not for the past. White v. United States (191 U. S. 545); Cameron v. United States (231 U. S. 710), This rule is particularly applicable where, as here, retroactive operation of the statute would result not only in divesting the county courts of Oklahoma of a jurisdiction exercised by them under authority of Congress over a long period of years, but to reimpose restrictions and withdraw from the taxing power of the State of Oklahoma a considerable area of land. An intent to accomplish such a far-reaching result doubtless would be plainly expressed. So far from expressing such an intent, the act of January 27, 1933, contains no indication of a purpose to change the status of the lands of these Indians under the prior laws either by reimposing restrictions theretofore removed or by shifting from the county court to the Secretary of the Interior the jurisdiction to approve conveyance of interests in such lands theretofore vested in full blood Indians. To the contrary, section 8, of the act contains a provision to the affect that no conveyance of any interest in the land of any full blood Indian heir shall be valid unless approved in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June, 1914. While the purpose of this provision appears to have been to change the function of the county courts in approving conveyances from a ministerial to a judicial act, the recognition thus given to the jurisdiction of those courts in the matter of approving conveyances by full blood heirs evidences a plain purpose on the part of Congress not to disturb the existing jurisdiction of such courts over lands acquired by full blood Indians prior to that enactment. In addition to this, the language employed in the proviso under consideration shows that Congress had in mind transactions occurring after the date of the enactment. Apropos of this is the declaration that "Where the entire interest in any tract of restricted and tax-exempt land * * * is acquired * * * by restricted Indians, such lands shall remain restricted and tax-exempt". This declaration obviously looks to the future and not to the past and discloses a plain intent on the part of Congress to preserve existing restrictions rather than to reimpose restrictions once removed or change the form of existing restrictions. These considerations lead to the conclusion that the proviso related only to lands acquired after the date of the enactment and not to prior acquisitions.

                                                                                                                                            NATHAN R. MARGOLD,

54 I.D. 401

M-27681                                                                                                                                                  March 30, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    On March 13 you referred to me for my consideration and opinion the Washington Pulp and Paper Corporation's application for reduction of the stumpage prices in the Makah tribal timber sale contract covering the Wa-ach timber unit.

    Allowance of the reduction applied for has been forestalled by the Solicitor's opinion of August 8, 1933 (M-27499). In that opinion the Act of March 4, 1933 (Public No. 435, 72 Cong.), was construed and given application in determining the legality of various modifications of existing timber sale contracts proposed or allowed subsequent to March 4, 1933. Included among these modifications was one of applicant's contract. On April 12, 1933, the applicant had applied for a reduction of the stumpage prices in its contract; and on July 7, 1933, the Commissioner of Indian Affairs had proposed to act favorably upon the application. The proposed action was in accordance with the method for stumpage price modifications provided in the contract itself. This contract method does not require consent of the Indians to price reductions effected thereby; and consent of the Indians to the proposed reduction of July 7, 1933, had not been obtained. The Act of March 4, 1933, in so far as pertinent here, provides:

    "That the Secretary of the Interior, with the consent of the Indians involved, expressed through a regularly called general council, and of the purchasers, is hereby authorized and directed to modify the terms of now existing and uncompleted contracts of sale of Indian tribal timber: * * *."

    " (1) The power to modify, with the consent of the Indians and of the purchasers, inelastic terms of the contracts, where no provision for change is included in the contracts or Regulations; and

    " (2) The requirement of the consent of the Indians to modifications permitted under the contracts or incorporated Regulations."

402                                                          DEPARTMENT OF THE INTERIOR                                MARCH 30, 1934

The act was construed to authorize any contract modification and to make the consent of the Indians a condition to any contract modification. "Any type of modification of a term of the contract can be made, but the consent of the Indians is a condition thereto." Consequently, the proposed modification of stumpage prices in applicant's contract was declared to be illegal.

    Applicant by his letter of February 12, 1934, to the Commissioner of Indian Affairs has petitioned for further consideration of its application of April 12, 1933, on the ground that the Act of March 4, 1933, should not be construed to require consent of the Indians to a stumpage price modification effected pursuant to express contract provision therefor.

    The opinion rendered herein requires, therefore, consideration of the statutory construction embodied in the Solicitor's opinion of August 8, 1933, with the object of determining whether the Act of March 4, 1933, was therein correctly construed and applied to applicant's contract.

    Such consideration leads to the conclusion that the construction and application of the act to applicant's contract, made in the Solicitor's opinion of August 8, 1933, raises a serious question as to the act's constitutionality. If the act admits of another construction which avoids the constitutional question, then under the applicable rule of statutory interpretation such other construction should be adopted. Consideration of the background and legislative history of the act and the language of the act itself leads to the conclusions that it does admit of another construction, and that this other construction not only avoids the constitutional question but also, without regard to the constitutional question, is the only proper construction of the act which can be made with reference to applicant's contract. These conclusions require the adoption of this other construction.

   Applicant's contract was executed prior to March 4, 1933, and pursuant to the Act of June 25, 1910 (36 Stat. 855-857). This 1910 act provides as follows:

    "Sec. 7. That the mature living and dead and down timber on unallotted lands of any Indian reservation may be sold under regulations to be prescribed by the Secretary of the Interior, and the proceeds from such sales shall be used for the benefit of the Indians of the reservation in such manner as he may direct: Provided,That this section shall not apply to the States of Minnesota and Wisconsin."

    "Upon the presentation by the Purchaser of detailed information, supported by affidavits by a certified public accountant and by the Purchaser, showing that the logging of the said Unit is being conducted at a loss, investigation will be made by forest officers under the directions of the Commissioner of Indian Affairs, for the purpose of ascertaining whether, under existing market conditions, the Purchaser is able, with efficient management, to earn a reasonable profit on the operation. If such investigation shall show to the satisfaction of the Commissioner of Indian Affairs that the operation will not, under efficient management, earn a reasonable profit, he may, in his discretion, relieve the Purchaser from any portion or all of the increase in price over the original contract stumpage price for such period as he shall consider necessary to protect the Purchaser from serious loss on account of adverse market conditions; Provided, that none of the stumpage rates will ever be reduced below the prices specified in the contract for the period ending March 31, 1928; and the Commissioner shall have authority to reimpose any part or all of the increase in prices at any time upon giving notice to the Purchaser, subject to review by the Secretary of the Interior."

    Acting pursuant to the contract provision, the applicant applied for a reduction of stumpage prices; and the Commissioner of Indian Affairs, having found that the contract prices were too high to allow applicant a reasonable profit, proposed on July 7, 1933, to make a reduction. This proposed modification of prices was, however, declared to be
 

403                                                             OPINIONS OF THE SOLICITOR                                   MARCH 30, 1934

illegal by the Solicitor's opinion of August 8, 1933; and applicant had to continue paying the stumpage prices which had been found by the Commissioner of Indian Affairs to be too high. Subsequently applicant sought modification by the statutory method, but failed to get the consent of the Indians involved. The automatic price increase provision of the contract (against the possible unfairness of which the provision for reduction was undoubtedly inserted) is still operative, and the stumpage prices found by the Commissioner of Indian Affairs to be economically unreasonable will on April 1, 1934, be increased twelve per
centum.

    To construe the Act of March 4, 1933, so as to deprive applicant of the administrative recourse which is one of applicant's contract rights, is to raise a serious question as to the act's constitutionality. It is very questionable whether the statute so construed meets the due process requirements of the Fifth Amendment to the Federal Constitution.

    It is a well established rule of statutory construction that a statute should not be given a construction which raises a serious question as to its constitutionality, if it admits of another construction which avoids the question.

    In the leading case of United States v. Delaware and Hudson Company (213 U.S. 366, 407, 408-1909), the Supreme Court of the United States announced this rule of statutory construction to be that,

"where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."

    "The action, if so construed (as contended for) would, at least, raise a grave and doubtful constitutional question. Under the settled practice, a construction which does so will not be adopted, where some other is open to us."

    Examination of the background and legislative history of the Act of March 4, 1933, shows that the primary legislative intent was to authorize modifications of those Indian timber sale contracts which did not specifically provide for price modifications. It does not reveal any intent to hedge modifications provided for by contract with the requirement of the Indians' consent thereto.

    Most of the Indian timber sale contracts do not contain the provision for reduction of stumpage prices which is contained in applicant's contract. Most of the Indian timber sale contracts do contain provisions for periodic and automatic increases of stumpage prices. When the economic depression overtook many purchasers with contracts under which the stumpage prices were high and were automatically becoming higher and under which there were no contract provisions for price reductions, then, because of the depressed lumber market, logging operations on many Indian timber units ceased. With the cessation of logging the income to the Indians from the sale of the timber ceased,

    The situation thus created was one in which contract modifications would work to the mutual benefit of the parties concerned. The purchasers, of course, would gain by any reduction. The Indians would gain by reductions of stumpage prices great enough to enable the purchasers to resume operations, since she contracts so modified would realize more income for the Indians than would cancellation of the existing contracts and execution of new ones in the depressed buyers' market.

    Since price reductions in those contracts without provision therefor would be to the advantage of the Indians, the Secretary of the Interior, in order to determine his authority in the premises, requested from the Comptroller General his decision on the following points:

    "(1) Has this Department authority to reduce the stumpage prices on contracts for the purchase of Indian timber where it appears that such reduction would be to the advantage of the Indians entitled to the proceeds from such sales, where the contract does not specifically provide that the Commissioner of Indian Affairs or the Secretary of the Interior may reduce prices?

    "(2) If the Department is not authorized to reduce prices as appears to it just and necessary, would the consent of the Indians of any tribe, as expressed by the majority vote of an assembled council, operate to authorize a revision of contracts, upon the theory that all par-
 

404                                                          DEPARTMENT OF THE INTERIOR                                MARCH 30, 1934

ties to the contract or having any beneficial interest in it have agreed to a revision?"

    Finally, the necessary legislative authority was granted by Congress in its Act of March 4, 1933.

    It is true that some statements of Congressmen appearing in the legislative history of the act are general, to the effect that the bill then being debated required consent of the Indians involved to any modification of Indian timber sale contracts. But these statements were made with reference to the modifications which the pending bill authorized and directed. Examination of the Congressional Record not only shows that the legislative debates on this act were primarily concerned with those contracts which did not provide for price reductions and with the proposed authority to modify those contracts, but also shows that there was no legislative intent to require consent of the Indians to modifications of stumpage prices effected pursuant to express contract provision therefor. Congress was concerned with creating authority to modify, not with conditioning authority already existing.

    It should also be noted that the memorandum of the Commissioner of Indian Affairs, which was incorporated into the reports of both legislative committees on Indian Affairs and which formed the basis of much of the legislative debates, was concerned only with the situation created by those contracts which made no provision for price reductions. This memorandum specifically refers to and quotes from the Comptroller General's decision of December 17, 1931, in explaining the necessity of legislation for relief from the situation created by high contract stumpage prices and the depressed lumber market. The limited scope of this Comptroller General's decision has been indicated above.

    The background and legislative history of the act, as indicated above, are not inconsistent with a statutory construction which leaves contract modifications effected pursuant to contract provision therefor unhampered by the act's required conditions.

    Although the language of the Act of March 4, 1933, is broad in scope, it does not purport to establish the conditioned authority and direction given therein as the exclusive means of modifying Indian timber sale contracts.

    It undoubtedly includes within its purview contracts which by their own provisions provide for modifications of stumpage prices. It cannot be doubted, I believe, that stumpage price modifications of such contracts effected by the statutory means would be valid. The statute does not, however, make its authority and direction exclusive. No such exclusiveness is expressed in the language of the act; nor is it implied. With reference to those contracts which contain provisions for reduction of stumpage prices, the act is to be construed as furnishing an additional means of modification.

    Different construction of the statute would do violence to its plain purport. It authorizes and directs the Secretary of the Interior, with the consent of the Indians involved and the purchasers, to modify then existing contracts. The act is not self-operating. It does not purport, by its own operation, to modify the contracts in any respect. Yet, if construed to require consent of the Indians to any modification and thereby to alter the price reduction provision in applicant's contract, then the act itself operates to modify the contract. In all probability no purchaser would consent to such a modification of his contract. In my opinion the act which merely authorizes and directs the Secretary of the Interior, with the consent of the Indians and the purchasers, to modify Indian timber sale contracts, cannot properly be construed to modify, by its own operation and without the consent of the purchaser, a contract provision for price reduction.

    For the reasons herein set forth, it is my opinion that the Commissioner of Indian Affairs may consider the Washington Pulp and Paper Corporation's application for reduction of the stumpage prices in its Makah tribal timber contract and may reduce said stumpage prices pursuant to the pertinent contract provision, notwithstanding the required conditions of the Act of March 4, 1933. The Solicitor's opinion of August 8, 1933 (M-27499), is so far as it is inconsistent herewith, is hereby overruled.

                                                                                                                                              NATHAN R. MARGOLD,

 Approved: March 30, 1934.
HAROLD L. ICKES, Secretary of the Interior.
 

405                                                            OPINIONS OF THE SOLICITOR                                          APRIL 5, 1934

54 I.D. 418
M-27631                                                                                                                                                       April 5, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Certain questions propounded by the Commissioner of Indian Affairs with reference to fishing rights claimed by Yakima Indians at Celilo Falls, Oregon, have been referred to the Solicitor for opinion. The questions are:

    "1. Whether, under their treaty, the Yakima Indians have a right to construct what is known as a "willow weir" across the Columbia River for the purpose of holding the salmon run, and

    2. Whether the Indians must comply with the Oregon State law requiring them to secure a license for the purpose of selling fish caught by them in the Columbia River and to pay a poundage tax on such sales."

    The treaty between the United States and the Yakama (usually designated Yakima) Nation of Indians was concluded January 9, 1855. (12 Stat. 951) Article 3 of that treaty provides that "the exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory." The nature of the fishing privilege thus reserved at usual and accustomed places outside the Yakima Reservation has been adjudicated by the Supreme Court of the United States.

    "It is not to be doubted that the power to preserve fish and game within its borders is inherent in the sovereignty of the State (Geer v. Connecticut, 161 U.S. 519; Ward v. Racehorse, 163 U.S. 504, 507), subject of course to any valid exercise of authority under the provisions of the Federal Constitution. It is not denied-save as to the members of this tribe-that this inherent power extended over the locus in quo and to all persons attempting there to hunt or fish, whether they are owners of the lands or others. The contention for the plaintiffs in error must, and does, go to the extent of insisting that the effect of the reservation was to maintain in the tribe sovereignty quoad hoc. As the plaintiffs in error put it: 'The land itself became thereby subject to a joint property ownership and the dual sovereignty of the two peoples, white and red, to fit the case intended, however infrequent such situation was to be.' We are unable to take this view. It is said that the State would regulate the whites and that the Indian tribe would regulate its members, but if neither could exercise authority with respect to the other at the locus in quo, either would be free to destroy the subject of the power. Such a duality of sovereignty instead of maintaining in each the essential power of preservation would in fact deny it to both.

    * * * We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to reserve sovereign prerogative or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather are we of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject nevertheless to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised. This was clearly recognized in United States v. Winans, 198 U.S. 371, 384, where the court in sustaining the fishing rights of the Indians on the Columbia River, under the provisions of the treaty between the United States and the Yakima Indians, ratified in 1859, said (referring to the authority of the State of Washington): 'Nor does It' (that is, the right of "taking fish at all usual and accustomed places") 'restrain the State unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised.' " Kennedy v. Becker, 241 U.S. 556, 562, 562-564 (1916).
 

406                                                         DEPARTMENT OF THE INTERIOR                                      APRIL 5, 1934

    Accord: United States v. Winans, 198 U.S. 317 (1905); People v. Chose, 252 Mich. 154, 233 N.W. 205 (1931).

    The first question propounded by the Commissioner of Indian Affairs concerns the use of a "willow wier," a device long employed by the Indians to obstruct a stream in such wise that the salmon run is directed through a particular channel. The Commercial Fisheries Code of Oregon makes it "unlawful for any person or persons to operate or maintain * * * any fish traps, wier * * * or any device * * * used in catching salmon * * * without first having obtained * * * a license therefor." Ore. Code Ann. (1930) Sec. 40-503. See also Sets. 40-309 ff. All funds derived from license fees are employed under the direction of the State Fish Commission in the preservation, propagation and protection of fish, the maintenance of hatcheries and related enterprises. Sec. 40-105. The classification of fishing devices is entrusted to the State Fish Commission. Sec. 40-115. It does not appear that any regulation promulgated by the State Fish Commission discriminates against Indian fishermen. Nor is it claimed that license to employ any device has been refused to Indian fishermen arbitrarily.

    Therefore, answering question 1, it is my opinion that the Treaty of 1885 does not reserve to the Yakima Indians the privilege of constructing a "willow wier" in the channel of the Columbia River at Celilo Falls in disregard of the State laws and regulations above mentioned.

    The second question concerns the right of the State to require the Indians to secure a license for the selling of fish and to require that they pay a poundage tax upon such sales. Such requirements are imposed by the Commercial Fisheries Code and operate equally upon all persons. Sets. 40-501, 40-515. The privilege reserved in the Treaty of 1855 is expressly defined as a "right of taking fish". It can not be construed as a exemption from the general laws of the State taxing and regulating the sale of fish. It does not appear that a license has been required for or a tax imposed upon the sale of fish by the Indians upon their reservation or at any other place under the jurisdiction of the United States. Answering question 2, it is my opinion that no Indian may lawfully sell fish at any place within the jurisdiction of the State of Oregon unless he shall have obtained a license for that purpose and shall pay such tax as the State may impose upon vendors. Of course any discriminatory treatment of Indian vendors in the administration of these regulations would be unlawful.

                                                                                                                                             NATHAN R. MARGOLD,

M. 27654                                                                                                                                                    April 19, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion upon a question arising out of an oil and gas lease owned by the Deep Rock Oil Corporation on land allotted to Lannie and Lewis Long, deceased full blood Creek Indians.

    The lease was made and approved under authority of section 2 of the act of May 27, 1908 (35 Stat. 312). The period of the lease, as set forth in the granting clause, is five years from the date of approval-November 3, 1920-"and as much longer thereafter as oil or gas is found in paying quantities." Section 2 of the lease provides for the payment to the lessor as royalty on oil of 12 1/2 per cent of the gross proceeds from sales. With respect to gas wells, section 2 of the lease further provides:

  "And the lessee shall pay as royalty on each gas producing well three hundred dollars per annum in advance, to be calculated from the

407                                                            OPINIONS OF THE SOLICITOR                                        APRIL 19, 1934

date of commencement of utilization: Provided, however, in the case of gas wells of small volume, when the rock pressure is one hundred pounds or less, the parties hereto may, subject to the approval of the Secretary of the Interior, agree upon a royalty, which will become effective as a part of this lease: Provided, further, That in case of gas wells of small volume, or where the wells produce both oil and gas or oil and gas and salt water to such extent that the gas is unfit for ordinary domestic purposes, or where the gas from any well is desired for temporary use in connection with drilling and pumping operations on adjacent or nearby tracts, the lessee shall have the option of paying royalties upon such gas wells of the same percentage of the gross proceeds from the sale of gas from such wells as is paid under this lease for royalty on oil. The lessor shall have the free use of gas for domestic purposes in his residence on the leased premises, provided there shall be surplus gas produced on said premises over and above enough to fully operate the same. Failure on the part of the lessee to use a gas producing well, which cannot profitably be utilized at the rate herein prescribed, shall not work a forfeiture of this lease so far as the same relates to mining oil, but if the lessee desires to retain gas producing privileges, the lessee shall pay a rental of one hundred dollars per annum, in advance, calculated from the date of discovery of gas, on each gas producing well, gas from which is not marketed or not utilized otherwise than for operations under this lease. Payments of annual gas royalties shall be made within twenty-five days from the date such royalties become due, other royalty payments to be made monthly on or before the 25th day of the month succeeding that for which such payments is to be made, supported by sworn statements." (Italics supplied.)

    The question presented is whether the gas well drilled and completed by the lessee in April, 1925, and the payments made by the lessee thereon, operated to extend the lease beyond the fixed period of five years.

    The lease contains no provision under which it may be extended beyond the fixed or primary period by a mere money payment and no such payment alone can operate to extend that period. See United States v. Brown, 15 Fed. (2d) 565. The $100 payment tendered by the lessee represents, under the terms of the lease, the consideration for retention of gas producing privileges in an unprofitable well, the gas from which is not marketed nor utilized other than for operations under the lease. The provision made for such payment, like many others contained in the lease contract, is operative only while the lease is alive without having any bearing whatsoever upon the duration of the lease. The duration of the lease is governed solely by the granting clause and that clause fixes the period of the lease at five years from the date of approval by the Secretary of the Interior "and as much longer thereafter as oil or gas is found in paying quantities." The five-year period expired in 1925, and, if the lease has been continued in force since that time, it is by reason of the provision "as much longer thereafter as oil or gas is found in paying quantities." That provision is a familiar one in oil and gas leases and is usually construed to mean not only that oil or gas must be discovered but that one or the other must be actually produced in paying quantities, otherwise, the lease expires by its own limitations. Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984; Detlor et al. v. Holland, 57 Ohio St. 492, N. E. 690; Gas Co. v. Tiffin, 59 Ohio St. 420, 54 N. E. 77; Cassel v. Crothers, 193 Pa. 359, 44 Atl. 446; Anthis v. Sullivan Oil & Gas Co. (Okla.) 203 Pac. 187; Collins v. Mt. Pleasant Oil & Gas Co. (Kans.) 118 Pac. 54; United States v. Brown, supra; Union Gas
 

408                                                          DEPARTMENT OF THE INTERIOR                                   APRIL 19, 1934

& Oil Co. v. Adkins, 278 Fed. 854, 856. Where, however, gas alone is discovered under a lease providing, not for the payment of a percentage of the gross proceeds from sales of oil or gas, but a fixed sum as a periodic rental for each gas well, there is after" clause is complied with by the completion of a well capable of producing gas, even though the product is not marketed or utilized. See Roach v. Junction Oil & Gas Co., 72 Okl. 213, 179 Pac. 934; Summerville v. Apollo Gas Co., 207 Pa. 334, 56 Atl. 876; Smith v. McGill,12 Fed. 2d 32. The lease involved in the case last cited was identical with that under consideration. Shortly prior to the expiration of the fixed period of the lease, the lessee completed a well with a daily production of 750,000 cubic feet. After marketing the gas for a few months, the gas ceased to flow through the pipe line because of lack of pressure. The lessee then drilled the well deeper and struck oil in paying quantities. During the period the lease was not producing,-a period of about three months-the lessee tendered payment of the fixed royalty of $300, but the lessor declined to accept the same and brought the suit to cancel the lease on the ground that the lease expired upon the cessation of production by its own terms. The court ruled that the finding of gas in paying quantities within the fixed period of the lease vested the lessee with a limited estate in the leased premises for further operations in accordance with the terms of the lease, and that such estate was not lost by a temporary suspension in marketing gas while the lessee was engaged in drilling the well deeper in an effort to find production in the lower sands. While such a temporary suspension of production was held not to effect a termination of the lease, the court recognized that the limited estate vested in the lessee by finding gas in paying quantities "might be lost by abandonment manifested by neglecting to produce oil or gas or to pursue the work of production or further development." See also Eastern Oil Company v. Coulehan, 65 W. Va. 531, 64 S. E. 836; Roach v. Junction Oil & Gas Co., supra; United States v. Brown, supra. In the latter case, it was held that the failure of a lessee under a lease like that under consideration to undertake development after disconnecting a gas well for a period of ten months was unreasonable and sufficient in itself to defeat a lease conditioned on oil or gas being found in paying quantities.

    Save for the year 1926 when some gas was sold from the well drilled by the Deep Rock Oil Corporation, that company has made no offer of payment of the prescribed royalty for a well producing gas in paying quantities. The payments of $100 were tendered under a provision in the lease relating to unprofitable wells and constitutes in effect an admission by the lessee that the well was not producing gas in paying quantities. For a period of nearly eight years, there has been no production whatever from the lease. No effort has been made by the lessee to market the gas nor has it spent a single dollar in further development work. The rule of temporary suspension announced in Smith v. McGill, supra, obviously has no application to such a case, and as it is an undisputed fact that production ceased at some time during the year 1926-27, it is my opinion, upon authority of the cases hereinbefore cited, that the lease then terminated by its own limitations.

    The holding over the lessee after termination of the lease can be regarded at the most as creating a tenancy at will (See Cassell v. Crothers, supra; Continental Oil and Refining Company, decided February 3, 1934, by the Circuit Court of Appeals, Tenth Circuit, but not yet reported). The holding over by the lessee having operated to deprive the lessors of the valuable privilege of leasing the lands to others, they are equitably entitled to retain the payments made by the lessee as a consideration for its continued occupation of the premises. Tenancies at will, under the laws of the State of Oklahoma (Sec. 7344 Compiled Okla. Stats. 1921) may be terminated upon thirty days' notice in writing. A proper regard for the interests of the Indian lessors suggests that such notice be given without further delay.

                                                                                                                                                    CHARLES FAHY,

M-27656 (Supp.)                                                                                                                                           May 7, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    The following question, propounded by the Commissioner of Indian Affairs, has been referred to me for opinion:

    "What effect, if any, has the mineral or non-mineral character of land within the Papago Indian Reservation upon the Indian right of surface occupancy?"

409                                                            OPINIONS OF THE SOLICITOR                                            MAY 7, 1934

    Decision upon this question is essentially supplemental to a Solicitor's opinion, dated March 7, 1934 (M-27656), in which surface and mineral rights within the Papago Reservation were considered. In the last paragraph of that opinion appears the conclusion "that in 1853 the United States acquired title to the land in question subject to an Indian right to occupancy of an area not exactly determined". Earlier in the opinion it was pointed out that under Spanish and Mexican law mineral deposits constituted a tenement distinct from the surface which covered them. It was not intended to suggest in any way that the Indian right of surface occupancy is limited to "nonmineral" lands. Indeed, no formal classification of the land seems ever to have been made.

    When the United States acquired the Papago country as a part of the Gadsden Purchase, the area now included within the Papago Reservation was in the possession of the Papago Indians. The fact of immemorial Indian occupancy of this entire area is not disputed. The courts have consistently recognized such possession as vesting a legally protected possessory interest in the Indians. "The Indians' right of occupancy has always been held to be sacred; something not to be taken from him except by his consent." See Minnesota v. Hitchcock, 185 U. S. 373 (1902). No reason appears for denying such recognition with respect to Indian country acquired from Spain or Mexico. Cf. Chouteau v.Molony, 16 How. 203 (U. S. 1853). Nor does any basis appear for limitation of Indian right of surface occupancy to nonmineral lands when the factual immemorial possession upon which their right is based has continuously embraced the entire controverted area, quite irrespective of the mineral or nonmineral character of any tract.

    The Indian right of surface occupancy was confirmed by Executive Order of February 1, 1917. That order reserved "all surveyed and all unsurveyed lands" within the controverted area for the benefit of the Indians, excepting only the "minerals therein contained". A similar general reservation with the same limited exception of minerals appears in the Act of February 21, 1931 (46 Stat. 1202) 3 which extended the reservation to its present area. It must be clear, therefore, that the Indian right of occupancy within the exterior boundaries of the Papago Reservation is quite independent of the mineral or nonmineral character of any land.

    It  has been contended that a regulation of this Departments approved April 19, 1916 (45 L. D. 537), recognizes a restriction of Indian surface rights to those lands which are nonmineral in character. In fact, that regulation does no more than to declare that certain general mining regulations, with minor modifications, shall be applicable to mining operations within the reservation as permitted by Executive Order of January 14, 1916-an order superseded by the presently effective Executive Order of February 1, 1917. The regulation is in form a recommendation by the Commissioner of Indian Affairs, approved by the First Assistant Secretary of the Interior. In his recommendation the Commissioner remarked that "ample protection will be given the Indians in the occupation and use of their nonmineral lands".

    No such dictum in an administrative recommendation may be used as a basis for any inference that this Department has ruled or should now rule that Indian surface rights are restricted to non-mineral lands. The Indian right of surface occupancy extends over the entire reservation, and the Executive Order and statute which created the present reservation so declared. Any situation in which there exists the possibility of a progressive abridgment of those surface rights, without the consent of the Indians and without compensation to them, is anomalous and "paradoxical". See statement of Senator Wheeler in Vol. 17, Hearings Before Subcommittee of Committee on Indian Affairs of the United States Senate (1929-1932) at 8413, 8414.

                                                                                                                                              NATHAN R. MARGOLD

    It has long been recognized that the Federal Government has constitutional authority to create corporations for the administration of proper Federal Functions. Thus the United States has issued charters of incorporation to national banks (McCulloch v. Maryland, 4 Wheat. 316 1819); interstate bridge companies (Luxton v. North River Bridge Company, 153 U.S. 528); interstate railroads (Pacific Railroad Removal Cases, 115 U.X. 2); and patriotic societies (e.g. American Legion; see U.S. Code Title 36, Chapter 3).

    The constitutional authority of the United States to incorporate an Indian tribe, for the more convenient administration of Indian affairs, is beyond question. See Lane v. Pueblo of Santa Rosa, 249 U.S. 110, upholding corporate character of pueblo, under 10 Stat. 575, and Laws of New Mexico 1851-1852, pp. 176, 418; and see 14 C. J. 97: "Quasi-
 

410                                                         DEPARTMENT OF THE INTERIOR                                       MAY 15, 1934

municipal corporations have been created by Congress within State limits upon Indian reservations, and the power of Congress so to do is understand to stand unquestioned, (Citing authorities)."

    In the exercise of the congressional power to charter Federal corporations, there is no constitutional restriction upon the method of incorporation that Congress may select.

    A corporation may be created either by a special act, whereby a legislative body charters a corporation directly, or by a general act authorizing some administrative officer to issue a charter of incorporation to a body of "incorporators" under prescribed conditions. Both methods of incorporation are equally valid and constitutional. Falconer v. Campbell, 8 Fed. Cas. No. 4620 (1840); Cranby Min. Co. v. Richards, 95 Mo. 106; Ames v. Port Huron Co., 6 Mich. 266; 1 Blackstone comm. 474. The choice between these two methods of incorporation is a question of legislative policy.

    The Wheeler-Howard Bill is, in effect, a general incorporation law for a defined class of Federal corporations, to wit, incorporated Indian tribes or communities. The proposed bill (April Committee Print) specifies the procedure to be followed in the issuance of a charter (Title I, Section 2 and Section 15); enumerates the corporate powers which may be conveyed by charter (Title I, Section 4 and Section 15); specifies those corporate powers which every charter is to contain (Title I, Section 3); and otherwise defines the status and powers of a chartered Indian corporation, in many detailed provisions of the bill. The Wheeler-Howard Bill is, therefore, similar to the general incorporation bills enacted by Congress for certain classes of corporation in the District of Columbia (26 Stat. L. 625) and for national banks generally (U.S. Code, Title 12, chap. 2).

    In earlier times, all corporations were created by special legislation. This practice is still commonly followed by Congress. The Federal corporations thus chartered have been few in number and varied in character. In the various States, the difficulties and delays incident to the process of incorporation by special act led to the passage of general laws for the chartering of various types of corporation (e.g. stock corporations, charitable corporations, religious corporations, and other membership corporations). In many cases the States have gone so far as to prohibit, by constitutional provision, all special incorporation acts.

    It is noteworthy that Congress likewise prohibited territorial Legislatures from granting special legislative charters (Rev. Stat. Sec. 1889; Comp. Stat. (1913) Section 3478).

    It is also worthy of note that when a general law for the Federal incorporation of interstate carriers was recommended by President Taft (in a special message to Congress, dated January 10, 1910), the opponents of that measure, while objecting to many of its features, raised no objection to the general character of the law. Thus Mr. Garret of Tennessee declared on the Floor of the House (February 7, 1910):

    "In passing, let me say, Mr. Chairman, that if we are to have any such incorporation, I quite agree that it should be under a general law, and only under a general law. There should be no special acts of Congress granting charters to particular associations for special purposes. * * * I have frequently protested against the passage of special bills granting charters of incorporation to District associations, simply on the ground that we ought not to pass such special acts. I am glad to see that we have fewer of these than formerly. If we are to have this general policy, by all means let it be under a general law, but let us consider well before we have it at all."

M-27690                                                                                                                                                     June 15, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether the Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755), in applicable to the Indians of the Swinomish Indian Reservation in the State of Washington.

    On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President (39 Stat. 1702). It recited that many species of birds in their annual migrations tra-
 

411                                                            OPINIONS OF THE SOLICITOR                                          JUNE 15, 1934

versed certain parts of the United States and of Canada and that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. The treaty therefore provided for specific close seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary measures for carrying out the treaty. The act of July 3, 1918, supra, entitled "An Act to give effect to the convention", prohibits the killing, capturing, or selling of any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with its terms to be made by the Secretary of Agriculture.

    The treaty and statute contain no provision excluding the Indians or Indian reservations from their operation. The treaty expressly mentions the Indians and makes concessions to them not extended to any other race. Article II,paragraph 1, dealing with close seasons, declares that the "Indians may take at any time scoters for food but not for sale". Paragraph 3 of the same article further declares:

    "The close season on other migratory non-game birds shall continue throughout the year, except that Eskimos and Indians may take at any season, auks, auklets, guillemots, murres and puffins, and their eggs, for food and their skins for clothing, but the birds and eggs so taken shall not be sold or offered for sale".

    It is urged that such other controlling law is found in the treaty under which the Swinomish Indian Reservation was created. That treaty, known as the Treaty of Point Elliott, was concluded on January 22, 1855, between the United States and the Dwamish, Suquamish, and other allied and subordinate tribes of Indians in Washington Territory. Article V of the treaty, relating to the fishing and hunting rights of the Indians, provides:

    "The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, that they shall not take shell fish from any beds staked or cultivated by citizens."

    The Migratory Bird Treaty Law, in so far as it restrains the Indians from taking and killing the class of game to which it applies, does not therefore conflict with the Indian treaty, and its validity, as applied to the Indians, depends upon the power of Congress to prescribe game laws restricting the Indians in their rights of hunting on the reservation lands. That Congress has such power appears to be beyond question. From the earliest traditions, the right of every individual to reduce wild game to possession has been subject to regulation and control by the lawmaking power. Geer v. Connecticut (161 U.S. 519). Primarily the State, both as trustee for the rights of all its people and in the exercise of its police power, has control over the right to reduce wild game to possession (United States v. Samples, 258 Fed. 479, 481). But this rule is without application to Indian reservations to which, according to repeated decisions of our Federal courts, the State's game and fish laws do not extend. In re Blackbird (109 Fed. 139); in re Lincoln (129 Fed. 247); United States v. Hamilton (233 Fed. 685). See also Peters v. Malin (111 Fed. 244), and State v. Campbell (53 Minn. 354; 55 N. W. 553). Congress has paramount authority over such reservations and the Indians occupying them (Lone Wolf v. Hitchcock, 187 U.S. 553, 565), and may, if it sees fit so to do, provide game
 

412                                                          DEPARTMENT OF THE INTERIOR                                    JUNE 15, 1934

laws to restrict the Indians in their natural and immortal rights of fishing and hunting. In re Blackbird supra. And even though such laws should conflict with the provisions of prior treaties with the Indians, there is respectable authority for upholding their validity. Thus in The Cherokee Tobacco Case (11 Wall. 616), it was held that a law of Congress imposing a tax on tobacco, if in conflict with a prior treaty with the Cherokees, was paramount to the treaty. And in Ward v. Race Horse (163 U.S. 504), the court ruled that the provision in treaty of February 24, 1869, with the Bannock Indians, whose reservation was within the limits of what is now the State of Wyoming, that "they shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon", was superseded by the provisions of the Enabling Act admitting Wyoming into the Union, and that the treaty provision did not give the Indians the right to exercise the hunting privilege within the limits of the State in violation of its laws.

    As hereinbefore pointed out, the treaty of December 8, 1916, is drawn in terms disclosing a clear intent on the part of the high contracting powers that the Indians as well as all other persons should be bound by the terms of the convention, and in the absence of any other legislation purporting to exempt them, it is my opinion that the Indians of the Swinomish Reservation are included within the prohibition of the treaty and the statute enacted for its enforcement.

                                                                                                                                        CHARLES FAHY,

Approved: June 15, 1934.
OSCAR L. CHAPMAN, Assistant Secretary.

M-27750                                                                                                                                                       July 14, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, my opinion has been requested upon a question arising out of the following circumstances:

    Under the provisions of the act of February 28, 1919 (40 Stat. 1206) as amended by the act of May 4, 1932 (47 Stat. 146), two tracts of land within the Capitan Grande Indian Reservation in California have been sold to the city of San Diego for the construction of a dam and reservoir in aid of conservation and storage of water. On one of the tracts is located an Indian cemetery containing the remains of about sixty Indians. Notwithstanding the fact that the cemetery area will be inundated, the Indians occupying the reservation appear to object to removal of the bodies and desire that the graves remain undisturbed. Section 4 of the act of February 28, 1919, supra, reserves to the Indians of the Capitan Grande Reservation the right
to

"reside on, occupy, and cultivate the lands of their present reservation up until within ninety days of the time when water for storage purposes will be turned into the reservoir to be constructed hereunder."

    The question thus presented is whether the Secretary of the Interior has authority to order the removal of the bodies without the assent of the interested Indians.

    It may be argued with some force that the acquisition of title by the city of San Diego divests the Federal Government of jurisdiction and that the city, as the owner of the soil, has succeeded to the position formerly occupied by the Federal Government as custodian of the bodies of the Indians buried in the cemetery. Under such view, the responsibility in the matter of the removal of the bodies would rest in the city of San Diego, and its authority in the premises would be governed and controlled by the laws of the State of California. It has been held, however, that a conveyance of land, without reservation of a family burying ground, neither confers any rights in the grantee to the bodies of the dead nor authorizes the grantee to remove the soil over them or to mutilate the graves. See 17 C. J. 1142 and cases there cited. Moreover, the right of the Indians to occupy the lands, notwithstanding the conveyance of title to the city, has not terminated and will not terminate until 90 days prior to the time water is turned into the reservoir. In the meantime, Federal jurisdiction necessarily continues with the right in the Secretary of the Interior to exercise all the powers which Congress has conferred upon him expressly or by necessary implication.

    It is established by the decision of the Supreme Court of the United States in Conley v. Ballinger
 

413                                                            OPINIONS OF THE SOLICITOR                                          JULY 14, 1934

(216 U.S. 84) that lands within an Indian reservation set aside for use of the cemetery remain tribal property subject to the legislative authority of Congress; that legislation providing for the sale of the cemetery lands and removal of the bodies buried there is valid; and that no individual member of the tribe having relatives buried in the cemetery has any right to have the cemetery remain undisturbed by the United States. Under this decision, it is clear that if authority exists in the Secretary of the Interior to remove the remains of the Indians buried on the lands conveyed to the city of San Diego, such removal may be effected irrespective of the assent of the interested Indians.

    The acts of February 28, 1919, and May 4, 1932, supra, under which the lands here involved were conveyed to the city of San Diego, contain no express provision authorizing the Secretary to remove the bodies of the Indians interred in the cemetery. But a conveyance of the lands to the city for water storage purposes is so utterly inconsistent with the continued use of the lands as a cemetery as necessarily to imply that the remains of the Indians were intended to be removed. The authority to remove them must rest in someone and ic is in keeping with other legislation relating to the Indians that such authority be vested in the officer charged with the supervision of the Indians and their affairs. See West v. Hitchcock (205 U.S. 80, 84); Rainbow v. Young (161 Fed. 835). Indeed, the authority of the Secretary to remove the remains may be reasonably regarded as included within the broad grant of powers made to the Secretary by section 3 of the act of February 28, 1919, supra. Section 3 reads in part as follows:

"* * * That the Secretary of the Interior shall require from the city of San Diego in addition to the award of condemnation such further sum which, in his opinion, when added to said award, will be sufficient in the aggregate to provide for the purchase of additional lands for the Capitan Grande Band of Indians, the erection of suitable homes for the Indians on the lands so purchased, the erection of such schools, churches, and administrative buildings, the sinking of such wells and the construction of such roads and ditches, and providing water and water rights and for such other expenses as may be deemed necessary by the Secretary of the Interior to properly establish these Indians permanently on the lands purchased for them; and the Secretary of the Interior is hereby authorized to expend the proceeds or any part thereof, derived from this grant for the purposes above enumerated, for the exclusive use and benefit of said Indians:"

    Removal of the Indians to and their permanent establishment on the lands to be purchased with the proceeds derived from sale of the reservation lands to the city of San Diego is the main object of the foregoing provision. In attaining that object the Secretary is not only authorized to expend the moneys for the specific purposes mentioned but for such other purposes as in his judgment of the Indians on the lands. A cemetery for burial of their dead, including the remains of those in the existing cemetery soon to be rendered unfit as a final resting place for the dead by a development in the public interest, appears to be such a real need that the expense of providing such a cemetery and the removal thereto of the remains of deceased Indians may be properly regarded as being within the general authority of the statute fairly construed. The authority existing, its exercise is not dependent upon assent of the Indians. Conley v. Ballinger, supra.

    In reaching this conclusion, I am mindful of the general policy of the law that the sanctity of the grave should be maintained and that a body once solemnly buried should remain undisturbed; also that the right to change the place of burial belongs primarily to the next of kin unless there is a surviving spouse, in which case he or she has the preference. But, as pointed out in Gray v. State (114 S. W. 635), these rights are not absolute and must and should yield when in conflict with the public good or where the demands of justice require subordination.

    The Commissioner of Indian Affairs advises that purchases of new lands for permanent homes for the Indians have not been completed. If, under such circumstances and in view of the exigencies of the situation, it is your judgment that the bodies should be removed, reinterment of the bodies, temporarily at least, in a suitable place on the diminished reservation, doubtless could be arranged; bearing in mind, of course, that the wishes of the interested Indians as to the final resting place of their dead should be ascertained and respected, if possible.

                                                                                                                                              NATHAN R. MARGOLD,

 Approved: July 14, 1934.
HAROLD L. ICKES, Secretary of the Interior.
 

414                                                          DEPARTMENT OF THE INTERIOR                                     JULY 19, 1934

MY DEAR MR. KNUTSON:

    I have received your letter of July 2 stating that it is your understanding that the act of June 11, 1934 (Public No. 301, 73d Congress), permits the sale of liquors, wines and beer in all portions of the so-called Indian territory in Minnesota, with the exception of the Red Lake Indian Reservation, and asking whether this interpretation is correct.

    By the treaties of September 30, 1855 (10 Stat. 1109) and February 22, 1855 (10 Stat. 1165), the Chippewa Indians ceded large tracts of land to the United States subject to the provision contained in article 7 of each treaty that the Indian liquor laws should continue in force throughout the ceded areas. The act of June 11, 1934 declares that the land so ceded by the two treaties shall cease to be considered as Indian country for the purposes of article 7, with two exceptions: First, the Indian liquor laws continue to apply "to the sale, gift, barter, exchange, etc., of liquors to ward Indians of the classes set forth in the act of January 30, 1897 (29 Stat. 506)"; and, second, the Indian liquor laws continue to apply "to the manufacture or sale of liquors on individual Indian allotments or other individual Indian-owned lands while the title to same is held in trust by the United States or while the same shall remain inalienably by the Indian without the consent of some governmental officer."

    As the act applies in terms only to the land ceded by the treaties of 1854 and 1855, your attention is called to the fact that both of the treaties reserve from the cession specific Indian reservations, such as Fond du Lac, Grand Portage or Pigeon River, Vermillion Lake, Bois Fort, Mille Lac, Rabbit Lake, Gull Lake, Pocagamon, Sandy Lake, Rice Lake, Leech Lake, Lake Winnibigoshish, and Cass Lake. None of these reservations were ceded by the treaties of 1854 and 1855; hence, it is my opinion that the lands within them are unaffected by the act of June 11, 1934. However, the Indian liquor laws will now apply only to those lands still remaining in tribal ownership or which may be embraced in individual allotments still held under trust or subject to restrictions against alienation. Lands, the Indian title to which has been completely extinguished, and over which the jurisdiction of the State for governmental purposes is full and complete would no longer be termed Indian country for the purpose of enforcing the Indian liquor laws.

    The White Earth Indian Reservation in Minnesota was created by the treaty of March 19, 1867 (16 Stat. 719), on lands which had been ceded to the United States by the treaty of February 22, 1855. This reservation, therefore, comes within the terms of the act of June 11, 1934 and, with the exceptions noted above, the Indian liquor laws no longer apply.

    The Red Lake Indian Reservation is not within the areas ceded by the treaties of 1854 and 1855, and the act of June 11, 1934 is without application to that reservation. None of the lands within the reservation have been allotted and the Indian liquor laws continue in full force and effect thereover.

    The second paragraph of the attached letter to the Superintendent of the Fort Totten Indian Agency does not appear to be sufficiently responsive to the question of whether the Indians under his jurisdiction are subject to the State per capita school tax. I suggest that the paragraph be revised to read as follows:

    "The statute quoted in Mr. Gilbertson's letter subjects residents of the State of North Dakota twenty-one years of age or over to a per capita school tax (Session Laws of 1931, Chapter 247, page 423). Section 6 of the act of May 8, 1906 (34 Stat. 182), expressly declares that until the issuance of fee simple patents all allottees holding trust patents shall be subject to the exclusive jurisdiction of the United States. As exclusive jurisdiction of necessity means the exclusive right to legislate (Surplus Trading Co. v. Cook, 281 U.S. 647, 652), the State of North Dakota is clearly without authority to tax those Indians who have not received fee simple patents. Section 6 of the act of 1906 further declares, however, that Indians to whom fee simple patents have issued shall have the benefit of and become subject to the laws, both civil and criminal, of the State or territory in which they may reside. The Indians in your jurisdiction to whom fee simple patents have issued have, therefore, been subjugated to the general laws of the State of North Dakota,

415                                                            OPINIONS OF THE SOLICITOR                                          JULY 26, 1934

including, of course, the law imposing a per capita school tax upon the residents of that State."

    You have asked my advise as to whether the attached contract by which the Snake or Paiute Indians of Burns, Oregon, employ Father Peter Huel to represent them in the matter of formulating and presenting their claims against the United States, should be approved.

    The contract provides for payment of compensation to Father Huel of not to exceed 10 per cent of the amount recovered, plus necessary actual expenses to be paid from the recovery. The contract further provides for the employment by Father Huel of such assistants, including attorneys, as he may select, the compensation of such assistants and attorneys to be paid by him and not the Indians. Under this provision it appears that neither the Indians nor the Department would have anything to do with the selection of the attorneys employed.

    The contract is executed by two delegates selected by a council called at Burns, Oregon, on the 2d day of February, 1933. Some affirmative showing that the two delegates were selected by a representative body of the Indians should be required. The present record continues no such affirmative showing.

    There is no legal objection to approval of the contract, provided it meets the requirements of Section 81, Title 25, United States Code. An examination of the contract discloses that two essential requirements of the statute have not been met.

    1. The contract has not been executed by Father Huel before a judge of a court of record.

    2. The period of the contract, as set forth therein, is five years from the date of approval of the Secretary of the Interior "and as much longer as may be necessary to complete the business provided for herein". The quoted phrase converts the period of the contract into an indefinite term and this is in violation of the provision in the statute that such a contract "shall have a fixed limited time to run which shall be distinctly stated."

    The contract is further defective from an administrative viewpoint in that it fails to contain the usual provisions subjecting conduct of the case to the supervision and direction of the Commissioner of Indian Affairs and the Secretary of the Interior and prohibiting compromise or other settlement without the Secretary's approval.

    It has been held by the Supreme Court that, as distinguished from lobbying in the odious sense, professional services before Congress and its committees, individual Representatives and Senators, intended to establish just and legitimate claims of the Indians and to secure such legislation by Congress as may be needed for attainment of the object sought, are legitimate and proper. See Winton v. Amos, (255 U.S. 373, 392, 393). Under the terms of the contract under consideration, such professional services are to be provided by Father Huel, himself not a lawyer, neither the Indians nor the Department having any voice in the selection of the persons to perform the services. Whether the needed services should be provided in this way or not presents, of course, a question of policy and not law. I am not sufficiently informed as to the facts or circumstances to venture a definite opinion upon the propriety of approving this particular contract-this is a matter for administrative determination. My general view is, however, that the better policy would be to confine approval to contracts with reputable attorneys qualified by experience and training to perform the highly specialized services required in the prosecution of
Indian tribal claims.

    If it should be your desire to approve the employment of Father Huel and retain control over the selection of attorneys, this could be accomplished, of course, by amending the contract to provide that the selection of attorneys shall be subject to the approval of the Commissioner and the Secretary.

M-27728                                                                                                                                                       July 26, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether the Crystal Creek Logging Company timber sale contract on the Crooked Creek unit, Klamath Indian Reservation, is eligible for modification under the act of March 4, 1933 (47 Stat. 1568), as amended.
 

416                                                          DEPARTMENT OF THE INTERIOR                                      JULY 26, 1934

    The question of eligibility has been raised because a suit was prosecuted to judgment against the bonding company on the penal bond given by the purchaser, Mr. J. M. Bedford, doing business as the Crystal Creek Logging Company, to secure performance of the contract, an attempt being made to join Mr. Bedford as codefendant in the suit which was commenced after default on an apparent abandonment of the contract by the purchaser. Whether the contract is eligible for modification as a "now existing and uncompleted" one within the meaning of the statute in view of these facts is the question to be answered herein.

    The contract was made between the Superintendent of the Klamath Reservation, for and in behalf of the Klamath Tribe of Indians, and Mr. J. M. Bedford, doing business as the Crystal Creek Logging Company. The contract, together with a $10,000 penal bond with the Metropolitan Casualty Insurance Company of New York as surety, was approved by the Assistant Secretary of the Interior on October 20, 1926. The contract is for the purchase of 40 million feet of timber, five million to be cut before March 31, 1928, and five million each 12 months thereafter until the operation is completed. The timber is to be paid for on an increasing price scale, with a basic price of $8 per thousand feet of yellow pine timber. The contract also provides for advance payments on certain contracts for the purchase of timber on Indian allotments within the logging unit.

    Prior to June 30, 1928, only 1,742,450 feet of timber had been cut and no work has been done since then. By December 3, 1929, Mr. Bedford was in arrears $14,435.48 in advance payments on allotment contracts; and $35,936.80 are now due and delinquent on these contracts. On May 22, 1929, Mr. Bedford asked to have the contract canceled. On June 10, 1929, the Department of the Interior notified the surety company that the bond would be forfeited because of the defaults. However, on October 29, 1929, at the instance of Mr. Bedford, the Department gave its assent to a proposed assignment of the contract to one G. C. Grimmett. This assignment was not consummated.

    Suit on the bond was recommended by the Department on June 24, 1930, and the Department of Justice filed a complaint on or about December 2, 1930, naming Mr. Bedford and the surety company as defendants. The complaint demanded damages in the sum of $10,000 setting forth breaches of the contract and of the terms of the bond. Service of process was not made on Mr. Bedford, but judgment on the bond for the full amount of the penalty was obtained against the surety company on March 13, 1934. Whether this judgment has been appealed from is not shown in the file; but the United States District Attorney in charge of the case has expressed an opinion that one would be taken by the surety company.

    From Mr. Bedford's first default until December 24, 1931, the Klamath Reservation Superintendent continued to attempt collection of the amounts due on the contract. On the latter date he was advised not to attempt collection while the suit was pending.

    On May 2, 1934, Mr. Bedford submitted an application seeking to have his contract modified by the Secretary under authority given by the act of March 4, 1933. The statute provides in part:

    "That the Secretary of the Interior, with consent of the Indians involved, expressed through a regularly called General Council, and of the purchasers, is hereby authorized and directed to modify the terms of now existing and uncompleted contracts of sale of Indian tribal timber."

    Although the complaint filed in the suit named Mr. Bedford and the surety company as defendants and asked for damages for breaches of the terms of the contract and the bond, because Mr. Bedford was not served, judgment was entered only against the surety company and only forthe breach of the terms of the bond. That this judgment did not terminate the contract between the Government and Mr. Bedford is clear, for the contract and bond are separate agreements. This judgment on the bond would not preclude an action for damages on the contract, at least insofar as such damages would exceed the recovery had on the bond; and if another action would lie on the contract it cannot be said to be terminated. Cramp and Co. v. Doughty (98 Atl. 260, New Jersey). No Federal cases appear to be directly on this point, but the reasonableness of the rule indicates that it would be followed. In this case, therefore, judgment on the bond against the surety company has no effect on the status of the contract as an existing one.

    The attempt to sue Mr. Bedford for damages likewise did not terminate the contract. Rather this was an affirmation of it, for a damage action must be predicated upon a contract. Wigent v. Marrs (90 N.W. 423); Williston on Contracts, Section 1301. Had there been a recision of the contract there could have been no recovery of damages. Heagney v. J. I. Case Co. (96 N.W. 197); McCormack Machinery Co. v. Brown (98 N.W. 697). If there is any recovery after a recision such
 

417                                                            OPINIONS OF THE SOLICITOR                                          JULY 26, 1934

is not in the nature of damages, but is an attempt to put the parties in their original position. Williston on Contracts, Sections 1454 and 1455. Had the action against Mr. Bedford been carried to final judgment there would have been a merger of the contract in that judgment. Mason v. Eldred (6 Wall. 231); Hamer v. New York Railways Company (244 U.S. 272). In such event the contract would cease to exist. Here, however, because no service was made on Mr. Bedford, no such result could obtain.

  Indetermining whether the acts of the parties subsequent to default by Mr. Bedford terminated the contract, a distinction should be noted between existing, though breached, contracts and terminated contracts. A contract remains a contract even though a party has defaulted in performance thereof. Williston's treatise on contracts supports this conclusion, Williston on Contracts, Section 1302:

    "Neither where the plaintiff's excuse for his own nonperformance is the defendant's actual breach of the contract, nor where that excuse is a prospective breach because of repudiation does the plaintiff terminate the contract, merely by availing himself of his excuse. The contract still exists, but one party to it has a defence and an excuse for nonperformance."

    In view of the foregoing, it is my opinion that the contract between the Government and Mr. Bedford, though broken, is now existing within the meaning of the act of March 4, 1933, as amended. It is, therefore, eligible for modification by the Secretary pursuant to statutory authority.

                                                                                                                                            NATHAN R. MARGOLD,

54 I.D. 546

M-27744                                                                                                                                        Opinion, July 26, 1934

    A contract must be viewed and interpreted with reference to the nature of the obligations between the parties and the intention which they have manifested in forming them, and, once ascertained, the intention of the parties must be given effect, sacrificing, if necessary, the literal meaning in order that the major purpose may not fail.

    A provision in a contract between an Indian tribe and a logging company required that before a reduction could be made in the stumpage price paid to the Indians it must be established that the logging "is being conducted" at a loss. Held, That by the use in the contract of the words "is being conducted" it was not intended that the means of proof should be limited to logging then and there actually being performed, but that it would be permissible to establish by other means that logging could not be conducted on the land at a profit unless a reduction was made in the price to be paid the Indians.

    The Algoma Lumber Company having made application to the Commissioner of Indian Affairs for a reduction in stumpage prices under its contract for the purchase of timber on the Antelope Valley Unit of the Klamath Indian Reservation, you have requested my opinion as to the authority of the Commissioner in the premises.

    The contract was approved by the Secretary of the Interior on September 13, 1923. It provides for basic prices of $3.75 per thousand feet of yellow pine, $1.50 per thousand feet of Douglas fir and incense cedar, and .75 per thousand feet of all other species of timber. The contract further provides for automatic increases in prices over successive three-year periods beginning April 1, 1928, and under this provision the prices for the period beginning April 1, 1934 are $5.457, $2.183 and $1.091 per thousand feet, respectively, on the species of timber mentioned above. The contract requires minimum annual cuts of timber, but under authority conferred by the contract the company has been relieved from such annual cutting requirements.

    It appears that the Algoma Lumber Company has heretofore sought price reductions under the
 

418                                                           DEPARTMENT OF THE INTERIOR                                     JULY 26, 1934

act of March 4, 1933 (47 Stat. 1568), as amended, which act permits modifications of contracts by the Secretary of the Interior with the consent of the purchaser and the Indians involved. The Klamath Indian Council, however, refused to consent to a reduction in price below $4 per thousand feet for yellow pine. In my opinion of March 30, 1934 (see page 401), it was held that the act of March 4, 1933, did not preclude the Commissioner of Indian Affairs from granting price reductions pursuant to express contract provisions therefor. In conformity with that opinion the Algoma Lumber Company now petitions the Commissioner of Indian Affairs for relief under the following provisions of its contract:

    Upon presentation by the Purchaser of detailed information supported by affidavits by a certified public accountant and by the Purchaser, showing that the logging of the said unit is being conducted at a loss, investigation will be made by forest officers under the direction of the Commissioner of Indian Affairs, for the purpose of ascertaining whether, under existing market conditions, the Purchaser is able, with efficient management, to earn a reasonable profit on the operation. If such investigation shall show to the satisfaction of the Commissioner of Indian Affairs that the operation will not, under efficient management, earn a reasonable profit, he may, in his discretion, relieve the Purchaser from any portion or all of the increase in price over the original contract stumpage price for such period as he shall consider necessary to protect the Purchaser from serious loss on account of adverse market conditions: Provided, That none of the stumpage rates will ever be reduced below the prices specified in the contract for the period ending March 31, 1928; and the Commissioner shall have authority to reimpose any part or all of the increase in prices at any time upon giving notice to the Purchaser, subject to review by Secretary of the Interior.

    The literal language requiring presentation of information showing loss from logging the contract unit, standing alone, would deprive the Commissioner of authority to grant relief to the Algoma Lumber Company from excessive price increases however much the company might otherwise be entitled to such relief. But particular words may not be isolatedly considered. The whole contracts must be viewed and interpreted with reference to the nature of the obligations between the parties and the intention which they have manifested in forming them. United States v. Stage Co. (199 U.S. 414). As stated by Mr. Justice Bradley in Canal Co. v. Hill (15 Wall. 94, 99):

    We should look carefully to the substance of the original agreement * * * as contra-distinguished from its mere form, in order that we may give it a fair and just construction, and ascertain the substantial intent of the parties, which is the fundamental rule in the construction of all agreements.

419                                                             OPINIONS OF THE SOLICITOR                                    AUGUST 3, 1934

    Viewing the contract provision under consideration as a whole, it is at once apparent that the major purpose of the parties was to confer upon the Commissioner of Indian Affairs authority to relieve the purchaser from losses occasioned by the conjunction of adverse market conditions and the automatic price increases. It is incredible that the parties have intended to make a showing of actual loss upon the particular contract unit a condition precedent to the granting of relief. So to hold would be to give controlling effect to inapt language of relative unimportance, with the result that the major purpose of extending relief to the purchaser from excessive price increases is defeated. This is not permissible under the authorities cited above. The condition precedent to the granting of relief is that the Commissioner of Indian Affairs shall find that the purchaser is not able, with efficient management, to earn a reasonable profit on the operation. This is to be determined, not from the preliminary showing made by the purchaser, but by the independent investigation to be made under the direction of the Commissioner. Extensions of time within which to operate having been made under express authority of the contract, the information presented by the purchaser as a basis for the Commissioner's investigation must, of necessity, be taken from sources other than operations on the contract unit. As it is possible for the Commissioner to ascertain with reasonable certainty the prospective costs of operations on the unit from such other comparable sources, no reason is seen why information of that nature may not be accepted as a basis for the Commissioner's investigation. The obvious purpose of the contract provision was to have before the Commissioner a prima facieshowing that the purchaser is entitled to relief, and in the absence of operations on the contract unit, this purpose will be satisfied equally as well by the presentation of information from other comparable sources.

    Construing the contract provision under consideration as a whole and in the light of its obvious purpose, it is my opinion that the statements submitted by the Algoma Lumber Company of operations on its private holdings adjoining and comparable to the Antelope Valley Unit may be accepted by the Commissioner of Indian Affairs as a basis for investigation and determination of the facts as to whether the company is entitled to relief. The extent of the relief, if any, to be granted is, of course, a matter for administrative determination.

Approved: July 26, 1934.
T. A. WALTERS, First Assistant Secretary.

54 I.D. 555
M-27700                                                                                                                                                    August 3, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to whether a will executed by Shaday or Edwin Green as the sole heir of Joseph Green, Jr., a deceased Chippewa allottee of the Bad River Indian Reservation in Wisconsin, operated to remove the restrictions against alienation on 80 acres of land allotted to the deceased allottee and described as the N1/2 NW1/4 Sec. 27, T. 47, N., R 2 W.

    The allotment was made under the provisions of the treaty of September 30, 1854, between the United States and the Chippewa Indians of Lake Superior and the Mississippi (10 Stat. 1109). Article III of the treaty conferred authority upon the President of the United States to issue patents to the Indians for the lands allotted thereunder "with such restrictions of the power of alienation as he may see fit to impose." In pursuance of this authority a patent issued on June 20, 1889, conveying the above-described land to Joseph Green, Jr., and his heirs in fee, subject, however, to the restriction that the allottee and his heirs "shall not sell, lease, or in any manner alienate the said tract without the consent of the President of the United States."

    The allottee died February 4, 1893, intestate, leaving as his sole heir at law his father, Shaday, or Edwin Green, a Chippewa Indian of the Bad River Reservation. June 2, 1906, Shaday or Edwin Green executed a will by which he devised the land under consideration in equal shares to his grandson, Joseph E. Green, and his granddaughter, Agnes E. Green. The testator died April 8, 1909, and his will after admission to probate in the County Court of Ashland County, in 1918, was presented to and approved by the President of the United States on August 18, 1919. This will, according to a familiar rule, became effective on the date of the testator's death in 1909 and the subsequent approval of the President related back and took effect as of that date.

    By Section 2 of the act of June 25, 1910 (36 Stat. 855), as amended by the act of February 14, 1913 (37 Stat. 678, 679), Congress authorized any person over the age of 21 years having any right, title or interest in land held under a trust or other patent containing restrictions against alienation to dispose of the same by will. The act provides
 

420                                                         DEPARTMENT OF THE INTERIOR                                 AUGUST 3, 1934

that no will so executed "shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior" and declares that the "approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period." October 29, 1921, the Solicitor for this Department held that this statute applied to wills executed by Chippewa Indians devising lands allotted in severalty under the provisions of the treaty of 1854, and ruled that such a will did not remove the restrictions against alienation imposed by that treaty (48 L. D. 472). From a reading of that opinion, however, it is apparent that the Solicitor was there dealing with wills executed by Indians who died subsequent to the enactment of the act of June 25, 1910, as amended, and not with wills of Indians who died testate at some prior date. To hold that the statute applies to this latter class of wills is to give the statute retroactive operation. Retroactive laws are not favored, and unless the intention that a statute is to have retroactive operation is clearly evidenced in the statute and its purposes, it will be presumed that it was enacted for the future and not for the past. White v. United States (191 U.S. 545); Cameron v. United States (231 U.S. 710). The act of June 25, 1910, as amended contains nothing express or implied indicating any intention on the part of Congress to embrace within its terms the will of an Indian who died prior to the enactment. To the contrary, the statute deals only with persons then alive or who might thereafter come into being, and confers upon them the authority to make a testamentary disposition of their restricted property subject to the conditions prescribed. This obviously excludes from the operation of the statute persons not then in being.

    As hereinbefore pointed out, the will of Shaday or Edwin Green became effective on the date of the testator's death in 1909. The effect of the will and the power to make it are governed and controlled by the law then in force. There was then no statute in existence expressly dealing with the making of wills by the Chippewa Indians, but it does not follow that there was a lack of testamentary power. While it has been held in certain cases that an Indian was without the power to dispose of his allotted lands by will in the absence of legislation by Congress permitting it, such cases are without application here because based upon statutes containing an absolute inhibition against alienation so that the allottee was unable, with or without approval of the President or the Secretary of the Interior, to make any disposition whatever of his lands. See United States v. Zane, 4 Ind. Ter. 185, 69 S. W. 842; In re: House's Heirs,132 Wis. 212; Taylor v. Parker, 235 U.S.42. The restrictions imposed under authority of the treaty of 1854 were not absolute. The inhibition extended only to such forms of alienation as failed to receive the approval of the President of the United States. Under the well settled rule that the word "alienation" includes the disposition of real estate by will (Hayes v. Barringer,168 Fed. 221, 224), it appears to be beyond question that the allottee or his heirs could make a valid testamentary disposition of the allotted lands with the approval of the President.

    Regarding the effect of the will as removing restrictions, it appears that the Commissioner of Indian Affairs by letter approved by the First Assistant Secretary of the Interior on October 5, 1933, advised the Superintendent of the Lac du Flambeau Agency that the approval of the will of Shaday or Edwin Green by the President of the United States did not operate to terminate the restrictions against alienation and that it was the purpose to recover possession of the land for the devisees through a suit to clear title, if such course should prove to be necessary. The Commissioner now states:

    "An attack upon the validity of conveyances made since approval of the will in this case involves changing an administrative ruling which has been in effect, it is believed, over a period of 30 years or more. During that period we have consistently held that disposal of an allotment by will is an alienation within the meaning or the provisions contained in the restricted fee patents issued to the Chippewa Indians under the treaty of 1854, and that approval of such wills by the President of the United States is effective to remove all restrictions against alienation of such lands in the hands of the devisees. * * *

    No record has been kept of the number of Chippewa allotments which have been alienated by wills approved by the President. It is safe to say, however, there are a large number of such wills and that in most cases the devisees have sold or encumbered their interests. These conveyances have not received the approval of the Department or of the President, for in the few cases in which the instruments of conveyance have been submitted for approval they have been returned to the parties unapproved with the explanation that the restrictions had been removed by approval of a will."

421                                                             OPINIONS OF THE SOLICITOR                                     AUGUST 6, 1934

appears to be removed by the decision of the Supreme Court of the United States in La Motte v. United States (254 U.S. 570). In that case the question of whether a will made under authority of Section 8 of the act of April 18, 1912 (37 Stat. 86), by a member of the Osage Tribe of Indians in Oklahoma devising his restricted allotted lands to incompetent members of the tribe, conveyed the title to them free from restrictions, was squarely presented and decided. There, as here, the authorizing statute was silent as to the effect of the will upon the restrictions. Holding that the restrictions were removed, the court said:

    "This provision is broadly written, is in terms applicable to restricted lands and funds, and enables the Indian to dispose of all or any part of his estate by will, in accordance with the state law, if his will be approved by the Secretary. True, it does not say that a disposal by an approved will shall put an end to existing restrictions, but that is an admissible, if not the necessary, conclusion from its words. After the enactment the Secretary of the Interior construed it as having that meaning, and it was administered accordingly in, that department up to the time of this suit. And that Congress intended it should have that meaning is at least inferable from a general act of the next session respecting wills by Indian allottees and their approval by the Secretary (c. 55, 37 Stat. 678); for that act, while providing that 'the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period,' expressly excepted the Osages from its reach. These matters apparently were not brought to the attention of the courts below. We regard them as of sufficient weight to put the question at rest."

    Neither the will of Shaday or Edwin Green nor the presidential approval thereof contains any provision purporting to preserve the restrictions against alienation. In the absence of such provision and upon authority of the cases just cited, it is my opinion that the will conveyed title to the devisees free from all restrictions. The administrative ruling of October 5, 1933, is, therefore, in error and should be recalled and vacated.

                                                                                                                                              NATHAN R. MARGOLD,

M-27788                                                                                                                                                     August 6, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    July 7, 1933, the Department approved the employment of Leahy, Macdonald and Files, attorneys, for the purpose of defending Robert Smith, a restricted Osage Indian, in litigation before the Oklahoma State courts arising out of marital entanglements in which Smith had become involved. One suit, instituted by Juanita Wilson Smith, charges that Smith entered into a bigamous marriage with her, committed assault and battery, etc., and prays for recovery of damages in the amount of $65,000. The attorneys for Smith appear to have been successful in obtaining an annulment of the earlier marriage giving rise to the charge of bigamy and also filed a divorce action on behalf of Smith against Juanita Wilson Smith, alleging desertion. Stipulations for the settlement of the pending damage suit and the divorce suit have been entered into providing for the payment by Smith to Juanita of $2,750. In considering the propriety of approving the stipulations of settlement, the question has been raised, upon which my opinion is requested, as to whether the approval by the Department of the employment of attorneys to represent a restricted member of the Osage Tribe in litigation before a State court binds the Secretary of the Interior to the extent of requiring him to pay whatever judgment is ultimately entered therein.

    This question must be answered in the negative. No judgment of any court, State or Federal, in a suit between an Indian and a private party can have any binding effect upon the Government or its administrative officers. This is settled law with but one qualification. See Bowling and Miami Improvement Company v. United States (233 U.S. 528, 534); Sunderland v. United States (266 U.S. 226); Privett v. United States (256 U.S. 201); United States v. Candelaria (271 U.S. 432, 444). The one qualification, as pointed out in the Candelaria case, is that where the Government has employed and paid a special attorney to represent the Indians and look after their interests, the United States is bound as effectually as if it were a party by the judgment in a suit begun and prosecuted by the special attorney so employed and paid. In Logan v. United States (58 Fed. 2d. 697) it was sought to bring within the qualification a case wherein the Osage tribal attorney, employed
 

422                                                          DEPARTMENT OF THE INTERIOR                                 AUGUST 6, 1934

and paid from Osage tribal funds, had appeared and represented individual Osage Indians. Holding that the United States was not bound by the judgment in such a proceeding, the Circuit Court of Appeals, Tenth Circuit, said:

    "To sustain the plea, appellant's counsel relies upon United States v. Candelaria, 271 U.S. 432, 46 S. Ct. 561, 70 L. Ed. 1023. The distinction, as we see it, between that case and this is that it appears therein that the attorney who represented prior litigation in a case of the same character and between the same parties in the state court was employed and paid by the United States, whereas in this case the superintendent and his attorney, in making the interplea in the probate court, were not paid as such officers by the United States; but annual appropriations have been made by Congress and were being made at that time, and it was provided that they should be paid out of the funds held by the Secretary of the Interior for the Osage Indians. The tribal attorney was selected by the tribe. They were not, therefore, the representatives of the United States in making the interplea. There is no showing that the Secretary of the Interior advised that the interplea be made. We, therefore, conclude that the United States, as plaintiff in this suit, was not bound by the action of the county court in denying the interplea."

    It does not follow, however, that the Secretary of the Interior is without authority to make payment of a judgment obtained against a restricted member of the Osage Tribe of Indians in a State court. Section 1 of the act of February 27, 1925 (45 Stat. 1008), authorizes the Secretary of the Interior to expend the restricted funds of members of the Osage Tribe for their benefit under such rules and regulations as he may prescribe. Section 6 of the act further authorizes the Secretary of the Interior to pay from such funds indebtedness incurred by reason of the unlawful acts of carelessness or negligence of such members. Under the broad authority so conferred, the Secretary may, if in his judgment it is to the benefit of the Indian so to do, pay such a judgment in its entirety or he may settle the claim by payment of such sum as he may deem proper. The authority of the Secretary is, of course, discretionary, and the extent of its exercise in any given case is a matter resting in his sound judgment.

    A further question upon which you asked my opinion relates to the "necessity or desirability of authorizing the employment of attorneys to represent Indians in damage suits brought against them in the State courts". While this a question for administrative determination, I may say that many reasons may be assigned for the necessity or desirability of authorizing such employment. Perhaps the most important of these is that in view of the congressional inhibition against the making of contracts of debt by Osage Indians of one-half or more Indian blood without the approval of the Secretary of the Interior (see section 6 of the act of February 27, 1925, 43 Stat. 1008, and section 5, act of March 2, 1929, 45 Stat. 1478), such Indians, in the absence of proper authorization, would be deprived of the right to employ counsel in defense of claims asserted against them in the courts. Unscrupulous persons would thus be encouraged to bring suits against the Indians in the hope, in some cases, of converting claims with little or no merit into enforceable judgments and, in others, of obtaining judgments by default for excessive or unconscionable amounts. A judgment is none the less conclusive because rendered by default United States ex rel. Harshman v. County Court (122 U.S. 306). Such judgment is just as conclusive an adjudication of whatever is essential to
 

423                                                            OPINIONS OF THE SOLICITOR                                     AUGUST 8, 1934

support the judgment as one rendered after answer and contest. Last Chance Mining Company v. Tyler Mining Company (157 U.S. 683). Such judgments would clearly be enforceable by levy and execution upon unrestricted property owned by the judgment debtor. Restricted property would, of course, be protected, but there is always the possibility that such protection may be withdrawn by the removal of restrictions or the enactment of legislation under which the payment of claims merged into judgment may be required from moneys in the hands of the Secretary of the Interior belonging to the judgment debtor. The hazards to which the Indians would be subjected suggest that the adoption of a general policy declining to authorize the employment of attorneys to represent members of the Osage Tribe, regardless of the circumstances presented, would be unwise unless the Government itself is in position to furnish trained counsel at its own expense to represent the Indians. In the absence of governmental counsel, the question of authorizing the employment of private counsel may well be left for determination in the light of the facts presented in each particular case.

                                                                                                                                             NATHAN R. MARGOLD,

    Your letter of August 1, recommending that an application submitted by the heirs of Wounded Him Again, or Joseph Crow Eagle, deceased Rosebud Sioux allottee No. 2092, for cash allotment benefits, be approved, is returned herewith for further consideration.

    I agree with your conclusion that the application should be approved but not with the reasoning by which that conclusion is reached.

    Section 17 of the act of March 2, 1889 (25 Stat. 888-894), provided for the allowance to Sioux Indians of certain articles of personal property to each head of a family or single person over the age of 18 years "who shall have or may hereafter take his or her allotment of land in severalty", and the act of June 10, 1896 (29 Stat. 321-334), authorized the payment of cash to such Indians for the commuted value of the articles of personal property provided for in the prior act. Wounded Him Again, or Joseph Crow Eagle, was allotted August 21, 1900, under the act of 1889 and died September 10, 1910. As the head of a family with an approved allotment, he was entitled at the time of his death to receive cash benefits, and under the Comptroller's decision of May 11, 1915 (21 Comp. Dec. 806), his right to receive the same inured to the benefit of his heirs. The question presented is whether the right of the heirs is cut off by section 14 of the act of June 18, 1934 (Public No. 383), which reads:

    "The Secretary of the Interior is hereby directed to continue the allowance of the articles enumerated in section 17 of the Act of March 2, 1889 (23 Stat. L 894), or their commuted cash value under the Act of June 10, 1896 (29 Stat. L. 334), to all Sioux Indians who would be eligible, but for the provisions of this Act, to receive allotments of lands in severalty under section 19 of the Act of May 29, 1908 (25 Stat. L. 451), or under any prior act, and who have the prescribed status of the head of a family or single person over the age of eighteen years, and his approval shall be final and conclusive, claims therefor to be paid as formerly from the permanent appropriation made by said section 17 and carried on the books of the Treasury for this purpose. No person shall receive in his own right more than one allowance of the benefits, and application must be made and approved during the lifetime of the allottee or the right shall lapse. Such benefits shall continue to be paid upon such reservation until such time as the lands available therein for allotment at the time of the passage of this Act would have been exhausted by the award to each person receiving such benefits of an allotment of eighty acres of such land."

"but for the provisions of this act to receive allotments of land in severalty under section 19 of the Act of May 29, 1908 (25 Stat. 451), or under any prior act".

424                                                         DEPARTMENT OF THE INTERIOR                                  AUGUST 8, 1934

heads of families. That the section is confined to such unallotted Indians is evidenced by the further direction that the allowance of benefits shall be continued

"until such time as the lands available * * * for allotment at the time of the passage of this act would have been exhausted by the award to each person receiving such benefits of an allotment of 80 acres of such land".

    In view of the foregoing, section 14 of the act of June 18, 1934, must be held to be without application in determining the right of the heirs of Wounded Him Again, or Joseph Crow Eagle, to receive the cash benefits due the decedent. Having received an allotment under the act of 1889 and having attained the requisite status to entitle him to receive cash benefits, under the Comptroller's decision of May 11, 1913, supra, descended to his heirs. The application of the heirs should, accordingly, be approved.

                                                                                                                                               NATHAN R. MARGOLD,

    Your letter of July 23, addressed to Mrs. E. L. Beals, Bothell, Washington, regarding the application of her son Donald, for enrollment with the Red River Band of Chippewa Indians is returned without approval.

    The conclusion reached in the third paragraph of your letter that the applicant is not entitled to enrollment under the decision of the United States Circuit Court of Appeals in Oakes v. United States (172 Fed. 305), is correct. As a further reason for rejecting the application, however, the concluding paragraph of your letter urges that the act of June 18, 1934 (Public No. 383) excludes from tribal rights persons such as the applicant, who possess less than one half degree of Indian blood and who were born away from the reservation and the tribe. Section 19 of the act of June 18, 1934, defines the term "Indian" only for the purposes of the act, and for those purposes makes the term include, first, all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction; second, all persons who are descendants of such members, who were on June 1, 1934, residing within the present boundaries of any Indian reservation; and third, all other persons of one half or more Indian blood. Under this definition, particularly the third division, persons of less than one half Indian blood, born away from the reservation and the tribe, would be excluded from consideration in carrying out the purposes provided for in the act. But the application of Donald Beals is for enrollment with the Red Lake Band of Chippewa Indians for the purpose of receiving a share in annuities distributable to the Chippewa Indians of Minnesota not under the act of June 18, 1934, but under section 7 of the act of January 14, 1889 (25 Stat. 642).

    The act of June 18, 1934, is without application, and the concluding paragraph of your letter should, therefore, be eliminated.

                                                                                                                                             NATHAN R. MARGOLD,

MY DEAR MR. CHANDLER:

    I have received your letters of July 25, August 4 and August 5 regarding the payment of awards to Loyal Shawnee Indians or their heirs under the act of March 4, 1929 (45 Stat. 1550).
 

425                                                             OPINIONS OF THE SOLICITOR                                    AUGUST 9, 1934

    After carefully examining the provisions of the statute, it is my opinion that irrespective of whether the claimant is a restricted or unrestricted Indian, payment of the amount due may be made either to the claimant direct or be forwarded in care of his duly authorized attorney in fact. The question of which mode of payment should be followed presents, of course, an administrative question, subject to determination by the Commissioner of Indian Affairs. The Commissioner advises me that he has concluded to adopt the method of direct payment to the Indian claimant, with the qualification, however, that, before such payment is made, the duly authorized attorney or agent of any claimant will be given the privilege of applying for and receiving such reasonable compensation as the services rendered are found to merit. If you desire to avail yourself of this privilege, it is suggested that you file immediately with the Commissioner, in each case in which you claim compensation, itemized statements showing in detail the services you have rendered, together with powers of attorney or other evidence of your employment if you have not already done so. I have no hesitancy in making the assurance that you will receive fair treatment at the hands of the Commissioner.

    With respect to the statement contained in your letter of August 5 that you have learned that the Government is attempting to influence or cause certain of your clients to repudiate their contracts or agreements with you, I quote for your information the following statement made to me by Assistant Commissioner Zimmerman under date of August 7:

    "This is to advise you that no instructions or advise, oral or written, to the above named Indians, or any other Indians, have been issued by this Office suggesting that they ignore or repudiate contracts they may have entered into with O. K. Chandler, or any other person.

    From time to time letters have been written by this Office to various superintendents and Indians advising them that the services of an attorney or agent are not necessary to assist in the collection of sums due the Indians from the government and that the employment of attorneys or agents for such purpose only added an unnecessary expense to the Indian claimants. In such letters, however, the names of no attorneys or agents were mentioned, and as above stated, in no instance has any advice been given or suggestions made that contracts already entered into be repudiated."

    I am returning, without approval, your letter of July 24, recommending allowance of the claim of the Oklahoma Tax Commission for payment of $2,351 as gross production taxes assessed against a two-thirds royalty interest in oil produced from land allotted to John Lewis, deceased full-blood Creek Indian.

    John Lewis died intestate August 1, 1924, whereupon a two-thirds interest in his estate passed to Manna Lewis, widow, one-third; Lillie Lewis, one-sixth, and Eddie Lewis one-sixth. All three are full blood Indians and the interests inherited by them in the estate continued subject to restrictions against both alienation and taxation. The estate included the allotted lands of John Lewis, which were rich in oil production and designing persons immediately sought to acquire the interests of the heirs in this valuable property. In 1925 one, D. Replogle, with the approval of the County Court of Okfuskee County, Oklahoma, obtained conveyances from Manna, Lillie and Eddie Lewis for a consideration which was apparently grossly inadequate. Immediately thereafter he filed a suit in the District Court for Creek County to quiet his title. The Indian defendants filed a cross petition, praying for cancellation of the deeds. Judgment of the court was for the plaintiff Replogle, and an appeal was taken to the Supreme Court of Oklahoma. While the appeal was pending, a compromise was affected whereby Replogle was allowed to retain some $46,000 in royalties which he had collected during his claimed ownership, and the Indians received from him reconveyances of their respective interests in the lands by deeds containing restrictions against alienation.

    In these circumstances you hold that the original deeds from the Indians to Replogle freed the lands from all restrictions and subjected them to taxation, and that the reconveyances to the Indians did not operate to withdraw the lands from taxation. The cases of Shaw v. Oil Corporation (276 U.S. 575) and United States v. Brown (8 Fed. 2d 564), cited in support of this position, do not appear to be controlling. The question of taxation was not involved in United States v. Brown. Shaw v. Oil Corporation and other related cases merely stand for the proposition that the investment of restricted moneys belonging to individual Indians in privately owned taxable lands does not withdraw such lands from the taxing power of the State. In
 

426                                                         DEPARTMENT OF THE INTERIOR                                  AUGUST 9, 1934

the instant case, we are not dealing with an investment of restricted moneys in taxable lands, but with the restoration to the Indians of a preexisting title taken from them under circumstances indicating constructive fraud. Had the title been restored by a court decree setting aside the conveyances from the Indians, the title would unquestionably have been received by them subject to the original restrictions protecting the land from both alienation and taxation. That restoration of the title resulted from the voluntary action of the parties in effecting the compromise should not call for a different result. In Drummond v. United States (34 Fed. 2d 755) it was held that Indians who, after the sale of their restricted lands, subject to mortgage, received a deed from the defaulting purchasers in settlement, held the title subject to the original Federal restrictions. The court said:

    "It is contended here, of course, that the deed to Brown and Boren was intended to convey to them an unrestricted title, but the condition was that it was to be unrestricted in their hands only, and that if it reverted by foreclosure or otherwise, it was then to be held by the Indians as originally. To hold that the failure of the Secretary of the Interior to promulgate a regulation covering the contingency of a surrender without foreclosure should result in a removal of restrictions in such a case, would be to defeat the obvious intent and purpose of the government to afford the Indians the protection intended for them. Looking at substance, and not form, we think that it is clear that the transaction with Brown and Boren was nothing more than an abortive sale of a restricted allotment."

    Conceding that the matter is not entirely free from doubt, I am constrained, in view of the foregoing, to hold that the two-thirds royalty interest of Manna, Lillie and Eddie Lewis in the allotted lands of John Lewis, deceased, was not taxable during the period covered by the claim of the Oklahoma Tax Commission and, therefore, recommend that payment of the claim be denied.

                                                                                                                                            NATHAN R. MARGOLD,

    I do not see any room for doubt or argument on the question whether the Wheeler-Howard Act forbids the granting of fee patents. Early drafts of the bill prepared in this Office specifically prohibited the granting of fee patents in the following terms:

    "The authority of the Secretary of the Interior to issue to Indians patents in fee or certificates of competency or otherwise to remove the restrictions on land allotted to individual Indians under any law or treaty is hereby revoked."

    I agree with your suggestion that, under the circumstances, the sweeping attempt in Section 4 to prohibit alienations of restricted Indian land is largely meaningless, and that the original purpose of the statute in this, as in several other respects, has not been achieved. The remedy for this, in my judgment, is amendatory legislation, rather than arbitrary interpretation of the legislation already secured which may be overthrown by a contrary construction on the part of a future Administration.

                                                                                                                                            NATHAN R. MARGOLD,

427                                                             OPINIONS OF THE SOLICITOR                                   AUGUST 17, 1934

54 I.D. 584

M-27776                                                                                                                                                 August 17, 1934.

    Section 4 of the Wheeler-Howard Act (Public No. 383, 73d Congress), construed in the light of its legislative history, extends the privilege of receiving a devise of restricted Indian lands to the lawful heirs of the testator, whether or not members of any Indian tribe.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested upon the proper construction of section 4 of the Wheeler-Howard Act (Public No. 383, 73d Congress) in so far as this section limits the class of persons to whom an Indian may devise restricted lands.

    The relevant language of this section declares:

    "Except as herein provided, no sale, devise, gift, exchange or other transfer of restricted Indian lands or of shares in the assets of any Indian tribe, or corporation organized hereunder, shall be made or approved: Provided, however, That such lands or interests may, with the approval of the Secretary of the Interior, be sold, devised, or otherwise transferred to the Indian tribe in which the lands or shares are located or from which the shares were derived or to a successor corporation; and all instances such lands or interests shall descend or be devised, in accordance with the then existing laws of the State, or Federal laws where applicable, in which said lands are located or in which the subject matter of the corporation is located, to any member of such tribe or of such corporation or any heirs of such member:"

    If the words "such member" be constructed to mean any member to whom the property in question might be devised, then, apparently, nonmember heirs of other Indians than the testator might be made devisees of the testator's restricted property.

    In the third place, the phrase "such member" might be construed to refer to a member who is a devisee under the will in question.

    While a strictly grammatical construction might lead to the conclusion that "such member" referred to the preceding phrase "any member of such tribe or of such corporation" and thus would seem to justify either the second or the third interpretation of the phrase in question suggested above, I am of the opinion that such a construction cannot be reasonably maintained and that the first interpretation advanced above is the proper one, i.e. that the testator may devise to his own heirs regardless of their membership or nonmembership in any Indian tribe or corporation, but that outside the circle of heirs, the testator may devise only to fellow-members of his tribe or corporation.

    The third construction advanced above, namely, that under the section in question the class of proper devisees includes, in addition to all members of the testator's tribe or corporation, all nonmembers who happen to be heirs of those members benefiting from the will, seems to reduce to meaninglessness. If A devises property to B, B has no heirs if he is alive, and on the other hand, if B is dead at the time the will takes effect B's heirs take by substitution and an express devise to them is, therefore, unnecessary. In either case a statutory grant of power to devise property not only to Bbut to B's heirs would be without meaning.

    A similar difficulty arises if we attempt to construe the phrase "such member" as referring to all those members of the Indian tribe who might be devisees themselves, i.e. all members of the tribe except the testator. The living members of the tribe have no heirs. The only possible beneficiaries of this construction would be, therefore, the non-member heirs of those members of the tribe who have died prior to the execution of the will. While this is a legally possible construction, it is not one which commends itself to reflective judgment. Congress certainly did not intend to give the privilege of receiving a devise of restricted land to all non-Indians who might be the heirs of any of the deceased members of the Indian tribe to which the testator belonged, and to exclude from this privilege the heirs of the testator himself. Certainly Congress was not considering the condition of non-Indians having no subsisting relationship with the
 

428                                                         DEPARTMENT OF THE INTERIOR                                AUGUST 17, 1934

decedent or with any living member of his tribe but who might nevertheless show some right of inheritance from an Indian member of the tribe long deceased.

    The circumstances under which the phrase "or any heirs of such member" was inserted in the Wheeler-Howard Bill indicate the proper meaning to be attached to that phrase. Early drafts of the legislation (e.g. H. R. 7902, Title III, Sec. 5, April House Committee Print; S. 2755, Sec. 4, May Senate Committee Print), both in the House and in the Senate, limited the privilege of inheriting restricted property to the members of the testator's tribe, in accordance with the fundamental purpose of the legislation to conserve Indian lands in Indian ownership and to prevent the further checker-boarding of Indian lands through the acquisition of parcels of such lands by persons not subject to the authority of the Indian tribe or reservation. To this limitation the objection was urged that in some cases the heirs of a deceased Indian would not be members of the tribe or corporation to which the deceased had adhered, and that it would be unfair to deny such natural heirs the right to participate in a devise of property. The House Committee on Indian Affairs, therefore, added to the clause first considered the phrase "or any heirs of such member". (H. R. 7902, Sec. 4, as reported to the House). Independently, the Senate Committee on Indian Affairs added to the draft under its consideration a parallel phrase more restricted in scope, "or the Indian heirs of such member". (S. 2755, Sec. 4, Committee Print No. 2; S. 3645, Sec. 4, as reported to the Senate). It seems clear that the purpose of these legislative afterthoughts was not to alter fundamentally the intent and scope of the original restriction but rather to provide for the exigencies of a special case that had not been distinctly considered, namely, the case of an Indian testator desiring to divide his estate by will among those who would, in the absence of a will, have been entitled to share in the estate, namely, his own heirs.

    That the Chairman of the House Committee on Indian Affairs so construed the phrase here in question is indicated by his explanatory statement to the House of Representatives:

    "Section 4 stops a dangerous leak through which the restricted allotted lands still in Indian ownership pass therefrom. Upon the death of an allottee the number of heirs frequently makes partition of the land impractical, and it must be sold at partition sale, when it generally passes into the hands of whites. This section endeavors to restrict such sales to Indian buyers or to Indian tribes or organizations. It. however, permits the devise of restricted lands to the heirs, whether Indian or not." (Cong. Rec. June 15, p. 12051).

    To conclude, legal usage requires that the phrase "heirs of such member" must refer to the heirs of one who is deceased. Nemo est haeres viventis. The only deceased person considered in the section is the testator. Evidence of the intent of Congress indicates that it is the testator's heirs that are being considered. I am of the opinion that the phrase "heirs of such member" should properly be construed to mean "heirs of the testator".

                                                                                                                                            NATHAN R. MARGOLD,

 Memorandum to the Secretary:

    May 18, 1934, the Attorney General advised you that cases No. 8908 and 8920, United States v. Eagle-Picher Lead Company, instituted in the district court of the United States for the Western Division of the Western District of Missouri, had been dismissed. The suits were brought for the
 

429                                                             OPINIONS OF THE SOLICITOR                                   AUGUST 21, 1934

purpose of recovering from the defendant large sums of money alleged to be due on ores or other substances mined and removed from restricted lands allotted to Harry Crawfish and Mary Whitebird (now deceased) under lead and zinc leases operated by the defendant company. In 1912 both of these Indians acting under authority of the act of June 7, 1897 (30 Stat. 62, 72), executed leases on commercial form without the approval of the Department to certain persons, who subleased to the Eagle-Picher Company. These leases were for a period of ten years and at a royalty of five per cent. In 1922 new leases on departmental form were made and approved by the Secretary of the Interior to the Eagle-Picher Company under authority of the act of March 3, 1921 (41 Stat. 1225), which act extended the restrictions against alienation on Quapaw allotted lands and committed supervision and control of all mineral leases on the lands to the Secretary of the Interior. The new leases provided for a royalty of ten per cent and were made for a period of ten years and as long thereafter as lead and zinc minerals were found in paying quantities. The new leases are still in force.

    August 28, 1933, the Department approved two contracts, one executed by Harry Crawfish and the other by Helene Whitebird, now Romick, as an heir of Mary Whitebird, deceased, both restricted Quapaw Indians, employing one Marton H. Cooper, an auditor of Joplin, Missouri, in the matter of recovering for them additional sums on lead and zinc ores and other minerals alleged to have been removed but not paid for from the Harry Crawfish and Mary Whitebird allotments. The services of Mr. Cooper were to be confined to required auditing and accounting work, but the contract authorized him to employ attorneys at his expense, subject to the approval of the Department. Mr. Cooper selected as attorneys the law firm of Mosman, Rogers and Buzard, which selection the Department approved. Pursuant to his employment, Mr. Cooper presented to the Department detailed audits of the operations of the Eagle-Picher Company on the two allotments. It was shown by these audits that the ores mined and removed from the premises were valuable not only for the lead and zinc concentrates, but also for their sulphur content, which the Eagle-Picher Companycommercialized and sold. In the case of the Harry Crawfish allotment, the value of the sulphur content for which no accounting or payment was made to the Indian lessor was, according to the audit, about $233,000. The report on the Mary Whitebird allotment discloses that the value of the sulphur content was in the neighborhood of $358,000. In addition, the audit relating to the Whitebird land shows a shortage in royalty payments on lead and zinc concentrates of about $18,000.

    The Cooper audits were duly transmitted to the Department of Justice for investigation with the result that the suits under consideration were instituted. An examination of the petitions filed discloses that in addition to the claims based upon shortage in royalty payments on lead and zinc concentrates and the utilization of the sulphur content in the ores, the further claim was asserted that the commercial leases executed in 1912 were void and that the Indians were entitled to recover the full value of all minerals and other substances removed, less only the royalty of five per cent paid under the terms of the leases. On this count alone, the recovery sought in the Whitebird case exceeds $800,000.

    After the suits were brought the defendant company sought and obtained the hearing before the Department of Justice. Briefs were filed by the defendant and the attorneys for the Indians; and upon investigation and consideration thereof the Department of Justice concluded not only to dismiss the suit but to abandon the prosecution of any suit against the Eagle-Picher Company based upon the alleged invalidity of the commercial leases executed in 1912 or to recover any part of the proceeds derived from the utilization of the sulphur content contained in the lead and zinc ores mined and removed from the lands.

    With respect to the claim that lead and zinc ores have been removed and not paid for, it appears that the Attorney General had caused an investigation to be made with a view to effecting collection amicably or by court action of such amounts as may be found to be due the Indians.

    Following dismissal of the suit, the attorneys for the Indians requested that they be permitted to re-file and prosecute the suits independent of the Government in the name of the Indians. In view of that request and the large amounts involved, the Assistant Commissioner of Indian Affairs had in formally requested that I consider the matter with a view to determining, first, whether there is any legal basis for the claim against the Eagle-Picher Company based upon the alleged invalidity of the commercial leases of 1912 and also that based upon the action of the company in utilizing the sulphur content in the lead and zinc ores, and second, if so, whether the necessary suits should be instituted and prosecuted by the United States or by the Indians themselves through the private counsel employed as aforesaid.
 

430                                                             DEPARTMENT OF THE INTERIOR                            AUGUST 21, 1934

    In 1912 leases were made by the Indians without departmental approval under authority of the act of June 7, 1897 (30 Stat. 62, 72), which reads:

    "That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their leases and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided, That whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee can not improve or manage his allotment properly and with benefit to himself, the same may be leased, in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him. All acts and parts of acts inconsistent with this are hereby repealed."

    The act of 1897 permits only those Quapaw Indians not under disability to lease without governmental supervision. Where made to appear to the Secretary that the Indians were disqualified in leasing without supervision for the reason stated in the act, leases by such Indians were invalid unless approved by the Secretary. Hampton v. Ewert (22 Fed. (2d) 81). January 24, 1907, the Secretary of the Interior prescribed regulations governing the making of mineral leases by allottees disqualified by age or disability from leasing without Federal supervision. Section 11 of the regulations contained a list of those allottees to whom the regulations applied and section 2 required that leases by them must be made on the form prescribed by the regulations and that all such leases must be submitted to the Superintendent or officer in charge of the Quapaw Agency within thirty days from their execution for transmission to the Secretary of the Interior. Amendments to these regulations were subsequently attempted but the Circuit Court of Appeals in Hampton v. Ewert, supra, held such attempts ineffective and that the regulations of January 24, 1907, remained in full force and effect. The court said:

    "It is conceded in the briefs that the regulations aforesaid recognized the necessity of such departmental supervision. It is obvious, upon the record, that those regulations were never formally rescinded, and that the letters indicating such a purpose were written merely in an effort to adjust irregularities that had crept in, as reported by the Quapaw Agency, if possible, without resort to drastic remedies, and without running counter to the wishes of the Indians, if that could be avoided. Upon ascertaining that the suggestions of the department in this regard met with strong disfavor and opposition, the Indian agents were instructed to proceed no further in that regard, and therefore, in our judgment, the regulations of January 24, 1907, remained in full force and effect."

    "This lease reserved a royalty of but 5 per

431                                                             OPINIONS OF THE SOLICITOR                                   AUGUST 21, 1934

cent. It is evident that the Secretary of the Interior did not consider this a fair return, and we concur in that view. The minor Indians were, in our judgment, overreached and imposed upon in the lease conveyance made."

    "One who, with knowledge of the incompetency of an Indian for whom the United States holds his land in trust, without the power in him to alienate it, induces him to sell the land to himself and apply for and obtain a patent in fee simple for it, and then to convey it to him, wrongfully appropriates the land to himself, becomes a trustees de son tort thereof and of its proceeds for the benefit of the Indian, and the United States may maintain a suit in equity to set aside, as against him, the patent and the deed, and, in case the title has passed to an innocent subsequent purchaser, to recover of the appropriator the amount he realized from the land above the amount he paid for it to the Indian."

    The validity of the commercial lease in 1912 on the Harry Crawfish allotment cannot, in my opinion, be successfully attacked. His name does not appear on the list of incompetents set forth in section 11 of the regulations of January 24, 1907; hence there is no basis for holding that he was disqualified from leasing without governmental supervision under the act of 1897. Moreover, on December 21, 1931, the Department approved a stipulation executed by and between Harry Crawfish and the Eagle-Picher Lead Company providing for the settlement of a suit which had been instituted on behalf of Harry Crawfish, involving the validity of both the economical and departmental leases on his lands. By paragraph 1 of this stipulation Harry Crawfish, in consideration of the payment of $2,400, acknowledged

"full settlement and satisfaction and full payment of all claims and demands of every kind and description which he now has or may hereafter claim to have by reason of occupation, mining, production, and/or sale of ore, prior to August 18, 1928, by the defendant, the Eagle-Picher Lead Company, or any of its tenants, lessees, or licensees from or upon"

    The liability of the Eagle-Picher Company to the lessor for the proceeds derived from the utilization of the sulphur content contained in the lead and zinc ores will be first discussed under the commercial leases of 1912 on the Harry Crawfish and Mary Whitebird allotments. Both of these leases were given "for the purpose of prospecting and mining for lead, zinc, and all and any other kind or kinds of valuable mineral or ore, or fossil or vegetable substances whatever", and both provide for a royalty to the lessors of

"a sum of money equal to five per centum of the market value at the place mined or produced of all lead, zinc, and all other minerals or substances whatever which may be mined or removed by the said party of the second part, his executors, administrators, assigns or sublessees, from said lands herein leased."

432                                                          DEPARTMENT OF THE INTERIOR                               AUGUST 21, 1934

for rents and royalties required to be paid by the original lease. See Thornton-Willis on Oil and Gas, volume 2, section 351, and cases there cited. But this rule appears to be without application here. Not only is the original lease made binding by its express terms upon sublessees, but the Circuit Court of Appeals, 8th Circuit, in Eagle-Picher Lead Company v. Fullerton (28 Fed. (2d) 472), after discussing in detail the negotiations and contract relations existing between the Eagle-Picher Company and S. C. Fullerton, an intermediate sublessee, and George W. Beck, Jr., the original lessee, on this and other leases, held that the various contracts between the parties created a joint adventure rather than a landlord and tenant relation. As a party to such a joint adventure, the Eagle-Picher Company would appear to be liable equally with the other interested parties to the landowner for the royalties specified in the lease. As the entire value of the sulphur would be included in the claim against the company based upon the invalidity of the 1912 lease, the royalty claim would be important, of course, only in the event of a ruling by the court that the 1912 lease is valid.

    Regarding the liability of the Eagle-Picher Company under the departmental leases of 1922, a more difficult question is presented. The leases in express terms are made for "lead and zinc mining purposes" and require the payment to the lessors as royalty "ten per cent upon all ores mined and sold from said land." The leases further provide that "the sale price basis for determination of the rates and amount of royalty * * * shall not be less than the highest and best obtainable market price of the lead and zinc ores' and concentrates, at the usual and customary place of disposing of such ores and concentrates at the time of sale." It is to be observed that these leases are limited to the mining of land and zinc only and that the royalties provided for are to be based upon the lead and zinc ores or concentrates. No mention is made in the leases of sulphur or other minerals, and no provision is made for the payment of royalties thereon. I am informed that the price of the lead and zinc ores if fixed each week or at stated times by the ore buyers getting together and designating the price per ton. The metal market is taken into consideration, and the metallic content of the ores is determined by assays. The lead and zinc content, as determined by the assays, are the only elements paid for, the sulphur content having no influence in fixing the base price for the lead and zinc.

    We are thus confronted with a situation in which the lessee has taken, utilized and sold a product not specifically covered by the lease and for which there has been no accounting and upon which no payment whatever has been made to the lessor. While I find no specific case dealing with this identical situation, there are many decided cases having a close analogy. Among these are cases involving the question of the liability of the lessee for taking and utilizing for the manufacture of gasoline a product known as casing-head gas under leases making no mention of either casing-head gas or gasoline. The question raised was whether such product was covered by the lease at all, and if covered, whether it was a component part of the oil and subject to the prescribed royalty on oil. One line of cases holds that the casing-head gas in neither oil nor gas within the meaning of those terms in the leases, and under these rulings the lessor appears to be entitled to an accounting for the value of the product whether utilized by the lessee or sold to another for that purpose. See Hammett v. Gypsy Oil Company (95 Okla. 234; 218 Pac. 501); Smith v. Pulaski Oil Company (233 Pac. 1051); George v. Curtain (236 Pac. 876); Ludey v. Pure Oil Company (11 Pac. (2d) 102). The principle underlying these cases is well stated in George v. Curtain, supra, as follows:

    "It will be observed that the parties contracted specifically regarding oil wells and gas wells, and the contract is silent as to the disposition of gas produced from an oil well, and therefore a different rule obtains to the rule laid down by this court in the case of Musselem v. Magnolia Petroleum Co., (107 Okla. 183, 231 P. 526), and followed by this court in the case of Paulter et al., v. Franchot et al., 235 P. 209, decided January 27, 1925 (not yet officially reported). In. those cases the lease contracts specifically fixed the right of the parties where gas was used from an oil well, but where the lease contract in the case at bar was made prior to the time when casing-head gasoline was known to be of commercial value, and no mention made of the casing-head gas to be taken from the oil wells, we are forced to the conclusion that that subject was not within the contemplation of the parties when the lease contract was entered into, and is therefore not covered or controlled by said leasecontract. Smithv. Pulaski, (88 Okl. 47, 211 P. 1047); Mullendore v. Minnehoma Oil Co., 233 P. 1051, decided by this court November 12, 1924. Therefore, since the plaintiffs in error bought and used the casing-head gas from the lessee who, under the terms of their lease contract, had no right to

433                                                            OPINIONS OF THE SOLICITOR                                    AUGUST 21, 1934

use or sell it, plaintiffs in error should be required to account to and pay the defendants in error therefor. The judgment of the trial court is therefore affirmed."

    In Locke v. Russell, supra, where it appeared that a lessee under an oil and gas lease was producing gasoline from casing-head gas, the court said:

    "No rule of law cited or found denies to defendants the right to utilize by any appropriate process, any useless waste from productions contemplated, so long as the lands are operated under the lease to the mutual advantage and profit of the parties: provided, however, the operator pays or tenders to the landowner his proper share or proportion of the returns from such utilization."

    "Our conclusion is that the casing-head gas or gasoline must be considered as part of the oil since it partakes of the nature of that substance rather than what is ordinarily known as natural gas. It makes no difference that it is brought up in the form of vapor, or is extracted by artificial means. It forms the most important element of petroleum oil, and, as such, the lessee should be required to pay therefor, otherwise, he would be receiving a very valuable product without giving anything in return therefor."

    "By articles of agreement of October 30, 1837, he (Peterson) leased the premises to Kier for purposes of salt wells * * *. The rent reserved was every twelfth barrel of salt made on the premises. It was in effect and substance a sale of the crude salt in the land for one-twelfth of the manufactured article. Now there is no doubt that the absolute owner of land may sell a partial interest in it as well as the whole. He may sell the surface and retain the minerals or he may sell the minerals and reserve the surface.

    But it is self evident that when he carves out a particular interest and sells it, he retains the rest as absolutely as before he conveyed a part * * *. There is not a word in the instrument which imports his intention to part with anything more than the salt in the land * * *. Every matter and thing in and pertaining to the land which was not conveyed to the Kiers by that instrument was retained by Peterson.

    * * * I hold Peterson entitled to compensation for the value of his oil and I suppose a bill in equity for account, would be his most natural and efficacious remedy."

434                                                         DEPARTMENT OF THE INTERIOR                                AUGUST 21, 1934

subsequent to the execution of the contract, on account of changes in the requirement of the coal market and now mechanical invention, such waste coal became valuable, and the lessee commenced to market this waste coal and use it in the operation of its own engines. It was the contention of the lessor under the contract that the lessee had no interest in this waste coal, and that the title to the waste coal passing through the one-half inch mesh was in the lessor, and, as plaintiff in the action, she sought to recover.

    The contention of the defendant was that under the agreement it acquired title to all of the coal, and that the provision that it should pay royalty only on coal of the specified size was not deemed as payment for such coal alone, but for all coal, including the waste coal. The court in deciding the case held:

    "Yet though the coal may have been of somewhat inferior quality or mined at some what greater expense than other coal, its mining may have been most profitable to the appellant. No distinction can be drawn between the two provisions; one, that the coal shall not pass through a half-inch mesh; and the other, that it shall be merchantable. If the appellant's contention is correct, then on all this coal, profitable as its mining may have been, the defendant is exempt from the payment of royalty, while if the plaintiff's claim is to prevail, she was entitled to all this coal, and the defendant could take none of it, though its labor in mining and preparing the coal had contributed probably nine-tenths of its value. Doubtless, persons might make a contract in accordance with the claim of the plaintiff or that of the defendant, but no such unnatural and unreasonable intention should be ascribed to the parties unless expressed in language too plain to admit of misconstruction * * *

    The limitation in the provision for the payment of royalty, with reference to the coal being merchantable and above a specified size, should be considered as of the same nature as those which relieve the lessee from the further prosecution of mining operations. They are merely privileges or options afforded the defendant, of which it might avail itself or not, as it saw fit. Mining might become unprofitable; but this of itself would not terminate the contract. The lessee, nevertheless, could still continue the prosecution of the work in the expectation that the situation would change; but if it did take out coal, the obligation rested upon it to pay the royalty for it. The same is true, in our opinion, as to the provisions relating to the size and merchantable character of the coal. The lessee was not obliged to take coal of inferior size or quality; but it had the right to take such coal if it chose, in which case it was bound to pay royalty on it the same as upon other coal."

"When one or more minerals are mentioned in the lease, the lessee will be confined to the extraction of these alone, and if in the course of mining he extract others, he will be held liable to compensation and account for their value to the lessor, and will be enjoined from further removal of them. This is true whether the unenumerated minerals escape by reason of their own force * * * or are purposely or accidentally removed by the labor of the lessee".

435                                                             OPINIONS OF THE SOLICITOR                                   AUGUST 28, 1934

the lessor would be entitled to receive royalties thereon at the rate prescribed in the lease. To hold that the lessee, under a lease covering lead and zinc only, may take and appropriate to his own use, without compensation, other valuable products or substances seems an inequitable and arbitrary conclusion lacking any sanction in law. In any event the controversial issues involved can only be settled by a judicial decision, and submission of these issues to the courts for that purpose appears to be fully justified by the decisions hereinbefore cited, which disclose a persistent and settled policy on the part of the courts to require the lessees to compensate the lessor for products taken from his land.

    In view of the duty resting upon the Government to safeguard and protect the property rights of its Indian wards, it is my opinion that such suits as may be necessary should be begun and prosecuted by the United States. An administrative rule declining so to do would not only appear to be inconsistent to that duty but would also subject the Indians to the risk of failure to obtain a trial upon the merits due to the possibility that a plea to the jurisdiction on the ground that the United States is a necessary party might prove successful.

    In conclusion, it is respectfully recommended that the Attorney General be requested to reconsider his decision to abandon the prosecution of any claim against the Eagle-Picher Company based upon the alleged invalidity of the commercial lease of 1912 on the Mary Whitebird allotment, or to recover from the company any part of the proceeds derived from utilization by the company of the sulphur content in the lead and zinc ores. It is further recommended that the Attorney General be urged to bring an appropriate suit for the purpose of obtaining final judicial determination of the claims of these Indians on their merits. I am informed that similar claims are involved in numerous other leases on Quapaw restricted lands, and with a view to avoiding a multiplicity of suits it is suggested that the Mary Whitebird case, which presents the three main issues involved, be selected as a test case and prosecuted to a final decision, pending which, all other cases of a like nature should be suspended.

                                                                                                                                            NATHAN R. MARGOLD,

Memorandum to the Commissioner of Indian Affairs:

    I am returning without approval your letter of August 16, regarding a proposed sale by James Pauquodle, an Indian, to School District No. 33, Carnegie, Oklahoma, a tract of land under the jurisdiction of the Kiowa Indian Agency in Oklahoma.

    The land was allotted to Kaut-tna, Kiowa Allottee No. 2532, and descended upon the death of the allottee to Pauquodle, who devised the same to James Pauquodle. The latter is an Indian, and the land is still held in trust.

    James Pauquodle, though a minor 19 years of age, has executed a deed conveying the land to the school district under authority of a judgment of the district court of Caddo County, Oklahoma, purporting to confer upon him the rights of majority.

    It is the general rule recognized by both State and Federal courts that the State laws are without application to the Indians unless specially made so by act of Congress and that the congressional enactments dominate the provisions of the State laws. See Sperry Oil and Gas Company v. Chisolm (264 U.S. 488), Blansett v. Cardin (256 U.S. 319). The act of Congress of May 27, 1902 (32 Stat. 245, 275), dealing with the sale of inherited Indian lands, provides that in the case of minors,

"Their interests shall be sold only by a guardian duly appointed by the proper court upon the order of such court, made upon a petition filed by the guardian, but all such conveyances shall be subject to the approval of the Secretary of the Interior."

                                                                                                                                            NATHAN R. MARGOLD,

436                                                         DEPARTMENT OF THE INTERIOR                          SEPTEMBER 6, 1934

    I am returning a proposed letter to Superintendent Upchurch of the Tulalip Indian Agency, approving a deed by a restricted Indian, covering a right of way for a ditch across the Indian's land.

The letter states that:

"As the deed merely conveys a right of way over the surface, and does not affect the fee title, it is not believed that the prohibition against the sale of Indian land embodied in the Wheeler-Howard Act applies thereto."

"Except as herein provided, no sale, devise, gift, exchange, or other transfer of restricted Indian lands or shares in the assets of any Indian tribe or corporation organized hereunder, shall be made or approved; * * *"

    It is not sufficient, however, to find that this conveyance is not included within the prohibition of Section 4 of the Wheeler-Howard Act. This land is subject to restrictions on alienation and by the terms of Section 2 of the Wheeler-Howard Act this restriction is indefinitely continued. The grant of an easement deed, quite as much as a lease, is an alienation, and in the absence of a statute authorizing such an alienation is within the prohibition of the restrictions. Authority to grant a right of way of the kind involved here is contained in the act of March 3, 1891 (26 Stat. 1101), and the act of February 15, 1901 (31 Stat. 790), and the regulations prescribed by the Secretary of the Interior pursuant thereto. The procedure prescribed by these statutes and the regulations issued thereunder have not been followed in this case, and the deed accordingly cannot be approved.

    This case is plainly distinguishable from the one recently presented by the request for a right of way for telephones lines on Pueblo lands. Granting of such rights of way is governed by Section 319 of U.S. Code, Title 25, and the procedure for acquiring such rights of way differs from that applicable to the instant case.

                                                                                                                                            NATHAN R. MARGOLD,

 Memorandum to the Commissioner of Indian Affairs:

    I am returning a proposed letter to Superintendent Ellis of the Osage Indian Agency regarding the question of jurisdiction of the Oklahoma Corporation Commission over questions of oil production on the Osage Reservation.

    The letter states:

"* * * It is not believed that the National Industrial Recovery Act under which the oil code was prescribed took away any of the guardianship jurisdiction of the Secretary of the Interior over Osage matters. Enlarged jurisdiction and authority over the production of crude oil in the United States, including Indian lands, has, however, been given the Secretary as Petroleum Administrator under the oil code."

    It is true that the Corporation Commission of Oklahoma has no independent jurisdiction over production of oil on Indian reservations. It seems plain, however, that the oil code, promulgated pursuant to the authority of the National Industrial Recovery Act, is applicable to such production. The Petroleum Administrator has considered the code applicable to Government owned lands and there is no reason for distinguishing Indian reservations. The problem of oil production with which the oil code deals is the same whether the lands are owned by Indians or whites and the production on Indian owned lands has obviously a direct bearing on the problem of oil production generally.

    To date the Petroleum Administrator has not
 

437                                                             OPINIONS OF THE SOLICITOR                           SEPTEMBER 12, 1934

seen fit to prescribe independent rules to govern production on Government or Indian owned lands, but has left the entire question of proration among the individual producers within the State allowable to the State authorities. The proration production of Indian owned lands is subject to the orders of the Corporation Commission of Oklahoma in so far as such orders are approved by the Petroleum Administrator. Such orders, depending as they do on the approval of the Petroleum Administrator, are subject, of course, to review by the Administrator.

    The letter which I am returning reaches these conclusions, but it seems advisable to restate the reasons given therefor in order to eliminate the ambiguity in the sentences quoted above. While the distinction between the Secretary of the Interior setting as guardian of the Indians and acting as Petroleum Administrator may be only technical, elimination of the ambiguity noted will help to clarify the thought.

                                                                                                                                              NATHAN R. MARGOLD,

    I am returning the proposed draft of rules and regulations covering the disbursement of funds appropriated by the act of March 3, 1933 (47 Stat. 1488), entitled "An Act for the relief of the Uintah, White River, and Uncompahgre Bands of
Ute Indians of Utah, and for other purposes."

    Ordinarily the method of disbursement of restricted individual Indian moneys is governed solely by the regulations issued by the Department of the Interior. In a few instances, however, Congress has seen fit to prescribe the method and manner of disbursement of such funds. The act of March 3, 1933, in my opinion, is such a case. Section 2 provides:

    "The funds when so deposited to the credit of each individual Indian shall become immediately available for the purpose of improving their lands, the erection of suitable homes, the purchasing of building material, farming equipment, livestock, feed, food, seed, grain, tools, machinery, implements, household goods, bedding, clothing and any other equipment or supplies necessary to enable the Indians to feed themselves or to engage in farming, livestock industry, or such other pursuits or avocations as will enable them to become self-supporting, under such rules and regulations as may be prescribed by the Secretary of the Interior for their actual benefit and welfare: Provided, That in cases of the aged, infirm, decrepit, or incapacitated members their shares may be used for their proper maintenance and support in the discretion of the Secretary of the Interior".

    "This disposition of the money, as set forth in Section 2 of the bill, is believed to be of much more benefit to them (the Indians) than to pay same out in cash per capita payments, either in one payment or over a period of years, as the general experience has been that cash per capita payments are frittered away without any permanent benefit".

    The legislative history set forth indicates that the Indian Office and the Congress were anxious to avoid the waste involved in the making of per capita payments. It seems also plain that the act was designed to limit the use of these funds for the purpose of current "maintenance and support" as distinguished from "permanent improvements". A proviso in Section 2 limits the expenditure of these moneys for the purpose of "maintenance and support" to cases of "aged, infirm, decrepit, or incapacitated members" of the Indian tribes concerned.

    The only reasonable conclusion is that these funds can be expended only for the purposes specified in Section 2. The purposed regulations leave the way open for evasion of this limitation. They were plainly modeled after the individual Indian moneys regulations, approved by the Secretary of the Interior on January 30, 1928. In promulgating these latter regulations the Secretary of the Interior was not limited by the terms of any statute and
 

438                                                          DEPARTMENT OF THE INTERIOR                       SEPTEMBER 15, 1934

these regulations cannot furnish a safe guide in the instant case. Regulation No. 2 of the proposed draft, for example, leaves the way open for the expenditures of these funds for any purpose approved by the Indian Office, and Regulation No. 13 provides that claims against the estates of deceased Indians may be paid (1) if previously authorized * * * (3) if elsewhere herein authorized". In other words, the Indian Office would honor any claim against an Indian estate for an authorized expenditure whatever its nature. Without examining the proposed draft in further detail, enough has been set forth to indicate that these regulations must be redrafted to conform to the limitations imposed by Section 2. The redraft should also take note of the limitations imposed by Section 3, requiring the consent of the parents in the case of expenditure of moneys on behalf of minors, and Section 4, prohibiting expenditure of any of this money for the payment of "any debt or debts contracted prior to the passage of this act". It will be enough to set forth the terms of Sections 3 and 4 in the regulations.

 Memorandum for the Commissioner of Indian Affairs.

    I am returning for further consideration your letter of September 9 to Senator Thomas presenting the question of whether certain lands inherited by Indians of the Five Civilized Tribes of seven-eighths blood are subject to partition under the provisions of section 2 of the act of June 14, 1918 (40 Stat. 606).

  You take the position that as to heirs of more than one-half blood the restrictions resting on the lands in the hands of the deceased allottee are preserved by section 1 of the act of January 27, 1933 (47 Stat. 777), and that therefore the lands are not subject to partition by the Oklahoma courts.

    Section 2 of the act of June 14, 1918, supra, provides:

    "The lands of full blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the State of Oklahoma, providing for the partition of real estate. Any land allotted in such proceedings to a full blood Indian. or conveyed to him upon his election to take the same at the appraisment, shall remain subject to all restrictions upon alienation and taxation obtaining prior to such partition. In case of sale under any decree, or partition, the conveyance thereunder shall operate to relieve the land described of all restrictions of every character."

    In order that these Indians may be assured of the protection Congress intended that they should have, I suggest that all cases, involving partition of restricted lands inherited. by heirs of one half or more Indian blood in which notice is served on the Superintendent of the Five Civilized Tribes under the act of April 12, 1926 (44 Stat. 239), be transferred to the Department of Justice with recommendation that the cases be removed to the Federal court. Where partition actions have been filed
 

439                                                           OPINIONS OF THE SOLICITOR                            SEPTEMBER 17, 1934

and notice has not been served on the Superintendent under the act of 1926, the probate attorneys should be instructed to bring the cases to the attention of your office so that appropriate action looking to their removal to the Federal court may be taken. In presenting both classes of cases to the Department of Justice it should be explained that our interest is not only directed to the preservation of the existing restrictions but that in the event the lands are sold pursuant to a finding that they are not susceptible of partition in kind, it is our desire to have the proceeds of sale delivered to the Superintendent for the Five Civilized Tribes for the use and benefit of the restricted heirs.

 Memorandum to the Secretary:

    The United States holds in trust for the Indians surplus lands of certain Indian reservations. These surplus lands have been heretofore opened to settlement and entry, the proceeds of the sales being credited to the Indians as the sales are made. The Commissioner of Indian Affairs has recommended the temporary withdrawal of these lands from settlement or entry and this recommendation has been approved by the Commissioner of the General Land Office. You have submitted the recommendation for my consideration.

    Section 3 of the so-called Wheeler-Howard Act (S. 3645) provides:

    "The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or to any other form of disposal by Presidential proclamation, or by any of public-land laws of the United States:. . ."

    The Secretary of the Interior enjoys adequate authority aside fromsection 3 of the Wheeler Howard Act to make the temporary withdrawal of the lands in question. The authority of the Executive temporarily to withdraw lands from the public domain for public purposes, implied by the Supreme Court from long usage in Midwest Oil Company v. United States, 236 U.S. 459, was given express confirmation by the Congress in the Act of June 25, 1910 (36 Stat. 847). The authority to make temporary withdrawals under the Act of June 25, 1910, was expressly saved in the Act of March 3, 1927 (44 Stat. 1347). Section 4 of the latter provides:

    "That hereafter changes in the boundaries of reservations created by Executive order, proclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of Congress: Provided, That this shall not apply to temporary withdrawals by the Secretary of the Interior."

    Considerations of policy favor the proposed withdrawal. One of the two principal purposes of the Wheeler-Howard Act was the conservation of the Indian lands. In part that end was to be achieved by the termination of the allotment system and the indefinite continuation of existing restrictions on alienation of individual holdings. In part the purpose was to be achieved by the permanent withdrawal of "tribal" lands, heretofore open to white settlement, for the permanent use of Indians. The
 

440                                                          DEPARTMENT OF THE INTERIOR                       SEPTEMBER 17, 1934

demand of white settlers for Indian lands and the demand of the States for taxes were in effect considered and rejected by the Congress in the passage of the Wheeler-Howard Act. They should now be disregarded by the Secretary of the Interior.

    The proposed withdrawal is authorized by law and is sound in policy. In view of the doubt as to the authority of the Secretary to make a temporary withdrawal under section 3 of the Wheeler-Howard Act it is recommended that the Act of June 25, 1910, be cited for withdrawal should the recommendation of the Commissioner of Indian Affairs receive your approval.
 

 Memorandum for the Commissioner of Indian Affairs:

    I am returning your letter of September 26 to the Superintendent of the Standing Rock Indian Agency suggesting that a mortgage on certain restricted lands owned by Sophie and Elizabeth Ironhorn, minor Indians, may be approved when executed by the legal guardian of the minors.

    It appears that a letter containing a similar suggestion, addressed to the Superintendent of the Rosebud Indian Agency, was approved by the Department on September 6, 1934.

    Inasmuch as the execution of a mortgage may result in the absolute transfer of the title under foreclosure proceedings, such an instrument executed while the land is restricted is plainly in violation of section 4 of the Wheeler-Howard Act, declaring that:

"Except as herein provided, no sale, devise, gift, exchange or other transfer of restricted Indian lands * * * shall be made or approved."

    The lands involved in the present case were allotted to Charles Ironhorn, Jr., and were patented in fee simple to him in 1918. In 1922 he executed two deeds conveying a 160-acre tract to each of his minor children, Sophie Ironhorn and Elizabeth Ironhorn. Both deeds contained restrictions prohibiting alienation or encumbrance without the consent of the Secretary of the Interior. Notwithstanding these conveyances the land remained subject to taxation by the State (See Shaw v. Gibson-Zahniser Oil Corporation, 276 U.S. 575; Work v. Mummert, 29 Fed (2d) 393), and it appears that taxes assessed against the lands are now delinquent in the amount of $600. As the Indians are without funds with which to pay the taxes, Mr. Ironhorn has made application for a Federal Land Bank loan in the amount of $1000 which appears to have been approved provided the land is reconveyed to him. While it is not permissible under section 4 of the Wheeler-Howard Act to approve a reconveyance of a mortgage thereon during the restricted period, the act does not prevent a removal of restrictions by the Secretary of the Interior under the authority conferred upon him by the condition contained in the deeds. If in your opinion the exigencies of the case so justify, it is suggested that consideration be given to the removal of restrictions from such part of the land as needs to be mortgaged in order to raise the amount required to pay the taxes, such removal of restrictions to be effective upon the execution of the mortgage by the legal guardian of the minor Indians.

                                                                                                                                              NATHAN R. MARGOLD,

    I am returning your letter of September 29, declining to approve an instrument executed by Eddie Penn, an Osage Indian, granting a right of way for a public highway to the county of Tuney and the State Highway Commission of Missouri and recommending that the map of definite location of the highway be approved as a revocable permit.

    The proposed action appears to be induced in part by the fact that the right of way act of 1901 is inapplicable to the class of land here involved and in part by the thought that approval of the right of way grant executed by Mr. Penn is not permissible under the provisions of the Wheeler-Howard Act. In the latter connection I note your statement that,

    "Although a permit in form, the instrument is, in effect, the grant of a perpetual right-of-way. Hence, in view of the indefinite extension of the restrictions embodied in the Indian Reorganization Act, it is not believed that same should be approved.

441                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 12, 1934

extending indefinitely the trust or restricted period to which Indian lands were subject on the date of the act shall not apply to the Osage Tribe of Indians in Oklahoma or its members. Eddie Penn is a member of the Osage Tribe. He does not appear to be affiliated with any other Indian tribe to which the act applies. The land involved is located in the State of Missouri and was conveyed to Mr. Penn by deed prohibiting alienation or incumbrance without the approval of the Secretary of the Interior. The land is not located within any Indian reservation to which the Wheeler-Howard Act applies and nothing contained in that Act prevents the Secretary of the Interior from giving approval to the right of way grant as required by the condition contained in the deed conveying the land to Mr. Penn.

                                                                                                                                             NATHAN R. MARGOLD,

    Section 3 of the act of June 18, 1933 (Public No. 383-73d Congress), commonly referred to as the Wheeler-Howard Act, reads:

    "The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act: Provided further, That this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation: Provided further, That the order of the Department of the Interior signed, dated, and approved by Honorable Ray Lyman Wilbur, as Secretary of the Interior, on October 28, 1932, temporarily withdrawing lands of the Papago Indian Reservation in Arizona from all forms of mineral entry or claim under the public land mining laws, is hereby revoked and rescinded, and the lands of the said Papago Indian Reservation are hereby restored to exploration and location, under the existing mining laws of the United States, in accordance with the express terms and provisions declared and set forth in the Executive Orders establishing said Papago Indian Reservation: Provided further, That damages shall be paid to the Papago Tribe for loss of any improvements on any land located for mining in such a sum as may be determined by the Secretary of the Interior but not to exceed the cost of said improvements: Provided further, That a yearly rental not to exceed five cents per acre shall be paid to the Papago Tribe for loss of the use or occupancy of any land withdrawn by the requirements of mining operations, and payments derived from damages or rentals shall be deposited in the Treasury of the United States to the credit of the Papago Tribe: Provided further, that in the event any person or persons, partnership, corporation, or association, desires a mineral patent, according to the mining laws of the United States, he or they shall first deposit in the Treasury of the United States to the credit of the Papago Tribe the sum of $1.00 per acre in lieu of annual rental, as hereinbefore provided, to compensate for the loss or occupancy of the lands withdrawn by the requirements of mining operations: Provided further, That patentee shall also pay into the Treasury of the United States to the credit of the Papago Tribe damages for the loss of improvements not heretofore paid in such a sum as may be determined by the Secretary of the Interior, but not to exceed the cost thereof; the payment of $1.00 per acre for surface use to be refunded to patentee in the event that patent is not acquired.

    Nothing herein contained shall restrict the granting or use of permits for easements or rights-of-way; or ingress or egress over the lands for all proper and lawful purposes; and nothing contained herein, except as expressly provided, shall be construed as authority for the Secretary of the Interior, or any other person, to issue or promulgate a rule or regulation in conflict with the Executive Order of February 1, 1917, creating the Papago Indian Reservation in Arizona or the Act of February 21, 1931 (46 Stat. 1202.)"

Section 18 of the act reads:

    "This Act shall not apply to any reservation wherein a majority of the adult Indians,
 
 

442                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 12, 1934

voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice."

    The question is a different one, and a strong showing can be made in support of both sides of the argument.

    I. The argument in support of the contention that the proviso is law irrespective of the Papagos' consent is, briefly, as follows:

    Section 18, literally read, supports the view that the act, in its entirety, may be accepted or rejected by the Indians, and that in the event of rejection no part of the act applies to that particular tribe. Statutes are not to be so literally construed, however, as to defeat the purpose of the lawmakers. United States for the use' of Hill v. American Surety Company (200 U.S. 197). Hence, if Congress intended that any particular provision or section of the Wheeler-Howard Act should stand as permanent legislation independent of any action by the Indians accepting or rejecting it, full effect must be given to that intent.

    The third and succeeding provisos to section 3 deal with mineral rights on the Papago Reservation and will hereinafter be referred to as the Papago amendment.

    The Papago Reservation was created by Executive Order of February 1, 1917, modifying a previous Executive Order of January 14, 1916. The rights of the Papago Indians under both orders were confined to the surface, and the mineral lands were expressly declared to be subject to exploration, location and entry under the mining laws of the United States. The reservation created by the Executive Orders consisted of two large tracts separated by a strip of public domain about six miles wide, commonly referred to as the "Six Mile Strip." By the Act of February 21, 1931 (46 Stat. 1202), all of the vacant public lands within this strip were added to the reservation. This addition was also made exclusive of any tribal right to the minerals and provided that the lands shall be subject to disposition under the mining laws as provided in the Executive order of February 1, 1917. Former Secretary Wilbur, on October 28, 1932, signed an order withdrawing the mineral lands in the reservation from disposition, the order reciting that it was temporary only and designed to give Congress an opportunity to determine whether such withdrawal should be made permanent. This action by Mr. Wilbur met with bitter protest, and strong pressure was brought to bear on the Department, with a view to having the Wilbur order vacated. It was inevitable that this controversy, notwithstanding the fact that it was wholly foreign to the general scope and purpose of the Wheeler-Howard Bill, should inject itself into the deliberations on that measure. The result was that during the closing days of the session of the last Congress, the Papago Amendment was added. Particular attention is directed to the statements of Senator Ashurst in support of the Papago amendment, which he introduced, such statements appearing at pages 11465 to 11471, inclusive, and 11474 of the Congressional Record of June 12, 1934 (temporary paging). After reviewing the history of the Papago mineral controversy and pointing out that the Papagos had no legal right to the minerals underlying their reserve-a conclusion which is supported by my opinion of March 7, 1934-and that the Secretary, in issuing the order of October 28, 1932, had usurped a power resting solely in Congress, Senator Ashurst said:

    "No, Mr. President; the prospectors, the miners of the State of Arizona are anxious not to be subjects of public charity, anxious not to be living on the dole, anxious to secure work, want to go out on the reservation and begin to develop and search for minerals. Not only is it a worthy cause, but it is a romantic one, and I think the Senate owes it to itself, owes it to the State of Arizona, owes it to law and proper procedure, to restore these lands to the status they occupied from the day of the Gadsden Treaty until Secretary Wilbur by his ipse dixit presumed to withdraw these lands from entry."

443                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 12, 1934

scinded" and that the "lands of the said Papago Indian Reservation are hereby restored to exploration and location, under the existing mining laws of the United States, in accordance with the express terms and provisions declared and set forth in the Executive Orders establishing said Papago Indian Reservation." The revocation and restoration are not only absolute and unqualified, but the amendment expressly prohibits the Secretary of the Interior, the Indians or anyone else from disturbing such revocation and restoration by declaring that:

"* * * and nothing contained herein, except as expressly provided, shall be construed as authority for the Secretary of the Interior, or any other person, to issue or promulgate a rule or regulation in conflict with the Executive Order of February 1, 1917, creating the Papago Indian Reservation in Arizona or the Act of February 21, 1931 (46 Stat. 1202)."

    The Wheeler-Howard Act is a comprehensive measure marking the inauguration of a "New Deal" for the American Indian through the conservation and development of Indian lands and resources, the extension to Indians of the right to form business and other organizations, the establishment of a credit system for the Indians, the granting of rights of home rule or self-government, etc. Apartfrom the Papago amendment, the 19 sections of the act are reasonably designated to bring about these results. However, the general policy exemplified by these general provisions of the statute differs widely from past policies, and it must have been the feeling of Congress that the new policy should not be imposed upon any Indian tribe against its will. Section 18 thusappears to have been designed to afford the Indians an opportunity to accept or reject the general provisions of the bill, and this view is measurably reflected by the statement made on the floor of the House by Congressman Howard. See Congressional Record of June 15, 1934, page 12056 (temporary paging):

   "A few Indian tribes asked to be exempted from the provisions of the bill. The committee have thought it unwise to force even home rule and appropriations on tribes unwilling to accept them, and for that reason section 19 provides for a popular referendum among the various tribes within 6 months after the passage and approval of the act. The act shall not apply to any reservation wherein a majority of the adult Indians vote against its application."

    II. In support of the opposite contention, the outline of argument is substantially as follows:

    Section 18 of the Wheeler-Howard Act provides that "This Act shall not apply to any reservation wherein a majority of the adult Indians * * * shall vote against its application. * * *" The reference of this section is clear. It deals with "This Act" and not simply with certain sections of this act. Terms of this referendum apply to the entire act. Applying to the entire act it applies to section 3 of the act, which permits the restoration of certain lands to Indian tribal ownership and to the proviso attached to section 3, which restricts the rights of tribal ownership on the Papago Reservation.

    If the language of the section itself left any doubt as to its scope, its position in the act would remove such doubt. Except for the definitions included in section 19, which apply to section 18 as well as to the rest of the act, section 18 is the final section of the act. It is well-established rule of statutory construction that within a single statute a later provision overrides an earlier provision, if there is any repugnancy between the two.

    An analysis of the terms of the act lends weight to the view that the Papago proviso of section 3 cannot be reasonably construed as outside the
 

444                                                          DEPARTMENT OF THE INTERIOR                           OCTOBER 12, 1934

scope of section 18. Section 18 purports to make certain actions of Congress contingent upon the approval of the Indians concerned. Several of the provisions of the Wheeler-Howard Act are contingent in any event, since they merely authorize action which requires Indian consent. Such provisions are, for instance, sections 16 and 17 and by implication, sections 9 and 10. If the entire act consisted of such optional provisions, a referendum upon the application of the act would have no particular significance. The whole significance of the referendum provision lies in the fact that certain sections of the act are mandatory in character, authorizing or directing the Secretary of the Interior to perform certain acts or prohibiting him from performing certain acts, regardless of the wishes of the Indians. The entire significance of section 18 is found in the possibility recognized by Congress that some of these mandatory provisions might be regarded by the Indians concerned as deleterious, and in the express intent of Congress that if this should prove to be the case the Indians concerned would have the last word in the matter and might reject the entire act.

    It would seem to follow from the foregoing considerations that the language of the act is clear and calls for no extrinsic basis of interpretation. Section 18 permits the Indians of any reservation to except that reservation from the provisions of the act in its entirety if they believe that the act contains provisions detrimental to their welfare. If the Indians of the Papago Reservation believe that section 3 of the act with its proviso directed against their tribal rights is detrimental to their best interests, Congress has given them the necessary means of defense.

    The argument that this result is forbidden by the final clause of section 3,

"* * * and nothing contained herein, except as expressly provided, shall be construed as authority for the Secretary of the Interior, or any other person, to issue or promulgate a rule or regulation in conflict with the Executive Order of February 1, 1917, creating the Papago Indian Reservation in Arizona, or the act of February 21, 1931 (46 Stat. 1202),"

    A consideration of the legislative history of the Wheeler-Howard Act may remove any doubt that this analysis of the actual language of the Act leaves.

    The Wheeler-Howard Act was introduced by departmental request on February 12 in the House of Representatives (73d Congress-2d Session, H. R. 7902), and on February 13 in the Senate (S. 2755). In its original form it contained the equivalent of the first sentence and first proviso of section 3. It contained no specific provisions with regard to the Papago Reservation and contained no provision for any Indian referendum on its application. Discussion and agitated controversy over the Wheeler-Howard bill continued until the day of passage, June 18, as it is apparent from the reported hearings, the speeches in Congress, the reports of the House and Senate Committees, and the numerous amendments made from time to time in successive drafts of the Wheeler-Howard bill. Many Indian tribes objected to the passage of the bill or requested special exemption from its provisions. Certain members of the Papago tribe were the first Indians to object to the passage of the bill, this being done at the first hearing of the House Committee on Indian Affairs called to consider the bill. It was in response to such opposition that the Chairman of the House Committee proposed the referendum provision which is now section 18 of the Wheeler-Howard Act (see Hearings before the Committee on Indian Affairs, H. R. 73d Congress-2d Session, on H. R. 7902, part 5, pages 189, 190, 195, 199). The declared purpose of this referendum provision was to protect and safeguard every tribe of Indians against the possibility that the act might in some way deprive them of their existing rights, and in particular to protect them against the danger that this act might be modified at the last moment so as to work some injury to some group of Indians. What the Indians feared took place. In the final drafts of the Wheeler-Howard Act as passed separately by the Senate and by the
 

445                                                            OPINIONS OF THE SOLICITOR                                OCTOBER 25, 1934

House of Representatives, there appeared special provisions depriving the Papago Indians of their recognizedrights to the surface lands of the Papago Reservation.

    A statement of the reasons underlying this amendment is found in the testimony of Mr. Mitke before the House Committee (Hearings, supra, part 6, pages 204-207). Mr. Mitke strenuously advanced the argument that under section 3 of the Wheeler-Howard Act (as finally passed) "The Papago withdrawal order of October 28, 1932, would be made permanent and title to the unlocated mineral lands vested in the Papago tribe." Whether or not this argument be well-founded, it is the only argument found in the Hearings for the inclusion of the special provisions relating to Papago lands in the Wheeler-Howard Act. The argument was that these provisions were necessary in order to make sure that the Wheeler-Howard Act would not increase the rights of the Papago Indians with respect to minerals on their reservation lands. But, obviously, if the Indians of the Papago Reservation vote to reject the entire Wheeler-Howard Act, including the main provision of section 3, the limitation upon this provision is meaningless.

    The Wheeler-Howard Act, as first passed by the Senate (S. 3645), included the substance of the present proviso regarding Papago Lands, and did not include any section authorizing Indian referenda on the application of the act. The Papago proviso was put forward as an amendment from the floor of the Senate, and accepted, under protest, by the Chairman of the Committee. But the report of the conference committee (H. R. Report No. 2049, accompanying S. 3645) and the subsequent votes of both Houses added the referendum provision, section 18, and thus repudiated the attempt to diminish the right; of the Papago Indians without their consent in the guise of an act that had been hailed by the President of the United States as marking "a new standard of dealing between the Federal Government and its Indian wards," and providing the Indians themselves with an opportunity "to take an active and responsible part in the solution of their own problems." (See Senate Report No. 1080, accompanying S. 3645, and H.R. Report No. 1804, accompanying H. R. 7902.)

    These extrinsic considerations seem to confirm the interpretation which simple study of the language of the statute supports.

    III. The Department, as you will recall, strongly opposed the Papago amendment, and my own sympathies are in full accord with the position hitherto taken by the Department. In view of this, I have some hesitancy in deciding the question, for fear that my own inclination to respect the Department's position might in this instance color my professional opinion. For this reason, I recommend that you request the opinion of the Attorney General on the present problem.

55 I.D. 14

    The Indian tribes were originally regarded as enjoying full powers of sovereignty, internal and external.

INDIAN TRIBES-TERMINATION OF EXTERNAL SOVEREIGNTY.

    Conquest has terminated the external powers of sovereignty of the Indian tribes.

INDIAN TRIBES-INTERNAL SOVEREIGNTY.

    Conquest has brought the Indian tribes under the control of Congress, but except as Congress has expressly restricted or limited the internal powers of sovereignty vested in the Indian tribes such powers are still vested in the respective tribes and may be exercised by their duly constituted organs of government.

INDIAN TRIBES-INTERNAL SOVEREIGNTY-EFFECT OF STATUTES
AND TREATIES.

    The acts of Congress which appear to limit the powers of an Indian tribe are not to be unduly extended by doubtful inference.

INDIAN TRIBES-INTERNAL SOVEREIGNTY-EFFECT OF ADMINISTRATIVE ACTION.

    Attempts of administrative officials to interfere in the exercise by the Indian tribes of their powers of self-government, or to supplant tribal authorities in the administration of these powers, have not terminated or impaired the legal rights and powers vested in the various Indian tribes.

INDIAN TRIBES-FORM OF GOVERNMENT.

    It is the prerogative of any Indian tribe to determine its own form of government.

INDIAN TRIBES-MEMBERSHIP.

    It is within the power of an Indian tribe to determine its own membership, but such power is subject to the supervision of the Secretary of the Interior where rights to Federal property are involved.

INDIAN TRIBES-DOMESTIC RELATIONS-INDIAN CUSTOM MARRIAGE AND DIVORCE.

    The domestic relations of members of an Indian tribe are subject to the customs, laws, and jurisdiction of the tribe.

INDIAN TRIBES-DESCENT AND DISTRIBUTION OF PROPERTY.

    Except with respect to allotted lands, the inheritance laws and customs of the Indian tribes are still of supreme authority.

INDIAN TRIBES-POWER OF TAXATION.

    Among the powers of sovereignty vested in an Indian tribe is the power to tax members of the tribe and nonmembers accepting privileges of trade or residence, to which taxes may be attached as conditions.

INDIAN TRIBES-EXCLUSION OF NONMEMBERS FROM TERRITORY.

    An Indian tribe may, either in its capacity as landowner or in the exercise of local self-government, exclude from the territory subject to the jurisdiction of the tribe persons who are not members of the tribe, except where
 

446                                                           DEPARTMENT OF THE INTERIOR                           OCTOBER 25, 1934

such persons occupy reservation lands under lawful authority.

INDIAN TRIBES-TRIBAL PROPERTY.

    The powers of an Indian tribe over tribal property are no less absolute than the powers of any property owner, save as restricted by general acts of Congress restricting the alienation or leasing of tribal property, and particular acts of Congress designed to control the disposition of particular funds or lands.

INDIAN TRIBES-RIGHTS OF OCCUPANCY IN TRIBAL LANDS.

    Occupancy of tribal land by members of the tribe does not create any vested rights in the occupant as against the tribe, and such occupancy is subject to whatever limitations the tribe may see fit to impose.

INDIAN TRIBES-JURISDICTION OVER PROPERTY OF MEMBERS.

    It is within the sovereign powers of an Indian tribe to adopt police regulations governing the property and contracts of members of the tribe.

INDIAN TRIBES-ADMINISTRATION OF JUSTICE.

    The judicial powers of a tribe are coextensive with its legislative or executive powers, and, except as criminal or civil jurisdiction has been transferred by statute to Federal or State courts, plenary civil and criminal jurisdiction rests with the duly constituted authorities of the Indian tribe. Such authority is not destroyed or limited by administrative action of the Interior Department in the establishment and operation of courts of Indian offenses.

INDIAN TRIBES-SUPERVISION OF FEDERAL EMPLOYEES.

    Although the power to supervise Federal employees is not an inherent power of Indian tribal sovereignty, it is a power which is specifically granted to the Indian tribes by Revised Statutes, section 2072 (U. S. Code, title 25, sec. 48), subject to the discretion of the Secretary of the Interior.

INDIAN TRIBES-POWERS-SPECIAL RESTRICTIONS.

    The foregoing powers are vested in the various Indian tribes under existing law, except as modified for particular tribes by special treaties or by special legislation.

STATUTORY CONSTRUCTION-ACT OF JUNE 18, 1934-"POWERS NOW VESTED IN ANY INDIAN TRIBE OR TRIBAL COUNCIL BY EXISTING LAW."

  The foregoing enumerated powers, vested in the Indian tribes prior to the enactment of the act of June 18, 1934 (48 Stat. 984), are safeguarded and protected by section 16 of this act, and the manner of their exercise may be expressly defined or limited by the terms of a constitution adopted by the tribe and approved by the Secretary of the Interior pursuant to section 16 of the act of June 18, 1934 (48 Stat. 984).

    Under section 16 of the Wheeler-Howard Act (48 Stat. 984, 987) the "powers vested in any Indian tribe or tribal council by existing law" are those powers of local self-government which have never been terminated by law or waived by treaty. Among these powers are the following:

    1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.

    2. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe and to grant or withhold the right of tribal suffrage, and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrollment and property rights of members.

    3. To regulate the domestic relations of its members.

    4. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land.

    5. To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers, residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.

    6. To remove or to exclude from the limits of the reservation nonmembers of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal laws governing trade with the Indian tribes.

    7. To regulate the use and disposition of all property within the jurisdiction of the tribe, and to make public expenditures of tribal funds, where legal title to such funds lies in the tribe.

    8. To administer justice with respect to all disputes and offenses of or among the members of the tribe, other than the ten major crimes reserved to the Federal courts.

    9. To prescribe the duties and to regulate the conduct of Federal employees, but only insofar as such powers of supervision may be expressly delegated by the Interior Department.

MARGOLD, Solicitor:

    My opinion has been requested on the question of what powers may be secured to an Indian tribe and incorporated in its constitution and by-laws by virtue of the following phrase, contained in section 16 of the Wheeler-Howard Act (48 Stat. 984, 987):

    In addition to all powers vested in any Indian tribe or tribal council by existing law, the

447                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

constitution adopted by said tribe shall also vest * * *. [Italics added.]

    In analyzing the meaning of the phrase in question, I note that the general confirmation of powers already recognized is found in conjunction with specific grants of the following powers: "To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments." Furthermore, when a constitution has been adopted by a majority of the adults of an Indian tribe or tribes residing on the same reservation, the Secretary of the Interior is directed to "advise such tribe or its tribal council of all appropriation estimates of Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and the Congress."

    I note, also, as relevant to the question of construction, that one of the stated purposes of the act in question is "to grant certain rights of home rule to Indians."

    I assume, finally, that any ambiguity in the phrase which I am asked to interpret ought to be resolved in accordance with-

* * * the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. United States (248 U. S. 78, 89).

    Bearing these considerations in mind, I have no doubt that the phrase "powers vested in any Indian tribe or tribal council by existing law" does not refer merely to those powers which have been specifically granted by the express language of treaties or statutes, but refers rather to the whole body of tribal powers which courts and Congress alike have recognized as properly wielded by Indian tribes, whether by virtue of specific statutory grants of power or by virtue of the original sovereignty of the tribe insofar as such sovereignty has not been curtailed by restrictive legislation or surrendered by treaties. Had the intent of Congress been to limit the powers of an Indian tribe to those previously granted by special legislation, it would naturally have referred to "existing laws" rather than "existing law" as the source of such powers. The term "law" is a broader term than the term "laws" and includes, as well as "laws", the materials of judicial decisions, treaties, constitutional provisions and practices, and other sources controlling the decisions of courts. Furthermore, it was clearly not the purpose of Congress to narrow the body of tribal powers which have heretofore been recognized by the courts. It would therefore be contrary to the manifest intent of the act to interpret this phrase in a narrow sense as referring only to express statutory grants of specific powers.

    Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. The powers of sovereignty have been limited from time to time by special treaties and laws designed to take from the Indian tribes control of matters which, in the judgment of Congress, these tribes could no longer be safely permitted to handle. The statutes of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or its positive content. What is not expressly limited remains within .the domain of tribal sovereignty, and therefore properly falls within the statutory category, "powers vested in any Indian tribe or tribal council by existing law."

    The acts of Congress which appear to limit the powers of an Indian tribe are not to be unduly extended by doubtful inference. What was said in
 

448                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

the case of In re Mayfield (141 U.S. 107) is still pertinent:

    The policy of Congress has evidently been to vest in the inhabitants of the Indian country such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization. We are bound to recognize and respect such policy and to construe the acts of the legislative authority in consonance therewith. * * * (At pp. 115-116.)

    From the earliest years of the Republic the Indian tribes have been recognized as "distinct, independent, political communities" (Worcester v. Georgia, 6 Pet. 515, 559), and, as such, qualified to exercise powers of self-government, not by virtue of any delegation of powers from the Federal Government but rather by reason of their original tribal sovereignty. Thus treaties and statutes of Congress have been looked to by the courts as limitations upon original tribal powers, or, at most, evidences of recognition of such powers, rather than as the direct source of tribal powers. This is but an application of the general principle that "It is only by positive enactments, even in the case of conquered and subdued nations, that their laws are changed by the conqueror" (Wall v. Williamson, 8 Ala. 48, 51, upholding tribal law of divorce).

    In point of form it is immaterial whether the powers of an Indian tribe are expressed and exercised through customs handed down by word of mouth or through written constitutions and statutes. In either case the laws of the Indian tribe owe their force to the will of the members of the tribe.

    The earliest complete expression of these principles is found in the case of Worcester v. Georgia (6 Pet. 515). In that case the State of Georgia, in its attempts to destroy the tribal government of the Cherokees, had imprisoned a white man living among the Cherokees with the consent of the tribal authorities. The Supreme Court of the United States held that his imprisonment was in violation of the Constitution, that the State had no right to infringe upon the Federal power to regulate intercourse with the Indians, and that the Indian tribes were, in effect, wards of the Federal Government entitled to exercise their own inherent rights of sovereignty so far as might be consistent with Federal law. The court declared, per Marshall, C. J.:

    The Indian nations had always been considered as distinct, independent, political communities, * * * (at p. 559).

    * * * and the settled doctrine of the law of nations is that a weaker power does not surrender its independence-its right to self-government-by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. "Tributary and feudatory states," says Vattel, "do not thereby cease to be sovereign and independent states, so long as self-government, and sovereign and independent authority, are left in the administration of the state." At the present day, more than one state may be considered as holding its right of self-government under the guaranty and protection of one or more allies.

    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 which 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 whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the Government of the United States. The act of the statute of Georgia, under which the plaintiff in error was prosecuted, is, consequently void, and the judgment a nullity. * * * (At pp. 560-561.)

449                                                            OPINIONS OF THE SOLICITOR                                OCTOBER 25, 1934

    * * * Thus did the Seneca Nation, far from abdicating its sovereign powers, set up a strong central government, distribute all governmental powers among three departments, empower a legislative body to be called the "Councillors of the Seneca Nation" to make necessary laws, create a president to execute them, and establish a Peacemakers' Court and a Surrogate's Court to interpret the laws of the nation and decide causes. Thus did the Legislature of the State of New York twice approve of the Constitution adopted and the government set up. It was not accurate to say, therefore, that the State of New York in the year 1849 "assumed governmental control" of the Indians. On the contrary, in that year and subsequently, by its approval of the Indian Constitution in its original and amended form, the State of New York acknowledged the Seneca Indians to be a separate nation, a self-governing people, having a central government with appropriate departments to make laws, to administer and to interpret them. * * *

    The force of the Seneca constitution, the court found, derived not from the sovereignty of New York State, but from the original sovereignty of the Seneca Nation:

    Various statutes passed by the New York Legislature in relation to the Indians are now embodied in the "Indian Law." Article 4 of that law is entitled "The Seneca Indians." It doubtless embodies the statutes passed pursuant to the request of the Seneca Nation contained in its constitution of 1848. This article purports to set up a government for the Seneca Nation, consisting of three departments, exactly as provided in the Indian Constitution. It must be held, however, that the Indian Nation itself created these departments and the system of government set up by its constitution, the force of which had been expressly acknowledged by the New York Legislature. It purported to set up a Peacemakers' Court. The source of jurisdiction of that court, however, was the Indian Constitution, not the Indian Law. Thus, in Mulkins v. Snow, supra, this court said:

    "The Peacemakers' Court is not a mere statutory local court of inferior jurisdiction. It is an Indian court, which has been recognized and given strength and authority by statute. It does not owe its existence to the State statute and is only in a qualified sense a State court." * * *

            *                                *                                *                                *                                *

    The respondent argues that the jurisdiction of the Peacemakers' Court is limited by the Indian Law (section 46) to "matters, disputes, and controversies between any Indians residing upon such reservation" which may arise upon "contracts or for wrongs." We answer that the Peacemakers' Court is the creation not of the State but of the Indian Constitution; that by such constitution, as amended in 1898, the Peacemakers' Courts are given "exclusive jurisdiction in all civil causes arising between individual Indians residing on said reservations, except those which the Surrogate's Courts have jurisdiction of," without reference to "contracts" or to "wrongs." The Indian Law does not deny comprehensive jurisdiction; it merely fails to use terms apparently bestowing it. The Indian Constitution does bestow it. * * *

    The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe,¹ e. g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i. e., its powers of local self-government. These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.

    A most striking affirmation of these principles is found in the case of Talton v. Mayes (163 U.S. 376). The question was presented in that case whether the Fifth Amendment of the Federal Con-

_________
    ¹Certain externalpowers of sovereignty, such as the power to make treaties with the United States, have been recognized by the Federal Government. And cf. Montoya v. United States (180 U. S. 261); Scott v. United States and Apache Indians (33 Ct. Cl. 486); Dobbs v. United States and Apache Indians (33 Ct. Cl. 308). The treaty-making power of the Indian tribes was terminated by the act of March 3, 1871 (U.S. Code, title 25. sec. 71).
 

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stitution operated as a limitation upon the legislation of the Cherokee Nation. A law of the Cherokee Nation authorized a grand jury of five persons to institute criminal proceedings. A person indicted under this procedure and held for trial in the Cherokee courts sued out a writ of habeas corpus, alleging that the law in question violated the Fifth Amendment to the Constitution of the United States, since a grand jury of five was not a grand jury within the contemplation of the Fifth Amendment. The Supreme Court held that the Fifth Amendment applied only to the acts of the Federal Government; that the sovereign powers of the Cherokee Nation, although recognized by the Federal Government, were not created by the Federal Government; and that the judicial authority of the Cherokees was, therefore, not subject to the limitations imposed by the Bill of Rights:

    The question, therefore, is, does the Fifth Amendment to the Constitution apply to the local legislation of the Cherokee nation so as to require all prosecutions for offenses committed against the laws of that nation to be initiated by a grand jury organized in accordance with the provisions of that amendment. The solution of this question involves an inquiry as to the nature and origin of the power of local government exercised by the Cherokee nation and recognized to exist in it by the treaties and statutes above referred to. Since the case of Barron v. Baltimore, 7 Pet. 243, it has been settled that the Fifth Amendment to the Constitution of the United States is a limitation only upon the powers of the General Government, that is, that the amendment operates solely on the Constitution itself by qualifying the powers of the National Government which the Constitution called into being.

            *                                *                                *                                *                                *

    The case in this regard therefore depends upon whether the powers of local government exercised by the Cherokee Nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this court have long since answered the former question in the negative. In Cherokee Nation v. Georgia, 5 Pet. 1, which involved the right of the Cherokee Nation to maintain an original bill in this court as a foreign state, which was ruled adversely to that right, speaking through Mr. Chief Justice Marshall, this court said (p. 16):

    "Is the Cherokee Nation a foreign state in the sense in which that term is used in the Constitution?

    "The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a state, and the courts are bound by those acts." It cannot be doubted, as said in Worcester v. The State of Georgia, 6 Pet. 515, 559, that prior to the formation of the Constitution treaties were made with the Cherokee tribes by which their autonomous existence was recognized. And in that case Chief Justice Marshall also said (p. 559):

    "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights. * * * The very term 'nation', so generally applied to them, means a 'people distinct from others.' The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties."

    In reviewing the whole subject in Kagama v. United States, 118 U. S. 375, this court said (p. 381):

    "With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as
 
 

451                                                            OPINIONS OF THE SOLICITOR                                OCTOBER 25, 1934

States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the State within whose limits they resided."

    True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self-government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. Cherokee Nation v. Kansas Railway Co., 135 U.S. 641, where the cases are fully reviewed. But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee Nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States. It follows that as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment, which, as we have said, had for its sole object to control the powers conferred by the Constitution on the National Government. * * * (At pp. 382-384).

    Added recognition of the sovereign character of an Indian tribe is found in the case of Turner v. United States and Creek Nation (51 Ct. Cls. 125, aff'd 248 U.S. 354). Rejecting a claim against the Creek Nation based upon the allegedly illegal acts of groups of Indians in destroying the fence of a cattle company, the Court of Claims declared:

* * * we must apply the rule of law applicable to established governments under similar conditions. It is a familiar rule that in the absence of a statute declaring a liability therefor neither the sovereign nor the governmental subdivisions, such as counties or municipalities, are responsible to the party injured in his person or estate by mob violence. * * * (At p. 153.)

    The contention that the United States courts had jurisdiction in a case of this sort was based upon the language of a treaty with the Sioux, rather than upon considerations applicable generally to the various Indian tribes. The most important of the treaty clauses upon which the claim of Federal jurisdiction was based provided:

    And Congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life. (At p. 568.)

    It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all, that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor and by education, it was hoped might become a self-supporting and self-governed society. * * * (At pp. 568-569).

452                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

    In finally rejecting the argument for Federal jurisdiction the Supreme Court declared:

* * * It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. (At p. 571).

    We shall defer the question of the exact scope of tribal jurisdiction for more detailed consideration at a later point. We are concerned for the present only in analyzing the basic doctrine of tribal sovereignty. To this doctrine the case of Ex parte Crow Dog contributes not only an intimation of the vast and important content of criminal jurisdiction inherent in tribal sovereignty, but also an example of the consistent manner in which the United States Supreme Court has opposed the efforts of lower courts and administrative officials to infringe upon tribal sovereignty and to assume tribal prerogatives without statutory justification. The legal powers of an Indian tribe, measured by the decisions of the highest courts, are far more extensive than the powers which most Indian tribes have been actually permitted by omnipresent officials to exercise in their own right.

    The doctrine of tribal sovereignty is well summarized in the following passage in the case of In re Sah Quah (31 Fed. 327):

    From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs, subject, however, to such restraints as were from time to time deemed necessary for their own protection, and for the protection of the whites adjacent to them. Cherokee Nat. v. Georgia, 5 Pet. 1, 16, 17; Jackson v. Goodell, 20 Johns. 193 (At. p. 329.)

    And in the case of Anderson v. Mathews (174 Cal. 537, 163 Pac. 902), it was said:

* * * The Indian tribes recognized by the federal government are not subject to the laws of the state in which they are situated. They are under the control and protection of the United States, but they retain the right of local self-government, and they regulate and control their own local affairs and rights of persons and property, except as Congress has otherwise specially provided by law. * * * (At 163 Pac. 905.)

    The acknowledgment of tribal sovereignty or autonomy by the courts of the United States has not been a matter of lip service to a venerable but outmoded theory. The doctrine has been followed through the most recent cases, and from time to time carried to new implications. Moreover, it has been administered by the courts in a spirit of whole-hearted sympathy and respect. The painstaking analysis by the Supreme Court of tribal laws and constitutional provisions in the Cherokee Intermarriage Cases (203 U.S. 706) is typical, and exhibits a degree of respect proper to the laws of a sovereign state. If verbal recognition is needed, there is the glowing tribute which Judge Nott pays to this same Cherokee Constitution in the case of Journeycake v. Cherokee Nation and United States (28 Ct. Cls. 281, 317-318):

    The constitution of the Cherokees was a wonderful adaptation to the circumstances and conditions of the time, and to a civilization

453                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

that was yet to come. It was framed and adopted by a people some of whom were still in the savage state, and the better portion of whom had just entered upon that stage of civilization which is characterized by industrial pursuits; and it was framed during a period of extraordinary turmoil and civil discord, when the greater part of the Cherokee people had just been driven by military force from their mountains and valleys in Georgia, and been brought by enforced immigration into the country of the Western Cherokees; when a condition of anarchy and civil war reigned in the territory-a condition which was to continue until the two branches of the nation should be united under the treaty of 1846 (27 C. Cls. R., 1); yet for more than half a century it has met the requirements of a race steadily advancing in prosperity and education and enlightenment so well that it has needed, so far as they are concerned, no material alteration or amendment, and deserves to be classed among the few great works of intelligent statesmanship which outlive their own time and continue through succeeding generations to assure the rights and guide the destinies of men. And it is not the least of the successes of the constitution of the Cherokees that the judiciary of another nation are able, with entire confidence in the clearness and wisdom of its provisions, to administer it for the protection of Cherokee citizens and the maintenance of their personal and political rights. (At pp. 317-318.)

    If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausibility in this reasoning. But they are strangers to the common law.⁴ They derive their jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew. With them, "to indict" is to file a written accusation charging a person with a crime.

    The Choctaw constitution was not drawn by geologists or for geologists, or in the interests of science, or with scientific accuracy. It was framed by plain people, who have agreed among themselves what meaning should be attached to it, and the courts should give effect to that interpretation which its framers intended it should have.

    Thus, U.S. Code, title 25, section 63, provides that the President may "consolidate one or more tribes, and abolish such agencies as are thereby rendered unnecessary," but that such action may be undertaken only "with the consent of the tribes to be affected thereby, expressed in the usual manner."

    Section 111 of the same title provides that payments of moneys and distribution of goods for the benefit of any Indians or Indian tribes shall be made either to the heads of families and individuals directly entitled to such moneys or goods or else to the chiefs of the tribe, for the benefit of the tribe, or to persons appointed by the tribe for the purpose of receiving such moneys or goods. This section finally provides that such moneys or goods "by consent of the tribe" may be applied directly by the Secretary to purposes conducive to the happiness and prosperity of the tribe.

    Section 115 of the same title provides:

    The President may, at the request of any any Indian tribe, to which an annuity is payable in money, cause the same to be paid in goods, purchased as provided in section 91.

    Other statutory provisions of general import, confirming or delegating specific powers to the Indian tribes or their officers, are: U.S. Code, title 25, sections 48, 130, 132, 159, 162, 184, 218, 225, 229, 371, 397, 398, 402.

__________
    ⁴ See Waldron v. United States, 143 Fed. 413; Hanson v. Johnson, 246 Pac. 868 (Okla.).
 

454                                                           DEPARTMENT OF THE INTERIOR                           OCTOBER 25, 1934

    These latter provisions are discussed later under relevant headings.

    The whole course of Congressional legislation with respect to the Indians has been based upon a recognition of tribal autonomy, qualified only where the need for other types of governmental control has become clearly manifest. As was said in a report of the Senate Judiciary Committee (prior to the enactment of U.S. Code, title 18, sec. 548): "Their right of self-government, and to administer justice among themselves, after their rude fashion, even to inflicting the death penalty, has never been questioned." (Sen. Rep. No. 268, 41st Congress, 3d session.)

    It is a fact that State governments and administrative officials have frequently trespassed upon the realm of tribal autonomy, presuming to govern the Indian tribes through State law or departmental regulation or arbitrary administrative fiat, but these trespasses have not impaired the vested legal powers of local self-government which have been recognized again and again when these trespasses have been challenged by an Indian tribe. "Power and authority rightfully conferred do not necessarily cease to exist in consequence of long nonuser." (United States ex rel. Standing Bear v. Crook, 5 Dill. 453, 460.) The Wheeler-Howard Act, by affording statutory recognition of these powers of local self-government and administrative assistance in developing adequate mechanisms for such government, may reasonably be expected to end the conditions that have in the past led the Interior Department and various State agencies to deal with matters that are properly within the legal competence of the Indian tribes themselves.

    Neither the allotting of land in severalty nor the granting of citizenship has destroyed the tribal relationship upon which local autonomy rests. Only through the laws or treaties of the United States, or administrative acts authorized thereunder, can tribal existence be terminated. As was said in the case of United States v. Boylan (265 Fed. 165) with reference to certain New York Indians over whom State courts had attempted to exercise jurisdiction:

* * * Congress alone has the right to say when the guardianship over the Indians may cease. U.S. v. Nice, 241 U.S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192; Tiger v. Western Inv. Co., 221 U.S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. Accordingly it has been held that it is for Congress to say when the tribal existence shall be deemed to have terminated, and Congress must so express its intent in relation thereto in clear terms. Until such legislation by Congress, even a grant. of citizenship does not terminate the tribal status or relieve the Indian from the guardianship of the government. U. S. v. Nice, 24 1 U.S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192. * * * (At p. 171.)

* * * The right of self-government has never been taken from them. * * *

    At all times the rights which belong to self-government have been recognized as vested in these Indians. * * * (At p. 173.)

* * * The agreement to maintain the agent and the retention and exercise of the power to control the liquor traffic are not inconsistent, as we have seen, with the allotment of the lands in severalty, or with the grant to the allottees of the immunities and privileges of citizenship. Neither the act of 1887 nor any other act of congress or treaty with these Indians required those who selected allotments and received patents and the privileges and immunities of citizenship to sever their tribal relation, or to surrender any of their rights as members of their tribes, as a condition of the grant, so that after their allotments, as before, their tribal relation continued. And finally the legislative and executive departments of the government to which the subject matters of the relations of the Indians and their tribes to the United States, and the regulation of the commerce with them, has been specially intrusted, have uniformly held that congress retained, and have constantly exercised, the power to regulate intercourse with these Indians, and to prohibit the traffic in intoxicating liquors with them, since these patents issued, to the same extent as before their lands were allotted in severalty. It is the settled rule of the judicial department of the government, in ascertaining the relations of Indian tribes and their members to the nation, to follow the action of the legislative and executive departments to which the determination of these question has been especially intrusted. U.S. v. Holliday, 3 Wall. 407, 419, 18 L. Ed. 182; U.S. v. Earl (C. C.) 17 Fed. 75, 78. (At p. 951.)

455                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

    In reference to all matters of this kind,  it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. (At p. 419.)

    There are, of course, a number of instances in which tribal autonomy has been terminated by act of Congress or by treaty. See, for example, Wiggan v. Conolly (163 U.S. 56); United States v. Elm (2 Cin. Law Bull. 307, 25 Fed. Cas. No. 15,048); and cf. act of April 26, 1906 (34 Stat. 137). But to accomplish this, the provisions of treaty or statute must be positive and unambiguous. (Morrow v. Blevins, 23 Tenn. 223; Jones v. Meehan, 175 U.S. 1.)

    Save in such instances, the internal sovereignty of the Indian tribes continues, unimpaired by the changes that have occurred in the manners and customs of Indian life, and, for the future, remains a most powerful vehicle for the movement of the Indian tribes towards a richer social existence.

    Since any group of men, in order to act as a group, must act through forms which give the action the character and authority of group action, an Indian tribe must, if it has any power at all, have the power to prescribe the forms through which its will may be registered. The first element of sovereignty, and the last which may survive successive statutory limitations of Indian tribal power, is the power of the tribe to determine and define its own form of government. Such power includes the right to define the powers and duties of its officials, the manner of their appointment or election, the manner of their removal, the rules they are to observe in their capacity as officials, and the forms and procedures which are to attest the authoritative character of acts done in the name of the tribe. These are matters which may be determined even in a modern civilized nation by unwritten custom as well as by written law. The controlling character of the Indian tribe's basic forms and procedures has been recognized by State and Federal courts, whether evidenced by written statute or by the testimony of tradition.

    Thus, in the case of Pueblo of Santa Rosa v. Fall (273 U.S. 315) the Supreme Court recognized that by the traditional law of the Pueblo the "Captain" of the Pueblo would have no authority to convey to attorneys the claims of the Pueblo or to authorize suit thereon, and that such acts without the approval of a general council would be null and void.

    To the same effect, see 7 Op. Atty. Gen. 142 (1855).

    In 5 Op. Atty. Gen. 79 (1849) the opinion is expressed that a release to be executed by the "Creek Indians" would be valid "provided, that the chiefs and headmen executing it are such chiefs and headmen and constitute the whole or a majority of the council of the Creek Nation."

    In Rawlins and Presbey v. United States (23 Ct. Cls. 106) the court finds that a chief's authority to act in the name of the tribe has been established by the tacit assent of the tribe and by their acceptance of the benefits of his acts.

    In the case of Mount Pleasant v. Gansworth (271 N. Y., Supp. 78) it is held that the Tuscarora tribal council has never been endowed with probate jurisdiction, that no other body has been set up by the tribe to exercise probate powers, and hence that State courts may step in to remedy the lack. Whether or not the final conclusion is justified, in the light of such casesas Patterson v. Council of Seneca Nation (245 N. Y. 443; 157 N. E. 734), the opinion of the court indicates at least that the limitations which a tribe may impose upon the jurisdiction of its own governmental bodies and officers will be respected.

    Not only must officers presuming to act in the name of an Indian tribe show that their acts fall within their allotted function and authority, but likewise the procedural formalities which tradition or ordinance requires must be followed in executing an act within the acknowledged jurisdiction of the officer or set of officers.

    In 19 Op. Atty. Gen. 179 (1888) it is held that a decree of divorce which has not been signed by a judge or clerk of court, as required by the laws of the Choctaw Nation, is invalid.

  In re Darth (265 N. Y. Supp. 86) involves action of a special tribal council meeting to which only a few of the members of the council were invited. The action was declared invalid on the ground that the council's rules of procedure required due notice of a special meeting to be given to all members of the council. Based on an analogy taken from corporation law, the rule was laid down that violation of this requirement rendered the acts of the council invalid.

    In 25 Op. Atty. Gen. 308 (1904) it appeared that certain sums were to be paid to attorneys "only after the tribal authorities, thereunto duly
 

456                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

and specifically authorized by the tribe, shall have signed a writing * * *." By resolution of the tribe the business committee had been authorized to sign the writing in question. The signatures of the business committee, in the opinion of the Attorney General, met the statutory requirement:

    The proceedings of the council were regular, and the motions were carried by a sufficient number of voters, though less than a majority of those present, See State v. Vanodel (131 Ind. 388); Attorney General v. Shepard (62 N. H. 383); and Mount v. Parker (32 N. J. Law, 341).

    Based upon the analogy of the constitutional law of the United States, the doctrine has been applied to Indian statutes and constitutional provisions that statutes deemed by the courts to be violative of constitutional limitations are to be regarded as void. See Whitmire, Trustee, v. Cherokee Nation (30 Ct. Cls. 138); Delaware Indians v. Cherokee Nation (38 Ct. Cls. 324); 19 Op. Atty. Gen. 229 (1889).

    Statutes of Congress have recognized that the authority of an Indian tribe is customarily wielded by chiefs and headmen. ⁵

    Other congressional legislation has specifically recognized, the propriety of paying salaries to tribal officers out of tribal funds.⁶
 
 

    The courts have consistently recognized that in the absence of express legislation by Congress to the contrary, an Indian tribe has complete authority to determine all questions of its own membership.⁷ It may thus by usage or written law determine under what conditions persons of mixed blood shall be considered members of the tribe. It may provide for special formalities of recognition, and it may adopt such rules as seem suitable to it, to regulate the abandonment of membership, the adoption of non-Indians or Indians of other tribes, and the types of membership or citizenship which it may choose to recognize. The completeness of this power receives statutory recognition in U.S. Code, title 25, sec. 184, which provides that the children of a white man and an Indian woman by blood shall be considered members of the tribe if, and only if, "said Indian woman was * * * recognized by the tribe."⁸ The power of the Indian tribes in this field is limited only by the various statutes of Congress defining the membership of certain tribes for purposes of allotment or for other purposes, and by the statutory authority given to the Secretary of the Interior to promulgate a final tribal roll for the purpose of dividing and distributing the tribal funds.⁹

    The power of an Indian tribe to determine questions of its own membership arises necessarily from the character of an Indian tribe as a distinct political entity. In the case of Patterson v. Council of

__________
    ⁵U. S. Code, title 25. sec. 130:

  "Withholding of moneys or goods on account of intoxicating liquors. No annuities, or moneys, or goods, shall be paid or distributed to Indians * * * 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 in their country."

    U. S. Code, title 25, sec. 132:

  "Mode of distribution of goods. Whenever goods and merchandise are delivered to the chiefs of a tribe, for the tribe, such goods and merchandise shall be turned over by the agent or superintendent of such tribe to the chiefs in bulk, and in the original package, as nearly as practicable, and in the presence of the headmen of the tribe, if practicable, to be distributed to the tribe by the chiefs in such manner as the chiefs may deem best, in the presence of the agent or superintendent. (R. S. Sec. 2696.) "

    ⁶U. S. Code, title 25. sec. 162, after providing generally for the segregation, deposit and investment of tribal funds, contains the following qualification:

  "And provided further, That any part of tribal funds required for support of schools or pay of tribal officers shall be excepted from segregation or deposit as herein authorized and the same shall be expended for the purposes aforesaid."

    ⁷ It must be noted that property rights attached to membership are largely in the control of the Secretary of the Interior rather than the tribe itself. See heading, infra. "Tribal Powers Over Property."

  ⁸ "Rights of children born of marriages between white men and Indian women. All children born of a marriage solemnized prior to June 7, 1897, between a white man and an Indian woman by blood and not by adoption. where said Indian woman was on that date, or was at the time of her death. recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right. (June 7, 1897, c. 3, sec. 1, 30 Stat. 96.) "

    ⁹U. S. Code, title 25. sec. 163:

  "Roll of membership of Indian tribes. The Secretary of the Interior is authorized, wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian blood, and when approved by the said Secretary are declared to constitute the legal membership of the respective tribes for the purpose of segregating the tribal funds as provided in the preceding section, and shall be conclusive both as to ages and quantum of Indian blood: Provided, That the foregoing shall not apply to the Five Civilized Tribes or to the Osage Tribe of Indians, or to the Chippewa Indians of Minnesota, or the Menominee Indians of Wisconsin. (June 30, 1919, c. 4. sec. 1, 41 Stat. 9.)"
 

457                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

Seneca Nation (245 N. Y. 433; 157 N. E. 734), the Court of Appeals of New York reviewed the many decisions of that court and of the Supreme Court of the United States recognizing the Indian tribe as a "distinct political society, separated from others, capable of managing its own affairs and governing itself" (per Marshall, C.J., in Cherokee Nation v. Georgia, 5 Pet. 1), and, in reaching the conclusion that mandamus would not lie to compel the plaintiff's enrollment by the defendant council, declared:

    Unless these expressions, as well as similar expressions many times used by many courts in various jurisdictions, are mere words of flattery designed to soothe Indian sensibilities, unless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching State legislation, then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted.

            *                                *                                *                                *                                *

    It must be the law, therefore, that, unless the Seneca Nation of Indians and the state of New York enjoy a relation inter se peculiar to themselves, the right to enrollment of the petitioner, with its attending property rights, depends upon the laws and usages of the Seneca Nation and is to be determined by that Nation for itself, without interference or dictation from the Supreme Court of the state.

    The conclusion is inescapable that the Seneca Tribe remains a separate nation; that its powers of self-government are retained with the sanction of the state; that the ancient customs and usages of the nation except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of a sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York state; that, above all, the Seneca Nation retains for itself the power of determining who are Senecas, and in that respect is above interference and dictation.

    In this proceeding the court has been informed as to the usages and customs of the different tribes of the Sioux Nation, and has found as a fact that the common law does not obtain among said tribes, as to determining the race to which the children of a white man, married to an Indian woman, belong; but that, according to the usages and customs of said tribes, the children of a white man married to an Indian woman take the race or nationality of the mother.

    It was the Indians, and not the United States, that were interested in the distribution of what was periodically coming to them from the United States. It was proper then that they should determine for themselves, and finally, who were entitled to membership in the confederated tribe and to participate in the emoluments belong to that relation.

    The certificate of the chiefs and councilors referred to is possibly as high a grade of evidence as can be procured of the fact of the determination by the chiefs of the right of membership under the treaty of February 23, 1867, and seems to be such as is warranted by the usage and custom of the Government in its general dealings with these people and other similar tribes. (At page 116.)

  In re William Banks (26 L. D. 71); Black Tomahawk v. Waldron (19 L. D. 311); 20 Op. Atty. Gem. 711 (1894); Western Cherokee Indians v. United States (27Ct. Cls. 1, 54); United States v. Heyfron (two cases) (138 Fed. 964, 968).

    In the Cherokee Intermarriage Cases (203 U. S. 76), the Supreme Court of the United States considered the claims of certain white men, married to Cherokee Indians, to participate in the common property of the Cherokee Nation. After carefully examining the constitutional articles and the statutes of the Cherokee Nation, the court reached the conclusion that the claims in question were invalid, since, although the claimants had been recognized as citizens for certain purposes, the Cherokee Na-
 

458                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

tion had complete authority to qualify the rights of citizenship which it offered to its "naturalized" citizens, and had, in the exercise of this authority, provided for the revocation or qualification of citizenship rights so as to defeat the claims of the plaintiffs. The Supreme Court declared (per Fuller, C. J.):

    The distinction between different classes of citizens was recognized by the Cherokees in the differences in their intermarriage law, as applicable to the whites and to the Indians of other tribes; by the provision in the intermarriage law that a white man intermarried with an Indian by blood acquires certain rights as a citizen, but no provision that if he marries a Cherokee citizen not of Indian blood he shall be regarded as a citizen at all; and by the provision that if, once having married an Indian by blood, he marries the second time a citizen not by blood, he loses all of his rights as a citizen. And the same distinction between citizens as such and citizens with property rights has also been recognized by Congress in enactments relating to other Indians than the Five Civilized Tribes. Act August 9, 1888, 25 Stat. 392, c. 818; act May 2, 1890, 26 Stat. 96; c. 182; act June 7, 1897, 30 Stat. 90, c. 3. (At page 88.)

    * * * The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows or widowers) citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated. (At Page 95.)

    An Indian tribe may classify various types of membership and qualify not only the property rights, but the voting rights of certain members. Thus in 19 Op. Atty. Gen. 389 (1888) the view is expressed that a tribe may by law restrict the rights of tribal suffrage, excluding white citizens from voting, although by treaty they are guaranteed rights of "membership."

    Similarly, an Indian tribe may revoke rights of membership which it has granted. In Roff v. Burney (168 U.S. 218), the Supreme Court upheld the validity of an act of the Chickasaw legislature depriving a Chickasaw citizen of his citizenship, declaring:

    The citizenship which the Chickasaw legislature could confer it could withdraw. The only restriction on the power of the Chickasaw Nation to legislate in respect to its internal affairs is that such legislation shall not conflict with the Constitution or laws of the United States, and we know of no provision of such Constitution or laws which would be set at naught by the action of a political community like this in withdrawing privileges of membership in the community once conferred. (At page 222.)

    Indian members of one tribe can sever their relations as such, and may form affiliations with another or other tribes. And so they may, after their relation with a tribe has been severed, rejoin the tribe and be again recognized and treated as members thereof, and tribal rights and privileges attach according to the habits and customs of the tribe with which affiliation is presently cast. As to the manner of breaking off and recasting tribal affiliations we are meagerly informed. It was and is a thing, of course, dependent upon the peculiar usages and customs of each particular tribe, and therefore we may assume that no general rule obtains for its regulation.

    Now, the first condition presented is that the mother of Philomme was a full-blood Walla Walla Indian. She was consequently a member of the tribe of that name. Was her status changed by marriage to Tawakown, an Iroquois Indian? This must depend upon the tribal usage and customs of the Walla Wallas and the Iroquois. It is said by Hon. William A. Little, Assistant Attorney General, in an opinion rendered the Department of the Interior in a matter involving this very controversy:

"That inheritance among these Indians is through the mother and not through the father, and that the true test in these cases

459                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

is to ascertain whether parties claiming to be Indians and entitled to allotments have by their conduct expatriated themselves or changed their citizenship."

But we are told that:

    "Among the Iroquoian tribes kinship is traced through the blood of the woman only. Kinship means membership in a family; and this in turn constitutes citizenship in the tribe, conferring certain social, political, and religious privileges, duties, and rights, which are denied to persons of alien blood." Handbook of American Indians, edited by Frederick Webb Hodge, Smithsonian Institute, Government Printing Office, 1907.

    Marriage, therefore, with Tawakown would not of itself constitute an affiliation on the part of his wife with the Iroquois tribe, of which he was a member, and a renunciation of membership with her own tribe. (At page 886).

   But notwithstanding the marriage of Philomme to Smith, and her long residence outside of the limits of the reservation, she was acknowledged by the chiefs of the confederated From the testimony adduced herein, read in connection with that taken in the case of tribes to be a member of the Walla Walla tribe. From the testimony adduced herein, read in connection with that taken in the case of Hy-yu-tse-mil-kin v. Smith, supra,it appears that Mrs. Smith was advised by Homily and Show-a-way, chiefs, respectively, of the Walla Walla and Cayuse tribes, to come upon the reservation and make selections for allotments to herself and children, and that thereafter she was recognized by both these chiefs, and by Peo, the chief of the Umatillas, as being a member of the Walla Walla Tribe. It is true that she was not so recognized at first, but she was finally, and by a general council of the Indians held for the especial purpose of determining the matter. (At page 888.)

    The weight given to tribal action in relation to tribal membership is shown by the case of Nofire v. United States (164 U.S. 657). In that case the jurisdiction of the Cherokee courts in a murder case, the defendants being Cherokee Indians, depended upon whether the deceased, a white man, had been duly adopted by the Cherokee Tribe. Finding evidence of such adoption in the official records of the tribe, the Supreme Court held that such adoption deprived the State court of jurisdiction over the murder and vested such jurisdiction in the tribal courts.

    A similar decision was reached in the case of Raymond v. Raymond (83 Fed. 721), in which the jurisdiction of a tribal court over an adopted Cherokee was challenged. The court declared (per Sanborn, J.):

    It is conceded that under the laws of that nation the appellee became a member of that tribe, by adoption, through her intermarriage with the appellant. It is settled by the decisions of the supreme court that her adoption into that nation ousted the federal court of jurisdiction over any suit between her and any member of that tribe, and vested the tribal courts with exclusive jurisdiction over every such action. Alberty v. U.S. 162 U.S. 499, 16 Sup. Ct. 864; Nofire v. U.S., 164 U.S. 657, 658, 17 Sup. ct. 212.

    Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his

460                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also states that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca Tribe of Indians, and had resolved to disband as a tribe, or band, of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able so to do went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, for removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected, and formed a part of what was to them a melancholy procession homeward.

    * * * What is here stated in this connection is mainly for the purpose of showing that the relators did all they could to separate themselves from their tribe and to sever their tribal relations, for the purpose of becoming self sustaining and living without support from the government. This being so, it presents the question as to whether or not an Indian can with draw from his tribe, sever his tribal relation therewith, and terminate his allegiance thereto, for the purpose of making an independent living and adopting our own civilization.

    If Indian tribes are to be regarded and treated as separate but dependent nations, there can be no serious difficulty about the question. If they are not to be regarded and treated as separate, dependent nations, then no allegiance is owing from an individual Indian to his tribe, and he could, therefore, withdraw therefrom at any time. The question of expatriation has engaged the attention of our government from the time of its very foundation. Many heated discussions have been carried on between our own and foreign governments on this great question, until diplomacy has triumphantly secured the right to every person found within our jurisdiction. This right has always been claimed and admitted by our government, and it is now no longer an open question. It can make but little difference, then, whether we accord to the Indian tribes a national character or not, as in either case I think the individual Indian possesses the clear and God-given right to withdraw from his tribe and forever live away from it, as though it had no further existence. If the right of expatriation was open to doubt in this country down to the year 1868, certainly since that time no sort of question as to the right can now exist. On the 27th of July of that year Congress passed an act, now appearing as section 1999 of the Revised Statutes, which declares that: "Whereas, the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and, whereas, in the recognition of this principle the government has freely received emigrants from all nations, and invested them with the rights of citizenship. * * * Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic."

461                                                            OPINIONS OF THE SOLICITOR                                OCTOBER 25, 1934

have no legal right of appeal even if his adoption without Department approval were valid, "it hardly is necessary to pass upon that point."

    The power of an Indian tribe to determine its membership is subject to the qualification, however, that in the distribution of tribal funds and other property under the supervision and control of the Federal Government, the action of the tribe is subject to the supervisory authority of the Secretary of the Interior. See United States ex rel. West v. Hitchcock, 205 U.S. 80; Mitchell v. United States, 22 Fed. 2d, 771; United States v. Provoe, 38 Fed. 2d, 799; reversed on other grounds, 283 U.S. 753. See also Wilbur v. United States, 281 US. 206. The original power to determine membership, including the regulation of membership by adoption, nevertheless remains with the tribe, and in view of the broad provisions of the Wheeler-Howard Act, it is my opinion that the Secretary of the Interior may in the future define and confine his power of supervision in accordance with the terms of the constitution adopted by the tribe itself and approved by him.

    The Indian tribes have been accorded the widest possible latitude in regulating the domestic relations of their members. Indian custom marriage has been specifically recognized by Federal statute, so far as such recognition is necessary for purposes of inheritance." Indian custom marriage and divorce have been generally recognized by State and Federal courts for all other purposes. Where Federal law or written laws of the tribe do not cover the subject, the customs and traditions of the tribe are accorded the force of law, but these customs and traditions may be changed by the statutes of the Indian tribes. In defining and punishing offenses against the marriage relationship, the Indian tribe has complete and exclusive authority in the absence of legislation by Congress upon the subject. No law of the State controls the domestic relations of Indians living in tribal relationship. The authority of an Indian tribal council to appoint guardians for incompetents and minors is specifically recognized by statute,¹² although this statute at the same time deprives such guardians of the power to administer Federal trust funds.

    The completeness and exclusiveness of tribal authority over matters of domestic relationship is clearly set forth by Mr. Justice Van Devanter in the opinion of the Supreme Court in United States v. Quiver (241 U.S. 602, at 603-605):

    At an early period it became the settled policy of Congress to permit the personal and domestic relations of Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian Intercourse Acts of May 19, 1802, c. 13, 2 Stat. 139, provided for the punishment of various offenses by white persons against Indians and by Indians against each other; and the act of June 30, 1834. c. 161, Sec. 25, 4 Stat. 729, 733, while providing that "so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country," qualified its action by saying, " the same shall not extend to crimes committed by one Indian against the person or property of another Indian." That provision with its qualification was later carried into the Revised Statutes as Secs. 2145 and 2146. This was the situation when this court, in Ex parte Crow Dog, 109 U.S. 556, held that the murder of an Indian reservation was not punishable under the laws of the United States and could be dealt with only according to the laws of the tribe. The first change came when, by the

    ¹¹ U. S. C.. title 25. sec. 271, which provides:

    "Descent of land.-For the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of section 348. whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together * * *"

    ¹² U.S.C., title 25, sec. 159, which provides:

    "Moneys due incompetents or orphans.-The Secretary of the Interior is directed to cause settlements to be made with all persons appointed by the Indian councils to receive money due to incompetent or orphan Indians, and to require all moneys found due to such incompetent or orphan Indians to be returned to the Treasury; and all moneys so returned shall bear interest at the rate of 6 per centum per annum, until paid by order of the Secretary of the Interior to those entitled to the same. No money shall be paid to any person appointed by any Indian council to receive moneys due to incompetent or orphaned Indians, but the same shall remain in the Treasury of the United States until ordered to be paid by the Secretary to those entitled to receive the same, and shall bear 6 per centum interest until so paid." (R. S. sec. 2108.)
 

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act of March 3, 1885, c. 341, Sec. 9, 23 Stat. 362, 385, now Sec. 328 of the Penal Code, Congress provided for the punishment of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny when committed by one Indian against the person or property of another Indian. In other respects the policy remained as before. After South Dakota became a State, Congress, acting upon a partial cession of jurisdiction by that State, c. 106 Laws 1901, provided by the act of February 2, 1903, c. 351, Stat. 798, now Sec. 329 of the Penal Code, for the punishment of the particular offenses named in the act of 1885 when committed on the Indian reservations in that State, even though committed by others than Indians, but this is without bearing here, for it left the situation in respect of offenses by one Indian against the person or property of another Indian as it was after the act of 1885.

    We have now referred to all the statutes. There is none dealing with bigamy, polygamy, incest, adultery, or fornication, which in terms refers to Indians, these matters always having been left to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative officers.

    Carney v. Chapman, 247 U. S. 102; Boyer v. Dively, 58 Mo. 510; Johnson v. Dunlap, 68 Okla. 216, 173 Pac. 359; Cyr v. Walker, 29 Okla. 281, 116 Pac. 931; Hallowell v. Commons, 210 Fed. 793; Earl v. Godley, 42 Minn. 361; Ortley v. Ross. 78 Neb. 339; People ex rel. La Forte v. Rubin, 98 N. Y. Supp. 787; Butler v. Wilson, 54 Okla. 229, 153 Pac. 823; Proctor v. Foster, 107 Okla. 95, 230 Pac. 753; Davis v. Reeder, 102 Okla. 106, 226 Pac. 880; Pompey v. King, 101 Okla. 253, 225 Pac. 175; Buck v. Brunson, 34Okla. 807, 127 Pac. 436; Johnson v. Johnson, 30 Mo. 72; Unussee v. McKinney, 270Pac. 1096 (Okla.); and cf. Connolly v. Woolrich (1867), 11 Lower Can. Jur. 197.

    * * * The testimony now in this case shows what, as matter of history, we are probably bound to know judicially, that among these Indians polygamous marriages have always been recognized as valid, and have never been confounded with such promiscuous or informal temporary intercourse as is not reckoned as marriage. While most civilized nations in our day very wisely discard polygamy, and it is not probably lawful anywhere among English speaking nations, yet it is a recognized and valid institution among many nations, and in no way universally unlawful. We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes. They did not occupy their territory by our grace and permission, but by a right beyond our control. They were placed by the Constitution of the United States beyond our jurisdiction, and we have no more right to control their domestic usages than those of Turkey or India. * * * We have here marriages had between members of an Indian tribe in tribal relations, and unquestionably good by the Indian rules. The parties were not subject in those relations to the laws of Michigan, and there was no other law interfering with the full jurisdiction of the tribe over personal relations. We cannot interfere with the validity of such marriages without subjecting them to rules of law which never bound them.

    The jurisdiction of a tribal court over divorce actions is recognized in Raymond v. Raymond (83 Fed. 721); 19 Ops. Atty. Cert. 109 (1888).

    It is well settled that an Indian tribe has the power to prescribe the manner of descent and distribution of the property of its members, in the absence of contrary legislation by Congress. Such power may be exercised through unwritten customs and usages, or through written laws of the tribe. This power extends to personal property as well as to real property. By virtue of this authority an Indian tribe may restrict the descent of property on the basis of Indian blood or tribal membership, and may provide for the escheat of property to the tribe where there are no recog-
 

463                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

nized heirs. An Indian tribe may, if it so chooses, adopt as its own the laws of the State in which it is situated and may make such modifications in these laws as it deems suitable to its peculiar conditions.

    The only general statutes of Congress which restrict the power of an Indian tribe to govern the descent and distribution of property of its members are section 5 of the General Allotment Act (U. S. Code, title 25, sec. 348),¹³ which provides that allotments of land shall descend "according to the laws of the State or Territory where such land is located," the act of June 25, 1910, c. 431, Sec. 1, 36 Stat. 855 (U. S. Code, Title 25, Sec. 372) ,¹⁴ which provides that the Secretary of the Interior shall have unreviewable discretion to determine the heirs of an Indian in ruling upon the inheritance of individual allotments issued under the authority of the General Allotment Law, and section 2 of the same act (U. S. Code, title 25, sec. 373),¹⁵ which gives the Secretary of the Interior final power to approve and disapprove Indian wills devising restricted property.

    These statutes abolish the former tribal power over the descent and distribution of property, with respect to allotments of land made under the General Allotment Act, and rendered tribal rules of testamentary disposition subject to the authority of the Secretary of the Interior. They do not, however, affect intestate succession to personal property or interests in land other than allotments (e. g., possessory interests in land to which title is retained by the tribe). With respect to all property other than allotments of land made under the General Allotment Act, the inheritance laws and customs of the Indian tribe are still of supreme authority.¹⁶

    The authority of an Indian tribe in the matter of inheritance is clearly recognized by the United States Supreme Court in the case of Jones v. Meehan (175 U.S. 1), in which it was held that the eldest male child of a Chippewa Indian succeeded to his statutory allotment in accordance with tribal law. The court declared:

    The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only.

    But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages, and customs of the tribe, and not by the law of the State of Minnesota, nor by any action of the Secretary of the Interior. (At page 29.)

    United States v. Shanks (15 Minn. 369); Dole v. Irish (2Barb. [N. Y.] 639); Hastings v. Farmer (4 N. Y. 293, 294); The Kansas Indians (5 Wall. 737); Waupemanqua v. Aldrich (28 Fed. 489); Brown v. Steele (23 Kan. 672); Richardville v. Thorp (28 Fed. 52).

    In the case of Gray v. Coffman (3 Dill. 393, 10

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    ¹³ "Patents to be held in trust; descent and partition.-Upon the approval of the allotments provided for in sections 331 to 334, inclusive, and 336 by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: * * *"

    ¹⁴Ascertainment ofheirs of deceased allottees.-When any Indian to whom an allotment of land has been made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior upon notice and hearing under such rules as he may prescribe, shall ascertain the legal heirs of such decedent and his decision thereon shall be final and conclusive. * * *"

    ¹⁵ "Disposal by will of allotments held under trust.-Any persons of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: * * *"

    ¹⁶ The foregoing general analysis is inapplicable to the Five Civilized Tribes, Congress having expressly provided that State probate courts shall have jurisdiction over the estates of allotted Indians of the Five Civilized Tribes leaving restricted heirs. (Act of June 14, 1918, c. 101, sec. 1; 40 Stat. L. 606; U. S. Code, title 25, sec. 375.)
 

464                                                           DEPARTMENT OF THE INTERIOR                           OCTOBER 25, 1934

Fed. Cases, No. 5,714), the court held that the validity of the will of a member of the Wyandot tribe depended upon its conformity with the written laws of the tribe. The court declared:

    The Wyandot Indians, before their removal from Ohio, had adopted a written constitution and laws, and among others, laws relating to descent and wills. These are in the record and are shown to have been copied from the laws of Ohio and adopted by the Wyandot tribe, with certain modifications, to adapt them to their customs and usages. One of these modifications was that only living children should inherit, excluding the children of deceased children, or grandchildren. The Wyandot council, which is several times referred to in the treaty of 1855, was an executive and judicial body and had power, under the laws and usages of the nation, to receive proof of wills, etc.; and this body continued to act, at least to some extent, after the treaty of 1855.

    * * * under the circumstances, the court must give effect to the well-established laws, customs, and usages of the Wyandot tribe of Indians in respect to the disposition of property by descent and will.

    Tribal autonomy in the regulation of descent and distribution is recognized in the case of Woodin v. Seeley (141 Misc. 207; 252 N. Y. Supp. 818). In this case, and in the case of Patterson v. Council of Seneca Nation (245 N. Y. 433; 157 N. E. 734), the supremacy of tribal law in matters of inheritance and membership rights is defended on the ground-

that when Congress does not act no law runs on an Indian reservation save the Indian tribal law and custom.

    If it were true that, upon the death of a tribal Indian, his property, real and personal, became subject to the laws of the state directing the mode of distribution of estates of decedents, it is apparent that irremediable confusion would be caused thereby in the affairs of the Indians * * * (At page 262.)

    The Creek Council, in the exercise of its lawful function of local self-government, saw fit to limit the legal rights of an illegitimate child to that of sharing in the estate of his putative father, and not to confer upon such child generally the status of a child born in lawful wedlock (Oklahoma Land Company v. Thomas, 34 Okla. 681, 127 Pac. 8.)

    In the case of Dole v. Irish (2 Barb. 639) it was held that a surrogate of the State of New York has no power to grant letters of administration to control the disposition of personal property belonging to a deceased member of the Seneca tribe. The court declared:

    I am of the opinion that the private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration; and that the letters of administration granted by the surrogate to the plaintiff are void. I am also of the opinion that the distribution of Indian property according to their customs passes a good title, which our courts will not disturb; and therefore that the defendant has a good title to the horse in question and must have judgment on the special verdict. (At pages 642-643.)

465                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

    In the case of Mackey v. Coxe (18 Hoe. 100), the Supreme Court held that letters of administration issued by a Cherokee court were entitled to recognition in another jurisdiction, on the ground that the status of an Indian tribe was in fact similar to that of a Federal territory.

    In the case of Meeker v. Kaelin (173 Fed. 216), the court recognized the validity of tribal custom in determining the descent of real and personal property and indicated that the tribal custom of the Puyallup band prescribed different rules of descent for real and for personal property.

    Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.

    The case of Buster v. Wright (135 Fed. 947, app. dism., 203 U.S. 599), contains an excellent analysis of the taxing power of the Creek Nation:

    Repeated decisions of the courts, numerous opinions of the Attorneys General, and the practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek Nation had lawful authority to require the payment of this tax as a condition precedent to the exercise of the privilege of trading within its borders, and that the executive department of the government of the United States had plenary power to enforce its payment through the Secretary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police. Morris v. Hitchcock,194 U.S. 384, 392, 24 Sup. Ct. 712, 48 L. Ed. 1030; Crabtree v. Madden, 4 C. C. A. 408, 410, 413, 54 Fed. 426, 428, 431; Maxey v. Wright, 3 Ind. T. 243, 54 S. W. 807; Maxey v. Wright, 44 C. C. A. 683, 105 Fed. 1003; 18 Opinions of Attorneys General, 34, 36; 23 Opinions of Attorneys General, 214, 217, 219, 220, 528. * * *

    * * * It may not be unwise, before entering upon the discussion of this proposition, to place clearly before our minds the character of the Creek Nation and the nature of the power which it is attempting to exercise.

    The authority of the Creek Nation to prescribe the terms upon which noncitizens may transact business within its borders did not have its origin in act of Congress, treaty, or agreement of the United States. It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the agreement of the nation itself or by the superior power of the republic it is taken from it. Neither the authority nor the power of the United States to license its citizens to trade in the Creek Nation, with or without the consent of that tribe, is in issue in this case, because the complainants have no such licenses. The plenary power and lawful authority of the government of the United States by license, by treaty, or by act of Congress to take from the Creek Nation every vestige of its original or acquired governmental authority and power may be admitted, and for the purposes of this decision are here conceded. The fact remains nevertheless that every original attribute of the government of the Creek Nation still exists intact which has not been destroyed or limited by act of Congress or by the contracts of the Creek tribe itself.

    Originally an independent tribe, the superior power of the republic early reduced this Indian people to a "domestic, dependent nation" (Cherokee Nation v. State of Georgia, 5 Pet. 1-20, 8 L. Ed. 25), yet left it a distinct political entity, clothed with ample authority to govern its inhabitants and to manage its domestic affairs through officers of its own selection, who under a Constitution modeled after that of the United States, exercised legislative, executive, and judicial functions within its territorial jurisdiction for more than half a century. The governmental jurisdiction of this nation was neither conditioned nor limited by the original title by occupancy to the lands within its territory. * * * Founded in its original national sovereignty, and secured by these treaties, the governmental authority of the Creek Nation, subject always to the superior power of the republic, remained practically unimpaired until the year 1889. Between the years 1888 and 1901 the United States by various acts of Congress deprived this tribe of all its judicial power, and curtailed its remaining authority until its powers of government have become the mere shadows of their former selves. Nevertheless its authority to fix the terms upon which noncitizens might conduct business within its territorial boundaries guaranteed by the treaties of 1832, 1856, and 1866, and sustained by repeated decisions of the courts and opinions of the Attor-

466                                                           DEPARTMENT OF THE INTERIOR                           OCTOBER 25, 1934

neys General of the United States, remained undisturbed.

    * * * It is said that the sale of these lots and the incorporation of cities and towns upon the sites in which the lots are found authorized by act of Congress to collect taxes for municipal purposes segregated the town sites and the lots sold from the territory of the Creek Nation, and deprived it of governmental jurisdiction over this property and over its occupants. But the jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it, or by the existence of municipalities therein endowed with power to collect taxes for city purposes, and to enact and enforce municipal ordinances. Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners. (At pp. 949-952.)

    In the latter case, the Court of Appeals of the District of Columbia, considering the validity of a tax or fee imposed by the Chickasaw Nation upon the owners of all cattle grazed within the Chickasaw territory, analyzed the status and powers of the Chickasaw Nation in these terms:

    A government of the kind necessarily has the power to maintain its existence and effectiveness through the exercise of the usual power of taxation upon all property within its limits, save as may be restricted by its organic law. Any restriction in the organic law in respect of this ordinary power of taxation, and the property subject thereto, ought to appear by express provision or necessary implication. Board Trustees v. Indiana, 14 How. 268, 272; Talbott v. Silver Bow Co., 139U.S. 438, 448. Where the restriction upon this exercise of power by a recognized government, is claimed under the stipulations of a treaty with another, whether the former be dependent upon the latter or not, it would seem that its existence ought to appear beyond a reasonable doubt. We discover no such restriction in the clause of Article 7 of the Treaty of 1855, which excepts white persons from the recognition therein of the unrestricted right of self-government by the Chicasaw Nation, and it full jurisdiction over persons and property within its limits. The conditions of that exception may be fully met without going to the extreme of saying that it was also intended to prevent the exercise of the power to consent to the entry of non-citizens or the taxation of property actually within the limits of that government and enjoying its benefits. (Morris v. Hitchcock,21 App. D.C. 565, 593.)

    * * * in the absence of express contradictory provisions by treaty, or by statute of the United States, the Nation (and not a citizen) is to declare who shall come within the boundaries of its occupancy, and under what conditions. (At page 36.)

See, to the same effect, 17 Ops. Atty. Gen. 134; 18 Ops. Atty. Gen. 34.

    The power of an Indian tribe to exclude non members of the tribe from entering upon the reservation was first clearly formulated in an opinion of the Attorney General rendered in 1821 with respect to the lands of the Seneca Indians:

    So long as a tribe exists and remains in possession of its lands, its title and possession

467                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. (1 Op. Atty, Gen. 465, 466).

    Although the last implication of this doctrine, if originally valid, has been superseded by many statutes authorizing and directing officers and agents of the United States to enter upon Indian lands for various purposes, the basic principle that an Indian tribe may exclude private individuals from the territory within its jurisdiction, or prescribe the conditions upon which such entry will be permitted, has been followed in a long line of cases.

    Two grounds for this power of exclusion are established by the decided cases: first, the Indian tribe may exercise, over all tribal property, the rights of a landowner; second, the tribe may, in the exercise of local self-government, regulate the relations between its members and other persons, so far as may be consistent with Congressional statutes governing trade and intercourse.

    In Rainbow v. Young (161 Fed. 835) it was held that the Indian superintendent and Indian police had power to remove an attorney seeking to collect fees on a day when lease money was being paid to the Indians. In addition to the specific authority to remove undesirable persons granted by Revised Statutes, sec. 2149 (recently repealed by act of May 21, 1934, 48 Stat. 787), the court found that the power to remove nonresidents was incidental to the general powers of a landowner, which the United States was qualified to exercise with respect to Indian lands:

    Besides, the reservation from which Mr. Sloan was removed is the property of the United States, is set apart and used as a tribal reservation and in respect of it the United States has the rights of an individual proprietor (citing cases) and can maintain its possession and deal with intruders in the like manner as can an individual in respect of his property. (At p. 837.)

    As was said in the case of Stephenson v. Little (18 Mich. 433), in which it was held that the United States Government as a landowner might, through officials of the Land Office, seize and direct the sale of timber cut on public lands even though other timber had been mixed with that so cut:

    It seems to me there can be no doubt that the Government has all the common-law rights of an individual in respect to depredations committed on its property, and that where there is no statute making it the duty of any particular official to enforce those rights, it is ex-necessitate rei made the duty of the Executive Department of the Government to enforce them (At page 440.)

    The cases cited with respect to the power of an Indian tribe to tax nonmembers, as a condition of entry or residence within the jurisdiction of the tribe, confirm the foregoing conclusions, and indicating further that the power of an Indian tribe to exclude nonmembers is not limited to lands in tribal ownership.

    Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign payer of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority. Morrisv. Hitchcock (194 U.S. 384) and other cases cited under heading "The Taxing Power of an Indian Tribe."

    The powers of an Indian tribe with respect to property derive from two sources. In the first place, the tribe has all the rights and powers of a property owner with respect to tribal property. In the second place, the Indian tribe has, among its powers of sovereignty, the power to regulate the use and disposition of individual property among its members.
 

468                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

    The powers of an Indian tribe over tribal property are no less absolute than the powers of any landowner, save as restricted by general acts of Congress restricting the alienation or leasing of tribal property," and particular acts of Congress designed to control the disposition of particular funds or lands.

    The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create any vested rights in the occupant as against the tribe is supported by a long line of court decisions:

  Sizemore v. Brady, 235 U.S. 441; Franklin v. Lynch, 233U.S. 269; Gritts v. Fisher, 224 U.S. 640 Journeycake v. Cherokee Nation and United States, 28 Ct. Cls. 281; Sac and Fox Indians of Iowa v. Sac and Fox Indians of Oklahoma and the United States, 45 Ct. Cls. 287, aff'd 220U.S. 481; Hayes v. Barringer, 168 Fed. 221; Dukes v. Goodall, 5 Ind. T. 145, 82 S. W. 702; In re Narragansett Indians, 20 R. I. 715; Terrance v. Gray, 156 N. Y. Supp. 916; Reservation Gas Co. v. Snyder, 88 Misc. 209; 150 N. Y. Supp. 216; Application of Parker, 237 N. Y. Supp. 135; McCurtain v. Grady; 1 Ind. T. 107, 38 S. W. 65; Whitmire, trustee, v. Cherokee Nation, 30 Ct. Cls. 138; Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178.

lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. (At p. 446.)

    As the tribe could not sell, neither could the individual members, for they had neither an undivided interest in the tribal land nor vendible interest in any particular tract. (At p. 271.)

    The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies his right of property does not descend: if he removes from the community it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property in the land as perfect as that of any other person; and his children after him will enjoy all that he enjoyed, not as heirs but as communal owners.

    With this power of regulation and control of the public domain and the jus disponendi lodged in the government of the Nation, it is plain that the communal element has been reduced to a minimum and exists only in the occupied lands. And it is manifest that with the growth of civilization, with all of its intricacies and manifold requirements, the communal management of the public domain would have been utterly insufficient and, if it had continued, would have been a barrier to the advancement of civilization itself.

  "Purchases or grants of lands from Indians.-No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. * * *"

    U.S. Code, title 25, sec. 85. provides:

  "Contracts relating to tribal funds or property.-Nocontract made with any Indian. where such contract relates to the tribal funds or property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given. (June 30, 1913, c. 4, sec. 18, 38Stat. 97.)"

    Statutes restricting tribal powers to lease tribal lands are cited at pages 53-54, infra.

    The foregoing restrictions are partially modified by the Wheeler-Howard Act (48 Stat. 984), sets. 4,6, 17.

    It is recognized that property held by the United States in trust for an Indian tribe is, like other trust property, subject to terms of the trust with respect to the use and disposition of corpus and income. Thus it is provided that tribal funds held by the United States in trust for Indian tribes may be expended only in accordance with annual statutory appropriations, except for certain designated purposes as to which annual statutory appropriation is not required. See act of May 18, 1916, c. 125. sec. 27, 39 Stat. L. 159.
 

469                                                             OPINIONS OF THE SOLICITOR                               OCTOBER 25, 1934

    With these powers of absolute ownership lodged in the Cherokee government, the power to alienate, the power to lease, the power to grant rights of occupancy, the power to restrict rights of occupancy, and with the exercise of those powers running back to the very year of the adoption of the constitution, and receiving from that time to the present the unquestioning acquiescence of the former communal owners, the Cherokee people, it is apparent that the "public domain" of the Cherokee Nation is analogous to the "public lands" of the United States or the "demesne lands of the Crown," and that it is held absolutely by the Cherokee government, as all public property is held, a trust for governmental purposes and to promote the general welfare.

    * * * At that time these were the lands of the Choctaw and Chickasaw Nations, held by them, as they held all their lands, in trust for the individual members of their tribes, in the sense in which the public property of representative governments is held in trust for its people. But these were public lands, and, while the enrolled members of these tribes undoubtedly had a vested equitable right to their just shares of them against strangers and fellow members of their tribes, they had no separate or individual right to or equity in any of these lands which they could maintain against the legislation of the United States or of the Indian Nations. Stephens v. Cherokee Nation, 174 U.S. 445, 488, 19 Sup. Ct. 722, 43L. Ed. 1041, Cherokee Nation v. Hitchcock,187 U.S. 294, 23 Sup. Ct. 115, 47 L. Ed.183: Lone Wolf v. Hitchcock,187 U.S. 553, 23 Sup. Ct. 216; 47 L. Ed. 299;Wallace v. Adams,143 Fed. 716, 74 C. C.A. 540; Ligon v. Johnston (C. C.A.), 164 Fed. 670.

    The extent of any individual's interest in tribal property is subject to such limitations as the tribe may see fit to impose.

  Thus, in Reservation Gas Co. v. Snyder, supra, it was held that an Indian tribe might dispose of minerals on tribal lands which had been assigned to individual Indians for private occupancy, since the individual occupants had never been granted any specific mineral rights by the tribe.

    In Terrance v. Gray, supra, it was held that no act of the occupant of assigned tribal land could terminate the control duly exercised by the chiefs of the tribe over the use and disposition of the land.

    In Application of Parker, supra, it was held that the Tonawanda Nation of Seneca Indians had the right to dispose of minerals on the tribal allotments of its members and that the individual allottee had no valid claim for damages.

    In the caseof McCurtain v. Grady, supra,a provision of the Choctaw constitution conferring upon the discoverer of coal the right to mine all coal within a mile radius of the point of discovery was upheld as a valid exercise of tribal power.

    In Whitmire, trustee, v. Cherokee Nation, supra, the Court of Claims held that the general property of the Cherokee Nation, under the provisions of the Cherokee constitution, might be used for public purposes, but could not be diverted to per capita payments to a favored class.

    The chief limitation upon tribal control of membership rights in tribal property is that found in acts of Congress guaranteeing to those who sever tribal relations to take up homesteads on the public domain,¹⁸ and to children of white men and Indian women, under certain circumstances,¹⁹ a continuing share in the tribal property. Except for these general limitations and other specific statutory limitations found in enrollment acts and other special acts of Congress, the proper authorities of an Indian tribe have full authority to regulate the use and disposition of tribal property by the members of the tribe.

    The authority of a tribal council to lease tribal lands is specifically confirmed by U.S. Code, title

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    ¹⁸ U. S. Code, title 43. sec. 189, provides that an Indian severing tribal relations to take up a homestead upon the public domain "shall be entitled to his distributive share of all annuities, tribal funds, lands and other property, the same as though he had maintained his tribal relations." For a discussion of this and related statutes, see Oakes v. United States (172 Fed. 305).

    ¹⁹ U.S. Code, title 25, sec. 184:

  "Rights of children born of marriages between white men and Indian women.-All children born of a marriage solemnized prior to June 7, 1897, between a white man and an Indian woman by blood and not by adoption, where said Indian woman was on that date, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right. (June 7, 1897, c. 3, sec. 1, 30 Stat. 90.) "
 

470                                                          DEPARTMENT OF THE INTERIOR                            OCTOBER 25, 1934

25, sections 397, 398, and 402.²⁰ Although the exercise of such authority is made subject to the approval of the Secretary of the Interior, it has been said that:

    From the language of this statute it appears reasonably certain that it was the legislative purpose to confer primary authority upon the Indians, and that the determination of the council should be conclusive upon the government, at least in the absence of any evidence of fraud or undue influence. (White Bear v. Barth, 61 Mont. 322, 203 Pac. 517.)

  See United States v. Hunter, 4 Mackey (D. C.) 531; Kirby v. United States, 273 Fed. 391, aff'd., 260 U.S. 423.

    Similarly, U.S. Code, title 25, section 180, imposing a penalty upon persons settling on Indian lands, has been judicially interpreted as implying that an Indian tribe has power to permit such settlement upon such terms as it may prescribe. The cases on this subject have been analyzed under the heading "The Power of an Indian Tribe to Exclude Nonmembers From Its Jurisdiction."

    The authority of an Indian tribe in matters of property is not restricted to those lands or funds over which it exercises the rights of ownership. The sovereign powers of the tribe extend over the property as well as the person of its members.

    Thus, in Crabtree v. Madden (54Fed. 426), it is recognized that questions of the validity of contracts among members of the tribe are to be determined according to the laws of the tribe.

    See, to the same effect:

  In re Sah Quah,31 Fed. 327; Jones v. Laney, 2 Tex. 342.

    Their laws and customs, regulating property, contracts, and the relations between husband and wife, have been respected, when drawn into controversy. In the courts of the State and of the United States. (At p. 348.)

    The law of real property is to be found in the law of the situs. The law of real property in the Cherokee country, therefore, is to be found in the constitution and laws of the Cherokee Nation.

    In the caseof James H. Hamilton v. United States (42 Ct. Cls. 282), it appeared that land, buildings, and personal property owned by the claimant, a licensed trader, within the Chickasaw reservation, had been confiscated by an act of the Chickasaw legislature. The plaintiff brought suit to recover damages on the theory that such confiscation constituted an "Indian depredation." The Court of Claims dismissed the suit, declaring:

    The claimant by applying for and accepting