Sometimes it is necessary to determine what is a band. Many cases involving this point arose under the Indian Depredation Act of 1891, which gave to the Courts of Claims jurisdiction over claims for property of citizens taken or destroyed by Indians belonging to any band, tribe or nation at peace with the United States. A band requires common leadership, independence of action and continuous existence, but it need not inhabit a particular territory nor be a party to a treaty. The organization may be less permanent than that of a tribe, but it must be of sufficient strength to be capable of waging war. Sometimes the band came into existence for the purpose of waging war against the United States. This was true of several Apache bands like the Chiricahuas, a band of Apaches, some of whom were imprisoned at Fort Sill, Oklahoma, where they have remained. Other Chiricahuas now live with the Mescalero Apaches in New Mexico.
Many questions arose concerning the definition of a tribe in Section 19 of the Indian Reorganization Act, which refers to any Indian tribe or organized band residing on one reservation. As a result, many opinions were written by the Solicitor for the Interior Department as to the tribal status of a group seeking to organize. The main considerations which have been relied upon in reaching the conclusion that a group constitutes a tribe or band have been: (1) A treaty has been made with the United States. (2) An act of Congress or executive order of the President or Secretary of the Interior has called the group a tribe. (3) It has been treated as having collective rights in tribal lands or funds. (4) Other Indian tribes have treated the group as a tribe or band. (5) It has exercised political authority over its members through a tribal council or other governmental form.
Other factors considered were appropriation items for the group and its social solidarity. Ethnological and historical considerations were also given great weight in determining the question of tribal existence. This was the main basis upon which it was held that towns of the Creek nation could organize under the Oklahoma Welfare Act. In historical times these towns governed themselves.
Of course, some groups might lose their identity as a tribe or band. The group must continue to retain its character as a tribe or bond down to the present time.
Generally the termination of a tribe is shown affirmatively by an act of Congress, treaty provision or tribal action, and negatively by members of the tribe no longer acting together. The mere allotting of tribal land or the granting of citizenship to the members of the tribe does not terminate the tribal existence. They are, however, relevant factors to be considered in determining whether the tribe still exists. Other factors are: the physical separation of a group from the main body of the tribe and the cessation of its tribal affairs and tribal government. For example, the Cherokees in North Carolina by not removing themselves to Indian territory over one hundred years ago lost their membership in the Cherokee Nation but were considered a band in a treaty and in many laws. Frequently a treaty or an act of Congress has declared that a certain tribe was liquidated as of a certain date. Subsequently, other statutes treated the tribe as in existence for certain purposes. Since a tribe often seems to live longer than legislators or administrators believe possible, the courts have laid down a rule that an exercise of the Federal power to dissolve a tribe must be demonstrated by statutory or treaty provisions which are positive and clear.
Indian tribes originally could make treaties. Since 1871, when treaty making was abolished, they have signed conventions, agreements, constitutions or charters. Once they could also make war. When a state of war existed, acts which would constitute murder or manslaughter might be justified, whether committed by Indians or the military forces of the United States. Hostile Indians were also treated as prisoners of war. The power of an Indian tribe to engage in war is now gone. The last Indian wars of any size were waged by the Apaches toward the close of the nineteenth century. An uprising of Indians in Minnesota during Lincoln's Presidency was not considered a war and about sixty Indians were hanged as murderers. Some tribes still make declarations of war, as a New York tribe did against Germany. The Seminoles of Florida boast that they never made peace with the United States in the war which took place toward the close of the nineteenth century.
The Courts have held that an Indian tribe is not a foreign state within the meaning of the provision in the Federal Constitution, allowing suit in the Federal courts for controversies between a state and foreign states. Eminent domain or the power of the Federal or state government to take tribal lands for public purposes requires a permissive statute by the Congress.
An Indian tribe has been treated for some purpose as on instrumentality or agency of the Federal Government. For example, it has been delegated certain functions by the Secretary of the Interior, such as the leasing of individual lands for a fee. Furthermore, the granting of a Federal corporate charter to an Indian tribe under the Indian Reorganization Act confirms the character of the tribe as a Federal instrumentality or agency. The tribes are not liable for
the acts of individual members unless pursuant to a treaty or statute. Such liability has been imposed only in rare instances.
The Pueblos of New Mexico were incorporated by laws of the Territory of New Mexico. By Federal charter many Indian tribes have been granted the right to sue, the capacity of being sued and the power to execute contracts that bind the tribe (but not individual members), even when in the course of time its entire membership has changed. A distinction has frequently been made between tribal and individual property rights. For example, in a claims case against the United States a distinction has been drawn between the claims of the Sioux Tribe and the claims of individual members. The court held that damages to members through denial of educational promises in treaties could not be a basis for recovery by the tribe because they damaged mainly its individual members.
When an Indian tribe is established as a corporation it has sometimes been held to be entitled to certain benefits granted to corporations in an act of Congress. For example the Pueblos of New Mexico have been held entitled to receive privileges under the Taylor Grazing Act as a corporation authorized to conduct business under the laws of the state. The incorporation under the Indian Reorganization Act does not relieve a the tribe of any tribal obligations or deprive it of any tribal property.
An Indian tribe has legal capacity to enter into binding contracts. Except where Federal or tribal laws provide otherwise, such contracts are subject generally to the same rules of contract law that are applied to contracts of non-Indians. Consequently, a tribe is not bound by a contract which is made by an unauthorized agent of the tribe, but if the tribe accepts the benefits of services for which he has contracted, the tribe like any other party, may not deny the authority of its agent. Furthermore, a tribal representative is not personally liable for a contract made on behalf of a principal, nor is a tribal officer liable for a tribal debt.
The usual rules of contract law also govern the interpretation of contracts and various other matters unless Congress expressly varies the rule of contract, as it has sometimes done, to allow oral agreements to modify the written contract, though this is contrary to the usual provision of the Statute of Frauds. Agreements between Indian tribes become effective only upon ratification by Congress, and the effective date is ordinarily the date of such ratification and not the date of the agreement.
Contracts, whether made with attorneys, engineers or other individuals, for services with Indians tribes relative to their lands or claims must be approved by the Secretary of the Interior and the Commissioner of Indian Affairs. A special procedure must be followed in these types of agreements, which in-
cludes signing before a judge of a Court of Record. Persons making contracts without complying with these laws are subject to prosecution.
Capacity to Sue
Statutes have been passed authorizing suits by Indian tribes (1) against the United States, and (2) against third parties to determine questions of ownership or to determine the measure of compensation due from third parties for property taken. There are also a few statutes authorizing suits against tribes. For example, the Depredation Statutes allowed the execution of a judgment gained in a suit against the tribes upon the tribal funds of the tribes in the United States Treasury, with the approval of the Secretary of the Interior. Another example is the Act of May 29, 1908, which conferred jurisdiction upon the Courts of Claims to decide a suit by certain traders against the Menominee Tribe and members thereof.
In the absence of a clear congressional authorization, it appears as if a suit against an Indian tribe cannot be brought without its consent. It would appear, however, as if the Indian tribe may waive its immunity from suit and voluntarily appear in a case to defend itself. The objectives of a suit by an unincorporated tribe can frequently be attained by individual members bringing a representative suit on behalf of all the members. Such a suit is permitted by the Indian Claims Commission Act.
INDIAN TRADEAside from the treaty power, the major source of Federal power over Indians is the provision in the Constitution conferring upon the Congress the power "to regulate commerce with the Indian tribes." Since at the time of the adoption of the Constitution matters internal to the tribes were left largely in the hands of tribal governments, the Federal power over Indian tribes was generally invoked in regard to transactions by which the Indians were persuaded to dispose of their lands or other property in exchange for liquor, munitions or other products of the white man's civilization.
Following the practice of colonial governments, which from early pioneer days licensed traders dealing with the Indians, the Congress since its first session in 1789 has frequently legislated with respect to Indian trade. For example some treaties contain provisions granting to the Federal Government the exclusive power to have commercial dealings with the tribes. In 1790 the President or officers approved by him were authorized to license traders, and all unauthorized traders with the Indians were liable to forfeit their goods. Private enterprise did not succeed in this field, and at the insistence of President Washington, he was authorized in 1796 to establish the first Government-owned and operated enterprises, consisting of trading posts in the western frontiers or in the Indian country. The trader in charge was an agent of the United States paid by the Government, and the goods were sold to the Indians at cost. In 1822 the trading posts were closed and Indian trade became for the most part under Government supervision and license.
The existing laws are the result of many amendments to the original trading laws. They authorize the Commissioner of Indian Affairs to appoint traders with the Indian tribes and to regulate the kind and quality of goods and the price at which said goods shall be sold to the Indians. Hence the trade with the Indians was first responsible for three of the important activities of the Government: (1) licensing of certain occupations; (2) Government ownership and operation of a business enterprise; and (3) Government control of prices.
Regulation is confined to Indian traders in the Indian country. A trader to be licensed must prove to the satisfaction of the Commissioner that he is the proper person to secure a license. Ordinarily the Commissioner will not issue or renew a license without the approval of the tribal council. lf a trader were licensed in spite of tribal protest, the council could prevent him from having a store on tribal land.
Any unlicensed individual producing goods or trading in the Indian country who is not a full-blood Indian is subject to the penalty of the forfeit of merchandise offered for sale to the Indians or found in his possession and an additional penalty of $5,000. No license may be issued to any person employed in the Bureau of Indian Affairs, or his wife, since a Government official cannot have an interest in trade with the Indians. A license to trade is not required in Alaska.
The trading regulations contain various restrictions. They prohibit gambling, trading on Sunday, the sale of harmful drugs and the sale of tobacco to minors under 18 years of age.
The personal property, including the stock and trade, of a licensed trader is ordinarily subject to state taxation. The tribes may levy a tax on licensed traders with the approval of the Commissioner of Indian Affairs. As owners of the land on which most traders conduct their business, and in the exercise of their powers of government, a tribe may impose any conditions to the use of its land that it deems proper, including the control of prices and charging of rent.
INDIAN LIQUOR LAW
The explorers of the New World found that in the New England regions and the Middle West, through British Columbia and Alaska, the Indians and Eskimos lacked alcoholic beverages. Soon the new drinks became popular objects of trade and even played a role in treaty-making, various exchanges of land and goods and even were a cause of wars.
Some of the colonies restricted trade with the Indians, including traffic in liquor and guns. In response to a verbal plea of an Indian chief, President Thomas Jefferson asked Congress in 1802 to take steps to control the liquor traffic with the Indians. Congress forthwith authorized the President to regulate the selling and distribution of spirituous liquors among the Indian tribes. Several treaties with the Indians and with foreign nations prohibited the traffic