Re Sah Quah (31 Fed. 327):
From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs, subject, however, to such restraints as were from time to time deemed necessary for their own protection, and for the protection of the whites adjacent to them. Cherokee Nat. v. Georgia, 5 Pet. 1, 16, 17; Jackson v. Goodell, 20 Johns, 193. (At p. 329.)
And in the case of Anderson v. Mathews (174 Cal. 537, 163 Pac. 902), it was said:
*** The Indian tribes recognized by the Federal government are not subject to the laws of the State in which they are situated. They are under the control and protection of the United States, but they retain the right of local self-government, and they regulate and control their own local affairs and rights of persons and property, except as Congress has otherwise specially provided by law. *** (At 163 Pac. 905.)
See, also, to the same effect, Story's Commentaries, Sec. 1099; 3 Kent's Commentaries (14th ed.) 383-386.
The acknowledgment of tribal sovereignty or autonomy by the courts of the United States has not been a matter of lip service to a venerable but outmoded theory. The doctrine has been followed through the most recent cases, and from time to time carried to new implications: Moreover, it has been administered by the courts in a spirit of whole-hearted sympathy and respect. The painstaking analysis by the Supreme Court of tribal laws and constitutional provisions in the Cherokee Intermarriage Cases (203 U. S. 706) is typical, and exhibits a degree of respect proper to the laws of a sovereign state. If verbal recognition is needed, there is the glowing tribute which Judge Nott pays to this same Cherokee Constitution in the case of Journeycake v. Cherokee Nation and United States (28 Ct. Cls. 281, 317-318):
The constitution of the Cherokees was a wonderful adaptation to the circumstances and conditions of the time, and to a civilization that was yet to come. It was framed and adopted by a people some of whom were still in the savage state, and the better portion of whom had just entered upon that stage of civilization which is characterized by industrial pursuits; and it was framed during a period of extraordinary turmoil and civil discord, when the greater part of the Cherokee people had just been driven by military force from their mountains and valleys in Georgia, and been brought by enforced immigration into the country of the Western Cherokees; when a condition of anarchy and civil war reigned in the territory—a condition which was to continue until the two branches of the nation should be united under the treaty of 1846 (27 C. Cls. R., 1); yet for more than half a century it has met the requirements of a race steadily advancing in prosperity and education and enlightenment so well that it has needed, so far as they are concerned, no material alteration or amendment, and deserves to be classed among the few great works of intelligent statesmanship which outlive their own time and continue through succeeding generations to assure the rights and guide the destinies of men. And it is not the least of the successes of the constitution of the Cherokees that the judiciary of another nation are able, with entire confidence in the clearness and wisdom of its provisions, to administer it for the protection of Cherokee citizens and the maintenance of their personal and political rights. (At pp. 317-318.)
The sympathy of the courts towards the independent efforts of Indian tribes to administer the institutions of self-government has led to the doctrine that Indian laws and statutes are to be interpreted not in accordance with the technical rules of the common law, but in the light of the traditions and circumstances of the Indian people. An attempt in the case of Ex parte Tiger (47 S. W. 304, 2 Ind. T. 41) to construe the language of the Creek Constitution in a technical sense was met by the appropriate judicial retort:
If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausibility in this reasoning. But they are strangers to the common law.1 They derive their
jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew. With them, "to indict" is to file a written accusation charging a person with a crime.
So, too, in the case of McCurtain v. Grady (1 Ind. T. 107, 38 S. W. 65) the court had occasion to note that:
The Choctaw constitution was not drawn by geologists or for geologists, or in the interests of science, or with scientific accuracy. It was framed by plain people, who have agreed among themselves what meaning should be attached to it, and the courts should give effect to that interpretation which its framers intended it should have.
The realm of tribal autonomy which has been so carefully respected by the courts, has been implicitly confirmed by Congress in a host of statutes providing that various administrative acts of the President or the Interior Department shall be done only with the consent of the Indian tribe or its chiefs or council.
Thus, U. S. Code, title 25, section 63, provides that the President may "consolidate one or more tribes, and abolish such agencies as are thereby rendered unnecessary," but that such action may be undertaken only "with the consent of the tribes to be affected thereby, expressed in the usual manner."
Section 111 of the same title provides that payments of moneys and distribution of goods for the benefit of any Indians or Indian tribes shall be made either to the heads of families and individuals directly entitled to such moneys or goods or else to the chiefs of the tribe, for the benefit of the tribe, or to persons appointed by the tribe for the purpose of receiving such moneys or goods his section finally provides that such moneys or goods "by consent of the tribe" may be applied directly by the Secretary to purposes conducive to the happiness and prosperity of the tribe.
Section 115 of the same title provides:
The President may, at the request of any Indian tribe, to which an annuity is payable in money, cause the same to be paid in goods, purchased as provided in section 91.
Section 140 of the same title provides that specific appropriations for the benefit of Indian tribes may be diverted to other uses "with the consent of said tribes, expressed in the usual manner."
Other statutory provisions of general import, confirming or delegating specific powers to the Indian tribes or their officers, are: U. S. Code, title 25, section 48, section 130, section 132, section 159, section 162, section 184, section 218, section 225, section 229, section 371, section 397, section 398, section 402. These latter provisions are discussed later under relevant headings.
The whole course of Congressional legislation with respect to the Indians has been based upon a recognition of tribal autonomy, qualified only where the need for other types of governmental control has become clearly manifest. As was said in a report of the Senate Judiciary Committee (prior to the enactment of U. S. Code, title 18, sec. 548): "Their right of self-government, and to administer justice among themselves, after their rude fashion, even to inflicting the death penalty, has never been questioned." (Sen. Rep. No. 268, 41st Congress, 3d session.)
It is a fact that State governments and administrative officials have frequently trespassed upon the realm of tribal autonomy, presuming to govern the Indian tribes through State law or departmental regulation or arbitrary administrative fiat, but these trespasses have not impaired the vested legal powers of local self-government which have been recognized again and again when these trespasses have been challenged by an Indian tribe. "Power and authority rightfully conferred do not necessarily cease to exist in consequence of long non-user." (United States ex rel. Standing Bear v. Crook, 5 Dill. 453, 460.) The Wheeler-Howard Act, by affording statutory recognition of these powers of local self-government and administrative assistance in developing adequate mechanisms for such government, may reasonably be expected to end the conditions that have in the past led the Interior Department and various State agencies to deal with matters that are properly within the legal competence of the Indian tribes themselves.
Neither the alloting of land in severalty nor the granting of citizenship has destroyed the tribal relationship upon which local autonomy rests. Only through the laws or treaties of the United States, or administrative acts authorized thereunder, can tribal existence be terminated, As was said in the case of United States v. Boylan (265 Fed,
165) with reference to certain New York Indians over whom State courts had attempted to exercise jurisdiction:
*** Congress alone has the right to say when the guardianship over the Indians may cease U. S. v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192; Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. Accordingly it has been held that it is for Congress to say when the tribal existence shall be deemed to have terminated, and Congress must so express its intent in relation thereto in clear terms. Until such legislation by Congress, even a grant of citizenship does not terminate the tribal status or relieve the Indian from the guardianship of the government. U. S. v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192. *** (At p. 171.)
The court concludes:
*** The right of self-government has never been taken from them. ***
At all times the rights which belong to self-government have been recognized as vested in these
Indians. *** (At p. 173.)
In the case of Farrell v. United States (110 Fed. 942), the effect of allotment in severalty and of the grant of citizenship was considered, and the court declared:
*** The agreement to maintain the agent and the retention and exercise of the power to control the liquor traffic are not inconsistent, as we have seen with the allotment of the lands in severalty or with the grant to the allottees of the immunities and privileges of citizenship. Neither the act of 1887 nor any other act of congress or treaty with these Indians required those who selected allotments and received patents and the privileges and immunities of citizenship to serve their tribal relation, or to surrender any of their rights as members of their tribes, as a condition of the grant, so that after their allotments, as before, their tribal relation continued. And finally the legislative and executive departments of the government to which the subject-matters of the relations of the Indians and their tribes to the United States, and the regulation of the commerce with them, has been specially intrusted, have uniformly held that congress retained, and have constantly exercised, the power to regulate intercourse with these Indians, and to prohibit the traffic in intoxicating liquors with them, since these patents issued, to the same extent as before their lands were allotted in severalty. It is the settled rule of the judicial department of the government, in ascertaining the relations of Indian tribes and their members to the nation, to follow the action of the legislative and executive departments, to which the determination of these questions has been especially intrusted. U. S. v. Holliday, 3 Wall. 407, 419, 18 L. Ed. 182; U. S. v. Earl (C. C.) 17 Fed. 75, 78. (At p. 951.)
And in the case of United States v. Holliday (3 Wall. 407), the Supreme Court declared:
In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. (At. p. 419.)
And see, to the same effect, The Kansas Indians (5 Wall. 737, 756); Yakima Joe v. To-is-lap (191 Fed. 516); United States v. Flournoy Live-Stock, etc. Co. (71 Fed. 576).
There are, of course, a number of instances in which tribal autonomy has been terminated by act of Congress or by treaty. See, for example, Wiggan v. Conolly (163 U. S. 56); United States v. Elm (2 Cin. Law Bull. 307, 25 Fed. Cas. No. 15,048); and cf. act of April 26, 1906 (34 Stat. 137). But to accomplish this, the provisions of treaty or statute must be positive and unambiguous. (Morrow v. Blevins, 23 Tenn. 223; Jones v. Meehan, 175 U. S. 1.)
Save in such instances, the internal sovereignty of the Indian tribes continues, unimpaired by the changes that have occurred in the manners and customs of Indian life, and, for the future, remains a most powerful vehicle for the movement of the Indian tribes towards a richer social existence.
Since any group of men, in order to act as a group, must act through forms which give the action the character and authority of group action, an Indian tribe must, if it has any power at all, have the power to prescribe the forms through which its will may be registered. The first element of sovereignty, and the last which may survive successive statutory limitations of Indian tribal power, is the power of the tribe to determine and define its own form of government. Such power includes the right to define the powers and duties of its officials, the manner of their appointment or election, the manner of their removal, the rules they are to observe in their capacity as officials, and the forms and procedures which are to attest the authoritative character of acts done in the name
of the tribe. These are matters which may be determined even in a modern civilized nation by unwritten custom as well as by written law. The controlling character of the Indian tribe's basic forms and procedures has been recognized by State and Federal courts, whether evidenced by written statute or by the testimony of tradition.
Thus, in the case of Pueblo of Santa Rose v. Fall (273 U. S. 315) the Supreme Court recognized that by the traditional law of the Pueblo the "Captain" of the Pueblo would have no authority to convey to attorneys the claims of the Pueblo or to authorize suit thereon, and that such acts without the approval of a general council would be null and void.
To the same effect, see 7 Op. Atty. Gen. 142 (1855).
In 5 Op. Atty. Gen. 79 (1849) the opinion is expressed that a release to be executed by the "Creek Indians" would be valid "provided, that the chiefs and headmen executing it are such chiefs and headmen and constitute the whole or a majority of the council of the Creek Nation."
In Rawlins and Presbey v. United States (23 Ct. Cls. 106) the court finds that a chief's authority to act in the name of the tribe has been established by the tacit assent of the tribe and by their acceptance of the benefits of his acts.
In the case of Mount Pleasant v. Gansworth (271 N. Y. Supp. 78) it is held that the Tuscarora tribal council has never been endowed with probate jurisdiction, that no other body has been set up by the tribe to exercise probate powers, and hence that State courts may step in to remedy the lack. Whether no not the final conclusion is justified, in the light of such cases as Patterson v. Council of Seneca Nation (245 N. Y. 443; 157 N. E. 734), the opinion of the court indicates at least that the limitations which a tribe may impose upon the jurisdiction of its own governmental bodies and officers will be respected.
Not only must officers presuming to act in the name of an Indian tribe show that their acts fall within their allotted function and authority, but likewise the procedural formalities which tradition or ordinance require must be followed in executing an act within the acknowledged jurisdiction of the officer or set of officers.
In 19 Op. Atty. Gen. 179 (1888) it is held that a decree of divorce which has not been signed by a judge or clerk of court, as required by the laws of the Choctaw Nation, is invalid.
In re Darch (265 N. Y. Supp. 86) involves action of a special tribal council meeting to which only a few of the members of the council were invited. The action was declared invalid on the ground that the council's rules of procedure required due notice of a special meeting to be given to all the members of the council. Based on an analogy taken from corporation law, the rule was laid down that violation of this requirement rendered acts of the council invalid.
In 25 Op. Atty. Gen. 308 (1904) it appeared that certain sums were to be paid to attorneys "only after the tribal authorities, thereunto duly and specifically authorized by the tribe, shall have signed a writing ***." By resolution of the tribe the business committee had been authorized to sign the writing in question. The signatures of the business committee, in the opinion of the Attorney General, met the statutory requirement:
The proceedings of the council were regular, and the motions were carried by a sufficient number of voters, though less than a majority of those present. See State v. Vanodel (131 Ind. 388); Attorney General v. Shepard (62 N. H. 383); and Mount v. Parker (32 N. J. Law, 341).
The doctrine of de facto officers has been applied to an Indian tribe, in accordance with the rule applied to other governmental agencies, so as to safeguard from collateral attack acts and documents signed by officers acting under color of authority, though subject, in proper proceedings, to removal from office. See Nofire v. United States (164 U. S. 657); Seneca Nation v. John (16 N. Y. Supp. 40).
Based upon the analogy of the constitutional law of the United States, the doctrine has been applied to Indian statutes and constitutional provisions that statutes deemed by the courts to be violative of constitutional limitations are to be regarded as void. See Whitmire, Trustee, v. Cherokee Nation (30 Ct. Cls. 138); Delaware Indians v. Cherokee Nation (38 Ct. Cls. 234); 19 Op. Atty. Gen, 229 (1889).
Statutes of Congress have recognized that the authority of an Indian tribe is customarily wielded by chiefs and headmen.1
Other congressional legislation has specifically recognized the propriety of paying salaries to tribal officers out of tribal funds.2
The courts have consistently recognized that in the absence of express legislation by Congress to the contrary, an Indian tribe has complete authority to determine all questions of its own membership.3 It may thus by usage or written law determine under what conditions persons of mixed blood shall be considered members of the tribe. It may provide for special formalities of recognition, and it may adopt such rules as seem suitable to it, to regulate the abandonment of membership, the adoption of non-Indians or Indians of other tribes, and the types of membership or citizenship which it may choose to recognize. The completeness of this power receives statutory recognition in U. S. Code, Title 25, Sec. 184, which provides that the children of a white man and an Indian woman by blood shall be considered members of the tribe if, and only if, "said Indian woman was *** recognized by the tribe."4 The power of the Indian tribes in this field is limited only by the various statutes of Congress defining the membership of certain tribes for purposes of allotment or for other purposes, and by the statutory authority given to the Secretary of the Interior to promulgate a final tribal roll for the purpose of dividing and distributing tribal funds."5
The power of an Indian tribe to determine questions of its own membership arises necessarily from the character of an Indian tribe as a distinct political entity. In the case of Patterson v. Council Of Seneca Nation (245 N. Y. 433; 157 N. E. 734), the Court of Appeals of New York reviewed the many decisions of that court and of the Supreme Court of the United States recognizing the Indian tribe as a "distinct political society, separated from others, capable of managing its own affairs and governing itself" (per Marshall, C. J., in Cherokee Nation v. Georgia, 5 Pet. 1), and, in reaching the conclusion that mandamus would not lie to compel the plaintiff's enrollment by the defendant council, declared:
Unless these expressions, as well as similar expressions many times used by many courts in various jurisdictions, are mere words of flattery designed to soothe Indian sensibilities, unless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching state legislation, then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted.
It must be the law, therefore, that, unless the Seneca Nation of Indians and the state of NewYork enjoy a relation inter se peculiar to themselves, the right to enrollment of the petitioner, with its attending property rights, depends upon the laws and usages of the Seneca Nation and is to be determined by that Nation for itself, without interference or dictation from the Supreme Court of the state.
After examining the constitutional position of the Seneca Nation and finding that tribal autonomy has not been impaired by any legislation of the state, the court concludes:
The conclusion is inescapable that the Seneca Tribe remains a separate nation; that its powers of self-government are retained with the sanction of the state; that the ancient customs and usages of the nation except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of a sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York state; that, above all, the Seneca Nation retains for itself the power of determining who are Senecas, and in that respect is above interference and dictation.
In the case of Waldron v. United States (143 Fed. 413), it appeared that a woman of five-sixteenths Sioux Indian blood on her mother's side, her father being a white man, had been refused recognition as an Indian by the Interior Department although, by tribal custom, since the woman's mother had been recognized as an Indian, the woman herself was so recognized. The court held that the decision of the Interior Department was contrary to law, declaring:
In this proceeding the court has been informed as to the usages and customs of the different tribes of the Sioux Nation, and has found as a fact that the common law does not obtain among said tribes, as to determining the race to which the children of a white man, married to an Indian woman, belong; but that, according to the usages and customs of said tribes, the children of a white man married to an Indian woman take the race or nationality of the mother.
The same view is maintained in 19 Op. Atty. Gen. 115 (1888), in which it is said:
It was the Indians, and not the United States, that were interested in the distribution of what was periodically coming to them from the United States. It was proper then that they should determine for themselves, and finally, who were entitled to membership in the confederated tribe and to participate in the emoluments belonging to that relation.
The certificate of the chiefs and councillors referred to is possibly as high a grade of evidence as can be procured of the fact of the determination by the chiefs of the right of membership under the treaty of February 23, 1867, and seems to be such as is warranted by the usage and custom of the Government in its general dealings with these people and other similar tribes. (At page 116.)
See to the same effect:
In re William Banks (26 L. D . 71);
Black Tomahawk v. Waldron (19 L. D. 311);
20 Op. Atty. Gen. 711 (1894);
Western Cherokee Indians v. United States, (27 Ct. Cls. 1, 54);
United States v. Heyfron (two cases) (138 Fed. 964, 968).
In the Cherokee Intermarriage Cases (203 U. S. 76), the Supreme Court of the United States considered the claims of certain
white men, married to Cherokee Indians, to participate in the common property of the Cherokee Nation. After carefully examining
the constitutional articles and the statutes of the Cherokee Nation, the court reached the conclusion that the claims in question
were invalid, since, although the claimants had been recognized as citizens for certain purposes, the Cherokee Nation had
complete authority to qualify the rights of citizenship which is offered to its "naturalized" citizens, and had, in the exercise
of this authority, provided for the revocation or qualification of citizenship rights so as to defeat the claims of the plaintiffs.
The Supreme Court declared (per Fuller, C. J.):
The distinction between different classes of citizens was recognized by the Cherokees in the differences in their intermarriage law, as applicable to the whites and to the Indians of other tribes; by the provision in the intermarriage law that a white man intermarried with an Indian by blood acquires certain rights as a citizen, but no provision that if he marries a Cherokee citizen not of Indian blood he shall be regarded as a citizen at all; and by the provision that if, once having married an Indian by blood, he marries the second time a citizen not by blood, he loses all of his rights as a citizen. And the same distinction between citizens as such and citizens with property rights has also been recognized by Congress in enactments relating to other Indians than the Five Civilized Tribes. Act August 9, 1888, 25 Stat. 392, c. 818; act May 2, 1890, 26 Stat. 96, c. 182; act June 7, 1897, 30 Stat. 90 c. 3 (At page 88.)
*** The laws and usages of the Cherokees, their earliest history, the fundamental principles, of their national policy, their constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows or widowers) citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated. (At page 95.)
See, to the same effect, 19 Op. Atty. Gen. 109 (1888).
An Indian tribe may classify various types of membership and qualify not only the property rights, but the voting rights of certain members. Thus in 19 Op. Atty. Gen. 389 (1888) the view is expressed that a tribe may by law restrict the rights of tribal suffrage, excluding white citizens from voting, although by treaty they are guaranteed rights of "membership".
Similarly, an Indian tribe may revoke rights of membership which it has granted. In Roff v. Burney (168 U. S. 218), the Supreme Court upheld the validity of an act of the Chickasaw legislature depriving a Chickasaw citizen of his citizenship, declaring:
The citizenship which the Chickasaw legislature could confer it could withdraw. The only restriction on the power of the Chickasaw Nation to legislate in respect to its internal affair is that such legislation shall not conflict with the Constitution or laws of the United States, and we know of no provision of such Constitution or laws which would be set at naught by the action of a political community like this in withdrawing privileges of membership in the community once conferred. (At page 222.)
The right of an Indian tribe to make express rules governing the recognition of members, the adoption of new members, the procedure for abandonment of membership, and the procedure for readoption, is recognized in Smith v. Bonifer (154 Fed.883, aff'd. 166 Fed. 846). In that case the plaintiffs' right to allotments depended upon their membership in a particular tribe. The court held that such membership was demonstrated by the fact of tribal recognition, declaring:
Indian members of one tribe can sever their relations as such, and may form affiliations with another or other tribes. And so they may, after their relations with a tribe has been severed, rejoin the tribe and be again recognized and treated as members thereof, and tribal rights and privileges attach according to the habits and customs of the tribe with which affiliation is presently cast. As to the manner of breaking off and recasting tribal affiliations we are meagerly informed. It was and is a thing, of course, dependent upon the peculiar usages and customs of each particular tribe, and therefore we may assume that no general rule obtains for its regulation.
Now, the first condition presented is that the mother of Philomme was a full-blood Walla Walla Indian. She was consequently a member of the tribe of that name. Was her status changed by marriage to Tawakown, an Iroquois Indian? This must depend upon the tribal usage and customs of the Walla Wallas and the Iroquois. It is said by Hon. William A. Little, Assistant Attorney General, in an opinion rendered the Department of the Interior in a matter involving this very controversy:
"That inheritance among these Indians is through the mother and not through the father, and that the true test in these cases is to ascertain whether parties claiming to be Indians and entitled to allotments have by their conduct expatriated themselves or changed their citizenship."
But we are told that:
"Among the Iroquoian tribes kinship is traced through the blood of the woman only. Kinship
means membership in a family; and this in turn constitutes citizenship in the tribe, conferring
certain social, political, and religous privileges, duties, and rights, which are denied to persons of alien blood." Handbook
of American Indians, edited by Frederick Webb Hodge, Smithsonian Institute, Government Printing Office, 1907.
Marriage, therefore, with Tawakown would not of itself constitute an affiliation on the part of his wife with the Iroquois tribe, of which he was a member, and a renunciation of membership with her own tribe. (At page 886.)
Considering a second marriage of the plaintiff to a white person, the court went on to declare:
But notwithstanding the marriage of Philomme to Smity, and her long residence outside of the limits of the reservation, she was acknowledged by the chiefs of the confederated tribes to be a member of the Walla Walla tribe. From the testimony adduced herein, read in connection with that taken in the case of Hy-yu-tse-mil-kin v. Smith, supra, it appears that Mrs. Smith was advised by Homily and Show-a-way, chiefs, respectively, of the Walla Walla and Cayuse tribes, to come upon the reservation and make selections for allotments to herself and children, and that thereafter she was recognized by both these chiefs, anid by Peo, the chief of the Umatillas, as being a member of the Walla Walla tribe. It is true that she was not so recognized at first, but she was finally, and by a general council of the Indians held for the especial purpose of determining the matter. (At page 888.)
Where tribal laws have not expressly provided for some certificate of membership (see 19 Op. Atty. Gen. 115 (1888)), the courts, in cases not clearly controlled by recognized tribal custom, have looked to recognition by the tribal chiefs as a test of tribal membership. Hy-yu-tse-mil-kin v. Smith (194 U. S. 401, 411).
The weight given to tribal action in relation to tribal membership is shown by the case of Nofire v. United States (164 U. S. 657). In that case the jurisdiction of the Cherokee courts in a murder case, the defendants being Cherokee Indians, depended
upon whether the deceased, a white man, had been duly adopted by the Cherokee Tribe. Finding evidence of such adoption in the official records of the tribe, the Supreme Court held that such adoption deprived the State court of jurisdiction over the murder and vested such jurisdiction in the tribal courts.
A similar decision was reached in the case of Raymond v. Raymond (83 Fed. 721), in which the jurisdiction of a tribal court over an adopted Cherokee was challenged. The court declared (per Sanborn, J.):
It is conceded that under the laws of that nation the appellee became a member of that tribe, by adoption, through her intermarriage with the appellant. It is settled by the decisions of the supreme court that her adoption into that nation ousted the federal court of jurisdiction over any suit between her and any member of that tribe, and vested the tribal courts with exclusive jurisdiction over every such action. Alberty v. U. S., 162 U. S. 499, 16 Sup. Ct. 864; Nofire v. U. S., 164 U. S. 657, 658, 17 Sup. Ct. 212.
It is of course recognized throughout the cases, that tribal membership is a bilateral relation, depending for its existence not only upon the action of the tribe but also upon the action of the individual concerned. Any member of any Indian tribe is at full liberty to terminate his tribal relationship whenever he so chooses. In the famous case of United States ex rel. Standing Bear v. Crook (5 Dill. 453, 25 Fed. Cases No. 14891), in which an Indian secured a writ of habeas corpus directed against a general of the United States Army, to prevent his removal to Indian territory, the court found that the petitioner, Standing Bear, had severed his relationship with his tribe and was, therefore, not subject to the provisions of any treaties or legislation concerned with the removal of the tribe to Indian Territory. The court declared (per Dundy, J.):
Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also states that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca Tribe of Indians, and had resolved to disband as a tribe, or band, of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able so to do went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, of removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected, and formed a part of what was to them a melancholy procession homeward.
*** What is here stated in this connection is mainly for the purpose of showing that the relators did all they could to separate themselves from their tribe and to sever their tribal relations, for the purpose of becoming self-sustaining and living without support from the government. This being so, it presents the question as to whether or not an Indian can withdraw from his tribe, sever his tribal relation therewith, and terminate his allegiance thereto, for the purpose of making an independent living and adopting our own civilization.
If Indian tribes are to be regarded and treated as separate but dependent nations, there can be no serious difficulty about the question. If they are not to be regarded and treated as separate, dependent nations, then no allegiance is owing from an individual Indian to his tribe, and he could, therefore, withdraw therefrom at any time. The question of expatriation has engaged the attention of our government from the time of its very foundation. Many heated discussions have been carried on between our own and foreign governments on this great question, until diplomacy has triumphantly secured the right to every person found within our jurisdiction. This right has always been claimed and admitted by our government, and it is now no longer an open question. It can make but little difference, then, whether we accord to the Indian tribes a national character or not, as in either case I think the individual Indian possesses the clear and God given right to withdraw from his tribe and forever live away from it, as though it had no further existence. If the right of expatriation was open to doubt in this country down to the year 1868, certainly since that time no sort of question as to the right can now exist. On the 27th of July of that year Congress passed an act, now appearing as section 1999 of the Revised Statutes, which declares that: "Whereas, the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and, whereas, in the recognition of this
principle the government has freely received emigrants from all nations, and invested them with the rights of citizenship. *** Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic."
The tribal power recognized in all the foregoing cases is not overthrown by anything said in the case of United States ex rel. West v. Hitchcock (205 U. S. 80). In that case, an adopted member of the Wichita tribe was refused an allotment by the Secretary of the Interior because the Department had never approved his adoption. Since the Secretary, according to the Supreme Court, had unreviewable discretionary authority to grant or deny an allotment even to a member of the tribe by blood, it was unnecessary for the Supreme Court to decide whether refusal of the Interior Department to approve the relator's adoption was within the authority of the Department. The court, however, intimated that the general authority of the Interior Department under Rev. Stat. 463 (U. S. Code, Title 25, Sec. 2),1 was broad enough to justify a regulation requiring Department approval of adoptions, but hastened to add that since the relator would have no legal right of appeal even if his adoption without Department approval were valid, "it hardly is necessary to pass upon that point."
The power of an Indian tribe to determine its membership is subject to the qualification, however, that in the distribution of tribal funds and other property under the supervision and control of the Federal Government, the action of the tribe is subject to the supervisory authority of the Secretary of the Interior. See United States ex rel. West v. Hitchcock, 205 U. S. 80; Mitchell v. United States, 22 Fed. (2d) 771; United States v. Provoe, 38 Fed. (2d) 799, reversed on other grounds, 283 U. S. 753. See also Wilbur v. United States, 281 U. S. 206. The original power to determine membership, including the regulation of membership by adoption, nevertheless remains with the tribe, and in view of the broad provisions of the Wheeler-Howard Act, it is my opinion that the Secretary of the Interior may in the future define and confine his power of supervision in accordance with the terms of the constitution adopted by the tribe itself and approved by him.
The Indian tribes have been accorded the widest possible latitude in regulating the domestic relations of their members. Indian custom marriage has been specifically recognized by Federal statute, so far as such recognition is necessary for purposes of inheritance.2 Indian custom marriage and divorce has been generally recognized by State and Federal courts for all other purposes. Where Federal law or written laws of the tribe do not cover the subject, the customs and traditions of the tribe are accorded the force of law, but these customs and traditions may be changed by the statutes of the Indian tribes. In defining and punishing offenses against the marriage relationship, the Indian tribe has complete and exclusive authority in the absence of legislation by Congress upon the subject. No law of the State controls the domestic relations of Indians living in tribal relationship. The authority of an Indian tribal council to appoint guardians for incompetents and minors is specifically recognized by statute,3 although this statute at the same time deprives such guardians of the power to administer Federal trust funds.
The completeness and exclusiveness of tribal authority over matters of domestic relationship is clearly set forth by Mr. Justice VanDevanter in the opinion of the Supreme Court in United States v. Quiver (241 U. S. 602, at 603-605):
At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian Intercourse Acts of May 19, 1796, c. 30, 1 Stat. 469, and of March, 1802, c. 13, 2 Stat. 139, provided for the punishment of various offenses by white persons against Indians and by Indians against white persons, but left untouched those by Indians against each other; and the act of June 30, 1834, c. 161, Sec. 25, 4 Stat. 729, 733, while providing that "so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country," qualified its action by saying, "the same shall not extend to crimes committed by one Indian against the person or property of another Indian." That provision with its qualification was later carried into the Revised Statutes as Sees. 2145 and 2146. This was the situation when this court, in Ex parte Crow Dog, 109 U. S. 556, held that the murder of an Indian by another Indian on an Indian reservation was not punishable under the laws of the United States and could be dealt with only according to the laws of the tribe. The first change came when, by the act of March 3, 1885, c. 341, Sec. 9, 23 Stat. 362, 385, now Sec. 328 of the Penal Code, Congress provided for the punishment of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary and larceny when committed by one Indian against the person or property of another Indian. In other respects the policy remained as before. After South Dakota became a State, Congress, acting upon a partial cession of jurisdiction by that State, c. 106, Laws 1901, provided by the act of February 2, 1903, c. 351, 32 Stat. 793, now Sec. 329 of the Penal Code, for the punishment of the particular offenses named in the act of 1885 when committed on the Indian reservations in that State, even though committed by others than Indians, but this is without bearing here, for it left the situation in respect of offenses by one Indian against the person or property of another Indian as it was after the act of 1885.
We have now referred to all the statutes. There is none dealing with bigamy, polygamy, incest, adultery or fornication, which in terms refers to Indians, these matters always having been left to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative officers.
Recognition of the validity of marriages and divorces consummated in accordance with tribal law or custom is found in the following cases:
Carney v. Chapman, 247 U. S. 102;
Boyer v. Dively, 58 Mo. 510;
Johnson v. Dunlap, 68 Okla. 216, 173 Pac. 359;
Cyr v. Walker, 29 Okla. 281, 116 Pac. 931;
Hallowell v. Commons, 210 Fed. 793;
Earl v. Godley, 42 Minn. 361;
Ortley v. Ross, 78 Neb. 339;
People ex rel. La Forte v. Rubin, 98 N. Y. Supp. 787;
Butler v. Wilson, 54 Okla. 229, 153 Pac. 823;
Proctor v. Foster, 107 Okla. 95, 230 Pac. 753;
Davis v. Reeder, 102 Okla. 106, 226 Pac. 880;
Pompey v. King, 101 Okla. 253, 225 Pac. 175;
Buck v. Branson, 34 Okla. 807, 127 Pac. 436;
Johnson v. Johnson, 30 Mo. 72;
Unussee v. McKinney, 270 Pac. 1096 (Okla.);
and cf. Connolly v. Woolrich (1867), 11 Lower Can. Jur. 197.
Legal recognition has not been withheld from marriages by Indian custom, even in those cases where Indian custom sanctioned polygamy. As was said in Kobogum v. Jackson Iron Co. (76 Mich. 498, 43 N. W. 602):
*** The testimony now in this case shows what, as matter of history, we are probably bound to know judicially, that among these Indians polygamous marriages have always been recognized as valid, and have never been confounded with such promiscuous or informal temporary intercourse as is not reckoned as marriage. While most civilized nations in our day very wisely discard polygamy, and it is not probably lawful anywhere among English-speaking nations, yet it is a recognized and valid institution among many nations, and in no way universally unlawful. We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes. They did not occupy their territory by our grace and permission, but by a right beyond our control. They were placed by the Constitution of the United States beyond our jurisdiction, and we have no more right to control their domestic usages than those of Turkey or India. *** We have here marriages had between members of an Indian tribe in tribal relations, and unquestionably good by the Indian rules. The parties were not subject in those
relations to the laws of Michigan, and there was no other law interfering with the full jurisdiction of the tribe over personal relations. We cannot interfere with the validity of such marriages without subjecting them to rules of law which never bound them.
See, to the same effect, State v. McKenney (18 Nev. 182, 200).
The jurisdiction of a tribal court over divorce actions is recognized in Raymond v. Raymond (83 Fed. 721); 19 Ops. Atty. Gen. 109 (1888).
It is well settled that an Indian tribe has the power to prescribe the manner of descent and distribution of the property of its members, in the absence of contrary legislation by Congress. Such power may be exercised through unwritten customs and usages, or through written laws of the tribe. This power extends to personal property as well as to real property By virtue of this authority an Indian tribe may restrict the descent of property on the basis of Indian blood or tribal membership, and may provide for the escheat of property to the tribe where there are no recognized heirs. An Indian tribe may, if it so chooses, adopt as its own the laws of the State in which it is situated and may make such modifications in these laws as it deems suitable to its pecular conditions.
The only general statutes of Congress which restrict the power of an Indian tribe to govern the descent and distribution of property of its members are section 5 of the General Allotment Act (U. S. Code, Title 25, Sec. 348)1, which provides that allotments of land shall descend "according to the laws of the State or Territory where such land is located", the act of June 25, 1910, c. 431, Sec. 1, 36 Stat. 855 (U. S. Code, Title 25, Sec. 372),2 which provides that the Secretary of the Interior shall have unreviewable discretion to determine the heirs of an Indian in ruling upon the inheritance of individual allotments issued under the authority of the General Allotment Law, and section 2 of the same act (U. S. Code, Title 25, Sec. 373),3 which gives the Secretary of the Interior final power to approve and disapprove Indian wills devising restricted property.
These statutes abolished the former tribal power over the descent and distribution of property, with respect to allotments of land made under the General Allotment Act, and rendered tribal rules of testamentary disposition subject to the authority of the Secretary of the Interior. They do not, however, affect interstate succession to personal property or interests in land other than allotments (e. g., possessory interests in land to which title is retained by the tribe). With respect to all property other than allotments of land made under the General Allotment Act, the inheritance laws and customs of the Indian tribe are still of supreme authority.4
The authority of an Indian tribe in the matter of inheritance is clearly recognized by the United States Supreme Court in the case of Jones v. Meehan (175 U. S. 1), in which it was held that the eldest male child of a Chippewa Indian succeeded to his statutory allotment in accordance with tribal law. The court declared:
The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only.
But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, the right of inheritance in his land, at
the time of his death, was controlled by the laws, usages and customs of the tribe, and not by the law of the State of Minnesota, nor by any action of the Secretary of the Interior. (At page 29.)
In reaching this conclusion the Supreme Court relied upon the following cases:
United States v. Shanks (15 Minn. 369);
Dole v. Irish (2 Barb. [N. Y.] 639);
Hastings v. Farmer (4 N. Y. 293, 294);
The Kansas Indians (5 Wall. 737);
Waupemanqua v. Aldrich (28 Fed. 489);
Brown v. Steele (23 Kansas 672);
Richardville v. Thorp (28 Fed. 52).
In the case of Jones v. Meehan, supra, the tribal authority was exercised through immemorial usage. Other tribes, however, have exercised a similar authority through written laws.
In the case of Gray v. Cofman (3 Dill. 393, 10 Fed. Cases No. 5714), the court held that the validity of the will of a member of the Wyandot tribe depended upon its conformity with the written laws of the tribe. The court declared:
The Wyandot Indians, before their removal from Ohio had adopted a written constitution and laws, and among others, laws relating to descent and wills. These are in the record, and are shown to have been copied from the laws of Ohio, and adopted by the Wyandot tribe, with certain modifications, to adapt them to their customs and usages. One of these modifications was that only living children should inherit, excluding the children of deceased children, or grandchildren. The Wyandot council, which is several times referred to in the treaty of 1855, was an executive and judicial body, and had power, under the laws and usages of the nation, to receive proof of wills, etc.; and this body continued to act, at least to some extent, after the treaty of 1855.
*** under the circumstances, the court must give effect to the well established laws, customs, and usages of the Wyandot tribe of Indians in respect to the disposition of property by descent and will.
In the case of O'Brien v. Bugbee (46 Kan. 1, 26 Pac. 428), it was held that a plaintiff in ejectment could not recover without positive proof that under tribal custom he was lawful heir to the property in question. In the absence of such proof, it was held that title to the land escheated to the tribe, and that the tribe might dispose of the land as it saw fit.
Tribal autonomy in the regulation of descent and distribution is recognized in the case of Woodin v. Seeley (141 Misc. 207; 252 N. Y. Supp. 818). In this case, and in the case of Patterson v. Council of Seneca Nation (245 N. Y. 433; 157 N. E. 734), the supremacy of tribal law in matters of inheritance and membership rights is defended on the ground:
that when Congress does not act no law runs on an Indian reservation save the Indian tribal law and custom.
In the case of Y-Ta-Tah-Wah v. Rebock (105 Fed. 257), the plaintiff, a medicine-man imprisoned by the federal Indian agent and county sheriff for practicing medicine without a license, brought an action of false imprisonment against these officials, and died during the course of the proceedings. The court held that the action might be continued, not by an administrator of the decedent's estate appointed in accordance with state law, but by the heirs of the decedent by Indian custom. The court declared, per Shiras, J.:
If it were true that, upon the death of a tribal Indian, his property, real and personal, became subject to the laws of the state directing the mode of distribution of estates of decedents, it is apparent that irremediable confusion would be caused thereby in the affairs of the Indians *** (At page 262.)
In a case involving the right of an illegitimate child to inherit property, the authority of the tribe to pass upon the status of illegitimates was recognized in the following terms:
The Creek Council, in the exercise of its lawful function of local self-government, saw fit to limit the legal rights of an illegitimate child to that of sharing in the estate of his putative father, and not to confer upon such child generally the status of a child born in lawful wedlock. (Oklahoma Land Company v. Thomas, 34 Okla. 681, 127 Pac. 8).
See, to the same effect, Butler v. Wilson (54 Okla. 229, 153 Pac. 823).
In the case of Dole v. Irish (2 Barb. 639) it was held that a surrogate of the State of New York has no power to grant letters of administration to control the disposition
of personal property belonging to a deceased member of the Seneca tribe. The court declared:
I am of the opinion that the private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration; and that the letters of administration granted by the surrogate to the plaintiff are void. I am also of the opinion that the distribution of Indian property according to their customs passes a good title, which our courts will not disturb; and therefore that the defendant has a good title to the horse.in question, and must have judgment on the special verdict. (At pages 642-643.)
In George v. Pierce (148 N. Y. Supp. 230), the distribution of real and personal property of the decedent through the Onondaga custom of the "dead feast" is recognized as controlling all rights of inheritance.
In the case of Mackey v. Coxe (18 How. 100), the Supreme Court held that letters of administration issued by a Cherokee court were entitled to recognition in another jurisdiction, on the ground that the status of an Indian tribe was in fact similar to that of a Federal territory.
In the case of Meeker v. Kaelin (173 Fed. 216), the court recognized the validity of tribal custom in determining the descent of real and personal property and indicated that the tribal custom of the Puyallup band prescribed different rules of descent for real and for personal property.
Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.
The case of Buster v. Wright (135 Fed. 947, app. dism. 203 U. S. 599), contains an excellent analysis of the taxing power of the Creek Nation:
Repeated decisions of the courts, numerous opinions of the Attorneys General, and the practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek Nation had lawful authority to require the payment of this tax as a condition precedent to the exercise of the privilege of trading within its borders, and that the executive department of the government of the United States had plenary power to enforce its payment through the Secretary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police. Morris v. Hitchcock, 194 U. S. 384, 392, 24 Sup. Ct. 712, 48 L. Ed. 1030; Crabtree v. Madden, 4 C. C. A. 408 410, 413, 54 Fed. 426, 428, 431; Maxey v. Wright, 3 Ind. T. 243, 54 S. W. 807; Maxey v. Wright, 44 C. C. A. 683, 105 Fed. 1003; 18 Opinions of Attorneys General, 34, 36; 23 Opinions of Attorneys General, 214, 217, 219, 220, 528. *** It may not be unwise, before entering upon the discussion of this proposition, to place clearly before our minds the character of the Creek Nation and the nature of the power which it is attempting to exercise.
The authority of the Creek Nation to prescribe the terms upon which noncitizens may transact business within its borders did not have its origin in act of Congress, treaty, or agreement of the United States. It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the superior power of the republic it is taken from it. Neither the authority nor the power of the United States to license its citizens to trade in the Creek Nation, with or without the consent of that tribe, is in issue in this case, because the complainants have no such licenses. The plenary power and lawful authority of the government of the United States by license, by treaty, or by act of Congress to take from the Creek Nation every vestige of its original or acquired governmental authority and power may be admitted, and for the purposes of this decision are here conceded. The fact remains nevertheless that every original attribute of the government of the Creek Nation still exists intact which has not been destroyed or limited by act of Congress or by the contracts of the Creek tribe itself.
Originally an independent tribe, the superior power of the republic early reduced this Indian people to a "domestic, dependent nation" (Cherokee Nation v. State of Georgia, 5 Pet. 1-20, 8 L. Ed. 25), yet left it a distinct political entity, clothed with ample authority to govern its inhabitants and to manage its domestic affairs through officers of its own selection, who under a Constitution modeled after that of the United States, exercised legislative executive and judicial functions within its territorial jurisdiction for more than half a century. The governmental jurisdiction of this nation was neither conditioned nor limited by the original title by occupancy to the lands within its territory.
*** Founded in its original national sovereignty, and secured by these treaties, the governmental authority of the Creek Nation, subject always to the superior power of the republic, remained practically unimpaired until the year 1889. Between the years 1888 and 1901 the United States by various acts of Congress deprived this tribe of all its judicial power, and curtailed its remaining authority until its powers of government have become the mere shadows of their former selves. Nevertheless its authority to fix the terms upon which noncitizens might conduct business within its territorial
boundaries guarantied by the treaties of 1832, 1856, and 1866, and sustained by repeated decisions of the courts and opinions of the Attorneys General of the United States, remained undisturbed.
*** It is said that the sale of these lots and the incorporation of cities and towns upon the sites in which the lots are found authorized by act of Congress to collect taxes for municipal purposes segregated the town sites and the lots sold from the territory of the Creek Nation, and deprived it of governmental jurisdiction over this property and over its occupants. But the jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it, or by the existence of municipalities therein endowed with power to collect taxes for city purposes, and to enact and enforce municipal ordinances. Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners. (At pp. 949-952.)
A similar opinion was rendered by the Attorney General (23 Ops. Atty. Gen. 528)with respect to the right of the Cherokee Nation to impose an export tax on hay grown within the limits of the reservation. The opinion of the Attorney General suggested that tribal authority to impose such a tax would remain "even if the shipper was the absolute owner of the land on which the hay was raised." This suggestion was referred to and approved by the United States Supreme Court in Morris v. Hitchcock (194 U. S. 384, 392).
In the latter case, the Court of Appeals of the District of Columbia, considering the validity of a tax or fee imposed by the Chickasaw Nation upon the owners of all cattle grazed within the Chickasaw territory, analyzed the status and powers of the Chickasaw Nation in these terms:
A government of the kind necessarily has the power to maintain its existence and effectiveness through the exercise of the usual power of taxation upon all property within its limits, save as may be restricted by its organic law. Any restriction in the organic law in respect of this ordinary power of taxation, and the property subject thereto, ought to appear by express provision or necessary implication. Board Trustees v. Indiana, 14 How. 268, 272; Talbott v. Silver Bow Co., 139 U. S. 438, 448. Where the restriction upon this exercise of power by a recognized government, is claimed under the stipulations of a treaty with another, whether the former be dependent upon the latter or not, it would seem that its existence ought to appear beyond a reasonable doubt. We discover no such restriction in the clause of Article 7 of the Treaty of 1855, which excepts white persons from the recognition therein of the unrestricted right of self-government by the Chickasaw. Nation,. and its full jurisdiction over persons and property within its limits. The conditions of that exception may be fully met without going to the extreme of saying that it was also intended to prevent the exercise of the power to consent to the entry of noncitizens, or the taxation of property actually within the limits of that government and enjoying its benefits. (Morris v. Hitchcock, 21 App. D. C. 565, 593.)
In the case of Maxey v. Wright (3 Ind. T. 243, 54 S. W. 807, aff'd105 Fed. 1003), the right of an Indian tribe to levy a tax upon a nonmember of the tribe
residing on its reservation was held to be an essential attribute of tribal sovereignty, which might be curtailed by express
language of a treaty or statute, but otherwise remained intact.
In that case the court declared:
*** in the absence of express contradictory provisions by treaty, or by statute of the United States, the Nation (and not a citizen) is to declare who shall come within the boundaries of its occupancy, and under what conditions. (At page 36.)
See, to the same effect, 17 Ops. Atty. Gen. 134; 18 Ops. Atty. Gen. 34.
In view of the fact, however, that Congress has conferred upon the Commissioner of Indian Affairs exclusive jurisdiction to
appoint traders on Indian reservations and to prescribe the terms and conditions governing their admission and operations
(see Secs. 261 and 262, Title 25, U. S. Code), an Indian tribe is without power to levy a tax upon such licensed traders unless
authorized by the Commissioner of Indian Affairs so to do.
The power of an Indian tribe to exclude nonmembers of the tribe from entering upon the reservation was first clearly formulated in an opinion of the Attorney General rendered in 1821 with respect to the lands of the Seneca Indians:
So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. (1 Op. Atty. Gen. 465, 466).
It was further said in the course of this opinion that even the United States Government could not enter the Seneca lands, for the purpose of building a road or for any other purpose, without the consent of the Indians.
Although the last implication of this doctrine, if originally valid, has been superseded by many statutes authorizing and directing officers and agents of the United States to enter upon Indian lands for various purposes, the basic principle that an Indian tribe may exclude private individuals from the territory within its jurisdiction,or prescribe the conditions upon which such entry will be permitted, has been followed in a long line of cases.
Two grounds for this power of exclusion are established by the decided cases: first, the Indian tribe may exercise, over all tribal property, the rights of a landowner; second, the tribe may, in the exercise of local self-government, regulate the relations between its members and other persons, so far as may be consistent with Congressional statutes governing trade and intercourse.
In Rainbow v. Young (161 Fed. 835), it was held that the Indian superintendent and Indian police had power to remove an attorney seeking to collect fees on a day when lease money was being paid to the Indians. In addition to the specific authority to remove undesirable persons granted by Revised Statutes, sec. 2149 (recently repealed by act of May 21, 1934, Public No. 242, 73d Congress), the court found that the power to remove nonresidents was incidental to the general powers of a landowner, which the United States was qualified to exercise with respect to Indian lands:
Besides, the reservation from which Mr. Sloan was removed is the property of the United States, is set apart and used as a tribal reservation and in respect of it the United States has the rights of an individual proprietor (citing cases) and can maintain its possession and deal with intruders in like manner as can an individual in respect of his property. (At p. 837.)
See, to the same effect, United States v. Mullin (71 Fed. 682); 20 Op. Atty. Gen. 245, holding that an injunction by a State court might properly be disobeyed; 14 Op. Atty. Gen. 451. And with respect to the general power of a government as a landowner to remove intruders see Canfield v. United States (167 U. S. 518, 524).
As was said in the case of Stephenson v. Little (18 Mich. 433), in which it was held that the United States Government as a landowner might, through officials of the Land Office, seize and direct the sale of timber cut on public lands even though other timber had been mixed with that so cut:
It seems to me there can be no doubt that the Government has all the common law rights of an individual in respect to depredations committed on its property, and that where there is no statute making it the duty of any particular official to enforce those rights, it is ex necessitate rei made the duty of the Executive Department of the Government to enforce them. (At page 440.)
What is here said of the rights of the United States Government may be said with equal force of the rights of an Indian tribe. In an unallotted reservation, an Indian tribe occupies the position of a landowner in equity, if not in strict law. (United States v. Sturgeon, 6 Sawy. 29, 27 Fed. Cas. No. 16, 413.)
The cases cited with respect to the power of an Indian tribe to tax nonmembers, as a condition of entry or residence within the jurisdiction of the tribe, confirm the foregoing conclusions, and indicate further that the power of an Indian tribe to exclude nonmembers is not limited to lands in tribal ownership.
Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority. Morris v. Hitchcock (194 U. S. 384) and other cases cited under heading "The Taxing Power of an Indian Tribe".
The powers of an Indian tribe with respect to property derive from two sources. In the first place, the tribe has all the rights and powers of a property owner with respect to tribal property. In the second place, the Indian tribe has, among its powers of sovereignty, the power to regulate the use and disposition of individual property among its members.
The powers of an Indian tribe over tribal property are no less absolute than the powers of any landowner, save as restricted by general acts of Congress restricting the alienation or leasing of tribal property,1 and particular acts of Congress designed to control the disposition of particular funds or lands.
The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create any vested rights in the occupant as against the tribe is supported by a long line of court decisions:
Sizemore v. Brady, 235 U. S. 441;
Franklin v. Lynch, 233 U. S. 269;
Gritts v. Fisher, 224 U. S. 640;
Journeycake v. Cherokee Nation and United States, 28 Ct. Cls. 281;
Sac and Fox Indians of Iowa v. Sac and Fox Indians of Oklahoma and the United States, 45 Ct. Cls. 287, aff'd 220 U. S. 481;
Hayes v. Barringer, 168 Fed. 221;
Dukes v. Goodall, 5 Ind. T. 145, 82 S. W. 702;
In re Narragansett Indians, 20 R. I. 715;
Terrance v. Gray, 156 N. Y. Supp. 916;
Reservation Gas Co. v. Snyder, 88 Misc. 209; 150 N. Y. Supp. 216;
Application of Parker, 237 N. Y. Supp. 135;
McCurtain v. Grady, 1 Ind. T. 107, 38 S. W. 65;
Whitmire, trustee, v. Cherokee Nation, 30 Ct. Cls. 138;
Myers v. Mathis, 2 Ind. T. 3; 46 S. W. 178.
In the case of Sizemore v. Brady, supra, the Supreme Court declared:
lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. (At p. 446.)
Similarly, in Franklin v. Lynch, supra, the Supreme Court declared:
As the tribe could not sell, neither could the individual members, for they had neither an undivided interest in the tribal land nor vendible interest in any particular tract. At p. 271.)
In the case of Journeycake v. Cherokee Nation and the United States, supra, the Court of Claims carefully analyzed the laws and constitutional provisions of the Cherokee Nation and found that property within the jurisdiction of the Nation was of two kinds: communal property in which each individual had exclusive rights of occupancy in particular tracts, rights not subject to transfer or disposition except according to prescribed rules; and national property held by the tribe itself. With respect to the former type of property, the court declared:
The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies his right of property does not descend; if he removes from the community it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property in the land as perfect as that of any other person; and his children after him will enjoy all that he enjoyed, not as heirs but as communal owners.
Analyzing the status of tribal lands not subject to individual occupancy, the court declared:
With this power of regulation and control of the public domain, and the jus disponendi lodged in the government of the Nation, it is plain that the communal element has been reduced to a minimum and exists only in the occupied lands. And it is manifest that with the growth of civilization, with all of its intricacies, and manifold requirements, the communal management of the public domain would have been utterly insufficient, and if it had continued would have been a barrier to the advancement of civilization itself.
With these powers of absolute ownership lodged in the Cherokee government, the power to alienate, the power to lease, the power to grant rights of occupancy, the power to restrict rights of occupancy, and with the exercise of those powers running back to the very year of the adoption of the constitution, and receiving from that time to the present, the unquestioning acquiescence of the former communal owners, the Cherokee people, it is apparent that the "public domain" of the Cherokee Nation is analogous to the "public lands" of the United States or the "demesne lands of the Crown," and that it is held absolutely by the Cherokee government, as all public property is held, a trust for governmental purposes and to promote the general welfare.
Similarly, in the case of Hayes v. Barringer, supra, the court declared, in considering the status of Choctaw and Chickasaw tribal lands:
*** At that time these were the lands of the Choctaw and Chickasaw Nations, held by them, as they held all their lands, in trust for the individual members of their tribes, in the sense in which the public property of representative governments is held in trust for its people. But these were public lands, and, while the enrolled members of these tribes undoubtedly had a vested equitable right to their just shares of them against strangers and fellow members of their tribes, they had no separate or individual right to or equity in any of these lands which they could maintain against the legislation of the United States or of the Indian Nations. Stephens v. Cherokee Nation, 174 U. S. 445, 488, 19 Sup. Ct. 722, 43 L. Ed. 1041; Cherokee Nation v. Hitchcock, 187 U. S. 294, 23 Sup. Ct. 115, 47 L. Ed. 183; Lone Wolf v. Hitchcock, 187 U. S. 553, 23 Sup. Ct. 216, 47 L. Ed. 299; Wallace v. Adams, 143 Fed. 716, 74 C. C. A. 540; Ligon v. Johnston (C. C. A.) 164 Fed. 670.
So, too, in United States v. Lucero (1 N. M. 422), title to lands within a pueblo is recognized to lie in the pueblo itself, rather than in the individual members thereof.
The extent of any individual's interest in tribal property is subject to such limitations as the tribe may see fit to impose.
Thus in Reservation Cots Co. v. Snyder, supra, it was held that an Indian tribe might dispose of minerals on tribal lands which had been assigned to individual Indians for private occupancy, since the individual occupants had never been granted any specific mineral rights by the tribe.
In Terrance v. Gray, supra, it was held that no act of the occupant of assigned tribal land could terminate the control duly exercised by the chiefs of the tribe over the use and disposition of the land.
In Application of Parker, supra, it was held that the Tonawanda Nation of Seneca Indians had the right to dispose of minerals on the tribal allotments of its members and that the individual allottee had no valid claim for damages.
In the case of McCurtain v. Grady, supra, a provision of the Choctaw constitution conferring upon the discoverer of coal the right to mine all coal within a mile radius of the point of discovery was upheld as a valid exercise of tribal power.
In Whitmire, trustee, v. Cherokee Nation, supra, the Court of Claims held that the general property of the Cherokee Nation, under the provisions of the Cherokee constitution, might be used for public purposes, but could not be diverted to per capita payments to a favored class.
The chief limitation upon tribal control of membership rights in tribal property is that found in acts of Congress guaranteeing to those who sever tribal relations to take up homesteads on the public domain,1 and to children of white men and Indian women, under certain circumstances,2 a continuing share in the tribal property. Except for these general limitations and other specific statutory limitations found in enrollment acts and other special acts of Congress, the proper authorities of an Indian tribe have full authority to regulate the use and disposition of tribal property by tile members of the tribe.
The authority of a tribal council to lease tribal lands is specifically confirmed by U. S. Code, title 25, sections 397, 398 and 402.1 Although the exercise of such authority is made subject to the approval of the Secretary of the Interior, it has been said that:
From the language of this statute it appears reasonably certain that it was the legislative purpose to confer primary authority upon the Indians, and that the determination of the council should be conclusive upon the government, at least in the absence of any evidence of fraud or undue influence. (White Bear v. Barth, 61 Mont. 322, 203 Pac. 517.)
U. S. Code, title 25, section 179, which imposes a penalty upon persons driving stock to range upon the lands of an Indian tribe, has been construed as recognizing the right of the tribe to permit the use of its lands for grazing purposes, for a consideration.
See: United States v. Hunter, 4 Mackey (D. C.) 531; Kirby v. United States, 273 Fed. 391, aff'd 260 U. S. 423.
Similarly, U. S. Code, title 25, section 180, imposing a penalty upon persons settling on Indian lands, has been judicially interpreted as implying that an Indian tribe has power to permit such settlement upon such terms as it may prescribe. The cases on this subject have been analyzed under the heading "The Power of an Indian Tribe to Exclude Nonmembers From Its Jurisdiction."
The authority of an Indian tribe in matters of property is not restricted to those lands or funds over which it exercises the rights of ownership. The sovereign powers of the tribe extend over the property as well as the person of its members.
Thus, in Crabtree v. Madden (54 Fed. 426), it is recognized that questions of the validity of contracts among members of the tribe are to be determined according to the laws of the tribe.
See, to the same effect: In re Sah Quah, 31 Fed. 327; Jones v. Laney, 2 Tex. 342.
In the latter case the question arose whether a deed of manumission freeing a negro slave, executed by a Chickasaw Indian within the territory of the Chickasaw nation, was valid. The lower court had charged the jury "that their (Chickasaw) laws and customs and usages, within the limits defined to them, governed all property belonging to any one domesticated and living with them." Approving this charge, upon the basis of which the jury had found the deed to be valid, the appellate court declared:
Their laws and customs, regulating property, contracts, and the relations between husband wife, have been respected, when drawn into controversy, in the courts of the State and of the United States.(At p. 348.)
In the case of Delaware Indians v. Cherokee Nation (38 Ct. Cls. 234, decree mod.193 U. S. 127), it is said:
The law of real property is to be found in the law of the situs. The law of real property in the Cherokee country, therefore, is to be found in the constitution and laws of the Cherokee Nation.
In the case of Myers v. Mathis, supra, the validity of a Chickasaw statute of limitations, whereby an individual Indian suffered a loss of his improvements by reason of his absence for a fixed period, was upheld.
In the case of James H. Hamilton v. United States (42 Ct. Cls. 282), it appeared that land, buildings and personal property owned by the claimant, a licensed trader, within the Chickasaw Reservation, had been confiscated by an act of the Chickasaw legislature. The plaintiff brought suit to recover damages on the theory that such confiscation constituted an "Indian depredation". The Court of Claims dismissed the suit, declaring:
The claimant by applying for and accepting a license to trade with the Chickasaw Indians, and subsequently acquiring property within the limits of their reservation, subjected the same to the jurisdiction of their laws. (At. p. 287.)
The authority of an Indian tribe to impose license fees upon persons engaged in trade with its members within the boundaries of the reservation is confirmed in Zevely v.Weimer (5 Ind. T. 646, 82 S. W. 941), as well as in the various cases cited under the heading "The Taxing Power of an Indian Tribe."
The power of an Indian tribe to regulate the inheritance of individual property owned by members of the tribe has been analyzed under a separate heading.
It clearly appears, from the foregoing cases, that the powers of an Indian tribe are not limited to such powers as it may exercise in its capacity as a landowner. In its capacity as a sovereign, and in the exercise of local self-government, it may exercise powers similar to those exercised by any State or Nation in regulating the use and disposition of private property, save in so far as it is restricted by specific statutes of Congress.
The laws and customs of the tribe, in matters of contract and property generally (as well as on questions of membership, domestic relations, inheritance, taxation, and residence), may be lawfully administered in the tribunals of the tribe, and such laws and customs will be recognized by courts of State or Nation in cases coming before these courts.1
The powers of an Indian tribe in the administration of justice derive from the substantive powers of self-government which are legally recognized to fall within the domain of tribal sovereignty. If an Indian tribe has power to regulate the marriage relationships of its members, it necessarily has power to adjudicate, through tribunals established by itself, controversies involving such relatidnships. So, too, with other fields of local government in which our analysis has shown that tribal authority endures. In all these fields the judicial powers of the tribe are co-extensive with its legislative or executive powers.
Washburn v. Parker (7 Fed. Sup. 120);
Raymond v. Raymond, (83 Fed. 721);
19 Op. Atty. Gen. 109 (1888);
7 Op. Atty. Gen. 174 (1855).
The decisions of Indian tribal courts, rendered within their jurisdiction and according to the forms of law or custom recognized by the tribe, are entitled to full faith and credit in the courts of the several states.
As was said in the case of Standley v. Roberts (59 Fed. 836, app. dism. 17 Sup. Ct. 999 men.)
*** the judgments of the courts of these nations, in cases within their jurisdiction, stand on the same footing with those of the courts of the territories of the Union and are entitled to the same faith and credit. (At page 845.)
And in the case of Raymond v. Raymond, supra, the court declared:
The Cherokee Nation *** is a distinct political society, capable of managing its own affairs and governing itself. It may enact its own laws, though they. may not be in conflict with the constitution of the United States. It may maintain its own judicial tribunals, and their judgments and decrees upon the rights of the persons and property of members of the Cherokee Nationas against each other are entitled to all the faith and credit accorded to the judgments and decrees of territorial courts. (At page 722.)
See, also, Nofire v. United States (164 U. S. 657); Mehlin v. Ice (56 Fed. 12).
The question of the judicial powers of an Indian tribe is particularly significant in the field of law and order. For in the fields of civil controversy the rules and decisions of the tribe and its officers have a force that state courts and Federal courtswill respect. But in accordance with the well settled principle that one sovereign will not enforce the criminal laws of another sovereign, state courts and Federal courts alike must decline to enforce penal provisions of tribal law. Responsibility for the maintenance of law and order is therefore squarely upon the Indian tribe, unless this field of jurisdiction has been taken over by the states or the Federal government.
It is illuminating to deal with the question of tribal criminal jurisdiction as we have dealt with other questions of tribal authority, by asking, first, what the original sovereign powers of the tribes were, and then, how far and in what respects these powers have been limited.
So long as the complete and independent sovereignty of an Indian tribe was recognized, its criminal jurisdiction, no less than its civil jurisdiction, was that of any sovereign power. It might punish its subjects for offenses against each other or against aliens and for public offenses against the peace and dignity of the tribe. Similarly, it might punish aliens within its jurisdiction according to its own laws and customs.1 Such jurisdiction continues to this day, save as it has been expressly limited by the acts of a superior government.
It is clear that the original criminal jurisdiction of the Indian tribes has never been transferred to the States. Sporadic attempts of the States to exercise jurisdiction over offenses between Indians, or between Indians and whites, committed on an Indian reservation, have been held invalid usurpation of authority.
The principle that a State has no criminal jurisdiction over offenses involving Indians committed on an Indian reservation is too well established to require argument, attested as it is by a line of cases that reaches back to the earliest years of the Republic.
See
Worcester v. Georgia, 6 Pet. 515;
United States v. Kagama, 118 U. S. 375;
United States v. Thomas, 151 U. S. 577;
Toy v. Hopkins, 212 U. S. 542;
United States v. Celestine, 215 U. S. 278;
Donnelly v. United States, 228 U. S. 245;
United States v. Pelican, 232 U. S. 442;
United States v. Ramsey, 271 U. S. 467;
United States v. King, 81 Fed. 625;
In re Lincoln, 129 Fed. 297;
United States v. Hamilton, 223 Fed. 685;
Yohyowan v. Luce, 291 Fed. 425;
State v. Campbell, 53 Minn. 354, 55 N. W. 553;
State v. Big Sheep, 75 Mont. 219, 243 Pac. 1067;
Ex parte Cross, 20 Nebr. 417;
People ex rel. Cusick v. Daly, 212 N. Y. 183, 105 N. E. 1048;
State v. Cloud, 228 N. W. 611 (Minn.);
State v. Rufus, 237 N. W. 671 (Wis.).
A State, of course, has jurisdiction over the conduct of an Indian off the reservation.2 A State also has jurisdiction over some, but not all acts of non-Indians within a reservation.3 But the relations between whites and Indians in "Indian country" and the conduct of Indians themselves in Indian country are not subject to the laws or the courts of the several States.
The denial of State jurisdiction, then, is dictated by principles of constitutional law.
On the other hand, the constitutional authority of the Federal Government to prescribe laws and to administer justice upon the Indian reservation is plenary. The question remains how far Congress has exercised its constitutional powers.
The basic provisions of Federal law with regard to Indian offenses are found in sections 217 and 218 of U. S. Code, Title 25:
Sec. 217. General laws as to punishment extended to Indian country. Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. (R. S. Sec. 2145.)
Sec. 218. Exceptions as to extension of general laws. The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local
law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. (R. S. Sec. 2146; Feb. 18, 1875, c. 80, Sec. 1, 18 Stat. 318.)
These provisions recognize that, with respect to crimes ommitted by one Indian against the person or property of another Indian, the jurisdiction of the Indian tribe is plenary. These provisions further recognize that, In addition to this general jurisdiction over offenses between Indians, an Indian tribe may possess, by virtue of treaty stipulations, other fields of exclusive jurisdiction (necessarily including jurisdiction over cases involving non-Indians). "The local law of the tribe" is further recognized to the extent that the punishment of an Indian under such law must be deemed a bar to further prosecution, under any applicable Federal laws, even though the offense be one against a non-Indian.
Such was the law when the case of Ex parte Crow Dog (109 U. S. 556), which has been discussed in an earlier connection, arose. The United States Supreme Court there held that Federal courts had no jurisdiction to prosecute an Indian for the murder of another Indian committed on an Indian reservation, such jurisdiction never having been withdrawn from the original sovereignty of the Indian tribe.
Shortly before the decision in this case, an opinion had been rendered by the Attorney General in another Indian murder case holding that where an Indian of one tribe had murdered an Indian of another tribe on the reservation of a third tribe, even though it was not shown that any of the tribes concerned had any machinery for the administration of justice, the Federal courts had no right to try the accused. The opinion concluded:
If no demand for Foster's surrender shall be made by one or other of the tribes, founded fairly upon a violation of some law of one or other of them having jurisdiction of the offense in question according to general principles, and by forms substantially conformable to natural justice, it seems that nothing remains except to discharge him. (17 Ops. Atty. Gen. 566, 570.)
A similar decision had been reached in State courts. See State v. McKenney (18 Nev. 182).
The right of an Indian tribe to inflict the death penalty had been recognized by Congress, in the report cited above, at page 20.
Following the Crow Dog decision, Congress passed the act of March 3, 1885, Sec. 9 (23 Stats. L. 385), which, with an amendment, became Sec. 328 of the U. S. Criminal Code of 1910 and now Sec. 548 of Title 18 of the U. S. Code. This section provides for the prosecution in the Federal courts of Indians committing, within Indian reservations, any of the ten (formerly seven, then eight) specifically mentioned offenses (whether against Indians or against non-Indians), viz; murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny.1
Although this statute does not expressly terminate tribal jurisdiction over the enumerated crimes, and might, if the question were an original one, be interpreted as conferring only a concurrent jurisdiction upon the Federal courts, it has been construed for many years as removing all jurisdiction over the enumerated crimes from the Indian tribal authorities.
Thus, in the case of United States v. Whaley (37 Fed. 145), which arose soon after the passage of the statute in question, it had appeared fitting to the tribal council of the Tule River Reservation that a medicine man who was believed to have poisoned some twenty-one deceased patients should be executed, and he was so executed. The four tribal executioners were found guilty of manslaughter, in the Federal court, on the theory that the act of March 3, 1885, had terminated tribal jurisdiction over murder cases. Whether tribal authorities may still inflict the death penalty for offenses other than the enumerated ten major crimes is a matter of some doubt.
The lacunae in this brief criminal code of ten commandments are serious, and indicate the importance of tribal jurisdiction in the field of law and order.
"Assault" cases that do not involve a "dangerous weapon" or where "intent to kill" cannot be proven, cannot be prosecuted in the Federal court, no matter how brutal the attack may be, or how near death the victim is placed, if death does not actually ensue; men brutally beating their wives and children are, therefore, exempt from prosecution in the Federal courts, and as above shown, the State courts do not have jurisdiction. Even assault with intent to commit rape or great bodily injury is not punishable under any Federal statute.1
Aside from rape and incest the various offenses involving the relation of the sexes (e. g., adultery, seduction, bigamy, and solicitation), as well as those involving the responsibility of a man for the support of his wife and children are not within the cases that can be prosecuted in Federal courts.2
Other offenses which may be mentioned, to which no State or Federal laws now have application, and over which no State or Federal court now has any jurisdiction, are: kidnapping, receiving stolen goods, poisoning (if the victim does not die) obtaining money under false pretenses, embezzlement, blackmail, libel, forgery, fraud, trespass, mayhem, bribery, killing of another's live stock, setting fire to prairie or timber, use of false weights and measures, carrying concealed weapons, gambling, disorderly conduct, malicious mischief, pollution of water supplies, and other offenses against public health.3
It is not clear whether the foregoing offenses, which are not punishable in the Federal courts when committed by one Indian against another, are likewise exempt from punishment when committed by a non-Indian against an Indian, or by an Indian against a non-Indian, if the offense occurs within the boundaries of Indian country.
In these circumstances the wrongdoer is clearly not subject to State law. He is, however, subject to the provisions of the United States Criminal Code which deals with a meager list of "offenses within admiralty, maritime and territorial jurisdiction of the United States."4 The offenses specifically dealt with in this Federal criminal code do not include any of the offenses above enumerated except simple assault, various sex offenses, receiving stolen goods, and attempts at murder. There is, however, in the United States Criminal Code a provision (U. S. Code, Title 18, Sec. 468) which makes acts committed upon land within the exclusive jurisdiction of the United States subject to Federal prosecution whenever made criminal by State law. It may be argued that that this provision applies to offenses committed by an Indian against a non-Indian or by a non-Indian against an Indian, but no decision so holding has been found.5
On the foregoing analysis the limitations of Federal jurisdiction in the Indian country are apparent. The only offenses punishable in the Federal courts when committed within an Indian reservation are: The ten major crimes specially designated in U. S. Code, title 18, section 548; the special "reservation offenses" included in U. S. Code, title 25 (chiefly involving the sale of liquor); the ordinary Federal crimes applicable throughout the United States (such as counterfeiting, smuggling,6 and offensesrelative to the mails), and, with respect to offenses committed by an Indian against a, non-Indian or by a non-Indian against an Indian, the special "territorial" offenses for which punishment is provided in chapters 11 and 13 of U. S. Code, title 18.
The difficulties of this situation have prompted agitation for the extension of Federal or State laws over the Indian country, which has continued for at least five decades, without success.7
The propriety of the object sought is not here in question, but the agitation itself is evidence of the large area of human conduct which must be left in anarchy if it be held that tribal authority to deal with such conduct has disappeared.
Fortunately such tribal authority has been repeatedly recognized by the courts, and although it has not been actually exercised always and in all tribes, it remains a proper legal basis for the tribal administration of justice wherever an Indian tribe desires to make use of its legal powers.
The recognition of tribal jurisdiction over the offenses of tribal Indians accorded by the Supreme Court in Ex parte Crow Dog, supra, and United States v. Quiver, supra, indicates that the criminal jurisdiction of the Indian tribes has not been curtailed by the failure of certain tribes to exercise such jurisdiction, or by the inefficiency of its attempted exercise, or by any historical changes that have come about in the habits and customs of the Indian tribes. Only specific legislation terminating or transferring such jurisdiction can limit the force of tribal law.
A recent writer,1 after carefully analyzing the relation between Federal and tribal allow, concludes:
This gives to many Indian tribes a large measure of continuing autonomy, for the federal statutes are only a fragment of law, principally providing some educational, hygienic and economic assistance, regulating land ownership, and punishing certain crimes committed by or upon Indians on a reservation. Where these statutes do not reach, Indian custom is the only law. As a matter of convenience, the regular courts (white men's courts) tacitly assume that the general law of the community is the law in civil cases between Indians, but these courts will apply Indian custom where it is proved. (At p. 90.)
A careful analysis of the relation between a local tribal government and the United States is found in 7 Ops. Atty. Gen. 174 (1855), in which it is held that a court of the Choctaw Nation has complete jurisdiction over a civil controversy between a Choctaw Indian and an adopted white man, involving rights to property within the Choctaw Nation:
On the other hand, it is argued by the United States Agent, that the courts of the Choctaws can have no jurisdiction of any case in which a citizen of the United States is a party ***.
In the first place, it is certain that the Agent errs in assuming the legal impossibility of a citizen of the United States becoming subject, in civil matters, or criminal either, to the jurisdiction of the Choctaws. It is true that no citizen of the United States can, while he remains within the United States, escape their constitutional jurisdiction, either by adoption into a tribe of Indians, or any other way. But the error in all this consists in the idea that any man: citizen or not citizen, becomes divested of his allegiance to the United States, or throws off their jurisdiction or government, in the fact of becoming subject to any local jurisdiction whatever. This idea misconceives entirely the whole theory of the Federal Government; which theory is, that all the inhabitants of the country are,in regard to certain limited matters, subject to the federal jurisdiction, and in all others to the local jurisdiction, whether political or municipal. The citizen of Mississippi is also a citizen of the United States; and he owes allegiance to, and is subject to the laws of, both governments. So also an Indian, whether he be Choctaw or Chickasaw, and while subject to the local jurisdiction of the councils and courts of the Nation, yet is not in any possible relation or sense divested of his allegiance and obligations to the Government and laws of the United States.
In effect, then, an Indian tribe bears a relation to the Government of the United States similar to that which a territory bears to such Government, and similar again to that relationship which a municipality bears to a State. An Indian tribe may exercise a complete jurisdiction over its members and within the limits of the reservation,2 subordinate only to the expressed limitations of Federal law.
Recognition of tribal authority in the administration of justice is found in the statutes of Congress, as well as in the decisions of the Federal courts.
U. S. Code, Title 25, section 229, provides that redress for a civil injury committed by an Indian shall be sought in the first instance from the "Nation or tribe to which such Indian shall belong." This provision for collective responsibility evidently assumes that the Indian. tribe or Nation has its own resources for exercising disciplinary power over individual wrongdoers within the community.
We have already referred to U. S. Code, Title 25, section 218, with its express assurance that persons "punished by the law of the tribe" shall not be tried again before the Federal courts.
What is even more important than these statutory recognitions of tribal criminal authority is the persistent silence of Congress on the general problem of Indian criminal jurisdiction. There is nothing to justify an alternative to the conclusion that the Indian tribes retain sovereignty and jurisdiction over a vast area of ordinary offenses over which the Federal Government has never presumed to legislate and over which the State governments have not the authority to legislate.
The attempts of the Interior Department to administer a rough-and-ready sort of justice through Courts of Indian Offenses, or directly through superintendents, cannot be held to have impaired tribal authority in the field of law and order. These agencies have been characterized, in the only reported case squarely upholding their legality, as "mere educational and disciplinary instrumentalities by which the Government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian." (United States v. Clapox, 35 Fed. 575; and cf. Ex parte Bi-a-lil-le, 12 Ariz. 150, 100 Pac. 450; United States v. Van Wert, 195 Fed. 974). Perhaps a more satisfactory defense of their legality is the doctrine put forward by a recent writer that the Courts of Indian Offenses "derive their authority from the tribe, rather than from Washington."1
Whichever of these explanations be offered for the existence of the Courts of Indian Offenses, their establishment cannot be held to have destroyed or limited the powers vested by existing law in the Indian tribes over the province of law and order and the administration of civil and criminal justice.
Although the power to supervise regular Government employees is certainly not an inherent power of Indian tribal sovereignty, it is a power which is specifically granted to the Indian tribes by statute, subject to the discretion of the Secretary of the Interior. U. S. Code, Title 25, Section 48, provides:
Right of tribes to direct employment of persons engaged for them. Where any of the tribes are, in the opinion of the Secretary of the Interior, competent to direct the employment of their blacksmiths, mechanics, teachers, farmers, or other persons engaged for them, the direction of such persons may be given to the proper authority of the tribe. (R. S. sec. 2072.)
Under the terms of this statute it is clearly within the discretionary authority of the Secretary.of the Interior to grant to the proper authorities of an Indian tribe all powers of supervision and control over local employees which may now be exercised by the Secretary, e.g., the power to specify the duties, within a general range set by the nature of the employment, which the employee is to perform, the power to prescribe standards for appointment, promotion and continuance in office, the power to compel reports, from time to time, of work accomplished or begun.
It will be noted that the statute in question is not restricted to the cases in which a Federal employee is paid out of tribal funds. Senators are responsible to their constituents regardless of the source of their salaries, and heretofore most Indian Service employees have been responsible only to the Federal Government, though their salaries might be paid from the funds of the tribe.
In directing the employment of Indian Service employees, an Indian tribe may impose upon such employees the duty of enforcing the laws and ordinances of the tribe, and the authority of Federal employees so acting has been repeatedly confirmed by the courts. See Morris v. Hitchcock (194 U. S. 384); Buster v. Wright (135 Fed. 947, app. dism. 203 U. S. 599); Maxey v. Wright (3 Ind. T. 243, 54 S. W. 807, aff'd 105 Fed. 1003); Zevely v. Weimer (5 Ind. T. 646, 82 S. W. 941); 23 Ops. Atty. Gen. 528.
The section in question has not, apparently, been extensively used by the Interior Department, and that Department, under a previous administration, has recommended its repeal. Congress has not seen fit, however, to repeal the statute, and the recommendation of a previous Secretary of the Interior has no particular weight in construing the meaning of the statute.
I conclude that under Section 16 of the Wheeler-Howard Act (Public No. 383, 73d Congress) the" powers vested in any Indian tribe or tribal council by existing law", are those powers of local self-government which have never been terminated by law or waived by treaty, and that chief among these powers are the following:
1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.
2. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe and to grant or withhold the right of suffrage in all matters save those as to which voting qualifications are specifically defined by the Wheeler-Howard Act (that is, the referendum on the act, and votes on acceptance, modification or revocation of Constitution, by-laws or charter), and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrollment and property rights of members.
3. To regulate the domestic relations of its members by prescribing rules and regulations concerning marriage, divorce, legitimacy, adoption, the care of dependents, and the punishment of offenses against the marriage relationship, to appoint guardians for minors and mental incompetents, and to issue marriage licenses and decrees of divorce, adopting such State laws as seem advisable or establishing separate tribal laws.
4. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land.
5. To levey dues, fees, or taxes upon the members of the tribe and upon non-members residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.
6. To remove or to exclude from the limits of the reservation non-members of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority; and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which non-members of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal laws governing trade with the Indian tribes.
7. To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe, out of tribal funds, where legal title to such funds lies in the tribe.
8. To administer justice with respect to all disputes and offenses of or among the members of the tribe, other than the ten major crimes reserved to the Federal courts.
9. To prescribe the duties and to regulate the conduct of Federal employees, but only in so far as such powers of supervision may be expressly delegated by the Interior Department.
It must be noted that these conclusions are advanced on the basis of general legislation and judicial decisions of general import, and are subject to modification with respect to particular tribes in the light of particular powers granted, or particular restrictions imposed, by special treaties or by special legislation. With this qualification, the conclusions advanced are intended to apply to all Indian tribes recognized now or thereafter by the legislative or the executive branch of the Federal Government.
Respectfully,
NATHAN R. MARGOLD, Solicitor.
Approved: October 25, 1934.
OSCAR L. CHAPMAN, Assistant Secretary.
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