LEGAL ASPECTS OF THE INDIAN PROBLEM
The study of the legal aspects of the Indian problem has been confined to broad matters having an important bearing on the social and economic conditions of the Indians. The major findings and recommendations will be briefly presented at the outset and will be followed by the more detailed considerations.
The present situation with respect to the maintenance of order and the administration of justice among restricted Indians on the reservation is unsatisfactory. The United States courts have jurisdiction over them with respect only to certain crimes specifically designated by Congress. Other crimes and misdemeanors, if punishable at all, are under the jurisdiction of the Courts of Indian Offenses or of the superintendent if no such court has been established. In some instances the state courts have assumed some jurisdiction over restricted Indians, but generally they have withdrawn when their jurisdiction has been challenged. The situation has been briefly characterized by an Idaho court as "government in spots."
The subject of marriage and divorce has been left without statutory regulation, except that children of marriages by Indian custom are declared legitimate for purposes of inheritance. The old Indian tribal forms and tribal morality have apparently largely disappeared, and the present situation among the younger Indians seems to be one of freedom which may at times lead to license. At present the main restraining influences appear to be the Courts of Indian Offenses and the superintendents, who use such powers and persuasion as they possess.
Such great differences exist among the several jurisdictions with respect to such vital matters as the degree of economic and social advancement of the Indians, their homogeneity, and their proximity to white civilization, that no specific act of Congress either conferring jurisdiction on state courts or providing a legal code and placing jurisdiction in the United States courts appears practicable. The law and the system of judicial administration, to be effective, must be specially adapted to the particular jurisdiction where they are to be applied, and they must be susceptible of change to meet changing conditions until the Indians are ready to merge into the general population and be subject like other inhabitants to the ordinary national and state laws administered by the United States and state courts exercising their normal jurisdiction.
The questions of how far the Indians in a given jurisdiction have advanced, of what body of law relating to domestic relations and crimes and misdemeanors is best suited to their existing state of development, and of what courts can best administer these laws are too minute and too subject to change to warrant a recommendation that Congress attempt to legislate in detail for each jurisdiction.
The situation is clearly one where the best results can be secured if Congress will delegate its legislative authority through a general act to an appropriate agency, giving that agency power to classify the several jurisdictions and to provide for each class so established an appropriate body of law and a suitable court system. The power should also be given that agency from time to time to advance the classification of any jurisdiction and to modify either the law or the court organization insofar as they are made by the agency and not by state law or act of Congress. The actions of the agency with respect to this authority should be given full publicity by suitable proclamations, orders, or regulations.
The officer with final authority to promulgate the decisions should probably be either the Secretary of the Interior or the President of the United States. The detailed study and investigation and the recommendations should originate in the Indian Service. The perfecting of this system should be one of the major projects of the recommended Division of Planning and Development.
Many Indians have so far advanced that they safely may be made subject to the law of the states wherein they reside with respect to crimes, misdemeanors, and domestic relations. Where the local courts would be impartial, open to the Indians, and easily accessible, there is no reason why justice should not be administered for Indians in such courts. Even among these Indians the national government may still have to provide for law and enforcement officers, either by cooperation with the states, or by supplying its own, and it will also have to arrange for legal aid for Indians so that the requirements of law will be observed in matters such as divorce. After a group has once been placed fully under the state jurisdiction, it should remain there.
But even where the Indians of this class have so far advanced that the laws of the state wherein they reside may be applied to them, conditions may be such as not to warrant the placing of jurisdiction in the state courts. Investigations may disclose one or more of the following reasons for not placing the administration in the state courts: (1) the state is not willing to assume the responsibility; (2) the state courts are so remote from the Indians that the procedure is impracticable; or (3) the local sentiment toward Indians in the communities where the state or county courts are located is so hostile or so indifferent to their social and moral conditions that Indians would either get an unfair trial or no trial at all. In this class of jurisdictions, serious cases should be brought before the regular United States courts and minor offenses before such special inferior courts as may seem best adapted to the conditions in the particular jurisdiction. The power to establish appropriate special inferior courts should be vested in the agency to which Congress delegates its authority. They might be either Indian courts or special justices appointed through the United States courts.
The second class should consist of those jurisdictions where the Indians have not advanced sufficiently to warrant the extension to them of the state laws. In these jurisdictions, the Court of Indian Offenses should be continued, much in the present form, but strengthened by better-qualified social workers, industrial leaders, and others among the government employees. In a large measure it should continue to be a court of common sense, determining both the law and the fact and to a reasonable degree the penalty. Either the Indian offender or the superintendent, however, should have the right to have the case transferred to the United States court or to the state court if the state court is available. If the case is thus transferred to a United States court, it would seem that the court should apply federal law if the offense is one for which Congress has made special provision, but that if it is one not covered by federal statute, the state law should be applied. If the case is transferred to a state court, the state law in its entirety should be applied. It is not believed that the Indian will often apply for a transfer of a case. The superintendent should ask for a transfer in all cases where the United States court now has jurisdiction and in other cases where the offense is serious or where the defendant has often been before the Court of Indian Offenses and is not influenced by it.
In this class of jurisdictions the state law of marriage and divorce cannot well be applied in detail, but the effort should be made to educate the Indians toward its observance, since family continuity is a matter that is more effectively controlled indirectly by public opinion than directly by law. Marriages should be registered at the agency or one of its subdivisions, a certificate of marriage issued, and a marriage register kept. The Court of Indian Offenses should have jurisdiction to grant divorces on such grounds as it sees fit. The object should be not so much to change speedily and rigorously the Indians' customs and standards of morals as gradually to educate them to an understanding of the fact that these are matters in which the civilized state has an interest and that untramelled license means some trouble. In such jurisdictions the Indian Court might well impose a slight penalty for failure to comply with the simple, easily performed requirement to register marriage.
The Rio Grande Pueblos, and possibly some other special groups, on detailed study may be found to require peculiar treatment. The general law recommended should give the executive agency to which Congress delegates its power authority to establish a system of law and administration adapted to local conditions. Careful study will be necessary to determine the facts and to devise the system.
The survey staff found no evidence that warrants a conclusion that the government of the United States can at any time in the near future relinquish its guardianship over the property of restricted Indians secured to the Indians by government action. Although the staff believes in the transfer of the activities relating to the promotion of health, education, and social and economic advancement of the Indians to the several states as rapidly as the states are ready effectively to perform these tasks, it is of the opinion that the guardianship of property should be the last duty thus transferred if it is transferred at all.
The legal staff of the Indian Service charged with the duty of protecting Indian rights should be materially strengthened and should be authorized to act more directly. The Service should have one high position for a general counsel or solicitor who should be directly in charge of the legal work of the Service under the general direction of the Commissioner. It should have an adequate number of either full- or part-time attorneys in the field in close touch with the several jurisdictions, who may give prompt and energetic attention to matters involving Indian rights. Although the United States district attorneys will doubtless still have to be generally responsible for the actual conduct of cases involving Indian rights, they should be aided and assisted by these local attorneys of the Indian Service, who should be held primarily responsible for the full and detailed preparation of the cases.
In cases where the Indian is poor and unable himself to pay court costs and attorneys fees, he should be aided by these attorneys and money should be made available to meet necessary costs. Indians who have sufficient funds of their own should be required to pay costs, and if they prefer to retain attorneys of their own choice in individual suits should be permitted to do so.
The attitude of the Indian Service as a whole, and especially of its legal department, should invariably be that its duty is to protect to the utmost the rights and interests of the Indians. Even if some of the officers believe that the Indian's opponent has in some respects a meritorious case, the Service itself should be extremely slow in effecting any compromise. As a guardian or trustee, its compromise should properly be acceptable to the court and subject to its approval. It would seem, as an almost invariable rule, much safer to carry the litigation through and to let a duly constituted court make the decision rather than for the Service itself to compromise without court action.
The facts apparently abundantly justify the present legislation which vests in the Interior Department the function of passing upon wills and the administration of estates of restricted Indians. In the main part of this report detailed suggestions are made regarding procedure which need not be summarized here.
The legislation releasing certain of the Indians of the Five Civilized Tribes of Oklahoma from restrictions and giving the Oklahoma courts jurisdiction over the administration of the estates of deceased Indians and the power to appoint guardians was unquestionably premature and has resulted most disastrously. The restrictions still remaining should be continued after 1931 for a considerable period. Sufficient authority already exists to permit the department to release individual competent Indians from restrictions.
Fortunately evidence tends to show an awakening public conscience in Oklahoma, and the state courts are probably furnishing the Indians greater protection than in the past. The situation is, however, far from satisfactory. It is recommended that the duties and functions of the government probate attorneys among the Five Civilized Tribes be materially increased and made a strong organization for the effective protection of the rights and interests of these Indians and that further safeguards be provided for the Indians who lease their lands.
Many tribal claims are in process of adjudication, but some have not yet reached the preliminary stage of being approved by Congress for presentation to the Court of Claims. It is extremely important that all claims be settled at the earliest possible date. It is therefore recommended that a special commission be appointed to study the remaining claims and to submit recommendations to the Secretary of the Interior regarding their merits, so that those which are meritorious may be submitted to Congress with a draft of a suitable bill authorizing their settlement before the Court of Claims.
The Volume and Complexity of Indian Law. The law governing Indians in the United States is exceptionally voluminous and complex. The explanation of this fact lies in the history of the relations of the national government to the several Indian tribes.1 In the colonial period and in the period of national government prior to 1871, the Indian tribes, or groups of affiliated tribes, were treated as separate and distinct, though subordinate nations. Agreements were entered into with them through formal treaties, which were passed by the Senate of the United States in substantially the same manner as were treaties with foreign nations. In 1867, the House of Representatives gave notice of its objection to this procedure, which tended to limit its functions in respect to the administration of Indian affairs, and in 1871 the treaty period ended. Subsequently, legislative action was taken through the ordinary congressional procedure for public bills.
The treaty period had, however, laid a distinctive legal foundation for each of the several tribes or affiliated tribes which had to be recognized in subsequent legislation. Thus, even today, Congress has to consider many different bills relating to Indian affairs, some of them applying to only a few hundred Indians, and the annual appropriation act contains many sections which have fairly remote historical origins.
The treaties, laws, executive orders, and proclamations relating to Indians up to December 1, 1912, fill three substantial volumes in Mr. Charles J. Kappler's compilation entitled "Indian Affairs: Laws and Treaties." Several volumes and pamphlets are required to cover the subsequent legislation, executive orders, and regulations.
Serious question must be raised as to the wisdom of permitting all this diversity and complexity to continue indefinitely. It throws an enormous burden on all three branches of the national governmentthe legislative, the executive, and the judicialand must be exceedingly confusing to Indians who seek to know their status. At present any effort at codification would doubtless be premature, as many Indian tribes still have outstanding unsettled claims against the government which perhaps generally have their origin in old treaties. The question of these claims is considered at length in a later part of the present chapter, where it is recommended that they be disposed of at the earliest possible date so that the Indians may know where they stand and settle down to a reasonably well-defined economic situation, free from the uncertainties arising from the existence of material unsettled claims. An added argument in favor of early action is that it would pave the way for a great simplification in the administration of Indian affairs. With these claims largely out of the way, it would seem practicable for a specially appointed commission, after considerable arduous labor, to effect a codification of law relating to Indians which will be at once reasonably simple and well-adapted to modern conditions. Many archaic provisions relating to special tribes can be eliminated, and the whole problem placed on a more workable basis. Conceivably a situation might be created whereby Congress could confine its own work with respect to Indian legislation to broad matters of general policy, leaving to the executive branch of the government the matters of detail. To a certain extent such a procedure has already been followed, but an examination of a recent report by the chairman of the House Committee on Indian Affairs2 shows clearly that Congress is at present called upon to consider a mass of detailed provisions regarding Indian affairs to which few Congressmen outside of the Committee on Indian Affairs can give much attention, and even the members of the committee must often depend for advice and information largely on the executive branch of the government.
The Scope of the Survey's Legal Work. The present survey has not itself attempted to give detailed consideration to this great body of existing law relating to the several Indian tribes. A commission to undertake such an examination and a codification would have to be almost as large as the present survey staff and would have to give more time to the work than the survey has spent in its entire program. Such a commission, too, would have to have authority to negotiate with the several Indian tribes to agree on a basis for terminating some of the existing rights of the Indians that are carried over from ancient treaties and are now of little value in a program for the advancement of the Indians. Some of these rights hark back to the days when the policy of rationing was at its height.3
The policy of the survey has been to confine its activities in the legal field to those matters which affect primarily the general social and economic status of the Indians and throw light upon the broad general administrative problems of the service.
The first question to be briefly discussed will be that of citizenship, not because it is regarded as the most essential legal matter involving the social and economic conditions of the Indians but because the legal import of citizenship appears not generally understood. Much confusion appears to exist in the public mind and among the Indians as to what legally results from the status of a citizen.
The second subject to be considered is the highly important one from the social standpoint of the maintenance of order and the administration of justice among the Indians. Under this general heading will be taken up not only the criminal law and criminal procedure but also the closely related field of domestic relations, because a breach of the law relating to domestic relations is so generally under the American legal system a punishable offense. Since the Courts of Indian Offenses, established under the regulation of the Service and supported by appropriations by Congress, do not distinguish between the criminal law and the law of torts and the law of contracts, it has seemed simpler to consider these subjects more or less together, rather than to adhere to a more orthodox legalistic arrangement that would necessitate considerable duplication and would be largely artificial insofar as the majority of Indians under the jurisdiction of the government are concerned.
The third broad subject to be considered from the legal standpoint relates to the activities of the government as guardian and trustee of Indian property. Under this broad heading will be taken up the administrative questions of the conservation of Indian interests by legal action, the administration of the estates of deceased Indians, and the highly important immediate question of the taxation of lands purchased by the government for the Indians through the use of the Indians' restricted funds. Two matters relating to special groups of Indians will also be considered under this general subject, the administration of the property interests of the Five Civilized Tribes in Oklahoma and the work of the Pueblo Land Board in New Mexico.
The last broad subject to be treated is that of Indian tribal claims against the government. No effort has been made to determine the merits of the several claims, since such an undertaking is far beyond the scope of the present survey and would require years of work with an enormous mass of detail, as is clearly shown in the subsequent discussion of such claims. The question of these claims is considered only from the standpoint of legal administration.
Citizenship. Congress, by the act of June 2, 1924 (43 Stat. L., 253), conferred citizenship on all Indians born within the territorial limits of the United States so that at present all Indians born in this country are citizens of the United States. Many Indians had, however, secured citizenship long before that act. The general allotment act, generally known as the Dawes Act, approved February 8, 1887 (24 Stat. L., 338), had provided that complete citizenship be conferred upon all Indians to whom allotments were made in accordance with the act and declared those citizen Indians subject to state and territorial laws. Citizenship was also conferred on any Indian born within the territorial limits of the United States, "who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life." On May 8, 1906, the Burke Act (34 Stat. L., 182) was approved, which changed the provision of the Dawes Act respecting citizenship. Instead of becoming a citizen at the time an allotment was first made, the Indian became a citizen only after the fee patent was granted. By the act of March 3, 1901 (31 Stat. L., 1447), citizenship was conferred on all Indians in the Indian Territory. Thus it is apparent that many Indians were already citizens at the time of the passage of the blanket act of 1924 declaring all Indians born in the United States citizens.
Citizenship Not Incompatible with Guardianship and Special Legislation. Although prior to the passage of this recent act, citizenship was often associated with the possession of a property right, a trust patent under the Dawes Act or a fee patent under the Burke Act, legally there is no intrinsic relation between the two. Citizenship is a personal and political right, whereas title to land either in trust or in fee is a property right. The Supreme Court of the United States has held, moreover:
This decision clearly is in accordance with the law as it is applied to white citizens. Among whites the fact of citizenship does not preclude guardianship, nor does it give unlimited control over any property the title to which is vested in the citizen. Children under legal age are citizens, but they cannot sell their property or enter into a valid contract. Many adult citizens are in different ways deprived of their control over their property either by court action or by the action of the persons through whom they received their property. The status of the restricted citizen Indian with respect to his property secured through the government is like that of a citizen child with respect to his, except that under existing law the Indian may be declared competent and thereby be given full control. It should-be noted, moreover, that this restriction applies only to property secured to the Indian by governmental action. It does not apply to property secured by the Indian for himself through his own efforts. He ordinarily has complete control of his own earnings and of any property purchased with his earnings. In this respect, too, the position of the Indian is similar to the beneficiary through the acts of others, unless through court action a person is declared incompetent to manage his own property.
This decision that citizenship and continued guardianship are not incompatible is not only sound law, it is also sound economic and social policy. In matters pertaining to the ownership and control of property, many Indians are in fact children despite their age, and real friends of the Indians can best serve them by having guardianship continued until the Indians, through training and experience, reach a maturity of judgment which will permit them to control their own property with a reasonable chance of success.
Citizenship and Control of Indian Property by Courts. At this point consideration should perhaps be given the argument that since the Indians are now citizens, the function of administering their property held in trust should be taken away from the Indian Service and the Interior Department and be vested in the courts. The courts, it is argued, have power to appoint guardians for ordinary citizens and to review and, to a certain extent, to control the activities of trustees for such citizens; why should not the courts exercise the same functions for the restricted Indians, thereby releasing them from the guardianship of the Indian Service?
This argument, in the judgment of the survey staff, fails to give full consideration to the administrative problems involved.
The evidence, as has been said, abundantly justifies the conclusion that for thousands of restricted Indians, trusteeship and guardianship are still necessary and will be necessary for many years to come. If the United States courts should attempt to deal directly with each individual restricted Indian and to appoint special guardians and trustees for him, they would be completely swamped by the volume of the detailed business. Many of the estates involved, too, are so small that the expenses of guardians and trustees and of court action could not possibly be met from them. Then, also, the expenses of federal court action would be extremely heavy because the Indians and their property are so remote from the United States courts.
If this jurisdiction should be conferred on the United States courts, apparently the only practicable administrative device would be for the courts to establish a general machinery for guardianship which would closely resemble that now maintained by the Indian Service. Thus the courts would be performing administrative rather than judicial functions.
From the standpoint of economical and efficient administration such a course would be disastrous, because in many jurisdictions the primary difficulties of effective work with Indians are distance and isolation. The courts would either have to appoint the Indian Service employees as guardians and trustees or set up to some extent a duplicate organization, involving an enormous amount of duplication of work, such as travel about the reservation and the maintenance of records and accounts.
In the chapter of this report dealing with general economic conditions, the point has been made repeatedly that the trust property of the Indians and their tribal property must be utilized by the Indian Service in advancing the Indians. The restricted property of the Indians and their tribal property are materials to be used in promoting their economic and social advancement. It would be extremely unsound to divide responsibility and authority on theoretical grounds, giving to one agency the guardianship and trusteeship of the property and to another the function of training and stimulating the Indian in the effective economic use of that property. The Indian problem, as has been repeatedly said, is fundamentally a great educational problem. Although for purposes of discussion and consideration it has to be divided into subjects such as health, education, economic conditions, family and social life, and property control, these subjects are only different aspects of the one educational task. The courts could not control one aspect and the executive branch of the government the others without duplication and confusion. The remedy for what is objectionable in the present situation lies not in giving the United States courts jurisdiction over something they are not organized and equipped to handle but in strengthening the Indian Service so that it can better perform its functions as an educational agency.
The United States courts only have been mentioned in this discussion. Such experiments as have been tried in conferring jurisdiction over Indian property on the state courts have resulted in an exploitation of individual Indians that has no parallel in the administration of the Indian property by the national government. If evidence be required, let anyone contrast the present excellent federal administration of the property of the restricted Osages with the state courts' work among the Five Civilized Tribes or with conditions among the Osages before the passage of recent acts materially strengthening the power of the national government over guardians appointed by state courts.
Political Rights from Citizenship. Citizenship is, as has been said, primarily an individual and political right. It, however, does not carry with it necessarily the right to vote. Prior to the adoption of the Nineteenth Amendment to the Constitution, women in many states were citizens and yet they had no right to vote. The Indian who has been declared a citizen of the United States by statute does not by virtue of that act secure the right to vote in the state in which he resides. With respect to his right to vote, he is. subject to the state law and must satisfy the requirements of that law before securing the franchise.
In many states the Indians can and do vote. In some of the more sparsely settled Western states, where the Indians form a considerable proportion of the population, their vote is an important factor in closely contested primaries and general elections, and party leaders organize them. Some evidence tends to show that they are appreciative of their political power and are inclined to consider the attitude toward measures in which they are interested, such as tribal claims and water rights. The survey staff, however, made no effort to collect information as to their political affiliation and activities, merely noting what came to the members incidentally.
In at least one state, New Mexico, the state constitution denies to untaxed Indians the right to vote. The act of Congress declaring the Indians citizens of the United States raises sharply the question of the constitutionality of such a provision in any state constitution. Apparently it denies to a citizen of the United States the right to vote on the ground of race, and if so it is in direct conflict with the fifteenth amendment to the Constitution of the United States.
Citizenship Does Not Affect Legal Jurisdiction. Making the Indians citizens of the United States automatically by virtue of the fourteenth amendment makes them citizens of the state wherein they reside. Except where jurisdiction is conferred upon the United States courts of suits between "citizens of different states," and where the states require citizenship as a qualification for office holding, or sharing in the advantages of the state institutions, such as schools or charities, this fact has but little significance.5 In Anglo-American polity civil rights have never been made dependent on political status.
Maintenance of Order and Administration of Justice. The original theory under which the national government proceeded in its relations with the Indians was that they were self-governing communities with whom the United States dealt only, as with nations or tribes, and not as with individuals. Intra-tribal matters, including the maintenance of order and the administration of justice, were relinquished to the tribal authorities.6 With the intrusion of white settlements, the breaking down of tribal organization, and the subsequent entry of the Indians into the economic and social life of the surrounding white communities, this theory became impossible, and Congress, in the exercise of its paramount authority, found it necessary to extend over the Indians the laws of the white man.
Criminal Law. Early in our history, as an initial step in providing a system of law for the vast domain then occupied by the Indian tribes, Congress extended the federal criminal laws applicable to territory within the exclusive jurisdiction of the United States to include the "Indian country." The theory of tribal autonomy was indicated, however, by excepting from this general extension of law "crimes committed by one Indian against the person or property of another Indian," and cases where the Indian had "been punished by the local law of his tribe."7
The term "Indian country" has been defined by the courts to include both Indian reservations, whether created by treaty or executive order, and Indian allotments, so long as the title of the United States has not been completely relinquished.8 On account of the principle of constitutional law, which emphasizes the equality of the several states and considers that the ordinary civil and criminal jurisdiction of the state extends over the Indian territory within its borders, the above statute has been construed as not to apply to crimes committed by non-Indians in the Indian domain, unless Indian rights and interests are in some way involved.9 At various times the federal statutes also made express provision for a few specified crimes committed within Indian reservations, of which the most important had to do with the introduction of intoxicants.10
A decision of the United States Supreme Court in 1883 to the effect that under the statutes in force at the time the murder of one Indian by another within an Indian reservation was not punishable at all, if not punished by the Indians themselves,11 was the occasion of the passage of what is now Section 548 Of the Federal Criminal Code. This section provides that an Indian, who, within the limits of an Indian reservation, commits any one of the eight crimes of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, burglary, larceny, and arson, shall likewise be subject to the federal statutes relating to such offenses, committed within the exclusive jurisdiction of the United States.12 Here also the word "reservation" is construed to include unrelinquished Indian allotments. As a result of this act, an Indian who has committed within an Indian reservation one of the above-listed felonies is subject to the jurisdiction of the United States court; if his offence is not included within such list, he is not so subject.13
If an Indian, by virtue of the general allotment act,14 has received a trust patent to his land or, under the Burke Act, a fee patent, he has the benefit of, and becomes subject to, laws both civil and criminal of the state in which he resides. He thus becomes as any other citizen of the state subject to the state laws in most matters, but he is still subject to such laws of the United States relating to Indians as may be passed by Congress in the exercise of its constitutional powers to regulate commerce with the Indian tribes.15 That the state law extends to all crimes committed by Indians off Indian reservations or restricted allotments is also clear, but the weight of authority undoubtedly is that if the crime is committed by an Indian on restricted lands, whether it be one of the designated eight felonies or not, the state courts are without jurisdiction;16 a difficult situation, which the Idaho court has aptly referred to as a "government in spots."17
From this brief consideration of the existing statutes and decisions, it is apparent that there is a great gap in the power of both United States and state courts to punish Indians for committing on Indian lands acts which would be considered in most communities serious public offences.18 To overcome this unfortunate situation, the national government has created certain Courts of Indian Offenses, presided over by Indian judges, the only statutory authority for which are the various appropriations by Congress for the payment of the salaries of the judges. The only decision sustaining them is that by the District Court of Oregon, rendered nearly forty years ago,19 in which their authority is said to rest on the general power of the Secretary of the Interior to make rules and regulations for the management of Indian affairs. The regulations under which the courts operate are contained in the archaic regulations of the Indian Office bearing the date 1904.20
Domestic Relations. The domestic relations of the Indians are left almost entirely to their own determination. The courts of the several states, when called upon to consider the validity of marriages and divorces by so-called Indian custom, have almost uniformly upheld them on the theory that the national government has recognized the autonomy of the Indians in such matters and thus removed them from the realm of state law in this respect.21 The attitude of the national government is further indicated by the provision in the statutes relating to inheritance of Indian lands; that whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life, the issue of such cohabitation shall be for the purposes aforesaid taken and deemed to be the legitimate issue of the Indians so living together.22 Although the courts recognize the extreme informality of Indian marriage and divorce, not every sexual relation constitutes an Indian marriage; the relations between the parties must be continuous and complete and such as is usual between persons lawfully married.23 The similitude of the Indian custom marriage to the common law marriage of our own judicial polity is indicated by the fact that in Oklahoma, where the state laws apply to the Indians of the Five Civilized Tribes, Indian custom marriages have been sustained as common law marriages under the state law, and divorces many times inferred from the fact of long and continuous separation.
Personal and Property Rights. In spite of the Indian's freedom from the criminal and family laws of the several states, and notwithstanding the guardianship of the national government, he is not precluded from resorting to the state and United States courts to enforce his personal and property rights.24 In order to afford him additional protection, it is provided by federal statute that the United States District Attorney shall represent him in all suits at law or in equity.25 Like all other persons, the Indian may acquire property, may make contracts when not expressly forbidden by the national government in the exercise of its authority as guardian, and may sue in the courts to enforce his rights in connection therewith as well as to obtain redress for personal injury, or restriction of his liberty.26 It is doubtful, however, when his property is unallotted and still under tribal control, whether the state courts would interfere in disputes between individual Indians concerning such property.27 Different considerations also arise when the controversy concerns property which the United States is holding for him in trust. The federal statute28 allowing any Indian to bring proceedings in the United States District Court to determine his right to an allotment of land under the laws of the United States has been held to vest exclusive jurisdiction in such court, so that the state courts may not decide disputes concerning the title to land in which the United States still retains an interest.29 But in spite of this, the individual Indian, or the United States suing in his behalf as guardian, may sue in the state courts in all matters concerning such land if the question of the title obtained by him from the United States is not involved.30
Situation with Respect to Jurisdiction Unsatisfactory. This situation with respect to jurisdiction is undoubtedly unsatisfactory. The Indian race is progressing to a condition where it will soon be required to assume full responsibility in the political, social, and economic affairs of county, state, and nation. The tribal organization, on which was predicated a large measure of Indian self-government, has largely vanished except in some of the pueblos31 and in a few other closed reservations. It is unthinkable that in the laws governing these people the important matters of crime and domestic relations should be omitted. Doubt as to the exact jurisdiction of the state and national governments leads, moreover, to uncertainty and confusion. Those cognizant of Indian affairs have often called attention to the situation, and although considerable disagreement exists as to the means to be adopted to remedy conditions, opinion is particularly unanimous that some legislation is needed to correct the present uncertain and unsatisfactory state of affairs.32
The Economic and Social Conditions Affecting Law and Judicial Administration. Any system of law and administration for the Indians must accord with the character and condition of the people to whom it applies, and this primary consideration makes any uniform solution of the problem impossible. The Indian people vary greatly in the degree to which they have assimilated white customs and standards of living. The Pueblos, Navajos, and Apaches are among those who have retained a large measure of their tribal life, customs, and language, while the Chippewas, Klamaths, Omahas, Yakimas, Winnebagoes, and many of the Indians of Oklahoma are among those who have discarded most of their primitive habits in favor of the typical manner of life of the surrounding white community. Even within the separate tribes, vast differences are found between individuals. Many of the older people know no language other than their native tongue and have adopted few of the customs and ideas of the white people, whereas many of the younger Indians have received some education in the schools, speak English reasonably well, and by close contact know intimately the vices as well as the virtues of the Caucasian race. These vast differences have received no formal recognition in law except insofar as trust patents under the Dawes Act or patents in fee under the Burke Act have been given to individual Indians, which action as has been seen, has the effect of removing them in part at least from the jurisdiction of the national government.
A vast difference also exists between the various Indian groups with respect to their geographical, social, and political environment. Certain tribes, such as the Papagoes, Navajos, and Apaches, are homogeneous Indian communities, so isolated as to be fairly free from interference and influence by any surrounding white population. Such Indians as the Pueblos, Menominees, and Crows constitute fairly compact racial groups, but they are contiguous to good-sized white communities so that there is naturally considerable intercourse between the two. Then, on many open reservations the Indians are still present in large numbers, but sometimes the white settlers constitute a large proportion of the population. Lastly, there are Indians still under government supervision, who are scattered over large sections of country, and who constitute but a small part of the population which is predominantly white. The Five Civilized Tribes of Oklahoma and the Indians of California are conspicuous examples of this class of the Indian people.
The enforcement of order and the administration of justice among the Indians is greatly hampered by the fact that they are often situated, either remote from county seats and other places where court meets and general legal business is transacted, or else they are contiguous to cities and villages where the general standard of morality and law observance, among whites as well as Indians, is low.
Disaster to the government's wards will also inevitably follow any solution of the problem which neglects to consider their prevailing poverty and their ignorance of, and inexperience in, matters of property and contract and, indeed, of laws and lawyers.
The Indians Not Generally Lawless. As a general statement it may be said that the Indians are peaceable, tractable individuals, not inclined to commit serious crimes. This is particularly true of those, who preserving a large measure of their tribal life and customs, live remote from white communities and have but little money to spend in acquiring the luxuries and vices of the white man. Even among the Indians of Oklahoma and California, closely intermixed with the white population, there is little, if any, complaint of crimes of violence or of serious breaches of the public peace. The above favorable generalizations, however, cannot be made concerning certain individual Indians. These are almost always found among Indians who have proceeded far from tribal life and ways, and have assimilated a considerable amount of education and white manners of life. The possession of an income sufficient to allow them to remain idle but insufficient to satisfy their desires makes them dissatisfied and truculent. The adjacent white towns and villages, where they usually congregate, have low standards of morals and order and constitute a poor environment for a people just emerging into the political, economic, and social life of the time. The education they have received makes them cognizant of past and present wrongs to their people, of the instability of the control which is exercised over them by the agency superintendent, and of the jurisdictional doubts which hinder action by other state and federal officers. The habit of obedience to tribal authority and to the superintendent's executive orders is vanishing, and there is nothing to replace it.
The Conditions with Respect to Domestic Relations. Concerning those crimes and misdemeanors committed by Indians, which are euphemistically termed moral offences, complaints from responsible sources have become so numerous that bills were introduced in the last Congress to remedy the situation. The subject of Indian marriage, divorce, and family life is a sensitive one, touching closely the instincts, customs, and religion of the Indian race. A careful analysis will show that there are really two phases to the problem. The first question is whether an attempt should be made to supplant Indian ideals and customs of family life by compelling a full compliance with the state laws of marriage and divorce, which require the securing of a license and the ceremony before clergyman or civil authority in the one case and the submission to a judgment of a court of law in the other. The second is the question of remedying as speedily and completely as possible the laxity of morals, especially the looseness of sexual relations, which would be reprehensible under any mode of life, white or Indian.
The object to be sought, of course, is a continuity of the family life and a proper rearing of children. With respect to the rearing of children the problem is not serious, for the testimony is overwhelming that the Indian mother and her male relatives will care for her children, even though the father repudiates all obligation for them. If the Indian were left alone in his native ways, and if the government were not attempting to adjust him to the prevailing civilization of the state and nation, the problem might well be left to the Indian to solve by his own methods. The government, however, is attempting to do that very thing. In the schools it teaches the student to read and write the English language, to wear the clothes of our civilization, and to conform to most of our customs and habits. In the remote tribes and among those who have retained in large measure the morals and customs of Indian life, little compliance is found with the forms and ceremonies of marriage under state law; but it is among the educated, sophisticated, and presumably "civilized" young Indians that the true moral delinquency exists. The Indian custom marriage and divorce seems ill-defined and not well-understood, but it is not within the province of this chapter to enter into an ethnological or historical discussion of the topic. Suffice it to say that at the present time Indian-custom marriage very commonly means simply to commence living together in family relation, and Indian custom divorce means to cease such living. With the younger educated Indians no longer influenced by the old tribal domestic life and morals, the fluidity of Indian custom marriage and divorce may become simply an opportunity for license.
The only instruments for combating the evil at present are the Courts of Indian Offenses, where they exist, and the persuasion or coercion of the agency superintendent. Real progress is made difficult by the lack of jurisdiction in the state and United States courts and by the inconsistency of the government in recognizing, for purposes of inheritance, Indian custom marriage and divorce, and at the same time in attempting by executive plea and threat to secure a compliance with civilized ideas on the subject.
Even the Indian who desires to travel along the way of the white man may find his path strewn with obstacles. Uncas Noche, a blind interpreter at the Mescalero agency, deserted by his wife, was left well-nigh helpless. A little boy, whom he hired to lead him about, also failed him. In this exigency Uncas sought another wife, but being a Christian Indian and a government employee, first went to the state court to secure a divorce from his unfaithful spouse. The state judge disclaimed jurisdiction in such a case and left him without relief. The superintendent, to whom he next appealed, was without authority to grant divorces. Uncas accepted the alternative of technical bigamy to practical helplessness. His choice, however, led to disgrace within his church and to threatened loss of his position with the government.
Any attempt to extend the state law of marriage and divorce in toto to such people as the Navajos, who, far removed from white contacts, roam over a wide domain and retain much of their tribal life and customs, would, it is believed, prove unjust and abortive. Any general extension of the state law by act of Congress should except such Indians. The effort should, however, be made to lead them by gradual steps up to an accepted standard of marriage which would be conducive to greater continuity of family life. Recording the fact of marriage by the Indians at the agency, the issuance of a certificate thereof, and the keeping of a marriage register would be aids in the education of the Indians along the lines that the several states have found conducive to individual and family welfare. In order to render to divorce a form and legal sanction which would not be so expensive and cumbersome as to be unattainable by most of this class, the Court of Indian Offences should be vested with jurisdiction to grant divorces. In the same court slight punishments should be imposed for those who in their family relations neglect the formalities above suggested.
Many Indians should be placed under the state law in their domestic affairs as in other matters. This action should be determined by their ability to speak and read English, by their competency in economic striving, by their participation in the social concerns of the community, by the possibility of access to the appropriate judicial and administrative offices of the state, and by their non-susceptibility to effective federal or tribal control. Of course, no interference with existing marital relations should be attempted. Even with such people, it is a prime necessity that a system of legal aid and the cooperation of state and county officers be assured in order that the extension of law so decreed may exist in practice as well as in the statutes of Congress.
The Use of Intoxicants. The problem of the use of intoxicants by the Indians is not substantially different from the same problem in the surrounding white communities. The greatest difficulties occur in the open reservations and at the agencies where the Indians make frequent visits to the nearby towns and cities to procure liquor. The latter difficulty can be solved only by sympathetic cooperation with the local authorities. Generally the best results are obtained by the special prohibition enforcement officers of the Indian Service, who, although they may have several states within their respective territories, are able to make intensive efforts at the particular reservations where their services are in greatest need. A chief liquor enforcement officer, devoting a large part of his time to active field work, should be employed to supervise and coordinate their work. In the whole field of prohibition enforcement among Indians, there can be no relaxation of vigilance. Increased, rather than diminished, appropriations for the work should be sought.
The practice of employing the local farmer, stock man, or field clerk as a liquor officer is not desirable. He soon becomes known and his work becomes difficult. Then, his police duties are a hindrance to obtaining cooperation from the Indians in the industrial and social phases of his work.
Gambling. Gambling, chiefly detrimental because of its interference with the regularity of income, is not generally regarded as a pressing problem. Effective suppression of the practice away from the reservation is almost impossible where the local sentiment permits gambling, or where, as in the State of Nevada, there is no law against it. As the Indian is developed socially, and as his time becomes in greater measure occupied by productive effort, the evil will gradually shrink to the place usually occupied by it in the normal American rural or urban community.
Civil Disputes Not Involving Domestic Relations. The adjustment of civil disputes, other than domestic troubles, is not a serious problem on the Indian reservations. The Indian has but little property and little to cause dispute between himself and his neighbor. His real estate is under the control and protection of the United States, and legal action in respect thereto is usually taken by the national government in the United States courts. Minor matters, such as controversies in regard to some article of personal property, petty assaults, and family quarrels are dealt with by the Court of Indian Offenses as adequately as could be expected of any tribunal. As above stated, the extending of the jurisdiction of this court to include divorce would, as applied to the less advanced Indians, be advisable in order to secure for them a more nearly complete system of law and justice.
Present Methods of Administering Justice. The division of jurisdiction between state and United States courts, whereby certain offenses committed away from the Indian lands are punishable in the state courts, certain other offenses committed on Indian lands are punishable in the United States courts, and still other offenses committed on reservations or restricted allotments are unpunishable by either state or federal authorities, is uncertain and demoralizing. In some instances the state courts, in order to provide some semblance of law and order, have enforced their authority on the reservations without legal warrant, but eventually the jurisdictional question has been raised by attorneys appearing in behalf of Indian clients, and thereafter such courts have declined to take cognizance of the cases. Even where the state has undoubted authority in law for assuming jurisdiction over the Indian, it will frequently refuse to exercise it, partly because the Indian escapes the payment of taxes for the support of the state and local governments and partly because he is considered the exclusive problem of the national government. Praiseworthy examples of cooperation have existed between the agency authorities and the local police officers and magistrates in the suppression of the sale to Indians of liquor and proprietary alcoholic medicines. Another excellent palliative for the situation, adopted by some local judges and Indian superintendents, is the practice of summoning before the village or city courts drunk or disorderly Indians and committing them to the Indian superintendent to carry out the sentence imposed. At other times the lack of proper laws or the apathy of the constituted authorities leads to seemingly excusable but unwise attempts to maintain order by illegal means. When such attempts are thwarted, as they inevitably are, the resulting situation is worse than before, for the victory gained renders the lawless even more intolerant of restraint.
The Court of Indian Offenses. For the punishment of petty offenses and the settlement of minor civil disputes the only judicial machinery available is the Court of Indian Offenses. There are only about thirty such courts. More than one-half of the reservations exist without them. Concerning these courts it is hard to make generalizations, for they vary greatly, particularly in the degree of success with which they perform the duties required of them. Regulations of the Department of the Interior for 1904 provide a limited code which is supposed to govern their jurisdiction and practice, but it is doubtful whether one in ten of the judges has ever read any of it, and certain it is that it has little practical effect in governing their deliberations. The provision of the regulations which gives to the court both jurisdiction over "misdemeanors" and the civil jurisdiction of a justice of the peace is certainly indefinite and broad enough to cover a wide range. A study of the records of various courts indicates that the usual matters considered by them involve drunkenness, sexual offenses, minor assaults, domestic troubles, and personal property disputes involving small values. The decision rendered in these cases depends not upon code or precedent, but upon that subtle quality of the mind called common sense and upon an understanding of the current native ideas of property and justice. No sharp division is drawn between criminal and civil jurisdiction. An attempt to make an exact category of offenses and disputes would be hazardous on account of a lack of nomenclature understood by the Indians. No evidence was found, however, of any attempt to inflict punishments for acts which would not ordinarily be considered public or private wrongs.
The consensus of opinion is that the Indian judge is one of the higher types of Indian, usually one of the older men, who, though he may lack the formal education of the younger people, still possesses a high degree of integrity and a native intelligence and shrewdness which secure for him a position of standing in his tribe. The Indian judges are appointed by the superintendents and usually serve for many years through the terms of several superintendents. A difficulty in their selection arises from the existence of factions on the reservations, and hence, unless care be taken, there may be a tendency to exercise favoritism or spite in the decision of cases. This may be the explanation at one reservation of the frequent insistence of the Indian judges that punishment be imposed for minor infractions such as intoxication, in spite of the fact that the offenses in question had been committed three, four, or even nine months previous to any complaint to the agency authorities. Local Indian politics constitute one of the reasons why several judges, instead of one, are usually appointed and constitute also a reason why the popular election of judges might lead to bad results since the dominant faction might elect all the judges.
The procedure of the court is generally informal. The judges meet on certain prescribed days at longer or shorter intervals according to the amount of business. If an offense has been committed or a dispute has arisen, the parties are notified to be present at that time and to bring their witnesses. At the Flathead Reservation the practice was followed of arresting the alleged offender at the time complaint was made and of keeping him near the agency office working until the day of trial. The sentence which usually followed was then dated from the time of the arrest. The Indian police apparently have little trouble in securing the attendance of parties at the sittings of the court.
The actual trial of the cases requires but little formality. At one of the several sessions of Courts of Indian Offenses attended by members of the survey staff, the two Indian judges took their seats in the agency office. The Indian policeman and one of the agency employees were present. While one of the judges interrogated each witness separately, the other witnesses being excluded from the room, the other judge made an abstract of the testimony. The colloquy was in the native tongue, but the record was made in English. After the testimony was taken, the judges conferred with each other. The parties and their witnesses were then called in and sentence was pronounced. This seems to be about the customary procedure, although in some courts the witnesses testify in open court. Although a more careful keeping of records is desirable,33 the absence of a formal code and the informant of the proceedings are not causes for alarm. Such a manner of handling cases has been found wisest and most expeditious for the juvenile courts, the courts of domestic relations, and the small claims courts of our large cities, which are so satisfactory in dealing with matters analogous to many of those handled by the Court of Indian Offenses.34 A formal, complicated, or technical system of procedural and substantive law could not be administered by the Indian judges, and even if it could be, would not result in a higher type of justice. As Elihu Root has said, "There is no reason why a plain honest man should not be permitted to go into court and tell his story and have the judge before whom he comes permitted to do justice in that particular case, unhampered by a great variety of statutory rules."35
The sentence of the court is usually imprisonment, although infrequently a fine is imposed to be paid in property. Imprisonment does not, however, mean actual incarceration, but rather a term of labor about the agency grounds, on the roads, or on the irrigation ditches.
There are jails, but they are ordinarily only places of temporary confinement and are frequently kept unlocked. At some reservations the prisoners are detained in the jail at night, while at others they are permitted to remain in their own homes. A much needed improvement at most agencies is the repair and renovation of the building used for confining prisoners so that it will be at least secure, habitable, and sanitary for the unfortunates who are retained there. The sentences imposed by the courts vary, of course, on different reservations and for different offenses. Sometimes they are as short as a few days, and they have been known to extend to four months. The superintendent has control over the execution of the sentence, and almost invariably liberal allowances are made for good behavior and extra work, so that the longer sentences are greatly shortened. It is also a frequent practice, if the services of the prisoner are needed, to suspend the sentence or even to sentence the offender to perform certain work on his own property or on the property of a relative. Thus, in an extremely informal way, the practice accords with the work of probation officers and parole boards and with the indeterminate sentence of the state courts. With the establishment of social service work on the reservation and the cooperation of trained workers with court and superintendent, a true probationary system could easily result from the present rough framework of the Indian courts.
The charge is frequently made that the Indian judges are dominated by the superintendents. At some reservations where the superintendent conducts the prosecution of the case or even acts as one of the judges, this is undoubtedly true. In fact, at ten reservations the regular Court of Indian Offenses has been abandoned and the superintendent himself has assumed the role of judge. At many other places, however, the decision of the Indian judges is untramelled, and the only interference by the superintendent is an occasional diminution of punishment. Although the superintendent should not attempt to control the action of the court, and certainly should not himself act as judge, it is extremely desirable that he advise the court when requested, veto its actions when arbitrary and unjust, and assist in enforcing its judgments.
Among the Senecas of New York, the Peace Makers Courts are entirely uncontrolled by outside governmental authority, and the unfortunate result has been a reign of unshamed corruption. The fear of arbitrary action by the superintendents is based more on theory than on fact. In the community adjacent to the Indian reservations, the superintendent ordinarily ranks among the very best in ability and integrity, certainly much above the usual justice of the peace. As Mr. Justice McKenna once said of the Blue Sky Commissioners, when the bogey of arbitrary executive action was raised, "We must accord to (him) a proper sense of duty and the presumption that the function entrusted to him will be executed in the public interest, not wantonly or arbitrarily."36 The critics of the government policy in this respect have adduced practically no well-founded cases of unjust action by the Courts of Indian Offenses or by the superintendent, and on the reservations little complaint is heard from the Indians. In fact, if the superintendent wishes to be particularly severe on a particular Indian, the usual means of attaining his desire is to turn the individual over to the state or United States courts for attention. The practice in Canada should be cited where the superintendent acts as a magistrate, hearing and disposing of the cases that come before him.
One exceptionally able mixed-blood Indian employee of the government, whose sympathy for and interest in the Indians do not seem to be open to question, makes this noteworthy point. When an Indian offender is brought before the Court of Indian Offenses, neither he nor his family feels under obligation to retain an attorney or to go to any other special expense in the matter. If, on the other hand, he is taken before a white man's court, either state or federal, he and his family, if not his friends, will spend all they can raise in his defense because to them imprisonment in the white man's institutions, even if only for a few months, is an extremely severe penalty, as it goes so counter to Indian nature. This particular Indian is strongly in favor of retention of the Indian court for the economically backward Indians, because it is suited to their condition and does not impose great financial burden on the offender and his family.
The chief criticism of the Court of Indian Offenses is its inadequacy in dealing with serious cases or hardened offenders. For the vicious and unruly characters about some of the reservations, more severe treatment is necessary than the quasi-paternal admonitions and the slight punishments which it is possible to inflict by executive measure. For matters within their proper scope the Indian courts are extremely well-suited to accomplish the tasks laid upon them.
The Pueblos. The Pueblo Indians of New Mexico constitute such a peculiar and complicated problem that particular attention must be given to them. There are twenty of these pueblos or villages located in a territory one hundred and fifty miles long from north to south. Some of the pueblos are well-populated and prosperous, while others are slowly approaching extinction. The pueblo of Laguna is notable in having adopted many of the ways and customs of the white people, while others, as Taos and Santo Domingo, cling to the ancient tradition. Within some of the separate pueblos, there exist two partiesthe conservatives, who resent any inroads on native customs and ideals, and the progressives, who desire to follow more closely the life and habits of the white folks about them. Parties, or clans, within the pueblos exercise strong political power and dominate in the election of pueblo officers. To render the situation doubly difficult, many good people in Santa Fe and Albuquerque have interested themselves in these Indians, and the government in any action it takes must count on their influence with the Indians. The local courts, particularly the justices of the peace, are controlled by the Mexican element in the population, and the one thing concerning which opinion is unanimous is that it would be most unwise to subject the Indians to their jurisdiction.
The governing agents in each pueblo are a governor and council, ostensibly elected by popular vote, but in fact nominated by the cacique, or religious head of the pueblo, and largely controlled by him. After open hearing, the governor and council administer justice; the criminal sentence is either a fine or a whipping. Although the progressive elements complain of the harsh and brutal actions of the ruling conservative faction, the vast majority of the Indians, without doubt, desire to keep intact their ancient tribal government, which would include, of course, such methods of justice. Apparently, in some of the pueblos the tribal authority is ineffective in maintaining order and a condition approaching lawlessness exists.
The time available did not permit the survey staff to make the intensive study necessary to arrive at a proper solution to this difficult problem. The members of the staff are agreed, however, that although some change in the existing situation is necessary, no drastic step should be taken without a thorough investigation in the field and a careful consideration of all possible means of dealing with the situation. It is, therefore, recommended that a special commission be employed to perform this important task and to report its findings to the Department of the Interior.
Suggested Remedies in the Field of Order and Justice. Any system of law and law enforcement for the Indians will have to be adapted to the conditions of the several different tribes according to their environment and their economic, intellectual, and moral status. Different solutions will be required for different problems. Adaptability is much more to be desired than uniformity. Eventually all Indians in the United States will be assimilated into our social, economic, and political life, and therefore it is highly desirable that the law and the system of administering the law applied to them shall educate and prepare them for a final and complete subjection to the system of Anglo-Saxon jurisprudence under which the American people live today. Utopia cannot be expected from legislative enactment, for it will be impossible by any system of law and order to provide moral habits of life for the Indian, or to secure for him completely his person and property, when such matters are but little regarded by the white people in the community where he lives.
Certain Classes of Indians Under State Law Except as to Property Should Be. Many Indians, except for the supervision of property interests and the furnishing of medical, educational, and social service, should be placed entirely under the state law. These are of two kinds: first, those groups like the California Indians, who are so widely scattered that no reasonable number of Indian Office agents can effectively maintain order and administer justice among them; and secondly, those advanced groups, who by education, training, and economic competency are able to regulate their conduct and to preserve their property interests with an understanding of, and a responsibility to, the ordinary laws governing in the community.
United States Courts or State Courts to Apply State Law. Much may be said in favor of placing jurisdiction over such Indians in the United States rather than in the state courts. The trial by the United States courts of certain felonies is an established and well-received mode of procedure, and there is undoubtedly basis for the belief that such courts are less susceptible to local prejudice and will afford a greater measure of justice to the Indians than do state tribunals.
On the other hand there are several objections to this course. The United States courts are often remote from the Indians. Giving them jurisdiction will preserve the present divided jurisdiction over the Indians according to the situs of crime and the property status of individual Indians. As there is no federal civil law as such and as the federal Criminal Code is very specialized and incomplete, it is advisable that the state law, whether administered by United States or state courts, should be applied. Again, any attempt to place upon the United States judges the burden of administering the petty civil and criminal jurisdiction of a justice of the peace, or county court, is bound to prove abortive.
Probably the best results in dealing with such Indians will be obtained by conferring on the state court exclusive jurisdiction in all actions for divorce, in all civil matters up to a given maximum (say $500), and in all cases of misdemeanors. The United States court could then be vested with jurisdiction over the larger civil cases and other felonies. In case of claim of prejudice in the state court, opportunity should be given to remove the case to the United States court. Although this solution of the problem still leaves a possibility of vexations in the division of jurisdiction over felonies according to the situs of the crime and the status of the Indian, felony cases are not large in number, and in any event the greater assurance to the Indian of a fair and unprejudiced trial will justify the inconvenience.
Necessity for Organized Effort and Legal Aid Where State Law Is Applied. No immediate reformation in the affairs of the Indians can be expected, however, from any bare enactment of Congress. In order that the states may be brought to assume the enlarged jurisdiction over the Indian wards of the national government, some organized effort must be made through conference with governors, with attorneys general, and with associations of judges and county attorneys, to awaken a more lively interest in the Indians. A clear determination of the extent of the state's jurisdiction in Indian matters will in itself lead to greater activity by the state authorities, who now with considerable justice excuse their non-action by the plea that their authority in the case is uncertain.
In order that the extension of the normal processes of government over the Indians may not lead to misunderstanding, abuses, and oppressions, some organized system of legal aid should be provided for the ignorant and needy among them. For even among the class of Indians who are now under consideration, there are many who are unacquainted with the white man's laws and methods of business and have not sufficient means to hire competent legal help. "The way of the unlettered and impecunious has never been easy before the law,"37 and although the educated Indian with means seldom lacks an attorney to protect his interests, his less fortunate brother should not be allowed to suffer for lack of legal assistance. No Indian should be brought before a court for a criminal offense without capable and honest counsel to defend him, nor should his interests in civil matters be unguarded because he cannot procure proper legal services. A more adequate system of legal aid for the Indians, which should include the payment of court costs in necessary cases, is greatly needed. A recommendation to this effect is made later in the report.
Among Other Classes of Indians the Court of Indian Offenses Still Needed. Among the remote tribes, less far advanced on the way to amalgamation with the white population, a dual system of the administration of civil and criminal justice seems necessary. For misdemeanors, small civil cases, and family disputes the jurisdiction of the Courts of Indian Offenses should be preserved. It is believed that these courts are preferable to the proposed substitute of38 white magistrates appointed by and accountable to the United States District Court. In the first place, near many reservations it is doubtful whether men of sufficient character, training, and ability to perform the function would be available. To appoint magistrates located many miles from the homes of the Indians would be almost as bad as requiring the Indian to resort to the regular state courts. In the second place, no person of an alien race, speaking a strange and unknown tongue, and compelled to act through interpreters, could as well understand the psychology of the Indian and the complications of the various cases, or as wisely or as surely administer justice among the Indians, as could the Indian judges who preside over the Courts of Indian Offenses. In many cases the appointee of the United States court would be compelled to rely upon the superintendent for advice, and his decision would be as much under the influence of that officer as are the decisions of the present Indian courts. The regulations of the Interior Department should be revised, however, with a view to defining in non-technical language the offenses cognizable by the court and the punishments to be decreed for violations thereof. Especially should provision be made for securing the investigation and advice of the social agencies of the reservation in all cases where family interests are in any way affected.
Transfer of Cases from Court of Indian Offenses. For the more serious crimes involving the possibility of weighty punishments, the Court of Indian Offenses is not suitable, and here the jurisdiction should be in the United States court, as in the case of the two classes of Indians previously considered. Even where the offenses committed are not classed as felonies, there will be found on the various reservations certain Indians who are disorderly, unamenable to ordinary discipline, and even vicious. For such as these the quasi-paternal jurisdiction of the Court of Indian Offenses is inadequate. For the proper control of such people, the Court of Indian Offenses, with the approval of the superintendent, should have the power of submitting the entire case to the state court, where the ordinary punishments of the state law can be executed. The state courts should have jurisdiction also in those cases where no Court of Indian Offenses exists. Without some such expedient as this, the authority of law will often be flouted by some elements of the Indian population, without adequate means of restraining the evil doers. Also, it would be advisable to allow any party to a case to have it removed to the state court if he deems that justice can better be secured there. Such cases will be few, but the opportunity to secure a trial by the regular processes of our judicial system should not be denied.
The Need for an Institution for Delinquents. A serious difficulty in dealing with any group of Indians is the lack of an institution for the training of maladjusted, or delinquent, boys and girls. State or private institutions are not ordinarily open to the Indian youth, and, even if they were, are not suitable places for these children so close to the primitive life of their ancestors. The sentences of the Court of Indian Offenses leave the offender on the reservation, where the influence exerted is bound to be detrimental to his or her companions. In this dilemma some superintendents have contrived to have the undesirables among their younger people sent to the government boarding schools, where their presence necessitates stern repressive regulations unjust to their innocent fellows. The government should seriously consider the necessity of proper training schools for the care of such unfortunate delinquents. These schools should be located with reference to the accessibility of clinics and other facilities for doing constructive work with problem children and youth.
The Need for Expert Study and Planning. The task of dividing the Indian peoples into classes for the purpose of regulating their family relationships and for administering civil and criminal justice can be accomplished only by detailed and expert study. Also, conditions will change, and many of those who now should be subject to executive control must eventually be placed under the ordinary processes of law. For these reasons the separation should be determined by executive investigation rather than by unbending legislative fiat. A statute of Congress which would empower the Secretary of the Interior to establish Courts of Indian Offenses among those Indians found by him to be unsuited in condition, training, and environment to government by the regularly constituted authorities of state and nation, and which would extend the state laws in the manner indicated above to the remaining further advanced people, would furnish opportunity for investigation and change to meet new conditions. This, it is believed, would be sustainable against objection on constitutional grounds. The actual task of making the division would be placed upon the Division of Planning and Development, recommended in another portion of this report.
The Government as Guardian and Trustee of Indian Property. The national government's guardianship of the Indian and its trust title to Indian property impose on that government the duty of protection and advancement of the Indian's interests. This duty is rendered more exacting by the unsophisticated character of the ward and his impoverished condition. The Indians, excepting a few isolated individuals far advanced on the road to economic competency, must rely upon the government of the United States to protect their property and personal interests unless they depend upon the sporadic attempts of philanthropic friends of the race or upon the dubious attempts of self-seeking traffickers in Indian ignorance and credulity. These Indian property interests include not only individual claims, seemingly insignificant considered singly, although of inestimable gravity viewed in the aggregate, but also vast tribal resources of oil, minerals, timber, and water for irrigation and power.
The task of the government is much more comprehensive than that of the ordinary guardian or trustee, in that it has by congressional enactment assumed the duty of settling the testate and intestate succession to Indian estates instead of entrusting that function to the probate courts of the several states.
The Legal Organization and Procedure. In view of the number and importance of the legal questions which arise in the conduct of Indian affairs, it is extraordinary that the Office of Indian Affairs has no high officer corresponding to a general counsel or solicitor. It has a law clerk and several other people with legal training, who either are burdened with a mass of administrative detail or else are narrowly confined to special fields such as probate or irrigation. A number of attorneys in the Office of the Solicitor of the Interior Department are exclusively engaged with Indian matters, but these men are responsible to the Solicitor and to the Secretary of the Interior and not to the Commissioner of Indian Affairs. Their function is chiefly the consideration of the legal phases of propositions which by act of Congress require the approval of the Secretary of the Interior. The opinion of the Solicitor on disputed legal points may be obtained also by formal request of the Commissioner upon the Secretary. The need is for more than this. The Indian Office needs a highly trained lawyer, with necessary assistants, to coordinate, supervise, and expedite the multifarious legal phases of its work. The savings to the Indians and to the government itself in property conserved and in litigation efficiently and expeditiously handled would result in an increased morale within the service and among the Indians and would justify the creation of such an office.
The lack of responsible leadership in the management of the legal affairs of the Indians is chiefly apparent in the conduct of litigation. The first person to whom legal difficulties are presented is usually the reservation superintendent, who is in direct contact with the Indians and to whom they chiefly look for protection and guidance. The report of the superintendent goes to the Indian Office where it is first referred to the particular division administering the phase of Indian affairs within which the trouble lies. Here the case is really prepared and the recommendations of the Indian Office as to the advisability of suit are made. If a recommendation of suit meets with approval of the Commissioner and his immediate advisers, a letter from him to the Secretary of the Interior, in which the Secretary is requested to present the matter to the Attorney General for such action as he deems fit, is prepared for the Commissioner's signature by the divisional clerk who has investigated the case. In considering the Commissioner's request, the Assistant Secretary of the Interior who is particularly entrusted with the administration of Indian matters, is of course guided by the advice of the attorneys of the Solicitor's office. If the Department of the Interior approves the recommendations of the Commissioner of Indian Affairs, the case is referred to the Department of Justice. When the case reaches the Department of Justice, the lawyers there review it and, if their opinion is favorable to the commencement of suit, the case is finally sent to the appropriate United States District Attorney, who by statute is entrusted with the conduct of Indian litigation. Thus, when the original complaint to the superintendent has finally germinated in effective action, it is too often true that much valuable time has been lost and that the person responsible for the active handling of the case is far removed from Indian interests and contacts.
This circumambulation cannot, in the nature of things, lead to the best results. The Office of Indian Affairswhich is the developer and organizer of the action, the custodian of the evidence, the governmental party in interest, and the chief point of contact with the government's Indian wardon reference of the case to the Department of Justice passes from the case as far as its control of the litigation, and one might almost say, as far as its interest in it is concerned. The files of the Office of Indian Affairs contain cases of supreme importance, concerning which no data have been received for the entire year preceding. A lawyer of the highest efficiency and integrity should manage and direct the multifarious actions brought by the government in the interests of its Indian wards.
In the past certain suits have been brought which involved a legal question of vital importance to large numbers of the government's wards, but only after the litigation has progressed has it been discovered that the particular case involved other facts foreign to the vital point at issue which rendered an adverse decision certain. At times the delay in bringing to a focus contested claims has been extreme. In June of 1921, for example, the Superintendent of the Flathead Agency advised the Commissioner that certain parties had filed mining claims on the timber lands of the Flathead Indians. Although advice was at once given that the claims were without legal basis, it was not until May of 1927 that the case was submitted to the Department of Justice for action. In this case the delay was particularly dangerous, as it involved the probability of the cancellation of large timber sales because of the presence of these trespassers whom the government had failed to remove. If there is uncertainty and hesitation in the larger matters, the usual result in the smaller affairs is that the Indian goes entirely without legal aid, and often loses his rights by default.
A difficulty with the present modus operandi is the unsatisfactory nature of the service often rendered by the United States district attorneys. In many cases, particularly in irrigation matters, extremely abstruse and technical problems of law are presented, concerning which the United States district attorneys, with their many other duties, are necessarily not experts. More serious is the fact that they often fail to comprehend and follow the theory and principle of the governmental protection of the Indians. Their sympathies lie not with their clients, but with their clients' opponents. In some instances the Indian Office, working through the Department of Justice, has encountered great difficulty in prevailing upon the United States district attorneys to prosecute cases in which the position of the Office was based on well-settled governmental policies in dealing with the Indians. It is not surprising that in such a situation failure often results.
The present situation could be remedied by an organization of a legal force within the Indian Service similar to that already existing within the Bureau of Reclamation. In addition to the general counsel at Washington, heretofore mentioned, there should be in the field district counsel situated in the centers of Indian population. These men, perhaps nine or ten in all, should devote their entire time to the legal interests of the Indians, and they would soon become expert in all matters of law relating to them. The nominal conduct of litigation would remain with the United States district attorneys, but these district counsel of the Indian Office, acting under the supervision of the general counsel in Washington, would actually prepare the cases and actively assist in the trials. The actual details of the system would have to be worked out after a careful detailed survey of the field.
The system should probably include attorneys retained for part time in the several localities contiguous to the reservations to attend to minor matters, such as formal appearances and the conduct of petty suits before justices of the peace and the municipal courts. Some such system of legal aid is particularly necessary in the present stage of Indian development. The Indian must eventually come fully under the state law and authority, but in order that he may safely cover the transition period, he needs aid and direction. The poor and ignorant in our large cities need the advice and assistance of organized legal aid, and extensive organizations have been established to provide it. Unfortunately, such organizations do not often exist in rural communities. The Indian's poor command of English, his lack of training in the customs and business methods of his white neighbors, and his entire psychology of life, which involves little attention to property values, render him unsuited for independent striving for competence in the economic life of the time. To protect him and his property from the illegal acts of his designing neighbors, to advise him as to his rights and liabilities, and to secure him proper representation when he appears before the courts of the land are duties that the government should not fail to fulfill.
Emphasis must constantly be placed on the fact that, in the conduct of the legal affairs of the Indians, the national government is in the position of a trustee of the highest type. Before the advancing wave of Anglo-Saxon civilization, the Indian has gradually relinquished his vast inheritance, until now located in a few scattered places in our western country; he has but a remnant of his former possessions left to him. The national government has assumed to act as trustee of this estate, and it goes without saying that its duty is to conserve and develop it.
No general indictment is offered that in recent years the government has been unfaithful to its trust. Its position is, however, a difficult one. Covetousness is not solely an ancient trait. The claims of white settlers to a share in the Indian resources are constantly being pressed upon the government, oftentimes with great astuteness and frequently with a show of justice. In such a situation the Indian lacks the ability and the means properly to present his views, and some of those who present them for him often prejudice more than aid by over-statement and invective. The constituted conservators of the Indian wealth are inevitably tempted to compromise and to assume the role of the arbiter rather than of the advocate of Indian claims. Surrender to this temptation offers an enticing escape from political and legal entanglements. Such a surrender is to be deplored. Unless the Indian Office takes its position as the advocate of all Indian rights to the fullest extent compatible with the law, those rights will not be adequately presented before Congress and the courts. Congress and the courts, and not the guardian and trustee of one of the parties, should judge between conflicting claims. In such matters as the lease of the valuable power sites on the Flathead Reservation, the preservation of the rights of the Pueblo Indians in their ancestral domain, the submission of the oil resources of the Navajo Indians to state taxation, and the charging to Indian funds of certain improvements enjoyed by the general public, the Office must be circumspect in order to see that no valid right of its Indian wards is waived. The injury is particularly great when voluntary proponents of the Indian interests present the Indian claims more strongly than does the authorized guardian of Indian interests, and are successful in so doing. The Indian then ceases to regard the government as his protector, but is prone to look upon it with suspicion, a state of mind too often one of the greatest obstacles in the government's task of preserving and advancing the Indian.
Administration of Indian Lands. At several of the reservations the survey staff discovered that ugly charges were being or had been made of misconduct in the administration of Indian lands. With the time and facilities at the disposal of the staff, it was not found practical to sift to the bottom of all these charges. The situation at Fort Yuma is an indication of the difficulties encountered in endeavoring to arrive at a conclusion in such cases. Here the leasing of the Indian lands had been the occasion for constant bickering and a series of investigations running through the years. Four separate inspectors were sent to this agency to report upon the complaints made concerning the conditions there, and five different reports were submitted, the file constituting a stack of papers and documents over two feet high. In no instance, however, could the inspectors agree among themselves. In 1921, while one inspector reported that the superintendent and farmer were guilty of various derelictions and frauds, the other one exonerated these two men. Subsequent investigations brought the same contradictory results. In the face of these conflicting reports, and in consideration of the tremendous mass of material submitted, no definite findings by the survey could be made without greater expenditure of time than appeared to be justified. It is, however, indubitable that where existing practices permit so much trouble to arise, some change should be made.
At the Quinaielt Reservation, the allotment of lands also has led to much misunderstanding, and an almost total lack of cooperation between the agency forces and their Indian charges. This situation also should be remedied. Both in the making of allotments and in the leasing of lands, safeguards against mistakes and negligence, as well as against possible dishonest practices by the officers in charge, would be advanced by a more orderly procedure and the keeping of better records. As was suggested by an employee of the Colville Agency, there should be kept in each agency office in bound form a complete record of each parcel of land on the reservation, from which the present status of the land and its past history could be immediately determined. Serious difficulty arose in the allotments in the Quinaielt Reservation because of the lack of a proper record of the Indian's original choice of an allotment. These were kept only in the temporary notebooks in the possession of the allotting agent, and the Indian's choice of an allotment did not receive formal governmental sanction until certified to the Secretary of the Interior several years after the choice had been originally made. There seems no reason why the selection of the allotment should not be made a matter of permanent record open to the public. The inability of the Quinaielt Indians to examine the records, documents, and correspondence in relation to the allotments of their land was the occasion of much unfortunate controversy.
With respect to the leasing of individual lands, the regulations of the Interior Department make no provisions with respect to the mechanics thereof, except as to acknowledgment and witnessing of leases, and recording when necessary to secure crop liens under the state law. The practices vary at the different reservations. At Yuma the procedure seems to be informal. A person desiring to lease an Indian allotment secures from the farmer or other government employee, the names of those Indians who might be willing to lease their land, or else he finds these Indians by his own efforts. A lease is then made by the superintendent, the Indian, and the lessee. There is no compiled record of these leases. The documents themselves are contained in the individual files of the Indian lessors, and to make any study of them to ascertain the consideration for the lease of Indian land as compared to the lease of white land, or to compare the consideration paid by the different lessees of the Indian lands, requires a search of all these individual folders or else a search through the individual money ledgers of the different Indians. Under such a system it is apparent that discrimination and even bribery may exist without opportunity of discovery. At the other reservations, notably at the Flathead and Osage Reservations, a complete record is kept and an appraisal by the government farmer is required and kept on file, while at Flathead an application is required of the lessee.
Adequate regulations for the making of leases and the recordation thereof should be made to guard against favoritism and undue influence. While the paper work should be kept to a minimum, informality and secretiveness furnish opportunity for favoritism and dishonest practices. The following suggestions are made:
1. That there be an inquiry of the superintendents at the reservations where a considerable amount of leasing is conducted for the purpose of discovering the methods there employed and their operation in actual practice.
2. Pending such study the tentative proposal is made that the greater publicity through the posting in the agency office of the lists of lands available for lease be attained. This list should, of course, give the name of the Indian, the allotment number, and the description of the land by the government survey. It should also contain the minimum appraisal for lease purposes fixed by the government. It is probably not necessary or advisable to have public bidding or advertisement for the leasing of Indian lands for agricultural purposes, for the term is short, the monetary consideration involved small, and the need of prompt action often pressing. However, it is suggested that after the list of lands available for leasing has been posted, it be allowed to remain for a short time, say one week or ten days, before final acceptance of offers for leases is made. This would enable different parties to have an opportunity of making bids for the lease. After a bid had been made and accepted, the name of the lessee should be added to the above-posted information, together with the consideration paid. All this information should remain a part of the records of the Indian Office open to inspection. A written appraisal signed by the government farmer should also be required in order to fix responsibility. Even though the Indian be technically incompetent, a copy of the lease should be given to him, to train him to some extent in business matters and give him a start in the proper care of private property.
As pointed out in other portions of the staff report, Indian property can be used as a valuable means of educating the Indian to economic competency. Too often at present the government officers, in order to avoid the trouble and time spent in making the Indians cognizant of the methods and policies pursued in the management of their property, accept the undesirable alternative of keeping them in the dark concerning their own property. Such a practice furnishes a breeding ground for suspicions and indictments, which, though usually unfounded, are due in no small measure to the government's own short-sighted policy.
Administration of the Estates of Deceased Indians. By enactment of Congress the Secretary of the Interior has been charged with the duty of determining the heirs to the restricted estates of deceased Indians, and with the responsibility of probating such wills as may have been executed by the deceased owners of such estates. The intent of Congress was clearly that the rights of intestate succession should be determined by the laws of the several states, with the qualification that the offspring of Indians cohabiting together as man and wife according to the Indian custom should be considered legitimate for purposes of determining descent. The right of the Indian to dispose of his property by will is subject, however, to the "regulations to be prescribed by the Secretary of the Interior," and no will is valid until it has received his approval.39 To accomplish the tasks thus assigned to the Secretary of the Interior, a probate division has been organized in the Indian Office, consisting of field and office employees. Eleven inheritance examiners, duly admitted attorneys, working in particular sections of the Indian country secure the evidence in the field, which they submit to the Department for final action. By detailed regulations requiring posted and personal notice, and by openly conducted hearings, an attempt is made to guard against the possibility of careless, arbitrary, or corrupt action.
The execution and probate of wills are treated rather sparingly by the regulations. Certain directory provisions in regard to the execution of wills, including the presence of attesting witnesses, do not appear to be essential where the will is filed after the death of the testator or was made under circumstances rendering impractical a strict compliance with the regulations. The examiner is expected to inquire into the mental competency of the testator and the influence which occasioned the execution of the will and to submit the document with his recommendations of approval or disapproval, as the case may be.
When the report of the examiners, whether involving intestate or testate succession, reaches the Indian Office, it is reviewed by a staff of workers and submitted to the Commissioner, who in turn submits the entire record to the Secretary for his final action. By statute no appeal lies from the Secretary's decision.
This system of administrative settlement of estates is believed in its main elements to be sound, and it should be retained for some time to come. In view of the peculiar nature of the problem, the task is probably better performed than it would be if committed to the state courts, the doctrines and methods of which are designed to fit the needs of an entirely different class of people. The difficulties inherent in the task, and the failure of the personnel to attain the ideals set before it call, however, for certain changes necessary to protect the interests of the ignorant and simple people with whom the government is dealing.
Examination of the records of the Indian Office for the last year discloses considerable laxity in the proof of service of notices. If forms of certificates or affidavits were furnished setting forth the time, place, and manner of service, with the detail which is usually required in state and federal court proceedings, and the examiners were required in all cases to execute duly the certificates, the added guaranty that the excellent provisions of the regulations in this respect were fulfilled would be well worth the added effort.
Undoubtedly an inherent difficulty lies in the conduct of hearings. Although notice is posted for a hearing at a definite time and place, seldom will the necessary parties and witnesses be present at the time set. The Indians are frequently scattered over thinly settled regions with poor means of communication and, if no immediate pecuniary reward is in sight, they often fail to appear for the hearing. Under these circumstances, the usual practice is to take the testimony of those who are present, and then to continue the case to an indefinite date until the missing testimony can be procured. The ideal of a single hearing, in which all parties interested may appear and partake, seems impossible of attainment if the work is to proceed. The practice of some examiners of taking the ex parte affidavits of government officers instead of examining them in form at the regular hearing, should not be followed except where the parties are absent and their testimony procurable in no other way. Particular pains should be taken to observe Section 19 of the regulations, giving to interested parties an opportunity to examine depositions and to submit questions of their own if they so desire. The examiner must take pains to explain fully to the Indian claimants the status of the case and the nature of the testimony required for its determination. To assure as nearly as possible a compliance in these respects, the certificate of the examiner should state in detail his adherence thereto. Some examiners, but not all, follow the requirement that the certificate of the examiner indicates the time and places where the testimony was taken and those present at the hearing. The tentative suggestion is here made, that, when a record is complete and the examiner has determined on the recommendations to be made, notice should be posted stating that a final report will be made in the estate and that parties interested will be given an opportunity to examine it and to state their views in the matter.
Considerable improvement can be made in the actual conduct of the hearings. The fact that those interested in the proceedings often do not speak or read English and are usually reluctant in the presence of government officers and contesting claimants to assert to the full extent the rights of which they may be possessed, makes it imperative that those in charge of the work be unusually careful in protecting the interests of all parties concerned. Many examiners have a tendency to lead the witness excessively, and although the niceties of court procedure should not be expected or required, in too many instances the answer of the witness is but a reflection of the preconceived ideas of the interrogator, clearly indicated by the question he propounds. Since the disposition of the case is entirely dependent on the record made by the examiner, it is of extreme importance that he be careful to procure from the witnesses before him the testimony bearing on the vital issues of the case. In many instances the examiner's questions reveal an insufficient knowledge of the concepts of testamentary capacity, or fraud, and of undue influence, and, hence, the answers lack relevance and clarity.
Several important matters are not covered by the regulations, such as the necessity for the presence of attesting witnesses, the effect of the omission in the will of provision for children, and the death of a devisee before the testator, and it is left uncertain whether the state law is or is not applicable. This omission sometimes leads to erratic and arbitrary recommendations from the examiners. In two instances, one of the failure of a bequest because of the impossibility of performance of conditions, and the other of the death of a devisee before the testator, the examiner recommended the complete disallowance of the will for the apparent reason that he had no other solution to offer. Fortunately these strange proposals were not followed by the Washington Office.
The statutes of Congress and the regulations of the Interior Department make no provision for the payment of claims against the estates of decedents, but the practice of receiving and allowing claims is nevertheless uniformly practiced. The surviving spouse or the next of kin is asked if the indebtedness was, in fact, incurred and if the payment of the claim is desired. Affirmative answers occasion a decree of payment. Although a tendency is apparent to disallow debts improvidently and unwisely incurred and to look with suspicion on the claims of relatives and near friends on account of personal services, no legal rule has been set up to guide departmental action in these matters. The practice of allowing claims against decedents' estates is probably a proper one, although during the life of the decedent, his property would not be subject to execution for debt. In many instances, had not death intervened, the Indian debtor would have paid the claim. The government should not be in the position of enabling the heirs of legatees to prosper because death prevented an honest debtor from meeting his obligations. The regulations, however, should furnish as specific a guide as possible for the action of the Department in allowing or disallowing claims. All claims should be itemized and verified by affidavit. Although it should not be ruled that debts for necessaries only will be allowed, the debts must not be so excessive or unwise that the creditor in allowing them to accrue is inferentially guilty of fraud or overreaching. The common law principle which denies recovery for voluntary services furnishes a safe guide for the consideration of most cases of personal services rendered the decedent.
In the Washington headquarters the examiner's report normally passes through the hands of six persons: the reviewing clerk, the head of the probate division, the law clerk of the Indian Office, the Commissioner or Assistant Commissioner of Indian Affairs, one of the attorneys in the Solicitor's Office particularly charged with the duty of reviewing Indian matters, and the Assistant Secretary of the Interior. The initial detailed examination is made in the Indian Office by the reviewing clerk under the immediate direction of the head of the probate division. Subsequent reviews in the Indian Office itself are administrative and are not ordinarily detailed except in large or controverted cases. Under the present administration of the Department, all cases regardless of their size are then reexamined in detail from the complete record by one of the attorneys in the Office of the Solicitor of the Interior Department specially concerned with Indian affairs. In many cases this review results in concurrence with the recommendations made by the attorneys in the Indian Office, but in a considerable number of cases these attorneys raise new questions or disagree with the recommendations of the Indian Office. When issues are thus raised, memoranda or briefs are exchanged and if agreement is not reached among the examining officers, the case with all the papers is referred to the Assistant Secretary of the Interior for settlement. In large or controverted cases, both the Commissioner of Indian Affairs and the Assistant Secretary of the Interior devote considerable time to the study of the case. When the attorneys in charge of the initial examination in the Indian Office and in the Solicitor's Office are in complete agreement, the review by the Assistant Secretary is generally administrative rather than detailed, although the subject of Indian wills particularly interests the present Assistant Secretary and leads him in many instances to make more than the ordinary administrative review.
Question should be raised as to the advisability of having the inheritance examiner prepare in the field for signature the recommendations of the Commissioner of Indian Affairs and the final decision of the Secretary of the Interior. The inheritance examiner should, of course, submit his opinion in each case, but it is believed the final decision could be determined better by the office force which has greater opportunity for careful survey of the testimony and for reference to statutes, decisions, and treaties. Not only would the tendency to accept the prepared opinion of the examiner instead of preparing a new one be overcome, but the work which is now such tedious drudgery would afford more opportunity for originality and initiative.
More comprehensive and detailed regulations are needed to cover the various questions which arise concerning the validity and interpretation of wills. The Department takes the position that the Indian should be allowed to make his own will and to determine for himself, unrestrained by the supposedly superior wisdom of the government, the manner in which his property should be distributed after his death. The practice seems to accord with this liberal viewpoint, though some examiners of inheritance have not yet fully comprehended the principle adopted by the Department; and the superintendents, who in some instances pass on all questions regarding wills, are likely to exercise a discretionary rather than a juristic control over the making of wills by Indians.
The argument might be advanced that the Secretary should exercise the power of disapproving such wills as fail to provide for deserving spouses and children, or which make large gifts to those apparently with little claim to such attention. Such a practice would result in the Department instead of the Indian testator making the will, and would encourage an arbitrariness which might be based upon favoritism or prejudice. Such dangers offset the possible benefits which might arise from the exercise on the part of the Secretary of greater discretionary powers. The purpose of giving to the Indians the same right to make their wills as their white brethren enjoy cannot be effected, however, unless there be provided, either by regulations of the Department or by adoption of state law, rules and principles to guide the administration in its task of approving or disapproving of Indian wills. Not only will such a step secure to the individual Indians equality and impartiality of treatment, but it will not leave important questions of policy to be determined by the personal views of the particular Secretary or Assistant Secretary of the Interior who happens at the time to be in charge of Indian affairs.
As far as the execution of the will is concerned, the state laws in their strictness should not be made applicable. Ignorance of the technicalities of the state law on the part of the Indian testator and also of many governmental employees who assist in preparing wills, would cause many a will to fail which, in fact, would clearly express the testator's wishes. It should be sufficient if it appears by reliable testimony that the testator executed the document by subscribing his signature, mark, or thumb print thereto with the intent that it serve as his last will. It is not meant, however, to abandon the practice of employing attesting witnesses when the will is executed under government supervision, or to neglect securing their testimony whenever such witnesses have signed the document. The legal principles governing testamentary capacity, fraud, and undue influence as developed by the common law should be adopted, and as the inheritance examiner seldom has access to adequate law libraries, the regulations of the Department should contain definitions and discussions of these concepts. For the final decision of the case in Washington, recourse can be had to the various legal authorities, but in the meantime the examiner should not be left uninstructed as to the nature of the problem before him.
If the will is validly executed by a person of testamentary capacity, free from fraud and undue influence, the best results will be obtained by applying the state law thereto. This will take care of those perennial problems arising from the disinheritance of husbands and wives and from the omission in wills of any provision for issue of the testator, matters uniformly covered by state statute or decision. Also, rules will thus be provided to govern the situation where the devisee dies before the testator, and the effect of the divorce or marriage of the testator upon a previously executed will. Regulations should not be actually drawn up and promulgated, however, until a careful survey has first been made of the laws of the several states wherein the Indians are located. In some of them adjustments will have to be made in order to make the statutes applicable to the administration of estates by the Department, particularly in the allowance of homestead rights and maintenance for the widow during the administration of the estate. Such an application of the state law will, it is believed, be found more desirable than a uniform code covering the probate of Indian wills. It will carry out the policy of acquainting the Indians with the system of law under which they will come when finally released from government supervision, and it will bring the practice in the matter of wills into accordance with that already existing in intestate succession.
Reference has been made to the fact that the decision of the Secretary of the Interior in matters relating to descent and distribution of the estates of deceased Indians is final. If the changes above recommended are made, it is believed inadvisable to alter this to allow a resort to the courts for a hearing anew of the entire case. The inheritance examiners are lawyers; and attorneys are permitted to, and do, appear before them. Within the Indian Office and the Interior Department at Washington, the indications are that the controverted cases, particularly where the parties are represented by attorneys, are carefully and conscientiously considered. Because the rules applicable to the administration of Indian estates must differ considerably from the laws of the several states, a reference of the entire matter, particularly to the state courts, might cause confusion and misunderstanding. If, however, the United States courts were given jurisdiction to correct errors of law, erroneous decisions of fact unsupported by any evidence, and abuses of discretion so grave as to be indicative of fraud, as is the case with respect to many other federal administrative agencies, no serious interference with the administration of the law would result but rather an even greater care on the part of the government to be judicial and impartial. . The Indian then could feel that he, like other citizens, was subject to a "government of laws and not of men."
Taxation of Lands Purchased for the Indians with their Restricted Funds. A perplexing problem confronting the Indian Office today is the taxation by the states of the lands purchased for the Indians with their restricted funds which are under the supervision of the Office. The volume of such purchases is large because the allotments originally made to the Indians are often not suitable for homes. These original allotments must be sold and new property purchased if the Indians are to be started on the road to better social and economic conditions. In order to preserve these new lands for the use and benefit of the Indian owner, it has been the uniform rule to impose upon them the restrictions which existed upon the funds with which they were obtained. Some states are claiming and exercising the power to tax such lands. Since the Indian owner, on account of his lack of ready funds or his insufficient sense of public responsibility, either cannot or will not pay taxes, the result is that the lands purchased for his permanent home are speedily slipping from him and he himself is becoming a homeless public charge. This unfortunate situation is rendered more acute because the terms of the deeds prohibit alienation by voluntary act, and thus the Indian owner is not able either to mortgage or sell his lands to secure for himself the interest that he may have in the land over and above the delinquent taxes.
The United States Supreme Court40 held at an early date that the allotted lands of the Indians, the title to which was held in trust by the United States, were not taxable by the states. The policy of allotting land to the Indians and holding the title to it in abeyance until such time as they could be trusted with its full and free control had been adopted by the national government as a means for more fully civilizing the Indians and bringing them to the position where they could assume the full responsibility of citizenship. The lands were therefore the instrumentalities of the United States and, as such, by virtue of long-standing principles of constitutional law, not taxable by the several states. To this unquestioned decision may be added the ruling that, in the event of the sale of the allotted lands by governmental consent, the proceeds, being simply the medium for which the lands were exchanged, were likewise held in trust by the government and not taxable.41 The Supreme Court has also sustained the power of the Secretary of the Interior, in whom is vested the discretion to permit the conveyance of Indian lands, to allow such conveyance on the sole condition that the proceeds be invested in lands subject to his control in the matter of sale.42
In spite of the intimation from these cases and from the express decisions of two district courts of the Northwest43 more favorable to the Indians, the exemption from state taxes of restricted lands purchased for them by the government with their restricted funds is in a precarious situation. In a case which was taken to the United States Supreme Court44 it was held that lands purchased with trust funds for an Osage Indian, and made inalienable without the consent of the Secretary of the Interior, were yet taxable. This decision, however, did not involve necessarily the declaration of a general principle, since the ruling was occasioned by the fact that the special act45 under which these particular funds were released to the allottee gave to the Secretary no authority to control said funds after such release. In this case, moreover, it was not shown that the money released from the trust was invested directly in the property purchased. The thought of the court is perhaps shown in its closing remark, "Congress did not confer upon the Secretary of the Interior authority . . . . to give to property purchased with released funds immunity from state taxation." By a series of recent decisions46 the Circuit Court of Appeals for the Eighth Circuit, although emitting some dicta favorable to the Indian position, has uniformly sustained state taxation of lands purchased for the Indians with their restricted funds and made subject to alienation only with the consent of the Secretary of the Interior, and has declared itself committed to the proposition that such lands are taxable. One of these cases was affirmed by the United States Supreme Court47 in a per curiam decision on the somewhat doubtful authority of the McCurdy case supra.48
The declaration by the Circuit Court of Appeals49 that the national government has no authority to withdraw from state taxation lands formerly subject thereto is certainly not tenable. Congress has the power to relieve from the burden of state taxes a governmental instrumentality, whether a post office or a home for the government's Indian wards, and it matters not that the prior status of the property may have been such that the state could freely tax it.
If, as has been inferred, there be doubt as to the intention of Congress to give immunity from state taxation, it is recommended that legislation be secured expressly conferring the exemption. The states will not suffer from such a practice, for in return for the lost taxes on the purchased lands will be the subjection to the state taxing power of the relinquished lands, or of the funds used in making the new purchase.
Pending litigation should, of course, be pressed to a final conclusion with all possible speed in order that the existing uncertainty be ended. Should it transpire that these Indian lands are taxable, then the national government must fairly consider the nature of the duty to the ward of the guardian who has employed the ward's tax-exempt funds to purchase property on the express or implied misrepresentation that the newly acquired property is likewise exempt. Several Indians have complained to the survey staff that they are being taxed despite the formal assurance of Indian Service employees that the land purchased for them would be exempt from taxation.
The Five Civilized Tribes. The general effect of the laws of Congress relating to the Five Civilized Tribes of Oklahoma has been to relieve them, to an unusual extent, from the supervision of the national government and to subject them to the authority of the State of Oklahoma. This deviation from the usual mode of dealing with the government's wards has, up to comparatively recent years, resulted in a flagrant example of the white man's brutal and unscrupulous domination over a weaker race. The conditions existing brought about a protest from the friends of the Indians, both in Oklahoma and elsewhere, and a committee of Congress held hearings in the state and made its report. As a result of this investigation conditions seem to be improving. County judges have been elected who regard it as their duty to preserve the property of the uneducated and improvident Indians who come before their courts, rather than expedite the transfer of such property from Indian to white ownership, as too often has been the case in the past. In one case where judge, guardians, and attorneys were engaged in the outrageous looting of an Indian estate, local opinion forced their indictment and brought about the appointment of reputable citizens as receivers for the estate. In spite of this gratifying improvement, some white citizens still remain from whose machinations the Indian is not sufficiently protected. Here, as in many other communities, the ignorant, poor, and untrained are often misled, cheated, and robbed by their cleverer and more unscrupulous neighbors. As long as this condition prevails, Congress should not view it with equanimity. It is the duty of both the national and state governments to prevent the spoliation of the weaker class of the community by the stronger and to remedy the conditions that make this possible.
Probate Attorneys. For the purpose of protecting the Indians of the Five Civilized Tribes in their legal affairs, Congress, by act of May 27, 1908, provided for certain so-called probate attorneys to watch over the administration of the estates of Indian minors and to assist the Indians in the various legal matters relating to their restricted property. Although the staff of nine attorneys now employed has undoubtedly exercised effective influence in preventing many cases of spoliation, the service falls short of what should be accomplished. In spite of the many assertions of fraud and overreaching, interviews with six of the nine attorneys revealed scarcely an instance of appeal to the courts for redress. The lack of adequate supervision and leadership, the absence of any funds for the payment of court costs, the absorption in administrative details, the necessity for the constant reference to higher authority before taking decisive action, and the restriction of the scope of the work to matters relating to the restricted property of the Indians deprive the probate attorneys of a large part of their possible effectiveness. To remedy these deficiencies, a system of legal aid should be provided which might be of real benefit to the Indians of the Five Civilized Tribes; the government should not, however, be expected to handle all litigation for the Indians of these tribes because many of them can afford, and will prefer, to select their own legal representatives. If the recommendations hereafter made for the purpose of safeguarding Indian interests by closer government supervision are followed, it is probable that several attorneys retained on a part-time basis under the supervision of one competent man stationed at the office of the Superintendent of the Five Civilized Tribes could accomplish the work which the eight probate attorneys are now expected to do.
Sale of Inherited Lands. As part of a comprehensive plan for the removal of restrictions from Indian lands of the Five Civilized Tribes, Congress by the act of May 27, 1908, provided that any member of the Five Civilized Tribes could convey, with some minor exceptions in the case of homesteads, any lands inherited by him, subject to the sole approval of the county court. The Oklahoma Supreme Court50 decided that in exercising this function the county courts act as federal administrative agents and not under state law. This decision has meant that the safeguards thrown about the procedure by the Oklahoma statutes are inoperative, that the presence of the Indian grantor is not a prerequisite to the approval of a conveyance, and that the discretion of the judge is absolute, from which no appeal lies.51 It is the duty of the probate attorneys to advise the court concerning the approval of Indian deeds, and they often render valuable aid in this respect. Often, however, their services are ineffective, either because they are not notified of the proceedings or are unable to be present to secure appraisals of the land or because their recommendations are ignored by the court. At best they are in the position of interlopers. The transaction has already been agreed upon, the purchaser desires his lands, and the Indian grantor desires, usually very eagerly, his money. The state is also not adverse to having the land placed on the tax rolls. The county judges almost universally pay no attention to the social or economic desirability of the sale of the Indian land. Although the conveyance of the land may leave the Indian homeless and the proceeds of the sale be squandered, such considerations do not weigh with the court. Several judges, in fact, have declared that their duty is accomplished if it appears that the Indian knows the land which he is selling and the consideration he is to receive. Under such circumstances it is not strange that sales for grossly inadequate considerations are not uncommon. Since the court usually makes no extended inquiry as to the heirs of the decedent, pretended heirs may file for record deeds bearing court approval, which merely cloud the title so that heirs having a real interest in the land are forced to pay well to clear their title.
It has been stated on reliable authority52 that it was expected that the Indian owners would not long retain their inherited lands after the restrictions had been removed; but that the lands which they themselves had received as allotments would be sufficient to provide them a home and support. This second hypothesis is becoming less and less true, since with the passing years the number of Indians who have received allotments in their own names is becoming fewer and fewer. If the heirs were competent to handle their property, the existing situation might be left undisturbed, but the evidence is overwhelming that such is not the case and that the Indians of the Five Tribes are still the easy victims of the greedy and unscrupulous. The national government owes a duty to preserve to these Indians their patrimony. This cannot be accomplished unless the act of May 27, 1908, be so amended that the death of an allottee shall no longer have the effect of removing the restrictions from the lands descending to his heirs, unless they are persons of the lesser degrees of Indian blood from whose allotted lands the restrictions have already been removed.
Partitioning of Inherited Lands. By making the restricted lands of the Indians of the Five Civilized Tribes subject to partition proceedings in the state courts of Oklahoma53, another way has been opened for the Indian to lose title to his lands. In the case of the death of an allottee leaving several heirs, and the transfer by one of the heirs of his interest, the purchaser can have the land partitioned by the District Court of Oklahoma. If the court finds that the land cannot be equitably partitioned, it may be sold and the proceeds divided among the respective owners. Any owner may buy the land at the price set by the commissioners of the court, but as the Indian owner seldom has the funds with which to purchase, the almost uniform result is that the land passes from his hands. In several instances discovered by the attorneys of the office of the Superintendent of the Five Civilized Tribes, it would appear that sales have been made when it was inconceivable that a partition in kind could not easily have been made.
If the restrictions on inherited land be continued as above suggested, much of the damage occasioned by this act will be removed. If it be necessary to separate the interests of the Indian heirs, a sale under the direction of the Indian Office according to existing regulations is more likely to secure a fair price for the land than is the sheriff's sale in the state partition proceedings. If the latter method of partition is retained, steps should be taken at once to provide that in all cases, where the restricted interests of Indians are affected, the proper probate attorney be notified and that he have full rights as an attorney of the court to represent the Indian interests in the litigation.
Leases. The provision of the 1908 act54, whereby any Indian of the Five Civilized Tribes may make a surface lease of his homestead lands for a period not to exceed one year and of his surplus lands for a period not to exceed five years, has undoubtedly led to great abuses. The misrepresentations to the unlettered Indians of the terms of the instruments they are signing and the grossly inadequate rentals paid demand immediate changes in the existing situations. Another unfortunate result of the present situation is that at times the Indians will frustrate unwittingly desired sales of their lands by leasing them without the knowledge of the government, after the latter has placed them on the market for sale at the Indian owner's request. Although a complete assumption by the government of the leasing of Indian landsnegotiation, execution, and collectionwould perhaps secure the greatest return to the owners, this would undoubtedly cause many delays, require a great increase in the present field force, and be a step backward in the task of training the Indian for economic competency. The more feasible proposition is that the Indian be allowed to negotiate leases of his land as formerly, but that the executed document be invalid without the approval of a duly authorized representative of the Indian Service. Also, no receipt for rent should be binding unless witnessed by an employee of the government. If leases for not more than one year were subject to the approval of the several field clerks, and only the longer-term leases submitted to the Muskogee office, there would be no appreciable delay in the handling of leases, and great savings would be secured for the Indians.
Probate of Estates of Minors and Incompetents. On account of several notorious cases, the administration of the estates of minors and incompetents by the probate courts of Oklahoma has received much unfavorable attention. There is reason to believe that, as in other phases of the relation of the State of Oklahoma to the Indians of the Five Tribes, a changed public sentiment is gradually bringing about improved conditions. Although the nominal administration of the estates of minor and incompetent Indians is in the state courts, it should be noted that where restricted lands or funds are involved, the ultimate authority over this property rests with the Indian Office. A considerable portion of the work of the probate attorneys has been the approval of the requests of guardians for the expenditures of funds within the control of the Department. Although the probate attorneys should pass on such questions as the allowance of guardian and attorney fees, and should see that the estates of this nature are administered according to the statutes of Oklahoma and the regulations of the Indian Office, there is no reason why the approval of ordinary expenditures for food, clothing, and other routine expenses should require the service of a man with legal training. It is work which could be done better and more cheaply by a social worker or even by a high-grade clerk.
If the ward has no property in respect to which the government has retained its trust title, then the estate is beyond federal jurisdiction, and no method is apparent by which the property thus once relinquished can be brought again under the national aegis. Although several probate attorneys have rendered good service, even in such cases, there is considerable question whether under the law their duties extend to these estates. It is recommended that, either by instructions from the Indian Office or by statute if necessary, the probate attorneys be directed to render service in all cases where the Indian wards, because of ignorance or lack of funds, are unable to secure proper legal advice, or where there is an appearance of fraud.
In many cases where no probate proceedings have been taken in the state court, the Superintendent of the Five Civilized Tribes is required to determine the distribution of restricted funds among the heirs. At present the evidence is secured by means of ex parte affidavits, a practice believed dangerous and reprehensible. The general provisions of law relating to the probate of Indian estates do not apply to the Five Civilized Tribes, but in cases where no proceedings have been had in the state courts of Oklahoma and action by the Office of Indian Affairs is necessary, it is urged that the determination of heirs be made in accordance with the regulations of the Indian Office applicable to Indians elsewhere. The probate attorneys would be well-suited to perform the duties of the inheritance examiners.
Continuation of Restrictions. The most important question affecting the Indians of the Five Civilized Tribes is the continuation of the restrictions upon their lands, which will expire April 25, 1931. Although on many phases of the subject opinion differs widely, practically everyone agrees that if the restrictions are not extended the Indians will speedily be deprived of their lands, in most instances for ridiculously inadequate considerations. Like most Indians elsewhere, the Indians of the Five Civilized Tribes have but little sense of values and will make almost any sacrifice of property for ready money. Congress should not be deluded into believing that anything else will result. In spite of the concurrence of opinion on this point, suggestions as to the proper course to be pursued are diverse. Although all but the most heartless agree that as to the older and the physically and mentally incapacitated the restrictions must be continued, many believe that the only salvation for the able-bodied Indian, who is not too old to make a start in life, is to release him and his property from government supervision and to let him run the risks of success or ruin in common with his fellow men. It is, however, the recommendation of the survey staff that the soundest and most humane solution is to extend the restrictions on all lands for a further period of ten or twenty years and to include therein the inherited lands as above suggested. The existing law and regulations are ample to release the lands in the individual cases where this course is best, and such a method is infinitely more efficient and exact than the so-called competency commissions employed in times past. The theory of the government has been that the Indian should be retained under government supervision and control until such time as he is rendered competent through education and by example to care for and preserve his patrimony. This time has not yet arrived with the greater part of the restricted Indians of the Five Civilized Tribes. The United States will be unfaithful to its trust if it surrenders to these people their lands and funds at a time when the only possible result will be a carnival of dissipation, fraud, and oppression.
The Pueblos Lands Board. Too great speed must not be expected in the settlement of the Pueblo land claims. The problems of settling thousands of conflicting claims in twenty different pueblos, under a statute uncertain and vague in meaning, cannot be accomplished in a moment. Each separate claim is, in effect, a separate suit. Records must be searched, deeds translated, witnesses interviewed, and sometimes extensive surveys made before an understanding of the separate claims can be gained. Steps are now being taken for the appeal of a case to the Supreme Court for a determination of some of the controverted questions of law arising in the interpretation and application of the Pueblo Land Act, a settlement of which will facilitate the work of the board. If all three members of the board had the health, time, and ability to do the persistent, grinding work that is now being done by one member in going directly to the Indian communities, there to interview the Indians, the claimants, and their witnesses, and to gather the evidence necessary for a proper determination of the conflicting claims, the whole matter could be concluded without delay and the disturbing controversies arising out of these claims made a matter of history. A consideration of this possibility is earnestly recommended.
Indian Tribal Claims Against the Government. The benevolent desire of the United States government to educate and civilize the Indian cannot be realized with a tribe which has any considerable unsatisfied bona fide claim against the government. The expectation of large awards making all members of the tribe wealthy, the disturbing influence of outside agitators seeking personal emoluments, and the conviction in the Indian mind that justice is being denied, renders extremely difficult any cooperation between the government and its Indian wards. Besides these practical considerations, the simple canons of justice and morality demand that no Indian tribe should be denied an opportunity to present for adjustment before an appropriate tribunal the rights which the tribe claims under recognized principles of law and government.
Since an Indian tribe is not a recognized legal entity and since, under the general laws, the statute of limitations is a bar to practically all tribal claims, no Indian tribe can commence a suit against the United States in the Court of Claims without first securing from Congress an act conferring on the Court of Claims special jurisdiction over the case. The necessity for such congressional action introduces political considerations into what should be solely a judicial question. Much depends upon the standing in Congress of the sponsors of the bill, upon the composition of the Committee on Indian Affairs, and upon the attitude of the administration. The present practice is for the Committee on Indian Affairs of the House or the Senate, as the case may be, to refer the bill to the Secretary of the Interior for report. Bills which hold possibilities of heavy payments from the treasury must also be submitted to the Bureau of the Budget, where they may receive an adverse report because in conflict with "the financial program of the President." Jurisdictional bills for the California Indians have within the space of six years twice received favorable and twice unfavorable reports from the Secretary of the Interior. The result is that before a jurisdictional act is finally secured, many years frequently must be consumed in agitation, propaganda, and lobbying. The expense of attorneys, representatives, and witnesses, and the disappointing delays, postponements, and defeats are burdens on Indian claimants, the imposition of which may well be questioned. A practice which requires a claimant to prove his case twice, once before Congress and once before the court, should not be accepted as inevitable without great effort to discover a substitute less burdensome and unjust.
As the jurisdictional act is the sole source of the jurisdiction of the Court of Claims' authority, the entire litigation depends upon the wording of the act. Certain features are indeed common to all the acts: authority to sue, disregard of the statutes of limitation, a time limit for filing suit, advancement of the case on the docket, access by claimant to all pertinent Government records, right of the government to plead set-offs and counter-claims, determination of attorney fees, and right of appeal to the Supreme Court. The principal difficulty is to determine the wording of the act which fixed the scope of the claims cognizable by the court. The court is at times limited to a single specific claim under a single specific treaty55; in other cases its jurisdiction may include the wide range of "amounts," if any, due said tribe from the United States under any treaties, agreements, or laws of Congress or for misappropriations of any funds or lands of said tribes or bands thereof or for failure of the United States to pay any money or other property due.56 The court invariably confines itself to claims of an equitable or legal nature57 and is loath to consider the jurisdictional act as creating a liability against the government.58 Although in the interpretation of treaties due regard is given to the inequality in power and understanding of the respective parties negotiating the agreement,59 the Indians' rights are measured by the words of the treaty or statute, and, unless clearly permitted by the words of the jurisdictional act, the court will not consider mere moral obligations arising out of circumstances preceding or accompanying the negotiation of the treaty.60 It is difficult to see why a particular group of Indians who have been treated with injustice by the government should have deductions made for gratuities already given them, when other Indians who have suffered no wrongs are permitted to keep their gratuities in full. Such, however, is frequently the case. The matter, however, is often left to the discretion and conscience of the court according to the facts in individual cases.
Within recent years the number of jurisdictional acts has greatly increased. Twenty tribes now have cases pending before the Court of Claims, and several more have secured the necessary legislation, but as yet have not commenced suit. Nevertheless, a number of Indian groups still remain, for whom no relief has been afforded. Although much may be said in favor of a general jurisdictional act, there is some danger that such an act would burden the court and the Department of Justice with too many ill-advised and unsubstantial suits, thus retarding action on more meritorious matters. It is recommended, therefore, that the Secretary of the Interior delegate to a special staff, expert in law and Indian affairs and not affiliated either with the government or with attorneys prosecuting Indian cases, the authority to investigate the remaining tribal claims and to report to him its recommendations in regard thereto, together with suggestions as to the proper jurisdictional bills to be drafted in the instances where suit seems proper. Such information would be invaluable to Congress in enabling it speedily and efficiently to dispose of this problem recurring in each session.
Not only is the permission of the government necessary before an Indian tribe may commence suit against the government, but also no contract that the tribe may make with an attorney to represent it either in the court or before Congress has any validity unless it is approved by the Secretary of the Interior.61 The position of the government as at once the Indian suitor's guardian and the adverse party to the suit is an anomalous one, but one that must be assumed if the Indians are to be protected against certain unscrupulous and designing attorneys. The prosecution of Indian tribal claims from the introduction of the jurisdictional bill in Congress to the final payment of the judgment is an extremely specialized proceeding. Ability to secure favorable action from Congress, knowledge of Indian history, familiarity with the records of the Interior Department and of the General Accounting Office, and experience in practice before the Court of Claims are qualifications possessed by but few. The result has been that the bulk of Indian litigation is handled by a comparatively small group of attorneys in Washington who either hold original powers of attorney from their Indian clients or else have an interest in the suit by way of assignment.
The task of the government in approving the contracts of Indian tribal attorneys is made more arduous by the difficulty of getting united action owing to the existence of factions among the Indians and Indian politics, which lead one group to insist on the selection of this attorney and another group to insist on the selection of the other, present a delicate situation which has to be handled with extreme care in order to avoid disastrous results. The Department must avoid the Scylla and Charybdis of incompetent representation of the Indians and undue dictation in the choice of legal representatives. To lay down any rules to govern the selection of tribal attorneys seems impossible. At times the Indians without governmental direction will be able to select competent help. At other times the submission by the Commissioner of Indian Affairs of a list of suitable attorneys from which the tribe may make a selection seems the best procedure; but to adopt this as a settled policy would in many instances be an arbitrary method of doing business and might give basis to the charge that a monopoly in Indian tribal business was being created.
Although the terms of the attorneys' contracts naturally vary with the individual case, certain general provisions are common. In the conduct of the case the attorneys are made subject to the supervision and direction of the Commissioner of Indian Affairs and the Secretary of the Interior, and they can make no compromise or other settlement of the case without the Secretary's approval. The contract may also be terminated by the Department for cause and upon due notice. Although naturally some objection has been raised to this unusual power, no evidence has been found that in actual practice the attorneys have been hindered in the conduct of the litigation.
A much more common complaint is directed to the provisions as to fees. The recovery of a fee is contingent on the success of the suit and is to be determined by the Court of Claims but is not to exceed 10 percent of the amount of recovery with a usual maximum of $25,000. The attorneys must also advance the costs of the suit, which are considerable on account of the printing of the pleadings and briefs; the long trips between Washington and the Indian country; and the necessity for voluminous depositions in many cases. As these advancements must be borne by the attorneys in case the suit is unsuccessful, tribal litigation naturally fails to attract the more successful attorneys who are in a position to choose or refuse the cases offered them. Where there are tribal funds, the expedient of reimbursing the attorneys, after departmental approval, for expenses incurred has much to commend it; and where no such funds exist, it is suggested that a congressional appropriation to cover expenses should be made. The $25,000 limit on the fee should be raised in some cases, for the difficulty of preparing the cases is great, and several years of effort are required before the matter is finally settled. This course is particularly desirable in view of the fact that the allowance of the fee in any case may be made subject to the control of the Court of Claims. In the recent Chippewa cases a yearly stipend is paid from the tribal fund, instead of the customary contingent fee. It is too early to judge how satisfactory this device will be.
The procedure of the Court of Claims is in many ways ideal for the handling of Indian cases. Within the time limit set by the jurisdictional act, the attorney for the plaintiff must open the case by filing the petition with the court. In many instances reminders have been sent from the Indian Office in confidential correspondence to attorneys that the time for filing suit has almost run, but in only one suit has the attorney failed to present the petition within the time fixed. Within forty days after the filing of the petition, the government must file its demurrer, plea, or answer. Ordinarily the Attorney General submits within a week a general traverse. Considering the fact that the government is as ignorant as is the attorney for the plaintiff of the exact status of the defendant's case, it is doubtful whether a more specific answer should be required.
Evidence in tribal cases against the government consists entirely of transcripts from the public records furnished by the various governmental departments, and of such oral testimony in the form of depositions as the parties wish to submit. As the testimony of aged Indians who were conversant with the circumstances surrounding transactions occurring many years ago is often extremely important in Indian cases, these cases should be determined as speedily as possible while the witnesses are still available. On motion of the plaintiff the court, by virtue of Section 164 of the Judicial Code, may request from the various departments and bureaus of the government transcripts of relevant documents and book entries in the case. Such motions are denied, however, when it appears that the defendant has already informally requested similar evidence for its own use.
The great delays in the cases are often due to the time consumed in preparation of the material by the various governmental bureaus, particularly in the General Accounting Office. One is inclined to consider this delay with charity, however, when the immense task of gathering and compiling the requested information is considered. Single reports from the General Accounting Office often comprise many volumes, the preparation of which requires an extended search through vouchers, warrants, receipts, and ledgers of long periods of past decades. In September, 1926, a division of the General Accounting Office comprising eighty-two employees was organized for the sole purpose of compiling data for Indian cases. Even with this large force, it is estimated that in some cases it will take several years to gather the necessary information. Whether the methods of this division could be improved upon and whether a larger force would be able to handle the records without interference and confusion, are questions which can be determined only by those expert in matters of accounting.
In the Indian Office, however, particularly in cases involving the Five Civilized Tribes, it is desirable that employees be detailed to furnish the material called for by the court and the Department of Justice and that these be uninterrupted in their task by the necessity of performing other routine duties of the Indian Office. On account of the recent increase in the number of Indian tribal cases, the Department of Justice should furnish more assistance to the attorney in charge of these cases in order that these cases may be promptly and thoroughly prepared.
As far as the pending cases at least are concerned, the only thing to do is to press them to a conclusion as rapidly as is consistent with proper consideration. Claims for which no method of settlement has as yet been provided should be considered by an expert group as above recommended, and where the determination of controverted questions of fact and law is necessary, submission to the Court of Claims with opportunity for appeal to the United States Supreme Court seems the best procedure. The Court of Claims is much less likely to be influenced by political considerations than are committees of Congress and executive commissions. It is doubtful, moreover, if the establishment of any other body would result in any considerable saving to the Indians or to the government in time and money, for in any event the evidence in the case would have to be prepared and the Indians represented by attorneys. The present delay is due not to the failure of the court to act promptly when a case is finally prepared and submitted to it, but to the inherent difficulties in gathering, digesting, and presenting the facts in these ancient, extensive, and involved controversies. The Indians, too, like other citizens, will be satisfied with nothing less than the opportunity of presenting before the regular courts of justice provided for the settlement of such controversies, the important cases which have such a close relation to their present and future welfare.