Indian tribal lands are not public lands for most purposes, but since the United States owes certain protective responsibilities to many tribes by treaties and agreements with them, Indian tribal lands have for some purposes been treated as public lands when such treatment is beneficial to the Indian tribe concerned. For example, tribal lands may be considered public lands of the United States for the purpose of erecting Federal buildings thereon, at least where Congress has directed such action or where the tribe itself has consented to it. This is contrary to the usual rule that the United States will not erect buildings on private land. Indian lands occasionally have become subject to certain laws affecting the public domain. In one case this was harmful to the Indians--the Papago Indian Reservation was made subject to the mineral leasing laws of the United States in 1934, with the result that the Papagos have lost a great deal of land to prospectors.
Ownership by More Than One Tribe
Ordinarily, there is merely one tribe involved in the order setting up reservations. This rule was broken occasionally during the period in which the United States was trying to segregate all Indians on smaller tracts of land. The Shoshones recovered a large judgment against the United States because, without their consent, another tribe, the Arapahoes, were placed on their lands. In the case of a reservation established in 1882 for the Hopi Indians, and others who may be settled there by the Secretary of the Interior, it has been held by the Solicitor of the Department of the Interior that any Navahos who settled on the land prior to the approval of the Hopi constitution by the Secretary of the Interior, and their descendants, could continue to use and occupy the reservation lands.
Title by Aboriginal Possession, Treaty, Statute and Purchase
Much Indian title is derived from aboriginal possession, that is, possession at the time of the coming of the whites, or as an exchange of their
original lands for other lands. This might be done by treaty, by law of Congress, or by an act of the Secretary of the Interior or some other Federal official. A formal action of the Government is unnecessary; possession from time immemorial is enough.
Congress has sometimes authorized the purchase of lands for an Indian tribe. The Secretary of the Interior is authorized to make temporary withdrawals of surplus land of Indian reservations from other disposition until the matter of permanent restoration of ownership to the tribe under the Indian Reorganization Act may be given consideration. While the two major methods of establishing an Indian reservation by statute were the withdrawal of public lands and the purchase of private lands, sometimes, as in the case of the Arizona Boundary Act, provision is made for the sale of private lands in exchange for public lands, and the public lands are made part of the reservation.
Executive Order Reservations
The practice of establishing Indian reservations by executive order of the President or Secretary of the Interior goes back at least to 1855. There was some question of the power of the President and the Secretary to do so, and the Attorney General upheld its legality in 1882 chiefly on the basis that the practice had been followed for many years and Congress had not objected. The General Allotment Act of 1887 made these reservations legal, and for many purposes, executive order reservations have the same validity as statutory reservations.
At the present time neither the President nor the Secretary of the Interior can change the boundary of a permanent Indian reservation or establish new Indian reservations except in Alaska. Under the Alaska Welfare Act, a reservation may be established by the Secretary in that Territory, provided the natives vote their agreement. It has been held by the Supreme Court that such reservations of public lands, including coastal waters, as well as certain other executive reservations, do not convey any permanent right of use and occupancy on the Indian beneficiaries, and hence Congress or the President may end such rights without being liable for compensation. There may be one exception to the rule. By 1949 the courts have not yet passed on the meaning of the provision in the Indian Claims Commission Act allowing claims based upon fair and honorable dealings that are not recognized by any existing rule of law.
Purchase of Land by Tribes
Tribes can purchase land from private parties or allotted lands in heirship status by using funds in their own treasury. Such lands are within the Protection of the Federal Government, so that adverse possession cannot deprive the Indians of such land. It has been held that the lands used and occupied by Indians in the Florida or the Louisiana territory, both of which were purchased by the Federal Government, have the same status as the lands which the United States acquired by conquest.
Extent of Tribal Rights in Land
When a reservation is established by a treaty or statute, the tribal rights secured to the occupants of the reservation depend upon the language or purpose of Congress. Ambiguous laws or treaties are interpreted in the light of the circumstances of the group for whose protection they were passed. Hence, if the group are fishermen, the intention to include their fishing grounds will be assumed if the statutory language is not clear. Where it is doubtful whether a general law was intended to apply to Indians, the courts will generally hold that it does not, if the law would hurt the Indians. Since Congress may dispose of lands of the United States, it may convey to or recognize such rights in the Indians as it deems just, even a title equal to fee simple. In fact, the only clear distinction between most Indian title and a fee simple is that Indian lands are subject to statutory restrictions upon alienation.
The tribe owns the sub-surface or mineral rights, as well as the timber growing on tribal land, unless there is some specific language in the papers creating the reservation to the contrary. There is a general law passed in 1910 that mature, living, dead or "down" timber on tribal lands of any Indian reservation may be sold under regulations prescribed by the Secretary of the Interior, and the proceeds of such sale may be used for the benefit of Indians of such reservation. This act does not apply in the states of Minnesota and Wisconsin. In 1926 Congress provided that any proceeds derived from such sale should be credited to the funds of such tribe in the United States Treasury.
Tribal Water Rights
The early treaties with the Indians seldom mentioned and never defined water rights. The Indian way of life, however, was built to a large extent on fishing and hunting, and later, on agriculture. Hence, it was essential that the tribe be assured some right to the waters within or on the border of the reservation. The Federal Government has the power to reserve the waters flawing through the territories, and except them from appropriation under the state laws. The Supreme Court of the United States in the Winters case held, on January 6, 1908, that where land in a territory in a dry region was reserved by treaty to an Indian tribe, there was reserved or the use of the Indians, waters of the streams of the reservation necessary for the irrigation of their land. Hence, a sufficient amount of water from the Milk River, which flows on the Fort Belknap Reservation, North Dakota, could not be diverted by settlers on the public lands above and outside the reserve so as to prejudice the rights of the Indians to irrigate the irrigable land of such reservation or such part of the land as the Indians reasonably might be expected to use. Nevertheless, the extent of the reserved water right depends to a great degree upon the amount of water which the Indians actually use. The Indian
water rights may be lost if the water is not used after a sufficient period of time and is needed by others elsewhere.
Tribal Right vs. State Right in Navigable Waters
Unless navigable waters, that is, waters which are deep enough for commercial boats, have been reserved to the tribe in a territory when the reservation is set up, the Indian tribe merely has the right of use together with citizens of the state. Where unreserved, the title to land underlying navigable waters passes to the state upon its admission, while title to land underlying unnavigable waters remains in the United States.
Allottees and tribes need not pay the construction charges of irrigation works, but the unpaid charges become a charge on the land which must be paid before it is sold to a non-Indian. The Indian is liable for the operation and maintenance charges, but, if he is indigent, these payments may also be postponed. In this case they, too, become a charge on the land.
Most of the colonies, at least since 1633, provided that Indians could not convey their lands without the agreement of certain colonial officials. Federal laws from the beginning of the nation have prevented such sales without the permission of the Congress. Treaties and statutes contain provisions for the conveyance of tribal lands. In some cases Congress has provided for the sale of tribal lands to a particular company and has even sometimes fixed the exact price of the conveyance. Unless this price is the highest that the Indians can secure, such a stipulation is unfair to the Indians. Furthermore, it is often desirable to provide in such a law that the land would revert to the Indians in case it is no longer used for the public purposes, for which the conveyance is justified before the Congress.
Pressure by whites, aided by state and Federal officials, frequently was the main factor in inducing Indians to sell their lands, or exchange them for other lands For example, after the passage of the Federal Removal Act in Jackson's Administration, the Cherokees were told that if they did not sign treaties agreeing to sell their lands in Georgia and remove to the Indian Territory, the Federal Government would place them under state law. Furthermore, the Federal officials made no attempt to protect their lands from trespass by non-Indians, which was often encouraged by state officials.
Tribal Right to Receive Funds-Claims
The principal source of tribal income, at least since the Revolution, has been the sale of tribal resources--chiefly land, timber, minerals and water power A few tribes or groups, like the Menominees of Wisconsin, the Shoshones of Wyoming and the Indians of California, have recovered large judgments against the United States for its failure to protect Indian resources. The Indians lost the first few cases tried by the Indian Claims Commission on
the ground of res adjudicata, which means that the claim had previously been decided by another court, the Court of Claims, against the Indians.
Tribal Right to Spend Funds in Treasury
Tribal funds in the Federal Treasury must be expended by authorization of an act of Congress. There are two motor exceptions to this rule. Without a special appropriation by Congress, but with the approval of the Secretary of the Interior, (1) A few tribes may use their funds for purposes they wish,
(2) Indian Bureau officials may expend tribal funds in the Treasury for the following purposes:
(a) Equalization of allotments
(b) Education of Indian children in accordance with law.
(c) Per capita and other payments.
(e) Expenses of tribal councils, committees or delegates up to the amount allowed by Congress for thus purpose in the annual appropriation acts. However, other tribal funds which are not In the Treasury may be used by the tribe, subject to limitations contained in the constitutions and charters and in tribal loan or trust agreements with the United States.
INDIVIDUAL RIGHTS IN REAL PROPERTYIn the beginning, most Indian tribes had all their land in tribal ownership. This is still true of most of the reservations in the Southwest. On most of the northern reservations and in Oklahoma, Indian lands are held in varying degrees of individual ownership. There is some land in tribal ownership in most of the reservations. Today there are about 20,000,000 acres of allotted lands and about 36,000,000 acres of tribal lands.
AllotmentAllotment means the division of tribal lands among individual members of the tribe. For over fifty years prior to the passage of the General Allotment Act, or Dawes Act, in 1887, various treaties and statutes provided for the breakup of tribal lands and tribal existence by means of allotment. From 1887 to the 1920's, allotment was the keystone of Federal policy--the main means, it was hoped, to break up the tribal organization and property, and assimilate Indians into the main stream of American life and culture. The basic provision of the General Allotment Act was the authorization to the President to allot land to Indians living on reservations whenever, in his opinion, the reservation or any port thereof might be advantageously utilized for agricultural or grazing purposes. The agricultural allotments could not exceed 80 acres; the grazing land, 160 acres; and the irrigable land (capable of Irrigation without too much expense), 40 acres. In addition to the 1887 Act, Congress passed special acts authorizing the allotments of land on specific reservations. The 1887 Act also provided for the allotment of unappropriated public lands to Indians not residing on reservations who otherwise could not receive an allotment. An Indian could not be a