TRIBAL RELATIONS
PAMPHLETS
                                   
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The Indian & The Law -- 2

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

 

A brief layman's answer to the questions:

1. Whet is an Indian tribe?
2. What is an Indian band?
3. Why is there an Indian Bureau?
4. What power has Congress over Indian affairs?
5. What power has Congress delegated to the Indian Bureau?
6. What power over Indians has Congress transferred to the States?
7. Are there actually any "Indians, not taxed?"
8. What state and federal taxes do Indians pay?
9. What is "Indian title" to land?
10. Do Indians generally own the minerals under their lands, and the forests on it?
11. What are: Allotments, patents in fee, restricted property?
12. Can an Indian reservation include coastal water rights?
13. What is tribal property?
14. Why has the government supervised the leasing of Indian land?
15. May Indian land be "condemned" for public use?

 

UNITED STATES INDIAN SERVICE

1949



DEPARTMENT OF THE INTERIOR

J. A. KRUG, Secretary


UNITED STATES INDIAN SERVICE

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


EDUCATION DIVISION

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

 

Haskell Institute Printing Department
October 1949--10M

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


HOW THIS BOOK CAME TO BE

    This is the second of two pamphlets on The Indian and the Law, which between them review the high points of Felix S. Cohen's Handbook on Indian law. They are not exhaustive, but contain a basically correct interpretation of many puzzling questions about the legal status of the American Indian today. Each section summarizes a chapter in Cohen's Handbook, which can be referred to for more complete and exact information. There will be found amplification and profuse citations, as well as four chapters devoted to special problems of a few Indian tribes. Mr. Theodore H. Haas, Chief Counsel for the Indian Service, has prepared this material at my request during his week ends and holidays. He and I have worked together to simplify the language so as to bring the ideas as close to the understanding of a non-technical layman as possible. At the risk of lowering his prestige as a lawyer, Mr. Haas has permitted many of my suggested simplifications to stand, even though he recognized often that I was insisting upon the omission of some stray point that had no pertinence to the main argument, yet the omission of which might lead some carping critic to question his legal thoroughness.

    The need for this book grows out of the fact that the status of the Indian today is the result of almost 400 treaties, and more than 5,000 federal statutes relating to Indians. This maze of Indian law was digested in 1937-38, through the efforts of Felix S. Cohen, Assistant Solicitor in the Department of Interior, with the assistance of Theodore H. Haas and others. The Handbook of Indian Law, issued by the Department of Interior in 1941, contains 662 thin but large size Pages of fine print. It is the final resort of those who want to know what is the law. This little pamphlet and its companion can only summarize the substance.

    The Education Division of the Indian Service is thankful to Mr. Haas for having prepared this material for use in high schools of the Indian Service, and as an assistance to Tribal Council members and members of Indian tribes in their efforts to understand the legal structure of which they are a part.

August 1949.                                                                                         Willard W. Beatty,
                                                                                                                Director of Education.

 

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CONTENTS

HOW THIS BOOK CAME TO BE ii
FEDERAL POWER OVER INDIAN AFFAIRS 1
    1.    CONGRESS: Commerce With Indian Tribes 1
    2.    CONGRESS: Treaty-Making 1
    3.    CONGRESS: War 1
    4.    CONGRESS: Public Lands 2
    5.    CONGRESS: Tribal Property 2
    6.    CONGRESS: Individual Property 3
    7.    CONGRESS: Membership 5
    8.    CONGRESS: Boards 5
    1.    ADMINISTRATIVE: Establishment of Indian Bureau 5
    2.    ADMINISTRATION: Organization and Activities of Bureau 6
    3.    ADMINISTRATION: Source of Services to Indians 7
    4.    ADMINISTRATION: Delegation 8
    5.    ADMINISTRATION: Tribal Lands 9
    6.    ADMINISTRATION: Membership 10
TRIBAL PROPERTY 10
    Right of Discoverer to Lands 10
    Rights of Individual Members in Tribal Property 10
    Tribal Lands Sometimes Treated as public Lands 11
    Ownership by More Than One Tribe 11
    Title by Aboriginal Possession, Treaty, Statute and Purchase 11
    Executive Order Reservations 12
    Purchase of Land by Tribes 12
    Extent of Tribal Rights in Land 13
    Tribal Water Rights 13
    Tribal Right vs. State Right in Navigable Waters 14
    Irrigation Charges 14
    Tribal Conveyances 14
    Tribal Right to Receive Funds-Claims 14
    Tribal Right to Spend Funds in Treasury 15
INDIVIDUAL RIGHTS IN REAL PROPERTY 15
    Allotment 15
    Patents in Fee 16
    Ending of Allotment Policy 16
    Freedom from Encumbrances 17
    Restricted Funds 17

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CONTENTS (Continued)

TRIBAL AND ALLOTTED LANDS--PROTECTION AND LEASING 17
    Leasing of Indian Lands 17
    Permits 18
    Who Owns Improvements? 18
    Trespass 19
    Sale of Trust Livestock 20
    Condemnation of Indian Lands 20
    Rights-of-Way 21
    Hunting and Fishing 21
TAXATION 22
    Real Property Tax--Local, State and Federal 22
    State Income Tax 23
    State Gross Production Tax 23
    State Inheritance Tax 23
    State Sales Tax 23
    State Personal Property Tax 23
    Federal Income Tax 23
    Federal Capital Gains Tax 24
    Federal Estate Tax 24
    Taxation of Tribal Enterprise 24
    Returns 25
WHAT IS AN INDIAN TRIBE? 25
    What is an Indian Band? 26
    Legal Status 27
    Corporate Capacity 28
    Contractual Capacity 28
    Capacity to Sue 29
INDIAN TRADE 29
INDIAN LIQUOR LAW 30
THE INDIAN AND THE STATE GOVERNMENT 32
SPECIAL STATUTES 34
RESERVED STATE POWER OVER INDIAN AFFAIRS 34

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