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Pe&&&L RIGHTS and L&RT,JES.:OF Inii&S. A:. , : ,, . -. : ..., ,,' i ., _ ..- . .’ ’ I. : .’ ‘. ,,, I CEIAPTEB- 8 . - : ,’ . pE&&&L RIGHTS AND L&RT,JES.:OF INIi&S. ,, a:. , : -. : .., ,,’ (,, . iAi3LE O,i- CoNTENTS : ' " 'i \ . ,. _, _ , .‘ - Pam I Page seqidn 1: I&+@n;-LL ;-L- -2 _-- __-__ -_ _ _ 151 &dion 8 CooUiryd. I’ . ciritelMhip-z;:,‘2-__-1, .-__A _____, _____ 2 _____ 153 & Rejrtricted. mea&&-Cor&ued. &dioni 9._‘. A.; @thtiajr~~~~‘ac&$+$ citizenship- + _ _ _ 153 :. ‘(9) &3b&y lo r&vi or ,sy7d , ..-* .I .- I!,. “, ‘. ’ ” (i) L~e&tiev Gth Idi& tribes-,-- 153 funds-,-~ -_-__ ----_-__--_- 169 ‘. \ ” (9) special statute& ---- :---::--- .153 sediqn 9. The me&in& of “wardship” ________ ii-- __ :-- 169 ’ : , (3) ‘.Ger+al~~ sialutss +bralizing A. <War& as dom#c dependent nations- _ _. 170 - .;.a&j&&:----______________. 154 B. Wards as tribes subject to &ngreaaional . (4) Getieid stat&s ~ naturalizing power--‘--L -A-_m_----_ i-. __-_ ii-- 170 ‘. 1,’ ..,oth& classes of IndiansL _ _ 154 C. Ward8 ‘aa i~ittiduals 8ubj& to Con- gies~~0sipnai~O~~~ .' I. .. B. Jhacitizm; India?&z-;---L _________ 154 \ -I-..------..------- 171 CL ‘E&c.tof citikensh~p~~~~ ______ L-; ____ 156 \ D. Wards as subjeds of federal court juris- seson‘$. &bffrigL~ ------’ --------,----- 2 --_-__--__-_ i57 di&ion-; ____ .___________________ 171 I A. Indian &se&anchivemmt ____________ 157 RL W,ar&& subje&bf administrative power- 171 B~&nstit&nurZ pro&ion of ( In&an F. Wards as benejkiaries of a trust-- __ ___ 172 I voting i-i&is ______ _____ _ __ _ -_ _ __ _ _ 158 G. Wards as non&.ven.x _ _ i _ _ _ _ _ _ _ _ _ _ _ _ 172 Sedion 4. Eli#ili~y for public o&e and employment~~ __ 159 H. Wardship and re.&aints on alienation- _ 172 .‘. A. Public o&e __________________ 1- ____ 159 I. Wardshi$ and ineqdity of .bargaining B. Preferen in Indian and other govern- pOtVC?T ---- :+L _-______-_ ----_ 172 mmtal8&~-l~_~__~~~~~~~~~~_~_ -159 J. Wards as subjects of federal bounty---- 173 (1) &tent of employment ________ 159 Section 10. Civil liberties-; _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ 173 ‘(9) q%viz service ----------------- 159 A. Discrimination- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 173 (S) %xities and sfatutes--- ______ 160 (I) LJiscriminatory state laws---- 173 (a) Iteaties ____________ 160 (9) Discrimin&wy federal laws-- 174 (b) General statutes------ 160 (3) Cpprewive federal adminis- - (4) Statutej of limited application- 160 trative a&m _______ ___ _ _ _ 175 (a) Constru&na work on (a) Concentration of ad- re.smalim- _ _ _ _ _ _ _ 160 minisirotiim power- 175 (b) Purchase of Indian, (b) Confinement on res- produets _ _ _ _ _ _ -: _ _ 161 ervatioM- - - - - - - - - 176 (c) Mili&y &rvice~-~~..~ 161 B. Remedies- _ __L______________ _ __ ___ 177 (4 Youth ----__--__-___ 161 (1) !l%o right of espoiriation---- 177 Se&on 6. .RRgibilitg for state assistance, ____ __ __ _ _- _ ___ _ 162 (g) Antidiscrimination statutes Sedion 6. Rightlosue----,----------,-------,-------- 162 ahd treaties ______ _ _______ 178 Section 7. Right to contract _L_______________ -- ________ 164 (a) Federal statutes af- A. Power of attorney ___________________ 164 fecting Indians B. Cooperatives and business organiza- only-i- - _ - - _- - - 178 tiorw _____.s__ L ___________________ 16: (b) Pea&al statutes af- C. Rights of creditors---, ______ - ________ 16: feding all races.. 179 Section 8. The meanings of “irxompetency”- _ _ - _ _ _ _ _ _ _ _ _ 167 (c) State statutes affect+ A. General lack of legal capacity- _ _ _ _ _ _ _ _ 167 ing all races----- 179 B. Restricted meanings _ _____ _-__ _ _ _ _ _ _ 167 (d) Treaties ageding all (I) Inability to alienate land--. _. - 167 race - _ _ _ _ _ _ _ _ _ _ 179 (a) Statutes _______ _____ _ 16s (S) Constitutional protection- _ _ _ _ 179 (b) Treaties _ _ _ _ - _ _ _ _ _ _ 16s Section 11. The status of freedmen and slaves _ _ _ _ _ _ _ _ _ _ _ _ 181 SECTION 1. INTRODUCTION To analyze the personal rights and liberties of Indians is to Bull SzsbZimie Dew of Pope Paul III, issued June 4, 1537. This assume that Indians are persons. This proposition has not I Butt declared: always been universally accepted. The first authoritative deter- The enemy of the human race, who opposes all good mination that Indians are human beings is to be found in the I deeds in order to bring men to destruction, beholding 151 152 . PERSONAL RIGHTS AND LIRER’MES OF INDIANS and envying this, invented a means never before heard In 1842, Attorney General Legare wrote : lb of, by which he might hinder the. preaching of God’s * * * There is nothing in the whole compass of our- word of Salvation to-- the people: He inspired his satel- laws so anomalous-so hard to bring within any precise lites who, to please him, have not hesitated to publish definition, or any logical and scientiic arrangement of abroad that the Indians of the West and the South, and principles, as the relation in which the Indians stand other people of whom We have recent knowledge should towards this government, and those of the States (P- 76.) be treated as dumb brutes created for our service, pre- tending that they are incapable of receiving the catholic *Eight decades later, when the eminent jurist, Judge Cuthbert faith. - ‘\ ‘ound, wrote of “Nationals .without a Nation.” * the anomalies We, who, though unworthy, exercise on-earth the power attendant upon the legal status of. the Indian had not disap of our Lord and seek with all our might-to bring those sheep of His flock who are outside, into the fold com- Eared. \ mitted to our charge, consider, however, that the Indians In part, the difficulties of the subject derive from the unique are truly men and that they are not only capable of nternational relationship existing between the United States understanding the catholic faith but, according to our md Indian tribes, treated as “‘domestic, dependent nations” with ,_ information, they desire exceedingly,to receive it. Desir- ing to provide ample remedy for these evils, we define vhich we entered into treaties that continue in fork? to this day. and declare by these our letters, .or by any translation The complexity of the problem has been very much aggravated thereof signed by any notary public and. sealed with the by the host of special treaties and special statutes assigning seal of any ecclesiastical flignitary, to which the same ights and obligations to the members of particular tribes, .a11 credit shall be given as to the originals, that, ‘notwith. standing whatever may have been or may be said tc d which creates a complex diversity that can be simplitied only the contrary, the- said Indians and all other people who it the risk of ignoring facts and violating rights. Attempts have may later be discovered by Christians, are by no meam reen made, of course, in some judicial opinions, as well as in to be deprived of their liberty or the possession.of theh e$s authoritative writings, to ride roughshod over the facts and ’ ,property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legiti- ;o lay down certain simple rules of alleged universal applica- mately, enjoy their liberty and the possession of theh tility, most of which have turned out to be erroneous. property ;-nor should they,be in anyway enslaved ; should Whatever the causes of this confusion may be, the fact remains the contrary happen, it shall be null and of no effect.^1 :hat erroneous notions% the legal. status of the Indian are Despite this pronouncement, doubts as to the human character widely prevalent? Large sections of our population still believe of Indians have persisted until fairly recently, particularly :hat Indians are not citizens, and recent instances have been among those charged with the administration of Indian affairs :eported of Indians being denied the right to vote because the These doubts are reflected in the statement on “Policy ani electoral ~05clals iu charge were under the impression that Administration of Indian Affairs” contained in the “‘Report or [ndians have never been made citizens. Indeed, some people Indians Taxed and Indians Not Taxed, at the Eleventh Census have persuaded Indians themselves that they are not citizens 1890, *’ which declares : and can achieve citizenship only by selling their land, by having An Indian is a person within the meaning of the laws the Indian 05ce abolished, or by performing some other act of the United States This decision of Judge Dundy 3f benefit to those advisors who have volunteered aid in the of the United States district court for Nebraska, has no1 mhievement of American citizenship. been reversed; still, by law and the Interior Department the Indian is considered a ward of the nation and is s( Another prevalent misconception is the notion that “ward In- treated.^1a lians,” whatever that term may mean, have no capacity at law The doubts that have existed as to whether an Indian is 1 Lo make contracts or to bring or defend law suits. person or something less than a person have infected with un These are but two examples among a host of more or less certainty much of the discussion of Indian personal rights am widespread misconcepfions that are woven about such terms as “citizenship,” “wardship,lV and “incompetency.” liberties.
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