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we must look not only to the interpretation of the language of the act by Congress but also to the interpretation put upon the act by the Indians when, on various reservations, they voted pursuant to section 18 of this act to determine whether the act should or should not apply to them. In a very real sense the Indians were, in this respect, legislators. An analysis of the interpretations placed upon section 6 of this act when the Indians were called upon to vote on the application of the act to their respective reservations shows that this section was consistently interpreted by the Indian Office, by the Interior Department, and by the Indians as limiting rather than expanding the discretion theretofore vested in the Secretary of the Interior under prior legislation. Again and again, it was emphasized that this section made mandatory powers which had theretofore been discretionary, that it did not vest new powers in the Interior Department or impose, correlatively, new restraints upon the Indians, but simply sought to prevent future action by the Interior Department which would serve to dissipate and destroy Indian natural resources,-as so much of the past action of the Interior Department was thought to have done. Thus, in a circular called "FACTS ABOUT THE NEW INDIAN REORGANIZATION ACT" signed by Commissioner Collier and is sued a few days after the approval of the act, the effect of section 6 was thus summarized:

    "Common-sense management of Indian forests and grazing lands is made a legal obligation of the Secretary in Section 6. Through this section Congress orders the Secretary not to allow any clean cutting or devastating logging methods in Indian timber, but to regulate the extent and character of the logging in such a way that there will always be a good stand of merchantable timber left for the children and grandchildren of the present owners.

    "The Secretary is also directed to prevent overgrazing of Indian range units, and to that end to keep down the number of cattle and sheep that can be grazed on any unit to the carrying capacity of the land."

    "The Federal Government controls agricultural production by contract with individuals. It would be up to the Indians to decide whether they would want to enter into such contracts." (p. 5)

    Finally, it must be recognized that the narrower construction of section 6 which was repeatedly advanced to the Indians, which imposes upon the Secretary of the Interior a duty to carry out conservation policies, in the exercise of all his statutory functions respecting Indian land, is given substantial content by a large number of specific statutes already noted. Certainly it cannot be said that this interpretation of section 6 makes the provision meaningless or ineffective.

    A further question may be raised whether under the Soil Conservation and Domestic Allotment Act of April 27, 1935,¹⁷ it may be held that Indian allotments are "lands owned or controlled by the United States or any of its agencies," as to which Congress has conferred managerial powers in the interest of conservation upon appropriate administrative agencies of the Federal Government.

    This question has heretofore received careful consideration from this Department and from the Department of Agriculture. On the one hand, it has been argued that the relation of guardianship in which this Department stands, towards the Indians, under various acts of Congress, involves the subjection of allotted lands to Federal "control" within the meaning of the Soil Conservation and Domestic Allotment Act. On the other hand, it has been argued that control of an Indian allotment is vested by statute and by the terms of his patent in the allottee himself, and that the Department of the Interior or the Federal Government as a whole exercises jurisdiction over the land only in the sense that a State or municipal government may exercise jurisdiction over privately owned land.

    The determination has been made by the Department of Agriculture 16 and by this Department¹⁹

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   ¹⁷ 49 Stat. 163, 16 U.S.C. sec. 590a, et seq.

    ¹⁸ See memorandum of Solicitor Mastin G. White, dated February 17, 1937.

   ¹⁹ See memorandum of Acting Solicitor Kirgis, dated July 15, 1937.
 

that Indian allotments are not lands "owned or controlled by the United States or any of its agencies," within the meaning of the Soil Conservation and Domestic Allotment Act, and that therefore appropriate conservation measures are to be effected through agreement and compensation rather than through unilateral commands.

    In my opinion this decision is correct. Upon the basis of this decision considerable sums of money have been paid to Indian allottees pursuant to agreements which would be illegal if it should be held that the lands covered by these agreements were owned and controlled not by the allottees but by the Department of the Interior. I am accordingly of the opinion that neither section 6 of the act of June 18, 1934, nor the provisions of the Soil Conservation and Domestic Allotment Act of April 27, 1935, dealing with lands "owned and controlled by the United States or any of its agencies" can properly be construed as granting to the Secretary of the Interior new powers to manage Indian allotments without the consent of the allottee.

    By way of summary, then, it may be said that on all reservations the Secretary of the Interior, with respect to all powers of control vested in him by specific statutes dealing with leases, permits, loans, and other aspects of the use and disposition of allotted lands, is authorized to exercise such powers in the interest of conservation. On those reservations which are subject to the act of June 18, 1934, the exercise of such powers is not only authorized but is directed by law. The promulgation of rules and regulations is justified to the extent that such rules and regulations are necessary or incidental in accomplishing the foregoing objectives.

    All of the foregoing discussion relates, of course, to the problem of control over allotted lands, the only problem here presented. It should be noted that under statute and court decision a larger degree of administrative control is permissible with respect to the use of Indian tribal lands. On this question Solicitor Margold's memorandum for the Commissioner of Indian Affairs, dated November 11, 1935, makes the following points:

    "Cases upholding departmental authority to prevent waste of tribal lands turn on the proposition that the Indians have only a right of occupancy in tribal lands, with such rights in the land as are possessed by a tenant for life and subject to similar restraint against waste. (United States v. Cook, 19 Wall. 591; Pine River Logging Co. v. United States, 186 U.S. 279.)

    "The estate of an allottee, however, is a legal or equitable fee simple, and such an estate is not subject, by any principle of the common law, to the doctrine of waste. That a trust patent vests in the allottee 'a complete equitable title' (Woodward v. Groffenried, 238 U.S. 284, 318) is well settled law.

    " 'The purpose of the holding in trust by the United States is to prevent allottees from improvidently alienating or encumbering the land, not to cut down or postpone their rights in other respects.' (State of Oklahoma v. State of Texas, 258 U.S. 574, 597).

    "It is equally well settled that a patent subject only to restrictions upon alienation vests in the allottee 'full title', the United States retaining 'no interest whatever'. (United States v. Auger, 153 Fed. 671, 672, app. Dis. 170 Fed. 1021; Schrimpscher v. Stockton, 183 U.S. 290, 299.) * * *

    "The view that the United States has no such interest in allotted lands as would support action against waste is also maintained in Thoyer v. United States, 20 Ct. Cl. 137, in which the Court of Claims held that the issuance of a patent (subject to restrictions upon alienation) related back to the time when the Indian allottee entered into possession and, therefore, estopped the Government 'from setting up any title or claim for waste committed in the meantime' (i.e. after the grant of possession and prior to the final approval of the patent). Thus the doctrine that the estate of an allottee is a fee simple not subject to restraints against waste is here extended even before the patent finally issued.

    "I conclude there is no legal justification for the statement contained in the paragraph marked 'Authorization' that 'Similar authority exists with respect to allotted lands' and recommend that this sentence be deleted from the proposed regulations.

    "In view of the foregoing decisions, the first section of the proposed regulations manifestly exceeds the authority of the Commissioner. As it stands, it purports to authorize and direct the Commissioner to determine how many head of stock each Indian owner may keep upon his own allotment. On its face, this provision covers, in addition to tribal lands, individually owned trust patented lands, and even fee patented lands

whether or not subject to restrictions upon alienation. I think it probable that an attempt to enforce such a provision according to its terms would lead inevitably to violence and would require the assistance of an army. Even if the legal power existed, it would be administratively impossible to regulate the private affairs of each Indian landowner in this way,-and it is significant to note that the Indian Service has never attempted any such supervision. Having reached the conclusion that legal authority for this provision does not in fact exist, I can only advert to the serious consequences that would ensue should some zealous employee of the Department, pursuant to the proposed regulations, enter upon an Indian's land to reduce his herds and be met with violence.

    "No such legal barriers and no such administrative obstacles exist with respect to allotted lands which are under lease or permit. The fact that departmental approval is required in the issuance of a lease or permit covering restricted lands (except where Congress has otherwise directed, as in the case of the Crow Reservation) offers a fulcrum for the exercise of a supervisory power. The exercise of such power to protect an Indian against a lessee who would injure the leased land is very different in its moral and special aspects, as well as in its strictly legal aspects, from the exercise of a similar power to protect an Indian's land against its owner. I am sure that the Indian Service will find its available energies fully engrossed in the attempt to prevent overgrazing upon tribal lands and upon such individual lands as are leased under grazing permits approved by the Department, without attempting the unauthorized and impossible task of reducing the flocks and herds that an Indian grazes on his own land."

    The position taken by Solicitor Margold in the. foregoing memorandum is supported by a brief filed by the Committee on Indian Civil Rights of the American Civil Liberties Union in 1932, attached to Solicitor Margold's opinion as an appendix and separately printed in part 22 of the "Survey of Conditions of the Indians in the United States." ²⁰ So far as I am able to ascertain all of the regulations issued by this Department in the field of Indian Affairs under the present administration have been consistent with the views expressed by Solicitor Margold on the nature of the rights of Indian allottees.

                                                                                                                                                      FELIX S. COHEN,

Approved: August 24, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

    By your memorandum of August 10 you requested me to advise you whether the case involving the embezzlement of certain funds received in the course of their employment by Jose M. Susso and Benjamin Padillo, former gatekeepers at the Puye Cliff Ruins located on the Santa Clara Indian Reservation, may be considered closed.

    The record discloses that both of these men were employed by the tribe by the tribe to collect admission fees to the ruins and that they failed to account for the fees collected. The record also discloses that in the usual course of events the fees solicited for the admission of visitors to these ruins are delivered to the special disbursing officer of the United Pueblos Agency, who pays all administrative expenses and covers the balance into the United States Treasury in a special fund designated "Proceeds of Puye Cliff Ruins, Santa Clara Pueblo." The funds do not appear to be public funds which may be the subject of embezzlement under 18 U.S.C. sec. 100, nor were the men Government employees within the meaning of 18 U.S.C. ch. 5, dealing with offenses relating to official duties.

    The case was presented to the grand jury as a violation of 18 U.S.C. sec. 467, which provides for the punishment of those who receive stolen goods for embezzled money or goods in territory under the jurisdiction of the United States. The grand jury returned a "no bill" and both men have subsequently been tried, found guilty and punished by the tribe in accordance with its tribal laws.

    While 25 U.S.C. sec. 217 extends the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States to the Indian country, the crime of embezzlement is not included in those laws. Further, 25 U.S.C. sec. 218 excepts crimes committed by Indians in Indian country where such Indians have been punished by the local law of the tribe. Therefore, it

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    ²⁰ Hearings before a subcommittee of Senate committee on Indian Affairs, United States Senate, 71st Cong., 2d sess.,
pp. 12246-7.
 

would appear that even though Susso and Padillo had not been punished by the tribe, the Federal courts would have no jurisdiction over the matter. Since they have been punished by the tribe and since the money has been or is being repaid to the tribe, I am of the opinion that the case may be considered closed.

                                                                                                                                                FELIX S. COHEN,

M-31576                                                                                                                                                 August 25, 1942.

Re:

Are lands purchased with unrestricted funds of members of the Osage Tribe and devised to unallotted Osages restricted in the hands of the devisees?

Lands purchased by members of the Osage Tribe with funds not under the supervision of the Secretary of the Interior and devised to unallotted Osages are unrestricted in the hands of such devisees.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether four tracts of land in the State of New Mexico are restricted against alienation in the hands of the present owners. For the purposes of this opinion, this land will be designated as tracts 1, 2, 3, and 4, respectively, of which tracts 1 and 2 are now owned by two unallotted Osage Indians in undivided interests of one-half each and tracts 3 and 4 are owned in undivided interests of one-third each by the same two Osage Indians, the remaining one third undivided interest being owned by a full-blood Peoria Indian.

    Clara Archuleta, Osage Allottee No. 736, was the daughter of Nannie Naranjo, Osage Allottee No. 735, a full-blood Osage Indian, and Juan Naranjo, a full-blood Peoria Indian. Clara died on January 21, 1921, a resident of Rio Arriba County, New Mexico, without having received a certificate of competency, but leaving a will which was duly approved by the Secretary of the Interior on December 20, 1922. Under this will Clara devised and bequeathed to her two daughters, Mary Archuleta (now Coffman), and Josephine Archuleta (now Gilmore), all of her property in equal shares. The will designated Nannie Naranjo, mother of the decedent, as trustee "to have and receive, for the interest of my said daughters, what shall fall to them respectively under this, my will, under all the provisions thereof, until my said daughters shall separately reach the age of 21
years."

    Clara died possessed of certain real property in Osage County, Oklahoma, real property in New Mexico, her Osage headright and certain moneys. Her will was duly probated in the Osage County Court, with ancillary proceedings in Rio Arriba County, New Mexico. The record does not show how tract 1, in the town of Espanola, New Mexico, was acquired on alienation and it is to be assumed that it was acquired, but it was owned by Clara at the time of her death without restrictions on alienation and it is to be assumed that it was acquired by her out of the quarterly payments she received by reason of her membership in the Osage Tribe. Under the terms of her will this property passed to her two daughters, both of whom have now reached the age of 21 years.

    Under the final decree of the Osage County Court, dated November 17, 1925, the executors of Clara's will were directed to pay over for the benefit of the then minor daughters, $33.090.19. As trustee for the minor daughters, Nannie received this money and appears to have purchased tract 2 out of that sum.

    At the time of her death, Nannie Naranjo held a certificate of competency. She was then a resident of New Mexico; and owned tracts 3 and 4 which, under her will approved by the Secretary of the Interior on July 13, 1933, passed in one-third undivided interests each to her granddaughters, Mary and Josephine, and to her husband, Juan.

    There appears to be some question as to whether Clara's husband, the father of Mary and Josephine, had Indian blood, but Clara being a full-blood Indian, these girls have at least one-half Indian blood and are at least one-fourth Osage Indian blood.

    I am of the opinion that the interests of Mary and Josephine in all four tracts are unrestricted.

    With respect to tract 2, the record before me indicates that the funds with which this tract was purchased were released to the trustee for disposition free from departmental supervision and title to the tract was taken on an unrestricted deed. If this be the case, there is nothing contained in the Osage legislation which purports to impose restrictions on lands purchased in such a manner
 

and therefore the lands are restricted in the hands of the present owners.

    Section 3 of the act of February 27, 1925 (43 Stat. 1008), provides that lands devised to members of the Osage Tribe one-half or more Indian blood or who do not have certificates of compentency, under wills approved by the Secretary of the Interior, shall be inalienable unless such lands are conveyed with the approved of the Secretary of the Interior. This section is made applicable to unallotted Osage Indians by section 5 of the act of March 2, 1929 (45 Stat. 1478). If tracts 1, 3 and 4 acquired in the above manner with the unrestricted funds of Clara and Nannie come within the scope of this section, they are restricted in the hands of Mary and Josephine; otherwise not. Section 3 of the 1925 act as amended, taken by itself, would seem to indicate that all lands received by devise under wills approved by the Secretary or inherited by unallotted Osages of one-half or more Indian blood are inalienable except with the approval of the Secretary of the Interior. However, since both the 1925 act and the 1929 act are amendatory of the basic Osage Allotment Act, these provisions must be construed in pari materia to ascertain the intent of Congress.

    The restrictions against alienation imposed on lands of members of the Osage Tribe of Indians and their heirs are found in the act of June 28, 1906 (34 Stat. 539), and act amendatory thereof. A brief discussion of the provisions of these acts and the decisions of the courts applicable thereto is essential to a determination of the question of whether the interests held by the Osage Indians in these lands in New Mexico are restricted or unrestricted.

    In the Osage Allotment Act of 1906, supra, Congress provided for the allotment of the Osage lands, such lands to remain restricted for a period of twenty-five years in the hands of allottees or their heirs. Kenny v. Miles, 250 U.S. 58. Upon application, by an adult allottee, a certificate of compentency could be granted, removing restrictions from all allotted land except the homestead of 160 acres. Under the amendatory act of April 18, 1912 (37 Stat. 86), restrictions were removed on allotted lands inherited from Osage Indians in the hands of heirs who were not members of the Osage Tribe or had certificates of competency. Unallotted Osage Indians, i.e., those born after July 1, 1907, were not regarded as members of the tribe, and restrictions were therefore removed on all allotted lands received by them inheritance from Osage allottees. United States v. LaMotte, 67 F. (2d) 788. Under the 1912 act Osage Indians were authorized to dispose of their restricted estates by will, with the approval of the Secretary of the Interior. This act was construed by the Supreme Court to remove restrictions on land devised by Osage Indians under wills approved by the Secretary of the Interior, regardless of the status of the devisee. LaMotte v. United States, 254 U.S. 570.

    The LaMotte case was decided by the Supreme Court in 1921 and it was then apparent that additional legislation would be necessary to continue restrictions on lands theretofore restricted in the hands of Osage devisees. Thereafter the act of February 27, 1925 (43 Stat. 1008), was passed, which contains the following provision:

    "SEC. 3. Lands devised to members of the Osage Tribe of one-half or more Indian blood or who do not have certificates of competency, under will approved by the Secretary of the Interior, and lands inherited by such Indians, shall be inalienable unless such lands be conveyed with the approval of the Secretary of the Interior. Property of Osage Indians not having certificates of competency purchased as hereinbefore set forth shall not be subject to the lien of any debt, claim, or judgment except taxes, or be subject to alienation, without the approval of the Secretary of the Interior."

    "This section provides that lands devised by will, approved by the Secretary of the Interior, and lands belonging to incompetent allottees, shall not be alienated without the consent of the Secretary of the Interior, thus preventing an incompetent Indian from disposing of the land so received without adequate consideration. This section also provides that property purchased for him, either real or personal, shall be inalienable, the purpose of which is to protect the property which is purchased under supervision; as there is little object or advantage in restricting and supervising the money paid out on behalf of any allottee, if that property in which the fund is invested is not also protected."

roll. The question of whether these unallotted Indians were bound by the restrictions applicable to allotted Indians had been subject of controversy over a period of years and it was in order to remove any doubt as to the status of these unallotted Indians by extending to them the restrictions imposed by law for the protection of members of the tribe that Congress included in the 1929 act the following provision:

    "SEC. 5. The restrictions concerning lands and funds of allotted Osage Indians, as provided in this act and all prior acts now in force, shall apply to unallotted Osage Indians born since July 1, 1907, or after the passage of this Act, and to their heirs of Osage Indian blood, except that the provisions of Section 6 of the Act of Congress approved February 27, 1925, with reference to the validity of contracts for debt, shall not apply to any allotted or unallotted Osage Indian of less than one-half degree Indian blood: Provided, That the Osage lands and funds and other property which has heretofore or which may hereafter be held in trust or under supervision of the United States for such Osage Indians of less than one-half degree Indian blood not having a certificate of competency shall not be subject to forced sale to satisfy any debt or obligation contracted or incurred prior to the issuance of a certificate of competency: Provided further, That the Secretary of the Interior is hereby authorized in his discretion to grant a certificate of competency to any unallotted Osage Indian when in the judgment of the said Secretary such member is fully competent and capable of transacting his or her own affairs."

    The latest act dealing with the tribal and individual affairs of the Osages is the act of June 24, 1938 (52 Stat. 1034). That act amends the original allotment act by reserving the oil, gas and other minerals to the tribe until April 1983, and continues subject to trust and supervision, the lands, moneys and other properties of the Osages, their heirs and assigns, until January 1, 1984.

    Cases arising in both the Federal and State courts have called for construction and interpretation of the language of the acts of February 27, 1925, and March 2, 1929. Brief mention will be made of these cases. In United States v. Howard, 8 Fed.
Supp. 617, in the United States District Court for the Northern District of Oklahoma, the land involved was the allotment of a deceased full-blood Osage. Partition among the heirs, also full-blood Osage allottees, without certificates of competency, had been made in accordance with the provisions of section 6 of the 1912 act. The sheriff's deed had been approved by the Secretary of the Interior as required by that act, and the question was whether the grantees under that partition could convey the real estate without the approval of the Secretary of the Interior. In attempting to ascertain the intention of Congress in section 3 of the 1925 act the court considered the report of the Congressional Committee on Indian Affairs quoted above. The court found that the report "clearly evidences an intention by Congress to reimpose restrictions upon all lands belonging to incompetent allottees, without respect to the manner in which such lands were acquired." (Emphasis supplied.)

    The court said:

  "A reading of the act discloses that its purpose is to protect incompetent Osage allottees, and this protection comes about from a requirement of an approval of the Secretary of the Interior of conveyances. There can be no question but that Congress is authorized to reimpose restrictions upon lands which have become freed of such restrictions. . . . The purpose of the act plainly appears from the language employed in it; it undertook to reimpose restrictions upon all property whether inherited by or purchased for incompetent members of the tribe. . . .

    "I am of the opinion that the 1925 act of Congress reimposed restrictions upon all lands of incompetent Osage allottees, and that while the lands were freed in the partition proceeding, such restrictions were reimposed by section 3 of the Act of Congress of February 27, 1925. . . ." (Emphasis supplied.)

without a certificate of competency, who had inherited the land restricted from the original full-blood allottees. On the death of Agnes in 1932 her share was inherited in part by her husband, an unallotted Osage Indian of less than half Indian blood. He had not received a certificate of competency. The court reached the same conclusion as that set forth in the above-mentioned Solicitor's Opinion that as Agnes had inherited her interest prior to the enactment of the 1929 act, her interest was unrestricted under the provisions of the act of 1912, supra, but that the 1929 act reimposed restrictions in her hands and that her husband who had not received a certificate of competency inherited his share restricted in accordance with the terms of the 1929 act..

    Cox v. Smith, 43 P. (2d) 439, decided by the Supreme Court of Oklahoma, involved lands which had been purchased in 1921 from his ownfunds by Henry Red Eagle, a full-blood Osage allottee who did not have a certificate of competency. Henry died in 1929 and under a will approved by the Secretary of the Interior these lands were devised to his unallotted granddaughter. It was contended in the brief for the Indian devisee that section 7 of the act of Congress approved April 18, 1912, supra, imposed restrictions upon the land purchased by Henry as soon as title vested in him, under the first portion of the section which reads:

    "That the lands allotted to members of the Osage tribe shall not in any manner whatsoever be incumbered, taken, or sold to secure or satisfy any debt or obligation contracted or incurred prior to the issuance of a certificate of competency or removal of restrictions on alienation; nor shall the lands or funds of Osage tribal members be subject to any claim against the same arising prior to grant of a certificate of competency."

". . . There is no provision in the Act of 1906 or that of 1912 which reimposes restrictions after they have been removed, or which subjects to restrictions all lands, however acquired, which a member without a certificate of competency may own."

". . . this legislation may have been prompted by the fact that in the LaMotte case, supra, the Supreme Court had held that a will was a method of conveyance and the approval of a will by the Secretary removed restrictions, and the act passed to provide a rule different to the conclusion in that case. However, the thought of Congress was to continue restrictions in the donee and not to impose restrictions where none existed. It continued the restrictions on the land after it passed to the Indian to whom it was willed. The language of this section is not as far-reaching in imposing restrictions on Henry Red Eagle as that of the act of 1912, which the Supreme held did not impose such restrictions. Therefore, this portion of this act was not broad enough to reach the lands while the title was in Henry Red Eagle."

    "The land in controversy, being unrestricted, did not require the approval of the Secretary to convey it by will. There was no law authorizing the approval of the conveyance of such land by will, and his approval of the will, so far as the land involved here was concerned, had no effect; and, therefore, this section does not apply to the conveyance of lands upon which there are no restrictions. There were no restrictions upon the land in controversy of Henry Red Eagle."

    It is concluded, therefore, in accordance with the holding in Cox v. Smith, supra, that tract 1, which was owned by Clara Archuleta in an unrestricted status at the time of her death, passed under her will to her two daughters without restrictions. Tract 2 having been purchased by the trustee of the estate of Clara Archuleta with unrestricted funds was at no time restricted prior to the passage of the act of March 2, 1929, and there are no provisions in the said act or in any other act imposing restrictions on lands of this nature. Tracts
 

3 and 4 belonged to Nannie Naranjo who had a certificate of competency. These tracts were unrestricted in the hands of Nannie Naranjo and there are no grounds for holding that they became restricted in the hands of her heirs or devisees.

                                                                                                                                                FELIX S. COHEN,

Approved: August 25, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

Hon. Harry McMullan,
Attorney General of North Carolina,
Raleigh, North Carolina.

MY DEAR MR. MCMULLAN:

    Your letter of June 16 raises the question whether the Indians of the Cherokee Indian Reservation in Swain County, North Carolina, have a status to be distinguished from that of other American Indians, at least in respect to the imposition of a State income tax on income derived by members of that tribe from their employment with the Federal Government.

    After a careful study of the case of United States v. Wright, 53 F. (2d) 300, which you cite in your letter, and of the history of the Cherokee Indian Reservation in North Carolina in general, it is my conclusion that there is no such difference in status as would permit a different conclusion to be reached in the case of these Indians from that at which I arrived generally in my memorandum opinion of July 30, 1941. In that opinion I held that the income derived by Indians employed by the Federal Government may not be taxed by the several States. I pointed out that section 4 of the Public Salary Tax Act of April 12, 1939 (53 Stat. 574), permitted the taxation of the salary of such Federal employees "by any duly constituted taxing authority having jurisdiction to tax such compensation." It has been the policy of Congress for more than a century "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 discretion, therefore, the State has no jurisdiction to tax such income and is, therefore, not a "duly constituted taxing authority" of the income in question in the meaning of section 4 of the Public Salary Tax Act.

    It is true that during a certain period in their history, namely, between the treaty of New Echota in 1835 (7 Scat. 478) and the act of July 27, 1868 (15 Stat. 223), the Indians who now constitute the Eastern Band of Cherokees of North Carolina occupied an exceptional position in that they had left their regular tribal organization and become subject to the laws of the State of North Carolina and had lost all title to the lands which they continued to occupy. By the act of July 27, 1868, however, Congress regularized their position and instructed the Secretary of the Interior to "cause the Commissioner of Indian Affairs to take the same supervisory charge of the Eastern or North Carolina Cherokees as of other tribes of Indians." From that time on the Indians were again treated as wards of the Federal Government receiving all the benefits and supervision generally accorded to other Indians in the United States. It is true that thereafter, in 1889, the Indians obtained a corporate charter from the North Carolina Legislature (North Carolina Private Laws 1889, ch. 211) which regulated their tribal functions. The United States, however, did not cease during this entire period to exercise its guardianship over these Indians.

    The act of June 4, 1924 (43 Stat. 376), authorized the tribe to convey all its land which it had obtained since the treaty of New Echota to the United States. These lands were then declared tax free. This provision of the act of 1924 was upheld by the ruling in United States v. Wright, supra. When the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), was passed it was held to extend to the Cherokees who thereupon voted in favor of the act.

    This brief history would seem to show that since the act of 1868, and certainly since the act of 1924, the Cherokees have in every respect been treated by the Federal Government as any other tribe of Indians and have enjoyed the same benefits and protection as Federal wards. There is thus no doubt in my mind but that whenever Indians residing on the Cherokee Indian Reservation in North Carolina are employed by the Federal Government such employment is part of the Federal program for the advancement of the Indians. It should, therefore, be protected as a Federal instrumentality just as the employment of other Indians. The
 

State of North Carolina cannot, in my opinion, be held to be a "duly constituted taxing authority having jurisdiction to tax such compensation" any more than any other State has jurisdiction to tax the salary of any other Indian employed by the Federal Government on an Indian reservation in pursuance of the same Federal policy for the advancement of the Indians.

    I trust that the above will help to clarify the position of the North Carolina Cherokee Indians employed by the Federal Government.

                                                                                                                                                FELIX S. COHEN,

Mr. J. W. Elliott,
Superintendent, Warm Springs Indian Agency,
Warm Springs, Oregon.

MY DEAR MR. ELLIOTT:

    This will acknowledge the receipt of your letters of July 29 and August 17 addressed to former Solicitor Margold regarding the boundary suit of the Warm Springs Indians against the United States in the Court of Claims (No. M-112, decided November 3, 1941).

    You request in your letter of July 29 that study be given by this office to the effect of the decision and to the question of how the Indians can best protect their interest in the recovery. You also suggest that the Indians would prefer to recover the actual land which the Court of Claims held to have been erroneously excluded from the reservation rather than the money value thereof.

    In my opinion, the decision of the court expressly precludes the recovery of the land. The only method by which the Indians might acquire this land in the future would seem to me to be by means of legislation providing for the turning over to the tribe of that part thereof still in Federal ownership and authorizing the acquisition of lands in private ownership through an appropriation by Congress of Federal funds in satisfaction of the final judgment of the Court of Claims or through the use by the tribe of whatever funds Congress may appropriate to satisfy the judgment, for the acquisition of such privately owned land. However, while such legislation is being considered, I think that it would be advisable for the tribe, through its attorneys, to proceed with a determination of the amount due to the tribe in accordance with the decision of the Court of Claims.

    As for the restoration of the fishing rights which were abrogated by the treaty of 1865, which is discussed in your letter of August 17, this too, can be accomplished, if at all, only by means of some form of congressional legislation. I think that the first step to be taken should be an investigation by the Indian Office of the circumstances surrounding the abrogation of the treaty. In view of the adverse decision of the Court of Claims, it will no doubt prove difficult to secure the enactment of such legislation, and a very careful consideration of the whole problem will be necessary. I believe that the next step should be for the Indian Office to make recommendations and submit a draft of whatever legislation it would see fit to recommend. This office would then be in a position to advise concerning any legal problems which may be involved in such legislation.

    I am forwarding the copies of your letters to me, together with a copy of Mr. Goodwin's letter to Mr. Krier, to the Commissioner of Indian Affairs, with a request that the letter be given consideration along the lines suggested herein.

                                                                                                                                            WARNER W. GARDNER,

58 I.D. 149

M-31237                                                                                                                                           October 14, 1942.

Re:

1. May an illegitimate Indian child represent his deceased mother in order to share in the allotments of his mother's kindred, notwithstanding the applicable provisions of the State law of descent, by reason of section 5 of the act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371).

2. May legitimate Indian children represent their deceased father, who was an illegitimate, in estates of their father's collateral kindred, notwithstanding the applicable provisions of the State law of descent by reason of section 5 of the act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371).

3. May an illegitimate Indian child represent his deceased father in estates of his father's kindred by reason of section 5 of the act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371).

1. The act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371), did not confer on illegitimate Indian children such a status of legitimacy as would permit them to share in estates of their mothers' kindred by representing their deceased mothers.

2. Legitimate Indian children may represent their deceased father who was illegitimate, only if such father could have shared in the estates of his kindred.

3. An illegitimate Indian child may represent his deceased father in estates of his father's kindred by reason of section 5 of the act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371).

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether, by reason of section 5 of the act of February 28, 1891 (26 Stat. 794, 795, 25 U.S.C. sec. 371), certain persons may share in the estate of Milo Jacobs, deceased Colville Allottee No. S. 1923. The estate consists of a trust allotment in the State of Washington.

    Milo Jacobs died in 1928, without issue. He was survived by a wife, a full brother, and 15 nephews and nieces. It is the right of the nephews and nieces to inherit which is here in question.

    Milo Jacobs' mother was a Colville Indian who was married to a white man. From this marriage three children were born: Milo, the instant decedent; George, who was living at the date of Milo's death but who died in 1930, and Emma, who died in 1915, prior to the death of Milo, and who is survived by an illegitimate son, Isaac Thatcher, whose father is unknown. Milo Jacobs' mother also had an illegitimate son, by a white man. This son, Barney Rickard, died in 1924, before Milo's death, and left 14 legitimate issue.

    Two questions are therefore presented for consideration:

    1. Is Isaac Thatcher, the illegitimate nephew, entitled to inherit by representing his predeceased mother, a legitimate, sister of the decedent, Milo Jacobs?

    2. Are the 14 legitimate children of Barney Richard, the predeceased illegitimate half brother of the decedent, Milo Jacobs, entitled to inherit by representing their father?

    Milo Jacobs' heirs must be determined by you¹ in accordance with the laws of descent of the State of Washington, except as otherwise provided by section 5 of the General Allotment Act of February 8, 1887 (24 Stat. 388, 389, 25 U.S.C. sec. 348), as amended. The Washington law, so far as material, provides:

"Every illegitimate child shall be considered as an heir to the person who shall in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he shall not be allowed to claim, as representing his father or mother, any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father, after such marriage, shall have acknowledged him as aforesaid, and adopted him into his family, in which case such child and the legitimate children shall be considered as brothers and sisters, and on the death of either of them intestate, and without issue, the others shall inherit his estate, and he theirs, as heretofore provided in like manner as if all the children had been legitimate, saving to the father and mother, respectively, their rights in the estate of all the said children, as provided heretofore in like manner as if all had been legitimate." ² (Emphasis supplied.)

____________
    ¹ Act of Congress of June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372). Lane v. Mickadiet, 241 U.S. 201 (1916); Hallowell v. Commons, 239 U.S. 506 (1916); Dixon v. Cox, 266 Fed. 285 (C.C.A. 8th 1920), app. dis. 258 U.S. 634 (1921).

    ² Remington's Revised Statutes of Washington, vol. 3, sec. 1345.
 

    Section 5 of the General Allotment Act, supra, provides that the Secretary of the Interior

    ". . . shall cause patents to issue therefore in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, . . . in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, . . . Provided, That the law of descent and partition in force in the State or Territory where such lands are situate shall apply thereto after patents therefore have been executed and delivered, except as herein other wise provided . . ."

    "That for the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of the fifth section of said act, whenever any male and female Indian shall have co-habited together as husband and wife according to the custom and manner of Indian life and the issue of such co-habitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child: . . ."

    In my opinion these words cannot confer upon Isaac Thatcher a status of legitimacy which would permit him to represent his mother in this estate. These words make illegitimates the legitimate issue of their fathers for certain purposes connected with the descent of restricted Indian estates but there is nothing in the section to indicate that any modification of the State laws with respect to the rights of illegitimates to inherit from or through their mothers was intended by Congress.

    It is well-established that statutes must be construed in the light of the purpose which Congress was attempting to accomplish and of the evil which it was attempting to correct. Waskey v. Hammer, 223 US. 85 (1912); Thompson v. Thompson, 218 U.S. 611 (1910). When this particular amendment to the General Allotment Act was enacted a complete plan for the determination of the heirs of allottees had not been formulated by Congress. It was not until some 23 years after the passage of the General Allotment Act and 19 years after the passage of this amendment that the Secretary of the Interior was, by the act of June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372), given the exclusive authority to determine the heirs of deceased allottees.

    The act of 1887, supra, did not confer upon the States any authority to determine the status of persons claiming as heirs. Neither did it confer upon any tribunal, State or Federal, the authority to determine such heirs. Many courts, however, assumed the functions of determining heirs of deceased Indian allottees and this Department, when it found such determinations to be correct, often approved deeds passing title to property to heirs determined by the State courts. The State courts, in deciding the issue of who should be the heirs of another, no doubt applied their State standards of marriage and legitimation.

    Under the common law an illegitimate child had no right to inherit either from his father or his mother and, of course, he could not represent either of them in order to take from their relatives. Any rights which illegitimates had in 1891 had been conferred upon them by the action of the various legislatures. A great many of the States at that time had conferred upon such children the right to inherit from their mothers and permitted them to inherit from their fathers if the fathers had conformed with the State statutes regarding legitimation. These statutes usually provided that an illegitimate child might inherit from his father if the parents had subsequently intermarried or if the father had acknowledged the child in the manner required by the particular statutes. Except in the case of subsequent intermarriage or acknowledgement by the fathers most of the western States did not at that time permit illegitimate children to represent either of their parents in estates of their kindred, lineal or collateral.³

    Thus the rights of Indian children to share in

___________
  ³ Colorado, Mills Annotated Statutes 1891: Dakota Territory, Compiled Laws, 1887, sec. 3403; Idaho, Revised Statutes 1887; Michigan, Howell's Annotated Statutes, 1882, sec. 5773: Minnesota, General Statutes of Minnesota, vol. 1, 1878, vol. 2, Supplement to 1888. ch. XLVI sec. 2: Montana, Compiled Statutes, 1887, sec. 536: Nevada, Compiled Laws 1891, sec. 1125; Oklahoma Territory, Session Laws, 1890. sec. 5; Washington, Hill's Annotated Statutes and Codes, 1891, sec. 1484; Wisconsin Annotated Statutes 1889.
 

allotments could be defeated by the failure of the Indians to meet the marriage requirements of the State or by the failure of the natural fathers to meet the technical requirements of the State statutes regarding legitimating. It was evidently for the purpose of correcting this situation that the above provision-section 5 of the act of 1891, supra-was incorporated in an act which had for its primary purpose a change in the existing allotment law governing the amount of land which each individual Indian should receive.

    By this section, Congress removed all doubt as to the inheritable capacity of children born of Indian custom marriages. Careful analysis of the second provision of the section, dealing with the inheritable capacity of children not legitimated by the first provision, leads me to believe that Congress intended to relieve such children from the applicability of the State law so far as inheritance from and through their fathers was concerned but it intended to leave their status so far as inheritance from and through their mothers was concerned unchanged.

    Clearly some distinction must have been contemplated between the first and second provisions of the section. Had Congress intended to legitimatize such children for all purposes connected with the descent of land, it is reasonable to assume that it would have done so in one provision. It would not have conferred a status of legitimacy on certain of these children in one provision and on all others in the next. It is evident that Congress was not only legislating for a different class in the second part of the section but that a different provision for that class was contemplated. Any other construction of the second provision of the section would make the first provision thereof meaningless.

    This construction of the provision now under consideration is borne out by the legislative history of the section. Section 5 of the 1891 act was introduced in the Senate in the exact language as the section now appears in the statute. As reported by the Senate Committee on Indian Affairs, no change was made in the second provision although the words "whenever any male and female Indian shall have cohabited together" were stricken and the words "whenever any man and woman either of whom is in whole or in part of Indian Blood shall have cohabited together" were inserted. The bill passed the Senate as amended by the Committee.⁴ When the bill was reported by the House Committee on Indian Affairs, that Committee substituted the words of a pending House bill on the same subject. As reported by the House Committee, the bill provided that every illegitimate Indian child should be taken and deemed to be the legitimate issue of the parents of such child.⁵ The bill passed the House as reported by the Committee.⁶ The Senate refused to concur in the House amendment,⁷ and the bill went to conference. The conferees recommended that both Houses accept the section as originally introduced in the Senate and both Houses accepted this recommendation. ⁸

    It is significant to note that language which would have eliminated all doubt as to the capacity of illegitimate children to inherit from and through both of their parents was before the Congress and it deliberately chose language making the child the lawful issue of the father only. It must be assumed that Congress intended to leave the question of inheritance by such children from and through their mothers for determination in accordance with the provisions of the various State laws.

    Shortly after the Department was given exclusive jurisdiction to determine the heirs of deceased Indians, a former Solicitor considered section 5 in an opinion dated September 15, 1914. After reviewing the general situation existing at the time of the passage of the act of 1891, the Solicitor said: "Evidently the purpose of the act of 1891 was to provide a general rule more nearly fitted to the mode of life of the Indians to govern in this matter." In considering the clause "and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child," the Solicitor said:

    ". . . This is broad enough to include the children of Indians who have not co-habited together as husband and wife and there is nothing to indicate that the plain purport of the words was not intended. I am of opinion, therefore, that it must be construed to include Indian children who would be illegitimate even under Indian laws and customs . . . The provisions in question, therefore, makes these children legitimate for all purposes connected with the descent of land. In my opinion the father may inherit from such child, the legitimate issue of either parent may likewise inherit from such child, and the child may inherit by representing either of its parents."

__________
    ⁴ 21 Cong. Rec., p. 10705 (1890).

    ⁵ H.R. Rept. 1809, 51st Cong., 1st sess. (1890).

    ⁶ 21 Cong. Rec., p. 10705 (1890).

    ⁷ Id., p. 10710.

    ⁸ 22 Cong. Rec. 3118, 3152 (1891).
 

their mothers and fathers. See cases of John Hillis (51697-12) and Raphael Pajanim (125732-15).

    In 1919, the provision was reexamined in the case of May Caramony (D. 43035). May Caramony was an illegitimate child and the question presented was whether her father should be permitted to inherit from her. In refusing to permit the father to share in her estate, the Department said:

    ". . . Under the existing construction placed on section 5, no distinction is made between children coming under either the first or the additional clause. In other words no distinction is recognized so far as resultant benefits are concerned between the children of a valid Indian custom marriage and children born of illicit relations. The effect is to recognize as legitimate for 'all purposes' the offspring even of adulterous relations."

    "In view of the foregoing considerations the construction placed upon the second clause of section 5 of the act of February 28, 1891, in Solicitor's opinions of September 15, 1914 and February 2, 1915, will no longer be followed. Hereafter the class of children contemplated by said clause will be regarded as legitimate only for the purpose of inheriting from the father . . ."

    Therefore since Isaac Thatcher, an illegitimate, may not inherit by representing his mother under the laws of the State of Washington and since his rights in this respect were not changed by the act of 1891, supra, my answer to the first question is that he may not share in the estate of Milo Jacobs.

    The second question is whether the 14 legitimate children of Barney Rickard, the predeceased illegitimate half-brother of Milo Jacobs, may share in Milo Jacobs' estate by representing their father. The laws of Washington provide with respect to inheritance by representation:

    "Inheritance or succession by right of representation takes place when the descendants of any deceased heir take the same share or right in the estate of another that their parent would have taken if living." ¹⁰

    In its submission of the above questions for an opinion the Office of Indian Affairs asks also that one other phase of the question of the rights of illegitimates to inherit restricted estates be clarified. It states that the Caramony decision has been considered authority for holding that an illegitimate child not inherit by representing either of its parents. I believe that no departmental decision accepts this view. The Caramony decision is not

________
  ⁹ Mike Weeks (1904-36); Albina Smith Lanigreen (72557-38) ; Eunice Lose (10582-37) ; Frank Moore (6445-37); Joseph-Too-too (41446-34); Esther McKenzie Poor (7302-29); Zelo Big Tail (13627-38); Margaret Baker Necklace (34408-35) ; Lydia O. St. Pierre (4655-29).

  ¹⁰ Remington's Revised Statutes of Washington, Vol. 3. sec. 1355.
 

authority for holding that an illegitimate child may not inherit by representing his father. On the contrary, in that very case, an illegitimate was permitted to inherit by representing his father, who was barred from participating in the estate.

    By the 1891 amendment to section 5 of the General Allotment Act, Congress declared illegitimate children to be the legitimate issue of their fathers. From this declaration it would seem that all of the rights of inheritance that go with being the legitimate issue of such fathers were thereby conferred upon the children. Congress did not limit this right of inheritance by declaring that they should be permitted to inherit only from the fathers. Statutes legitimatizing children should be liberally construed. In re Shipp's Estate, 144 Pac. 143 (Calif. 1914). It must, therefore, be assumed that Congress realized that by declaring such children to be the legitimate issue of their fathers it was doing more than declaring that they might be permitted to inherit from their natural fathers. The legislation must also be read with the settled rule that when a person has been made the lawful issue of another he obtains an inheritable status and he may receive and transmit property from that other's collateral and lineal kindred in the same manner as those born in lawful wedlock. In re Sheffer's Will, 249 N.Y. Supp. 102 (1931); Blythe v. Ayres, 31 Pac. 915 (Calif. 1892); McKamie v. Baskerville et al., 7 S.W. 194 (Tenn. 1888); Pratt v. Pratt, 5 Mo. App. 539 (1878).

    There is only one sentence in the Caramony decision which might be construed as precluding inheritance by representation of the father. I refer to the sentence: "Hereafter the class of children contemplated by said clause will be regarded as legitimate only for the purpose of inheriting from the father." A study of the decision leads me to believe that these words were used to distinguish between the rights of the child and the rights of the father so far as inheritance was concerned and that the words were not intended to limit the rights of a child to inheritance directly from the father.

    I have found only one departmental determination made since the Caramony decision-the case of Anderson White (13570-35)-in which the question of the right of an illegitimate to represent his father was involved. In that case the child was barred from participation in the estate by reason of a provision of a State law. No reference was made to the effect of the 1891 act on such a situation. In my opinion that decision is wrong.

    I conclude, therefore, that illegitimate children should be permitted to inherit by representing their fathers because they were made the legitimate issue of their fathers by section 5 of the 1891 act, supra.

                                                                                                                                            WARNER W. GARDNER,

    On August 25, 1941, you submitted to this office a letter from Mr. Leo Weaver, secretary of the Flagstaff Chamber of Commerce, dated August 19, 1941, inquiring into the possibility of protecting the sacred "Snake Dance" of the Hopi Indians of Arizona against commercial exploitation by the so-called "Smokis," a group of white men performing this dance at Prescott, Arizona, and charging admission to their performances.

    In ascertaining the most appropriate course for the protection of the Hopis you suggest the possibility of invoking the copyright law (35 Stat. 1077, 17 U.S.C. sec. 8), which provides, "the author or proprietor of any work made subject of copyright by this title . . . shall have copyright for such work under the conditions and for the terms specified in this title." (Emphasis supplied.)

    Among the several classes of work subject to copyright are "dramatic or dramatico-musical compositions" (ibid., sec. 5). The Snake Dance, if at all copyrightable, must therefore qualify as a "dramatic or dramatico-musical composition." In discussing the character of such compositions, the court in Fuller v. Bemis, 50 Fed. 926, 929, said:

"It is essential to such a composition that it should tell some story. The plot may be simple. It may be but the narrative or representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. And when it does, it is the ideas thus expressed which become subject of copyright. . . . The merely mechanical movements by which effects are produced on the stage are not subjects of copyright . . ."

arises out of a legend that ". . . the children of the union of the Snake Hero and the Snake Maid were transformed into snakes, hence snakes are regarded by the Hopi as their elder brothers . . ." Hodge, Handbook of American Indians, part 2, p. 605. A legend is no more copyrightable then is the story of Noah's Ark. But even if it were copyrightable as a literary or musical composition, the dance itself, the mechanical movement of the dance, according to an informal opinion given me by Dr. Smith of the Copyright Office, cannot by its very nature be subject to registration.

    Then, too, fundamental in copyright, common law or statutory, is the protection against infringement of a proprietary interest or authorship in a work of art, music, or literature. "The Snake dance is celebrated principally as a prayer for rain." Id. It is a form of religious manifestation. It is not a personal creation in which authorship or proprietorship can be claimed. Remnants of the dance are found outside the Hopi area at ". . . Zuni, Laguna, and among other Rio Grande villages." Ibid., p. 605. I am of the opinion, therefore, that as the dance is in the nature of a spiritual expression, a ritual and ceremony which has evolved through custom, tradition, and indoctrination in religious beliefs, it is not subject to registration through copyright.

    A suit in restraint of trade is suggested as an other possibility of protecting the Hopis, but in my opinion their interest in the dance is too intangible and is not of such a character as will support proceedings based on unfair competition. Then, too, I question the propriety of placing so deeply a religious ceremony on such a mercenary competitive basis.

    I have also considered the possibility of proceeding criminally against the "Smokis." Thus, if it can be determined that the "Smokis" are using the mails for purposes of advertising, the statute (18 U.S.C. sec. 388) forbidding the use of the mails for fraudulent purposes may be invoked. If they are not using the mails, it may be possible to proceed in the Arizona State court under the State's false personification statute (Ariz. Code Ann. (1939) secs. 43-2101, 2102), or under the palming-off, the taking of money with intent to defraud, or the false and misleading advertising statutes (ibid., secs. 43-104, 43-2620).

    Should you deem it desirable to proceed along these lines, please furnish this office with such information as may be available so that we can decide upon the most appropriate course. Specimen copies of the actual advertisements would be desirable as would be a detailed explanation of the other methods employed by the "Smokis" to induce the public to attend their performances.

                                                                                                                                            WARNER W. GARDNER,

Memorandum for Assistant Secretary Chapman:

    The General Land Office has submitted the annexed draft of a revision of the regulations governing rights-of-way over public lands and reservations for electrical plants and transmission lines.

    The Geological Survey has failed to concur in recommending approval of the proposed revision because, according to Dr. Mendenhall's annexed memorandum, it "would eliminate the Geological Survey as a factor in the consideration and granting of rights-of-way for power purposes, leaving this work entirely in the hands of nontechnical employees of the General Land Office." This view appears to be based on changes in section 245.27 of the regulations which may be briefly described as follows: Under the existing regulations the Geological Survey considers applications for rights-of way, determines whether they are complete "with reference to the requirements of the Geological Survey," makes recommendations with regard to their allowance and drafts permits and agreements. Under the proposed regulations the Geological Survey will examine such applications and report as to their "relationship to plans for comprehensive development of the natural resources involved, as to the compatibility of proposed construction and use of lands with existing or other proposed works or with other land-use projects, as to the propriety and feasibility from an engineering standpoint of construction proposed, and as to other matters of an engineering or technical nature." The proposed regulations, accordingly, will accomplish a vesting in the General Land Office exclusively of the function of making recommendations with regard to the allowance of applications, and a transfer from the Geological Survey to the General Land Office of the function of drafting permits.

    In approving the proposed revision from a legal standpoint I have done so without reference to the jurisdictional question raised by the Geological
 

Survey, the determination of which is a purely administrative matter.

    I should also point out that these regulations have hitherto been interpreted as providing for the granting of rights-of-way over allotted Indian lands under the acts of February 15, 1901 (31 Stat. 790, 43 U.S.C. sec. 959), and March 4, 1911 (36 Stat.
1253, 43 U.S.C. sec. 961). The Circuit Court of Appeals, 18th Circuit, has recently ruled that the acts of February 15, 1901, and March 4, 1911, supra, are without application to lands allotted in severalty to individual Indians. United States v. Oklahoma Gas & Electric Co., 127 F. (2d) 349 (1942). Since this decision was rendered we have refrained from issuing rights-of-way over allotted lands, accepting the narrow interpretation of the scope of departmental authority placed upon these statutes by the Circuit Court. Certiorari in this case has just been granted by the United States Supreme Court. If the Supreme Court on review upholds the position of the 10th Circuit Court of Appeals, the Department will have to continue its narrow interpretation of the statutes as inapplicable to allotted Indian lands. If, on the other hand, the Supreme Court reverses the Circuit Court of Appeals, the regulations may be broadly interpreted, as they have been in the past, to include allotted lands.

    So long as we are forced to hold that the acts are without application to allotted Indian lands, it will be necessary for those desiring to use such lands for electrical plants and transmission lines to obtain for each allottee an easement deed covering the land necessary for such purposes.

    I find the revision of the regulations otherwise unobjectionable from a legal viewpoint.

                                                                                                                                            WARNER W. GARDNER,

M-31897                                                                                                                                            October 20, 1942.

Re:

Whether section 18 of the act of February 14, 1920 (41 Stat. 408, 426), which vests in the Superintendent for the Five Civilized Tribes of Oklahoma certain responsibilities respecting the disposition of restricted Indian moneys, is superseded by section 1 of the act of January 27, 1933 (47 Stat. 777), which relates to the responsibilities of the Secretary of the Interior with respect to such moneys.

1. Section 18 of the act of February 14, 1920, is not superseded by section 1 of the act of January 27, 1933.

2. The earlier statute, while still in force, must be limited in application to the payment of "undisputed claims," and it has no bearing upon the removal of restrictions at the request of the Indians concerned.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question of whether section 18 of the act of February 14, 1920 (41 Stat. 408, 426), which vests in the Superintendent for the Five Civilized Tribes of Oklahoma certain responsibilities respecting the disposition of restricted Indian moneys, is superseded by section 1 of the act of January 27, 1933 (47 Stat. 777), which relates to the responsibilities of the Secretary of the Interior with respect to such moneys.

    Section 18 of the sot of 1920 provides:

    ". . . That hereafter no undisputed claims to be paid from individual moneys of restricted allottees . . . or uncontested . . . leases . . .made by individual restricted Indian allottees . . . shall be forwarded to the Secretary of the Interior for approval, but all such undisputed claims or uncontested leases . . . shall hereafter be paid, approved, rejected, or disapproved by the Superintendent for the Five Civilized Tribes of Oklahoma: Provided, however, That any party aggrieved by any decision or order of the Superintendent for the Five Civilized Tribes of Oklahoma may appeal from the same to the Secretary of the Interior with in 30 days from the date of said decision or order."

    "That all funds and other securities now held by or which may hereafter come under the supervision of the Secretary of the Interior . . . shall remain subject to . . . expenditure . . . for the use and benefit of the individual Indians to whom such funds and securities

belong, under such rules and regulations as said Secretary may prescribe: . . ."

    Prior to 1933, the Secretary exercised general supervision over the handling of individual restricted funds subject to various statutory limitations. One of these limitations was that contained in the 1920 act. The purpose of the provision in that act prescribing a particular procedure with respect to "undisputed claims" was to eliminate duplication and waste, avoid unnecessary delay and curtail the cost of administrative expenditures in handling all of the undisputed claims. (Cong. Rec., 66th Cong., 2d sess., pp. 12781-80; 65th Cong., 3d sess., pp. 2005-09; 65th Cong., 2d sess., pp. 6623-36, 6676-85.) There was no incompatibility between the Secretary's general supervision of the subject and the observance of this procedure prior to 1933, and there is none today. Supervision which takes the form of review on appeal is as legitimate a form of supervision as any other. A statutory prescription of this particular form must be viewed as parallel to many other statutory restrictions upon the subject matter which the Secretary of the Interior was compelled to observe prior to 1933 and which he is still compelled to observe. Upon the wisdom of this statutory restriction I offer no comment. Clearly it reflects a dissatisfaction on the part of Congress with delays incidental to the referring of routine business to Washington. Congress has not indicated any change from the attitude on this subject which it took in 1920.

    Since, therefore, there is no incompatibility between the two statutory provisions, I must hold that the requirement of the 1920 statute is not repealed by the 1933 act.

    To this conclusion I must add the observation that while the procedural requirements of the 1920 statute have not been extinguished by anything contained in the 1933 act, the scope of the 1920 statutory requirement has, in my opinion, been misunderstood by the Superintendent of the Five Civilized Tribes. Correspondence from that official expressed the view that the 1920 statute vests in the Superintendent a broad authority with respect to the withdrawal of Indian moneys by Indians themselves. This view is apparently based upon an overruled Solicitor's opinion (D. 44083, February 7, 1919). The decision rendered in 1919 by Solicitor Mahaffie was reversed on November 4, 1921, in an opinion rendered by Solicitor Booth (M. 6397). The latter opinion held:

    "A request or demand by the Indian himself for any part or all of his funds is not such a 'claim' as would bring the matter within the statute."

                                                                                                                                            WARNER W. GARDNER,

Approved: October 20, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

M-31653.                                                                                                                                        November 21, 1942.</