(1) The sale, gift, or other disposition of intoxicants to any Indian who has restricted land or who is a ward under the guardianship of the United States is a misdemeanor punishable for the first offense by imprisonment of not more than one year, and by a fine not exceeding $2,000, and imprisonment of not more than five years for any additional offense. This provision is not violated by an Indian purchasing or otherwise receiving illicit liquor, but the seller is guilty even if he did not know that the purchaser was an Indian allottee or a ward.
(2) The second major prohibition measure prohibits the introduction of intoxicants (even near beer) into the Indian country or attempts to sell such intoxicants. The mere transportation to Indian country when the destination is beyond and the transporter does not intend to stop and dispose of the liquor is no offense.
In 1918, as an additional aid to the enforcement, Congress provided that the possession of intoxicants in the Indian country shall be an independent offense. Possession means the physical control and power to dispose of liquor, knowledge of possession and location of liquor within the Indian country. Drinking from the bottle of another is not enough. But an accused who breaks a full liquor bottle after being discovered with it would be guilty of the offense because these facts are evidence of possession, knowledge and control. The setting up of a distillery on a reservation to manufacture ardent spirits, or the brewing of beer, constitute independent crimes.
Federal enforcement officers have the right to search packages, wagons and automobiles without a warrant and to seize and subsequently secure governmental ownership of the automobile or other vehicle which is used in introducing or attempting to introduce the intoxicants in the Indian country and to places where their introduction is prohibited by treaty or Federal statute. Generally the vehicle is forfeit even if the owner had nothing to do with the illegal act. One Federal District Judge in Idaho refused to declare forfeit a Ford owned by an Indian who picked up a hitchhiker who, unknown to the driver, possessed intoxicants while they were driving through Indian country.
In 1907 Congress empowered special officers of the Indian Service to exercise the powers of searching and seizing intoxicating liquors, subject to the constitutional restriction on unreasonable searches and seizures. In 1912 such
officers were given the powers of United States Marshals and Deputy Marshals. This power was taken away from them in 1948.
The Federal Indian laws in Oklahoma regarding liquor are different from those for the rest of the country. In 1917 Osage County in Oklahoma was brought within the Indian Liquor Law, and Indian lands in the eastern part of Oklahoma known as the former Indian territory are subject to these laws. Since 1933, however the Federal law provides that 3.2 beer for Indians is a matter of local option in Oklahoma. In 1948 Alaska reservations became subject to the Indian liquor laws but the Indian Prohibition Law does not apply elsewhere in the Territory. Sacramental wine may be introduced into Indian country, and by an amendment in 1948 liquor also may be introduced for mechanical, scientific and medicinal purposes.
Several state laws supplementing similar Federal laws prohibit the sale to Indians of intoxicants. Some state laws make illegal the use or transportation of peyote by Indians and non-Indians. However, peyote is not covered by the Federal Harrison Act, which regulates the sale and use of certain harmful narcotic drugs.
THE INDIAN AND THE STATE GOVERNMENT
In 1832 the United States Supreme Court decided in the famous case Worcester v. George that state laws are not enforceable within the territory of an Indian tribe in matters affecting Indians. Consequently, the State of Georgia had no right to imprison a white missionary residing on an Indian reservation with the consent of tribal and Federal authorities, who refused to conform to state laws governing Indian affairs. The highest court of the land did not then possess its present prestige. The State of Georgia refused to obey its order, and President Andrew Jackson declined to assist in its enforcement. The missionary was kept illegally in prison for over a year. Then he was persuaded to ask for and was granted a pardon from the Governor. Today this well-established principle of law is still challenged, but the Supreme Court has repeatedly reaffirmed it.
The state's lack of power is due to the fact that the control of Indian affairs has been granted to the Federal Government by the Constitution. But this does not prevent the Congress from delegating back to the states some of its powers over Indians. The organs of the state, like the courts or legislatures, when exercising these powers, act as Federal agencies, and apparently this delegation of authority may be withdrawn whenever the Congress desires. Any revocation of such a grant seems unlikely. In fact, Federal laws in this field are increasing rapidly because Indians are no longer so dependent on the Federal Government for protection, and the policy is to treat them like other citizens whenever practicable. As a consequence, while the Federal Government increases its activities for most citizens, it intends to decrease gradually its special activities for Indians when they are no longer necessary.
The first and most important field in which state laws have been applied generally to Indians is the field of inheritance. The General Allotment Act of 1887 provides that after patents are issued to lands allotted to Indians, the land shall be inherited by the heirs of a deceased Indian according to the laws of the state or territory where the land is located. Tribal control was thus withdrawn from all matters of descent and partition concerning these allotments, except insofar as these matters are otherwise covered by Federal statutes. Between 1887, the date of the General Allotment Act, and 1910, no definite Federal statute governed the inheritance of allotments, and whenever the allottees died the state laws were enforced by various courts. In 1910 the Secretary of the Interior was granted full power to determine heirs and partition allotments, to administer the estates of the allottees, and to sell heirship lands.
An amendment to this law in 1913, permits an Indian to dispose of trust property, real and personal, by will or contract, approved by the Secretary of the Interior. Consequently, an Indian woman by a will written in accordance with regulations of the Department of the Interior and approved by the Secretary of the Interior may devise restricted lands to persons other than her husband, even though the state law prohibits a married woman from bequeathing two-thirds of her property away from her husband. Under the Indian Reorganization Act an Indian's real property and shares in a tribal corporation may be devised only to his heirs, to members of the tribe of the reservation, or the tribe itself.
A second body of state laws which have been extended over Indian reservations beginning in 1898 by the Federal Assimilative Crimes Act makes offenses by non-Indians against Indians or their property, or vice versa, punishable in the Federal courts in accordance with state laws existing at the time of the enactment in question. Two of the major crimes, rape and burglary, committed by an Indian against another Indian on an Indian reservation follow as to definition and punishment the laws of the state where committed. The other eight crimes are subject to the same laws and penalties as if the offense was committed within the exclusive jurisdiction of the United States.
The third field is the inspection of health and educational conditions and enforcement of sanitation and quarantine regulations, as well as compulsory school attendance. In 1925 Congress authorized the enforcement of such state laws upon Indian reservations by state officials under rules prescribed by the Secretary of the interior. Before the enforcement of state health laws upon Indian tribal land the regulations require the posting of a schedule of state sanitation and quarantine regulations which are to be applied. The Indians of the reservation are then afforded an opportunity to make pretests or recommendations with respect to specific state regulations thus proposed for extension to the reservation. If no objections are received, the Secretary of the Interior approves the proposals and the state laws apply to the Indians on their
reservations, except that state laws in conflict with an ordinance of an I.R.A. tribe are inapplicable to a reservation under this law.
State compulsory school attendance laws may be enforced against Indian children and their parents or guardians. There is one exception to this law. If the tribe possesses a governing body, it must pass a resolution consenting to such application. The tribe may elect to provide for enforcement of compulsory attendance by tribal courts.
Many acts of Congress have also conferred many powers upon courts, legislatures and administrative officials of various states. The most important field has been the extension of state criminal laws to offenses by Indians against Indians. An early example of such action is the act of February 21, 1863, whereby the Winnebago Indians were removed from Minnesota, allotted lands farther west and made subject to the criminal laws of the state or territory in which they happened to reside. In 1940 the Indians of Kansas were made subject to state laws, although the Federal courts retained the power to punish concurrently any of the 10 major crimes committed by Indians on Indian land. Subsequently, laws have been passed to the same effect for the Indians of the Devils Lake Reservation (Fort Totten) in North Dakota and the Sac and Fox Indians of Iowa. The provision for concurrent Federal jurisdiction was omitted from the laws placing 8000 Indians of New York under the state criminal laws.Another important area in which Indians have been subjected to state laws is taxation. The most noteworthy example occurs in Oklahoma where over 100,000 Indians reside. This state was authorized to tax oil and gas production from Indian lands, and mineral production from the Five Civilized Tribes' lands in Oklahoma. Other examples of the application of state laws to particular tribes and areas include the fields of probate, acquisition of water rights, the recording of leases and the imposition of liens upon cut timber.
Sometimes states pass laws to supplement the protections of Indians which are provided by Federal law. Thus, a few states forbid the sale of liquor, guns and ammunition to Indians. Other examples are as follows: (1) The New York State laws, which prohibit trespass upon Indian lands, and (2) the North Carolina law, which requires school attendance of the Eastern Cherokees, the principal Indians of the state. These laws have been upheld by the courts as an exception to the general rule that Federal control over Indian affairs on Indian reservations is exclusive. In all these cases the state law is an aid to the carrying out of Federal Indian law and policy.
RESERVED STATE POWER OVER INDIAN AFFAIRS
The second major field which is an exception to the general rule that full authority over Indian affairs on Indian reservations rests in the Federal Government to the exclusion of state governments, is where the matter involves
primarily non-Indians. In all such cases the state has jurisdiction unless there is involved a subject matter of special Federal concern. Hence, once a state is admitted to the Union, the United States no longer has the sole and exclusive jurisdiction over an Indian reservation. Consequently, a non-Indian committing a crime against a non-Indian is punished under the criminal laws of the state if the offense is committed on an Indian reservation the same as if the crime were committed off the reservation.In a few instances non-Indians outside of Indian country may come within the scope of Federal Indian law. Thus, it has been made criminal for a non-Indian to transfer to another non-Indian restricted property, such as cattle, taken from a reservation; also for an employee of the Indian Bureau to trade with Indians, with the exception of purchasing from them arts and crafts for personal use.
The Indian who is off the reservation is subject to the laws of the state in which he finds himself to the same extent as a non-Indian. Indians exercising hunting and fishing treaty rights off the reservation are even subject to state conservation laws. Nevertheless, the Federal power over Indians may be exercised while he is away from Indian country. The oldest law of this type is the Indian Liquor Law, which prohibits the sale or gift of intoxicants to Indians anywhere in the United States. Secondly, the removal of restricted cattle from the reservation would not free them from Federal restrictions.
For your better understanding of the
Indians Are Citizens! by Felix S. Cohen
Should Indians Vote? by Theodore H. Haas
How We Bought the United States by Felix S. Cohen
The Public Share In Indian Assimilation by William E. Warne
When An Indian Enters the Business World by Ruth Underhill
Indian Rights and Their Protection by William E. Warne
A Year of Opportunity by William Zimmerman, Jr.
Significant Dates in the History of the Indian Service
Pamphlet I--Questions on Indian Culture
Pamphlet II--Questions on Education, Health, Land, Citizenship, Etc.
Pamphlet Ill--Statistical Tables on Hospitals, Schools and Population
Free on request
TRIBAL RELATIONS PAMPHLETS
1. Ten Years of Tribal Government under the Indian
Reorganization Act by Theodore H. Haas
Including copies of the act; and a list of tribes organized under the act
2. The Indian and the Law I by Theodore H. Haas
3. The Indian and the Law II by Theodore H. Haas
All of these publications were prepared by the staff of the United States Indian Service and printed by Indian pupils in the print shops of the vocational schools of the Indian Service.
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