B–1

Appendix B:

Definitions

Aboriginal Areas. This term is used today to describe the historic and

prehistoric lands where a tribe(s) carried out food gathering or seasonal

activities or traded with other Indian peoples. These areas may be extensive

depending on the geographic terrain.

Aboriginal Rights. Aboriginal rights are based on aboriginal title, original

title, or Indian title, which is the possessory right to occupy and use the

area of land that Indians have traditionally used. Congress could extinguish such rights or title at will through treaty or otherwise. Individual

aboriginal rights were based on continuous actual possession by occupancy, enclosure, or other actions establishing a right to the land to the

exclusion of adverse claimants. For national forest managed lands such

possession must have predated the establishment of the National Forest.

Aboriginal Title (original or Indian title). The limited possessory right to

occupy and use the lands Indians traditionally used and governed before

non-Indian settlement. Under the Fifth Amendment of the Constitution,

these rights are extinguishable without compensation.

Allotted Lands—On Reservation. The Dawes Act, or General Allotment Act,

(1887) provided for dividing reservations into separate parcels to encourage

individual Indians in agricultural pursuits. Parcels were 160 acres for each

family or 80 acres per single person. Any remaining acres over the population allocation were deemed “surplus” and opened up for settlement by nonIndians. Under the Act, Indian-held lands declined from 138 million acres

in 1887 to 48 million acres in 1934. In 1934, the Dawes Act was superseded

by the Indian Reorganization Act.

Allotted Lands—Off Reservation (public domain allotments). These

public domain lands were set aside to fulfill a need to maintain recognition

of a specific group of Indian people. These are sometimes called “Public

Domain Allotments.” Nearly all these acres are held in trust status by the

Department of the Interior (DOI), and administered by the Bureau of Indian

Affairs (BIA).

Ceded Lands. This term was first used in the Treaty with the Wyandot,

1789. Since that time, many treaties have referred to land cessions made by

tribes to the United States. Most Federal agencies and Indian tribes prefer

to use the term “ceded lands” when describing areas where a tribe did...

“cede, relinquish, and convey to the U.S. all their right, title, and interest in

the lands and country occupied by them”...at treaty signing or when reservations were established. Ceded land references are qualified by the legal

definition of original tribal occupancy issued in 1978 by the U.S. Court of

Claims. In effect: “only lands actually owned by a tribe can be ceded to the
B–2

U.S.” This term is used interchangeably with “treaty boundary” described

elsewhere in the definitions.

Confederated Tribe. A body of separate and different tribes who operate

under one form of tribal government upon a reservation or Indian trust

land.

Consumptive Water Uses/Rights. Ground or surface water which is

diverted from its source and used for an activity and is not directly put back

into the aquifer or stream; used without returning it to a stream or well.

Federal Recognition. Acknowledgment of an Indian tribe as a government

entity that has a special relationship with the U.S. Government. This

relationship recognizes that Indian tribes receive some benefits or reserve

some rights not available to other citizens; for example, health and education benefits from the trust relationship or off-reservation hunting and

fishing rights related to treaties with tribal governments.

The basic requirements for attaining Federal recognition include the following in the form of a petition to the Secretary of the Interior:

• A statement of facts regarding the continued identity of a group as

“American Indian” or “Aboriginal” from historic times to the present

• Evidence that a group exists as a community separate from other

populations

• Evidence it has maintained political influence over its members

• A governing document such as a constitution

• An enrollment list of all members

• Not be involved in pending legislation regarding their status, or terminated by former congressional action

Federally Recognized Indian Tribes. Federally Recognized Indian Tribes

means an Indian group for which: (1) Congress or an executive order created a reservation for the group either by treaty (before 1871), statutorily

expressed, agreement by executive order, or other valid administrative

action; and (2) the United States has some continuing political relationship

with the group, such as providing services through the BIA.

Federal Reserved Water Rights. Water is reserved by the United States as

of the date when a Federal agency first established the purposes and intent

for which an Indian reservation was created. The Winters Doctrine contains

a description of the implied right to a water reserve on behalf of Federally

Recognized Indian Tribes.

Fee Title (Fee Simple Title). Absolute ownership of a land area unencumbered by any other interest or estate.

Indian Country. Broadly speaking, Indian Country is all the land under

supervision of the U.S. Government that has been set aside for the use of

Indians. This would include Indian reservations as well as other areas

under Federal jurisdiction and designated for Indian use. As a general rule,
B–3

state jurisdiction does not extend to Indian Country and, instead, tribal and

Federal law governs. If someone says, “The crime took place in Indian

Country,” this implies that tribal or Federal law governs the crime, and the

state has no jurisdiction (exception P.L. 280). Indian Country designation

“is the benchmark for approaching the allocation of Federal, tribal, and

state authority with respect to Indians and Indian lands.”

The term “Indian Country” was first used by Congress in 1790 to describe

the territory controlled by Indians. Today, a Federal statute concerning

criminal jurisdiction provides the Federal Government’s definition of this

term. The law, Title 18, U.S. Code, section 1151 (18 U.S.C. 1151), states—

“Indian Country”...means (a) all land within the limits of

any Indian reservation under jurisdiction of the United States

Government, notwithstanding the issuance of any patent,

and including rights-of-way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or

subsequently acquired territory thereof, and whether within

or without the limits of a state, and (c) all Indian allotments,

the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Proof that an area is Indian Country often involves complicated historical

facts; such proof is an issue of law to be decided by a judge rather than a

jury.

Section 1151 [above] identifies three areas as being “Indian Country:”

• First, Indian Country includes all lands within boundaries of an Indian

reservation, regardless of ownership. Therefore, land located within a

reservation but owned by a non-Indian is Indian Country. (There is an

exception to this rule, discussed below.) Even rights-of-way through

reservation lands, such as state or Federal highways, remain a part of

Indian Country. When the Federal Government sets aside land under

Federal supervision for Indians, the land becomes Indian Country. This

is true even if there is no official proclamation that a reservation is

being created, even if years go by before the tribe defends its property

interests, and even if the land is not Federally owned trust land.

• Second, Indian Country includes “all dependent Indian communities”

within the United States. A dependent Indian community is any area of

land which has been set aside by the Federal Government for the use,

occupancy or benefit of Indians, even if it is not part of a reservation.

The Pueblos of New Mexico, whose lands are owned by the tribes themselves but under Federal supervision, are an excellent example. Other

examples include tribal housing projects located on Federal land and

Federal schools operated for Indian children on Federal land. However,

predominant Indian use by itself will not create a dependent Indian

community. There must also be some evidence of Federal or tribal

control or supervision and an indication that the Federal Government

intended to set the area apart primarily for Indian use.
B–4

• Finally, Section 1151 includes as Indian Country all “trust” and all

“restricted” allotments of land, whether or not these allotments are

inside an Indian reservation. (A trust allotment is Federal land which

has been set aside for the exclusive use of an Indian, who is called the

“allottee.” A restricted allotment is land for which Federal approval

must be obtained before it can be sold, leased, or mortgaged, whether

the land is owned by the Federal Government or not. Even a “nontrust”

allotment outside the reservation is considered Indian Country for as

long as the allottee retains ownership. (A nontrust allotment is land

the Federal Government has given to an Indian with full rights of

ownership, as opposed to a trust allotment, ownership of which is

retained by the United States). If the Federal Government has eliminated a tribe’s reservation, but trust land still exists, either tribally or

individually held, this trust land is Indian Country.

To summarize, all land within an Indian reservation, even land owned by

non-Indians is Indian Country. In addition, trust and restricted Indian

allotments outside a reservation are considered Indian Country, and so are

dependent Indian communities.

There is, however, one exception to the rule that all land within a reservation is Indian Country. Privately owned land that can be classified as a

“non-Indian community” is not Indian Country for purposes of Federal

liquor laws. The state, rather than the tribe or the Federal Government,

has jurisdiction to regulate the introduction of liquor in non-Indian communities, even though these communities are within the boundaries of an

Indian reservation.

Indian Court. Any Indian tribal court or court of Indian offenses.

Indian Land. Any land in collective tribal holding or ownership for which

the Secretary of the Interior has a continuing trust responsibility to manage for the benefit of the respective tribe. In the past, this term described

certain parcels or areas where Indians lived and represented a smaller

concept than Indian territory.

Indian Reservation. Usually created by treaty document or an executive

order, this term refers to lands set aside for occupants’ use, and benefit of

American Indians and for other purposes. The primary intent of the United

States at treaty negotiations was to make way for Euro-American settlement and maintain (or secure) peace between Indian peoples and European

settlers. This land, described in metes and bounds, was put into a “trust”

status with the U.S. agency (later Department of the Interior, Bureau of

Indian Affairs) having the responsibility to administer reservation lands for

the use and benefit of Indian people, consistent with the intent of the

treaty. Some reservations were established after a peacekeeping treaty.

Indian Territory. These are unsurveyed lands that were recognized by the

Federal Government to be occupied or used by Indians. Prior to the U.S.

Constitution, lands occupied or used by American Indians were referred to

as “Indian Territory.” Historic documents dating back to the 16th century

refer to these unsurveyed regions as a “territory.”
B–5

Indian Tribe. Any American Indian or Alaska Native tribe, band, Nation,

pueblo, community, rancheria, colony, or group subject to the jurisdiction

of the United States, and recognized as possessing the powers of selfgovernment and meeting the provisions in 25 CFR 83.7 or those recognized

in statutes or treaties with the United States.

Minimum Instream Flows. Flows of water in a stream or river necessary to

maintain a fish population. Quantities are usually measured in cubic feet

per minute (CFM). This term is derived from Indian Water Rights litigation.

Nonconsumptive Water Uses/Rights. Water that is used within the

stream, a body of water, that passes through a biological system or other

use, is then returned to the original source at or near the original volume

or quantity. The operation of a fish hatchery is a nonconsumptive use of

water.

Nontrust Allotment. This is land the Federal Government deeded, in fee

simple title, to an individual Indian whereon there is no trust obligation by

the Secretary of the Interior (see trust allotments).

Open and Unclaimed or Unoccupied Lands. This term is also a trademark

of the treaties negotiated in the 1850’s. At the time of signing treaty documents, domestic use of horses and cattle was the main non-Indian lifestyle

in the American West and had been for a full century. The term applied to

public domain lands held by the United States that had not been fenced or

claimed through a land settlement act. Today, “open and unclaimed lands”

applies to lands remaining in the public domain (for the purposes of hunting, gathering foods, and grazing livestock or trapping). The courts have

ruled that National Forest System lands reserved from the public domain

are open, unclaimed, or unoccupied land, and as such the term applies to

reserved treaty rights on National Forest System land.

Powers of Self-Government. Means and includes all governmental powers

possessed by an Indian tribe: executive, legislative, and judicial; and all

offices, bodies, and tribunals by and through which they are executed,

including courts of Indian offenses.

Public Domain Land. This term describes any land ceded to the Federal

Government from the colonial states, and land acquired by the Federal

Government by purchase from or treaty with the Indians or foreign powers.

Recognized Title. Indian title that is authorized by treaty, statute, or

executive order. Recognized title rights are protected under the Fifth

Amendment to the Constitution; therefore, if extinguished, there is a right

to compensation.

Restricted Allotment. Land that must receive Federal approval before it

can be sold, leased, or mortgaged, whether the land is owned by the Federal

Government or not.

Sacred Site. Means any specific, discrete, narrowly delineated location on

Federal land that is identified by an Indian or Alaska Native tribe, or Indian

or Alaska Native individual determined to be an appropriately authoritative
B–6

representative of an Indian religion, as sacred by virtue of its established

religious significance to, or ceremonial use by, an Indian religion; provided

that the tribe or appropriately authoritative representative of an Indian

religion has informed the Federal agency of the existence of such a site.

Sovereignty. First addressed in the U.S. Constitution, (Article I, Section 8

and Article VI). For Indian tribes that have Federal recognition, this is the

inherent governmental power from which all specific political powers are

derived. Indian governmental powers, with some exceptions, are not powers

granted by Congress, but are inherent powers of a limited sovereignty that

have never been extinguished. Congress has the authority to limit or abolish

tribal powers. However, without congressional action, a tribe retains the

inherent right to self-government and no state may impose its laws on a

reservation (See also Tribal Self-Governance).

The Supreme Court first recognized the inherent right of tribal sovereignty

in an 1832 case, Worcester v. Georgia. Worcester decided the question of

whether the State of Georgia could impose its laws on the Cherokee Indian

Reservation, a reservation located within the state’s borders. In holding

that Georgia could not extend its laws within the reservation, the Court

stated:

Indian Nations (are) distinct political communities, having

territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those

boundaries, which is not only acknowledged, but guaranteed by the United States...Indian nations had always been

considered as distinct, independent political communities,

retaining their original rights, as the undisputed possessors of the soil from time immemorial...The Cherokee Nation,

then, is a distinct community, occupying its own territory,

with boundaries accurately described, in which the laws of

Georgia can have no force, and the citizens of Georgia, have

no right to enter, but with the assent of the Cherokees

themselves, or in conformity with treaties, and with the Acts

of Congress.

The Worcester Doctrine of inherent tribal sovereignty has undergone some

changes over the years, but its basic premise remains the same. An Indian

tribe is a distinct political government. Congress has the authority to limit

or even abolish tribal powers. Absent congressional action, a tribe retains

its inherent right to self-government, and no state may impose its laws on

the reservation. The Court reaffirmed this principle in 1991: “Indian tribes

are “domestic dependent nations,” which exercise inherent sovereign

authority over their members and territories. Moreover, in recent years

Congress has made a determined effort to strengthen tribal selfgovernment. As the Supreme Court remarked in 1983, Congress appears

“firmly committed to the goal of promoting tribal self-government, a goal

embodied in numerous Federal statutes.”

Traditional. The beliefs, acts, practices, objects or sites for the perpetuation of an Indian culture originating from or historically located at a specific
B–7

area. This may include cultural practices that are so interrelated with

spiritual activities that they cannot be separated from the land location.

Treaty. A legally binding agreement between two or more sovereign governments. With respect to American Indian tribes, a treaty is a document

negotiated and concluded by a representative of the President of the United

States and ratified by two-thirds majority vote of the U.S. Senate.

Treaty Boundaries. A modern term that applies to lands described within

the treaty document, usually outlining an area of land that was ceded to

the United States.

Treaty Rights. Tribal rights or interests, reserved in treaties, by Indian

tribes for the use and benefit of their members. Such uses are described in

the respective treaty document. Only Congress may abolish or modify

treaties or treaty rights.

Tribal Government. A written system of rules or a constitution adopted by

a tribal governing body that governs the actions and conduct of the general

membership of the tribe(s). It may include such activities as law and order

ordinances, tribal membership criteria, or regulations to govern the use of

Indian-owned natural resources in Indian Country; usually within the

bounds of an Indian reservation.

Tribal Self-Governance. First stated in modern terms by former President

Nixon in 1970 as “Self Determination,” this refers to the ability of Indian

tribal governments to make decisions that affect either the general tribal

population or tribal assets—a modern U.S. Indian policy that reinstates the

independent decisionmaking process of Indian tribal entities that had

existed before European contact. In 1982, Congress passed new authorities

whereby Indian tribes could sign a compact directly with the Secretary of

the Interior without involving the Bureau of Indian Affairs in the delivery of

Federal services. Using appropriations formerly sent through the Bureau of

Indian Affairs, Indian tribes can now prioritize their own expenditures of

Federal funds.

Trust Allotment. Federal land set aside for the exclusive use of an Indian,

who is the allottee. The Federal Government retains land ownership. Many

allotments are outside the bounds of Indian reservations and are called

public domain allotments.

Trust Land. Any land in collective tribal holding or individual ownership for

which the Secretary of the Interior has a continuing trust responsibility to

manage in a manner to benefit the respective tribe or individual. The most

common example is forested acres on a reservation. Some trust lands were

set aside as compensation for claims made against the Government, most

of which are off-reservation.

Trust Responsibility. This term has never been defined by the U.S. Congress, any President, or any Cabinet official. Generally, it is a set of principles and concepts outlining the responsibilities of the U.S. Government to

act as the trustee of Indian people and Indian-owned assets. The U.S.

Government, through the President, has certain responsibilities to protect
B–8

Indian property and rights, Indian lands, and resources. The trust responsibility may involve a fiduciary obligation in which the President, through

the Secretary of the Interior, acts as the trustee of Indian assets. Fulfilling

or redeeming a trust responsibility, can best be reflected or demonstrated

as a matter of action; a stream that was protected, a site that was maintained intact, a property right that has been left unaffected by a Federal

action. The writing of an environmental document is not an example of

fulfillment of a trust duty.

Usual and Accustomed Grounds and Stations (or Areas). This treaty term

was used by I.I. Stevens in 12 treaties in the Northwestern United States. It

describes lands adjacent to streams, rivers, or shorelines to which a

tribe(s) usually traveled or was accustomed to travel for the purpose of

taking fish. As this term applies to National Forest Systems lands, these

areas are outside reservation boundaries. Western Federal courts have

either referred to or defined the term when deciding lawsuits about the

extent of a tribe’s off-reservation treaty right to take fish. It has not been

found by the courts to include hunting, gathering, grazing, or trapping. It is

possible for “usual and accustomed areas” to extend beyond treaty area

boundaries and to overlap large areas of a neighboring tribe, based on the

specific treaty language. This designation has been found by the court to

create a property interest in the land, an encumbrance on the site that remains

regardless of land ownership.

Usufructuary. Having the legal right of using and enjoying the fruits or

profits of something belonging to another. A land-use right where title to

the land belongs to another person. A hunting right on National Forest

System lands is an example of a usufructuary right.

Vested Right. Rights so completely settled they are not subject to be

defeated or canceled by others. They cannot be interfered with by retrospective laws nor deprived of arbitrarily without injustice. An immediate or

fixed right to present or future enjoyment which does not depend on an

event that is uncertain. It is complete and consummated, and cannot be

divested without the consent of the owner. Fixed, established, and no

longer open to controversy.