Amicus Curiae Brief — Wilkinson v. Confederated Tribes & Bands of the Yakima Indian Nation

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1 V.

QUESTIONS PRESENTED

1. Does an Indian Tribe have the authority to control,

through comprehensive zoning, the use of land owned by

non-members but located within a reservation’s boundaries,

under either of the following circumstances:

(a) The land has been alienated to a non-Indian, pursu-

ant to the federal Allotment Acts; or

(b) The land, originally allotted to a tribal member, has

been received through inheritance by an heir of such

member, but the heir, by reason of insufficient blood

quantum, is not a tribal member?

2. Is it constitutionally permissible, under the Due Proc-

ess Clause of the Fifth Amendment to the United States Con-

stitution, for the United States acting through either the

Congress, the Executive Branch, or the courts, to adopt a

policy pursuant to which:

(a) Indian tribal governments have general civil regula-

tory jurisdiction over non-member reservation resi-

dents and their on-reservation property; and

(b) Such residents have none of the rights of participa-

tion in tribal government, as either voters in tribal

elections or as candid tes for tribal offices, enjoyed

by tribal members, and, by reason of their ancestry,

are disqualified from ever attaining such rights

through tribal membership?

TABLE OF CONTENTS

QUESTION PRESENT EVD Dj

INTEREST OF THE STATES AS AMICI CURIAE

SUMMARY OF ARGUMENT . .

II.

III.

IV.

VI.

The Court Of Appeals Has Completely Disregarded The

Intent Of Congress, As Embodied In The Allotment

77 ͤ - ⁰˙ w .

The Indian Reorganization Act Of 1934 Did Not Repu-

diate The Policy Embodied In The Allotment Acts That

Tribes Would Have No Civil Jurisdiction Over Non-In-

dians, But Confirmed That Policy.................

A. The Original Wheeler-Howard Act .............

B. Objections to the Original Wheeler-Howard Act

C. The Revised Wheeler-Howard Act (S. 3645) ....

The Understanding Of The Executive Branch Has Been

That Indian Tribes Have No Inherent Civil Regulatory

. oo nc ccc stccccccesccenss

Under The Second Exception To The General Rule Es-

tablished In Montana, Tribal Jurisdiction Over Non-

Indians On Non-Indian Land Should Be Limited To

Situations Which Parallel, And Are Mirror-Images Of,

Those Situations In Which State Jurisdiction Applies

JJ. ob cies cacweedweecebeructays

PRACTICAL AND CONSTITUTIONAL CONSIDER-

r •ͤ . e

TABLE OF AUTHORITIES

Page

Federal Cases:

Burton v. Wilmington Parking Authority,

II 27

Cipriano v. Houma, 395 U.S. 701 (1969:- 27

DeCoteau b. District Court, 420 U.S. 425, at 431 (1975) . 2

First English Evangelical Church v. Los Angeles County, 482

U.S. —, 107 S. Ct. 2378 (1987 ſ777 eee ee eeeee 25

Fisher b. District Court, 424 U.S. 382 (1976) ........... 20

Garcia v. San Antonio Metropolitan Transit Authority,

460 US. G2B (1 %0ũ⅕ꝝM: F mn 21, 24

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) 27

Kramer v. Union Free School District, 395 U.S. 621 (1969) 27

Marsh b. Alabama, 326 U.S. 501 (19460)))))) 27

McClanahan v. Arizona Tax Commission,

411 U.S. 164, 172 D veg uddeheceence ves vee teeee er

Montana Catholic Missions v. Missoula County,

. Bil BF) = „„ 21

Montana v. United States, 450 U.S. 544 4, 5, 6, 9, 20,

A re 22, 23, 24, 27

National Farmers Union Insurance Cos. v. Crow Tribe, 471

re. 26

New Mexico b. Mescalero Apache Tribe,

FI 4, 21, 22

National League of Cities v. Usery,

.“, „„ 6 0 21 24

Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978)...... 6,7,9

Puyallup Tribe v. Washington Department of Game,

GE TEE, BE CIE cc b „ 4, 21, 22

Rice v. Rehner. 463 U.S. 713 (1983)))⸗;;y 22

Salyer Land Co. v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973h̊)õ-ʒꝛʒ 22 27

Shelley v. Kraemer, 334 U.S. 1 (1949) 27

Talton v. Mayes, 163 U.S. 376 (18960⸗· j 26

Thomas b. Gay, 169 U.S. 264 (1898ᷣ· 777 21

United States v. Mazurie, 419 U.S. 544 (1975) ......... 23

United States v. Wheeler, 435 U.S. 313 (1978) ......... 26

TABLE OF AUTHORITIES (Continued)

Page

Washington v. Confederated Tribes of the Colville

Reservation, 447 U.S. 134 (1980) .................. 4, 21, 22

Weinberger v. Catholic Action of Hawaii,

J 7

Williams v. Lee, 358 U.S. 217 (1959ꝶ .v 9. 20

Worcester v. Georgia, 31 US. (6 Pet.) 515 (1832) 3, 8, 21

Tribal Cases:

Colville Confederated Tribes v. Cavenham Forest Indus-

tries, Inc., 14 Ind. L. Rptr 6043 (Colville Tribal Ct., Nov.

/ ˙màꝛ⅛1ũi décnes 25

Statutes:

I e 23

Clean Air Act, 42 U.S.C. D 24

Comprehensive Environmental Response, Compensation,

and Liability Act, 42 U.S.C. § 9601, et 1 23

General Allotment Act of 1887, 24 Stat. 38. 6

Indian Reorganization Act of 1934, 4, 9, 15, 16,

r . er 17, 19, 24, 25

Water Quality Act of 1987, 33 U.S.C. §§ 1251, et ey 23

Miscellaneous:

r Sy Oe 10, 15, 16

Cohen, Handbook of Federal Indian Law

, cvecveece 17, 19

Readjustment of Indian Affairs: Hearings on

H.R. 7902 Before the House Committee on 10, 11, 12,

Indian Affairs, 73rd Cong., 2d Sess. (1934) ........... 16, 27

Readjustment of Indian Affairs: Hearings on

S. 2755 Before the Senate Committee on 10, 12, 13,

Indian Affairs, 73rd Cong., 2d Sess. (1934) ....... 14, 15, 16

Op RIB A eenvcccusueteunettewacninecccecee: ‘aaa 17

“Wheeler-Howard Act — Interpretation,” Op. Sol.

I. D. Ind. Aff. 1917-1974, Vol. I, 484, 489-91

r ĩ˙ 5Z“:!——ß—ñ—x— Uhda tad su vn eee 9, 15, 18

Nos. 87-1622, 87-1697, and 87-1711

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1987

Puitiep BRENDALE, Petitioner,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, et al., Respondents.

STANLEY WILKINSON, Petitioner,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, Respondent.

CouNTy OF YAKIMA et al., Petitioners,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, Respondent.

Brief Of The States Of Arizona, Idaho Michigan,

Montana, Nevada, New Mexico, North Dakota,

Utah, Washington, And Wyoming As Amici

Curiae In Support Of Petitioners

INTEREST OF THE STATES AS AMICI CURIAE

Each of the States submitting this brief has within it

one or more Indian reservations. On many of those reserva-

tions the “familiar forces” set in motion by the Federal Gov-

ernment in the late 1800’s and alluded to by this Court in

DeCoteau v. District Court, 420 U.S. 425, at 431 (1975), have

produced the expected results. Pursuant to the invitation of

the Federal Government, non-Indians have purchased land

and established their homes and businesses there, and in

many cases now actually outnumber the Indian population.

We estimate the total non-Indian reservation population, na-

tionwide, to be about 350,000.2 The Yakima Reservation pro-

vides a typical example of these “familiar forces”; the

non-Indian population, about 20,000, is over four times the

Indian population.

The Yakima Reservation also provides an example of

the types of claims being made by the Tribes affected by

those forces. The Yakima Tribe here claims that its inherent

tribal sovereignty includes within it not only governmental

power over its own members, but also civil regulatory power

over non-Indians and their property. Secondly, the Tribe

claims that the exercise of such power over non-Indians and

their property preempts any similar power by State and local

governments. In Whiteside I, the court below upheld both

claims. In Whiteside II, it upheld the first, but left the sec-

ond for later resolution.’

The interest of the amici States in this case is thus two-

fold. The first is in protecting a large group of the State’s

citizens from a tribal government in which they cannot par-

ticipate in any manner, and the actions of which, however

arbitrary, are not subject to any effective judicial checks. Sec-

ond, if the decision below is not reversed, we fully expect

A state-by-state list of all reservations has been attached as Appen-

dix A to the amicus brief of the states of Arizona et al. in support of the

petitions for a writ of certiorari in this case (hereinafter “State amicus brief

in support of certiorari”). This list also contains the total population and

the Indian and non-Indian populations for each reservation. See p. 2, note

1, of that brief for the source of the list. While that list apparently applies

the term “Indian” to all persons with Indian blood, we shall use the term

“non-Indian” to include all non-members even though they may have In-

dian blood and some tribal affiliation.

See Appendix A to State amicus brief in support of certiorari for the

data from which this estimate is made.

Cause No. 87-1622 encompasses Whiteside J, and Cause Nos. 87-1697

and 87-1711 encompass Whiteside II.

even more claims of tribal preemption of State power over

non-Indians, not just in the area of zoning, but in broader

areas such as environmental controls, taxation, and general

business regulation. Thus, tribal governments in which non-

Indians have no voice and over which there are no effective

political or legal checks may be increasing the scope of their

powers, and gradually replacing, as a practical matter, those

governmental bodies in which the non-Indians do have a

voice and over which there are effective checks. Further, a

serious baikanization of government within each State, and a

breakdown of each State’s power over these non-Indians,

would inevitably result.

We cannot countenance such a development. Nor should

this Court.

SUMMARY OF ARGUMENT

1. We first address the question: How should the Court

view its function in this case? A balance of federal, tribal, and

state interests must inevitably be struck. But rather than

striking the balance itself, by developing some sort of com-

mon law of tribal sovereignty, the Court should ascertain,

from specific treaties and statutes, how Congress has struck

the balance, with the concept of tribal sovereignty providing

only a “backdrop” for the interpretive process. McClanahan

v. Arizona Tax Commission, 411 U.S. 164 (1973). This ap-

proach, moreover, is essentially that utilized in Worcester v.

Georgia, 31 U.S. (6 Pet.) 515 (1832).

2. Article II of the Treaty with the Yakimas, 12 Stat. 951

(1959) reserves certain lands for the Yakimas’ “exclusive use

and benefit”, and prohibits non-Indians from going onto

those lands without tribal permission. 'These provisions are,

in effect, the Tribe’s charter for self-government. But they

shed little light on the central question here: Is the Tribe to

have jurisdiction over non-Indians on non-Indian lands as

well? For there were to be no non-Indian lands within the

reservation at all, and few, if any, non-Indians.

3. The allotment policy in large part rescinded the origi-

nal promise contained in these provisions, by inviting non-

Indians to buy land and settle within the reservation. That

policy, moreover, contemplated the elimination of tribal self-

government and the whole reservation system, and thus con-

tained another promise, viz., that these non-Indians and

their successors would be free from tribal control. The allot-

ment policy, however, did not run its course; in 1934 the In-

dian Reorganization Act (“IRA”) intervened.

Viewed in light of its legislative history, the IRA actu-

ally confirmed the promise of the allotment acts that non-

Indians would be free from tribal control. For the original

bill, drafted and vigorously supported by the Interior Depart-

ment, would have expressly authorized tribal legislative and

judicial power over non-Indians, through the device of feder-

ally chartered Indian communities. This proposal, however,

proved so controversial that it was stripped from the bill.

And in two important opinions construing the IRA, issued

shortly after its enactment, the Department of Interior in

effect acquiesced in its defeat on this point, and expressly

refused to recognize any broad tribal governmental power

over non-Indians.

4. Our submission thus far is completely consistent with

the rationale and result in Montana v. United States 450

U.S. 544 (1981). But Montana expressed two exceptions to

its general conclusion that Tribes have no civil jurisdiction

over non-Indians on non-Indian lands, the second involving

conduct by non-Indians which “ * * * threatens or has some

direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.” Montana, 450 U.S. at

566. How can that exception be reconciled with the promise

of freedom from tribal control embodied in the allotment

acts? And what is its scope?

We start with the proposition that “* * * in exceptional

circumstances a State may assert jurisdiction over the on-

reservation activities of tribal members.” New Mexico b.

Mescalero Apache Tribe, 462 U.S. 324 (1983). Those excep-

tions involve situations in which Indians are in effect de-

stroying a State’s ability to govern its own non-Indian

citizens, as in Washington v. Confederated Tribes of the Col-

ville Reservation, 447 U.S. 134 (1980) or destroying a re-

source to which those citizens have a rightful claim, as in

Puyallup Tribe v. Washington Department of Game, 433

U.S. 165 (1977). The second exception in Montana would

encompass a parallel set of “exceptional circumstances“

mirror images of the first set and would be firmly grounded

on the treaty promise of self-government.

The treaty also contains an implied promise that the

remaining Indian lands will be “livable”. See Montana, 450

U.S at 566, note 15. This promise may create a right to pre-

vent uses of non-Indian property within a reservation that

would make the adjacent Indian property “non-livable”. To

the extent it exists, that right would be enforceable through a

type of nuisance action in court or through existing state and

local land use procedures. Moreover, should a State or local

government completely abdicate its zoning responsibility, so

that neither a nuisance action nor existing land use proce-

dures would adequately protect the “livability” of Indian

lands, tribal power could arguably fill the gap. But in this

case, of course, there is no such gap.

Moreover, Congress has been quite willing, in recent

years, to protect tribal interests by granting authority over

non-Indians when the Tribes can show the need for it. Such

areas as liquor sales, water quality, and air quality provide

examples. These actions by Congress caution against an ex-

pansive reading of the Montana exceptions.

5. Constitutional considerations likewise caution against

any such reading. Because non-Indians will have no effective

checks, judicial or political, over the exercise of tribal power,

the temptation to abuse that power may prove irresistible.

This total lack of accountability raises serious constitutional

questions. While tribal governments are shielded from the

Bill of Rights, the Federal Government is not. Yet tribal gov-

ernments have legal powers—indeed, legal existence—-only

because they are recognized as such by the Federal Govern-

ment and have, once recognized, only those powers which

that government intends them to have. This close relation-

ship brings the familiar “state action” doctrine into play.

This doctrine, in turn, brings into operation the guaran-

tees established in the Court’s voting rights decisions. And an

expansion of the scope of tribal government over non-Indians

beyond those narrow limits which we have suggested can be

constitutionally justified only if accompanied by a parallel

expansion of the right to participate in that government.

ARGUMENT

IL. Introduction.

In Montana v. United States, 450 U.S. 544 (1981), this

Court held that the Crow Tribe could not prohibit or other-

wise regulate the use of non-Indian reservation land for hunt-

ing and ‘ishing. In this case, the court below held that the

Yakima Tribe could regulate and even prohibit the use of the

same type of land for just about any other purpose.

These sharply different results stem from the different

rationales utilized by each court. In Montana, the Court con-

cluded that the principles relied upon in Oliphant v. Su-

quamish Tribe, 435 U.S. 191 (1978) are generally applicable

on the civil, as well as the criminal side, and thus preclude

tribal civil jurisdiction over non-Indians on non-Indian lands.

The Court also concluded that the policies embodied in the

various allotment acts, such as the General Allotment Act of

1887, 24 Stat. 388, require this result as well.

The Court in Montana expressed, however, two qualifi-

cations or exceptions to this general result, which are at the

heart of the controversy here. Seizing upon these exceptions,

the court below has construed and applied them so broadly

as to swallow up the general rule established in Montana,

and has thus eviscerated the protections accorded to non-

Indians in the allotment acts.

The first of the two exceptions is as follows:

To be sure, Indian tribes retain inherent sovereign

power to exercise some forms of civil jurisdiction over

non-Indians on their reservations, even on non-Indian

fee lands. A tribe may regulate, through taxation, licens-

ing, or other means, the activities of nonmembers who

enter consensual relationships with the tribe or its mem-

bers, through commercial dealing, contracts, leases, or

other arrangements. [citations omitted] Montana, 450

U.S. at 565-566.

The Court then immediately stated the second:

A tribe may also retain inherent power to exercise civil

authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or

has some direct effect on the political integrity, the eco-

nomic security, or the health or welfare of the tribe. [ci-

tations omitted] Montana, 450 U.S. at 565-566.

A central issue in this case is the scope of this second

exception, which we shall examine at some length.‘ We would

here simply ask: Is that exception “a creature of judicial

cloth”? Weinberger v. Catholic Action of Hawaii, 454 U.S.

139, at 141 (1981). Or is it a creature of “legislative cloth”?®

Ibid. Although the Court must certainly do the weaving, the

major materials, we submit, must be statutes and treaties;

and the task in this case is, in the final analysis, to determine

congressional intent, not to fashion some sort of common law

of Indian sovereignty.

Fifteen years ago, this Court rejected reliance upon

“platonic notions of Indian sovereignty” as a basis for deter-

mining the scope of an Indian’s immunity from state law.

McClanahan v. Arizona Tax Commission, 411 U.S. 164, 172

(1973). In so doing, the Court stated that one must “* * *

look instead to the applicable treaties and statutes which de-

fine the limits of state power,” with the concept of Indian

sovereignty providing only a “backdrop” for the reading of

those treaties and statutes. Ibid.

McClanahan provides the proper approach here as well.

This case involves, to be sure, an effort by an Indian commu-

nity to assert governmental power over a member of the non-

Indian community and not, as in McClanahan, an effort by

the non-Indian community to assert governmental power

over a member of the Indian community. But that difference

does not make the platonic notion of Indian sovereignty any

more useful here, or concentration upon applicable treaties

and statutes any less important.

This is not to suggest that judge-made law is unimport-

ant; far from it. But that judge-made law should be, in the

final analysis, an effort to ascertain the intent of the Con-

gress, as manifested in various federal statutes and treaties,

‘Under the facts of this case, it is difficult to see how the first could possibly

be applicable; for there are no consensual relationships of any sort involved here at

all.

During oral argument in Oliphant, essentially the same threshhold question

was phrased this way by a member of the Court:

Well, what is it? Is it just sort of a federal common law which we are not * °

* if this Court holds that the Tribe has some residual sovereignty, what au-

thority have we got to say that? Is this sort of a federal common law?

Tr. of oral argument, p. 44.

and not an exercise in divining the content of a platonic no-

tion through an exegesis of the Court’s prior opinions.

Moreover, whether one views the problem of the scope

of tribal jurisdiction over non-Indians as one of “common

law” or of Congressional intent has important practical con-

sequences. Problems in this area necessarily involve a balanc-

ing of federal, state and Indian interests; and it makes a

difference whether the Court views its role as that of striking

the balance itself, or instead ascertaining the balance that

Congress has struck.

The manner in which the Congress has struck the bal-

ance may not always be clear. But to abandon the focus upon

Congressional intent is to invite ad hoc decision making, and

to render stability, predictability, and uniformity of results,

both over time and among reservations, virtually imposible.

Furthermore, to recognize that the question ultimately

is one of Congressional intent is to recognize also that the

Constitution may have a bearing on the question, so as to

restrict the range of choices open to the Congress in this area,

no less than in others, and that fundamental civil rights are

here at stake.

One last preliminary point. The approach which we here

suggest is essentially that taken by Chief Justice Marshall in

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the sup-

posed fountainhead of the notion of tribal sovereignty. The

question there before the Court was whether the State of

Georgia had the power to control the right of non-Indians to

enter Cherokee territory, and, even more broadly, to adopt a

set of laws taking complete control over the affairs of the

Cherokee Nation. To answer that question, the Chief Justice

examined in great detail the various provisions of two trea-

ties between the Cherokees and the United States; viz., the

Treaty of Hopewell, 7 Stat, 18 (1785) and the Treaty of Hol-

ston, 7 Stat. 39 (1791), together with various Acts of Congress

regulating Indian affairs. See 31 U.S. (6 Pet.) at 551-556.

From this analysis he concluded that the Cherokees were in-

tended by Congress to be “* * * a nation admitted to be

capable of governing itself,” and accordingly free of the con-

trol which Georgia was asserting. 31 U.S. (6 Pet.) at 556.

The Chief Justice, in short, utilized an inductive, rather

than a deductive approach. He did not start with the platonic

notion of tribal sovereignty, and then attempt to ascertain

what governmental powers were encompassed by that notion.

Rather, he asked what conclusion was required by specific

treaty and statutory provisions. Thus, the approach we here

suggest is historically, as well as analytically, the correct one.

II. The Court of Appeals Has Completely Disre-

garded the Intent of Congress, As Embodied in

the Allotment Acts.

In denying to the Crow Tribe the authority to regulate

hunting and fishing by non-Indians on non-Indian lands, the

Court in Montana relied not only upon the Oliphant ration-

ale, but also upon the policies of Congress, as embodied in

the Allotment Acts of the late 1800s, pursuant to which the

non-Indians had obtained those lands in the first place.

There is simply no suggestion in the | islative history

that Congress intended t that the non-Indians who would

settle upon alienated allotted lands would be subject

tribal regulatory authority. Indeed, throughout the con-

gressional debates, allotment of Indian land was consist-

ently equated with dissolution of tribal affairs and

jurisdiction. [citations omitted] It defies common sense

to —— that Congress would intend that non- Indians

purchasing allotted lands would become subject to tribal

jurisdiction when an avowed purpose of the allotment

policy was the ultimate destruction of tribal govern-

ment. Montana, 450 U.S. at 559, note 9.

The court below has effectively torn up the protections

which Congress intended non-Indians to have under the al-

lotment acts. But has the Congress itself torn up those pro-

tections, when it halted the allotment process in 1934 by

enacting the Indian Reorganization Act? As we shall next

show, far from tearing them up, Congress actually confirmed

them.

III. The Indian Reorganization Act of 1934 Did Not

Repudiate the Policy Embodied in the Allotment

Acts That Tribes Would Have No Civil Jurisdic-

tion over Non-Indians, but Confirmed That Pol-

icy.

The original Wheeler-Howard Act, now commonly re-

ferred to as the Indian Reorganization Act of 1934 (“IRA”),

was an extremely comprehensive and controversial piece of

legislation. It contemplated a major reversal of Federal In-

dian policy.

In both the Senate and the House of Representatives,

the bill received almost unprecedented attention. In the

House alone, the Committee on Indian Affairs held 29 ses-

sions on the bill. 78 Cong. Rec. 11,726 (1934). The Chairman

of that Committee, Mr. Howard stated: “[i]t is doubtful if

any piece of legislation in the history of the country has been

more thoroughly and intelligently studied and debated * *

*” Id. at 11,731.

This study and debate resulted in a complete revision of

the original bill, which had been drafted by the Interior De-

partment. “It was so drastically amended that they took out

everything but the title.” Jd. at 9268 (statement of Mr. Pea-

vey). And as stated by Congressman Ayers of Montana, the

original bill, “* * * was never Wheeler’s or Howard’s baby

* * * it was laid on their doorstep, and they have cast it off

and brought forth legitimate offspring.” Id. at 12,165°.

We first examine the original bill, and then trace

through the changes which resulted in the IRA as finally en-

acted.

A. The Originai Wheeler-Howard Act.

The original bill contained four separate titles: Title 1—

Indian Self-Government; Title II Special Education for In-

dians; Title III Indian Lands; and Title IV- Court of

Indian Affairs. Title I was the heart of the bill, and § 2, in

turn, was the heart of Title I. Under § 2, the Secretary of the

Interior would have been given authority to issue charters

creating Indian communities and transferring to them “any

and ali such powers of government as may seem fitting in

light of the experience, capacities, and desires of the Indians

concerned.” ;

Section 4 spelled ot in more detail the powers which

could be included in these charters. The first is found in

subsection (a):

(a) To orphnize and act as a Federal municipal cor-

The original bill introduced as H.R. 7902 and S. 2755, is reproduced in Ap-

pendix A, and the amended version passed by Congress, S. 3645, is reproduced as

Appendix B.

poration, to establish a form of government to adopt

and thereafter amend a constitution, and to promul-

gate, and enforce ordinances and regulations for the

effectuation of the functions hereafter specified, and

any other functions customarily dnareiced | by local gov-

ernments. (Emphasis supplied.)

Subsection (d) granted another important power:

(d) To establish courts for the enforcement and

administration of ordinances of the community, which

courts shall have exclusive jurisdiction over all offenses

of, and controversies between, members of the char-

tered community, and jurisdiction exclusive or non-ex-

clusive over all other cases arising under the

ordinances or the community * * * (Emphasis sup-

plied.)

The provisions of the bill establishing the new court sys-

tem warrant closer examination, because they confirm that

under the bill both legislative and judicial power would be

exercised over non-Indians.

In Title I there was no provision for an appeal from the

local courts established pursuant to subsection (d) of § 4. But

this was addressed in another part of the bill which also dealt

with courts; Title IV would have established a Court of In-

dian Affairs. Section 3 spelled out the broad jurisdiction of

that court, which included jurisdiction in “all cases, civil or

criminal, arising under the laws and ordinances of a char-

tered Indian community, wherein a real party in interest is

not a member of such community.” (Subsection 4, emphasis

supplied.)

The drafter of the original bill, Felix S. Cohen, ex-

plained the connection between the local court and the spe-

cial Court of Indian Affairs:

Mr. Cohen. May I call attention to the connection be-

tween the local court and the special court of Indian

affairs? The court of Indian affairs has general power to

review decisions of the local court wherever a person not

a member of the community is involved in the dispute.

Readjustment of Indian Affairs: Hearings on H.R. 7902

before House Committee on Indian Affairs, 73rd Cong.,

2d Sess. 80 (1934) (hereinafter 1934 House Hearings”).

Clearly, a chartered Indian community was to have

broad legislative jurisdiction over non-Indians residing

within it? — as broad as those of any municipal corporation

or other unit of local government. And, as Felix Cohen testi-

fied, the local tribal court and the Court of Indian Affairs

would have correspondingly broad jurisdiction over non-In-

dians as well. But as we shall next see, the Senate Committee

of Indian Affairs objected to these provisions — and Titles I

and IV were entirely eliminated from the final bill.

B. Objections to the Original Wheeler-

Howard Act. ,

Exactly why the legislative and judicial provisions were

found objectionable is somewhat complicated. It was gener-

ally conceded that they might work on reservations where

Indian lands and populations were already consolidated. But

the Senate committee did not believe it would work on check-

erboarded reservations, such as the Yakima Reservation at

issue here.* Responding to these objections, the chief spokes-

man for the original bill, Commissioner Collier of the BIA,

assured the committee that tribal jurisdiction over non-Indi-

ans would not be as extensive as might appear. Only when an

extensive consolidation of both Indian land and Indian popu-

lation had occurred would the tribe be allowed to set up an

“Indian community”. As Commissioner Collier explained,

“Title III [Indian Lands] is pretty closely linked with Title I

See also the definitions in the original bill for “territory of a char-

tered community” and “reservation”, which include non-Indian lands

within those terms. Title I, § 13: 1; m, See also 1934 House Hearing at 7.

»An example of the committee consensus on this point is as follows:

Senator Thomas [of Oklahoma]. If the bill would not work in the

Navajo Reservation, where there is a great area populated exclusively

by the Navajos, I can hardly see where it could operate in a State like

mine* * * Then they would be surrounded very likely with thickly

populated white sections* * *

just cannot get through my mind how this bill can possibly be made

to operate in a State of thickly settled population. I think it may be all

right in a place like the Navajos, so far as I can see now, or the Meno-

monees or the Klamaths.

The Chairman. I thought it would work among the Navajos and the

Indians in New Mexico and Arizona if it would work any place.

Readjustment of Indian Affairs: Hearings on S. 2755 before Senate

Committee on Indian Affairs, 73rd Cong., 2d Sess. 145 (1934) (herein-

after “1934 Senate Hearings”).

[Indian Self-Government]”. 1934 Senate Hearings at 63. Al-

though the original bill set no specific guidelines as to just

when there would be enough consolidation in order to set up

a chartered community, Commissioner Collier assured Con-

gress as follows:

Mr. Collier. This bill in Title I deals with self-govern-

ment of Indian tribes and provides that an Indian com-

munity which has a solid geographic area may have a

court and enforce its laws through the court.

1934 Senate Hearings at 317. (Emphasis supplied.)

And again:

Commissioner Collier. It is perfectly evident that a

group of Indians who are scattered among whites, who

are attending the public schools or using the common

institutions, would not form a territorial government.

They might do other things.* * *

It is equally evident that Indians living in great solid

geographical areas would do precisely that.

1934 Senate Hearings at 67-68.

Chairman Wheeler, a former county prosecutor in Mon-

tana, had two main objections to the original bill. First, he

was worried that the Secretary of the Interior would not wait

until there was a solid block of Indian land and Indian popu-

lation before issuing the charters creating the Indian com-

munities, and that establishing a “government within a

government” under those circumstances would lead to “con-

flicts in the Northwest between the Indians and the whites”.

The following exchange is just one example in the hearings where the

Chairman articulated his belief that the bill, if enacted as introduced,

would lead to conflicts:

The Chairman. But it seems to me — for instance, take you Montana

Indians — here is what you do: you say: [reading Title I, § 4 introduc-

tion to (a)]

Now, what do you mean by establishing a form of government?

Commissioner Collier. Municipal government.

The Chairman. * If that is true, you are going to let them —

[reading Title 1, § 4 (b), (e), (d), (e), (0, (g)]

In other words, you have practically delegated to the Indian Office all

of the powers and the right to execute any power not inconsistent with

the Constitution. Now, my own view about that matter is, as far as the

Montana Indians are concerned, that it would be a step backward for

them rather than a step forward.

Commissioner Collier. But Senator, the Montana Indians would not

do that.

* . *

In short, he did not accept Commissioner Collier’s assur-

ances.

Second, where the Indian lands and population were al-

ready consolidated, with the result that the Indians already

controlled the existing units of local government, the new

chartered community would just create an additional layer of

government. Thus a representative of Montana’s Blackfeet

Tribe told the committee that his tribe would indeed attempt

to form an Indian community government on top of the al-

ready existing State and local governmental structure, as the

following exchange shows:

Senator Thomas [of Oklahoma]. Which would you do?

Would you surrender your icipation and activity in

the present set-up, or would you form a new charter,

= form of government, and move over and get into

that

Mr. Brown [of the Blackfeet Tribe]. We would take both

of them. We can take both of them under the bill.

1934 Senate Hearings at 170.

What bothered the Senate committee about this ar-

rangei.ent was the fact that the Blackfeet Indians, unlike

many other Northwest Tribes, but like many Southwest

Tribes, such as the Navajos, already dominaied the existing

The Chairman. Well, you might possibly, Mr. Commissioner, get, for

instance, some tribe of Indians of Montana who would want to try

this, and they might get a sufficient number of signers to a petition to

have a charter issued.

Commissioner Collier. Yes.

The Chairman. But if they did do it, in my judgment, it would bring

about all kinds of conflicts between your Indians and the white peo-

ple, and, in addition to that, it would set back the Indians, in my

judgment, considerably by doing it, and I am afraid that would lead to

conflicts in the Northeast between the Indians and the whites.

I mean, supposing the Indian Bureau went out there, for instance, if

you had this provision in there; your Indian Bureau could go out there

and take those Indians possibly and propagandize them and get suffic-

ient numbers of them to sign it and issue a charter, and then attempt

to set up this government within a government out there, which would

be, in my judgment, a serious mistake on the part of the Indians to do

it.

Now, I am not as familiar with the Indians down in the Southwest,

and it might be possible that it would work out all right for the Nava-

jos.

1934 Senate Hearings at 67-68.

political community.“ Thus, the irony of the original

Wheeler-Howard Act is that on those reservations where it

might have worked best it was needed least. More generally,

the committee feared setting up an Indian community gov-

ernment which might enact laws which would conflict with

those of the State and local governments. And it was because

of these various concerns that the provisions conferring those

powers were stripped from the bill. Titles I and IV were thus

eliminated. As summarized by Senator Wheeler:

Chairman Wheeler. My thought about the bill is simply

this: That you are going entirely too far at the present

time in letting those tribes set up these rules and regula-

tions, because they might conflict. As I said, when you

take the Northwestern Indian reservations, as I pointed

out, you have Indians at the present time holding county

and State offices. Then, if you give them the power to

set up an entirely new government within their reserva-

tions and to pass ordinances and regulate all Indian af-

fairs, I think it would bring you into all kinds of conflicts

* * * 1934 Senate Hearings at 199.

C. The Revised Wheeler-Howard Act (S. 3645)

The IRA which Congress adopted, as we have just seen,

did not authorize the Secretary of the Interior to convey, or

confirm, any compulsory governmental power over Indians,

must less non-Indians. In the words of Chairman Wheeler:

The Committee on Indian Affairs eliminated all those

compulsory provisions and eliminated from the bill as

originally presented the right of the Indians to make

laws upon the reservations. 78 Cong. Rec. 11,123 (1934).

After being stripped of all its controversial provisions,

what the IRA did do, primarily, was to: (1) stop further alien-

ation of Indian lands; (2) provide for acquisition of land for

landless Indians; (3) stabilize the tribal organization by vest-

ing them with “real, though limited, authority, and by pre

scribing conditions which must be met by such tribal

See 1934 Senate Hearings at 169-170. See also id at 179, 198-200.

See 1934 Senate Hearings at 248-249. From this portion of the hear-

ings, it is clear that Congress intended that a recognized tribal member

would be able to avoid the civil regulatory jurisdiction of his own tribe by

withdrawing his membership in the tribe. Accord Op. Sol. LD. Aff. 1917-

1974, Vol. I, 484, 489-91 (Dec. 13, 1934), discussed at p. 18, infra.

organizations”, and (4) provide that “Indian tribes may equip

themselves with the devices of modern business organization

through forming into business corporations”. Ibid.

As summarized by Senater Wheeler:

* * * [The bill proposes to give the Indians an op-

portunity to takeover the control of their own resources

ae pM as American citizens. 78 Cong. Rec. 11,124

In eliminating the objectionable features of the original

bill it was thought that these governments within govern-

ments would “poison [the Indians] against their State consti-

tution” and “their local governments, of which they are a

part.” Id. at 9268. It was also recognized that non-Indians

would “kick like steers” if subjected to the proposed system.

1934 House Hearings, at 136.

Contrary to the conventionally accepted wisdom, then,

the final version of the IRA did not contemplate a complete

break with the assimilation policy contained in the allotment

acts. It did eliminate, however, a major “driver” in that pol-

icy, i.e., the ability of Indians to alienate their remaining

lands. Most importantly, the IRA, viewed in the light of its

long legislative history, represents a deliberate policy deci-

sion by the Congress that Indians would not have compulsory

jurisdiction over non-Indians. And that is reason enough for

this Court to deny any claim to such powers now.

IV. The Understanding of the Executive Branch

Has Been That Indian Tribes have No Inherent

Civil Regulatory Power over Non-Indians

The Department of Interior, as we have seen, was singu-

larly unsuccessful in obtaining a bill which vested govern-

mental powers in Indian tribes through the device of

federally chartered Indian communities. A phrase in §16 of

the IRA as enacted, however, provided a springboard for the

Department to regain some lost ground. That phrase referred

to “all powers vested in any Indian tribe * * * by existing

law“. In an opinion dated October 25, 1934, four months

The Department of Interior drafted the final, as well as the original,

version of the IRA. See 1934 Senate Hearings, at 237. Thus this phrase is

the product of the Department's draftsmen; and it received little attention

from the Committee. Id. at 244.

after enactment of the IRA, the Solicitor of the Department

set out the Department’s views as to what powers were en-

compassed by that phrase. See 55 I.D.14 (M-27781). Though

signed by Solicitor Margold, the actual author of that opinion

was the author of the original version of the IRA, Felix Co-

hen. See Cohen, Handbook of Federal Indian Law, ix, xiv

(1942: Univ. N. Mex. reprint).

The basic premise underlying the whole opinion is set

out as follows:

Perhaps the most basic principle of all Indian law, sup-

— te a host of decisions hereinafter analysed, is the

principle that those powers which are lawfully vested in

an Indian tribe are not, in general, delegated powers

granted by express acts of Congress, but rather inherent

powers of a limited sovereignty which has never been

extinguished. Each Indian tribe begins its relationship

with the Federal Government as a sovereign power, rec-

ognized as such in treaty and legislation: * What

is not expressly limited remains within the domain of

tribal sovereignty, and therefore properly falls within

the statutory category, “powers vested in any Indian

tribe or tribal council by existing law”. 55 LD. at 19.

With this sweeping start, one might expect that the

opinion would then go on to enumerate broad powers over

non-Indians as part of the “powers vested ** * * by exist-

ing law.” But surprisingly, such is not the case at all. The

powers discussed principally relate to what the opinion calls

“internal sovereignty”, i.e., power over members 55 J. D. at 22.

(See generally the opinion summary, 55 I.D. at 16-17.)

With respect to the power of taxation, however, the

opinion states that such power extends not only to members,

but also to nonmembers “* * * so far as such nonmembers

may accept privileges of trade, residence, etc., to which taxes

may be attached as conditions.” 55 I.D. at 46. This qualifica-

tion is significant. Non-Indians on non-Indian lands within a

reservation are there pursuant to the policy of the Federal

Government, not at the sufferance of the Tribe. And the

Tribe, accordingly, has no inherent power to tax them. “Ex-

isting law”, as the writer of the opinion was certainly aware,

still included the allotment acts.

This lack of inherent power to tax or otherwise regulate

the persons or property of non-Indians on nor -Indian land

was made explicit in a subsequent opinion of Solicitor

Margold, issued just two months later, on December 13, 1934.

In an opinion entitled “Wheeler-Howard Act — Interpreta-

tion”, the Solicitor considered the specific question of the

extent of the tribal power of condemnation. See Op. Sol. I. D.

Ind. Aff. 1917-1974, Vol. I 484, at 489-491 (M. 27810).

The opinion first considered the source of this tribal

power.

The power of eminent domain is one of the usual powers

of sovereignty. It is, as the United States ‘ere Court

held in Cincinnati v. Louisville and Nash. R. Co. (223

U.S. 390, 404) “one of the powers vital to the public

welfare of every self-governing community.”

No Federal statutes terminating the exercise of this

power by an Indian tribe are known. Therefore, under

the doctrines advanced in the recent opinion of this De-

partment on “Powers of Indian Tribes” (M-27781, ap-

proved October 25, 1934), the power of eminent domain

is one of those powers which are vested in an Indian

tribe within the meaning of Section 16 of the Wheeler-

Howard Act. At 489.

Yet Solicitor Margold concluded:

I am of the opinion that the Indian Service is correct “in

assuming that a tribe organized under section 16 may

exercise the power of eminent domain in the acquisition

of land as against its members, but not in the case of

land owned in fee by non-members.” Ibid.

This inherent power of eminent domain, which is “one

of the usual powers of sovereignty,” may be exercised only

with respect to tribal members.

From this, Solicitor Margold draws another important

conclusion:

It is proper to add that since the tribal power of con-

demnation is based, in the first instance, upon tribal

jurisdiction over the members of the tribe, it ceases to

exist where an Indian abandons his tribal membership;

and as was said in the opinion of this Department on

“Powers of Indian Tribes,” (M-27781, approved October

25, 1934, at page 36), “any member of any Indian tribe is

at full liberty to terminate his tribal relationship when-

ever he so chooses.” * * *

Threatened oppression in the form of condemnation,

taxation, or other incidents of social control may be

avoided by the termination of the landowner’s tribal sta-

tus. But if he remains to share in the benefits of tribal

life he must bear its burdens.

The restricted land of the Indian who has severed his

tribal affiliation is not subject to tribal condemnation

proceedings under tribal law. At 490.

Non-Indians are in the same status as the Indian who

has severed his tribal membership, as the opinion goes on to

make clear.

Accordingly, patented land may be condemned, as it

may be taxed on exactly the same basis as the land of

non-Indians. An Indian tribe will have whatever rights

of condemnation the laws of the State may give to it.

* * *

Land held in fee, therefore, whether owned by Indians

or by non-Indians, may be condemned by an Indian

tribe only in accordance with State law, through pro-

ceedings brought in State courts. At 490-491.

As this opinion explicitly recognizes, a tribal claim of

general governmental power, even if it be on the civil side,

and whether it involves condemnation, taxation, or any other

form of civil jurisdiction, is valid only with respect to tribal

members.

Thus even the Department recognized that the “existing

law” referred to in §16 of the IRA, together with the concept

of residual tribal sovereignty which gave that “existing law”

substance, did not encompass general governmental power

over non-Indians. And the Department in effect acquiesced

in the congressional rejection of its efforts to gain such power

in the IRA.

Just as importantly, the argument that the concept of

residual tribal sovereignty includes inherent power over non-

Indians is to commit a basic error which Felix Cohen himself

warns against. See Cohen, Handbook of Federal Indian Law

supra pp. 358-360.

Quoting from a ruling by the Solicitor of the Interior

Department, April 27, 1939, it is there noted that we must

b beware of reading into the measure of this [Indian]

jurisdiction the common law principle of territoriality of

criminal law.” Id. at 360. In establishing the source and scope

of the Indian tribe’s authority for self-government which de-

rives from

the unextinguished fragments of tribal sover-

eignty, it must be recognized that this sovereignty is pri-

marily a personal rather than a territorial — sh

The tribal court has no jurisdiction over non-Indians

unless they consent to such jurisdiction. Its jurisdiction

is solely a jurisdiction over persons. (bid)

In short, although Tribes and their members were

viewed by the Department as having more of a distinct legal

status than Senator Wheeler may have thought, tribal gov-

ernmental power, even over members, was still essentially

consensual, just as Congressional Committees envisioned in

1934. For members could choose to become non-members.

V. Under the Second Exception to the General

Rule Established in Montana, Tribal Jurisdic-

tion over Non-Indians on Non-Indian Land

Should Be Limited to Situations Which Parallel,

and Are Mirror-Images of, Those Situations in

Which State Jurisdiction Applies to Reserva-

tion Indians.

After establishing in Montana the general proposition

that Tribes do not retain civil jurisdiction over non-Indians

on non-Indian lands, the Court expressed two exceptions. In

the second, it stated that a Tribe “may also retain” such

"jurisdiction when the conduct of the non-member “* * *

threatens or has some direct effect on the political integrity,

the economic security, or the health or welfare of the tribe.”

450 U.S. at 565-566. (Emphasis supplied)

“, Determining the scope of this exception is difficult for

several reasons. One difficulty stems from the use of the

phrase may * * retain”. Does this mean “does retain”?

Or does it mean: “A Tribe might retain — but it all depends

on the circumstances”?

The four cases cited in support of the exception com-

pound, rather than eliminate, this difficulty. Not one of them

involved the central question in this case, viz., the power of a

Tribe to make an unwilling non-Indian submit to its jurisdic-

tion.“

in Fisher v. District Court, 424 U.S. 382 (1976), all parties were

tribal members. In Williams v. Lee, 358 U.S. 217 (1959), the issue was

whether a non-member could make a reservation Indian subject to the

jurisdiction of a state court, not whether an Indian could make a non-

Perhaps the language of the second exception was in-

tended to be the start for the development of a doctrine for

Indian Tribes which would be analogous to that developed

for States in National League of Cities v. Usery, 426 U.S. 833

(1976). But the abandonment of that effort for the States in

Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985) certainly cautions against commencing a sim-

ilar process for Indian Tribes. Indeed, the generality and

vagueness of the language used in the second exception rein-

forces the need for such caution.

What, then, is the source and scope of the exception?

We submit that its source can be found in treaty provisions,

and that its scope can be determined from decisions applying

exactly those same provisions in an analogous context.

We start with the familiar rule that treaty language re-

serving land for the “exclusive use and benefit” of a tribe —

to use the language of the Yakima Treaty — creates an im-

munity for the Tribe and its members from the reach of State

law within the reservation. This treaty-based immunity was

first developed in Worcester and reaffirmed in McClanahan.

But there are some narrow exceptions to this immunity. See

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, at

331-332 (1983). In Puyallup Tribe v. Washington Depart-

ment of Game, 433 U.S. 165 (1977), for example, the Court

held that the State could enforce its conservation regulations

directly against tribal members fishing within the reserva-

tion, in order to conserve a resource to which non-members

were entitled as well. Similarly, in Washington v. Confedera-

ted Tribes of the Colville Reservation, 447 U.S. 134 (1980),

the Court held that State law could require Indian sellers of

cigarettes to collect and remit to the State a tax on non-

Indian buyers, even though the sales took place on reserva-

tion trust land.

Indian involuntarily subject to the jurisdiction of a tribal court. And in

Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906) and

Thomas v. Gay, 169 U.S. 264 (1898), the issue was whether a non-Indian

government had the power to tax property of a non-Indian located on the

reservation; and the power was upheld.

The specific language can vary from treaty to treaty, and in the case

of executive order reservations, for which the executive order typically does

not use such language at all, the language may be implied.

These results are applications of the more general point

made in Rice v. Rehner, 463 U.S. 713 (1983), which upheld

the power of States to regulate on-reservation sales of liquor

by Indians, and which stated, in reversing the Ninth Circuit:

The court below erred in thinking that there was some

single notion of tribal sovereignty that served to direct

any pre-emption analysis involvi Indians. Rice, 463

U.S. at 725 (Emphasis in original).

The treaty-based immunity, then, is not absolute. If the

Indians are in effect destroying the State’s ability to govern

its own non-Indian citizens, as in Colville, or destroying a

resource to which those same citizens have a valid claim, as in

Puyallup, that immunity is not encompassed in the original

treaty promise.

Similarly, however, the right of a Tribe to govern its own

members, in accordance with the original treaty promise,

might well be destroyed if non-Indians are immune from cer-

tain provisions of tribal law, even on non-Indian lands. For

example, a Tribe might well be able to require a non-Indian

retailer, on non-Indian land within the reservation, to collect

and pay over a tribal tax imposed upon its members. This

would be the mirror-image of the situation in Colville. And

similarly, New Mexico v. Mescalero Apache Tribe, 462 U.S.

324 (1983) may be viewed as the mirror-image of Puyallup.

More generally, just as the promise of tribal self-government

contained in the treaty does not provide absolute immunity

from all applications of state law to reservation Indians, so

too the promise contained in the allotment acts does not pro-

vide an absolute immunity from all applications of tribal law

to non-Indians on non-Indian lands. But the exceptions para-

llel each other, in both result and rationale.

Our suggested reading of second exception in Montana,

then, brings symmetry and a reasonably high degree of cer-

tainty into the application of the treaty provisions and the

relevant federal statutes. Perhaps even more importantly, it

takes into account the nature of the basic problem, i.e., the

need to construe two sets of promises, one to Indians and the

other to non-Indians, in a manner which best reflects the

intent of a Congress which, after making the first, severely

eroded it by making the second.

Two final points regarding the scope of the second ex-

ception. As noted in Montana, the treaty promise still en-

compasses a guarantee that the remaining Indian lands

within a reservation will be “livable”. Montana, 450 U.S. at

566, note 15. This guarantee of “livability” may encompass

certain rights in addition to the water rights there men-

tioned. In the instant case, for example, if non-Indian prop-

erty were to be used in a manner which would make the

adjacent Indian property “non-livable”, the Tribe or the indi-

vidual Indian landowner might well have a treaty-based right

to abate what would amount to a nuisance, through an action

in state or federal court, or to prevent any such uses from

arising in the first place, through existing administrative pro-

cedures such as those embodied in Yakima County’s land use

system.“ Whether the Tribe could, in the absence of any land

use regulation at all by the County, enforce the “livability”

guarantee by zoning non-Indian land directly is a question

not presented here. For the Tribe is here attempting, not to

fill a gap created by county inaction, but to grab from the

County zoning authority which it has been exercising for

many years. Cf. Montana, 450 U.S. at 566, note 16.

Second, although our focus so far has been on congres-

sional actions taken many years ago, Congress has not been

inactive in the interim. It has conferred upon Tribes a variety

of powers over non-Indians, but has done so only after weigh-

ing the tribal interests in specific areas and determining that

protection of those interests require conferral of such powers.

One example is found in United States v. Mazurie, 419 U.S.

544 (1975), which upheld the constitutionality of 18 USC

§1161, in which Congress delegated to Tribes the authority to

regulate the sale and consumption of alcoholic beverages

within a reservation, even if the sale or consumption be by

non-Indians.

More recent examples are found in the environmental

field. Section 518 of the Water Quality Act of 1987, 33

U.S.C.§§ 1251 et seq., sets forth conditions under which cer-

tain Tribes may be treated as States for purposes of that Act.

See 33 U.S.C. § 1377. The Comprehensive Environmental

State nuisance and land use laws are, of course, also designed to

protect “livability”; and any treaty-based right may thus have little practi-

cal independent effect, and be essentially cumulative.

Response, Compensation, and Liability Act, 42 U.S.C. §9601

et seq. also allows, in §9626, for treatment of Tribes as States

for certain purposes. Finally, the Clean Air Act, 42 U.S.C.

§7401 et seq., allows Tribes to designate the air quality

standards which will be applicable to their reservations. See

42 U.S.C. §7474(c).”*°

In short, Congress is not unwilling to protect tribal in-

terests by conferring authority over non-Indians when the

Tribes can make their case. Indeed, if the Court were to com-

pletely reject the second exception in Montana as represent-

ing an initial false step, the political process would still

protect those interests when they warrant protection. Cf. Na-

tional League of Cities v. Usery, supra, and Garcia v. San

Antonio Metropolitan Transit Authority, supra.

VI. Practical and Constitutional Considerations.

The reference to “threatened oppression” in Solicitor

Margold’s second opinion of December 13, 1934, serves as a

reminder that important practical and constitutional consid-

erations are here involved. The 20,000 non-Indians who live

on the Yakima Reservation cannot participate in the tribal

government which is here asserting zoning jurisdiction over

them. In addition to there being no political check, there is

no judicial check either. Section 10 of the Yakima tribal zon-

ing ordinance makes it clear that no judicial review is availa-

ble. (J.A. 54) Further, the adequacy of judicial review in a

tribal court, even if available, would be subject to serious

doubt. See Appendix B to State amicus brief in support of

certiorari. (Letter from John R. Bolton, Assistant Attorney

General, U.S. Department of Justice, to Senator Daniel K.

Inouye, dated January 26, 1988, discussing widespread prob-

lems in the administration of tribal legal systems.)

To uphold the power of the Yakima Tribe in this case

would result, under these circumstances, in conferring on the

Tribe the power to engage in zoning practices which this

The pattern in these environmental statutes is similar to that envi-

sioned in the original version of the IRA, in that conferral of powers upon

the tribal entity would be determined by an administrative agency, which

would take into account the special characteristics of each Tribe and its

reservation.

Court has found unconstitutional when engaged in by any

other unit of government. See First English Evangelical

Church v. Los Angeles County, 482 U.S. „107 S. Ct. 2378

(1987). Indeed, the Tribe would have every incentive to use

this unfettered power to severely reduce the land values of

non-· Indian property and force the owners to sell out at these

reduced values, and in effect use the zoning power as a cost-

less substitute for the power of condemnation.

Further, it must not be overlooked that Indian Tribes, in

addition to being governmental units, are often owners of

business enterprises as well, just as the final version of the

IRA intended them to be. See pp. 15-16, supra. In those cases

in which there are competing non-Indian business enterprises

within the reservation, there will again be every incentive to

use its governmental power over those non-Indian businesses

to the advantage of its own. In short, to uphold the claim of

tribal zoning power in this case is to create exactly the types

of conflicts which so concerned Senator Wheeler and which

led to the rejection of the original version of the IRA.

To uphold that claim would raise important constitu-

tional issues as well. Indeed, the practical and the constitu-

tional considerations are inevitably linked. We are not

suggesting that the constitutional issues require final resolu-

tion here; but they certainly form a “backdrop” which is no

less important in construing relevant treaties and statutes,

than the backdrop of tribal sovereignty. Cf. McClanahan v.

Arizona Tax Commission, 411 U.S. 164, at 172 (1973).

A situation on the Colville Reservation in Washington illustrates the

potential problem. A tribally owned forest products business is in competi-

tion with a similar non-Indian business located on fee land, and the Tribe

is attempting to exert regulatory authority over that non-Indian business.

See Colville Confederated Tribes v. Cavenham Forest Industries, Inc., 14

Ind. L. Rptr 6043 (Colville Tribal Ct., Nov. 16, 1987) (issuing preliminary

injunction requiring Cavenham to submit to tribal zoning authority). The

case is now on appeal. (Colville Crt. of App. No. CV-87-751)

The Environmental Protection Agency, it should be noted, has recog-

nized the potential conflict of interest between a Tribe as regulator and the

same Tribe as one of the regulated parties under various federal environ-

mental statutes, and is attempting to provide safeguards. See, e.g., 52 Fed.

Reg. 46712, (Dec. 9, 1987) at 46714. (Proposed rule). Such safeguards are

not available, of course, when jurisdiction over non-Indians is based upon

some sort of inherent tribal authority, such as the zoning authority here

claimed by the Yakima Tribe.

Tribal governments are not subject to the Bill of Rights,

which governs the conduct of the Federal Government, or to

the Fourteenth Amendment, which governs that of the States

and its political subdivisions. Talton v. Mayes, 163 U.S. 376

(1896). This is because Indian Tribes, unlike political subdi-

visions of a State, do not exercise power delegated by a supe-

rior sovereign. United States v. Wheeler, 435 U.S. 313

(1978).

But if, as we submit, the ultimate controlling factor in

this case is congressional intent, the Bill of Rights surely

controls the permissible scope of that intent. And this gives

rise to an obvious problem. How can it be permissible for

Congress to intend — and thereby bring about — a system of

government which itself would surely be constitutionally im-

permissible to the extent that non-Indians who are subject to

it cannot possibly participate in it, through the voting fran-

chise or otherwise?

Talton v. Mayes, supra, shields tribal governments from

the Bill of Rights; but it does not shield the Congress. Fur-

ther, it is not just a question of Congress tolerating the con-

tinued existence of tribal governments through inaction. If

tribal governments are to be true governments, recognizable

as such by the federal courts, they must first be recognized as

such by the Congress, in a treaty or statute, or by the Execu-

tive pursuant to congressional authority. Absent congressio-

nal action, the problem does not even arise. And that fact is

itself a large part of the problem. In the final analysis, the

Tribes have governmental powers only to the extent that

Congress so wills. That, after all, is why the extent of these

powers is always a federal question. Cf. National Farmers

Union Insurance Cos. b. Crow Tribe, 471 U.S. 845 (1985).“

The applicability of the Constitution to the congressional exercise of

its treaty-making power with the Indians, and the constitutional difficul-

ties in a broad grant of tribal jurisdiction over non-Indians, were recog-

nized by the Attorney General of the United States 150 years ago. See 2

Op. Atty. Gen. 693 at 694 (1834).

The close relationship between the United States and Indian Tribes

is strikingly illustrated by an event described by Commissioner Collier to

show the need for greater tribal autonomy, as proposed in the Depart-

ment’s original bill:

In January 1923, when it had already become known that there

— rs

This constitutional issue is really a form of the familiar

“state action” issue. Cf. Marsh v. Alabama, 326 U.S. 501

(1946), Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961). That

issue becomes more acute as the Tribe lays claim to the broad

powers typically associated with general purpose govern-

ments, such as zoning, taxation, and general police power

regulation. Compare Kramer v. Union Free School District,

395 U.S. 621 (1969) and Cipriano v. Houma, 395 U.S. 701

(1969) with Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973). Cf. Holt Civic Club v.

City of Tuscaloosa, 439 U.S. 60 (1978).

So long as tribal powers over non-Indians remain con-

fined to those which Congress has expressly delegated — as

in the fields of liquor and environmental regulation, dis-

cussed above (pp. 23-24 supra) — and to those based upon a

narrow reading of the Montana exceptions (pp. 21-22, supra),

exclusion of non-Indians from any role in tribal government

may well be justified. But any expansion beyond those limits

can be constitutionally justified only if there is as well a para-

llel expansion of the right to participate in that government.

The Tribe, in short, cannot have it both ways. It cannot

justify exclusion of non-Indians from participation, on the

grounds that tribal self-government justifies that exclusion,

while at the same time laying claim to broad powers over

those non-Indians.

was great oil wealth on the Navajo Reservation, the Secretary of the

Interior by one fiat smashed the Navajo tribal government. It ceased

to exist * * * He wiped it out and he dictated a new Navajo tribal

council.

1934 House Hearings at 37.

CONCLUSION

For the reasons given above, the judgments of the Court

of Appeals for the Ninth Circuit should be reversed.

Respectfully submitted,

KENNETH O. EIKENBERRY

Attorney General of Washington

TimotTHy R. MALONE

Assistant Attorney General

(Counsel of Record)

A-1

APPENDIX A

[H. R. 7902, 73d Cong., 2d sess.]

A BILL To grant to Indians living under Federal tutelage

the freedom to organize for purposes of local self-gov-

ernment and economic enterprise; to provide for the

necessary training of Indians in administrative and eco-

nomic affairs; to conserve and develop Indian lands; and

to promote the more effective administration of justice

in matters affecting Indian tribes and communities by

establishing a Federal Court of Indian Affairs.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled,

TitLeE I — INDIAN SELF-GOVERNMENT

SEcTION 1. That it is hereby declared to be the policy of

Congress to grant to those Indians living under Federal

tutelage and control the freedom to organize for the pur-

poses of local self-government and economic enterprise, to

the end that civil liberty, political responsibility, and eco-

nomic independence shall be achieved among the Indian

peoples of the United States, and to provide for coopera-

tion between the Federal Government, the States, and or-

ganized Indian communities for Indian welfare. It is

further declared to be the policy of Congress that those

functions of government now exercised over Indian reser-

vations by the Federal Government through the Depart-

ment of the Interior and the Office of Indian Affairs shall

be gradually relinquished and transferred to the Indians of

such reservations, duly organized for municipal and other

purposes, as the ability of such Indians to administer the

institutions and and functions of representative govern-

ment shall be demonstrated, and that those powers of con-

trol over Indian funds and assets now vested in officials of

the Federal Government shall be terminated or transfer-

red to the duly constituted governments of local Indians

communities as the capacity of the Indians concerned, to

manage their own economic affairs prudently and effec-

tively, shall be demonstrated. It is further declared to be

A-2

the policy of Congress to assist in the development of In-

dian capacities for self-government and economic compe-

tence by providing for the necessary training of Indians,

and by rendering financial assistance and cooperation in

establishing Indian communities.

Sec. 2. In accordance with the foregoing purposes, the

Secretary of the Interior is hereby authorized to issue to

the Indians residing upon any Indian reservation or reser-

vations or subdivision thereof a charter granting to the

said community group any or all of such powers of govern-

ment and such privileges of corporate organization and ec-

onomic activity, hereinafter enumerated, as may seem

fitting in the light of the experience, capacities, and desires

of the Indians concerned; but no such charter shall take

effect until ratified by a three-fifths vote at a popular elec-

tion open to all adult Indians resident within the territory

covered by the charter.

Upon receipt of a petition for the issuance of a charter

signed by one fourth of the adult Indians residing on any

existing reservations, it shall be the duty of the Secretary

of the Interior to make the necessary investigations and

issue a proper charter, subject to ratification, or shall pro-

claim the conditions upon which such charter will be is-

sued; and such petition, with a record of the findings and

of the action of the Secretary, shall be transmitted by the

Secretary of the Interior to Congress: Provided, That

whenever the Secretary of the Interior shall acquire land

not comprised within any existing reservation for the pur-

chase of establishing a new Indian community, pursuant to

the authority granted by title III of this Act, he shall issue

a charter to take effect at some future time and shall

therein prescribe the conditions under which persons of at

least one-fourth degree of Indian blood shall be entitled to

become members of such community, and the acceptance

of such membership by the qualified persons shall consti-

tute an acceptance and ratification of such charter.

Sec. 3. Each charter issued to an Indian community

shall define the territorial limits of the community and the

criteria of membership within the community; shall, wher-

ever such community is sufficiently populous and endowed

A-3

with sufficient territory to make the establishment of local

government possible, prescribe a form of government

adapted to the needs, traditions, and experience of such

community; and shall guarantee the civil liberties of mi-

norities and individuals within the community, including

the liberty of conscience, worship, speech, press, assembly,

and association, and the right of any member to abandon

the community and to receive some compensation for any

interest in community assets thereby relinquished, the ex-

tent of which compensation and the manner of payment

thereof to be fixed by charter provision. Each charter shall

further specify the powers of self-government to be exer-

cised by the chartered community, and shall provide for

the planned extension of these powers as the community

offers evidence of capacity to administer them. Each char-

ter shall likewise prescribe the powers of management or

supervision to be exercised by the chartered community

over presently restricted real and personal property of in-

dividual Indians or tribes, and shall provide for the bond-

ing of any community officials or Federal employees

entrusted with the custody of community funds and for

such forms of publicity and accounting, and for such con-

tinuing supervision by the Office of Indian Affairs over

financial transactions and economic policies as may be

found by the Secretary of the Interior to he necessary to

prevent dissipation of the capital resources of the commu-

nity or unjust discrimination in the apportionment of in-

come; and each charter shall further provide for the

gradual elimination of administrative supervision as the

Indian community shows progress in the effective utiliza-

tion of its resources and the prudent disposal of its assets.

Ses. 4. The Secretary of the Interior is authorized to

grant to any community which may be chartered under

this Act, either by original charter or by supplement to

such charter initiated or ratified by a three fourths vote,

any or all of the powers hereinafter enumerated, subject to

the provisions of law fixed by section 8 of this title, or any

rules or regulations promulgated pursuant thereto, re-

specting the terms upon which certain functions of the

Federal Government shall be transferred to the chartered

A-4

community, and to provide, in such original charter or sup-

plement, for the definition, qualification, or limitation of

any powers which may be granted, in any manner deemed

necessary or desirable for the effectuation of the purposes

and policies above set forth.

(a) To organize and act as a Federal municipal corpora-

tion, to establish a form of government, to adopt and

thereafter to amend a constitution, and to promulgate and

enforce ordinances and regulations for the effectuation of

the functions hereafter specified, and any other functions

customarily exercised by local governments.

(b) To elect or appoint officers, agents, and employees,

to define the qualifications for office, to fix the salaries of

officials to be paid by the community, to prescribe the

qualifications of voters, to define the conditions of mem-

bership within the community, and to provide for the

adoption of new members.

members of the community, to protect and conserve the

property, wild life, and natural resources of the commu-

nity, to cultivate and encourage arts, crafts, and culture, to

administer charity, and to protect the health, morals, and

general welfare of the members of the community.

(d) To establish courts for the enforcement and admin-

istration of ordinances of the community, which courts

shall have exclusive jurisdiction over all offenses of, and

controversies between, members of the chartered commu-

nity, under the ordinances of such community, and juris-

diction exclusive or nonexclusive over all other cases

arising under the ordinances of the community, and shall

have power to render and enforce judgments, criminal and

civil, legal and equitable, and to punish violations of local

ordinances by fine not exceeding $500, or, in the alterna-

tive, by imprisonment for a period not exceeding six

months: Provided, That no person shall be punished for

any offense for which prosecution has been begun in any

other court of competent jurisdiction.

(e) To accept the surrender of the tribal, corporate, or

community, interests of individual members who desire to

abandon the community, and to pay a fair compensation

A-5

therefor, to act as guardian or to provide for the appoint-

ment of guardians for minor and other incompetent mem-

bers of the community, and to administer tribal and

individual funds and properties which may be transferred

or entrusted to the community by the Federal Govern-

ment.

(f) To operate, maintain, and equip any public improve-

ment and, as a Federal agency, to condemn and take title

to any lands or properties, in its own name, when neces-

sary for any of the purposes authorized by charter, and to

levy assessments for community purposes, or to require

the performance of labor on community projects, in lieu of

assessments.

(g) To acquire, manage, and dispose of property, subject

to applicable laws restricting the alienation of Indian lands

and the dissipation of Indian resources, to make contracts,

to issue nontransferable certificates of membership, to de-

clare and pay out dividends, to adopt and use a corporate

seal which shall be judicially noticed in all Federal courts,

to sue and be sued in its own name, to employ counsel and

to pay counsel fees not in excess limits to be fixed by char-

ter provision, to have succession unti} its membership may

become extinct, and to exercise any other privileges which

may be granted to membership or business corporations.

(h) To compel the transfer from the community for inef-

ficiency in office or other cause, of any employee of the

Federal Indian Service locally assigned; to regulate trade

and intercourse between members of the community and

nonmembers; and to exclude from the territory of the com-

munity, with the approval of the Secretary of the Interior,

nonmembers whose presence endangers the health, secu-

rity, or welfare of the community: Provided, however, That

nothing in this section or in this Act shall be construed to

forbid the service in the territory of any Indian community

of any civil or criminal process of any court having juris-

diction over any person found therein.

(i) To exercise any other power now or hereafter dele-

gated to the Office of Indian Affairs, or any officials

thereof, to contract with governmental bodies of State or

Nation for the reception or performance of public services,

A-6

and to act in general as a Federal agency in the administra-

tion of Indian Affairs, upon the condition, however, that

the United States shall not be liable for any act done, suf-

fered to be done, or omitted to be done by a chartered

Indian community.

Gj) To exercise any other powers, not inconsistent with

the Constitution and laws of the United States, which may

be necessary or incidental to the execution of the powers

above enumerated.

An Indian community chartered under this Act shall be

recognized as successor to any existing political powers

heretofore exercised over the members of such community

by any tribal, or other native political organizations com-

prised within the said community, not withheld by such

tribal or other native political organization, and shall, sub-

ject to the terms of said charter, further be recognized as

successor to all right, interest, and title to all funds, prop-

erty, choses in action, and claims against the United States

heretofore held by the tribes or other native political orga-

nizations comprised within the community, or to a propor-

tionate share thereof, except as such succession may be

limited by the charter, subject to existing provisions of law

with respect to the maintenance of suits against the United

States, and subject further to such provision for the appor-

tionment of such assets among nonmembers of the com-

munity having vested rights therein, as may be prescribed

by the charter.

Sec. 5. When any Indian community shall have been

chartered, it shall be the duty of the Commissioner of In-

dian Affairs to. cause regular reports concerning their re-

spective functions to be made to the constituted

authorities of the community, to advise and consult with

such authorities on problems of local administration and

Federal policy, and to allow such authorities free access to

the records and files of the local agency.

Any Indian community shall have the power to compel

the transfer from the community of any persons employed

in the administration of Indian affairs within the territo

rial limits of the community other than persons appointed

by the community: Provided, however, That the Commis-

A-7

sioner of Indian Affairs may prescribe such conditions for

the exercise of this power as will assure to employees of the

Indian Service a reasonable security of tenure, an opportu-

nity to demonstrate their capacities over a stated period of

time, and an opportunity to hear and answer complaints

and charges.

Sec. 6. The Secretary shall prepare annual estimates of

expenditures for the administration of Indian affairs, in-

cluding expenditures for functions and services adminis-

tered by an Indian community, pursuant to the authority

conferred by section 8 of this title. It shall be the duty of

the Secretary to transmit to the authorized representative

of an Indian community any estimates and justifications

thereof for expenditures to be made in whole or in part

within the territorial limits of the community. Any recom-

mendation of the authorized representatives of the com-

munity, including the approval or rejection of any item in

whole or in part, or the recommendation of any other ex-

penditures, shall be transmitted by the Secretary to the

Bureau of the Budget and to the Congress concurrently

with the submission of the estimates of the Secretary.

The Secretary shall also transmit to the authorized rep-

resentatives of an Indian community a copy of any bill, or

amendment of a bill, for the benefit of Indians, authorizing

in whole or in part, the appropriation or expenditure,

within the territorial limits of such community, of any

funds from the Federal Treasury for which the Secretary

of the Interior has submitted no estimates, and the Secre-

tary shall transmit their written recommendations to the

Congress.

The Secretary shall also transmit to the authorized rep-

resentatives of an Indian community a description of any

project involving the expenditure, in whole or in part, of

any funds appropriated for the general welfare within the

territorial limits of the community.

No expenditure hereafter authorized or appropriated for

by Congress shall be charged against any such Indian com-

munity as a reimbursable debt, unless such appropriation

and expenditure have been recommended or approved by

such Indian community through its duly constituted au-

A-8

thorities; and any funds of the community deposited in the

United States Treasury shall be expended only by the

bonded disbursing agent of such community.

Sec. 7. The Secretary of the Interior may from time to

time delegate to any Indian community, within the limits

of its competence as defined by charter, the authority to

perform any act, service, or function which the United

States administers for the benefit of Indians within the

territorial limits of the community and may enter into an-

nual agreements with the constituted authorities of the

community with respect to the terms and conditions of

such delegation.

Sec. 8. The Commissioner is authorized and directed to

proceed immediately after the passage of this Act, to ar-

range and classify the various functions and services ad-

ministered for Indians by the United States into divisions

and subdivisions which may be separably transferred. The

Commissioner is further authorized and directed to pro-

ceed, immediately after the passage of this Act, to make a

study and investigation of the conditions upon which sepa-

rable functions and services may be transferred to the In-

dian communities and thereupon to promulgate, direct,

and express rules and regulations to govern such transfer.

The said rules and regulations shall set forth all condi-

tions reasonably necessary to assure the satisfactory and

continued administration of the function or service trans-

ferred. The said rules and regulations shall include stand-

ards of fitness for Indians with respect to health, age,

character, knowledge, and ability, for any position main-

tained, now or hereafter, before or after transfer to an In-

dian community, for the administration of functions or

services within the territorial limits of any community, and

a classification of all positions for which the requisite

knowledge and training may be acquired by Indians

through experience or apprenticeship in the position. The

said rules and regulations shall also set forth for each sepa-

rable function or services, a condition of its transfer, the

positions for which Indians shall qualify and the required

number of qualified Indians for each such position, provi-

sions assuring a reasonable security of tenure, and any

A-9

other conditions reasonably necessary to assure the contin-

ued and the satisfactory administration of transferred

functions or services.

Any Indian community may, through procedure set up

in its charter, appoint a member to any vacant position

under the Indian Service maintained for the administra-

tion of functions or services for Indians within the territo-

rial limits of the community. The appointee shall not take

office until he shall have previously received the certificate

of approval of his fitness for the position in question from

the Commissioner. The Commissioner shall issue such cer-

tificate of approval to any member of an Indian commu-

nity recommended by the duly authorized representatives

of the community and who is qualified for the position

under the rules and regulations prescribed pursuant to this

section.

Any Indian community may, upon a three-fourths vote

at a popular election open to all adult members, request

the transfer of any separable function or service, and the

Secretary of the Interior shall transfer such function or

service and, if necessary, confer by supplement to the com-

munity charter, the legal capacity to exercise such function

or service, subject only to the following terms and condi-

tions;

(a) The community must comply with all conditions

prescribed by the rules and regulations of the Secretary of

the Interior pursuant to the authority of this section. The

community may transmit to the Congress any objection it

may have to the conditions imposed, together with its

budget recommendations for the next fiscal year.

(b) The Secretary of the Interior shall certify to the Sec-

retary of the Treasury the amount of any sums or any

unexpended balance of such sums theretofore or thereafter

expressly appropriated, or the proportionate share of any

general appropriation, for the administration of such func-

tion or service within the territorial limits of the commu-

nity. The Secretary of the Treasury shall place suck sums

to the credit of the community, to be paid out on the requi-

sition of the bonded disbursing agent of the community.

The expenditure of such funds shall be subject to all Fed-

A-10

eral laws and regulations governing the expenditures of

Federal appropriations.

nity, and the local Federal employees shall cooperate in

any feasible manner at the request of the community, in

the administration of the function or service transferred.

The Commissioner shall also make available to the Indian

community any facilities, including any lands, buildings,

and equipment previously used but no longer needed by

the United States in the administration of Indian affairs

within the community.

(d) Whenever the Secretary of the Interior shall deter-

mine that the community has failed to comply with the

conditions imposed for the continued administration of

the function or service transferred, the Secretary or the

Commissioner of Indian Affairs shall reassume the admin-

istration of such function or service and the Secretary shall

report to the next regular session of the Congress with

appropriate recommendations.

(e) The community, or its duly authorized representa-

tives, shall make on or before September 1 of each year, an

annual report for the fiscal year ended June 30, previously,

to the Secretary, concerning the administration of the

function or service transferred to the community, includ-

ing an account by the disbursing agent of the community

of receipts and expenditures of moneys placed to the credit

of the community under this section.

(f) The Secretary of the Interior shall make an annual

report to Congress on the administration of the functions

and services transferred to the community, and shall in-

clude in such reports the reports of the Indian communi-

ties required by paragraph (e) of this section.

Sec. 9. The Secretary and the Commissioner shall con-

tinue to exercise all existing powers of supervision and

control over Indian affairs now entrusted to them or either

of them which are not transferred by charter or supple-

ment thereto or by Act of Congress to organized Indian

communities, and shall have power to enforce by adminis-

trative order or veto, if so provided within the charter, or,

in any event, by legal process in any court of competent

A-11

jurisdiction, all provisions contained in a charter for the

protection of the rights of minorities within the commu-

nity, all provisions therein contained for the conservation

of the resources of the community, and all other provisions

that limit, qualify, or restrict the powers granted to the

community.

Sec. 10. The Secretary of the Interior may, upon grant-

ing a charter to an Indian community, convey or confirm

to such community, as an agency of the Federal Govern-

ment, any right, interest, or title in property which may be

held by the United States in trust for members of the com-

munity, and in any lands, buildings, or equipment previ-

ously used by the United States in the administration of

Indian affairs within the community, and in any liens or

credits of the United States held by virtue of loans to or

expenditures on behalf of Indian members of the said com-

munity.

Sec. 11. Nothing in this Act shall be construed as ren-

dering the property of any Indian community or of any

member of such community subject to taxation by any

State or subdivision thereof, or subject to attachment or

sale under legal process, or as an expression of intent on

the part of the United States to abandon the duties and

responsibilities of guardianship of any Indians becoming

members of chartered communities.

Sec. 12. There is hereby authorized to be appropriated,

out of any funds in the Treasury not otherwise appropri-

ated, such sums as may be necessary, not to exceed

$500,000 in any one fiscal year, to be expended at the order

of the Secretary of the Interior, and with the consent of the

Indian communities concerned, in defraying the expenses

of the organization and development of communities char-

tered under this Act, including the construction and fur-

nishing of community buildings, the purchase of clerical

supplies, and the improvement of community lands.

Sec. 13. The following definitions of terms used in this

title shall be binding in the interpretation of this statute:

(a) The term “Commissioner” whenever used in this Act

shall be taken to refer to the Commissioner of Indian Af-

fairs, and the term “Secretary” to the Secretary of the In-

A-12

terior, and the terms “Commissioner” and “Secretary”

whenever used in this Act in reference to the exercise of

any power shall be construed as authorizing the delegation

of such power to subordinate officials.

(b) The term “Indian” as used in this title to specify the

persons to whom charters may be issued, shall include all

persons of Indian descent who are members of any recog-

nized Indian tribe, band, or nation, or are descendants of

such members and were, on or about February 1, 1934,

actually residing within the present boundaries of any In-

dian reservation, and shall further include all other per-

sons of one fourth or more Indian blood, but nothing in

this definition or in this Act shall prevent the Secretary of

the Interior or the constituted authorities of a chartered

community from prescribing, by provision of charter or

pursuant thereto, additional qualifications or conditions

for membership in any chartered community, or from of-

fering the privileges of membership therein to nonresi-

dents of a community who are members of any tribe,

wholly or partly comprised within the chartered commu-

nity.

used in this title to specify the persons to whom charters

may be issued shall signify the maintaining of a permanent

abode at the time of the issuance of a charter and for a

continuous period of at least one year prior to February 1,

1934, and subsequent to September 1, 1932, but this defi-

nition may be modified by the Secretary of the Interior

with respect to Indians who may reside on lands acquired

subsequently to February 1, 1934.

(d) The term “charter” is used in this Act shall denote

any grant of power by the United States, whether or not

such power includes the privilege of corporate existence.

(e) The “three-fifths vote” required for ratification of a

charter and the “three-fourths vote” required for proposal

or ratification of any supplement thereto or transfer of any

Federal function or service shall be measured with refer-

ence to the total number of votes cast; the chartered com-

munity, or, if the community has not yet been chartered,

the Secretary of the Interior shall designate the time, place

A-13

and manner of voting, shall declare the qualifications of

voters, and shall be the final judge of the eligibility of vot-

ers and of the validity of ballots.

(f) The term “disposition of property” as used in this

title shall denote any transfer of property by devise or in-

testate succession, as well as transfer inter vivos.

(g) The term “punish” as used in this title shall not be

construed to affect the amount or extent of civil judg-

ments.

(h) The term “public” as used in this title shall include

all matters affecting either the property owned or con-

trolled by a chartered community, or the health, morals, or

welfare of a considerable part of the membership of such

community.

(i) The term “dividend” as used in this title shall be

construed to include any distribution of funds by a char-

tered community out of current or accrued income and any

other distribution of funds which may be approved by the

Secretary of the Interior.

(j) The power “to sue and be sued” as used in this title

shall not be construed to grant to the courts of any State

any jurisdiction over a chartered community or the mem-

bers thereof not now possessed over an Indian tribe or its

members, nor to sanction execution upon the assets of the

community, nor shall this power be construed to deny the

right of the United States to intervene in any suit or pro-

ceeding in which it now has the right to intervene.

(k) The term “tribe” wherever used in this Act shall be

construed to refer to any Indian tribe, band, nation,

pueblo, or other native political group or organization.

(J) The term “reservation” wherever used in this Act

shall be construed to comprise all the territory within the

outer boundaries of any Indian reservation, whether or not

such property is subject to restrictions on alienation and

whether or not such land is under Indian ownership.

(m) The term “territory of a chartered community”

wherever used in this Act shal! be construed to comprise

all lands, waters, highways, roads, and bridges within the

boundaries of an Indian community as fixed by charter,

regardless of whether the title to such property is in the

A-14

United States, ar Indian tribe or community, a restricted

Indian or the heirs of a restricted Indian, or whether it is in

a fee-patent Indian, or any other person, agency, or gov-

ernment.

(n) The term “transfer” as used in this title to apply to

any function or service shall designate the relinquishment

by the Secretary of the Interior or the Commissioner of

Indian Affairs of any rights and duties incident to the per-

formance of such function or service and the assumption of

such rights and duties by the Indian community as an

agency of the Federal Government.

TitLe II — SpeciaL EpucaTIon For INDIANS

SEcTION 1. The Commissioner is authorized and di-

rected to make suitable provision for the training of Indian

members of chartered communities and other Indians of at

least one-fourth degree of Indian blood, in the various

services now intrusted to the Office of Indian Affairs and

in any additional services which may be undertaken by a

chartered Indian community, including education, public-

health work, and other social services, the administration

of law and order, the management of forests and grazing

lands, the keeping of financial accounts, statistical records,

and other public reports, and the construction and mainte-

nance of buildings, roads, and other public works. The

Commissioner may use the staffs and facilities of existing

Indian boarding or day schools for such special instruction,

and he may provide for the training and education of In-

dian students in universities, colleges, schools of medicine,

law, engineering, or agriculture, or other institutions of

recognized standing and may subsidize such training and

education under the following conditions:

(a) The Commissioner shall extend financial aid and as-

sistance on the basis of financial need to qualified Indians

for the payment of tuition and other costs of education,

including necessary costs of support. One half of the

amount so expended shall be a non-interest-bearing, reim-

bursable loan to be repaid in installments whenever the

beneficiary shall have received employment anywhere, but

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the obligation shall be temporarily suspended during any

period of unemployment.

There is hereby authorized to be appropriated, out of

any funds in the United States Treasury not otherwise ap-

propriated, a sum not to exceed $50,000 annually to defray

subsidies made under the foregoing paragraph.

(b) Notwithstanding the provisions of paragraph (a) of

this section, the Commissioner may grant scholarships to

any qualified Indian of special promise, no part of which

shall be reimbursable.

There is hereby authorized to be appropriated, out of

any funds in the United States Treasury not otherwise ap-

propriated, a sum not to exceed $15,000 annually to defray

the cost of scholarships awarded under the foregoing para-

graph.

Formal contracts shall not be required for compliance

with section 3744 of the Revised Statutes (U.S. C., title 11,

sec. 16), with respect to the grants of subsidies or scholar-

ships to Indian students under the foregoing provisions.

Sec. 2. It is hereby declared to be the purpose and policy

of Congress to promote the study of Indian civilization and

preserve ard develop the special cultural contributions

and achievements of such civilization, including Indian

arts, crafts, skills, and traditions. The Commissioner is di-

rected to prepare curricula for Indian schools adapted to

the needs and capacities of Indian students, including

courses in Indian history, Indian arts and crafts, the social

and economic problems of the Indians, and the history and

problems of the Indian Administration. The Commissioner

is authorized to employ individuals familiar with Indian

culture and with the contemporary social and economic

problems of the Indians to instruct in schools maintained

for Indians. The Commissioner is further directed to make

available the facilities of the Indian schools to competent

individuals appointed or employed by an Indian commu-

nity to instruct the elementary and secondary grades in the

Indian arts, crafts, skills, and traditions. The Commis-

sioner may contribute to the compensation of such individ-

uals in such proportion and upon such terms and

conditions as he may deem advisable. For this purpose the

A-16

Commissioner may use moneys appropriated for the main-

tenance of such schools.

Titte III — INDIAN LANDS

SECTION 1: It is hereby declared to be the policy of Con-

gress to undertake a constructive program of Indian land

use and economic development, in order to establish a per-

manent basis of self-support for Indians living under Fed-

eral tutelage; to reassert the obligations of guardianship

where such obligations have been improvidently relaxed;

to encourage the effective utilization of Indian lands and

resources by Indian tribes, cooperative associations, and

chartered communities; to safeguard Indian lands against

alienation from Indian ownership and against physical de-

terioration; and to provide land needed for landless Indi-

ans and for the consolidation of Indian landholdings in

suitable economic units.

Sec. 2. Hereafter no tribal or other land of any Indian

reservation or community created or set apart by treaty or

agreement with the Indians, act of Congress, Executive or-

der, purchase, or otherwise, shall be allotted in severalty to

any Indian.

Sec. 3. The Secretary of the Interior is authorized to

withdraw from disposal the remaining surplus lands of any

Indian reservation heretofore opened or authorized to be

opened, to sale, settlement, entry, or other form of disposal

by Presidential proclamation, or under any of the public

land laws of the United States. Any land so withdrawn

shall have the status of tribal or community lands of the

tribe, reservation, or community within whose territorial

limits they are located: Provided, however, That valid

rights or claims of any persons to any lands so withdrawn

existing on the date of the withdrawal shall not be .ffected

by this Act.

The Secretary of the Interior shall determine what

lands, lying outside of areas classified for consolidation un-

der Indian ownership pursuant to section 6 of this title, are

not needed by the Indians, and such lands shall be reo-

pened to sale, settlament, entry, or other lawful form of

disposal in accordance with existing law.

A-17

Sec. 4. The existing periods of trust placed upon Indian

allotments and unallotted tribal lands and any restriction

of alienation thereof, are hereby extended and continued

until otherwise directed by Congress. The authority of the

Secretary of the Interior to issue to Indians patents in fee

or certificates of competency or otherwise to remove the

restrictions on lands allotted to individual Indians under

any law or treaty is hereby revoked.

No lands or other capital assets owned by an Indian

community, or any interest therein, shall be voluntarily or

involuntarily alienated: Provided, however, That the com-

munity may grant the use of the surface of, or any mining

privileges in, any land to a nonmember, by lease or revoca-

ble permit for a period not to exceed one year, or, with the

approval of the Secretary, for a longer period, and may,

with the approval of the Secretary, sell or contract to sell

to a nonmember any standing timber, or dispose of any

capital improvements, owned by the community.

Sec. 5. No sale, devise, gift, or other transfer of Indian

lands held under any trust patent or otherwise restricted,

whether in the name of the allottee or his heirs, shall be

made or approved: Provided, however, That such lands

may, with the approval of the Secretary, be sold, devised,

or otherwise transferred to the Indian tribe from whose

lands the allotment was made or the chartered community

within whose territorial limits they are located: And pro-

vided further, That the Secretary of the Interior may au-

thorize exchanges or lands of equal value whenever such

exchange is in his judgment necessary for or compatible

with the proper consolidation of Indian lands classified for

the purpose pursuant to the authority of section 6 of this

title.

Sec. 6. The Secretary of the Interior is authorized and

directed to classify areas of land allotted in whole or in

part now under restricted Indian ownership which are rea-

sonably capable of consolidation into suitable units for

grazing, forest management, or other economic purposes,

and to proclaim the exclusion from such areas of any lands

not to be included therein. In order to bring about an or-

derly and sound acquisition and consolidation of lands and

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to promote the effective use of Indian resources and the

development of Indian economic capacities, the Secretary

is hereby authorized and directed to make economic and

physical investigation and classification of the existing In-

dian lands, of intermingled and adjacent non-Indian lands

and of other lands that may be required for landless Indian

groups or individuals; to make necessary maps and sur-

veys; to investigate Indian aptitudes and needs in the agri-

cultural and industrial arts, in political and social affairs

and in education, and to make such other investigations as

may be needed to secure the most effective utilization of

existing Indian resources and the most economic acquisi-

tion of additional lands. In carrying out the investigations

prescribed in this section the Secretary is authorized to

utilize the services of any Federal officers or employees

that the President may assign to him for the purpose, and

is further authorized, with the consent of the States con-

cerned, to enter into cooperative agreements with State

agencies for similar services.

Sec. 7. The Secretary of the Interior is hereby autho-

rized, in his discretion, and under such rules and regula-

tions as he may prescribe, to acquire, through purchase,

relinquishment, gift, exchange, or assignment, lands or

surface rights to lands, within or outside of existing reser-

vations, including trust or otherwise restricted allotments,

whether the allottee be living or deceased, for the purpose

of providing land for Indians for whom reservation or

other land is not now available and who can make benefi-

cial use thereof, and for the purpose of blocking out and

consolidating areas classified for the purpose pursuant to

the authority of section 6 of this title. The Secretary is

authorized, in the case of trust or other restricted lands or

_lands to which fee patents have hitherto been issued to

Indians and which are unencumbered, to accept voluntary

relinquishments of, and to cancel the patent or patents or

any other instrument removing restrictions from the land.

There is hereby authorized to be appropriated, for the

acquisition of such lands and for expenses incident

thereto, including appraisals and the investigations pro-

vided for in section 6 of this title, a sum not to exceed

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$2,000,000 for any one fiscal year. The unexpended bal-

ances of appropriations made for any one year pursuant to

this Act shall remain available until expended.

The Secretary of the Interior is hereby authorized to

accept voluntary relinquishments from any Indian allottee

or Indian homestead entryman, or from his heirs, of all

rights in and to any land included in any Indian public

domain allotment, homestead, or application therefor,

which has heretofore or may hereafter be made, where

such land lies within the exterior boundaries of any Indian

reservation or area heretofore or hereafter set apart and

reserved for the use and benefit of any Indian tribe or

band; and the Secretary of the Interior is hereby autho-

rized and empowered to cancel any patent which may have

been issued conveying such land, or any interest therein, to

any Indian allottee or Indian homestead entryman.

Title to any land acquired pursuant to the provisions of

this section shall be taken in the name of the United States

in trust for the Indian tribe or community for whom the

land is acquired, but title may be transferred by the Secre-

tary to such community under the conditions set forth in

this Act.

Sec. 8. Any Indian tribe or chartered Indian community

is authorized to purchase or otherwise acquire any interest

of any member or nonmember in land within its territorial

limits, and may expend any tribal or community funds,

whether or not held in the Treasury of the United States,

for this purpose, whenever, in the opinion of the Secretary

of the Interior the acquisition is necessary for the proper

consolidation of Indian lands.

The Secretary of the Interior is authorized to transfer to

any Indian tribe or community, and to accept on behalf of

the tribe or community, any member’s interest in re-

stricted farming, grazing, or timberlands, and shall issue a

non-transferable certificate in exchange, evidencing a pro-

portionate interest in tribal or community lands of similar

quality, if in his opinion such transfer is necessary for the

proper consolidation of Indian lands: Provided, however,

That any Indian making beneficial use of such transferred

lands shall be entitled to continue the occupancy and use

A-20

of such lands, and to any improvements thereon, or to re-

ceive adequate compensation for such improvements, sub-

ject to the provisions of section 14 of this title. For the

purpose of this section “proportionate interest” shall be

cdnstrued to mean a right to use or to receive the income

from an equivalent amount of tribal or community land of

similar quality or to receive the money value of any lawful

disposition of the interest transferred if such right of use is

not exercised. A member’s proportionate interest may de-

scend to the heirs of such member but not to any nonmem-

ber, and his right of use of transferred land, if exercised,

may similarly descend to the heirs of such member.

The Secretary of the Interior may sell and convey to an

Indian, to an Indian tribe, or community, any restricted

lands inherited by any member, whenever, in his opinion,

the sale is necessary for the proper consolidation of Indian

lands.

The time and mode of payment of the purchase price of

any lands authorized to be sold or purchased under this

section shall be governed by the agreement between the

parties, but insofar as practicable the purchase price shall

be paid in annual installments equal to the estimated an-

nual proceeds realizable from any lawful disposition of the

land, and the vendor, if a member, may accept any right of

use in tribal or community lands as satisfaction of the pur-

chase price in whole or in part.

Sec. 9. The Secretary of the Interior shall assign the use

of tribal or community lands to any member according to

the right or interest of such member for a period not to

exceed the life of the assignee and shall make rules and

regulations governing such assignments. The Secretary of

the Interior may in addition assign to any such member

the right of exclusive occupancy of any community lands

for farming or domestic purposes in proper economic

units: Provided, That any Indian making beneficial use of

land shall be entitled to preference in the assignment of

the use of such land and to any improvements thereon or

to adequate compensation for such improvements.

All rights of exclusive occupancy of, and all physical im-

provements lawfully erected on, tribal or community

A-21

lands, shall descend according to rules of descent and dis-

tribution to be prescribed by the Secretary of the Interior.

Sec. 10. Wherever the Secretary shall find that existing

State laws governing the determination of heirs, so far as

made applicable to any restricted Indian lands by congres-

sional enactment, are not adapted to indian needs and cir-

cumstances, he may promulgate independent rules

governing such determination, including such rules as may

be necessary to prevent any subdivision of rights to lands

or improvements thereon where is likely to impair their

beneficial use.

The Secretary may delegate to a chartered Indian cem-

munity the authority conferred by this section.

Sec. 11. On and after the effective date of the passage of

this Act, and beginning with the death of the person pres-

ently entitled, all right, interest, and title in restricted al-

lotted lands, but not including any proportionate interest

acquired pursuant to section 8 of this title or any improve-

ments lawfully erected, shall pass to the chartered commu-

nity within whose territorial limits such lands are located

or, if no community has been chartered, to the tribe from

whose lanws the allotment was made: Provided, however,

That individuals who would be otherwise entitled, save for

the provisions of this section, shall acquire a contingent

interest in such lands, and title to any such lands shall vest

in such individuals when and only when the Secretary

shall determine that such lands lie outside any area classi-

fied for consolidation pursuant to section 6: And provided

further, That prior to such determination the individuals

otherwise entitled shall enjoy the use and income realized

from any lawful disposition of suc lands.

The Secretary shall issue to the individuals otherwise

entitled to nontransferable certificate evidencing a de-

scendible interest in tribal or community lands of similar

quality in the proportion which the acreage of the farming

grazing, or timber lands, whichever, passing to the tribe or

community at any time bears to the total tribal or commu-

nity acreage of farming, grazing, or timber lands: Provided,

however, That such persons shall enjoy a preference in the

assignment of lands passing to the tribe or community in

A-22

accordance with the provisions of this section.

No will purporting to make any other disposition of

such lands shall be approved.

Sec. 12. The Secretary of the Interior is authorized and

directed to issue to each member of an Indian tribe or

community which owns or controls lands allotted in whole

or in part a nontransferable certificate evidencing the

member’s right to an equal interest in all tribal or commu-

nity assets, including the right to make beneficial use of a

proportionate share thereof: Provided, however, That in

the administration of sections 8, 9, 10, and 11 of this title,

members so entitled may be given the right to actual bene-

ficial use of more than their proportionate shares of such

tribal or community lands and resources: And provided

further, That in the administration of sections 8, 9, 10 and

11 of this title, appropriate deductions may be made from

the undivided interest of any member proportionate in

value to any special interest acquired or inherited by such

member, in exchange for property passing, transferred, or

sold, to a tribe or community, or any restricted lands re-

tained in severalty by such member.

Sec. 13. Each certificate issued pursuant to the author-

ity of any section of this title shall be issued in triplicate,

one copy of which the Secretary of the Interior shall retain

in a register to be kept for the purpose and the others of

which he shall forward to the tribe or chartered Indian

community. The said tribe or community shall deliver to

the Indian in whose favor it is issued one of such certifi-

cates so forwarded and shall cause the other to be copied

into a register of the tribe or community to be provided for

the purpose, and shall file the same.

The Secretary may delegate to a chartered community

the authority conferred by this section and may counter-

sign certificates of interest issued by such community to its

members

Sec. 14. The Secretary of the Interior is authorized and

directed to classify and divide the lands owned or con-

trolled by an Indian tribe or community into economic

units suitable for farming, grazing, forestry, and other pur-

poses, and may lease or permit the use of, and may regu-

A-23

late the use and management of such lands whenever in his

opinion necessary to promote and preserve their economic

use. The Secretary may delegate to a chartered Indian

community the authority conferred by this section.

Sec. 15. The Secretary of the Interior is authorized and

directed to make rules and regulations for the operation

and managernent of Indian forestry units on the principle

of sustained yield management, to restrict the number of

livestock grazed on Indian range units to the estimated

carrying capacity of such ranges, and to promulgate such

other rules and regulations as may be necessary to protect

the range for deterioration, to prevent soil erosion, and like

purposes. The Secretary may delegate to a chartered In-

dian community the authority conferred by this section.

Sec. 16. The Secretary of the Interior is authorized to

proclaim new Indian reservations on lands purchased for

the purposes enumerated in this Act, or to add such lands

to the jurisdiction of existing reservations. Such lands, so

long as title to them is held by the United States or by an

Indian tribe or community, shall not be subject to taxa-

tion, but the United States shall assume all governmental

obligations of the State or county in which such lands are

situated with respect to the maintenance of roads across

such lands, the furnishing of educational and other public

facilities to persons residing thereon, and the execution of

proper measures for the control of fires, floods, and ero-

sion, and the protection of the public health and order in

such lands, and the Secretary of the Interior may enter

into agreements with authorities of any State or subdivi-

sion thereof in which such lands are situated for the per-

formance of any or all of the foregoing functions by such

State or subdivision or any agencies or employees thereof

authorized by the law of the State to enter into such agree-

ments, and for the payment of the expenses of such func-

tions where appropriations therefor shall be made by

Congress.

Sec. 17. Nothing contained in this title shall be con-

strued to relate to Indian holdings of allotments or home-

steads upon the public domain outside of the geographic

A-24

boundaries of any Indian reservation now existing or to be

established hereafter.

Sec. 18. Whenever used in this title the phrase “a mem-

ber of an Indian tribe” shall include any descendant of a

member permanently residing within an existing Indian

reservation.

Sec. 19. Whenever used in this title the phrase “lands

owned or controlled by an Indian tribe or community”

shall include all interest in land of any of its members.

Sec. 20. The provisions of this Act shall not be con-

strued to prevent the removal of restrictions on taxable

lands of members of the Five Civilized Tribes nor operate

to effect any change in the present laws and procedure

relating to the guardianship of minor and incompetent

members of the Osage and Five Civilized Tribes, but in all

other respects shall apply to such Indians.

Sec. 21. None of the provisions of this Act, except the

provisions of Title II, relating to Indian education, shall

apply to the Indians of New York State.

Tirte IV — Court or INDIAN AFFAIRS

SecTION 1. There shall be a United States Court of In-

dian Affairs, which shall consist of a chief judge and six

associate judges, each of whom shall be appointed by the

President, by and with the advice and consent of the Sen-

ate, and shall receive an annual salary of $7,500 payable

monthly from the Treasury.

Sec 2. The said Court of Indian Affairs shall always be

open for the transaction of business and sessions thereof

may, in the discretion of the court, be held in the several

judicial circuits and at such places as said court may from

time to time designate. The authority of the court may be

exercised either by the full court or by one or more judges

duly assigned by the court to sit in a particular locality or

to hold a special term for a designated class of cases.

Sec 3. The Court of Indian Affairs shall have original

jurisdiction as follows:

(1) Of all prosecutions for crimes against the United

States committed within the territory of any Indian reser-

A-25

vation or chartered Indian community, whether or not

committed by an Indian;

(2) Of all cases to which any Indian tribe or chartered

Indian community is a party;

(3) Of all cases at law or in equity arising out of com-

merce with any Indian tribe gr community or members

thereof, wherein a real party in interest is not a member of

such tribe or community;

(4) Of all cases, civil or criminal, arising under the laws

or ordinances of a chartered Indian community, wherein a

real party in interest is not a member of such community;

(5) Of all actions at law or suits in equity wherein the

pleadings raise a substantial question concerning the va-

lidity or application of any Federal law, or any regulation

or charter authorized by such law, relating to the affairs or

jurisdiction of any Indian tribe or chartered community;

(6) Of all actions, suits, or proceedings involving the

right of any person, in whole or in part of Indian blood or

descent, to any allotment of land under any law or treaty;

(7) Of all cases involving the determination of heirs of

deceased Indians and the settlement of the estates of such

Indians; of all cases and proceedings involving the parti-

tion of Indian lands, or the guardianship of minor and

incompetent Indians; and of all cases and proceedings to

determine the competency of individual Indians where the

issuance of cancelation of a fee patent or the removal of

restrictions from inherited or allotted lands, funds, or

other property held by the United States in trust for such

Indians may be involved: Provided, That the Court of In-

dian Affairs shall exercise no jurisdiction in cases over

which exclusive jurisdiction has been granted by Congress

to the Court of Claims, or to any other Federal court other

than the United States district courts, or in cases over

which exclusive jurisdiction may be granted by charter

provision to the local courts of any Indian community.

Sec. 4. All jurisdiction heretofore exercised by the

United States district courts by reason of the fact that a

case involved facts constituting any of the grounds of juris-

diction enumerated in the preceding section, is hereby ter-

minated, reserving, however, to such district courts

A-26

complete jurisdiction over all pending suits and over all

proceedings ancillary or supplementary thereto.

Sec. 5. The Court of Indian Affairs may order the re-

moval of any cause falling within its jurisdiction as above

set forth, from any court of any State or any Indian com-

munity in which such cause may have been instituted.

Sec. 6. The Court of Indian Affairs shall have jurisdic-

tion to hear and determine appeals from the judgment of

any court of any chartered Indian community in all cases

in which said Court of Indian Affairs might have exercised

original jurisdiction.

Sec. 7. The procedure of the Court of Indian Affairs

shall be determined by rules of court to be promulgated by

it, existing statutes regulating procedure in courts of the

United States notwithstanding. Such rules shall regulate

the form and manner of executing, returning, or filing,

writs, processes, and pleadings; the removal of causes spec-

ified in section 5; the taking of appeals specified in section

6; the joinder of parties and of causes of action, legal and

equitable, the interposition of defenses and counterclaims,

legal and equitable; the raising of questions of law before

trial; the taking of testimony by examination before trial

and other proceedings for discovery and inspection; the

issuance of subpoenas to summon witnesses and compel

the production of documents at trial; the summoning of

jurors and the waiver of jury trial; the form and manner of

entry of judgments; the manner of executing judgments;

the conduct of supplementary proceedings; the survival of

actions and the substitution of parties; the ameunts and

manner of payment of fees to the clerk or the marshal of

the court; the practice of attorneys; and such other matters

as may require regulation in order to provide a complete

system of procedure for the conduct of the court. In gen-

eral the rules of court shall conform as nearly as possible to

the statutes regulating the procedure in the district courts

of the United States, the rules of the Supreme Court gov-

erning causes in said district courts, and the practice in the

courts of the State in which the controversy arises, save

that the rules shall so far as possible, be nontechnical in

character and fitted to the needs of prospective litigants.

A-27

Sec. 8. The court may provide, by rules to be promul-

gated by it, for appeals to the full court from judgments

rendered on circuit by less than a majority of the full court.

Sec. 9. All substantial rights accorded to the accused in

criminal prosecutions in the district courts of the United

States shall be accorded in prosecutions in the Court of

Indian Affairs. The trial of offenses punishable by death or

by imprisonment for a period exceeding five years shall be

had within or in the vicinity of the reservation or Indian

community where the offense was committed.

Sec. 10. In both civil and criminal causes, the right to

trial by jury and all other procedural rights guaranteed by

the Constitution of the United States shall be recognized

and observed.

Sec. 11. In criminal cases the rules of evidence shall be

those prevailing in criminal cases in the United States dis-

trict courts. In civil cases the common law rules of evi-

dence, including the rules governing competency of

witnesses, shall prevail: Provided, however, That the court

shall have the power to amend such rules by rule of court

or judicial decision to make them conform as nearly as

possible to modern changes evidenced by the statutes and

decisions of the United States and the several States, and

to adapt them, where necessary, to the solution of prob-

lems of proof peculiar to the cases before the court.

Sec. 12. The statutes and decisions of the several States,

except where the Constitution, treaties, or statutes of the

United States, or the charters or ordinances of Indian com-

munities or orders of executive departments thereunder

promulgated, otherwise require or provide, sail be re-

garded as rules of decision in all civil cases in the Court of

Indian Affairs.

Sec. 13. The Court of Indian Affairs shall be a court of

record possessed of all incidental powers, including the

power to summon jurors, to administer oaths, to have and

use a judicial seal, to issue writs of habeas corpus, to pun-

ish for contempt, and to hold to security of the peace and

for good behavior, which may be exercised by the district

courts of the United States, and such powers shall be sub-

ject to all limitations imposed by law upon said district

A-28

courts. The orders, writs, and processes of the Court of

Indian Affairs may run, be served, and be returnable any-

where in the United States. The said court shall perform

such administrative functions as Congress may assign to it.

The said court shall have the power to render declaratory

judgments, and such judgments, in cases of actual contro-

versy, shall have the same force as final judgments in ordi-

nary cases.

Sec. 14. The judges of the Court of Indian Affairs shall

hold office for a period of ten years; they may be removed

prior to the expiration of their term by the President of the

United States, with the consent of the Senate, for any

cause.

Sec. 15. The final judgment of the Court of Indian Af-

fairs shall be subject to review on questions of law in the

circuit court of appeals of the circuit in which such judg-

ment is rendered. The several circuit courts of appeals are

authorized to adopt rules for the conduct of such appellate

proceedings, and, until the adoption of such rules, the rules

of such courts relating to appellate proceedings upon a

writ of error, so far as applicable, shall govern. The said

circuit of courts of appeals shall have power to affirm, or, if

the judgment of the Court of Indian Affairs is not in ac-

cordance with law, to modify or reverse the judgment of

that court with or without remanding the case for a rehear-

ing, as justice may require; the judgment of the circuit

court of appeals shall be final, except that it may be sub-

ject to review by the Supreme Court as provided in the

United States Code, title 28, sections 346 and 347.

Sec. 16. The fees of jurors and witnesses shall be fixed in

accordance with the provisions of law governing such fees

in United States courts generally as provided in the United

States Code, title 28, sections 600 to 605.

Sec. 17. The costs and fees in the Court of Indian Affairs

shall be fixed and established by said court in a table of

fees: Provided, That the costs and fees so fixed shall not

exceed, with respect to any item, the costs and fees now

charged in the Supreme Court.

Sec. 18. The Court of Indian Affairs shall appoint a

chief clerk, a reporter, and such assistant clerks and mar-

A-29

shals, not to exceed seven each, as may be necessary for the

efficient conduct of its business. The said officials shall be

under the direction of the court in the discharge of their

duties; and for misconduct or incapacity they may be re-

moved by it from office; but the court shall report such

removals, with the cause thereof, to Congress, if in session,

or if not, at the next session.

Sec. 19. The Attorney General shall provide the Court

of Indian Affairs with suitable rooms in courthouses or

other public buildings at such places as the court may se-

lect for its sessions.

Sec. 20. The chief clerk of the court shall, under the

direction of the chief judge, employ such stenographers,

messengers, or attendants and purchase such books, peri-

odicals, and stationery as may be useful for the efficient

conduct of the business of the court, and expenditures for

such purposes shall be allowed and paid by the Secretary

of the Treasury upon claim duly made and approved by

the chief judge.

Sec. 21. The judges of the Court of Indian Affairs and

the clerks and marshals thereof shall receive necessary

traveling expenses, and expenses not to exceed $5 per day

for subsistence while traveling on duty and away from

their designated stations.

Sec. 22. With respect to all matters relating to the re-

ceipt of fines, costs, fees, bail, and other payments to offi-

cials of the court, the custody of funds and the rendering of

accounts therefor, the bonding of court officials charged

with such custody, the payment of moneys for salaries,

traveling expenses, clerical services, the publication of re-

ports of opinions, and office expenses, the laws, depart-

mental regulations, and rules of court applicable to similar

matters in the Supreme Court shall apply to the Court of

Indian Affairs except as otherwise provided in this chap-

ter.

Sec. 23. The Secretary of the Interior is hereby autho-

rized to appoint not to exceed ten special attorneys whose

duty it shall be to advise and represent such Indian tribes

or communities as the Secretary of the Interior may desig-

nate, and the individual members thereof or to represent

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the United States on behalf of such tribes or communities

or the individual members thereof. Within ten days of the

institution of any proceedings on behalf of such tribes or

communities or members thereof, the special attorneys

provided for herein shall serve upon the appropriate

United States district attorney written notice of the pen-

dency of any such proceedings, together with copy of all

the pleadings on file in any such proceeding.

Sec. 24. As used in this title, the term “circuit court of

appeals” includes the Court of Appeals of the District of

Columbia.

Sec. 25. Appropriations for the Federal Court of Indian

Affairs and for incidental expenses shall be made annually

based upon estimates submitted by the Attorney General

and appropriations for the special attorneys shall be made

annually, based upon estimates submitted by the Secre-

tary of the Interior.

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APPENDIX B

[Public No. 383—73d Congress]

[S. 3645]

AN ACT To conserve and develop Indian lands and re-

sources; to extend to Indians the right to form business

and other organizations; to establish a credit system for

Indians; to grant certain rights of home rule to Indians;

to provide for vocational education for Indians; and for

other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That hereafter no land of any Indian reservation,

created or set apart by treaty or agreement with the Indi-

ans, Act of Congress, Executive order, purchase, or other-

wise, shall be allotted in severalty to any Indian.

Sec. 2. The existing periods of trust placed upon any

Indian lands and any restriction on alienation thereof are

hereby extended and continued until otherwise directed by

Congress.

Sec. 3. The Secretary of the Interior, if he shall find it to

be in the public interest, is hereby authorized to restore to

tribal ownership the remaining surplus lands of any Indian

reservation heretofore opened, or authorized to be opened,

to sale, or any other form of disposal by Presidential proc-

lamation, or by any of the public-land laws of the United

States: Provided, however, That valid rights or claims of

any persons to any lands so withdrawn existing on the date

of the withdrawal shall not be affected by this Act: Pro-

vided further, That this section shall not apply to lands

within any reclamation project heretofore authorized in

any Indian reservation: Provided further, That the order

of the Department of the Interior signed, dated, and ap-

proved by Honorable Ray Lyman Wilbur, as Secretary of

the Interior, on October 28, 1932, temporarily withdrawing

lands of the Papago Indian Reservation in Arizona from all

forms of mineral entry or claim under the public land min-

ing laws, is hereby revoked and rescinded, and the lands of

the said Papago Indian Reservation are hereby restored to

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exploration and location, under the existing mining laws of

the United States, in accordance with the express terms

and provisions declared and set forth in the Executive or-

ders establishing said Papago Indian Reservation: Pro-

vided further, That damages shall be paid to the Papago

Tribe for loss of any improvements on any land located for

mining in such a sum as may be determined by the Secre-

tary of the Interior but not to exceed the cost of said im-

provements: Provided further, That a yearly rental not to

exceed five cents per acre shall be paid to the Papago

Tribe for loss of the use or occupancy of any land with-

drawn by the requirements of mining operations, and pay-

ments derived from damages or rentals shall be deposited

in the Treasury of the United States to the credit of the

Papago Tribe: Provided further, That in the event any

person or persons, partnership, corporation, or association,

desires a mineral patent, according to the mining laws of

the United States, he or they shall first deposit in the

Treasury of the United States to the credit of the Papago

Tribe the sum of $1.00 per acre in lieu of annual rental, as

hereinbefore provided, to compensate for the loss or occu-

pancy of the lands withdrawn by the requirements of min-

ing operations: Provided further, That patentee shall also

pay into the Treasury of the United States to the credit of

the Papago Tribe damages for the loss of improvements

not heretofore paid in such a sum as may be determined by

the Secretary of the Interior, but not to exceed the cost

thereof; the payment of $1.00 per acre for surface use to be

refunded to patentee in the event that patent is not ac-

quired.

Nothing herein contained shall restrict the granting or

use of permits for easements or rights-of-way; or ingress or

egress over the lands for all proper and lawful purposes;

and nothing contained herein, except as expressly pro-

vided, shall be construed as authority for the Secretary of

the Interior, or any other person, to issue or promulgate a

rule or regulation in conflict with the Executive order of

February 1, 1917, creating the Papago Indian Reservation

in Arizona or the Act of February 21, 1931 (46 Stat. 1202).

Sec. 4. Except as herein provided, no sale, devise, gift,

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exchange, or other transfer of restricted Indian lands or of

shares in the assets of any Indian tribe or corporation or-

ganized hereunder, shall be made or approved: Provided,

however, That such lands or interests may, with the ap-

proval of the Secretary of the Interior, be sold, devised, or

otherwise transferred to the Indian tribe in which the

lands or shares are located or from which the shares were

derived or to a successor corporation; and in all instances

such lands or interests shall descend or be devised, in ac-

cordance with the then existing laws of the State, or Fed-

eral laws where applicable, in which said lands are located

or in which the subject matter of the corporation is lo-

cated, to any member of such tribe or of such corporation

or any heirs of such member: Provided further, That the

Secretary of the Interior may authorize voluntary ex-

changes of lands of equal value and the voluntary ex-

change of shares of equal value whenever such exchange, in

his judgment, is expedient and beneficial for or compatible

with the proper consolidation of Indian lands and for the

benefit of cooperative organizations.

Sec. 5. The Secretary of the Interior is hereby autho-

rized, in his discretion, to acquire, through purchase, relin-

quishment, gift, exchange, or assignment, any interest in

lands, water rights or surface rights to lands, within or

without existing reservations, including trust or otherwise

restricted allotments whether the allottee be living or de-

ceased, for the purpose of providing land for Indians.

For the acquisition of such lands, interests in lands, wa-

ter rights, and surface rights, and for expenses incident to

such acquisition, there is hereby authorized to be appro-

priated, out of any funds in the Treasury not otherwise

appropriated, a sum not to exceed $2,000,000 in any one

fiscal year: Provided, That no part of such funds shall be

used to acquire additional land outside of the exterior

boundaries of Navajo Indian Reservation for the Navajo

Indians in Arizona and New Mexico, in the event that the

proposed Navajo boundary extension measures now pend-

ing in Congress and embodied in the bills (S. 2499 and

H.R. 8927) to define the exterior boundaries of the Navajo

Indian Reservation in Arizona, and for other purposes, and

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the bills (S. 2531 and H.R. 8982) to define the exterior

boundaries of the Navajo Indian Reservation in New Mex-

ico, and for other purposes, or similar legislation, become

law.

The unexpended balances of any appropriations made

pursuant to this section shall remain available until ex-

pended.

Title to any lands or rights acquired pursuant to this

Act shall be taken in the name of the United States in trust

for the Indian tribe or individual Indian for which the land

is acquired, and such lands or rights shall be exempt from

State and local taxation.

Sec. 6. The Secretary of the Interior is directed to make

rules and regulations for the operation and management of

Indian forestry units on the principle of sustained-yield

management, to restrict the number of livestock grazed on

Indian range units to the estimated carrying capacity of

such ranges, and to promulgate such other rules and regu-

lations as may be necessary to protect the range from dete-

rioration, to prevent soil erosion, to assure full utilization

of the range, and like purposes.

Sec. 7. The Secretary of the Interior is hereby autho-

rized to proclaim new Indian reservations on lands ac-

quired pursuant to any authority conferred by this Act, or

to add such lands to existing reservations: Provided, That

lands added to existing reservations shall be designated for

the exclusive use of Indians entitled by enrollment or by

tribal membership to residence at such reservations.

Sec. 8. Nothing contained in this Act shall be construed

to relate to Indian holdings of allotments or homesteads

upon the public domain outside of the geographic bounda-

ries of any Indian reservation now existing or established

hereafter.

Sec. 9. There is hereby authorized to be appropriated,

out of any funds in the Treasury not otherwise appropri-

ated, such sum as may be necessary, but not to exceed

$250,000 in any fiscal year, to be expended at the order of

the Secretary of the Interior, in defraying the expenses of

organizing Indian chartered corporations or other organi-

zations created under this Act.

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Sec. 10. There is hereby authorized to be approporiated,

out of any funds in the Treasury not otherwise appropri-

ated, the sum of $10,000,000 to be established as a revolv-

ing fund from which the Secretary of the Interior, under

such rules and regulations as he may prescribe, may make

loans to Indian chartered corporations for the purpose of

promoting the economic development of such tribes and of

their members, and may defray the expenses of adminis-

tering such loans. Repayment of amounts loaned under

this authorization shall be credited to the revolving fund

and shall be available for the purposes for which the fund

is established. A report shall be made annually to Congress

for transactions under this authorization.

Sec. 11. There is hereby authorized to be appropriated,

out of any funds in the United States Treasury not other-

wise appropriated, a sum not to exceed $250,000 annually,

together with any unexpended balances of previous appro-

priations made pursuant to this section, for loans to Indi-

ans for the payment of tuition and other expenses in

recognized vocational and trade schools: Provided, That

not more than $50,000 of such sum shall be available for

loans to Indian students in high schools and colleges. Such

loans shall be reimbursable under rules established by the

Commissioner of Indian Affairs.

Sec. 12. The Secretary of the Interior is directed to es-

tablish standards of health, age, character, experience,

knowledge, and ability for Indians who may be appointed,

without regard to civil-service laws, to the various posi-

tions maintained, now or hereafter, by the Indian Office, in

the administration of functions or services affecting any

Indian tribe. Such qualified Indians shall hereafter have

the preference to appointment to vacancies in any such

positions.

Sec. 13. The provisions of this Act shall not apply to any

of the Territories, colonies, or insular possessions of the

United States, except that sections 9, 10, 11, 12, and 16

shall apply to the Territory of Alaska: Provided, That Sec-

tions 2, 4, 7, 16, 17, and 18 of this Act shall not apply to the

following-named Indian tribes, the members of such In-

dian tribes, together with members of other tribes affili-

B-6

ated with such named tribes located in the State of

Oklahoma, as follows: Cheyenne, Arapaho, Apache, Co-

manche, Kiowa, Caddo, Delaware, Wichita, Osage, Kaw,

Otoe, Tonkawa, Pawnee, Ponca, Shawnee, Ottawa,

Quapaw, Seneca, Wyandotte, lowa, Sac and Fox, Kicka-

poo, Pottawatomi, Cherokee, Chickasaw, Choctaw, Creek,

and Seminole. Section 4 of this Act shall not apply to the

Indians of the Klamath Reservation in Oregon.

Sec. 14. The Secretary of the Interior is hereby directed

to continue the allowance of the articles enumerated in

section 17 of the Act of March 2, 1889 (23 Stat.L. 894), or

their commuted cash value under the Act of June 10, 1896

(29 Stat.L. 334), to all Sioux Indians who would be eligible,

but for the provisions of this Act, to receive allotments of

lands in severalty under section 19 of the Act of May 29,

1908 (25 Stat.L. 451), or under any prior Act, and who

have the prescribed status of the head of a family or single

person over the age of eighteen years, and his approval

shall be final and conclusive, claims therefor to be paid as

formerly from the permanent appropriation made by said

section 17 and carried on the books of the Treasury for this

purpose. No person shall receive in his own right more

than one allowance of the benefits, and application must

be made and approved during the lifetime of the allottee or

the right shall lapse. Such benefits shall continue to be

paid upon such reservation until such time as the lands

available therein for allotment at the time of the passage of

this Act would have been exhausted by the award to each

person receiving such benefits of an allotment of eighty

acres of such land.

Sec. 15. Nothing in this Act shall be construed to impair

or prejudice any claim or suit of any Indian tribe against

the United States. It is hereby declared to be the intent of

Congress that no expenditures for the benefit of Indians

made out of appropriations authorized by this Act shall be

considered as offsets in any suit brought to recover upon

any claim of such Indians against the United States.

Sec. 16. Any Indian tribe, or tribes, residing on the same

reservation, shall have the right to organize for its common

welfare, and may adopt an appropriate constitution and

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bylaws, which shall become effective when ratified by a

majority vote of the adult members of the tribe, or of the

adult Indians residing on such reservation, as the case may

be, at a special election authorized and called by the Secre-

tary of the Interior under suich rules and regulations as he

may prescribe. Such constitution and bylaws when ratified

as aforesaid and approved by the Secretary of the Interior

shall be revocable by an election open to the same voters

and conducted in the same manner as hereinabove pro-

vided. Amendments to the constitution and bylaws may be

ratified and approved by the Secretary in the same manner

as the original constitution and bylaws.

In addition to all powers vested in any Indian tribe or

trival council by existing law, the constitution adopted by

said tribe shall also vest in such tribe or its tribal council

the following rights and powers: To employ legal counsel,

the choice of counsel and fixing of fees to be subject to the

approval of the Secretary of the Interior; to prevent the

sale, disposition, lease, or encumbrance of tribal lands, in-

terests in lands, or other tribal assets without the consent

of the tribe; and to negotiate with the Federal, State, and

local Governments. The Secretary of the Interior shall ad-

vise such tribe or its tribal council of all appropriation

estimates or Federal projects for the benefit of the tribe

prior to the submission of such estimates to the Bureau of

the Budget and the Congress.

Sec. 17. The Secretary of the Interior may, upon peti-

tion by at least one-third of the adult Indians, issue a char-

ter of incorporation to such tribe: Provided, That such

charter shall not become operative until ratified at a spe-

cial election by a majority vote of the adult Indians living

on the reservation. Such charter may convey to the incor-

porated tribe the power to purchase, take by gift, or be-

quest, or otherwise, own, hold, manage, operate, and

dispose of property of every description, real and personal,

including the power to purchase restricted Indian lands

and to issue in exchange thereof for interests in corporate

property, and such further powers as may be incidental to

the conduct of corporate business, not inconsistent with

law, but no authority shall be granted to sell, mortgage, or

B-8

lease for a period exceeding ten years any of the land in-

cluded in the limits of the reservation. Any charter so is-

sued shall not be revoked or surrendered except by Act of

Congress.

Sec. 18. This Act shall not apply to any reservation

wherein a majority of the adult Indians, voting at a special

election duly called by the Secretary of the Interior, shall

vote against its application. It shall be the duty of the

Secretary of the Interior, within one year after the passage

and approval of this Act, to call such an election, which

election shall be held by secret ballot, upon thirty days

notice.

Sec. 19. The term “Indian” as used in this Act shall

include all persons of Indian descent who are members of

any recognized Indian tribe now under Federal jurisdic-

tion, and all persons who are descendants of such members

who were, on June 1, 1934, residing within the present

boundaries of any Indian reservation, and shall further in-

clude all other persons of one-half or more Indian blood.

For the purposes of this Act, Eskimos and other aboriginal

peoples of Alaska shall be considered Indians. The term

“tribe” wherever used in this Act shall be construed to

refer to any Indian tribe, organized band, pueblo, or the

Indians residing on one reservation. The words “adult In-

dians” wherever used in this Act shall be construed to refer

to Indians who have attained the age of twenty-one years.

Approved, June 18, 1934.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.