Law consolidation, revision, and codification

MISSING IMAGE

Material Information

Title:
Law consolidation, revision, and codification
Physical Description:
Book
Creator:
United States -- American Indian Policy Review Commission. -- Task Force Nine
Publisher:
U.S. Govt. Print. Off. ( Washington )
Publication Date:

Record Information

Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 22411621
System ID:
AA00022226:00002

Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Letter of transmittal
        Page iii
        Page iv
    Table of Contents
        Page v
        Page vi
        Page vii
        Page viii
        Page ix
        Page x
    Part I. Introduction
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
    Part II. Historical development of the Federal statutory and regulatory systems.
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
    Part III. Federal legislation and Indian policy
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
    Part IV. Proposed Congressional statement of findings and declaration of policy
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
    Part V. Major recommendations on revision of Title 25 of the United States code
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
        Page 95
        Page 96
        Page 97
        Page 98
        Page 99
        Page 100
        Page 101
        Page 102
        Page 103
        Page 104
        Page 105
        Page 106
        Page 107
        Page 108
        Page 109
        Page 110
        Page 111
        Page 112
        Page 113
        Page 114
        Page 115
        Page 116
        Page 117
        Page 118
        Page 119
        Page 120
        Page 121
        Page 122
        Page 123
        Page 124
        Page 125
        Page 126
        Page 127
        Page 128
        Page 129
        Page 130
        Page 131
        Page 132
        Page 133
        Page 134
        Page 135
        Page 136
        Page 137
        Page 138
        Page 139
        Page 140
        Page 141
        Page 142
        Page 143
        Page 144
        Page 145
        Page 146
        Page 147
        Page 148
        Page 149
        Page 150
        Page 151
        Page 152
        Page 153
        Page 154
    Part VI. Research memoranda supporting major recommendations on consolidation, revision and codification of Title 25
        Page 155
        Page 156
        Page 157
        Page 158
        Page 159
        Page 160
        Page 161
        Page 162
        Page 163
        Page 164
        Page 165
        Page 166
        Page 167
        Page 168
        Page 169
        Page 170
        Page 171
        Page 172
        Page 173
        Page 174
        Page 175
        Page 176
        Page 177
        Page 178
        Page 179
        Page 180
        Page 181
        Page 182
        Page 183
        Page 184
        Page 185
        Page 186
        Page 187
        Page 188
        Page 189
        Page 190
        Page 191
        Page 192
        Page 193
        Page 194
        Page 195
        Page 196
        Page 197
        Page 198
        Page 199
        Page 200
        Page 201
        Page 202
        Page 203
        Page 204
        Page 205
        Page 206
        Page 207
        Page 208
        Page 209
        Page 210
        Page 211
        Page 212
        Page 213
        Page 214
        Page 215
        Page 216
        Page 217
        Page 218
        Page 219
        Page 220
        Page 221
        Page 222
        Page 223
        Page 224
        Page 225
        Page 226
        Page 227
        Page 228
        Page 229
        Page 230
        Page 231
        Page 232
        Page 233
        Page 234
        Page 235
        Page 236
        Page 237
        Page 238
        Page 239
        Page 240
        Page 241
        Page 242
        Page 243
        Page 244
        Page 245
        Page 246
        Page 247
        Page 248
        Page 249
        Page 250
        Page 251
        Page 252
        Page 253
        Page 254
        Page 255
        Page 256
        Page 257
        Page 258
        Page 259
        Page 260
        Page 261
        Page 262
        Page 263
        Page 264
        Page 265
        Page 266
        Page 267
        Page 268
        Page 269
        Page 270
        Page 271
        Page 272
        Page 273
        Page 274
        Page 275
        Page 276
        Page 277
        Page 278
        Page 279
        Page 280
        Page 281
        Page 282
        Page 283
        Page 284
        Page 285
        Page 286
        Page 287
        Page 288
        Page 289
        Page 290
        Page 291
        Page 292
        Page 293
        Page 294
        Page 295
        Page 296
        Page 297
        Page 298
        Page 299
        Page 300
        Page 301
        Page 302
        Page 303
        Page 304
        Page 305
        Page 306
        Page 307
        Page 308
        Page 309
        Page 310
        Page 311
        Page 312
        Page 313
        Page 314
        Page 315
        Page 316
        Page 317
        Page 318
        Page 319
        Page 320
        Page 321
        Page 322
        Page 323
        Page 324
        Page 325
        Page 326
        Page 327
        Page 328
        Page 329
        Page 330
        Page 331
        Page 332
        Page 333
        Page 334
        Page 335
        Page 336
        Page 337
        Page 338
        Page 339
        Page 340
    Part VII. The Bureau of Indian affairs manual system
        Page 341
        Page 342
        Page 343
        Page 344
        Page 345
        Page 346
        Page 347
        Page 348
        Page 349
        Page 350
        Page 351
        Page 352
        Page 353
        Page 354
        Page 355
        Page 356
        Page 357
        Page 358
        Page 359
        Page 360
        Page 361
        Page 362
        Page 363
        Page 364
        Page 365
        Page 366
        Page 367
        Page 368
        Page 369
        Page 370
        Page 371
        Page 372
        Page 373
        Page 374
        Page 375
        Page 376
        Page 377
        Page 378
        Page 379
        Page 380
    Part VIII. Special recommendations on Oklahoma
        Page 381
        Page 382
        Page 383
        Page 384
        Page 385
        Page 386
    Back Cover
        Back Cover 1
        Back Cover 2
Full Text



. S 1 '.,: , ,,' I,
11 I .. l t tf,
"Itk 9
l
,4
l 1. , ,* ;; , "I. 1, ,11 -
-1, ,,, t 'li,, '" -, 0 t.,
i, t f ',4 4$ I 0 I ,,i, ,Ii
I, ,4 r' ,t, ,-
R ,, tt", I ,, 4 4 ", I AI, I
, 4"" tA i N',$ ,,I' t t, 1. 11
,, "'I e
I I I "", ) ;,o i,,-W I,, "t '' t
l v I f4 kl' # -
tt "' , 1,
, ,p *, t; 'i',I t "'At &74
I'll, , it -F,
C, 'I'' 't
't 14 'P'T Y
1"t, i, '14 I 1,, ., I'll", ,-L E
I ,
.. ,F ," ,,, ) '' L", l 1 ; 1!4 I 1
I ", ", "'t, "T I ,,'i vt k I '
V 14, I If ,, 't 't ,
,,, t I, It i 1 , I 1, ,I I , I 'W 1 I 1; ;ot t
.. I I I #I- -N, tr'll V',lr ,h, 1 1 It" 4 ,4 ,? 'I I I A 'I"14 ''!
1 1 1 1, , ""', 1, ,,, I llll , v 4 I
IT, ik?,.
Il t, I r I ,A, ,,, ,,, ,, t ,,. ,
*1 1* *11 l l ,tti , I ") I t , ,; I ", W *11
11 "'k T ,
- ,; -
1 ,, , -7 , t 'I, , t 11 1," *, j , : ,, ,, I , ,? ,, , ,
L 1 , 41, i, --,,,, ,,,, A 7 *, , I , i Rp , Vl, ,
Ot *, s, t , , I , t, , I ,, I ,t ,,,A 4 A ,
4 I , l ,,,
1 I I , 4 I 't , o, ,, ,,
1, I t,,rl I, ,,',,* ,',; ',: f 't ,) , ,t;,, ,,c Z , 11
I ,lI6,,, t 4 "* ""N ,,,,4,
, , I 'I L L "I
'T li i t't , I I ,e , ( ,, ,"N qt I t, ll - 1, .
-, ,,, 14 4# w '-', ; 4"', I ,A, t, t, r : ,
, , 4 't, t t (I I , I *i' " f, 4 I .
'I 4,, 1, L j , :t ,, ,#'4, T 17,11 I J l, I "Ill l
I j ,l l4 q I, W , "I ,I",,t -, "' 't 'q ,',4 -, ,
,, It,, I ti ,O t I , t "' ',' to 4 *,, ,, I ,l z i 11' i I I "I ,' 1 P I I i
,,, I VT4 I .1 t I , ,,I z 7 "', ,"', i I ; ,q -, 1,
-j , ,',47v -
I ''' I I I I I I , , 4 ., tl " t', -, !R ;- : , I ;r, I -, , , M
L; t ', I '1';)L, cj "'16 I 'I, , ,J A
i ,,,"[ I "'A 't ", I I rl- I*
1'0 ': ,; I I I I T"., t' j ",tv L -tj I ,4, ,t,4 "
I 11 I I ,
,-,,-,, , 1 t, [ , 1 -4 , ',, ""(% " L liil I i ,,,,,,,,,,,,,,,, "
, : 1 ,; " ,I ,,, "";, '' , tj tv I I


4 I I'll I I f1l"
. -1 L ,,O ' ,','. L L"' I' , i It 't ,' t t, I ,, ,,, ,' I '"', ' 't' "'tI, 14 f
1 I I ,, " tt , j
', V' ,,I IMv tt, _"", 'k LL I V 11, I ,
I I 1 1 4 , 11 U 41
11 , , ;,; Ly, "'t 1 A" I , "'; , "I I ,,*,, , ,
I I I I, ,,,
ll 1,' ,' %- "'; , I I "' 1,
: I , P " O ." t'l l 11, I ( I I 1,11, I I I "
I I" , 1', t .) "I ' "" t l I L,',' ,I ,,, , , , , 11 I I
', , , I I ,T ,I , I 8 vllll I til', I 4 ,111 I -X ", I
. I L I " "', I, 1, "Y ,, 'I ',j, - -- -,, , .
,,,, ", I t i t I ,,, I, , 4 1 , ,, I" '11, *., ,, "'r, A I
'I , I I 'i l It , tt", t', L""' "' ', 1, I 'I, 1, ".", ,(, t, I, I 'L ;" 'fYr j j$ ,,,, 1, , t "6 -i, '2 II, "I I
I , I , I I,' 't 7, 1 ,,,, 'i I, ,, -11: 1, -, ,,, I I f I I 11, I 1,
, -, , I I 111'r. *t, I , 1 I -t 41, j, I" I I I I , I I I 1 L 4, ,,,,',I "I 1 IA1,111
. 1, , I I I , , 4 'N' , ,I "', _, f, ,
t ?I, 11 L I Z I "' I , , t' I '. L, I 11 4- , 'I I I I
i,'* I 'I,
fl , t -I', t ,, ,* 't ', t
I , ,
,_ , ,- , I 1 ,,,t,4 P*, % ,, 1,11,,IIIIr -,,, t 4 kl -I 1;
,
IT", I I I i "'i 1 I 4 I i'l , l
1, I I , I 1, "' I It, : ,
fl, f , I'W '
4 I I -1 ", I , ,,, i, , , , t 1, I V ,
V , w '-",41o ,, t I 1; l ," I Va 1 ,
.. , , t, ,*, l ,; , -" , t 11
,,, '' I t 'I, I I , , , I L I l
11 r t- t I I I I t I 'Fft,, I "' - I 11, t
I I I :, , ", - 4h I
I I 'i' ,7, 1 IV I-,
", ; l I L el ,!"l , V I I 1, I I I _j 'lj' ' , , 11, IV I"T I?,,,
., .1 'I', I ""', I , I , I F I L , ,- I I l ,, o L' I f f 4 z, 'C W , ,' .", "
." 1, I I 1 L , ,' ' I tt I"' "' 4, 4 1 ,If ,;
, il I I 1, , , L, _'' I I I, I ,Lr ,,,,,, -1
. I i I It, I ; !, f ', j , , 1 I t i yt
,, '- L I L I ,I I e ,,, I'll, l A l 1 1'1* 11
'It, , , I I ,q, L , , I
L"' I 1 I 11 : I I' 1 I 1, ,,- : ,1 ", ,; , ,, , , , "t , ) '4 t i, l 11 I I i ,
I , I I t ,1 ll ,, ,, l t 1 ,

: I I i "I It ,14f t ,,,, ,,,, 1' v , " " qW i ,
I , 4 q 0
I 'f, I I 11 , ,,,, I ,, ; 'jI lt, , "j ,, % t,, 14 ;Qf,!L, I I
, 'I, I t I t, O % I ., , I t [ , I I "I
I... I , I I I I J Lt, " ,' , e, %t Lv v , tt t 4 , ", 1, y , I W ,
.. t I 1 "I I I I I I 11 ,;, I, I "I 11. ,
I I , ,, , : ", ,a I ?, ,*, 1", I t 1,,,- t;", t I I t 4 , fl, ,
'.' 1, , -', , 'I, "I I I I I , i , p , * , t'l , I
I I 11 I I I I I I I, L', ", I ,, x , , , t, " 'L '4 ' 1"!t
'. L I I I I I I I I I L, Z, I I l S 'I 11 I I
., L , ,,, , , ,,, li A
, I t , I I I I,,
, t , , ,, I 7 1, ,,- "Ill' , "t "" t,,t t, 5; t "I -
I I ., ,, t" , t , t I l t L I't : ,' Iq I'-
.: L I L I t ,
l t 1 : t , 1 'Z ,
11 I , I I I I It I f 'i 11 I I I t, l
: j , A 1: L , I ,4 "', 4 , I I *j L $, I , .
I I ( I I I I L I I I ' 1, , , I 11, I ,,, 4 ", ,T
I I I I I I I I L ' I ' ,-,,, t , ;,It, I i , ,, ,-, il J ,j
.. 1. , I I I I ll I , -, I I , , , , It ,
I I I I I 11 I I I I I 1, I *, , elt
:. I I I , 'I"I , q ,j '- , 4 I, ", ,, ,' # I ,
'. , I , , L 1
I , , , , "' *
t I , ' ' I I 4 I 4i h 1, -t ,
, I I L ', 1 ( ,, ,, , ,t , ,,, 0, I* ", t ,,,, t q, ,
. I I I I I I 'I I 11, I , , I I t, I [ It ; ,, i, 1 -, 1 l 't I ; Ij '. , , 0, t,
.1 . Il t ,, 1 2 , , I 1 , 1, ,t , , , 11 I ",
, 'L 'I" ','I , t , ilI *%I t
.. I ,, I I ,,, 1, 1, I" "
I I ' ' 'L : I L I I I 'I ,, I 'o ,-, , t 'L ,,j ,* , l , I I , -1 '; I t I I 'I', t , 1, 'l l, I I t, ,-.", I I - , I ( , i ,
i I I k I, t"'I, ") ',
't, I I I I , , !, Al'
1. I I I , ,', 1 'j r", ,, ,',I' ", O
I 'L tl I t ' ,, t "',
... , I ,, l L I., ,,,
. I I 1, t " t'L 't t I ,, t , ,, L I I I I '4,, ,I -il t, .
,. I I '' -1 $ I 4 '', , "t V4 ,, I, 11', "I
K,.', , 1, 1 l t 1 t , I 4 ", ,., ,;I -, ,
. 1 I t I , -, ,,,,4T t ,, I t ,, i" "'t', I I' ?"I ,,, ."
1: it "I I I I ... -1, I 1 4 ", ,, , ,,t , tl t ,
, I I I A C , , Tt; "", T q ,l , I I i v tt. 'll!, I , t I ,, , I , , lt-, , l I I i t t If l ,,,
:.. L , 1, I I I I. -,I,, ,, . I L t, i , , It ', , L , , , f" r ", '14 , z .
't I I I , I t I I . , I I I , I. I I 1, I , '4'1" , ';'t L "tt,
7t " J, 1 -, , I 4,
". _4 , L , , , , ,- I 1. "i , I , , q , , , it I .
.. 11, I I , t I , , "I , ,,, III 1, ,, -, , '- , , ,, , ,
:. , , , , I W I I , V ,*,
, I I ... I , :11, I I I I I I i I I ,, t, ,I -, L ,, tt I f""' I ,4 ,- ,
. I :. I .1. "I , I ., I L ,' ' ' '" : ,,, I I L It +I I , ,,, , 'k ", .- I : I t 11 I : ""' ' ' I I ""' I :, ', ' , I, I , , ', , , L , .
I , L I I I I I ,, , , I t I 4 L*, - 4 f ,,,? : ., I , "I I , I
"" :. !, ". I I L I , I -1, t 't, 1, I t , I
: . Z. : I I ,L , , L, 'I I ,; X ,,, 4 ,' 1, I ': 1, 4 , $ ,, lz,
., m I : ,. : . .1 I I : I I -, , I't [ t I , L t t ,, ,, 3 1
: I I , .. I I I . : I , , ,,, t" A 1 ,,I 1, , , I'71
'. . 1. Ii . ,,, ? ,,
., I I t tg k 1
... I I I , ,,, , , I , ,, tl , '- 4" I I It I ,, I , .. ... I I I I I ,t, 4 I 't I I rt
:: :, :: ".; j. 4 .. . .. ? I ;, I L 1 E n i .
., I t , I "I I t4 A -, , 4 , .
: I ,,, I .. .. .. .1 I , ", I I -,' u 'U ,, ; 'I t A ."I
Ilk I .. I I : ., ,:. '. .:', ; L, .. -?: ,,, I I I I I I I 1 1 1 1 L I I I I, o .
I I , .. I I , 11 F I I , I I t oI , ; +, , , ?q
I .. 1. . j I I I I ,,[-, I I
. ... .. l , 1. 1. I . "I I.. , , I t I , I i, - " V , Y,, ,L P "
:1 I , ,. I I I ., I ,' ,, I I ; I t I I I 11 e '-, g I 1, 1. I , , i I I 11 I I 1,
1, I , I .1 . I ,. . , 1 , ,,,
I '. 4 . , 't ,
. , , .. .. 1. le . I I I I ,, I I l I I I , 'L' I I I 1, 11 L, I I I I i, , ) I 11 , Y 1*3KI t
. . . .. ': :i . ., ,. - ., : J, '. '. j 'L I 11 I I 1 ,$, 1 , 1, , , 11 "t, "I , 1 , I I I I il I
, I . 1 ,. t L , I , t, ,%',
I'V '. '': i 1 :'', I I , 1- 1 I' V 'I, l I I A ,,, I" , .
.. I., ; I I , I '' 1 1 I I,,, I 1, t l ,"
I. . , 1, 1 j ,, I 1; tI , ,, T'
-1. 11: -1 v I - 1% 11 t- t' ', '' I I I I ''-,,' I .
11 I I . .. . L -
;. I : . I :. . I I I , , , , 1, I I !,, t I l .1 : I t I I L 1 I IiI, I ,'-,
.. . L ,
I I .
I I I
1. . I , I, '- ,: : I ., I I ', -1 't , , I I 11 , ,4
.: L I I -' 7- , I : I I I I I I v t , "I 'I, , . , !
'.. ., - . ,; :. : -j I , f , ,
I , t I w I .
I e : ., . : .., I i , , I I .1 I t , "' ,-
e- 1 I I ; , . I 11 I I ,t t I , I& I ,
I . I . I .
:. , .., . , 11: ll . .. .. .. I I I I I I , I I I 1, I I 1 , I I, , , it, o
. '. , I .. / . : . I , k I I I I'V I I I 1, " ,,,,, , t
I, . I . . :. , ,, : I . I l I I I ,I t 't I I. I " I, 111 I I 1, , I. , I ,,,
.. I "' , , ".
._::. . I - , ,I , k L
.11, .. I ; . . . 1 ,. I , , I .. ,. , I : , t, , I , , I I I I I i-
; .,.: 1" I , , I ...
z: a, , . , L I.., .", L , I I 't, ,,,
'111. "I z . , tl : , , It
.. . I I . .. k ;: : , , I , , L' I , ,-, ,, v* ,
, -, , .11, .; j 11 . ., I I ., I I I , I , I
. % I P 1, 1, I 'I , J, T I,, 4 ,
.1. e I :., .k I I I V ., I I I , I I, , f, 'i , , , , I 't, ,,,
.: .: , .. : I I , I F I I
4, 'w Fl : .. I I : I I I I I I j , I I
. I I . ,e k : : .. .. , : , . '. ,, l t , I r I I 1, ,
... : I I. , ,t I
.,, ,' . :. : ,,
'r ., , : . I " , L I , , I 1
.. . '. . . ;:. . . . , .,.,. . , . ' I I ,I , t I .
.. I , . . ,,,,, ,: :" ,
., I i :. .. , i I ': .., . ,' I T 11 I I ', J, ,,N
1, .. ". , . . ., , t , ,- 11 .1 1 4m ,
,: : ll I , I I ,L t t, L, 'I I I 11 11 ", ?I I w . I ., 1, I I -tl I , T, -, I" I 1 1$ f, I ,*
7 1 : . .:", I 4 't .. I . ,.;,; , , , I , I I ,,, l I I- - I I I " C I
I . . I I A .: ;t v : I . .l I 1, I E
.. . : I ., ::,. .... I I I I 1 , I I I , , t

.. . I A I I I I ,, 4 ,
I I I , I I I I I ,,, j .... "II: .: 1. I , , ,
..., , I .1.1 I I I I I I , l ', "s "
, . ., .. .. .1 ., I , I I I I I L , ,',- ,
.4 . . : '. :. I I I ,* , "';t tt
.. I : I '. .. . .. ... 1 13 11 .; ) .. I I : I I I I I L" I 1, I I 1 t , I ,
.. 1. : t I f I ,,, , , ; t 'J "t I ;,
, . ,. I., I : , I L I 1, I 11 1 , t , 1,4" ,' I ,
, ..; 1: '. e' I I i ,, . : i I I I ,,, 4 t
1. ... .. : . . I j , I L l t I I i , I I ,,, I ,
- , 'A, ,* jv
It Il' j , ,,
: I I , L 4 1 *, ,
. I .r I i: , I I t , I L I I I 11 , I i ,, 't ,I I *t ,
:4 . :",:,: , .. li ... I .. 1, I I I t t, ,I ,, t I ."
lk : I . . I I 11 I I I'l- L P , , I I Il t I It , ,, " ,
I % : ; ': : , ,:. : . , , I I I I I I ,t, I 2
; . , I I .. I 1. , .. : . '.. I I L I I ," L ', I ' ' t t ' :; 'I '' ,, I I m. . I I I I I , q I t I
... .l
'. .. ., I L , ,I , 't
.l I .. .. t
: ,,, . i .. 1 I , I . . : , ' I I L ' ' -1, I I I "I' I , , 1, I 11 e
-, I I I , ., .. , I L , 1, I 1 I I I I 1, "I'
t. ; I i I . _" I I L' 1, I It , I , ,,, t t 'T , . I I "I' ,
I I , I . ... . I , , , ,
,

I ..... .... . .v 4, , . I I , I I I ) , I -, I , I , I I I f, I 4 I t, t,
I : , I I *, I L ' ,,
1, I . : % . .. I I I T I I -, I I I " f I ,,, t ,
i .1 .:.:,. .. , . , , I I I I I I 1 il
I I I I ,
:, , , I ,I- I 1, '. I I I I I
, I I :. I , , I ,- , P l I I 11
, ,
. I . : :, : , 1: : , ,r , t , , I l " L I, , I I , tt , 'I , ", , f I I ,
I i ,. : I I :. I , , I I l , I I ,
,,I .1, : .1 1. : I I I I , 1, O I , ,t, ,I,
t , m : . : L I ,,, l L , L 11 I t
e , ... I I -- ,, " ,
, . I I '4 -
I ' L I I I I I ,
t, I 1, I I % I ,
-, I . I t I I Y I I 1, 'I', I I t/ , t
. I, I .. .1 , I I I : I 4. 11 t , I, I I I I , , I I , '.. :, , :, "' I I I : I t I L 'I* T, , ", 'T 't;,
1. I . ,.. .. I . I ,:.: I ; 'i 11 I I i I, I I Y 'I , ,,, .,, ,. i , , , ,
. I I . .:., L I I I I I t I ,I I 1, I I I I I I 11 , ,
, .: .. .. . .. r ., '. , I I s , I t I I ,4 t I ,
I I I I , ,, ,-', , :- 1
.. .. .. J- I I 't t:
1. '. '. ... .. .1 .. I I I +t I f I ?
1: I , T I ,-i :. ,,, .1 , 1:
t, I ., I . y e A) , . ._: I , t I , I I I I I L I , I , , ,,, t I I , , ,
, . % .. . , , . . I 'I, '-
I , ,. I t I 1 't , I .t, -
... I I i .: .: ..,. . ,; ,
"I L 1%, :: : : : . ., I, , ,. . I I I I I I t , , +,, I I t I I I I , 'k ,
", :. ,. I L I I I t I I I 1,
%, : .. , l : : '.,' 1, : '.. I I , I % I L' I I I I I 1, t ? ,
P I [ I I I I I I
,-, . . I I I 4 t I I I , 'i L : I : . .1 I , ,-, I
. , .. . I , I L I ", t ...
'L." ., F. .; -. .., : : , t o , , , "' A 11 I I , I ;s",
. : i, i , I I I I I I 1, .,
: I
k T. : '. . ] : , ., : !, . '.
,::; . , I I I I ,,l t ,- 41
:, .,.: : I . I t, 11 ,I I , ,,, , I,- I, :, , t -, 11 4 ,
,. , I ., .. ., .1 I . . I .. . : . : . :1 I I , I I : I I I , t -, I I 1, '. % I , . I L I I I I It' I I I , ,
. . . . ... .1 -, I , t I I 'i , I I
: .. .: ., :e : ': : '. 'L I I" I I I I I I I ., I , I I I I I ',I I I I ,4t I I , i -, ,
% . : I ; .. .
, , I
. . 1. ..lk .: .. . I 4 , I", I I I I L "Ir I I * , ", ,
:, '. I I I ', I *,* t i ,
: I 6 1 .. I ,. , ..: ,.' I .,.;.,: : 1. I I , I 1 I I I , 'j , I *, ': .. : : '... : ' ; .:: ', :-II I 1, I t, I I 10 ,,, 11 l I
; .: I . :. . ,. . , I I I I L I k ,, I , t ,
, 't : : : ; t t
11 : .... .: I I I I I I
;: , : : .: : %,
I I I . ... . I % . I I I I 11 I F -V, Iv
.1 .1 .1j.., - 1. .1 . I I I I I I t 1, I , , , I I ,,, ; :. , t ,I J 1, t, I
l . I I I I 1, " , ,
., 7 : I :. I IO 11 I I , t t , , -
.:, : I . . , .. I I 1 I t I I
.1, . ?P 11 ; I ".I.I'l '. .. I I I j I , I I t I t ,,, I
1. . .. I I I I I I ,I L I L I I I 1,'i .. I I . , : : ,, N I I , , i 11 I I t I , t I ", , $1
., , ." I ,... :: , J!, I I L I I I ,
'? , .1 v 'r r - I .1 J" , I I I I , I" ; , I , I l I
. I : r I I , 1, : I , I I I I I , , ,;,, , ,,, I It
. ,. I . , ., . .,e . ;. I I I 'I I I 1 , I , , , " , ,, t I 1 1 t" ",.. . . : 1. : , . ..,. : 1. I I I , I I I I I ', ,'i ,, ; I I ... "
.: : '. : :: : I : :. I .. I I . I I I I 'L 11 I I I ,V , , ,
: I ..,: ., I I i t I tt t:,
., :1 V, I I l t i ,,
;, I I I I I I,
.. I I .. . . I I ; : I I I I I i t I I I , '' t i
: e, : , : : .- v I , . L ', I I I ,, 11 I", : ,I, IN I I '
I . I. I ,,, ,, t I , , , v .. , I I , j, tl ,, , I I ", ,,, "
: : . I I , I , -, *1 V- t , "I ,, 4 ,I ,,,, ... .1 I :i r, : I I I t I I I , j t : ,;,i ,
:: I I I I '. .1 I : : .. I I I , I I I 11 I I I I , i I I, I , , ,' t ,, I I , ,,, *' , I j
I . .. I I I I I , , , I , I it j
:. . . I I I. I I I I I : L ' " I t ,, L', i;, tt ,,, v
1. : ; % I I O , I I I L I I 1, 1, t , 11
;, I . . , 1, L '. ", I
. I ., 1, I ", , , I , t , I I ,,I ,, ,, t ;,!"", i , .T
I .1 I .. . I I . : . A 'L I I , I , ,, ,,, L ,, I t , , I
;, : : . I. : 4 I , I, 1 I 2 1 ,'l 4 'L *11*
: . . , .:. 1. ; : q . I I, ,,, , , I , , , 1, I I, , 1. ; : , I I I I I I I I I I I 1, I I I f I L J "'t ,_ r, tq I I
: , i : - . I 1. I I I I I I I I , I I I , , ,,,, I I , 41 L " 4 , *' *Iti r I , I I 1, V*A ti .
', I I 1: ,
: : . .. ,. ., I I i I I. ; .. I , I I t I
1. : ,- I I I L I L' ' , 1 'L "f "' 0 4 A 1 1 T, ,4t ,,, tc , I t
. _; I I L t L ) , -I ,, I $., 1 I I ,I -1 I
"t, . L l t I I , :, *t, , "t, "s, I .,
.1 4 , :, : I ,' L ' , L' ' I f t' ,4, 'I. I I 11 I I , , , 1, -1
I , , I t , , j I I A I , I I , I I 1, , ,, t "I "'I'l t t t 4T 4"
,j ,. : , I I ; , I I "', 41 ", IL ', t 'J ' f- 1, 'i I, I I
, I t , I I , ", I , , , , I I I q , t I ,% t " I , ,
.. : .. - I , I I I ,,, I t, , t t 'I I 1, ,
.1 .. I I I , , , I , , I , ,i ,,,. v 1 ,: , 'I' 1,
,; '. : 1, 1 , It , t ,, , 1, , L I i : t , , I
't , I 1 1 t L , ,
I ,,I 1 -t4
I I t I , I I , i, I I ) I t 1, I "', "I j4 1',lit"' f '4 :
; : i 1. 1, I 11 L I I ,
, I , ,
"I 1, I I I I I I ;- 'I, 't , 1 " 0 Jl 1, , I
I I il + I It , , ,
. : : e, I i I , I I I t , , L : I I I I I I I , , I 't I , I , 1, t, I A I I,, ,4, t t 'i ,e 4 'ti. , I , I I
;. : I i L ,, 1 ,I 'I t I L ,,,, " , , , I t I , , I ",, I I I t t , , II I , ) , , , j , 161, ,,;,, I. " I , I i,: , I I ,L 't , ', I I I I j ,
:, 11 : , .. I 11 I ; , .L , I , I i, ,,, ) , ,I; t , , , I , 1 ,,, , I ,
.. I I , 1 4
, I , : , , ,iIi 1-, , , ,
i : L I I , A , , I 11 , L I
,, I I , I, I I I I 't 1: E v I : : I I I I I I t 1, tt I 1,
.: ': : ,, I I I I , I "' t I I I 1 I ;I t ,I % I twIi ,* I
I .. I I I I I t I I I I 1, ,,, , I I , I I
11 l 'I 1 I 1, I I , 1 'I ,,,, -'l i'l , I
,a,, , , I f ,;, -, " , t,
. I t , 't 4'
; , I ,. : I.- i ", I I L I L' I I , 4, , I , I ,,, " , I i , 2, 'l, % ,,! ,
;; I '.. I, I I , " , I I I I 11 I I ,, I, I tt I I I I f ,,. I s ,41 , "'O" ,
. I .1 ,
. I 1 4 ,% I ,,", ,t
I I I I I , , I ,6 I "!lo ;i, , , I'll
., I I ,, ii, V N $ 1
I , I, I , I V m ,,, 1 I ,*,'i I I, lti-*
-. , I I l I I I I I I I 1 I I ,? , t I
.: ; : . ,: , I 11 I I t'l f I t, I I , I , , I t I , *tll t 11 l I I I I I I I 1, , t, , I , , ..
, , I , I I , , q I , 4 I, ,,t it m !,
. I ; :. I I t I L I , I I 'I I I ", I , , T I 1$1 11 I I t, 4, " It, I 4 'L t I, I I , g ,',, itt 1, , V '1 1, I
I.. . I 0 I I I "' t ,,, I I , , I i I I I I t j I I I I "
I J I I I ,,, , I 11 I I 'I 1, I ,' , A v i"", t ,, ,,4 I
I I I I I , " I ', L j, , I '
I. 1, , I I I I ,-,, 't 'I ,, ,, :, 1, 'l , "t, , v+ , q ,
I ,, I I , f I L* t, f ;" ,* *








[COMMITTEE PRINT]


AMERICAN INDIAN POLICY

REVIEW COMMISSION





FINAL REPORT


TAsK FORCE No.


LAW CONSOLIDATION, REVISION,

AND CODIFICATION


Task Force Members:
PETER S. TAYLOR, Chair'nan
YVONNE KNIGhtT, Member
F. BROWNING PIPESTEI, MAember
Task Force Specialist:
KARL A. FUNKE
Special Counsel:
Jo01N D. Ross II


Legal Interns :
EDWARD V. FAGAN
JOHN SAXON
CAROLINE DOWNEY
AUDIE CROSS
DOMINIQUE PASSERA-HAUPERT
WAYNE WHITEFACE
JOHN RUBY


83-755


Consultants:
ROBERT S. PELCYGER
JOSEPH BRECHER


Support Staff :
EMMI SHIPMAN


Printed for the use of the
American Indian Policy Review Commission


U.S. GOVERNMENT PRINTING OFFICE


WASHINGTON : 1976


For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 Price $3.45





































AMERICAN INDIAN POLICY REVIEW COMMISSION
Senator JAMES ABOUREZK, South Dakota, Chairman
Congressman LLOYD MEEDS, Washington, Vice Chairman


Senator LEE METCALF, Montana JOHN BORBRIDGE, Tlingit-Haida
Senator MARK HATFIELD, Oregon LOUIS R. BRUCE, Mohawk-Sioux
Congressman SIDNEY R. YATES, Illinois ADA DEER, Menominee
Congressman SAM STEIGER, Arizona ADOLPH DIAL, Lumbee
JAKE WHITECROW, Quapaw-Seneca-Cayuga
ERNEST L. STEVENS, Oneida, Executive Director
KIRKE KICKINGBIRD, Klowa, General Counsel
MAX I. RICHTMAN, Professional Staff Member


(11)












LETTER OF TRANSMITTAL


AM ER ICAN INDIAN POLICY REVIEW CoxnIISSIOx,
CONGRESS OF THE1D UNITED STATES,
Ta8lington, D.C., September 1976.
AMERICAN INDIAN POLICY REVIEW CONI-lSSION,
CONGRESS OF THE UNITED STATES,
Washington, D.C.
HONORABLE CO3MISSIONERS : The Task Force on Consolidation, Re-
vision and Codification of Fiederal Indian Law herewith presents its
Final Report to the Commission pursuant to the requirements of Pub-
lic Law 93-580.
Since 1873, there have been only two efforts at codification of Federal
Indian law; one in 1917, which provided minimal griudance in the
compilation of Title 25 of the 17nited States Code in 1926: and one
in 1930, which provided minimal clean-up when the Indian Reorgani-
zation Act of 1934 was enacted. These efforts are discussed and docu-
mented in Part II of this Report. We believe the work of this Task
Force constitutes a very signficant first step toward revision and
codification of Title 25.
This Report contains numerous recommendations. most of which
are grounded in existing law or recently declared Cong'ressional police.
The great bulk of our recommendations relate to r-epeal of obsolete
laws, consolidation of redundant provisions into single provisions to
streamline the Code, or amendment of existing prorisionS to make
them conform to more recently enacted legislation.
The major revisions of existing law which we propo e relate to:
(1) Adoption of a conprelwnsivc Conffres<.ional Findini and Decla-
ration of Policy. (Part IV of Report)
(2) Adoption of statutorily enacted riles of construction to o'overn
interpretation of Federal law. (Part V. Chapter 1 of Report)
(3) Revision of the laws relatincr to Federal administration to con-
form to the 19150 Reorcranizatiop Plan No. 3 adopted )y Cono're ,
the Executive in that year: and implementation and enforcement of
the employment and contractinit" preference laws in the 192-1. Indian
R,,eorcanization Act and thle 197) Self-Detemination and Eduo.tion
Assistanuce Act. (Part V. ChlaDter 2, of the Report)
(4) Pevision of the laws relating to land use. acquisition. and pro-
tection so as to give substance to the declared Congressional purpose
of r)roteeting the Indian land base. (Part V, Chapter 3. of the Report)
(5) Revision of the ].aws relating to the deposit and investment of
Indian monies to eliminate the presently confusing array of provisions
,end to compel Executive compliance with the purpose declared by
Congress in 1938 when the, last of these laws was enacted. (Part V,
Chanter 6, and Part VI, Chapter 6 of the Report)
(6) Amendment of the Federal Internal Revenue Code to compel
the Internal Revenue Service to conform to 200 years of judicial deci-
sions and Congressional enactments recognizing Indian tribes as gov-




-~ p -


ernmental bodies within the American body politic, and compelling
them also to shape the Federal tax laws toward individual Indians in
a manner consistent with the Federal trust responsibility. (Part V,
Chapter 5, and Part VI, Chapter 5 of the Report)
(7) Repeal of Federal laws authorizing state taxation of Indian
mineral resources and adoption of a Federal policy toward state taxa-
tion within reservation boundaries which will foster the economic in-
dependence of Indian tribes. (Part V, Chapter 5, and Part VI, Chap-
ter 5 of the Report)
(8) Adoption of statutory provisions to authorize award of attor-
ney fees to Indian litigants in cases in which the Federal government
has either failed to exercise its responsibility to represent Indian inter-
ests or tribes have been compelled to hire independent counsel due to
potential conflicts of interest with the United States, and the Indian
litigant is successful in his claims. (Part V, Chapter 9, and Part VI,
Chapter 9 of the Report)
(9) Amendent of the 1968 Civil Rights Act to clarify its scope and
application to Indian tribes and give maximum recognition to the
sovereign rights of the Indian people to self-government within Indian
country while at the same time retaining the basic protections afforded
by that Act. (Part V, Chapter 9 of the Repoit)
(10) Complete overhaul of the BIA Manual with publication and
distribution of this and other legal materials covered by the 1968 Civil
Rights Act to Indian tribes and organizations. (Part V, Chapter 9,
and Part VII of the Report)
Title 25 is now packed with statutory provisions which are either
superceded by subsequent legislation, obsolete by virtue of the passage
of time, redundant to prior legislation, or in total conflict with present
policies relating to the administration of Indian affairs.
Due to the volume and complexity of this Report, each Task Force
member has not had an opportunity to review all of the specifics of
each recommendation. However, the, basic thrust and policy direction
has evolved through numerous meetings of the Task Force and repre-
seats the consensus of all.
We strongly urge that Concgress take suelh steps as are necessary to
carry this work forward to conclusion. To accomplish this result, we
recommend that Congress establish a special body to carry forward this
codification process. We recommend that this body should be headed
and staffed with Indian attorneys-peoplewho will have an apprecia-
tion of the legislation they are drafting and who will have an interest
born of the fact that they and their people are the ones who will be
most dliretly affected by what they draft. The work of this body
should b~e conducted through a process of consultation with the Indian
people. Sufficient time and funds should be allocated for this process,
as well as for employment of such consultants as may be needed.
Respectfully yours,
PETER S. TAYLoR,
ChIairmnan
YVONNE KNIGHT,
Member
F. BroWNING PIPESTEM,
Member
KARL A. FUNKE,
Specialist













CONTENTS



TASK FORCE NO. 9 FINAL REPORT
VOLUME ONE
Page
I. Introduction---2
II. Historical Development of the Federal Statutory and Regulatory
Systems---------------------------11
A. Statutes-at-Large and U.S. Code-....- 13
B. Code of Federal Regulations-15
III. Federal Legislation and Indian Policy--17
A. Federal Primacy and Protection of Indians-iS
B. Westward Removal and Reservation Consolidation- ----------iS
C. Assimilation and Federal Regulation-- -S
D. Restoration of Tribal Government-----------------------20
E. Termination----21
F. Federal Domestic Assistance Programs-21
G. Revitalization of Political and Economic Base of Tribes 22
IV. Proposed Congressional Statement of Findings and Dechration of
Policies----------------------------------------------------25
A. Introduction------------------------------------------27
B. Proposed Congressional Statement of Findings and Declara-
tion of Policy----------------------------.......-28
C. Commenatry-31
1. Sources of Federal Authority--31
2. Permanency of Tribes ---37
3. Sources of Tribal Authority -------------------- 39
4. Reaffirmation of Trust Commitment- -- 41
5. Removal and Assimilation Policies as Causes of
Economic Deprivation and Jurisdictional Con-
flict- -42
6. Reaffirmation of IRA Commitments4--------------43
7. Repudiation of Termination and Restoration of
Federal Recognition--------------------------43
8. Reaffirmation of Policies of Recent Legislation- 44
9. Recognition of Unrecognized Tribes-44
10. Urban Indians and Delivery of Services4-----------46
V. Major Recommendations on Revision of Title 25 of the United States
Code_ --49
Introduction-Explanation of Proposed Code Arrangement---------51
Chapter 1. Basic Principles of the Federal Trust Responsibility to
Indian Tribes---53
A. Congressional Findings and Declaration of Policy----------56
B. Reaffirmation of Indian Treaties and Agreements- -57
C. General Construction Statute---61
1. A Rule of Construction Requiring Explicit Abroga-
tion or Modification of Rights Reserved or
Granted by Federal Treaties, Agreements,
Statutes, and Executive Orders-62
2. A Rule of Construction for Interpreting the Nature
and Extent of Rights Reserved or Granted by
Federal Treaties, Agreements, Statutes, and
Executive Orders-- -70
3. A Rule of Construction Requiring that Indian
Tribes and Tribal Governments be Recognized
as Independent Units of Government for Pur-
poses of Eligibility Under Federal Domestic As-
sistance Programs-----------------------------74









4. Rules of Construction Governing the Applicability
of Federal Regulatory Statutes to Indian Tribal Page
Governments and Tribal Property-----------6
Sec. (1) Statutes aimed at Regulation of
Criminal Activity_-------------------------77
(a) General Criminal Laws Applicable
Nationally-----------------------77
(b) Statutes Applicable to Indian Country 78
(c) Statutes Transferring Jurisdiction to
States ---------------------------81
Sec (2) Statutes Regulating Non-Criminal
Activity within Federal Enclaves------------82
Sec. (3) Statutes Regulating Industrial Safety
and Business Activities---------------------84
Sec. (4) Statutes Regulating Management of
Federal Properties and Federal Development
Programs------- 88
Sec. (5) Statutes Regulating Procedures and
Practices of the Federal Government -------94
5. A Rule of Construction Recognizing the Con-
tinuance for Jurisdictional Purposes of the Origi-
nal Boundaries of an Indian Reservation Absent
an Express Congressional Intention to Dissolve
or to Diminish Such Boundaries ----------------96
6. A Rule of Construction Reaffirming that Indian
Tribes Possess All Inherent Attributes of Internal
Sovereignty Unless Explicitly Terminated or
Modified by Federal Treaties, Agreements, or
Statutes---98
D. Criteria for Federal Recognition of Indian Tribes- 100
E. Scope and Exercise of Inherent Powers of Tribal Self-Govern-
ment---102
Chapter 2. Federal Administration--103
A. Clarification of Executive Discretion under 25 U.S.C. 2
and 9--------------------------------------------104
B. Findings and Recommendations Regarding Indian Em-
ployment Preference---------------------------------106
1. The Inapplicability of Civil Service Laws Under
Indian Preference-- -106
2. The Procedural Invalidity of the Current BIA and
IIlS Preference guidelines Re: Non-Compliance
with the Administrative Procedure Act-----------108
3. The Definition of Indian for Purposes of Preference- 109
4. The Need to Repeal the Pre-IRA Employment
Statutes and Amend Section 18 of the IRA-------112
5. The Applicability of Indian Preference to the Indian
Arts and Crafts Board-113
6. The Applicability of Indian Preference to Programs
Transferred Out of the BIA or Which are Indian
Service Type Programs Within Interior and
Other Agencies--------------------------------114
7. The Failure of the Indian Health Service to Im-
plement Indian Preference----------------------115
8. BIA Personnel Management of Indian Preference__ 117
C. Findings and Recommendations Regarding Federal-
Indian Contracting Preference------------------------121
1. Applicability of the Indian Self-Determination and
Education Assistance Act to All Federal Agencies. 121
D. Federal Administration of Indian Affairs: The Impact of
Reorganization Plan No. 3 of 1950---------------------123






VII


Chapter 3. Lands: Acquisition, Consolidation, Management and Page
Disposition------------------------------------------------125
A. Land Acquisition--------------------------------------126
B. Land Transfers and Consolidation------------------------126
C. Land Inheritance-------------------------------------127
D. Land Mortgages---------------------------------------127
E. Rights-of-Way Over Lands------------------------------128
F. Condemnation of Lands---------------------------------128
G. Leasing of Lands for Farming, Grazing, and General
Purposes-------------------------------------------129
H. Lands in Irrigation Districts---129
Chapter 4. Natural Resources---------------------------------131
Chapter 5. Economic Development---133
A. Findings and Recommendations Regarding Federal Tax-
ation of Indians-------------------------------------134
1. Federal Taxation of Indian Tribes and the Tax Status
of Indian Tribal Governments under Federal Tax
Laws---134
2. Federal Taxation of Individual Indians-------------136
B. Findings and Recommendations Regarding State Taxation
of Indians------ 139
1. State Taxation of Indians on Reservations----------139
2. State Taxation of Non-Indians on Reservations---- 140
3. State Taxation of Indians Off Reservation.-142
Chapter 6. Funds-Deposit and Investment of Indian Monies --- 143
Chapter 7. Descent and Distribution ----------------------------145
Chapter S. Serxices-------------------------------------------147
Chapter 9. Jurisdiction and Procedure--------------------------149
Chapter 10. Miscellaneous------------------------------------153
VI. Research Memoranda Supporting Major Recommendations on
Consolidation, Revision and Codification of Title 25 -------------155
List of Memoranda in this Part---------------------------------157
Chapter 1. Current Application of the Indian Reorganization Act
to Tribes that Voted to Reject the Act ------------------------159
Chapter 2. Federal Administration------------------------------163
A. Federal Administration of Indian Affairs; the Impact of
Reorganization Plan No. 3 of 1950------------------------163
B. Analysis and Recommendations Regarding Indian Em-
ployment Preference----------------------------------185
Subpart 1. Analysis regarding the Inapplicability of
Civil Service Law in Indian EmI)loyment Preference- 185
Subpart 2. The current BIA and ILS Preference
guideliness are not in Compliance with the Adminis-
trative Procedure Act and are therefore Procedurally
Invalid-----------------------------------------194
Subpart 3. The Definition of Indian for Purposes of
Preference--------------------------------------195
Subpart 4. Failure to Repeal the Pre-I.R.A. Employ-
ment Preference Statutes and Amend Section 18 of
the I.R.A. may result in Inconsistent Preference
Standards---------------------------------------202
Subpart 5. The Question of the Application of Indian
Preference to the Indian Arts and Crafts Board -- 204
Subpart 6. Analysis and Recommendations Regarding
the Applicability of Preference to Programs Trans-
ferred out of the B.I.A. or which are Indian Service
type programs within the Department of the Interior
and other Agencies------------------------------205
Subpart 7. Analysis and Recommendations Concerning
the Failure of the Indian Health Service to Imple-
ment Indian Preference--------------------------213
C. Analysis and Recommendations Regarding Federal-Indian
Contracting Preference. (Supports Part V, Chapter 2,
Sec. C.)--------------------------------------------221
Subpart 1. Applicability of the Indian Self-Determina-
tion and Education Assistance Act to all Federal
Agencies----------------------------------------221






VIII


Chapter 3. Leasing of Indian Trust Lands for Farming, Grazing and Page
General Purposes (Supports Part V, Chapter 3, See. G) ---------231
Chapter 4. Natural Resources----------------------------------239
A. Consolidation and Revision of Statutory Authority for
Leasing of Indian Lands for Mining Purposes. (Supports
Part V, Chapter 4)2-----------------------------------239
B. Consolidation and Revision of Statutory Authority Relating
to Timber Resources on Indian Lands. (Supports Part V,
Chapter 4)-----------------------------------------247
Chapter 5. Economic Development--251
A. Federal Taxation of Indians and Indian Tribes, and the
Proposed Indian Tribal Government Tax Status Act.
(Supports PartV, Chapter 5, Sec. A)-251
Subpart 1. Federal Taxation of Individual Indians- 251
Subpart 2. Federal Taxation of Indian Tribes--- - -- 255
Subpart 3. Federal Taxation of Individuals in Relation
to Tribal Govern2Went-....-257
List of Authorities-259
Addendum-Case Briefs, Revenue Rulings, Sum-
mary of Provisions 6f I.R.S. Code--------------261
Exhibits_-270
B. State Taxation of Indians, Indian Tribes, and Non-Indians
on Indian Reservations. (Supports Part V, Chapter 5,
Sec. B.)-286
Subpart 1. State Taxation of Indians and Indian Tribes
on Reservations-286
Subpart 2. State Taxation of Non-Indians on Reser-
vations-----------------------------------------291
Subpart 3. State Taxation of Indians and Indian Tribes
Off Reservation-- -- -295
List of Authorities and Case Briefs-- -297
Chapter 6. Financial Management of Indian Funds by the Bureau
of Indian Affairs.
(Supports Part V, Chapter 6)--------------------------------303
Exhibits to Financial Management paper ---------------------312
Chapter 7. Descent and Distribution-No Back Up Papers.
Chapter 8. Jurisdiction and Procedure-No Back Up Papers.
Chapter 9. Attorney's Fees in Indian Litigation. (Supports Part V,
Chapter 9)-323
Exhibits to Attorney Fee Paper--334
Attorney's Fees in Indian Litigation-Supplement I (Supports
PartV, Chapter 9)-337
Chapter 10. Miscellaneous-No Back Up Papers-------------------339
VII. The Bureau of Indian Affairs Manual System----------------------341
Overview--343
Supporting Documents and Memorandum:
I. Letters Requesting a Complete Copy of Indian Af-
fairs Manual/Bureau of Indian Affairs Manual
and Responses--------------------------------348
II. Checklists for BIA Manuals (From BIA Division of
Management Research and Evaluation) ----------349
III. List of Titles, Supplements and Sections Missing
from AIPRC Copy of IM/BIAM-355
IV. Titles and Supplements Completed or Scheduled for
Completion as per Information Contained in
BIAM--355
V. "Official" BIAM Table of Contents (BIAM Release
0-7, 10/16/75).-357
VI. Synopsis of All Available BIAM Titles and Supple-
ments---------------------------------------358
VII. Examination of Title 82 IAM/BIAM (BIA Reloca-
tion Policy)-374
VIII. Examination of Title 80 BIAM with Model Format
for Title Review_-376
VIII. Special Recommendations on Oklahoma-------------------------383









VOLUME TWO
APPENDICES
Page
I. 'Master Charts-----------------------------------------1
This is a section by section analysis of Title 25 U.S.
Code with notation of our recommendations for repeal,
amendment, consolidation, etc., and indication of our
classification of these sections into the Revised Code.
Charts based on proposed revised Part and Chapter
breakdown will be submitted at a later date.
II. Exhibits--------------------------------------------147
List of Exhibits cited in Report is located at front of
Appendix II (Exhibits attached to back up papers in
Part VI are not included).
III. Cross Reference Tables---497
Supplies cross references between CFR provisions
and U.S. Code and Statutes-at-Large.
IV. Distribution Tables-635
Supplies information as to placement of Statutes-at-
Large in U.S. Code.
V. Subject Matter Breakdown of Title 25-763
VI. Correspondence--995




I





























PART I

INTRODUCTION
















PArr I. INTRODUCTION


Task Force No. 9, the Task Force on Consolidation, Revision and
Codification of Indian Law. was formally established on August 18,
1975, pursuant to P.L. 93-580 (93rd Congress, S.J. Res. 133. Janu-
ary 2, 1975) along with ten other task forces, eight of which are de-
scribed in Sec. 4 (a) of the enabling legislation. Because of the breadth
of the descriptive title given this Task Force, our first problem was to
define the limits of our statutory- charge.
As with all of the task forces, the original conception of our scope
of work and plan of operations has been subject to amendment and al-
teration as our work proceeded. For the most part, however, the work
of this Task Force has remained within the limits of the objectives
described in our original Scope of Work and Plan of Operations sub-
mitted to the Commission at the beginning of our work effort, i.e., a
studv of the "permanent and general" laws of the United States which
relate specifically to Indians, particularly Title 25 of the U.S. Code, to
develop a format for consolidation, revision, and codification of those
laws. The principal changes which have occurred have been in deleting
certain second and third pmioritvp rojects and expanding our area of
comment and critique as our knowledge in certain subject areas ( rew.
In the course of our work our nietlodolo'y -proo'resed fmm p;ir'
academic research to active seeking of Indian input through direct let-
ters of invitation for comment sent to all tribal chairman and to all
att-orneyS listed bythe BIA a- representing Indian tribes; comuinli'a-
tions -ith tribal p an'ers: direct communication with personnel in
federal a enemies: site visits to tr)es in Kns and Oklao : coner-
enee with inter-tribal orcrap-iations in Michian and Wiseonsin: and
participation in formal joint task force hearings in Oklahoma and
Roc,:ville, Maryland.
The res on:e to oir nmil out letters inviting comment wa.s leFs than
hoped for ult 2ore tbcn m iht have been feared. The replies received
raIged in content from complaints retrardin'or single issues to detailed
recm,1enations for revision of the entire Title 2.. of the United
States Code.'
Through our re 1iar Ii and our involvement in the lhearin" process,
we ave become aware of many varmius and complex is.ne relating to
the delivery of services to the Indian community through the multi-
tirle of federal agencies now offering Indian programs. The record of
thes azenpies in coordinating with each other for the delivery of serv-
ices or in working directly with the tribes for delivery of services to
Indian people is not good.
We find problems in matters relatin' to economic development which
are direetlv traceable to lack of coordination between the Bureau of
Indian Affairs, Economic Development Branch., the Economic Devel-
opment Administration and the Office of Minority Business Enter-
1 Copies of all correspondence received in reply to mir invitation for comment are in-
eluded in Appendix VI, at II: 995.
(3











prises in the Department of Commerce, and the Small Busi-
ness Administration.-01 We find problems relating to housing de-
velopment and the delivery of sanitary water and other facilities which
are traceable to lack of coordination between the Bureau of Indian
Affairs, Housing Improvement Program, the Indian Health Service in
the Department of Health, Education, and Welfare and the Indian
housing programs in the Department of Housing and Urban
Development.?
We find problems relating to funding mechanisms wherein funds
earmarked for tribes are channeled through state agencies, sometimes
resulting in a state "'skim off" for costs of administering the money and
prejudicial delays in releasing the monies to the tribes. This criticism
relates principally to monies channeled through the Law Enforcement
Assistance Administration in the Department of Justice.4 It may well
apply also to HUD 701 Planning Grants which are also funded
through state agencies.
We find problems relating to federal delivery systems which require
tribes to form state corporations as a condition precedent to receipt of
federal grant monies, and sets arbitrary limits on the population base
which must be served before a tribe may qualify as a "prime sponsor."
This criticism relates principally to grants under the Comprehensive
Employment Training Act administered by the Department of Labor.5
We find problems in the Indian Health Service relating to an admin-
istratively determined three year cutoff of funds for development of

2 Discussion with Mr. Joe Vasquez, Director, Indian Division, Office of Minority Business
Enterprise,.4 Department of Commerce on March 25, 1976. A detailed report on the lack
oi coor(Ination between the Departments of Agriculture, Commerce, Interior and the
Small Business Administration was prepared by the Comptroller General of the United
States and submitted to Congress on June 25, 1975. The report is titled "Improving Fed-
erally Assisted Business Deve,)pnment on Indian Reservations."
As an example of the problems encountered in Indian development programs, the Task
Forep notes the denial of loan eligibility to Indian corporations by the Small Business
Administration despite their prior agreement with the Bureau of Indian Affairs pledging
their zood faith efforts at cooperaton. See copy of memorandum- agreement taken from
the PIA MIanual and copy of letter of denial to Sioux Tribe of Fort Peck, dated Apr. 30, 1975,
attached in Vol. IIL Appendix II, Part I, page 157.
3 Transcript of hearings Oklahoma City, Oklahoma, May 10, 1976. testimony of Mrs.
Cecelia Blanchard. Chairperson for Kickapoo Tribe of Oklahoma, and Mr. Bob White,
Secretary for said tribe. pgs. 51-63, 66-70. Transcript of hearings Rockville., Md.,
June 17, 1976. Mr. John Tilson, Acting Director, Office of Environmental Health, Depart-
ment of hEW. T-,. 12O0-12,. 139-J45, 180-190.
Mr. Tilson refers to a three party agreement entered into between the Dept. of HUD,
the IHlS ind the BIA. (P'. 131 Transcript). This agreement is set forth in the Indian
UIoising Hiandlook recently issued by the Department of HUD.
4 The Task Force lacks documentation for this statement. The Task Force knows for
a fact that within recent years something in the area of $1 million of LEAA grant money
earmarked for tribes in Montana was held up by the state for an extended period of
time on the g-r inds that the state would be held responsible if the tribes spent the money
Irresponsibly. Since the state had no direct jurisdiction over the tribes, it refused to
release the funds to the tribe.
Z The compulsion of smaller tribes to oin with each other to reach the necessary
primee sponsor" service strength of 1.000. and the requirement that they incorporate
under state law, did not appear to pose any significant problems for the Sac and Fox
Tribe of Oklahoma. Transcript of hearings, Oklahoma City, Okla., May 11, 1976, Mr.
Bob White. Secretary pp. 77. 78, 97-101.
However, a very different story is presented for the four tribes in Kansas served by the
Horton, Kansas Agency: Prairie Band of Pottawatomie, Kickapoos of Kansas, the Sac
& Fo- of Kansas, ard the Iowa tribes. See Horton Agency Task Force Report, pp. 14, 15,
attached hereto as Exhibit 2. In addition, the Task Force is aware of a recent instance in
which a smaller tribe without a service population sufficient to qualify as "prime
sponsor" supported a larger tribe in their application for a CETA contract on tbe assump-
tion that a portion of the contract would be subcontracted to them. Upon finalization of
the contract to the larger tribe it appeared that no subcontract would be offered the
smaller tribe.










Indian community health service programs which causes these tribally
sponsored programs to wither and die.6
We find problems in the Department of Health, Education and Wel-
fare in coordination between the Indian Health Service, the Office of
Civil Rights and the Office of Social and Rehabilitation Services in
protection of Indian rights in conjunction with delivery of health
servIlces to Indians by state authorities under programs financed either
by state or federal funds.- We find problems in the allocation formula
for revenue sharing for tribes under the Revenue Sharing Act of 1972.s
We find problems with the Indian population statistics as developed
by the Bureau of Census and the unwarranted reliance placed upon
those figures by the Bureau of Indian Affairs and most other programs
and revenue sharing agencies in allocation of funds for services. con-
tracts and grants to Indian tribes.9 We find problems with the Internal
Revenue Service in the Department of Treasury which refuses to view
Indian tribes as legitimate units of local government for Federal tax
pmposes,I and even considers taxatiolo )t Id1onies granted to tribes by

Transcript of hearings. Rockviile, Md. March 23. 1976, Dr. Lionel De Montgny,
Director of Division Inan Comimuniity Development. Injlian Health Services, Dept. of
I ,EW. pgs. 71-77. Transcript of hearing Mu:skogee. Oklahoma, May 13. 1976. Chief Edwin
Sanyan, Seminole Nation of Oklahoma, and President of Oklahoma Indian Health Advisory
Board. pp. 19;-197. Transcript of hearings Oklahoma City, Oklahoma, May 10, 197, M)-
ilitke HIibbard. Tribal Planner, United Tribes uf Kansas and Nebraska, pp. 146, 147,
15>-160.
Transcript of hearings 1ockvilte. Md., March 23. 197G. Dr. Emery A. Johnson, Director,
Indian Health Service, Dept. of HEW, I,p. 1t6-173 ; Dr. Lionel De Montgny, Director.
Dii, in of Indian Com1n(1ity 1elop, I nt, Inian i aith Services. IaS. t,'5 nd
Transcript f Ilearin~.'s fk1if i la. Md.. JTn 17. 1.76, Mr. Warren Cardwell. Director,
Divio fion of lnograii ForIlaon, Indian ttealth Service, and Mr.! ,i(1 Mitchell of
that office, Mr. i)avit Leenan. Office of the General Counse, Civil Rights Division, I ept.
HEW. Mr. Robert Logan..Iedicl Servi fes. Adinistration, Social and Rehabilitation
Services, Dept. of HEW, pp. 19-114. I addlitioni to this 11timony. the hearings in Oklahoma
May 10-14 developed numerous izstances of gross denial of medical services by the states
of Oklahoma and Kansas to Indian people.
A opv of the three partx aireeiTt betveen 1.11.S.. O.C.R. and S.R.S. dated Decei-
hr 17. 1974 isath o t port ;i Exhibit.i:,. I! I.
.Act of October 20. 1972, Stat. 919. Uner the allocation formula for Indian tribes
orth ~in Title I, Subtitle A, Section Ws8tb)(4) of this Act, tribes lerive their share
of federal nfunsnthuds allocated to the cunty within whih the tribe is
he !ted. In addinctn.u1, ection 12:;(a) funds allocated to a tribe
under this formula may only be spent within the county o sidlered in the allocation.
The formula itself results in uiequal and i neqitale location of funds and the
spending restriction to "the county area" is illo~ :.l in the context of tribal governNingihi
Ill,1stra ;)Ie this are r)Icent ig resi which show a Ier caiita alloci tion 1 the Navajo
ti be covering 10 (oite n r i. aeLrea ranugingz from S 10.7 ( ~Apache C'onity.
Arnizona) to $84.70 lti Ar riua Co n n '. N cw M e: ic ), and a sIiimila rly i1 1, a !~a1 i a
i,. the. Cherokee Nation ci vering a 12 county area in Oklahoma ranging from $11.01
XW ishl ngton County* to) ,- ... ) iTulsa Co)unty '. Th. se fi~aures are derived from conversa-
tions with Mr. JTohn I uncan. Assistant Minority Counsel to the House Gove rument
{ peraztiens Committe e and Mr. IBen iamin Bowdlteh of Georgetown, Mass., a private
cotlnltrant to the Congres eni ;evislon .it this Act.
Reference material f r a thoroturh s' y of this sub ieet is '~nu ruliec tion on general
revenue -.harlng: recently issued by the National Scdince I" ,nndat ion, particularly volumes
three and live IIocunient reference nos. N NSF RAS 75048~ and 75070).
O Transcript of testimony Oklahoma City. Oklahoma May 10. 1976. Mrs. Cecelia
IVlnehard. Chairperson, Mr'. Bob White, Secretary, Kickapoo Tribe of Oklahoma. pgs.
76-g7" May 11, 1976, Mr. Newt Lamar, Chairman of the Wichita Tribe, pg. 374. Tran-
script of testimony Muskogee, Oklahoma. May 13. 1976, Chief Ross Swimmer, Principal
Chief, Cherokee Nation, pgs. 97-102: Transcript of testimony Muskogee. Oklahoma.t
.May 14, 1976. Ed Mouss, Executive Director Creek Nation, pgs. 77, 93-98, 110-114.
Chief Overton Janzes, Governor of Chickasaw Tribe. pgs. 25-28.
10 See Task Force backup paper on Federal Taxation, Part VI of this Report. In
July 1975 ILR. 8989 was introduced in the House of Representatives and in November
19 735 2664 was introduced in the Senate. These hills are (e:silCnel ,to a mend the Fe,!eral
Tax laws to accord tribes some of the tax advantages enjoyed by other units of local
government. Similar legislation had previously been resisted by the Internal Revenue
Service. By letter dated Aug. 1!9, 1976 from Mr. Charles M. Walker of the Dept. of Treasury
to Congressman Al Uflman, Chairman of the Committee on Ways and Means, the Depart-
ment expressed a reluctant willingness to allow these measures to become law. The
Department did recommend restrictive modifications to the bills which, in the view of
this Task Force, are petty obstructionist. A copy of this letter is attached to the backup
paper on Federal Taxation, pages 284-285.











other Federal agencies under the new Indian Self-Determination and
Education Assistance Act presumably on the theory again that Indian
tribes are not legitimate governmental units."
We find serious problems in the Department of Justice with failure
of the Federal Bureau of Investigation and the Criminal Division to
coordinate and cooperate with the Bureau of Indian Affairs, Law En-
forcement and Judicial Prevention Branch in law enforcement of
major crimes violations in Indian country.12 We find serious problems
in the Department of Justice, Solicitor General's Office in the failure
to actively prosecute litigation involving significant points of law on
behalf of Indians despite requests from the Department of the In-
terior.'3 We find the Department of Justice actively seeking to with-
draw from an agreement entered into with the White House and the
Department of the Interior on February 28, 1972 to file bifurcated
briefs in cases in which conflicts arise between Indian interests and the

11 See Task Force backup paper on Federal Taxation. The concept of imposing federal
taxation on federal monies channeled to tribes to help strengthen their governments
must surely stand as a monument to bureaucratic ineptitude. See 270-255.
12 See letter of Commissioner Morris Thompson to Jonathan Rose. Associate Deputy
Attorney General Department of Justice dated March 28, 1975. The Department of
Justice has steadfastly refused to permit Bureau of Indian Affairs police and criminal
investigators to refer cases under the Major Crimes Act (18 U.S.C. 1153) to local U.S.
Attorneys for prosecution despite the clear and continuing evidence of delays and repeti-
tion In investigation caused by the required F.B.I. intervention. Many of these BIA
criminal investigators have graduated from the F.B.I. training academy or have trained
at the Department of Treasury in the same courses offered U.S. Park Police and U.S.
Treasury Agents. The intransigence of the Department of Justice on this point is simply
inexplicable. It must be noted that any investigations of this matter will reflect that the
support of the Secretary of the Interior over the past three or four years has been
considerably less than half hearted. See Exhibit 4, to this Part I.
13 The Task Force knows of at least five recent cases in which the Department of
.Tustice ha- refused to file amicus briefs in support of tribal positions, even after requests
from the Department of the Interior to do so, or has refused to note an appeal or seek
certiorari from decisions below that were adverse to the Indian interests. The non-action
of the Department of Justice documented in this footnote must be read in conjunction
with footnote 14 documenting Justice's resistance to affirmative advocacy of Indian
lee "1 issues.
In U.S. v. Oklahoma, Civ. No. 72-493 (W.D. Okla.. 1975 (Unreported)) the Department
of Justice refused to note an appeal from a decision adverse to Indian interests in the
matter of state taxation of trust estates, even though it originally brought the action
at the request of the Department of the Interior in order to gain judicial clarification of
z prior ruling in U.S. v. Mason, 412 U.S. 391 (1973). Through the simple expedient
of refusing Interior's request that an appeal be noted the Dept. of Justice succeeded!
in allowing the last word on an important tax issue to be spoken by a trial judge at the
17S. District Court level. See discussion in State Taxation back up paper, Part VI of
this Report.
In Omaha Tribe v. Peters, 385 F. Supp. 421 (D. Nebr., 1974), aff'd, 516 F. 2d 133
(Sth Cir., 1975). another tax decision adverse to Indian interests, the Dept. of Justice
refused Interior's request that Justice support a Petition for a Writ of Certiorari to be
filed with the Supreme Court. This clearly was not a spurious issue of law, for immediately
following the decision in Bryon v. Itasco County, Minn., 96 S. Ct. 2102 (1976), the Supreme
Court granted certiorari in the Omaha case (6/28/76). vacated the decision of the Sth
Circuit Court of Appeals, which in turn remantded the case (7/19/1976) to the U.S.
District Court with instructions to enter a summary judgment in favor of the tribe.
See discussion in State Taxation b..kui paper. Part VI of this Report.
In Narottee v. Montour, Case No. 75-1092 (7th Cir., 1975) the Department of Justice
rof'ised Interior's request for federal intervention in that action to support a position
favoring jurisdiction of the Menominee Tribe vis-a-vis P.L. 83-280. The case was mooted
(-t wbon the State of Wisconsin retroceded whatever jurisdiction it may have had
muder that statute.
In Olphant v. Rchlie, No. 74-2154 (9th Cir.. decided Aug.. 1976) the Department of
.Tstiee refused the request of Interior to file a brief in the 9th Circuit in support of the
h*!iquamish tribe even though the U.S. Attorney at the trial level had supported the tribe.
The case was decided in favor of the tribe in August. 1976.
Finally in Wakefield v. Little Light, A. 2d (Md. Ct.App., Nov. 13. 1975)
the Department of Justice refused the request of Interior that it file an amicus brief in
the Court of Appeals of Maryland in support of the continuing jurisdiction of a tribal
'olrt over a minor Indian child who had been placed in the hands of the non-Indian
litizants under a temporary custody order of that tribal court. Despite the non-intervention
by Justice, the Maryland court ruled in favor of continued tribal court jurisdiction.


F








7


interests of other federal agencies.14 We find problems in the Depart-
ment of Justice, F.B.I.-with failure to respond and investigate substan-

tive allegations of deprivation of civil rights of Indians by state andI
local law enforcement officials 15 or in reacting to a law enforcement
problem on an Indian reservation in a way which is nothing short of
imposition of undeclared martial law.16

14 See letter of Feb. 28, 1972 from John Mitchell, Attorney General, Department of
Justice to John D. Ehrlichman, Assistant to the President for Domestic Affairs. the
White House; and letter of May 19, 1972 from Erwin H. Griswold, Solicitor General
attached to this report as Exhibit 5. See also letter of Charles E. Trimble, Executive
Director, National Congress of American Indians to Gerald R. Ford, President dated
August 30, 1976, attached as Exhibit protesting the attempt of the Department of Justice
to renounce this agreement. See II: 180-185.
There have been at least six cases in which the Department of the Interior has exer-
cised its option to have a bifurcated brief filed. Four of these cases have been disposed
of; two are still pending. In each of the decided cases the Department of Justice either
actively argued the side of the opposing federal agency or made known in the brief that
was filed its disagreement with the position advanced by the Department of the Interior.
In each of the four decided cases the court found in favor of the Indian position.
The position of Interior was thus sustained over that of the Department of Justice in
Stevens v. Comm'r, 452 F. 2d 741 (9th Cir., 1971) and U.S. v. Critzer, 498 F. 2d 1160
(4th Cir., 1974) both involving conflicts with the Internal Revenue Service, Dept. of
Treasury. In Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) the Dept.
of Justice opposed granting of a writ of certiorari while Interior supported the request.
The writ was granted. And in Northern Cheyenne Tribe v. Hollowbreast, 44 U.S. Law
Week 4655 75-145, decided May 19, 1976, the Dept. of Justice pointedly refused to take
a position in the amicus curiae brief filed with the Supreme Court. The position of Interior
supporting the tribe was sustained.
The two pending cases in which the Department of Justice has filed a divided brief
in accordance with the White House agreement of Feb. 28, 1972, involve disputes between
Indian tribes and Interior on the one hand and the Corps of Engineers on the other.
See Confederated Tribes of Urnatitla v. U.S., U.S.D.C. Oregon, Civ. No. 74-991, and
U.S. v. 210.43 Acres, 8th Cir., No.
Thus in the face of this demonstrated need and demonstrated record of victories. we
find the Dept. of Justice actively seeking to abrogate its agreement of February 28, 1972.
Why ?
'5Transcript of hearings Oklahoma City, Oklahoma M Nay 11, 1970, Ms. Frances Wise.
Mrs. Roberta Black, and Ms. Viola Hatch. pp. 444-507 regarding the death of Larry
Black, Jr., a 16 year old boy, in a jail cell in Waton,:a, Oklahoma. Numerous requests
for an F.B.I. investigation into the incident by Mr. and Mrs. Black and by Dr. Aaron
Dry of the Bureau of Indian Affairs, Anadarko Area Office. have apparently been ignored.
On July 7, 1976 Chairman James Abourezk and Vice-Chairman Lloyd Mes of this
Commission sent Attorney General Edward H. Levi a lengthy and detailed letter requesting
a report on this case and requesting a response stating the Department's "guidelines"
regarding investigations and reports on similar cases. A copy of the letter to Attrney
General Levi and the Attorney General's response is attached to this report as Exhibit 6.
A more widely publicized incident which exemplifies the questionable investigatory
procedures employed by the F.B.I. concerns the events surrounding the death of Anna
Mae Aquash, a Native American from Nova Scotia found murdered on a ranch near
Wanblee, South Dakota (on the Pine Ridge Reservation) on February 24. l97f,. Both
the BIA police and F.B.I. agents examined and photographed the body. After removal
of both hands at the wrists to obtain fingerprints the body was autopsyed and a conclusion
was reached by pathologist W. 0. Brown that the cause of death was expi:,iire. The
body was buried on March 2, 1976 as unidentified, although the F.B.I. subseqi ently
admitted that one agent who had personal contact with Ms. Aquash in the past assisted
in the photo:raphin.
On March 3, 1976 positive identification through fingerprints was made. Ms. Aquash's
family was notified and an independent autopsy was requested by them. The hody was
exhumed and autopsyed on March 11. A .-,2 caliber bullet wound was found in the back
of the head. X-rays located the projectile behind the left eye.
The questionable handling of all aspects of this case snurred many diverse persons
and entities to request an investiation of the F.B.I,'s role by the Department of Justice.
Th- Canadian government. Ms. Aquash's family, Senator James Abourezk. the American
Indian Movement, the U.S. Commission on Civil Fights. (See Exhibit 7) and Senator
Philip A. Hart (see Exhibit 8) are among those asking for an explanation of the F.B.I.'s
actions in this case. As of the date of this report, all inquiries have not been satisfactorily
answered. II: 192, 195.
16 See report of Willam F. M7uldrow, U.S. Commission on Civil Rights, dited July 9,
1975, (hereinafter Muidrow Report) on F.B.I. presence at Pine Ridge Reservation.
(Exhibit 9.) II: 196. The F.B.I. responded to the deaths on June 26. 1975 of two of its
agents with "100 to 200 combat-clad F.B.I. agents. BIA policemen. SWAT teams, armored
cars. helicopters, fixed wing aircraft, and tracking dogs." 'Muldrow Report at 1.'
This F.B.I. contingent, fortified by the "trappings and armaments of a modern -irmy."
conducted numerous searches and questioned and arrested many residents, apparently
without regard for due process of law. Muldrow Report at 3.
According to Mr. Muldrow. "(t)he F.B.I. is conducting a full-scale military operation
on the reservation. Their presence there has created deep resentment on the part of
many of the reservation residents who do not feel that such a procedure would be
tolerated in any non-Indian community in the United States. They point out that little
has been done to solve the numerous murders on the reservation, but when two white men
are killed, 'troops' are brought in from all over the country at a cost of hundreds of
thousands of dollars." Muldrow Report at 3.
83-755---77-2









We find all of these problems, but we, as a Task Force with limited
time and resources, cannot deal with them. We are unable to examine
these problems in the detail necessary to formulate recommendations.
Our charge is a limited one. Our charge is the examination of Federal
Indian Law for purposes of "consolidation, revision and codification."
Our charge, as limited by our own Scope of Work and Plan of Opera-
tions, and indeed as limited by the exigencies of time and manpower,
is the review of Title 25 of the United States Code.
In light of the statutory charge given the Task Force-to consolidate,
revise, and codify Federal Indian laws-we have examined Title 25
of the United States Code, provisions affecting Indians that are found
in other Titles of the Code, and relevant uncodified laws contained in
the United States Statutes at Large. Due to the volume and complexity
of these materials, our primary analysis was addressed to Title 25. Our
proposals set forth in Part V of this Report do however include some
recomnimendations regarding statutes outside of that Title.
Our primary recommendation with regard to Title 25 calls for re-
codification thereof in accord with our suggested realignment and sub-
stantive revisions of the provisions contained therein. As a matter of
structure, we propose initially a new Part and Chapter breakdown for
a recodified Title 25. This approach is intended to organize that Title
into a more orderly and logical framework than presently is found
thierein. M11ore significantly, our recommended realign ent is designed
to emphasize a structural framework for Title 25 that -s consonant
with the prevailing federal policies of Indian cultural, economic and
political self-deter mination.
In addition to this schematic rearrangenient of the present Title 25,
we have also made extensive recommendations regarding repeal and
amendment of various seCtions therein. We further have proposed the
addition of new provisions based on well established judicial precedent
to be codified in that Title. These substantive recolnnendations have
been premised upon the following goals: (1) to eliminate provisions
that are obsolete either due to the passage of time or the enactment
of subsequent legislation: (2) to consolidate provisions that are re-
dundant or that should as a matter of lo-ic and coherence be merged;
(3) to repeal provisions that reflect past federal policies totally incon-
sistent with the current Congressional coininitment to Indian self-
determination; (4) to amend provisions where feasible to accord with
this present federal commitment: and (5) to add new provisions based
on judicial precedent or demonstrated need that will facilitate imple-
inentation of that commitment.
In seeking to achieve these goals. we have examined all provisions
now found in Title 2 in considerable detail. Our theoretical framework
for both reali nment and substantive revisions of that Title has been
the "Congressional Findings and Declaration of Policy" set forth in
Part IV of our Report. Attached as Appendix I to this Report is a
Chart w1-hich lists: (1) all provisions of general applicability contained
in Title 25: ('2) our proposed placement of those provisions within the
recommended structural realignment of that Title; (3) our proposals,
along with brief commentary, regarding retention, deletion, repeal,
consolidation or amendment of each provision; and (4) cross-refer-
ences to other relevant provisions of the realigned Title. Although this








chart is placed in the Appendices to this Report, it is the key to our rec-
ommendations for Code revision and should be treated as a central
part of this Report.
In conjunction with our proposals contained in Part V of this Re-
port, reference must be made to Part VI containing major "back-up"
papers on the subjects of consoliation and revision on laws pertaining
to Federal Administration, Mineral Leasing, General Leasing, Timber,
Deposit and Investment of Indian Moneys, Federal and State Taxa-
tion, and Attorney Fees in Indian Litigation. These papers, in conjunc-
tion with Part I and V and the charts in Appendix I constitute the
heart of our proposals on consolidation, revision and codification of
Title 25 of the United States Code.
In addition to this analysis of Title 25 of the United States Code,
we have also included an extensive report on the history of tribes
situated in both eastern and western Oklahoma. This report is set
forth in Part VIII of this Report. Our findings as to the tribes in
Oklahoma is that they suffer from all of the problems of tribes in
other states with an additional complication arising from doubtful
federal administrative and judicial positons that there tribes lack
reservation status. Four days of joint hearings were held by this Task
Force and Task Forces 1,2, 3 and 4 in Oklahoma City and Muskogee
in an effort to develop the scope of problems affecting tribes in that
state. Our report is set forth in Part VIII of this Report.
Finally, in Part VII of this Report we have included a detailed
review and critique of the Burvau of Indian Affairs Manual. We must
note that despite numerous requests from our Task Force to the Bu-
reau and despite what we believe were the good faith efforts of the
Bureau to supply us with a complete product, we were never able to
secure a complete Manual for our review. It is doubtful whether a
complete Manual exists in any one place. Our recommendation based
upon our study is that the entire Mamal be overhauled in order to
make it into a usable dociiiient, and that a complete copy be main-
tained at all times at every tribal head quarters and at every urban
Indian center.
This Task Force wishes to express its extreme gratitude to Emmi
Shipman whose dedication to the cause for which this Report is pre-
pared set a standard for us all to follow, and to the law students
who worked so effectively with iis dining their internship or during
the summer: Audie Cross of HastinL.s Law School in California.
Dominique Passera-Haupert of Boston Collece Law School in Massa-
chusetts, and Edward V. Fagan, John Saxon, Caroline Downey,
Wayne Whiteface and last, but not least, John Ruby of Antioch
Law School in IVashington, D.C. In addition we wish to thank Mr.
Robert Pelcyger of Native .Nmerican Ria'hts Fund and Mr. Joseph
Brecher of Oakland, California for their contributions as Consultants.
Grateful appreciation is extended to -'Is. Alice Riehl for the List
of Allotment Statutes in Appendix I. Part IV, Exhibit 1.




























PART II


HISTORICAL DEVELOPMENT OF THE FEDERAL STATUTORY

AND REGULATORY SYSTEMS

A. STATUTES-AT-LARGE AND THE UNITED STATES CODE
B. CODE OF FEDERAL REGULATIONS




MR












PART II. HISTORICAL DEVELOPMENT OF THE FEDERAL STATUTORY
AND REGULATORY SYSTEMS

A. STATUTES-AT-LARGE AND THE U.S. CODE
From 1789 to 1840 there was no comprehensive system for maintain-
ing legislation or Congressional and Executive documents. In 1840
all federal Statutes were collected in one place and organized into the
Statutes-at-Large. This consisted of 9 volumes with a cumulative sub-
ject matter index in the 9th volume. In addition, Congressional an(]
Administrative documents were compiled in a set of volumes known
as the American State Papers. All these papers covering the period
1789-1840 were organized by subject-matter. Two volumes are devoted
to Indian Affairs.
Around 1870 Congress concluded that it was necessary to collect
the "permanent and general" legislation of the U.S. in a more acces-
sible and usable form and to re-codify such laws into positive law.
The result was the. Revised Statutes of 1874. All Statutes of "perma-
nent and general" application were incorporated into the Revised
Statutes and all prior inconsistent laws were repealed. In the period
following enactment of the Revised Statutes federal legislation con-
tinued to be published in the Statutes-at-Large. From 1897 to 1907 a
commission was engaged in an effort to codify the accumulating leg-
islation but this work was never carried to completion. (See Preface
to the U.S. Code). A report on the section dealing with Indian law
was, however, filed by a member of the revision committee, but not
until 1917. A copy of this report is included to this Task Force report
in Appendix II. (Part IT. Exhibit 1..Page II: 201.)
By the early 1920's Congress again concluded that its system for
maintaining laws of a "permanent and general" natulre was inade-
quate. The result was the abandonment of the Revised Statutes as a
system for ordering and recording such laws. and the adoption of
the United States Code in its place. This occurred in 19.6. The Code
was broken into some 50 different Titles with the law pertaining to
Indian Affairs being placed in Title 25. Unlike the process accom-
panving adoption of the Revised Statutes. the Titles of the United
States Code were not enacted into positive law. It was simply a reor-
ganization of the "permanent aid general" laws of the U.S. as they
then appeared in the Revised Statutes or in the Statiites-at-Large.
The provisions which appeared in the U.S. Code were thus not "posi-
tive" law but. only evidence of what the positive law. i.e. Revised
Statutes or Statutes-at-Large, ac tuallv said. In the event of a, con-
flict between what appeared in the U.S. Code and in the Statutes-at-
Large which it purported to re-state, the language in the Statute
governed.
Although the U.S. Code adopted in 1926 was not enacted into posi-
tive law (a process known as "codification") it was the desire of Con-
gress that this be done and steps were taken immediately to accom-
plish this result but the process is intricate and time consuming. Over
(13)






14


the past 50 years Congress has succeeded in enacting several of the
0 Titles into positive law.
It was not long after adoption of the U.S. Code in 1926 that Con-
gress sought to "codify" the Indian laws. Congress mandated the
establishment of a special commission within the Bureau of Indian
Affairs to "consolidate, revise and codify" Title 25 (or all Statutes
relating to Indian affairs) into positive law. (See H.R. 15498, 71st
Cong., 3rd Sess.; Hearings on H.R. 15498, January 28, 1931, before
the House Committee on Indian Affairs. A copy of these Hearings
is included as Part II, Exhibit 2 to this Task Force report.) It was at
this same time that the Brookings Institute undertook its examination
of conditions in the Indian world-a study which resulted in the
famous Meriam Report of 1928. (The Problem of Indian Adminis-
tration. Brookings Institute, 1928.) A change of administration also
intervened. As a result, Congress did not get the "consolidation, revi-
sion and codification" which it sought. Instead it got a broad and far
reaching piece of legislation known as the Indian Reorganization Act
of 1934. While this legislation was a major step forward in Indian
law, it did not "unclutter" the statute books or render them more
accessible and comprehensive.
The result is that today, nearly 50 years after Congress first mani-
fested its desire to "consolidate, revise and codify" the Indian Statutes
into positive law, the Statute books remain cluttered with laws en-
acted over the 200 year life span of this Nation-laws which reflect
numerous shifts in federal Indian policy; laws which reflect out-
moded concepts of federal-Indian relationships; and laws which fre-
quently conflict with or duplicate each other.











B. CODE OF FEDERAL REGULATIONS
The history of the Code of Federal Regulations dates only from
1936. Prior to 1936 agency policies and procedures were governed by
policy memoranda, circulars, bulletins, etc., which were given wide
circulation within the affected agencies and sometimes among the
public. There was no unified method of publishing this material and
public and government access to these "regulations" was limited and
cumbersome. In 1936 the policy of publishing agency regulations and
compiling all of this "agency law" in the Cod, of Federal Regula-
tions was begn. Despite this system for p blication the iu e of internal
policy memoranda and circulars setting forth policies and1procedi 'es
continued and still continues among all of the federal ao-encies. The
BTIA Manual is a classic illustration of this ontijncn i)ractl(M(.
In 1946 Congress adopted the Admiinistrative Procedure Act (5
U.S.C. 551 et seq.) reqiing all federal agencies with rule making"
powers to publish in the CFR those rules which set forth major pol-
icy guidelines or established practices or procedures which might.
affect substantive rights. The citizenry was to be accorded an oppor-
tunity to submit comments on such regrulations-a right they were
denied when rules were established through internal memoraiida.
agency mamals, etc.
Despite the fact this Act has len on the books for some 30 years,
we find that the Bureau of Indian Affairs has not published in re(a'u-
lation form all of its rules and policy guidelines having substantive
impact, upon Indian people. (We hasten to add that the BI most
certainly is not alone in this delinquency. For example the Depart-
ment of HEW has never published a Manual governing welfare
eligibility which we understand has received much agency use.) This
failure of the BIA was brought forcefully home by tle United States
Supreme Court in Ruiz v. J[orton, 415 U.S. 1.19 (19,4).
In addition to the failure to publish all of its regulatory material.
we also have found that the MAnual itself is poorly organized :n(l
maintained, it is badly out of (late despite a proviso therein that
all material be reviewed and update(d at lemist once e\ery five years,
and it occaslonallv conflicts with laws it is specifierlpy designed to
implement. In addition we have .-lso f'und that whe a""erial is pub-
lished in the Federal Register for ultimate inclusion in the CFT,
it is not uncommon to allow an inadequfate period o-, time for piublie
comment or, in the alternative, inadequate measures are taken to see
that tribes are properly advised and given adequate opportunity for
comment.
An example of inadequate time is fund in a rccent proposed amend-
ment to the law and order regultions which allowed only 10 days for
comment following publication. Federal Register, Vol. 41, No. 3, pg.
7414, published February 18, 1976. In the matter of the preference
regulations which Interior is in the process of adopting there has been
(15)







no attempt at all by BIA to publish for comment. They did seek tribal
input on their first draft by mailing copies of same to all federally
recognized tribes and polling them on their opinion. However, the
results of this poll were generally ignored and the draft proposal was
altered materially before it was submitted to the Civil Service Com-
mission without re-informing the tribes either through mail-outs or
publication in the Federal Register. Finally, we have found that some
policy guidelines have never gotten beyond memorandum form but are
still considered by agency personnel as establishing the criteria by
which they must operate. An example of this is found in two memos
dated April 21, 1959 and August 3, 1960 establishing the Secretarial
policy regarding taking of lands, particularly individually owned
land. into trust status.































PART III



FEDERAL LEGISLATION AND INDIAN POLICY

A. FEDERAL PRIMACY AND PROTECTION OF INDIANS

B. WESTVARD REMOVAL AND RESERVATION CONSOLIDATION

C. ASSIMI1LATIO- AND FEDERAL REGULATION

D. RESTORATION OF TRIBAL GOVERNMENT

E. TERMI-NATION

F. FEDERAL DOMESTIC ASSISTANCE PROGRAMS

G. REVITALIZATION OF POLITICAL AND ECONOMIC BASE OF TRIBES
















PART III. FEDERAL LEGISLATION AND INDIAN POLICY


The laws now appearing in Title 25 of the U.S. Code reflect as many
as seven distinct policy periods in the Federal-Indian relationship.

A. FEDERAL PRIM1ACY AND PROTECTION OF INDIANS
The period 1789 to 1834 is marked by statutes designed to assure the
federal primacy over states and/or foreign governments in the regu-
lation of commerce with the Indian tribes and desigmed to carry out
various treaty stipulations with the tribes by providing for punish-
ment of non-Indian wrong-doers in Indian country and reguLlation of
traders to eliminate or reduce fraudulent dealings.1 The Act of July 2,
1832, establishing an Indian Office within the federal government 2
and the Act of June 30, 1834, the Final Trade and Intercourse Act.
vesting regulatory authority in the President, extending Federal
criminal law over offenses involving non-Indians in Indian country,4
and regulating traders 5 and land transactions G were the culmination
of this policy period and, as can be seen, remain a part of our statutory
framework to this day.

B. WESTWARD RE3OVAL AND RESERVATION CONSOLIDATION
The period from 1830 through 1871 is marked more by treaties than
by statutes. The westward removal policy was instituted by legisla-
tion in 1830. Dealings with the western tribes Ind the tribes removed
west are characterized by treaties involving cessions b the Indians
of vast tracts of land in exchange for which they received guaranteed
reservation boundaries, pledges of protection by the U.S. govern-
ment, nominal monetary payment for the ceded lands, and pledges
for provision of school and training in the industrial and agricultural
arts. These treaties appear in the Statutes-at-Lar-e and in many
respects, remain good law to this day. The treaty period was brought
to a close in 1871 by a provision in the Appropriation Act of that year
prohibiting further dealings with Indian tribe es by way of treaties."

C. ASSIMILATION AND FEDERAL REGULATION
The period 1879 through the 1920's is marked by legislation and
administrative policies designed to break up the reservations and
abolish the tribal governments the U.S. had so recently pledged itself
to protect; to open the west for non-Indian settlement and develop-

See excellent discussion by F. Prucha, American Indian Policy in the Formative Years,
(Harvard University Press, 1962).
2 25 USC 2 (1970)
3 25 USC 9 (1970)
18 USC 1152 (1970)
525 USC 264 (1970)
6 25 USC 177 (1970)
7 Act of May 28, 1830, 4 Stat. 411.
8 Approp. Act of March 3, 1871, 16 Stat. 566-70.
(19)


I







20


ment; to assimilate the Indian and bring him and his property within
the purview of state and local law.9 Education was clearly a pre-
requisite to the accomplishment of this end; individualization of the
tribally-owned property was the tool.1 Realigonment of administrative
responsibility within the Indian Department to supervise the distribu-
tion of "surplus" Indian lands and to afford protection to Indian
property and execution of the social programs necessary to education
and assimilation of the individual Indian was also necessar-. All forms
of trust property, surface lands, minerals, oil and gas, timber and
water were brought under federal regulation and lands, surplus to the
Indian needs as projected by the Congress and the Executive, were
opened to non-Indian settlement and/or expolitation. The great bulk
of the first 3 chapters of Title 25, U.S. Code, is comprised of legisla-
tion from this period. While this legislation is not necessarily in clear
legal conflict with subsequent statutes designed to enhance Indian
tribes, the basic philosophical precepts and policy thrust of these
laws are in conflict with this later legislation.
D. RESTORATION OF TRIBAL GOVERNMENT
In 1934, following the issuance of the Meriam Report, Congress
enacted the Indian Reorganization Act." This was an abrupt policy
shift. The concept of breaking up the Indian land base was abandoned
and provision was made for reacquisition of lands; 12 tribal govern-
ments at the local level were to be consulted in actions affecting
their trust property.'3 N numerous other provisions were included, all
designed to strengthen the tribal establishment. Many of the provi-
sions of this Act did not extend to tribes in Oklahoma or Native com-
munities in Alaska. In 19"0, Alaska was blanketed into the IRA
coverage '4 and most of the protective provisions of the IRA were
extended to the tribes in Oklahoma through the Oklahoma Indian Wel-
fare Act.15
In the years following passage of this legislation, the Executive
branch of government reinained generall constant in its support of
the tribal establishment. But Congress was of a divided mind not only
at the time this legislation was passed, but also in the years after. In
1937 Senators Wh71eeler and Frazier co-sponsored a Bill to repeal the
1934 Indian Reorganization Act." The Bill (lid not clear committee.
In 1943, thew Senate Committee on Indian Affairs issued a. "Partial
Report" callin for the complete dismemberment of the Bureau of
Indian Affaidrs, distribution of trust assets to individual Indians, and
transfer of responsibility to the states.'7 Incredibly, this report was
9 Characteristic of this legislation is the General Allotmnt Act of 1887. Act of February 8,
1887, ch. 119, 24 Stat. 389. See also Draper v. U.S., 164 U.S. 240, 243 (1896).
10 As stated by the Senate Committee on Labor and Public Welfare, Indian Education:
A National Tra,edy-A National Challenge. S. Rep. No. 91-501, 91st Cong., 2nd Sess. pt.
I, II (1969) : Government leaders recognized that if Indians could be converted from
hunters into farmers, the Indians would require less land and would be easier to contain.
Such a policy would naturally mean more land available for settlement by white men.
Education of Indians was seen as the means of accomplishing the conversion.
IL 25 USC 461 et seq. (1970).
12 25 USC 465 (1970).
13 25 USC 476 (1970).
4 25 USC 473a (1970).
1 25 USC 501 et seq. (1970).
1 S. 1736.75th Cong., 1st Sess.
17 Senate Rept. No. 310, 79th Cong. 1st Sess. (1943).







21


signed by Burton K. teeler, one of the sponsors of the Indian Re-
organization Act, and Elmer Thomas, a sponsor of the Oklahoma
Indian Welfare Act.
The work of this Committee clearly led to the adoption in 1953 of
the termination policy evidenced by the now infamous House Con-
current Resolution 108 18 passed that year.
E. TERMINATION
The termination policy was short-lived but its effects have been
long lasting. By Act of August 15, 1953 (P.L. 83-280) 19 Congress
placed numerous tribes under the civil and criminal jurisdiction of
various states and a permanent mechanism was provided whereby
states could assume jurisdiction over other tribes. While this did not
fully terminate the federal trust responsibility, it served to suppress
the development of tribal governments and utilization of tribal re-
sources. In addition to enactment of P.L. 83-280, many tribes were
terminated, among others, the Menominee of Wisconsin, the Klamath
in Oregon, and numerous small tribes in Oklahoma, California, West-
ern Oregon, and other states. The rationale for termination of the
Menominee was that the tribe was sufficiently advanced and economi-
cally strong enough to survive without federal supervision or protec-
tion. It is difficult to ascribe a similar rationale to the termination of
other tribes. Within a decade, it was generally recognized that the ter-
mination policy was a grave error and the practice of terminating
tribes was, for the most part, abandoned in disgrace. It is noteworthy,
however, that existing legislation was not rescinded and many termina-
tion orders were si.med in the early 1960's. In 1973. Congress restored
recognized status to the Menominee Tribe. Whether or not Congress
will or should grant similar restoration to other terminated tribes is a
question which must be dealt with by the Policy Review Commission.
F. FEDFR.AL DOMESTIC ASSISTANCE PROGRAMS
In the 1PG(Ys. in another shift of olicy, Congress beoran to iiiude
Indian tribes and Indian people within the coverage of the general
domestic assistance legislation.21 For the first time, ao--,oeies other than
the Department of Interior assumed a responsibility for delivery of
services to Indian people within reservation boundaries and to lend
support to tribal gov ernment. These programs were not unique to the
Indian people or tribal governments: they were programs extended to
all people outside the reservation setting, and to state and local ov-
ernments throughout the United States. In Fiscal Year 1.)'4 the Fed-
eral contribution to State and local governments was provided at $56
billion dollars.22 This is a fact commonly overlooked by critics of ap-
propriations specifically allocated to Indian programs.
1 0f7 Stat. 132 (195,).
"I Public Law 83-280, 67 Stat. 588 (1953).
20 25 USCA 903 et seq. (Supp. 1976).
21 5 R. Shifter, "Trends in Federal Indian Administration, 15 S.D. Law Rev. 1 (1970).
22 The Budzet of the TT.S. Government for fiscal year 1976 projected an outlay of some
$56 billion dollars to state and local governments, a figure which did not include direct
federal expenditures for programs such as the $5.5 billion supplemental security income
program for the aged, blind, and disabled previously financed by the stnte, or indirect
benefits in the form of tax exemption on state and local securities or rendering technical
assistance to such governments. (See Special Analyses, Budget of the U.S. Government,
fiscal year 1976, pg. 235).







22


The inclusion of Indian people and tribal governments within the
general federal domestic assistance programs was received by Indians
USt a welcome step forward. But the passage of a decade and one-half
has revealed serious flaws in the system. For most agencies, the Indian
people are not a major constituency. In addition, the unique character
of tribal governments and their close relationship to the federal gov-
ernment and limited relationship to the states is not well understood
or appreciated by most Federal agencies.
As a consequence agency programs frequently provide for delivery
mechanisms or eligibility criteria which either exclude Indians from
eligibility or result in erosion of the sovereign base of the tribal govern-
ment. A common problem is exclusion of tribes from state and federal
planning boards and the funneling of money ear marked for tribal
governments to state agencies for disbursement by them to the tribes
on the same basis as other federal monies are distributed to political
subdivisions of the state. This seriously undermines the governmental
capacity of the tribes.

G. REVITALIZATION OF POLITICAL AND ECONOMIC BA SE OF TRIBES
Beginning in 1968, a series of laws were passed designed to strength-
en the political and economic viability of the tribal governments and
Indian people. Titles Ii through VII of the Civil Rights Act of 1968 23
provided a federal guarantee of standards of fairness in the relation of
tribal governments to the people they acted upon; Public Law 83-280
was amended to require tribal consent before a state could assume juris-
diction and for retrocession by the states of jurisdiction already as-
sumed,2- and the Secretary of the Interior was directed to prepare basic
legal materials for publication and public release in order
that Indians and non-Indians alike might have adequate access
to the laws, regulations and agency opinions governing their rights.25
In April, 1970,s peeial legislation -,,as enacte( to aitihoriz the See-
retary of Agriculture, through the Farmer's "ome"dminis ration to
make and inqmue loaiis to Indian tribes for acquisition) of lands within
their reservation.26 In April 1974, the Indian Financing Act 2. was
passed providcing for an epanded revnoling loan find, loanguftranties
and business grants. And in January 1975. the Indian Self-Determina-
tion Act 21 was enacted providing a means for tribal assumption of
certain fi-ctions prc, ,+e .n19 y,,.d b the Depnrtment of the In-
terior and Department cf Health, Eulication, and Welfare, and provid-
ingY for Indian preference in contracts and grants generally.
In addition to these statutes, Congress adopted a general statute pro-
viding for adoption of judgment fund distribution plans: 29 amended
the Surplus Property Act to establish federally recognized Indian
tribes as qualified recipients of surplus federal lands;-30 and conveyed
2 25 USCA 4 1302 et 8eq. (Supp. 1976).
24 SCA 1323 et. 8eq. (Supp. 1976).
o 25 USCA 1341 (a) (Supp. 1976).
26 25 USCA 488 et seq. (Supp. 1976).
2725 USCA 1451 et seq. (Supp. 1976).
21925 USCA .. 450 et seq. (Supp. 1976).
2925 USCA 1403 et seq. (Supp. 1976).
30 Pub. L. 93-599, 88 Stat. 1954 (1975).






23

to the tribes submarginal lands acquired for their use or benefit under
legislation dating from the mid-1930s.31
While the intent of all of this legislation is good and represents
major strides toward improvement of the conditions in Indian country,
each of these Acts is marred with problems stemming either from limi-
tation in the Act itself or from agency implementation.
8125 USCA 459 et seq. (Supp. 1976).








































83-755-77-3































PART IV


PROPOSED CONGRESSIONAL STATEMENT OF FINDINGS AND
DECLARATION OF POLICY

A. INTRODUCTION
B. THE PROPOSED STATEMENT OF FINDINGS AND DECLARATION OF POLICY
C. COMMENTARY















PAiT IV. PROPOSED CONGRESSIONAL DEcLAiATIoN OF FiNINGS ANl
STATEMENT OF POLICIES
A. INTRODUOT[ON
The varying policy periods and statutory enactments with their
conflicting philosophies toward Federal-Indian relations have led to
uncertainty in the Congress as to the source and scope of power to
legislate on matters affecting the internal affairs of tribal governments
and matters affecting the property rights of Indians. It has also clearly
led to a critical failure in the perception of the Federal-Indian rela-
tionship by the Federal Executive with respect to the extent of admin-
istrative authority to control tribal properties and to manipulate tribal
political processes. The Executive Branch on numerous occasions has
thwarted the legitimate efforts of tribal governments to assert powers
which should only be affirmed or denied after a full and open hearing
on the merits in a court of law, and the Executive has failed in many
instances to properly represent the interest of Indians through the
courts once that process has been triggered. The vacillations in federal
policy definitely have resulted in confusion or outright resistance from
many states with respect to the continuation of tribal governments
within the boundaries of the state or the continuation of individual
immunities from the application of state laws deriving from a person's
relationship with the tribe or the Federal Government.
In order to clarify the legal and political status of Indian tribes
within this Nation, and to provide a necessary frame of reference for
revision and subsequent interpretation of the Code of Laws which
govern this relationship, this Task Force strongly recommends that
Congress restate and reaffirm the basic principles upon which Federal
law and Federal policy are based. The following proposed "Congres-
sional Findings and Declaration of Policy" is a restatement of existing
authorities in respect to the powers of Federal, Tribal and State gov-
ernments and a restatement of policies with respect to self-determina-
tion, education and economic aid. Only the paragraphs respecting
recognition and restoration of tribes to federally recognized status are
new. A paragraph by paragraph analysis follows this Declaration on
pages 31-48.
(27)









B. PROPOSED CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
The Congress, after careful review of the Federal Government's
historical and special legal relationship with, and resulting responsi-
bilities, to American Indian people, finds that-
1. The authority of the Congress of the United States to regulate
affairs with Indian tribes is plenary. This power is founded in the
United States Constitution and flows first from the treaty making
powers (Article 2, Sec. 2, cl. 2); second from the American clause
(Article 1, See. 8 cl. 3) authorizing Congress to regulate commerce
with foreign nations and with the Indian tribes; and third from the
power to make or withhold appropriations. The plenary authority of
Congress operates to the total exclusion of state authority because in
ratifying the Constitution the original thirteen colonies gave up all
authority in the premises and the power was withheld from every
other state entering the Union thereafter either by specific provision
in the enabling Acts authorizing their formation or by implication
based on the equal footing doctrine. Within the Indian country, states
can exercise no jurisdiction over an Indian person or an Indian tribe
except as specifically authorized by Act of Congress.
In relationship to the tribes, the plenary authority of Congress has
been exercised even to the point of withdrawal of recognition from
Indian tribes, compulsory destruction of tribal schools and govern-
ment, and forced sale of tribal assets. The Congress recognizes that
while the Commerce clause would not appear to authorize legislation
affecting purely internal matters of tribes, it has in the past enacted
such legislation and this legislation has withstood the test of judicial
scrutiny. The Congress of the United States recognizes that-while there
is thus no apparent judicial restraint upon this plenary power there
is a moral obligation of the highest order to refrain from legislation
which violates its solemn commitments to the Indian people.
2. The Congress of the United States hereby declares that Indian
tribes and tribal governments are now and forever will be a permanent
part of the American political fabric and it hereby dedicates itself to
the development of an institutional framework which will give full
support and expression to the legitimate aspirations of the Indian
people for political recognition and participation in the American
governmental processes.
3. The Congress of the United States recognizes that the power and
authority of Indian tribes emanates from their recognized status as
sovereign dependent nations: that the powers of the tribes do not
derive from any grant from the Constitution of the United States nor
from any Act of Congress: that the Indian tribes always have had
and do now retain all powers of any sovereign except as to those powers
which have been specifically limited by treaty or by federal statute.
Within these limits, the Congress reaffirms its commitments to leave
the, Indian people within the Indian country free from state or federal
authority and free to be governed by their own code of laws.
(28)




29


4. The Congress of the United States recognizes that since the
founding of this Nation it has been the declared policy of the United
States Government to preserve and protect the people, the property
and the governments of the Indian nations. This policy and the Fed-
eral commitment to the Indian people has been manifested by treaties
and by statutes and it remains the policy of the United States today.
5. The Congress of the United States finds that the policy of the
United States reflected in the Westward Removal Act of 1830 and
the General Allotment Act of 1887 to either remove the Indian people
from the American body politic or break up Indian reservations,
destroy tribal governments and forcibly assimiliate the Indian people
into the mainstream of American life was ill conceived and is the
primary cause of the conditions of deprivation of the American Indian
today and the primary source of the problems which confront the
governments of the Indian tribes today.
6. The Congress of the United States now hereby reaffirms the policy
of the Indian Reorganization Act of 1934 to put an end to the allot-
ment era, to restore to the Indian people an economically viable land
base, to provide the Indian people with sufficient credit through a re-
volving loan fund that they might develop their own resources and
business institutions, to recognize the rights of the Indian people to be
self-governing, and to provide through the employment preference
policy for eventual control by Indian people of the Federal agencies
responsible for protection of their resources and delivery of services
to them.
7. The Congress of the United States finds that the policy of with-
drawal of Federal services and termination of Federal recognition
reflected in H.C.R. 108 of 1953 and the various termination Acts
enacted pursuant to that policy was an ill conceived policy which has
caused irreparable harm to those affected by its application. It is a
policy which has been rejected in fact by passage of the Menominee
Restoration Act of 1973, the Indian Financing Act of 1974, and the
Indian Self-Determination and Education Assistance Act of 1975.
The Congress herewith rejects H.C.R. 108 in name as well as in
fact, and commits itself to the development of general criteria which
will facilitate the restoration of Federal recognition to those tribes
previously terminated.
8. The Congress finds that the policy of the Indian Financing Act
of 1974 to provide a credit mechanism to help develop and utilize
Indian resources, both physical and human, to a point where Indians
will fully exercise responsibility for the utilization and management
of their own resources and where they will enjoy a standard of living
comparable to that enjoyed by non-Indians in neighboring communi-
ties is a sound policy and it is herewith reaffirmed.
9. The Congress finds that the policy of the Indian Self -Determina-
tion and Education Assistance Act of 1975 commitino the United
States Government to the maintenance of the Federal Government's
unique and continuing relationship with and responsibility to the
Indian people through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from
Federal domination of procrrams for and services to Indians to effec-
tive and meaningful participation by the Indian people in the plan-





30


ning, conduct and administration of those programs and services is a
sound policy and it is herewith reaffirmed.
10. The Congress finds that the declaration in the aforesaid Act
that a major national goal of the United States is to provide the
quantity and quality of educational services and opportunities which
will permit Indian children to compete and excel in the life areas of
their choice, and to achieve the measure of self-determination essen-
tial to their social and economic well-being is a sound goal and it is
hereby reaffirmed.
11. The Congress recognizes that there are numerous tribes and
groups of Indian people who have been denied Federal recognition for
lack of a treaty relationship with the United States or lack of other
contact with Federal authorities administering the Federal Indian
laws. The Congress recognizes that the continued refusal by the Fed-
eral authorities to accord Federal recognition to these tribal entities
or communities of Indian people is not premised on grounds of equity
or justice but is premised on the lack of adequate appropriation of
funds to properly serve those tribes and people who are already Fed-
erally recognized and because of the lack of any clear legislative
guidelines to facilitate recognition. The Congress herewith declares
its commitment to provide a mechanism for recognition of those
Indian tribes or community groups who have previously been unrec-
ognized and to couple this commitment with a commitment to appro-
priate such additional funds in the future as are necessary to provide
services to these newly recognized entities without diminishment of
services to those tribes already recognized.
12. The Congress recognizes that there is a substantial Indian popu-
lation residing off-reservation in urban areas whose needs in matters
of health, education, welfare, housing, job training and job place-
ment, credit facilities and technical assistance in establishment of
small business enterprises are not adequately met by the customary
state and local government programs or through private sources. The
Congress recognizes that many of these people are members of Fed-
erally recognized tribes and thus a partner in the unique political
relationship which exists between the United States and the Indian
tribes, but the Congress also recognizes that many more are persons
whose tribes have been terminated or who otherwise lack a Federally
recognized status. The Congress recognizes that whether or not these
Indian people are members of Federally recognized tribes, they share
a common historical, cultural and social background which has caused
the existing urban social system to fail them and which justifies and
requires a Federal commitment to the delivery of services through
programs specifically designed to meet their needs without diminish-
ment of services to the Federally recognized, reservation-based tribes.










C. COMMENTARY


The foregoing proposed "Congressional Findings and Declaration
of Policy" sounds radical in tone-revolutionary in purpose. It is not.
It is no more than a restatement of existing law, an acknowledge-
ment of historical fact and its casual relationship to the present, and
a restatement of existing policies which have been periodically re-
stated by the Congress through the 200 year history of the United
States. It is nothing more than a restatement of fundamental prin-
ciples of federal Indian law.
It is imperative that Congress restate these principles. The Congress
itself has lost sight of the fundamental political relationship it has
with Indian tribes; the federal Executive has never had a clear view of
its authority and the limits of its authority in relation to the Indian
tribes; and with rare exception the posture of state and local govern-
ments, regardless of clarity of view, ranges from petty irritation to
outright hostility toward tribal governments. A restatement of these
fundamental principles is badly needed in order that all parties in-
volved have a clear understanding of their relationship with each
other and the sources from which their individual authorities flow.
1. Sources of Federal Authority
Paragraph one of the proposed Declaration simply states that the
authority of Congress in the regulation of Indian affairs flows from
its treaty making powers under Article 2, Sec. 2, clause 2 of the Con-
stitution; from its powers to regulate commerce under the Commerce
Clause, Article 1, Sec. 8, Clause 3 of the Constitution; and from its
authority to make or withhold appropriations; that this plenary au-
thority operates to the total exclusion of state authority: and that
within the Indian country, states can exercise no jurisdiction over an
Indian person or an Indian tribe except as specifically authorized by
Act of Congress.
The origins of this Constitutional power are fully explored in an
excellent book entitled American Indian Policy in the Formative
Years, published in 1962.1 At the conclusion of the Revolutionary
War, the colonies individually succeeded to all of the powers previously
exercised by the Crown, including the unrestricted right to control
Indian affairs within their colonial boundaries. This power was among
the powers given up by the colonies to the (eneral government when
they discarded the Articles of Confederation and united to form a
more perfect Union under the U.S. Constitution. This was certainly
the intent of James Madison in 1787 when he proposed an addition to
the first draft of the U.S. Constitution which would have provided
Congress with power "to regulate affairs with the Indians as well
within as without the limits of the United States," and it promptly
received the sanction of the First Congress.
LF. Prueha, American Indian Policy In the Formative Years (Harvard University Press,
1962)
'Id. at 42.
(31)





32


In the first year of the First Congress four statutes were enacted
which established the initial outline of Indian policy,, and in the fol-
lowing year (1790) the first comprehensive Indian Trade and Inter-
course Act was enacted.4 In enacting this legislation Congress was un-
doubtedly responding to a lengthy message of Secretary of War Henry
Knox to President George Washington dated July 17, 1789 5 reporting
on conflicts between the Creek Nation and the State of Georgia and
exploring the alternative approaches to Indian policy. One of the
underlying theses of this report was that tribes should be considered as
foreign nations and that tribal lands protected by treaty, even though
situated within the boundaries of a state, should be. considered as out-
side the limits of jurisdiction of the states. It was this premise which
Congress acted upon in enacting the Indian Trade and Intercourse
Act and it was this premise which the President and the Senate
acted upon in its treaty negotiations with the tribes.
The Constitutional source of the Congressional authority and the
exclusionary impact of this authority on the power of states over In-
dians and Indian country within the boundaries of a state were ac-
knowledged and firmly rooted into the American Constitutional fabric
by Chief Justice John Marshall in Vorcester v. Georgia in 1832.6 Since
the date this decision was laid down it has formed the cornerstone in
judicial analysis of the federal, tribal, and state relationships. The
exclusivity of federal jurisdiction has been consistently reaffirmed
by the federal judiciary throughout the course of U.S. history. See
Fellows v. Blacksmith (1856), U.S. v. Holliday (1865),8 The Kansas
Indians (1866),9 The New, York Indians (1866),10 U.S. v. Kaaama
(1886)," Donnelly v. U.S. (1913j)e2 Rice V. Olson (1945),'a Williams
v. Lee (1959), 4Kennerly v. District Court (1971)15 and MeClanahan
v. State Tax Comm. (1973).'- The McClanahan case notes that over
the course of years there has been some "adjustment" in the barrier to
the application of state law within Indian country, but this "adjust-
ment" related only to state authority over non-Indians.'7 Nothing
could be more clear than that in the absence of a federal statute spe-
cifically authorizing the exercise of state jurisdiction, states can exer-
cise no jurisdiction over Indians or Indian tribes within the boundaries
of their reservations.
In the second paragraph numbered one it states that the plenary
authority of Congress has been exercised even to the point of with-
drawal of recognition from Indian tribes, compulsory destruction of
tribal schools and government, and forced sale of tribal assets. The

3 Act of Aug. 7, 1789, ch. 7, 1 Stat. 49: Act of Aug. 7, 1789. ch. 8. 1 Stat. 50: Act of
Aug. 20, 1789, ch. 10, 1 Stat. 54 ; Act of Sept. 11, 1789, ch. 13, 1 Stat. 67. See also F. Cohen
Handbook of Federal Indian Law 68-69 (1st ed. 1942).
4 Act of July 22, 1790, Ch. 33, 1 Stat. 137.
5 1 American State Papers, Indian Affairs, 52-53 (1789).
6 31 U.S. (6 Pet.) 515. 560-61 (1832).
7 60 U.S. (19 How.) 366 (1856).
8 70 U.S. (3 Wall.) 407 (1865).
9 72 U.S. (5 Wall.) 737 (18C6).
10 72 U.S. (5 Wall.) 761 (1866).
11118 U.S. 375 (1886).
12 228 U.S. 243 (1913).
13 324 U.S. 786 (1945).
14 358 U.S. 217 (1959).
15 400 U.S. 423 (1971).
16 411 U.S. 164 (1973).
17 Id. at p. 171. For an extensive historical analysis of this "adjustment" process see
"Development of Tripartite Jurisdiction in Indian Country", Indian Civil Rights Task
Force, Vol. 22, No. 3, Kansas L. Rev. p. 351 (1974).




33


provision further calls for a Congressional acknowledgement that the
Commerce clause standing alone does not authorize federal legislation
regulating the internal affairs of Indian tribes, but that in fact such
legislation has been enacted and it has withstood the test of judicial
scrutiny. Finally, this paragraph calls upon the Congress to accept as
a fundamental proposition that while there is no apparent judicial
restraint upon its actions towards the Indian people, there is a moral
obligation of the highest order to refrain from legislation which vio-
lates its solemn commitments to the Indian people.
Although the lead statement in the preceding paragraph may seem
excessive, it is in fact conservative. It is well recognized that the Gen-
eral Allotment Act of 1887 1 was designed for two principle purposes:
(1) to terminate the communal ownership of Indian reservations
through forced allotment of statutorily prescribed amounts of land
to individual tribal members with sale of surplus acreage to home-
steaders; and (2) to undermine gradually by this process the authority
of tribal governments.9 But this statute, with its "evolutionary" ap-
proach to indirect erosion of tribal government, was mild compared
to the statutory dissolution of the governments of the Five Civilized
Tribes of Oklahoma.
The Act of April 26, 1906 20 providing for the "Final Disposition
of the Affairs of the Five Civilized Tribes in the Indian Territory"
was a blatant disregard and violation of numerous and repeated treaty
commitments made to these tribes.21 It was an action against a group
of tribes whose governments were certainly as sophisticated as those
of the western territorial government of the United States, whose
governments were patterned on the model of the United States Gov-
ernment, whose governments were sufficientlv well thought of that
numerous bills were introduced in Congress (luring the 19thi Century
to accept them into the United States as an Indian state.2 It was an
Act which simply authorized the Secretary of the Interior to take over
the government buildings of the Five tribes, take over their school
buildings, collect their accounts receivable, finance his own operations
of the schools of the tribe out of the funds of the tribes, sell off the
personal property of the government offices and school facilities, and
sell off the real property of the, tribes in excess of that needed for
individual allotments to tribal memibers.-3 This Act was but a prelude
to later termination Acts during the 1950's which withdrew federal
recognition from numerous tribes. It seems a small matter to ask that
Congress acknowledge that such legislation has been enacted in the
past.
The second sentence of the second paragraph of paragraph num-
bered one calls upon Congress to recognize that the Commerce clause
does not appear to authorize legislation affecting the internal matters
of the tribes, but that such legislation has been enacted in the past
and it has withstood the test of judicial scrutiny. Certainly the mass
of legislation establishing property rights of individual Indians vis-
18 Act of Feb. 8, 1887, ch. 119, 24 Stat. 389.
,9 Draper v. U.S., 164 U.S. 240, 243 (1896) ; Lewis Meriam, The Problemn of Indian Ad-
ministration, Brooking$ Institute, (Washington 1928).
20 Act of April 26, 1906, 34 Stat. 137.
21 C. Kappler. Vol. Ii, Indian. Affeiir. Laws and Treaties. See index for treaties with
each of these tribes. See also Part VIII, Chapter 2 infra.
22'Se. Roy Gittinger, The Formation of the State of Oklahioma, Univ. of Oklahoma
PreoS (1939 ed.).
See Act of April 26, 1906, 34 Stat. 137.





34


a-vis the communal ownership that was characteristic of Indian tribes
is representative of this class of legislation.2' Equally to the point is
the Major Crimes Act 25 which establishes federal jurisdiction over
crimes committeed by one Indian against the person or property of
another Indian, even if both be members of the same tribe, and Title II
of the 1968 Civil Rights Act 26 which provides for habeas corpus review
in federal courts of actions of tribal governments affecting individuals,
including tribal members, under their jurisdiction.
The major breakthrough in judicial approval of such legislation
regulating the legal rights of tribal members vis-a-vis other members
of the same tribe was U.S. v. Kagama in 188627 affirming the convic-
tion under the Major Crimes Act of one Indian for the murder of
another Indian who was a member of the same tribe. In that case the
Supreme Court searched in vain for Constitutional authority to sustain
the legislation in question, finally affirming the statute on the grounds
that Indian tribes were "communities dependent on the United States",
alluding to their relative weakness and noting the fact that the sur-
rounding states were often their deadliest enemies.28
The Major Crimes Act was enacted in 188529 following the decision
in Ex parte Crow Dog 30 holding that under the statutory scheme of
the General Crimes Act 31 the federal criminal laws were not appli-
cable to offenses committed by Indians against Indians. The Major
Crimes Act was a limited response to the situation revealed by the
Crow Dog decision. With the exception of the seven major felonies
therein described, the statute was designed to keep intact the statutory
scheme of the 1834 General Crimes Act of leaving Indians free to
govern themselves under their own code of laws.
The policy of leaving Indians free to govern themselves under their
own code of laws continued until the 1940's. In 1940 Congress author-
ized the state of Kansas to assume criminal jurisdiction over Indian
reservations within that state.32 In 1948 similar legislation was passed
for the states of Iowa 3 and New York.4 Finally in 1953, in the now
infamous P.L. 83-280,35 Congress enacted general legislation provid-
ing a means whereby any state could assume civil and criminal juris-
diction over Indians within their state boundaries. The problems which
this legislation generated need not be discussed in this paper. They are
well known to Congress and are documented in the legislative history
to the 1968 Civil Rights Act, Title IV of which amended the 1953
legislation to require tribal consent to any further extension of state
jurisdiction and provided a means for states to retrocede jurisdiction
they had already assumed.36
24 Between 1887 and 1913 some 108 statutes were passed alloting lands to individual
Indians and opening reservation lands to non-Indian settlement. See Exhibit 1 to Part IV
II: 233.
M 18 U.S.C. 1153.
2 25 U.S.C. 1301-1303.
118 U.S. 375 (1886).
'a Id. at 383-85.
29 Act of March 3, 1885, ch. 341, 23 Stat. 362, 385. (18 U.S.C. 1153).
30 109 U.S. 556 (1883).
31 Section 25, Act of June 30, 1834, ch. 161, 4 Stat. 729 (18 U.S.C. 1152).
32 Act of June 8, 1940. 54 Stat. 249.
= Act of June 30. 1948, 62 Stat. 1161.
34 Act of July 2, 1948, 62 Stat. 1224. See also Act of Sept. 30, 1950, 64 Stat 845
authorizing the State of New York to extend their civil laws over Indian country.
35 Act of Aug. 15, 1953, 67 Stat. 588 (18 U.S.C. 1162, 28 U.S.C. 1360).
"Title IV, Act of April 11, 1968, 82 Stat. 78, 25 U.S.C. 1321-1326. For a discussion
of Jurisdictional problems arising from P.L. 83-280, see particularly the Hummorii Re
on the Constitutional Rights of the American Indian, prepared by the staff of the Sub-
committee on Constitutional Rights of the Senate Committee on the Judiclary, 6-14 (1964).





35


Just as the Major Crimes Act of 1885 was intended as a limited
response to a specific situation and was designed to leave tribal au-
thority intact, so also Title II of the 1968 Civil Rights Act,37 the so-
called Indian Bill of Rights, was also intended to have limited appli-
cation with minimal impact on tribal governments, tribal laws and
tribal customs. But as so frequently occurs authority exercised by the
federal Executive exceeds its legislative mandate and jurisdiction as-
sumed by the judiciary is stretched to the outer limits under the theory
that where there is a wrong there must be a remedy.
The Indian Titles of the 1968 Civil Rights Act (Titles II through
VII) are an amalgam of some eight Senate bills and one Senate reso-
lution introduced in the 1st session of the 89th Congress.33 S. 961 would
have simply provided "That any Indian tribe . shall be subject to
the same limitations and restraints as those which are imposed on the
Government of the United States by the United States Constitution."
S. 962 would have provided any person convicted in an Indian court
who claimed a deprivation of a Constitutional right a right of appeal
to the U.S. District Court with a trial de novo. And S. 963 would have
authorized and directed the Attorney General of the United States to
receive and investigate any written complaint filed by an Indian
alleging deprivation of any right conferred upon a citizen of the
United States either by the laws or the Constitution of the United
States, and upon finding of such a deprivation, would have authorized
and directed him to institute such legal proceedings as might be neces-
sar-v to vindicate that right.
When the legislation was finally enacted, the sweeping general ap-
plication of the United States Constitution to tribal governments was
dropped in favor of statutorily-defined rights and limitations par-
alleling the provisions of the first 10 amendments to the U.S. Con-
stitution but modified to fit the tribal circumstances; 3 the general
right of appeal with trial de iwvo was dropped in favor of an ab-
breviated provision extending the privilege of the writ of habeas cor-
pus to any person to test the legality of his detention by order of an
ndian tribe 40; and the provisions of S. 963 authorizing the Attorney
General to investigate complaints of deprivation of rights and bring
legal action were dropped entirely.
The adoption of a statutory definition of rights and limits as op-
posed to the sweeping application of the U.S. Constitution has had the
salutory effect of enabling federal courts to construe the statute in such
a way as to avoid wholesale application of federal decisional law and
permit sensitive responses to tribal custom and tribal governments.
However this judicial sensitivity is far from consistent in its appli-
cation.
37 Title II Act of April 11, 1968. 82 Stat. 77 (25 U. S.C. 1301-1303).
88 S. 961 through S. 968 and S.J. 40. S9th Cong., 1st Sess. For the text of these bills
and the resolution see Hearings before the Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, held June 22, 23, 24 and 29, 1965.
3 25 U.S.C. 1302.
40 25 U.S.C. 1303.
,n See. for example, Daly v. U.S., 4S3 F. 2d 700 (8th Cir. 1973) (tribal apportionment
for election of tribal council): Big Eagle v. Andera, 508 F. 2d 1293 (8th Cir. 1975)
(vagueness of criminal misdemeanor statute) : Seneca Const. Rights Org. v. George, 343
F. Supp. 51 (W.D. N.Y. 1972) due process requirements and appeals to the tribal council
rather than a tribal court): Wounded Head v. Tribal Council of Oglala Sioux Tribe,
507 F. 2d 1079 (8th Cir. 1975) (equal protection and tribal age requirement of 21 years
for eligibility to vote in tribal elections) : and Janis v. Wilson, 385 F. Supp. 1143 (D.S.C.
1974) (due process rights of tribal employees).





36


More to the point in this discussion is the unlimited .jurisdiction which
federal courts have assumed over every conceivable action of tribal
government. The only provision in the 1968 Act which grants juris-
diction to federal courts is found in 25 U.S.C. 1303 extending the
privilege of the writ of habeas corpus. Yet every circuit in which the
jurisdiction of the court to hear claims of a non-criminal nature has
been questioned, has ruled that the Act waived the sovereign im-
munity of the tribe, including in at least one case 42 a holding that the
Act waived the ilnmunity of a tribe from a suit for money damages
based on the actions of a tribal police officer in making an arrest.
Virtually every sovereign enjoys general immunity from suit, but by
virtue of these decisions tribes are now vulnerable to every kind of
action which can in some way through the ingenuity of the legal mind
be fitted into the broad provisions of the Title II "Bill of Rights.'
Tribes do not now enjoy the immunities that pertain to federal, state
or local governments yet it is they who can least afford the costs of
excessive litigation or money judgments against tribal funds.
It is difficult to perceive how the federal courts have managed to
accord this Act such a broad jurisdictional reach. Certainly it flies in
the face of the time honored and well founded doctrine that federal
courts are courts of limited jurisdiction, enjoying only that authority
which Congress has specifically granted. But if this judicial activism
is puzzling, the action of the Department of Justice in establishing an
Indian Rights Division to enforce the provisions of this Act is down-
right inexplicable.
The Indian Rights Division was established in the Department of
Justice on August 13, 1973, with a broad mandate to enforce on be-
half of Indian people the protections extended to them by the Civil
Rights Acts of 1957, 1960, 1964 and 1968, the Voting Rights Act of
1965, Title II of the Indian Civil Rights Act of 1968, and other acts
providing federal protection of individual civil rights. While the work
of the Indian Rights Division in enforcement of civil rights is to be
commended, the, early focus of this Division appeared most heavily
directed toward enforcement of Title II rights against tribal gov-
ernments. This was precisely what S. 963 would have authorized-a
provision which was not included in the 1968 Civil Rights Act when it
was finally passed.
One certainly must question wherein the Department of Justice
finds its authority to bring legal actions against tribes on behalf of
individuals under Title II of the Act. It would appear that in the
matter of civil rights of individuals the Attorney General has only
that power to bring legal actions which Congress has specifically given
him. In the case of Title II of the 1968 Civil Rights Act, power of the
Attorney General was specifically considered in S. 963 and was with-
held.
Virtually every civil rights act since Reconstruction has laid out in
detail the authority of the Attorney General in enforcing their pro-
visions and the authority of the federal courts in the relief which
may be granted. As already noted, in the case of Title II of the 1968
Civil Rights Act, the authority of the Attorney General was spe-
cifically considered and withheld, and except for the habeas corpus
provision of Section 1303, the Act is silent on the question of federal
jurisdiction and remedial relief which may be granted. But through
42Loncasslon v. Leekity, 334 F. Supp. 370 (D.N.M. 1971).




37


the ingenuity of the federal Executive and the activism of the federal
courts, what was originally perceived by Congress as a limited in-
cursion into tribal sovereignty has opened the doors to nearly limitless
litigation possibilities. The brightest spot attending this legislation is
the apparent growing judicial appreciation of tribal needs and the
evolving judicial doctrine requiring exhaustion of tribal remedies as a
condition precedent to the exercise of federal jurisdiction.
The final sentence in the second paragraph of paragraph numbered
one of the Declaration calls upon Congrress to recognize that while there
is no apparent judicial restraint upon its plenary power over Indian
tribes, there is a moral obligation of the highest order to refrain from
legislation which violates its solemn commitments to the Indian people.
The extent of this plenary power has already been demonstrated in
connection with the General Allotment Act of 1887 and the Act of 1906
providing for the Final Disposition of the Affairs of the Five Civilized
Tribes, and the various termination Acts of the 1950"s.43 The lead
ease in terms of judicial handwashing of authority to restrain Con-
gress in its management of Indian affairs is Lone lolf v. fIitchcoCk 44
affirming the power of Congress to unilaterally abrogate its treaties
with Indian tribes. This, in fact, was not the first such judicial treat-
inent of federal legislation vis-a-vis treaty obligations. In The Cher-
okee Tobacco 45 decided in 1870 the Supreme Court had ruled that a
statute of general application, in this case a federal tax statute, super-
ceded a specific treaty provision exemiipting the produce of the Chero-
kee Tribe from federal taxation. The treaty predated the general
statute by only two years and predated the decision by only four
years.
This is not to say that the record of Congress is all bad. Denon-
strably it is not. It is to say, however, that the judiciary has recognized
in Congress virtually unrestricted authority in its management of In-
dian affairs. In Tuscarora Indian Nation v. F.P.C.41, Justice Black,
in a dissenting opinion, noted that "Great Nations, like great men,
should keep their word." The Declaration sought in this paragraph is
no more than that.
2. Pernanency of Tribes
Paragraph numbered two of the prop"Olosed Declaration calls upon
Congress to declare that Indian tribes and tribal governments are now
and forever will be a permanent part of the American political fabric,
and it calls upon Congress to participate in the development of an in-
stitutional framework which will give meaning and substance to that
declaration.
Section 2(5) of P.L. 93-580 47 establishing this Policy Review Com-
mission calls for "an exploration of the feasibility of alternative elec-
tive bodies which could fully represent Indians at the national level
of Government to provide Indians with maximum participation in pol-
icy formation and program development." The primary work of "ex-
ploration of alternatives" is being done by another Task Force. Never-
theless certain comments are in order here.
43 See text accompanying notes 1S through 23.
S4 187 U.S. 553 (1903).
45 78 U.S. (11 Wall.) 616 (1870).
'0 362 U.S. 99, 126 (1960).
47 Act of Jan. 2, 1975, 88 Stat. 1191.





38


The proposed Declaration in this paragraph numbered two does not
commit the Congress to any institutional form-it does commit the
Congress to a principle. It is a commitment of vital importance to the
Indian people, for it will give clear and concrete assurances that Con-
gress meant what it said when in January 1975 it declared "its com-
mitment to the maintenance of the Federal Government's unique
and continuing relationship with and responsibility to the Indian
people through the establishment of a meaningful Indian self-deter-
mination policy..." 48
One of the greatest fears of the Indian people is that of termina-
tion-withdrawal of federal recognition and, incidently, of federal
services. The thrust of all 12 paragraphs of this proposed Declaration
of Policy, the thrust of the work of this Commission, and the thrust of
federal legislation over the recent years has been to aid Indians in
achieving parity with their non-Indian neighbors in matters of health,
education. and social and economic well-being. But the record of the
federal government in termination legislation reflects that it is precisely
those tribes which come closest to true parity that are first singled out
for termination.49
Through the enactment of the Menominee Restoration Act in 1973,50
the Indian Financing Act of 1974,-' and the Indian Self-Determina-
tion and Education Assistance Act of 1975,52 Congress has made clear
its abandonment of the termination policies manifested in H.C.R. 108.
But this is not enough. The Congressional policy of today is but a mat-
ter of historical interest tomorrow. What is clearly needed is the
development of an institutional framework within the American po-
litical system which will assure to the Indian tribes their permanent
place in the political structure of this country.
As we noted at the beginning of this discussion, the "exploration of
alternatives" is the work of another Task Force. However, we cannot
help noting in passing that the Congress has had no difficulty in ac-
cording to the Commonwealth of Puerto Rico, the District of Colum-
bia, Guam and the Virgin Islands non-voting representation in the
Hosue of Representatives. In connection with these four delegates we
note that only the delegate from the Commonwealth of Puerto Rico
serves a population greater than that of the recognized Indian com-
munity within the United States.53
We believe that consideration should be given to opening the doors
of Congress to similar representation by American Indians. How bet-
ter could one accomplish the desires expressed in Section 2 (5) of
Public Law 93-580 that Indians be accorded "maximum participa-
tion in policy formation and program development." How better
could one quell the fears of the Indian leaders that Congress might
41 Act of Jan. 4. 1975. Sec. 3 (b), S8 Stat. 2203, 25 U.S.C. 450a(b) (1970).
49 The Congressional studies and reports which led to eventual adoption of H.C.R. 108,
8.3rd Cong., 1st Sess., are replete with references pegging early termination to the
comparative economic well-being and social sophistication of the tribes. Certainly this
was the central criteria employed by Congress In terminating or withdrawing federal
recognition from the Menominees. See Act of June 17, 1954, 68 Stat. 250, 25 U.S.C. 891
et seq. (1970).
50 Act of Dec. 22. 1973. 87 Stat. 779, 25 U.S.C. 903 et seq. (Supp. 1976).
51 Act of April 12. 1974. 88 Stat. 77. 25 U.S.C. 1451 et seq. (Supp. 1976).
52 Act of Jan. 4. 1975. 88 Stat. 2203. 25 U.S.C... 450 et seq. (Supp. 1976).
The 1976 Con-ressional Directory, 94th Cong., 2nd Sess., pp. 196-97, shows the
population of the Commonwealth of Puerto Rico to be 2,712,033 ; District of Columbia to
be 756.510 : Guam 84.996 and the Virgin Islands 62,468.
5 Act of Jan. 2, 1975, 8S Stat. 1911.





39


one day return to the policies of termination. How better could Con-
gress give assurance to the Indian people that they are a truly re-
spected permanent part of the American political fabric.
The system for choosing their representative must, of course, be de-
veloped by the Indian people.55 The adoption of the Declaration of
principle contained in paragraph two will serve as a mighty stimulus
to debate and councils among the Indian people which will lead to the
development of the "elective bodies" called for in Section 2 (5) of
Public Law 93-580.
3. Sources of Tri4bal Authority
Paragraph three of the proposed Findings and Declaration of
Policy calls upon Congress to recognize that the power and authority
of Indian tribes emanates from their recognized status as sovereign
dependent nations; that the powers of the tribes do not derive from
any grant from the Constitution of the United States nor from any
Act of Congress: that the Indian tribes always have had and do now
retain all powers of any sovereign except as to those powers which
have been specifically limited by treaty or by federal statute; and that
within these limits, the Congress reaffirms its commitments to leave
the Indian people within the Indian country free from state or fed-
eral authority and free to be governed by their own code of laws.
Nothing could be more clear than that Indian tribes are distinct
political entities whose separate sovereignty has been uniformly rec-
ogized by the federal government throughout history.
The Indian Trade and Intercourse Acts from 1790 through 1834 5
were premised on that concept; the entire course of treaty dealings,
between the United States and the Indian tribes was premised on that
concept; 5T the Indian Reorganization Act of 1934 and the Oklahoma
Indian Welfare Act of 1936 were premised on that concept; 58 the
Acts terminating federal recognition were premised on that concept;
Title II of the 1968 Civil Rights Act was premised on that concept; 51
and the Indian Self-Determination and Education Assistance Act is
premised on that concept60
The separate sovereignty of Indian tribes has been repeatedly ac-
knowledged by the federal judiciary ever since the decision in
Worcester v. Georqia in 1832.,1 See Ex parte Crow Dog (1,883), -2
Talton v. Mayes (1896),s U.S. v. Quiver (1916),4 Iron Crow v.
Ogidla Sioux (1956) 15 Barta v. O.ql~aa Sioux Tribe (1958),66 Native
American Church v. Navajo Tribal Council (1959),67 Williams v. Lee
5 The Task Force has not researched this question In depth. but from a cursory reading
of Article 1, Section 2. Clause 1 of the U.S. Constitution in the U.S. Code Annotated,
particularly the annotations under note 6. it would appear there is great latitude for the
development of alternative systems which could be adopted by the Indian community
for the selection of Indian delegates. This might even include an "Ambassador at Large"
elected by a national Indian advisory board and subject to recall by such board.
58 Act of July 22. 1790, ch. 33, 1Stat. 137'; Act of June 30, 1834, ch. 161, 4 Stat. 729.
See also note 4. supra.
5 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ; Worcester v. Georgia, 31 U.S.
(6 Pet.) 515 (1832).
58 Act of June 18, 1934, 48 Stat. 984 : Act of June 26, 1936, 49 Stat. 1967.
W Title II. Act of April 11. 1968. 82 Stat. 77.
00 Act of Jan. 4, 1975, 88 Stat. 2203.
61 Note 57, supra.
82 109 U.S. 556 (1883).
w 163 U.S. 376 (1896).
"241 U.S. 602 (1916).
w231 F. 2d 89 (Sth Cir., 1956).
1 259 F. 2d 553 (8th Cir., 1958).
7 272 F. 2d 131 (10th Cir., 1959).
83-755-77--4





40


(1959),68 McClanahan v. State Tax Commission (1973),69 and U.S.
v. Mazurie (1975).70
Yet despite the clarity of these judicial pronouncements, and the
history of the unique Federal-Indian relationship manifested through
these statutes, courts continue to lose sight of the sovereign character
of Indian tribes, and Congress and administrators continue to wonder
where a tribe gets its authority to perform certain acts.
Thus in Colliflower v. Garland 71 and Settler v. Yakima Tribal
Court,72 the 9th Circuit stopped just short of finding the courts of those
tribes a federal instrumentality based on the fact they received fed-
eral support and were successors-in-interest to courts originally estab-
lished by the Secretary of the Interior.73 In U.S. v. De Marrias 7
and U.S. v. Kills Plenty,75 the doctrine of double jeopardy and collat-
eral estoppel were raised by defense counsel as a bar to federal prose-
cution subsequent to trials in tribal courts again on the theory that tri-
bal courts were mere instruments of the federal government. The
De Marrias case was decided on other grounds. In Kills Plenty the
three judge court divided on the issue of whether tribal courts were
arms of the federal sovereign or derived their authority from the sov-
ereign power of the tribe, the majority of the court ruling in favor of
tribal sovereignty on the basis of its prior decision in Iron Crow v.
Oglala Sioux Tribe,76 the dissent holding otherwise on the basis of
Colliflower and Settler.
In U.S. v. Mazurie we are treated to the spectacle of the 10th Circuit
rejecting 150 years of judicial precedent by going out of their way in
dicta to find that Indian tribes are no more than associations of
citizens whose power is limited to its own membership,78 a proposition
which the Supreme Court promptly rejected in reply dicta in reversing
the 10th Circuit decision.79 And in Oliphant v. Schlie 80 decided by the
9th Cir. in Aucgust, 1976, we find a dissenting judge debating the point
of whether the authority of a tribal court springs from the sovereignty
of the tribe or rests on a federal grant of power.
The need for clarification of this issue for the courts, Congress and
the Executive is manifest. If tribes are found to be mere instruments
of the federal government, 200 years of carefully constructed statutory
riid decisional law will be thrown out the window; if their powers are
found to be dependent upon a federal grant, it will be necessary for
Congress to enact an entirely new code of laws, for the basic premise
of the present statutory scheme evolved over the history of this Nation,
is one of recognizing, removing, and restoring the powers of tribes-
a scheme which is at complete locgerheads with the notion that the
power of the tribe springs from federal grant.
3358 U.S. 217 (1959).
6411 U.S. 164 (1973).
70 419 U.S. 544 (1975).
71 342 F. 2d 369 (9th Cir., 1965).
72419 F. 2d 486 (9th Cir., 1969). rert. denied. 298 U.S. 90.3 (1970).
73 Title II of the 1968 Civil Rights Act (25 U.S.C. 1301-1303) with its statutorily
defined rights and provision for habeas corpus review of tribal court judgments eliminated
the need for resort to this dangerous doctrine.
74441 F. 2d 1304 (8th Cir.. 1971).
751 466 F. 2d 240 (8th Cir., 1972).
76 See note 65, supra.
77 See notes 71 and 72. supra.
78 487 F. 2d 14 (10th Cir., 1973).
79 419 U.S. 544 (1975).
80 No. 74-2154 (9th Cir.), appeal noted April 30, 1974, decision docketed August. 1976.







Paragraph three of the proposed Declaration not only calls upon
Congress to recognize the source of tribal authority as springing from
their own inherent sovereignty, it also calls upon Congress to declare
that the tribes retain all of their sovereign powers except as those
powers have been specifically limited by treaty or federal statute.
The doctrine that Indian tribes retain all those inherent powers of
any government, except as expressly withdrawn by Congress, is well-
established. The origin of this principle can be traced to the 1S32
landmark riling of Chief Justice John Marshall in Worcester v.
Georgia.8' The Interior Department's legal treatise on Indian law,
originally published in 1940 under the editorship of Felix Cohen,
emphatically restates the "inherent powers" doctrine.2 Reaffirmation
of this fundamental tenet has been expressed in numerous judicial rul-
ings since Cohen's scholarly work first appeared. .
Congress since passage of the Indian Reorganization Act in 1934 84
has on several occasions recognized both the inherent powers precept
and the federal trust obligation to foster tribal self-government.85
Some judicial rulings, however, as discussed above, have lost sight of
the source and scope of inherent tribal sovereignty. Thus, in para-
graph three of our proposed Declaration we ask Congress to restate
the inherent powers principle. Recommendations for more effective
implementation of this principle are set forth in Part V, Chapter 1
infra which sets forth our suggestions for realignment and revision of
Title 25 of the United States Code.
4. Reaffirmation of Trust Commi;men t
Paragraph four of the proposed Declaration calls upon Congress to
recognize that since the founding of this Nation it has been the declared
policy of the United States Government to preserve and protect the
people, the property and the governments of the Indian nations. It asks
that Congress reaffirm its commitment to that policy.
Of all of the paragraphs in the proposed Declaration, this is prob-
ably the most innocuous, and yet it is as important to the rights of
Indians as are any of the other findings or declarations. It is innocuous
because the books of statutes and the books of case law are filled with
reaffirmations of the federal policy and the federal duty to protect the
people, the property and the governments of the Indian nations. It is
important because too often the Congress has deviated from this well
chosen path.6 Too often the federal Executive has failed to fulfill its
trust obligations already defined by law. Too often the courts have
given sanction to blatant violations of the trust obligations on the

1 31 U.S. (6 Pet.) 515, 559-560 (1832).
8 F. Cohen, Handbook of Federal Indian Law 122-123 (originally published in 1940;
Univ. of New Mexico reprint, 1971). The late Justice Frankfurter described this work
as "an acknowledged guide for the Supreme Court in Indian litigation." F. Frankfurter,
Of Life and Law and Other Thing8 that Matter 143 (1967).
; See, e.g., Bryan v. Ita.ca County, U.S. 96 S. Ct. 2102, 2111 (June 14, 1976) ; Fisher v.
District Court, U.S., 96 S. Ct. 943, 947 (March 1, 1976); Williams v. Lee, 358 U.S.
217, 220 (1959) ; Oliphant v. Schlie, supra note 80; Iron Crow v. Oglala Sioux Tribe, 231
F. 2d 89, 98 (8th Cir., 1956)
P Act of June 18, 1934. 48 Stat. 984, 25 U.S.C. 461 et seq. (1970). See Part V, Chapter
1 infra for a detailed discussion of the affirmance of tribal self-government by this Act.
8See, e.g.. The Indian Civil Rights Act of April 11. 1968, 201(1), (2), 82 Stat. 77, 25
U.S.C. 1301(1), (2) (Supp. 1976) ; the Indian Self-Determination and Education Assist-
ance Act of January 4, 1975, 88 Stat. 2203, 25 U.S.C. 450 et 8eq. (1970). See also
Part V, Chapter 1 infra.
80 See text, page 33 accompanying notes 18-23.





42


theory that "[w]e must presume that Congress acted in perfect good
faith ,,* 187
Except for the deviations of Congress, these are not problems of
principle-they are failures of implementation. The problems of
federal trust obligations are discussed extensively in the report of Task
Force No. 1. In Part V of this report, the report of Task Force No. 9,
we propose adoption of rules of general construction and rules relating
to affirmative enforcement and award of attorney fees which should go,
far toward alleviating the deficiencies in Executive and Judicial im-
plementation.
In the Northwest Ordinance of 1787 Congress provided:
The utmost good faith shall always be observed toward the Indians; their
land and property shall never be taken from them without their consent; and in
their property, rights and liberty, they never shall be invaded or disturbed unless
in just and lawful wars authorized by Congress; but laws founded in justice
and humanity shall from time to time be made, for preventing wrongs being
done to them, and for preserving peace and friendship with them.'
The Declaration sought in this paragraph asks no more than that
Congress reaffirm its commitment many times made to exercise and
to require of others the exercise of utmost good faith toward the
Indian people.
5. Removal and Assimilation Policies as Causes of Economic
Deprivation and Jurisdictional Conflict
Paragraph five of the proposed Declaration calls for a finding that
the policies of the Westward Removal Act of 1830 and the General
Allotment Act of 1887 were ill conceived and that these policies of
the past have a direct relationship to the economic and social condition
of the American Indian today, and a direct relationship to the problems
that now confront tribal governments everywhere.
The pity and pathos accompanying the Westward removal policies
has been so thoroughly documented by so many historians it simply
bears no repetition here. The entire Nation knows the shame of that
period of history. What is less understood is the wrong that attended
the Indian policies of the late 19th and early 20th centuries when the
remaining Indian land base was being broken up, conscious efforts
were made to bring about the demise of tribal governments and con-
certed efforts in the guise of Indian education made to obliterate from
the face of the globe the Indian languages and Indian customs.
That the General Allotment Act of 1887 and its progeny of some
108 allotment and opening statutes 91 was designed to accomplish the
first two of these objectives is well documented." In fact it was precisely
this process which the Indian Reorganization Act of 1934 was de-
signed to reverse. The educational policies of the federal establishment
in the early years of this century are also well documented."
87 Lonewolf v. Hitchcock, 187 U.S. 553. 567, 568 (1903).
8MThis Ordinance was recodified verbatim by the First Congress in 1789. See Act of
Aug. 7, 1789, ch. 8, 1 Stat. 50. The quoted language is from Article III of this Ordinance.
89 Act of May 28, 1830, ch. 148. 4 Stat. 411.
90 Act of Feb. 8, 1887, ch. 119, 24 Stat. 388.
91 Sve note 24, supra. See Exhibit 1 to Part IV.
92 Problem of Indian Administration, Brookings Institution (1928), edited by L. Meriam.
93 Act of June 18. 1934, ch. 576, 48 Stat. 984 (25 U.S.C. 461 et seq.)
94 Senate Committee on Labor and Public Welfare, Indian Education: A National
Tragedy-A National Challenge. S. Rept. No. 91-501, 91st Cong., 2d Sess. (1969).




43


The impact of the allotment and opening statutes with its concom-
itant checkerboarding of reservation landholdings and the jurisdic-
tional conflict which this has engendered between tribal, federal and
state governments is well known. The effect of the educational policies
in destroying individual pride and undermining respect for tribal
elders, tribal authorities and tribal institutions is less easily measured.
The provision in this paragraph five of the Declaration asks no more
than that Congress recognize the present consequences of the misbe-
igotten policies of the past.
6. Reaffirmation of Indian Reorganization Act Commitment8
Paragraph six of the proposed Declaration calls upon Congress to
reaffirm the policies of the Indian Reorganization Act of 1934:" to
put an end to the allotment era; to restore to the Indian people an
economically viable land base: to provide the Indian people with suffi-
cient credit through a revolving loan fund that they might develop
their own resources and business institutions; to recognize the rights of
the Indian people to be self-governing; and to provide through the em-
ployment preference policy for eventual control by Indian people of
the Federal agencies responsible for protection of their resources and
delivery of services to them.
There is nothing new in this proposal. The Indian Reorganization
Act (IRA) remains as one of the basic statutes governing Indian
Affairs today. The fundamental policy conceptions underlying its en-
actment have been restated in more recent legislation, notably Title II
a.nd IV of the 1968 Indian Civil Rights Act,96 the Indian Financing
Act of 1974,11 and the Indian Self-Determination and Education As-
sistance Act of 1975.9
The companion measure to the IRA, the Oklahoma Indian Welfare
Act of 1936 (OITWA)," was intended to extend all of the policy goals
of the 1934 legislation to Indian tribes in Oklahoma. The objectives
of both statutes, however, have not been implemented adequately in
the last forty years. This is true especially with regard to land acquisi-
tion, federal employment preference, and full recognition by federal
administrators of the residual sovereignty still vested in tribal govern-
ments. In Part V infra detailing our proposed realignment of Title 25
of the United States Code, as well as in Part VIII infra setting forth
special recommendations regarding Oklahoma Tribes, we suggest the
m.nerger and revision of IRA and OIWA with the intention of enhanc-
ing implementation of their original goals.
7. Repudiation of Termination and Restoration of Federal
Recognition
Paragraph seven of the Declaration calls upon Congress to acknowl-
edge the wrongs of the termination era and to repudiate clearly and
forcefully H.C.R. 108 100 which lay at the heart of this Congressional
period. We have already noted the fear with which the Indian com-
munity regards this period of legislative history.10' The psychological
25 U.S.C. 461 et seq.
Act of April 11, 1968, 82 Stat. 77 (25 U.S.C. 1301-1303, 1321-1326).
9 Act of April 12. 1974. 88 Stat. 77 (25 U.S.C. 1451 et seq.)
"Act of Jan. 4. 1975. 88 Stat. 2203 (25 U.S.C. 450 et seq.)
"Act of June 26. 1936, ch. 831. 49 Stat. 1967 (25 U.S.C. 501 et seq.)
"'*0 H.C.R. 108, 83rd Cong., 1st Sess.
102 See text accompanying note 49.







impact of this Resolution still looms large in the minds of the Indian
people.
Through passage of the Menominee Restoration Act of 1973,12 the
Indian Financing Act of 1974,103 and the Indian Self-Determination
and Education Assistance Act of 1975,104 Congress has already repudi-
ated this Resolution in spirit. Only stubborn refusal to admit error
or stubborn indifference to the concerns the continued presence of
H.C.R. 1OS has on the Indian people can cause Congress to refuse an
express repudiation of this document.
This paragraph also calls upon Congress to commit itself to the
development of general criteria which will facilitate restoration of
Federal recognition to those tribes previously terminated. The devel-
opment of such criteria is principally the work of Task Force No. 10.
Paragraph number eleven of our proposed Declaration also calls for
development of criteria for according recognition to previously un-
recognized tribes, another function which is the primary work of
Task Force No. 10. We do not propose any criteria in this proposed
Declaration but we do touch briefly on the issue in Part V of this.
Report.
8. Reaffirmation of Policies of Recent Legislation
Paragraphs eight, nine and ten of the proposed Declaration call
upon Congress to reaffirm the commitments it so forcefully and elo-
quently proclaimed in the Indian Financing Act of 1974 and the Indian
Self-Determination and Education Assistance Acts of 1975. It is too,
early to understand the full ramifications of these Acts, but the pro-
nounced goals are clearly in the best interest of Indians. The Task
Force asks for a restatement of these goals only to facilitate the process-
of codification.. See discussion Part V of this Report.
9. Recognition of Unrecognized Tribes
Paragraph number eleven calls upon Congress to recognize that
there are numerous tribes and groups of Indian people who have been
denied Federal recognition for lack of a treaty relationship with the
United States or lack of some other contact with Federal authorities
administering Federal Indian laws. This fact is in fact well known by
Congress. Recent legislation regarding educational grants adminis-
tered by the Department of Health, Education, and Welfare, and
funding for development and maintenance of manpower training pro-
grams administered by the Department of Labor has included not only
Federally recognized tribes, but also tribes which have been term-
inated. tribes recognized by the states but not the Federal Government,
and other nonfederally recognized Indian organizations within the
scope of their program authorization.05
This is not iust a recent insight by federal authorities. In 1935 im-
mediately following passage of the' Indian Reorganization Act, As-
sistant Solicitor Felix Cohen in a memorandum to the Commissioner
of Indian Affairs held that half-blood members of the "Siouan Indians
of North Carolina", while not a "recognized tribe now under federal
102 Act of Dec. 22, 1973, 87 Stat. 770.
103 Note 97, supra.
104 Note 9q. supra.
105 Title TV of Indian Education Act of 1972, Act of June 23, 1972, 86 Stat. 345 (20
U.S.C. 1221h) : Title ITT of the Comprehensive Employment and Training Act of 1973,
Act of Dec. 28, 1972, 87 Stat. S58 (20 U.S.C. S48a, 872).





45


jurisdiction", nevertheless were entitled to certain benefits under the
1934 Act, including the right to organize under Section 16 and 17 of
that Act.106
Recent federal court decisions have affirmed the right of previously
unrecognized tribes and tribal groups to the protection of federal
Indian statutes. In Maynor v. Morton 107 decided in 197-, it was held
that the provisions of the Indian Reorganization Act of 1934 applied
to the one-half blood members of the Lumbee tribe in North Carolina.
Among the benefits the Act accorded them"... was the right to petition
the Secretary to establish a reservation for such individuals, which, if
granted, would afford them access to a wide range of federal Indian
services [as members of a recognized Indian group on a
reservation.] 'o8
And in Passamaquoddy Tribe v. Jlorton 1o9 also decided in 1975, it
was held that the tribe was and always had been recognized (albeit
not "federally recognized") to be an Indian tribe, that the state of
Maine had always dealt with them as a tribal unit, and that there was
no evidence that the absence of federal dealings with them was based
on any doubts as to the genuineness of their status as an Indian tribe.
The court affirmed the holding of the IT.S. District Court below that
the Nonintercourse Act of 1834 110 made no distinction in the tribes
to which it applied and, on the basis of that Act, a trust relationship
did exist between the Passamaquoddy Tribe and the United States.
As a follow through comment to these two decisions, it is noted
that the Lumbees first sought federal aid from the Bureau of Indian
Affairs for their educational system in the late 1800's. Their petition
was denied at that time not on the grounds that they were not an
Indian tribe but rather on the grounds that there was insufficient
money to operate the programs for Indian tribes which the Bureau was
already servicing."'
Despite the victory in the Passamaquoddy case, there is an internal
dispute now raging within the Department of the Interior over ex-
actly what services the Department will accord that tribe. At the heart
of this conflict is money.
Additional conflicts within the Department of the Interior involve
the Stillaguamish tribe of Washington and several smaller tribal
groups of that region, all of which have fishing rights which are af-
fected by the famous Boldt decision in U.S. v. WVasn71dqto..2 The
conflict here involves both money and the recognition of rights of
any other Indian entities other than those the Department is already
obligated by law to recognize.
The money issue is a matter of very serious concern not only to the
Department of the Interior but also to those federally recognized
IM See K. Funke. Education Assi.stance and Employment Preference: Who is an Indian,
4 American Indian L. Rev. 1 at 26 (1976).
I7 510 F. 2d 1254 (D.C. Cir., 1975).
108 Id. at 1256.
Uo.Joint Trihal Cournci of the Pa.aaqnoddy Tribe v. Morton, 528 F. 2d 370 (1st Cir.,
1975). aftWg 388 F. Supra. 649 (D. 'Maine, 1974).
10Indian Trade and Intercourse Act of 1834, Act of June 30, 1834, ch. 161, 4 Stat.
729. now codified In 25 U.S.C. 177 (1970).
"I The specific document in which this decision was made Is not Immediately available
to the Task Force. It is included in the records of the Interior Department on the Maynor
case. The file was originally docketed in the Solicitor's docket room under the caption
Locklear v. Morton.
1122854 F. Supp. 312 (W.D. Wash., 1974), aff'd, 520 F. 2d 676 (9th Cir., 1975), cert.
den., U.S. (1976).





46


tribes already under federal jurisdiction. The fact of the matter is that
there never has been sufficient money appropriated to adequately fund
the programs which the Congress has directed the Bureau of Indian
Affairs and other agencies to perform. The causes of this deficiency are
not within the scope of this Task Force Report.
What is clear is that given the long-standing funding inadequacy,
the Bureau of Indian Affairs, the federal Executive generally, and all
of those tribes which are now federally recognized and are now re-
ceiving federal services must, of necessity, be resistant to the extension
of federal recognition and federal services to Indian tribal entities
which have been overlooked or ignored in the past.
In recognition of this very legitimate concern, the Task Force calls
for the development of criteria which will facilitate the extension of
recognition to Indian groups which have previously been denied fed-
eral recognition, but insists that such extension of recognition must be
coupled with a firm Congressional commitment to appropriate such
additional funds in the future as are necessary to provide services to
these newly recognized entities without diminishment of services to
those tribes already recognized.
As previously noted, development of such criteria is the principal
responsibility of Task Force No. 10. However, this Task Force does
propose certain tentative criteria in Part V of this Report.
10. Urban Indians and Delivery of Services
Paragraph twelve of the Declaration, the last paragraph, calls upon
Congress to recognize that there is a substantial Indian population
residing off-reservation in urban areas with needs not unlike those re-
siding within the reservation setting. It calls upon Congress to recog-
nize that many of these people are members of Federally recognized
tribes but many others are not. Finally it calls upon Congress to rec-
ognize that whether or not these people are members of Federally
recognized tribes, they share a common historical, cultural and social
background which has caused the existing urban social system to fail
them and which justifies and requires a Federal commitment to the
delivery of services through programs specifically designed to meet
their needs. As in the case of extension of recognition to previously
unrecognized tribes, this paragraph requires that this commitment to
providing services to urban Indians not be done at the price of
diminishment of services to those tribes already Federally recognized.
The development of a needs assessment of the urban and rural
non-reservation Indians is the primary work of Task Force No. 8. The
report of this Task Force, Task Force No. 9, makes no attempt to
assess these needs or make any suggestion for legislation relating to
program development. We do note that the provisions of current
laws, particularly the Snyder Act of 1921,1113 certain provisions of the
Indian Reorganization Act of 1934,114 the Johnson-O'Malley Act of
1934,115 and the Vocational Training Act of 1956 116 in addition to the
I's Act of Nov. 2, 1921, ch. 115, 42 Stat. 208 (25 U.S.C. 13).
114 Act of June 18, 1934, oh. 576. 48 Stat. 984 (25 U.S.C. 461 et seq.). See K. Funke,
Educational As8istance and Employment Preference: Who is an Indian, 4 Am. Ind. L. Rev.
1 (1976).
I1s Act of April 16, 1934, ch. 147, 48 Stat. 596, as amended, (25 U.S.C. 452 seq.).,
See also K. Funke, Op. cit.. note 114 supra.
116 Act of August 3, 1956, ch. 930, 70 Stat. 98;, as amended, (25 U.S.C. 309, 309a).





47


legislation codified in other Titles of the United States Code 117 are
broad enough to.authorize current programs off-reservation, within
urban settings or in rural non-reservation areas.118
(The term "rural non-reservation Indian" is intentionally omitted
from the proposed Declaration. It is a term principally directed at
Oklahoma Indians. We believe the term is completely misleading, a
source of much trouble, and is a term founded on an erroneous prem-
ise. See Special Oklahoma report, Part VIII of this Report).
The election of the Bureau of Indian Affairs to restrict its program
activity to members of Federally recognized tribes who live on or near
a reservation,119 or to provide by regulations for a one year cut-off
period of assistance to Indians who relocate from the reservation
setting to the urban environment,20 is primarily a decision dictated
not by desire but by a limitation of resources.
The Declaration proposed in this section is designed to cut through
the esoteric debate that so frequently accompanies discussion of de-
livery of services to urban Indians or Indians who live in a rural non-
reservation setting. Too often the discussion descends to the question
of whether a person is or is not a "member of a Federally recognized
tribe."
From the standpoint of delivery of services in an urban setting
there can be no magic ascribed to tribal membership per se. Surely it
serves no rational purpose to argue that a Klamath Indian living in
Seattle was an Indian entitled to federal services on August 13, 1954,
the date of the Klamath Termination Act,12' but he ceased to be an In-
dian the day after that Act became effective. Certainly it is non-
sensical to say that a Menominee Indian living in Minneapolis was
an Indian entitled to federal services on June 17, 1954, the date of
their termination Act,'122 that he was not an Indian the day after that
Act took effect, but that magically on Christmas Eve of 1973, the date
of their restoration Act 23 he again became such an Indian.
Clearly such discussion leads nowhere. Nor does discussion premised
on treaty obligation. The unrestrained plenary power of Congress
to unilaterally abrogate the treaty commitments of the United States
has already been discussed.124 Either Congress will deliver the services
or they won't. Moral commitments aside, it is entirely within their
prerogative.
What this Declaration does seek is for Congress to recognize that
there is a substantial body of Indian people living in the urban setting:
that whether or not these people are members of a currently recognized
tribe they are all Indians, sharing a common social and cultural back-
ground; sharing a common historical background with the "dominant
society" which dislocated them; .people sharing in common a claim
upon the United States for aid in coping with this modern society.
7 See note 105, supra.
us Ruiz v. Morton, 415 U.S. 199 (1974) ; Maynor v. Morton, 510 F. 2d 1254 (D.C. Cir.,
1975).
I" Title 66, Indian Affairs Manual, 3.1.4. (1965 release). See B.I.A. Manual study,
Part VII of this Report, pp. 341-382.
Title 25, Code of Federal Regulations, Part 34, Sections 34.1 et seq.; Vol. 82 Indian
Affairs Manual. See B.I.A. Manual study, Part VII of this Report.
In Act of Aug. 13, 1954, ch. 732, 68 Stat. 718 (25 U.S.C. 564 et seq.).
Act of June 17, 1954, ch. 303, 68 Stat. 250 (25 U.S.C. 891 et seq.).
'm Act of Dec. 22, 1973, 87 Stat. 779 (25 U.S.C. 903 et seq.).
124 See text page 37 accompanying notes 43-45.





48

Surely this is all the justification that is necessary-to support the fund-
ing and operation of federal programs specifically designed for the
Indian needs.
The Task Force concludes its discussion of this paragraph of the
Declaration by reemphasizing the need that in the funding and op-
eration of these programs the services directed to the reservation based
Federally recognized tribes not be slighted or diminished. From all
of the evidence gathered by the Policy Review Commission the needs
of the reservation based Indians are even now being inadequately
served. Further dissipation of moneys for those programs would be
intolerable.





























P RA T V



MAJOR RECOMMENDATIONS ON REVISIONS OF TrrLE 25 OF THE


UNITED STATES CODE

-CHAPTER 1. BASIC PRINCIPLES OF THE FEDERAL TRUST RESPONSIBILITY TO INDIAN
TRIBES

-CHAPTER 2. FEDERAL ADMINISTRATION

-CHAPTER 3. LANDS: ACQUISITION, CONSOLIDATION, MANAGEMENT AND DISPOSITION

-CHAPTER 4. NATURAL RESOURCES

CHAPTER 5. ECONOMIC DEVELOPMENT

CHAPTER 6. FUNDS-DEPOSIT AND INVESTMENT OF INDIAN MONIES

-CHAPTER 7. DESCENT AND DISTRIBUTION

'CHAPTER 8. SERVICES

-CHAPTER 9. JURISDICTION AND PROCEDURE

-CHAPTER 10. MISCELLANEOUS










IPARI V. MAJOR RECOMMENDATIONS ON REVISION OF TITLE 25 Or THE
UNrr STATES CODE
INTRODUCTION
In light of the statutory charge given the Task Force-to consoli-
date, revise, and codify Federal Indian laws--we have examined
Title 25 of the United States Code, provisions affecting Indians that
are found in other Titles of the Code, and relevant uncodified laws
containd in the United States Statutes at Large. Due to the volume
and complexity of these materials, our primary analysis was addressed
to Title 25. Our proposals herein, however, do include some recommen-
dations regarding statutes outside of that Title.
Our primary recommendation with regard to Title 25 calls for re-
codification thereof in accord with our suggested realignment and
substantive revisions of the provisions contained therein. As a matter
of structure, we propose initially a new Part and Chapter breakdown
for a recodified Title 25. This approach is intended to organize that
Title into a more orderly and logical framework than presently is
found therein. More significantly, our recommended realignment is
designed to emphasize a structural framework for Title 25 that is
consonant with the prevailing federal policies of Indian cultural,
economic and political self-determination.
In addition to this schematic rearrangement of the present Title 25,
we have also made extensive recommendations regarding repeal and
amendment of various sections therein. We further have proposed the
addition of new provisions to be codified in that Title. These substan-
tive recommendations have been premised upon the following goals:
(1) to eliminate provisions that axe obsolete either due to the passage
of time or the enactment of subsequent legislation; (2) to consolidate
provisions that are redundant or that should as a matter of logic and
coherence be merged; (3) to repeal provisions that reflect past federal
policies totally inconsistent with the current Congressional commit-
inent to Indian self-determination; (4) to amend provisions where
feasible to accord with this present federal commitment; and (5) to
add new provisions that will facilitate implementation of that
commitment.
In seeking to achieve these goals, we have examined all provisions
now found in Title 25 in considerable detail. Our theoretical frame-
work for both realignment and substantive revisions of that Title
has been the "Congressional Findings and Declaration of Policy"
set forth in Part IV of our Report supra. Attached as Appendix I to
this Report is a Chart which lists: (1) all provisions of general ap-
plicability contained in Title 25; (2) our proposed placement of those
provisions within the recommended structural realignment of that
Title; (3) our proposals, along with brief commentary, regarding
retention, deletion,. repeal, consolidation or amendment of each pro-
vision; and (4) cross-references to other relevant provisions of the
realigned Title. See Volume II, pages 1-145.
(51)





52


Our recommended realignment of Title 25 projects a division thereof
into the following 10 Parts:
Part I. Basic Principles of the Federal Trust Responsibility to Indian Tribes.
Part II. Federal Administration.
Part III. Lands.
Part IV. Natural Resources.
Part V. Economic Development.
Part VT. Funds.
Part VII. Descent and Distribution.
Part VIII. Services.
Part IX. Jurisdiction and Procedure.
Part X. Miscellaneous.
Following the master chart that covers our proposals with respect
to each provision of the current Title 25, we have charted in Appendix
I the Chapter breakdown of each of the above new 10 Parts, exclud-
ing Part I, Basic Principles of the Federal Trust Responsibility to
Indian Tribes, which includes for the most part new statutory pro-
posals hereinafter discussed.
We have included in Appendix V the research materials used in
preparation of the appendiced charts. These materials include a
detailed subject matter breakdown or index of Title 25 which we
developed as a guide for rearrangement and revision of the Code.
This subject matter index divided all the present Title 25 sections, or
parts thereof, into a tentative Part and Chapter realignment. From
this point we then developed extensive charts, with substantive com-
mentary included, that refined further our initial organization scheme
for the Code. See Volume II, page 763.
Both the subject matter index and these preliminary charts will be
available as working papers for use by the Policy Review Commission
and its staff in preparing a Final Report for Congress. Although we
believe that our proposals for realignment and substantive revision of
Title 25 are sound, time has not permitted the exhaustive analysis of
all provisions that should precede recodification. Given the limited
time for preparation of the Commission's Final Report and its reduced
staff, the Commission itself cannot anticipate completion of a thorough
recodification proposal.
Accordingly, we recommend that Congress as soon as feasible should
establish a special body to carry forward on the work we have substan-
tially begun. We further propose that Congress, in authorizing a fol-
low-up recodification effort, should endorse the realignment scheme
we have advanced, especially the "Congressional Findings and Dec-
laration of Policy" set forth in Part IV supra. In addition, we recom-
mend that any body created to complete a recodification proposal for
Congressional consideration should be headed and staffed with Indian
attornovs.
In the balance of this Part V of the Report we discuss our major
recommendations for substantive revision of Title, 25. These recom-
mendations are grouped into 10 chapters, each of which corresponds
seriatim to our proposed 10 Parts of a realigned Code. At the begin-
ning of each of these chapters we have noted briefly the considerations
that led us to recommend each new Code Part as well as the nature of
provisions placed in each Part. Some of our recommendations as noted
below are merely summarized in this Part V, with more detailed anal-
ysis thereof appearing in position papers set forth in Part VI infra.











CiiAPTER 1. BASIC PRINCIPLES OF THE FEDERAL TRUST RESPONSIBILUrY
TO INDIAN TRIBES
In this Chapter we have set forth all of our recommendations regard-
ing the proposal for a new Part I of a recodified Title 25 of the United
States Code. We first summarize the contents of this new Part I and,
thereafter we examine each recommendation in more detail.
Proposed Part I would be designated as "Basic Principles of the
Federal Trust Responsibility to Indian Tribes" and would contain five
Chapters entitled as follows :
Chapter 1. Congressional Findings and Declaration of Policy.
Chapter 2. Reaffirmation of Indian Treaties and Agreements.
Chapter 3. General Construction Statute.
Chapter 4. Criteria for Federal Recognition of Indian Tribes.
Chapter 5. Scope and Exercise of Inherent Powers of Tribal Self-Government.
Chapter 1 would codify the Congressional Findings and Declaration
of Policy set forth in Part IV of our Report,.supra, at pages 28-30.
Chapter 2 would contain an amended version of 25 U.S.C. 71
(1970), with the intent of reaffirming the continuing validity of Indian
treaties as well as codifying the case law rule according to post-1871
agreements between the United States and Indian Tribes a legal stature
essentially equivalent to pre-1871 treaties. In addition, we propose that
henceforth Congress should not abrogate or modify treaties and agree-
ments without the consent of the affected Indians.
Chapter 3 would codify six rules of construction to be utilized by
the executive, legislative, and judicial branches of both the Federal
and State Governments in the interpretation or application of treaties,
agreements, statutes, and executive orders affecting Indians and Indian
tribes. These rules would relate to:
(1) The continuation of rights reserved or granted to any Indian or
Indian tribe by federal treaties, agreements, statutes, and executive
orders absent an explicit Congressional intention to abrogate or to
modify such rights in subsequent legislation;
(2) The codification of general interpretative rules developed by the
courts for determining the nature and extent of rights reserved or
granted to Indians or Indian tribes by federal treaties, agreements,
statutes, and executive orders;
(3) The recognition of Indian tribes as independent units of gov-
ernment for purposes of eligibility under federal domestic assistance
legislation channeling funds to state and local governments;
(4) The recognition of Indian tribes as independent units of gov-
ernment.for purposes of general federal legislation delegating regula-
tory power to State and local governments;
(5) The continuance for jurisdictional purposes of the originally
established boundaries of an Indian reservation absent an expressed
Congressional intention in subsequent legislation to dissolve or to di-
minish such boundaries;
(53)






(6) The codification of the longstanding judicial doctrine that In-
dian tribes possess all inherent attributes of internal sovereignity ex-
cept as explicitly terminated or modified by federal treaties or laws.
Chapter 4 would contain specific standards of general applicability
regarding recognition of Indian tribes by the Federal Government for
purposes of (1) eligibility for federal programs and services, and (2)
application of federal statutes which by their terms apply to "Indian
tribes."
Chapter 5 would address the scope and exercise of the inherent gov-
erning powers of Indian tribes, including provisions to delimit the role
of the Secretary of the Interior in the organization and operation of
tribal governments.
Initially, we would repeal those sections of the 1934 Indian Reor-
ganization Act (IRA) which either operated by their terms, or have
been construed by the Interior Department, to exclude Alaska Natives,
Oklahoma Indian tribes, and about 73 other federally-recognized tribes
from coverage under some or all of the IRA provisions. Further, we
would merge the IRA provisions authorizing optional organization of
tribal governments under Secretarial supervision with comparable
portions of the 1936 Oklahoma Indian Welfare Act (OIWA). As thus
consolidated, these sections of IRA and OIWA would then be sub-
stantially amended to make the following principles and provisions
applicable to all federally-recognized tribes:
(1) The inherent power of any Indian tribe to determine its own
form of government, absent explicit modification by federal treaty or
statute, would be reaffirmed.
(2) Any Indian tribe would be recognized to possess the option of
adopting, amending, and dissolving a constitution and bylaws or
other written organic governing document. The two limitations upon
such tribal options would be:
(a) statutory criteria requiring that a specified percentage of
the tribal membership must approve such action by referendum
vote in elections conducted either by the Secreatry of the Interior
or delegated by him, pursuant to statutory criteria, to tribal con-
trol; and
(b) authorization for the Secretary to approve the validity of
onlv those constitutional provisions or amendments that directly
relate to his trust responsibility as delegated by specific federal
statutes. A similar limitation would be imposed on the Secretary's
review authority over tribal ordinances, resolutions or other laws
enacted pursuant to tribal organic governing documents.
(3) Any Indian tribe, regardless of whether or not it has adopted a
written constitution, would be recognized to possess all inherent attri-
butes of internal sovereioty except as explicitly abrogated or modified
by treaty or Act of Congress. In addition, again independent of
whether or not a tribe is constitutionally organized, all tribes would be
accorded those. rights and protections now found in paragraph two of
IRA 16 (25 U.S.C. 476). including most notably the power to veto
anv disnosition of tribal lands and funds bv the Federal Government.
(4) The authority of the Secreatrv of the Interior to resolve dis-
piites eoncerningy (a) elections to adopt. amend, or dissolve tribal con-
stitiltions or other organic governing documents, (b) elections for




55

members of the tribal council or other tribal governing body, and (c)
eligibility for membership in an Indian tribe for any purpose would be
confined in each instance by a requirement that the Secretary must
abide by decisions reached by tribal courts, tribal election or member-
ship panels, or other tribal dispute-resolving mechanisms that have
been certified by the Secretary to provide an impartial, speedy, and
adequate remedy according to specified statutory criteria. These pro-
visions for Departmental deference to tribal decision-making are pro-
posed as amendments to the 1968 Indian Civil Rights Act. The
definitional portion of that Act (25 U.S.C. 1301) as well as the
so-called "Indian Bill of Rights" contained therein (25 U.S.C. 1302)
would be placed in proposed Chapter 5 of new Part I of a realigned
Title 25 as Congressional niodifiations of inherent tribal sovereignty.
(5) Finally, we would also amend the 1968 Indian Bill of Rights to
provide that: (a) the current requirement therein for trial by jury in
certain tribal criminal proceedings [25 U.S.C. 1302 (10) ] should be
relaxed so as to make availability of that right optional in all cases ac-
cording to the wishes of the governing body of each tribe: and (b) the
present requirement therein for retention of a professional lawyer at
the accused's expense in tribal criminal pioceedings (25 U.S.C. 108..
(6) ) should be modified to permit at tribal ol)tion a ban on appearance
by attorneys in such proceedings if competent lay advocates are avail-
able to represent adequately the rights of the accused.
All of the recommendations o,.tlined above for a new Part I of
Title 25 are designed to codify certain funda mental legal principles
and policies underlying the Federal-Indian relationship. These prin-
cil)1es-policies are placed at the threshold of the Code: (a) to under-
score their significance as a theoretical framework for interpreta-
tion of the Federal G(overnments trust responsibility to Indian tribes:
and (b) to facilitate the practical implementation of that resimi-
bility. Many of these recommendations are merely a restatement of
existing Congressional policy or a codification of well-established
judicial doctrines.
Some of our new Part I proposals do nodifv existing statutory pro-
visions and judicial riulins. In the former catej-orv are certain reonfl-
mendations for amendnent of the IRA. OIWVA. and the 1968 Indian
Bill of Rights. Certain court decisions would be altered by those por-
tioiis of our proposed General Construction Statute that require abro-
gation of Indian treaty rights and reservation boundaries to be
expressed in most explicit terms on the face of subsequent federal legis-
lation. These alterations of statuitory and case law are advanced as
& Propriate extensions of the prevailing Congressional goals of pro-
not in tribal sovereignty and self-determination.
We now examine in more detail the contents of the five proposed
(I hapters of new Part I of Title 23.


7.- .-) 77t- :*











A. CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY


(Proposed Part I, Chapter 1, Title 25 United States Code)
In this initial Chapter the proposed "Congressional Findings and
Declaration of Policy" set forth in Part IV of our Report, supra, at
pages 23 to 30, would appear verbatim. The commentary accompany-
ing this proposal (see Part IV, supra, at page 31 et seq.) explains in
considerable detail each of the twelve paragraphs thereof. As noted
in that commentary, the "Congressional Findings and Declaration of
Policy" is essentially a restatement of fundamental, longstanding prin-
ciples underlying the Federal-Indian relationship.
The commentary in Part IV further justifies the necessity for such
a restatement as well as its placement at the very threshold of a re-
codified Title 25. To reiterate briefly, this proposal will serve to clarify
the divisions of sovereignty among Federal, Tribal and State govern-
ments and to reaffirm in broad outline the commitments already made
by the Federal Government to Indian Tribes in the discharge of its
fiduciary obligations. Location of the proposal at the beginning of the
Code will provide the theoretical framework for both interpretation
and implementation of subsequent portions of Title 25. Finally, the
"Congressional Findings and Declaration of Policy" will further
operate as a guideline for enactment of future legislation consonant
with the cornerstone principles announced therein.
(56)














B. REAFFIRMATION OF INDIAN TREATIES AND AGREEMENTS

(Proposed Part I, Chapter 2, Title 25, United States Code)

In this Chapter we recommend recodification of the S71 federal
statute that terminated the era of treaty-making between the United
States and Indian tribes but expressly preserved the continuing force
and validity of prior treaties. We further propose addition of new
language in this statute to achieve two purposes: (1) to codify the case
law doctrine that agreements" concluded by the Federal Government
with Indian Tribes after 1871 partake of a legal status co-equal with
pre-1871 treaties; and (2) to declare a policy that henceforth treaties
and agreements with Indian tribes will not be abrogated or modified by
Congress without the consent of the affected tribe.
Prior to 1871, the United States dealt with Indian tribes as "distinct,
independent, political communities" 2 through the legal medium of
treaties concluded under Presidential authority and ratified by the
Senate.3 That these documents "are of the same dignity as treaties with
foreign nations is a view which has been repeatedly confirmed by
the federal courts and never successfully challenged. 4 Treaties also
constitute part of the supreme law of the land under the United States
Constitution,5 and as such the provisions thereof take precedence over
any contrary or inconsistent laws of the various states.
Treaty-making came to an end in 1871 when Congress passed an
Act,7 now codified in 25 U.S.C. 71 (1970), that declared:
No Indian nation or tribe within the territory of the United States shall be
acknowledged or recognized as an independent nation, tribe, or power with whom
the United States may contract by treaty; but no obligation of any treaty law-
fully made and ratified with any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired.

IAct of March 3, 1871, 1. 16 Stat. 566, 25 U.S.C. 71 (1970).
2 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
3For an extensive historical and leral analysis of the federal treaty-making era with
Indian tribes, see F. Cohen, Handbook of Federal Indian Law 34-67 (Univ. N.M. ed. 1971).
(hereafter cited as "Cohen Handbook"). For a definitive explanation of the rules of
construction applied to Indian treaties, see Wilkinson and Volkman, "JUdicial Reviev
of Indian Treaty Abrogation: 'As Long as Water Flows, or Grass Grows Upon the Earth'-
How Long a Time is That." 63 Calif. L. Rev. 601 (1975) (hereinafter cited "Wilkinson
and Volkwan, Judicial Review of Indian Treaty Abrogation").
4 Cohen Handbook, supra note 3, at 33-34 and note 4 therein citing Holden v. Joy, 17
Wall. 211. 242-243 (1872) ; Worcester v. Georgia, 31 U.S. (6 Pet.) 515. 559 (1832). The
unique rules of construction developed by the courts with respect to Indian treaties,
however, are distinct from interpretative standards applied to international treaties, and
a stronger showing of Congressional intent to abrogate the former as opposed to the
latter has been required. See Wilkinson and Volkman, Judicial Review of Indian Treaty
Abrogation, supra note 3. at 619-623.
5 U. S. Const. art. VI, 2 declares In part that "all Treaties made under the
Authority of the United States, shall be the Supreme Law of the Land." Application of
this provision to Indian treaties was first recognized judicially in Chief Justice John
Marshall's seminal opinion in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
8 U. S. Cost. art. VI, 2 also declares that "the Judges in every State shall be
bound . [by the federal constitution, laws, and treaties], any thing in the Constitution
or Laws of any State to the Contrary notwithstanding." See. e.g., Worcester v. Georgia,
supra note 5; Moe v. Confederated Salish & Kootenai Tribes, U.S., 96 S. Ct. 16.34,
1645 n. 17 (April 27, 1976). See also Wilkinson and Volkman, Judicial Review of Indian
Treaty Abrogation, supra note 3, at 603 n. 10.
7 See note 1, supra.
(57)






58


The era of Federal-Indian treaties came to an end primarily because
of the pressure after the Civil War to assimilate tribes into the Aier-
ican body politic and because of opposition by the House of Represent-
atives to Senate control over the ratification of Indian treaties For
more than four decades after 1871. however, relationships between
the United States and tribes, particularly with respect to land cessions,
were formalized frequently in written consensual arrangements
characterized as "agreements." 9 As stated in the Interior Department's
official treatise on Indian law :
The substance of treaty-making was destined, however, to continue for many
decades. For in substance a treaty was an agreement between the Federal Gov-
,ernment and an Indian tribe, and as long as the Federal Government and the c
tribes continue to have common dealings, occasions for agreements are likely to re-
ceur. Thus the [post-18711 period of Indian land cessions was marked by the t,,
"a.-greements" through which such cessions were made. These agreements differed
front formal treaties only in that they wvere ratified by both houses of Congress
iulstead of by the Senate alone.'0
Nuinerous judicial decisions.1" as well as the prolonged legislative i..
practice of securincr post-1871 land cessions by consensiial agreements,
confirm the foregoing administrative view that treaties and agree-
niients share the same legYal status. To assure continued recognition of t
this well-established doctrine, we recolnmend codification threof as an
amendment to 25 U.S.C. 71, as noted below.
Our additional proposal for amending 71 to declare that in the
future Congress will not enact l egislation abrograting. Indian treaties
or agreements without tribal consent is based upon several considera-
tions. First, although Congress is vested with the power to unilateral-
ly terminate or modify rights reserved or granted under such con- ti1
sensual documents,2 exercise of this power should be undertaken til
.Siiin;ly in light of the trust relationship assumed toward tribes. As f
the Uiiited States Supreme Court declared in Semnole Nation v.
1 I ~t(s,':' the Federal Government in dealings with Indians "has at
,charlel itself with moral oblio'ations of the highest responsibility and
trist." In paragraph two of our proposed "Congressional Finding s -
aid 1)eclaration of Policy" (see page 28 sapra), we recommended that

S,, Cohen liHadbook, supra note at 66-67.
:uone of the earliest -agreements" between the United States and Indian tribes involved
the ce-sion of lands in Colorado by the Ute Inhlians who expressly reserved therein
hunting rights over the ceded area. Act of April 29. 1874, 18 Stat. 36. From 1887 to 1913 jr,
C'ongre-s enacted more than 100 statutes allotting Indian reservations among tribal mem-
lers and/or opening surplus reservation land to homesteaders ; most of these statutes
were premised upon prior "agreements" with the tribes. See Appendix II. Part IV, Exhibit 1.
The inclusionn of post-1871 agreements with Indian tribes now residing in Oklahoma is
detaile in Part VIII, Chapter 2 infra. BE
Cohen Handbook, 8-upra note 3 at 67. (emphasis added). a
e.-._ Atoine v. Washington, 420 U.S. 1!.4. 199-200 (1975) (Like treaties. *a
a-renients ratified by Congress are within the Supremacy Clause, U.S. Const. art. VI,
2). ('hoate v. Trapp, 224 U.S. 665, 671 (1912) (Like treaties, agreements can be abro-
gated by Congress. except that rights created thereby if taken by the United States are
co Ipensable under the Fifth Amendment) ; Dick v. U.S., 208 U.S. 340, 359 (1908) (sustain- 3
ing the -onstitutionality of a prohibition against introduction of liquor into ceded Indian b
lawl(. c-outained in an 1893 agreement with the Nez Perce Tribe, as "a valid regulation
bas,,d pon the treaty-making power of the United States and upon the power of Congress t
to reg.,late commerce with those Indians.") : WinterR v. U.S., 207 U.S. 564 (1908) (apply- i
iug rules of treaty construction to an agreement with the confederated tribes of the Ft.
Plhlknaii Reservation). Although the doctrine of reserved water rights announced in
lVitcr, involved a reservation created by agreement, that principle has "since been
imipliol in treaties [setting aside reservations]." Wilkinson and Volkman, Judicial Review
of Indiia Treaty A hrofation, supra note 2. at 61S-619 n. 84.
,,. .Lonuc-olf v. Hitchock, 187 U.S. 558, 564-567 (1903) (abrogation of treaties)
U(;ted ,tats V. Seminole Nation, 299 U.S. 417. 428 (1937) (abrogation of agreements). ;
U.. 2S,,. 297 (1942) relied upi}on in Pyramid Lake Paiute Tribe of Indians v.
iMortop, 254 F. SupI. 252, 2-6 D.T.C. 1972).






59


these "moral obligations' be confirmed by Congress. We submit that
a most appropriate vehicle for implementation of such duties would be
codification of the doctrine that the solemn commitments of treaties
and agreements will not be abrogated contrary to tribal wishes.
Second. Indian tribes surrendered rights to enormous tracts of ter-
ritory within this country bv treaties and agreements initiated Iyv the
Federal Government." As part of these transactions, the tribes re-
served in such documents. both explicitly and implicitly, many prop-
erty and political rights, and they received in addition coinlitnients
by the United States securing such reserved rights and grlantin ',
others.'5 Thus tribal rights under treaties and agreeineiits were not
gifts from the United States but rather 'eci.prOcal obligrations" that
continue to have immense simiificance.'; The tilbal s-ruatories to such
documents clearly had a right to anticipate that tihe Fedeli (iovern-
ment would keep its solemn word; their descendants are entitled to Con-
tinued assurance of this right.
Third. it must be renlnll l)eied that although treaties and arrueielts
were in theory eonseniual arranfenents. the trib al si gnatorles ile-
quently. had scant choice lbut to agree to the termils dlctaed ,v. th.e
united States.' As the United States Siprenle Court declared iii() recently in Chotcnc iafol v. (7'lAa/vtal:
The Indian Nations did not Seek out the United States and agree 1lon ani ex-
change of lands in an arm's length transacli i. Rather, treaties were imposed
upoln them and they had no choice hut to consent.
The historical di>hmoor of failing to accord an option to t il s iii
the conclusion )f treaties andai'eet> necessitates a present llehue
that the united States will no longer lreak faith with the 1,eneficiaries
of such d(K-IIInts.
Fourth. to the extent that continued exerie of thle (oon()*re;ion
abrogatorv, power affects Indian land. 11l1ntin. and fistiing rights, it
will infringe upon matters sacred to the tribes. Although such iig1its

11 See Part VIII. Chapter 2 infra, wherein we discuss the surrender of land by- the
many tribes relocated into the Indian Territory tnow the State of ),klahoma). Ib Exhiit
2 to Part VIII in fra, we dociinje.t the Il .In ivo loss of India n-owned lands ater1e l.()
within the thirteen n roservations set asiYo purs-uat t4o tr"eaties
former Oklahoma Territory now Wet-r (.kl; ho a,
A fundamental doctrine applicale to both treaties an1 agreements is that :
"[Such documents] were not a grant of rights to Tribes. but rather a grant of ri'hts
fromi them. In other words, all powers f tribes, a, sovereign nations, were retined
unless granted by the tribe pursuant to treaty [or agreement] or taken from the tribe by
federal statute."
Wilkinson and Volkman, ,Jltdiia17 Re rir r of Indian Treaty Abrogation. supra note .
at 619 (footnote omitted) (eIlihnais in original Although the United States in treaties
and agreements did "'grant Indians various rihts, such as educational benefits. health
care, and te(hcal assistane. Id. at 602-60 these rights were not gratuities but rather
"a very real quid pro quo in every Indian treaty [and agreenmenri." Id. at 612.
'Cohen. Handbook, siipra note at .3. See. e.g... ntoine v. (1. hifgton, 420 l.S.
194 (1975) MeClanahan v. Arizona Tax t'ormbiaon. 411 V.S. 104 (1973)" Menominee
Tribe v. United States, 891 T'.S. 4!4 i:6 P;elalhtp Tribe v. Ihpartment of Game,
391 U.S. 392 1968). As aptly stated in W7ilkinson and Volkmran, Judicial Rerie-w of
Indian Treaty Abroqtionp, a note 8. at 02
"Many of the unique and most cherished rights of American Indians are preserwed in
treaties. The duration of the treaty- guaranteed rights to live, hunt. and fish on ancestral
lands is typically described as formerr' or 'permanent.' (footnotes omitted).
The current importance of rights reserved under treaties and agreements by the Indian
Tribes now residing in Oklahoma i, dl!ail'O in Part VIII infra.
17It hardly requires donentiation to demonstrate that the Indian tribes did not
"0o1nsent" to the surrender of their linds and the freedom to live and to roam as they
chose. To those who might find this difficult to fathom, see Wilkinson and Yolkran,
Judicial Reviewr of Indian Treatyl Abrogation, supra note 3. at 6)R-612. for an excellent
discussion of why the assent of tribes was involuntary. See also Exhibit 4 to Part VIII
II : 471), for an analysis and verbatim account of the coercion visited upon the Cheyenne-
Arapaho Tribes by the federal negotiators come to take their lands by "agreement."
's 397 U.S. 620, 630-031 (1970).





O
reserved by tribes in treaties and agreements may have significant
monetary value, and are compensable if taken by the United States,
land and the traditional use of the land have import for Indians be-
yond dollars and development.19
As the late Justice Black declared eloquently in FPC v. Tuscarora
Indian Nation:
It may be hard for us to understand why these Indians cling so tenaciously
to their lands and traditional tribal way of life. The record does not leave the
impression that the lands of their reservation are the most fertile, the land-
scape the most beautiful or their homes the most splendid specimens of archi-
tecture. But this is their home-their ancestral home. There, they, their children,
and their forbears were born. They, too, have their memories and their loves. Lii
Some things are worth more than money and the cost of a new enterprise.'
Fifth, Congress has conditioned the applicability of many federal ,d
statutes, beginning with the Indian Reorganization Act of 1934,21 0i
and most recently in the Indian Self-Determination and Education JPO'
Assistance Act of 1975,22 upon the consent of Indian tribes. Continued Of
adherence to this principle, and codification thereof as proposed tre
below, will reaffirm that the United States "maintains the traditional t'il
democratic faith that all Government derives its just powers from iV
the consent of the governed." 23 1
Finally, as we discuss in more detail in the next portion of this Ac'
Chapter, the rules of construction regarding abrogation of Indian tio:
rights reserved under treaties and agreements are "in evident dis- n(
array." 24 To vindicate these rights, tribes must now spend small it
fortunes to litigate in court proceedings where the governing law is ti1
"vague . ad htoe. almost arbitrary" and the outcome largely "judi- ap
cial guesswork." 25 Given the significance of the rights involved, and kl
the principles of trust and honor underlying them, the continuing hi
validity of treaties and agreements with Indian tribes should not turn ar
1)01 -what is now basically a legal coin flip. A statutory requirement vi
of Indian consent to any future modification of such documents will go
render the solemn promises therein, as they should be, certain.6
Accordingly, based upon the foregoing analysis, we recommend la
retention of 25 U.S.C. 71 as now worded, with the following language n
to be added thereto: h(
Agreements concluded after March 3, 1871 between the United tl
States and any Indian tribe shall be recognized for any and all h"
purposes as legally equivalent with treaties made prior thereto. S
No rights reserved or granted, explicitly or implicitly, to any es
Indian tribe or individual Indian by any treaty or agreement uI
shall be abrogated or modified in any respect after the effective !
date of this Act without the consent of such tribe or Indian.
P
19 Seo note 16, supra. See also Wilkinson and Vokman, supra note 3, at 604-606. 0]
2, 262 U. S. 99, 142 (dissentin g opinion) (footnote, omitted).
-" Act of June 18. 1934. 48 Stit. 984. 25 U.S.C. h 461 et seq. (1970).
Act of January 4, 1975, 88 Stat. 2203, 25 U.S.C. 450 et scq. (Supp. 1976).
23 Coh1Cl Handbook. snpra note 2, at 67.
24 Wilkinson and Volkman, Judicial Review of Indian Treaty Abrogation, supra note 3,
at 6 IS
2o 1l. at 600. 661.
2(1 1n Lonewolf v. Hlitchcock, 187 U.S. 552, 566 (1903). the Court justified the necessity
for exercise of a Congressional abrogatory power vis-a-vis Indian treaties and agreements
on the ground that "circumstances . may demand, in the interest of the country and
the Indians themselves, that it should do so." In our view, the Nation has no higher ]'
"interest" than its honor. If the national interest were truly at stake, we would expect
fhe Indian tribes to be at the fore in agreeing to alter the obligations pledged to them I
by the Federal Government.




















44
~j


(Proposed Part I, Chapter 3, Title 25, United States Code)
The unique political and property rights of Indians are secured
and regulated by a voluminous body of federal treaties and laws.
Implementation of these measures frequently necessitates interpreta-
tion of the underlying Congressional intention. For example, courts
and executive officials are often called upon to determine whether
Congress has intended to abrogate or to modify tribal rights and
powers, or to ascertain the scope and extent thereof when the language
of the governing treaty or statute is unclear. Also, in the case of
treaties and statutorily-ratified agreements, the understanding of the
tribal signatories is at times a most relevant factor in deciding the
meaning to be given such documents.
In addition, interpretative issues arise regarding whether or not an
Act of Congress applies to Indians when it does not specifically men-
tion them. For instance, federal legislation channeling funds to state
nd local governments for various programs of domestic assistance
either may omit reference to Indians altogether or may fail to classify
tribal governing bodies, as eligible units of government separate and
apart from states and localities. Federal statutes in recent years have
also delegated assorted regulatory authority to states, principally in
the area of environmental and safety concerns. These laws generally
are silent concerning both their intended impact upon state regulation
within the boundaries of Indian country as well as their effect upon
governing powers of the tribes within those boundaries.
Neither Title 25 of the United States Code nor any other federal
law presently sets forth canons of construction to be applied in resolv-
ing the foregoing issues. The federal courts for over a hundred years,
however, have evolved various interpretative standards to deal with
these questions. Although the use of such judicially fashioned rules
has proved beneficial to tribes in many cases, several of the tests are
so vague that different courts reach different conclusions despite the
essential similarity of the facts and legal issues involved. The lack of
uniformity in judicial canons of construction affecting some issues also
contributes to this uncertain, case-by-case approach. Even where an
interpretative rule is fairly precise and well-established, some courts,
particularly at the state level, as well as federal administrative officials
on occasion, either ignore the rule or construe it unreasonably to the
detriment of Indians.
In light of these factors, we find it advisable to propose a "General
Construction Statute." This statute, to be codified as Chapter 3 of a
new Part I of Title 25, would contain six different rules of general ap-
plicability to be utilized by the executive, legislative and judical
branches of both the Federal and State governments. Four of these
recommended interpretative standards relate to construction and ap-
plication of federal treaties, agreements, statutes. and executive orders
(61)


C. GENERAL CONSTRUCTION STATUTE





62


affecting Indians and Indian tribes. In general, the thrust of these
proposals is two-fold: (1) to restate those interpretative tests devel-
oped by the courts that are reasonably clear and well-settled; and (2)
to render those judicial standards that are vague as reasonably specific
as possible. The other two canons of construction are designed to clar-
ifv the independent status of tribal governments for purposes of eli-
gibility under federal domestic assistance and regulatory legislation
addressed currently only to state and local governments.
We detail all of these recommendations and the special justifications
for each below. We submit that these proposals will serve three broad
purposes.
First, the protection of Indian rights and of the powers as well as
the status of tribal governments will be enhanced. Second, the Con-
gress, federal courts and federal administrators. and state government
officials will all have a clearer perspective upon the meaning of existing
federal Indian treaties and laws as well as the impact thereon of fed-
eral legislation proposed in the future. Third, the recommended rules
of construction are designed to restore to Congress, which is the ul-
timate arbiter of Indian rights under the Constitution, resolution of
sig nificant issues that now too frequently are decided by judges and
bureaucrats.
(2.1. A R a 1(, of Co) ,- 1'on Ptrcu 1i Exrp 7;(- A brogation o-r Mod;-
flcat;on of Riqlit. Reserved or Granted by Federal Treaties,
Agreements, S tatites. a)n Exerithve Orders.
It has long been accepted doctrine that the Congress may unilater-
ally abrogate, or modify any rights reserved by or granted to Indians
under treaties, agreements, statutes, and executive orders.27 In Chapter
2 above (see pages 103-121), we have recommended that Congress
enact. legislation declaring that it will not exercise this abrogatory
power in the future with respect to treaties and agreements unless the
affected Indians consent thereto.
Adoption of this consent proposal, however. would leave open issues
of whether federal statutes enacted prior thereto were intended to ab-
rogate, treaties and agreements regardless of Indian consent. These,
issues would be resolved in accordance with the express abrogation.
rule discussed below. That rule, unlike our consent proposal, is also ex-
tended to encompass rights created by federal statutes that do not rat-
ify agreements with tribes as well as rights under Presidential execu-
tive orders.
Like Indian treaties and statutorily-ratified agreements. federal stat-
utes and executive orders can also create a trust relationship between
the Federal Government and an Indian tribe as well as a reservation
for such tribe.28 Once the trust relationship and reservation status
have been created, by any of these four legal devices, the same ju-
,TSee notov 12 and 26 sunra.
See Wilkin on and Volkinan, Jdicial Re'iew of Indian Treaty Abrogations. .qupra
note ., Pt 614-617. The authors of this Article point out that a fifth device-withdrawals
by the Secretary of the Tnterior-has been used to establish a trust relationship and
r3,;srvqtiop status for a tribe. Id. at 615-616 u. 70. These withdrawals are either expressly
authorized by federal statutes, see 25 U.S.C. q 465. 467, 496 (1970). or have been ratified
by siiu ooent Congressional acts. see. e.g., Arizona v. California, .173 U.S. 546. 596 n.
100 (1963). Accordingly. we contemplate that rights created by these Secretarial with-
drawals would be subject to our express abrogation proposal since they are, In legal effect,
statutory rights.





63
dicially-fashioned rules of construction apply to all such documents.29
Although most of the case law relevant to the issue of Congressional
abrogation has concerned treaties or agreements, we find no legal au-
thority that establishes distinct principles to govern whether Congress
has intended to terminate statutory and executive order rights.3 Ac-
cordingly, such rights are included within our proposed canon of
construction.
The canon we recommend is premised upon the proposal contained
in a recent law review commentary.3l This article first examines in ex-
haustive and scholarly fashion the current state of judicial rules re-
garding abrogation of Indian treaty rights.3- The authors then propose
the following standard with respect to such rights, which we would ex-
pand as noted above to encompass Indian rights under agreements,
statutes, and executive orders:
Treaty rights of American Indians may be abrogated only by an express state-
ment in a subsequent statute or joint resolution. The statute or joint resoiu-
tion should identify the specific rights which are involved and state that it is
the intent of Congress to abrogate such rights.'
This suggested standard does not question the plenary power of Con-
gress to abrogate Indian rights in the national interest.t It is intended.
rather, to provide an objective test for determining whether or not
Congress has meant to take such action. The scholars who advance this
test offer detailed justifications therefor in their coninmentary, which
we summarize below.
Initially, the case law regar(ding abrogation of the very significant
rights reserved in Indian treaties "'- is currently in a most confused4
state. The courts have developed several rules for ascertaining whether
subsequent Congressional action evidences a design to erode or to elimi-
nate rights under prior treaties. The ambiguity of these judicial rules 3"
has led either to: (a) contradictory results by different courts on
essentially the same issue: (b) a finding of abrogation based upon a
misunderstanding or inadequate knowledge of the legislative will:
and (c) even a finding of implied abrogation without any judicial
reference whatsoever to supportive legislative history.
Thus, in two federal district court decisions involving the Winne-
bago Tribe37 and the Standing Rock Sioux Tribe different judges

See Wilkinson and Volkman. Judicial Reciew of Indian Treaty Abrogation supra note
3. at 16-617 and notws 73 and 74 therein.
SWilkinson and Volkman stare: "Existing cases. however, give no indication that
different legal principles [regarding abrogation] will apply to reservations created by
other means (than treaties]." Id. at 617. We have discussed in Chapter 2. the legal
equivalency between rights reserved or created by statutorily-ratified Indian agreements
and Indian treaties. See text accompanying notes 9-11 supra. Our independent research
also discloses no court decision announcing any separate abrogatory standards regarding
statutory or executive order rights.
3 Wilkinson and Volkman, Judicial Review of Indian Treaty Abrogation, supra note 3.
2 Id. at 623-645.
Id. at 645.
Id. at 604 n. 11. Cf. note 26 supra.
q pe text accompanying notes 14-16 and 19-20 sqpra.
Wilkinson and Volkman discuss, inter ahla, the following vague interpretative tests
adopted by the courts: (1) "Ahrogation only upon a 'clear showing' of legislative intent :
(2) "Abrogation 'not lightly imputed':" and (3) "Abrogation only after liberal con-
struction' of the statute in favor of Indian treaty rights." See Judicial Review of Indian
Treaty Abrogation, supra note 3. at 623. 625. 626.
U.S. v. 687.30 Acres of Land. 319 F. Supp. (D. Neb. 1970), appeals dismissed, 451 F.
2d ".67 (8th Cir. 1971). cert. denied. 405 U.S. 1026 (1972).
SU.S. 1. 2,005.32 Acres of Land. 160 Fed. Supp. 193 (D. S. D.), vacated as moot mene.
sub. noin., U.S. v. Sioux Indians, 259 F. 2d 271 (8th Cir. 1958).





64


reached different conclusions although the same rule of construction
was applied to basically the same issues. In dispute in both cases was
whether the Secretary of the Army could condemn Indian land, pro-
tected in perpetuity by treaties for dam and reservoir purposes. The
subsequent statutes relied upon by the Secretary as overriding the
prior treaty guarantees were identical or essentially similar in both
instances. The two courts examined the issues under the test requiring
a clear showing of congressional intent" to effect an abrogation.3
The court in Standing Rock Sioux, decided in 1958, upheld the
continuing validity of the treaty rights because the subsequent federal
laws failed to evidence "clear Congressional action which indicates an
intention to abrogate the terms of the treaty." 40 Although the later
legislation was silent on its face regarding Indian lands, legislative
history revealed that Congress knew such lands would be flooded by
the proposed project.41 The court ruled nevertheless that such mere
knowledge by Congress did not mean it intended to authorize con-
deionation of the treaty lands, but rather indicated only that such
lands would be acquired by negotiations with the tribe.2 In contrast,
the Winnebago court in 1970, in a factual situation similar to Standing
Rock Sioux, upheld condemnation of the treaty lands. The court
offered only cursory analysis that did not refer to any legislative his-
tory behind the federal acts alleged to effect abrogation.43 Instead, the
Winnebago decision declared summarily that Congress could delegate
condemnation authority over Indian lands to administrative agencies.
The court ruled that Congress intended "unquestionably" to do so even
though the statutes in question did not mention Indian lands
specifically.
Two judicial decisions involving the Seneca Indian Nation of New
York further reveal the dangers inherent in the subjectivity of the
"clear showing" abrogation standard.45 In Seneca I the Army Corps
of Engineers sought to condemn 10,000 acres of the Seneca Nation's
land for the Allegheny Reservoir Project. This acreage amounted to
nearly five-sixths of the total living space within the Seneca Reserva-
tion, and the flooding of this land necessitated moving more than a
third of the reservation's population.46 To avoid these catastrophic
intrustions upon their lands and way of life, the Senecas invoked a
1794 treaty with the Federal Government.47 That document provided
for federal protection of the Tribe's permanent occupancy rights on the
reservation, and the United States pledged therein that it would "never
claim the same, nor disturb the Seneca Nation." 48
Despite these solemn treaty guarantees, the United States Court of
Appeals for the District of Columbia Circuit in 1958 found that Con-
gress had declared "in a sufficiently clear and specific way" its intention
to permit condemnation of Seneca lands by the Corps.49 This result was

3 Wilkinson and Volkman, Judicial Review of Indian Treaty Abrogation, supra note 3,
at 640.
40 160 F. Supp. at 196.
41 Wilkinson and Volkman, supra note 3, at 641.
42 160 F. Supp. 9t 197-198.
,43 Wilkinson and Volkman, supra note 3, at 640.
44 319 F. Supp. at 133.
4 Seneca Nation of Indians v. Brucker, 262 F. 2d 27 (D.C. Cir. 1958), cert. denied, 360
U.S. 5 09 (1959) (Seneca I) : Seneca Nation of Indians v. U.S., 338 F. 2d 55 (2d Cir. 1964),
cert. denied, 380 U.S. 952 (1965) (Seneca II).
46 Wilkinson and Volkman, 'supra note 3, at 642.
4 Tre.aty of Nov',mber 11, 1794, 7 Stat. 44.
48 338 F. 2d at 59.
49 262 F. 2d at 28.





65


reached on the basis of legislative history preceding enactment of the
statute authorizing the reservoir project.50 This enabling act did not
speak expressly of the Seneca lands nor did it explicitly abrogate the
1794 Seneca treaty. Indeed, two commentators recently have cited legis-
lative history, not mentioned by the Seneca I opinion, which demon-
strates that Congress was not only unaware of the Seneca treaty rights,
but that it "did not know that it had the power to make a final de-
termination of whether such rights were to be abrogated." 51
The Seneca II opinion in 1964 is even more disturbing. In this case
the Corps sought to condemn additional treaty lands of the Seneca
Nation for highway purposes related to the Allegheny Reservoir Proj-
ect. In a 2:1 ruling, the majority upheld the Corps' plan as a valid dele-
gation of "administrative discretion" by Congress 52 even though no
authority was cited to indicate that Congress had been notified of the
highway proposal.3 Judge Moore in a vigorous dissent argued that
the majority had intruded upon the Constitutional power of Congress
to decide whether or not to abrogate a treaty:
Would it not be far more consistent with the Indian policy so eloquently ex-
pressed by Congress and the Supreme Court to let Congress decide whether it
wishes to give to the State of New York the power to condemn Indian land for
a superhighway rather than to impute to Congress an intent to vest the Secretary
i of the Army with such powers.54
The foregoing discussion illustrates the contradictory results when
courts apply vague abrogation tests such as the "clear showing" stand-
ard. The decisions in Winnebago, Seneca I, and Seneca II also demon-
strate that resort to legislative histories in abrogation cases can be
either non-existent or inaccurate. Judge Moore's dissent in Seneca I
as well as the opinion in Standing Rock Sioux are in line with a grow-
ing trend in judicial rulings that hold or imply the necessity for an
express congressional statement abrogating Indian treaty rights.55
In fact, the Supreme Court announced an express abrogation rule
exactly 100 years ago in Leavenworth, Lawrence, & Galveston Railroad
Co. v. United States.56 In that case the question was whether a federal
act granting lands to the State of Kansas for railroad purposes con-
templated inclusion of treaty lands reserved to the Osage Tribe. The
Court held in favor of the Osages because the statutory grant did not
mention either their prior treaty or the lands protected thereby:
Such grants could not be otherwise construed; for Congress cannot be supposed
to have thereby intended to include lands previously appropriated to another pur-
pose, unless there be an express declaration to that effect ... As the transfer of
any part of an Indian reservation secured by treaty would also involve a gross
breach of the public faith, the presumption is conclusive that Congress never
meant to grant it.57
Twenty years later the Supreme Court announced a similar doctrine
in Frost v. Wenie .511 The issue was whether an 1880 federal Ilonestead
50 Wilkinson and Volkmran, supra note 3, at 642 n. 237 point out that the Seneca I
opinion fails to "quote the text of any of the legislative materials [relied upon to justify
abrogation] ."
51 Id. at 643.
52 338 F. 2d at 57.
53 Wilkinson and Volkrnan, supra note 3, at 643. In fact. there was no legislative history
that could have been cited to support the taking in Seneca II. Id. at 644.
54338 F. 2d at 59 (dissenting opinion).
5 This trend toward express facial abrogation Is detailed in Wilkinson and Volkrnan,
Judicial Review of Indian Treaty Abrogation, supra note 3, at 627-620, 636-639, from
which we have drawn in the ensuing discussion.
;6 92 U.S. 733 (1876).
57 Id. at 741-42 (emphasis added).
65 157 U.S. 46 (1895).






66


Act was intendedact to include Osage trust Ind. Although the subsequent
act was literally broad enough to encompass the Osage land, the Court
found no explicit Congressional statement therein to that effect. In so
ruling, it quoted approvingly the following language from a decision

by the Secretary of the Interior on the identical issue:
E)ecially do I think this view is warranted in the absence of any express words
of repeal: for. had Congress intended a repeal the effect of which would be to
disregard treaty obligations, or to defeat or impair treaty rights, I feel certain it
would have expressed that intention in plain words and not left it to implication.59
More recent decisions have also set forth an express abrogation re-
quirement. Thus, in ife'uonihie Tribe v. United States 60 the Supreme
Court, in 19(8 was called upon to determine whether the 1954 statute
terminating the federal trust responsibility to the Menominees 61 oper-
ated to repeal the hunting and fishing rights secured to the Tribe by
treaty in 1854.12 That treaty set aside a reservation for the Menominees
"to be held as Indian lands are held." 63 The Court ruled that this lan-
(Juace, under the well-settled doctrine of "reserved rights,"' 6 operated
implicitly to confirm tribal hunting and fishing rights within the reser-
vation boundaries.6" The 1954 legislation, however, expressly stipulated
,lat upon the effective date of termination:
All statuttes of the United States which affect Indians because of their status
as Indians shall no longer be applicable to the members of the tribe, and the laws
of the several States shall apply to the tribe and its members in the same manner
zas they apply to other citizens or persons within their jurisdiction.66
The State of Wisconsin argued that this language operated to remove

flie special immunity of tribal menfl)ers from state game laws within
the b)oundaries of the 1854 treaty reservation.67 But the termination
act did not mention expressly these treaty hunting and fishing rights,
and t]e Court found the legislative history of that act ambiguous
regarding wlieth er Cono ress intended to abrogate such rights.8 Thus
the Court looked to Public Law 280,9 enacted two months after the
teimn'ination statute, which delecrated jurisdiction over Indians to cer-
tain states, including" Wisconsin, but expressly exempted any state
regulation of Indian hunting and fishing rights.

r., Id. at (10, qnlotbiig 6 Interior Dept. Decisions 540.
,91 U.S. 404 (1968).
'I" Act of June 17. 1954, 68 Stat. 250. 25 U.S.C. 891 et seq. (1970). This disastrous
termination legislation was repealed and the Congress restored the federally-protected
status of the Menominee Tribe in 1973. Act of December 22, 1973, 87 Stat. 770, 25
U.S.C. .. 903 et ,4eq. (Supp. 1976).
12 Treaty of May 12, 1S54, 10 Stat. 1064.
6:2 Id. at 1065.
6 The "reserved rights" doctrine, which originated in U. v. Wina.% 198 U.S. 371. 881
(1.005), means that Indian tribes retain all rights of lannd use ind sovereignty except to the
extent specifically granted by treaty to the United States. This doctrine applies equally
to agreements with tribes that are ratified by Congress. see Winters V. U.S., 208 U.S. 564
(1909), and it means that any tribal rights not expressly conveyed away by treaty are
reserved imi)licftl!i therein. see text accompanying note 1 5 ,upra.
:.:91 U.S. at 406. Accord: Kimball v. Callahan, 493 F. 2d 564, 566 (9th Cir. 1974),
ccr'. denied. 419 U.S. 1019 (1974).
S25 U.S.C. 5 899 (1970) (emphasis added).
07 Once a reservation has been established by any meanss. see text accompanying note 28
up ,a. state laws, have no application to Indian hunting and fishing rights within the
resorvation boundaries unless Congress has delegated jurisdiction to the state In express
terms. See e.z.. U.. v. Winans. 19S U.S. 371 (1905): Queehan Tribe v. Rowe, 350 F.
Suitu. 106 (S.D. Calif 1972). aff'd in part and rev'd in part, 531 F. 2d 408 (9th Cir.
1976): Cofederated Tribes of the Colville Reservation v. State of Washington, 412 F.
Sum)p. 651 (E.D. Wash. 1976). This last case also holds that the state is without authority
to regulate game activity by non-Indians within reservation boundaries. 412 F. Supp.
t 656.
(e See Vi7lkin.son and Volkman, Judicial Rericw of Indian Treaty Abrogation, supra
note -. at 626-687.
a 18 U.S.C. 1162 (1970).







Construing Public Law 280 and the termination act in ,,ari mac r/f,
he Supreme Court held that Congress did not contemplate elimination
of the Menominees' treaty rights. In reaching this conclusion, the Court
utilized the rather vague test that an intent to abrogate Indian treaty
-ights would ",not be lightly implied." 70 Iowever, the Menon1,1ee
)plion also declared that the termnation act should not be read to
nean that Congress intended to abrogate the treaty game rights in "a
)ackhanded way." In addition, the Court pointed out specifically
:hat the termination act made federal "statutes" inapplicable to tribal
members, but that act did not similarly include federal "treat les" with
-he Menominee Tribe Thus the inovioee i d
)f the "not lightly implied" abrogationi standard, clearly indicates that
Congress iust use nost explicit statutory language if it intends to
:erminate treaty rights.
In United 8tates- v. lViit<: the United States Court of Appeals
for the Eighth Circuit squarely held that an express legislative state-
rnent is a prerequisite to abrogation. In that case a neminbe of the Red
Lake Band of Chippewa Indians was 1)rosecuted under a federal statute
barring the taking of eagles. The defendant argued that his right to
take eagles within the boundaries of the Band's Reservation was pro-
tected by treaty. As in Ieiiomi'e, the treaties establishin" the reserva-
tion did not refer specifically to hunting rights. Relying upon the
.fe/Iom<:ee opinion, the court found that such rights had been im-
plicitly reserved by the relevant treaties, and it further held:
To affect those [implicit] rights... it was inm'umient upon Congrt-ss to ex!re'sly
abrogate or modify the spirit of the relationikijp between tile I lited > states alid
the Red Lake Chippewa Indians on their native reservation. We do not believe
it has done so."'
The White ruling is especially significant because the federal penial
statute prohibiting the taking of ax pr any
"fo te rliios prpse of_ i( Iia-n expressly lprotected ii takiinr
-In, tri tbes. This5 specific exemnptioli
"for the religious purposes of Lidia "rbS.7 T"--~ e'-fi xnito
could have been construed by the court to subject takings for other
purposes, such as cominiercial transact ions, to the federal penalties.
Nevertheless the court found that this statutory language failed "to
show an express intent of ( ongrcss to abrogate treaty rights of Indians
to hunt on their own reservation."'
An equally eiiiphatic rule of express al rotation is announced in
the 1971 federal district court ruling, in LCTo Luke Band of ('U;/11,,,,
Jp(;jj, V. Jjep 77 eBailoC pptir
I~hd/a8. v. Hcrbst. As in leioiniu,, and IT" the o u
. .. ~~ ~ -o J ,I/<,t ec -tfo1!11(! 1-.
implicit reservation of bunting and fisjlimr rights in the 1S,55 trea v
setting aside the Leech Lake Peserve. The i-sue was whether su('h
Sgame rights, as well as the boundaries of the Bmd's re-ervation. had
,been terniiiiated by an 1SS9 federal 'tatuite which provided for ":a
complete extino'uislIInent of the Indian title" to the By
a contemporaneous agreement with the United States. the Band hadi
relinquished 7101 o? y, t tle aU 1ite:' st' "' in the re erved laid,."'

,91 U.S. at 413.
71 Id. at 412.
7 2 ld. at 413.
1:.08 F. 2d 4:-M ( th Cir. 1974).
1 Id. at 457-45 (enphnsis addpd).
1' 8 U.S.C. 6qa(1970).
7 ,OR F. 2d at 450.
,2:14 F. Stipp. 1001 (D. Mnin. 1971).
I 1d. at 1003.
Ibid. (emphasis by the court).






68


Despite this explicit language of both the later statute and the agree-
ment, the court held that Congress had not intended to terminate
either the treaty reservation or the implicitly reserved hunting and
fishing rights. In reaching these conclusions, the court declared that
"[i]f it was the intention of Congress to disestablish the Leech Lake
Reservation, the Congress knew how to say so in clear language." 80
This definite trend of federal case law 81 toward a rule of express
facial abrogation of Indian treaty rights parallels recent Supreme
Court rulings regarding state jurisdiction within "Indian country." 82
Thus in numerous decisions in the last two decades the Court has
reaffirmed the doctrine, first announced in 1832 in Worcester v. Geor-
gia,3 that States are without jurisdiction over Indians within Indian
country absent a most specific Congressional sanction." Thus, in 1959
in Ti7illiams v. Lee, it was stated that: "Significantly, when Congress
has wished the States to exercise this power, it has expressly granted
then the jurisdiction which Worcester v. Georgia has denied." 85 Most
recently, in Bryan v. Itasca County, the Court referred to termination
Statutes such as that affecting the M1enominees 86 and declared that
"Congress knew well how to express its intent directly when that in-
tent was to subject reservation Indians to the full sweep of state laws
and state taxation." 87
High Court decisions concerning the continued existence of Indian
reservation boundaries for jurisdictional purposes have also articu-
lated an express abrogation standard. Thus, in Seymour v. Superin-
tendent, the Court in 1962 refused to adopt the argument that a
subsequent federal statute had disestablished the Colville Indian Res-
ervation because it failed to contain "any language... expressly vacat-
ing" the subject land.ss Three years ago in Mattz v. Arnett, the
Supreme Court again refused to find a reservation disestablishment,
declaring that: "A congressional determination to terminate must be
expressed on the face of the Act or be clear from the surrounding
circumstances and legislative history." 89 In 1975, the Court in De
Coteau v. District County Court reaffirmed these standards announced
in Seymour and Hattz.90 In a 6:3 ruling, however, the majority held
against the Indian position, declaring: "[I]n this case, 'the face of
the act,' and its 'surrounding circumstances' and 'legislative history,'
all point unmistakably to the conclusion that the Lake Traverse IReser-
vation was terminated . ." 91
Although De Coteau restated the express termination rationale of
Scymour-Jlattz, we question the application of that test by the major-
ity opinion. Because of the special legal considerations involved in

811 Id. at 1005.
81 For additional decisions requiring explicit Congressional language to effect a termina-
tion of treaty rights, see Kim ball v. Callafhan, 493 F. 2d 564 (9th Cir. 1974), cert. denied,
419 U.S. 1019 (1974) ; Bennett County v. U.S., 394 F. 2d 8 (8th Cir. 1968).
82 "Indian country" is defined in 18 U.S.C. 1151 (1970) to include, inter alia, all
lands within the boundaries of any Indian reservation regardless of the specific means
,used to set it aside. See text accompanying note 28 supra.
S 31 U.S. (6 Pet.) 515, 559-560 (1832).
s4 See, e.g., Fisher v. District Court, U.S. 96 S. Ct. 943, 947 (1976) ; McClana-
lan v. Arizona State Tax Commission 411 U.S. 164, 168-173, 179-180 (1973); Kennerip
v. District Court, 400 U.S. 423. 426-247 (1971) (per curiam).
358 U.S. 217, 229 (1959) (emphasis added).
See note 66 supra.
U.S. 96 S. Ct. 2102, 2111 (1976) (emphasis added).
ss368 U.S. 351, 355 (1962) (emphasis added).
89 412 T.S. 481, 505 (197.3) (emphasis added).
P1 420 U.S. 425, 447 (1975).
91 Id. at 445.





69

reservation disestablishment cases, we have set forth in our fifth pro-
posed Rule of Construction infra a separate recommendation regard-
ing interpretative standards in such cases.92 The division among Su-
preme Court Justices as to the result reached in De Cotean, however,
as well as the misapplication of the "clear showing" abrogation stand-
ard in cases previously discussed,93 demonstrate that the prevailing
judicial rules regarding termination of treaty rights and reservation
boundaries remain imprecise and subject to dispute. The decided trend
in both these areas of the law is toward "express" or "clear" Congres-
sional abrogatory language. Yet, application of these tests has failed
to provide that uniformity in judicial decision making which charac-
terizes the federal case law discussed above 94 barring application of
state law to Indians within Indian country absent "express" Congres-
sional language.
Codification of a rule requiring Congress to specify on the face of a
statute the precise Indian rights it intends to abrogate would lend
needed precision and regularity to judicial decision-making. More-
over, it would provide enhanced protection for the rights of tribes
without restricting the power of Congress to terminate or modify those
rights if deemed vital to the national interest. As the commentators
who propose this rule have stated:
Importantly, the rule proposed here would not unduly hamper Congress. If
the courts found that Congress had not appropriately provided for an abroga-
tion it wished to accomplish, Congress could act quickly to rectify the matter:
"If, as has been argued here, Congress has already impliedly authorized the
taking, there can be no reason why it would not pass a measure at once confirm-
ing its authorization. It has been known to pass a Joint Resolution in one day
where this Court interpreted an Act in a way it did not like. . Such action
would simply put this question of authorization back into the hands of the Leg-
islative Department of the Government where the Constitution wisely reposed
it." [quoting from FPC v. Tuscarora Indian Nation, 362 U.S. 99, 141 (1960)
(Black, J. dissenting)]
Thus the proposed rule does not conflict with the established power of Con-
gress to abrogate Indian treaties. On the contrary, the rule deals only with the
procedures that must be followed in the proper exercise of Congressional power.
Moreover, and this point cannot be overemphasized, this test would be fully
consistent with this Nation's recognized obligations to Indian tribes. The [United
States Supreme] Court has consistently characterized the relationship between
Congress and the American Indian as "solemn," "unique" or "special," and
"moral." The case that established the right of Congress to abrogate treaties,
Lone Wolf v. Hitchcock, cautioned that abrogations should be made only "if con-
sistent with perfect good faith towards the Indians." Similarly, Presidents from
Washington to Nixon have characterized the Nation's commitments to Indians
in moral terms.
The rule of express legislative action suggested here is consistent with these
principles. Although abrogation would be permitted in furtherance of the national
Interest, no abrogation would occur without full notice and disclosure to the af-
fected tribes.9
Accordingly, we propose the following language as an initial rule
of construction to be codified in proposed Part I, Chapter 3, Title 25
of the United States Code:
Rule No. 1:
No rights explicitly or implicitly reserved by or granted to any
individual Indian or any Indian tribe by any treaty, agreement,
92 See AIPRC, Miscellaneous Reports to be published as a supplement to Task Force
Reports.
93 See text accompanying notes 40-54 supra.
4 See text accompanying notes 83-87 8upra.
95 Wilkinson and Volkman, Judicial Review of Indian Treaty Abrogation, supra note
3, at 658-659 (footnotes omitted).





70


statute, or executive order shall be deemed to be abrogated or
modified by any subsequent act of Congress unless such act:
"(a) Shall refer specifically to such prior treaty, agreement,
statute, or executive order; and (b) shall identify in express
language the precise rights that are intended to be abrogated
or modified.
0,.2. A J??de of Oo?)trutco' Jfor [terpret;.nq the Nature and Extent
of fIl@gbs flr qt ClN'erd or 67'avNed to lndiavs and Ihdian Tribes by
by Federal Treaties, Agreements, Statutes. and Executive Orders
In addition to the rules of construction discussed above regarding
abroration of Indian treaties and agreements, the courts have also
fashioned a set of standards for deterimning the nature and extent
of Indians' rights under such documents, as well as under statutes and
executive orders,'~ where al)rogation of those rights is not necessarily
involved. Such standards have been judicially invoked, for example, to
ascertain the extent of bunting and fishing rights reserved by a tribe
over lands ceded to the Federal Governlnent; 97 the existence and scope
of water rights reserved implicitly by a tribe in an agreement with the
United States setting aside a reservation for the tribe; 98 the dimen-
sions of a reservation set aside by federal statute for an Indian
tribe; 99 the nature of implied Indian hunting, fishing, and water
rights granted by Presidential executive order establishing a reserva.
tion; 100 and the scope of jurisdiction over Indians delegated by Con-
gress to the states01
The rules developed to resolve these and related interpretative
issues are basically threefold:
[1. Ambiguous expressions must be resolved in favor of the Indian parties
(-oneerned; [2] Indian treaties [and agreements] must be interpreted as the
Indians themselves would have understood them; and [3] Indian treaties must
be liberally construed in favor of the Indians.102
The first and third rules have been applied to interpretation of
treaties, agreements, statutes, and executive orders affecting Indians.
The second rule has been employed in construing the consensual ar-
rangements between the United States and Indian tribes that are
formalized in treaties and statutorilv-ratified agreements. We propose
codification of these established judicial standards, as set forth below,
priniarily because some courts, especially at the state level, have
tended either to ignore or to under-utilize them.3 Invocation of these
rules is extremely significant because the precise scope of important
idian rights under federal treaties and laws frequently may require
resolution of ambiguous language in the governing federal document.
('odifications of these interpretative canons will constitute a Con-
gressional directix-e to courts and administrative officials that the prin-
Seo text neeompanyin note 29 supra.
....S. v. 'Wiavs, 19,S T .S. 371, ,181 (1905))
117intcrs v. 17.. 207 U.S. 564 (190.).
A.: laska Pacific Fi~qheriet v. TI.S., 24S U.,S. 78. 89(11 .
"0, Quchan Tribe v. Rowe, 350 F.,Supp. 106 (S.D. Calif. 1972), af t'd in part, rev'd in
p'trt, 51 F.2d 40S (9th Cir. 1976) (lrtinz rights)- (,onfedcrated Tribes of the
('01 ille Indiat Reserration v. State of Wash'ington. 412 F.Supn. 651 (E.D. Wash. 1976)
(fishing rights) ; U.S. v. Walker River Irrigation District, 104 F.2d 334, 336 (9th Cir. 1939)
(Water rights).
1"1 Rryan v. Itasca County, U.S. 9S ,. Ct. 2102, 2113 (1976) : Antoine v.
1s'(t.Nhington. 420 IT.S. 194. 199-200 (1975)" McClanahan v. Arizona State Tax Com-
mi.sion, 411 U.S. 164 (1973) ; Santa Rosa Band of Indians v. Kings County, 532 F.2d
65.5 Ogth Cir. 1975).
1- W~ikinson and Volkman, Judicial Rciew of Indian Treaty Abrogation, supra note
t 617.
](13 So, e.g., the cases cited in note 101 supra.








ciples embodied therein must be applied in order to implement prop-
erly the special federal trust responsibility to Indians.
The purpose behind the initial rule regarding resolution of anibig-
uous language is well-stated in a recent opinion by the United States
Court of Appeals for the Ninth Circuit:
We begin with the fundamental postulate. enunciated in WVorce. ter v. Geor]5o
[in 1832] that ambiguities in Federal treaties and statutes dealing with Indians
must be resolved favorably to the Indians. This principle is somewhat more than
a canon of construction akin to a Latin nmaxim, easily invoked and as easily dk-
regarded. It is an interpretive device, early framed by [Chief Justice] John
Marshall's legal conscience for ensuring the discharge of the nations obligations
to the conquered Indian tribes. The Federal government has long been reco-
nized to hold, along with its plenary power to regulate Indian affairs, a tru't
status towards the Indian-a status accompanied by fiduciary obligations.
While there is legally nothing to prevent Congress from disregarding its trust
obligations and abrogating treaties or passing laws inimical to the Indians' wel-
fare, the courts, by interpreting ambiguous statutes in favor of Indians. attribute,
to Congress an intent to exercise its plenary power in the manner inest con-
sistent with the nation's trust obligations."'
The United States Supreme Court in Bryai v. Ifa.8ca County, de-
cided on June 14, 1976, described the third canon of construction-
liberal interpretation in favor of the Indians-as follows:
In construing this "admittedly ambiguous" statute, we must be guided by that
"eminently sound and vital canon" that "statutes passed for the benefit of de-
pendent Indian tribes or communities are to be liberally construed, doubtful
expressions being resolved in favor of the Indians." '05
The jusification of the second interpretative test-construction of
treaties and agreements as the tribal signatories would have under-
stood them-is set forth at. length by the Supreme Court in its 1S9,
opinion in Jones v. Meeliawn:
In construing any treaty between the United States and an Indian tribe, it
niut always . be borne in mind that the negotiations for the treaty are (-o-
ducted, on the part of the United States, an enlightened and powerful nation.
by representatives skilled in diplomacy, masters of a written language, unde'-
standing the modes and forms of creating the various technical estates znown t,-
their law, and assisted by an interpreter employed by themselves: that the tr-aty
is drawn up) by them and in their own language: that the Indians. on the other
hand, are a weak and dependent people. who have no written langiiage and are
wholly unfamiliar with all forms of legal expression. and whose only knowlel,,e
(f the terms in which the treaty is framed is that imparted to them by the inter-
lreter employed by the United States: and that the treaty must therefore 1e
construed, not according to the technical meanimnr of its words to learn 'd
lawyers. but in the sense in which they would naturally be understood by the
Indian,4.

In 1943 in ( 7hoo'Osu, V/;o v. T'(M'd Si tuc.. tle Coort leiteratj
this doctrine of deference to the Indian understavelin of treat-ies. ml, r
extended that rule to encoin ,pss staturtoril v-r:tifleda'_-eeiments !he-
tween the !Vnited States ald Indian tribes
Of course treaties are construed more liberally l hain private agreement.
to ascertain their meaning we may look beyond the writ ten words to t1e hist(''v
of the treaty, the negotiations. and the practical on-ru(tion sdoptel hv 11io
parties. Especially is this true in interpreting treaties nd alr(Jcimnt. witi thi<
Indians: they are to be construed. so far a. po.siblc, in the sense in whiel the
Indians understood them, and "in a spirit which generously recognizes the full
obligation of this nation to protect the interests of a dependent people." "(
1' ,.qnta Ro.'a Band of Indians v. K1,ig.s County, 532 F.2d 655 (9th Cir. 1975) (Slip
Opinion at 6-7) (citations and footnotes omitted).
T i7-8. 96 S. Ct. 2102. 2113 1 976) citationss o itte<).
107 318 U.S. 423, 431-432 (1943) (citations omitted) emphasis n(,IIed).
S:8-755-77--6





72


The Court stressed the continuing viability of the "Indian under-
standing" doctrine in 1970 in Choctaw Nation v. Oklahoma:
This Court has often held that treaties with the Indians must be interpreted as
they would have understood them, and any doubtful expressions should be re-
solved in the Indians' favor.'
The reason for this interpretative test, as the Court noted in Choc-
taw Nation v. Oklahona, is that Indian tribes almost invariably "had
no choice but to consent" to treaties and agreements.109 This factor
led the Court in that case to declare that treaties "must" be construed
according to the Indian understanding, whereas in Choctaw Nation v.
United States, quoted above, the Court earlier had stated that the In-
dian understanding would govern only "so far as possible." XVe find
this distinction most significant. Accordingly, we incorporate into our
proposed rule of construction the mandatory aspect of the "Indian
understanding" doctrine as articulated in Choctaw Nation v. Okla-
/ima, with the qualification that in order for Congress to override
the Indian view it must express such a contrary intention in most
explicit language on the face of the treaty or the statute ratifying
an ai-reement."10
We propose, finally, one additional aspect to the rule of construc-
tion set forth below, namely: that ambiguities contained in federal
treaties, agreements, statutes, and executive orders should be resolved
in accordance with prevailing Congressional policies affecting Indians
even if the treaty or other document involved originates from or re-
flects an earlier, contrary policy which Congress has since rejected.
This proposal is drawn from the Ninth Circuit decision in Santa Rosa
Ba~nd of I dians v. Kings County.1"' In that case the court refused
to interpret ambiguities in Public Law -v 0,1 enacted in 1953, ac-
cording to the "assimilation policy reflected" therein because it found
that Congress had since "discarded" that policy as a "failure . in
favor of policies fostering Indian autonoiny, reservation self-govern-
ment and economic self-development." 113 The court further stated:
While we recognized an obligation to follow the congressional intent when
construing Public Law 280, we are not obliged in ambiguous circumstances to
strain to implement a policy Congress has now rejected, particularly where to
do so will interfere with the present congressional approach to what is, after all
an ongoing relationship."4
On June 14, 1976, the Supreme Court in Bryan v. Itasca C.ounty,15
cited the foregoing language from Santa Rosa with approval and
added:
Present federal policy appears to be returning to a focus upon strengthening
tribal self-government [citing the 1974 Indian Financing Act, 25 U.S.C. 1451
'08 397 U.S. 620, 631 (1970) (citation omitted) (emphasis added).
19 Ibid. See also note 17 supra.
,10 We have located no authority that repudiates the rule announced in Choctaw Nation
v. Oklahoma, supra note 108, that Indian treaties and agreements must be construed as
the tribal signatories understood them, unless Congress manifests otherwise. In De Coteau
v. District County Court, 420 U.S. 425 (1975), the Court examined an agreement between
the United States and the Sisseton-Wahpeton Sioux Tribe, to determine both the federal
and the tribal understanding of whether there had been an intent to terminate the bound-
aries of the Tribe's reservation. Although we question the soundness of the De Coteau
result, the Court therein found "clear expressions of both tribal and congressional intent"
to effect a disestablishment of the reservation. Id. at 447.
111 532 F.2d 655 (9th Cir. 1975).
12 28 U.S.C. 1360 (1970).
113 522 F.2(1 at 662.
114 Id. at 663.
15- U.S. -, 95 S.Ct. 2102 (1976).





73


et seq., and the 1975 Indian Self-Determination and Education Assistance Act.
25 U.S.C. 450 et seq.].16
We propose that Congress codify this sound judicial trend. The
assimilationist policies of the allotment era in effect during 1887 to
1934,117 as well as similar goals embodied in Public Law 280 and in the
termination legislation of the 1950's,118 have indeed been repudiated by
Congress in recent legislation.119 In the proposed "Congressional
Findings and Declaration of Policy" set forth in Part IV surra, we
have called upon Congress to reaffirm its repudiation of these poli-
cies.120 Codification as set forth below of the Santa Rosa-Bryan in
terpretative test will assure more effectively tlat judges and admin-
istrators in the future need not strain to effectuate policies that Con-
gress wisely has abandoned.
Accordingly, based upon the foregoing analysis, we recommend
that Congress adopt the following rule of construction to be codified
in proposed Part I, Chapter 3, of Title 25 of the United States Code.:
Rule 2:
[A] In the interpretation, construction and application of fed-
eral treaties, agreements, statutes, and executive orders which
reserve or grant rights to any Indian or Indian tribe, the follow-
ing principles shall govern:
[1] Any ambiguities in such documents shall in every instance
be resolved in favor of the affected Indian or Indian tribe;
[2] Such documents shall be interpreted, construed, and ap-
plied in a liberal manner which comports fully with the sanctity
of the trust obligations of the United States to Indian Tribes;
[3] Ambiguities in such documents shall be interpreted, con-
strued, and applied according to the prevailing Congressional
policies of fostering Indian autonomy, reservation self-govern-
ment and economic self-development, regardless of whether such
documents became effective during historical periods when the
Congress adopted policies of assimilating and/or terminating
the unique status of Indians and Indian tribes as a separate
people.
[B] In the interpretation, construction, and application of
treaties and statutorily-ratified agreements between the United
States and Indian tribes, the governing principle shall be that
the understanding of the Indian parties to such documents, as
evidenced in the negotiations preceding their conclusion and the
circumstances surrounding same, is determinative of the meaning
of such documents unless Congress has expressed a contrary
meaning in explicit language on the face of the treaty or the
ratifying statute.
116 Id. at 2111 n. 14.
117 See text accompanying notes 89-94 in Part IV of this Report, 8upra.
Il See text accompanying notes 61-69, supra.
119 See, e.g., the Menominee Restoration Act, supra note 61: 25 U.S.C. 1326 (Supp.
1976) (tribal consent via referendum vote made a prerequisite to assumption of state
jurisdiction over Indians in Indian country).
120 See paragraph 5, 6 and 7 of "Proposed Congressional Findings and Declaration of
Policy."





74


C.3. A Rule of Construction R equiriry That 'lndian Tribes aad Tibal
Coverinents be Recognized as Independent Units of Govern-
me'Int for Purposes of Eliyibilty Under Federal Donesic Assist-
an ce Programs
The issue of tribal government participation in the delivery of
Federal domestic assistance programs goes to the head of the issue
of tribal sovereignty and Indian self-determination. As the situation
now stands, Tndiants are receiving only a fraction of the Federal be.ne-
fits due then., largely because of the. statutory and administrative fail-
ire to recognize the sovereignty of Indian tribes. Further. even where
Indians are the intended recipients, many Federal programs require
that the funds be routed through various branches of state govern-
ment rather than being disbursed directly to the tribes. Both of these
procedures are antithetical to the concept of tribal sovereignty: the
former ignores tribal governments entirely, the latter imposes st.ate
jurisdiction on tribes.
The dimension of this problem have been dealt with in detail by
the Task Force on Tribal GovernmentY121 as well as in extensive studies
by the American Indian Law Center 122 and the National Council on
Indian Opportunity.113 Although the above sources should be con-
sulted for an in-depth presentation of the rol)lem. some of ther fiindings
merit citation here as dramatic indicia of the serious failure of Federal
domestic assistance delivery to Indians. For example. the National
Council on Indian Opportunity, in its study, found that of 600 po-
tentionally useful Federal assistance prograins. only 78 were being
utilized by federally recognized tribes, and only 39 were being utilized
by more than one tribe.2 The subsequent American Indian Law Insti-
tute study indicated that of the 598 programs studies, Indian tribal
governments or tribally-chartered organizations appear to be eligible
for direct delivery from 389 programs, and ineligible for 140 pro-
(riam. 25 In addition, tribal governments and tribally-chartered or-
(ganizations appear to be eligible for another 69 programs which re-
qiire various kinds of state involvement in their delivery.26 The
discrepancy between these two reports is explained in the American
Indian Law Institute study as stemming from the fact that many of
the programs in the National Council on Indian Opportunity report
had been dispensed with or consolidated into revenue sharing pro-
grams in the interim.27
Two of the studies cited recommend, ivter alia, the kind of recogni-
tion of tribal governments which our suggested rule of construction
would require .2 The American Indian Law Center study recommends
individual program amendment, suggesting that precaution be taken
1' Final Report of the Task Force on Tribal Government, Chapter IV : "Status of Tribal
Government and Federal Assistance Programs."
1 o., "Study of Statutory Barriers to Tribal Participation in Federal Domestic Assistance
Programs." (on(lileted by the American Indian Law Center of the University of New
Mexico. for the Native American Technical Assistance Corporation, Albuquerque, New
Mexico.
123 ,\ Study of Federal Indian Domestic Assistance Programs," by the National Council
on Indian Opportunity, Office of the Vice-President, February, 1974.
241j d., Summary Findings, p. 4.
125 See note 122, ,Rupra, at p. iii, Executive Summary. Parts of this report are included
in tw Report of Task Force #3.
126 14l
127 1(d.
128 See Report of Task Force on Tribal Govcrnment, and NCTO Study, referred to at
Votes 121 and 123, supra.





75

to ensure that existing programs which utilize state agencies are not
immediately curtailed where such action would be detrimental to the
tribes affected. "It is fairly clear that in most cases the omission of
tribal eligibility results from an unintential drafting pattern which
happens to use exclusionary language rather than a deliberate policy
decision. On the other hand, there are a number of programs for which
an immediate transfer of service delivery from the state to the tribe
would result in a hardship for the tribe and for the people to be
served." 129 However, the studies are uniform in recognizing that the
avowed legislative and judicial commitment to Indian self -determina-
tion, as well as the inherent powers of tribal sovereignty, require that
Indian tribal governments participate fully in the delivery of Fed-
eral domestic assist ance programs.
The concept of Indian self-determination has increasingly become
the policy of both Congress and the courts. The recognition of the im-
portance of strong tribal governments, which began with the Indian
Reorganization Act of 1934,1-0 is manifested in more recent legislation,
such as the Indian Financing Act of 1974 111 and the Indian Self-
Determination and Education Assistance Act of 1975.1a2 As recently as
June of this year, the Supreme Court, in Bryan v. Itasca County,1a3
recognized a Congressional commitment to "the continuing vitality of
tribal government." 134 In discussing the devastating impact which
many authorities feel would result from state and local governments
-obtaining general civil regulatory control over Indians, the court
stated:
The suggestion is that since tribal governments are disabled under many state
laws from incorporating as local units of government, general regulatory control
might relegate tribal governments to a level below that of counties and munici-
palities, thus essentially destroying them . Present federal policy appears
to be returning to a focus upon stregnthening tribal self--,vernment. see e.g..
Indian Financing Act of 1974, also Indian Self-Determination and Education
Assistance Act of 1945.'
The Court further cites Saita R.osa Band, of Indians v. Khiqs
. ounty136 as authority for the proposition that Congress has changed
its policy from one of assimilation to one of self-determination:
The Court of Appeals for the Ninth Circuit has expressed the view that the
courts "are not obligated in ambiguous circumstances to strain to implement [an
issimilationist] policy Congress has now rejected, particularly where to do so
will interfere with the present Congressional approach to what is, after all, an
ongoing relationship." '
The concern that state and local government must not be allowed
to encroach on tribal government authority, voiced in Bryan, .sipra.
was recognized as early as 1934 by the Interior Department. A So-
]icitor's memorandum prepared by then Assistant Solicitor Felix S.
Cohen indicates that the major concern of the Solicitor's Office prior
to the enactment of the Social Security Act was whether Indians would
receive its full benefits, noting that "discrimination against Indians
as against other minority groups, is probable in any administration
I2 American Indian Law Center Study, at p. 34. Conclusions and Recommendations.
1" Act of June 18, 1934, 48 Stat. 984. 25 U.S.C. f 461 et seq. (1970).
'i Act of April 12, 1974. 8, Stat. 77. 25 U.S.C. g 1451 et seq. (Supp. 1976).
Act of January 4. 1975. 88 Stat. 2203. 25 U.S.C. 450 et seq. (Sunn. 1976).
"13 Bryan v. Itasca County, Minnesota, 96 S. Ct. 2102 (June 14, 1976).
14 Id. at p. 2111.
J 14. at p. 2111. note 14 (emphasis added) (citations omitted).
P Nanta Rosa Band of Indians v. Kinqs County, 532 F.2d 660 (CA 9, 1975).
See note 133, 8upra, at p. 2111, footnote 14.





76

of Federal funds which is placed in the hands of state and local
authorities." 138
The importance of Indian self-determination has been recognized
not only by the legislative and judicial branches but by the executive
as well; at least, the last four administrations have favored strength-
ening Indian tribal government. Clearly, this Federal trend warrants
the rule of construction here proposed. Indian self-determination is
an empty phrase without direct tribal government access to Federal
domestic assistance programs.
Accordingly, we recommend that the following lauguage be adopted
as a rule of construction to be codified in proposed Part I, Chapter 3,
Title 25 of the United States Code:
Rule 3:
Indian tribes which have been recognized by either Federal or
state governments shall be recognized as independent units of
government for purposes of eligibility under Federal domestic
assistance programs.

C.4. Rules of Construction Governing the Applicability of Federal
Regulatory Statutes to Indian Tribal Governments and Indian
Property.
The problem here involves a multitude of different types of federal
regulatory statutes- (1) statutes aimed at regulation of criminal
activity, (2) statutes aimed at regulation of activities within federal
enclaves where there is limited or no authority of local government,
(3) statutes aimed at industrial safety and business activities, (4)
statutes aimed at management of federal properties and federal de-
velopment programs, and (5) statutes aimed at regulation of federal
governmental operations. The mechanics of these statutes vary from
direct federal enforcement, to alternative enforcement by state and
local governmental authorities, to simple deferral of federal law if
the state or local authority has a law on the subject.
The basic problem with all of these regulatory statutes is that they
fail to take cognizance of the fact of tribal government on the one-
hand, or, on the other, that they fail to distinguish between tribal
property rights and federal property rights.
It is difficult to formulate a, rule to cover all of these diverse situa-
tions. There is a judicially formulated rule that general acts of Con-
gress do not apply to Indians unless Congress had manifested an intent
to include them.139 However, this rule is honored as often in the breach
138 15 South Dakota Law Review, "Trends in Federal Indian Administration" footnote 4
(Winter, 1970), citing Solicitor's Memorandum of February 14, 1935; see also footnote-
4, of Part 1, Introduction.
This was the rule adopted by the Solicitor's Office, Department of the Interior
in an opinion dated Feb. 1, 1971 (M. 36811) regarding the applicability of the Wholesome
Meat Act of 1967 (81 Stat. 584, 21 U.S.C. 601-691) on Indian reservations. A copy of
this opinion is attached as Appendix II, Part V, Exhibit 7, II: 284. As authority for this
proposition, the Solicitor cited:
Elk v. Wilkins, 112 U.S. 94, 100 (1884) ; McCandless v. United States ex rel. Diabo,
25 F.2d 71 (3rd Cir. 1928), aff'g sub nor, United States ex rel. Diabo v. McCandless,
18 F.2d 282 (E.D. Pa. 1927) ; United States v. 5,677.9!f Acres of Land, 162 F.Supp. 108.
110-111 (D. Mont. 1958) ; Seneca Nation of Indians v. Brucker, 162 F. Supp. 580, 581-582
(D. D.C. 1958), aff'd; 262 F.2d 27 (D.C. Cir. 1958), cert. denied, 360 U.S. 909 (1-959)
and 2icodcmus v. Washington Water Power Co., 264 F.2d 614, 617 (9th Cir. 1959).
More recent authority of similar import is Menominee Tribe v. U.S., 391 U.S. 404. 413
(1968) ; Bennett County v. U.S., 394 F.2d 8, 12 (1968) ; Leech Lake Band of Chippewa
Indias v. !!erbst, 334 F.Supp. 1001, 1005 (D. Minn., 1971) ; and U.S. v. White, 508 F.2d1
453 (8th Cir., 1974).





77


as it is in the obeyance.140 The trouble with this rule is that it is not
adequate to all of the varying situation. If such a rule were strictly
S applied in every situation, it would result in a regulatory vacuum in
matters which Congress has manifested an intent to control throughout
the U.S. regardless of local laws, for example, the Controlled Sub-
stance Act of 1970.141
The need for clarification of the rules of construction to be given
federal regulatory legislation in relation to Indian tribes is heightened
by the fact that more and more federal legislation provides for the
development of alternative state plans and assumption by the states
of enforcement of the law. In these cases, if states are allowed to as-
sume control over Indian reservations the concept of tribal sovereignty
and the concept of federal jurisdiction over Indian country to the
exclusion of states is doubly violated. If enforcement is to be dis-
persed beyond the federal level, it should be the tribe that assumes the
enforcement role within the reservation, not the state.
In order to bring coherency to the discussion of the applicability of
federal regulatory statutes in the Indian context, it is necessary to
break the discussion out into the different types of statutes involved.
(.4(1) Statutes aimed at regulation of criminal activity
There are three different types of statutes involved here: (a) stat-
utes such as the Controlled Substance Act of 1970 142 asserting federal
jurisdiction throughout the United States regardless of local laws, and
(b) statutes asserting federal jurisdiction specifically applicable to
Indian country, and (c) statutes transferring to states criminal juris-
diction within Indian country.
The first class of statutes are those asserting general federal juris-
diction throughout the Nation. It is not possible or reasonable to go
into any lengthy enumeration of such statutes. Title 18 of the United
States Code is chock full of such legislation. Though this was not
always so, the present rule is that such legislation is as applicable to
Indians in Indian country as it is to all other persons throughout the
United States.3
So long as such statutes of general applicability do not infringe on
Indian rights received or granted by federal treaties and laws,4 the
Task Force finds no objection to application of these statutes to Indian
country. The precepts advocated in paragraphs 1 and 3 of the proposed
Congressional Findings and Declaration of Policy discussed in Part
IV of this Report 145 are only minimally disturbed. The jurisdiction
140 The Solicitors Opinion of Feb. 1, 1971 cited in note 139, supra, noted this split of
authority, citing in contrast to the cases cited in note 1 the following:
The Cherokee Tobacco, 78 U.S. (11 Wall) 616 (1870) ; Choteau v. Burned, 283 U.S.
691 (1931) ; Superintendent v. Commissioner, 295 U.S. 418, 420 (1935) ; Federal Power
Commission v. Tuscarora Indian Nation, 362 U.S. 99. 115-118, 120 (1960) Narajo Tribe
v. N.L.R.B., 288 F.2d 162, 164-165n.4 (D.C. Cir. 1961), cert. denied, 366 U.S. 928 (1961) :
Commissioner v. Walker, 326 F.2d 261, 263 (9th Cir. 1964) ; Colliflower v. Garland. 342
F.2d 369. 376 (9th Cir. 1965) ; Holt v. Commissioner, 364 F.2d 38, 40 (8th Cir. 1966),
cert. denied, 386 U.S. 931 (1967) ; and Mann v. United States, 399 F.2d 672, 673 (9th
Cir. 1968).
1 Act of October 27, 1970, 84 Stat. 1242 et seq.
142 Id.
14 Walks on Top v. U.S., 372 F.2d 422, 425 (9th Cir., 1967), cert. denied, 389 U.S. 879
(1967).
144 See U.S. v. White, 508 F.2d 453 (8th Cir., 1974), and pages 65-67 supra and note
67 therein. Compare also the following Solicitor's Opinions, Dept. of the Interior regarding
the application to Indians of the Migratory Bird Treaty Act of 191S (16 U.S.C. 703-704).
Sol. Op. M-27690 dated June 15, 1934; Sol. Op. (unnumbered) Feb. 10, 1942 from
Solicitor Margold to the Commissioner of Indian Affairs regarding same subject.
14Z Page 2- of this Report.





78


asserted within the Indian country is not greater than that outside
the Indian country. The integrity of tribal government is thus fully
retained.
Our recommendation for a rule of construction on this class of fed-
eral legislation is thus as follows:
Rule 4, Sec. 1(a):
Federal criminal laws of general application nationally shall
be applicable to Indians and non-Indians alike, both within and
without the Indian country,,14 except as such laws affect or in-
fringe upon rights explicitly or implicitly reserved by or granted
to any Indian or Indian tribe by treaty, agreement, statute, or
executive order.147
The second class of federal statutes aimed at regulation of criminal
activity are statutes specifically applicable to Indian country. The
General Crimes Act 148 and the Major Crimes Act 149 are the most
widely used of these statutes. By virtue of a Supreme Court decision
iii 1946 170 the Assimilative Crimes Act 151 is also applicable within
Indian country. Suffice it to say that each of these Acts constitutes a
significant encroachment on the once exclusive authority of Indian
tribe s.
There is a significant difference of opinion between the Criminal
Division in the Department of Justice and persons working in the
field of Indian law as to the interpretations which should be placed
on these three major items of law. Surprisingly there is relatively little
authority to aid in the determination of these. points of law.
Essentially the differences of opinion focus on the Major Crimes
Act which spells out 14 major felonies over which the United States
asserts jurisdiction when committed by an Indian within Indian
country, and the Assimilative Crimes Act which incorporates state
criminal laws and makes them applicable within federal enclaves.
The principal question involved under the Major Crimes Act is
whether or not the tribes retain concurrent jurisdiction with the federal
sovereign over the offenses enumerated in that statute, or whether the
federal jurisdiction is exclusive, thereby precluding tribal jurisdiction
regardless of whether or not the federal government investigates or
pr-osecutes. The Department of Justice would contend that federal
jurisdiction is exclusive-those who work with Indian tribes would
insist the jurisdiction must be concurrent in order to avoid a break
down in law and order.
The principal question involved under the Assimilative Crimes Act
is the extent to which that Act makes state laws applicable within
Indian country. The Department of Justice takes an expansive view
of this Act and has threatened federal prosecution of Indian persons
on the basis of state law for activities such as operation of bingo games,
I'l Indian country is defined in 18 U.S.C. 1151.
14 Proposed Rules of Construction regarding abrogation and interpretation of treaties,
agreements, statutes, and executive orders are set forth at pages 69-70, and 73 supra.
14 Sec. 25. Act of June 30, 1S14, ch. 161. 4 Stat. 729 (18 U.S.C. 1152).
119 Aot of March 3. 18S5, ch. 341. 23 Stat. 362, 385 (18 U.S.C. 1153).
IZ? Wi1liams v. U..S., 326 U.S. 711 (1946).
18 U.S.C. 7, 13.





79


sale of fireworks or playing of Indian stick games, even though such
activity may be licensed by a tribe or be regulated by the tribal code.15'
Those who work in the field of Indian law find extreme danger in this
interpretation of the Assimilative Crimes Act-the potential for total
destruction of tribal sovereignty: total subjugation to the laws of the
states leaving the tribes no room to legislate except in conformity with
the laws of the state.
In view of the expansive interpretations which the Departlneiit of
Justice is placing on these Acts, and in view of the emergence of tribal
authority in the area of criminal law, conflicts in the philosophy and
application of these laws are quickly developing. This conflict has
resulted in considerable debate over the various proposals for the
reform of Title 18 of the United States Code. The most recent such
proposal is found in S. 1 introduced in the 94th Congress. This bill is
a sequel to the major overhaul of Title 18 of the United States Code
proposed by the National Commission on Reform of Federal Criiininal
Laws in 1971.
There is not time in this Report to explore all the ramifications of
S. 1 or its various predecessors. But it is of niaxiinum importance. that
the Congress understand the rainifications of the "reforms" whicl are
being proposed. The Task Force has attached as Exhibit 2 to this Part
the comments of the Associate Solicitor of the Division of Indian
Affairs to the Legislative Counsel in the Department of the Interior
on S. 1 ',5 In addition, the Task Force has attaclied as Exhibit '3 a
lengthy analysis of the original proposal of the National Conrniissioll
on Reform of Federal Crininal Law. This analysis was pIrepa l',d 1V
the Indian Civil Rights Task Force, Solicitors Office. Departnteitt otf
the Interior in the Fall of 1972.'3 And finally we attach as Exhibit 4 a
memorandum of October 15, 1974. from the Indian Civil Rights Task
Force to the Special Assistant to the Solicitor of the epartnent of
the Interior setting forth comilments on S. 1400, the legislative prede-
cessor to S. 1. In addition we strongly urge that any revisers of current
criminal law applicable in Indian country review two articles relating
to this subject. one in the Kansas Law Review. Spring 1974 an( thne
other in the 1976 edition of the Indian Law Manual.5
1-52 United States v. Pakootw., No. 4777 (0. Idaho. No. Div.. Sept. 20. 192) Ounrer-rted
Judgment of Acquittal regarding playing of Indian stick game. The bingo incident cannot
be documented but the incident occurred at the ,Southern Ute Reservation in Colorado
in the early 1970's. Mr. Frank Maynes. attorney for that tribe with offices in Duran'.
Colorado can confirm the case. The fireworks sale incident occurred in June or Jily, 1975
in the state of Washington and can be confirmed by the Office of the Associate Solicito, r.
Division of Indian Affairs, Department of the Interior. The Pakootas decision is more fully
discussed in note 167. infra.
In a more compliant but clearly vacillating vein. the Criminal Division of Department
of Justice recently advised the Solicitor of Interior that "fujnder the present state of the
law it is not the intent of the Criminal Division to prosecute an Indian who sellsiqor
in conformity with state laws and tribal regulations but without a state liquor license
in the State of Montana." See letter of Richard L. Thornburgh, Assistant Attorrev
General, Dept. of Justice to H. Gregory Austin. Solicitor. Department of the Interior.
dated January 2, 1976. attached as Appendix II. Part V. Exhibit 1. II : 249.
1'Memorandum from Associate Solicitor. Division of Indian Affairs to Legislative
Counsel dated Nov. 27. 1974. Appendix II. Part V, Exbibit 2, II : 250.
1,1 The members of the Indian Civil Rights Task Force who participated in the writing
of this analysis were Peter S. Taylor, now Chairman of Task Force No. 9. John R. Ros;.
now Consultant with Task Force No. 9. Alan Parker. now a member of Task Force No. 2,
and M. Frances Aver. now staff counsel to the National Tribal Chairman's Associatior,
Appendix II. Part V, Exhibit 3. II : 252.
'- Vollman. Tim. Criminal Jurisdiction in Indian Countri: Tribal Sovereignty and
Defendant's Rights in Conflict, Vol. 22. No. 3. Kansas L. Rev.. Spring 1974. p. 387;
Taylor, P., revised by West. M.. Criminal Juri.wdirtion, Manua] of Indian Law., American
Indian Lawyer Training Program, 1000 Wisconsin Avenue, N.W., Washington, D.C.





80


Although the proposals for law reform in these three legislative
packages vary, each in its own way exhibit jurisdictional deficiencies
from an Indian standpoint.
For purposes of congressional consideration of the pending S. 1. this
Task Force supports the position of the Associate Solicitor set forth
in his memorandum of November 27, 1974.156
Regardless of the present pendency of S. 1, the Task Force believes
there is a present and future need for rules of construction of these
federal criminal laws. This rule must comport with the precepts
advanced in our discussion of paragraph three of our proposed Find-
ings and Declaration.15 We recommend the following rule:
Rule 4, Sec. 1(b):
Indian tribes are recognized to have all of the powers of any
sovereign except as specifically limited by treaty or federal
statute. Federal criminal statutes applicable within the Indian
country shall be strictly construed; the reach of such statutes
may not be extended by inference; and doubtful expressions are
to be resolved in favor of continued tribal jurisdiction. Said
criminal laws shall be interpreted wth due regard to the long
standing policy of leaving the Indians in Indian country free
to govern themselves under their own code of laws.
It should be reemphasized that the purpose of this proposed rule is
to eliminate arguments ito the effect that when the federal sovereign
has statutorily asserted jurisdiction over a particular offense, tribal
jurisdiction, by necessary implication, has been withdrawn. There is
ample room for both federal and tribal sovereigs-two separate sov-
ereigns-to play a role in law enforcement within the Indian country.
The penal power of the tribe is limited, but its authority is always
present; the penal power of the federal sovereign is great, but the
record shows that its authority is exerted only sporadically. Prosecu-
tion by a tribe of an offense punishable under the Major Crimes Act
should not bar subsequent prosecution by the federal sovereign for the
same offense.55 But the potential for severe punishment by the federal
sovereign should not rest upon denial to the tribe of authority to deal
with the situation in the first instance.
The second purpose of the proposed rule is to limit the potential ap-
plication of the Assimilative Crimes Act. The predecessor of the cur-
rent Act was first enacted in 1825.159 Its purpose then as now was to
fill a jurisdictional vacuum which existed within federal enclaves. The
General Crimes Act was enacted in 1834,160 only nine years after the
first Assimilative Crimes Act was enacted. The statutory scheme of
the Act as stated in the House Committee Report 161 and as repeatedly
':, Appendix II, Part V, Exhibit 2, II: 250. We must not that in the fall of 1975 there
were suggestions of changes in S. 1 on the Senate side with which this Task Force is not
fully familiar. Our comments do not extend to any such changes.
',7 P,-. 28, Part IV of this Report.
15s This was the precise point at Issue in U.S. v. De Marrias, 441 F.2d 1304 (8th Cir.,
1971) and U.S. v. Kills Plenty, 466 F.2d 240 (8th Cir., 1972). See discussion Part IV
ot pg. 50-52 of this Report. This point is discussed at length in the analysis of the Indian
Civil Rights Task Force, Appendix II, Part V, Exhibit 3.
') Act of March 3, 1-825, ch. 65, 4 Stat. 115, See. 3. Now codified at 18 U.S.C. 7, 13.
"1 Sec. 25, Act of June 30, 184, ch. 161, 4 Stat. 729. Now codified at 18 U.S.C. 115g.
161 Report of the House Committee on Indian Affairs, Rept. No. 474, 23rd Cong., 1st
Sess. (1834). Particular attention is called to page 13.







'found by the federal judiciary 162 was to leave the Indians within the
Indian country free to govern themselves under their own code of
jaws. It was well recognized by the Committee and Congress in 1834
hiat within the Indian country there was no "vacuum" of local author-
ity. The sovereign authority of tribes within Indian country was both
understood and honored. The Committee Report stated:
It will be seen that we cannot, consistently with the provisions of some our
treaties, and of the territorial act, extend our criminal laws to offences com-
mitted by or against Indians, of which the tribes have exclusive jurisdiction;
and it is rather of courtesy than of right that we undertake to punish crimes
committed in that territory by and against our own citizens.'
Clearly in extending to the Indian country "... the general laws of
the United States as to the punishment of offenses committed in any
place within the 'sole and exclusive' jurisdiction of the United
:States..." 164 Congress did not intend to authorize wholesale applica-
tion of either federal or state laws to matters which were the legiti-
'mate concern of tribal governments.lG5
The principle announced in Williams v. United States, in 1946,66
that the Assimilative Crimes Act is a part of the federal enclave laws
extended to the Indian country by way of the General Crimes Act,
.does no violence to this well established rule for that was an offense
by a non-Indian against an Indian-a factual pattern precisely within
'the contemplation of the General Crimes Act. But it cannot be argued
from that as the Justice Department would have it that the Adminis-
'trative Crimes Act is now generally applicable in Indian country, even
in matters sponsored by or licensed by the tribe or regulated under the
'laws of the tribe.167
As Justice Douglas noted in United States v. Sharpnack.168 the
reach of the Assimilative Crimes Act is sufficiently broad that it may
well include a host of state regulatory laws. If that Act is given the
broad application within the Indian country argued by Justice, where
then is tribal self-government? It is to curb that argument that the
Task Force proposes the rule of construction above.
The third class of federal statutes aimed at regulation of criminal
-conduct in Indian country are those statutes transferring to the states
criminal jurisdiction. The most well known of these is of course
16See discussion Part IV at pages 3.3-35, 39-40. See particularly McClainahan v. State
Tar Comm., 411 U.S. 164 (1973).
'6 See House Report cited note 23., supra.
164 "The words. 'sole and exclusive', in section 2145 (predecessor to the General Crimes
Act, IS U.S.C. 1152) do not apply to the jurisdiction extended over the Indian Country
but are only used in the description of the laws which are extended to it." (In re Wilson,
'140. U.S. 575. 578 (1891).
"65 Ex parte Crow Dog, 109 U.S. 556 (1883) ; U.S. v. Quiver, 241 U.S. 602 (1916).
:1 326 U.S. 711 (1946). See discussion accompanying note 144, supra.
j 1 See text accompanying note 145, supra. There is judicial precedent to support the
Justice Department position. See U.S. v. Sosseur, 181 F.2d 873 (7th Cir.. 1950). There is
,also precedent against them. See U.S. Pakootas, No. 4777 (D. Idaho. No. Div. Sept. 30,
1965) (unreported) cited in note 14, supra. The Justice Dept. wisely decided not to
apT)eal Pakootas, choosing instead to stand on the reported decision in U.S. v. Sosseur.
The tender mercies of the Department of Justice toward tribal government and the
high regard it has for the judicial process is manifested by the fact that following their
loss of Pakootas they directed the Department of the Interior to disapprove a tribal code
provision from the very reservation from which the case originated which would have
regulated the "stick game" Mr. Pakootas was charged with playing, stating that the
41pplicable law was not the Pakootas decision but rather Sosseur. See Exhibit 5 to this Part.
Thus through the administrative process Justice was able to win what it had not been
.able to win in a court of law. Needless to say, the tribe was the loser.
5 355 U.S. 286, 299 (1957), J. Douglas dissenting.





82


P.L. 83-280, as amended.19 As noted previously in this report there
are other general transfer Acts directed at specific states.170
The Task Force will not engage in any lengthy discussion of this
"transfer" legislation. The problems associated with P.L. 83-280 have.
been the subject of detailed investigation of Task Force No. 4. It is
sufficient here to note that S. 2010 was introduced in the 94th Congress
and that this bill has the support of the National Congress of Ameri-
can Indians. This Task Force is aware of the fact there are minor
language changes which may be required in this bill, but the Task
Force endorses the basic concept of the bill and recommends its early
passage.
With or without passage of this legislation, the Task Force recom-
mends adoption of a rule of construction to govern any federal legis-
lation authorizing the transfer to any state of criminal or civil juris-
diction in Indian country which will conform in basic principles to
the rules proposed above to govern application of federal criminal
laws in Indian country. The Task Force proposes the following rule.
Rule 4, Sec. 1(c):
The assumption by a state of either civil or criminal jurisdic-
tion over any reservation shall not be deemed to deprive any
tribe affected thereby of concurrent jurisdiction over the same
subject matter, nor shall such transfer of jurisdiction authorize
any state to enact or apply its laws in any manner which will
infringe upon the rights, express or implied, reserved to said tribe
and its members by treaty, agreement, federal statute or Execu-
tive Order.
C.4(2) Sltatte8 ahned at refldaflon of vov-,,rn inal activities ,ith-
;nf fedewl evwlates ?!'heui'e there is linited or ,o a authority of local
go Ier 1? en t
The Task Force is unable to identify all of the regulatory statutes
which inay fit this category, but it must be assumed there are a sub-
stantial number. As early as 1825, Congress found the need to fill the
jurisdictional void present in areas under its "sole and exclusive"
jurisdiction with an Assimilative Crimes Act.'7' Over the yeals, stat-
utes regulating non-criminal activity within such enclaves has un-
doubtedly also been enacted. It would seem likely that such statute
could be identified relatively quickly through the JUTRIS computer
system at the Department of Justice.
Typical of the class of legislation that we are concerned with in this
section is the Federal Boat Safety Act of 1971.172 By letter dated
March 15. 1974, the U.S. Coast Guard in the Department of Transpor-
tation, which is charged with administering that Act, requested the
opinion of the Department of the Interior as to the jurisdictional
reach of that Act over navigable and non-navigable waters within
Iidian reservations.
The jurisdictional provisions of that Act states, in pertinent part.
that the Act applies to vessels used "on water's subject to the juris-
'J Aet of Aug. 15. 1953, 67 Stat. 58S. a- amended by Title IV, Act of April 11, 1968, 82
Stat. 77 (18 U.S.C. 1162. 28 U.S.C. 1260. 27 T7.S.C. 1321 et seq.).
11 ,ep notes 32, 33 and 34 at page 73 of this Report.
171 5.- note 21. supra.
172 46 U.S.C. 1451 et seq.





83


-diction of the United States . 173 The legislative history, however,
shows the Senate Commerce Committee as characterizing this statu-
tory language as covering waters which are in the "exclusive or con-
current jurisdiction" of the United States 174 language which is identi-
cal to that used in 18 U.S.C. 7(3) which defines the federal enclaves.
By opinion dated April 30. 19T5, the Solicitor's Office held that the
Act had no applicability within the exterior boundaries of an Indian
reservation. Interior based this opinion on the legislative history of
the General Crimes Act and its historic interplay with the Assimila-
tive Crimes Act 175 and on the rule of Elk v. tVilkinm,16 that general
acts of Congress do not apply to Indians unless Congress has mani-
fested a clear intent to include them.17
In a responding opinion dated July 16, 1975., the Chief Counsel of
the U.S. Coast Guard, Department of iransportation agreed in part
and disagreed in part with the opinion.
The Chief Counsel noted that the term "navigable waters of the
U.S." is based on the use and physical characteristics of a water system
and is in no way affected by the status of surrounding lands through
which the waters may flow. He then noted that Congressional intent
was manifested that selected provisions of the Act should apply to all
navi-able waters of the U.S. and held that specific reference to "Indian
lands" was unnecessary.
Navigable waters of the U.S. is a jurisdictional concept quite separate from
that of "Federally owned lands." Application of the FBSA to navhgae waters of
the U.S. which cross Indian reservations in no way affects the territorial in-
tegrity of the reservation as such waters are separate and aIart from the "Fed-
eral lauds" which comprise the reservation."
Turning to the question of Coast Guard jurisdiction over non-
navigable waters within Indian reservations, the Chief Counsel found
himself in full agreement with the analysis of the Division of Indian
Affairs.
Although the creation of Indian reservations took place in a variety of differ-
ent ways, the U.S. has always held title to these lands. U.S. v. S cita Fe Pac. 1.
Co., Ariz., 62 Ct. 248, 314 U.S. 339. 86 L. Ed. 26. However, the Federal Govern-
ment merely holds legal title in trust for the Indian tribes themnselves, which
hold all use and possessory rights. Therefore, the title rights of the U.S. in such
lands are not complete and may be distinguished from U.S. title to other Federal
enclaves.
Indian lands are subject to the jurisdiction of the United States, and Congress
has broad powers to deal with the Indians and their property whiclh is para-
mount to the State within whose limits a reservation may be located.
U.s. v. Kagama, Cal., 6 S. Ct. 1109, 118 U.S. 375, 30 L. Ed. 228. Therefore,
abseit a relinquishment of Federal jurisdiction and a State's assumption of
jurisdiction (by consent of a tribe), Federal jurisdiction over Indian lands is
c.,clustire in relation to State jurisdiction. * Jorer, s uch Federal jiris dir-
tion is not exelu.sive in relation to the jurisdiction of the tribal natiw,. them-
Welves. While Con gress definitely has the power to legislate with regard to Indiall

4f; U.S.C. 1453.
': l S. Rept. No. 92-24g. 1971 V.S. Code Cong. & Adm. News, 1.,8.
Pe discussion in text accompnnying notes 152-16,1, supra.
.7C 12 VS. '4.10 (184). eedscussion note 1.19. stipra.
i tt-r from Charles M. Seller. Acting Asse. Sol.. Div. of Tndian Affairs. to Rear
Admiral R. A. Ratti. Dept. of Transportation, dated April ,0, 1975. For the full text, see
Appenidix 11. Part V. Exhibit 8. II: 2,S .
An additional portion of this opinion discussed the fact that the Act provided for
alternative state laws and state assumption of jurisdiction. This issue is discussed later
in this Report.
'. Letter of Admiral Ratti. U.S. Coast guardd to Charles M. Soller. Aetinz As4s(,iare
Slif itor. Division of Indian Affairs, dated July 16, 1975, pages 2-8. Attached. Appendix 11.
Part V. Exhibit 6. II: 281.





84


lands, not all Federal laws apply to Indian reservation. New York ex rel. Ray v.
Martin, 326 U.S. 496 (1946), (emphasis added).79
The Chief Counsel thus concluded that selected sections of the Act
are applicable to all navigable waters of the U.S. wherever situated,
but they were not applicable to those waters within the territorial
limits of a reservation which are not part of the navigable waters
of the U.S.
The analysis of the Division of Indian Affairs, Department of the
Interior, and the Chief Counsel for the U.S. Coast Guard suggest an
appropriate rule to govern the applicability or non-applicability of
regulatory statutes in Indian country as opposed to federal enclaves.
The Task Force recommends the following rule.
Rule 4, Sec. 2:
The United States enjoys concurrent jurisdiction with the
Indian tribes within Indian country, but Indian country is not
a federal enclave within the meaning of the Federal enclave
laws. In the absence of a separate and distinctly stated juris-
dictional base, regulatory statutes applicable within Federal
enclaves shall not be applicable within Indian country except
as specifically made applicable by Act of Congress.
Adoption of such a rule will provide needed guidance for federal
administrative agencies and should eliminate the fears expressed by
Justice Dougles in U.S. v. Sharpnack.80
C.4.(3) Statutes Ained at Industrial Safety and Business Activities
Of all of the federal regulatory statutes discussed in this portion of
our Report, this is the most difficult to resolve. Examples of the types
of statutes under consideration are the National Labor Relations
Act,1s the Wholesome Meat Act of 1967,182 the Coal Mine Health and
Safety Act 18a and the Occupational Safety and Health Act.81 In
legislation such as this, Congress is clearly manifesting an intent to
provide federal regulatory standards throughout the United States.
And yet tribal enterprises are subject to unique problems and unique
needs which set them aside from regular non-Indian business ven-
tures. In addition they enjoy a unique and close relationship with the
federal government, particularly the Bureau of Indian Affairs. These
factors auger in favor of special considerations when general federal
legislation is made applicable within Indian reservations.
The Task Force notes that there is currently a division of authority
with respect to the application of general federal regulatory laws
which do not specifically state that they are applicable within Indian
country.
The Solicitor's Office, Division of Indian Affairs has rather consist-
ently taken the position that such general legislation is not applicable
to Indians within Indian country unless the Act specifically so states.
Such was the ruling in the February 1, 1971 opinion regarding appli-
179 Id. at pages 3-4.
111 355 U.S. 286. 299 (1957), J. Douglas dissenting.
111 29 U.S.C. 155 et seq.
1 1 Stat. 5S4.
's 30 U.S.C. 801 et seq.
18 Act of Dec. 29, 1970, 84 Stat. 1590.





85


cation of the Wholesome Meat Act of 1967 noted earlier in this Re-
port,"'5 the opinion of April 30, 1975, regarding application of the
-Federal Boat Safety Act of 1971,186 and the opinion of November 9,
1971 regarding application of the Twenty Sixth Amendment to the
United States Constitution extending the right to vote in state and
federal elections to eighteen years old.187 The Solicitor's position on the
voting rights issue was supported by Eighth Circuit in Wounded
Head v. Tribal Council of the Oglala Sioux Tribe in 19 5. It is our
understanding, albeit undocumented, that the Department of Labor
has taken a similar position on the applicability of the Occupational
Safety and Health Act of 1970.
In contrast to this view, the Division of Indian Affairs in its opinion
on the Wholesome Meat Act noted the division of authority on the
issue, stating that the recent trend of cases indicates that general acts
of Congress applying to all persons includes Indians and their prop-
erty interest.69 Intriguingly, the Division of Mine Health and Safety,
also a part of the Solicitor's Office at the Department of the Interior,
has taken the position that the general provisions of the Coal Mine
Health and Safety Act are applicable to Indian owned and operated
mines within Indian reservations thus adopting the position which the
Division of Indian Affairs rejects.90 Copies of the opinions of the Di-
vision of Indian Affairs noted in footnotes 47, 48 and 49, and the draft
opinion of the Associate Solicitor for Mine Health and Safety, are
attached to this Report as Exhibits 7, 8, 9 and 10 to Part V.
The Task Force is inclined toward the view that general acts of Con-
gress applicable to the public at large throughout the United States
probably should also be applicable to the Indians within Indian coun-
try. The problem is that not all of this legislation is workable in the
Indian context. Once an item of "general regulatory" legislation is en-
acted, it is very difficult for the Indian people to achieve amendments
necessary to make such legislation liveable. The Indian lobby, as op-
posed to the national lobby, carries little weight, particularly among
Congressional Committees and Executive Departments which are
either not attuned or are totally unsympathetic to the problems of In-
dians within Indian country. The Federal Power Commission and the
decision in F.P.C. v. Tuscarora Indian Nation 191 is a classic example
of this problem. Similar problems with the Corps of Engineers and the
Bureau of Reclamation are documented in other Task Force Reports.
Although the record of Congress in recent years has improved, the
oversight of Indian interest continues to pervade much of the legisla-
tion considered by Congress. See for example the Coastal Zone Mlan-
agement Act of 1972,92 which is devoid of reference to Indian tribes,
and the 1974 amendment to Title 18 United States Code which requires
the Attorney General to turn juvenile offenders over to state authori-
Im See discussion, page 76, accompanying footnotes 139 and 140. Full opinion appears
In Appendix II, Part V, Exhibit 7, II: 284.
See discussion, pages 82-84, Appendix II, Part V, Exhibits 8, II: 288.
Th7 Sol. Op. Nov. 9, 1971 (M 36840). Appendix II, Part V, Exhibit 9, II: 290.
's507 F.2d 1079 (8th Cir.. 1975).
See cases cited footnote 140. Appendix II, Part V, Exhibit 7. II: 284.
Draft copy of Memorandum undated from Associate Solicitor, Mine Health and
Safety, to Administrator. Mining Enforcement and Safety Administration. Appendix II,
Part V, Exhibit 10, II: 292.
191 362 U.S. 99 (1960).
"2 Act of Oct. 27, 1972, 86 Stat. 1280.





86


tis if they have any claim to jurisdiction in the case but makes no men-
tion of Indian tribes even though the tribes exercise primary jurisdic-
tion over Indian juveniles within reservations13
The Title 18 juvenile offender example noted above is illustrative of
the second major problem with general federal regulatory legislation.
In recent years there has been an increasing trend in federal regula-
tory legislation to provide for the development of alternative state
p1mis and assumption by the states of enforcement responsibility for
tile federal or alternative state law. The Coal Mine Health and Safety
Act '" and the Federal Boat Safety Act 195 both provide excellent ex-
llinples of this feature. Both authorize the adoption of alternative
ktate plans: both authorize assumption of state enforcement respon-
sibility; neither mentions Indian tribes or jurisdiction within reserva-
tion boundaries. This factor was commented upon in the exchange of
opinions between the Division of Indian Affairs and the Chief Coun-
sel for the U.S. Coast Guard "hu on the application of the Federal Boat
Safety Act, and was commented upon by the Division of Mine Health
and Safety in their draft opinion on the applicability of the Coal Mine
Health and Safety Act.'7 In each of these opinions, issued from three
different offices out of two different agencies, it was agreed that in the
abs-i'e of tribal consent, the statutes did not operate to vest states with
an vi-trisdiction over Indians within the Indian country.
The Environmental Protection Agency has also attempted to
,, ,e with this problem in connection with three statutes under their
adm}mfistration: the Water Pollution Control Act 18 the Safe Drink-
ing Water Act'99 and the Solid Waste Disposal Act.200 These statutes
too provide for delegation of authority to states. The Environmental
Protection Agency reached the same conclusion as did the Division of
Mine Health and Safety and the Chief Counsel of the U.S. Coast
Guard rewarding their respective Acts, i.e.. that this delegation did not
vest. the. states with any jurisdiction over Indian tribes or Indian peo-
pie within the boundaries of their reservation. See statement of J.
Kemipe Will. Assistant Re.,oional Counsel, Region VIII attached to
this Report as Exhibit 11 to this Part.20
These.opinions are well and good as far as they go, but they still
leave an untouched problem area, namely the failure of the legisla-
tion itself to recognize the local sovereign authority of tribal govern-
m1)evis. If it is a part of the federal regulatory plan to disperse imple-
nmentation and enforcement authority beyond the federal level, then
suci authority should be, vested in the tribes within their respective
reservations. The Environmental Protection Agency is concerned
I: U.S.C. 5022. as amended, Sept. 7, 1974, P.L. 93-415, Title V, Sec. 502, 88 Stat. 1134.
.0 T .S.C. 01 et seq.
40. U.S.C. 145 et seq.
e Appendix II. Part V, Exhibits 6 and 8. II : 281. II : 28 .
s:' Appendix IT, Part V. Exhibit 10. II : 292.
2,s3 IT.S.C. 12511-1376. See, especially 3.3 U.S.C..4 1,118 (states may submit water
q,:qitv standards to EPA for approval), 33 U.S.C. 1342(b) (states may establish water
pollution discharge programs) : 33 U.S.C. 1341 (any applicant for a federal license or
permit must present a certificate of compliance with state water pollution laws.
11 942 U.S.C. 300f-3001-9. See. especially, 42 U.S.C. J 3O0g-2 (states have "primary
en Wreement responsibility"). The Act does mention Indian tribes, but only to include
them within the definition of "municipalities" (33 U.S.C. 300f (10)) authorized to
receive federal assistance.
u("' 42 U.S.C. 3259.
2' 0:1tement of J. Kemper Will. Assistant Reaional Counel. Region VIII. EPA. mande
ni the Foderal l.iar Association-Indian Law Seminar, Phoenix, Arizona on May 24, 1976.
App4wndix II. Part V, Exhibit 11, II,2)5.





87


about this problem. In his statement to the Federal Bar Association-
Indian Law Seminar, Mr. Will expressed this concern in the follow-
ing fashion:
The issue of authority of the Indian tribe over non-Indians is also important
for us. Much of the environmental difficulty on Indian land is caused by non-
Indian enterprises and it raises the question of whether a tribe which wishes
to protect its land from environmental degradation has authority to develop its
own environmental controls that would apply to that non-Indian enterprise. We
obviously take the position that they do and our agency will work with the tribes
to develop regulations and we would also assist them in enforcing those regula-
tions if necessary.2
Clearly federal regulatory legislation must begin to take into ac-
count the legitimate interests and the legitimate authority of Indian
tribes in the regulation of conditions within their reservation bound-
aries. The Task Force urges new legislative approaches to federal
regulatory legislation and specifically refers to the proposed Land Use
Policy and Planning Assistance Act of 1973 as a model for future
guidance.203 This bill floundered in the House of Representatives after
passage by the Senate, with action on the entire matter referred for
-further study.04 Since the decision in U.S. v. fazurie in 1975 there
can be no doubt of the Constitutionality of such an enactment.205
In the absence of such an enlightened legislative approach which can
only lie in the future, the Task Force endorses the approach of the
Division of Indian Affairs, and recommends that following rule be
adopted:
Rule 4, Sec. 3(a):
General federal regulatory legislation shall have no applica-
tion to Indians within the Indian country except insofar as such
laws specifically declare an intent to include them.
In addition, or in the alternative, the Task Force recommends codi-
fication of the principle endorsed by the various federal agencies dis-
cussed above regarding the scope of authority delegated to states under
such general federal regulatory laws:
Rule 4, Sec. 3(b):
In the absence of consent previously obtained from the tribes,
in the manner prescribed by Sec. 406 of Title IV, Act of April 11,
1968 (82 Stat. 80, 25 U.S.C. 1326) legislation which delegates or
authorizes delegation of regulatory powers to the states shall
not be deemed to authorize any jurisdiction whatsoever to the
states over Indian people, their property or their tribal govern-
ments.
In denying the applicability of federal regulatory legislation to
Indians within Indian country in the absence of a specific manifesta-
tion of a contrary intent, it would be the hope of the Task Force that
'Congress and the different regulatory agencies would begin to pay
greater attention to the specific problems of the tribes. In the absence
of such a rule, much legislation has and will in the future be enacted
with direct impact upon the tribes, but without any consultation what-
212 Supra, note 201 at page 4.
Us See S. 268, 93rd Cong., 1st Sess., copy of which Is attached hereto as Appendix II,
'Part V. Exhibit 12, II: 297.
")4 House Report No. 93-798, 93rd Cong., 2d Sess., to accompany H.R. 10294.
419 U.S. 544 (1975).
83-755--77-7





88


soever with tribal groups or with the primary federal agency respon-
sible for administration of Indian affairs, i.e., the Bureau of Indian
Affairs. In the absence of such a consultation process, it is little wonder
that the federal regulatory system fails to accommodate the Indian
needs.
As a final note on this subject, the Task Force is aware that the
National Tribal Chairman's Association is exploring the possibility
of securing an Executive Order which would require that before any
federal agency undertook action which would have any impact upon
the Indian people, their property or their government, it would be man-
datory that that agency prepare an "Indian impact" statement similar
to an environmental impact statement which would be transmitted to
the Secretary of the Interior or the Commissioner of Indian Affairs for
his comments or actions as appropriate. This Task Force fully supports
this effort by the National Tribal Chairman's Association. In order to
give such an Executive Order substantive meaning, the Task Force
recommends legislation to provide injunctive relief against non-com-
plying agency actions.206
C.4 (4) Statutes Aimed at Management of Federal Properties and Fed-
eral Development Programs
The issue involved in this class of statutes stems primarily from a
confusion of the property rights and development proposals of Indian
tribes with property rights and development proposals of the federal
government. The principle statute involved in this discussion is the
National Environmental Policy Act of 1969 (NEPA), but the concerns
expressed extend beyond that act alone.07
This Act has had a profound effect on the way in which federal
agencies make their decisions to implement or approve projects. NEPA
declares a federal policy "to use all practicable means... to create and
maintain conditions under which man and nature can exist in pro-
ductive harmony..." 208 The Act declares it the responsibility of the
federal government to strive to achieve six broad goals necessary to
achieve environmental quality.209 To promote these goals, NEPA
requires "all agencies of the Federal Government" to give "presently
unquantified environmental amenities and values.., appropriate con-
sideration in decision-making." 210 To make sure that this new dimen-
sion to the decision-making process is actually carried out, NEPA pre-
scribes a set of procedures under which agencies must prepare a
detailed "environmental impact statement" (EIS) setting forth the
long and short-term environmental impacts of a proposed project, as
well as any alternatives to the proposed action.1
NEPA has engendered an enormous amount of litigation in its short
history. The cases have made it clear that NEPA applies not only to
projects constructed and funded by the federal government, but also to
instances in which the only federal involvement is a licensing or
approval of private activity.212
2 '6 42 U.S.C. 4321 et seq.
207 42 U.S.C. 4"21 et seq.
2 NEPA 101(a), 42 U.S.C. 4331(a).
2 ,O NEPA 101(h), 42 U.S.C. 4331(b).
21() NEPA 101(2) (i), 42 U.S.C. 4332(2) (B).
211 NEPA 102(2) (c). 42 U.S.C. 4332(2) (C).
12 .pp. C.. Gene Co~nvty Planning Roard v. Federal Power Comm'n., 455 F.2d 412-
(2d Cir. 1972) (licensing of power authorla,;'s transmission line) ; McLean Garden8 Res.
A v. National Capitol Planning Comm'n., 390 F.Supp. 165 (D.D.C. 1974). (approval of
rezonil.g request by Planning Commission).