[Chapter XIII Footnotes]

¹ For a recently prepared brief history of the administration of Indian affairs, see Schmeckebier, The Office of Indian Affairs, pp. 1-60. This monograph also includes as Appendix 5 (pp. 397-508) a classified compilation of such laws as relate to the organization of Indian affairs, the duties of officers of the government, and the general rights, privileges, and restrictions of the Indians in force July 1, 1927. The full text of the appropriation act for 1928, insofar as it relates to Indian affairs, is included. No laws relating to particular tribes or reservations have been included.

² Congressional Record, March 2, 1927.

³ An act of Congress, approved April 30, 1908 (35 Stat. L., 73), authorized the Commissioner of Indian Affairs to negotiate with the several tribes for the purpose of terminating the annuities agreed upon in the treaties by crediting a lump sum to the credit of the tribal funds, subject to approval by Congress. Some of the annuities have been paid but several are still in force. (See Schmeckebier, p. 95.) One of the oldest remaining is that in the treaty made on November 11, 1794, with the Six Nations of New York. The provision for an annuity in this treaty reads as follows:

"In consideration of the peace and friendship hereby established, and of the engagements entered into by the Six Nations; and because the United States desire, with humanity and kindness, to contribute to their comfortable support; and to render the peace and friendship hereby established, strong and perpetual; the United States now deliver to the Six Nations, and the Indians of the other nations residing among and united with them, a quantity of goods of the value of ten thousand dollars. And for the same considerations and with a view to promote the future welfare of the Six Nations, and of their Indian friends aforesaid, the United States will add the sum of three thousand dollars to the one thousand five hundred dollars, heretofore allowed them by an article ratified by the President, on the twenty-third day of April, 1792; (it appears that this treaty was never ratified by the Senate), making in the whole, four thousand five hundred dollars; which shall be expended yearly forever, in purchasing clothing, domestic animals, implements of husbandry, and other utensils suited to their circumstances, and in compensating useful artificers, who shall reside with or near them, and be employed for their benefit. The immediate application of the whole annual allowance now stipulated, to be made by the Superintendent appointed by the President for the affairs of the Six Nations, and their Indian friends aforesaid."

Other provisions regarding supplying special types of employees, such as blacksmiths and maintaining schools and teachers, are still in effect. In some instances blacksmiths may no longer be needed and the Indian children might be better and more economically educated in public schools. A commission to modernize the existing law would have to have an authority similar to that given the Commissioner of Indian Affairs in the effort to abolish annuity programs.

⁴ United States v. Nice, 241 U.S. 598 (1916).

⁵ See Piper v. Big Pine School District, 226 Pac. 926 (Cal. 1924).

⁶ See Worcester v. Georgia, 6 Peters (U.S.) 515, 559, 561 (1832); United States v. Kagama, 118 U.S. 375, 381, 383 (1896); United States v. Quiver, 241 U.S. 602 (1916).

⁷ Code of Laws of the United States, Title 25, Secs. 217-18.

⁸ Donnelly v. United States, 228 U.S. 243 (1913); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Pelican, 232 U.S. 430 (1914).

⁹ United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240 (1896). In some instances the United States at the time of creating a state reserved to itself complete jurisdiction over Indian reservations, including non-Indians as well as Indians. See the Kansas Indians, 5 Wall. (U.S.) 737 (1867); Hollister v. United States, 145 Fed. 773 1906).

¹⁰ Code of Laws of the United States, Title 25, Secs. 212-16, 241-53.

¹¹ Ex parte Crow Dog, 109 U.S. 556 (1883).

¹² Code of Laws of the United States, Title 18, Secs. 548, 549. The punishment for the crime of rape may, at the discretion of the court, be imprisonment instead of death as is the requirement of the ordinary federal statute on the subject. In South Dakota the federal jurisdiction includes non-Indians as well.

¹³ United States v. Quiver, 241 U.S. 602 (1916); United States v. King, 81 Fed. 625 (1897); Ex parte Hart, 157 Fed. 130 (1907) holding, respectively, that the crimes of adultery, assault with intent to rape, and incest are cognizable by the United States courts.

¹⁴ 24 Stat. L., 388, Sec. 6.

¹⁵ United States v. Nice, 241 U.S. 591 (1916).

¹⁶ State v. Condon, 79 Wash. 97 (1914); State v. Columbia George, 39 Ore. 127 (1901); Ex parte Cross, 20 Neb. 417 (1886); Ex parte Van Morore, 221 Fed. 954 (1915); State v. Big Sheep, 75 Mont. 219 (1926); Minnesota v. Campbell, 53 Minn. 354 (1893); In re Blackbird, 109 Fed. 139 (1901); In re Lincoln, 129 Fed. 247 (1904).

¹⁷ State v. Lott, 21 Idaho, 645 (1912).

¹⁸ In the hearing before the House Committee of the Sixty-ninth Congress on H.R. 7826, Assistant Commissioner Meritt listed the following crimes which are unpunishable by state or United States courts when committed by an Indian against an Indian on an Indian reservation: Assault with intent to commit rape, assault with intent to commit great bodily harm but not with intent to kill or with a dangerous weapon, robbery, mayhem, adultery, malicious mischief, resisting an officer, rescue, forgery, perjury, subornation of perjury, receiving stolen goods, kidnapping, fraud, embezzlement, conspiracy, trespass, breaking down fences, disturbing the peace, unlawful cohabitation, fornication, seduction, carnal knowledge, statutory rape, bigamy, polygamy, lewdness, soliciting female for immoral purposes, desertion of wife and family, etc. There is no decision involving a case in which an Indian has committed crime under the federal statutes outside of the enumerated eight offences, where the injured person was a non-Indian, or where the crime was primarily against the government instead of another person. It is possible that in such a case the extension of the federal criminal laws by Sections 217-18 of Title 25 of the Code of Laws would bring such a crime within the cognizance of the United States courts.

¹⁹ United States v. Clapox, 35 Fed. 575 (1888).

²⁰ In Oklahoma the Indians of the Five Civilized Tribes are under the jurisdiction of the state as far as the responsibility for crime is concerned. With respect to other Indians in the state, they are probably in the same situation as the Indians in our other western states, although the matter does not seem to have been directly adjudicated. See, however, United States v. Ramsey, 46 Sup. Ct. 559 (1926).

²¹ Earl v. Godley, 42 Minn. 361 (1890); La Framboise v. Day, 136 Minn. 239 (1917); Cyr v. Walker, 29 Okla. 281 (1911).

²² Code of Laws of the United States, Title 25, Sec. 371.

²³ Fender v. Segro, 41 Okla. 318 (1913).

²⁴ Missouri Pacific Ry. v. Cullers, 81 Texas 382 (1891); Brown v. Anderson, 61 Okla. 136 (1916); Felix v. Patrick, 145 U.S. 317 (1892).

²⁵ Code of Laws of the United States, Title 25, Sec. 175.

²⁶ Stacy v. Labelle, 99 Wis. 520 (1898); Rubideaux v. Vallie, 12 Kan. 28 (1873); Postoak v. Lee, 46 Okla. 477 (1915); In re Stingeis Estate, 61 Mont. 173 (1921); Bem-Way-Bin-Ness v. Eshelby, 87 Minn. 108 (1902); Rider v. LaClair, 77 Wash. 488 (1914).

²⁷ Peano v. Bremner, 20 S.D. 342 (1906); Mulkins v. Snow, 232 N.Y. 47 (1921); United States v. Seneca Nation, 274 Fed. 946 (1921).

²⁸ Code of Laws of the United States, Title 25, Secs. 345-46.

²⁹ Mackay v. Kalyton, 204 U.S. 458 (1907).

³⁰ Felix v. Patrick, 145 U.S. 317 (1892); Tiger v. Western Investment Co., 221 U.S. 286 (1910); Smith v. Mosgrove, 51 Ore. 495 (1908); Frazee v. Piper, 51 Wash. 278 (1908); Blackbody v. Maupin, 38 S.D. 621 (1917); United States v. O'Gorman, 287 Fed. 135 (1923).

³¹ The so-called tribal councils are akin to business committees, concerned chiefly with the preservation and utilization of the tribal resources, and the presentation of grievances arising in the government's administration of Indian affairs.

³² See, for example, the annual reports of many agency superintendents, the annual reports of the Board of Indian Commissioners, the forty-fourth Annual Report of the Indian Rights Association, and the hearing before the Committee on Indian Affairs of the House of Representatives of the Sixty-ninth Congress on H.R. 7826.

³³ At the Pine Ridge Agency in cases of any importance, the evidence is recorded in the Indian tongue and is subsequently translated if the superintendent so directs.

³⁴ Herbert Harley, Secretary of the American Judicature Society, Conciliation procedure, American Academy of Political and Social Science, Annals, March, 1926; Small claims courts, Bureau of Labor Statistics, Bulletin 398; Flexner and Oppenheim, Legal aspects of the juvenile court, 1922.

³⁵ Quoted in "Justice and the Poor," Carnegie Foundation for the Advancement of Teaching, Bulletin 13.

³⁶ Hall v. Geiger-Jones Co. 242 U.S. 539 (1917).

³⁷ Justin Miller, Difficulties of the poor man accused of crime, Amer. Acad. of Pol. and Soc. Science, Annals, March 1926; Reginald Heber Smith, Justice and the poor.

³⁸ See H. R. 9315, Sixty-ninth Congress, first session.

³⁹ See Title 25 of the Code of Laws of the United States, Sections 348, 371-73. In the case of the Five Civilized Tribes and of the Osages, the administration of Indian estates is by the probate courts of Oklahoma. Any Indian of the Five Tribes may make a will free from departmental control, while in the case of the Osages the will must be valid under the laws of Oklahoma and also be approved by the Secretary. The administration of the estates of Osage Indians was deemed so unsatisfactory that by act of February 27, 1925, Congress gave to the Interior Department final authority over the distribution of the restricted estates of deceased Osages, though leaving the nominal conduct of the estate with the local court.

⁴⁰United States v. Rickert, 189 U.S. 432 (1903).

⁴¹ National Bank of Commerce v. Anderson, 147 Fed. 87 (C.C.A. 9th Cir. 1906); United States v. Thurston County, 143 Fed. 287 (C.C.A. 8th Cir. 1906).

⁴² United States v. Sunderland, 266 U.S. 226 (1924). See also United States v. Brown, 8 Fed. 2nd 564 (C.C.A. 8th Cir. 1925), holding that the Secretary of the Interior may purchase lands for the Indians with money arising from the lease of restricted lands, and restrict the title of the lands purchased.

⁴³ United States v. Nez Perce County, 267 Fed. 495 (D.D. Idaho, 1917); United States v. Yakima County, 274 Fed. 115 (D.C.E.D. Wash. 1921).

⁴⁴ United States v. McCurdy, 246 U.S. 263 (1918).

⁴⁵ Section 5 of the act of April 18, 1912.

⁴⁶ United States v. Gray, 284 Fed. 103 (1922); United States v. Ransom, 284 Fed. 108 (1922); United States v. Brown, 8 Fed. 2nd 584 (1925), dictum; United States v. Mummert, 15, Fed. 2nd 926 (1926).

⁴⁷ United States v. Ransom 263 U.S. 691 (1924).

⁴⁸ United States v. McCurdy, 246 U.S. 263 (1918).

⁴⁹ United States v. Brown, 8 Fed. 2nd 584 (1925), dictum.

⁵⁰ Malone v. Wamsley, 195 Pac. 485 (1921).

⁵¹ Malone v. Wamsley, 195 Pac. 485 (1921); Carey v. Bewley, 224 Pac. 990 (1924); Lasiter v. Ferguson, 192 Pac. 197 (1920); Snell v. Canard, 218 Pac. 813 (1923); Haddock v. Johnson, 194 Pac. 1077 (1920).

⁵² Mills, Oklahoma Indian land law (2d.), pp. 168-7I.

⁵³ Act of June 14, 1918.

⁵⁴ Act of May 27, 1908, Section 2. 35 Stat. L., 312.

⁵⁵ See act of March 3, 1909, 35 Stat. L., 788; act of March 1, 1907, 34 Stat. L., 1055.

⁵⁶ Act of June 3, 1920, 41 Stat. L., 738, in re the claim of the Sioux Indians.

⁵⁷ Sisseton and Wahpeton Bands of Sioux v. United States, 53 Ct. Cls. 302 (1923).

⁵⁸ Mille Lac Band of Chippewas v. United States, 46 Ct. Cls. 424 (1911); Mdewakanton and Wahpakoota Bands of Sioux v. United States, 57 Ct. Cls. 357 (1922).

⁵⁹ Ottawa and Chippewa Indians of Michigan v. United States, 42 Ct. Cls. 240 (1907).

⁶⁰ Creek Nation v. United States, Ct. Cls. March 7, 1927. Sisseton and Wahpeton Bands of Sioux v. United States, 58 Ct. Cls. 302 (1923); Otoe and Missouria Tribes v. United States, 52 Ct. Cls. 424 (1917).

⁶¹ Code of Laws of the United States, Title 25, Secs. 81, 84.