UNDERSTANDING JURISDICTION ON TRIBAL LANDS by Twin Graphics

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UNDERSTANDING JURISDICTION ON TRIBAL LANDS

II CHAPTER THREE - PART 3

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A USER-FRIENDLY PL 280 RESOURCE GUIDE

A User-Friendly PL 280 Resource Guide Team:

CopyrightÂŠ 2012 by Nexus Community Solutions FOURTH EDITION: December 2014

TECHNICAL & PRODUCTION EDITOR Wendy Olson TECHNICAL INPUT Alex Tortes Cindy Pierce PRODUCTION MANAGER, COVER DESIGN & ALL CREATIVE CONCEPTS Cindy Pierce

All rights reserved. No part of this book may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher or except as used under the principles of fair use. Much of this publication contains compiled information from a variety of sources. Each source has been clearly cited and we encourage the purchase (where applicable) of these books, articles, etc. for the purpose of further study. Every effort has been made to ensure the information in this resource guide is complete and accurate. Discovery of any errors or omissions will be updated/changed in future editions of this guide. Any trademarks, seNice marks, or product names are assumed to be the property of their respective owners and are used only for reference.

ISBN-13: 978-0615683645 ISBN-10: 0615683649 Printed and bound in the United States of America.

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UNDERSTANDING

JURISDICTION ON

TRIBAL

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Chapter Three - Part 3

Indians - A Federal Affair One of the first federal departments established by Congress, under the new US Constitution, was the War Department (1789). Congress gave high priority to the formation of this new department, creating it a few weeks prior to the Treasury Department. Congress' establishment of the War Department outlined the position of the Secretary of War who would administer the duties they defined. One of the responsibilities placed under this department was "Indian Affairs. "

"succession" -in sequence, one after the other

During the American Revolutionary War, the Confederate Congress controlled military affairs through acts of Continental Congress, having it administered by a Board of War. Two individuals served in succession as Secretary of War under the Articles of Confederation: General Benjamin Lincoln and then, General Henry Knox. When the US Constitution became the law of the land, it recognized the President of the United States as the Commander-in-Chief of the Army and Navy. The newly elected and first president, George Washington, appointed Henry Knox to serve as Secretary of War, and the Senate immediately confirmed this appointment. Knox, who had previously held large executive power in military affairs under the Articles of Confederation, continued under the authority of the president, in accordance with the US Constitution. [1] "Indian affairs" was officially made a federal affair and responsibility by an act of Congress. Henry Knox, now appointed as the Secretary of War, was already familiar with Indian affairs through his involvement in the field during the American Revolution. The goal of the federal government regarding Indian affairs, which was placed on the shoulders of the Secretary of War, was for the peace of the Union and gaining land for growth of the nation.

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As head of the War Department, Henry Knox stressed to Congress that peace on the frontier would require laws that would regulate how non-Indians conducted business (i.e. trading, etc.) with the Indians. He hoped that even if all fraudulent conduct could not be completely prevented, at least it could be restrained and regulated. His concern was echoed by many others who did not want to stifle the trade business with Indians, yet protect the industry from known abuses.

What Were "Indian affairs"? You may be asking, "What exactly were the War Department's duties when it came to Indian affairs?" This department held the responsibility of Indian affairs for 60 years (from 1789 - 1849) until it was transferred to the newly created Department of Interior. Official documentation of the 60-year history of the War Department published in 1880, stated the responsibility for Indian affairs over the years had been two-fold: 1) The duties of the War Department with Indians involved bargaining for Indian land through federal treaties. The War Department actively pursued initiating and negotiating treaties with the Indian tribes time and time again. These negotiations created a tremendous increase of landholdings for the United States. [2] 2) The second duty of the War Department was to ensure the enforcement of the federal laws for trading with Indians. This was important to the federal government because it was stated at the time, "there has always been considerable profit in Indian trade." [3]

"Indian affairs" was officially categorized within a federal department.

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Many are familiar with the story of the Pilgrims who came to the Americas in 1620 seeking religious freedom. Very little is ever mentioned about the arrangement of how they purposed to accomplish this goal - which was through a binding contract with their sponsoring company, "Merchant Adventures." Essentially, the contract the Pilgrims had with this company stipulated that, in order to pay their bills, they were required to devote seven years of full-time work for the company's profit.

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"Everyone on that ship (the Mayflower) was expected to earn their keep and generate dividends for the company one way or another. If the Pilgrims failed to achieve this goal, the colony would likely fail as well. " Dolin, Eric Jay, Fur, Fortune, and Empire, W N. Norton & Company, Inc. 2010 p. 37

What ended up sustaining these early colonists was trading with the Indians. For the Pilgrims it was specifically trading for beaver pelts. The beaver had been extinct in England for at least one hundred years, therefore its fur was highly valued. [4] By the late 1600's the southern colonies, in addition to beaver pelts, traded deerskins. As a matter of fact, for purchasing various manufactured products, deerskins became the "standard of measurement." [5]

One author attributes the fact that deerskins became the standard of measurement to the reason why the slang name for the American dollar is - a "buck." See the book, Chronology of Native Americans by Greg O'Brien (Amber Books Ltd. 2011) p. 114. 90

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The book Fur, Fortune, and Empire tells the epic history of the fur trade in America. Author Eric Jay Dolin illustrates the critical part fur trading played in early America. Dolin, Eric Jay, Fur, Fortune, and Empire, W.N. Norton & Company, Inc. 2010. Another book with excellent illustrations and photography with a running timeline on each page is the Chrono/ogyofNativeAmericans, by Greg O'Brien, Amber Books Ltd. 2011.

Fur Fortunes Many groups sought out ways to trade with the Indians for economic gain. The competition was tremendous as the various European nations fought for the monopoly on trading with the Indians. Wars were fought between Indian tribes over hunting grounds, with much support and backing of European nations who were pitted against each other for the cutting edge on European fur markets. Fur trading played a huge role in the economy of the Americas. To give you an idea of how voluminous the North American fur exportation was, during the mid-eighteenth century, South Carolina shipped a total of 150,000 deerskins (per year) to England while nearly 500,000 deerskins were collectively exported out of New Orleans, Savannah, Mobile, Pensacola, and St. Augustine during this same time. [6]

Trading Laws "intercourse" -mutual dealings or communications between individuals

Trading with Indians was very much alive and well in America during its early years. Indian trading that had begun long before the establishment of the United States of America, continued after the USA was a nation. Of course, this brought various degrees of interaction between non-Indians and Indians. A word used, especially during that time period, that described the business connection or interaction between people, was the word "intercourse. " Therefore, when Congress took steps to make laws specific to the trade business transactions between non-Indians with Indians, these laws were called Trade and Intercourse Acts.

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A Federal First

"illusory" -unreal, false, imaginary

The very first federal law made under the authority of the new US Constitution regarding Indians was the Act to Regulate Trade and Intercourse with the Indian Tribes, enacted on July 22, 1790. This law was created in light of great concern over "providing effective protection for the Indians" from what President Washington called "the violences of the lawless part of our frontier inhabitants." [7] It was believed, if Congress did not enact these laws, the hope for peace with the Indians would be "illuso!J!._." Through this first federal Indian law, "Congress assumed federal jurisdiction over offenses by non-Indians against Indians." This new law stated: ~

A license was required for anyone making transactions with Indians, having a punishment of $1, 000 for failure to obey the rules and forfeiture of all merchandise offered to Indians if one attempted to trade without a license.

Government officials had full power and authority to recall a license.

No sale of Indian lands could take place except through an authorized US government treaty that was open to the public. ~

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Chapter Three, Part 3

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Any US citizen or inhabitant who committed a crime against an Indian within Indian territory would be punished exactly as if the crime had happen off Indian territory against a non-Indian.

Evolution of Jurisdiction in Indian Country

After the passage of the first Trade and Intercourse Act, President Washington, in a speech to the Chiefs and Counselors of the Seneca Indian Nation on December 29, 1790, said: "I am not uninformed that the Six Nations have been led into some difficulties with respect to the sale of their lands since the peace (end of the Revolutionary War). But I must inform you that these evils arose before the present government of the United States was established, when the separate States and individuals under their authority, undertook to treat with the Indian tribes respecting the sale of their lands. But the case is now entirely altered. The general Government only has the power, to treat with the Indian Nations, and any treaty formed and held without its authority will not be binding. Here then is the security for the remainder of your lands. No State nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The general government will never consent to your being defrauded. But it will protect you in all your just rights." The first president had earlier recognized that the main thing Indians were fighting against were abuses regarding their lands. In his third annual message to Congress he had acknowledged land issues as "the main source of discontent and war" and he called for clearly defined regulations to be outlined and authorized by Congress. [8] He believed this was the best way to alleviate the abuse and provide that "commerce with them (the Indians) should be promoted under regulations." He viewed those who violated the rights of Indians and broke treaties as those who "endanger the peace of the Union." He asked Congress to make effective and adequate penalties against such individuals. One influential Indian chief during this time period also explained that the "cause of war" was due to broken treaties and encroachment on their lands. Many promises were made during treaty-making, especially the guarantee that the tribes' reserved lands would be free from illegal settlements. Broken treaty Chapter Three, Part 3

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contracts were, "the sole cause of the abrupt termination of the negotiations for peace,'' the Indian chief explained. "Thus, you see that claims upon our lands always have been, and still continue to be, the cause of the war." [9]

The first federal Indian law enacted by Congress made offenses by non-Indians against Indians a federal crime.

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In one of his papers, Benjamin Franklin shared a conversation his Indian interpreter, Conrad Weiser, had with an Indian friend. This Indian friend told Conrad he noticed how, once in seven days, the white people shut up their shops and assemble in the great house. Since he knew Conrad was familiar with the customs of the white people, he asked him for the truth of why they do this. Conrad answered ... "They meet there, to hear and learn good Things. I do not doubt says the Indian, that they tell you so: They have told me the same; But I doubt the Truth of what they say, and I will tell you my Reasons. I was lately to Albany to sell my Skins, & buy Blankets, Knives, Powder & Rum and You know I us'd generally to deal with Hans Hanson, but I was a little inclin'd this time to try some other Merchant; however, I call'd first upon Hans, & ask'd him what he would give for Beaver. He said he could not give more than four Shillings a Pound; but says he I cannot talk on Business now; this is the Day when we meet together to learn good Things, and I am going to the Meeting. So I thought to my self, since we cannot do any Business to day, I may as well go to the Meeting too; and I went with him. There stood up a Man in Black, and began to talk to the People very angrily. I did not understand what he said; but perceiving that he look'd much at me, and at Hanson, I imagin'd he was angry at seeing me there, so I went out, sat down near the House, struck Fire and lit my Pipe, waiting till the Meeting should break up. I thought too that the Man had mention'd something of Beaver, & I suspected it might be the Subject of their Making. so when they came out, I accosted my Merchant, Well, Hans, says I, I hope you have agreed to give more than four Shillings a Pound. No, says he, I cannot give so much; I cannot give more than three shillings & sixpence. I then spoke to several other Dealers, but they all sung the same Song. Three & sixpence, Three & sixpence. This made it clear to me that my Suspicion was right; and that whatever they pretended of meeting to learn Good Things, the real purpose was to consult how to cheat Indians on the Price of Beaver. Consider but a little, Conrad, and you must be of my Opinion. If they met so often to learn Good Things, they would certainly have learnt some before this time. But they are still ignorant. You know our Practice. If a white Man in travelling thro' our Country, enters one of our Cabins, we all treat him as I treat you; we dry him if he is wet, we warm him if he is cold, we give him Meat & Drinks that he may allay his Thirst and Hunger, and spread soft Furs for him to rest & sleep on: We demand nothing in return. But if I go into a white Man's House at Albany, and ask for Victuals & Drink, they say, where is your Money? and if I have none; they say, Get out you Indian Dog. You see they have not yet learnt those little Good Things, that we need no Meetings to be instructed in, because our Mothers taught them to us when we were Children: And therefore, it is impossible their Meeting, Should be as they say, for any such purpose, or have any such Effect. They are only to contrive the Cheating of Indians in the Price of Beaver." The Papers of Benjamin Franklin: Remarks concerning the Savages of North America, Sponsored by The American Philosophical Society and Yale University (Digital Edition by The Packard Humanities Institute) at: http://www.franklinpapers.org/franklinlframedNames.jsp

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B(,{ilding Tensions During the early years of the United States of America, various levels of tension existed between non-Indians, Indians and foreign nations. These tensions continued to build throughout the years and many dynamics were involved such as: ~

Encroaching settlers on Indian lands

Fur trading crucial to the economy

Military outposts

Foreign influences

President Washington shared a concern before Congress in 1794 that "some encroachment was about to be made on our (US) territory by an officer and party of British troops." Communication to Congress, May 21, 1794, Indian Affairs: Laws and Treaties, Compiled and Edited by Charles J. Kappler; see also [ 1 O]

"contravention" -breaking

As stress and apprehension increased, so did the rules and regulations. By 1800, Congress' enactment of the Act for the Preservation ofPeace with the Indian Tribes, threatened to slap a $2,000 fine, along with a two-year prison sentence on anyone who "shall send any talk, speech, message or letter to any Indian nation, tribe, or chief, with an intent to produce a contravention or infraction of any treaty or other law of the United States, or to disturb the peace and tranquility of the United States." [11] In fact, just three years prior to this Act, US Senator William Blount had been expelled from Congress due to a charge of a high misdemeanor. Blount's alleged crime was that he tried to influence a US Indian agent to tum Indians from their trust in the United States. [12]

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New and Improved R"les The Trade and Intercourse Acts were updated by Congress from time to time with minor adjustments. By 1802, Congress was ready to enact the new and improved Trade and Intercourse Act. This Act strongly clarified the line between Indian territory and non-Indian territory - a line that was not to be crossed. In fact, no one was to go on Indian lands without a passport. [13] A few other things to make note of in this Act:

"reciprocal" -given or done in return "diminution" -diminishing, chipping away

It addressed the issue of reciprocal revenge between Indians and non-Indians. No attempting of private satisfaction or revenge on either side was allowed.

If a non-Indian was a victim of a crime by an Indian, he (or his representative) would have to make an application, through the US government agent, to the tribal nation for justice.

"perturbations" -agitations, irritations

Vanishing Land The third president of the United States, Thomas Jefferson, was well aware of land losses for the Indians. Their land cessations, along with the large settled areas surrounding their increasingly smaller borders, threatened their ability to provide for their very livelihood. [14] Jefferson sent this message to Congress on January 18, 1803: "The Indian tribes residing within the limits of the United States have for a considerable time been growing more and more uneasy at the constant diminution of the territory they occupy, although effected by their own voluntary sales, and the policy has long been gaining strength with them of refusing absolutely all further sale on any conditions, insomuch that at this time it hazards their friendship and excited dangerous jealousies and J2.erturbations in their minds to make any overture for the purchase of the smallest portions of their land. " Richardson, James D., comp., Messages and Papers of the Presidents, 1:340-41, Compiled & Edited by Francis Paul Prucha, Documents of US. Indian Policy, pg. 21

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Jefferson continued his speech, stating that the United States needed to quickly extend its territory because of the "rapid increase" in population. He believed he had a win-win solution to the Indian problem. His solution was two-fold:

"assimilate" -absorb into or conform to another's customs, attitudes and way of life; to resemble another

1) Have the Indians give up hunting and become farmers. He reasoned that farmers did not need as much land, so then the Indians would have surplus land which they could exchange for things to improve their farms. 2) Build many trading houses that are more easily accessible that would encourage Indians to get used to "domestic comforts" and assimilate into the civilized culture.

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To say Indian nations had concerns about their land would be an understatement! They wondered how they would survive, as a people and as a culture, apart from their lands. They were willing to cede large areas, but not to the point of extinction. Agriculture was not totally unknown amongst the Indian tribes. Certain tribal chiefs had even written to the president with their concerns about tilling the ground. However, they posed a fundamental question to the president which they needed answered before they could discuss any more about changing to farming as a way of life. The president's response to these tribal chiefs reveals the question they posed: "You have said in your speech, 'That the game is going away from among you, and that you thought it the design of the great Spirit, that you should till the ground, but before you speak upon this subject, you want to know whether the United States meant to leave you any land to till?"' [15]

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Endnotes - Chapter Three, Part 3: [1] "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices . .. " US Constitution, Art. 2, Sec. 2, cl. 1 [2] See Ingersoll, Lurton Dunham, A History of the War Department of the United States, Washington, D.C.: Francis B. Mohun 1880, p.122; The author of this historic documentation of the War Department described the Indian tribes as "obstacles in the way of national development and of the progress of civilization." The author says it was the duty of the War Department to remove these obstacles and "it was impossible always to avoid misunderstandings and wars." (p.130) [3] Id. at p. 131 [4] Dolin, Eric Jay, Fur, Fortune, and Empire, W. N. Norton & Company, Inc. 2010, p. 38 [5] O'Brien, Greg, Chronology ofNative Americans, Amber Books Ltd. 2011 , p. 114 [6]Id. at p. 115 [7] Oliphant v Suquamish Indian Tribe, 435 U.S. 191 , 201 (1978) "Congress' concern was with providing effective protection for the Indians "from the violences of the lawless part of our frontier inhabitants . . . Without such protection, it was felt that 'all the exertions of the Government to prevent destructive retaliations by the Indians will prove fruitless and all our present agreeable prospects illusory' ... Beginning with the Trade and Intercourse Act of 1790 .. . Congress assumed federal jurisdiction over offenses by non-Indians against Indians." [8] President George Washington's Third Annual Message, Oct. 25 , 1791 [9] Chief Brandt at the proceedings of a council held at Buffalo Creek, October 10th, 1793 [10] In southern regions there were tensions between the U.S. and Spain over territorial rights of Spanish Florida and New Spain. Foreign policy embodied in the Monroe Doctrine was rooted in concerns about sovereign foreign powers gaining dominance. [ 11] An Act for the Preservation of Peace with the Indian Tribes, Enacted by Congress on January 17, 1800 [12] Story LL.D., Joseph, Commentaries on the Constitution of the US. (1833) , Lonang Institute 2003, 2005 electronic edition, Book III, p. 383, ยง 836 [13] An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace on the Frontiers, Enacted by Congress on March 30, 1802 [ 14 ]"As the settlements of the whites shall approach near to the Indian boundaries established by treaties, the game will be diminished, and the lands being valuable to the Indians only as hunting grounds, they will be willing to sell further tracts for small considerations . . . Indians will . .. in their intercourse with the whites, be reduced to a very small number ... " American State Papers: Indian Affairs, 1:13-14, Compiled & Edited by Francis Paul Prucha, Documents of US. Indian Policy, pg. 13 [15] Letter written to chiefs and counselors of the Seneca Nation by President George Washington, Philadelphia, Dec. 29,1790

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UNDERSTANDING JURISDICTION ON TRIBAL LANDS

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The goal of this guide is to take the "mystery" out of jurisdiction on tribal lands and help the reader unravel the tangled jurisdictional maze that is seen in Indian Country today. Public Law 83-280 (PL 280) impacts over half of all federally recognized Tribes. PL 280 became a law quite a long time ago, yet has managed to remain elusive for over half a century. We say, ''No more hiding in the shadows or being camouflaged in highbrowed legalese!" Let's grab Public Law 280 by the collar and confront it face-to-face. Allow us to present you with A User-FriendlyPL280ResourceGuide ...

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