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OPINIONS OF THE SOLICITOR

FEBRUARY 12, 1924

purposes by the President or by the Secretary under the Congressional authorizations hereinabove referred to can make but little difference for in either event those lands are now available for development under the subsequent legislation by Congress.

    In section 4 (subsection D) of the act of June 10, 1920, the Federal Water Power Commission is authorized to issue licenses for the construction, operation and maintenance of dams, reservoirs, power houses, etc., upon any of the public lands and reservations of the United States, with a proviso to the effect that no license shall issue for lands within any reservation until after a finding by the Commission that such use will not interfere with the purposes for which the reservation was created. Under section 17 of that act all proceeds from tribal Indian lands are to be placed to the credit of the Indians, while those from other lands go, in the main, 50 per cent to the reclamation fund, 37 1/2 percent to the State in which the lands are situated, and 12 1/2 percent into the Treasury of the United States as miscellaneous receipts. It is provided further, in section 24 of the act, that wherever the Power Commission shall determine that the value of any lands withdrawn for power-site purposes will not be injured or destroyed by the location, entry or selection under the public land laws of the United States, then the Secretary of the Interior may declare such lands to be open to location, entry or sale, subject to a right in the United States, its permittees or licensees, to occupy and use said lands for power-development purposes, which right is to be expressly reserved in every patent to be issued for such lands. It was doubtless with this provision in mind also that allotment of the lands here involved has been permitted. The Federal Water Power Commission has heretofore determined that the value of the lands here involved for power-site purposes will not be destroyed by allotment to the Indians, and the allottees concerned have elected in writing to receive the limited patents called for by section 24 of the act of June 10, 1920.

    With this situation at hand I see no objection, legal or otherwise, to issuing patents subject to the limitation referred to. Without at this time resorting to an extended discussion of the distinctions, technical or otherwise, between "public lands" and "Indian lands" it is sufficient here to point out that at times statutes relating to public lands apply also with equal force to Indian lands (See 48 L.D., 609-610).

    Further, under given circumstances, particular tracts of land may well come within the technical definition of either or both classes of land, as those classes are commonly referred to and as those terms are frequently used in our statutes. Thus, lands within an Indian reservation which have been opened to public settlement and entry certainly then become "public lands" to the extent at least that they are available for settlement under our public land laws. Such lands, however, may remain "Indian lands" in so far as the application of the proceeds derived therefrom is concerned. This is the situation now here, as I see it, with respect to those lands of the former Flathead Indian Reservation which have been opened to settlement and entry.

    Again, it may be pointed out that the treaties and special acts of Congress dealing with a particular Indian tribe or reservation, and the several acts and parts of other acts dealing with the Indians generally together form a code of laws relating to the Indians which, like any other code, must be considered in its entirety. Hence, the strict letter of one provision is not to prevail where such would result in defeating the intent of the legislation as a whole.

    Viewing the several statutes herein mentioned in the light of their manifest policies, I am of the opinion that there is ample authority under existing law for the issuance of limited patents of the character indicated for the lands referred to.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: January 28, 1924.
F. M. GOODWIN, Assistant Secretary.

MINERAL LEASING ACT

A-2592                                                                                                                                             February 12, 1924.
 

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You submit for my opinion two questions presented by the Commissioner of Indian Affairs which may be briefly stated thus:

    1. What title is acquired by the Indians to lands withdrawn for their benefit by Executive order?

    2. Are such lands subject to the leasing act for mining purposes, of February 25, 1920, (41 Stat., 437)?

    While we have no statute of general application which expressly authorizes the President to withdraw lands for Indian purposes, yet, from an early period Congress accorded to the Chief Executive a large discretion about setting apart portions of our public domain for national or public purposes (228 U.S. 243). That authority has frequently
 


 

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been exercised in behalf of the Indians (Executive orders relating to Indian reservations, Volumes 1 and 2). In a few instances the President has been specifically empowered to set apart lands for the benefit of certain tribes or bands of Indians (10 Stat. 1110 and 12 Stat. 929). In one instance at least the President was expressly authorized to withdraw lands for the Indians within a given State. See section 2, act of April 8, 1864 (13 Stat. 39-40). In others Congress subsequently recognized reservations so created. (See 232 U.S. 442-45). Against, by the act of February 8, 1887, (24 Stat. 388). commonly referred to as the general allotment act, Congress directed:

    "That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or Executive Order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows: * * *." [Italics supplied.]
    Where allotments in severalty have been made vested individual rights are thereby created, but with these we are not now concerned as the questions presented relate only to unallotted lands within Indian reservations. The fact remains, however, that the power of the President to withdraw lands for Indian purposes was never seriously assailed or curtailed until June 30, 1919, when Congress by act of that date (41 Stat. 3-34), provided: "That hereafter no public lands of the United States shall be withdrawn by Executive order, proclamation, or otherwise.

    When we come to consider the nature or extent of the tribal or communal "title acquired by Indians in lands withdrawn for their benefit by Executive order we encounter some difficulty. Under the doctrine of "discovery, " so ably expounded by Chief Justice Marshall of the Supreme Court in Johnson v. McIntosh (8 Wheat., 543), the fee to the lands in this country was never recognized as being in its aborigines. Even where lands are set apart by treaty with the Indian tribes, or by act of Congress, the fee remains in the United States subject to further disposal by Congress. Beecher v. Weatherby (95 U.S. 517-525) and Lone Wolf v. Hitchcock (187 U.S. 553). Where the negotiations with the Indians resulted in an unequivocal grant the rule, of course, is otherwise: New York Indians v. United States (170 U.S., 1): Jones v. Meehan(175 U.S., 1), but with these we are not now concerned, other than to observe that in the absence of an express grant the plenary power of Congress over tribal Indian matters is supreme even to the extent of abrogating, by statute, the provisions of a prior treaty. (163 U.S., 511; 169 U.S., 271; 187 U.S., 565) .

    It has been suggested, and not without some force, that the Indians acquire substantially the same rights in a reservation created by Executive order as in one created by treaty or by act of Congress: In re Wilson (140 U.S. 576-7) ; Spaulding v. Chandler (160 U.S., 402-3); see also 12 L.D., 205 and 13 L.D., 628. I do not regard that, however, as a safe rule to follow in all cases, for as observed by the court in 245 United States, 435, what was said in an opinion must be considered in the light of the facts then at hand. When analyzed the Wilson case involved simply the question of jurisdiction over the crime of murder committed on lands within the White Mountain Indian Reservation, Arizona, established originally by Executive order in 1871. That case did not involve the question of title in the Indians to the lands so set apart for their benefit, and it has since been held, as to the same reservation, that the rights of the Indians are not as comprehensive as though founded on a treaty. See United States v. Wightman (230 Fed. 277). In the Spaulding case, supra, the court did say: "When Indian reservations were created either by treaty or by Executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated." Immediately preceding that expression, however, it was also said:

   "It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government."
    The above is but in harmony with repeated decisions by the same court to the effect that in the absence of a positive grant the fee to lands set apart for the benefit of Indians, whether by treaty, by act of Congress, or by Executive order, remains in the United States subject to further disposal by
 


 

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Congress. In the Spaulding case the reservation there under discussion was founded originally on treaties with the Chippewa Tribe, and, hence, that reservation can hardly be classed as a purely Executive order reserve.

    Further discussion of individual cases, however, with respect to the first question, is unnecessary, for the President has in numerous instances, restored to the public domain lands which had previously been set apart by Executive order for the benefit of Indians. This he could not do, of course, with reservations created by treaty or by act of Congress, and this in itself is ample to show that necessarily there is a fundamental difference between an Indian reservation created by Executive order and one established by treaty or by act of Congress. Further, Executive orders issued from time to time withdrawing lands for the benefit of Indians present varying conditions some within themselves showing plainly that they are but temporary expedients while others expressly exclude the Indians from any tribal right to any minerals in the lands covered thereby. See Executive orders of November 14, 1901, relating to the Navajos and of January 14, 1916, and February 1, 1917, relating to the Papagoes. Manifestly, therefore, it is impossible to lay down a general rule attempting to define with particularity the title acquired by the Indians to lands set apart for their benefit by Executive order. Each reservation, and in fact, each Executive order may necessitate an independent determination. It may be observed, however, that where the reservations so created have remained undisturbed for many years then the rights of the Indians therein are not lightly to be disturbed.

    The second question turns primarily on the act of February 25, 1920, a somewhat comprehensive measure consisting of 38 sections, which, according to its title, is an act to promote the mining of certain minerals on "the public domain." Its opening section reads in part:

    "That deposits of coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the Act known as the Appalachian Forest Act, approved March 1, 1911 (Thirty-sixth Statutes, page 961) and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this Act *     *     *". [Italics supplied.]
    Briefly, this act authorizes the Secretary of the Interior, under appropriate regulations prescribed by him, to lease for varying periods the minerals designated within the known mineral fields and to issue prospecting permits for the development of such minerals in unexplored fields, and, on the discovery of mineral, to accord to the applicant or permittee certain preference rights to a lease thereof. Provision is also made for the payment of certain rents and royalties which under section 35 of the act, with an exception not material here, are to be applied thus: (a) 10 per cent to be deposited in the Treasury of the United States as "miscellaneous receipts;" (b) 70 per cent of past production and 52 1/2 per cent of future production to be credited to the reclamation fund, and (c) 20 per cent of past production and 37 1/2 per cent of future production to the State in which the lands involved are located in aid of its public schools, roads, etc. Nowhere in the act are the Indians mentioned nor do the words "Indian reservation" occur therein. Ordinarily a sharp distinction is to be drawn between Indian lands and public lands. See 185 United States, 391; 252 United States, 159, and 48 L.D., 440. As at first understood and construed by this Department the act of February 25, 1920, did not apply to Indian reservations for in promulgating regulations under that act (47 L.D., 424, et seq.) the lands within such reservations were expressly excepted. See 47 L.D., 424, 437 and 489. See also 48 L.D., 440.

    It has since been held, however, in the case of E. M. Harrison (49 L.D., 139) that the act under discussion does apply to lands within Indian reservations created by Executive order, but not to such reservations created by treaty or by act of Congress. This holding was based on the broad grounds that the act does not expressly except Indian reservations from its provisions and because the lands within such reservations created by Executive order are still "owned by the United States" and, hence, come within the scope of the act. Technically, of course, this is true, but it is equally true also of Indian reservations created by treaty or by act of Congress. Hence, if the act of 1920 applies to one class of such reservations then it must apply also with equal force to the other classes. This I am not prepared to admit. To a material extent Congress has made other provisions for the leasing for mineral purposes of unallotted lands within Indian reservations. See section 3 of the act of February 28, 1891 (26 Stat., 794-5) which, in passing, it may be noted comes by way of amendment to the general allotment act of February 8, 1887, supra. Executive order Indian reservations, however, do not come within the act of 1891, as operations thereunder are, by its terms, confined to lands occupied by Indians who have bought and paid for the same." Section 26 of the act of June 30, 1919
 


 

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(41 Stat. 3-31), as amended March 3, 1921 (41 Stat. 1231), authorizes the Secretary of the Interior to lease the unallotted lands within any Indian reservation in the States of Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming, for the mining of gold, silver, copper, and other metalliferous minerals, including magnesite, gypsum, limestone, and asbestos. Very properly this act has been held to apply to Indian reservations created by Executive order. Under its terms, as well as under the earlier act of 1891, the entire proceeds from such leases go to the Indians.

    There are still other considerations also which are not to be overlooked. According to a familiar rule legislation affecting the Indians is to be construed in their favor and a purpose to make a radical departure is not lightly to be inferred (241 U.S. 591) . Again, where doubt exists, that doubt is to be resolved in favor of the Indians (224 U.S., 675). In fact, it can almost be stated as a rule that unless the Indians are expressly included in the terms of an act they are to be excluded (185 U.S. 391; 241 U.S. 606).

    Again, practically all Executive orders withdrawing lands from the public domain for Indian purposes set apart the lands described therein for the benefit, use and occupancy of a given band or tribe of Indians, with an occasional one, "for such other Indians as the Secretary of the Interior may see fit to locate thereon." As commonly understood and applied, "use and occupancy" means the exclusive right to use and occupy. This is amply illustrated by that well-settled doctrine of our common law, and by statute in most if not all of our States as well, to the effect that where a landlord-the owner of the fee-grants the right of possession to another, even the landlord himself is thereafter barred from unlawfully invading the executive right of occupancy resting in his tenant. The situation now at hand, of course, is not entirely opposite to that of landlord and tenant, but the fundamental under lying principles are sufficiently analogous to fully justify the reference here. Congress, by virtue of its plenary power over the Indians can terminate their right of occupancy at any time, but until that right is extinguished, either by act of Congress or by modification of the Executive order creating the reserve, then the right of occupancy so resting in the Indians is exclusive; and, hence, the public land leasing laws do not apply. While ordinarily not likely to occur, yet it is entirely possible for the lands within small Indian reservations withdrawn by Executive order to be entirely covered by leases of the character contemplated by the public land leasing acts. In the final outcome this might result in a total eviction of the Indians from the specific area so withdrawn for their benefit.

    These observations but lead me to conclude that had Congress intended to embrace Indian reservations within the scope of the Public-land leasing act it would have expressly so provided, as it did with our national forest reserves, Administrative officers being without power to alter or amend existing law, I am of the opinion that the general leasing act of February 25, 1920, does not apply to lands within Indian reservations created by Executive order. To hold otherwise would present the incongruous situation of having the proceeds from certain mineral resources within these reservations flowing to the Indians under the act of June 30, 1919, while those from still other mineral deposits, possibly within the very same reservation, instead of going to the Indians, would be devoted to the purposes specified in section 35 of the act of February 25, 1920. I am satisfied that Congress did not so intend, hence, the matter is one for further action by that body.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved:
Secretary.
 
STATUS OF ALASKAN NATIVES-
TIDE LANDS

50 L.D. 315                                                                                                                                           March 12, 1924.

ALASKA--INDIAN LANDS--OCCUPANCY--STATUS OF NATIVES

    The status of the Indians and other "natives" of Alaska is similar to that of the American Indians within the territorial limits of the United States, and the extent of their interests in the public lands therein is merely that of use and occupancy, subject to such further grant of title as Congress from time to time may see fit to accord.
ALASKA--INDIAN LANDS--RESERVATION
    A reservation created by the Secretary of the Interior pursuant to section 10 of the act of May 14, 1898, setting apart a particular area of public land in Alaska for the benefit of the Indians or natives does not vest them with actual title.
ALASKA--INDIAN LANDS--TIDE LANDS--OCCUPANCY--RESERVATION--JURISDICTION
    The tide or other lands in Alaska, occupied or reserved for the Indians or natives, can not be disposed of by them under existing law, but the power rests with Congress, with or without their consent, to provide for the ultimate disposal of these lands.



 

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EDWARDS, Solicitor:

    There has been submitted for my opinion a question presented by William L. Paul, an attorney at law, of Ketchikan, Alaska, involving the title to certain tidelands near the town of Ketchikan.

    Claiming to be a native Alaskan, a descendant of the Tongass Tribe, with a power of attorney from the entire tribe, Mr. Paul asserts with some confidence that the United States is without power to deprive the natives of Alaska of any of their holdings without their consent. These circumstances suggest a more extended discussion of the situation than ordinarily would be required.

    The domain embraced in the Territory of Alaska was acquired from Russia in 1867, by treaty dated March 30 of that year (15 Stat., 539). With reference to the rights of individuals in the territory so ceded, Article III of that treaty provides:

    The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.
    The act of May 17, 1884 (23 Stat., 24), which virtually constitutes the organic act for the Territory of Alaska, expressly declares in section 8--
    That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress. [Italics supplied.]
    Section 11, et seq., of the act of March 3, 1891 (26 Stat., 1095, 1099), authorizing the establishment of town sites in Alaska, the acquisition by individuals of limited areas for trade or manufacturing purposes, etc., expressly excepts, in section 14, "any lands *     *     * to which the natives of Alaska have prior rights by virtue of actual occupation." Section 15 of the latter act also reserved for use of the Metlakatla Indians the body of lands known as "Annette Islands," but with these we are not here directly concerned other than to observe that it has since been held that the reservation so created extends to and includes adjacent "deep waters." See Alaska Pacific Fisheries v. United States (248U.S., 77).

    The foregoing abundantly illustrates the fact that the Indians and other "natives" of Alaska are in the same category as the other Indians of the United States. I have so held in a recent opinion dated May 18, 1923. See 49 L.D., 592. In other words, whether in Alaska or elsewhere in the territorial domain of the United States, the right of the aborigines, Indians or otherwise, is simply that of use and occupancy subject to such further grant of title as Congress from time to time may see fit to accord. The proviso to section 8 of the act of May 17, 1884, reproduced above, clearly shows this in so far as the Indians of Alaska are concerned. From an early date, pursuant to the legislative intent indicated by Congress, this Department has consistently recognized and respected the rights of the natives of Alaska in and to the lands occupied by them. See 13 L.D., 120; 23 L.D., 335; 24 L.D., 312; 26 L.D., 517; 28 L.D., 427; 37 L.D., 334.

    So much for the situation generally. With respect to the tidelands immediately here in question it may be said by the act of May 13, 1898 (36 Stat., 409), the homestead laws of the United States were extended to the Territory of Alaska, and by section 10 of that act the Secretary of the Interior was authorized to reserve for use of the natives of Alaska "suitable tracts along the water front of any stream, inlet, bay or seashore, for landing places for canoes and other craft used by such natives." On August 5, 1905, pursuant to the authority just referred to, the Acting Secretary of the Interior reserved the lands described as--

    All the lands in the vicinity of the mouth of Ketchikan Creek which lie between the lands occupied by the natives and the limits of low tide of Tongass Narorws.
    Subsequently the town site of Ketchikan was established, pursuant to section 11 of the act of March 3, 1891, supra, surveyed into lots, blocks, streets, and alleys and lots therein, or the most of them at least, disposed of to private individuals. This town is now an incorporated municipality, as the act of February 7, 1920 (41 Stat., 402), will show, but the reserve of the tidelands along Tongass Narrows heretofore established as a landing place for the benefit of the natives has never been vacated.

    In prior communications to this Department, Mr.
 


 

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Paul stated that the natives are tired of their present location in Ketchikan and for various reasons desire to move to some other locality nearby. With this in view, Mr. Paul inquired if the natives would be permitted to sell their holdings, and by departmental letters of October 2 and December 1, 1923, he was advised that there is no authority under existing law by which these lands can be sold. It was further pointed out that by section 2 of the act of May 17, 1898, Congress had declared an intent to hold tidelands and the beds of navigable streams in in trust for the people of the future State, or States, to be created out of that Territory, and that in the absence of additional legislation by Congress this Department was without authority to make any other disposal thereof. I see no occasion here to question the soundness of that view. As previously shown, until Congress grants some greater title, the right of the natives in Alaska is simply one of use and occupancy. Nor does the of a particular area for their benefit result in placing actual title in the Indians. This is clearly shown by the ruling of the Supreme Court in the Alaska Pacific Fisheries case, supra, involving the reserve for the Metlakatla Indians, wherein the court said, page 88:

    The reservation was not in the nature of a private grant, but simply a setting apart, "until otherwise provided by law," of designated public property for a recognized public purpose-that of safeguarding and advancing a dependent Indian people dwelling within the United States.
    Prior to the admission of a new State Congress has the power, of course, by grant or otherwise, to dispose of lands underlying navigable waters, tide or inland, in any of the territorial domain of the United States. Shively v. Bowlby (152 U.S., 1). In the absence of specific legislation by that body, however, title to such lands can not be acquired by any individual or group of individuals, Indian or otherwise. Mann v. Tacoma Land Company (153 U.S., 273) and Alaska Pacific Fisheries v. United States, supra. So also, about the plenary power of Congress over tribal Indian property there can be no doubt, and in the absence of an express grant the power so resting in Congress extends even to the abrogation, by statute, of the provisions of a prior treaty. See Lone Wolf v. Hitchcock (187 U.S. 553, 565), and cases there cited.

    I am of the opinion that the tide or other lands occupied by or reserved for the Indians at Ketchikan, Alaska, can not be disposed of under existing law but that the power rests with Congress, by statute, with or without the consent of the Indians, to provide for the ultimate disposal of those lands.

Approved :
F. M. GOODMAN, Assistant Secretary.

CHOCTAW AND CHICKASAW-
COAL ROYALTIES

M-7316                                                                                                                    May 28, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You request my opinion in the matter of refunding advance royalties to purchasers of coal and asphalt deposits underlying the segregated coal and asphalt land of the Choctaw and Chickasaw Indians Oklahoma.

    These segregated lands form part of the domain patented in fee March 23, 1842 to these Indians in common pursuant to the treaties of September 27, 1830 (7 Stat. 333), and January 17, 1837 (11 Stat. 573). Under section 29 of the act of June 28, 1898 (30 Stat. 495-505), commonly known as the Atoka agreement, and the act of July 1, 1902 (32 Stat. 641), known as the supplemental agreement, allotments in severalty were made to individual members of these tribes but the coal and asphalt lands, approximating some 450,000 acres, were segregated or reserved for the benefit of the Indians in common. Anterior to 1898 however, the tribal officers had entered into a series of leases covering some of these coal and asphalt lands, royalty therefrom being payable at specified rates per ton for the benefit of the tribes at large. These earlier negotiations between the Indians and their lessees were ratified and confirmed to some extent by the Atoka agreement, additional leases were provided for to run for terms of 30 years, royalty being fixed at 15 cents per ton for coal and 60 cents per ton for asphalt with a proviso under which the Secretary of the Interior could increase or decrease the rate of royalty whenever he deemed it for the best interest of the Indians, so to do (30 Stat. page 510). For a limited period the coal operators were required to pay 15 cents per ton royalty on "screened coal" but on protest and after an extensive hearing the rate of royalty on coal was fixed at 8 cents per ton "run of mine". The asphalt deposits proved to be such a negligible factor that for the purpose of this discussion they may be disregarded other than to observe that both classes of deposits are controlled by the same legis-
 


 

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lation and the same underlying fundamental principles. With particular reference to advance royalties the act of 1898, supra, provides:

    "All lessees shall pay on each coal or asphalt claim at the rate of one hundred dollars per annum, in advance, for the first and second years; two hundred dollars per annum, in advance, for the third and fourth years; and five hundred dollars, for each succeeding year thereafter. All such payments shall be treated as advanced royalty on the mine or claim on which they are made, and shall be a credit as royalty when each said mine is developed and operated, and its production is in excess of such guaranteed annual advance payments, and all persons having coal leases must pay said annual advanced payments on each claim whether developed or undeveloped; Provided, however, That should any lessee neglect or refuse to pay such advanced annual royalty for the period of sixty days after the same becomes due and payable or any lease, the lease on which default is made shall become null and void, and the royalties paid in advance thereon shall then become and be the money and property of the Choctaw and Chickasaw nations".
    The supplemental agreement of 1902, supra, sections 56 to 68, inclusive, contemplated that the segregated coal and asphalt lands including the mineral deposits therein, whether leased or unleased, should be sold within three years from the date of ratification of that act. To this end further leases were prohibited but the act of April 21, 1906 (34 Stat. 137-142), Congress further directed leased lands should be withheld from sale until otherwise provided, thus leaving the unleased areas only to be offered for sale. In 1905 an effort was made to dispose of the unleased lands but all bids therefor were rejected by the Secretary of the Interior as being too low. By the act of April 26, 1906 (34 Stat. 137 142), Congress further directed that all of these segregated lands, both leased and unleased, should be withheld from sale until the existing leases shall have expired (about 1932) "or until otherwise provided by law".

    The matter rested thus, legislatively, until 1912 when by the act of February 19, of that year (37 Stat. 67), Congress provided for an appraisement and sale of the surface of these lands subject to all rights of the mineral lessees and giving also to those lessees certain preferential rights to purchase part of the surface leased by them at the appraised price: See McAlexter-Edwards Coal Company v. Secretary of the Interior (277 Fed. 573 and 262 U.S., 200). Between the years 1909 and 1916 at least approximately 2,500,000 tons of coal were mined from these lands annually, some 100,000 acres in the aggregate being then covered by 113 leases, all of which, however, were not producing or in operation. At any rate royalty on the coal annually produced at eight cents per ton yielded the Indians about $200,000 per annum. See hearings on H.R. 12544, 64th Congress, which ultimately became the act of February 8, 1918 (40 Stat. 433). The latter act provided for the appraisement and sale of the coal and asphalt deposits in these segregated lands under rules and regulations to be prescribed by the Secretary of the Interior, at not less than the appraised price. Section 4 of this act reads in part:

    "That such deposits of coal or asphalt on the leased lands shall be sold subject to all rights of the lessee 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 property and that said properties there after 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 restrictions whatever; and that any lessee shall have the preferential rights, 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

 

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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 heretofore 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." [Italics supplied.]

    The mineral deposits underlying these lands were advertised and offered for sale, in accordance with the terms of the foregoing legislation and the regulations promulgated by this Department to carry out the provisions of that act expressly declare:
    "Until full and final payment is made for any tract, leased or unleased, sold under these regulations, the purchaser shall pay, or cause to be paid to the Superintendent for the Five Civilized Tribes, monthly, 8 cents per ton for all coal mined (mine run), and 10 cents per ton for asphalt mined, such payment to be held by said Superintendent to be applied on the purchase price, and upon request of the purchaser may be applied in payment of any installment, when due. Any unused advance royalty to the credit of a lessee under existing leases, shall be paid by said Superintendent, when final payment of the purchase price is made, to the purchaser for the benefit of the lessee under the terms of the lease and the Act of Congress approved February 8, 1918; Provided, however, that 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 heretofore 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."
    Evidently therefore, upon payment of the purchase price in full the purchaser then becomes entitled to the advance royalty, or more accurately speaking, the unused advance royalty standing to the credit of the tract so purchased, Further, that where a lessee purchased the coal deposits on any undeveloped lease owned by him he thereupon became entitled to credit on the purchase price to the extent of one-half of the advance royalties paid, the remaining half to be credited to such lessee on account of production on any other lease owned by him.

    When analyzed, the situation behind all this, manifestly the plain intent is that the Indians shall receive full and adequate consideration for their property but at the same time, substantial justice shall be done to the lessees. The hearings on the bill last herein referred to clearly shows this. The advance royalties, in effect, simply constitute a deposit to be applied on production as and when had. Forfeiture is not provided for except such as may be found in the proviso reproduced above from the act of June 28, 1898, which obtains only where the lessee neglected or refused to pay the advance royalties as and when due. With such royalties as have heretofore become forfeited, however, we are not here dealing, the question now before me relating to the unused advance royalties standing to the credit of given tracts of land which have been sold and fully paid for. The Indians have hereto fore received the appraised price and frequently more than the appraised price (the highest bid price) for both the surface and the coal deposits underlying that surface, and I am unable to see wherein we can now demand for the Indians retention of the advance royalties which Congress has directed be credited by the purchaser in favor of the lessee to the full extent thereof.

    One other point remains to be considered. These deposits were offered for sale and were sold, in the main, at McAlester, Oklahoma, on December 11, 12, 13 and 14, 1918. Owing to unavoidable administrative and other delays approval of these sales by the Secretary of the Interior was not had in many instances for several months later, notably that of the Kala-Inla Coal Company, purchaser of tract No. 34-B, McAlester district, which sale was not approved until August 29, 1919, the agreed price being $21,420. Under Section 2 of the act of February 8, 1918, supra, the purchaser of these deposits were required to pay 20 per cent of the purchase price in cash and the remainder in four equal annual installments "from the date of sale", the deferred payments to bear interest at 5 per cent per annum. Where production was in progress necessarily coal in varying and frequently considerable quantities was being mined and removed from these premises between the date of sale and the date of approval in each case. On this production the usual royalty at 8 cents per ton was demanded and paid as a measure of protection for the Indians in case of default by the purchaser to meet subsequent installments of the purchase price when due. It was first held by the Department that as the sale was not complete until approved by the Secretary of the Interior, the royalty or production between the date of sale and
 


 

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MAY 31, 1924

the date of approval belonged to the Indians. On protest by the Kala-Inla Company, however, the Department, on December 26, 1922, ruled that the purchaser should be required to pay interest on the deferred payments from date of sale, rather than from the date of approval, and that upon final payment of the purchase price the purchaser then became entitled to a refund of the royalty on the coal removed from the tract between these two dates. I regard the latter as the correct view, which certainly is more in harmony with the letter and intent in section 2 of the act of February 8, 1918, supra, This is apparent, from a moment's consideration. These deposits were sold as of a given date, the purchaser bought as of that date and on payment of the purchase price in full with interest the purchaser then clearly becomes entitled to the royalty on such deposits as may have been removed from the premises so purchased subsequent to the date of sale.

                                                                                                                                                    JOHN H. EDWARDS,

Solicitor.
Approved: May 28, 1924.
F. M. GOODWIN, Assistant Secretary.

DISTRIBUTION OF TRIBAL
FUNDS-CHIPPEWA

M-11879                                                                                                                    May 31, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    The act of January 24, 1889 (25 Stat. 642), entitled "An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota." after authorizing the sale of lands ceded by the different bands or tribes of said Indians, further provided in section 7 thereof, among other things, that the money accruing from the disposal of said lands, after deductions for certain purposes

    "be placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota, as a permanent fund, which shall draw interest at the rate of five per centum per annum, payable annually for the period of fifty years *     *     * and at the expiration of the said fifty years, the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living in cash in equal shares."
    The act of March 2, 1907, (34 Stat. 1221), entitled "An Act providing for the allotment and distribution of Indian tribal funds", reads as follows:
    "That the Secretary of the Interior is hereby authorized, in his discretion, from time to time, to designate any individual Indian belonging to any tribe or tribes whom he may deem to be capable of managing his or her affairs, and he may cause to be apportioned and allotted to any such Indian his or her pro rata share of any tribal or trust funds on deposit in the Treasury of the United States to the credit of the tribe or tribes of which such Indian is a member, and the amount so apportioned and allotted shall be placed to the credit of such Indian upon the books of the Treasury, and the same shall thereupon be subject to the order of such Indian; Provided, "That no apportionment or allotment shall be made to any Indian until such Indian has first made an application therefor: Provided further, That the Secretaries of the Interior and of the Treasury are hereby directed to withhold from such apportionment and allotment a sufficient sum of the said Indian funds as may be necessary or required to pay any existing claims against said Indians that may be pending for settlement by judicial determination in the Court of Claims or in the Executive Departments of the Government, at time of such apportionment and allotment.

    Sec. 2. That the Secretary of the Interior is hereby authorized to pay any Indian who is blind, crippled, decrepit, or helpless from old age, disease, or accident, his or her share, or any portion thereof, of the tribal trust funds in the United States Treasury belonging to the tribe of which such Indian is a member and of any other money which may hereafter be placed in the Treasury for the credit of such tribe and susceptible of division among its members, under such rules, regulations, and conditions as he may prescribe."

    Said section 2 of the act of March 2, 1907, was amended by the act of May 18, 1916 (39 Stat. 123, 128) so as to read as follows:
" 'That the pro rata share of any Indian who is mentally or physically incapable of managing his or her own affairs may be withdrawn from the Treasury in the discretion of the Secretary of the Interior and expended for the benefit of such Indian under such rules, regulations and conditions as the said Secretary may prescribe:' Provided, That said funds of any
 

 

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DEPARTMENT OF THE INTERIOR

MAY 31, 1924

Indian shall not be withdrawn from the Treasury until needed by the Indian and upon his application and when approved by the Secretary of the Interior."

    My opinion has been requested as to whether the Secretary of the Interior has authority under the above acts to segregate and pay over to one Thomas Jackson, a member of the Fond du Lac Band, the whole of his pro rata share of the permanent fund in the Treasury to the credit of the Chippewa Indians heretofore has been considered as containing no authority for segregating any of said funds for the purpose of making payments such as that applied for by Thomas Jackson; that the matter is controlled entirely by the provisions of the special act of January 14, 1889, the view being taken that the general act of March 2, 1907, is not applicable.

    It is an established rule that a previously enacted special law is not modified or repealed by a general law where there is a repugnancy or inconsistency between the earlier and later laws unless such modification or repeal is provided for in express words or arises by necessary implication. Repeal by implication is, of course, not favored. The act of March 2, 1907, is clearly repugnant to the special provisions of the act of January 14, 1889, so much so that if the general provisions of the later act as amended were made applicable there would be the possibility that the permanent fund set apart by the earlier act for all of the Chippewa Indians in the State of Minnesota to draw interest, payable annually, for the period of 50 years, might be seriously depleted if not entirely exhausted. It is not believed that such could have been the intention of Congress and any purpose to abrogate the definite provisions of the act of 1889 by the later general enactment of 1907, ought to be clearly manifest, especially as it is clearly possible for the provisions of both the acts to stand together.

    Furthermore, subsequent legislation in reference of Minnesota, shows that when withdrawals are contemplated from the permanent fund to their credit in the Treasury arising under section 7 of the act of 1889, Congress has as provided in said section passed special acts appropriate to accomplish the purpose. In none of these acts is there any provision covering a situation like the present one. Among other things Congress has from time to time, authorized the Secretary of the Interior to withdraw different amounts from this permanent fund belonging to the Indians and to use the same in the promotion of civilization of self-support among them, in manner and for purposes provided for in the act of 1889.

    By the act of May 18, 1916 (39 Stat. 123, 135), the Secretary of the Interior is authorized to advance to any individual Chippewa Indian in the State of Minnesota entitled to participate in the permanent fund in question one-fourth of the amount which would now "be coming to said Indian under a pro rata distribution of said permanent fund." This distribution was made to the Indians on the basis of a roll prepared as of the date of the act, and it appears that Thomas Jackson received his share. The same act also contained a provision authorizing the Secretary of the Interior in his discretion to "advance to any Chippewa Indian in the State of Minnesota entitled to share in said fund who is incompetent, blind, crippled, decrepit, or helpless from old age, disease, or accident, one-fourth of the amount which would now be coming to said Indian under a pro rata distribution of said permanent fund". This provision is practically identical with that in section 2 of the general act of March 2, 1907, supra, which apparently was unnecessary if Congress had considered the act of 1907 operative in respect to the Chippewa Indians of Minnesota.

    As throwing some light on the present situation reference may be made to the act of May 25, 1918 (40 Stat. 561, 591) under which the Secretary of the Interior is authorized in section 28 thereof to withdraw from the Treasury and segregate the common or community funds of any Indian Tribe to individual Indians. It was also provided that the funds of any tribe should be "segregated until the final rolls of said tribes are complete." Excepted from the operation of that act were the Five Civilized Tribes and the Osage Tribe of Indians in Oklahoma.

    The act of June 30, 1919 (41 Stat. 3, 9), contains this provision:

    "That the Secretary of the Interior is hereby authorized, wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian Blood, when approved by the said Secretary are hereby declared to constitute the legal membership of the respective tribes for the purpose of segregating the tribal funds as provided in section 28 of the Indian Appropriation Act approved May 25, 1918 (Fortieth Statutes at Large, pages 591 and 592), and shall be conclusive both as to ages and quantum of Indian blood: Provided, That the foregoing shall not apply to the Five Civilized Tribes or to the Osage Tribe of Indians, or to



 

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OPINIONS OF THE SOLICITOR

JUNE 6, 1924

the Chippewa Indians of Minnesota or the Menominee Indians of Wisconsin."

    The reason for the exception of the Chippewa Indians of Minnesota from the operation of this act would seem to be obvious. The permanent fund deposited in the Treasury to the credit of said Indians by the act of 1889 is for a specified period of 50 years to draw interest payable annually. The act provides that "at the expiration of the said 50 years the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares."

    The following act was passed by Congress on January 25, 1924 (Public-No. 1):

    "That the Secretary of the Interior be, and he is hereby, authorized to withdraw from the Treasury of the United States so much as may be necessary of the principal fund on deposit to the credit of the Chippewa Indians in the State of Minnesota, arising under section 7 of the Act of January 14, 1889 (Twenty fifth Statutes at Large, 642), entitled 'An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota' and to make therefrom a per capita payment or distribution of $100 to each enrolled member of the tribe, under such rules and regulations as the said Secretary may prescribe: Provided, That before any payment is made hereunder the Chippewa Indians of Minnesota shall, in such manner as may be prescribed by the Secretary of the Interior ratify the provisions of this Act and accept the same."
    From the foregoing it is clear that the distribution of the principal sum or permanent fund in the Treasury to the credit of the Chippewa Indians in Minnesota, or any part thereof, is controlled entirely by the special act of January 14, 1889, and subsequent acts already passed or which may hereafter be passed by Congress and that the general act of March 2, 1907, has no application in the affairs of these Indians. Consequently, there is no authority for favorable action in the case of Thomas Jackson, and there is no existing law under which an application such as that made by him could be allowed.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: May 31, 1924.
F. M. GOODWIN, Assistant Secretary.

EXCHANGE OF ALLOTTED
LAND-FLATHEAD

M-12498                                                                                                           June 6, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in the matter of an exchange of or change in the lands allotted Phillip Bernard Clairmont, Flathead allottee No. 2623, the particular point at issue being whether there is any authority under existing law to permit the change desired.

    The Flathead Indian Reservation, Montana, was created by treaty dated July 16, 1855 (12 Stat. 975), and embraced in round numbers some 1,500,000 acres. By the act of April 23, 1904 (33 Stat. 302) Congress directed that allotments in severalty be made to the Indians of this reservation "under the provisions of the allotment laws of the United States" and upon completion of that work the classification, appraisement and opening of unallotted and unreserved lands to settlement and entry by proclamation of the President under the general homestead, town site and mineral land laws of the United States. These things have been done, some 2,500 members of this tribe having been allotted an aggregate area of around 228,000 acres, and the surplus lands having been opened by proclamation of the President in 1910: (See 37 L.D., 698).

    "Under the provisions of the allotment laws of the United States" has properly been construed to mean the general allotment act of February 8, 1887 (24 Stat. 388), as amended. This, in turn, provides for the issuance of patents declaring that the United States does and will hold the lands so allotted in trust for a period of 25 years for the benefit of the allottees or his heirs and on expiration of that period a patent in fee will issue for the lands so allotted, free from any charge or incumbrance of any nature whatsoever-in other words, our familiar 25-year trust patent. We frequently find acts of Congress directing allotments on particular Indian reservations to be made in accordance with the general allotment laws of the United States. When so made, for all practical purposes, such allotments are to be regarded as coming within the scope of the general allotment act. The chief difference lies in the area received by the allottees. Under the general allotment act, ordinarily, each Indian receives 80 acres of agricultural or 160 acres of grazing land, while under the special acts relating to particular reservations they fre
 


 

112

DEPARTMENT OF THE INTERIOR

JUNE 6, 1924

quently receive considerably more. See the act of May 30, 1908 (35 Stat. 558), relating to the Fort Peck Reservation and the act of March 1, 1907 (34 Stat. 1035) as amended June 30, 1919 (41 Stat. 16), relating to the Blackfoot reservation, both of which are also in the State of Montana. Both of these acts authorizes allotments under the general allotment laws of the United States and on each reservation the allottees received in excess of 320 acres. Patents for such allotments however were issued in accordance with the general allotment act of February 8, 1887, as amended.

    After the Flathead reservation had been opened to settlement and entry the Indians insisted that allotments should be made to unallotted children born to enrolled members of the tribe, from the undisposed of lands within their former reservation. This was granted by the act of February 25, 1920 (41 Stat. 452), which authorized allotments to such children "during one year from and after approval of that act", from any of the unallotted or unsold lands within the original limits of this reservation. The allotment now here to Philip Bernard Clairmont, among others, was made under this act although patents therefor were not issued until May 25, 1922.

    From time to time Congress has enacted sundry statutes permitting Indians to surrender the lands allotted to them and select other lands in lieu thereof. See the acts of October 19, 1888 (25 Stat. 611, 612), act of January 26, 1895 (28 Stat. 641), act of April 23, 1904 (33 Stat. 297) and the act of March 3, 1909 (35 Stat. 784). Section 2 of the act of 1888, supra, reads:

    "The Secretary of the Interior is hereby authorized, in his discretion, and whenever for good and sufficient reason he shall consider it to be for the best interest of the Indians, in making allotments under the statute aforesaid, to permit any Indian to whom a patent has been issued for land on the reservation to which such Indian belongs, under treaty or existing law, to surrender such patent with formal relinquishment by such Indian to the United States of all his or her rights, title, and interest in the land conveyed thereby, properly endorsed thereon, and to cancel such surrendered patent: Provided, That the Indian so surrendering the same shall make a selection, in lieu thereof, of other land and receive patent therefor, under the provisions of the act of February eighth, eighteen hundred eighty-seven."
    The act of March 3, 1909, supra, provides (pertinent provisions only):
    "That if any Indian of a tribe whose surplus lands have been or shall be ceded or opened to disposal has received or shall receive an allotment embracing lands unsuitable for allotment purposes, such allotment may be canceled and other unappropriated, unoccupied, and unreserved land of equal area, within the ceded portions of the reservation upon which such Indian belongs, allotted to him upon the same terms and with the same restrictions as the original allotment, and lands described in any such canceled allotment shall be disposed of as other ceded lands of such reservation. This provision shall not apply to the lands formerly comprising Indian Territory. The Secretary of the Interior is authorized to prescribe rules and regulations to carry this law into effect."
    According to a familiar rule statutes of a remedial nature are to be liberally construed, and, wherever possible, legislation relating to the Indians is to be construed in their favor. With these observations in mind I am of the opinion that the limitation of one year in the act of February 25, 1920, under which allotments were to be made to additional members of the Flathead tribe is not to be construed as a limitation on or a prohibition of exchanges of or changes in the allotments to the Indians of this reservation under the earlier statutes herein referred to, whenever such changes are found by the Secretary of the Interior to be for the best interests of the Indians.

                                                                                                                                                  JOHN H.. EDWARDS,

Solicitor.
Approved:
F. M. GOODWIN, Assistant Secretary.

INTERMARRIAGE--ENROLLMENT
OF CHILDREN BORN

50 L.D. 551                                                                                                             June 16, 1924.
M-12198

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in the matter of the enrollment of Addie Prickett, Laura McNutt, Frank Wilbut, Amos Wilbur, George Wilbur and David Wilbur, with the Menominee Tribe of Indians, Wisconsin.
 


 

113

OPINIONS OF THE SOLICITOR

JUNE 16, 1924

    Applications of the above persons for enrollment with the Menominee Tribe were denied by the Department March 1, 1907, and September 27, 1910. Request has been made for reconsideration of that action based on an act apparently not considered at the time. The persons in question are the children of Sarah Wilbur, a Menominee Indian of mixed blood, who was the wife of a white man and whose enrollment was authorized in said decision of the Department of March 1, 1907. In the request for reconsideration reference is made to the act of June 7, 1897 (30 Stat. 62, 90), providing for the enrollment under certain conditions of children born of a marriage theretofore solemnized between a white man and an Indian woman. It is alleged that error was committed in holding that because the mother, Sarah Wilbur was not recognized as a member of the tribe prior to March 1, 1907, the act of June 7, 1897, does not apply as "there is not a word about membership in the act, nor, place of birth, affiliation or other matter, and the Department cannot legislate."

    It appears that Sarah Wilbur had 14 children and that she originally applied for enrollment of herself and all of her children, 11 of whom were born off the reservation and 3 alleged to have been born on the reservation. Her application was subsequently modified to include only the 3 children alleged to have been born on the reservation. The tribe voted unanimously against the enrollment of both Sarah Wilbur and all of her children. The Department, however, on March 1, 1907, authorized the enrollment of the mother, at the same time denying the application for the children. This was upon the showing among other things, that the mother of Sarah Wilbur was at one time carried on the rolls as a half-breed Menominee Indian and that Sarah Wilburn had removed to and was then living on the reservation. Application for the enrollment of the children was renewed in 1909 including those named in the present request for reconsideration. The tribe unanimously opposed the enrollment of any of the applicants, all of whom were born off the reservation and had never affiliated with or been recognized by the tribe. The Department on September 27, 1910, authorized the enrollment of two of said applicants on the ground that they were married to enrolled members of the tribe and had for many years been affiliated there with and residing on the reservation, but denied the application of the other children. It appears to have been the custom of the Indians at the time to recognize intermarried women as belonging to the tribe and entitled to share in its benefits. Two other children of Sarah Wilbur were for like reasons subsequently enrolled with the tribe.

    As above stated the present request for reconsideration is based solely on the act of June 7, 1897, supra, which reads as follows:

    "That all children born of a marriage heretofore solemnized between a white man and an an Indian woman by blood and not by adoption, where said Indian woman is at this time or was at the time of her death, recognized by the tribe shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right."
    The contention is that as these applicants are the children of a white man and an Indian woman by blood and not by adoption, "belonging to the Menominee Tribe of Indians by blood", and that as the mother was commonly known among, and "recognized by the tribe on and prior to June 7, 1897", and is now enrolled, they are within the provisions of said act regardless of membership in the tribe, place of birth, affiliation or other matter.

    The act of June 7, 1897, was not referred to and apparently was not considered in connection with the departmental actions of March 1, 1907, and September 27, 1910, enrolling Sarah Wilbur and denying such right to her children. It is true that the persons contemplated by the remedial act of June 7, 1897, do not have to show enrolled membership in order to share in the distribution of the property of the tribe. It was held in an opinion of the Assistant Attorney General of this Department in the case of William Banks (26 L.D., 71, 73):

    "The object of that act was not to make the persons coming within its provisions members of any tribe of Indians nor to reinstate them where they had withdrawn from such membership but to confer upon them simply one of the incidents of membership, that is, a right to share in the distribution of the property of the Tribe."
    But in order to entitle such children as are referred to in said act to a right to share in the tribal property, it must be shown as expressly required in said act, that the mother was recognized as a member of the tribe. The statement in the request for reconsideration that the mother, Sarah Wilbur was recognized by the tribe on and prior to the act of June 7, 1897, is not borne out by the evidence, especially in view of the persistent objections of the tribe to her enrollment. In view of all the facts it is not believed the statement can mean more than
 


 

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DEPARTMENT OF THE INTERIOR

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that the relatives and acquaintances of Sarah Wilbur recognized that she possessed Menominee blood through her mother who was at one time recognized by the tribe. The fact is that Sarah Wilbur did not apply for enrollment until long after the passage of said act, although her marriage took place prior thereto and she was not actually enrolled until March 1, 1907, which was then done over the protest of the tribe and solely on the ground that her mother was at one time carried on the rolls and that she herself had returned to the reservation. Aside from the facts, which do not clearly establish recognition by the tribe, a forced recognition is not such recognition as is evidently contemplated by the act of June 7, 1907. The authorities fully recognize the right of the several Indian tribes to regulate their internal affairs, including determination of who are the tribal members, subject only to the power of Congress to annul their customs, usages and determinations.

    In an opinion of the Assistant Attorney General for this Department, under date of March 14, 1905, after fully setting forth the history of the act of June 7, 1897, it was held among other things:

"*     *     * where an Indian woman is after intermarriage with a white man recognized by her tribe as belonging thereto, and the family so founded identifies itself and affiliates with 'the Indian tribe to which the mother belonged and by which she continued to be recognized, and the issue of such marriage are recognized by tribal usage as its members, such issue are entitled to be enrolled in the tribe-and to receive the benefit of tribal annuities and property *     *     *"
    It was concluded in said opinion that the construction of the act of 1897 given by the instructions of March 5, 1904, in the matter of the New York Indians is the correct one and should be followed. Those instructions read in part:
    "The act was clearly aimed at a supposed in justice in the administration of Indian affairs. It must be construed to relive the issue of a marriage coming within its descriptive terms. It applies to all prior marriages, for the word "heretofore" clearly requires it, and the words "is at this time or was at the time of her death" necessarily so imply. The descriptive words "is at this time or was at the time of her death" also necessarily imply a continuance of tribal relation and of identification with the Indian community after the marriage, and cannot apply where the woman by her marriage in effect withdrew from the tribe, no longer identified herself with the tribal community and interests  *     *     *.

    The act is remedial, intended to save rights, and is supplementary to the act of 1888, and should be construed to operate in favor of offspring of all marriages wherein the rights of the mother are saved by that act, if the family has continued to be identified with the Indian community."

    The opinion of the Assistant Attorney General of March 14, 1905, supra, in construing the act of June 7, 1897, evidently went too far in holding "and the issue of such marriage are recognized by tribal usage as its members", as said act clearly does not impose any such condition upon the persons coming within its provisions. In this respect the opinion is really broader than the instructions in the matter of the New York Indians which it adopts. Under the terms of the act to entitle children born of a marriage between a white man and an Indian woman to rights and privileges in the mother's tribe it must appear that she is recognized by the tribe as belonging thereto, but no such requirement is laid upon the children themselves. The scope of the act is properly set out in the case of William Banks, supra. This view, however, is not helpful to the present applicants as their mother was not only born apart from the tribe but did not live therewith nor has she been recognized by the tribe as one of its members.

    While the Department may as a general thing direct, as was done in the case of Sarah Wilbur, enrollments over tribal protests where it deems such course proper in the interest of justice, yet when it comes to determining rights under the act of June 7, 1897, wherein the conditions under which children born of a marriage between a white man and an Indian woman are permitted to share in tribal property are expressly prescribed, not only is the Department bound by the rule thus established but the tribe itself is powerless to object. Under that rule to entitle the children of Sarah Wilbur to rights and privileges in the Menominee Tribe, it must be clearly shown that the mother was recognized by the tribe as belonging thereto. Not only that, but the mother Sarah Wilbur was living at the time the act of June 7, 1897 was passed and was not then recognized by the tribe as contemplated by said act. It was held in the case of Oakes v. United States (172 Fed. 305), which affirmed the case of William Banks, supra:

    "Act of June 7, 1897, c. 3 30 Stat. 62, relating to the rights of children of a white man and an Indian woman in tribal property, does not embrace the children of a mother who was liv-



 

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OPINIONS OF THE SOLICITOR

JUNE 17, 1924

ing at the time of its passage and was not then recognized by the tribe as one of its members."

    Furthermore, the facts of this case are similar to those in the case of Oakes v. United States, supra. Sarah Wilbur occupies a similar position to that of Mrs. Jones in that case, and her children are in the same position as Mrs. Andrews and Mrs. Bent, the children of Mrs. Jones. The act of June 7, 1897, was invoked in support of the claim of Mrs. Andrews and Mrs. Bent. The court held, however:
    "But of this act it is enough to say that its terms are such that it does not embrace the children of a mother, such as Mrs. Jones, who was living at the time of its passage and was not then recognized by the tribe as one of its members."
    The facts in the case of Vezina v. United States. (245 Fed. 411), are also similar to those in the case of Sarah Wilbur, except that Mrs. Delaney the mother of Mrs. Vezina, was not living at the time the court rendered decision. Reference was made in that case to the act of June 7, 1897, as to which the court said:
    "*     *     * Under this statute Mrs. Vezina is clearly entitled to be recognized and treated in all respects as if she had remained upon the reservation, It is true that, if Mrs. Delaney was now living, under out decision in Oakes v. United States, 97 C.C.A. 139, 172 Fed. 305, Mrs. Vezina would not be entitled to be enrolled under this statute. That decision would probably exclude the children of Mrs. Vezina from the right to enrollment and from allotment. As there is no case before us now, except the case of Mrs. Vezina, we do not care to express a more definite opinion upon the question of her children".
    That the persons coming within the provisions of said act of June 7, 1897, have no inherent right in tribal property even though possessing a quantum of Indian blood is clearly indicated by the fact that legislation was deemed necessary to confer rights upon such persons. No claim is made that the applicants herein were ever identified with or recognized by the tribe but their claim is apparently based on the fact of their Indian blood, and perchance the enrollment of their mother. This is not sufficient either under the law of the decisions. There is no question that a patent may be entitled to enrollment while the child is not.

    No valid reason is seen for disturbing the action heretofore taken by the Department in denying the applications of the persons named in the request for reconsideration.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: June 16, 1924.
F. M. GOODWIN, Assistant Secretary.

CHIPPEWA--ENROLLMENT

M-11380                                                                                                                            June 17, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Reconsideration is asked of Solicitor's opinion of February 29, 1924, involving the application of Mrs. Emma Freqeau Coburn for enrollment with the Fond du Lac Band of Chippewa Indians in Minnesota.

    This case was given very careful consideration in the former opinion, all treaties, acts of Congress, and authorities deemed pertinent being referred to and fully discussed. The matters now presented at great length on behalf of Mrs. Coburn are with few exceptions along the same lines as those heretofore advanced. However, there are a few points raised by the request which it is deemed advisable to consider.

    There is no material controversy as to the facts of this case. It is now contended that the Indians were deceived by some of the provisions in their treaties, particularly in article 2 of the treaty of October 4, 1842 (17 Stat. 591), wherein they stipulated for the right of hunting on their ceded territory, with the usual privileges of occupancy, "until required to remove by the President of the United States." It is claimed that this language was inserted without the knowledge and consent of the Indians, parties to the treaty; that their understanding was that no actual removal was contemplated; and that notwithstanding the fact that Mrs. Coburn never removed to the reservation set apart for the Fond du Lac Band and has always lived in Wisconsin, her right in the common property of the tribe was not affected thereby and that she is entitled equally with those who actually removed to the reservation and whose names are on the rolls of the said band. It is sufficient to say of this contention that in addition to the provision of the treaty of 1842 substantially the same provision was made in the treaties of July 29, 1837 (7 Stat. 537) and September 30, 1854 (10 Stat. 1109). If it be a
 


 

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fact that the Indians were deceived as alleged, that is not a matter that can now be cured administratively however strong the evidence may be, as Congress alone could afford relief in a situation of that kind. In the solicitor's opinion the treaties were construed in accordance with their plain unambiguous terms which it was held inevitably supported the conclusion that the ultimate removal of the Indians from their ceded territory to the diminished reservation set apart for them in Minnesota was the purpose in contemplation.

    The application of Mrs. Coburn for enrollment is made under the act of January 14, 1889 (25 Stat. 642), entitled "An Act for the relief and civilization of the Chippewa Indians in Minnesota:" therefore whatever rights she may have are necessarily controlled by its provisions, whatever may have been her status prior thereto. She was born in Wisconsin where she lived practically all her life. She never removed to the Fond du Lac Reservation set apart by that act nor did the members of her family. It was held by the Assistant Attorney General for this Department in 1895 that Congress legislated in the act of 1889 only for Chippewa Indians actually resident in the State of Minnesota, and that none other should be enrolled.

    It is conceded in the request for reconsideration that authority rests in the Indians themselves to decide who are members of the tribe and that this custom prevailed at the time a census of the Indians was being made under the act of 1889 which authorized a commission for that purpose. That the Indian tribes have the right to regulate their internal affairs, including determination of who are the tribal members, subject only to the power of Congress to annul their customs, usages and determinations is fully recognized. The fact is that the mother of Mrs. Coburn applied for enrollment under the act of 1889 but she was not enrolled and the commission at that time was largely relying on the sentiment of the Indians gathered at formal hearings as to whom they regarded as being entitled to enrollment. The commission encountered much opposition to the enrollment of Indians outside the State of Minnesota especially in respect to those claiming rights with the Fond du Lac Band in and around the vicinity of Superior, Wisconsin where Mrs. Coburn was born and continued to live and where she was married to a white man. The name of Mrs. Coburn's mother nor that of her grandmother was never placed on the roll made up under the act of 1889 although the Commission was given large discretionary authority in the matter of determining who of such Indians were entitled to enrollment.

    Reference is made in the request for consideration to the Solicitor's opinion of February 17, 1919, which had under consideration the effect of the act of January 14, 1889, supra, but it is contended that under that opinion the only requisite on the part of persons there involved is possession of the blood of the tribe; that the opinion does not carry a necessary implication that the ancestor must have been enrolled by the Chippewa Commission. The specific question then presented for opinion was "as to the rights of certain children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interest accruing upon the fund arising under the act of January 14, 1889 (25 Stat. 742). During the course of said opinion it was stated among other things:

    "Said act must be construed on the same principle as a deed of trust, which in legal effect it is, so far as concerns the questions herein discussed. *     *     *

    But so the trust is settled. And nowhere in its terms of settlement is either residence with or continued or 'recognized' membership of the tribe, or birth on the reservation, or United States citizenship, or any other qualification mentioned, save only being a 'Chippewa Indian' i.e., possession, in whole or in part, of the blood of one of the originally enrolled members of that tribe.

                            *                            *                            *                            *                            *
The issue, then, includes all the lineal, descendants of the ancestor. But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust."
    The trust above-referred to clearly is that created by the act of January 14, 1889 which also provided for appointment of a commission to make up an accurate roll of the Indians. The language in the above opinion of February 17, 1919-"originally enrolled"-has been interpreted as referring to the enrollment made by the Chippewa Commission under the provisions of said act of January 14, 1889. That this interpretation is correct is evidenced by a statement of facts set forth in said opinion as follows:
    "In the particular case giving rise to a call for this opinion, Sarah Kadrie, nee Cogger, was a full-blood Chippewa Indian woman born on the reservation in the year 1892-subsequent to the cession and the original enrollment. She was an only child of her mother, a member of the original enrollment."
    The roll of the Chippewa Commission author-
 


 

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ized by the act of 1889 was made during that year.

    It appears that Mrs. Coburn applied for and was allotted a tract of land in Wisconsin under the fourth section of the general allotment act of February 8, 1887 (24 Stat. 388), on which trust patent issued in 1895. This patent was subsequently canceled, not upon the ground that she was not entitled to an allotment on the public domain under the fourth section, but for the reason that the lands were chiefly valuable for timber and therefore under the regulations then in force were not subject to allotment under that section. The significance of this transaction is that it indicates an abandonment of tribal relations by Mrs. Coburn and consequent renunciation of claim to tribal property especially as to land as an Indian is not entitled to an allotment of land both on the reservation and the public domain. Although the act under which Mrs. Coburn claims was passed in 1889 she herself did not apply for enrollment with the Fond du Lac Band until in 1920.

    The main contention in this matter has been that as Mrs. Coburn's ancestors were at one time members of the Fond du Lac Band and received benefits under treaties entered into prior to the act of 1889 she is entitled to rights under that act regardless of the fact that neither she nor her family moved to or lived at any time within the reservation set apart for the band. This practically assumes that tribal rights once existing are so inherent that they cannot be lost or forfeited. It is well settled that a claim to share in tribal property based solely on a quantum of Indian blood is not sufficient either under the law or the decisions. There are many persons of Indian descent who have wholly lost or abandoned their tribal relations and are no longer recognized by the Indian Tribe as members of it. The mere fact that an Indian is descendant of one whose name may at one time have been borne upon the rolls does not of itself make such Indian a member of the tribe. In view of the act of 1889 it is not sufficient to merely prove the existence of Indian blood or that the ancestor was at one time a recognized member of the tribe. The parent may be a recognized member of the tribe. The parent may be entitled to enrollment while the child is not. This is illustrated in the act of June 7, 1897 (30 Stat. 62, 90), providing for enrollment under certain conditions of children born of a marriage between a white man and an Indian woman as was the case of Mrs. Coburn. This legislation was necessary to confer rights upon such children but in order to entitle them to share in tribal property evidence is expressly required by the terms of said act showing that the mother was a recognized member of the tribe.

    The position was taken in the former opinion that whatever rights Mrs. Coburn may have had either in herself or through her ancestors was lost by ceasing to be a member of the Fond du Lac Band as the act of January 14, 1889 clearly anticipated removal of the Indians of that band from Wisconsin to the reservation set apart for them in Minnesota. Taking the act of 1889 as a whole Congress was clearly legislating therein for the benefit of reservation Indians, not persons located in Wisconsin who might claim possession of some Fond du Lac blood. This was undoubtedly the view taken by the tribe itself and the commission appointed under said act at the time the census of that year was being taken.

    No good reason is seen for disturbing the conclusion reached in my former opinion.

                                                                                                                                          JOHN H. EDWARDS,

Solicitor.
Approved: June 17, 1924.
F. M. GOODWIN, Assistant Secretary.

RESTRICTED FEE AND
TRUST PATENTS

M-l 2509                                                                                                                    August 27, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in the matter of the relinquishment by certain allottees, or their heirs, on the Winnebago Indian Reservation, Nebraska, of their restricted fee patents with the view of having trust patents issued to them under the general
allotment act of February 8, 1887 (24 Stat. 388).

    These allotments were made under the act of February 21, 1863 (12 Stat. 658), and fee patents with restrictions against alienation were issued to the allottees in accordance with the terms of said act. It is claimed that it would result in great benefit to the Indians if the change indicated could be made, as experience has shown that it is virtually impossible to effect sales of the lands owing to the large number of heirs, in cases of deceased allottees, and the consequent difficulty of delivering good title.

    The question presented is as to whether or not under the exchange provisions of the act of October 19, 1888 (25 Stat. 611, 612) or any other existing authority the allottees or the heirs to these estates may be permitted to surrender the restricted
 


 

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fee patents issued to said allottees under the act of 1863 and have reissued instead trust patents of the form prescribed in section 5 of the general allotment act of 1887. As the matter now stands, sales of the lands embraced in these allotments would have to be made by deed of the allottees or their heirs, involving difficult and expensive proceedings, whereas, if the lands were covered by trust patents, sales could be made under supervision of the Department, fee patents issued direct to purchasers and the proceeds distributed to those found entitled.

    The act of October 19, 1888, supra in section 2 thereof provides:

    The Secretary of the Interior is hereby authorized in his discretion, and whenever for good and sufficient reason he shall consider it to be for the best interest of the Indians, in making allotments under the statute aforesaid, permit any Indian to whom a patent has been issued for land on the reservation to which such Indian belongs, under treaty or existing law, to surrender such patent with formal relinquishment by such Indian to the United States of all his or her right, title, and interest in the land conveyed thereby, properly endorsed thereon, and to cancel such surrendered patent: Provided, that the Indian so surrendering the same shall make a selection, in lieu thereof, of other land and receive patent there for, under the provisions of the act of February eighth, eighteen hundred and eighty-seven.
    By the first section of said act the Secretary of the Interior is authorized to accept the surrender of and to cancel patents issued to certain named members of the Sioux Tribe of Indians under the treaty of February 19, 1867 (15 Stat. 505) --
    The same having been surrendered to the United States by the Indians named, who have respectively endorsed thereon their relinquishment of all their right, title and interest in and to said lands, for the purpose of receiving allotments on said Sisseton and Wahpeton Reservation, Dakota, under the act of February eighth, eighteen hundred and eighty-seven, and to allot and patent to said Indians, under the act of February eighth, eighteen hundred and eighty-seven, such lands as they would be thereby entitled to had no previous patents to them severally been made.
    The instrument provided for and the one that was issued under the treaty of 1867 was a fee patent with restrictions against alienation. Therefore, it is a fair deduction that authority is contained in section 2 of the act of October 19, 1888, for the Secretary of the Interior to accept generally the surrender of and to cancel fee simple patents with restrictions against alienations for the purpose of exchange under said section. The act also has been administered as authorizing exchange in cases where trust patent was originally issued and as extending to cases arising since passage of the act as well as prior thereto. (Alexis F. Bailly. 12 L.D., 184) The heirs of deceased allottees are also en titled to the benefits of the act. (Pretty Crazy Eyes
15 L.D., 76).

    It will be observed that the act of 1888 provides that the Indian surrendering his patent shall make a lieu selection of other lands on which trust patent is to be issued under act of February 8, 1887. The usual reason for making these exchanges is that the Indian is desirous of securing other land because that originally selected and covered by the patent he surrenders is unfit for farming purposes or does not cover the land selected and improved by him. The purpose of the act undoubtedly was to afford the Indian the greatest advantages possible in this respect. But these conditions are not present in the instant case. Here it is proposed to surrender one kind of patent for the purpose of taking another kind, both covering the same tract of land-in other
words, an exchange of patents and not of lands.

    The act of March 3, 1909 (35 Stat. 781), also provides for the surrender and cancellation of patents in order to take other lands, but it is not applicable here because it is not proposed to select other land and, besides, said act is limited to the lieu selection of ceded lands.

    The act of April 23, 1904 (33 Stat. 297) amendatory of the act of January 26, 1895 (28 Stat. 641) limits the authority of the Secretary of the Interior to cancel patents to certain specified classes. It nevertheless recognizes or continues his authority in that regard to cases where patents are relinquished by patentees or their heirs to take other allotments. Both of these acts, however, contemplate the cancellation of conditional or trust patents and for other obvious reasons they do not cover such a situation as the present one.

    The act of October 19, 1888, is more nearly applicable to the case of these Winnebago allotments and patents than any other existing legislation. But, as hereinbefore stated, the conditions are not such as to bring the situation within the plain and obvious provisions of said act. In my opinion the Department would not be justified in permitting the allottees in question, of their heirs, to surrender the restricted fee patents heretofore issued for the
 


 

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OPINIONS OF THE SOLICITOR

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sole purpose of obtaining trust patents in lieu thereof covering the same land. However, the situation is apparently one to fully justify an appeal to Congress for relief legislation in the premises.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: August 27, 1924.
F. M. GOODWIN , Assistant Secretary.

QUAPAW--FEDERAL INCOME TAX

M-12746                                                                                                           October 8, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in the matter of income taxes against allottees of the Quapaw Indian Tribe. Oklahoma, the particular point at issue being whether the income derived by these Indians from their "restricted lands" is subject to our Federal income tax laws.

    The act of March 2, 1895 (28 Stat. 876-907), contains an item which reads:

    "That the allotments of land made to the Quapaw Indians, in the Indian Territory, in pursuance of an act of the Quapaw National Council, approved March twenty-third, eighteen hundred and ninety-three, be and the same are hereby ratified and confirmed, subject to revision, correction and approval by the Secretary of the Interior: Provided however, That any allottee who may be dissatisfied with his allotment shall have all the rights to contest the same provided for in said Act of the Quapaw National Council subject to revision, correction, and approval by the Secretary of the Interior. And the Secretary of the Interior is hereby authorized to issue patents to said allottees in accordance therewith: Provided, That said allotments shall be inalienable for a period of twenty-five years from and after the date of said patents."
    Under the foregoing, patents in fee with restrictions against alienation for the period stated, were issued to allottees of the Quapaw Tribe mainly under dates of September 26, and October 19, 1896. The 25-year restriction period therefore, expired in 1921, except as to the lands allotted to or inherited by some 63 members of this tribe, the restrictions on which were continued for an additional 25 years by section 26 of the act of March 3, 1921 (41 Stat. 1248), as amended by the act of November 18, 1921 (42 Stat. 1570). None of these acts. nor the earlier treaties or statutes dealing with the Quapaw Indians contains any specific congressional direction with reference to the taxation of their lands either by the State or the Federal Government. We must turn therefore to other considerations.

    We are dealing here of course only with the restricted Indians, or rather those lands in the hands of the original allottees or their heirs from which the restrictions against alienation have not been removed. To be effective restrictions of this character necessarily must include involuntary as well as voluntary alienation; otherwise the Indians would soon lose title to their holdings by forced sale under foreclosure proceedings. Being an instrumentality employed by the Federal Government for the protection of its Indian wards, this nonalienability clause cannot be reduced to a nullity by any State attempting to levy taxes thereon or the income therefrom; Gillespie v. Oklahoma (257 U.S., 501). We are not here greatly concerned with taxation by the State other than to show that in the absence of legislation by Congress nonalienability and exemption from taxation go practically hand in hand. In passing, it may be observed, however, that while the act under which the Quapaw Indians were allotted is silent on the question of taxation, yet when the matter was pending before Congress it was clearly the primary intent or understanding of that body that these lands were to be both inalienable and nontaxable for a period of 25 years; See House Report No. 2256, 52nd. Congress, Second Session.

    The internal revenue acts of September 8, 1916 (39 Stat. 756) October 3, 1917 (40 Stat. 300) February 24, 1919 (Id. 1057), November 23, 1921 (42 Stat. 227), and June 2, 1924 (43 Stat. 253), are lengthy and comprehensive measures. So also they are in broad compass and, in so far as our present purposes are concerned, briefly, they impose a tax on the net income (above stated exemptions) on every person a resident in this country. Citizenship, race, color or nationality are not determining factors. Nowhere in these acts are the Indians or their property mentioned. It follows therefore that an individual is not exempt simply because he is an Indian or may happen to have Indian blood in his veins. All property, or the income derived from all sources however is not taxable, even in the hands of white or other persons not of Indian blood. We frequently find comparatively large incomes partly if not wholly exempt from taxation due to the
 


 

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source from which derived. This arises however largely by virtue of specific exemptions in our internal revenue laws or rests on some vested right protected by our Constitution.

    When we come to consider the income flowing to the Indians from their restricted property, where no definite exemption from taxation has been set up, we confront a somewhat peculiar situation. From an early date in the history of this country, the Indians always have been recognized as wards of the nation, entitled to its protection and its support. According to a familiar rule, legislation affecting the Indians is to be construed in their favor and a purpose to make a radical departure is not lightly to be inferred: United States v. Nice (241 U.S. 591). It has even been held that the general acts of Congress do not include the Indians in the absence of some clear intent to that effect: Elk v. Wilkinson (112 U.S. 100), United States v. Quiver (241 U.S. 602-6).

    "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. Trapp 224 U.S. 665-675).
    With these observations at hand I am unable, by implication, to impute to Congress an intent under the broad language used in our internal revenue acts to impose a tax (for the benefit of the Federal Government) on the income derived from restricted property of these wards of the nation, property the management and control of which rests not in the Indians themselves but largely in the hands of officers of the Government charged by law with the responsibility and duty of protecting the interest and welfare of these dependent people. In other words, is the property of the ward to be taxed for the benefit of the guardian? In the absence of some clear congressional authority to that effect, which is not at hand, I am of the opinion that the income flowing to the Indians from their restricted property is not subject to an income tax under existing law.

                                                                                                                                                    JOHN H. EDWARDS,

Solicitor.
Approved: October 8, 1924.
F. M. GOODWIN, Assistant Secretary.

FLATHEAD--HIGHWAY RIGHT-OF-WAY

M-13344                                                                                                                       October 9, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in connection with permission granted by the Department on May 2, 1918, to the Board of County Commissioners, Flathead County, Montana, to open a public highway across certain lands of the Flathead Indian Reservation in that State, including land allotted in severalty to one Julia Courville.

    The application for the above right of way was filed under section 4 of the act of March 3, 1901 (31 Stat., 1058, 1084), which provides:

    "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."
    This is general legislation and contemplates the submission of applications thereunder to the Secretary of the Interior for approval or disapproval. However, the application on which the right of way in question was granted was considered as having been made under the act of March 4, 1915 (38 Stat., 1188), which was passed in the meantime and authorizes the opening of public roads on certain Indian reservations in Nebraska and on all Indian reservations in Montana. Section 2 of that act provides:
    "That the legal authorities charged with the duty of laying out and opening public roads and highways under the laws of the State of Montana, having jurisdiction over any territory embraced within any Indian reservation in Montana, are hereby authorized and empowered to lay out and open public roads within any of the said Indian reservations in conformity to and in accordance with the laws of the State of Montana relating to the laying out and opening of public roads, and that any public road when so laid out and opened shall



 

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be deemed a legal road: Provided, That such road authorities shall, in addition to notifying the landowners as provided in the State laws, likewise serve notice upon the superintendent in charge of the restricted Indian lands upon which it is proposed to lay out a public road, and shall also furnish him with a map drawn on tracing linen showing the definite location and width of such proposed road, and no such road shall be laid out until after it has received the approval of such superintendent."

    At the time the present application was filed, Julia Courville, a Flathead Indian, was a minor, and consent for the highway through her allotment was given by her father, Alphonso Courville, on payment of damages as follows:
    "Eighty rods of seven chicken-tight wire 4 feet high, 19 strand, and payment of the land the road may take at the rate of $100 per acre, as the road goes through the best land."
    In submitting report, the then superintendent stated that the road would be a benefit to the allottee and that the damages demanded were unreasonable as the road would pass through poor agricultural lands. He further stated that the county commissioners had agreed to fence the road through the allotment with four galvanized barbed wires, posts a rod apart, which he considered adequate compensation for the damages caused, and he accordingly recommended that the application for right of way be granted. The Department accepted the report and recommendation of the superintendent, and he was instructed to approve the map of location of the road, which was done May 20, 1918.

    The present superintendent reported on July 12, 1924, that the commissioners of Flathead County had failed to construct the road in question, but that the public had been allowed to use the right of way to reach certain villa sites in the vicinity: that the allotment of Julia Courville is now located within the county of Lake, Montana; that the commissioners for that county have recently announced their intention of constructing the road under the right of way granted to the commissioners of Flathead County; and that the husband of Julia Courville objects thereto unless the officials furnish a woven-wire fence on both sides of the road, construct a cattle chute, and pay the sum of $300 for the land taken.

    It further appears that the superintendent discussed this matter with the Lake County commissioners and informed them of the prior approval of right of way; he also informally advised the husband of Julia Courville of such approval; he later conferred with the attorney for the Flathead tribe who contended that the approval of right of way by the Department on May 2, 1918, is invalid for the reason that there was no agreement on the part of the allottee to accept any less damages than stipulated by her. The particular question submitted for opinion is as to whether this point is well taken.

    It will be noted that section 2 of the act of March 4, 1915, applies only to Indian reservations in the State of Montana and directly authorizes and empowers the proper State officials to lay out and open public roads within said reservation "in conformity to and in accordance with the laws of the State of Montana relating to the laying out and opening of public roads, and that any public road when so laid out and opened shall be deemed a legal road," subject only to approval by the superintendent of the map of definite location to be furnished him by said officials. In the earlier instructions issued by the Indian Office under said act, superintendents were directed not to accept any map unless at least one part thereof was drawn on tracing linen and accompanied by field notes, as theretofore required under the act of March 3, 1901, supra; and they were further directed not to approve any map showing highways that did not directly follow section lines until the same had been submitted to that office. It was the belief at the time that it would not be for the best interests of the Indians to leave the approval of highways, other than along section lines entirely to the discretion of superintendents. However, these instructions were subsequently rescinded primarily for the reason that it was considered questionable whether the act of March 4, 1915, contains any authority for limiting the discretion of superintendents in the manner stated; and they were accordingly notified that it would thereafter be discretionary with them to approve all maps filed under said act "whether the highways have been laid out along section lines or along a meandering or irregular course, and that it will not be necessary for them to report their action in any case except upon special request."

    Inquiries were subsequently addressed to the Indian office by superintendents on the question of their authority in the matter of adjudicating damages, and they were advised that no instructions additional to those already issued were necessary. They were admonished, however:

    "The office expects that you will so administer the act cited that the interests of the Indians will be adequately safeguarded, and at the same time see that there may be no just



 

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DEPARTMENT OF THE INTERIOR

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cause for complaint among any of the parties in interest;"

and that:
    "Should any protest be made because of the fact that the owners of the land are not consulted or given opportunity to express their views, it might be well to give the matter further consideration."
    A similar principle was involved in an opinion rendered by the Assistant Attorney General for this Department on May 26, 1905, relating to the act of March 3, 1901, supra, wherein it was said, among other things:
    "Section 4 authorizes the Secretary of the Interior to do in behalf of the Indian allottees what the Indian might do for himself had he full title to his land. In effect, the Secretary acts under that section as agent of the Indian holder of the equitable and of the United States holder of the legal title *     *     * it may not be improper to suggest that merely technical objections should not be interposed to prevent the establishment of public highways. If the need of such highway is demonstrated and the Indian is compensated for any damage he may suffer by reason of its establishment, the Department should give its approval."
    There is no express reference to damages in the act of March 4, 1915, as there was none in the act of March 3, 1901. But as in both acts highways are authorized to be laid out and opened through Indian lands in accordance with the laws of the State or Territory where situated, the subject of damages is necessarily involved in the procedure under said acts for acquiring lands for highway purposes. The laws of Montana prescribe the method of determining damages and making awards. Presumably this method is to be followed in opening highways across Indian reservations and allotments, under the provisions of the act of March 4, 1915; consequently, an Indian allottee is entitled to like consideration as any other owner in the matter of consent and damages. The fact is, the only matter in which the Indian is directly interested or concerned in the subject of damages, as authority is conferred by law to appropriate for road purposes lands embraced in Indian allotments, the only question in that respect being as to whether the lands shall be acquired under voluntary consent or agreement with the owner, or by condemnation. For similar reasons, the right of way heretofore granted in this matter is not necessarily invalidated by the question of damages. That is a matter that can be adjusted or corrected without affecting the grant itself.

    It is fundamental that where authority is conferred by Congress upon bureau and subordinate officials, supervising power and jurisdiction rest and continue in the Secretary of the Interior to review the acts of such officials in proper cases. This must be so, as, otherwise, there would be no forum for the correction of errors, neglect of duty, or exercise of excessive authority on the part of such officials, although the law may contain no express provision to that effect. By section 441 of the Revised Statutes, the Secretary of the Interior is particularly charged with the supervision of affairs relating to the Indians, and, in view of his quasi guardianship, it is his duty to see that their property rights are safeguarded so long as the legal title thereto remains in the Government. What is said in that regard in the cases of Knight v. United States Land Association (142 U.S., 161, 177) and Catholic Bishop of Nesqually v. Gibbon (158, 167) is equally applicable to the statutes pertaining. to Indian affairs.

    The only question remaining is one relating to the measure of damages, if any, due the protesting Indian owner in this case. The evidence offered so far on that point is not entirely satisfactory. In view of what is above set forth, the Department may very properly direct another inquiry into that question. The Indian Office should, in my opinion, be directed to have further investigation made by the present superintendent as to the adequacy of the damages heretofore approved by the Department, who should also furnish a detailed report with recommendation as to the result of such investigation, showing, among other things, what attempt, if any, was made by the former superintendent and county commissioners to reach an amicable and satisfactory agreement with the Indian owner as is clearly contemplated by the laws of Montana, which are incorporated by reference in the act of March 4, 1915, supra.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved:
F. M. GOODWIN, Assistant Secretary.

CHIPPEWA-BACK ANNUITIES

M-12874                                                                                                                       October 27, 1924.

The Honorable,
The Secretary of the Interior.
 


 

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OPINIONS OF THE SOLICITOR

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DEAR MR. SECRETARY:

    My opinion is requested in re application of A. J. Buchard for back annuities as a Fond du Lac Chippewa Indian of Minnesota, under the act of April 4, 1924 (Public-, No. 82) entitled "An Act To Provide For The Payment Of Claims of Chippewa Indians of Minnesota for back annuities" and which reads:

    "That the Secretary of the Interior be, and he is hereby, authorized to pay, out of any moneys belonging to the Chippewa Indians of Minnesota, such amounts as he may find due any persons of Chippewa blood whose names may have been erroneously omitted or stricken from the Chippewa annuity rolls, or who have been or may hereafter be found entitled to enrollment for annuity payments authorized by section 7 of the Act of Congress approved January 14, 1889 (Twenty-fifth Statutes at Large page 642) ."
    The history of the act shows that it was primarily intended for the benefit of persons enrolled during recent years with the Chippewa Indians of Minnesota who may be found entitled to shares in annuity payments made prior to their enrollment. The legislation was in view of doubt as to authority under existing law to pay back annuity claims from the tribal trust fund created under said section 7 of the act of January 14, 1889, there being no other available funds belonging to the Indians from which such claims could be paid.

    The instant case was originally submitted to the Department under date of June 16, 1924, and informally returned to the Indian Office for further information deemed essential to proper determination of the applicant's rights in the premises. That office has resubmitted the papers together with additional information and a further statement bearing on the situation.

    The applicant, A. J. Buchard, also known as Albert Buchard, was born at Yellow River, now Danbury, Wisconsin, May 26, 1883. His mother was a half-blood Indian and his father, a white man. Apparently he always lived in the State of Wisconsin and at no time lived in Minnesota or affiliated with the Chippewa Indians of that State. The mother's Indian name was Ne-ga-waw-sje-kwe, and she was also variously known as Jane Baker, Jane Butcher, Jane Buchard, Jane Baker-Beaupre, Jane Butcher Beaupre, Jane Lord and Jane Lord-Beaupre. The records show that in 1889 she was allotted a tract of land on the Lac Courts Oreille Reservation, Wisconsin, under the name of Jane Butcher, for which patent issued May 7, 1890. A certificate of competency was issued to her November 7, 1916. She apparently has resided the greater part of her life at Solon Springs, Wisconsin. Her mother was an allottee on the Lac Courts Oreille Reservation in Wisconsin.

    It further appears that A. J. Buchard applied for benefits with the Saint Croix Chippewa Indians of Wisconsin, stating specifically in connection with his application that he "belongs" in Wisconsin, and that his mother was allotted land on the Lac Courts Oreille Reservation in that State. His application was denied on the ground that he was not shown to be a properly enrolled and recognized member "of a band of Chippewa Indians."

    It also appears that in 1891 the mother of applicant was enrolled with the Fond du Lac band of Chippewa Indians in Minnesota. She was enrolled with her husband Felix Lord, a half-blood Chippewa under the name of Jane Lord. The superintendent reports that he is unable to find any authority for placing the name of this woman on the rolls of the Fond du Lac band of Indians in Minnesota. She apparently received some annuity payments as a member of that band under Section 7 of the act of January 14, 1889, but it does not appear that she was ever given an allotment on that reservation. The son, A. J. Buchard, was enrolled with the Fond du Lac band of Chippewa Indians of Minnesota in 1923, by reason of the fact that his mother was a member of that band, in view of which, under the Solicitor's opinion of February 17, 1919, he occupied the status of a lineal descendant of an ancestor enrolled as a member of the Fond du Lac band.

    It is clear that the mother of this applicant was not entitled to enrollment with the Fond du Lac band of Chippewa Indians in Minnesota, she having been enrolled and having received benefits as a recognized member of the Lac Courts Oreille band of Indians in Wisconsin. For a like reason it was error to have enrolled the son, A. J. Buchard, with the Fond du Lac band in Minnesota, any rights he may have being with the band or tribe in Wisconsin, to which the mother belonged. The act of April 14, 1924, supra,was passed for the benefit of Chippewa Indians of Minnesota. Both the applicant and his mother have always lived in Wisconsin, and the fact that the mother was enrolled and allotted with the Lac Courts Oreille band of Chippewas in Wisconsin shows that they were identified with that band. The names of both these persons should be stricken from the rolls of the Fond du Lac band in Minnesota

    As shown, the applicant herein is the offspring of a marriage between an Indian woman and a white man, and therefore, is within the act of Jan-
 


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 27, 1924

uary 7, 1897 (30 Stat. 62, 90), which provides that such a child shall have the same rights to the property of the mother's tribe as any other member. This act has been construed as entitling such child to tribal benefits though not born or remaining on the reservation or affiliated with the mother's tribe, provided she herself has been recognized by the tribe as a member. So that, while under the circumstances the applicant, A. J. Buchard, is not within the provisions of the act of April 14, 1924, as a Fond du Lac Chippewa Indian in the matter of back annuities, yet it may be that he is entitled to benefits with the Lac Courts Oreille band of Chippewas of Wisconsin, to which his mother belongs.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: October 27, 1924.
F. M. GOODWIN, Assistant Secretary.

CHIPPEWA-BACK ANNUITY PAYMENTS

M-13270                                                                                                                November 6, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested relative to the application of Ralph L. Connors for back annuity payments as a member of the Fond du Lac Band of Chippewa Indians of Minnesota. The application is made under the act of April 14, 1924 (43 Stat., 95), entitled, "An act to provide for the payment of claims of Chippewa Indians of Minnesota for back annuities" which reads as follows:

    "That the Secretary of the Interior be, and he is hereby, authorized to pay, out of any moneys belonging to the Chippewa Indians of Minnesota, such amounts as he may find due any persons of Chippewa blood whose names may have been erroneously omitted or stricken from the Chippewa annuity rolls, or who have been or may hereafter be found entitled to enrollment for annuity payments authorized by section 7 of the Act of Congress approved January 14, 1889 (Twenty-fifth Statutes at Large, page 642)."
    It appears that the applicant, Ralph L. Connors, was born at Orange, Burnett County, Wisconsin, May 20, 1901. His father was Bernard A. Connors, a half-blood Fond du Lac, and his mother a white woman. The grandmother of Ralph L. Connors, the mother of Bernard A. Connors, was Odah-gay-me-quay, a full blood whose husband was Benjamin Connors, a white man. Bernard A. Connors, the father of Ralph L. Connors, died July 10, 1914. He was not enrolled at the time of his death nor had he ever been enrolled with the Fond du Lac Chippewas. The grandmother, Odah-gay-me-quay, who died in 1892, was never enrolled with that band. She was a half sister of E-quay-zaince, who was allotted with the Fond du Lacs, and Ralph L. Connors inherited an interest in her allotment. The applicant has always resided in Wisconsin and has never been identified or affiliated with the Fond du Lac Band of Chippewa Indians of Minnesota on their reservation. The same is apparently true of other members of the family although it appears that brothers and sisters of Bernard A. Connors are enrolled with the Fond du Lac Band of Minnesota Chippewas.

    The Department on May 23, 1922, approved recommendation of the Indian Office that Ralph L. Connors be enrolled with the Fond du Lac Band of Minnesota Chippewas for annuities under the act of January 14, 1889 (25 Stat., 642). This recommendation was on the ground that as his grandmother, Odah-gay-me-quay, was a full blood she was no doubt entitled to enrollment, especially in view of opinion rendered by the Solicitor for this Department on February 17, 1919 (Sarah Kadrie, not reported), although she was never actually enrolled. That opinion had under consideration questions as to rights of certain children born to persons "whose names appear on the tribal rolls of the Chippewa Indians of Minnesota" to share in the interest accruing upon a fund arising under said act of January 14, 1889, as well as to share in the final distribution of such fund.

    In considering the instant case it will be helpful as well as necessary to refer to the following acts, viz: Act of January 14, 1889 (25 Stat., 642), providing for the cession and allotment of the separate reservations set up for the different bands or tribes of Chippewa Indians in the State of Minnesota; act of June 7, 1897 (30 Stat., 62, 90), as the applicant herein is the offspring of a marriage between an Indian man and a white woman, and the above-quoted act of April 14, 1924.

    The Chippewa Indians originally occupied an extensive territory including lands now within the States of Wisconsin and Minnesota. In accordance with treaties they ceded to the United States a large part of their territory, specific or diminished reservations being set apart for the respective bands. Among others, a reservation was set apart in Minnesota for the Fond du Lac Band to which, it was provided, the Indians should remove, including the
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 6, 1924

members of that band in Wisconsin. Broadly speaking, the act of January 14, 1889, supra, provided for the appointment of a commission to obtain a cession by "all the different bands or tribes of Chippewa Indians in the State of Minnesota" of all their title and interest in and to all their reservations in said State not needed for allotments; for allotments of lands in severalty in conformity with the act of February 8, 1887 (24 Stat., 388); and for the sale of their remaining lands. In order to ascertain whether or not the proper number of Indians participated in the cession, an accurate census or enrollment of each tribe or band was to be made by the commission. The money acerning from the sale of their surplus lands was to be placed in the Treasury of the United States to the credit of "all the Chippewa Indians in the State of Minnesota" as a permanent fund to draw interest at the rate of five per centum per annum for 50 years, such interest and permanent fund to be expended for the benefit of said Indians in accordance with section 7 of the act of 1889, which is as follows:

    "That all money accruing from the disposal of said lands in conformity with the provisions of this act shall, after deducting all of the expenses of making the census, of obtaining the cession and relinquishment, of making the removal and allotments, and of completing the surveys and appraisals, in this act provided, be placed in the Treasury of the United States, to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund, which shall draw interest at the rate of five per centum per annum, payable annually for the period of fifty years, after the allotments provided for in this act have been made, and which interest and permanent fund shall be expended for the benefit of said Indians in manner following: One-half of said interest shall, during the said period of fifty years, except in the cases hereinafter otherwise provided, be annually paid in cash in equal shares to the heads of families and guardians of orphan minors for their use; and one-fourth of said interest shall, during the same period and with the like exception, be annually paid in cash in equal shares per capita to all other classes of said Indians; and the remaining one fourth of said interest shall during the said period of fifty years, under the direction of the Secretary of the Interior, be devoted exclusively to the establishment and maintenance of a system of free schools among said Indians, in their midst and for their benefit; and at the expiration of the said fifty years, the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares."
    The act of June 7, 1897 (30 Stat., 62, 90), provides:
    "That all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right."
    It may be said in this connection that for the purpose of this and similar cases it can make no material difference under the above act which parent is the possessor of Indian blood.

    The provisions of the act of April 14, 1924, which authorizes the payment of back annuities out of any moneys belonging to the "Chippewa Indians of Minnesota" are clearly limited to the persons specifically described therein, namely: "Persons of Chippewa blood whose names have been erroneously omitted or stricken from the Chippewa Indian rolls, or who have been or may hereafter be found entitled to enrollment for annuity payments authorized by section 7 of the Act of Congress approved January 14, 1889 (25 Statutes at Large, page 642) " The act of 1924 was evidently not intended to disturb existing laws or the rules for determining rights to enrollment for annuity payments under the act of 1889; consequently consideration must be given to precedents and the construction heretofore placed upon said act of 1889. The report on the bill which subsequently became the act of April 14, 1924, shows that the primary purpose of its enactment was to remove any doubt as to authority under existing laws to pay claims for back annuities from the permanent Chippewa trust fund created by the act of 1889, there being no other available fund belonging to the Indians from which such claims could be paid.

    It is well settled by both court and departmental decisions that the right to participate in the distribution of tribal funds arising under section 7 of the act of January 14, 1889, rests upon a different basis than does the right to an allotment out of tribal lands. The latter right is dependent upon tribal membership once existing (Oakes et al. v. United States, 172 Fed. 305) and perchance residence on the reservation (Minnie H. Sparks, 36 L.D., 234), while the former right is not dependent

 



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