A quick review of Title 25 of the United States Code, entitled "Indians," certainly confirms Mr. Bumble's view of the law. Under its constitutional power to "regulate commerce with the Indian Tribes," Congress began legislating on Indian affairs from the very first days of its existence. Unfortunately, it has never stopped. Worse yet, it has never gone back to clean up its mess, even though dozens of laws are plainly inappropriate and should be done away with.
One of my favorites is Section 127, titled "Money or annuities of hostile Indians." Under this law, no money appropriated to an Indian tribe may be delivered to the tribe if the tribe has, in the preceding year, "engaged in hostilities against the United States, or against its citizens." Having attended a couple of the consultation sessions on Interior Secretary Norton's proposed reorganization of the BIA, it seems to me that just about every tribe in the country has engaged in hostilities with the Secretary this year. I wonder if Secretary Norton has pondered withholding the tribes' federal funds under this section.
Similarly, Section 128 prohibits any federal payments "to any band of Indians or any portion of any band while at war with the United States or with the white citizens of any of the States." While this is a sensible rule as far as it goes, it does seem to leave African-Americans, Asian-Americans and Hispanic-Americans as fair game for marauding Indians.
Another thing that can get your federal funds withheld is to be "under the influence of any description of intoxicating liquor," or even to have "any species of intoxicating liquor within convenient reach of the Indians." Funds may be withheld "until the chiefs and headmen of the tribe shall have pledged themselves to use all their influence and to make all proper exertions to prevent the introduction and sale of such liquor." Now here's a law I can get behind. Imagine how hard every tribal leader in the country would work to prevent drinking by tribal members if the feds actually turned off the money spigot in communities where Indians drink.
But my favorite thing that tribes can lose their federal funding over is in Section 129, which authorizes the Secretary to withhold funds from tribes holding "captives other than Indians." This will sure as heck make any tribe think twice before it takes any white people hostage. An Indian from another tribe, though, is pretty much on his own.
We hear a lot of complaints in some tribes about tribal leaders who use their positions to make sure that their friends and families get the lion's share of federal goodies. But did you know that Section 132 requires that federal goods and merchandise be given "to the chiefs in bulk, and in the original package ... to be distributed to the tribe by the chiefs in such manner as the chiefs may deem best?" So not only is favoritism in dispensing federal goodies a long-standing practice, it's also legal under the United States Code.
Any Indians out there need a lawyer? Well, under Section 175, in all states where there are reservations or Indians who own allotments, "the United States attorney shall represent them in all suits at law and in equity." There are lots of Indian people whose only contact with a United States Attorney is to be prosecuted by one. I'll bet they wish they'd known that the United States Attorney could have been defending them instead. (Lest you wonder, the courts have ruled that the phrase "shall represent" doesn't really mean "shall represent." It means "may represent," according to the courts. And they wonder why people don't trust lawyers and their word games.)
A common joke in Indian country is the one about non-Indians looking to marry Indians from gaming tribes who receive large per capita payments. Seems Congress anticipated the situation. Well, sort of. Section 181 says that "No white man ... who ... marr [ies] an Indian woman ... shall ... acquire any right to any tribal property." But what about all those non-Indians living in reservation HUD projects?
On the other hand, if an Indian woman marries a citizen of the United States, she automatically becomes a U.S. citizen and, under Section 182, retains her interest in any tribal property even though she has become a U.S. citizen. No similar provision is made for Indian men marrying white women. Rats.
Section 184 says that children of a white man married to an Indian woman "shall have the same rights and privileges to the property of the tribe to which the mother belonged ... as any other member of the tribe." Tell that to all those tribes whose blood quantum requirements exclude the children of Indian women married to white men.
Section 192 authorizes the BIA to sell tribal livestock, unless such sale would interfere "with the movement or subsistence of troops." Huh? Under Section 229, the BIA can take such steps as it deems proper to make a tribe compensate any person robbed by an Indian. That could bankrupt some tribes.
Under Section 271, the President, if he decides that "improvement in the habits and conditions of [the] Indians [is] practicable," can hire "capable persons of good moral character to instruct them in [agriculture] and for teaching their children in reading, writing, and arithmetic." This would explain the frequent lack of quality content in the curricula of many reservation schools.
The United States Army also has a strong hand in Indian schools. Under Section 273, the Secretary of the Army may detail Army officers "for special duty with reference to Indian education," but not an officer above the rank of captain. We certainly wouldn't want any majors, colonels, or generals mixing with Indian kids! Under Section 276, the Secretary of the Army can set aside "vacant posts or barracks" for use in the establishment of Indian schools, but only for "Indian youth from the nomadic tribes." This 1882 law is the basis upon which some BIA school campuses came into being. Some of these "vacant posts and barracks" are still in use as BIA schools. Really.
Bet you didn't know this: "The Secretary of the Interior may ... prevent the issuing of rations or the furnishing of subsistence either in money or in kind to the head of any Indian family for ... any Indian child or children between the ages of eight and twenty-one years who shall not have attended school during the preceding year." Under Section 283, you can lose your General Assistance money if your twenty-year-old is not going to school. If you're an Osage, Section 285 says that the Secretary can withhold your oil royalties if your kids are not in school "for a reasonable portion of each year."
All of these laws are still on the books. All have been superseded by other laws or have simply fallen into disuse, and the BIA of course would not dream of actually invoking any of these statutes as authority for taking action against a tribe. The fact that they may once have had some practical application does not justify their continued existence. They are relics of the dreadfully unenlightened and racist policies of the past. They have no current place among the laws of the United States.
I can't help but wonder what a person unfamiliar with the history of federal Indian law and policy would think if he or she were to sit down and read Title 25. I sometimes even wonder if the current United States Supreme Court hasn't read these laws and believed them still to be accurate reflections of federal law regarding Indians. It is difficult to argue to the courts that Congress respects tribal sovereignty when laws like these dominate the opening chapters of Title 25.
Certainly Mr. Bumble is right that "the law is a ass," but it need not be so. If Congress truly respects tribal sovereignty and self-determination, it should clean its house and take out its garbage by repealing these antique reminders of unhappy times in American history.
Kevin Gover, a columnist for Indian Country Today, is a partner is the Washington, D.C. office of Steptoe & Johnson LLP. Mr. Gover's practice focuses on federal law relating to Indians and on Indian tribal law. He is the former Assistant Secretary for Indian Affairs in the U.S. Department of the Interior.