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OPINIONS OF THE SOLICITOR

MAY 17, 1941

section 163 nor to pay her the share of funds previously distributed to persons on that roll, she could be adopted by the tribe with all rights to share in tribal funds except such funds as had already been segregated under section 162.

    Under this holding, which I believe correct, the tribal rolls made under section 163 are, as a result of the repeal of section 162, historical unalterable documents, required to be used only for the completion of the distribution of such funds as have been segregated under section 162 and remain undistributed.

    No. 2 (a). The second question you raise concerns the Blackfeet tribal roll compiled under the act of June 30, 1919 (41 Stat. 3, 16) and it is asked (a) whether this tribal roll is still the determining tribal roll for all purposes. The act of 1919 authorized the Secretary of the Interior to make allotments under existing laws to all Blackfeet Indians not previously allotted, who were living six months after the approval of the act, and to prorate among these Indians all remaining unallotted and unreserved lands within the reservation, with the proviso that "the Blackfeet tribal rolls shall close six months after the approval of this act and thereafter no additional names shall be added to said rolls." The act reserved the minerals for the tribe.

    If the interpretation of this act were an open question, it would be my opinion that the act provided for a tribal roll final only for the purposes of the required allotment. The provision for enrollment is placed as a proviso on the directions for making the allotments and the act did not contemplate the dissolution of the tribe in view of the continuance of tribal property interests and activities. However, the Department and Congress treated this roll as the determining roll for subsequent Federal distribution of tribal funds. This is demonstrated by the act of March 3, 1931 (46 Stat. 1495), which authorized the addition to the 1919 roll of children born since that date and living six months after approval of the act. The express purpose of the act was to permit such persons to participate in the subsequent distribution of tribal property, following the 1931 act.

    Therefore, it must be assumed that at the time of the organization of the Blackfeet Tribe under the Indian Reorganization Act the tribal roll of 1919, as amended, was the determining roll for all distribution by the Federal Government of tribal property. Statements appear in the file that the Department considered the roll final "for all purposes, but whether it actually governed in internal tribal activities is not clear. I do not believe that there was any legal compulsion that it should do so, since it would take specific statutory direction to modify the right of the tribe to determine its own membership for such activities. However, it is not necessary to determine this point as section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), reaffirmed and reestablished the right of the tribe to determine its membership for all tribal activities. Section 16 authorized Indian tribes to organize for their common welfare, to adopt appropriate constitutions and to exercise the powers vested in the tribe by existing
law. Such authority to reestablish a tribal organization necessarily carried with it the authority to determine the membership of the organization. If there remained any doubt as to the authority of the tribe to manage tribal propetty for the benefit of such members, it was removed by incorporation of the tribe under section 17 of the Indian Reorganization Act, which authorized the incorporated tribes to manage and dispose of tribal property.

    Accordingly, I conclude that the membership of the tribe, as determined by the tribal constitution, governs all use and distribution of tribal property, except such as has already been segregated for distribution under authority of law prior to the organization of the tribe, and except such as may be authorized to be distributed by the Federal Government under an act of Congress specifying how the property shall be distributed. An example of such act of Congress is the act of June 20, 1936 (49 Stat. 1568), which authorized the per capita distribution from the Blackfeet judgment fund of $85 to each member of the tribe living and entitled to enrollment on the date of the judgment in the Court of Claims, and which authorized sthe balance of the judgment fund to be disposed of by the tribal council with the approval of the Secretary of the Interior in accordance with the constitution and bylaws of the tribe. This act indicates that Congress will no longer authorize distribution of tribal funds in the United States Treasury according to the original 1919 roll but will direct distribution in accordance with present day tribal developments.

    No. 2 (b). On the basis of the foregoing analysis, question 2 (b) must likewise be answered in the negative. The members of the tribe on the final allotment roll have no vested interests in the tribal property such as to prevent or affect the distribution or use of tribal property under the Blackfeet tribal constitution or charter. The same statement applies to the persons whose names appear on the rolls compiled under section 163, discussed in connection with question 1. Such persons have a vested interest only in property which may have been set aside for segregation and distribution under section 162. This follows from the general rule that
 



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no member has a vested individual interest in the tribal property. This rule has been repeatedly applied in the cases before the Supreme Court refusing to restrain at the suit of individuals congressional or departmental management of tribal funds and other property (Wilbur v. United States, 281 U.S. 206 (1930); Chippewa Indians of Minnesota v. United States, 307 U.S. 1 (1939) ) and is discussed in full in the Solicitor's Opinion of October 25, 1934, above cited (pp. 50-54).

    The reasoning in the Wilbur case is particularly relevant. It had been argued that Congress in the act of January 14, 1889, had intended to abolish the tribe and to vest in individual Indians the funds derived from the sale of tribal lands. However, the court refused to interfere with the action of the Interior Department based upon its determination that the tribe still existed and the funds remained tribal funds for such tribal activities as Congress might authorize. The court pointed out that Congress intended a gradual rather than an immediate transition from tribal status to individual responsibility and had continued to recognize and deal with the Indians as a tribe. This case is one of a number of cases in which the courts have restricted the effect of acts of Congress looking toward the dissolution of the tribe in view of the stubborn fact that the tribes did not cease to exist.

    With your memorandum there was attached for my reference a list of special enrollment acts affecting various tribes. I have reviewed these acts and classified them according to the legal effect which may be drawn from the language of the acts. In the first place, these acts may authorize the Secretary of the Interior to make a specific distribution of tribal property and for that purpose may expressly or impliedly authorize him to prepare a list of the beneficiaries. Where these statutes do not specify that the list is to be final and conclusive, the list is not only open to amendment and correction by the Secretary of the Interior (Wilbur v. United States, supra), but the decision on the facts may be reconsidered by the courts (Oakes v. United States, 172 Fed. 305 (C.C.A. 8th, 1909)). Such a roll is final only as to the date specified for the distribution of the funds or as to the date upon which the beneficiary must be a member of the tribe (12 L.D. 168).

    The second category consists of rolls for specific distributions of tribal property which Congress has designated shall be "final and conclusive." The effect of this language is to make the Secretary's determination of eligibility conclusive on the facts and preclude court review. Stocky v. Wilbur, 58 F. (2d) 522 (C.A.D.C. 1932), although the Secretary is privileged to correct the rolls for mistake or fraud, giving notice and an opportunity to be heard, unless any changes in the roll after a certain date are prohibited by Congress. United States v. Fisher, 223 U.S. 95 (1912); Garfield v. Goldsby, 211 U.S. 249 (1908). The rolls in this group are final and conclusive only for the distribution of funds for which they were prepared.

    A third category of tribal rolls consists of those rare instances where Congress has provided for a final tribal roll for the complete distribution of all tribal property. Statutes authorizing such rolls contemplate the ending of tribal relations. Such rolls would be final for all tribal purposes, unless later legislation authorized a new enrollment or the re-establishment of tribal activities. Op. Solicitor, I.D., M. 27759, January 22, 1935. The Indian Reorganization Act and the Oklahoma Indian Welfare Act are such legislation.

    Most of the statutes listed by the Indian Office fall into the first category. On the basis of the language of the acts I would place the following in this class:

    The acts of March 3, 1891 (26 Stat. 1016), and March 3, 1891 (26 Stat. 1021), ratified agreements with the Citizen Potowatomi and Absentee Shawnee Indians which provided for the allotment of certain lands of these Indians and the payment to the allottees of certain treaty funds designated for making improvements on the allotments. These statutes assumed the making of a list of allottees, rather than directed ah making of such a list, and specified no finality except as to the date upon which the allotments are to be completed.

    The act of March 2, 1899 (25 Stat. 1013), provided for allotment of the Peoria and Miami Indians under the general allotment act according to the lists of members of the tribe furnished by the chiefs. This act was the subject of the decision in 12 L.D. 168 holding that the Secretary was not authorized to make new allotments to persons becoming members of the tribe after the date specified for the completion of the allotments but that the Secretary could make corrections in the allotment roll.

    The act of March 2, 1895 (28 Stat. 903), authorized distribution of treaty funds to the Indiana Miamis entitled to receive such funds. The authority for making a list of beneficiaries is implied rather than expressed.

    The act of April 21, 1904 (33 Stat. 194), ratified an agreement with the Turtle Mountain Indians for the cession of lands, the reservation of other lands, the allotment and opening of the reserved lands and the payment of a consideration to the tribe. This act did not provide for any tribal roll and any roll prepared by the Secretary would be effective only for the purpose of executing the
 



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act. This act, like most of the others, clearly recognized the continuance of the tribe as a functioning entity.

    The act of July 1, 1912 (37 Stat. 187), provided for the final division of a capitalized trust fund among the Winnebago Indians of each branch of the Winnebago Tribe, according to a special census to be prepared as of a certain date. This roll, designated by the statute as a special census, clearly relates only to the particular transaction of distributing the treaty funds due the tribe.

    The act of August 7, 1914 (38 Stat. 605), authorized the making of a roll of Bad River Indians not previously allotted, for the purpose of receiving allotments and certain proceeds from the timber on the allotments. This act by its own terms did not contemplate a complete tribal enrollment.

    The act of March 3, 1925 (43 Stat. 1102), provided for a per capita distribution of a certain sum to the Clallam Indians as consideration for their relinquishment of all claims, to be based upon an enrollment under the Secretary's direction. This was also an individual transaction.

    In the second category of tribal rolls may be placed the allotment rolls prepared for the Crow Tribe under the act of June 4, 1920 (41 Stat. 751), for the Fort Belknap Tribe under the act of March 3, 1921 (41 Stat. 1355), and for the Tongue River Tribe under the act of June 3, 1.926 (44 Stat. 690). The Crow act provides for the enrollment of several classes of Indians, which rolls shall be the "final allotment rolls" for the allotment of lands and distribution of the tribal funds, existing on the date of the act. The Fort Belknap act provides for a complete and final roll of Indians having rights on the reservation "which shall be conclusive and final evidence of the right ato an allotment." The Tongue River act authorizes the Secretary to prepare a complete roll to be the basis for allotting lands. Actually, only the Fort Belknap act specifies the legal effect of the roll as "final and conclusive," but the other acts imply such effect as they provide for the same type of departmental action. All three acts recognize the continuance of tribal activities and of tribal property, but there is no indication that the allotment rolls prepared under the act are to govern in the future use of such tribal property. I would place the Blackfeet tribal roll prepared under the 1919 act in this category as it provides for an allotment roll and for activities by the Federal Government similar to these provided for in the other three oases. However, since the roll was treated as a roll for distribution of all funds subsequent to the activities covered by the act, it must be placed in the third category.

    There is only one statute in the list prepared by the Indian Office which clearly comes by its own terms in the third category of tribal rolls. This is the act of July 1, 1902 (32 Stat. 636), which provides for the complete distribution of all tribal property of the Katrsas or Kaw Indians in Oklahoma. Under this act the Secretary is to prepare a roll to be the "legal membership" of the tribe and all lands and funds are to be divided among these members, as well as all funds that may be found due in the future. As a result of the act no tribal property is to remain, except the tribal cemetery. However, if the `tribe continues to exist in spite of this 1902 act, it would be privileged to reestablish a tribal organization under the Oklahoma Indian Welfare Act and to provide for a roll of tribal membership to govern all present-day activities.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


APPLICATION OF WISCONSIN
FISH AND GAME LAWS AND OTHER
CRIMINAL STATUTES TO INDIANS

M-31122                                                                                                                                                     May 28, 1941.

Synopsis of
Solicitor's Opinion

Re:

Whether the State of Wisconsin may enforce its fish and game laws and other criminal statutes against Indians for acts committed on lands purchased for them by the Federal Government without the consent of the State, including lands proclaimed an Indian reservation and those which have not been so proclaimed.
Held:
Lands purchased by the Federal Government for Indian use and set apart under the superintendence of the Government, whether proclaimed an Indian reservation or not, have the same status as Indian reservation, and, therefore, the State of Wisconsin cannot enforce its criminal laws, including its fish and game laws, against the Indians on such lands.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have referred to me for an opinion the question presented by the Indian Office whether the State of Wisconsin may enforce its fish and game laws and other criminal statutes against In-
 



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dians for acts committed on lands purchased for them by the Federal Government, including lands formally declared an Indian reservation under the Indian Reorganization Act and those which have not yet been so declared.

    The question arose because of the arrest of an Indian of the Sakaogon Indian Community in Wisconsin on lands purchased for the Community under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and declared a reservation under section 7 of that act. The arrest was made by a State game warden for violation of the State game laws and the Indian was fined by the Justice of the Peace. It is reported that State game wardens have entered this reservation at various times and searched the Indian homes.

    The argument advanced by the Justice of the Peace and the State Conservation Department is that the lands purchased for the Indians were purchased by the Federal Government without securing an enabling act from the State legislature and the permission of the county authorities and that therefore the State did not lose criminal jurisdiction of the lands purchased.

    The conclusion of the State authorities that State officers may arrest Indians within an Indian reservation for violation of the State law does not follow from the premise that the State did not lose criminal jurisdiction of the area because of the purchase of land by the Federal Government without the consent of the State. The Federal Government does not assert exclusive jurisdiction of the lands purchased for Indians (see United States v. McGowan, 302 U.S. 535 at 539), nor claim that the State lost sovereignty of the land. The position of the Government is that criminal jurisdiction over the lands remains in the State for all purposes except that the State cannot apply its laws to the Indians within the reservation without the sanction of Congress.

    Whether the Federal purpose relates to Indians or not, the ownership and use by the Federal Government of lands within a State, acquired without the consent of the State legislature, do not affect the jurisdiction of the State, except that the State cannot interfere with the Federal purpose for which the lands were acquired. See Surplus Trading Company v. Cook, 281 U.S. 647 at 650, 651. As stated in that case, a typical illustration of this situation is the "usual Indian reservation set apart within a State as a place where the United States may care for its Indian wards and lead them into habits and ways of civilized life." The civil and criminal laws of the State were said to apply to such areas except in relation to the Indians therein.

    Over Indian activities within Indian reservations the Federal Government does claim jurisdiction exclusive of the State. A group, of Indians within an Indian reservation created for them by the United States is a "dependent Indian community" over which the United States has jurisdiction to the exclusion of the State. Kagama v. United States, 118 U.S. 375; United States v. Sandoval, 231 U.S. 28; United States v. Quiver, 241 U.S. 605; United States v. McGowan, supra.

    One of the most thorough judicial analyses of the exclusive nature of Federal jurisdiction over Indians on Indian reservations as it relates to the criminal law of the State was made in 1931 by the Supreme Court of Wisconsin. State v. Rufus, 205 Wis. 317, 237 N.W. 67. That case held that the criminal law of Wisconsin did not apply to Indians on the Bad River Reservation, and reversed an 1879 Wisconsin case to the contrary. The argument was based upon the uniform recognition by Congress and the Federal courts that Indians on reservations are the wards of the Government subject to Federal supervision, which supervision can admit no interference or supplementation by State action.

    This principle was applied specifically to the Wisconsin game laws by the Federal District Court when Wisconsin game officers sought to enforce the State laws against Indians on the same reservation. In re Blackbird, 109 Fed. 139 (D.C. Wis., 1901). The court said (at page 143) that the "true and unimpeachable ground" of Federal jurisdiction over Indians placed on reservations in the States is that they are wards of the Government and, Congress having assumed to punish for criminal offenses, the jurisdiction is exclusive. Identical rulings have been made by other Federal courts. In re Lincoln, 129 Fed. 247 (D.C.N.D. Cal., 1904); United States v. Hamilton, 233 Fed. 685 (W.D.N.Y., 1915). Both the Rufus and the Blackbird cases cite the fact that State jurisdiction over the reservation is complete except in matters touching the Federal relationship to the Indians. That State criminal laws apply to white persons within the reservation is well attested. United States v. McBratney, 104 U.S. 621; Draper v. United States, 164 U.S. 240.

    These rules of jurisdiction are so well established that the only present question is whether a difference in the conclusion is necessitated by the fact that the lands were purchased for the Indians and were not set apart by treaty, statute, or Executive order from the original Indian country or from the public domain.

    This office considered a similar question in the Solicitor's Opinion of September 4, 1940, M. 30920, which held that State officers could not enter an Indian reservation in Florida for the purpose of removing deer thought to be infested with ticks.
 



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The lands of the Florida reservation were purchased under congressional appropriations providing merely for the purchase of lands for permanent homes for the Seminole Indians. Other lands recently purchased for the reservation under the Indian Reorganization Act had not yet been declared a reservation.

    In that opinion I referred to the effect of the McGowan decision, and said of that case:

    "The Supreme Court swept aside distinctions based on the manner of acquisition of the land and on its previous character, saying that what must be regarded as Indian country must be considered in relation to the changes which have taken place, that the protection of the United States is extended over all dependent Indian communities within its borders, that the fundamental consideration of both Congress and the Department of the Interior in establishing this Colony was the protection of a dependent people, that the Indians in this Colony were afforded the same protection as that given Indians in other settlements known as reservations, that it is immaterial whether Congress designates a settlement as a reservation or a colony, that land may be an Indian reservation simply because it is set apart for the use of the Indians under the superintendence of the Government, as occurred in the case of the Reno Indian Colony, and that, while the State may retain sovereignty over the territory its laws cannot conflict with Federal enactments passed to protect and guard its Indian wards.

    "This decision was foundation for my memorandum to the Assistant Secretary of February 17, 1939, advising that lands purchased under the Indian Reorganization Act but not yet proclaimed a reservation may nevertheless be treated as a reservation and that section 7 of that act contemplated a formal declaration of status rather than a change in status of the lands. The fact that the newly purchased lands in the Hendry County reservation have not been declared a reservation would not seem to be significant or place them in a different category from any other lands of the reservation. All the lands have been set apart for the use of the Indians, under the superintendence of the Government."

    The McGowan decision is a culmination of the uniform line of Federal decisions, rehearsed in the Rufus and Blackbird cases, which rest the exclusive nature of Federal jurisdiction over the Indians, not upon the original title to the Indian reservation, but upon the existence of a dependent Indian community in an area established by the Federal Government for their protection.

    The creation of an Indian reservation by purchase is not a new procedure. Congress has frequently authorized the purchase of land for Indian use, usually designating the specific tribe, as in the Florida case, but sometimes providing a general authorization as in the Indian Reorganization Act. Congress has not, however, differentiated between the status of this type of reservation and other types. They have all been subsumed under the general term "Indian reservation" and treated as subject to the same laws. Because the original general allotment act of February 8, 1887 (24 Stat. 388), which was passed before the practice of purchasing lands for Indians became necessary, related only to treaty, statutory, and Executive order reservations, setting apart lands for Indian use, the act of February 14, 1923 (42 Stat. 1246), was passed to extend the provisions of the act to all lands purchased by authority of Congress for the use of any Indian or Indian tribe. This act demonstrated the assimilation of the purchased lands into the status of other reservation lands.

    I, therefore, conclude that the statutes and judicial decisions relating to the application of State criminal law to Indians on Indian reservations, apply to lands set apart for Indians by the Federal Government by purchase, in the same manner as to other reservations, and that, therefore, the question presented by the Indian office should be answered in the negative.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: May 28, 1941.
OSCAR L. CHAPMAN, Assistant Secretary.

TRIBAL COUNCIL POWER TO EXECUTE
LEASES WITHOUT PUBLIC AUCTION

 

June 6, 1941.


Memorandum for the Assistant Secretary:

    I am transmitting herewith for your approval, with my endorsement, an oil lease between the Blackfeet Tribe and a member of the tribe originally recommended for approval by the Assistant Commissioner of Indian Affairs.

    Since this recommendation was made, this office has received a memorandum from the Assistant Commissioner dated March 27 transmitting a protest against the approval of this lease signed by certain delegates of the Blackfeet Tribe, and a fur-
 



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ther communication of Assistant Commissioner Zimmerman dated April 14 transmitting a further protest by these delegates. A hearing was accorded to the protesting delegates, in the course of which several legal questions as to the propriety of the proposed lease were raised.

    I have deemed it my duty to consider these questions and to advise you thereon.

    The first objection raised to the approval of the lease is that the council was without authority to execute this lease under provisions of the tribal constitution and charter permitting leasing of tribal lands to members of the tribe for the reason that the lands here in question are of a peculiar status, in that the surface of the land has been allotted to members of the tribe while the tribe has retained rights to oil and other minerals. The argument is raised that because of this situation the lands are not "tribal lands" within the meaning of the provisions of the tribal charter (section 5 (b)) and the tribal constitution (Article VII, section 3), authorizing the tribal council to lease "tribal lands."

There are two considerations which prevent acceptance of this view. In the first place, the term "tribal lands" is consistently used in the Blackfeet constitution and charter to include lands in which the tribe has a real property interest, even though the interest be less than a complete fee. Section 1 (e) of Article VI of ,the Blackfeet constitution empowers the tribal council, among other things,

    "To manage all economic affairs and enterprises of the Blackfeet Reservation, including all oil leases on tribal lands and the disposition of all oil royalties from tribal lands, in accordance with the terms of a charter to be issued to the Blackfeet Tribe by the Secretary of the Interior."
It is clear that no attempt was made by this language to abolish the power which had always been vested in the Blackfeet Tribe to exercise a measure of control over oil leases on lands the surface of which had been allotted to members of the tribe with a reservation of mineral rights to the tribe itself.

    If, however, :there were any doubt as to the practical construction which has been given to the phrase "tribal lands" by the tribe, that doubt would have to be resolved by the decision of the Supreme Court in the case of British-American Oil Producing Co. v. Board of Equalization of Montana, 299 U.S. 159 (1939), holding that lands of the character here considered are "tribal lands" within the meaning of Acts of Congress governing the leasing of "tribal lands". In that case the Court declared:

    "We turn, therefore, to the legislation bearing on the leasing for mining purposes of tribal lands in such a reservation. We say 'tribal lands' because (1) here the mineral deposits did not pass to the allottees but were reserved for the benefit of the tribe, and (2) other and distinct legislation controls the leasing for mining purposes of lands of individual allottees where there is no reservation of the mineral deposits. (p. 163).

    "The issue of the trust patents containing, as the statute requires, a reservation for the benefit of the tribe of all minerals, including oil and gas, in or under the allotted land, operates to carve out of such land and create a distinct estate consisting of the minerals. This estate is in itself land, and, being reserved for the benefit of the tribe, it is tribal land, and is unallotted.

    "What has been said, unless deflected by matters which remain to be noticed, shows, we think, that the reserved mineral estate which is the subject of the lease comes in all particulars within the terms of the general provisions before quoted, and that the lease should be regarded as authorized by that legislation and given under it." (pp. 164-165)

    The foregoing considerations compel me to the view that in determining what lands are "tribal lands" with respect to tribal oil and gas leases no distinction can fairly be drawn between lands where the surface has been allotted to members of the tribe and lands where the surface has been reserved to the tribe itself. Both classes of land must be treated alike and the validity or invalidity of oil leases executed under the tribal constitution and charter must be treated as a single problem rather than as two separate problems.

    Turning then to the second and more important of the legal objections raised to the proposed lease, we find the argument put forward that the Blackfeet Tribal Council was without authority to negotiate a lease except by public auction. In order to determine the validity of this objection, we must examine the governing statute. That statute is the act of May 11, 1938 (52 Stat. 347, 25 U.S.C.A. 396a-396f. In general the statute provides that tribal oil and gas leases shall be offered for sale at auction. A comprehensive proviso to this statute, however, declares:

  "Provided, That the foregoing provisions shall in no manner restrict the right of tribes




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organized and incorporated under sections 476 and 477 of this title, to lease lands for mining purposes as therein provided and in accordance with the provisions of any constitution and charter adopted by any Indian tribe pursuant to the Act of June 18, 1934." (Sec. 2, 25 U.S.C.A. 396b),

    In view of this proviso, it becomes necessary to turn to the tribal charter and constitution in order to determine whether these instruments authorized an oil lease not made at public auction.

    The pertinent provisions of the Blackfeet Tribal Charter declare:

"5. The Tribe, subject to any restrictions contained in the Constitution and laws of the United States, or in the Constitution and By laws of the said Tribe, shall have the following corporate powers, in addition to all powers already conferred or guaranteed by the Tribal Constitution and By-laws. * * *

"(b) To purchase, take by gift, bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, subject to the following limitations:

            *                                *                                *                                *                                *

2. No leases or permits (which terms shall not include land assignments to members of the Tribe) or timber sale contracts covering any land or interests in land now or hereafter held by the Tribe within the boundaries of the Blackfeet Indian Reservation shall be made by the Tribe for a longer term than ten years, and all such leases, permits, or contracts must be approved by the Secretary of the Interior or by his duly authorized representative; but oil and gas leases, or any leases requiring substantial improvements of the land may be made for longer periods when authorized by law."

These provisions in so far as they authorize the execution of oil and gas leases by the tribal council do not impose any restriction as to the method by which such leases shall be made. There is no requirement in the charter, or in the tribal constitution that such leases shall be made by public auction. It may be argued that such a limitation is incorporated into the tribal charter by reference, by the force of the language above cited specifying that powers of the tribe shall be "subject to any restrictions contained in the constitution and laws of the United States." The argument runs: The charter is to be read as of the time of its ratification (August 15, 1936). At that time the only lawful method of executing a tribal oil lease was by public auction (Act of May 29, 1924, 43 Stat. 244, 25 U.S.C. 398). The charter did not expressly modify this method of making leases. Therefore, it is argued, the method was incorporated under the terms of the language above quoted and became in effect part of the charter. If this was the case, then nothing in the 1938 act modifies that situation and the tribal council is still unable to act in the issuance of oil leases except through the traditional method of public auction.

    This argument appears to me to have two fatal weaknesses. In the first place, the statutory requirement of lease by auction which was in force in 1936 was not a limitation upon the power of tribal councils but was rather a limitation upon the power of the Secretary of the Interior to execute oil leases covering tribal lands. Therefore it cannot accurately be said that the tribal charter laid upon the council a limitation as to method of negotiation which Congress had not laid upon tribal councils. A second weakness in this argument is that it fails to recognize that in 1936 the law relating to Secretarial leases of tribal lands (Act of May 29, 1924, 43 Stat. 244, 25 U.S.C. 398) had already been modified by section 17 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 988, 25 U.S.C.A. 477). Under that provision, incorporated tribes were granted a general power to dispose of tribal property by lease. The tribal charter then, in so far as it purported to confer upon the tribal council new leasing powers not formerly enjoyed, would defeat its own purpose if it incorporated by reference statutes which had been modified by the act of June 18, 1934. I am constrained, therefore, to hold that the tribal charter in this case granted a general power to lease without reference to the auction restrictions contained in the act of May 29, 1924. The tribal charter having conferred such a general power, the tribal council was thereafter authorized to execute, as it did execute, a lease to a member of the tribe negotiated without public auction.

    Having reached the conclusion that the tribal council was legally authorized to execute the lease which it did in fact execute and which is now before the Department for approval, I find it unnecessary to consider at this time the further question whether the tribal council was in fact under a duty, by reason of the provisions of the tribal constitution and charter, to grant a preference to members of the tribe before making any lease to a nonmember. This question involves issues of considerable complexity. I shall be glad to give further consideration to this question, if necessary. I
 



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do not, however, feel justified in delaying a disposition of the present case pending the determination of that question, since in any event it is clear, in my opinion, that the Blackfeet Council had power to execute the lease which it did execute in this case.

    There is no question of a rescission by the tribal council of the approval which it has given to the lease now in question. What has happened is simply the common situation of an outvoted minority on a tribal council appealing to this office to support its minority position. The three tribal delegates who presented their views before this office comprised two members who had voted against approval of this lease and one member who had refrained from voting. According to their account, the original vote in the 13-member council was approximately seven or eight in favor of the lease and three opposed. There has been no rescission of its action by the Blackfeet council. The equities of the case call for approval of the pending lease.

    Since the agreement of the tribal council as lessor and the lessee, on the terms of this lease, and the execution of the lease, subject to departmental approval, favorable oil developments have occurred in nearby territory. Had the developments in nearby territory been unfavorable and had the lessee, or a minority group in a lessee association, asked us to release them from the obligations of their contract because of such unfavorable developments we would not be justified in doing so. We would be equally unjustified, I think, in disapproving a lease at the request of the lessor or a minority group thereof, where favorable external developments have occurred. Having made their contract, lessor and lessee alike should be held to its terms.

    If, as the tribal delegates assert, the execution of oil leases to tribal members without public auction is giving rise to tribal dissatisfaction then it is, of course, within the power of the tribe to amend its constitution so as to forbid such leases. In my opinion this Department ought to approve such an amendment if it is adopted by the Indians. Furthermore, even in the absence of any such amendment, the tribal council, as was suggested by Acting Solicitor Kirgis in his memorandum of March 16, 1939, "might require bidding upon oil and gas leases in order to estimate a reasonable bonus and nevertheless give preference to its own members in the securing of the lease." It is possible that some such alteration of procedure would permit the tribe to secure the advantages of competitive bidding while continuing to maintain the principle of Indian preference. At least, these are matters that should have further consideration by the Blackfeet Council.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.


Approved: June 9, 1941.
OSCAR L. CHAPMAN, Assistant Secretary.

AUTHORITY OF THE SECRETARY
OR SHOSHONE TRIBE TO AUTHORIZE
DEFERMENT OF REIMBURSEMENT OF
THE SHOSHONE JUDGMENT FUND

M-31324                                                                                                                                                      June 11, 1941.

Synopsis
Solicitor's Opinion

Re:

Authority of the Secretary of the Interior or the Shoshone Tribe to authorize deferment of reimbursement of the Shoshone Judgment Fund, used for land purchase for the Shoshone and Arapaho Tribes under the act of July 27, 1939 (53 Stat. 1128), by applying joint funds of the Shoshone and Arapaho Tribes to other purposes than reimbursement.
Held:
Neither the Secretary of the Interior nor the Shoshone Tribe may authorize deferment of reimbursement from the joint funds of the Shoshone and Arapaho Tribes of so much of the Shoshone Judgment Fund as was used for land purchase for the Shoshone and Arapaho Tribes under the act of July 27, 1939 (53 Stat. 1128), since the act requires prompt reimbursement.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    A question in connection with the reimbursement of the Shoshone Judgment Fund pursuant to section 6 of the act of July 27, 1939 (53 Stat. 1128), has been referred to me for an opinion. The question is whether any discretion rests with you or with the Shoshone Tribe of the Wind River Reservation to apply any part of the joint funds of the Shoshone and Arapaho Tribes of that reservation, or the accruals thereto, to any purpose other than the reimbursement to the Shoshone Judgment Fund of the amount expended in the purchase of land for the benefit of both tribes, until complete reimbursement of the sum expended has been made.
 



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OPINIONS OF THE SOLICITOR

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    Section 3 of the act of July 27, 1939, makes available for land purchase, upon the request of the tribe and with the approval of the Secretary of the Interior, a part of the Shoshone Judgment Fund not to exceed one million dollars. Section 6 of that act provides that expenditures from this fund

"shall be reimbursed with interest at 4 percentum per annum to the Shoshone Tribe of Indians of the Wind River Reservation from joint funds to the credit of the Shoshone and Arapaho Tribes of the Wind River Reservation or from future accruals to said joint fund, as and when said funds accrue."
The section also provides that lands purchased shall be taken in trust for both of the tribes of the reservation and shall receive the approval of both tribal councils.

    Both councils have now, by a resolution of May 8, 1941, requested a per capita payment of $12 a head to the Indians of both tribes out of the available balance of the joint funds designated "Proceeds of Labor, Shoshone and Arapaho Indians, Wyoming." The resolution then states that the Shoshone Tribe defers the application of these funds to the reimbursement of the Shoshone Judgment Fund to the extent of the amount required to make the per capita payment. The Shoshone Indians, supported by the attorneys for the tribe, assert that they are privileged to waive the provisions of the statute for reimbursement of the judgment fund since it is a statute enacted for their benefit.

    It is my opinion that there is no authority to pay out for another purpose the joint funds of the two tribes so long as expenditures from the Shoshone Judgment Fund have not been reimbursed. My reason is that the statutory direction for reimbursement is mandatory. The statute provides that expenditures "shall be reimbursed with interest". This makes reimbursement obligatory and a matter of the promptest attention, since delay in reimbursement would create an interest charge against the joint funds of the two tribes and thus be inconsistent with the proper guardianship of the funds. The necessity for prompt reimbursement is emphasized in the statute which provides that reimbursement out of accruals to the joint funds shall be paid "as and when said funds accrue".

    Since the intent of the statute is to require reimbursement from the joint funds as soon as the need exists and the funds are available, neither the Shoshone Tribe nor the Shoshone and Arapaho Tribes together could authorize a diversion of the joint funds, when the need for reimbursement existed, or otherwise waive the statutory requirement.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.


Approved: June 11, 1941.
OSCAR L. CHAPMAN, Assistant Secretary.

AGREEMENT BETWEEN CITY OF PHOENIX
AND U.S. ON BEHALF OF FT. MCDOWELL--
TECHNICAL QUESTIONS


June 18, 1941.


Memorandum for the Commissioner of Indian Affairs:

    I am returning the attached letter to Geraint Humpherys, District Counsel, concerning the proposed agreement between the City of Phoenix and the United States on behalf of the Ft. McDowell Indian Community for reconsideration of certain points made in the letter.

    The first condition placed on the approval of the form of the agreement is that a provision be inserted requiring the payment of all income under the agreement to the tribal treasurer for deposit by him in the tribal depository. If the agreement were executed by the tribe under its powers in its constitution and charter, I would have no doubt that the proper course would be payment of the income to the tribal treasurer. However, this agreement is entered into by the United States on behalf of the tribe and executed by the superintendent. The payments are for the use of the land under a permit to be granted by the Secretary of the Interior under authority of the act of February 15, 1901. I consider it doubtful whether the Department can authorize payments accruing from such a permit and under such an agreement to be made to the tribal treasurer. In view of the urgency in the consideration of this agreement, I propose that no provision for payment to the tribal treasurer be required unless your office recommends further study by this office of the authority for such action.

    However, the provisions now in the contract for making payments are not adequate and uniform. I suggest that each paragraph relating to the payment of funds be modified to provide for payment to the superintendent on behalf of the Ft. McDowell Mohave-Apache Indian Community.

    The second paragraph of the letter suggests that there is no conflict between section 5 (b) 2 of the
 



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DEPARTMENT OF THE INTERIOR

JUNE 18, 1941

tribal charter and the procedure for issuing the revocable permit under the 1901 act because such permits do not convey any interest in land. The true reason why such conflict does not exist is that section 5 (b) 2 applies to contracts "made by the Community" under the charter while the permit is made by the Secretary of the Interior under express statute. The fact that a permit conveys no interest in land is immaterial as the community council must in any case consent to the permit as a disposition of land under Article IV, section 1 (a), of the constitution. I recommend that the latter part of the second paragraph beginning "which act" be omitted and that the following sentence be inserted:

    "Since the permit will be granted by the Secretary of the Interior, the limitations on tribal action in section 5 (b) 2 of the tribal charter do not apply."
    The agreement provides no place for indicating tribal consent or authorization for its execution. I suggest that the letter require the inclusion in the agreement of the following clause at the end of the recitation of "whereas" clauses:
    "Whereas, the Council of the Ft. McDowell Mohave-Apache Indian Community has consented to this agreement and authorized its execution by the superintendent on behalf of the tribe in a resolution dated __________."
    The space for signature of the agreement does not conform with the terms of the agreement since the signing party is shown to be the United States of America instead of the United States of America for and on behalf of the Ft. McDowell Mohave-Apache Indian Community.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.
INDIAN-MADE STORE ADVERTISEMENT
REGARDING MOCCASINS MANUFACTURED
BY SHOE COMPANY-UNFAIR TRADE
PRACTICES QUESTION


June 21, 1941.


 Memorandum for Mr. d'Harnoncourt,
General Manager, Indian Arts and Crafts Board.

    Consideration has been given to the proposed notice to Abram Davega, vice president of the Davega Stores, Inc., New York City, concerning the advertisement for sale as "Indian-made" and "Wigwam Indian-made" of a leather moccasin manufactured by the Moose River Shoe Company of Old Town, Maine.

    There is enclosed for your information a memorandum dated June 16 in which the conclusion is reached that the corporation, as well as its vice president, has not only violated section 6 of the act of August 27, 1935 (49 Stat. 891), but that the manner in which the moccasins have been advertised constitutes an unfair trade practice prohibited by section 45, title 15, United States Code. I am in agreement with these conclusions and suggest separate notices by registered mail with return receipt requested to Mr. Davega and to the corporation. Drafts of notices have been prepared and are submitted for your consideration.

                                                                                                                                                    FELIX S. COHEN,

Acting Solicitor.


DEPARTMENTAL REVIEW OF TRIBAL
ORDINANCES

 

July 28, 1941.


Memorandum for the Commissioner of Indian Affairs:

    The consideration given to the attached two Lac du Flambeau ordinances was so insufficient both in procedure and in substance that the Chief of the Indian Law Division of this office has called it to my attention. One ordinance attempts to make it unlawful under State law for nonmembers of the Lac du Flambeau Band to spear fish or to hunt game at any time within the reservation. The other ordinance authorizes State officials to arrest offenders against the ordinance on the reservation and to
prosecute them in State courts. The proposed letter to the President of the Tribal Council states that no action is necessary on the first ordinance and that there is no cause for rescission of the second. Both of these ordinances should have been rescinded, in my opinion.

    These ordinances were received in this office on July 21, being one day after the expiration of the review period. Since the ordinances were adopted by the council on April 21, the time limit expired on July 20. This fact was apparently not appreciated in the Indian Office, since the deadline indicated on the "special" tag was July 28, being 90 days from the approval by the superintendent. The provision for a 90-day review period in the Lac du Flambeau Constitution is the standard form which
 



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OPINIONS OF THE SOLICITOR

JULY 30, 1941

uniformly provides that the review period extends from the date of enactment.

    This handling of these ordinances is disappointing after the number of years of experience in the review of ordinances and after the repeated requests from this office and from the Assistant Secretary asking that ordinances reach the Department a reasonable time before the expiration of the review period. I call your attention particularly to the memorandum from the Assistant Secretary on this subject of May 15, 1940, and the recent memorandum from Mr. Flanery on July 9, 1941, in which he asks for an allowance of 10 days, at least, for review of an ordinance in the Department. It appears to be essential to devise some method by which reasonable review may be permitted the Department. My suggestion would be that the ordinance be marked "special" at the time of its arrival in the Indian Office and that not only the date of the expiration of the review period be indicated but also the latest date for consideration of the ordinance in the Indian Office.

    As to the merits of these ordinances, it is plain that they attempt to create an offense under State law. Both ordinances are, therefore, beyond the power of the tribal council, since the council cannot enact laws for the State. Moreover, the first ordinance is technically bad for lack of definition of the punishment, for it provides only that an offender shall be punished under chapter 29 of the Wisconsin Statutes. This chapter, in the 1939 compilation, contains 100 subdivisions. None of these subdivisions is applicable, since the offense defined by the council is not an offense under State law.

    There are several ways by which the tribal council can accomplish much of its apparent objective. One way is to make its own law prohibiting fishing and hunting by nonmembers, to be enforced through removal of the offender from the restricted lands of the reservation. If the offender is also violating State law, as by fishing or hunting out of season, the offender may also be turned over to the State authorities for prosecution under State law, as indicated in the Law and Order Regulations (25 CFR 161.2). The tribal council may also invite the State officers to enforce the existing State laws more rigidly on the reservation against nonmembers, and they may petition the legislature to prohibit fishing and hunting by white persons within the reservation, in order that a complete prohibition may be enforced by State law. Furthermore, the tribal council may take advantage of the State law penalizing as a criminal trespass the hunting on privately owned lands which are posted by the owner in the manner provided in section 348.386 of the 1939 Statutes. The tribal council may provide for the posting of tribal lands against hunting, in the manner specified by the statute, and, with the permission of the individual owners, allotted land could also be so posted. Thereafter, if nonmembers hunted on such lands, they could be prosecuted in the State courts under the statute referred to.

    While the ordinances cannot be rescinded, the Department can urge the tribal council to repeal the ordinances on the grounds that they are ineffective and can point out to the council the type of possible actions which I have indicated. Any ordinances adopted to prohibit nonmembers from fishing or hunting within "the reservation under pain of removal from the Indian lands would be adopted under subsection (j) of section 1 of Article VI of the constitution. All ordinances which the tribal council may adopt, placing restrictions and obligations upon nonmembers, are, under the constitution, subject to review by the Department.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.


APPLICATION OF STATE INCOME
TAX LAWS TO INDIAN EMPLOYEE
OF FEDERAL GOVERNMENT

July 30, 1941.

Syllabus

Re:

Applicability of the State income tax law to the compensation received from the Federal Government by Indian employees residing on Indian reservations.
Held:
(1) The Public Salary Tax Act of April 12, 1939 (53 Stat. 574) does not constitute consent to the application of State income tax laws to the compensation of Federal employees who are Indians residing on Indian reservations as that law consents to taxation by "any duly constituted taxing authority having jurisdiction to tax such compensation," which authority in the case of such Indians is not the State but the tribe.

    (2) The theory of recent decisions of the Supreme Court that the taxation by the States of the compensation of Federal employees creates no interferences with or burden upon the Federal Government is not applicable to the taxation by the States of the Federal compensation to Indian employees on Indian reservations, whose em-




1062

DEPARTMENT OF THE INTERIOR

JULY 30, 1941

ployment is part of a Federal purpose of Indian advancement.

Memorandum for the Commissioner of Indian Affairs:

    Reference is made to Assistant Commissioner Zimmerman's letter to William A. Brophy, Special Attorney for the Pueblo Indians, dated December 19, 1940, concerning the question whether the State of Arizona may subject to its income tax statute income which Indians residing on Indian reservations receive from, employment by the Federal Government. This problem presents three questions:

1. The taxation by the several States of the income of Federal employees.

2. The taxation by the several States of the income of Indians residing on Indian reservations.

3. The taxation by the several States of the salary received by Indians residing on Indian reservations from the Federal Government.

    1. The Public Salary Tax Act of April 12, 1939 (53 Stat. 574), provides in section 4 as follows:
    "The United States hereby consents to the taxation of compensation, received after December 31, 1938, for personal service as an officer or employee of the United States, any Territory or possession or political subdivision thereof, the District of Columbia, or any agency or instrumentality of any one or more of the foregoing, by any duly constituted taxing authority having jurisdiction to tax such compensation, if such taxation does not discriminate against such officer or employee because of the source of such compensation."
Pursuant to that provision, an exemption can no longer be claimed for salary of Federal employees on the mere basis of such employment by the Federal Government.

    2. The power of the several States to tax Indians depends on the extent of the States' general jurisdiction over such Indians. State laws are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. (See Worcester v. Georgia, 6 Pet. 515 (1832); United States v. Kagama, 118 U.S. 375 (1886).) It follows that Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the States by act of Congress. (See Surplus Trading Co. v. Cook, 281 U.S. 647, 650; Handbook of Federal Indian Law, vol. IV, ch. 13, sec. 1, p. 1.)

    3. As there are no Federal statutes specifically authorizing the several States to tax the income of such Indians, the remaining question is whether the Public Salary Tax Act of 1939 constitutes such consent of Congress in the case of Indians employed by the Federal Government. In my opinion, both the wording of the act and its intent lead to the conclusion that it does not subject to State taxation the income of Indians on Indian reservations received from the Federal Government or any agency thereof.

    It may be assumed that the designation in the act of "an officer or employee of the United States" is broad enough to cover any officer or employee, including an Indian one. This would be consistent with the opinion of the Supreme Court in Superintendent v. Commissioner, 295 U.S. 418, holding that a Federal internal revenue measure applying to all persons includes Indians; However, the act subjects the compensation of employees to taxation, not by the States, specifically, but by any "taxing authority having jurisdiction to tax such compensation." This must mean the taxing agency tihich would have the requisite jurisdiction to tax the income of the individual but for the historic judicial exemption of the income of Government employees.

    There is no doubt that the State is a "taxing authority having jurisdiction to tax" the compensation of white persons on Indian reservations as such persons and their property are subject to State law, including State tax laws. Thomas v. Gay, 169 U.S. 264. The result of the 1939 act is that the State may tax the income from the Federal Government of white employees on Indian reservations. The State is also a taxing authority having jurisdiction to tax the income of Indians not on Indian reservations; United States v. Porter, 22 F. (2d) 365 (C.C.A. 9th, 1927). However, the taxing authority having jurisdiction to tax the income of Indians on Indian reservations is not the State but the tribe. The authority of the tribe to levy taxes upon members has been recognized in many tribal constitutions and decisions of this office. 55 I.D. 46; Memo. Sol. I.D., February 17, 1939. The Public Salary Tax act serves to remove any objection to a tribal income tax on a member on the ground his income is derived from the Federal Government.

    My conclusion also finds support in the intent of the act, as shown by the circumstances surrounding its passage. In two cases handed down March 27, 1939 the Supreme Court held that a State conld tax the compensation of a Federal employee, other-
 



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OPINIONS OF THE SOLICITOR

AUGUST 7, 1941

wise subject to the jurisdiction of the State: Graves v. New York ex rel. O'Keefe, 306 U.S. 466; Utah State Tax Commission v. Van Cott, 306 U.S. 511. These decisions enlarged a holding in 1938 that the United States could tax the salary of an employee of the Port of New York Authority. Helvering v. Gerhardt, 304 U.S. 405. The theory of these decisions was that, unless Congress indicated otherwise, a tax by the State upon the salary of Federal employees had no significant effect on the Federal Government and hence laid no unconstitutional burden on the Government. In order to show its
consent to this theory and to provide mutuality in removing exemptions, Congress passed the Public Salary Tax Act which provided for taxing State employees aswell as permitting the States to tax Federal employees.

    The theory of the decisions and the purpose of the act do not, however, apply to the employment of Indians on reservations by the Government. Since the act of June 30, 1834 (4 Stat. 735), Congress has passed numerous special acts and placed provisions in treaties seeking to foster the employment of Indians in the Indian Service as a means of advancing the material and intellectual well being of the Indian and his tribe. The income from such employment is more analogous to the income from property furnished by the Government or under its protection than to income of Federal employees generally, in that its taxation
by the State is taxation of a means used by the Government to effect a Federal purpose. In the absence of express congressional direction, therefore, I cannot hold such income to be subject to State taxation.

    It is true that the constitution of the State of Arizona prohibits in section 5 of its article XX the taxation of "any lands or other property within an Indian reservation owned or held by any Indian." Thus it is mute on the question of imposing a tax on Indiana residing on a reservation on the basis of their income, which tax, while not in my opinion properly speaking an excise tax, is not a tax on property either. Yet, it is clear that there is no need for an express exemption in the constitution or the laws of the State in order to preclude it from taxing an Indian residing on a reservation on the basis of his income from work therein.

    I therefore conclude that the State of Arizona has no power to subject Indians residing on an Indian reservation located within that State to the Arizona income tax statutes by reason of the salary which such Indians receive as employees of the Federal Government.

                                                                                                                                                    FELIX S. COHEN,

Acting Solicitor.


YANKTON INDIAN RESERVATION--
APPLICATION OF ACT OF JUNE 27,
1934 RE LIQUOR

 

August 7, 1941.


Syllabus

Re:

Application of the act of June 27, 1934 (48 Stat. 1245), to the Yankton Indian Reservation.
Held:
1. The act of June 27, 1934 (48 Stat. 1245) removing the operation of the Indian liquor laws from former Indian lands applies only to such lands outside the exterior boundaries of Indian reservations.

2. Since the cession agreement of 1892 with the Yankton Indians, ratified in 1894 (28 Stat. 314), did not cede and separate from the reservation a designated part, the scattered unallotted lands ceded by that agreement and alienated fee patented lands remain within the exterior boundaries of the reservation and are, therefore, not released froms the Indian liquor laws by the 1934 act.

Memorandum for the Commissioner of Indian Affairs:

    A question of the proper interpretation of the act of June 27, 1934, (48 Stat. 1245), modifying the operation of the Indian liquor laws on former Indian lands, and its application to the Yankton Indian Reservations was raised by the attached letter to the superintendent of the Rosebud Agency. The purport of that letter was to authorize Dr. Duggan, under the authority of the 1934 act, to introduce liquor into the town of Wagner within the original boundaries of the Yankton Reservation without regard to the Indian liquor laws. Because of the importance of this ruling in determining the proper application of the 1934 act to the Yankton and similar reservations, the letter to the superintendent was held for an opportunity for full consideration, with the understanding that there was no immediate necessity for acting upon the particular case discussed in the letter.

    The question is whether the former Indian lands within the boundaries of the Yankton Indian Reservation, as it existed at the time of the agreement between the United States and the Yankton Sioux Indians of December 31, 1892, ratified in 1894 (28 Stat. 314), are relieved from the prohibitions of the Indian liquor laws by the 1934 act. The agreement of 1897 ceded to the United States the surplus unallotted lands within the Yankton
 



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DEPARTMENT OF THE INTERIOR

AUGUST 7, 1941

Reservation, as created by the treaty of April 19, 1858 (11 Stat. 7143). Article XVII of the agreement contained the following prohibition on the sale of liquor on any class of lands within the reservation:

    "No intoxicating liquors nor other intoxicants shall ever be sold or given away upon any of the lands by this agreement ceded or sold to the United States, nor upon any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the treaty between the said Indians and the United States, dated April 19th, 1858, and as afterwards surveyed and set off to the said Indians * * *."
The authority of Congress to make such a prohibition and its continuing application to the surplus ceded lands of the reservation were upheld in the case of Perrin v. United States, 232 U.S. 478 (1914), and no further question as to the application of the liquor laws to the Yankton Reservation arose until the passage of the 1934 act.

    The precise wording of the 1934 act is important. It provides:

    "The special Indian liquor laws shall not apply to former Indian lands now outside of any existing Indian reservation in any case where the land is no longer held by Indians under trust patents or under any other form of deed or patent which contains restrictions against alienation without the consent of some official of the United States Government: Provided, however, That nothing in this section shall be construed to discontinue or repeal the provisions of the Indian liquor laws which prohibit the sale, gift, barter, exchange, or other disposition of beer, wine, and other liquors to Indians of the classes set forth in the act of January 30, 1897 (29 Stat: L. 506), and section 241 of this title."
In order, therefore, to affirm that the town of Wagner is no longer covered by the liquor laws, it is necessary to hold that the town and other ceded lands are outside an existing Indian reservation. The letter to the superintendent makes this holding in the final paragraph, which reads as follows:
    "In view of all the circumstances we believe that a liberal view of the said act of June 27, 1934 would justify our ruling that said act modified the provisions of said Art. XVII of the Agreement of December 31, 1892 so as to release the fee-patented lands of said area from the necessity of obtaining an Indian country permit for the introduction and possession of liquor therein, and that this ruling will be considered as extending to fee-patented lands outside the specific agency or school reserves even though entirely surrounded by trust allotments, or trust allotments together with one or more of said reserves. We therefore so rule and accordingly modify the view expressed on our letter of March 1, 1937."
The circumstances which influenced the Indian Office decision are the large amount of reservation land which has been fee patented and the existence of towns within the reservation. These circumstances may be persuasive in reaching an administrative conclusion, but I cannot agree with the conclusion as a matter of law.

    The agreement of 1892 provided for the sale of such lands within the reservation as were not allotted or used for designated purposes. It did not provide for the sale of a particular designated part of the reservation. The act should be distinguished from other cession acts which ceded a definite part of the reservation and treated the remaining area as a diminished reservation. The lands allotted on the Yankton Reservation were scattered over all the reservation, as may be seen from the attached map, prepared in 1933 or 1934, showing these allotments, still restricted. Since the 1892 agreement there has been no redefinition by Congress of Yankton Reservation nor determination that reservation no longer exists. On the contrary, reservation was referred to as a still existing unit in the acts of April 29, 1920 (41 Stat. 1468), and June 11, 1932 (47 Stat. 300).

    In the case of allotted reservations it is, of course, a common fact that lands within the boundaries are unrestricted in greater or lesser quantity. Where a large quantity becomes unrestricted, reason may exist for changing the boundaries of the reservation under congressional authority. Without congressional sanction, I know of no administrative authority to decide at what time and to what extent a reservation shall be considered reduced.

    The legislative history and purpose of the 1934 act show that the term "outside of any existing Indian reservation" intended to mean outside of any existing Indian reservation and did not mean outside of any remaining restricted lands within a reservation. As the bill was originally introduced it contained the additionai proviso that "all land within the exterior boundaries of an existing or subsequently established Indian reservation shall be subject to all Indian liquor laws existing or hereafter provided by Congress." The omission of this clause indicates an intent not to change the
 



1065

OPINIONS OF THE SOLICITOR

AUGUST 14, 1941

status of the liquor laws within the boundaries of reservations. But the contract between lands outside of the reservation and those within the boundaries of the reservation remains apparent from the body of the act.

    In its report to Congress on the bill, the Department listed the Yankton Reservation with 13 other reservations as instances where Congress had provided for the continuation of the Indian liquor laws on former Indian lands. No distinction is made in this list between the reservations where a designated part was ceded and removed from the reservation, as in the case of the Rosebud, Pine Ridge, Standing Rock, and Cheyenne River Reservations, and those reservations where the ceded lands were scattered among the allotted lands and the reservation boundaries not changed, as at Fort Peck and Omaha. The listing must be considered informative and not determinative, particularly since the Department recommended that "all lands within the exterior borders of the present or subsequently established Indian reservations should be subject to the Indian liquor laws."

    Amendatory legislation will be necessary if your office determines that the Indian liquor laws should not apply to former Indian lands within the boundaries of a reservation where such lands predominate over the remaining Indian lands.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.


RE THE INTOXICATING LIQUOR TRAFFIC
AMONG NATIVES IN ALASKA

                                                                                                                                                                   August 14, 1941.

GEORGE W. FOLTA, ESQ., Counsel at Large,
Juneau, Alaska.

MY DEAR MR. FOLTA:

    With a letter to the Commissioner of Indian Affairs dated June 24, 1941, relative to the intoxicating liquor traffic among natives in Alaska, General Superintendent Claude M. Hirst enclosed a copy of your memorandum of June 17 to Don Hagerty in which the following paragraph appears:

    "Pursuant to our conversation as to whether the authority to establish reservations for the natives might be resorted to in order to render Sec. 241, et seq. of Title 25, U.S.C.A. applicable, and thus curb the liquor traffic in native communities along the Yukon and other rivers and Bristol Bay, I have arrived at the opinion, upon a consideration of available authority, that should a reservation be established in accordance with Secs. 2 and 7 of the Indian Reorganization Act, or by the President, for the exclusive use and occupancy of the Indians under such rules and regulations as the Secretary of the Interior may prescribe, the statute in question would apply. United States v. McGowan, 302 U.S. 535."

    For your information there is enclosed herewith a copy of an opinion of this Office (M. 29147) dated May 6, 1937 (56 I.D. 137), approved by the Assistant Secretary of the Interior, from which you will see that Section, 241 of Title 25, United States Code, is not considered as being in operation in Alaska, and that while Congress has the power to extend it to Alaska, modifications in the law should be made to make it practicable of enforcement there. Said opinion indicated that Section 241 of Title 25, United States Code, being a general law governing Indian country, would apply to Indian reservations in Alaska were it not, for the fact that Congress had passed special legislation governing the subject of the sale of liquor to the natives of Alaska. In the Act of April 13, 1934 (48 U.S. Stat. 583), Congress repealed the federal Alaska prohibition act of 1917 and granted to the Alaska Territorial Legislature the power to regulate and control the liquor traffic in that territory. In the Act of March 12, 1937 (Alaska Session Laws 1937, Chapter 78, pp. 167-180; amended in 1939, and 1941), the Alaska legislature provided for the manufacture and sale of intoxicating liquors in the territory and said act makes provision for the issuance of licenses on order of the District Court or Judge thereof; also the power of revocation for certain causes is lodged in said Judge.

    In view thereof, the establishment of Indian reservations in Alaska does not of itself operate to place said Section 241 into effect there. Legislation would be necessary to accomplish that, and separate, appropriate special legislation for Alaska should be framed if that course were to be decided upon rather than the simple extension of Section 241 to that area. At present at least, the Indian Office does not feel justified in sponsoring such special legislation. Therefore, it appears that to protect the Alaska natives from intoxicating liquors, it will be necessary to proceed along the following lines: first, endeavor to secure the enforcement of the existing Alaska territorial laws on the subject, including those provisions providing a penalty for the sale of liquors to minors, intoxicated persons, and habitual drunkards; second, suggest to those who do not desire liquor sold in their community to be firm in declining to sign the petitions of persons or firms making application for permits to sell liquors; third, to continue efforts
 



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DEPARTMENT OF THE INTERIOR

AUGUST 14, 1941

to have the judges refuse or revoke liquor licenses at those places where such action is warranted by the circumstances.

    Attention is also invited to the possibilities for controlling the liquor traffic in organized Indian communities by the adoption of measures for liquor control independently of the Territorial law within Indian reservations established under the Indian Reorganization Act, provided that their constitutions include law and order and removal powers over such reservations.

    This correspondence causes me to suggest the desirability of a general study of the application, to Indian reservations in Alaska, of Federal laws relating to the Indian country, particularly the laws relating to trading with the Indians and the punishment of crimes. See Section 548, Title 18, United States Code, as amended June 28, 1932 (47 Stat. 337); also, the relevant sections of Title 25, United States Code, including amendments set forth in the latest Cumulative Annual Pocket Part
of the Annotated Edition of said code. It is requested, therefore, that you make such a study with a view to determining what special laws may affect the application of those general laws.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.

EXTRADITION OF INDIAN FUGITIVES TO
RESERVATIONS WHERE OFFENSE WAS
COMMITTED

M-31194                                                                                                                                                August 14, 1941.

Synopsis of
Solicitor's Opinion

Re:

Extradition of Indian fugitives to reservations where the offense was committed.
Held:
1. No extradition of Indian fugitives from the jurisdiction of a State may be obtained as States are authorized to extradite fugitives only pursuant to the Constitution and laws of the United States, which do not include the extradition of Indians to Indian reservations.

2. (a) The Interior Department has no authority to extradite Indians from one reservation to another, but Indian tribes have authority to request of each other the return of fugitives and to act on such requests to the extent of removing fugitives from the reservation or of turning over the fugitives to the authorities of the tribes requesting extradition.

(b) Neither the Indian police nor the tribal police have recognized authority to hold Indians in custody outside Indian reservations and legislation is necessary to authorize such custody by Federal or tribal officials as agents of the tribe seeking extradition.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested by the Indian Office on the general subject of the authority and procedure for the extradition of Indians to Indian reservations from which they have fled, for the purpose of trial for the commission of offenses or for execution of sentence. The Indian Office has phrased the problem as follows:

    "The question, arises whether or not an Indian may, under authority of an Indian Court, be taken against his will from one reservation to another or from any other place outside the reservation to a reservation, or from one state to an Indian reservation in another state in order to try him before the Court of Indian Offenses or to carry out a sentence previously imposed. * * * "
The presentation of the question follows a letter of February 3, 1941, from the Chief Special Officer to the Indian Office reporting that extradition of Indians is important to the efficient operation of Indian courts, particularly in dealing with cases of desertion, and that, due to the doubt as to the authority for such extradition, the position has been taken that extradition should not be attempted except within the boundaries of one State.

    To consider this question I have divided the problem into two parts: First, extradition of an Indian within the jurisdiction of a State, and second, extradition of an Indian from another Indian reservation.

    (1) Extradition from within State jurisdiction. If an Indian has fled from the reservation where he has committed an offense and is within the jurisdiction of the State, the question of extradition is the same whether or not the State is the one in which the reservation is located. In either case there can be no extradition unless State officers are authorized to extradite fugitives from Indian reservations. It has long been decided that extradition by a State is not a matter of discretion or comity but is governed exclusively by the Constitution and
 



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laws of the United States. Ex parte Morgan, 20 Fed. 298 (D.C.W.D. Ark. 1883); United States v. Meyering, 75 F. (2d) 716 (C.C.A. 7th, 1935). The Constitution in Article IV, section 2, provides for extradition between States, and the statutes of the United States in 18 United States Code, section 662, provide for extradition either from a State or Territory. The Morgan case expressly held that there can be no extradition to an Indian reservation on the request of the tribal authorities as a reservation is neither a State nor a Territory. My conclusion, therefore, is that until legislation is obtained authorizing action by the States in this situation there can be no extradition of Indians from the jurisdiction of a State.

   (2) Extradition from another Indian Reservation. Two questions are basic to this discussion: (a) The power of reservation officials to authorize extradition from the reservation of refuge, and (b) the authority to hold the prisoner in custody during transit outside the reservation.

    (a) Neither the Indian Service nor the Interior Department has authority to cause the extradition of an Indian from one reservation to another. Such authority would have to be based upon statute. Not only is there no statute, but the statutes which would have authorized at least removal of. an Indian from a reservation not his own by Interior Department officials in their discretion were repealed. The repealed statutes, sections 220 through 226 of the 25 of the United States Code, authorized the Commissioner and the Indian Agent to remove from reservations persons found there contrary to law, or thought to be undesirable, or absconding Indians, and to obtain the necessary force to effect such removal, including use of the military forces. These statutes were held to authorize the removal from an Indian reservation of Indians not belonging there, but not to authorize the forced return of such Indians to another reservation. United States v. Crook, Fed. Cas. No. 14891. Thus at no time, even when most authority was lodged in the Indian Service, was there authority to return fugitive Indians to reservations against their will.

    However, an Indian tribe has authority to remove from its reservation persons who are not members of the tribe (55 I.D. 48-50). Moreover, the law, and order regulations expressly authorize the Courts of Indian Offenses to order the delivery of offenders to the proper authorities of a tribe or reservation, as well as to the proper authorities of the State or Federal Government, where such authorities consent to exercise jurisdiction (25 CFR 161.2). I have no doubt that part of the unabridged sovereignty and authority of Indian tribes is to request of other tribes the return of fugitive members and to act upon such requests to the extent of removing the fugitive from the reservation or of turning over the fugitive to the proper authorities of the tribe requesting extradition.

    (b) It is apparent from the foregoing that, if reservations were contiguous, extradition could be effectuated by the Indian police removing the fugitive upon court order to the border of the reservation where he could be received by the Indian police, acting upon the authority of the court of that reservation. Where, however, the reservations are not contiguous, a problem arises from the fact that the Indian police established under the appropriations for maintaining law and order on Indian reservations have no authority outside the Indian reservation for which they were appointed (18 Op. Atty. Gen. 440; Memo Sol., Int. Dep't, May 5, 1939, pt. IV). Even where, there are tribal police appointed and paid by the tribe, it is doubtful whether the authority of such police to hold another Indian in custody would be recognized outside an Indian reservation, since Indians outside the reservation are subject to State law, and since as a general rule peace officers of one sovereignty have no more authority outside that sovereignty to hold a person in custody than a private citizen. You will note that State officers are given authority to hold fugitives in custody during extradition across other States by the Federal statute adopted, under Constitutional authority (18 U.S.C. sec. 664).

    The fact that extradition may exist and function between separated tribes when implemented by Federal authorization is revealed by the treaties made by the United States with each of the Five Civilized Tribes in 1866 (14 Stat. 755, 769, 785, 799). These treaties provided for a general council composed of delegates from all the Indian tribes in the Indian territory with "power to legislate upon all subjects and matters pertaining to the intercourse and relations of the Indian tribes and nations resident in the said territory, the arrest and extradition of criminals escaping from one tribe to another, the administration of justice between members of the several tribes of the said territory * * *." This power existed until the acts of Congress, beginning with the act of June 7, 1897 (30 Stat. 83), placed jurisdiction of Indian offenses in the Indian Territory in the United States courts in the Territory and abolished the tribal courts and tribal governments in that Territory. Extradition power in the Indian Territory was implicitly recognized by the Attorney General in an opinion in 1883 (17 Op. Atty. Gen. 566), advising this Department on the disposition of an Indian held prisoner at Fort Reno, Oklahoma. The prisoner was a Creek Indian who had murdered an Arapaho
 



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Indian on the Potowatomi Reservation in the Indian Territory. The Attorney General said:

    "If no demand for Foster's surrender shall be made by one or other of the tribes, founded fairly upon a violation of some law of one or other of them having jurisdiction of the offense in question according to general principles, and by forms substantially conformable to natural justice, it seems that nothing remain except to discharge him."
    While Indian tribes have complete legal authority to seek and grant extradition, the custody problem needs solution where the two reservations are not contiguous and the prisoner refuses to remain in the custody of the Indian police officer while outside either reservation. In this situation it would appear necessary to obtain authority for holding a prisoner in involuntary custody between the reservations, .in order for extradition between separated tribes to be accomplished, when the prisoner is not otherwise subject to custody by the agents of the tribe or the Department, as in the case of minors and mental incompetents (Peck v. A.T. & S.F. Ry. Co., 91 SW. 323). Legislation would be appropriate to authorize Federal law enforcement officers or the tribal police to hold prisoners in involuntary custody outside of Indian reservations as agents of the tribe seeking extradition. Consideration might be given in this connection to the legislation, proposed by the Indian Office to enlarge and define the duties of Federal law enforcement officers on Indian reservations.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.


Approved: August 14, 1941.

OSCAR L. CHAPMAN,
Assistant Secretary.

ATTORNEYS FEES--SERVICES RENDERED TRIBE
IN SECURING PASSAGE OF LEGISLATION

M-31404                                                                                                                                                  August 14, 1941.

Synopsis of
Solicitor's Opinion

Re:

Award of fees for services rendered the Ute Indians in securing passage of the act of May 15, 1936 (49 Stat. 1272).
Held:
1. Fees can be awarded only to those attorneys or agents holding one or more of the contracts and assignments listed in the act of May 15, 1936 (49 Stat. 1272).

2. In determining the fee due an approved assignee consideration can be given to services performed by him after the death of the original contractor but before the expiration date of the contract period.

3. Services performed after the contract period expired cannot be considered.

4. The total fees paid attorneys and agents should be borne by the various bands according to their percentage of the recovery.

The Honorable,
The Secretary of the Interior.

MY DEAR MR SECRETARY:

    There is before you for reconsideration the award of attorneys' fees provided for in the act of May 15, 1936 (49 Stat. 1272). The act reads:

    "That the sum of $161,400 be, and the same is hereby, authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, for payment to the Confederated Bands of Ute Indians in full compensation as to claim for principal sum for sixty-four thousand five hundred and sixty acres of land in western Colorado, taken from the said Indians by the United States and set aside as a naval oil reserve by Executive orders, dated December 6, 1916, and September 27, 1924; said sum to be placed on the books of the Treasury Department to the credit of the Confederated Bands of Ute Indians in the proportions specified by the Act of June 15, 1880 (21 Stat. L. 199), to bear interest at 4 per centum per annum and from the date of the passage of this Act.

    "Sec. 2. The Secretary of the Treasury is hereby authorized to pay, out of said appropriation when made, such fees and expenses as the Secretary of the Interior may deem reasonable, on a quantum meruit basis, for services rendered by attorneys or agents having approved or heretofore approved contracts with said Indians, or approved assignments thereof, not to exceed, however, a total of 10 per centum of the amount appropriated hereunder, as follows:

    " (1) A contract with Southern Ute Band and the Ute Mountain Band approved July 7, 1928, a partial assignment of which was approved on May 28, 1929.

    " (2) A contract with the Uintah and White River Bands, approved on October 8, 1932, an




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OPINIONS OF THE SOLICITOR

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assignment of which was approved on February 13, 1935.

    " (3) A contract with the Uncompahgre Band approved October 8, 1932, an assignment of which was approved on February 13, 1935."

    The first contract listed was between the Southern Ute and Ute Mountain Bands and William Marshall Justis, Jr. The approved assignment of a one-half interest was made by Mr. Justis to ex-Senator Marion Butler. John S. Meaney, Esq., is representing the Butler estate; Henry L. Bowden, Esq., the Justis one. The second contract, by the Uintah and White River Bands, and the third, by the Uncompahgre Band, were both in favor of Captain Raymond T. Bonnin; and for our purposes can be considered together. The approved assignments were in favor of the firm Hughes, Schurman and Dwight. The assignee is now in liquidation and is represented in the present matters by Ernest L. Wilkinson, the same attorney who acted for the firm in securing the passage of the act of May 15, 1936.

    The act of August 7, 1937 (50 Stat. 564-573), appropriated $161,400 for payment to the Indians, and on January 24, 1940, the Assistant Secretary approved the recommendation of the Commissioner of Indian Affairs for the award of fees amounting to $2,152 under the first contract and $10,760 under the second and third considered together. The total allowance equaled 8 percent of $161,400 rather than the 16 percent maximum permissible. Representatives of the attorneys claiming under the first contract registered an appeal which was at first refused. Subsequently you reconsidered your refusal and designated the then First Assistant Solicitor to take testimony concerning the reasonableness of the fees awarded. The hearing was held on March 14, 1940, and was attended by representatives of all claimants under approved contracts and assignments. A transcript of the testimony at the hearing is attached. Also submitted are the numerous briefs and exhibits presented by the parties, including those filed as supplements after the hearing, as well as the pertinent Indian Office and departmental files. This material and the questions presented are summarized and analyzed below for your consideration and decision.

    The questions for decision, and which will be taken up in order, are:

    1. What persons are entitled to participate in the award of fees?

    2. During what periods of time must the services have been performed in order to be evaluated in determining the fees that will be paid under the various contracts and assignments?

    3. What are the reasonable fees that should be allowed to the various persons entitled to receive them?

    1. No question exists as to the proper persons to receive payment, or as to the share each shall receive, of whatever fees are awarded under contracts 2 and 3. However, concerning services allegedly rendered in behalf of the Southern and Ute Mountain Bands the Commissioner of Indian Affairs has presented to the Solicitor for an opinion the question of whether the Department can now approve certain contracts and assignments heretofore unapproved. Such action would allow collection directly from the Department of claims allegedly arising from assignments-one of which was executed by Mr. Marion Butler and a large number by a Dr. Orlando Ducker and a Mr. George W. Stearn-purporting to transfer an interest in fees for collecting the Ute claims against the United States. No mention is made of any assignment by Mr. Butler to his associate, John S. Meaney.

    The Secretary of the Interior approved the Justis contract with the Southern Ute Band and the Ute Mountain Band only after rejecting a number of others. Beginning in the early 1920's and continuing until their deaths in the middle 1930's, Dr. Orlando Ducker and Mr. George W. Stearn sought contracts with the two bands on behalf of the attorney whom they at the particular time claimed to represent. Among the contracts secured were two, dated April 4, 1927, and, April 27, 1928, in favor of William Marshall Justis, Jr., an attorney of Richmond, Virginia. Both were disapproved by the Department because of the methods used by Ducker and Stearn in persuading the Indians to sign. On April 18, 1927, Justis entered in a contract with Ducker and Stearn whereby they were to serve as his "business managers" in the Indian claim cases. The agreement provided that it would apply to any future contracts secured by Justis. On April 19 Justis assigned to the two men a one-third interest in his contract of April 4, 1927, with the Southern Utes. It appears that even before that date Ducker and Stearn solicited money to press the claim of the Southern Ute Indians against the Government. The records show also that a man named R. W. Warren was associated with them for a short time. How much money was raised is uncertain but those who advanced funds are said to have received assignments to share in the fee which Mr. Justis would receive, and, in some instances, in the sum which the Indians might recover. On every occasion when the solicitations were called to the attention of the Department or the Indian Office the activities of the men were denounced as unauthorized and unnecessary and the person inquiring was
 



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informed that such moneys could not be reimbursed from any recovery against the Government. On June 25, 1928, Justis secured a new contract which replaced the two former ones, and on July 7, 1928, it was approved by the Secretary. Assignment by Mr. Justis of the one-half interest to ex-Senator Marion Butler was made on March 11, 1929, and given Secretarial approval on May 28. On September 26 of the same year Mr. Justis died. Mr. Butler, however, continued his activities up to and including the passage of the 1936 act; and by an alleged assignment dated August 15, 1932, Mr. Butler transferred to Frank J. Gardner, an attorney, a one-third interest in the fees which he expected to receive. The assignment was not submitted for approval, nor was it called to the attention of this Department until presented by Mr. Gardner in his letter of August 16, 1940. It also appears that since that date Mr. Gardner has assigned all or part of his claim.

    Your authority to approve now the various contracts and assignments so as to allow payment to Mr. Gardner and the various unnamed assignees of Ducker and Stearn faces at the outset the practical question of whether the funds authorized by the act of May 15, 1936, to be appropriated are available for payment to such persons. It is my opinion that they are not even if the contracts and assignments are properly approved. The claims spawned by the activities of Ducker and Stearn related to unapproved contracts which were not listed in and so are precluded from payment under the 1936 act. Such payment would, moreover, run contrary to the recommendation of the Department of the Interior in reporting on the bill which became the 1936 act. It was there stated:

    "* * * For obvious reasons, it is deemed advisable to mention all three contracts in the bill and to limit the fees and expenses to services rendered thereunder, so as to avoid the possibility of vexatious complications which might otherwise develop on account of the submission of claims by unauthorized attorneys, etc."
In any event the claimants have not shown that services were rendered to the Indians under the contracts and, therefore, any payment proposed would come within the prohibition in section 2104 of the Revised Statutes (25 U.S.C. sec. 82) against payment of money to any agent or attorney under an approved contract "other than the fees due him for services rendered thereunder." The claims of Ducker and Stearn have been repeatedly denied by both the Commissioner of Indian Affairs and by the Secretary. Any rights to reimbursement possessed by Ducker, Stearn, or the persons who attempted to buy interest in the Indian claims on speculation must be pressed against the holders of the approved contracts and assignments.

    Mr. Gardner states that he rendered services on behalf of the Indians but his action in doing so arose from an agreement with the approved assignee of an approved contract. While Mr. Butler was not precluded from utilizing assistance he could not bind the Indians or the United States by his action. Mr. Gardner must be assumed to have had knowledge of the provisions of the Justis contract wherein it was stated:

    "It is also agreed that no assignment of this contract or any interest therein shall be made without the consent, previously obtained, from the Commissioner of Indian Affairs and the Secretary of the Interior,-as required by Section 2106 of the Revised Statutes of the United States."
In disregard of that statement Mr. Gardner did not call his agreement with Mr. Butler to the attention of the Department until 1940. The brief in support of Mr. Butler's claim for a fee, prepared by him but submitted to the Department on August 31, 1939, by his widow, states that the services of Frank Gardner, Esq., were employed. Such a situation was anticipated and provided for in the following manner at the time the contract was entered into:
    "IT IS AGREED that she said attorney is hereby authorized to associate with him in said work such assistant attorney or attorneys as he may select: Provided, That neither the Government nor the Indians is to be at any expense by reason of the employment of such associates."
Since Mr. Gardner's interest in Mr. Butler's fee is not recognized by Congress he cannot be paid in his own, right from the available funds. Further, for the Secretary to pass on the validity of his claim against Mr. Butler's estate would be for the Secretary to act in the capacity of a court adjudicating disputes between two private individuals to the possible disadvantage of men like Mr. Meaney who are as interested in Butler's fee as is Gardner.

    For all of the above reasons it is my opinion that no consideration should be given to approving the various contracts and assignments referred to by the Indian Office. The only claimants who should be considered in fixing the fees are the estates of Justis and Butler under the first contract, and Captain Bonnin and Hughes, Schurman, and Dwight in liquidation under the second and third.
 



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    2. Before proceeding to fix the fees due each, it is first necessary for you to decide what were the effective periods of the contracts during which the activities of the parties should be evaluated.

    Concerning the first contract, it appears from the testimony and evidence submitted that even before Mr. Justis had secured an approved contract on July 7, 1928, both he and Mr. Butler had been active in pressing the oil shale claim of the Ute Indians. The services rendered prior to that date cannot be evaluated as such in fixing compensation under an approved contract but no injustice is done by so ruling for the cumulative results of those efforts appear in action taken by Congress after the contract became effective. Also, not until May 28, 1929, did Mr. Butler receive an approved assignment. Active as he may have been before that time; his only recourse for compensation was then against Mr. Justis. Apparently the assignment of .the half interest was treated by the two men as a liquidation of any such claim; and in suggesting the amount due the estate of each man the assumption is invoked that the services of Mr. Butler from July 7, 1928, to May 28, 1929, are to receive no additional compensation from the Justis share of the fees allowed.

    Two principal questions are presented by the Justis contract:

    (a) Can the services rendered after the death of Marshall Justis in September 1929 and before the termination of the contract by its own terms on July 7, 1933; be considered in determining the compensation due under the assignment?

    (b) Can the services rendered after July 7, 1933 be considered?

    After Mr. Justis died in September 1929 Mr. Butler continued his activities on behalf of the Ute Indians. Subsequently, on several different occasions the Department notified attorneys seeking contracts with the Southern and Ute Mountain Bands that Mr. Butler held a proper assignment and that the Indians required no additional attorneys. The Indians were not so express in their acceptance of Mr. Butler's services, but not until June of 1933, just before the 5-year period of the contract expired, did either band attempt to disclaim him as their representative. In a petition to the Commissioner, received after July 7, 1933, the same Indians who had signed the original contract for the Ute Mountain Band, asked that the contract be considered as having terminated at the death of Justis. The Department does not appear to have taken any direct action on the request, but proceeded to consider the possibility of continuing Mr. Butler's services. By its own terms the contract expired on July 7, 1933, subject to the condition that the Commissioner might extend it for an additional two years. No such extension was made prior to expiration date and on August 22, 1933, the Acting Solicitor in a memorandum opinion held that after July 7 the Commissioner had no authority to grant an extension. Mr. Butler continued to perform services under the contract and assignment and protest the ruling of the Acting Solicitor. The matter was considered further, and on January 11, 1934, the First Assistant Solicitor, who had signed the former memorandum as Acting Solicitor, held that since the contract was for personal services and since there was no privity between the Indians and Mr. Butler, the contract had terminated upon the death of Mr. Justis in September 1929 and that even were that not so, the contract could not be extended. On September 13, 1934, both the Solicitor and the Secretary approved a legal opinion prepared by one of the assistant solicitors who had presided at an oral hearing given the interested parties. The opinion held, without discussing the question of termination by Justis' death, that no authority existed in law to extend the contract after its expiration on July 7, 1933. Mr. Butler continued to press the claim of
the Southern Utes and maintained, as have the representatives of his estate since his death in 1937, that he was entitled to compensation under the language of the 1936 act, which authorized fees "for services rendered by attorneys or agents having approved or heretofore approved contracts with said Indians, or approved assignments thereof * * *."

    The original award of fees recommended by the Commissioner of Indian Affairs gave consideration to the services performed by Mr. Butler up to but not after July 7, 1933. Under a strict application of the usual rules for construing personal service contracts to interpreting sections 81 and 84, title 25, United States Code, Mr. Butler could not be paid for his services after the death of Mr. Justis. However, I do not find such an interpretation necessary, nor do I believe it would be appropriate inasmuch as the Department recognized Mr. Butler as the attorney throughout the 5-year period. A somewhat analogous situation was presented in the case of Butler and Vale v. United States, 43 Ct. Cls. 497 (1908). There the Colville Indians had entered into a 10-year contract, beginning in 1894, with attorneys Maish and Gordon. Maish died in 1899, but no question seems to have been raised as to the continuation of the contract. Subsequently, the jurisdictional act of June 21, 1906 (34 Stat. 378) authorized the court to determine the fees due. Consideration was given to services rendered after the contract expired in 1904 and to those by attorneys associated with the original contractors. It was held that in so far as it might impede payment to the attorneys acting for the Colville Indians, section 2103, Revised Statutes (25 U.S.C. sec. 81),
 



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DEPARTMENT OF THE INTERIOR

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had been repealed by the special jurisdictional act. In the present case the attorney hired by the Indians died, and his assignee, although he had no privity of contract with the Indians, continued to act under the contract and assignment. As was stated in Butler v. United States by the Court of Claims, referring to Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), "The question of authority to create a liability for the payment of an obligation upon the part of Indian tribes by the Congress is now at rest." Congress could, therefore, if it saw fit to do so, make the assignments provided for by section 2106, Revised Statutes (25 U.S.C. sec. 84), binding upon the Indians. Such action would be consistent with the analysis of the purpose of the various sections as set forth in Gordon v. Gwyder, 34 App. D.C. 508 (1910): "* * * in order to prevent approved contractors from thereafter assigning their contracts, in whole or in part, to improper persons, section 2106 makes the validity of such assignments depend upon a like submission and approval." Since under the terms of section 2106, Revised Statutes (25 U.S.C. sec. 84), the entire interest in a contract could be assigned by the holder and that assignment validated by the Secretary without consulting the Indians, I see no objection to holding that partial assignments may continue in effect until the end of the contract period even though the original contracting party dies in the meantime. We are not, however, compelled to decide now whether all assignments of contracts would so continue, for by the act of May 15, 1936, Congress dealt specially with the present situation .Compensation is authorized for "attorneys, or agents having approved or heretofore approved contracts with said Indians, or approved assignments thereof * * *." The intention of Congress as shown by the language of the act and by the surrounding circumstances must be investigated as to recognition of services by Butler not only after Justis' death but also after expiration of the contract period.

    In reporting on S. 381, which became the act of May 15, 1936, both the Senate and House Indian Affairs Committee indicated their agreement with the recommendations of the Secretary of the Interior. In Report No. 566, 74th Congress, the Senate Committee in recommending that the bill with amendments should pass said: "The Secretary of the Interior recommends the enactment of the bill, as amended * * *." The House Committee favored passage of the bill as it came from the Senate and said: "This bill has the approval of the Department * * *" (H.R. Report No. 1090, 74th Cong.) The Secretary had approved the assignment to Butler and through July 7, 1933, had consistently recognized him as attorney for the Southern and Ute Mountain Bands. Just as consistently the Department and Indian Office had informed Butler that after the expiration of the contract he was no longer authorized to act. Statements were several times made that both Justis and Butler should be compensated for the services performed notwithstanding the lapse of the approved contract. Mr. Butler and his representatives contend that their services after the expiration were thus recognized, but the more reasonable conclusion and the one which the actions of the Secretary show to be correct is that the services performed while the contract was in effect would not go unrewarded whenever fees were determined. Such a provision is contained in the original contract. The report of the Secretary to Congress stated:

    "* * * There are three such contracts, one between William Marshall Justis, Jr., and the Southern Ute Band, a half interest in which was assigned to Marion Butler, which contract, however, has expired; another between Raymond T. Bonnin and the Uintah and White River Bands; and a third between Mr. Bonnin J and the Uncompahgre Band, both of which latter contracts have been assigned to Hughes, Schurman, and Dwight. For obvious reasons, it is deemed advisable to mention all three contracts in the bill and to limit the fees and expenses to services rendered thereunder, so as to avoid the possibility of vexatious complications which might otherwise develop on account of the submission of claims by unauthorized attorneys, etc." (Italics supplied.)
It is, I believe, clear that the Secretary was recommending that the position which he had theretofore taken be followed by Congress, namely, that compensation be allowed for services performed before the contract expired. That is the intention which I believe the Senate Committee expressed when it said in its report:
    "The committee amended the proposed amendment of the Secretary of the Interior as to attorneys, so that their fees should be paid on a quantum meruit basis for services actually rendered notwithstanding the lapse of any approved contract."
    It, therefore, follows that the services performed by Justis and Butler which should be evaluated are those performed between July 7, 1928, and the same date in 1933. Regarding services under the other two contracts, it is not disputed that all services to be evaluated were rendered after Oc-
 



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OPINIONS OF THE SOLICITOR

AUGUST 22, 1941

tober 8, 1932, and before the expiration dates of the contracts.

    3. The doctrine of Winton v. Amos, 255 U.S. 373 (1921) has been continually invoked by all of the fee claimants. Therein it was held that the attorneys who had secured a recovery for a class of Indians could obtain the payment of fees not only from those from whom they held contracts but also from those who benefited directly from their actions. The application of the principle of that case to the present situation would involve an analysis of services performed under the Justis contract before October 8, 1932, which resulted in benefits to the Uncompahgre and White River Bands before they acquired an attorney of their own. It would also require analysis of the services valuable to the Southern and Ute Mountain Bands performed after July 7, 1933, under the Bonnin contracts. Such a determination is almost impossible to make nor do I believe it should be attempted here. The actions of Justis and Butler secured the passage in 1928 of a jurisdictional bill which would have allowed the Court of Claims to settle the Ute oil shale controversy. The bill was vetoed but the groundwork for future legislation had been well laid. After July 7, 1933; the efforts of Captain Bonnin and his assignees resulted in the final passage of the act of May 15, 1936. The activities of Marion Butler and his associates during that period were merely gratuitous. It is my opinion that the efforts by the various attorneys which resulted in benefits to those bands not their clients during the periods that those bands had no legal representation are essentially in balance. I recommend that the award of fees to the various attorneys holding contracts and assignments be determined on the basis of the recovery obtained by the particular band with which they had contracted.

    The original determination of January 24, 1940, awarded $10,760 in fees under the Bonnin contracts. That sum equals 10 percent of the portion of the $161,400 which the act of May 15, 1936, provided should go to the Uncompahgre and White River Bands. Captain Bonnin and his assignees have agreed that the sum should be divided 40 percent to Bonnin and 60 percent to Hughes, Schurman and Dwight. I believe that the services performed under the two contracts justify the payment of the full 10 percent, and I recommend that the award not be disturbed.

    Valuable as may have been the services of Mr. Justis and Mr. Butler prior to July 7, 1933, their efforts did not result in the final passage of the act which authorized payment to the Indians. That fact should be considered in fixing the fee due them. Under the January 24, 1940, award fees were allowed in the amount of $2,152 or 4 percent of the sum recovered by the Southern and Ute Mountain Bands. I recommend that the services under the Justis contract be more fully rewarded by increasing the fee to 8 percent of the sum recovered and that the division between Justis and Butler be retained in the same proportions as the original award. If my recommendation is followed, the fees to be awarded will be:

Under Contract
Justis Estate                                $1,721.60
Butler Estate                                 2,582.40
Under Contracts 2 and 3
Captain Bonnin                            $4,304
Hughes, Schurman & Dwight         6,456
    The fees thus recommended total $15,064 instead of the $12,912 formerly awarded, or the maximum of $16,140 authorized. In fairness to the various bands of Indians, I believe the burden of the fees should be divided proportionately. The failure of the Southern and Ute Mountain Bands to employ an attorney to represent them after July 7, 1933, should not free them from bearing their just share of the expenses in securing the recovery for all of the Utes. For that reason I recommend that the payment of the $15,064 be borne by the various bands in the same proportion as the $161,400 recovery was, divided, namely, one-third by the Southern and Ute Mountain Bands, one-half by the Uncompahgre Utes, and one-sixth by the White River Utes. Payment of the fees should, of course be made only after compliance by the various recipients with the requirements of sections 2103-2106 inclusive, Revised Statutes (25 U.S.C. secs. 81-94 inclusive).

                                                                                                                                                   FELIX S. COHEN,

Acting Solicitor.


Approved: August 14, 1941.

OSCAR L. CHAPMAN,
Assistant Secretary.

REGARDING DESIGNATION OF ALASKA
WHITE MOUNTAIN NATIVE VILLAGE AS
RESERVE AND INCLUSION OF RIVER

 

August 22, 1941.


Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration the proposed order to designate as an Indian reserva-
 



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DEPARTMENT OF THE INTERIOR

AUGUST 22, 1941

tion under section 2 of the Alaska Indian Reorganization Act of May 1, 1936 (49 Stat. 1250), lands of the Native Village of White Mountain which are now a reserve for educational purposes. I wish particularly to invite your consideration of the proper action to be taken in view of the fact that a navigable river crosses the reservation.

    The order provides that the land is designated as an Indian reservation "for the use and occupancy of the native inhabitants of the Native Village of White Mountain, Alaska, and vicinity." The Native Village of White Mountain is organized and incorporated under the Alaska Indian Reorganization Act and its constitution and charter refer in several places to a possible reserve set aside "for the Village." Any reserve set aside for these Eskimos should, therefore, be definitely set aside for the use and control of the Village, especially as the purpose of this reserve is to provide a basis for the exercise by the Village of regulatory powers. I, therefore, recommend (that the reservation be designated "for the use, and occupancy of the Native Village of White Mountain, Alaska."

    The map of the reservation indicates that Fish River flows across the reservation, and the application for the reservation indicates that the river is navigable. Concerning this river the application states:

"Fish River which flows through the area requested as a reservation is indispensable to the livelihood of these people. They take a large amount of fish from the river during the summer, which are dried for winter food and for feed for their dogs. During the winter these people fish through the ice and set fish traps under the ice and obtain some fresh fish for food. However, they are not requesting that the river be made a part of the reservation and that boats and scows passing up or down the river will not be subject to any rules or regulations set up by the Native group."
    In spite of the willingness of the natives to forego control of the part of the river within the reservation, the advisability of specifically including in the order that part of the river should be carefully considered. There is no doubt that the Secretary of the Interior under section 2 of the act can include in a reservation navigable waters within or adjacent to the land area being reserved. Solicitor's Opinion M. 28978, April 19, 1937 (56 I.D. 110); United States v. Winans, 198 U.S. 371; Winters v. United States, 207 U.S. 564; Alaska Pacific Fisheries v. United States, 248 US. 78. If no reference to the river is made in the designation of the reservation, whether or not it is included becomes a question of interpretation which may be a subject of litigation and construction by a court. Winters v. United States, supra. The statement in the application would be influential in
that regard.

    Since the river flows across the reservation and the fishing therein is essential to the natives, I recommend that you consider the propriety of including in the order reference to the river. In this connection the attached memoranda from the General Land Office opposing inclusion of the river in the reservation should be considered. If you conclude as a matter of policy to recommend that the reservation include the river, there may be inserted at the end of the first paragraph of the order following the quotation the words "and which lands are understood to include the lands and waters of that part of the Fish River which flows across and within the reservation."

                                                                                                                                                    W. A. FLANERY,

Acting Solicitor.


STATE JURISDICTION OVER CRIMES
COMMITTED BY AND AGAINST INDIANS
IN FORMER OKLAHOMA TERRITORY

 

September 5, 1941.


Memorandum for Mr. Daiker, Office of Indian Affairs:

    You informally requested me, in a note July 23, to review the revised discussion of the jurisdiction over crimes committed by and against Indians in that part of the State of Oklahoma which was formerly the Oklahoma Territory which is contained in the last pages of the proposed letter to the Attorney General on the general subject of jurisdiction in Oklahoma. As you surmise in your note, I am in disagreement with the arguments and conclusions expressed in the revision. I am therefore reiterating my position in the memorandum to the Indian Office of July 11, 1941, with the following expanded explanation:

    A basic error made in the letter to the Attorney General is, I believe, the contention that the act of March 3, 1885 (13 U.S.C. sec. 548), did not apply in the Oklahoma Territory and does not apply in the present Indian reservations in that part of the State because it did not apply to that area before Oklahoma Territory was created. The reason given for the original nonapplication of section 548 is the presence of the early statutes quoted in paragraphs 1, 2 and 3 of the memorandum collection of statutes. The following analysis of the
 



1075

OPINIONS OF THE SOLICITOR

SEPTEMBER 23, 1941

application of section 548 will clarify the legal situation:

    (a) Before Oklahoma Territory was created in 1890 it is probably true that section 548 did not apply to what was then the old Indian Territory, but the reason for such nonapplication was that there were no Territorial organization and no Territorial courts which could function under section 548, not the presence of the statutes quoted in the memorandum. As stated in the case of Gon-Shy-Ee, 130 U.S. 143 (1889), section 548 of title 18 made the crimes designated subject to the laws of the Territories so that a Territorial court had jurisdiction over such crimes by the Indians on Indian reservations when sitting in its Territorial capacity and not as a court of the United States. This is plain from the statute itself which provides that Indians committing the crimes named within Territories of the United States shall be subject to the laws of the Territory and tried in the same courts and in the same manner as others persons. In the case of In re Jackson, 40 Fed. (C.C. Kans., 1889), it was indicated, that at that time there was no political organization of the Indian Territory and that the term had simply a geographical meaning.

    (b) After the Oklahoma Territory was created out of part of the old Indian Territory by the act of May 2, 1890, (26 Stat. 81), section 548 of title 18 could have immediate application and did have such application in my opinion. Nothing in the 1890 act prevented the application of section 548 since it excepted from the jurisdiction of the Territorial courts only civil controversies among Indians of the same tribe. The fact that the 1890 act gave the Territorial courts jurisdiction of crimes by Indians against Indians of other tribes enlarged and did not lessen the jurisdiction over Indians which those courts had under section 548. The cake of Brown v. United States, 146 Fed. 975 (C.C.A. 8th, 1906), recognizes that section 548 applied to the Oklahoma Territory. The fact is important that the case expressly held that the Indian reservation in the Oklahoma Territory were Indian country within the meaning of section 217 of title 25 of the Code.

    (c) After Oklahoma became a State it is my opinion that the second part of section 548 immediately applied in the part of the State which had been the Oklahoma Territory in the same way as it applied in other States. In other words, the part of section 548 placing in the Federal courts jurisdiction of designated offenses by Indians on Indian reservations within a State applied to that area instead of the part of the act dealing with offenses by Indians in Territories. Section 13 of the Enabling Act of June 16, 1906, gave to the Federal Circuit and District Courts the same powers and jurisdiction as the circuit and district
courts had generally and provided they should be governed by the same laws and regulations.

    My conclusions with respect to that part of Oklahoma which was the Oklahoma Territory are that section 548 applies, that sections 217 and 218 apply, that the State courts have no jurisdiction on the Indian reservations which they do not have in other States, except possibly for crimes by Indians against Indians of other tribes (by virtue of the 1890 act).

    In view of these conclusions I find it necessary to revise not only the latter part of the letter to the Attorney General but also the first part of that letter in so far as it discusses on pages 3 and 4 the application of the 1885 act. Paragraph 4 in the memorandum of statutes should also be revised in its statement concerning the application of that section. Because of the complexities of this matter of jurisdiction and because the present letter to the Attorney General includes extended statements concerning a number of statutes which need not be set forth in the letter, in view of the collection of statutes in the supplementary memorandum, I have undertaken to revise the entire letter to present the matter in a more condensed and also in a somewhat more analytical way.

                                                                                                                                                    FELIX S. COHEN,

Acting Solicitor.

TAXATION--STATUTE AUTHORIZING STATE AND
LOCAL TAXATION OF ROYALTIES RECEIVED BY
INDIANS ON EXECUTIVE ORDER RESERVATIONS--
NEW MEXICO STATE LAWS

 

September 23, 1941.


WILLIAM A. BROPHY, ESQ.,
806 First National Bank Building,
Albuquerque, New Mexico.

DEAR MR. BROPHY:

    I have noted the provisions of the laws of New Mexico adopted at the 1941 session which you have quoted in your letter of August 8 to Dr. Aberle and others, a copy of which was sent to me.

    Chapter 77 is apparently based on section 398 (c) of title 25 of the United States Code, which authorizes State and local taxation of the royalties received by Indians from any lease on Executive order reservations. The taxation provisions in chapter 77 would, therefore, affect all Indian lands,
 


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