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INTRODUCTION

    Congress, by the Indian Civil Rights Act of 1968, authorized and directed the Secretary of the Interior to "have prepared, to the extent determined by the Secretary . . . to be feasible, an accurate compilation of the official opinions, published and unpublished, of the Solicitor of the Department of the Interior relating to Indian affairs . . .". 25U.S.C. 1341. These volumes represent an endeavor to carry out that mandate.

    Some of the opinions included here have previously appeared in the series entitled Decisions of the Department of the Interior Relating to Public Lands (cited "L.D.") and its continuation, Decisions of the Department of the Interior (cited "I.D."). Most, however, have never before been published. Thus, an extremely valuable, but largely inaccessible, source for the study of Indian law has become available to the public for the first time.

    The opinions of the chief legal officer of the Department of the Interior, which has primary responsibility for the management of Indian affairs, often have implications reaching far beyond the perimeters of ordinary administrative decisions. They deal not only with matters arising from the day-to-day functioning of the Bureau of Indian Affairs, but also interpret major Indian statutes, determine the status of Indian land and rights in natural resources, define tribal governmental powers and analyze many other subjects of vital import to Indian tribes and Indian people.

    The utility of the opinions in these volumes is not that they have binding effect but that they are often accorded "great weight" by the courts. See United States v. Jackson, 280U.S. 183, 193 (1930) and Udall v. Tallman, 380 U.S. 1 (1965). The extensive index provided in these volumes will hopefully facilitate efforts of practitioners in finding the more important and useful opinions and legal conclusions of administrative officers.

    It should be noted that, while every effort was made to find all existing opinions, inevitably, in a project of this scope, some will have inadvertently been missed. (Seven opinions, located after this compilation was sent to the printer, are included in the Addenda.) Moreover, it was determined at the time the compilation was sent to the printer that the 1968 Act authorized publication only of those opinions signed by the Solicitor or Deputy Solicitor. Therefore, decisions and opinions of other officials, such as Assistant Secretaries and Associate Solicitors, are not included, unless they were expressly approved by the Solicitor.

    It is expected that supplements to this compilation will be published periodically. In the mean time, recent important opinions can be located through the Index-Digest published by the Office of Hearings and Appeals of the Department of the Interior, which indexes all opinions included in the annual volume of Interior Decisions as well as major unpublished opinions.

    This compilation was prepared in the Office of the Solicitor, under the direction of Deputy Solicitors Raymond C. Coulter and David E. Lindgren, by the staff of the Indian Civil Rights Task Force.
 


STOCKBRIDGE AND MUNSEE TRIBE--
PER CAPITA PAYMENTS

D.-42071                                                                                                                                          October 8, 1917.

The Secretary of the Interior.

DEAR MR  SECRETARY:

    My opinion is requested on certain matters submitted by the Indian Office in connection with per capita payments to the members of the Stockbridge and Munsee Tribes of Indians, as authorized by the act of May 18, 1916 (39 Stat., 123, 156), which reads as follows:

There is hereby appropriated the sum of $95,000, to be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians, for the payment of the members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the Act of Congress of March third, eighteen hundred and ninety-three, equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said Act, and such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March third, eighteen hundred and ninety-three, entitled, "An Act for the relief of the Stockbridge and Munsee Tribes of Indians of the State of Wisconsin."

    The questions are as to what persons are entitled to share in these funds and also whether the fifteen-dollar fee authorized to be collected in determining the heirs of deceased Indians is chargeable in connection with the distribution of such funds.

    The particular cases in which the above questions are raised involve the estates of Harriette Bennett and George J. Bennett, deceased Stockbridge Indians of the Keshena Reservation in Wisconsin. Harriette died in 1907. She was married twice, her first husband being Joseph Martin, who died in 1874. Three children were born of this marriage. Her second husband was George J. Bennett, who died in 1895. There were no children born of this marriage, but it appears that George had several children by a former marriage. Neither Harriette nor George was ever allotted land so far as the record shows, but under the provisions of the act of May 18, 1916, supra, their heirs are claimants of what would have been the parents' shares in the funds appropriated by said act had they lived. The share of each, Harriette and George, is estimated to be $567.33.

    The Wisconsin statutes provide:

The widow, if any, shall be allowed all her articles of apparel and ornaments and all the wearing apparel and ornaments of the deceased, the household furniture of the deceased not exceeding in value $250, and other personal property to be selected by her not exceeding in value $200. This allowance shall be made when the widow waives the provision made for her in the will of her husband or when none is made for her as well as when he dies intestate.

    In determining the heirs and distributing the estate of Harriette Bennett, the Department, on May 21, 1917, in approving the recommendation of the Indian Office treated her share in the above funds as part of her estate, dividing it equally among the three children born of the marriage with her first husband, Joseph Martin. It was also found that Harriette under the above provisions of the Wisconsin statutes was entitled to $200 of the share of her second husband, George J. Bennett, and this sum was also divided equally among her children by the first marriage.

    The language of the act of May 18, 1916, supra, provides that "such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March 3, 1893." This provides only for payments to claimants living or to claimants whose deceased ancestors were enrolled under the act of March 3, 1893. The usual definition of "ancestor" is one who has preceded another in a direct line of descent. In contemplation of the said act of May 18, 1916, George J. Bennett was not the "ancestor" of either Harriette Bennett or of the children by her first husband. Furthermore, the Wisconsin statutes provide that a selection must be made by the widow of "other personal property" of the deceased husband "not exceeding in value $200." The death of George as well as that of Harriette occurred prior to the passage of said act of May 18, 1916, consequently it was not possible for her to make the required selection so far as the funds in question are concerned. The funds as appropriated are communal in their nature, and at the time of George's death his share had not only not been distributed but was not in existence: hence the provisions of the Wisconsin statutes of allowance and distribution above quoted do not apply in the distribution of his estate, as George, at the time of his
 


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 8, 1917

death, did not have such an interest in the undivided funds of the tribe as would sustain the right of selection by the widow under said statutes.

    The proper distribution of the personal or individual share of Harriette Bennett is to the children by her first husband in equal parts, and that of the share of George Bennett to his children in equal parts without any deduction from his share on account of his widow, the said Harriette Bennett.

    In determining the heirs of Harriette Bennett on May 21, 1917, a fee of $15 was charged against said heirs under the provisions of the act of May 18, 1916 (39 Stat., 123, 127) The original authority for the collection of this fee was contained in the act of June 30, 1913 (38 Stat., 77, 80), in connection with an appropriation "for the purpose of determining the heirs of deceased Indian allottees pursuant to the act of June 25, 1910 (36 Stat., 855, 856)." The authority was continued in subsequent Indian appropriation acts, and in each instance was in connection with an appropriation for determining the heirs of deceased Indian "allottees." The act of June 30, 1913, provided for the collection of the sum of $15, to cover the cost of determining the heirs to the estate of said deceased allottee."

    The act of June 25, 1910, was for the purpose primarily, at least, of determining the heirs of deceased Indians to whom allotments of land had been made, the act providing "that when any Indian to whom an allotment of land has been made dies before the expiration of the trust period the Secretary of the Interior shall ascertain the legal heirs of such decedent."

    That act involves the determination of heirs to personal or individual property, while the money appropriated by the act of May 18, 1916 (39 Stat., 123, 156), was an additional communal fund authorized to be distributed per capita to those members of the Stockbridee and Munsee Tribes of Indians who were enrolled prior to March 3, 1893. This is in no sense such property as was contemplated by the act of May 18, 1916 (39 Stat., 123, 127), and prior similar acts authorizing the collection of a fifteen-dollar fee in connection with the work of determining the heirs of deceased Indian allottees; consequently there is no authority for requiring the heirs under that act to pay such fee-in fact, the funds involved in the act of May 18, 1916 (39 Stat., 123, 156), are not only tribal in character but under its provisions claimants of the shares of deceased ancestors take direct and not by inheritance.

FIVE CIVILIZED TRIBES--EMINENT DOMAIN

D-40462                                                                                                                                              October 31, 1917.

The Honorable
The Secretary of the Interior

DEAR MR. SECRETARY:

    My opinion has been requested as to certain questions presented in communications from the Commissioner of Indian Affairs and the Superintendent for the Five Civilized Tribes of Oklahoma.

    1. The first question presented is as to whether a tract of land stated to be one acre in extent desired by school district No. 23 of Creek County, Oklahoma, for school purposes and lying within the homestead selected March 9, 1902, for Annie Scott, a minor full-blood Creek Indian, to wit, the NW. 1/4, Sec. 15, T. 19, R. 9, may be acquired through condemnation proceedings. It appears that the guardian of the Indian has declined to sell.

    The agreement of March 8, 1900, with the Creek Tribe of Indians, which was ratified and confirmed by the act of March 1, 1901 (31 Stat., 861), provided in Section 3 for an allotment as a general rule of 160 acres of land. Section 7 provided that the allotment should not be alienable before the expiration of five years from the ratification of the agreement, except with the approval of the Secretary of the Interior. The section then provided-

Each citizen shall select from his allotment forty acres of land as a homestead, which shall be nontaxable and inalienable and free from any incumbrance whatever for twenty-one years, for which he shall have a separate deed, conditioned as above *     *     *.

    The supplemental Creek agreement ratified by the act of June 30, 1902 (32 Stat., 500), provided in section 16-

Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefore, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear.

    The act of June 30, 1902, was carried into effect by the President's Proclamation of August 8, 1902 (32 Stat. 2021).
 


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 31, 1917

    The act of March 3, 1901 (31 Stat., 1058, 1084), provides in section 3-

That lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

    The act of May 27, 1908 (35 Stat., 312), provided for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes. It contains the following provisions in section l-

    * * * All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations, concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this Act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this Act. No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty-three inclusive, or an act entitled "An act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes," approved February twenty-eighth, nineteen hundred and two (Thirty-second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma.

    Section 10, act of May 29, 1908 (35 Stat., 444), provides in part-

* * * The Secretary at the Interior also shall have authority to remove the restrictions on the sale of such lands, not to exceed two acres in each case, as allottees of the Five Civilized Tribes, including full-bloods and minors, may desire to sell for school purposes.

    The act of March 3, 1901 (31 Stat., 1084), in brief, authorizes condemnation of lands allotted to Indians for public purposes. This act is general in its operation. Congress, however, has legislated specifically as to the homestead tracts allotted to Creek Indians, especially as to full-blood Indians. The act of May 27, 1908, supra, prohibits the alienation or any incumbrance upon such homestead prior to April 26, 1931, except when the restrictions are removed for the sale and disposal of the proceeds for the benefit of the Indian. Congress then qualified the effect of the restriction of alienation so as not to "prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands," etc. The act of May 27, 1908, prohibits the alienation of the homestead of a full-blood minor Creek Indian and permits the exercise of the right of eminent domain solely for "rights of way for public purposes." The term "rights of way" can not be construed to include land desired for school purposes. Under section 6 of the act of May 27, 1908, the property of a minor allottee is subject to the jurisdiction of the probate court of the State of Oklahoma, but it is provided-

That no restricted lands of living minors shall be sold or encumbered, except by leases authorized by law, by order of the court or otherwise.

    Section 10 of the act of May 29, 1908, supra, provides for a method of conveyance of restricted land of this character for school purposes when the allottee desires to sell.

    The result of the legislation by Congress appears to be that the right of eminent domain as to a homestead of a full-blood minor Creek Indian is confined to the acquirement of rights of way, Congress having specified the particular purpose for which the right of eminent domain may be invoked, thus excluding other purposes from the exercise of that right. Its intention appears to have been to permit the acquisition of lands of this restricted character desired for school purposes by means of the voluntary conveyance of the allottee or the guardian of a minor allottee. The general provisions of the act of March 3, 1901 (31 Stat., 1058), having been superseded by the specific provisions relating to the Creek restricted lands, it accordingly follows that there is no right of eminent domain
 


 

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DEPARTMENT OF THE INTERIOR

October 31, 1917

under the existing law for the purpose of securing a school site upon the homestead of Annie Scott.

    2. A similar question is presented in the case of Nancy Hogtoater, a Cherokee Indian, who apparently has received an allotment or homestead under sections 11 and 13 of the act of July 1, 1902 (32 Stat., 716), and as to which the restrictions of the act of May 27, 1908, supra, apply. It appears that a school district here erected a building upon the land of the Indian without securing her consent or that of the Secretary of the Interior, and without attempting to institute condemnation proceedings. Under the views above expressed in the case of Annie Scott there is no right of eminent domain for school purposes. It may be suggested that the matter may be settled through the sale of the area desired by the school district under the act of May 29, 1908, supra. In the event that the school district declines to compensate the Indian for the area appropriated the proper legal proceedings may be instituted against it.

    3. The question is also presented as to whether the town of Kusa may condemn Creek restricted lands as a right-of-way for a water pipe line. I assume that the town of Kusa is a municipal corporation under the laws of Oklahoma: that the water pipe line is to be used for municipal purposes, and that the Creek lands involved are of the character subject to the restrictions contained in the act of May 27, 1908, supra. This act relative to the right of eminent domain provides as follows--

No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty three inclusive, of an act entitled "An act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes," approved February twenty eighth, nineteen hundred and two (Thirty second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma.

    Section 13 of the act of February 28, 1902, grants the right of way and power of condemnation as to railway, telegraph and telephone lines. The succeeding sections of the act provide the method by which such rights of way can be acquired. The act of May 27, 1908, permits the exercise of the right of eminent domain "in condemning rights of way for public purposes." The term "rights of way" is general and includes all forms and in addition the particular kinds of right of way provided for in the act of February 28, 1902, supra, may still be acquired under the provisions of that act. I am, accordingly, of the opinion that the town of Kusa may exercise the right of eminent domain for this purpose. A similar question was suggested as to the Wichita Pipe Line Company, but since it now appears that the right of way desired by it is not for public use no consideration as to the question of eminent domain is necessary.

    4. The next question presented is as to whether the right of eminent domain may be exercised over restricted lands of the Choctaw and Chickasaw Indians for the purpose of securing a public highway, not following a section line.

    The allotments and homesteads of the Choctaw's and Chickasaw's were made under the act of July 1, 1902 (32 Stat., 641). and under similar provisions as the remainder of the Five Civilized Tribes. The allotments are also subject to the restrictions contained in the act of May 27, 1908, supra. The act of April 26, 1906, (34 Stat., 137), provides in section 24--

That in the Choctaw, Chickasaw, and Seminole nations public highways or roads two rods in width, being one rod on each side of the section line, may be established on all section lines; and all allottees, purchasers, and others shall take title to such land subject to this provision *     *     *

    The question arises as to whether the right of eminent domain may be exercised when the road does not follow the section line as provided in the above act.

    The act of May 27, 1908, permits, as stated above in relation to the town of Kusa, the exercise of the right of eminent domain in securing "rights of way for public purposes." The privilege which one person, or a particular description of persons, may have of passing over the land of another in some particular line is termed a right of way. A right of way may be public or private. Public ways, as applied to ways by land, are usually termed highways or public roads and are such ways as every citizen has a right to use. (See Kripp v. Curtis, 11 Pacific, 879; Poole v. Greer, 65 Atlantic 767.) A public highway, therefore, is a right of way within the meaning of the act of May 27, 1908, and the right of eminent domain may be exercised for that purpose.

    5. The next question presented is as to whether the regulations of this Department concerning public roads over Indian lands and approved June 30, 1914, apply to the Five Civilized Tribes.

    These regulations were adopted under the provisions of section 4 of the act of March 3, 1901 (31 Stat., 1058, 1084)) which provides--
 


 

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DEPARTMENT OF THE INTERIOR

December 11, 1918

    That the Secretary of the Interior is hereby authorized to grant permission upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which have not been conveyed to the allottees with full power of alienation.

    The provision relative to highways over Choctaw and Chickasaw lands has been quoted above. Similar provisions are found as to the Creek lands in section 10 of the act of June 30, 1902 (32 Stat., 500), reserving a highway three rods in width along the section line, and as to the Cherokee in section 37 of the act of July 1, 1902 (32 Stat., 716), reserving a road two rods in width along the section line. Congress, accordingly, as to the Five Civilized Tribes, has made provision for highways along section lines, and as a general rule there is no necessity of invoking section 4 of the act of March 3, 1901, or the regulations of this Department thereunder. Where it is desired to deviate from the section line the right of eminent domain may be exercised as has already been stated. It is not necessary to consider here as to whether the Secretary of the Interior could grant permission under the act of March 3, 1901, supra, for a public highway not following a section line across an allotment in the Five Civilized Tribes, since no case of that character has been presented.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

FIVE CIVILIZED TRIBES--COAL LEASES

                                                                                                                    December 11, 1918.

The Secretary of the Interior.

SIR:

    My opinion has been requested as to the question arising under the act of February 8, 1918, Public No. 98, providing for the sale of the coal and asphalt deposits in the segregated mineral land in the Choctaw and Chickasaw Nations, Oklahoma, presented in a communication from the Panama Coal Company dated November 23, 1918, to Mr. Gabe E. Parker, Superintendent for the Five Civilized Tribes. The question as stated in the letter of the Superintendent to the Commissioner of Indian Affairs dated December 3, 1918, concerns the application of royalties heretofore paid by the Panama Coal Company in the event that it purchases the coal deposits upon the tract leased. The Superintendent's letter states that the president of that company asks:

    How the Panama Coal Company can be given credit for the royalties paid by it to the Choctaw and Chickasaw tribes on its coal lease, in payment of the purchase price of the coal, and requests to be furnished with the Department's construction of the meaning of the Act of Congress of February 8th, 1918 (Public No. 98, 65th Congress), concerning credits that may be given lessees for royalties paid by them in the purchase of the coal deposits. The records of this office show that there is to the credit of said coal company as advanced royalty $882 and a credit of $5,895.21, as money paid for failure to produce coal, making a total credit to the company of $6,777.21 that can be used in payment of royalties on coal produced. There has been mined by this company under its said lease a total of 170, 898.21 tons of coal, but no coal is reported as having been mined since December 1917, and only 23,758.00 tons have been mined since September 30th, 1911. It also appears that said coal company purchased the surface of the land reserved by it for mining purposes under the Act of February 19th, 1912, which was paid for in full and deed thereto issued and delivered to said company.

    I presume that the advance royalty of $882 referred to is the royalty required to be paid under Sec. 29 of the Act of June 28, 1898 (30 Stat., 495-510) , and that the credit of $5,895.21 of money paid for failure to produce coal is the payment required by the regulations of this Department promulgated December 6, 1907.

    Section 4 of the Act of February 8, 1918, provides in part:

That such deposits of coal or asphalt on the leased lands shall be sold subject to all rights of the lessees and that any person acquiring said deposits of coal or asphalt shall take the same subject to said rights and acquire the same under the express understanding and agreement that the Department of the Interior will cancel and withdraw all rules and regulations and relinquish all authority heretofore exercised over the operation of said mines by reason of the Indian ownership of said prop-



 

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DEPARTMENT OF THE INTERIOR

DECEMBER 11, 1918

erty and that said properties thereafter shall be operated under and in conformity with such laws as may be applicable thereto, and that advance royalty paid by any lessee and standing to the credit of said lessee shall be credited by said purchaser to the extent of the amount thereof, and that no royalties shall be paid by said lessee to said purchaser until the credit so given shall be exhausted at the rate of 8 cents per ton mine run, and that the royalty to be paid thereafter by said lessee to said purchaser shall be 8 cents per ton mine run of coal, and that any lessee may, at any time after completion of such sale, transfer or dispose of his leasehold interest without any restriction whatever: and that any lessee shall have the preferential right, provided the same is exercised within ninety days after the approval of the completion of the appraisement of the minerals as herein provided, to purchase at the appraised value any or all of the surface of the lands lying within such lease held by him and heretofore reserved by order of the Secretary of the Interior and upon the terms as above provided, and shall also have the preferential right, except as herein otherwise provided, to purchase the coal deposits embraced in any lease held by such lessee by taking same at the highest price offered by any responsible bidder at public auction at not less than appraised value; and if any lessee becomes the purchaser of any coal deposits on any undeveloped lease owned by him, then one-half of the advance royalties paid by any lessee on such lease shall be credited on the purchase price thereof, and any residue of advance royalties theretofore paid by any lessee shall be credited to such lessee on account of any production of coal on any other lease which he may own and operate.

    Assuming both the advance royalty and the payments made by this company for failure to produce coal as required by the regulations of December 6, 1907, constitute "advance royalties" such as might be credited under the above section 4 should the lessee become the purchaser it should be pointed out that the privilege afforded the lessee of accrediting such advance royalties is limited to undeveloped leases. Section 4 gives the lessee a preferential right to purchase the coal deposit embraced in a lease held by him by taking it at the highest price offered by any responsible bidder at public auction and not less than the appraised value. The act is silent as to the purchase of a developed lease by the lessee. In such case if another party purchases
the deposit, the lessee would have the privilege of continuing to mine coal and accrediting the advance royalties to the sums due for the coal mined after the sale. In other words, the purchaser must pay the appraised value or the highest bid offered without any deduction for advance royalties standing against the tract. Where the lease is a developed one the lessee stands in the same position as any other purchaser.

    I have accordingly to advise you that since the report of the Superintendent discloses that the lease of the Panama Coal Company is a developed lease, there is no authority under the act whereby it may accredit one-half of the total credit now standing to it to the purchase price in the event that is should become the purchaser at the sale.

    The Superintendent also in his letter of December 3, 1918, submits this further question as to which you desire my opinion.

    It appears that an error was made in describing tract No. 53-A Sterrie and Rice lease No. 1, as shown on page 65 of the printed descriptive, in that it should be 640 acres appraised at $34,000.00 instead of 40 acres appraised at $2,000.00. The 600 acres omitted from this leased tract is parts of unleased tracts, Nos. 53 and 54, as shown on page 16 of the descriptive list.

    Tract 53 is described in said descriptive list as containing 920 acres, appraised at $46,000.00. The correct description thereof is 520 acres of the appraised value of $25,000.00. Tract 54 is described as containing 508.18 acres appraised at $30,409.80. The correct description thereof is 308.18 acres of the appraised value of $18,490.80. The correct description of said leased tract No. 53-A is 640 acres of the appraised value of $34,000.00. All of the land involved is advertised to be sold at the appraised value, and in my judgment the correct description and appraisement of each tract can be announced at the auction sale and the tracts offered. Please advise if this can be done or whether it will be necessary to withdraw all three tracts from sale.


    I concur in the view of the Superintendent that the correct description and appraisement of each, tract may be announced at the auction sale and the tracts offered and that it is not necessary to withdraw those three tracts from sale.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.


 

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OPINIONS OF THE SOLICITOR

MARCH 11, 1921

FIVE CIVILIZED TRIBES--CONTROL
OF RESTRICTED FUNDS AFTER SALE
OF RESTRICTED LANDS

M-2655                                                                                                                                                     March 3, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    By letter dated February 24th the Assistant Commissioner of Indian Affairs presented for opinion the question whether a sale of inherited land by a full blood Indian heir thereby removed all control over funds in the hands of this Department derived from the use of such inherited land.

     Ordinarily, a removal of restrictions by the issuance of so-called "certificates of competency" carries with it an implied assumption that the person therein named is capable of protecting his own interests, and needs no further supervision. The advisability of turning over to such persons all funds under the control of the Department need not now be considered, as the question before me at this time rests on a somewhat different foundation. Yarna Richard, a full blood Creek Indian died in 1910, and under section 9 of the act of May 27, 1908 (35 Stat., 312), all restrictions against alienation of the surplus allotment were there upon removed, except, that the inherited interest of any full blood Indian heir therein could be conveyed only with the approval of the proper court. Among such heirs of Yarna Richard we find Jennetta Barnett, nee Richard, also a full blood. Her inherited interest in the surplus allotment of her mother was conveyed to the Prairie Oil & Gas Company by deed approved by the County Court of  McIntosh County, Oklahoma, on October 20, 1920. The Indian and her attorney both now demand the surrender of certain moneys paid to the Superintendent of the Five Civilized Tribes by the Prairie Oil & Gas Company, as her share of the oil and gas productions derived from these premises prior to October 20, 1920.

    Admittedly, all restrictions against alienation of  Jennetta Barnett's interest in this land were removed by the approval of her deed by the court. It does not necessarily follow, however, that such removal of restrictions carried with it further control of all funds in your hands derived from the use of such land. Until approval of the deed was had, these lands remained "restricted," Parker v. Richard (250 U.S., 235). As such they come within the purview of section 2 of the act of 1908, which declares:

That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise. *     *     *

    A further provision in the same section expressly makes the jurisdiction of the probate courts of Oklahoma over the lands of minors and incompetents "subject to the foregoing provision." While in the case now under consideration no oil and gas lease on the usual form was ever submitted to or approved by you, yet the funds now in the hands of the Superintendent for the Five Civilized Tribes were paid by the Prairie Oil & Gas Company under a compromise agreement which was approved by you November 22, 1920; being the exact amount of royalty which would have accrued to this Indian had a regular lease on the usual form covered these premises. Resorting to the familiar maxim "Equity regards as done that which should have been done," these funds can be considered as coming into your hands as if paid in the usual manner under a formal lease. Among the regulations governing leases of this kind, we find a provision under which moneys collected as royal ties may be withheld, or paid in whole or in part, from time to time as may be for the best interests of the lessor or his heirs.

    I am of the opinion, therefore, that removal of the restrictions in the manner indicated does not thereby terminate control of funds in your hands derived from the use of such lands prior to the removal of the restrictions.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

OKLAHOMA PROBATE COURTS--
JURISDICTION OVER INHERITED INTERESTS
OF MINOR AND INCOMPETENT MEMBERS
OF FIVE CIVILIZED TRIBES

M-2047                                                                                                                                  March 11, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested on a question raised by the Indian Office which can be stated thus:
 


 

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DEPARTMENT OF THE INTERIOR

MARCH 11, 1921

    Has the Secretary of the Interior authority to prescribe regulations, binding on the probate courts of Oklahoma, governing sales of inherited interests in lands allotted to deceased members of the Five Civilized Tribes where such interests belong 40 minors or incompetents?

    This involves a construction of several provisions of the act of May 27, 1908 (35 Stat., 312), from section 9 of which it will be seen that the death of any allottee of the Five Civilized Tribes operates to remove all restrictions against alienation of said
allottee's land, except that the interests of any full-blood Indian heir therein can be conveyed only with the approval of the court having jurisdiction over the settlement of the estate of the deceased allottee. A further provision in the same section is not material here, dealing as it does with the homesteads of deceased allottees leaving surviving issue born since March 4, 1906; the home homesteads in such cases remaining inalienable until April 26, 1931, unless the restrictions are removed earlier in the manner provided in the act.

    Turning to section 2 we find that the jurisdiction of the probate courts of the State "over lands of minors and incompetents" is expressly made subject to certain other provisions found in the act. These, however, deal with leases and other matters not directly involved in the question now before me. Section 6 of the act reaffirms the jurisdiction in the probate courts of the State over the persons and property of minor allottees and authorizes you to appoint local representatives to investigate the conduct of guardians and curators having control of the estates of such minors.

    In the administration of the estates of deceased allottees of the Five Civilized Tribes, the probate courts of the State act as Federal rather than State agencies. Truskett v. Glosser (236U.S. 223); Parker v. Richard(250 U.S., 235). Further, said courts must look for guidance to the Federal Statutes rather than to the laws of the State. Barbre v. Hood (228 Fed., 658) . Molone et al. v. Warnsley, decided by the Supreme Court of Oklahoma January 25, 1921 (Okla. Ap. Ct. Rep. Vol. XIV, page 131). In the latter case the court used the following language:

    It is now well settled in this jurisdiction that the county courts, in approving conveyances of full-blood Indian heirs, perform the duty of federal agents, and are controlled and regulated by the laws of the Congress, and in determining the validity of the acts of the county court in approving conveyances executed  by Indian heirs we must look solely to the acts of Congress. Having arrived at the conclusion announced herein, it necessarily follows that the state Legislature has no power to enact a statute that affects the validity of conveyances by full-blood Indian heirs this right and power being vested exclusively in the Congress of the United States.

    The same court held in an earlier case,--Haddock et al. v. Johnson et al., decided December 14, 1920, that the failure of the county court to follow Rule 10 of the "rules of procedure in probate matters" adopted by the State Supreme Court, did not invalidate the conveyance of an Indian heir. It follows, of course, that the officers of the State by legislative enactment or otherwise are powerless to defeat the intent of Congress relating to the estates of these Indians, and to ascertain such intent they must look only to the Federal statues relating thereto. I do not find that the jurisdiction cast by Congress on the probate courts of the State in cases of this kind, is limited to the approval of those conveyances only had in accordance with such rules and regulations as you may prescribe. In a recent case before the Supreme Court of the United States, Harris v. Bell (41 Supreme Court Rep., 49), the court used the following language:

    Section 6 of the Act of 1908, and other congressional enactments, explicitly subject the persons and property of Indian minors of the Five Civilized Tribes to the jurisdiction of the probate courts of Oklahoma. In that state the county courts are the probate courts.

    Section 9 of the same act declares: *     *     *

    Of course, the purpose in requiring any approval is to safeguard the interests of the full blood Indian heir. Where he is a minor, he can convey only through a guardian; and no court is in a better situation to appreciate and safeguard his interests than the one wherein the guardianship is pending. Besides, as a general rule, a guardianship carries with it exclusive power to direct the guardianship and to supervise the management and disposal of the ward's property. It is so in Oklahoma. This rule is so widely recognized and so well grounded in reason that a purpose to depart from it ought not to be assumed unless manifested by some very clear or explicit provision. The Act of 1908 contains no manifestation of such a purpose outside the proviso in section 9. That proviso seems broad, but so is the provision in section 6, subjecting the persons and property of minor Indians to local guardianship. As both are in the same act, they evidently were intended to operate harmoniously, and should be construed accordingly.


 

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OPINIONS OF THE SOLICITOR

JUNE 4, 1921

    I am of the opinion, therefore, that the question presented should be answered in the negative.
 
                                                                                                                     CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

 

  OSAGE--PAYMENTS TO
GUARDIANS OF MINORS AND
INCOMPETENT ADULTS

M-4017                                                                                                     June 4, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    I am in receipt by your reference of a communication from the Indian Office submitting for opinion three questions arising in connection with section 4 of the act of March 3, 1921, Public No. 360, which reads:

    That from and after the passage of this Act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonds received from the sale of  leases, and the royalties received during the previous fiscal quarter, and so long as the in come is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members under twenty one years of age personally in charge $500 quarterly out of the income of said minors all of said quarterly payments to legal guardians and adults, not having certificates of competency to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma State, county, or school bonds, or place the same on time deposits at interest in banks in the State of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That at the beginning of each fiscal year there shall first be reserved and set aside out of the Osage Tribal funds available for that purpose a sufficient amount of money for the expenditures authorized by Congress out of the Osage funds for that fiscal year: Provided further, That all just existing individual obligations of adults not having certificates of competency outstanding upon the passage of this Act, when ap proved by the Superintendent of the Osage Agency, shall be paid out of the money of such individual as the same may be placed to his credit in addition to the quarterly allowance provided for herein.

The questions presented are:

1. Whether the parents or guardians of minors not enrolled and not allotted shall be paid inherited shares in full or restricted to $500 per quarter.

2. Whether legal guardians of incompetent adults shall be paid the entire income or whether they shall be restricted to $1,000 per quarter, the same as incompetents who have not had legal guardians appointed.

3. Whether legal guardians are bound to invest the funds of their wards in the same classes of securities in which the superintendent is authorized to invest the funds of incompetents who have not had guardians appointed.

    Prior legislation relating to the Osage Indians deals in part with the payment of certain funds to members of this tribe. See section 4, act of June 28, 1906 (34 Stat., 539)) and section 5, act of April 18, 1912 (37 Stat., 586). The funds accruing to these Indians have successively increased until the amount due each member of the tribe now approximates $10,000 annually. Payments heretofore made under prior legislation have largely been wasted in riotous living and otherwise (H.R. No.
1278, 66th Congress, 3rd Session). Congress decided to adopt a different policy and by the act of March 3, 1921, directed that "from and after the passage" of that act, quarterly distribution should be made of certain moneys accruing to members of this tribe substantially as follows: To adult members having certificates of competency, their entire share either as members or as heirs of deceased members: to incompetent adults $1,000 quarterly and to the parents or legal guardians of minors $500 quarterly. Where incompetent adults have legal guardians the entire share due such members is to be paid to their guardians, yet the act further provides that "all of said quarterly payments to legal guardians and adults not having certificates


 

10

Department of the Interior

June 4, 1921

of competency to be paid under the supervision of the Superintendent of the Osage Agency." [Italic supplied.] Provision is also made for investment of the remainder due incompetent adults and minors in certain classes of security or by deposit in banks in the State of Oklahoma.

    We are not now concerned with payment to competent adults as undoubtedly the shares due such are to be turned over for expenditure without supervision. While the language with reference to payments to incompetents and minors could have been more happily framed, yet an analysis of the entire act leaves the matter reasonably free from difficulty. The word "paid" under a narrow construction is confined to the naked delivery of the amount due to the person entitled. In a broader sense it includes the discharge of an obligation, the settlement of an indebtedness or the rendering of that which is due. When used in connection with other words the matter must be so construed as to give effect to the entire expression. Evidently the statute contemplated more than the mere delivery by the Superintendent of the amount due to legal guardians and to incompetent adults when it directed that all of said quarterly payments should be paid under the supervision of the Superintendent.

    A statute, of course, is to be construed in the light of its obvious policy and the manifest intent here is that incompetent adults including those having legal guardians are to have a quarterly allowance of $1,000 for maintenance and support and that each minor is to be paid $500 quarterly for a like purpose, including education. The remainder of the shares due such members is to be conserved for their future benefit by investment in certain securities designated in the act or deposited in bank to their credit. To hold otherwise would defeat the evident purposes of the act, for, as pointed out by the Superintendent, if the entire share is to be turned over to legal guardians for expenditure without supervision it would be a comparatively easy matter for the remaining in competent members of this tribe to procure appointment of legal guardians and thereby obtain release of all their funds from further supervision after payment to such guardians. The probate courts of the State, and the guardians appointed by those courts, as well as the Superintendent, are equally bound by the laws of Congress relating to these payments and the act of March 3, 1921, is the most recent expression by Congress in the matter.

    Answering the second question first, I am of the opinion that the entire income due adults not having certificates of competency and for whom legal guardians have been appointed should be paid quarterly to such guardians, but that the disposal of such funds, including expenditure of the quarterly allowance and investment of the remainder, is subject to supervision by the Superintendent. Further, that legal guardians are bound by the act of March 3, 1921, and the remainder of these shares can be invested only in those securities designated in the act or else placed on time deposit in bank in the State of Oklahoma. This answers also the third question.

    As to the first question, the act of June 28, 1906, supra, provided for a final roll of the Osage Tribe, excluding children born since July 1, 1907, who did not receive allotments and who, in their own right, do not participate in the distribution of tribal funds. As so constituted, the tribal roll contains some 2,200 names. Many of the original members have since died and in some cases their shares have passed by inheritance into the hands of minors whose names do not appear on the final roll. Not being on the tribal roll, these minors are in the same status as persons who are not members of the tribe, hence their shares should be paid in full to their parents or legal guardians.

                                                                                                                    EDWIN S. BOOTY,
                                                                                                                                            Solicitor.

FEE TITLE-EXPIRATION OF TRUST PERIOD

M-5379                                                                                                                                                        July 14, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is asked upon request of the Commissioner of Indian Affairs "as to the status of an Indian allottee after the expiration of the trust period and before the issuance of a patent in fee."

    The Commissioner refers to two recent decisions in one of which the court held that the trust period of the allotment having expired before the Indian executed a deed for the land he made a valid conveyance notwithstanding the fact that a patent in fee had never been issued to him, while in the other case the court reached a different conclusion. The main question, therefore, is as to the right of an Indian to alienate his land upon expiration of the trust period without departmental approval and before issuance of the final or fee patent provided for by law; in other words whether or not the legal title passes to or becomes vested in the Indian by operation of law immediately upon the expiration of the trust period and there-
 


 

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OPINIONS OF THE SOLICITOR

JULY 14, 1921

after the issuance of a patent in fee to him becomes a more ministerial act.

    The act of February 8, 1887 (24 Stat., 388)) in section 5 thereof contains a provision for the issuance of patents upon allotments as follows:

That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue there for 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: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.

    By virtue of the approval of his allotment an Indian allottee acquires an equitable title in the land but the legal title remains in the United States. The next step in the administration of the law is the issuance of an instrument called a trust patent in which it is declared that the United States does and will hold the land for 25 years in trust for the Indian or his heirs. It has been concluded that the use of the word "patent" to describe this instrument was not a happy choice of language. Thus it was said in the case of United States v. Rickert (188 U.S., 432, 436), referring to section 5 of the act of 1887:

The word "patents," where it is first used in this section, was not happily chosen to express the thought which, it is clear, all parts of the section being considered, Congress intended to express. The "patents" here referred to (al though that word has various meanings) were, as the statute plainly imports, nothing more than instruments or memoranda in writing, designed to show that for a period of twenty five years the United States would hold the land allotted, in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and subsequently, at the expiration of that period--unless the time was extended by the President--convey the fee, discharged of the trust and free of all charge or incumbrance. In other words, the United States retained the legal title, giving the Indian allottee a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the President, he would be entitled to a regular patent conveying the fee. This interpretation of the statute is in harmony with the explicit declaration that any conveyance of the land, or any contract touching the same, while the United States held the title in trust, should be absolutely null and void. So that the United States retained its hold on the land allotted for the period of twenty-five years after the allotment, and as much longer as the President, in his discretion, should determine.

    It is of some significance in this connection that in the act of May 8, 1906 (34 Stat., 182), which amended section 6 of the act of 1887, the following language is used: "that at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee as provided in section 5 of this act (1887)" etc. It is clear that the first or trust patent issued upon an allotment is not and was not intended to be a conveyance of the interest or title of the United States but that the purpose of such patent is to evidence a present trust coupled with a promise to convey in the future. There are instances where owing to the peculiar circumstances the issuance of a patent in fee becomes merely a ministerial act, for instance, as recognizing and confirming a previously exist existing title. The Supreme Court has described a patent as follows (Langdeau v. Hanes, 21 Wall., 521), and (Wright v. Roseberry, 121. U.S. 488, 499):

In the legislation of Congress a patent has a double operation. It is the conveyance by the Government when the Government has any interest to convey but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evidence having the dignity of a record, of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation.

    After the first or trust patent has issued, the United States holds the legal title for the benefit of the Indian allottee who has the equitable title. It
 


 

12

DEPARTMENT OF THE INTERIOR

JULY 14, 1921

is clear that the legal title does not pass to the allottee until the issuance of the patent in fee. At the expiration of the trust period the allottee becomes entitled to a patent in fee but the legal title remains in the United States until the issuance of such patent and the law so provides. Congress might have declared that upon the expiration of the trust period the allottee would become vested of the legal title the same as if fee patent were issued, but this was not done. On the contrary the act of 1887 specifically provides that patent in fee should be issued and the rule in such case is that the legal title remains in the Government until the issuance of the patent. It was held by the Supreme Court in the case of Michigan Land & Lumber Co. v. Rust (168 U.S., 589, 592-3) , as follows:

    Generally speaking, while the legal title re mains in the United States, the grant is in process of administration and the land is subject to the jurisdiction of the land department of the Government. It is true a patent is not al ways necessary for the transfer of the legal title. Sometimes an act of Congress will pass the fee. Strother v. Lucas, 12 Pet. 410, 454; Grignon's Lessee v. Aster, 2 How. 319; Chouteau v. Eckhart, 2How. 344, 372; Glasgow v. Hortiz, 1 Black, 595; Langdeau v. Hanes, 21 Wall 521; Ryan v. Carter, 93U.S. 78. Some times a certification of a list of lands to the grantee is declared to be operative to transfer such title, Rev. Stat. section 2449: Frasher v. O'Connor, 115 U.S. 102; but wherever the granting act specifically provides for the issue of a patent, then the rule is that the legal title remains in the Government until the issue of the patent, Bagnell v. Broderick, 13 Pet. 436, 450: and while so remaining the grant is in process of administration, and the jurisdiction of the land department is not lost.

    The analogy if this character of cases to public land cases is discussed in Lane v. Mickadiet (241
U.S., 201, 207)) as follows:

    "It is undoubted that the fee simple title to the land embraced by the allotment had not passed from the United States and that, as expressly stated in the granting act, the land was held in trust by the United States for the benefit of the allottees to await the expiration of the trust period fixed by law when the duty on the part of the United States of conveying the fee of the land would arise. It is equally undoubted under these conditions that the land was under the control in an administrative sense of the Land Department for the purpose of carrying out the act of Congress. As there is no dispute, and could be none, concerning the general rule that courts have no power to interfere with the performance by the Land Department of the administrative duties devolving upon it, however much they may when the functions of that Department are at an end correct as between proper parties errors of law committed in the administration of the land laws by the Department, it must follow unless it be that this case by some exception is taken out of the general rule that there was no power in the court below to control the action of the Secretary of the Interior and reversal there fore must follow. United States v. Schurz, 102 U.S. 378, 396;Brown v. Hitchcock, 173 U.S. 473; Knight v. Lane, 228U.S. 6."

and on page 209:

    "In other words they must be treated as absolutely excluding the right to review in the courts, as had hitherto been the case under the act of 1887, the question of  fact as to who were the heirs of an allottee. thereby causing that question to become one within the final and conclusive competency of the administrative authority. As it is obvious that the right to review on proper charges of newly discovered evidence or fraud a previous administrative order while the property to which it related was under administrative control, was of the very essence of administrative authority (Michigan Land & Lumber Company v. Rust, 168 U.S. 589), it must follow that the construction upheld would not only deprive the Secretary of the final and conclusive authority which the statute in its context contemplated he should have, but would indeed render the administrative power conferred wholly inadequate for the purpose intended by the statute. And it must be further apparent that the in adequacy of authority which the proposition if accepted would bring about could not be supplied, since it would come to pass that although the property was yet in the control of the United States to carry out the trust, there would be an absence of all power both in the administrative and judicial tribunals to correct an order once rendered, however complete might be the proof of the fraud which had procured it."

    In other words, the period of administrative control ends only with the passing of the legal title. The act of 1887 requires the execution of a patent to convey the fee simple. It is not consistent with
 


 

13

OPINIONS OF THE SOLICITOR

JULY 14, 1921

the continued existence of administrative control that an allottee may abruptly terminate that control by the simple expedient of executing a conveyance of the land to another.

    Section 2 of the act of June 25, 1910 (36 Stat., 855), authorized an Indian to dispose of his allotment by will "prior to the expiration of the trust period and before the issue of a fee simple patent" only with the approval of the Commissioner and the Secretary. If he may not devise his land "before the issue of a fee simple patent" without the Secretary's approval, it would by analogous reasoning follow he could not dispose of his title by deed, without such approval.

    The Secretary's control extends, like in a public land case, to the time when a conveyance of the legal title is effected and would enable him to refuse such a patent in a proper case--for illustration: by convincing proof it might be established that the holder of the "trust patent" was not the man entitled to the allotment, etc.

    If it be true that the fee title passes to an Indian allottee by operation of law upon expiration of the trust period and the issuance of patent in fee be comes thereafter a mere ministerial act it follows that jurisdiction of the Government over the land comes to an end at the expiration of such period and no further authority exists either for the determination of the heirs of allottees who may die prior to the issuance of a fee patent or for with holding such patents upon evidence showing that the Indian is not entitled to an allotment or that the same was procured through fraud. The Department has taken the position that under the terms of the act of June 25, 1910 (36 Stat., 855), authorizing the Secretary of the Interior to determine the heirs of deceased Indians and providing "that when any Indian to whom. an allotment of land has been made, or may hereafter be
made, dies before the expiration of the trust period and before the issuance of a fee simple patent," the Department's jurisdiction to determine the heirs continues until legal title passes from the United States by the issuance of the final or fee patent.

    The situation upon issuance of a trust patent on an allotment is much like that arising between the United States and an entryman who has made proof of compliance with the law and received a final or patent certificate from the land officers. As to such an entryman it was said in the case of Orchard v. Alexander (157 U.S., 372, 383):

    The Government holds the legal title in trust for him and he may not be dispossessed of his equitable rights without due process of  law. Due process in such case implies notice and hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land Department.

    In Michigan Land & Lumber Co. v. Rust, supra, it was said:

It is, of course, not pretended that when an equitable title has passed the land department has power to arbitrarily destroy that equitable title. It has jurisdiction, however, after proper notice to the party claiming such equitable title, and upon a hearing to determine the question whether or not such title has passed. Cornelius v. Kessel, 128 U.S. 456; Orchard v. Alexander, 157 U.S. 372, 383; Parsons v. Venzke, 164 U.S. 89. In other words, the power of the department to inquire into the extent and validity of the rights claimed against the Government does not cease until the legal title has passed.

     In the case of Brown v. Hitchcock (173 U.S., 473), which reaffirmed the decision in Michigan Land and Lumber Co. v. Rust, supra, it was said: "until the legal title to public land passes from the Government, inquiry as to equitable rights comes within the cognizance of the Land Department.

    In Hawley v. Diller (178 U.S., 476, 488), it was
said:

    The Land Department has authority at any time before a patent is issued to inquire whether the original entry was in conformity with the act of Congress.

    In the case of Parcher v. Gillen (26 L.D., 34). after reference to statutes defining the powers and duties of the Department, it was said among other things:

    A consideration of these decisions interpreting the statutes defining the authority and duties of the officers of the land department, clearly demonstrates that so long as the legal title remains in the government the lands are public within the meaning of those statutes and the laws under which such lands are claimed, or are being acquired, are in process of administration under the supervision and direction of the Secretary of the Interior.

    So long as the legal title remains in the government the Secretary of the Interior, whoever he may be, is charged with the duty of seeing
 


 

14

DEPARTMENT OF THE INTERIOR

JULY 14, 1921

that the land is disposed of only according to law. The issuance of a patent is the final act and decision in that disposition and with it and not before does the supervisory power and duty of the Secretary cease.

    The views above expressed were reaffirmed in numerous subsequent departmental decisions.

    As bearing upon the question of departmental authority and jurisdiction in the premises in the event of discovery after expiration of the trust period and prior to actual issuance of patent in fee that the allottee is not entitled to an allotment, the
situation, proceeding on the theory that title has already vested would be something like this: a suit could not be maintained by the United States to recover a title it had not parted with as would clearly be the case, nor on the other hand would it be necessary for the Government to resort to the courts for authority to decline to make an illegal conveyance by the issuance of a patent in fee. As to such a situation it was said in the case of Knight v. United States Land Association (142 U.S., 161, 178):

    For example, if, when a patent is about to issue, the Secretary should discover a fatal defect in the proceedings, or that by reason of some newly ascertained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the Attorney General to institute proceedings for its annulment, it would hardly be seriously contended that the Secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated, which it would be immediately his duty to ask the Attorney General to take measures to annul. It would not be a sufficient answer against the exercise of his power that no appeal had been taken to him and therefore he was without authority in the matter.

    The same reasoning applies in the case of Indian allotments as in other cases where equitable title has been acquired. Under the laws and decisions cited so long as the legal title to any tract of public land remains in the United States and so long as the law under which such land is being disposed of is in process of administration the Department has authority and jurisdiction to investigate the legality of any claim thereto and upon proof that issuance of patent would result in the improper or unlawful disposal of the land to withhold such patent. In this view also it is clear that not only is the act of issuing patent in fee something more than a mere ministerial function but it is, in a way, jurisdictional in character for the reason that title is in the Government and questions may arise as to the right of the allottee to receive such patent owing to various circumstances. Besides, under the law something further is required to be done by the Government upon expiration of the trust period, namely, to issue a patent in fee after expiration of the trust period, the purpose of which is to pass the legal title. In the light of the law and decisions bearing on this subject, there is no foundation for holding that upon issuance of such patent it relates back to the time of expiration of the trust period and is more evidence of the operation of law upon the title. The Supreme Court in the case of Monson v. Simonson (231 U.S., 341, 345), said:

    The act of 1887 was adopted as part of the Government's policy of dissolving the tribal relations of the Indians, distributing their lands in severalty, and conducting the individuals from a state of dependent wardship to one of full emancipation with its attendant privileges and burdens. Realizing that so great a change would require years for its accomplishment and that in the meantime the Indians should be safeguarded against their own improvidence, Congress, in prescribing by the act of 1887 a system for allotting the lands in severalty whereby the Indians would be established in individual homes, was careful to avoid investing the allottee with the title in the first instance, and directed that there should be issued to him what is inaptly termed a patent (United States v. Rickert, 183 U.S. 432, 436), but is in reality an allotment certificate, declaring that for a period of twenty-five years, or such enlarged period as the President should direct, the United States would hold the allotted land in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and at the expiration of that period would convey to him by patent the fee, discharged of the trust and free of any charge or incumbrance; and, as a safeguard against improvident conveyances or contracts made in anticipation of the ultimate or real patent, it was expressly provided that any conveyance of the land, or any contract touching the same, made before the expiration of the trust period should be absolutely null and void. It is thus made plain that it was the intention of Congress that the title should remain in the United States during the entire trust period, and that, when conveyed to the allottee or his heirs by the ultimate patent at the expiration



 

15

OPINIONS OF THE SOLICITOR

JULY 29, 1921

of that period, it should be unaffected by any prior conveyance or contract touching the land.

The court concluded in that case as follows:

    A deed by an Indian of an allotment subject to restrictions on alienation is absolutely void if made before final patent, even if made after passage of an act of Congress permitting the Secretary of the Interior to issue such patent; nor does the unrestricted title subsequently acquired by the allottee under the patent inure to the benefit of the grantee.

    Furthermore, if upon expiration of the trust period legal title is in the allottee so that he may convey the land independently of the Government, then under the same reasoning the land becomes subject to taxation by the State. The law and the decisions are, however, that lands embraced in Indian allotments are not subject to taxation by the State so long as legal title remains in the Government, which is until patent in fee issues. The Supreme Court in the case of United States v. Rickert, supra, said:

    If, as is undoubtedly the case, these lands are held by the United States in execution of its plans relating to the Indians--without any right in the Indians to make contracts in reference to them or to do more than occupy and cultivate them--until a regular patent conveying the fee was issued to the several allottees, it would follow that there was no power in the State of South Dakota for State or municipal purposes, to assess and tax the lands in question until at least the fee was conveyed to the Indians.

It was held in the case of Page v. Pierce County (64 Pac. 801, 804) --

    Applying the doctrine announced in the decisions of the Supreme Court of the United States to the case at bar, it would seem reasonably clear that the lands in question can not be taxed by the State so long as the Government has an interest in them, "either legal or equitable," or is even charged with the performance of some obligation or duty respecting them.

    The foregoing laws and references would seem clearly to negative the idea that it was intended that the expiration of the trust period alone should have the effect of at once vesting in the Indian allottee the full legal title to his land. If this be true it follows that prior to the issuance of the patent in fee the allottee is not in position to make a valid conveyance for the reason that the very purpose of such patent is to pass the legal title and is not merely in recognition and confirmation of previously existing rights. The fact that the Indian may be entitled to a patent in fee at the expiration of the trust period does not carry with it the right to convey the land prior to the time the legal title passes to him as the law specifically provides that such patent shall issue. The most that he could do would be to convey an expectancy of receiving a patent and this would be directly contrary to the law and administrative policy in regard to Indian affairs which primarily look to the best interests and protection of an Indian and which forbid the sale and encumbrance, without approval, of lands taken in allotment so long at least as the legal title therein remains in the Government.

                                                                                                                                    EDWIN S. BOOTH,
                                                                                                                                                                Solicitor.

RIGHT TO CITIZENSHIP

M-4018                                                                                                                        July 29, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    The question has been referred to me for opinion upon request of the Commissioner of Indian Affairs --

"as to whether an Indian to whom an allotment of land was made subsequent to the act of May 8, 1906 (34 Stat., 182), is a citizen by virtue of the issuance of a patent in fee simple for only part of his allotment."

    The question arises in connection with reference to certain cases intended to show the use to which Indians put their lands covered by such patents in fee simple, and the extent, if any, to which the Indians are removed from Government control by the issuance of such patents, especially in so far as the jurisdiction of the Indian courts over them is concerned.

    The said of May 8, 1906, which amended section 6 of the general allotment act of February 8, 1887 (24 Stat. 388), contains the following provisions:
 


 

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DEPARTMENT OF THE INTERIOR

JULY 29, 1921

    "That at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section five of this act (1887), then each and every allottee shall have the benefits of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside *     *     * And every Indian born within the territorial limits of the United States to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this Act *     *     * is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens *     *     * Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent; Provided further, That until the issuance of fee simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States."

    Under the provisions of the act of 1887, the Indian becomes a citizen upon the completion of his allotment and the issuance to him of a trust patent, while under the provisions of the act of 1906, citizenship rights do not attach until the issuance of a patent in fee simple. It was said in the case of United States v. Celestine (215 U.S., 278-291) :

    "The act of May 8, 1906, c. 2348, 34 Stat., 182, extending to the expiration of the trust period the time when the allottees of the act of 1887 shall be subject to state laws, is worthy of note as suggesting that Congress, in granting full rights of citizenship to Indians, believed that it had been hasty."

    And in the case of the United States v. Pelican (232 U.S. 442-450), after referring to section 6 of the act of 1887, the court said:

    "But, by the act of May 8, 1906, c. 2348, 34 Stat., 182, Congress amended this section so as distinctly to postpone to the expiration of the trust period the subjection of allottees under that act to state laws."

    Under the terms of the act of 1906 the matter of issuing patent in fee is discretionary with the Secretary of the Interior "whenever he shall be satisfied that any Indian allottee is competent and capable of managing his own affairs." The issuance of the patent in fee is not only a conveyance but an adjudication--an administrative finding--that the Indian allottee is "competent and capable" to manage his own affairs. When this primary finding of competency and capability is made the Indian is entitled to allof his allotment. The primary requirement for citizenship is the competency and capability of the Indian to manager his own affairs and the severance of the restrictions as to alienation and citizenship is effected after the administrative finding of competency and capability by the issuance of the patent in fee. The act of 1906 undoubtedly meant the issuance of a patent for the entire allotment and only such a patent would carry with it the right of citizenship. The act of 1906 did not contemplate that in its administration the Department would find that the Indian was of questionable competency. It contemplated an administrative finding that the Indian was competent and capable and I do not believe that withholding patent for part of his allotment and issuing patent for another part, can be deemed in any sense an adjudication of incompetency and incapability. When the Department has made an administrative finding evidenced by the issuance of a patent in fee for part of the allotment, the administrative finding is conclusive as to the competency and capability of the Indian to manage his own affairs and can not be held to be partial finding, for under the act of 1906, the Indian allottee is either competent and capable to manage his own affairs, or he is incompetent and in capable for the purposes intended. I have no doubt that if the Secretary of the Interior issues patent in fee simple for only part of the allotment, it would be held that he had made the administrative finding of competency and capability. If the Indian does not become a citizen by reason of the issuing to him of his patent in fee simple for either part of his allotment or the whole of it, but only becomes a citizen by reason of the administrative finding of competency and capability, it is my opinion that when the Department has issued a patent in fee for a part of the land, that the Indian has had the restrictions of citizenship severed and that he becomes a citizen of the United States as provided in the act of 1906.

                                                                                                                                        EDWIN S. BOOTH,
                                                                                                                                                                   Solicitor.
 


 

17

OPINIONS OF THE SOLICITOR

SEPTEMBER 29, 1921

FORT HALL INDIANS-RESTRICTED
PATENTS--AUTHORITY OF
SECRETARY TO REMOVE
RESTRICTIONS

M-5613                                                                                                                       September 29, 192l.

The Honorable,
The Secretary of the Interior.

DEAR MR . SECRETARY:

    You have requested my opinion on the question whether lands allotted to Indians of the Fort Hall Reservation, Idaho, may be sold, or the restrictions against alienation otherwise removed, with your approval, or is action by the President necessary.

    An agreement with the Fort Hall Indians, ratified by the act of February 23, 1889 (25 Stat., 688), under which this reservation was allotted, provides inter alia:

    "Fifth. The Government of the United States shall cause the lands of the Fort Hall Reservation above named to be properly surveyed and divided among the said Indians in severalty and in the proportions hereinbefore mentioned, and shall issue patents to them respectively therefore so soon as the necessary laws are passed by Congress. The title to be acquired thereto by the Indians shall not be subject to alienation, lease or incumbrance, either by voluntary conveyance of the grantee, or his heirs, or by the judgment, order or decree of any court, or subject to taxation of any character, but shall be and remain inalienable and not subject to taxation for the period of twenty-five years, and until such time thereafter as the President may see fit to remove the restriction, which shall be incorporated in the patent."

    The patents issued under this, and similar legislation, are commonly referred to as "restricted fee patents," as distinguished from "trust patents"; the legal title under the latter being retained by the Government for a definite period coupled with a promise to convey the fee, by patent, to the allottee or his heirs. So also, allotments in the former class are known as "restricted allotments" while those falling within the latter class are known as "trust allotments." The Fort Hall allotments, of course, come within the first class, but as a matter of fact both classes are "restricted" in that the allottees under neither class have any power to alienate without the approval of some higher authority.

    Returning to the provision quoted, and looking to this alone, it appears that the allotments at Fort Hall were to remain inalienable for a period of twenty-five years and after the expiration of that period, but not until then, the President might remove the restrictions. This twenty-five year period not yet having expired as to any of the allotments at Fort Hall, unless authority can be found in some subsequent law, there appears to exist no power, even in the President, to remove the restrictions. None of the subsequent acts relating specifically to the Fort Hall Reservation authorizes the President or any other executive officer to terminate the twenty-five year restricted period imposed by the act of February 25, 1889, on these allotments. We can only turn, therefore, to such general law as may be available.

    The act of May 27, 1902 (32 Stat., 245-275), contains this provision:

    "That the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent, but in case of minor heirs their interests shall be sold only by a guardian duly appointed by the proper court upon the order of such court, made upon petition filed by the guardian, but all such conveyances shall be subject to the approval of the Secretary of the Interior, and when so approved shall convey a full title to the purchaser, the same as if a final patent without restriction upon the alienation had been issued to the allottee."

    In the act of March 1, 1907 (34 Stat., 1015, 1018), we find:

    "That any non-competent Indian to whom a patent containing restrictions against alienation has been issued for an allotment of land in severalty, under any law or treaty, or who may have an interest in any allotment by inheritance, may sell or convey all or any part of such allotment or such inherited interest on such terms and conditions and under such rules and regulations as the Secretary of the Interior may prescribe."

    The act of June 25, 1910 (36 Stat., 855), confers sundry powers on the Secretary of the Interior with respect to Indian allotments. Without quoting in its entirety even section one of that act, which is somewhat voluminous, it is sufficient to point out that Congress thereby conferred on the Secretary of the Interior jurisdiction to determine
 


 

18

DEPARTMENT OF THE INTERIOR

SEPTEMBER 29, 1921

the heirs of deceased Indian allottees dying "before the expiration of the trust period and before the issuance of a fee simple patent." The jurisdiction so conferred is not only final and exclusive (Bond v. United States, 181 Fed., 613 and Mallowell v. Common, 239 U.S., 506), but it also includes "restricted allotments" as well as those covered by "trust patents." See Bowling v. United States, decided by the Supreme Court June 1, 1921 (16 Adv. Op., 677, and 41 Supp. Ct. Reptr., 561). The following language, however, found in section one of the act of June 25, 1910, is deemed material to such an extent as to require reproduction here:

    "All sales of lands allotted to Indians authorized by this or any other act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe. *     *     * Provided further, That the Secretary of the Interior is hereby authorized in his discretion to issue a certificate of competency, upon application therefore, to any Indian, or in case of his death, to his heirs, to whom a patent in fee containing restrictions on alienation has been or may hereafter be issued, and such certificate shall have the effect of removing the restrictions on alienation contained in such patent."

    It should be noted that in each of these laws the authority to act is vested in the Secretary of the Interior; not in the President or any other executive officer. Also, it may not be amiss here to advert briefly to the general policy of Congress with respect to matters of this kind. During earlier times the Indians were practically confined on reservations and controlled by the strong arm of the Military. The President as "The Great White Father" was looked to as the protector of their interests, and was charged with many responsibilities and duties in their behalf. Gradually, by specific statute in some cases, but more rapidly within comparatively recent time by general legislation, that responsibility and duty has been lodged elsewhere--notably in the Secretary of the Interior. The policy of individualization by allotment in severalty and subsequent dealings with the property rights created thereby has been a matter of progressive evolution by successive legislative enactments. The general allotment act of February 8, 1887 (24 Stat., 388), on which most of our Indian "trust allotments" are founded, directs that the lands allotted shall be held in trust for a period of twenty five years, at the expiration of which a patent in fee would issue to the allottee or his heirs. Evidently this act contemplated that the allotments made thereunder should remain inalienable and nontaxable for the full period of twenty-five years, as no provision is to be found in that act, or in any contemporaneous legislation, under which that period could be abridged or which would permit of any alienation of the allotments so made. Naturally many of the original allottees died, and their heirs having allotments in their own names were in no great need of additional lands. They did need funds, however, with which to improve their individual holdings. The act of May 27, 1902, relieved this situation by permitting the heirs to sell, with the approval of the Secretary of the Interior. This was soon found to be insufficient. Aged and indigent living allottees, having no inherited interests which could be sold, needed funds in many cases to provide the common necessities of life. Congress again came to the rescue, and the act of March 1, 1907, lodged in the Secretary of the Interior, authority to extend relief in such cases. Considerable doubt, confusion, and uncertainty seems to have existed as to the matter of jurisdiction over various questions pertaining to Indian allotments, such as rights of possession between conflicting disputants claiming as heirs. Necessarily, this involved a determination of the rightful heirs. McKay v. Kalyton (204 U.S., 658), shows that in the absence of legislation by Congress, questions of this kind are not primarily cognizable by any court, State, or federal. The act of June 25, 1910, gives the Secretary of the Interior exclusive jurisdiction to determine the heirs of deceased Indian allottees and, in effect, it also practically gives that officer jurisdiction to fully administer their estates. The logical deduction from all this is that as a matter of policy Congress intended to clothe the Secretary of the Interior with all necessary power to act in matters of this kind, and, as said by the Supreme Court in the case of Levindale Lead and Zinc Mining Company v. Coleman (241 U.S., 432), "a statute should, if possible, be construed in the light of its obvious policy."

    But we need not dwell longer on the external question of policy. The acts themselves contain sufficient elements on which the decision may be founded. Under the act of May 27, 1902, with the approval of the Secretary of the Interior the heirs of any deceased Indian "to whom a trust or other patent containing restrictions against alienation" has been issued, may sell the allotment of the decedent. The act of March 1, 1907, also with the approval of the Secretary of the Interior permits "any non-competent Indian to whom a patent containing restrictions against alienation has been issued for an allotment of land in severalty under any law or treaty," or who has an inherited interest in any such allotment, to sell, etc. Clearly these acts include both "trust" and "restricted" allotments.
 


 

19

OPINIONS OF THE SOLICITOR

OCTOBER 22, 1921

    Where an act says under any law or treaty, can we disregard that plain provision by holding that it applies to trust allotments only? I think not. The act of June 25, 1910, but confirms the authority previously vested in the Secretary of the Interior to approve sales of Indian allotments by providing that the sales of all such allotments, "authorized by this or any other act" shall be under such rules and regulations as that officer might prescribe. This act goes even further and authorizes the Secretary of the Interior, in his discretion, to issue certificates of competency to living allottees holding "patents in fee with restrictions against alienation," and it is further expressly declared that the issuance of such certificate shall operate to remove the restrictions. This is simply analogous to the authority previously conferred on the Secretary of the Interior by the act of May 8, 1906 (34 Stat., 182), to issue patents in fee to competent Indians holding allotments under "trust patents."

    I am not unmindful of the rule of construction that special legislation is not usually modified by subsequent general law unless the intent so to do is clear. Here, however, the intent is so manifest that I find no difficulty in holding that the allotments at Fort Hall come within the acts of May 27, 1902, March 1, 1907, and June 25, 1910, supra, and that the Secretary of the Interior has authority under those acts to approve sales of such allotments, or to otherwise remove restrictions against alienation by the issuance of certificates of competency to members of this tribe found capable of managing their own affairs.

                                                                                                                                EDWIN S. BOOTH,
                                                                                                                                                            Solicitor.

USE OF PROCEEDS FROM LEASED
LANDS ON FLATHEAD RESERVATION--
IRRIGATION PROJECT

M-6224                                                                                                                   October 22, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Some questions having arisen between the Indian Service and the Reclamation Service over the use of proceeds derived from leasing lands with drawn for reclamation purposes within the Flathead Indian Reservation, Montana, you have requested my opinion in the matter.

    This reservation was created by treaty dated July 16, 1855, with the confederated Flathead Tribes (12 Stat., 975), and remained practically intact until the passage of the act of April 23, 1904 (33 Stat., 302), which, among other things, provided for a survey of the reservation, allotments in severalty to the Indians, and a classification, appraisement and sale of the unallotted lands; the proceeds from the latter to be deposited to the credit of the Flathead Tribe. Provision was also made for expending a part of such proceeds in the construction of irrigation facilities for the Indians. The reservation being large, comparatively, and the number of Indians entitled to allotment considerable, necessarily some delay occurred in placing the surplus lands on the market. As the purchasers of those lands were required to pay only one-third of the appraised value in cash, at the time of sale, and the remainder in five equal annual installments, the prospect of early receipt of funds with which to construct irrigation facilities did not appear bright. The need for reasonably prompt action in this respect becoming somewhat urgent, Congress by the act of April 30, 1908 (35 Stat., 70-83), advanced $50,000 for the purpose of making preliminary surveys, plans, and estimates of an irrigation system to supply water to both allotted and unallotted irrigable lands within this reservation. Reimbursement of the appropriation so made was to be had "from the proceeds derived from the sale of the lands within said reservation"--i.e., tribal funds. It soon developed that successful irrigation here would require storage and section 22 of the act of March 3, 1909 (35 Stat., 795) authorized the Secretary of the Interior to reserve from entry, sale, or other disposal, any lands within the Flathead Reservation valuable chiefly for power or reservoir purposes. Under this, comparatively large areas (approximating 50,000 acres in the aggregate), have been withdrawn for such purposes. Subsequent detailed surveys, and changes in plans, indicating that some of these lands were not suitable for the purposes for which withdrawn, or would not be needed, the withdrawals, in some instances, were vacated and the lands restored to their former status.

    Various Indian appropriation acts between April 30, 1908, and May 18, 1916, appropriated large additional sums, aggregating over $1,500,000, for continuing the construction of these irrigation works; all made reimbursable out of Indian tribal moneys received from the sale of surplus lands. As many of the Flathead allottees received no irrigable land in allotment, for this and doubtless other good and sufficient reasons, Congress decided to shift the burden of the costs of this irrigation work from the tribal fund to the individual owners of the land benefited. Accordingly, the act of May 18, 1916 (39 Stat., 139-141), directed that the
 


 

20

DEPARTMENT OF THE INTERIOR

OCTOBER 22, 1921

tribal funds theretofore covered into the Treasury of the United States in partial reimbursement of the appropriations made for constructing these irrigation systems should again be placed to the credit of the Flathead Tribe, and the Secretary of the Interior was directed to apportion the cost of such work, on a per acre basis, against the lands benefited, in such manner that each acre of land would bear its proper proportionate part of the cost of the system through which irrigated.

    The record now before me indicates that some of the the areas within this reservation withdrawn as power and reservoir sites have been leased from time to time for agricultural and grazing purposes. The revenue derived therefrom has usually been treated as tribal funds and deposited to the credit of the Flathead Tribe. Some $3,320, however, received by the Reclamation Service from such a lease of "the McConnell Reservoir Site"--since abandoned--has been covered into the reclamation fund "to the credit of the Flathead Project." Authority for so doing is given as an item in the sundry civil act of July 19, 1919 (41 Stat., 163-202), which reads:

"The proceeds heretofore or hereafter received from the lease of any lands reserved or withdrawn under the reclamation law or from the sale of the products therefrom shall be covered into the reclamation fund: and where such lands are affected by a reservation or withdrawal under some other law, the proceeds from the lease of land and the sale of products therefrom shall likewise be covered into the reclamation fund in all cases where such lands are needed for the protection or operation of any reservoir or other works constructed under the reclamation law, and such lands shall be and remain under the jurisdiction of the Secretary of the Interior."

    Looking to this alone and placing a broad or even a literal construction thereon it would appear that the funds derived from leasing any lands withdrawn for reclamation purposes are to be covered into the reclamation fund, regardless of the prior status of such land. Other considerations, however, must not be overlooked. We are here dealing with an Indian reservation created by treaty. In the act of April 23, 1904, Congress not only recognized the right of the Indians to the proceeds derived from a sale of their lands but also expressly disclaimed any intention on the part of the United States to buy any of said lands (except
Secs. 16 and 36), or to guarantee to find any purchasers therefor, it simply being the intention that the Government would act as trustee for the Indians in the disposal of their property for their benefit (33 Stat., 305). Under circumstances some what similar the Supreme Court has recognized not only the right of the cestuique trust to the proceeds derived from a sale of the lands, but also to any revenue derived therefrom while in the hands of the trustee. Ash Sheep Company v. United States (262U.S., 159).

    Again, the irrigation systems on the Flathead Reservation do not constitute a "reclamation project" per se as contemplated by the reclamation act and the amendments thereto. This remains true even though a large part of the irrigable lands under the Flathead systems has now passed from Indian ownership and even though the engineering work, as a matter of convenience or otherwise, is being handled by the Reclamation Service. Practically all appropriations in behalf of this work are found in the Indian appropriation acts, while appropriations for our reclamation projects are usually carried in the sundry civil acts. The item found in the sundry civil act of July 19, 1919, therefore, is to be regarded as relating primarily to "reclamation projects" rather than to Indian irrigation projects, unless the intent to include the latter is clear. Here such an intent is by no means manifest, and the printed hearings on the sundry civil bill which resulted in the act of July 19, 1919, indicate that the committee having charge of this bill did not have in mind that the item referred to included lands within Indian reservations (House Hearings, Sundry Civil Bill, 1920, vol. 1, p. 629).

    Turning again to the act of May 18, 1916 supra, we find that after shifting the burden of the irrigation work from the tribal fund to the individual landowners benefited Congress expressly declared that--

"The cost of constructing the irrigation systems to irrigate allotted lands of the Indians on these reservations shall be reimbursed to the United States as hereinbefore provided, and no further reimbursements from the tribal funds shall be made on account of said irrigation works except that all charges against Indian allottees or their heirs herein authorized, unless otherwise paid, may be paid from the individual shares in the tribal funds, when the same is available for distribution, in the discretion of the Secretary of the Interior."

    If by diversion to the reclamation fund we forestall an accretion that would otherwise go to the Indian tribal fund we clearly run counter to this plain provision of the act of May 18, 1916. From a practical standpoint it makes but little difference whether we take a given sum from the tribal fund
 


 

21

OPINIONS OF THE SOLICITOR

OCTOBER 29, 1921

and apply it to the irrigation work, or divert for such purposes a similar sum to which the Indians are entitled, before it reaches their hands. Congress has expressly directed that this should not be done. The Supreme Court in the Nice case (241 U.S., 591), says that "legislation affecting the Indians is to be construed in their interests, and a purpose to make a radical departure is not lightly to be inferred." Again, "words in a statute, although general, must be read in the light of the statute as a whole and with due regard to the situation in which they are to be applied." These views do not lead to the conclusion that a general provision found in the sundry civil act of July 19, 1919, which, although admittedly broad, is to be construed as depriving the Indians of a valuable tribal resource. As previously shown, the aggregate area within the Flathead Indian Reservation withdrawn "for reclamation purposes" is large. Some of these lands may contain valuable tribal assets such as mineral or timber. Are these re sources lost to the Indians by inclusion of their lands in power and reservoir sites, in the absence of an express declaration by Congress to that effect? I think not. Again, when we credit the revenue derived from any of these lands to "the Flathead Irrigation Project" we not only deplete the tribal fund to that extent but we also relieve the white land owners under the project, in part, from paying their proportionate share of the costs of the work. In other words, the white man is being benefited at the expense of the Indian. This is contrary to the intent of the legislation dealing with this matter, which clearly contemplates that the cost of each system shall fall equally on the shoulders of the individual landowners thereunder, both Indian and white.

    I find no difficulty therefore in holding that the general item found in the sundry civil act of July 19, 1919, supra, does not include revenue derived from leasing lands withdrawn for reclamation purposes in the Flathead Indian Reservation, Montana.

    As to the question of jurisdiction over such lands--whether to be exercised by the Reclamation Service or the Indian Service--this is a matter of administrative control on which I see no need for expressing an opinion. Both bureaus are subject to the supervision of the Secretary of the Interior, and in the absence of some controlling statute, which I do not find, the matter of jurisdiction rests in the sound discretion of the administrative officers of this Department.

                                                                                                                    EDWIN S. BOOTH,
                                                                                                                                            Solicitor.

DEVISE OF INDIAN LAND--
ALLOTTEE'S WILL

M-6083                                                                                                        October 29, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Two questions presented by the Commissioner of Indian Affairs relating to wills by allottees of the Chippewa Tribe have been referred to me for opinion, viz:

    1. Does the approval of a will by the Secretary, devising Indian lands held under the Treaty of September 30, 1854, entirely remove the restrictions therefrom or does the land continue in trust after such approval the same as in case of a trust patent as provided in the Act of February 14, 1913 (37 Stats. L., 678)?

    2. Where a will is approved by the Secretary held under a patent issued in pursuance of the Treaty of September 30, 1854, is the office justified in collecting a fee the same as in case of trust patent lands under existing law?

    Allotments to these Indians carry restrictions against alienation without the consent of the President (10 Stats., 1110), and fall within that class known as "restricted fee" as distinguished from "trust allotments." The essential difference between these two kinds of allotments was pointed out in my prior opinion of September 29, 1921, relating to allottees of the Port Hall Reservation, Idaho (M. 5615)) wherein it was held that the Secretary of the Interior under authority found in the acts of May 27, 1902 (32 Stats., 275), March 1, 1907 (34 Stats., 1018), and June 25, 1910 (36 Stats., 855), has the power to approve sales or to otherwise remove the restrictions against alienation of both these classes of allotments. While my prior opinion did not specifically mention the subject of wills by Indians, yet under date of October 8, 1921, the Commissioner of Indian Affairs was instructed that the prior ruling is sufficiently broad to include the disposal of Indian property by will as well as by any other form of alienation. Legislation germane to the subject-matter shows this conclusively. With the approval of the Secretary of the Interior and under such rules and regulations as that officer may prescribe, any Indian of the age of twenty-one years or over was permitted, by section 2 of the act of June 25, 191.0, supra, to dispose of his allotment by will "prior to the expiration of the trust period and before the issuance of a fee
 


 

22

DEPARTMENT OF THE INTERIOR

OCTOBER 29, 1921

simple patent." Experience soon demonstrated that this was not sufficiently broad in that it apparently applied to "trust allotments" only but did not include those large number of Indian allotments held under "restricted fee patents." Again, the power to so convey was confined to the testator's individual allotment and did not extend to any inherited land, money, or other of his property over which the Government retained control. I understand also that it was early ruled administratively that the approval of an Indian's will terminated the restrictions against alienation--a result not always to be desired--although on what theory ,that ruling was based is not altogether clear. True, disposal by will is a form of alienation in that the law recognizes but two primary methods by which real property can be lost or acquired, namely, "by descent" and "by purchase." Acquisition under a will not being by descent necessarily it falls within the only remaining class, by purchase. To that extent at least it constitutes a form of alienation. This being so, and the "alienation" of an Indian's allotment usually carrying with it removal of restrictions against further alienation, ordinarily it would follow that property acquired under an Indian will would come into the hands of the beneficiary free from the restrictions. Against this, however, rests the fundamental rule of law that an individual can convey no greater title to property than he himself has. Hence, an Indian allottee could convey by will to his beneficiary no greater title than the Indian testator himself possessed, whether that be a "trust" or a "restricted fee." Clearly it was within the
power of the approving officer, if he chose to exercise it, to stipulate by regulation or otherwise that his approval of an Indian's will should not operate to remove the restrictions or to ripen the trust or restricted title into an absolute fee. Further discussion along this line, however, has become academic, for by the act of February 14, 1913 (37 Stat., 678), Congress amended section 2 of the act of June 25, 1910, so as to read (pertinent parts only reproduced)--

    That 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: Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator.

  Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees, either in whole or in part from time to time as he may deem advisable, or use it for their benefit.

    Analyzing this inversely, it is clear that the approval of an Indian's will does not terminate the trust or restricted period, that the Secretary of the Interior has the power to approve or disapprove, and that this power extends to both classes of allotments, whether held under trust or restricted fee patents. I am of the opinion, therefore, that the Secretary of the Interior has authority to approve or disapprove wills by members of the Chippewa Tribe holding allotments under the treaty of September 30, 1854, supra, and that the approval of such wills does not remove the restrictions against alienation.

    In passing it may be noted that none of the supplemental legislation found in the acts of May 27, 1902, March 1, 1907, June 25, 1910, supra, or in any amendments thereto, in express terms either curtails or enlarges any power previously vested in the President over matters of this kind, but as more fully pointed out in my prior opinion these acts do clothe the Secretary of the Interior with all necessary authority to act in the premises, thus to some extent at least relieving an over burdened officer of detailed duties which have doubtless long since become onerous.

    As to the matter of fees, this is controlled by legislation found in the acts of May 18, 1916 (39 Stat., 127), and February 14, 1920 (41 Stat., 408, 413), in the latter of which the Secretary of the Interior is authorized to collect certain fixed fees for determining "the heirs to any trust or restricted Indian property" or on approval by said Secretary "of any will covering such trust or restricted property." Needless of course, to add, on approval by the Secretary of the Interior of a Chippewa allot-
 


 

23

OPINIONS OF THE SOLICITOR

NOVEMBER 15, 1921

tee's will the fees provided by law then become due and collectible.

                                                                                                                    EDWIN S. BOOTH,
                                                                                                                                                Solicitor.

FLATHEAD-PENALTY AGAINST LAND OWNERS

M-6376                                                                                                       November 15, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested on the question whether an interest or money penalty can be assessed against land owners under the irrigation systems on the Flathead Indian Reservation, Montana, where stated charges are not paid as and when due.

    This arises in connection with an item found in the Indian appropriation act of February 14, 1920 (41 Stat., 409), which reads:

    The Secretary of the Interior is hereby authorized and directed to require the owners of irrigable land under any irrigation system heretofore or hereafter constructed for the benefit of Indians and to which water for irrigation purposes can be delivered to begin partial reimbursement of the construction charges, where reimbursement is required by law, at such times and in such amounts as he may deem best; all payments hereunder to be credited on a per acre basis in favor of the land in behalf of which such payments shall have been made and to be deducted from the total per acre charge assessable against said land.

    Tentative regulations covering partial repayment of the construction charge by land owners under the systems on the Flathead Indian Reservation are before me, wherein after stating the sum per acre to be paid annually, the following appears:

    * * * and to all charges not paid on the due date there shall be added a penalty of one per centum thereof and a like penalty of one per centum on the first day of each month thereafter so long as such default shall continue, and no water shall be delivered to any of said land while any such charge or portion thereof remains due and unpaid for one year.

    All principal sums paid hereunder, excluding penalties, will be credited upon the construction charge per irrigable acre hereafter to be announced by public notice.

    It should be noted that the statute referred to does not in specific terms authorize the addition of interest or the imposition of a money penalty for failure to promptly pay, hence we must look to such other legislation as may be germane to the subject matter. The penalties suggested are doubt less founded on section 3 of the act of August 13, 1914 (38 Stat., 686), as they are identical with the penalties imposed thereby on delinquent land owners under reclamation projects. As pointed out in my opinion of October 22, 1921 (M 6224), however, the irrigation systems on the Flathead Indian Reservation do not constitute a reclamation project as contemplated by the reclamation act of June 17, 1902 (32 Stat., 388)) and the amendments thereto. The question now before me being of a somewhat different nature, necessitates a further discussion of the situation, and particularly as to the essential difference between a reclamation project and an Indian irrigation project.

    A reclamation project is one constructed primarily out of funds received from the sale of public lands in certain states, the cost of each project to be assessed against the property benefited thereby, which cost as and when paid could again be used for the construction of other works, thus in effect creating a "revolving fund" for use in constructing works of this kind, which fund was not subject to diminution for the benefit of any one project nor to increase by way of interest. Swigart v. Baker(229 U.S., 187, 197). Indian irrigation projects, however, are on an essentially different basis. From time to time and beginning at an early date, Congress has appropriated comparatively large sums for use in constructing irrigation facilities for the benefit of Indians. Frequently these appropriations were of general application, without reference to the particular place of use and, during earlier times at least, were purely gratuitous, reimbursement not being required. The act of August 1, 1914 (38 Stat., 583), did change this policy at least to the extent of requiring reimbursement where the Indians have adequate funds with which to repay. With these general statutes, however, we are not now directly concerned other than to observe that none of them provide for the collection of interest on the advancements made by Congress in behalf of such work.

    Other sundry acts dealing with particular tribes or reservations required reimbursement of the appropriations made for irrigation work, either from tribal moneys or from the sale of unallotted tribal
 


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 15, 1921

lands, which in the final analysis means the same thing. Among this class of "projects" we find the irrigation systems on the Flathead Indian Reservation, for the construction of which prior to May 18, 1916, Congress advanced some $1,875,000.00. Inclusive of and subsequent to that date additional sums aggregating $2,650,000.00 were made available for similar use. Before considering the manner of reimbursement, it may be well to mention here that the unallotted lands in this reservation having been opened to public entry (36 Stat., 2494), we must deal with two classes of land owners under these systems--Indian, and other than Indian, the latter for the sake of brevity being referred to as "whites." The acts in which the various appropriations for this work are to be found are all "Indian appropriation acts," hence these systems or projects retain their essential characteristic as an Indian irrigation project even though a large part of the irrigable area thereunder has passed--into private ownership.

    Prior to May 18, 1916, reimbursement of the cost of those irrigation systems assessable against the land in Indian ownership was to be had from the tribal fund, and the act of May 29, 1908 (35 Stat., 444-449), required white land owners to repay their proper proportionate part of the cost of such work, in addition to paying the appraised value of the land itself. As observed in my prior opinion, many allottees within this reservation received no irrigable lands in allotment, yet their prospective share of the tribal fund was continually being hypothecated and depleted in order to reimburse the cost of the irrigation systems, to the substantial benefit of their more fortunate brethren who perchance did obtain allotments within the irrigable areas. Finding this inequitable and possibly for other good reasons as well, Congress decided to shift the entire burden to the shoulders of the individuals benefited, both Indian and white. This was done by the act of May 18, 1916 (39 Stat., 139, et seq.), which not only directed that the tribal funds theretofore covered into the Treasury of the United States in partial reimbursement of the cost of this work should again be placed to the credit of the Flathead tribe, but also directed the Secretary of the Interior to apportion the cost of this work on a per acre basis against the lands benefited in such manner that each acre of irrigable land would bear its proportionate part of the total cost of the system through which irrigated. It is significant here also to note that none of these acts relating specifically to the Flathead Reservation requires the payment of interest on the advancement made in behalf of the irrigation work, hence, under these acts the ultimate amount to be repaid to the Government is the amount actually expended--no more nor no less.

    I am not unmindful of course of the broad powers conferred on the Secretary of the Interior to require repayment of these expenditures "at such times and in such amounts as he may deem best," nor of the familiar rule of construction that in case of doubt, that doubt is to be resolved in favor of the Government. We must recognize the fact, however, that administrative officers are with out power to alter or amend existing law (Morrill v. Jones, 106 U.S., 467)) and unless the law clearly authorizes the addition of an interest or money penalty for failure to pay, then such can not be imposed. As to resolving doubts in favor of the Government, where the Indians are concerned, the Supreme Court has said:

But in the Government's dealings with the. Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years and has been applied in tax cases. (Choate v. Trappe, 224 U.S. 665-675).

    Nor do I find sufficient legal grounds for discriminating between Indian land owners and white land owners under this irrigation project. They stand equally on the same footing, with respect to repayment of the cost of this work; each acre of irrigable land, regardless of ownership to bear its proper proportionate part of the total cost of the work.

    From a practical standpoint, of course, it makes but little difference to individual land owners whether we term an additional money charge as "interest" or as a "penalty." The effect is the same, but as to penalties equity finds these still more abhorrent. Unless clearly authorized by law they can not be imposed, and where the law fixes one penalty, the parties concerned even by agreement can not substitute another. As to penalties against the land in white ownership, the act of May 29, 1908, supra, subjects the entry and water right application of such land owners to cancellation for failure to promptly pay the charges when due, together with a forfeiture of all sums previously paid. Under the act of May 18, 1916, delivery of water to any tract may be refused where the land owner the discretion of the Secretary of the Interior the fails to pay the charges as and when due, or, in
 


 

25

OPINIONS OF THE SOLICITOR

NOVEMBER 22, 1921

amount due can be collected by a suit as for money owed. These are the penalties provided by law and I find no authority for the substitution of other therefor. If these penalties are too hard, unjust or unsatisfactory, the matter is one for further consideration by Congress.

    It follows of course that the question presented is answered in the negative.

                                                                                                                                  EDWIN S. BOOTH,
                                                                                                                                                          Solicitor.

CROW
ADDITIONAL ALLOTMENTS
DISPOSITION

M-5805                                                                                                                      November 22, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Big Lark, Crow allottee No. 1541, died October 23, 1920, leaving a will in which, among other things, she devised the allotment previously made to her on the Crow Reservation, Montana, together with all inherited lands of which she died possessed, to her three sons equally. To this clause in her will the testatrix appended the following:

"And this shall include any and all further land which I may be allotted on this reservation at any future time."

    Some question having arisen as to this provision, you have requested my opinion on the questions (1) whether the decedent is entitled to an additional allotment as a member of the Crow Tribe, and (2) if so, whether she could dispose of such "expectancy" by will.

    For a long time it has been the uniform rule of this Department that a deceased Indian is not ordinarily entitled to an allotment of land in severalty unless a selection of the lands wanted was made prior to death (14 L.D., 463, 17 L.D., 142, 30 L.D., 532, 35 L.D., 146, 40 L.D., 4, 42 L.D., 446, and 45 L.D., 568). The necessity for some such rule is apparent. By sundry acts from time to time Congress has directed that allotments in severalty be made to the Indians of designated reservations. These acts usually carry no special provision with reference to allotments to deceased members of the respective tribes. So also the general allotment act of February 8, 1887 (24 Stat., 388), contains no legislative direction controlling this matter. Hence, if we recognize the right to an allotment of an Indian who died a week previous to a fixed event, we should recognize a similar right in one who died a year previous to that event, ten years previously, and--ad infinitum. Manifestly no such rule could obtain. Accordingly, it was administratively determined at an early date that the right of an Indian to participate in a prospective distribution of tribal land is but a mere "float," an inchoate right only, vesting in members of the tribe no such right as would in case of death, descend to his heirs un less a selection of the land wanted was made prior to death. In other words, in the absence of some controlling legislation to the contrary, death ipso facto terminated the right unless the conditions stated had previously been fulfilled. That rule is not only well founded but it has been so recognized and upheld by the courts. United States v. Laroque (198 Fed., 645; affirmed 239 U.S. 62).

    With these general observations in mind we take up the situation with respect to the Crows. The reservation created originally for these Indians by the treaty of May 7, 1868 (15 Stat., 649), has been successfully reduced by three substantial "cessions" made under the acts of April 11, 1882 (22 Stat., 42), March 3, 1891 (26 Stat., 989-1039), and April 27, 1904 (33 Stat., 532). Each of these provided for allotments in severalty to the Indians, and a disposal of the unallotted lands under our public land laws. Upwards of 2,500 members of the Crow Tribe have previously been allotted something over 500,000 acres of land, but the diminished re serve still contains over 1,500,000 acres of unallotted tribal land. During the 61st Congress bills were introduced looking to the opening to public entry of this remainder (Senate 3373 and H.R. 1246). To such action the Indians were bitterly opposed and their opposition was finally voiced in such an effective manner that a counter measure was proposed (Senate 6995, same session). Under the latter the remaining tribal lands, instead of being opened to public settlement, were to be prorated among the members of the Crow Tribe substantially similar to the procedure had with respect to the Osage Indians in Oklahoma under the act of June 28, 1906 (34 Stat., 539). None of these bills was enacted, however, but similar measure; were introduced in several subsequent sessions of the Congress. Without attempting to trace the legislative history in detail, sufficient to say that the matter culminated in the act of June 4, 1920 (41 Stat., 751), by which, among other things, the Secretary of the Interior is directed to allot lands in severalty to the members of the Crow Tribe as follows:

"One hundred and sixty acres to the heirs of every enrolled member entitled to allotment,
 


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 22, 1921

who died unallotted after December 31, 1905, and before the passage of this Act; next, one hundred and sixty acres to every allotted member living at the date of the passage of this Act, who may then be the head of a family and has not received allotment as such head of a family; and thereafter to prorate the remaining unallotted allottable lands and allot them so that every enrolled member living on the date of the passage of this Act and entitled to allotment shall receive in the aggregate an equal share of the allottable tribal lands for his total allotment of land of the Crow Tribe." [Italics supplied]

    In an apparent effort to facilitate the work, however, section 3 of the same act provides:

"That the Secretary of the Interior shall, as speedily as possible, after the passage of this Act, prepare a complete roll of the members of the Crow Tribe who died unallotted after December 31, 1905, and before the passage of this Act; also, a complete roll of the allotted members of the Crow Tribe who six months after the date hereof are living and are heads of families but have not received full allotments as such; also, a complete roll of the unallotted members of the tribe living six months after the approval of this Act who are entitled to allotments. Such rolls when completed shall be deemed the final allotment rolls of the Crow Tribe, on which allotment of all tribal lands and distribution of all tribal funds existing at said date shall be made." [Italics supplied.]

    A brief examination discloses considerable conflict between these two provisions, but with a broad understanding of the situation on which the legislation is founded that conflict largely disappears. For convenient reference the various classes of allottees will be designated by alphabetical symbols, those who died after December 31, 1905, and before June 4, 1920, being referred to as class A; those "heads of families" who have not previously received full allotments as such, as class B, and the unallotted members living six months after the approval of the act as class C. Doubtless the latter class is intended mainly to provide for children born within the period stated to enrolled members of the tribe. No immediate conflict appears between sections 1 and 3 of the act as to class A. So also the two sections are in accord as to class B except that in section 3 the date on which their status as "heads of families" is to be determined has been advanced from June 4 to December 4, 1920. Class C appears in section 3 but not in section 1. The chief difficulty arises from the fact that section 3 apparently contemplates that these three rolls or classes will constitute "the final allotment rolls of the Crow Tribe" on which the distribution of all tribal land and money is to be based. An analysis of the true situation however, discloses otherwise. Confining the distribution to these three classes would leave unprovided for a large component part of the tribal membership living on June 4, 1920--class D--who do not appear either in class A or C, and possibly a few only of whom appear in class B. Section 1 of the act undoubtedly contemplates that those appearing in class D shall share in the final division.

    While accurate figures are not now available yet the result can be foreseen with some degree of accuracy. Where the purpose is illustrative only even arbitrary figures can be used with safety. The allotment roll showing the members in class A has reached the Indian office. It contains 358 names. The population of the Crow Tribe on June 30, 1920, as shown by the report of the Commissioner of Indian Affairs for that year, was 1719, of whom 970 were adults and 749 minors. Births for the year appear as 61 and the deaths as 59. Even assuming that one half the adults were "heads of families" either on June 4 or December 4, 1920, we must still deduct from that number those who have previously received allotments as such. The resultant figure may be small but placing it even as high as 300, and assuming that 30 (one half of 61 disregarding fractions) will fairly represent the number of children born within the six months' period, the total of classes A, B, and C would then be 688. But the tribal membership on June 4, 1920, plus the estimated births between that date and December 4, 1920, approximates 1800. Hence, if we confine the final distribution something over 1,000 members of the Crow Tribe living on June 4, 1920, who, under section 1 of the act, clearly are entitled to share. Again, a distribution so made would include in the final division those members appearing in class A, a proceeding which section 1 of the act also contemplates should not obtain. Manifestly, therefore, this construction is untenable.

    Proceeding on a different hypothesis we reach a far more happy solution. In Peck v. Jenness (7 How. 622) the Supreme Court says:

    "But it is among the elementary principles with regard to the construction of statutes, that every section, provision, and clause of a statute shall be expounded by a reference to every other; and if possible, every clause and provision shall avail, and have the effect contemplated by the legislature. One portion of a statute should not be construed to annul or destroy what has been clearly granted by an-


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