# 22 Federal Land Acquisition for Indian tribes

Federal Land Acquisition for Indian Tribes

 

Part 1

Indian Lands

Beyond the pale of the federal government’s established "doctrine" of Trust, as applied to Federally Recognized Tribes, today we find an absence of delegated powers and authorities from the Constitution for the federal government to own and/or hold in trust any lands for the use of any subdivision (like ethnic, racial, political etc.) of our

Citizenry. Yet, this is exactly what is happening today and since 1924. Since the 1924 Indian Citizenship Act, the continued use of this trust doctrine and treaties with tribes has been constructed out of myth and precedence from courts unwilling to address the constitutional question … where do tribes of our citizens fit into the federal government system?

It should be further noted that the doctrine of trust is also without Constitutional power and authority. Such powers and authorities were never even contemplated by the several states for delegation to the Congress Assembled or the Federal Government, during the development of our form of government. How can anyone even fantasies such thoughts when our recorded history reminds us how our forefathers viewed Indian and their tribes. Please consider the following.

      1. The Declaration of Independence, July 4, 1776 where it points out what King George III had been doing:

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

2. After the Declaration of Independence became official, our then Chief Justice of the Supreme Court, in the Johnson case (21 U.S. 543), described the tribal Indians our forefathers faced "as fierce savages whose occupation was war and whose substance was drawn chiefly from the forest" ****" that law which regulates, and ought to regulate in general, the relations between conqueror and conquered, was incapable of application to a people under such circumstances."

We must remember that each of our several states in fact "retain its sovereignty freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress Assembled." (Art. 11, Articles of Confederation) and that the Constitutional Convention of 1787, only had authority to REVISE the Articles of Confederation and not to give away the elements of sovereignty retained by the several states. Here is what the Articles of Confederation tell us about Indians.

      1. Article VI.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted.

  1. Article IX.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standard of weights and measures throughout the United States --regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated--establishing and regulating post-offices from one State to another..

These article were not altered, changed or deleted by the Constitution: they form a set of still valid requirements or prohibitions on this matter, all of which appear to have been violated over the years by oath taking elected and appointed governmental officials.

Because of the facts at play when considering the Federal Government’s role in the treatment of American Indians (i.e. not citizens of the U. S. of A.) between the period n July 4, 1776, to June 2,1924, when the Indian Citizenship Act of 1924, became law, this article excludes as unnecessary any consideration of that early period before 1924, and only addresses the period after all Indians not yet citizens, were made citizens, from June 2, 1924, to date. The earlier period is fraught with condition that gave the Congress and the President powers and options not permitted in our system of government when dealing with our citizenry. The period of time since the 1924 Indian Citizenship Act, clearly demonstrates the parties concerned in this matter, the Federal and State Government, and the Indians and their tribes, have new and totally different duties, rights and obligations towards one and the other, making pre 1924 Indian Citizenship Act era treaties, court cases and decisions, and rules and regulations, both obsolete and not binding if in conflict with the U.S. Constitution, and the Constitutions of the several states. Certainly court decisions of the earlier era, because of the differences in the parties after 1924, cannot be used as precedents: BUT THEY HAVE BEEN SO USED.

The above are the givens. They are factual and reflect history as it is. Here now are the parts of the U.S. Constitution relating to Federal land ownership.

Article 1 LEGISLATIVE DEPARTMENT

Section 8. Powers Granted to Congress

The Congress shall have the power

Clause 17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of a particular State, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State, in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful building;

(Note: this Section (8) has 18 paragraphs granting powers to the Congress, the first 17 are called enumerated powers, and the last one is called the elastic clause. The references to " forts, magazines, arsenal, dock-yards, and other needful buildings;" clearly tells us that paragraph 17, the enclave clause, restricts the Congress from exercising exclusive legislation over lands for purposes other then provided for by this section.)

 

Article IV THE STATES AND THE FEDERAL GOVERNMENT

Section 3. New States and Territories

Clause 2. Power of Congress over territory and property. The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.

 

(Note: this clause does not give the Congress any power to disregard the limits of their power found elsewhere in the Constitution. This clause merely allows them to be the authority to dispose of and make needful rules and regulations respecting territories and other property belonging to the U.S., or any particular State.)

You need to read all of Article 1, Section 8, and review all of the powers granted the Congress therein. There is no power given the Federal Government to own land for the purposes of Indian reservations, or owning it and holding it in trust for tribes, much less for individual Indians, giving them in return a "beneficial interest" in the land and or appurtenance of the land. BUT THEY HAVE BEEN DOING SO.

 

 

Part 11

 

 

The Federal Government's Method of INDIAN LAND Control


Concerning "Indian lands", one should understand that the Bureau of Indian Affairs (BIA), a part of the Department of Interior (DOI), has jurisdiction and maintains records for the two types of land "ownership" under Government protection provided tribes as a group, and individual members of Federally Recognized Tribes.  They are:

1) Trust Interest.  This is land whose title is in the name of the U.S., as trustee for the individual Indian, these allotments come from established reservations "reserved" from the public domain.

2.  Restricted Fee Patent.  This is also property held in trust but the original document creating the restricted fee property is to the individual Indian receiving the property and the trustee is the U.S. Government.

These restrictions (the reason for the name. restricted fee) can be waved by the Secretary of the D0I, by the issuance of a Certificate of Competency to the owner. Restricted fee were allotted out of the public domain.

Please note that the term "ownership" used whenever the federal government owns the property in fee as a trustee and one of these methods of land transfer takes place, means a certain beneficial interest only is transferred to the tribe or Individual Indian concerned. The federal government STILL owns the land in fee.

Both types of ownership, or more correctly - both types of beneficial interests - carry serious limitations to the beneficiaries generally concerning alienation of the property, the descent of the interest by will or other means, restrictions as to whom the interest can be sold to, to mention just a few limitations. It is all very complex, confusing, and indeed, handsomely bureaucratic.

To complicate things even more, there is a land transfer method called Fee-To-Trust that allows individual Indians, or their federally recognized tribes, who own property in fee simple, in a given State, to request the Secretary of DOI, to place their property in federal trust.  In return, individuals or tribes are given a beneficial interest in that property. This then makes the property owned by the United States, not subject to State taxes or regulations for the most part, and carries even more benefits to the Indian or tribe involved.

The Secretary of DOI has this power by virtue of the 1934 Indian Reorganization Act.  Although there are rules to follow and hoops to go through, the federal government can, by this means, take lands from within a sovereign State, and make it now federal land.  This action diminishes one of the attributes of state sovereignty-control over its lands for the benefit of its citizens, such as the states legislative jurisdiction, and the requirement for the citizens to live under a republican form of government.

Clearly the federal law that gives the Secretary of DOI, this power is unconstitutional and has continued to effectively be used regardless of the political party in power. The Congress and the Secretary of DOI are responsible for this kind of land
transfer and purchase of private lands by the federal government, which makes
a mockery of our Federal and State Constitutions.

When the Fee-To-Trust takes place, land is taken from State jurisdiction and creates an island of foreign (not constitutional) laws, rules, taxes, systems of government, and way of thinking different from the surrounding communities and State. This action effectively removes the land from the State and local tax base, reduces the State sovereignty base, and places a "nation" within the host State whose system of government is different and conflicts with the tribal government.

Within this internal conflicting rivalry comes the matter of business and commerce of rivals not being on an even playing field and a greater potential for intrastate conflict due to the disunion and a real potential for intervention by a foreign power(s).

Read the Federalist Papers, #6, by Hamilton, and think about what is happening now with the tribal governments THAT ARE NOT REPUBLICAN IN FORM and now are infesting our country. We are now facing the problems that Hamilton suggested and our own Congress is the entity of government that has done this to us. Of course, we citizens of the several states must take part of the blame. 

We elected those officials and we do not, and have not in the past, insisted on adequate oversight that would protect our individual Constitutional rights, privileges and immunities from being denied us by the federal government.