Indian law

“ How were the weak to be protected, and the strong to be restrained, at points beyond the ordinary pale of the civil law? If a red man killed a white, without the ordinary jurisdiction of the courts, could he be seized as a criminal? And if so, were civil offences, committed without the jurisdiction of either territory, cognizable in either, or neither? Could there be a supremacy within a supremacy? And what was the limit between State and United States laws? Such were among the topics entering into the Indian policy. ”

“ Joseph now says that the greatest want of the Indians is a system of law by which controversies between Indians, and between Indians and white men, can be settled without appealing to physical force. He says that the want of law is the great source of disorder among Indians. They understand the operation of laws, and if there were any statutes the Indians would be perfectly content to place themselves in the hands of a proper tribunal, and would not take the righting of their wrongs into their own hands, or retaliate, as they now do, without the law. ”

“ More fundamentally, even granting respondent these examples would not do him any good. Just think of the balancing task we would face. On one side of the scale, we would have a couple of scattered quotes (cherry-picked from over two centuries of Indian-law jurisprudence) bandying about the word “domestic” when describing certain features of Tribes. On the other side of the scale, we would have the text and history of the Constitution, supported by more (and better) examples of this Court’s jurisprudence fashioning rules of law treating Tribes as sui generis. ”

“ Cohen, Federal Indian Law (Revision by the United States Interior Department 1958) ; 55 Decisions of the Department of the Interior 56-64.↑ For example, Congress has granted to the federal courts exclusive jurisdiction upon Indian reservations over 11 major crimes. And non-Indians committing crimes against Indians are now generally tried in federal courts. ”

“ The preceding section shall not be construed to extend to [crimes committed by one Indian against the person or property of another Indian, nor to] any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where by treaty stipulations the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.'
That part of section 2146 placed within brackets was in the act of twenty-seventh March, 1854, c. ”

“ Breaking up these old barbarities—suicide, infanticide, and the burning of widows—the government has steadily aimed to introduce a better system for the administration of justice, in which, with due regard to Hindoo customs and prejudices, shall be incorporated, as far as possible, the principles of English law. For twenty years the ablest men that could be found in India or in England, have been engaged in perfecting an elaborate Indian Code, in which there is one law for prince and pariah. ”

“ Viewed from that premise, it would be quite unreasonable to attribute to Congress an intention to extend the protection of the criminal law to an Indian upon a trust allotment and withhold it from one upon a restricted allotment, and we find nothing in the nature of the subject-matter or in the words of the statute which would justify us in applying the term 'Indian country' to one and not to the other. ”

“ It gives national citizenship, at once, to every Indian who shall have received an allotment of land under this law, or under any other law or treaty. (3.) It provides that when all the Indians on any reservation have thus been made citizens (and perhaps as each, in succession, becomes a citizen) , they are to pass from under the special control of Congress, and “shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” ”

“ They could not conquer India except by playing on the fears of some and the hopes of others, and by seeking and getting the help of Indians, both moral and material. The record is as black as it could be; but nothing succeeds like success, and all that is largely a forgotten page so far as the present generation{101} of Indians is concerned. Only one feels disposed to smile when one hears of Indian nationalists being charged in British-Indian courts with attempting to subvert “the government established by law.” ”

“ It also provides that the Government shall have the right to point out to such coloured people streets, wards and locations for habitation. In 1886, this law was amended so as to reduce the £25 fee to £3 and the other sections were kept as they were. That now is the law with regard to the Indians in the Transvaal. After the law was passed, the Indians sent representations, telegraphic and otherwise, to the Indian and the Home Governments protesting against the Law 3 of 1885 and its amendment and pointing out that they were in direct violation of the London Convention. ”

“ The Indian must be tried, whether for debt or crime, in the white man’s court; the Indian’s law is not to be known there; the Indian’s evidence is not to be admitted there; the Indian will, in every thing, be subject to the control of the white man. ”

“ This seems to me a great and unpardonable vice in the law, that it treats as unoccupied, and subject to pre-emption, lands which have been in fact occupied and cultivated precisely as white men occupy and cultivate, and that, too, for more than one generation of living men. But for that vice of the law the Mission Indians would now be secure in their old possessions, and where their improvements and water-rights were wanted they would be bought and paid for instead of taken for nothing in the name of law. ”

“ In this Law the offensive word ‘Coolie’ does not appear, its place being taken by the term ‘Indian Immigrant’, which, in Section 118, is defined as meaning and including “all Indians introduced from India into Natal under the provision of the Laws regulating such introduction and those descendants of such Indians who may be resident in Natal.” Persons usually described as Asiatics, Arabs, or Arab traders, who have been so introduced, are expressly excluded. ”

“ The converse of the proposition contained under the preceding head is equally true and equally important. Indians should not be permitted to abandon their tribal relations, and leave their reservations to mingle with the whites, except upon express authority of law. ”

“ It, therefore, becomes necessary for us to lay before you briefly our position in Natal. The following are some of the legal disabilities the Indians at present labour under in the Colony:
1. The Indians, unlike Europeans, cannot be out after 9 p.m., unless, practically, they can produce a pass. 2. Any Indian is liable to arrest at any time of the day unless he can show a pass to the effect that he is a free Indian. (The complaint herein is particularly against the manner in which the law is applied.) 3. Indians, unlike Europeans, when driving cattle must be provided with certain passes. ”

“ When a man enters an Indian reservation and mischievously tries by false promises which he cannot perform, as in this case, or in any other way, to induce the Indians to run away, breaking up their settlements, an Indian agent will consider it his duty to enforce the above provisions of law. ”

“ There is no prohibition in the law above referred to against Indians owning land in Locations or dealing with it as they choose. Indeed, hawkers could not be expected to buy land and erect their own buildings in the Locations. And it is respectfully submitted it would be a great injustice if the land in Indian Locations or the right to build thereon is given to any but Indians. ”

“ Such persons only to be deemed Indians for certain purposes. and such persons and much persons only Shall be deemed Indians within the meaning of any provision of the said Act or of any other Act or Law in force in any part of this Province by which any legal distinction is made between the rights and liabilities of Indians and those of Her Majesty's other Canadian Subjects. ”

“ And be it further enacted, That if any person shall drive, or otherwise convey, any stock of horses, mules, or cattle, to range and feed on any land belonging to an Indian or Indian tribe without the consent of such tribe, such person shall forfeit the sum of one dollar for each animal of such stock.
Sec. 10. And be it further enacted, That the superintendent of Indian affairs, and Indian agents and sub-agents, shall have authority to remove from the Indian country all persons found therein contrary to law ”

“ Here is another point of attack for the men who continually hover about [107] the Indian like vultures above a sick or helpless man—the law providing that the allotments of deceased Indians may be sold for the benefit of their legal heirs, even though the time limit of twenty-five years protected title may not have expired. ”

“ And be it further enacted, that it shall not be lawful for any person or body of persons, by arbitrary force, or under colour of any pretended rules, ordinances, law or custom of said nation, to take the life of any Indian residing as aforesaid, for enlisting as an emigrant ”

“ And next,—The door is completely open in the Canadas for the incorporation of the Indians in all the rights and immunities of citizenship;—whereas in the States they are proscribed by law—at least by custom, which amounts to the same thing. In the Canadas an Indian may rise to any office, and to any civil dignity, 179 according to his merit and his influence. And in the records of their parliaments may be found at least the name of one Indian, admitted to their deliberations, and to the supreme rights of legislation. ”

“ The result, however, of these three cases is that the Corporations are now clamouring for more powers and an alteration of the law, in order that they may, to put it bluntly, subject all Indians, irrespective of their position, to restrictions so that, as a member of the Legislative Assembly said on the occasion of the passing of the Immigration Bill of 1894, “the intention of the Colony to make the Indian’s life more comfortable in his native land than in the Colony of Natal” may be fulfilled. ”

“ This is true, not because an Indian or an Indian tribe has no standing to sue or because the United States has not consented to be sued for the taking of original Indian title, but because Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law. ”

“ Considerations of good faith may influence individual Congressmen in such a case; but the constitutional competence of Congress in the premises is declared to be beyond question.
Nor is the extraordinary proposition of the Committee's report better in reason than in law. The argument is in effect this: The United States makes treaties with foreign nations; the United States cannot legislate for foreign nations; the United States may make treaties with Indian tribes: ergo, [Pg 127] the United States cannot legislate for Indian tribes. ”

“ The Government, also, allow the Indian, though as a matter of sufferance, or, in other words, without bringing the law to bear upon him for putting in practice what is, strictly speaking, illegal, to rent to a white the lot or lots on which he may be located, and to receive the rent, without sacrifice or alienation of his interest-money. ”

“ Such a modification of the existing laws is suggested because if offenders against the laws of humanity in the Indian country are left to be punished by Indian laws they will generally, if not always, be permitted to escape with impunity. ”

“ WHEREAS it is expedient to consolidate the law relating to criminal tribes; It is hereby enacted as follows:—
Preliminary.
Short title and extent. 1. (1) This Act may be called the Criminal Tribes Act, 1924.
(2) It extends to the whole of British India. ”

“ It is of consequence that in this new departure which congress has made, of subjecting the Indians, in this limited class of cases, to the same laws which govern the whites within the territories where they both reside, the Indian shall at least have all the advantages which may accrue from that change, which transfers him, as to the punishment for these crimes, from the jurisdiction of his own tribe to the jurisdiction of the government of the territory in which he lives. ”

“ There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. ”

“ Does the fact of citizenship necessarily end the duty or power of Congress to act in the Indian's behalf?
Certain aspects of the question have already been settled by the decisions of this court. That Congress has full power to legislate concerning the tribal property of the Indians has been frequently affirmed. ”

“ On the first proposition the ground taken is, that the policy of the act, and its reasonable construction, limit its operation to the Indian country, or to reservations inhabited by Indian tribes. The policy of the act is the protection of those Indians who are, by treaty or otherwise, under the pupilage of the government, from the debasing influence of the use of spirits ”

“ A pass system is to be established in order to protect free Indians from the unpleasantness of an arrest, and officers arresting Indians without passes are to be exempt from liability to answer any claim for wrongful arrest. [59] The following proposals for further anti-Indian legislation have been laid before the Natal Government:
1. The Indians should not own landed property. 2. Town Councils should be empowered to compel Indians to reside in prescribed locations. ”