Home

paid to the life cestui, unless the settler has shown a clear intent to have such a variance from the ordinary rule. * * *"

    "* * * when a trustee sells trust property it is immaterial what its actual value is; whatever he receives for it becomes a part of the corpus of the estate."

    "The question first presented is whether the reference to 'net rents, income and profits' operates to give to the beneficiaries of income the gains, if any, realized upon the sale or liquidation of principal assets. The court holds that the phrase means nothing more than if the only word used was the word 'income'; * * * Hence the beneficiaries of income have no right in capital profits."

    "Gains in value of investments belong to capital and are to be credited to principal of trust fund rather than to income, * * *"

    This construction of the word "income" is in accord with departmental practice during the interim between the passage of the act of February 27, 1925, supra, and the act of June 24, 1938, supra. As pointed out above, the latter act incorporated the language of the former act in this respect. In my opinion the practice followed by the Department under the 1925 act was correct and is equally correct in administering the funds of these Osage Indians under the 1938 act.

   The conclusion which I have reached seems to me to be inescapable in view of the policy pursued by Congress in connection with the individual affairs of these Indians. This policy seems to me to evidence a legislative judgment that these particular members of the Osage Tribe are not ready to receive any more of the corpus of their trust estate than is specifically directed to be paid to them by the act of June 24, 1938, supra.

                                                                                                                                             NATHAN R. MARGOLD,

Approved: January 24, 1941.
OSCAR L. CHAPMAN, Assistant Secretary.

Since the St. Croix Indians of Wisconsin are not now recognized as a band, the only form of organization under section 16 of the Indian Reorganization Act now open to them is an organization of those St. Croix Indians designated by the Indian Office as having one-half or more Indian blood who are residing on the St. Croix Reservation. However, all the St. Croix designated by the Indian Office may adopt a temporary constitution establishing a band organization, independently of section 16 of the act, to obtain the status of a recognized band, with the possibility of later organizing as a band under section 16 of the act.

The proposed provisional constitution should be revised to distinguish, and to be appropriate to, the two alternatives.

Memorandum for the Commissioner of Indian Affairs:

    I am returning the letter to the Superintendent of the Great Lakes Agency which discusses the provisional constitution drafted for the St. Croix Indians under which they propose to organize as the St. Croix Band. The letter assumes that the organization is being undertaken under section 16 of the Indian Reorganization Act. However, it appears that the group organizing, is neither a recognized tribe or band nor a group of Indians resident upon a reservation. Therefore, this group is not entitled to organize under the IRA. Moreover, from the letter of November 3, 1939; from Mr. Phinney, Field Agent, submitting this constitution, and from the letter from Coordinator Burns of July 15, 1940, reporting recent action by these Indians, it appears that the organization is not in-
 

tended to be one under the IRA but is to be a temporary organization for the purpose of achieving recognition of these Indians as an organized band. The apparent intent is to seek a permanent organization under the IRA as an organized band if the temporary organization proves successful.

    This distinction between organization under the IRA and provisional organization outside the act is, of course, crucial. In view of the history of the organization problem confronting this group of Indians, my suggestion is that reconsideration be given to the purpose and type of organization. In any case, the constitution proposed needs correction as the document is not in good form for either type of organization.

    The St. Croix Indians have long been known informally as the St. Croix Band, as the Lost Band of Chippewa Indians and as Chief Little Buck's Band. The Solicitor's Office held in a memorandum of February 8, 1937, that the action by the Department and by Congress in 1914 and 1915 based on the Wooster Investigation was conclusive that this group could not then be considered a recognized band. The Wooster Investigation found that these Indians were members and descendants of members of the Lac Courte Oreille and Fond du Lac Tribes and did not have a separate tribal status. However, in recent years at least, the St. Croix Indians have been active as a band with a representative organization and have persisted in seeking legal recognition of the band. This has been important to them in order that they might employ attorneys for the prosecution of tribal claims and in order that they might manage the land and other rehabilitation assets provided by the Government. Under the designation of "Survivors and Descendants of Chief Little Buck's Band" they have now employed an attorney, adopting one of the suggestions proposed by the Indian Office in the letter of April 24, 1940.

    The land involved was purchased under the IRA for the St. Croix Indians of one-half or more Indian blood who might be designated by the Secretary of the Interior, and this land was declared a reservation on November 28, 1938. On November 10, 1938, the Commissioner of Indian Affairs had approved a roll of St. Croix Indians of one-half or more Indian blood. These Indians were grouped by him in a category designated Class A. Those in Class B were St. Croix Indians of one-half or more Indian blood who were married to white persons or Indians of other tribes and who were not approved as persons eligible for land assignments or organization. Indians in Class C were disapproved as having less than one-half Indian blood.

    On the question of organization these Indians were early informed that in order to organize under the IRA the organization must be based on the Indians residing on the St. Croix Reservation, The Indian Office letter of January 24, 1939, included suggestions for permitting other St. Croix Indians not on the reservation to join the organization by application. The letter from Mr. Phinney of November 3, 1939, reported the concern of the Indians over creating an organization based on residents of the reservation, since these residents were not representative of the St. Croix group, and the need for a temporary organization on a band basis. The Indian Office reply of April 24, 1940, approved by the Department, stated there was no objection to such a provisional constitution, agreeing that an organization of individuals on the reservation was not a satisfactory type of organization; but it suggested additional methods to secure a broader type of organization under the IRA after the organization was once established on the basis of residence. The report by Coordinator Burns of July 15, 1940, reiterated that the Indians did not seek to organize on a reservation basis under the IRA at this time but wanted a provisional band organization to secure recognition of the band.

    I see no legal objection to setting up a provisional constitution for a band organization. If this constitution is approved by the Commissioner of Indian Affairs and the group is then dealt with by the Department as a band, it may, perhaps, later merit consideration as an "organized band" under the definition of the word "tribe" in section 19 of the IRA, when organization under section 16 is sought. The advantage is, of course, that the organization need not be based at the outset on the residents of the reservation. The band organization would be based upon the St. Croix Indians designated by the Commissioner as eligible for land assignments and organization, as these Indians would be all the St. Croix Indians now recognized by the Department as having full membership rights. As suggested in the Indian Office letter of January 24, 1939, other St. Croix Indians could be included upon application when they had thus demonstrated their desire for tribal membership. While some St. Croix Indians who had been previously considered by the St. Croix group as members would not be included in the band at the outset because of the half-blood rule and the distinction made by the Commissioner between Class A and Classes B and C, this would amount in legal effect to elimination by the Interior Department, ratified by the Indians, of persons not considered sufficiently identified by blood and by interest to be members of the band until they sought such identification by application.
 

    I do not suggest that any group of half-blood Indians could set up a band organization on a temporary basis and then organize as a recognized band under the IRA, but in this instance the St. Croix Indians have common property interests, a common history, and a common past identity as Chief Little Buck's Band. Moreover, they have functioned as a band in recent years.

    I also do not suggest that a .tribe or band eligible to organize under section 16 of the IRA may organize with the approval of the Department in a manner not in conformity with that section. My point is that this group of individuals designated as Indians by the Indian Office, not being eligible to organize as a complete group under section 16 of the act, may establish a provisional organization independently of that section. This organization may be recognized as a representative and responsible organization by approval by the Indian Office of the constitution, but such action would not, of course, prevent ,the Department from later recognizing such other organization under the IRA as may legitimately be established.

    However, since the Indians may not fully appreciate the possibilities of organization of the residents of the reservation under the IRA, I suggest that two versions of the constitution be presented to them, one of which would be appropriate under the IRA and one appropriate for temporary use by the band organization until organization under the IRA is attempted. The differences in the adoption procedure should be explained. The IRA constitution must be adopted at an election called by the Secretary of the Interior at which 30 percent of the eligible voters vote, and must be approved by the Secretary of the Interior. In the case of the non-IRA constitution, the Indians may proceed to adopt it by a simple majority vote if they are satisfied with it as it is presented to them, and it may then be approved simply by the Commissioner of Indian Affairs, as in the case of other constitutions of Indian tribes not entitled to organize under the act.

    The main points in the revision of the constitution may be outlined as follows:

    1. Preamble. The IRA constitution should state that the Indians organizing are the St. Croix Indians of Wisconsin residing on the St. Croix Reservation. The non-IRA constitution can describe the Indians organizing as the recognized St. Croix Indians of Wisconsin, descendants and survivors of Chief Little Buck's Band of Chippewa Indians, who are seeking to re-establish a band organization.

  2. Membership. The IRA constitution should include such membership provisions as were suggested in the letter of January 24, 1939. In addition it could include section 2 of the membership provision of the constitution as proposed and revised by the Indian Office. A provision for descendants of members should include not only children of one-half or more Indian blood born since November 10, 1938, to members of the organization, but also children born of residents of the reservation. In the case of the non-IRA constitution, the membership provisions could be the same as those in the constitution, as proposed and revised by the Indian Office. I see no reason, however, for the elimination of the group of Indians included in the membership provisions in the constitution as submitted by the Indians, namely, the St. Croix Indians appearing on the Wooster roll and their descendants not affiliated with any other tribe and approved as one-half or more Indian blood, since this is a group of Indians which the Indian Office specifically recommended be referred to in the membership provisions in its letter of January 24, 1939.

    3. Powers. Whichever form of organization is adopted, the organized group Cannot be considered as an Indian tribe with sovereign powers of self-government. Such a conception is neither necessary nor appropriate since these Indians have been scattered groups long living under State law. However, they would have in relation to their land the full rights of a landlord. Both types of constitution can vest in the tribal council or business committee the authority to represent and negotiate on behalf of the tribe and to promulgate ordinances, subject to approval by the Secretary of the Interior, providing for the use of the reservation lands, the assignment of such lands, and the removal from the lands of nonmembers. In the case of the IRA constitution there should be included, in addition, the authority to prevent the alienation of the lands, and to employ counsel, the choice of counsel and the fixing of fees to be subject to the approval of the Secretary of the Interior. A band not organized under the IRA must have any attorney's contract approved as to all its terms, pursuant to 25 U.S.C.A. sec. 81.

  4. Amendments and ratification. The IRA constitution must provide for the procedures required by the act and by the regulations. In both cases the duration of the constitution should be specified since the organization is considered to be temporary, a period of years being indicated for the automatic ending of the organization or for the calling of an election on the revocation of the constitution.

    This office would be glad to assist in the redrafting of the constitution along the lines indicated.

                                                                                                                                            NATHAN R. MARGOLD,

M-31064                                                                                                                                               February 6, 1941.

Re:

Authority for the sale of timber, live and dead, on the unallotted lands of the Chippewa Indians of Minnesota.

1. Authority to sell live standing timber.

    (a) Live standing timber on unallotted land, reserved from sale under acts of Congress and Executive orders, may not be sold until legislative authority is obtained therefor.

    (b) Live standing timber on the ceded lands restored to the Chippewa Indians of Minnesota may not be sold until legislative authority is obtained therefor or until the ownership of the lands is vested in the Minnesota Chippewa Tribe.

    (c) Live standing timber on tribal lands of the Minnesota Chippewa Tribe may be sold by the tribe under the authority contained in the charter of the tribe.

2. Authority for the sale of dead timber.

    (a) Dead timber on the unallotted lands reserved from sale under acts of Congress and Executive orders may be sold by the Indians residing on such reservations for their sole benefit pursuant to 25 U.S.C.A. sec. 197.

    (b) Dead timber on ceded lands restored to the Chippewa Indians in Minnesota may be sold under the authority of 25 U.S.C.A. sec. 197, if the lands are within an Indian reservation. If not within an Indian reservation, such timber may not be sold without further legislative authority, unless the ownership of the lands is vested in the Minnesota Chippewa Tribe.

    (c) The dead timber on the tribal lands of the Minnesota Chippewa Tribe may be sold by the tribe under authority of the tribal charter.

MY DEAR MR. SECRETARY:

    There has been referred to me for an opinion the question raised by the Indian Office whether there is authority for the sale of live standing timber on the unallotted lands of the Chippewa Indians in Minnesota or whether additional legislation is necessary. This question is prompted by the fact that the general timber sales act of June 25, 1910 (36 Stat. 855, 857; 25 U.S.C.A. sec. 407), authorizing the sale of live standing timber on unallotted land of any Indian reservation, does not apply to the Indian reservations in Minnesota. The question was also prompted by the consideration recently given to the existing authority for the sale of dead and down timber on an Indian reserve in this area (Solicitor's memo., May 31, 1939, and departmental letter to the Superintendent of the Consolidated Chippewa Agency, September 23, 1940). Since the consideration of the authority for the sale of dead and down timber, then given, was incomplete in that it related to a small area in a peculiar status, I will, in this opinion, deal with the entire problem of the authority to sell timber on the unallotted lands of the Chippewa Reservation in Minnesota, giving first attention to the sale of live standing timber.

    The general timber sales act of 1910 was not applied to the Chippewa reservations in Minnesota, probably because it was contemplated that all the valuable timber (the pine timber) on the unallotted lands would be sold under the act of June 27, 1902 (32 Stat. 402), which amended the cession act of January 14, 1889 (25 Stat. 642), to provide for the sale of pine timber separate from the sale of the ceded lands, and because the disposition of the timber on the Red Lake Reservation required separate treatment. Appropriate disposition of the timber on the Red Lake Reservation was provided for by the act of May 18, 1916 (39 Stat. 137). There is, therefore, no question of authority for timber sales on that reservation.

    The 1889 act for the sale of the unallotted lands and the 1902 amendment for the sale of the pine timber did not, in fact, cover all the unallotted lands of the Chippewa Indians of Minnesota, exclusive of the Red Lake Reservation, because certain reserves were created. The 1902 act reserved 5 percent of the pine timber in certain areas as forest reserves, but these reserves were later incorporated in the Minnesota National Forest by the act of May 23, 1908 (35 Stat. 268). The 1902 act also reserved from all sale of land and timber certain designated islands and peninsulas. Certain small areas were set aside for agency, school, and similar purposes and reserved from disposition under the act of January 14, 1889. Since then there have been additional small reserves made by Executive order, and even by legislation, as in the case of the Ball Club village site, which was the subject of my memorandum of May 31, 1939. In so far as these reserves of the lands ceded by the
 

Chippewa Indians in Minnesota are concerned, I know of no authority to sell live standing timber on these lands and legislation would, therefore, be necessary if it became desirable to make such sales. The terms of such legislation, as, for example, the designation of the beneficiary of the proceeds, may be considered later, if and when a particular problem arises.

    The ceded lands which remained undisposed of, except the lands ceded by the Red Lake Band, have been restored to the ownership of the Chippewa Indians in Minnesota under section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and in accordance with the opinion of the Solicitor of February 19, 1938 (M. 29616). The restoration of these lands to the status of Indian lands ended the authority of the Secretary of the Interior to sell any remaining pine timber on these lands under the 1902 act, as such disposition would be inconsistent with their restored status and with the intent to give the Indians the assets rather than the income from the assets through their sale by the United States. In their new status as Indian lands belonging to the Chippewa Indians in Minnesota there is no authority for the sale of live standing timber upon them. However, when a division has been made between the Minnesota Chippewa Tribe and the Red Lake Band of their joint interest in the lands restored to the Chippewa Indians in Minnesota as a whole, then the lands vested in the Minnesota Chippewa Tribe will be the tribal lands of that group and the timber thereon will be subject to disposition under the constitution and charter of that tribe.

    Section 17 of the Indian Reorganization Act authorizes the granting of charters to Indian tribes vesting in them the power to manage and dispose of real and personal property of every description, excluding only the power to sell, mortgage, or lease for longer than 10 years, any of the land included in the reservation. Under this authority the Interior Department has uniformly granted charters to Indian tribes authorizing them to make timber sale contracts, subject to the approval of the Secretary of the Interior, or his representative, and subject to the regulations of the Department for sustained yield forestry management adopted under section 6 of the act. The charter of the Minnesota Chippewa Tribe is such a charter. This interpretation of section 17 by the Department is undoubtedly correct, in my opinion. If the prohibition on the sale of the "land" were construed to include the timber on the land, incorporated tribes would have seriously less, rather than more, power over tribal property, in comparison with unincorporated tribes, which would be in contravention of the intent of the act. Such a construction is negatived by the express authorization of power to dispose of real property of every description, excepting only the land itself, thus indicating that the word "land" is used in its natural descriptive sense and not in the legal technical sense of being synonymous with real property. Therefore, there is sufficient authority at the present time for the sale of live standing timber on the tribal lands of the Minnesota Chippewa Tribe, whether such tribal lands were created by the restoration of the ceded lands and their segregation to the Minnesota Chippewa Tribe or whether such lands were acquired by purchase for the tribe, or by any other means.

    The question of the authority for the sale of dead and down timber on other than allotted lands is complicated by the special legislation covering such sale contained in the act of June 7, 1897 (30 Stat. 90), as modified by section 4 of the act of June 27, 1902 (32 Stat. 404; 25 U.S.C.A. 197). This legislation authorizes the Secretary of the Interior to permit the Indians residing on any Indian reservation in Minnesota to sell dead timber, standing or fallen on such reservation, for the sole benefit of such Indians. The Secretary is also authorized to permit the Chippewa Indians in Minnesota to dispose of dead timber on the ceded lands, otherwise than by sale. In view of this act, the dead timber on those reserves made under the legislation and Executive orders reserving ceded lands from sale may be sold by the Indians of those reserves for their own benefit. Therefore, no legislation is needed for the sale of dead timber on these areas unless it is important to change the designation of the Indians who may be authorized to make the sales and to receive the proceeds.

    There may be various situations such as that exemplified by the Ball Club Reserve which was the subject of recent consideration by the Solicitor (memo. May 31, 1939) where there no longer exists an identifiable group of Indians for whom the reserve was intended to be created or where the reserves are so small that there is no substantial group of Indians residing thereon. I do not suggest that legislation would be necessary simply in order to provide that all the Chippewa Indians in Minnesota shall be the beneficiaries of the proceeds of the sale of dead timber in order to make the beneficiary in this respect correspond to the beneficiary of the sale of the ceded lands and timber under the 1889 act or the restored lands under the Indian Reorganization Act. The legislation for the disposition of dead timber indicates a purpose on the part of Congress to distinguish the beneficiaries of the dead timber on the areas reserved from the beneficiaries of the dead timber on the ceded areas subject to sale. As pointed out in 31 L.D. 315, there is no objection to a differentiation
 

by Congress of the beneficiaries in respect to the sale of dead timber.

    Accordingly, I modify my statement in the memorandum of May 31, 1939, in so far as it suggested that legislation should be secured to cover the sale of dead and down timber on the Ball Club Reserve in order to make the beneficiary the same as the beneficiary of the ceded lands, namely, the Chippewa Indians of Minnesota. However, my suggestion stands in so far as legislation is suggested because of the fact that the group of Indians for whom the reserve was set aside is apparently no longer identifiable.

    The ceded lands which have been restored to the ownership of the Chippewa Indians of Minnesota take on the character of unallotted lands, and the sale of dead timber on these lands would be governed by the provisions of the legislation for the disposition of dead timber in 25 U.S.C.A. sec. 197, above discussed. The dead timber on these lands could then be sold by the Indians residing on the reservations of which they are a part. However, if some of the restored lands are scattered outside existing reservations, there is no authority at the present time for the sale of timber upon them, until such time as the lands may be vested in the Minnesota Chippewa Tribe. Tribal lands belonging to the Minnesota Chippewa Tribe acquired by restoration and segregation, or by purchase, or otherwise, are covered by the charter of the tribe and the dead timber may be sold by the tribe under its power to manage and dispose of tribal property granted in the charter subject to the limitations specified therein.

    The various situations I have discussed may be summarized as follows:

1. Authority to sell live standing timber.

    (a) Live standing timber on unallotted land, reserved from sale under acts of Congress and Executive orders, may not be sold until legislative authority is obtained therefor.

    (b) Live standing timber on the ceded lands restored to the Chippewa Indians of Minnesota may not be sold until legislative authority is obtained therefor or until the ownership of the lands is vested in the Minnesota Chippewa Tribe.

    (c) Live standing timber on tribal lands of the Minnesota Chippewa Tribe may be sold by the tribe under the the charter of the tribe authority contained in

2. Authority for the sale of dead timber.

    (a) Dead timber on the unallotted lands reserved from sale under acts of Congress and Executive orders may be sold by the Indians residing on such reservations for their sole benefit pursuant to 25 U.S.C.A. sec. 197.

    (b) Dead timber on ceded lands restored to the Chippewa Indians in Minnesota may be sold under the authority of 25 U.S.C.A. sec. 197, if the lands are within an Indian reservation. If not within an Indian reservation, such timber may not be sold without further legislative authority, unless the ownership of the lands is vested in the Minnesota Chippewa Tribe.

    (c) The dead timber on the tribal lands of the Minnesota Chippewa Tribe may be sold by the tribe under authority of the tribal charter.

 Approved: February 6, 1941.
OSCAR L. CHAPMAN, Assistant Secretary.

HON. ROBERT H. LAFOLLETTE, JR.,
United States Senate.

MY DEAR SENATOR LAFOLLETTE:

Your letter of January 30 puts the question:

"If the Menominee Indian Tribe should adopt any form of constitution at the present time, will the Menominees automatically come with in the legal jurisdiction and operation of the Wheeler-Howard Act?"

    From the report made to you by the Menominee tribal delegation and from discussions in this Department with members of that delegation I gather that there is considerable misunderstanding on the Menominee Reservation as to the significance of the Wheeler-Howard Act and the relations of the act to possible organization by the Tribe. Some
 

members of the Tribe apparently do not realize that the Act has been in force on the Menominee Reservation since its enactment on June 18, 1934. These individuals, in some cases, have been led to believe that the act involves a limitation of Indian rights and that the adoption of a constitution would make the act applicable to the reservation, thereby infringing upon Indian rights. Each of these beliefs is fallacious. During the period since June 18, 1934, when the act has been in force on the Menominee Reservation, the rights of the Indians have not been diminished. The adoption of a constitution would not have the effect of diminishing any such rights. On the contrary, the adoption of a constitution by the Menominee Tribe would, under section 16 of the Wheeler-Howard Act, protect the Tribe in the exercise of four rights which have hitherto been mere matters of administrative discretion: the right to employ legal counsel, subject to the approval of the Secretary of the Interior with respect to the choice of counsel and the fixing of fees; the right to prevent the sale, disposition, lease or encumbrance of tribal lands, interests in such lands or other tribal its without the consent of the Tribe; the right to negotiate with the Federal, State and local Governments; and the right to receive from the Secretary of the Interior advice concerning appropriation estimates and Federal projects for the benefit of the Tribe prior to the submission of such estimates to the Bureau of the Budget and to the Congress.

    I am quite sure that there is no substantial objection on the part of the Tribe to the guarantee of these rights and that an attempt to clarify the legal issues involved in the proposed constitution drafted by the Tribal Council can be relied upon to eliminate the confusions which are implicit in the question which has been put to you.

    Please call on me if I can serve you further in this matter.

                                                                                                                                            NATHAN R. MARGOLD,

Re:

Order of the Secretary of the Interior, proposed by the Indian Office, to delimit within the Hopi Reservation created by the Executive order of December 16, 1882, an area for the exclusive use and occupancy of the Hopi Indians and an area for the exclusive use and occupancy of Navajo Indians.

A. The proposed order is found to be

1. Contrary to the prohibitions against The creation of Indian reservations without statutory authority, contained in the acts of May 25, 1918 (40 Stat. 570, 25 U.S.C.A. sec. 211), and March 3, 1927 (44 Stat. 1347, 25 U.S.C.A. sec. 398d);

2. In violation of the rights of the Hopi Indians within the 1882 reservation; and

3. Not in conformity with the provisions of the Hopi constitution approved December 19, 1936.

B. Legal procedures to meet the practical problem are:

1. The amendment of the Navajo-Hopi Grazing Regulations (25 CFR Pt. 72) to separate Navajo and Hopi grazing, with the assent of the Hopi Tribal Council.

2. Use of the authority of the Secretary over the settlement of other Indians within the 1882 reservation to remove the Navajo farmers from the Hopi area, with compensation for their investment.

    The Indian Office has submitted for the signature of the Secretary an order which would define within the Hopi Reservation created by the Executive order of December 16, 1882, an area which is to be for the exclusive use and occupancy of the Hopi Indians. This area is referred to in this memorandum as the Hopi Unit. The remainder of the 1882 reservation outside the Hopi Unit is to be for the exclusive use and occupancy of the Navajo Indians. It is proposed to accomplish this delimitation by fiat of the Department without expression of assent on the part of the Indians and without statutory authorization. The authority which is relied upon for this action is the wording of the Executive order of 1882 which created the reservation for the Hopi Indians "and such other Indians as the Secretary of the Interior may see fit to settle thereon."

    I am returning this proposed order as I find it to be

1. Contrary to the prohibitions against the creation of Indian reservations without statutory

authority, contained in the acts of May 25, 1918 (40 Stat. 570, 25 U.S.C.A. sec. 211), and March 3, 1927 (44 Stat. 1347.25 U.S.C.A sec. 398d);

2. In violation of the rights of the Hopi Indians within the 1882 reservation; and

3. Not in conformity with the provisions of the Hopi constitution approved December 19, 1936.

1. Prohibitions of the 1918 and 1927 acts

    "Section 211. Creation of Indian reservations. No Indian reservation shall be created, nor shall any additions be made to one heretofore created, within the limits of the States of New Mexico and Arizona, except by Act of Congress."

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

    An "Indian reservation," as recognized in the 1927 act, itself, may be defined as an area set apart by the Government for the use and occupation of Indians. United States v. McGowan, 302 U.S. 535. The right of use and occupancy is the Indian title to land which the creation of an Indian reservation establishes or recognizes, unless, as in rare instances, a different title is specified. This is true whether the reservation is created by treaty, statutes, or Executive order. Johnson v. Mclntosh, 8 Wheat. 543; Mitchell v. United States, 9 Pet. 711, 745; United States v. Cook, 19 Wall. 591; Leavenworth etc. R. R. Co. v. United States, 92 U.S. 733, 742; Seneca Nation v. Christy, 162 U.S. 283, 288-9; Beecher v. Wetherby, 95U.S. 517, 525; Minnesota v. Hitchcock, 185 U.S. 373, 388 et seq.; Lone Wolf v. Hitchcock, 187 U.S. 553; Jones v. Meehan, 175 U.S. 1; Spalding v. Chandler, 160 U.S. 394; McFadden v. Mountain View Min. & Mill. Co., 97 Fed. 670, 673; Gibson v. Anderson, 131 Fed. 39. In the McFadden case, supra, the court explained that the effect of an Executive order "was the same as would have been a treaty with the Indians for the same purpose, and was to exclude all intrusion on the territory thus reserved by any and every person, other than the Indians for whose benefit the reservation was made, for mining as well as other purposes." Even a setting apart by the Secretary of the Interior of lands for Indians use amounted to the creation of a reservation, as the Secretary was deemed to be acting for the President. United States v. Walker River Irrigation Dist., 104 F. (2d) 334. Since the effect of an order creating a reservation is to give the Indians the use and occupancy of the land, an order giving certain Indians the use and occupancy of a designated area of land is, in effect, the creation of a reservation. This conclusion is true a fortiori where the effect is to give a tribe of Indians an exclusive right of use and occupancy in an area which was part of a larger area in which they had the right of use and occupancy in common with other Indians settled thereon.

    The 1927 act was passed in order to make certain that the rights of use and occupancy within the reservations created by the executive branch of the Government were the same as those recognized in the case of treaty or statutory reservations, and particularly the right to receive the proceeds from minerals within the reservation. The intent of the act was to confirm the opinion of the Attorney General in 1924 that the Indians of Executive order reservations had the same property rights as the Indians of other reservations (34 Op. Atty. Gen. 181). That opinion of the Attorney General left open the question whether the President might abolish part of a reservation created by him. It is clear that section 4 of the act, above quoted, was intended to settle this question by providing that the President could not alter the boundaries of reservations already created. It has been suggested that section 4 was intended to relate simply to additions to Indian reservations. No such intent appears in the legislative history of the act, and if such were the intent, the section would have been largely unnecessary in view of the act then in existence prohibiting the withdrawal of public lands as an Indian reservation except by act of Congress (act of June 30, 1919, 41 Stat. 34). However, resort need not be had to the legislative history of section 4 of the 1927 act, since there is no am-
 

biguity in the prohibition upon any type of change of the boundaries of an Indian reservation.

    The proposed order would not only change the boundaries of the 1882 reservation but would also, in effect, create a Hopi Reservation where no reservation exclusively for the Hopis had previously existed, and would thus violate the prohibition in the 1918 act against the creation of any reservation within the limits of the State of Arizona except by act of Congress.

    These statutory prohibitions were apparently recognized by the Department in the period from 1930 to 1934 when an attempt was made to obtain passage of the Navajo boundary bill with a provision included to authorize the Secretary of the Interior to define a boundary between the Navajo and Hopi Indians. This attempt was abandoned and the bill was finally passed containing a provision that nothing in the act would affect the status of the 1882 reservation. (Act of June 14, 1934, 48 Stat. 960.) The files of the Department show that this result occurred because of the protests coming from both the Navajo and Hopi Indians. (Indian Office files No. 308.2 Pts. 1 and 2, 8970, 1930.)

    The 1882 reservation was created for the use and occupancy of the Hopi Indians, together with such other Indians as the Secretary might settle thereon. Although their rights were not exclusive, the Hopi Indians were thus given the right of use and occupancy throughout the 1882 reservation. This right, as previously indicated, is the usual Indian title to land. An order forbidding the Hopi Indians from using and occupying a portion of the 1882 reservation would be an alienation of their property right in that portion of the reservation. No citation of authority is necessary for the fundamental statement that the Secretary of the Interior is not privileged to alienate Indian lands without authorization from Congress, whether the alienation is to other Indians or to non-Indians. The privilege placed in the Secretary of the Interior at the time of the creation of the 1882 reservation to settle other Indians within the reserve permitted him to allow non-Hopis within the reservation. The privilege does not extend to the exclusion from the reservation of the Hopis themselves.

    There is one case which states that where, under an Executive order and a statute, the Secretary has authority to settle other Indians upon a reservation created for designated tribes, the designated tribes have only the "right to reside" thereon and no "definite title" to the land. Crow Nation v. United States, 81 Ct. Cls. 238, 278. The question before the court was not the title of the Indians to the land but the tribal recognition given to the River Crow Indians. The case contains no authority upholding the right of the Secretary to remove a tribe from a reservation for whom the reservation was created, even though the tribe might have less than ordinary Indian title to the land. In the Crow case, moreover, the River Crows had voluntarily abandoned the reservation and claimed no title thereto.

    However, it has been the settled opinion of the Department that where a statute or Executive order creates a reservation for a designated tribe or tribes, such tribes have the usual Indian title of use and occupancy, even though the Secretary is privileged to settle further Indians upon the land. There have been at least 25 such Executive orders and 6 such statutes, many of which relate to tribes which are now organized under the Indian Reorganization Act. In no case have these tribes been considered as having less than the usual tribal property rights. Their rights have even been deemed to have become exclusive where over a long period of time there has been no action by the Secretary to introduce other Indians into the reservation. Memoranda of the Solicitor, September 15 and October 29, 1936 (Colorado River Indian Tribes). I do not maintain that in this case the rights of the Hopis have become exclusive rights since there were Navajos upon the reservation at the time the 1882 order was promulgated, and Navajos have continued within the reservation in increasing numbers.

    My conclusion on this point is that, while the Secretary may control the settlement upon the reservation of the Navajo Indians, he may not deny the use and occupancy of any part of the reservation to the Hopi Indians without their voluntary action, as such denial would be an alienation of their property beyond the authority of the Secretary.

    At least three provisions of the Hopi constitution bar action by the Department to limit the use and occupancy of the Hopi Indians to the proposed Hopi Unit without the assent of the Hopis. Article I, defining the jurisdiction of the Hopi Tribe, provides that the authority of the tribe shall cover the Hopi villages "and such land as shall be determined by the Hopi Tribal Council in agreement with the United States Government and the Navajo Tribe." This provision was intended to provide, and clearly does provide, for
 

the defining of a boundary to the land of the Hopis by agreement of all parties concerned. Article VI, section 1 (c) embodies the provision in section 16 of the Indian Reorganization Act that organized tribes may prevent the disposition of their property without their consent. Article VII places in the Hopi Tribal Council supervision of farming and grazing upon the land beyond the traditional clan and village holdings.

    As I have presented the legal objections to the method proposed by the Indian Office to meet the serious threat to the welfare of the Hopi Indians from Navajo encroachment, I should like to proceed with certain constructive suggestions as to possible legal procedures available to meet the urgent problem.

    I understand that the problem is economic and psychological. The increasing infiltration of the Navajo Indians farming and grazing livestock within the 1882 reservation threatens to choke the Hopi economy, particularly as the Hopis are turning more to the grazing of livestock and the range land is deteriorating. Neither tribe is willing to agree to a reservation boundary. The Hopis believe that such an agreement would embarrass their traditional claims to large areas of land. The Navajos wish the privilege of utilizing the entire 1882 reservation as far as possible. The core of the matter is land use for farming and grazing. I believe it possible to take effective action to control farming and grazing without defining a separate Hopi reservation.

    The Secretary of the Interior has the undoubted authority to regulate the use of range land to protect the land from waste and to prevent unfair and unreasonable monopolization by individuals. This authority was established in the Navajo grazing cases (United States v. Bega, D.C. Arizona, unreported, D. J. File No. 90-2-8-24-3). In so far as the 1882 reservation is concerned, the power is also based upon statutory expression in section 6 of the Indian Reorganization Act. The present Navajo and Hopi grazing regulations (25 CFR Pt. 72) regulate the number of units which each family may place upon the range in the light of the carrying capacity of the range. To administer these regulations the Secretary of the Interior has established grazing districts based upon the social and economic requirements of the Indians, one of which, No. 6, is designated as the Hopi Reservation for the purpose of grazing administration. 25 CFR sec. 72.13 (g). Within this Hopi grazing reservation the regulations are to be executed in so far as they are compatible with the provisions of the Hopi constitution and in cooperation with the Hopi Tribal Council (sets. 72.4, 72.6 and 72.9).

    It would be possible for the Indian Office to show, I believe, that it is necessary for the proper protection of the range from destruction and for the effective enforcement of the regulations that Hopi and Navajo grazing be separated. It is apparent that the Hopi Tribal Council can control its own members better than it can the intruding Navajos who are ancient enemies. The presence of the Navajos within the Hopi grazing district is a deterrent to constructive action by the Hopis to protect the range. The friction between the two tribes makes the enforcement of the regulations difficult. If it can be shown that there is a direct relation between the protection of the land from waste and the separation of tribal use, an amendment can be made to the grazing regulations providing that no Navajo shall be issued permits within the Hopi grazing district and no Hopi shall be issued permits within the remainder of the 1882 reservation. A further amendment might be included to enlarge Grazing District No. 6 to include all of the proposed Hopi Unit, which is a slightly larger area.

    The Hopi constitution recognizes the regulatory power of the Secretary over the range land provided in section 6 of the Indian Reorganization Act. However, since the suggested regulation would not only regulate the use of the range but would exclude Hopis from the use, for grazing purposes, of the land outside the Hopi Unit, the regulations must have the assent of the tribe. The distinction between the regulation of a property right and the denial of the exercise of a property right as a basis of the affirmance or disaffirmance of the power of the Secretary is apparent in the two cases of United States v. Bega, supra, and Mason v. Sams, 5 F. (2d) 255 (D.C.W.D. Wash., 1925). In the latter case the regulations of the Secretary which denied fishing privileges to tribal members without the consent of the tribe were held invalid.

    It is possible that the assent of the Hopis will be obtained if three considerations are kept in mind:

    (1) The regulation does not create a reservation boundary, since the Hopis would remain entitled to all beneficial use, including the right to any proceeds, within the remainder of the 1882 reservation.

    (2) The regulation would be to the practical advantage of the Hopis since they would apparently
 

obtain greater grazing areas than they have the effective use of at present.

    (3) A formal agreement or the signing of a document by the Hopi Tribal Council is not necessary if they are reluctant to take such positive action. If the tribal council will assist in the execution of the regulations through the issuance of permits within the Hopi Unit and in such other ways as may be appropriate, their acquiescence will be sufficiently demonstrated.

    If the rights of the Hopis are thus recognized, I see no objection to the Navajo superintendent issuing permits to Navajos within the remainder of the 1882 reservation under the authority of the Secretary to settle non-Hopis within the reserve.

    As there are some Navajos farming within the Hopi Unit who may remain there in spite of the fact that they can no longer graze their livestock, and as their presence would be a continuing source of friction because of the need of the Hopis for additional agricultural land, it would be possible for the Secretary of the Interior to use his authority over the settlement of non-Hopis within the reserve to remove these Navajo farmers from the Hopi Unit. However, as these farming settlements were made with the knowledge of the administrative officers of the Department, the investment of the Navajos should be respected, either by assisting them in resettling elsewhere on land of equal value or by providing other compensation.

    The Secretary does not have the power to remove the Hopi farmers who may be located outside the Hopi Unit but within the 1882 reservation in view of the use and occupancy rights of the Hopis in that area. There are no farming regulations adopted under section 6 of the Indian Reorganization Act, and if there were, and these were assented to by the Hopis, it would probably be more difficult to relate soil erosion prevention through the control of farming practices to the separation of the tribes than in the case of grazing regulation. However, it is possible that the Hopis outside the Hopi Unit could be attracted into the Unit by assistance in resettlement.

    If adjustment in the use of farming and grazing purposes of the 1882 reservation is effected in some such way as I have outlined, and if this adjustment proves to be to the general satisfaction of both tribes, it is possible that agreements may then be obtained from the two tribes for legislative action to define a reservation boundary.

                                                                                                                                            NATHAN R. MARGOLD,

Re:

May persons employed in the Indian Service own stock in corporations, a large part of whose stock is owned by restricted Indians?

Section 68, title 25, United States Code, having the purpose of avoiding a conflict of interest in an employee of the Indian Service between the conscientious use of his official authority over restricted Indians and his private financial interest in a business venture with which restricted Indians are prominently associated, it is suggested that Indian Office employees should avoid even the appearance of a violation of this section and invest their funds in more neutral business ventures.

    Reference is made to Assistant Commissioner Zimmerman's inquiry of December 12 as to whether it is permissible for Mr. Whitlock, Superintendent of the Rosebud Indian Agency, and Mr. Hector, Superintendent of the Shawnee Agency, to own stock in the Osage Federal Savings and Loan Association.

    In the inquiry it is pointed out that while section 68, title 25, United States Code, provides that "No person employed in the Indian affairs shall have any interest or concern in any trade with the Indians," such stock ownership as in the instant case does not fall under this provision, especially as the two superintendents are not directors of the association and have no hand in its management. Attached to the inquiry is a memorandum by G. B. Fulton, Osage Tribal Attorney, in which he distinguishes the instant case from that dealt with in recent opinions of the Attorney General and of the Acting Solicitor concerning the case of two employees of the Osage Agency desirous of serving as directors of the First National Bank Building Corporation in Pawhuska, Oklahoma. Mr. Fulton states that the instant case is parallel to that of an employee of the Indian Office owning stock in the General Motors Corporation in which restricted Indians also may own stock.

    A corporation, a large part of whose stock holders are restricted Indians, is surely engaged in "trade with the Indians" and an Indian Office em-
 

ployee who owns stock in such a corporation has clearly an interest in this trade with the Indians. The purpose of the prohibition of section 68 is to avoid a conflict of interest to arise in an Indian Office employee between the conscientious use of his official authority and his interest in a business enterprise which may be furthered by an unconscientious use of his official authority. Thus, the Attorney General stated in his ruling dated May 9, 1940,

"It would, of course, be objectionable for employees of the Indian Office to acquire stock in this corporation and participate in its affairs for personal profit, while at the same time exercising in behalf of the United States a measure of control over other stock and, aside from the question of the application of particular statutes, would be forbidden by regulations of your Department."

                                                                                                                                            NATHAN R. MARGOLD,

Memorandum for the Commissioner of Indian Affairs:

    I believe that the attached recommendation should have your personal reconsideration.

    The recommendation is that we disapprove a document, written by the hand of the decedent in the Sioux language and not formally witnessed, which is considered by the Probate Division of your office to be a will. While such disapproval would be legally authorized, since our probate regulations (25 C.F.R. 81.51) do not make special provision (as do 19 States and Alaska) for approval of holographic wills, such regulations could be waived if, as a matter of policy, it should be decided that the document is a will meriting approval. I believe that the Assistant Secretary, in passing upon this matter, should have the benefit of your consideration and your recommendation on this question of policy. As against the advantage of preserving the usual rules regarding witnesses, there should be weighed the following considerations:

(a) No question has been raised as to the genuineness or propriety of the will.

(b) The will was presented by the widow against her own interest.

(c) The will allocates to two landless grandchildren a tract of land which they can apparently divide and use; on the other hand, if the will is disapproved, the landless grandchildren take nothing and the property is divided into three equal shares among the wife and the two daughters of the decedent.

                                                                                                                                            NATHAN R. MARGOLD,

    My own view and recommendation to you is that a special exception be made and the will approved.

Memorandum for the Commissioner of Indian Affairs:

    The attached letter to the Attorney General concerning the request by the attorneys for the Menominee Tribe in the Court of Claims for certain letters which passed between the Department of Justice and this Department informs the Attorney General that it is the opinion of this Department that the request of the attorneys is justified and that we see no alternative but to comply with it. The letter goes on to state that this Department is no longer willing to follow the agreement made with the Department of Justice in 1938 for the handling of reports on cases before the Court of Claims. I am returning this letter as I have certain suggestions on its content.

    The Indian Office letter of January 27 to the Menominee attorneys in reply to their request of January 24 for copies of correspondence on the Menominee report of this Department informs them that the office has under consideration the propriety of furnishing them with the correspondence requested, excepting the final report of the Department, a copy of which was sent them with the letter. The statement now made in the proposed letter to the Attorney General that this Department sees no alternative but to comply with the request of the attorneys would be binding upon the Department and would stand in the way of a later denial of the correspondence to the attorneys. I think the propriety of furnishing the correspondence to the attorneys should not be foreclosed by this letter to the Attorney General, and that the question should be held in abeyance at least until the Department of Justice has replied to this letter.

    Moreover, I do not agree with your conclusion that the Department must comply with the attorneys' request, in the absence of a court order. I do not consider the correspondence requested "useful * * * in the preparation for trial" and therefore a matter to which the attorneys have the right of access under section 4 of the Menominee jurisdictional act (act of September 3, 1935, 49 Stat. 1085). It is possible that the 1938 correspondence may also be considered confidential communications which could properly be withheld even from the court. The advice of the Attorney General could be requested on that point. As to the copies of the revision of the tentative Menominee report, they may, without impropriety, be denied on the argument that, being unsigned papers, they are not official documents of the Department.

    I suggest that the Attorney General be advised of the response of the Indian Office to the request of the attorneys and of our opinion as to the propriety of furnishing the remaining material, and that he be informed that if the Department of Justice has objection to the furnishing of this material, this Department will not furnish it without court order.

    The last paragraph of the letter to the Attorney General gives as one consideration for abandoning the practice agreed to in 1938 the understanding of the Department that the reports of the Department are not used as evidence, that they are submitted primarily for the guidance of the Department of Justice, and that their use is a matter within the discretion of that Department. I doubt that this is a true reflection of the possible use of the reports of this Department. Section 4 of the Menominee jurisdictional act (act of September 3, 1935, 49 Stat. 1085) provides that any document in the possession of any department of the United States may be used in evidence. Section 272 of title 28 of the United States Code authorizes the Court of Claims to call for papers or documents from any of the departments. In view of these statutes the use of a report of this Department is not entirely within the discretion of the Department of Justice.

    I do not disagree with the determination to abandon the procedure for the preliminary review of the reports of this Department by the Department of Justice. However, I suggest that the abandonment of this procedure be placed simply on the basis that this Department will assume responsibility for preparing and presenting reports of a proper character.

    In view of the number of suggestions I have made on the content of the letter to the Attorney General, I am attaching a substitute second page of that letter, incorporating those suggestions for your convenience in consideration.

                                                                                                                                             NATHAN R. MARGOLD,

Memorandum to the Commissioner of Indian Affairs:

    Reference is made to your letter of February 17, requesting the approval of deeds for the exchange
 

of lands between Frank Jealous of Him and his wife, et al. (your reference Land Division Adj. 82447-40, 64354-40). The transaction has been approved but I should like to take this occasion to correct a mistaken view of the law which apparently caused unnecessary and cumbersome proceedings in this case.

    It appears that these lands were reappraised for the purpose of showing that the lands exchanged are of equal value. This reappraisal was suggested by the Assistant to the Commissioner's letter of November 4 in the file which indicates that the Indian Office is of the opinion that lands exchanged between Indians and whites under the Indian Reorganization Act must be of equal value. I have in various memoranda indicated that this is not the case and that no legal objection can be raised to a transaction whereby the Indian acquires a more valuable tract of land than the land he relinquishes, paying a cash sum to boot. Such a transaction, in effect, amounts to land acquisition on behalf of the Indian, which is one of the specific objectives of the Indian Reorganization Act. As I wrote in my memorandum of February 3, 1937,

"* * * Under section 5 the two tracts of land may be either equal or unequal in value, but if they are unequal in value it must be the Indian rather than the whites involved in the transaction who emerge from the transaction with an increased land value. Thus, an Indian may not convey $2,000 worth of land to a white man where the white man transfers to the Secretary for the Indian's use a tract of land worth only $500 and a cash payment to boot of $1,560. On the other hand, an Indian may transfer the lesser tract to a white man and make an additional payment of $1,500 in exchange for a transfer of the more valuable tract to the Secretary for the benefit of the Indian. The difference between the two cases is not technical or abstruse. In the one case the Indian is selling land; in the other case land is being bought for the Indian's benefit. The former is forbidden and the latter is authorized by the terms of the act. This distinction, based on the major purpose of the act, should eliminate some of the confusion that appear in certain memoranda on this subject in the attached file."

                                                                                                                                            NATHAN R. MARGOLD,

    Reference is made to your letter of January 7 to William O. Roberts, Superintendent, Pine Ridge Agency, relating to the purchase of certain land from the heirs of Joseph Running Hawk, Pine Ridge Allottee No. 6576, for Indian school purposes. Your reference number is Acq. 22279-40.

    Your letter to the superintendent indicates that the value of the school building is in dispute. I feel that the value of the school building is not a relevant issue as the facts indicate that the title to the building is concededly and clearly in the Government. There is a labyrinth of correspondence relating to this matter which I feel it is needless for me to explore in detail. The facts briefly indicate that the school building was erected on the property before the allotment deed was issued. Through some inadvertence the allotment deed did not reserve the school property. The Indians, when they acquired the property by the allotment deed, took the property with notice of the Government's building on the land and made neither claim of ownership nor did the Indians attempt to interfere with the use of the building for school purposes. Clearly this shows acquiescence, consent and license and the doctrine of caveat emptor may be applicable. The Government, to make its right to the building more secure and free from controversy, entered a lease with the Indians after the Indians refused to correct the allotment deed wherein it was agreed that the Government was to own all the buildings and improvements placed on the land "and to have its own time to dispose of or to remove said buildings therefrom." This lease, while signed by the Indians, was not signed by the Government because it was felt that a lease exceeding a five-year term was prohibited by the act of June 25, 1910 (36 Stat. 856). It is of no avail to criticize that determination at this time, but I should like to point out that the United States as a sovereign is authorized to lease land for school purposes for a period greater than that provided for in the statute. The Attorney General in his letter of February 7, 1935, to the Secretary held that the Government may acquire lands for school purposes under section 4 of the act of June 18, 1934 (48 Stat. 984), even though the language of the act prohibits the sale of restricted Indian lands. Said the Attorney General:
 

    "To hold that a sale of restricted Indian lands to the United States, needed by the Government for the purpose of carrying out its policy of promoting the educational advancement of the Indians is within the ban of the statute, would, to that extent, abrogate that policy. It is a familiar rule that a general statute which takes away or limits any right, title or interest does not bind the sovereign unless the sovereign is expressly named therein (United States v. Knight, 14 Pet. 301, 315; Dollar Savings Bank v. United States, 19 Wall. 227, 239).

    "Therefore, in the absence of any provision in the act specifically forbidding the sale of restricted lands to the United States for the purpose of erecting school buildings thereon for use in the Indian school service for the benefit of the Indians residing on the Reservation where such lands are located, I am of the opinion that Section 4 of the Act of June 18, 1934, does not prohibit such sale."

    The unsigned lease creates a license and recognition on the part of the Indians sufficient to permit the Government to enjoy the use and ownership of the building. A building erected upon the land of another by his consent or license does not become a part of the realty but remains the property of the person annexing it. Price v. Case (1834), 10 Conn. 375; Fischer v. Johnson, et al., 106 Iowa 181, 76 N. W. 658 (1898); Collins v. Taylor, 101 Maine 542, 64 Atl. 946 (1906); Priestly v. Johnson, 67 M O . 632 (1878); Dame v. Dame, 38 N. W. 429 (1859); Kay County Gas Company v. Bryant, et al., 135 Okla. 135, 276 Pac. 218, 221 (1928). Even though the title to this building was at times recognized by the Government and at other times was not, the rights of the Government cannot be prejudiced by inter-office correspondence between the Office of Indian Affairs and the superintendent. The Government can neither be bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. United States v. San Francisco, 310 U.S. 16, 32. As late as July 10, 1940, it appears that the Indians have disclaimed title to the building. Equity has compelled the owner of land as a condition of his recovering the land to pay for improvements made by a bona fide improver. Jackson v. Ludeling, 99 U.S. 5 13, 520 (1878); Seal v. School District No. 2 in Lake County, 133 U.S. 553 (1890). There can be no doubt that the Government can qualify as a bona fide occupant of the land in view of the facts related herein.

    It is my opinion, therefore, that the Government is not authorized to disclaim title to its building now and to offer compensation for it as a means of settling a claim on the part of the Indians for the use and occupation of the land by the Government. The Indians would be led along a very hilly road if their rights arising out of the use and occupation of the Government were held to be a claim as all claims must be supported by an act of Congress in spite of the Tucker Act. See Hooe v. United States, 218 U.S. 322, 31 Sup. Ct. 89.

    Even though it may seem desirable from an administrative standpoint to pay the heirs for the reasonable use and occupation of the land, such compensation cannot be based upon the value of the school buildings now owned by the Government but can only be based upon the fair value of the lands taking all factors and conditions into consideration. This may not only be the market value but the worth to the owner. It has been held that interest in a condemnation award is an element of just compensation. Shoshone Tribe v. United States, 299 U.S. 476; Seaboard Airline Railway Company v. United States, 261 U.S. 299. The value to the Government of the use and occupation of this land over a long period of years is a factor that may properly be considered now in assessing the value of the land. This solution may lead to a far more equitable means of compensating the Indian for the real value of the land to him than an attempt to fix the value of a school building belonging to the Government as of 1924 as a criterion of value for the use and occupation thereof.

    The letter is returned without approval for the reasons stated in this memorandum. Your letter has been redrafted to conform with the recommendations herein suggested and this redraft is submitted herewith for your consideration.

                                                                                                                                            NATHAN R. MARGOLD,

Memorandum for the Commissioner of Indian Affairs:

    I desire to call your attention to a schedule of fees in partition cases under the jurisdiction of
 

the Osage Indian Agency, which were adopted on December 10, 1926. In my opinion these fees are excessive and it is suggested that a more equitable and reasonable schedule should be formulated. It is the consensus of the opinions of Messrs. Flanery, McMahon, Fulton, and Spector that the fees that now obtain under the existing schedule are excessive and should be revised. Mr. Pearson, President of the Osage County Bar Association, after discussing this matter with Mr. Spector also agreed that the existing schedule ought to be revised as in some instances the fees are excessive. May I suggest the following substitute schedule for your consideration and approval:

1. A fee of $200 in partition cases where the estate is less than $10,000;

2. $300 where the estate is less than $15,000;

3. $400 where the estate is less than $25,000;

4. $500 as a maximum fee in all cases over $25,000.

    In order to discourage excessive and unnecessary partition proceedings and other litigation in which restricted Osage Indians are parties, I think provision should be made for the submission of facts sufficient for this Department to pass upon the propriety and necessity before such proceedings are authorized. This preliminary approval will avoid unnecessary and expensive proceedings as it is very often too late to entertain objections to proceedings approved by the court after expenditures of considerable sums of money.

    I shall be glad to have your views and reactions in regard to those suggestions. Should you agree with those recommendations, may I suggest that you take the necessary steps to promulgate new regulations to effect the necessary changes.

                                                                                                                                                FELIX S. COHEN,

Memorandum for the Commissioner of Indian Affairs:

    Reference is made to a letter from the Superintendent of the Rocky Boy's Agency to Kenneth W. Green, Assistant Land Field Agent, which accompanied your request of March 17 for the approval of options in connection with the acquisition of lands for the Rocky Boy's project. Your reference number is land Division, Acq. 30370-40, 59077-40.

    It appears, according to the superintendent's letter, that it is a policy of the purchasing department to construct fences along boundaries of lands not yet acquired by the Government. The letter says

"* * * So long as the program is developing it is difficult to construct fences on permanent boundaries because with each purchase program boundaries change. However, we will plan to establish it as the policy of the Purchasing Department as well as our field unit to establish the exterior boundaries as indicated on your map and will attempt to work our plan whereby we will fence on these exterior lines and give the white owner within the reservation privilege of running a certain number of head which his holdings would entitle him to run. In this way we will establish our exterior boundaries and hope to be able to acquire all lands within them."

    It is therefore suggested that careful consideration be given to the practice of constructing fences around land not yet acquired by the Govern-
 

ment which may obligate the Government to pay more for the land in this manner than by direct purchase.

                                                                                                                                                FELIX S. COHEN,

Memorandum for the Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Colviile Agency authorizing him to enroll a number of mixed-blood children presents several important legal principles which I wish to call to your attention.

    The inter states (1) that the Colville Business Council has no right to pass upon the question of enrollment with the Colville Tribe, and (2) that, therefore, enrollments must now be made in accordance with "the general policy and the laws and court decisions governing such matters prior to the enactment of the Indian Reorganization Act." The letter thereupon proceeds to instruct the Superintendent to enroll a large number of mixed-blood children, including 2 who have 3/16, 1 having 5/32, 3 having 1/8, 2 having 1/16, and 2 having only 1/32 degree of Indian blood. The letter would permit the enrollment of several other children who are less than quarter-bloods upon presentation of further evidence on residence of the parents.

    (1) The statement that the Colville Business Council has no right to pass upon matters of enrollment misinterprets the provisions of the constitution. There is no provision of the constitution dealing specifically with tribal membership. However, the preamble provides that the purpose of organization is to form a recognized representative council to handle reservation affairs. Article V, section 1 (a) gives the Business Council the power to confer with the Indian Office and to protect and preserve the tribal property and the general welfare of the tribe, and other provisions of the constitution authorize the Business Council to take action which involves determination of tribal membership, such as determining the qualifications of voters and of councilmen (Art. II, sets. 6, 7, and Art. III, secs. 2, 3, 5) excluding nonmembers, taxing members and nonmembers, and regulating the domestic relations of members (Art. V, sec. 1 (b), (d), and (e)). My conclusion is that any power which the tribe has over the determination of tribal membership may and should be exercised by the Business Council under the terms of the constitution. The power of the tribe to determine membership is my next point.

    (2) The Indian Office refers to the general policy and laws and court decisions governing enrollment matters prior to the Indian Reorganization Act as authority for causing the enrollment of these mixed blood children. The court decisions on the question of tribal enrollment and membership are unanimously to the effect that the tribe has the power to determine what persons of mixed blood shall be considered tribal members and this power is limited only by the approval power of the Department where tribal property is involved, by the statutes in particular cases requiring a tribal enrollment in a certain way, and by the statute (25 U.S.C. sec. 184) vesting in mixed-blood children born of marriages contracted prior to June 7, 1897, a right to share in tribal property (Handbook of Federal Indian Law, ch. 7, pp. 47 through 61). The Oakes case is outstanding confirmation of this kind of court decision (Oakes v. United States, 172 Fed. 305, C.C.A. 8th 1909).

    There are no statutes governing the matter of determining tribal membership among the Colville Indians. In fact, there are no general laws or regulations governing enrollment of tribal members. There are only customs and usages of the Indian Office, which are formulated scantily in the 1904 Regulations of the Indian Office governing the distribution of annuities. If these regulations did apply, several of the enrollments authorized by the letter would not conform with the regulations since the regulations prohibit the enrollment of children of Indian women married to white men after June 7, 1897 (sec. 324, par. 4). If the practice of the Indian Office prior to the enactment of the Indian Reorganization Act was to enroll mixed-blood persons without the consent of the tribe and over its opposition, I do not think this practice can be condoned or continued in the face of the known and repeated decisions of the courts on this subject, whether or not the tribe is organized under the act.

    In this instance the Confederated Tribes of the Colville Reservation have declared against the enrollment of mixed-blood persons who have less than 1/4 degree of Indian blood. The resolution of the Business Council of January 13, 1939, recited that

"Whereas the Colville Business Council is deeply interested in the welfare of the Colville Indians, we do hereby resolve to protect our enrollment as to the degree of Indian blood, and

"Whereas, there is a large number of people drawing tribal interests, that are of a small degree of Indian blood, and

"Whereas, said small degree of Indian blood is not in accord with self Government and wishes of the Colville Indians, that such persons do not desire to be known as Indians any further than to carry title of drawing per capita payments or to come under medical attainments and other interests that the tribal resources may tend to benefit the Indian thereof:

"Therefore, be it resolved by the Colville Business Council in regular meeting assembled in accordance with Art. V, Sec. 1 (A) of our constitution and by-laws, as recognized by the Indian Offi