Tribal council

“ The average strength of American tribes is less than 2,000 members. The Cherokees, however, number about 26,000, the greatest number of Indians in the United States speaking the same dialect.
3. The right to solemnly invest the sachems and chiefs elected by the gentes, and
4. The right to depose them, even against the will of the gens. As these sachems and chiefs are members of the tribal council, these rights of the tribe explain themselves. Where a league of tribes had been formed and all the tribes were represented in a feudal council, the latter exercised these rights. ”

“ We think the meaning of these provisions is clear: the tribal consent that is prerequisite to the assumption of state jurisdiction under the provisions of Title IV of the Act must be manifested by majority vote of the enrolled Indians within the affected area of Indian country. [5] Legislative action by the Tribal Council does not comport with the explicit requirements of the Act. ”

“ The council of the tribe is composed of the aggregated gentile councils; and is thus made up of four-fifths of women and one-fifth of men. The sachem of the tribes, or tribal-chief, is chosen by the chiefs of the gentes. All the civil government of the gens and of the tribe is carried on by these councils; and as the women so largely outnumbered the men, who are also—with the one exception of the tribal-chief—chosen by them, it is evident that the social government of the gens and tribe is largely controlled by them. ”

“ This camp council seems as a rule the more influential factor, and only in few cases are we informed of chiefs with extensive powers. [22] What is important for us is that one of the main functions—if not the chief one—of those central authorities is to decide in case of difficulties [13] in tribal affairs and to give sentence, a function which is that both of a legislator and of a judge. [23] The old men are the only depositories of tribal lore; they also know the rules and norms and how to apply them. ”

“ The Tribe cannot complain that the nonmember seeks to bring a pig into the parlor, for, unlike the closed area, the Tribe no longer possesses the power to determine the basic character of the area. Moreover, it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominantly owned and populated by nonmembers, who represent 80 percent of the population yet lack a voice in tribal governance. ”

“ Changes made should be mainly in procedure, and in the criminal laws to secure speedy and impartial trials, and at the same time effective administration and respect for individual rights. In dealing with the uncivilized tribes of the islands the commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government, and under which many of those tribes are now living in peace and contentment, surrounded by a civilization to which they are unable or unwilling to conform. ”

“ During the last twenty years Congress has enacted a series of laws looking to the allotment and distribution of the lands and funds of the Five Civilized Tribes, of which the Cherokee tribe is one, among their respective members, and to the dissolution of the tribal governments. ”

“ That power necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community. Thus, the proper resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by federal statute or voluntarily surrendered by the Tribe itself. ”

“ So long as the great majority of Natives live under the tribal system, many of whose peculiar laws and customs have been embodied in a Code, given the force of law by Parliament, it does not seem that the link between the two people is as strong and effective as it ought to be. If the tribal system is to succeed, it should be given a chance. ”

“ Under all of the Court's decisions dealing with the inherent sovereignty of Indian tribes, including Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 tribes retain the inherent authority to exercise civil jurisdiction over non-Indian activities on reservation lands, including the power to zone fee lands, where those non-Indian activities implicate significant tribal interests. Moreover, this Court's decisions and common sense compel a finding that a tribe has zoning authority over all the lands within its reservation and not just those in "closed" areas. ”

“ Such sovereignty generally extends only to what is necessary to protect tribal selfgovernment or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status i.e., to the extent it involves the tribe's external relations with nonmembers-unless there has been an express congressional delegation of tribal power to the contrary. ”

“ This double condition of sovereignty and wardship involves increasing difficulties and absurdities, as the traditional chieftain, losing his hold upon his tribe, ceases to be distinguished for anything except for the lion's share of goods and moneys which the Government endeavors to send, through him, to his nominal subjects, and as the necessities of the Indians, pressed on every side by civilization, require more help and greater discrimination in the manner of distributing the tribal funds. ”

“ As the evolution of the race progressed, there was gradually developed a rude system of tribal government, administered by acknowledged chieftains, who claimed and obtained unquestioned obedience. So, too, victory or defeat became gradually the chief factor in determining the home of each tribe. These tribal boundaries were, however, by no means arbitrary lines of exclusion, and, in fact, there were frequent visits of friendship between the different sections of the race. ”

“ They might be selected on the reservation of the tribe or anywhere else on the public domain. This allotment of land carried with it all the rights, privileges and immunities of American citizenship. In case the Indian should not care to take up a homestead, he could still become a citizen if he took up his residence apart from the tribe and adopted civilized habits. The purpose was to break up the tribal organization which had stood so greatly in the way of the beneficent purposes of the government, and to convert each Indian into an individual citizen of the United States. ”

“ The holding that Congress had power to provide a method for determining membership in the five civilized tribes, and for ascertaining the citizenship thereof preliminary to a division of the property of the tribe among its members, necessarily involved the further holding that Congress was vested with authority to adopt measures to make the tribal property productive, and secure therefrom an income for the benefit of the tribe.
Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members. ”

“ An Act of Congress was passed in 1887 which put a period to the existence of the Indian tribes as separate communities, and permitted all tribal lands and reservations to be so divided that each individual member of a tribe might possess a separate holding. ”

“ The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. ”

“ The families of a tribe maintain the chief. In war they give him their services, and follow him to the fight. In peace they supply him with food. In this way, the whole tribe attains a certain collective interest in all the lands held by each family; and every parcel of land alienated contracts the source whence the collective tribal support of the chief is drawn. From this complicated tenure it is clear that the alienation of land, however large or small the tract, can be made valid only by the collective act of the whole tribe, in the persons of the ruling chief and the heads of families. ”

“ We are told that some of the tribes, under the influence of a few astute chiefs, protest against the assigning of portions of their reservations in severalty to families, guarded by the provision that for a term of years each such homestead shall be inalienable. The ground of the objection is that the tribal hold upon territory is more secure when it is held in common. ”

“ It is our business, therefore, to consider how best the system of tribes and reserves can be maintained, so long as there is in it the stuff of life, and what new elements can be introduced which will make its fall more safe and gradual; and, in the second place, to devise ways and means for dealing with the rapidly increasing loose native population, for replacing the former tribal traditions with some rudiments of civilised law, and for leaving an open door for such development as may be within their capacity. ”

“ The nation whom another tribe calls grandfather, is certainly the head of the family to which they both belong. At his door burns the “great national council fire,” or, in other words, at the place where he resides with his counsellors, as the great or supreme chief of the national family, the heads of the tribes in the connexion occasionally assemble to deliberate on their common interests; any tribe may have a council fire of its own, but cannot dictate to the other tribes, nor compel any of them to take up the hatchet against an enemy; neither can they conclude a peace for the whole ”

“ I know of no case in which individuals have been or should be permitted to hold any councils with the Indians, except to procure the extinction of their title to lands, claimed under grants from one of the States. The application here must be to the tribe, because in all their land there is a community of interest, which cannot be severed or conveyed by the acts of individuals. ”

“ The division of the community into two intermarrying moieties, the "class divisions," is the simplest form of the social organisation in the native tribes.
This fundamental law of communal division underlies and runs through all the more developed systems of four or eight sub-classes, and even shows traces of its former existence in tribes in which the class system has become decadent, and the local organisation has taken place and assumed control of marriage.
The division of the tribal community into two classes is the foundation on which the whole structure of society is built. ”

“ Those tribes set up a claim, but the tribes with me will not agree to their claim. If the land is not restored to us you will see when we return to our homes how it will be settled. We shall have a great council, at which all the tribes will be present, when we shall show to those who sold that they had no right to the claim they set up; and we will see what will be done to those chiefs that did sell the land to you. I am not alone in this determination; it is the determination of all the warriors and red people that listen to me. ”

“ Nonmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them. This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct. . . . When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. ”

“ III. The council shall have power to legislate upon matters pertaining to intercourse and relations of the tribes and freedmen resident in Indian Territory; the arrest and extradition of criminals and offenders escaping from one tribe or community to another; the administration of justice between members of different tribes and persons other than Indians and members of said tribes or nations; and the common defense and safety. All laws enacted by the council shall take effect as therein provided, unless suspended by the President of the United States. ”

“ When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life ”

“ As is well known, Indians lack the faculty of organization on a large scale. Tecumseh, Pontiac, and other tribal leaders finally failed because of this fact. The tribes that were involved in the controversy to which we have referred were chiefly the Sioux or Dakotas, the Mountain Crows, the Cheyennes, and the Arapahoes. Each of these tribes was divided into numerous independent bands, each recognizing no authority beyond its own chief. ”

“ For the sessions of these dignitaries, each tribe has, in the middle of their village, a Government or council-house, where the chiefs often try and convict, for capital offences—leaving the punishment to be inflicted by the nearest of kin, to whom all eyes of the nation are turned, and who has no means of evading it without suffering disgrace in his tribe. ”

“ Beside this the chiefs had no individual rights to land beyond those given them by their counsellors who represented the tribes, the native law being that the land belonged to the tribe, and that none of it could be disposed of to private individuals. ”