THE HISTORY OF INDIAN LAND ALLOTMENTS
AND THE PRESENT STATUS OF DEVELOPMENT
OF RESERVATION LAND RESOURCES
Presented To:
.,-
Dean Richard W. Hemingway
Texas Tech Law School
Independent Research Paper
by:
Carolyn R. Royse
'179
Outline
Part I
A.
Brief History.
B.
Purpose of Paper.
Part II
A.
Jurisdiction Over Indians and
Indian Reservations.
/
'
Part III
A.
Tribunal Sovereignty And Its Relation To The
Development Of Reservation Land Resources.
Part IV
A.
Current Situation: The United States Holds
Indian Lands As A Limited Trustee.
B.
President Reagon On Indian Affairs.
C.
Conclusion.
7ti0
part I
Brief History
American Indian law has developed from a patch-work of
treaties, constitutional mandates, administrative regulation,
public law and judicial decision.
Treatment of Indian problems
has vacilated between the polar objectives of assimilation with,
and separation from, the dominant white culture. 1
Over the
past decates these two conflicting objectives, blending the
Indians into the white American culture, and preserving their
cultural heritage, have led to inconsistent federal-state-tribal
/
.
h'1ps. 2
re 1at1ons
Originally tribes were treated as sovereign nations
3
with
whom the federal government was required to regulate trade.
Less
than a year after the adoption of the American Constitution in
1789, Congress enacted what has become the cornerstone legislation
for American Indian tribes.
The first Indian Nonintercourse Act,
passed in 1790, provided that "no sale of lands made by any
Indians • • . within the United States shall be valid to any
person . .
. or to any state • . . unless the same shall be made
and duly executed at some public treaty, held under the authority
of the United States." 4
The Nonintercourse Act was designed to
preserve and protect the Indian occupancy of and control over
Indian lands.
It did not take the United States Supreme Court long to
confirm that Native American Tribes enjoyed a unique legal status.
781
In 1832, Chief Justice Marshall, in Worcester v. Georgia, 5 stated:
..-
The Indian Nations had always been considered
as distinct, independent, political communities,
retaining their original natural rights as the
undisputed possessors of the soil from time
immemorial, with the single exception of that
imposed by irresistible power, which excluded
them from intercourse with any other European
potentate than the first discoverer of the
coast of the particular region claimed; and
this was a restriction which those European
potentates imposed on themselves, as well as
on the Indians. The very term "nation," so
generally applied to them, means "a people
distinct from others." The Constitution, by
declaring treaties already made, as well as
those to be made, to be the supreme law of the
land, has adopted and sanctioned the previous
treaties with the Indian nations, and consequently admits their rank among those powers
who are capable of making treaties. The words
"treaty" and "nation" are words of our own
language, selected in our diplomatic and legislative proceedings, by ourselves, having each
a definite and well understood meaning. We
have applied them to the Indians, as we have
applied them to other nations of the earth.
They are applied to all in the same sense.6
Early treaties with the Indian tribes were of the same dignity
as treaties with foreign nations.
However, the method of dealing
with Indian tribes through treaties was discontinued in 1871.
8
With westward expansion, tribes became enveloped by the
dominant culture.
This led to a characterization of Indians as
"domestic dependent nations," and yet, at the same time, "distinct
. . 1
po 1 ~t~ca
.
.
commun~t~es.
..9
As land was set aside for Indian terri-
tory, the tribes that moved there became subject to federal as
well as
tr~'b a
10
1 aut h or~ty.
.
782
-2-
Congress by the Acto~ July 9, 1832, 11 provided for the
position of a Commissioner of Indian Affairs.
The Commissioner
was under the direction of the Secretary of War, and was vested
with the responsibility of the management of Indian Affairs.
In 1849, the Commissioner's duties were transferred from the
Military to a Civil branch of government by the creation of the
Executive Department of the Interior. 12
Other changes occurred as the vestiges of the open West were
diminishing.
Enclaves of tribes living on identifiable tracts or
reservations were given acreages of land by the General Allotment
Act of 1887.
13
This Act authorized the allotment of a tract of
the tribal land to each individual member of the tribe.
The
allotments varied in size but usually consisted of either 80 acres
of agricultural land or 160 acres of grazing land.
Where irrigable
lands could be provided, the acreage was 40 acres.
On some reser-
vations a small acreage of timber land was included.
In some
instances the mineral estates were reserved to the tribe.
14
The allotment of land to individual Indians from the tribal
reservation was in keeping with the demands made by the exodux
of whites moving westward to take up homesteads on the public
domain.
These people were looking for land on which to establish
a home.
Thus it was logical to make allotments of tribal land
to Indians as a step towards bringing the Indian into the body
politic.
However, this enactment was decidedly antitribal in
purpose and was the first assimilative policy of extinguishing the
tribe as a distinct entity.
15
7R3
-3-
Another change involved United States citizenship.
on June 2, 1924, enacted the Citizenship Act. 16
Indians were made citizens.
Congress,
By this act all
Since that date all Indians born
within the territorial limits of the United States are United
States Citizens.
The allotment scheme distributed land within the reservation
to Indians and then sold the surplus to homesteaders.
This led
to an undesirable checkerboarding of Indian jurisdiction over
the land retained and federal jurisdiction over the land sold to
hornesteaders. 17
To correct this, a new policy was formulated by the Indian
Reorganization Act of 1934.
18
It brought the selling of Indian
land to a halt and as such was more pro-tribal in effect.
Its
basic purpose was the revitalization of tribal self-government
by placing tribal government within a federal framework under
written codes.
It seemed that with the passage of this Act, the
urge to "civilize" the Indian was being successfully resisted.
But this attitude lasted only a few years until a return to
assimilation occurred in 1954 in the form of Public Law 280.
19
Public Law 280 was infamously known to the Indians as
"Termination." 20
This law's objective was to terminate the
specific status Indians had developed in relation to the federal
government.
It declared Indians to be on a social parity with
other state citizens, and consequently that they should be
"released from the second-class citizenship as well as from the
paternalistic supervision of the Bureau of Indian Affairs."
-4-
784
21
This Law called for the termination of federal trust
responsibility over Indians.
This goal was to be accomplished
by extinguishing tribal land, paying individual tribal members
for their share and allowing the states to exercise civil and
criminal jurisdiction over the Indian reservations within their
borders.
Congress hoped through legislation to deprive the
Indians of separate sovereignty and to subject them and their
. t y as non-In d 1an
.
.
22
state c1. t 1zens.
1an d t o th e same s t a t e sovere1gn
The termination era, regarded as a low point in United
States - Indian relations, did no more than reflect the dominant
culture's belief in the superiority of its culture.
Americans,
many of whom had been assimilated from diverse cultures within
one generation, generally were unwilling to accept the American
Indian tribes' failure to adapt after several hundred years.
23
Policy makers reasoned that the more Indians were given any kind
of special treatment, the less likely they would be to
ways of the dominant culture.
24
adop~
the
Thus, assimilationist were
opposed to giving Indians any special legal status.
Purpose of Paper
The above brief history of policies and enactments is intended
to serve as a foundation for the presentment of this paper on
conflicting federal, state, and tribal rights, and their effect
on the Federal Government's role of trustee over Indian lands.
This paper also addresses the expanding assertion of tribal
sovereignty and its affect on reservation resource development.
-5-
785
Examined in the paper is the recent Supreme Court decision in
united States v. Mitchell
25
which clarifies the government's
fiduciary duty as trustee in the resource management on Indian
lands.
And finally the paper will turn to the veiws of the
Reagan Administration on Indian tribal lands.
--
-6-
786
Part II
Jurisdiction Over Indians And Indian Reservations
Indian reservations were created by treaties, Congressional
Acts and Executive Orders.
26
A reservation may be established
if it can be shown that the purpose of a federal action was to
induce a tribe to settle in that area.
Lands newly purchased
for Indians under the Indian Reorganization Act are in the same
•
27
category as a reserva t 1.on.
h term "reservat1.on'
• 1 embraces
Butte
only lands owned by the United States.
The Code of Federal
Regulations defines reservation to include all territory within
the reservation boundaries, including fee patented lands, roads,
waters, bridges and lands used for agency purposes. 28
Towns as
well as federal and state highways running through reservations
are considered part of the reservation.
29
It has never been doubted that the federal government has
jurisdiction over reservations located within the United States.
30
The reservation is also within the political and governmental
boundary of the state.
The courts have affirmed that the state
retains sovereignty over the reservation although its laws cannot
conflict with federal laws.
31
However, federal statutes have
reserved many matters for federal jurisdiction alone, as in the
case of the ten major crimes of murder, manslaughter, rape, assault
with intent to kill, assault with a dangerous weapon, arson,
burglary, robbery, larceny and incest.
32
787
-7-
The right of the state to deal with Indians for particular
purposes has also been recognized.
In 1906 Congress legislated
that when lands held in trust for Indians were finally conveyed
to them by patent in fee, the allottees should be subject to
civil and criminal laws of the state.
33
In actual practice
though, the state has not often tried to assume jurisdiction
under this statute.
34
If Congress has not enacted special legis-
lation for Indians or subjected them to the exclusive jurisdiction
of the state, Indians continue to be governed by their own tribal
--· t oms. 35
1 aws an d cus
/
Tribal civil law is usually supreme in matters concerning
personal and domestic relations, such as guardianship, inheritance
and testmentary dispostion, and would therefore not be nullified
by a conflicting state statute.
36
On the other hand, with regard
to tribal criminal law governing offenses committed by one Indian
against another on the reservation, Department of Interior regulations (as well as some tribal law and order codes themselves)
provide that in offenses over which federal or state courts also
have jurisdiction, the Court of Indian Offenses shall have concurrent but not exclusive jurisdiction.
Also, the trial court
shall deliver over Indian offenders when such other courts are
. 11 ~ng
.
.
.
. d. t .
th em. 3 7 It was decided
w~
to exerc~se
JUr~s ~c ~on over
very early in our history that without permission of tribal
officials or federal statutory authority, state officials may
not ordinarily enter upon Indian reservations to enforce state law. 38
-8-
788
The state does have power to enforce its decrees against Indians
within the state outside of the Indian reservation.
Yet a state's
power within territory concededly under its jurisdiction is not
absolute, as it has been held that a state could not enforce within the state a tax lien against property owned by the United
States, therefore tax sales would be void.
The lien would be
valid but the immunity of the United States would protect it
against enforcement. 39
An
Indian court decree is not entitled to recognition on
the basis of the "full faith and credit" provision of Section 1
of Article IV of the United States Constitution as that applies
only to "states."
40
Neither is an Indian court a constitutional
court within Section 1 of Article III of the United States
Constitution.
The Court of Indian Offenses is not such a federal
court even though it was established pursuant to federal regulations.41
It is a tribal court only and has been called a mere
.
1 an d d.1sc1p
. 1'1nary 1nstrumen
.
t a 1'1 t y. 42
e d ucat1ona
Th e 1968 In d.1an
Civil Rights Act requires tribal courts to observe due process
and equal protection standards, including the right to be represented by an attorney at one's own expense.
43
For most tribal
courts, the appearance of licensed attorneys has been a mixed
blessing. 44
Because the judges are not themselves attorneys and
tribal court procedures are not geared to function on a level
comparable with state or federal district courts, there have been
inherent difficulties in accommodating attorneys.
-9-
7~9
By and large,
~he
lawyer will be unfamiliar with tribal courts and at a loss
on how to proceed.
Although some tribal codes incorporate federal
and state law by reference where tribal law is not applicable,
this is not particularly helpful since most of the judges are
I•
not familiar with the state and federal law the lawyer thinks
applicable and the judge is naturally hesitant to rely on it.
--
-10-
790
Part III
Tribal Sovereignty And Its Relation To The Development Of
Reservation Resources.
The Nonintercourse Act
45
established a rule that Indians
were to enjoy special property rights, with respect to reservation
lands, significantly different from those granted non-Indian
lands.
So, while non-native peoples were guaranteed freedom
from the taking of their real property without due process of law
and compensation by the federal government in the fifth amendment
to the United States Constitution, and by the states in the
fourteenth amendment, Indian lands were granted the additional
protection that no Indian
prop~rty
could be taken by either the
states or by non-Indians in the absence of express congressional
consent.
46
This special protection gave rise to an entire volume
47
of federal enactements
which provide special treatment for all
~
aspects of Indian life.
48
Furthermore, the Nonintercourse Act
created a potential trust relationship between the United States
and Indian tribes, even in circumstances where no formal federal
tribal recognition existed.
49
The tribal right of occupancy of land is considered as
sacred as the fee simple of the whites.
50
Moreover, occupancy
need not be based on a treaty, statute, or o th er governmen t ac t
Indian title includes not only the land, but also the water
running through or adjacent to the land,
52
resources associated with the reservation.
-11-
as well as other
53
791
.
~on.
51
Rooted in the conquest and territorial acquisition by the
Europeans, retained sovereignty was firmly established by the
Federal Government's recognition of the inherent sovereign power
.
of t h e In d 1an
tr1'b es. 54
Many of the early treaties expressly
recognized Indian jurisdiction over non-Indians living on Indian
lands.
The use of treaty power reflected an implied assumption
that the tribes, although subject to the sovereign powers of the
United States, retained attributes of sovereignty. 55
In 19.40, nearly a century after the U.S. Government finally
~
reduced the American Indian to the status of its ward, the
Department of the Interior stated the fundamental principles of
retained sovereign power:
An Indian tribe possesses, in the first
instance, all the powers of any sovereign
state.
(2) Conquest renders the tribe
subject to the legislative power of the
United States and, in substance, terminates the external powers of sovereignty
of the tribe • . . but does not by itself
affect the internal sovereignty of the
tribe.
. . • These powers are subject
to qualification by treaties and by
express legislation of Congress, but,
save as thus expressly qualified, full
powers of internal sovereignty are
vested in the Indian tribes and in their
duly constituted organs of gcvernrnent.56
Subsequent Court decisions reaffirmed the uncertain status
of Indian tribes:
They were, and always have been, regarded
as having a semi-independent position
when they preserved their tribal relations;
-12-
792
not as States, not as nations, not as
possessed of the full attributes of
sovereignty, but as separate people,
with the power of regulating their
internal and social relations.57
Indian tribes today are beginning, for the first time, to
use the full authority confirmed by Congress in the Indian
.
t '10n Act, 58 as well as the tribal proprietary aut h or1ty
.
Reorgan1za
in the Nonintercourse Act.
59
The benefits of the occupancy of
land has been the very foundation of the existence of America's
Indian tribes.
..
60
The United States Supreme Court acknowledged
~
this in Oneida Indian Nation v. County of Oneida. 61
~
It very early became accepted doctrine
in this Court that although fee title to
the lands occupied by Indians when the
colonists arrived became vested in the
sovereign -- first the discovering
European nation and later the original
States and the United States -- a right
of occupancy in the Indian tribes was
nevertheless recognized. That right,
sometimes called Indian title and good
against all but the sovereign, could be
terminated only by sovereign act. Once
the United States was organized and the
Constitution adopted, these tribal rights
to Indian lands became the exclusive
province of the federal law.
Indian
title, recognized to be only a right of
occupancy, was extinguishable only by th.e
United States. The Federal Government
took early steps to deal with the Indians
through treaty, the principal purpose
often being to recognize and guarantee
the right of Indians to specified areas
of land.62
Although the concept of inherent tribal sovereignty occupies
a prominent position in the development of American Indian law,
-13-
the limits of this retained power remain uncertain.
The assertion
of tribal court jurisdiction illustrates this confusion.
Oliphant v. Suquamish Indian Tribe,
63
the
u. s.
In
Supreme Court
excluded criminal jurisdiction over non-Indians from the sphere
of tribal sovereignty authority.
The Court grounded its decision
on the inherent limitations on tribal powers, 64
and ignored the
interest of the tribe in exercising jurisdiction. 65
Then the Court recognized that "Indian tribes are unique
aggregations possessing attributes of sovereignty over both their
members and their territory. n 66
United States v. Wheeler, 67 decided shortly after Oliphant,
presented the question of whether tribal power to enforce criminal
laws against tribal members derives from retained inherent severeignty of the tribe or from the sovereignty delegated to it by
the Federal Government.
Concluding that tribal judicial power
flows from retained sovereign powers, Justice Stewart wrote:
The sovereignty that the Indian tribes
retain is of a unique and limited character.
It exists only at the sufferance
of Congress and is subject to complete
defeasance. But until Congress acts, the
tribes retain their existing sovereign
powers.
In sum, Indian tribes still
possess those aspects of sovereignth
not withdrawn by treaty or statute, or
by implication as a necessary result of
their dependent status.68
Until recently, the general consensous of Indians' status
was that although the U.S. Courts have recognized the soverei1:17J
of Indian tribes, they also have allowed the states and Congress
-14-
794
to interfere in Indians' internal affairs.
They have allowed
state and federal courts to exercise a certain amount of jurisdiction over Indians and Indian lands.
As previously mentioned,
they have claimed that tribes are only quasi-sovereign, that
they are domestic, dependent nations and that Indian land does
not belong to Indians but really is held in trust by the United
States for the benefit of the tribes.
. t ercourse Ac t was d es1gne
.
d to protect In d'1an t r1'b es, 69
Th e Non1n
but it did not stop various states from taking Indian lands.
In recent years, Indian tribes have instituted a number of
law-suits to regain lands in the eastern United States
70
taken from them in violation of the Nonintercourse Act.
allegedly
Probably
the most publicized of these cases are the Passarnaquaddy tribe's
claim to approximately two-thirds of the state of Main
Oneida's claim to 246,000 acres of New York.
72
71
and the
Since mass
expanses of land were at stake, judicial interpretation and application of the Indian Nonintercourse Act assumed substantial
importance.
Massachusetts, which included Maine at that time, took lands
from the Passamaquaddy 73 and other tribes.
Consequently, when
the Passamaquaddy presented their 12.5 million acre
in 1972, they wielded a powerful weapon.
land claim
The claim has been
settled out-of-court in what is called the Maine Settlement.
74
The Settlement proposed that the United States allocate $80 million
to be held in trust for the tribes.
In return the Indians relin-
quished their claim to the land.
-15-
It is argued that the settlement was a mistake and that
the tribes in Main should have used their position to strengthen
the meaning of Indian sovereignty.
75
The premise is that Indian
tribes can survive only as nations, not as state municipalities
or U. S. Landowners.
Those against the settlement feel that the
tribes could have used their power to force recognition of complete
tribal sovereignty over tribal land and people.
Then, the settle-
ment would have been considered a landmark and would have provide
a precedent for other Indian nations in their fight to preserve
their soveieignty.
Those against the settlement feel that the
priorities of those who drafted the settlement were obviously
money first, land second, sovereignty last, and that the order
should have been reversed.
76
They state:
If tribes do not start thinking in
terms of long-term survival as Indian
nations, they will eventually look
like any U. S. corporation; the tribal
77
members will be no more than stockholders.
Another important aspect of litigation concerning the Nonintercouse Act is defining what is a "tribe."
78
If an Indian group
fails to prove that it is a "tribe" as contemplated by the
Nonintercourse Act, a court will not order the return of land
allegedly alienated from the Indians' possession in violation of
the Nonintercourse Act. 79
Previous recognition as a tribe by the
Bureau of Indian Affairs (BIA) is persuasive in proving tribal
status.
However, not every tribe involved in litigation has this
-16-
~786
.
f e d era 1 recogn1t1on.
. .
80
bene f 1. t o f pr1or
In such cases, the legal
definition of Indian "tribe" is of enormous importance as it may
essentially determine the legal rights of the parties to the
81
disputed land.
When confronted with the question of tribal existence, courts
adjudicating land claims under the Act have employed a definition
of tribe develoepd by the Supreme Court in Montoya v. United States,
a case not involving the Nonintercourse Act.
The definition
states that a "tribe" is "a body of Indians of the same or a
similar race, united in a community under one leadership or governrnent and inhabiting a particular though sometimes ill-defined
territory.••
83
Unfortunately. this definition, developed in 1901,
has never been a realistic description of what constitutes an
Indian tribe within the meaning of the Nonintercourse Act.
Yet,
··-~
since 1901, no court has carefully analyzed the definition's
appropriateness to the purpose of the Act or the policies of modern
Indian law.
Consequently, bona fide Indian tribes, are threatened
with the possibility of losing potentially large land claims
because of an anachronistic concept of tribe.
84
The loss of hunting, fishing, and crop lands would necessarily
require the Indians to embrace non-Indian society simply to survive.
The recently adopted BIA 85 regulations for federal recognition of
Indian tribes do not acknowledge the possibility of a causal connection between loss of land and disintegration of the tribal
structure.
The regulations require that an Indian group prove a
-17-
t-787
82
"substantially continuous tribal existence," 86 with "repeated
identification and dealing as an Indian entity with recognized
Indian tribes or national Indian organizations" 87 being considered
probative of the issue.
Besides favoring reliance on how the
Indians veiw themselves for determining tribal existence, the
regulations also adopt the position that tribal organizations
should be analyzed from the perspective of the Indian culture. 88
Tribes maintain strict recognition standards, and many
tribal governments have been put on the defensive about their
trival enrollment systems.
89
These Indian governments have been
labeled too conservative or even racist.
concerns as it decides its membership.
goes the entire future of the tribe.
The tribe has many
Along with membership
The tribal culture is
carried on by its membership as well as its traditions.
To
impose a lax membership criteria can jeopardize the entire future
of the tribe.
The right to determine membership has always been
retained by the tribes.
This right was upheld in the 1978
Supreme Court decision, Martinez v. Santa Pueblo.
-18-
~as
t~J
90
Part IV
current Situation
The broken treaties of the Old West have a modern counterpart in a legal war between the federal government and American
Indian tribes.
The tribes claim their trust was betrayed in the
mismanagement of their tribal land and natural resources. 91
The
government alleged mismanagement of tribal funds was the issue
in law suits involving millions of dollars intrusted to the federal
treasury.
About eight million dollars was at stake in the Court of
Claims, where 23 tribes alleged thatthegovernment broke its
.
t o ge t a max1mum
.
. money. 92
prom1se
return from t h e1r
Th e tr1'b es
claimed the government allowed their money to wallow in treasury
accounts instead of investing it more profitably elsewhere. 93
~
The Court of Claims ruled that the government was liable to
the tribes for lost profits from 1964 to 1974 and that a trial
judge should fix the amount of damages.
94
The tribes stood to
win an amount equal to the difference between what they actually
received from treasury accounts, earning four percent simple
interest, and what they could have obtained from more productive
sources. 95
The management of tribal funds has been linked through
history to rising or declining interest rates.
In 1880, when
some bonds defaulted and interest rates dropped, Congress permitted
the Secretary of the Interior to hold tribal money in the treasury
-19-
as an alternative to other investments.
96
In 1918 Congress
allowed broader investment in banks, public-debt obligations
of the United States or other guaranteed bonds or notes for the
best interest of the Indians.
97
But, after interest rates
began rising above four percent in 1964, the plaintiffs in
Cheyenne-Arapaho contend that the government dragged its feet in
taking the money out of relatively "unproductive" treasury vaults. 98
The government argued, however, that the statute allowing
investment is permissive, and that the Secretary of the Interior
was merely authorized and not directed to make wider investments.
99
The government contended that the secretary does not have to come
up to the same strict standard that applies in a testamentary
t rus t
.
1n
wh.1c h a con t rae t
. t s.
ex1s
100
The case was returned to the trial court for further proceedings.
Judge Nichols stressed in inappropriateness of invoking
a summary judgment procedure at this time in hopes that no one
would copy the tribes measures in future cases.
He said that a
multiplicity of separate claims could be handled even though they
involved a complex cross entangling of numerous legal and factual
issues as this case does.
However, the briefs, records and drafts
in this case were in a state of utter perplexity as to what useful
action the court could possibly be expected to take.
He suggested a pre-trial conference and scolded the parties
on considering the operational efect of the moves they make.
He
said that "in general a judgment is a pronouncement by the court
as to the legal consequences of established facts.
-20-
8tl0
A roving pro-
nouncement of the law supposedly applicable to a case, independent
of the facts, is not a judgment of itself, and a motion for summary
judgment is not an appropriate means of eliciting such a pronouncement, supposing it is appropriate for the court to make it."
The filing of a motion for summary judgment suspends the jurisdiction of the trial judge, "whereas this case is, of all others,
one where the services of a trial judge are most needed." 101
United States v. Helen Mitchell, a case involving claims
totalling 100 million dollars, was accepted for review by the U.S.
Supreme Court, and in it the Court clarified the
government's~
trust responsibility in managing tribal resources.
This was an
action brought by Indians against the United States to recover
for breach of trust under the General Allotment Act.
In that
case the plaintiffs argued that the government mismanaged timber
~
on land allotted to individual Indians on the Quinault Reservation
in Washington.
The government appealed the case after the Court of Claims,
ruling in favor of Mitchell, held that the government by law had
certain fiduciary duties to the tribes and that compensation
should be made for damages sustained from a breach of trust.
The General Allotment Act of 1887
104
103
authorized allotments
of land to individual Indians and provides that "the United States
does and will hold the land thus allotted .
.
. in trust for the
sole use and benefit of the Indian to whom such allotment shall
have been made."
The Court of Claims read this language as creating
a fiduciary duty on
t~part
of the government, and it denied the
o
t o do1sm1ss.
o
105
government 1 s mot1on
-21-
801
The Supreme Court reversed and remanded, speaking through
Justice Marshall.
The Court held that the government's sovereign
immunity barred the suit.
106
In enacting the General Allotment
Act, the Court said, Congress "created only a limited trust
relationship between the United States and the allottee that does
not impose any duty upon the Government to manage timber resources."
The language of the Act that imposes the trust must be read in
"pari materia" with other provisions of the Act, and other provisions make it clear that the Indian allottee, not the government,
is responsible for using the land for agricul tur.al or graz.1.ng ,/
purposes,
108
the court declared.
The legislative history of the
act shows that Congress merely intended the government to hold
the land in trust "not because it wished the Government to control
use of the land and be subject to money damages for breaches o·f
fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune
109
.
f rom s t ate taxat1.on.
Justice White wrote a dissenting opinion in_ which Justices
Brennan and Stevens joined.
The dissent took the.view that the
word "trust" in the act was intended to create a trust as that
word is commonly understood.
110
"This language would surely be
a sufficient manifestation of intent to create a trust if the
settlor were other than the United States," the dissent de_clared. 111
The statute was enacted "against a backdrop of a relationship
between the United States and the Indian tribes that had long
been considered to 'resemble that of a ward to his guardian,' "
the dissent added.
802
-22-
107
The Chief Justice did not participate in the decision.
Reagan On Indian Affairs
In September, 1980, then presidential candidate Ronald
Reagan's Nationalities Division issued a release on American
Indian issues.
113
Hopefully this insight can forecast the
Executive Branch's policy in the area of Indian land development
and management •
On treating tribal governments on an equal basis with state
·-'
J
and local governments, Reagan said that tribal goverr.ments must
p 1ay th e
0
pr~mary
ro 1 e
~n
0
In d ~an a f f
0
a~rs.
0
114
He sa1d
0
s1tuat~ons
0
0
of the urban Indians, the off-reservation rural Indian communities,
and the tribes not recognized by the federal government must be
looked into with the goal of establishing ways of securing better
::. ...
opportunities for them.
However, Reagan feels this must be done
in a way that will not threaten the federally-recognized tribes. 115
Reagan believes that the Indian people should determine tribal
membership for themselves.
The President said that since tribal
governments have the same responsibilities to tribal members that
state and local governments have to their citizens, the federal
bureaucrats should not interfere with Indian government policy
development. 116
He added that the Reagan Administration would not
advance Executive action nor support legislation that would provide for the seizure of tribal jurisdictions by state authority.
Reagan said he would encourage the development of the tribal court
system because of the geographical isolation of Indian reservations
and the unavailability of other courts.
117
8~)3
-23-
On the issue of federal responsibility to tribes, Reagan
declared that his administration would be opposed to the abrogation of Indian treaties and the termination of "unique relations"
between the federal government and the Indian tribes. 118
He said
the policy of termination is "morally and legally unacceptable
• prac t 1ca
•
1 soc1a
• 1 an d econom1c
• t erms, d evastat1ng.
•
II 119
an d , 1n
He went on to state that the policy of termination of the federal
trust responsibility to Indian tribes proved to be an economic
and social disaster, and that his administration would not
recommend that termination be revitalized.
However, Reagan felt the trival governments should have the
right to determine the extent and methods of developing the
tribe's natural resources.
"Although the federal government has
a trust responsibility for Indian natural resources," 120 the
President said that responsibility should be directed to the
protection of the resources from alienation and exploitation from
the outside, and that it should not be used to hinder tribes from
121
.
.
. .
ta k 1ng advantage of econom1c development opportun1t1es.
Reagan said he foresaw no changes that would prohibit tribal
eligibility to receive General Revenue Sharing Funds.
In the
long run, he would hope to decentralize program responsibilities
from the Federal government to the State and local governments,
"including tribal governments, along with the tax resource to pay
for them." 122
Reagan endorses an "Indian self-determination"
123
policy and believes that tribal governments, as they decide they
are able to administer federal programs, should have control.
-24-
Hence, the Supreme Court and the President seem to be in
accord on the obligations of the tribes to take an active role
in the management of their resources, and on the limited fiduciary
duty of the federal government.
Conclusion
The once vivid status of wards of the federal government
is becoming faint.
The custodian will eventually disappear.
Although many tribes may view this an another "termination'' and
--
there may be difficult times at first, this could be an opportunity
in disguise.
The Indian tribes will have the chance to develop
their own human resources and to more effectively take over the
business management of their natural resources.
In attempting
this they_ need specialist, management experts, and last, but not
least, top quality legal counsel.
-25-
FOOTNOTES
1.
Note, The Indian:
The Forgotten Ameirican, 81 Haw. L. Rev.
18181 1838-41 (1968) •
2.
D. Getches, D. Rosenfelt & C. Cwi1kinson, Federal Indian Law,
29 (1979).
3.
U.S. Dept. of The Interior.
4.
25 U.S.C. § 177 (1976)
Federal Indian Law, 373-75 (1958).
(originally enacted as Act of July 22,
1970, ch. 33, § 4, 1 Stat. 137, 138, as amended by Act of
June 30, 1934, ch. 161, § 12, 4 Stat. 730).
5.
31 U.S.
(6 Pet.) 515, 561 (1932).
Indian tribes are a
separated people possessing the power of regulating their
internal and social relations.
6.
Id. at 559.
7.
See generally, note 2 supra.
Recognition of Indian occupancy
and special protection for Indian lands, as well as Indian
tribal sovereighty went hand in hand with undertaking treaties
of peace and friendship.
While on many occasions the United
States was inspired to treaty in order to avoid an unacceptable cost that battle would bring, it is also true that on
other occasions treaties were used because they conformed
to the jurisprudential status acquired by Indian tribes.
The willingness of the United States to accept Indian tribal
rights because the rights are treated as private property
rights, and private property rights in the early years of
the United States were accorded special sanctity.
8fl6
\j'
Insofar
as tribal rights are property rights, the basis for a separate Indian recognition relies on rights which are fundamentally different from those 'civil rights' claimed by America's
other minority communities.
8.
Act of March 3, 1871, ch. 120, § 1, 16 Stat. 566, codified
at 23 U.S.C. § 71 (1963).
In 1871, Congress passed legisla-
tion which brought treaty making with Indian tribes to an
end.
The legislation declared that no Indian tribe was to
be acknowledged as an individual nation with whom the United
States could contract by treaty.
While not intended to im-
pair existing treaties, the 1871 legislation expressed the
House's dissatisfaction with the Senate's exclusive right to
advise and consent on all treaties.
9.
McCoy, The Doctrine of Tribal Sovereignty:
-
Accommodating
Tribal State and Federal Interest, 13 Harv. C.R.
-
C.L.L.
Rev. 357, 359 (1978).
10.
Id.
11.
Act of July 9, 1932, 4 Stat. 564.
Establishment by Congress
of the position of Commissioner of Indian Affairs.
12.
Act of March 3, 1849, 9 Stat. 395.
13.
Act of February 8, 1887, 24 Stat. 388, as amended, 25 U.S.C.
§§ 331-58.
14.
Act of June 28, 1906, 34 Stat. 539.
15.
Note, 21 Stan. L. Rev. 1236, 1239 (1969).
16.
Act of June 2, 1924, 43 Stat. 253.
17.
See Clinton, Criminal Jurisdiction Over Indian Lands:
A
Journey Through A Jurisdictional Maze, 18 Ariz. L. Rev. 503,
507-13 (1976).
18.
Act of June 18, 1934, ch. 576, § 16, 48 Stat. 987, codified
at 2 5 U.S. C. § 4 7 6 et seg.
19.
( 19 6 3) .
Act of Aug. 15, 1953, ch. 505, 67 Stat. 588-90 (codified in
scattered sections of 18, 28 U.S.C.).
20.
See supra note 2, at 86-87.
Termination was an appropriate
name since the policy was one of termination of federal,
civii and criminal jurisdiction over reservation lands and
a transfer to state jurisdiction in California, Nebraska,
Wisconsin, Minnesota and Oregon.
21.
Goldberg, Public Law 280:
The Limits of State Jurisdiction
Over Reservation Indians, 22 U.C.L.A. L. Rev. 535, 543 (1975).
22.
Id.
23.
See generally Washburn, The Historical Context of American
Indian Legal Problems, 40 Law & Contempt. Prob. 12 (1976).
24.
Id.
25.
100
s.
Ct. 1349 (1980).
General Allotment Act did not
authorize an award of money damages against the United States
for alleged mismanagement of forests located on lands
allotted to Indians.
26.
See generally, Parker, State and Tribal Courts in Montana:
The Jurisdictional Relationship, 33 Mont. L. R. 277 (1972.
[hereinafter referred to as Parker.]
8fJ8
27.
See text accompanying note 7 supra.
28.
25 C.F.R. § 11.2(c)
29.
Id.
30.
Infra note 57.
31.
Surplus Trading Co. v. Cook, 281
(1958).
u.s.
647, 650-51 (1930).
Land purchased by the United States for an Army station with
the consent of the state legislature, comes under the exclusive jurisdiction of the United States and private personal
property there can not be taxed by the State.
32.
62 Stat. 757 (1948), 18
u.s.c.
§
1152 (1958).
70 Stat. 792 (1956), 18 U.S.C. § 1163 (1958).
33.
34 Stat. 182 (1906).
34.
See generally, Parker, supra note 26.
35.
Woodin v. Seeley, 141 Misc. 207,
(193i).
- - - , 252 N.Y.S. 818, 823
Indian law of discent whereby inheritance is deter-
mined only through mother applies to reservation lands and
is not abrogated by state statues of decent.
36.
See Parker, supra note 26 at 278.
37.
See Parker, supra note 26 at 280.
38.
31 U.S. at 561, supra note 5.
39.
United States v. Alabama, 313 U.S. 274, 281 (1941).
The tax
lien is not objectional under the Federal Constitution as
applied to a purchaser who bought on or after the tax day
and before the amount of that tax had been fixed by levy and
assessment.
40.
Begay v. Miller, 70 Ariz. 380, ____ , 222 P.2d 624, 628 (1950).
Where tribal court entered divorce decree, Supreme Court of
Apache County was without jurisdiction to enter a subsequent
decree of divorce.
41.
See, Parker, supra note 26, at 281.
42.
See, Parker, supra note 26, at 281.
43.
Indian Civil Rights Act, 82 State. 77, 25
44.
See Parker, supra note 4.
45.
25
46.
Federal Power Comm'n. v. Tuscarora Indian Nation, 362
u.s.c.
99 (1960).
§
u.s.c.
§
1301-41.
177, su:era note 4.
u.s.
The forbidding of a transfer of lands from
Indians unless made by a treaty does not apply to the United
States itself.
47.
Title 25 of the United States Code (1963).
48.
Morton v. Mancari, 417 U.S. 535 (1974).
Congress did not
intend to repeal Indian preference in employment for qualified Indians in enacting the 1972 Equal Employment Act.
49.
Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528
F.2d 370 (1st Cir. 1975).
Nonintercourse Act established
a trust relationship between the United States and the tribe.
No congressional termination of guardianship was shown and
neither the tribe nor the state of Main would have the right
to terminate the federal government's responsibility.
50.
United States v. Shoshone Tribe, 304 U.S. 111, 117 (1938).
The tribe was to have absolute and undisturbed use and occupation under the treaty and it was the settled policy of the
Government to deal fairly with the Indian tribes.
51.
United States v. Santa Fe Pac. R.R., 314
~ands
u.s.
339 (1941).
included in the grant to the railroad were subject
to any existing Indian right of occupancy until such right
was extinguished by the United States through a voluntary
cession of the Indian.)
52.
Winters v. United States, 207 U.S. 564 (1908).
There was
an implied reservation in the agreement establishing the
reservation of a sufficient amount of water which was not
affected by the subsequent Act admitting Montana to the
Union, ···and the water cannot be diverted so as to prejudice
this right of the Indians.
53.
Arizona v. California, 373 U.S. 546 (1963).
Many of the
treaties and allotment acts expressly reserved reservation
minerals.
54.
--
See Restatement (Second) of Foreign Relations Law of The
United States (1965).
55.
Note, Tribal Court Criminal Jurisdiction Over Non-Indians:
Testing The Limits Of Retained Sovereignty, 13 Cornell L.J.
89, 90 (1980).
56.
F. Cohen, Handbook of Federal Indian Law at 123 (1942).
57.
United States v.Kagama, 118 U.S. 385, 381-82 (1886).
The
Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no
protection.
58.
Act of June 18, 1934, supra note 18.
8~11
59.
25 U.S.C., supra note 4.
60.
Infra note 61 at 676.
61.
414 U.S. 661 (1974).
Indian title is a matter of federal
law and can be extinguished only with federal consent.
62.
Id. at 667.
63.
435
64.
Id. at 209.
65.
Id. at 212.
66.
United States v. Maqurie, 419 U.S. 544, 557 (1975).
u.s.
191 (1978).
The
authority of tribal courts could extend over non-Indians
insofar as their transactions on a reservation with Indians.
u.s.
67.
435
313 (1978).
68.
Id. at 323.
69.
25 U.S.C. § 177, supra note 4.
70.
See Vollman, A Survey Of Eastern Indian Land Claims:
1970-1979,
31 Me. L. Rev. 5 (1979).
m:
71.
Supra note 49.
72.
Supra note 61.
73.
See generally, note 39, supra.
74.
Indian Claims Mount, note 81 infra.
75.
Id. at 22.
76.
Id. at 22.
77.
Id. at 22.
78.
St. Clair, Defenses Of Nonintercourse Act Claims:
The
Requirement Of Tribal Existence, 31 Me. L. Rev. 91 (1979).
79.
Id.
8~12
80.
See infra note 76.
There are basically three ways for a
tribe to secure federal recognition.
Recognition can be
attained through a continuous policy of administrative conduct, by formal treaty, or by mention of the tribe in
federal statutes.
81.
See generally, St. Clair, supra note 78.
82.
180 U.S. 261 (1901).
Hostile "band" of roaming Indians were
not in amity with the United States and neither the
Goverlli~ent
nor the tribe was responsible for their depredations.
83.
Id. at 266.
84.
See, St. Clair, supra note 78.
85.
43 Fed. Reg. 39, 361 (1978).
86.
Id. at 39, 362.
87.
Id. at 39, 363.
88.
Id.
89.
Are Tribes Too Exclusive?, 6 Am. Indian J. 12 (1980).
90.
Martinez v. Santa Clara Pueblo, 436 U.S. 49 (1978).
The
Court acknowledged the breadth of congressional power,
stating that congress had plenary authority to limit, modify
or eliminate the powers of local self-government which the
tribes otherwise possess.
91.
Indian Claims Mount:
"Broken Treaties" Cited, 66 Am. Bar.
A. J. 22 (1980).
92.
Cheyenne Arapaho Tribes of Okla. v. U.S., 512 F.2d 1390
(Okla Ct. Cl. 1975).
Where the evidence presented to the
court was not meaningful correlated to the ultimate issues
8~13
of breach of fiduciary duty, the court ruled on several
specific points and returned the case to the trial division
for further proceedings.
93.
Id. at 1394.
94.
Id. at 1396.
95.
Id.
96.
Indian Claims Mount, note 91 supra.
97.
Id.
98.
512 F.2d at 1394.
99.
Id. ·at 1392.
100.
Id. at 1396.
101.
Id. at 1397.
102.
100 S. Ct. 1349 (1980).
103.
Id. at 1352.
104.
25
105.
100 S. Ct. at 1352.
106.
Id. at 1352.
107.
Id. at 1354.
108.
Id.
109.
Id. at 1355.
110.
Id. at 1357.
111.
Id.
112.
Id.
113.
Reagan on Indian Affairs, 6 Am. Indian J. 10 (1980).
114.
Id. at 10.
115.
Id. at 11.
u.s.c.
§§
331-58, see generally text cited note 13 supra.
See also 15 Cong. Rec. 2240-2242.
81_4
116.
Id.
117.
Id.
118.
Id.
119.
Id.
120.
Id. at 12.
121.
Id.
122.
Id. at 11.
123.
Id.
8_15