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United States. Office of Indian Affairs / Annual report of the commissioner of Indian affairs, for the year 1892
([1892])

Legal status of Indian allottees,   pp. 755-756 PDF (990.8 KB)


Page 755

LEGAL STATUS OF INDIAN ALLOTTEES. 
DEPARTMENT OF THE INTERIOR, 
OFFICE OF INDIAN AFFAIRS, 
Washington, November 21, 18929 
ELIFM: COLMAN, Esq., 
U. S. Attorney, Fond du Lac, Wis.: 
SIR: I have received your letter of November 9, 1892, stating that you are
in- 
formed that patents have been issued under the allotment act of 1887 to Oneida
Indians in Wisconsin, whereby they have become citizens of the United States;
that it would seem to you, that although for some purposes they are under
the 
authority of the Indian agent until the expiration of the twenty-five years,
by 
becoming citizens and also by the provisions of the act they are subject
and 
amenable to the laws of the State of Wisconsin, and therefore it can be no
longer 
an offense to sell liquor to them and you have no right to prosecute for
the'same; 
and asking that you be advised as to the undeistanding of this office as
to their 
condition during the twenty-five years until they receive their final patents,
particularly with reference to section 2139 of the Revised Statutes of the
United 
States. 
You also ask that you be furnished with the views of this office as to the
ap- 
plication of section 5388 to cases of timber trespass on Indian allotments.
In reply, I have to say that whether or not the Indians who have received
al- 
lotments of lands in severalty under the act of February 8, 1887 (24 Stats.,
388), 
as amended by the act of February 28, 1891 (26 Stats., 794), are still under
the 
protection of section 2139 of the Revised Statutes, is a question which can,
of 
course, only be authoritatively determined by the courts. I am of the opinion,
however, that in the light of the decision of the Supreme Court in United
States 
v. Holliday (3 Wall., 407), so long within the trust period as it may be
deemed 
necessary by the Secretary of the Interior and the Commissioner of Indian
Af- 
fairs for Indian allottees to remain under the charge of an Indian agent,
the stat- 
ute will apply to punish any one selling or giving them any intoxicating
bever- 
ages. 
The Attorney-General, in an opinion of January 26, 1889 (19 Opinions, 232),
ad- 
vised the Secretary of the Interior that- 
" The Indians when organized as tribes, under the former policy of the
Gov- 
ernment, have been treated as domestic dependent nations under the guardian-
ship of the United States. * * * In this contemplated new mode of life the
guardianship which heretofore has been exercised over the tribe is to be
trans- 
ferred to the individual allottees provided for in this act. The separate
man- 
hood of each Indian is to be recognized, but still subject for a time to
the care 
and supervision of the Government as a trustee or guardian. The real estate
falling to each allottee is not intended to be used during the period of
guardian- 
ship for speculative purposes, but is so conditioned that in their period
of ward- 
ship or tutelage the Indians shall not be subject to the danger of entering
into 
an unequal competition with the whites in the field of traffic and general
busi- 
ness outside of agriculture and grazing." 
In the case against Holliday, above quoted, the Indian to whom the intoxicat-
ing liquors had been given or sold was a citizen of the United States, having
been made so by treaty which provided for the dissolution of his tribal relations.
He was a voter in the State of Michigan ; but the Secretary of the Interior
and the 
Commissioner of Indian Affairs had decided that for certain purposes the
tribal 
relations of these citizen Indians should be recognized, and an agent was
ap- 
pointed over them. In passing on the case the court held inter alia that-
"No State can by either its constitution or other legislation withdraw
the In- 
dians within its limits from the operation of the laws of Congress regulating
* tradewith them; notwithstanding any right it may confer on such Indians
as 
electors or citizens." 
It also held that- 
" Whether any particular class of Indians are still to be regarded as
a tribe, 
or have ceased to hold the tribal relation, is primarily a question for the
politi- 
cal departments of the Government and if they have decided it this court
will 
follow their lead." 
755 


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