THE INDIAN AND THE LAW-2

FEDERAL POWER OVER INDIAN AFFAIRS

1. CONGRESS: Commerce With Indian Tribes

    THE NATION'S CONCERN with Indian affairs is so pervasive and broad that it Is said to be plenary or complete. The broad river of Federal power is swollen by many tributaries. The most important is the Power to make treaties, to make war, regulate commerce with Indian tribes, to make expenditures for the general welfare and to control the territory or other property of the United States.

    Like all other Federal powers, the source of Federal Indian law is derived from the Constitution of the United States. The only power of Congress which expressly mentions Indians is the power "to regulate commerce among the Indian tribes." This Federal power has been broadly construed to include oil transactions by which the Indians dispose of land or other property in change for money or other products. Many aspects of intercourse, suck

crimes by whites against Indians and by Indians against whites, survey of I( trespass and settlement by whites in Indian country, and the furnishin:

services and money by the Federal Government have been held to come wi this commerce power.


2. CONGRESS: Treaty-Making

The treaty power is granted by the Constitution to the President with

consent of two-thirds of the Senate. Many statutes have.also been passec

this has been the source of nlating to or supp 2 I menting treaties. In fact, Federal services to Indians.


3. CONGRESS: War

Our national policy towards hostile Indian groups has been war. O\

thousand statutes, public and private have been enacted by Congress dei with Indian warfare. Part of our expansion in territory, such as the OCCUPC of Florida by United States troops, wos deemed necessary to protect th

habitants of Florida against hostile Indians on the peninsula. Our Federc dian law books are still studded with obsolete statutes dealing with the has of Indians many of which were passed as late as the last half of the ninete

century. For example an 1862 statute authorized the breaking of treaties tribes which had engaged in hostilities. This law was aimed at some tribe:

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cluding an important group in Oklahoma, most of whose members joined the Confederacy. In 1867 a law authorized the withholding of annuities from hostile Indians, and in 1875 a law was passed forbidding Payments to Indian bands at war.

4. CONGRESS: Public Lands

    The control by Congress over the public domain and territory has offered the means for broad control over the Indians and the effectuation of many Indian policies, such as the western removal of Indians and the establishment and allotment of reservations. The control over the Alaska natives is partly based on this power. Even after a state is admitted to the Union, the Federal Government usually keeps control of Indian lands through provisions in the act admitting a new state.

5. CONGRESS: Tribal Property

    The control of Congress over tribal property, as well as tribal relations, has also been called "plenary" by the courts. Property or funds may be allotted or divided among the members. Certain it is that Congress has a very wide power to manage and dispose of tribal lands. The courts hold that this control is a political function which they will not exercise. Tribal lands also may be disposed of for public or private purposes. Consequently, Congress has wide power, ranging from the control and the use of the land and the extinguishment of the rights of the Indians, to the grants of adverse interest, such as rights-of-way.

    The one limitation is that "plenary" authority does not mean absolute power and must be founded upon some reasonable basis. Otherwise the United States is liable under the fifth amendment to the Constitution, which prohibits the taking of property without the payment of just compensation. The value of minerals and timber must be paid for, as well as the surface, but until Congress passes legislation permitting suits by the Indians against the United States, the right is an imperfect one. The Indian Claims Commission Act permits suits against the United States by tribes, bands or other identifiable groups in the Indian Claims Commission for claims occurring before August 13, 1946. The suits must be filed within 5 years and must be determined by the Commission within 10 years of the passage of the act. Appeals may be taken on legal issues to the Courts of Claims and Supreme Court, but findings of facts made by the Commission are treated with the same effect as if they were made by a court or jury.

    Suits occurring subsequently may be brought in the Court of Claims. Prior to the passage of the Claims Commission Act, any tribe before suing was required to induce the Congress to pass an act allowing suit, called a jurisdictional act. This process often took a long time, and the language of these laws varied. Special enabling laws had to be passed because under the common law a sovereign nation cannot be sued without its consent. White non-Indian groups were permitted to sue the United States, in 1863 Congress pro-

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hibited suits by Indian tribes based on treaty violations. Subsequently, at various times the Court of Claims was granted jurisdiction to adjudicate claims brought by certain Indian tribes for wrongs alleged to have been committed by the United States, such as the taking of Indian lands, timber or minerals without just compensation.

    Claims now may be brought before the Indian Claims Commission not only for violation of treaties but also for "unfair dealings." Hence our first Americans can now vindicate against the Government their property rights and contracts. The principle established by the Claims Commission Act is that a conquered people is entitled to come into court and receive compensation for injuries suffered at the hands of the conqueror.

    Under the old jurisdictional laws many judgments recovered against the United States were reduced or completely eliminated by offsets or deductions, which consisted of governmental expenditures on behalf of the Indian group for administrative, educational, highway and certain other purposes. Under the Indian Claims Commission Act no offsets can be made from the Commission's award for such expenditures made before the date of the law or treaty under which the claim arose.

    Since tribes receive money from these claims against the United States, arising usually from the disposition of tribal lands, congressional power over these funds is also very broad. As in the case of lands Congress cannot divert tribal funds from the tribe in the absence of tribal consent without being liable for the amount diverted. The Court of Claims, however, tends to uphold expenditures authorized by Congress when made for tribal purposes. A different rule may be applied if tribal money of tribes with I.R.A. constitutions is expended without the consent of the tribal governing body, because the law authorizes the Indians to veto the disposal of land or other tribal assets.

6. CONGRESS: Individual Property

    The power of Congress over individual lands also springs from the power over tribal lands, from which individual lands usually are derived. This power, though more limited, is broad enough to cover the supervision of the alienation of individual lands. Congressional power has been largely directed to wards the release, extension or reimposition of restrictions surrounding their alienation. The policy zigzagged. At times emphasis has been placed upon conserving Indian lands; at other times the trend has been toward encouraging their sale to non-Indians.

    The extent of the power of the Government over an Indian while he is still under Federal protection is illustrated by the fact that Congress may reimpose restrictions on property already freed from restrictions, or delegate such power to an executive officer. This power includes permitting alienation upon such terms as Congress, or the Federal officer delegated the power, deems advisable from the standpoint of the protection of the Indian. If Indian land is sold in violation of restrictions, despite the good faith of the grantee of

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the land conveyed, the conveyance is void. Such restrictions, however, cannot be made retroactive so as to invalidate a conveyance made by an Indian before the restriction was imposed. Congress determines the time and extent to which such controls over restricted or trust property shall be lifted, and such controls or guardianship have continued even though Indians hove become citizens.

    Despite these limitations, individual Indian land, like any Private Property, cannot be taken from the Indians without due process of law. An allotment may be condemned for public service if just compensation is paid. While the restriction on alienation may be lengthened or shortened by Congress, the provision that the land should be nontaxable is often a vested or Property right which binds the state and Federal governments. The same general Principles concerning the power of Congress over restricted lands apply to individual funds. In 1901 Congress enacted a law permitting the condemnation of lotted Indian lands for a public project, like a dam site or military camp, which

    Congress has sometimes passed laws for the acquisition of tribal and allotted Indian lands for a public project, like a dam site or military camp, which provide that the Government officials involved should seek to reach an agreement with the Indians on what payments should be made for the lands. If an agreement cannot be reached, the United States may file a declaration of taking and seize the property. A jury (if requested), aided by a Judge, after hearing the appraisals of experts would then make a finding of the fair value of the property at the time of the taking. This means the cash price that the land would bring if neither the seller nor buyer were compelled to make a contract of sale. The same tests would be used in the court for Indian and non-Indian property. In such actions the United States Attorney represents the Government. The Indian can retain a lawyer of his own choice. The Government sometimes will provide counsel to help the Indian receive a square deal when restricted or trust property is involved.

    The principle of Federal protection of the Indian, especially his land, applies to the purchase price of land. In this way various types of tribal and individual funds are subject to Federal control. The individual Indian's funds, which are also subject to control, are usually derived from the following sources:

    1. Proceeds, including income, from restricted allotted lands.
    2. Tribal funds Individualized by per capita distributions to the Indians
   
3. Payments from the Federal Government in money or goods in satisfaction of    
         treaties--often in payment for land taken by the Government.
   
4. Payments of damages for loss of property.
   
5. Proceeds from the sale of restricted crops and livestock.

    In recent years there has been some relaxation by Congress and the Interior Department of the extensive control over funds. Individual Indian accounts which are small have been closed and the proceeds paid to the Indians.

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Some of the tribal funds held in the treasury of the tribe may be spent by tribal councils under their constitutions, which often require Secretarial approval for the expenditure of very large amounts but without the necessity of Congressional appropriations. Congress has also permitted a few tribes to spend funds in the United States Treasury without the usual requirement of a special Act of Congress for each expenditure. The Secretary of the Interior must approve such expenditures.

7. CONGRESS: Membership

    The United States may assume full control over Indian tribes and determine membership in the tribes for the purpose of distributing funds in lands and adjusting rights in tribal property. As part of its power to administer tribal property, Congress may change the ordinary rule that tribal property may be distributed only to tribal members. In the exercise of this power a Federal law provides that children born of a marriage of a white man to an Indian woman, who was a member at the time of her death, shall have the same rights and privileges to the property of the tribe as other members. Enrollment alone does not give a vested right in tribal property, and Congress may, therefore, direct a per capita distribution on the basis of a new tribal roll, even though inconsistent with prior laws and treaties with the tribe.

8. CONGRESS: Boards

    Congress may establish boards or commissions to handle certain phases of Indian affairs. For example, the Indian Arts and Crafts Board was established in 1936 to promote the economic welfare of Indians through the development and marketing of Indian arts and crafts. The Indian Claims Commission was created in 1948 to determine claims of Indian tribes against the Government.

    Congress frequently authorizes a board or official to determine controversies arising out of Indian relations, such as the power to determine membership. If, as is usual, this board or official is granted the sole power of decision, the Federal courts cannot reexamine their findings unless there is very clear evidence of fraud, mistake, arbitrary action or a denial of a full hearing.

1. ADMINISTRATIVE: Establishment of Indian Bureau

    The Indian Bureau was first established in 1826 in the War Department. It was transferred to the newly created Department of the Interior in 1849. At the beginning the objective of the Bureau was to make treaties with the Indians whereby they would give up the lands that the settlers wanted, to regulate trade with the Indians, to provide for their removal from lands wanted by the settlers, and to civilize the Indians through manual training, agriculture and mechanics. Later the reservation policy of concentrating large numbers of Indians on smaller lands was followed. This was desirable because if the Indians continued to hunt and fish and live a nomadic life they used

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