ED 116-887(

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BC 008 963

Young, Robert W., Coup.Historical Backgrounds for Modern'Indian Law andOrder.Bureau of Indian Affairs (Dept. of Interior),Washington, D.C. Div. of Law nforcement Services.Apr 6929p.

MF-S0.76 HC-$1.95 Plus Postage*American Indians;,Cri:::-.1a1 Law; Cultural Background;Federal Government; *Governmental Structure;*History; Justice; Land Acquisition; Laws;*Legislation; *Reservations (Indian); Treaties;Tribes; WarBIA; *Bureau of Indian Affairs; United. States

ABSTRACIFocusing on the development of American Indian law

and order, this monograph presents basic historical datachronblogically ordered under the following headings: (1)'IndianAmerica (tribal and linguistic groups, migration, the Americancultural zones); (2) Colonial America (early colonization, Indianlegal land title vs. title of occupancy, Indian external and internalsovereignty, the French and Indian Wars, development. of IndianAffairs after 1763); (3) The War of Indepedence and the PostRevolutionary Period (Indian,neutrality and Indian Affairs, theerosion of tribal sovereignty With adoption of the U.S. Constitution,creation of the Bureau of Indian Affairs--BIA); (4) The Period ofNational Expansion (forced removal of tribes to new lands and the"Trailof Tears,' treaties, Indian Wars of the 1860,$) ; (5) The PostCivil War Period (western Indian reservations established, breakdownof tribal economy and the "feeding policy," Federal paternalism, theallotment system and further lots of land, and the Competency Act of1906); (6) The Indian of the 20th Century (votingrights, the MeriamReport and reform, the Indian Reorganization Act of 1946); (7) TheAdainistration of Justice by Tribal Governments (limited internal andexternal sovereignty, tribal vs European-American concepts ofjustice, tribal vs. State and municipal governments). (JC)

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4

Historical l c groundsFor

ca Modern Indian- Law &. Order

OEART..ENT OF3ILELimEOVC1.0,44, VELCARENATIONAL tHiTtTLITE Of

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COMPILED BY: ROBERT YOUNG

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06-0'_ Bureau of Indiant Affairs00c> Division of Law Onfois ement ,

S'ervic-es

O

AN OUTLINE OF INDIAN HISTORY

Many immigrant peoples have enteredthe American Continents across the spanof many thousands of years. Initiallymost, if not all, of the newcomers camefrom Asia;"more recently, the%, have comechiefly from Europe following a differentmigration route than the early peoples.

The following outline traces Indianrelationships with the European immigrantsafter 1492 with special reference to--

1. Land status

2. Tribal sovereignty

3. Tribal self-government/

,--all of which were deeply affected -as[European, and finally American, govern-'.ments extended thelr dominion over the

w World, establishing an evertighteningcul ttral and political framework withinwhich Indian development hias taken place.

.,/.

Robert W. YoungArea Tribal Operations OfficerAlbuquerque Area OfficeBureau of Indian AffairsAlbuquerqu.e,liew MexicoApril; 1969

3

Number of politicallyseparate tribal groupsand bands may havebeen as high as 3,000in North'America.

SEE: The AmericanIndian; Indians of11.Tited'States,by Clark Wissler.

Indian Tribes ofNorth America.Memoir 9, IndianaUniv. Publ. in

',Anthro. & Linguistics.

Handbook of AmericanIndians North ofMexico. BAE -Smithsonian Inst.Bulletin 30.

56 language stocks,each including manyseparate languages &dialects.International Journalof American LinguisticsVol. XXVIII (1962) EtVol. XXXI (1965)(W.L. Chafe).

Many cultural zonesthroughout NorthAmerica.

it

1. INDIAN AMERICA. There are variousmates of the number of politically separai..

Columbus' discovery in 1492. Some range asIndian tribes and communities at the time of

high as 3,000 for North America alone. Theearly literature contains more than 2,509names.applied to tribes, bands, communit esand'other types of sub-groups for NorthAmerica north of Mexico, although upon anal-ysis many of these names are identified Asvariant'forms of the same Indian words, asheard or misheard by English, French, SpanistDutch, Swedish and other Europeans; or theyare identifiable, in some cases, with clansand phratries, or with place names.

It appears that, at the time of Columbus,there were at least 238 major tribal groupsin North America, each including varyingnumbers of bands and other types of politi-cally separate sub-groups.

In the portion of North America comprisingwhat is now the United States and Canada,there were at least 56 major linguisticstocks. These with their numerous sep.arat4languages and their many dialects, probablmade up .some 500 or more speech communitie .

In addition, there are about 29 languagestocks in Mexico and Central America, an )about 84 in South America, each with manylanguages and dialects.

Many subrgroups spoke the same or veryclosely related languages. For example,thePueblos of Acoma, Laguna, ZiA, Santa Ana,San Felipe, Cochiti and Santo Domingo areall Keres speaking, with dialect differences';closely related culturally - but each of themig a separate and distinct community politi-cally.

At the time of Columbus' discbvery Indiantribes lived in a variety,of manners depend-

in part, on the geographical environmentthey occupied. Those who lived in what isnow the Witted States can be broadly classedas the Woodsmen of the Eastern Forests, theHunting Tribes of the Great Plains, thePueblo Farmers, the Desert Peoples, the SeedGathArers of Western United States; the Fish-erman of the Northwest Pacific Coast, and thePeople of the Arctic Regions.

42

New World is scene ofmany successive wavesof migration, begin-,ning 15,000 or moreyears

New World "discovered"many times, b9 eachsucceeding group ofnewcomers.

Europeans and Africansare recent "discover-ers" of New World.

Preceding culturesoften over-ran,conquered, displacedor absorbed by incom-ing peoples.

233 politically. separate Indian

groups today, speakingabout 300 languages &dialects.

Prehistorically, the American Continents,like other parts of the world, were thescene of wave after wave of human migi.ationsextending from a remote period when menhunted mammoths, giant sloths, and otheranimals long since extinct down to recenttimes. Folsom Man, distinguished by a pecu-liar spear point, and Clovis Man were amongthe earliest of which we have an archaeo-logical record. Other waves of immigrantsfollowed, entering the New World, probablyfrom Asia across an Alaskan land bridge;like the Basketmakers and the early Puebloanpeoples many of them have left in their wakemementoes of their passing: artifacts, pit-houses, campfires, refuse heaps, mounds andthe ruins of villages. Each new wave of im-migrants "discovered" the New World, just asColumbus "discovered" it in much more recent'times for the waves of European immigrantsthat followed. As one culture superimposeditself on another there is often little evi-dence of the fate of the previous occupantsof an area. Sometimes, as comparative Ian- eguage and archaeological studies seem toindicate, they probably migrated away fromthe incoming peoples; in other instances,they may have been over-run and conquered,or merely absorbed by the newcomers. Pre-history is only now being reconstructed andmany questions will never be answered. What-ever the case, the New World, like the Old,has been .the scene of many changes as succes-sive waves of immigrating peoples have enteredit over the course of the past 15,000 years ormore. Among the last of the major waves ofimmigrants_ have been the Europeans, AfricansandAsiatics who came after 1492 by otherroutes.

Today, some 477'years after Columbus, thereremain about 233 politically separate Indiantribal groups in the United States, speakingabout 300 Indian languages and dialects. Ofthese, only 64 continue to be tpoken by 1,000persons or more.;* Six of the 56 languagestocks that existed in the United States andCanada in 1492 have become extinct, and manyof the 50.. or more separate languages anddialects (the Piro speaking Pueblps.and the'Jumano, for example) have disappeared fromthe scene.

3

rt)

European "Discovery"and Conquest.

SEE: A ContinentLost - A Civilization-,717511by J. P. Kinney

Spain the dominantpower for 3 centuries.

Early colonization byEngland, Holland,France in NorthAmerica.

Principle that title tthe soil passes to"discoverer."

Indians retain titleto occupancy only.

2. COiLONIAL AMERICA. On October 12, 1492Chris other Columbus landed on one of theislands of the Bahama Group. Conquestquickly spread through the Caribbean to

-', Mexico, Central America, South America and,in 1540-41, Coronado penetrated northward.into what-is now New Mexico ultimatelyreaching a point on the Great Plains some-where in what is now Kansas.

Although POrtugal, Xrance, England, Hollandand Sweden alSo became interested at an earlydate in exploring and acquiring parts of theNew World, Spain alone had permanent colonieshere before 1600. During this period Spaindominated commerce with the New World, andshe remained the Chief European power in theAmericas lor three centuries after Columbus.

The century following Columbus' voyages wasone of exploration and continued "discovery"on the part of Europeahs.

'After a few unsuccessful attempts at coloni-zation under individual leadership" (SirWalter Raleigh's attempt of 1585-1587 tostart the Roanoke Colony, for example)England adopted the use of colonizing comepanies:, chartered by the king. The firstroyal charter was given, on April 10, 1606,to two corporations, The Plymouth Company andThe Loron Company, for the settlement of aregion to be known as Virginia. Later, in1623, Holland entered the picture and theDutch West India Company sent out a colonyto settle New Amsterdam, on the site of pre-sent New York City. Previously, in 1614, theUnited New Netherland Trading Company hadbuilt a trading post there. Likewise, Swedensent a royal colony of Swedes and Finns tosettle the Delaware region, in 1638. France,England, and Holland all interested themselvesin the New World and colonies multiplied rap-idly during.the period 1606 to 1750.

o From the beginning, the Old World powers tookthe position that "discoVery" gave title tothe land to the Government by whose subjectsor authority it was made. -The Indians wereadmitted to be the rightful occupants of thesoil, but it was agreed thatTEeYUFETeanGovernment that "discovered" or "took posses-sion" of it acquired legal title against :

other European Governments.

4

Indian legal title tolands n6T/ined ingrants and chartersissued by Europeangovernments, but titleof occupancy was recog-nized as a matter ofpolicy:

f

External sovereigntyof Indian tribeslimited as a resultof European discovery'and possession.

2

O

United States becomesthe successor ininterest to formerEnglish lands after theWar of Independence.

In granting charters, patents, and landgr4nts to colonizing companies or to indi-viduals, title to the soil was conveyed bythe European governments subject only torights of Indian occupancy which could beextinguished only by purchase) treaty orother forin of Indian consent.

Chief Justice John Marshall, in an 1823Supreme Court decision (Johnson v. McIntosh)summarized tribal property rights in'thefollowing words: ," the righfg of theoriginal inhabitants were, in no instance,entirely disregarded; but were necessarily,to a considerable extent, impaired. Theywere admitted to be the rightful occupantsof the soil with a legal as well as a justclaim to retain possessiOn of it, and touse it according to their own discretion;but their rights to complete sovereignty,as independent nations, were necessarilydiminished and their power to dispose ofthe soil. at their own will, to whomsoeverthey pleased, was denied by the originalfundamental principle that discovery gaveexclusive title to those wIlo made it.While the different nations of Europe re-spected the right of the natives, as occu-pants, they asserted the ultimate dominionto be in themselves; and claimed and exercis-ed, as a consequence ol this ultimatedominion, a power to grant the soil whileyet in possession of the natives. Thesegrants have'been understood by all to conveya title to the grantees, subject only' to theIndian right of occupancy. The history ofAmerica, from its discovery to the presentday, proves, we think, the.univerSal recog-nition of these principles." .1

On the premise that title to lands in theNew World was in the European Governmentwhich disCovered and claimed an area, it washeld that, when the United States won itsindependence from England, the United Statesbecame the successor sovereign, holding titleto public domain lands ceded by Great Britain,for the people of the United States - and, inthe case of the Indian lands, the UnitedStates held the title for the Indian occupants.

The external sovereignty of Indian tribes wasunlimited before the Discovery of America andbefore the area of land they occupied passed

Internal sovereigntyof Indian tribesremains unimpairedthrough ColonialPeriod.

Conquest alone doesnot extinguish theinternal sovereigntyof conquered nations.

Z

to European, Control. They had all the power .

of independent nations to-make wax' and peacenegotiate.with other independent nations,-anddispose of their tribal property as they sawfit. After European governments laid claimto the New World, the external sovereignty ofthe Indian tribes was limited because theEuropean governments involved acquired theexclusive right to purchase Indian_lands fromthe tribes; and the tribes could not sell orconvey the lands they occupied without theconsent of the Crown. The tribes could nolonger dispose of their property 'to whomeverthey wished for, from the Eurdpean point ofview, discovery and conquest placed the titletd the soil in the Crown. Their external \

sovereignty was thus impaired and limited bythe European governments.it the time;they"discovered" and tookpossession of argeareas of land in the New, World, but heinternal 'sovereignty' of the tribes 1t theirright to govern themselves - remained unim-paired.. f

Chief Justice Marshall observed (Johnson v.McIntosh.J1823) that "Certain it is. that ourEliTUFTfurnishes no example, from the 'firstsettlement of our country, or any attempt on..'the part of the Crown, to interfere with theinternal affairs of the Indians, farther thanto-keep out the agents of foreign powers who,as traders or otherwise, might seduce theminto foreign alliances."

Throughout the Colonial Period tr bes re-tained their sovereign right to vern them-selves. They were accepted as distinctpolitical communities, w4h exclusive author-ity over their memberb, ihciuding the powerto regulate the use and occupancy of triballands. It was never held from the earliestColonial Period, that Cdnquest itself 'termin-ated the internal sovereignty of a tribe.The powers of self-government could be limitedor extinguished by the terms of treaties orby legislative-acts of the conquering government-, but not by the fact of conquest alone.These principles were set forth by the SupremeCourt of the United States, at a later time(Worcester v: Georgia: 1832; Wall v.Williamson; 1B45).

Diplomatic -ambassadorial servicesmaintained to dealwith Indian tribes.

European powerscompeted with oneanother for controlofareas of the New.World, and involvedthe tribes in theirpower struggles.

French and IndianWars 1754 - 1763

ti

Indian tribes becamepawns in the Europeanpower struggle.

In the early 1600's, at the time the .firstcolonies were established in the eastern partof what is-now the United States, the Positionof the colonists was precarious.

Surrounded by numerically superior Indianforces, they attempted to maintain peacefulrelationships with the native peoples. To,accomplish this purpose, a special diplomaticservice was. developed to deal with Indianproblems. The concepts of property ownershipheld by the European "discoverers".were notimmediately intelligible to the Indians, andtrespass on what Indians considered to betheir lands, coupled with sharp trading prac-tices, high pressure tactics in promotingChristianization, and other factors, contri-buted to disorder and friction between thecolonists and their frontier neighborS. In

addition, the several European powers involvedin colonization Of the New World fought amongthemselves over the,spoils of conquest andIndian tribes soften became involved as alliesof one or another of the European Governments.

Settlers acquired the lands they occupied byarious means including

k>

treaties with, giftsand purchases 1.(3m the I dian occupants.

, . I

ringthe periad 1754 - 1763 England andFrance were -involved in a struggle for powerknown as the Seven Years War,' part of Whichwas'fought in the ew World where it wasknown as the Frenc and Indian War. Francewas defeated in th

1.

s struggle and GreatBritain-emerged as the possessor of practi-cally all of NorthiAmerica east of theMississippi River.' In this conflict, and inother situations involving the competingEuropean powers, Indian tribes were directlyinvolved as allies of one-or another of thecontending forces, usually with disastrousresults.

Repeatedly, the Indians were pawns in theEuropean power struggle, not only in theregions dominated by England, France andHolland, but in the areas of Spanish domin-ation, as well.

In Spanish Apierica many Indian tribes, obligedto ally themselves with the invading Spaniards,made alleavy contribution to the Success of

7

Indian allies a majorforce in the SpanishConquest of Mexicoand the Southwest

Two Superintendencies'of Indian Affairsestablished after 1763

Balance of powershifts to colonists.

Three Departments ofIndian Affairs wereestablishedin1775by the Continental

-Congress to maintainIndian neutrality.

the conquest. In some situations such al-liance was the price of survival, as in th..Pueblos of New Mexico who were obliged to

'provide, warriors to assist the Spaniards intheir conflicts with the Navajos and Apaches.The latter were never overcome by Spanishafms but the Navajos and the Apaches came toTook upon the Pueblos as enemies, and theIndian villages suffered along with theSpanish settlements in the centuries of.war-

, fare.that followed.

During the course of the French and IndianWars, in 1756, two Superintendencies of

. Indian Affairs were established, one servingthe Northern Colonies and one serving theSouthern Colonies. Their function was pri-marily ambassadorial, designed to maintainpeaceful relationships with the Indian tribesthrbugh the control of Indian trade and theregulation of land acquisition from theIndians. 'Both were sources of friction.

By the opening of the American yar of Inde-pendence the balance of power had shifted,in'theSettled areas of the east, from theIndian tribes to the colonists.

3. THE WAR OF INDEPENDENCE AND THE POSTREVOLUTIONARY PERIOD. During the course ofthe American RevolutiOnary War, many of theeastern tribes were again pawns in the powerstruggle. The Revolutionary Government tookimmediate steps to,forestall Indian alliancesvith.the British and to maintain the neutral-ity of tribes'along the frontiers. To accom-plish this purpose three Departments ofIndian Affairs were established, in' 1775: ANorthern, Middle and Southern Departmentserving the Northern, Middle and SouthernColonies. The importance pf this effort isreflected in the fact that Benjamin Franklin, .Patrick _Henry and James Wilson were named asCommissiOners in charge of the Middle Depart-ment.

The first treaty between an Indian tribe andthe United Stated was made, on September 17,1778, with the Delawares.

108

By ordinance of August7, 1786, the Congressof the Confederationestablished a Northernand a Southern Depart-ment of Indian Affairs

' -

Later, in 1786, the Indian Affair's Departmentwas reorganized by the Congress of the Con-federation. At that time two Departmentswere established: A Northern and a SouthernDepartment, with the Ohio River as the divid-

. ing line. Each was 0.eaded by a Superintendentreporting to the Secretary of War. Not onlydid they continue to function as an ambassa-dorial service, but they were empowered to,grant licenses to trade with Indians and °

permits under which non-Indians could livewith tribes.

United States issuccessor in all rightsand interest to GreatBritain after 1783.

United Statescontinues occupancytheory of Indianland possession-

.

Indian Affairs placedunder War Departmentafter., adoption ofAmerican Constitution.

The Erosion of InternalTribal Sovereigntyaccelerated afteradoption of AmericanConstitution (1789).

ek%

In 1784, after the end of the American Warof Independence, Great Britain ceded to theUnited States a'large part of her territoriesin North America. During 1785-1786 the UnitedStates entered into treaties with a number oftribes occupying lands in the Northwest ter-ritories, including the Wyandotte, Delaware,-Chippewa, Ottawa and Shawnee, under the termsof which the tribes acknowledged the sover-eignty of the United States as the successorto Great Britain. The United StAites assumedall of the rights formerly held by Britain.In 1789 a similar treaty was negotiated withthe tribes living in the territory northwest'of the Ohio, including again the Wyandotte,Delaware,, Ottawa, Chippewa, Potawatomi, andSauk under the terms of which the UnitedStates "quit-claimed certain lands to theIndians to live and hunt upoil, but forbadethe sale of such lands except to theUnitedStates. Here was clear indication of theoccupancy theory of Indian possessionfthatwas later accepted by the United StatesSupreme Court" (Ki:nney - A Continent Lost -A Ciyilization Won).

Following adoption of the erican Constitu-tion the Congress, on-August 7, 1789, estab-lished the War Department an plkced IndianAffairs formally under its j risdiction.From this time on there was progressiveextengiOn of Federal author ty over the prop-erty and person of the In ian -people. Anerosion of the internal sovereignty of Indiantribes began..

In 1787, in the form of the Northwest Ordi-nance, the United States Government made itsfirst formal expression of Indian policy.The Ordinance was confirmed by CongreSs inthe Act of August 7, 1789, and provided

4.

American Constitutiongave Federal Governm4ntexclusive jurisdictionover Indian Affairs.

Act of July 22, 1790,confers broad regula-tory powers onPresident.

External SovereigntyL., of Indian tribes ends

with adoption ofAmerican Constitution.

Regulatory role ofFederal Governmentincreases rapidly.

Bureau of IndianAffairs createdon March 11, 1824.

that (1) .Indian land and property would notbe taken without the consent of the tribes,.(2) their property, rights and liberty wouldnot be invaded or disturbedunless in justandilawful wars authorized by Congyess, and(3) laws founded in justite and humanitywould be enacted, from time to time, to pre-vent wrongs being done to the Indians and topreserve peace and friendship with them.The American Government, followifig adoptionof the Constitution, began to concern itselfwith the protection of the Indian tribes,including the enactment of _protective legis-lation.

Article 1, Section 8, cl 3 of the Constitutiongave Congress the power to regulate commerce(trading) with Indian tribes-Ind'is the baSisupon which the Federal Government assumedjurisdiction over Indian Affairs to,the ex-clusion of the states,

The Commerce provision of the Constitutionwas given a broad interpretation and, onJuly 22, 1790, Congress acted to confer ex-tensive regulatory powers on the Presidentwith respect -to Indian matters,, includingauthority to regplate land sales, take .actip.,in certain types of crimes and prevent tres-pass.

'For Indian tribes under the j risdiction ofCongress external sovereignty ended with theadoption of the American Con itutiOn an0 theassertion of Federal jurisdiction over IndianAffairs, but the tribes retained theii inter-nal sovereignty- -the power to regulate theirinternal affairs. However, Fideral Agenciesbegan to_assume an expanding role in regulat-ing Indian relationships. During the period .

17961-1882,4the Federal Government 'operatedthe- trading posts, in Ind4n Country, toassure fair' prices and good treatment of theIndians.

,

The Bureau of Indian Affairs was created OnMarch 11, 1824, by order of Secretary of WarCalhoun and by an -Act of July 9,, 1832, Con--gress created the office of Comdissioner ofIndian Affairs.

1210

-7)

FEDERAL INDIAN LAW,Felix Cohen - Publ.

11"1958, GPOThe Office of IndiansAffairs, by Lawrence E.Schmeckebier, publ.1928 -*Institute forGov't- Research.

Millions of acres ofIndian land ceded toUnited States during

. period.1800-1817.

I

Indian reluctance topart with more landleads to forced re-movals,of entiretribes to new landsfarther west.

The Jacksonian. Period: 1829-1837

Policies made toprevent alienation of,Indian lands withoutconsent of Congress.

Later, on June 30, 1834, Congfess acted toestablish a Department of Indian Affairs.It remained under the Department of War un-til 1849 when, by an Act of March 3 establish-ing the Home Department of the Interior, theBureau of Indian Affairs was transferred frommilitary to civil control.

4. THE PERIOD OF NATIONAL EXPANSION.Beginning immediately after 1800 there wasa great drive to open new lands for settle-ment in the -west. During the period 1800-1817 millions of acres of such lands wereobtained through the negotiation bf treatiesof cession with Indian tribes. The loss ofthese lanOsNled to unrest and opposition onthe part of manyr Indian groups Tecumseh, aleader of the Shawnees, threatened to allyhis tribe with the British unless the trea-ties of cession ceased. Some tribes includ-ing part of the Creek Nation, joined the sideof the.British in the War of 1812 and, follow-ing their defeat in the Creek War of 1812-13Andrew Jackson dedanded the cession of 23

million acres as indemnity.

Reluctance on the part of the tribes to cedenew lands, and the heavy pressure brought tobear by settlers'were factors that led toinitiatipn of the Indian Removal Policy duringthe period 1817-1846, under which the FederalGovernment offered lands farther west in ex-change for territory east of the MississippiRiver. Treaties of-removal predominated afterthe War of 1812. The Cherokees were obligedtOkagree to such a treaty of duress in 1817,

although migration remained voluntary.

In 182.9 Andrew Jackson became President ofthe'United States. He had long favored the,forced removal of Indians to the west, andthe State of Georgia immediately began toharass the Cherokees in an attempt to destroythe tribal government. This harassment ledto the celebrated Supreme Court decision de-livered by Chief Justice John Marshall in 1832(Worcester v. Georgia), which paved the wayfor the legal position that (1)- originallyIndian tribes had all'the powers of anysovereign state; (2) conquest made them sub-ject to the legislative power of the UnitedStates and terminated their external sover-eignty, but (3) internal tribal sovereignty

3°

remains in a tribe to the extent that it L=snot been extinguisted or abridged by posienactment of Congress, pr limited 'by the

tA terms of treaties.

Indian consent to landcession ,continued tobe obtained throughtreaties.

(

"Trail of Tears"Period

Indian land holdingsshrink. Public policy

1calls for reduction ofIndian'land areas.

Treaty-making continued as the chief mediumthrough which to obtain Indian consent toland cession. The Act of June 30, 1834,provided that "No purchase, grapt, lease, orother conveyance of lands, or..4/ any47titleor_claim thereto, from any Indian nation ortribe of Indians shall be of any validity inlaw or equity, unless the same be made bytret or convention entered into pursuantto t constitution." At the same time, thispolicy was designed to protect the tribes bypreventing the alienation of their landswithout the consent of Congress.

iZDuring the Jacksonian Period (1829-1837) theCherokees, Chickasaws, Creeks and many othertribes were forced to move to new lands westof the 'Mississippi River. It was a periodof great turmoil, and western lands soon be-came dWicult to find.

During the 1800's the tide of immigration'swelled, and the United States rapidly ex-tended her boundaries westward across thecontinent to the Pacific Ocean.

Following the Mexican War of 1846-1848, Mexicoceded all of the old Province of New Mexicoand California to the United States and ac-knowledged the annexation of Texas. TheCalifornia Gold Rush of 1849 brought newhOrdes of adventurers westward.

As the competition for land grew the Indiantribes were directly affected. Their holdingsshrank and public opinion took the positionthat the tribes should not be allowed to re-tain the large areas over which they roamed,but rather their holdings sbould be reducedto the acreage required for`tubsistence onthe basis of agriculture. By 1853, theprinciple was already being advanced thatIndian land* shOuld be reduced to individualfarm acreages with the surplus.thrown openfor settlement. It was proposed that theproblem thus created be resolved by absorb-ing the Indians into the general population_

12

The Indian Wars ofthe 1860's.

Western Indian Reser-vations established,largely during theperiod 1863-1867.

Treaty making withIndian tribes endedin 1871.

Confinement onReservations led tobreakdown of tribaleconomy and gave riseto "feeding policy"of the 1870's.

Rise of FederalPaternalism.

Institution of the"Peace Policy."

By the mid-1800's the western tribes woredeeply perturbed and during the Civil War(1861-1865) the Sioux, Comanche, Arapaho,Kiowa, Cheyenne, Crow, Apache, Navajo andothers attempted to turn the tide and driveout the white people.

Zikom 1800 until we 1 after the Civil War theBureau of Indian fairs was deeply involvedin the complex of human problems growing outof conflict between the Indian tribes andthe nonii, -Indian immigrants.

5. THE POST CIVIL WAR PERIOD. During theperiod 1863-1867 most of the western Indian.reservations were establishe'd, setting asidefor theuse and occupancy of the tribes aportion of their former land holdings, ordesignating other lands for their use andoc

I

upancy. Until 1871, the Federal Govern-me t negotiated land cessions by treaty, asit had in the past. The Act of March 3,1871,however brought an end to treaty-making withIn an tribes, and reservations were there-after established by Executive Order of thePresident or by At of Congress.

The confineMent of western Indian tribes toreservations quickly led to social and eco-nomic breakdown. The hunting tribes couldno longer subsist by following the buffaloherds, and they were not culturally condi-tioned to substitute intensive agriculturefor their traditional way of life. As aresult, Indians came to be regarded as ob-jects of the national charity, and their

,survival hinged on the "feeding policy"/ instituted in the 1870's. - a systemrationing to prevent starvation..

At the same time, with the breakdown'oftraditional tribal government and control,the Federal Government stepped into the gap,using the troops when necessary, and usher-ing in a paternalistic relationship with thetribes which continued through the first .

quarter of the 1900's.,

The Act of April 10, 1869, had paved the wayfor presidential action designed to end theIndian wars including settlement of thetribes 'on reservations, "civilization". of

Individualization of,tribal land holdingsthrqugh the allotmentsystem brought furtherlosses in the triballati37base.

.

the IRdians, and appointment of a Board reIndian Commissioners which President GraiAestablished in,,1869.' In the same ypar, itsubmitted six important recommendations in-cluding (1) allotment of Indian lands in'sevevalty, (2) abolition of Indian treatymaking; and (3) establishment of schoolsand induAtrial training. School operationwas contracted to the major church denomin-ations - an arrangement that did not enduntil after 1897, and the Board continueduntil '1933.

The possessory right of Indian tribes toreservation.lands varies. In some instancesCongress has made specific grants of leesimple rights; in other instances givOn areasof land are reserved "for the use and occupan-cy of" a tribe. The two major methods ofestablishing reservations havbibeen (1) publicland withdrawal, and (2) purchase of privateland. However, Indian tribes have acquiredinterests in teal property in a number ofways, including (1) aboriginal possession,(2) treaty, (3) Act of Congress, (4) Execu-tive Order, (5) purchase, and (6) action ofa colony, state or forei*n nation. The-United States generally nods the title th.reservation lands, while the right of use andoccupancy is in the Indians. The consent ofthe United States is generally required forthe sale, conveyance or lease of.tribal lands,continuing the principles developed in colo-nial times under which tribes could sell orconvey their lands only with the consent ofthe Crown or the colonial government. Incolonial times the consent of both partieswas usually obtained by treaty and an Act ofMarch 1: 1793, continued this procedure afterthe United-States replaced Great Britain asthe sovereign. In more recent times the con-sent of the United States is usually given bythe Secretary of the Interior with respect toleasing, and by Congress in the sale or alienation of-Indian lands. The tribal councilacts to give tribal consent.

The shrinkage and individualization of Indianland holdings remained a popular national ob-jective until well after.the turn of the 20thCentury, and the General Allotment Act of .

February 8, 1887, Opened the way for thelotment of reservation lands to individuaIndians. As a result, by 1890i-17.4 million.

18.14

. The "Competency Act"of r9os. k

acres - 1/7 of all remaining Indian land -was acquired by the Federal Government andthrown ope6 to settlement.

Indian allotments wereihrequired to be heldin trust for a 25 -year period by the,FederalGovernment, but an Act bf Congress in 1906permitted the Secretary of the Interior toissue titles to allotments in freiNle ifIndian applicants were adjudged to be "com-petent." Again large acreages of Xnd4anlands passed out of Indian ownership, either

as a result of outright sale by the owners,,or as a result of forced sale for non-paymentof property taxes. 'u

Land losses had a further demoralizing effect

on reservations and shrinkage of the land baseaccelerated the breakdown of tribal societies.

In 1948 a''J--judge 6. 'THE INDIAN OF THE TWENTIETH CENTURY.Federal District Court, After the turn of the 20th Century, Congress

inTrujillo v. Garley, and the American public became increasingly

opeiTafliTrWay to concerned with Indian welfare and development.

Indian voting in New A few boarding schools had been built during

Mexico holding a pro- the period 1880-1902, most of them situated

vision of the State at locations distant from the reservations,

IIIConstitution to be in and after 1900 schools$egin to appear on the

violation-of the 14th reservations themselves. An-:effort.was made

`14 15th Amendments of to "de-Indianize" Indian children and pave the

the Federal Constitu- way for their absorption into the national

tion;' and in 1948 the population. The early schools were poorly4rizona Supreme Court financed.'in Harrison v. Laveengave the vote to An Act .of June 2, 1924, conferred citizenship

Arizona.IndianS. on all Indians who had.mot already achievedthat status, although sqme states did notmodify their constitutions, to permit Reserva-tion Indians to vote unt42Arter World War II.

I

s

'The Meriam.Report of1928 and 'the era ofreform in, Indianadministratlia.,

National policy beginsto shift toward Indiandevelopment.

During the period 1926-1928 the Institute for,Government Research carried out a survey of

social and economic conditions on Indian Res-ervations and issued a comprehensive reportentitled Thb Problem of Indian Administration- more popularly known as "The Meriam Report:The shocking social and economic conditionsit reflected on Indian Reservations led toincreased appropriations by Congress and 1,,vshift in emphasis by tile American public andthe Federal Government away from custodialfunctions towardAhuman development.

1 7

15

. t

Education policyreversed in the 1930's.

The Indian Reorganiza-tion Act of June 18,1934, provided astatutory vehiclefor reforms in Indianadministration.

Indian tribes had tovote on acceptance orrejection of IndianReorganization Act.233 tribal electionswere held during 1934- 1936 and k81 tribesrepresentint129,750Indians voted accep-tance, while 77 tribes,representing 86,365Indians rejected the'Att. e

Under Commissioner John Collier, FederalIndian Administration underwent revolutioti-ary changes. Education policy was reversed,and emphasis was placed on the constructionof schools on Indian Reservations where theycould provide the nuclei for community devel-opment; the loss of Indian lands was halted;and an attack was launched on the serioushealth problems that were so common amongIndian populations.

In large part, the new direction in Indianaffairs found its way into law with the pas-sage o&the Indian Reorganization Act ofJune 18, 1934. On the principles set forth

hief Justice John Marshall in 1832 - thattribes retained their internal sover-

eignty to the extent that it had not beenextinguished or limited by the terms of trea-ties or by-Act of Congress - the tribes wereencoura-ged.to reorganize, and to exercisetheir residual sovereignty through the. mediumof tribal governments based on tribe consti-tutions. Section 16 of the Act of J ne,18,.1934, opened the way for this devel pment andmany tribes took advantage of the new oppor- p

tunity-th4s offered them. On many reservai-,pstraditional tribal governmental'organizatiG-4had broken down or disappeared from the sceneduring the long period of conflict and pater-,

onilistic control.

First tribal constitu- It was not with a view to re-establishing thetion adopted under the Indian.tribes as political enclaves in theIndian Reorganization nation that the reorganization of tribalAct was that of the . government was encouraged - rather,, thisConfederated Salish- 0. course was taken in the conviction that socialand Kootenai Tribes of and economic progress on the reservations wasthe Flathead Reserva-' * possible only if the Indian people themselvestion in Montana, . were organized to participate in planning andapproved on Octoter 28, carrying out the essential programs. ...

1935.

The Meriam report of 1928 and the Indian:-Reorganization Act of 1934 were turning pointsin Indian history and in the history of theBureau of Indian Affairs.. Beginning as. anambasiadorial service some 200 years ago, theBureau was involved in the negotiation of

Changing role of the Indian treaties and the removal of tribesBureau of Indian ' during the period of national expansion; itsAffairs reflects chang- agents and employees sought to protect theing national attitudes tribes and their remaining lands from furtherand congressiodal encroachment after the establishment of ti )directives. reservations; the Bureau provided necessary'

8T6

Bureau of IndianAffairs emphasizesIndian development,especially after 1934.

-

_custodial services, and it was the instrumentfor paternalistic control during the latterpart of the past century. The function ofthe Bureau from period to period overthe course of American' history as nationalattitudes and congressional requirementsdictated.

Finally, and especially after 1934, the Bureau-of Indian Affairs became the principal agencyof Government charged with responsibility forhuman develophent on Indian reservations.,

Since 1914, most reservation tribe eve re-organized their tribal governments have .

taken long strides in the conquest f r .or-

vation problems with the help of the Bureauand many other:;deral and State Agen ies.

Indian Claims Act ofAugust 13,..1946, pro-vides the basis forcompensation to tribeswhose lands were taken,and 109 awards totalinc$290,533,012 to date(April 1, 1969) providecapital for reservationdevelopment.

Reorganized tribalgovernments are

-patterned after Anglo-American institutions.

The Indian Claims Act of August 13, 19.6,established an Indian Claims Commissi andopened the way for tribes to enter sl=imsagainst the Federal Government for lands andproperty wrongfully taken from them by theUnited States, before 1946. Awards totalingmany millions of dollars have been paid andmany tribes have used their claims money forproductive reservation development. In addi-tion, some tribes have received substantialincomes from mineral, timber and other re-source. developments on their reservations.The productive uses to which many tribes paveput tribal revenues reflect the effective essof their own tribal organization

Indian people today have found their placeas American citizens in the national societywithout toeing their identity as Indians.

The tribal governments that were*,revived.under the Indian Reorganization Act were, forthe most part, patterned after standard Anglo-American democratic representative institu-tions. In view of the fact that traditionalnative governmental organizations had longsince broken down among most tribal groups,the non-Indian framework within which reor-ganization took place did not meet with theresistance it might otherwise have had.Traditional concepts of government stillplayed a part, influencing the 'structure andoperation of the reorganized tribal councils,but the predominant features were those ofnon-Indianesociety. Under most of the IRA

1917

. -

Initially, reorganizedtribal governments didnot_separate.theirexecutive, legislativeand judicial functionsinto departments.

Pueblo Government is ageneral exception inthat the traditionalinstitution did notbreak down in the. 19thCentury, but continuedto the present day.

Titlesto Pueblo landgrants dame from theSpanish Government.

constitutions, council delegate's are elecsldby popular vote as representatives of the..1people. In most situations the council ini-tially function0d as the executive as well asthe legislati, body - and sometimes it hadjudicial responsibilitiesfas well. Since1934, the trend has been in the direction ofseparating the executive, legislative, andjudicial functions of tribal government.Gradually, council chairmen have been dele-gated executive authority by the councils astribal business and activities expanded andin a few instances (the Mescalero andJicarilla Apache, for example) the tribalconstitutions have been revised to provideformal separation of the three departmentsof government - a reorganization in whichthe office of council chairman has becomethat of tribal president, and identified agthe chief executive officer of the tribe.

A general exception to the course of eventssurrounding other tribes has been the 19Pueblos of New Mexico whose village govern-ments have continued, with minor modifica-tions since pre-Spanish times. Although allbut one of those Indian communities (Jeme:accepted the Indian Reorganization Act of1934, only three have adopted tribal consti-tutions (Laguna, Isleta-and Santa Clara) -and these reflect a blending of traditionalPuebloan and Anglo-American concepts.Throughout the historical period, beginningwith Coronado's invasion of New Mexico in1540, the Pueblos have successfully retainedthe fundamental institutions of their pre-Columbian culture, despite persecution andheavy pressures to change. Their lands re-main essentially the grants they received.from the Spanish Crown, with areas'added byExecutive Order or purchase during theAmerican Period and they are held in feesimple title under patents from the UnitedStates. No treaties were entered into be-tween the United States and the Pueblosexcept to the extent that they were protectedas Mexican citizens and not as 'Indians by theterms of the Treaty of Guadalupe Hidalgo- be-tween the United States and Mexico at theclose of the Mexican War.

The territorial legislature, in 1847,,recoP.nized the Pueblos as "bodles politic andcorporate", and in 1858 Congress acted to

29

18

Pueblos came underFederal control, on apar with other IndiansAfter 1912.

Power to administerjustice is an aspectof residual tribalsovereignty. Externalsovereignty limited.

Internal sovereigntylimited by enactmentsof Congress.

confirm, Pueblo. land titles subject to any"adverse valid rights." Squatters on Puebloland,, beginning in Spanish times, had consti-tuted a long standing problem which was notresolved until after 1924 with the establish-ment of the Pueblo land status and the courtactions taken by the Department of Justice toquiet title to lands shown to be the propertyof the Pueblos. .

It was not until after New Mexico's admAssionto statehood in 1912, that the Pueblos flameunder Federal control as Indians, on a parwith other tribes throughout the nation. '0

7. THE-ADMINISTRATION/OF JUSTICE BY TRIBALGOVERNMENTS. The Indian tribes began theirexistence as-sovereign nations, with fullpower to deal with other politically inde-pendent communities on the one hand (externalsovereignty) and to regulate their internalaffairs on the-other (internal sovereignty).,Their external powers were limited by Euro-pean governments which "discovered" andextended their jurisdiction over areas of theNew World, and the external sovereign powersof Indian tribes in the United States wereextinguished with the adoption pf the.Ameri-can Constitution in 1789.

The American Constitution gave CongreSs hepower to regulate commerce with Indian tribesand provided the basis upon which the FederalGovernment took jurisdiction over Indian af-fairs to the exclusion of the states. After1789, the Federal Government rapidly expandedits regulatory role in its relationship withIndians.

With national expansion in the 19th Century,Indian tribeg were obliged to move westwardor they were placed on reservations.- duringthe latter part of the century many of thereservations were broken up into allotments.The resulting turmoil and disruption of triballife'led to a breakdown in tribal government,on most. reservations. There wereAsome exceptio:11/! for.example, the Pueblos of New Mexiret ned their traditional governmental organizitions; And after two centuries of contactwith European culture before their removalwestward the Five Civilized Tribes were ableto maintain their tribal governments, organ

19

The internal sover-eignty of tribes waslimited at an earlyperiod in Americanhistory as it relatedpa relationships withnon-Indians, but re-mained intact in theregulation of internaltribal affairs untiltribal governmentalorganizations brokedown.

Act of March 3, /885,limited the power ofIndian tribes and theircourts over certainmajor crimes.

O

ed on AMerican forms. They adopted law cd us,,on the basis of tribal constitutions pattqi '-

built jails, maintained tribal police, oper-ated schools and otherwise acted in the inter-est of their survival as tribes. .

Poi- the majority of the trlbes,'VederalAgencies had to step into the vacuum leftwhen native governmental organizations ceasedto operate. Some tribes had.riever functionedas tribal political entities - they had beenorganized traditionali4y on a band or localgroup basj.s, with varying degrees of autonomy.

Initially the tribes had administered justiceon the basis of tribal law and custom, punish-ing not only their own members but non-membersand non-Indians, as'well, for crimes committedon the lands under their jurisdiction. How-ever, even before the adoption of the AmericanConstitution the trend was,to provide thatIndians committing crimes,against citizens ofthe United States be turned over to the UnitedStates for punishment. Treaties with theWyandotte and the Cherokees so provided, asearly as 1785. The punishmen of crimescommitted by Indians against I dians remainin the hands of the tribes as long as thetribal governments were ca le of administer-ing justice.

The Federal Courts have limited jurisdictionand state jurisdiction was excluded until veryrecent times (Act of August 15, 1953; Act ofApril 11, 1958). the gap had to. be filled bytribal jurisdiction or by makeshift nrrange-mente.

The Act of March 3% 1886, gave to the FederalCourt jurisdiction over certain major offensescommitted by Indians against Indians, includ-ing murder, manslaughter, rape, assault withintent to kill, arson, burglary and larceny.

.

Later, robbery, incest, assault with a deadlyweapon, embezzlement and certain other offenseswere added. The action of Congress in con-ferring jurisdiction over these offenses onthe Federal courts filled the gap that hadformed on most reservations as a result of t

the breakdown of native governmental organi-zations, while at the same time it was .afurther invasion of the internal sovereigntyof the tribes.

2220

Courts of IndianOffenses createdin 1883.

Indian Police andJudges, by Wilson T.RiTOTIW- Publ. 1966Yale Western AmericanaSeries No. 13, YaleUniv. Press.

411 General Allotment Actof 1887 and the CurtisAct of 1898 threatenedextinction of Indianself-government.

Indian ReorganizationAct of 1934 opens theway to re-establish-ment of tribal self-government.

In the early 1880's conditions had become sobad in some reservations that the Indian Agentsand even the tribal police were obliged to

double as judges. As a result, in 1883, theSecretary of the Interior authorized the es-tablishmeht of Cous of Indian Offenses whichdispensed justice on the basis of a code oflaws developed by the Department of theInterior. Courts of-Indian Offenses wereestablished only where tribal organizationshad broken down. They reached their peak inabout 1900 at which time two thirds of allreservation agencies had them.

The Courts of Indian Offenses were not verysuccessful. They received very little finan-cial support,- in fact, the Indian judges in

the Courts of Indian Offenses received nosalary at all until 1888, and thereafter theywere paid onlys $3 -$8 per month. The judgeswere recruited from the "progressive" elementswithin the tribal population and they reflec-ted non-lpdian attitudes and prejudicesagainst4uch native institutions as religion,ceremonialism, medicine men, polygamy andother cultural features.: The judges were nottrained and their "debisions" were often dic-tated by the Agent or by the police.

After passage of the Allotment Act of 1887 -also known as the Dawes Act - Indians receiv-ing allotments went' under state civil andcriminal jurisdiction. Under the ,terms ofthe Act they became citizens and CommissionerT. J. Morgan held, in 1892, that "there canbe no system of Indian Courts where Indianshave become citizens, and no system of Indian

police."

The Curtis Act of 1898 dealt a death blow tothe tribal courts and - police of the FiveCivilized Tribes, applying the Allotment_principles of the Dawes Act, and providingfor the dissolution of their.tribal govern-ments by 1906. '

The Competency Act of 1907, opened the doorswider to further shrinkage of tribal landsand internal tribal sovereignty. Conditionson the reservations grew steadily worse'untilthe initiation of a reform movement afterWorld War I which culminated in the.IndianReOrganization Act of 1931. In its originalform, the:Reorganization Act contemplated a

2a.

21

,r

Reorganized tribesadopted codes of lawpatterned atterEuropean - American

--

concepts of justice'

)

Residual tribalsovereignty is exer-cised today within aframework imposed byCongress in whichtribal clistom andusage are giving wayto European-Americanphilosophies and pro-cedures of government.

special- ..court of Indian affairs but the1 t

section embodying this court was eliminated.However, Section 16 of the Act authorizedtribes to reorganize under tribal cemstitu-tions, and the modern tribal courts came intobeing 'with the reorganized,tribal gowernmentS.They administer justice pursuant to a tribalcode of laws, usually subject to approval-bythe Secretary of the Interior - or, in.theabsence of such a Code, they use that con -tained in the Code pf Federal Regulations,Title 25. :-

On the basis of,, C f Justi6e Marshall's,decision the principle was established that..Indian tribes'r.etained all of their internal,sovereign powers to the extent that they werenot waived or limited t4 treaty or,by positiveena ents of Congress. .Those powers of sell-g vernMent that'were not thus limited or ex-inguished were still retained and could be

e ercised by the tribes. ,FurtherMore it washeld that residual tribai-sovereigntyrivas notlost or impaired'by failure of a"tribe to exer-cise it. Consequently, tribes that reorganizedunder the Indian Reorganization Act or other-wise could exercise all of their,residual. !

sovereign powers, even though they might nothave exercised .them previously on a tribal-basis - or even though there might have beena period during which they ceased to exercisethem.

In the administration of justice on Indianreservations the trend has been in the direc-tion of adoption of Eurppean- American conceptsof law and punishment r ther than continuation'of traditional tribal concepts and usages. Tosome extent there has been a blending lof thetwo systems and philosophies, and in a fewtribal situations traditional concepts andpractices are still importadt. Title II ofthe 1968 Civil Rights Act (the Act of Aprilrl, 1968) further limits internal tribalsovereignty to the extent that-it makes ap-plicable to Indian tribal governments, intheir relationship to the Indian people under'their jurisdiction, most of the same restric-tions Old guarantees as the American Consti-tution applies to the CongreSs under the Billof Rights.1 Thus, in the exercise of .theirresidual internal sovereign powers, the tq-"leshave patterned - or are encouraged and sonL/

2422-7/\

4101Habeas corpus.-

Power .of tribal courtsto punish,offendersagainst tribal lawliMited. 4

Tribes may requestassumption of stateturiddiction.

Je

- times required to pattern - their organi10-tion and procedures on European-Americanusages and principles.

Title II of thy Act of April 11, 1968, (PubliLaW 90-284, Civil Rights Act.of 1968) also4pTovides that any Indian person who believesItimseV to be wrongfully held in jail byorder :Of an Indian Tribal Court can petitiona Federal Court for a writ of habeas corpus,i.e. a court order that has the effect oftesting the legality of the order issued bythe Tribal Court.

In addition, the 1968 Civil Rights Act limitsthe punishment that can be meted out by thetribal courts to a maximum of six months inprison or a fine of $500, ,or bofh,, for con -'ciction of any one offense.

Under existing law Indian tribes can electto abandon their judicial and law enforcementfunctions entirely and permit-the states toassume criminal and-civil jurisdittion overthe reservations.

Tribal custom ilY the Traditionally the tribes varied somewhat in4

area of soc).al'control their customs and usages in the area of socialend the administration "'~control. However, in most instances ridicule

f justice varied from, group to''group;,traditionally. %,

Ridicule and socialpressures important

and social prdssures were relied upon to ob-tain conformity with tribal law. Punishment,when necessary, might take the form of per-sonal embarrassment, corporal punishment,payment to,the victim or his family, vendettas,retribution, banishment or execution. Crimes

instruMents,for secur- against property were insignificant in most..4ng conformity witpL.- traditional Indian societies. Sharing andtribal laws. cooperation were stressed as cultural values,

and the scarcity of personal pogsessionis madeimes against property stolen objects conspicuous in a closely knit

insignificant in tradi- community.tional Indian cultures.

Among the Plains Indians homicide, adulteryand violations of.hunting rules were paramount'crimes. The tip of the nose or the entire noseof adulterous wives was cut off, and among theCheyenne murderers were banished.

Corporal punishment. CheroXee law required 100'lashes for horsetheft, while rapists were punished with 50lashes 'and the left ear was cropped Close tothe head for the first offense. A secondoffense brought 100 lashes and the right earwas cropped; a third offense was punished byexecution.

2523

Zuni Law by Watson'Smith and John M.Roberts, publ. 1954by Peabody Museum ofAmerica,' Arch. &Ethnol., Harvard Univ.Vol. 43-No. 1.

1

a

The Plains Tribes were divided into bands frten Or eleven months of the year followithe buffalo herdso each under its ow lewho administered justide.

Among the Pueblos of the Southwest, offensesfell into two broad categories: (1) thoseagainst, the community, including witchcraftand crimes against the religious-ceremonialsysteM; and .(2) those against individuals,including theft,,nturder, rape, adultery and

\-slander.

Witchcraft was and accusedwitches were dealt with arshly. Such a per-son might be hung a horizontal tar setup in the plaza, sus ended by his fedS, thumbsor by his arms tied bahind his back., He wouldbe "encouraged" to confess, sometimes by peri-bdic clubbings, on the premise that powersconfessed were powers lost. Accused witchesWere sometimes executed and so great was thefear of witchc a t that entire villages weresometimes wiped Tout nests of sorcerers -or llages split with art-Of the population1:aving. -After confession, Accused witchesight be required to undergo purificationefore b ing released.

ng the Zuni, the only crimes punishable byth were witchcraft and cowardice in battle.

Violation of ceremonial procedures and require-ments among the Pueblos was sometimes punished

'-by whipping. she divulging of-religious sec-- rets was A,serious offense against the-entirecommunity, especially in the face of, Spanish-religious persecution, because the- religious-ceremonial system was thus jeopardized, andit was considered to be an. institution offirst importance in the life of the Pueblos.

Ridicule was a means of restraint and punish-'Inent.. An offender might be obliged to dressin clothing proper to the opposite sex;.sit-alone in the middle of the plaza exposed tothe mockery of all who passed by; or be thebutt of public jeering at the hands_of theclowns during ceremonles. r

I

At gunl, thieves were obliged to repay stolenitems - ten for one, in the case of sheep.

24

Taal of offendersagainst tribal law

a function of theovernor and his staff

or the council amongthe Pueblos, and atiAction of the Chief,the council or othertribal governmentalofficials:among other.tribes.

Crime vidi.Ved as athreat to essentialharmony between manand nature am ngPuebloans andApachean peop s.

Traditional conceptsof justice continueto influence tribalcourt decisions inmodeTn times.

Trials of offenders accused of crimes againstindividuals were conducted by the civil lead-ers (the Governor and his staff) Orcloy theentire council;

4

Murder was Considered a crime against theindividual and his family. The-murderercould be requirdd to make retribution in theform of goods; he might be obligedto-substi-tute his labor for that o is victim; or hemight be pUnished privately by the kinfolk ofthe victim.

Rape was viewed as an offense, not because ofthe sexual relationship involved, but because'of the lack of ,consent of the victim, and theoffender could be required to make payment tothe victim.

Among the Navajo, as among the Pueblo peoples,harmony between man and nature, and between

, men was a primary value. Chaos and disharmonywere to be avoided at all cost, and crime Wittsa prime source of disorder. Ridicule, rc'sti-tution and private pbnishment administered byone's kinfolk were among the media used tosecure conformity with social requirements.As among the Plains Indians, the nose tip or

- the entire nose of adulterous women might becut off among the Navajo and Apache.

It was difficult, historically, for Europeans_to understand Indian concepts of crime andpunishment At Fort Defiance, in 1858, thesoldiers shot a number of Navajo owned horses.The owners could not force the military to paycompensation for the lost horses, so theykilled a slave belonging to the commandingofficer by way of retribution. This angeredthe military and, to mollify them, the Navajoskilled a Mexican and dragged the body into FortDefiance in. lieu of surrendering the killer ofthe slave. The behavior of the Navajos wasincomprehensible to the military; and thebehavior of the military was beyond the understanding of the Navajos.

The military, the Agents in charge.of reser-vations, and the Courts of Indian Offensesadministered justice in conformity withEuropean-American concepts pf law and justice,whereas the tribes' continued many of theirtraditional practices well into modern times;in fact, traditional practices Continue to

t

2725

Indian tribal govern-ments are part of thesystem of governmentin the United*Stateson a par with state &municipal governmental'organizations.

? .

the present day,'and traditional concepts o-Fjustice influence the decisions of tribaljudges despite the fact that the tribal lawcodes are generally-patterned on non-Indianconcepts of justice.

The Cherokee Nation maintained a tribal police,force in pre-Civil War times, and during, he ,.,

period 1860-1878 Iridian Agents on a number ofreservations inforMally organized a force ofIndian police to assist in keeping order. .

The Navajo, Pawnee, Xlamath, Modoc, Apache,Blackfeet, Chippewa, and Sioux had such forcesduring the period in reference and, in 1878,the Commissioner of Indian AffairS directed

11%--

all Agents to organize I dian police on theirreservations. However, t Indian. police werepoorly financed antil ree nt years and, until

, the tribes reorganized th4ir tribal govern-meats the Indian police functioned primarilyas arms of the Federal Government rather thanthe tribe.

Following reorganization of tribal governmentsafter 1934, many tribes not only establishedtribal courts for the a'dministration of jus-tice, but tribal police forces as wells forthe enforcement of tribal laws. The moderntribal police are an arm of the tribal govern-11ment today. Their organization and proceduresdiffer little from those of municipalitieselsewhere in the nation,

All in all, Indian tribal government has beenre-established as one of the several institu-tions of demucratie representative guverniftenton'the American scene - national, state, countyand municipal. Tribal governments functiongenerally within the limiting framework ofFederal laws, and most of them are organizedalong Anglo-American lines. The major dis-tinguishing feature between tribalAnd the other forme of American government .liesin the derivation of their right to exist -tri.bal governments derive this right, along !

with their basic powers, from residual tribalsovereignty, in contradistinction to the na-tional government which derives its powersfrom the American people through the,FedazalConstitution; and-the state, county and mthlic-ipal governments which operate within theframework provided by the State and FederalcopStitutions, State laws and charters'. The.broader framework surrounding Indian tribal

2.826 S.

government is Federal rather, than Statebecause of the fact that, after adoption ofthe American Constitution, the Federal Govern-ment took exclusive jurisdiction over IndianAffairs.

Reservation IndiAns are citizens of the UnitedState* as well as members of their severaltribes-. 'As such they may-participate fullyin national and state political life includingnot only the right to vote, but the right tobe elected to office in state and national,as well a* tribal, government. Within theboundaries of their reservation they are gen-erally subject to tribal and Federal laws andregulations exclusively; outside their reser-vations they are subject to the same Federal,state and municipal laws and regulations whichaffect all. other citizens. Tribal goliernmonthas much in common with municipal governmentexcept that it is limited by Federal, ratherthan State- law.

Robert W. YoungArea Tribal Operations OfficerAlbuquerque Area Office.Bureau of Indian AffairsAlbuquerque, New MexicoApril, 196,9_,)

29

27.

v S. GOVEMCDIT PENTING OFT'C't : »n 431.1047)