one day return to the policies of termination. How better could Congress give assurance to the Indian people that they are a truly respected permanent part of the American political fabric.

The system for choosing their representative must, of course, be developed by the Indian people. The adoption of the Declaration of principle contained in paragraph two will serve as a mighty stimulus to debate and councils among the Indian people which will lead to the development of the "elective bodies" called for in Section 2 (5) of Public Law 93-580.

3. Sources of Tribal Authority

Paragraph three of the proposed Findings and Declaration of Policy calls upon Congress to recognize that the power and authority of Indian tribes emanates from their recognized status as sovereign dependent nations; that the powers of the tribes do not derive from any grant from the Constitution of the United States nor from any Act of Congress; that the Indian tribes always have had and do now retain all powers of any sovereign except as to those powers which have been specifically limited by treaty or by federal statute; and that within these limits, the Congress reaffirms its commitments to leave the Indian people within the Indian country free from state or federal authority and free to be governed by their own code of laws.

Nothing could be more clear than that Indian tribes are distinct political entities whose separate sovereignty has been uniformly recognized by the federal government throughout history.

The Indian Trade and Intercourse Acts from 1790 through 1834 56 were premised on that concept; the entire course of treaty dealings between the United States and the Indian tribes was premised on that concept; 57 the Indian Reorganization Act of 1934 and the Oklahoma Indian Welfare Act of 1936 were premised on that concept; 58 the Acts terminating federal recognition were premised on that concept; Title II of the 1968 Civil Rights Act was premised on that concept; and the Indian Self-Determination and Education Assistance Act is premised on that concept.

59

The separate sovereignty of Indian tribes has been repeatedly acknowledged by the federal judiciary ever since the decision in Worcester v. Georgia in 1832.61 See Ex parte Crow Dog (1883),62 Talton v. Mayes (1896), U.S. v. Quiver (1916), Iron Crow v. Oglala Sioux (1956),65 Barta v. Oglala Sioux Tribe (1958), Native American Church v. Navajo Tribal Council (1959),67 Williams v. Lee

63

64

66

55 The Task Force has not researched this question in depth, but from a cursory reading of Article 1, Section 2, Clause 1 of the U.S. Constitution in the U.S. Code Annotated, particularly the annotations under note 6, it would appear there is great latitude for the development of alternative systems which could be adopted by the Indian community for the selection of Indian delegates. This might even include an "Ambassador at Large" selected by a national Indian advisory board and subject to recall by such board.

56 Act of July 22, 1790, ch. 33, 1Stat. 137; Act of June 30, 1834, ch. 161, 4 Stat. 729. See also note 4, supra.

57 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

58 Act of June 18, 1934, 48 Stat. 984; Act of June 26, 1936, 49 Stat. 1967.

Bo Title II. Act of April 11, 1968, 82 Stat. 77.

60 Act of Jan. 4, 1975, 88 Stat. 2203.

61 Note 57, supra.

62 109 U.S. 556 (1883).

63 163 U.S. 376 (1896).

64 241 U.S. 602 (1916).

65 231 F. 2d 89 (8th Cir., 1956).. 06 259 F. 2d 553 (8th Cir., 1958). 07 272 F. 2d 131 (10th Cir., 1959).

83-755-77

68

(1959), McClanahan v. State Tax Commission (1973),69 and U.S. v. Mazurie (1975).70

Yet despite the clarity of these judicial pronouncements, and the history of the unique Federal-Indian relationship manifested through these statutes, courts continue to lose sight of the sovereign character of Indian tribes, and Congress and administrators continue to wonder where a tribe gets its authority to perform certain acts.

74

Thus in Colliflower v. Garland" and Settler v. Yakima Tribal Court,72 the 9th Circuit stopped just short of finding the courts of those tribes a federal instrumentality based on the fact they received federal support and were successors-in-interest to courts originally established by the Secretary of the Interior.73 In U.S. v. De Marrias " and U.S. v. Kills Plenty," the doctrine of double jeopardy and collateral estoppel were raised by defense counsel as a bar to federal prosecution subsequent to trials in tribal courts again on the theory that tribal courts were mere instruments of the federal government. The De Marrias case was decided on other grounds. In Kills Plenty the three judge court divided on the issue of whether tribal courts were arms of the federal sovereign or derived their authority from the sovereign power of the tribe, the majority of the court ruling in favor of tribal sovereignty on the basis of its prior decision in Iron Crow v. Oglala Sioux Tribe," the dissent holding otherwise on the basis of Colliflower and Settler.""

In U.S. v. Mazurie we are treated to the spectacle of the 10th Circuit rejecting 150 years of judicial precedent by going out of their way in dicta to find that Indian tribes are no more than associations of citizens whose power is limited to its own membership,78 a proposition which the Supreme Court promptly rejected in reply dicta in reversing the 10th Circuit decision. And in Oliphant v. Schlie 80 decided by the 9th Cir. in August, 1976, we find a dissenting judge debating the point of whether the authority of a tribal court springs from the sovereignty of the tribe or rests on a federal grant of power.

The need for clarification of this issue for the courts, Congress and the Executive is manifest. If tribes are found to be mere instruments of the federal government, 200 years of carefully constructed statutory and decisional law will be thrown out the window; if their powers are found to be dependent upon a federal grant, it will be necessary for Congress to enact an entirely new code of laws, for the basic premise of the present statutory scheme evolved over the history of this Nation, is one of recognizing, removing, and restoring the powers of tribesa scheme which is at complete loggerheads with the notion that the power of the tribe springs from federal grant.

68 358 U.S. 217 (1959).

60 411 U.S. 164 (1973). 70 419 U.S. 544 (1975).

71 342 F. 2d 369 (9th Cir., 1965).

72 419 F. 2d 486 (9th Cir., 1969), cert. denied, 398 U.S. 903 (1970).

73 Title II of the 1968 Civil Rights Act (25 U.S.C. 1301-1303) with its statutorily defined rights and provision for habeas corpus review of tribal court judgments eliminated the need for resort to this dangerous doctrine.

74 441 F. 2d 1304 (8th Cir., 1971).

7466 F. 2d 240 (8th Cir., 1972).

See note 65, supra.

See notes 71 and 72. supra.

187 F. 2d 14 (10th Cir., 1973).

419 U.S. 544 (1975).

No. 74-2154 (9th Cir.), appeal noted April 30, 1974, decision docketed August. 1976.

Paragraph three of the proposed Declaration not only calls upon Congress to recognize the source of tribal authority as springing from their own inherent sovereignty, it also calls upon Congress to declare that the tribes retain all of their sovereign powers except as those powers have been specifically limited by treaty or federal statute.

The doctrine that Indian tribes retain all those inherent powers of any government, except as expressly withdrawn by Congress, is wellestablished. The origin of this principle can be traced to the 1832 landmark ruling of Chief Justice John Marshall in Worcester v. Georgia. The Interior Department's legal treatise on Indian law, originally published in 1940 under the editorship of Felix Cohen, emphatically restates the "inherent powers" doctrine.82 Reaffirmation of this fundamental tenet has been expressed in numerous judicial rulings since Cohen's scholarly work first appeared.83

Congress since passage of the Indian Reorganization Act in 1934 84 has on several occasions recognized both the inherent powers precept and the federal trust obligation to foster tribal self-government.85 Some judicial rulings, however, as discussed above, have lost sight of the source and scope of inherent tribal sovereignty. Thus, in paragraph three of our proposed Declaration we ask Congress to restate the inherent powers principle. Recommendations for more effective implementation of this principle are set forth in Part V, Chapter 1 infra which sets forth our suggestions for realignment and revision of Title 25 of the United States Code.

4. Reaffirmation of Trust Commitment

Paragraph four of the proposed Declaration calls upon Congress to recognize that since the founding of this Nation it has been the declared policy of the United States Government to preserve and protect the people, the property and the governments of the Indian nations. It asks that Congress reaffirm its commitment to that policy.

Of all of the paragraphs in the proposed Declaration, this is probably the most innocuous, and yet it is as important to the rights of Indians as are any of the other findings or declarations. It is innocuous because the books of statutes and the books of case law are filled with reaffirmations of the federal policy and the federal duty to protect the people, the property and the governments of the Indian nations. It is important because too often the Congress has deviated from this well chosen path.86 Too often the federal Executive has failed to fulfill its trust obligations already defined by law. Too often the courts have given sanction to blatant violations of the trust obligations on the

81 31 U.S. (6 Pet.) 515, 559-560 (1832).

F. Cohen, Handbook of Federal Indian Law 122-123 (originally published in 1940; Univ. of New Mexico reprint, 1971). The late Justice Frankfurter described this work as "an acknowledged guide for the Supreme Court in Indian litigation." F. Frankfurter, Of Life and Law and Other Things that Matter 143 (1967).

83 See, e.g., Bryan v. Itasca County, U.S. 96 S. Ct. 2102, 2111 (June 14, 1976); Fisher v. District Court, U.S.. 96 S. Ct. 943, 947 (March 1, 1976); Williams v. Lee, 358 U.S. 217, 220 (1959); Oliphant v. Schlie, supra note 80; Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 98 (8th Cir., 1956)

84 Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq. (1970). See Part V, Chapter 1 infra for a detailed discussion of the affirmance of tribal self-government by this Act. See, e.g.. The Indian Civil Rights Act of April 11. 1968, § 201(1), (2), 82 Stat. 77, 25 U.S.C. § 1301(1), (2) (Supp. 1976); the Indian Self-Determination and Education Assistance Act of January 4, 1975, 88 Stat. 2203, 25 U.S.C. §§ 450 et seq. (1970). See also Part V, Chapter 1 infra.

60 See text, page 33 accompanying notes 18-23.

theory that "[w]e must presume that Congress acted in perfect good faith..." 87

Except for the deviations of Congress, these are not problems of principle they are failures of implementation. The problems of federal trust obligations are discussed extensively in the report of Task Force No. 1. In Part V of this report, the report of Task Force No. 9, we propose adoption of rules of general construction and rules relating to affirmative enforcement and award of attorney fees which should go far toward alleviating the deficiencies in Executive and Judicial implementation,

In the Northwest Ordinance of 1787 Congress provided:

The utmost good faith shall always be observed toward the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.

The Declaration sought in this paragraph asks no more than that Congress reaffirm its commitment many times made to exercise and to require of others the exercise of utmost good faith toward the Indian people.

5. Removal and Assimilation Policies as Causes of Economic Deprivation and Jurisdictional Conflict

89

Paragraph five of the proposed Declaration calls for a finding that the policies of the Westward Removal Act of 1830 and the General Allotment Act of 1887" were ill conceived and that these policies of the past have a direct relationship to the economic and social condition of the American Indian today, and a direct relationship to the problems that now confront tribal governments everywhere.

The pity and pathos accompanying the Westward removal policies has been so thoroughly documented by so many historians it simply bears no repetition here. The entire Nation knows the shame of that period of history. What is less understood is the wrong that attended the Indian policies of the late 19th and early 20th centuries when the remaining Indian land base was being broken up, conscious efforts were made to bring about the demise of tribal governments and concerted efforts in the guise of Indian education made to obliterate from the face of the globe the Indian languages and Indian customs.

That the General Allotment Act of 1887 and its progeny of some 108 allotment and opening statutes 21 was designed to accomplish the first two of these objectives is well documented." In fact it was precisely this process which the Indian Reorganization Act of 1934 was designed to reverse. The educational policies of the federal establishment in the early years of this century are also well documented."

Lonewolf v. Hitchcock, 187 U.S. 553, 567, 568 (1903).

93

88 This Ordinance was recodified verbatim by the First Congress in 1789. See Act of Aug. 7, 1789, ch. 8, 1 Stat. 50. The quoted language is from Article III of this Ordinance. 80 Act of May 28, 1830, ch. 148. 4 Stat. 411.

90 Act of Feb. 8, 1887, ch. 119, 24 Stat. 388.

91 See note 24, supra. See Exhibit 1 to Part IV.

92 Problem of Indian Administration, Brookings Institution (1928), edited by L. Meriam. 93 Act of June 18, 1934, ch. 576, 48 Stat. 984 (25 U.S.C. 461 et seq.).

94 Senate Committee on Labor and Public Welfare, Indian Education: A National Tragedy A National Challenge. S. Rept. No. 91-501, 91st Cong., 2d Sess. (1969).

The impact of the allotment and opening statutes with its concomitant checkerboarding of reservation landholdings and the jurisdictional conflict which this has engendered between tribal, federal and state governments is well known. The effect of the educational policies in destroying individual pride and undermining respect for tribal elders, tribal authorities and tribal institutions is less easily measured. The provision in this paragraph five of the Declaration asks no more than that Congress recognize the present consequences of the misbegotten policies of the past.

6. Reaffirmation of Indian Reorganization Act Commitments

95

Paragraph six of the proposed Declaration calls upon Congress to reaffirm the policies of the Indian Reorganization Act of 1934: " to put an end to the allotment era; to restore to the Indian people an economically viable land base; to provide the Indian people with sufficient credit through a revolving loan fund that they might develop their own resources and business institutions; to recognize the rights of the Indian people to be self-governing; and to provide through the employment preference policy for eventual control by Indian people of the Federal agencies responsible for protection of their resources and delivery of services to them.

There is nothing new in this proposal. The Indian Reorganization Act (IRA) remains as one of the basic statutes governing Indian Affairs today. The fundamental policy conceptions underlying its enactment have been restated in more recent legislation, notably Title II and IV of the 1968 Indian Civil Rights Act," the Indian Financing Act of 1974,97 and the Indian Self-Determination and Education Assistance Act of 1975.98

The companion measure to the IRA, the Oklahoma Indian Welfare Act of 1936 (OIWA),99 was intended to extend all of the policy goals of the 1934 legislation to Indian tribes in Oklahoma. The objectives of both statutes, however, have not been implemented adequately in the last forty years. This is true especially with regard to land acquisition, federal employment preference, and full recognition by federal administrators of the residual sovereignty still vested in tribal governments. In Part V infra detailing our proposed realignment of Title 25 of the United States Code, as well as in Part VIII infra setting forth special recommendations regarding Oklahoma Tribes, we suggest the merger and revision of IRA and OIWA with the intention of enhancing implementation of their original goals.

7. Repudiation of Termination and Restoration of Federal Recognition

Paragraph seven of the Declaration calls upon Congress to acknowledge the wrongs of the termination era and to repudiate clearly and forcefully H.C.R. 108 100 which lay at the heart of this Congressional period. We have already noted the fear with which the Indian community regards this period of legislative history.101 The psychological

25 25 U.S.C. 461 et seq.

Act of April 11, 1968, 82 Stat. 77 (25 U.S.C. 1301-1303, 1321-1326).

97 Act of April 12, 1974, 88 Stat. 77 (25 U.S.C. 1451 et seq.)

Act of Jan. 4. 1975, 88 Stat. 2203 (25 U.S.C. 450 et seq.)

Act of June 26, 1936, ch. 831, 49 Stat. 1967 (25 U.S.C. 501 et seq.)

100 H.C.R. 108, 83rd Cong., 1st Sess.

101 See text accompanying note 49.