PART V.

STATEMENT OF FUNDS OF INDIAN TRIBES HELD IN TRUST BY THE UNITED STATES GOVERNMENT.

Table showing interest-bearing tribal funds held in trust by the Government July 1, 1913.

1 The "Osage fund" and "Kansas consolidated fund" have been segregated and are carried on the books of the Indian Office to the credit of individual members of the tribes.

2 The "Round Valley general fund" will bear no interest until the United States has been reimbursed for the amount ap propriated in carrying out the provisions of the acts approved Oct. 1, 1890 (20 Stat. L., 658) and of Mar. 3, 1891 (26 Stat. L., 1006). 717

Table showing interest-bearing tribal funds held in trust by the Government July 1, 1913—Continued.

PART VI.

[Copyright, 1906, in vol. 22 Cyc., by The American Law Book Co. Printed by permission of The American Law Book Co.] [The figures in brackets [ ] refer to the original page numbers of the treatise as they appear in Cyc.]

INDIANS.

BY LINCOLN B. SMITH,

.Assistant Attorney in Charge of Indian Depredation Cases, Department of Justice of the United States.

For matters relating to

CROSS-REFERENCES.

Adverse possession of Indian lands, see Adverse Possession, 1 Cyc., 1116.
As slave, see Slaves, 36 Cyc., 49.

Capacity of, to make will, see Wills, 40 Cyc., 999.

Citizenship of Indian:

Child, see Citizens, 7 Cyc., 138.

Woman marrying citizen of United States, see Removal of Causes, 34 Cyc.,

1251.

Commerce with Indian tribes:

Power of Congress to regulate, see Commerce, 7 Cyc., 425.

What constitutes, see Commerce, 7 Cyc., 418.

Contract for sale of Indian lands, see Vendor and Purchaser, 39 Cyc., 1216.

Custom, as affecting marriage law of State where marriage takes place, see Marriage, 26 Cyc., 831.

Depredation claim:

Generally, see United States, 39 Cyc., 752.

Finding on, see Courts, 11 Cyc., 978.

Judgment on, see Courts, 11 Cyc., 979.

Jurisdiction of Court of Claims over, see Courts, 11 Cyc., 971.

Divorce among tribal Indians, see Divorce, 14 Cyc., 577.

Domain of Cherokee Nation as territory of United States, see Territories, 38 Cyc., 193.

Election precinct in territory allotted to Indians and persons of Indian descent, see Elections, 15 Cyc., 309.

Extinguishment of Indian right of occupation, as affecting right of Federal Government to grant land, held in trust for Indians, to railroad for right of way, see Public Lands, 32 Cyc., 952.

Game killed by Indians on reservation subject to seizure in another State, see
Fish and Game, 19 Cyc., 1025.

General grant of public land in designated section to State for school purpose,
as including land occupied by, see Public Lands, 32 Cyc., 871.

Grant of public land to Indian under Mexican law, see Public Lands, 32 Cyc.,

1175.

Indian lands:

Adverse possession of, see Adverse Possession, 1 Cyc., 1116.
Contract for sale of, see Vendor and Purchaser, 39 Cyc., 1216.
Grant of, for school purposes, see Public Lands, 32 Cyc., 871.
Mortgage on, see Mortgages, 27 Cyc., 1038.

Power of Congress to dispose of, see Public Lands, 32 Cyc., 813.

Indictment for killing of Indian, see Homicide, 21 Cyc., 838.

Interest on Indian claim against United States, see United States, 39 Cyc., 769.

56773°-S. Doc. 719, 62-2- 46

719

Jurisdiction of controversies to which Indians are parties, see Courts, 11 Cyc., 865. Mandamus to Secretary of Interior to approve selection of land by relator as adopted Indian, see Mandamus, 26 Cyc., 247.

Marriage between, see Marriage, 26 Cyc., 831.

Mortgage on unpatented Indian land in Canada, see Mortgages, 27 Cyc., 1038. Not white persons, see 40 Cyc., 927, text and note 66.

Power of Congress to dispose of land occupied by, as public land, see Public Lands, 32 Cyc., 813.

Presentment of false voucher for Indian disbursement, as offense against United States, see United States, 39 Cyc., 770.

Public grant of land ceded by, see Public Lands, 32 Cyc., 871.

Removal to Federal court of suit to which Indian is a party, see Removal of Causes, 34 Cyc., 1251.

Reservation:

As part of public domain, see Mines and Minerals, 27 Cyc., 545.

Attached to county for judicial purposes, see Courts, 11 Cyc., 956.

Grant of:

Land included in Indian reservation in aid of railroad, see Public Lands, 32 Cyc., 952.

Right of way to railroad through public land, as including Indian reservation, see Public Lands, 32 Cyc., 992.

Levy by sheriff on property of debtor situated in, see Sheriffs and Consta-
bles, 35 Cyc., 1634.

Patent for mineral land on Indian reservation, see Mines and Minerals, 27
Cyc., 545.

Statute against cutting timber on public land inapplicable to, see Public
Lands, 32 Cyc., 778.

Subject to control of State for division into counties, see Territories, 38
Cyc., 198.

Taxation of:

Post trader on, see Taxation, 37 Cyc., 879.

Property of person other than Indian located on, see Taxation, 37
Cyc., 719.

Suit by Indian tribe in State court, see Courts, 11 Cyc., 935.

Tribe, as a Territory, see Extradition (Interstate), 19 Cyc., 86.

I. DEFINITION.

"Indians" is the name given by the European discoverers of America to its aboriginal inhabitants. The term "Indian," when used in a statute without any other limitation, should be held to include members of the aboriginal race, whether now sustaining tribal relations or otherwise."

II. STATUS AND DISABILITIES.

A. Who are Indians 3-1. By birth-(a) Half-breeds.-The question of the status of half-breeds which usually arises in the case of the offspring of a white father and an Indian mother has been the subject of conflicting decisions. The weight of authority is, adopting the common-law rule, that the child follows the condition of the father. But the child of a white citizen and of an Indian [113] mother, who is

1 Bouvier L. Dict. And see Frazee v. Spokane County, 29 Wash., 278, 286; 69 Pac., 779; race of men inhabiting America when found by the Caucasian people. 2 Frazee v. Spokane County, 29 Wash., 278, 286; 69 Pac., 779.

Membership in certain tribes: The citizenship court created by 32 U. S. Stat. L., 646, has exclusive jurisdiction to settle claims to membership in the Choctaw and Chickasaw Nations. Dawes v. Cundiff (Ind. T., 1904), 82 S. W., 228.

4 Keith v. U. S., 8 Okla., 446; 58 Pac., 507; U. S. v. Higgins, 110 Fed., 609; U. S. v. Hadley, 99 Fed., 437; U. S. v. Ward, 42 Fed., 320; Exp. Reynolds, 20 Fed. Cas., No. 11719; 5 Dill., 391. See also Jeffries v. Ankeny, 11 Ohio, 372. But see Wall v. Williams, 11 Ala., 826; Miller v. Dawson, Dudley (S. C.), 174.

Act of Congress: It is provided by act of Congress that all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time or was at the time of her death recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs or belonged at the time of her death, by blood, as any other member of the tribe. 30 Ü. S. Stat. L., 90.

Following the rule partus sequitur ventrem, applicable to the offspring of slaves, the illegitimate child of a Choctaw Indian by a colored woman who was a slave must be regarded as a negro and not an Indian. Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864; 40 L. Ed., 1051.

In Canada a person of Indian blood from either parent is of Indian blood, although the mother may have lost her character as an Indian by her marriage. Reg. v. Howson, Terr. L. R., 492.

abandoned by his father, is nurtured and reared by the Indian mother in the tribal relation, and is recognized by the tribe as a member of it, falls under an exception to the general rule that the offspring follows the status of the father and becomes a member of the tribe of the mother.I

3

(b) Mixed bloods.-The term "mixed bloods," used in treaties and statutes, includes persons of half, or more or less than half, Indian blood, derived either from the father or from the mother. Such persons, if they live with the tribe, are Indians. 2. By adoption (a) Of individuals.-A tribe of Indians may admit aliens to membership in the tribe, and a person so adopted acquires all the rights and incurs all the obligations of a member of the tribe. He does not, however, lose his status as a citizen of the United States," nor does he become an "Indian" within the meaning of the statutes. The ordinary occasion for adoption is the marriage of one not an Indian to an Indian woman, but such marriage does not of itself make one a member of the tribe."

(b) Collective adoption of freedmen.-The freedmen of the Cherokee Nation 8 and of the Choctaw Nation have become members of the respective tribes by adoption, but the Chickasaw freedmen have never been adopted by that nation.io [114] Colored persons never held as slaves in the Indian country have no more rights in the Indian country than other citizens of the United States.i

12

B. Personal rights and disabilities-1. Personal liberty.-An Indian is not, by reason of his tribal relations, deprived of personal liberty. He can not in time of peace be transported from one section of the country to another nor confined to a reservation against his will.13

2. Citizenship-(a) In general.-An Indian is not a citizen of the United States by birth, because not born "subject to the jurisdiction thereof." 14 He can not

1 Farrell v. U. S., 110 Fed., 942; 49 C. C. A., 183; U. S. v. Higgins, 103 Fed., 348; U. S. v. Hadley, 99 Fed., 437.

2 Wall v. Williams, 11 Ala., 826; Sloan v. U. S., 118 Fed., 283; Farrell v. U. S., 110 Fed., 942; 49 C. C. A., 183; Sloan v. U.S., 95 Fed., 193.

In Indiana, by legislative definition, the word "Indian" includes all persons of Indian descent, recognized as members of any tribe residing in that State, down to those having one-eighth Indian blood. Doe v. Avaline, 8 Ind., 6.

The term "mestizo" signifies the issue of a negro and an Indian. Miller v. Dawson, Dudley (S. C.), 174.

Youths of Indian, negro, and white blood, but of more than one-half white blood, are whites. Lane v. Baker, 12 Ohio, 237 [citing Jeffries v. Ankeny, 11 Ohio, 372].

Indians by descent is a term applicable both to those of the full blood and of mixed white and Indian blood. Campau v. Dewey, 9 Mich., 381.

3 Stiff v. McLaughlin, 19 Mont., 300; 48 Pac., 232; Delaware Indians v. Cherokee Nation, 193 U. S., 127; 24 S. Ct., 342; 48 L. Ed., 616 [affirming 38 C. Cls., 234].

4 Tuten v. Byrd, 1 Swan (Tenn.), 108; Tuten v. Martin, 3 Yerg. (Tenn.), 452; Morgan v. Fowler, 2 Yerg. (Tenn.), 450; Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864; 40 L. Ed., 1051; U. S. v. Ragsdale, 27 Fed. Cas., No. 16113; Hempst., 479; U. S. v. Rogers, 27 Fed. Cas., No. 16187; Hempst., 450 [affirmed in 4 How. (U. S.), 567; 11 L. Ed., 1105]; U. S. v. Wirt, 28 Fed. Cas., No. 16745; 3 Sawy., 161.

French v. French (Tenn. Ch. App., 1898), 52 S. W., 517; Roff v. Burney, 168 U. S., 218; 18 S. Ct., 60; 42 L. Ed., 442 (right to membership may be withdrawn); Raymond v. Raymond, 83 Fed., 721; 28 Č. C. A., 38.

Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864; 40 L. Ed., 1051; Westmoreland v. U. S., 155 U. S., 545; 15 S. Ct., 243; 29 L. Ed., 255; U. S. v. Rogers, 4 How. (U. S.), 567; 11 L. Ed., 1105 [affirming 27 Fed. Cas. No. 16187; Hempst., 450]; U. S. v. Ragsdale, 27 Fed. Cas., No. 16113; Hempst., 479.

7 Grinter v. Kansas Pac. R. Co., 23 Kans., 642; Stiff v. McLaughlin, 19 Mont., 300; 48 Pac., 232; Nofire v. U. S., 164 U. S., 657; 17 S. Ct., 212; 41 L. Ed., 588.

Marriage with an Indian woman, except in the Five Civilized Tribes in the Indian Territory, is declared by act of Congress to confer no rights or privileges of membership in an Indian tribe. 25 U. S. Stat. L., 392.

8 Alberty v. U. S., 162 U. S., 499; 16 S. Ct., 864; 40 L. Ed., 1051; Journeycake v. Cherokee Nation, 31 C. Cls., 140; Whitmire v. Cherokee Nation, 30 C. Cls., 138.

9 Lucas v. U. S., 163 U. S., 612; 16 S. Ct., 1168; 48 L. Ed., 282.

10 U. S. v. Choctaw Nation, 38 C. Cls., 558 [affirmed in 193 U. S., 115; 24 S. Ct., 411; 48 L. Ed., 640].

11 U. S. v. Payne, 8 Fed., 883; 2 McCrary, 289.

12 U. S. v. Crook, 25 Fed. Cas., No. 14891; 5 Dill., 453.

While keeping the peace, and disobeying no law, the person of an Indian can not be the subject of arrest or imprisonment by anyone except at the peril of the offender. Wiley v. Keokuk, 6 Kans., 94.

Habeas corpus: An Indian is a person, within the meaning of the habeas-corpus act, and as such entitled to sue out a writ in the Federal courts. In re Race Horse, 70 Fed., 598; U. S. v. Crook, 25 Fed. Cas., No. 14891; 5 Dill., 453.

Indians under military guard on a reservation in 1878 were in a position unknown to the law, being neither citizens nor aliens, free nor slave; prisoners of war when there was no war. Conners v. U. S., 33 C. Cls., 317.

13 U. S. v. Crook, 25 Fed. Cas., No. 14891; 5 Dill., 453. See also Wiley v. Manatowah, 6 Kans., 111; Wiley v. Keokuk, 6 Kans., 94. 14 Crandall v. State, 10 Conn., 339; Crouse v. New York, etc., R. Co., 49 Hun (N. Y.), 576; 2 N. Y. Suppl., 453; Elk v. Wilkins, 112 U. S., 94; 5 S. Ct., 41; 28 L. Ed., 643; U. S. v. Osborn, 2 Fed., 58; 6 Sawy., 406; McKay v. Campbell, 16 Fed. Cas., No. 8840; 2 Sawy., 118.

As to citizenship of children of tribal Indians see Citizens, 7 Cyc., 133 et seq.

An emancipated slave of a Chickasaw Indian (“Chickasaw freedman") born in Indian Territory was not a citizen of the United States. Jackson v. U. S., 34 C. Cls., 441. The pueblo or village Indians of New Mexico were citizens of Mexico and became citizens of the United States by the treaty of Guadalupe Hidalgo (9 U. S. Stat. L., 922). Territory v. Delinquent Tax List (N. M., 1904), 76 Pac., 307; U. S. v. Lucero, 1 N. M.,

422.

Every Indian in the Indian Territory is by statute a citizen of the United States. 31 U. S. Stat. L., 1447.

An Indian woman married to a citizen of the United States and living apart from her tribe and according to the habits of civilized life is a citizen. Hatch v. Ferguson, 57 Fed., 959.

In Massachusetts by statute all Indians within that Commonwealth are citizens thereof. Mass. St. (1869) C., 463. See In re Coombs, 127 Mass., 278; Danzell v. Webquish, 108 Mass., 133.

In New York Indians are citizens of the State. Jackson v. Goodell, 20 Johns., 188; Strong v. Waterman, 11 Paige, 607. In Ontario Indians are subjects, and the only immunity or disability which they possess relates to property acquired from the tribe, and the sale or purchase of spirituous liquors. An Indian otherwise qualified has an equal right with any other British subject to hold the position of reeve of a municipality. Reg. v. White, 5 Ont. Pr., 315.

The Eastern Band of Cherokees in North Carolina are not citizens of the United States, although they are recognized as citizens of that State. U. S. v. Boyd, 68 Fed., 577 [distinguishing Cherokee Indians v. U. S., 117 U. S., 288; 6 S. Ct., 718; 29 L. Ed., 880].