United States Bureau of Indian Affairs

“ Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. In treaties, our Nation has guaranteed the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, trust resources, and Indian tribal treaty and other rights. ”

“ In a Report for the protection of the Western Frontier, submitted to Congress by the Secretary of War, we have a very fair exposé of the conduct and intentions of the American Government towards the Indians. Although the Indians continue to style the President of the United States as their Great Father, yet, in this report, the Indian feeling which really exists towards the American people is honestly avowed ”

“ The reports asserted the existence of a state of affairs in the Indian territory 'abhorrent to the spirit of our institutions,' and declared the necessity of assumption by the United States of 'responsibility for future conditions in the territory' and the need of independent legislation by Congress in that behalf. Thus, the Senate committee on the five civilized tribes of Indians, in a report on May 7, 1894 (Sen. Rep. No. 377, 53d Cong. 2d sess.) , said in part:
'As we have said, the title to these lands is held by the tribe in trust for the people. ”

“ The reports of the Secretary of the Interior and of the Commissioner of Indian Affairs, setting forth the present state of our relations with the Indian tribes on our territory, the measures taken to advance their civilization and prosperity, and the progress already achieved by them, will be found of more than ordinary interest. The general conduct of our Indian population has been so satisfactory that the occurrence of two disturbances, which resulted in bloodshed and destruction of property, is all the more to be lamented. ”

“ Under the terms of that bargain, Indian Tribes remain independent sovereigns with the exclusive power to manage their internal matters. As a corollary of that sovereignty, States have virtually no role to play when it comes to Indian affairs. To preserve this equilibrium between Tribes and States, the Constitution vests in the federal government a set of potent (but limited and enumerated) powers. In particular, the Indian Commerce Clause gives Congress a robust (but not plenary) power to regulate the ways in which non-Indians may interact with Indians. ”

“ XIII. “I believe the administration is taking every possible step to safeguard the interests of the Indians within the limits allowed by the laws governing and the funds at its disposal, hampered as it is by the political intriguers who now, as always, seek to control the management of Indian Affairs for their personal benefit and gain. Your true reformer is first, and always an extremist; to him a thing is either black or white, good or evil, a crime or a virtue. ”

“ While all territory officially known as ‘Indian country’ is subject to the jurisdiction of the United States, and while it belongs to Congress to enact laws for the regulation of intercourse of Indians with one another and with citizens of the United States, it is the policy of the Government to leave to the Indians the regulation of their own domestic concerns as far as practicable. ”

“ The Indians still remain under the care of the Department of the Interior. We believe that the Administration earnestly desires the promotion of their true interests, but the grievous wrongs under which they have so long suffered still continue to be visited upon them, and will so long as an impossible policy is attempted to be carried out by an insufficient force. The question as to the legal status of the Indian is now before the courts. ”

“ Before the Indian Bureau is transferred from the Interior to the War Department, however, Congress should strive to comprehend the fact that even the War Department can have very little success in managing Indian affairs unless we contrive to attain some settled Indian policy. We have been in the habit of putting the Indians by turns under the immediate care of missionaries and thieves, of Quakers and Catholics, of army officers and contractors. ”

“ The last one hundred years tend to show that the Indian Office has not within itself the power to initiate any movement for the relief of Indians. The spirit that compels redress has not resided in the Indian Office. The Indian Office has received at all times sufficient reports from the field and may be presumed to have had knowledge of conditions at all times and yet every movement for relief has come from the outside, from individuals, or more often from associations who have compelled an unwilling bureau to act, or, often an unwilling Congress to act. ”

“ But, as the majority notes, the Court’s precedents have repeatedly referred to a “plenary power” that Congress possesses over Indian affairs, as well as a general “trust” relationship with the Indians. ”

“ In that respect, they were much like the criminal penalties that Congress levied on those who went abroad and enlisted with England or France and thereby threatened the United States’ peace with those nations. See 1 Stat. 383.
The Trade and Intercourse Acts further hammered out the Nation’s diplomatic and territorial stance with respect to the Indian tribes. For example, reflecting the Federal Government’s powers over commerce, territories, and foreign affairs, the Acts forbade U. S. citizens from purchasing, surveying, or settling on Indian lands. ”

“ The failure to make allotments of land in severalty, for which surveys were commenced in 1871, has been a [Pg 260] source of much uneasiness to the Indians, and has tended to weaken their confidence in the good intentions of the government. One school is in operation on the reservation, with an attendance of twenty scholars. None of the tribes or bands at this agency have any treaty relations with the United States, unless it may be a few members of the Rogue-River band, referred to under the head of the Grand-Ronde agency. ”

“ In my judgment the time has arrived when we should definitely make up our minds to recognize the Indian as an individual and not as a member of a tribe. The General Allotment Act is a mighty pulverizing engine to break up the tribal mass. It acts directly upon the family and the individual. Under its provisions some sixty thousand Indians have already become citizens of the United States. ”

“ After the Constitution’s ratification, the new Federal Government exercised its enumerated powers with regard to Indian tribes. To start, the Government embarked on an era of treaty-making with Indian tribes. See Cohen §1.03 [1] , at 23. That treaty-focused policy reflected the Washington administration’s view that Indian tribes were best dealt with as mostly “foreign nations,” with an eye towards peace lest frontier conflicts continue to plague the new Nation. ”

“ The Indians were not infrequently overborne or deceived by the agents of the government in these transactions; sometimes unquestionably, powerful tribes were permitted to cede lands to which weaker tribes had a better claim: but, formally at least, the United States accepted the cession successively of all lands, to which Indian tribes could show color of title, which are embraced in the limits of any of the present States of the Union except California and Nevada."—Report on Indian Affairs, 1872, pp. ”

“ Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state. ”

“ For the rest, it will be seen that the United States have, without much order or comprehension, but with a vast amount of good-will, undertaken enterprises involving considerable annual expenditures for the advancement of individual tribes and bands, but that the true permanent scheme for the management and instruction of the whole body of Indians within the control of the government is yet to be created. ”

“ The purchase of their lands does not alter in the least their personal relations with the State government. No act of the General Government has ever been deemed necessary to give the States jurisdiction over the persons of the Indians. That they possess by virtue of their sovereign power within their own limits in as full a manner before as after the purchase of the Indian lands ”

“ Instead, the Act’s “effect [s are] confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.” Ibid.
That sort of language seems to view Indian lands as akin to quasi-federal lands or perhaps “external” to the Nation’s normal affairs. But nothing the Court cited actually supported such a view. For example, the fact that the Federal Government could regulate Indians on federal territories does not justify such regulations for Indians within a State’s limits. ”

“ The distance which separates the agents--the workers in the field--from the Indian Office in Washington is a chief obstacle to Indian progress. Whatever shall more closely unite these two branches of the Indian Service, and shall enable them to co-operate more heartily and more effectively, will be for the increased efficiency of the work and the betterment of the race for whose improvement the Indian Bureau was established. ”

“ Congress is constitutionally competent to extend the laws of the United States at once over every Indian tribe within the Territories, if not within the States of the Union, even though treaties may guarantee to individual tribes complete and perpetual political independence ”

“ Whenever the United States sets apart an Indian reservation, whether within the territorial limits of a State or not, it has full authority to protect the Indians in their persons and property and to provide for the punishment of all offenses committed within the reservation. An Indian reservation lying within the limits of a State is, however, subject to its jurisdiction also except so far as concerns the government and protection of the Indians themselves, unless otherwise provided by treaty with the Indians. ”