The Secretary of the Interior, with the consent of the allottee or tribe concerned, is authorized to grant rights-of-way across Indian lands for various purposes. The consent of the proper tribal officials is necessary when tribal lands are involved, which are covered by the Indian Reorganization Act. The individual allottee must consent to rights-of-way across his land, except if (1) the land is owned by more than one person, and the owners of a majority interest in the land consent to the grant; (2) the whereabouts of the owner of all or part of the land is unknown, and a majority of the owners whose whereabouts are known consent; (3) the heirs or devisees of a deceased owner of the land have not been determined, and the grant will cause no substantial injury to the land; or (4) it would be impracticable to obtain the consent of the owners because they are so numerous, and the grant would cause no substantial injury to the land. In all cases the owners shall be awarded adequate compensation.
Hunting and Fishing
State laws regulating hunting and fishing do not apply to members of Indian tribes on their restricted allotments within their reservation or on their tribal Indian lands. An exception to this rule is that an Indian who has been granted a fee patent before 1906 is subject to the state laws, including the conservation laws. Furthermore, all the state laws, including the tax laws, apply to non-Indians, whether lessees of Indian lands, white traders within the reservation or Government employees, with the same force and effect as if they were off the reservation. An Indian is subject to state conservation laws (1) when hunting and fishing on an allotment from the public domain, (2) when outside the reservation (even when protected by a treaty provision, such as was mode with many tribes in the Northwest, for ancient fishing and hunting places which are off the reservation). Members of tribes protected by such treaties may not be required to buy a state fishing license These provisions give the Indians a property right, called an easement. Yet, they have not an exclusive right to fish and hunt, but merely a right in common with other citizens, on all lands within the reservation which, though formerly allotted, are no longer restricted or held in trust.
The Conservation Commissioners of several states have urged the Federal Government to extend state conservation laws to Indians while hunting or fishing on their reservations. For many years, the Department of the Interior has been endeavoring to secure the enactment of a law authorizing the Secretary of the Interior to establish conservation regulations for tribes which do not pass adequate laws for the protection of wildlife on their reservation
There are two provisions in the Federal Constitution which refer to Indians. The most important provision empowers the Congress to regulate trade with Indian tribes. The other provides that "Indians not taxed" shall not be counted for the purposes of determining the amount of representation in Congress of the various states. In 1940 the Bureau of the Census concluded that this phase was now obsolete because Indians paid a great variety of taxes, Federal, state and tribal. Originally, Indians were not taxed because they were not citizens of the United States and were not subject to the jurisdiction of the state and local governments. They are now citizens of the United States and the state where they live, and subject to many state laws. It already has been pointed out that Indians on reservations are not subject to state laws unless and until the Federal Government permits the state laws to apply or the tribe adopts the state law as its law. Besides, when personal property is bought by or for tribal Indians for use on the reservation to aid in the Federal Government's policy of assisting Indians, the state cannot tax such property. This freedom from taxation is due to an old principle of law that a state cannot interfere with operations employed by the Federal Government in carrying out its powers. Since tribal enterprises are frequently instrumentalities of the Federal Government their property is not subject to state or local taxation without the consent of the Congress.
Non-Indians living or doing business on these reservations are not covered by this immunity. Hence, their personal property on the reservation and their profits from leases on Indian lands may be taxed by the state or local governments just as though they were off the reservation.
In general, the tendency of the courts, including the Supreme Court, is to hold restricted Indians liable for the payment of certain Federal and state taxes from which they were formerly exempt. These decisions are based on interpretations of laws and like the decisions in tax cases involving non-Indians reflect the court's recognition of the increased governmental need for taxes.
Real Property Tax--Local, State and Federal
Tribal lands have never been held subject to real property taxation by the local, state or Federal Government. Of course, land could be purchased by the tribe with the express provision in a Federal statute that they were subject to taxation.
The Federal laws provide exemption from real property taxes on restricted individual real property, the title to which is in the individual Indian, such as was the 160-acre allotments to the members of tribes in eastern Oklahoma, and property held in trust for the Indians for a specified period or indefinitely by the United States. Like most rules of Indian law there is even on exception to this rule. Lands on the Omaha and Winnebago Reservations of Nebraska are subject to taxation but are not subject to sale for delinquent taxes.
When a tax immunity is offered to individual Indians by Federal law or treaty by way of inducement to a voluntary transaction, like the sale of other Indian land, the courts have held that the immunity becomes contractual in the sense that the individual Indians acquire a vested right to the exemption which even the Congress cannot take away.
State Income Tax
The revenue from tribal lands or restricted or trust lands is generally exempt from state income tax.
State Gross Production Tax
The Federal Government has permitted the states to levy a gross production tax on the production derived from individual restricted or trust lands of the members of many of the tribes, including Osages, Five Civilized Tribes, Blackfeet, Crow, Kaws, Poncas and Pawnees. Most of these statutes were passed on the basis that the revenue from these lands was quite substantial.
State Inheritance Tax
Except in a few states, like California, Oklahoma and Washington, attempts have not been made to levy an inheritance tax on restricted Indian estates. This is due to the fact that most state laws do not tax inheritances which are valued at less than fifteen or twenty thousand dollars, of the heirs or devisees include a spouse or children. In Oklahoma, however, the restricted estates of the members of the Five Civilized Tribes and the Osage Tribes, with the exception of their nontaxable homestead, have been held subject to the inheritance tax laws of the State of Oklahoma. If a state cannot levy a real property tax on trust land, it cannot levy an inheritance tax on its transfer by death.
State Sales Tax
An Indian is subject to state sales taxes for purchases made off the reservation but not for purchases made on the reservation. However a non-Indian is subject to a sales tax on purchases made on the reservation, unless he buys from an Indian.
State Personal Property Tax
Restricted or trust cattle or other personal property used by Indians on reservations are not subject to state personal property taxes.
Federal Income Tax
Unless an Indian can point to an express exemption in a treaty or statute, he is liable for Federal income taxes for all income derived from restricted or trust property. Furthermore, the income of restricted Indians, from the investment of their restricted funds, is subject to the payment of Federal income taxes. The Bureau of Internal Revenue has ruled that income from the restricted homesteads of the Blackfeet, Creek, Osage and Seminole Tribes is tax-exempt. Reinvested income from such tax-exempt homesteads or other tax-exempt property which results in income or profits would be taxable; for
example, interest in government bonds or profits from cattle, which were purchased with such income.
Federal Capital Gains Tax
When an Indian received an allotment of land as a distributive share of the tribal property to which he is entitled, he is not subject at the time of the allotment to an income tax because the distribution represents a part of the capital assets of the tribe. An Indian who is permitted to sell by the removal of restrictions or after the issuance of a patent in fee would be liable for Federal income taxes on the difference between the value of the land when fully acquired and the sales price received, the tax being computed upon the capital gain basis. That is to say, if he held the land less than six months after full acquisition, the entire profit would be subject to tax. If the land was held for six months or more, only 50 percent of the profit would be subject to tax. The basic date of the valuation of property for the capital gain tax is figured as of March 1, 1913, or the date subsequent thereto, if the property was acquired after the former date.
Federal Estate Tax
The Federal estate tax statutes in force at this time grant a basic exemption of $60,000. Any Indian dying leaving an estate valued at less than this figure would not be liable for Federal estate taxes. Should the estate exceed this valuation, it would be subject to Federal estate taxes, excluding from the computation of the tax the value of the descendant's 160-acres homestead.
Taxation of Tribal Enterprise
In general, the unemployment insurance tax and the Social Security taxes are very beneficial. In most states the unemployment insurance tax is paid by the employer and amounts to three percent of the employees' wages. The Social Security tax is paid, in part, by workers up to the age of 65. The employer also pays a like amount of this tax. It has been held that Indian tribal enterprises are generally subject to the Social Security taxes. The same decision may be expected with regard to state unemployment insurance taxes.
On May 1, 1939, the Treasury Department held that native-owned stores in Alaska, owned and operated by groups of Indians who are "wards of the Government," are exempt from Federal income tax under 26 U. S. Code, Section 101 (8), which exempts among others "organizations not organized for profit but operating exclusively for the promotion of social welfare." It is believed that Indian-chartered corporations, unincorporated tribes and bonds are exempt from Federal income taxes under the provisions of this section.
True cooperatives are non-profit as their earnings (savings) are returned to members in the form of patronage refunds. Indian agricultural cooperatives, like other such cooperatives, are subject to income tax unless it can be shown that not more than 15 percent of the amount of the purchases is from non-members, and that the amount of the products marketed for non-members does not exceed the amount marketed for members.
As most of the restricted Indians and their estates are liable to Federal taxes, every precaution should be taken in paying what a white man similarly situated would pay. Care should be exercised with reference to the filing of returns and the claiming of appropriate exemptions, and all necessary steps required by tax laws should be taken so that these Indians and their estates will not pay taxes which are not due or be subject to penalties for non-payment of taxes which are due. Tribal enterprises and corporations and other organizations whether claiming exemption or not should file annual returns and keep permanent books of accounts and records, including inventories, so as to show the items of gross income, receipts and expenditures. Such records should be available for inspection by the inspectors of the Federal Bureau of Internal Revenue.
WHAT IS AN INDIAN TRIBE?
The question of what is an Indian tribe has been discussed a great deal almost as frequently as the subject of what is an Indian. Ordinarily the question of whether a tribe exists has been treated by the courts as a simple yes-or-no question. Just as an individual may be an Indian for some purposes and not for another, so an Indian group may be a tribe for the purpose of a certain law and not for another law. Another similarity between problems involving what is an Indian and what is an Indian tribe, is that the term "tribe " like the term "Indian " is commonly used in two senses, an ethnological sense and a legal or political sense.
Groups that consist of several ethnological tribes, sometimes speaking different languages and having different customs, have been recognized as a single tribe for certain administrative and political purposes. For example, the Fort Berthold Affiliated Tribes are composed of three distinct groups, the Arickaras, Cros Ventres and Mandans. They were placed together on a single reservation one hundred years ago. They act as a single tribe for most purposes and have a common tribal council, which operates under an I.R.A constitution and charter. The Flathead Indian tribes consist of a confederation of the Salish Tribe and Koutenai Tribe. On the other hand, a single tribe from an ethnological standpoint may sometimes be divided into a number of independent tribes in a legal sense. Examples of this situation are offered by the Sioux: the Chippewas and the Shoshones.
Most basic questions of tribal existence in a legal sense arise out of the meaning of the term "Indian tribes" in the grant of power by the Federal Constitution to the Congress "to regulate commerce with the Indian tribes." The application or constitutionality of congressional or state legislation affecting individual Indians often depends upon whether they are living in tribal relations within the meaning of the term "Indian tribes." The courts have held that it is up to Congress and the Department of the Interior and not the judiciary to determine whether a tribe exists. Of course, neither the Congress nor the