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DEPARTMENT OF THE INTERIOR

AUGUST 24, 1942

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."

    On the question of whether the Indians would be in the same position as white landowners with respect to compliance with Government agricultural policies, the Indians received this assurance in a circular entitled "Questions and Answers Concerning the Indian Reorganization (Modified Wheeler-Howard) Act," signed by the Commissioner of Indian Affairs:
    "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)
    Repeated assurances were given to the Indians by representatives of this Department that in voting to accept the act of June 18, 1934, they would not be surrendering any rights or powers which they then possessed over their allotments. Under the circumstances, I believe that it would be a breach of faith to hold at this time that on those Indian reservations which are subject to the act of June 18, 1934, Indian allottees and Indian allotments are subject, under section 6 of that act, to obligations, restraints, and liabilities not applicable to other reservations.

    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.
 



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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.) * * *

After quoting from and discussing the case of United States v. Paine Lumber Co., supra, Solicitor Margold went on to say:
    "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




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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,

Acting Solicitor.

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

JURISDICTION--EMBEZZLEMENT
BY TRIBAL EMPLOYEE


 
August 25, 1942.

 Memorandum for the 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.
 



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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,

Acting Solicitor.


LANDS PURCHASED WITH UNRESTRICTED
FUNDS OF OSAGE INDIANS-TRUST CHARACTER
AFTER DEVISE

M-31576                                                                                                                                                 August 25, 1942.

Synopsis of
Solicitor's Opinion

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?
Held:
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.
The Honorable,
The Secretary of the Interior.

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
 



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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."
    The report of the Committee on Indian Affairs of the House of Representatives (Report No. 260, 68th Cong., 1st sess.) explains this provision as follows:
    "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."
    The basic Osage legislation was further amended by the act of March 2, 1929, supra, to provide protection for Osage children born after July 1, 1907, who were excluded from enrollment and allotment under the Allotment Act of 1906. As time passed, enrolled members had died and their lands frequently passed to those unallotted children whose names did not appear on the final membership
 



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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."
    After enactment of the latter provision, the United States Circuit Court of Appeals, in United States v. LaMotte; 67 F. (2d) 788, held that prior to 1929 unallotted minors inherited allotted lands free from restrictions and that conveyances of such lands made prior to 1929 without the the Secretary of the Interior were valid.

    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.)

    In United States v. Johnson, 29 Fed. Supp. 300, also decided by the United States District Court for the Northern District of Oklahoma, the deed under discussion, by which an unallotted Osage attempted to convey, was the same deed which was discussed in an opinion by former Solicitor Margold (M. 27963) approved by you on January 26, 1937. There the land involved was inherited in the year 1925 by Agnes Holloway, a full-blood unallotted heir without a certificate of competency, from her father, also a full-blood Osage Indian
 



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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."
    In answer to this contention the court referred to the decision of the Supreme Court of the United States in LaMotte v. United States, supra, in which the latter Court held that approval of leases on lands purchased by Osage Indians not having certificates of competency was not required, and quoted from the opinion of the Supreme Court, in part as follows:
". . . 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."
    Discussing the provisions of section 3 of the 1925 act, the State court further said:
". . . 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 court also said:
    "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."
    There is apparently no conflict between Federal and State court decisions outlined above. The Federal Court cases deal with lands which were restricted in the ancestor or testator, while the State court case involved land unrestricted in the Indian from whom the property was taken by will. The Federal Court decisions, therefore, would furnish no basis for questioning the State court decision.

    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
 



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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,

Acting Solicitor.


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

AUTHORITY OF THE STATE OF NORTH
CAROLINA TO TAX THE INCOME OF
CHEROKEE INDIANS DERIVED FROM
EMPLOYMENT WITH THE FEDERAL GOVERNMENT

 

August 25, 1942.


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
 



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DEPARTMENT OF THE INTERIOR

AUGUST 25, 1942

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,

Acting Solicitor.


LAND ERRONEOUSLY EXCLUDED FROM
RESERVATION AND FISHING RIGHTS
ABROGATED BY TREATY--DISCUSSIONS OF
CLAIM COURT DECISION

 

October 5, 1942.


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,

Solicitor.


ILLEGITIMATE INDIAN CHILD
INTEREST IN ESTATES OF KINDRED
OF FATHER OR MOTHER

58 I.D. 149

M-31237                                                                                                                                           October 14, 1942.

Synopsis of Solicitor's Opinion

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).




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OPINIONS OF THE SOLICITOR

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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).

Held:
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).

The Honorable,
The Secretary of the Interior.

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.)
    There is nothing in the present record to indicate that Isaac Thatcher's parents ever intermarried or that the putative father ever acknowledged in writing that he was the father of Isaac. Since under such circumstances illegitimates are clearly barred by the above provision from representing their mothers in estates of their mothers' collateral kindred, Isaac Thatcher may not inherit any part of Milo Jacobs' estate unless Congress has provided that illegitimates may inherit trust property by representing their mothers notwithstanding the provisions of the applicable State law on the subject.

____________
    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.
 



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    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 . . ."
    The act of February 28, 1891, supra, amends the above section by adding the requirement:
    "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: . . ."
    The record before me does not show that Isaac Thatcher claims that his right to inherit in this estate of his mother's collateral kindred arises by reason of his parents having cohabited together as husband and wife according to the custom of Indian life. Therefore, if his claim is to be upheld it must be sustained by reason of the words, "every Indian child, otherwise illegitimate, shall for such purpose (of determining the descent of land) 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.
 



1167

OPINIONS OF THE SOLICITOR

OCTOBER 14, 1942

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."
    In a memorandum dated February 2, 1915, the Solicitor reconsidered his former opinion and adhered to the views expressed therein. For a period of four years this interpretation of the provision was followed by the Department and illegitimates were permitted to inherit by representing both

__________
    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).
 



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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."
    The Department questioned whether such consequences could have been intended by Congress in the enactment of the second provision of the section and pointed out that prior to the Solicitor's opinions above referred to a directly opposite view of the provision had been taken by the Department. After pointing out that so broad a construction as that given to the section by the former Solicitor's opinions permitted an adulterous father to inherit from his unacknowledged child, that it made unnecessary the first part of the statutory provision legitimatizing children born of Indian custom marriages, and that Congress could not have intended to depart so widely from general State law in this regard, the decision concludes:
    "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 . . ."
    In my opinion this decision is a correct interpretation of the law. The act did not confer a status of legitimacy on these children for all purposes. It did no more than to make them the legitimate issue of their fathers for the purpose of determining the descent of trust lands. The Caramony decision, which specifically overruled the former Solicitor's opinions on the provision has been followed by the Department for almost a quarter of a century and the Department has refused to permit illegitimate children to inherit by representing their mothers unless such inheritance is permitted under the law of the State where the trust property is situated.9 This long-continued administrative construction of the statute should not be disturbed even were the question more doubtful than it appears to me.

    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
    Before these 14 children may represent their father in this estate it must be shown that the father himself, Barney Rickard, could have inherited in this estate had he outlived the instant decedent. Barney Rickard was an illegitimate child whose relationship to the decedent was through his mother. As I have pointed out in my answer to the first Question, Barney Rickard could not under the State law inherit from his mother's kindred, collateral or lineal. Neither are his rights of inheritance from his mother's kindred enlarged by the act of 1891. Therefore, since Barney Rickard himself could not have inherited from Milo Jacobs, it must be held that his 14 legitimate issue may not represent him in this estate.

    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.
 



1169

OPINIONS OF THE SOLICITOR

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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,

Solicitor.
Approved: October 14, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

HOPI SNAKE DANCE--
QUESTION OF COPYRIGHT


 
October 14, 1942.

 Memorandum for the Commissioner of Indian Affairs:

    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 . . ."
    The Snake Dance is full of action, emotion and passion, but it does not tell a story. The dance
 



1170

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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,

Solicitor.


REGULATIONS GOVERNING RIGHTS-OF-
WAY OVER PUBLIC LANDS AND
RESERVATIONS FOR ELECTRICAL
PLANTS AND TRANSMISSION LINES

 

October 16, 1942.


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
 



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OPINIONS OF THE SOLICITOR

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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,

Solicitor.


AUTHORITY OF SUPERINTENDENT FOR FIVE
CIVILIZED TRIBES-DISPOSITION OF RESTRICTED
INDIAN MONEYS

M-31897                                                                                                                                            October 20, 1942.

Synopsis of
Solicitor's Opinion

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.
Held:
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.

The Honorable,
The Secretary of the Interior.

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."
    The pertinent section of the 1933 act provides:
    "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




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

    The question now raised relates entirely to the distribution of responsibilities between the Secretary of the Interior and the Superintendent of the Five Civilized Tribes. Specifically the question is whether the necessity for a particular statutory procedure for the payment of "undisputed claims," which is required by the act of 1920, has been eliminated by reason of the general language contained in the 1933 act. I am satisfied that the 1933 act was not intended to alter the procedural requirements of the 1920 statute and that the language of the 1933 act cannot reasonably be construed to effect a repeal by implication of the 1920 statutory requirements. The 1933 act specifies that certain funds shall remain subject to expenditure under regulations prescribed by the Secretary. It does not say that the Secretary may prescribe regulations without regard to prior statutes on the subject. On the contrary, the use of the term "remain" in the 1933 statute indicates that a continuation, rather than an expansion, of the Secretary's power as established prior to 1933 is intended. (See 54 I.D. 382.)

    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."
I am entirely persuaded that the latter opinion, which has governed the Department for 21 years, is correct. It follows that the question of how far the Superintendent for the Five Civilized Tribes shall be given responsibility to pass on applications by Indians for the release of restricted funds is one to be determined in the discretion of the Secretary of the Interior. The limitations upon discretion which the 1920 act imposes in the case of "undisputed claims" have no application to the lifting of restrictions upon Indian funds.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.


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

DISPOSITION OF PROCEEDS OBTAINED FROM
ADMINISTRATION OF CEDED INDIAN LANDS UNDER
THE TAYLOR GRAZING ACT

M-31653.                                                                                                                                        November 21, 1942.

Synopsis of
Solicitor's Opinion

Re:

Disposition of proceeds obtained from administration under the Taylor Grazing Act of Indian lands ceded for disposition under the public land laws upon condition that




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OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1942

the receipts therefrom shall be credited to the Indians.

Held:
1. When such lands have been included in grazing districts in accordance with the provisions of section 1 of the Taylor Act the proceeds should be disposed of in accordance with section 11 of the said act, under which the Indians are entitled to receive 50 percent of the proceeds.

2. The fact that such lands were temporarily withdrawn to effectuate the purposes of section 3 of the Indian Reorganization Act, which provided for the restoration of the lands to tribal ownership, and the fact that the consent to the inclusion of such lands within grazing districts may have been conditionally given by this Department cannot affect the disposition of the proceeds of such lands in accordance with the provisions of section 11 of the Taylor Act.

3. When, however, such ceded lands have been leased as isolated tracts in accordance with the provisions of section 15 of the Taylor Act the proceeds should be disposed of under the applicable acts of cession under which the Indians are entitled to the proceeds in their entirety.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You approved on January 20, 1942, a letter transmitting to me certain files "containing correspondence relating to the disposition of grazing fees collected by the Grazing Service and by the General Land Office from the leasing of undisposed of ceded Indian lands in Colorado and Arizona." Accompanying this file is a letter, dated January 19, 1942, addressed to you by the Assistant Commissioner of Indian Affairs, recommending that in view of the differences of opinion as to the disposition of these fees prevailing in the Grazing Service, the General Land Office, and the Office of Indian Affairs, the question be referred to me for an opinion.

    The lands in question in Colorado are those ceded by the Confederated Bands of Ute Indians under the act of June 15, 1880 (21 Stat. 199), and by the Ute Indians under the act of February 20, 1895 (28 Stat. 677), except for those lands to which the Indian title was extinguished by the act of June 28, 1938 (52 Stat. 1209). The lands in Arizona are those ceded by the Indians of the San Carlos Reservation under the acts of February 20, 1893 (27 Stat. 469), and June 10, 1896 (29 Stat.
321, 358).

    Under these acts of cession the Indians were entitled to receive the proceeds that should accrue from the disposition of the ceded lands. The lands involved in the present submission never were disposed of. In 1934, the policy of disposing of ceded Indian lands and other public lands to homesteaders was modified in two ways. The act of June 18, 1934 (48 Stat. 984, 25 U.S.C. sec. 461 et seq.), authorized the Secretary of the Interior to restore ceded lands to Indian tribal ownership if he should find such restoration to be "in the public interest" (sec. 3, 25 U.S.C. sec. 463). The Taylor Act of June 28, 1934 (48 Stat. 1269, 43 U.S.C. sec. 315 et seq.), authorized the Secretary of the Interior, in his discretion, to incorporate "vacant, unappropriated, and unreserved lands from any part of the public domain" into grazing districts (sec. 1, 43 U.S.C. sec. 315), within which permit fees were to be charged and the proceeds distributed on the basis of a prescribed statutory formula. This formula, in the case of "Indian lands ceded to the United States for disposition under the public-land laws," made 25 percent of the receipts "available for expenditure by the Secretary of the Interior for the construction, purchase, or maintenance of range improvements"; another 25 percent was to be expended by the State "for the benefit of public schools and public roads of the county or counties in which such grazing lands are situated"; the remaining 50 percent was to be "deposited to the credit of the Indians" (sec. 11, 43 U.S.C. sec. 315j). Thus the Secretary in his discretion could make any of three choices with respect to these lands. He might return them to the original Indian owners; he might include them in grazing districts: or he might leave them in statu quo.

    In fact, 200,000 acres of the ceded Ute lands were ordered restored to tribal ownership on September 14, 1938. Other ceded lands, after having been temporarily withdrawn from entry, by an order dated September 19, 1934, pending consideration of their restoration to Indian ownership, have been, from time to time, included in grazing districts. The approval of the inclusion of the Ute lands within grazing districts was given on April 30, 1935, "with the understanding that this agreement will in no way jeopardize the right, title and interest of the Indians in and to these lands," and approval was similarly given to the inclusion of the San Carlos lands, on November 25, 1936, "provided that any action taken to place these lands under range management shall be con-
 



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DEPARTMENT OF THE INTERIOR

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sistent with any prior valid withdrawal from entry, and that the right, title, and interest of the Indians in and to these lands shall in no way be jeopardized."

    By arrangements made by the Indian Office with the Grazing Service and the General Land Office, the lands within grazing districts have been administered by the Grazing Service while the leasing of the lands not within grazing districts has been entrusted to the General Land Office. Fees have been collected as a result of the issuance of permits to use the lands within grazing districts, and rentals have been obtained as the result of the leasing of lands not included within grazing districts. It now becomes necessary to determine how these proceeds are to be disposed of.

    The position of the Indian Office is that since the lands in question are ceded lands of the type eligible for restoration to tribal ownership under section 3 of the Indian Reorganization Act, the Indian title to the lands so ceded has not been extinguished, and that any proceeds derived from such lands, which by the acts of cession were to be held by the United States in trust for the Indians, belong in their entirety to the Indians who ceded the lands. The Indian Office further contends that, even if the Taylor Grazing Act should be construed to permit the payment to the Indians of less than 100 percent of the fees and rentals from ceded lands, the application of the act has in effect been suspended by the temporary withdrawal of the lands in question by the order of September 19, 1934.

    The Grazing Service, however, has maintained that fees collected for grazing district permits should be distributed in accordance with section 11 of the Taylor Grazing Act, under which the Indians would receive only 50 percent of the proceeds. The General Land Office, moreover, has argued that, since section 11 of the Taylor Grazing Act applies only to the disposition of moneys from Indian ceded lands within grazing districts, the moneys derived from Indian ceded lands outside of grazing districts, leased in accordance with section 15 of the Taylor Grazing Act, should be treated in the same way as all other proceeds derived from the disposition of public lands and distributed in accordance with section 10 of the act.1

    I am of the opinion that with respect to lands included in grazing districts the contention of the Grazing Service is sound, and the statutory division of income prescribed by section 11 of the Taylor Act is applicable, but that with respect to isolated lands, not covered by section 11, the entire income is payable to the Indians.

    There is no doubt that when the Taylor Grazing Act took effect it permitted the inclusion within a grazing district of undisposed of Indian ceded lands. As has already been noted, section 11 of the Taylor Grazing Act covers "Indian lands ceded to the United States for disposition under the public land laws." This description is clearly applicable to the Indians ceded lands included in the grazing districts here in question. Such lands were "vacant, unappropriated and unreserved lands" within the meaning of section 1 of the statute because they had always been held to be subject to withdrawal in the same way as public lands (memorandum of the Solicitor, Department of the Interior, September 17, 1934). The Director of Forestry in the Indian Office so understood the purpose of the act at the time of its consideration. Indeed he opposed its passage on the ground that it might cut down the income obtained by the Indians from the ceded lands. (See his memorandum of June 13, 1934, to the Secretary of the Interior included in the legislative file.) The purpose of section 11 was thus described in the official correspondence of the Department during the drafting period:

    "Section 11 deals with lands which have been ceded to the United States by Indians for disposition under the public land laws upon condition that the receipts therefrom shall be credited to the Indians."
    The legislative file also shows that in the original draft of the act provision was made for paying the whole of the proceeds of Indian ceded lands included within a grazing district to the Indians entitled to such proceeds under the applicable act of cession, except for 15 percent of such proceeds which were to be applied to range improvement and maintenance. The percentage of the Indians was progressively reduced in subsequent drafts. It is apparent from its legislative history

___________
    1 The Department has also had some correspondence with the office of the Comptroller General which on various occasions has given instructions or opinions relating to the proper disposition of the proceeds of the ceded Indian lands, in view of the provisions of the Taylor Grazing Act. The purport of this correspondence is not entirely clear but it seems that the office of the Comptroller General disagreed with the views of the Indian Office, possibly because the character of the particular Ute and San Carlos lands was not made entirely clear. It is extremely doubtful in any event that the office of the Comptroller General intended to do more than express tentative opinions pending the ultimate determination of the legal questions involved. With respect to the ceded Indian lands included within grazing districts, it finally stated that "in the event that there has been inadvertently included in grazing districts Indian trust lands as defined by the Supreme Court of the United States in Ash Sheep Company v. United States, 252 U.S. 159, and grazing permits issued thereon, this office will interpose no objection to handling receipts therefrom as trust fund moneys pending a determination as to a proper disposition thereof."
 



1175

OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1942

that section 11 of the act would not apply to lands which had been ceded outright by the Indians, for it would then apply virtually to the whole public domain. The lands to which reference was made in section 11 could only have been lands the receipts from which were to be credited to the Indians.

    In view of this legislation history and the clear language of section 11, it would take a very strong argument to persuade me that this section does not apply to these lands.

    The argument advanced by the Indian Office against the applicability of the Taylor Act formula to these lands assumes a conflict between the promises made to the Indians in the original acts of cession and the statutory formula of the Taylor Act. On the basis of such a conflict it is argued that the later legislation, general in its scope, should be so construed as not to apply to the lands covered by the earlier specific acts of cession. If there were in fact an irreconcilable conflict between the promises with respect to land disposition contained in the earlier legislation and the methods of disposition embodied in the later legislation, there would be much force in this argument. See Chippewa Indians v. United States, 305 U.S. 479, where the Supreme Court held that creation of a national forest on ceded lands amounted to a "taking" of the land, for which compensation was due. But I am of the opinion that no such incompatibility can be found in the language of the statutes here involved. The Taylor Act covers situations, for example, where Indians have been receiving no income from their ceded lands and where prospects of ultimate sale of these lands to homesteaders have become dimmer over the decades. In such a situation it offers a mechanism of rental, in which the Federal Government bears the expenses of a rental agent. While it is true that the Indians receive only 50 percent of the cash income, this is, in many cases (and apparently in the case of the San Carlos lands here involved) just that much more than they received before. Congress had reason to believe that the remainder of the income would be expended by the Department of the Interior and the State in such a way as to increase the value of the land itself. Moreover, the Taylor Act expressly provided that ceded Indian lands should continue to be subject to disposition under the "applicable public lands laws" despite inclusion in a grazing district. (Sec. 11, 43 U.S.C. sec. 315j.) In these circumstances the incorporation of ceded lands in a grazing district might be advantageous to the Indians and thoroughly consistent with earlier commitments to them and with the position of the United States as a trustee. True, there might be situations where incorporating ceded lands in a grazing district would cut off imminent sales and deprive the Indians of reasonably expected revenues. But the Secretary of the Interior is under no compulsion to add Indian lands to Taylor Grazing districts in such circumstances. Congress had a right to expect that the Secretary of the Interior, the chief officer of the Federal Government charged with the protection of Indian rights and Indian welfare, would exercise the discretionary powers conferred in such a way as to protect Indian interests and respect our promises to the Indian owners for whom these lands are held in trust. I conclude, then, that the Taylor Act does not conflict with the early cession acts and that the Taylor Act must be read according to the plain meaning of its terms. Therefore the income from these Indian ceded lands that have been incorporated in Taylor grazing districts must be distributed in the manner that the Taylor Act provides. A very different situation would be presented if at any time the Indians could show-what nobody has attempted to show in the present case-that including Indian ceded lands in a grazing district was injurious to the interests of the Indians or violative of the Federal Government's fiduciary obligations. Such a showing would be a proper ground for asking the exclusion of such Indian ceded lands from a grazing district. This would be perfectly consistent with the Taylor Act. Such a showing, however, would not justify a departure from the formula which the Taylor Act prescribes for this distribution of income after the lands have been included in a grazing district and after income has accrued from such lands.

    It remains for me to consider only whether the conclusion that the Indians are entitled to only 50 percent of the proceeds of the ceded lands included within grazing districts must be altered in view of the temporary order of withdrawal of September 19, 1934, and the nature of the consent to the inclusion of these lands within the grazing districts. Of itself the order of withdrawal, as long as it remained in effect, undoubtedly would prevent the inclusion of the ceded Indian lands within a grazing district, and it would be immaterial that it was in anticipation of a future use or disposal (31 L.D. 193), or even that the purpose of the withdrawal order had ceased to exist (5 L.D. 432). In the present case, however, section 1 of the Taylor Grazing Act expressly contemplated that lands withdrawn for any purpose might be included in grazing districts "with the approval of the head of the department having jurisdiction thereof," and such consent was duly given. The order of withdrawal could therefore have no further operative effect in preventing use of the land
 



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for grazing purposes. Even if, however, the grazing use of the land were inconsistent with the purposes of the withdrawal, this could not affect the disposition of the proceeds. Once lands have been included within a grazing district, the provisions of the Taylor Act must come into play, and this expressly disposes of the proceeds of ceded Indian lands included within grazing districts in a particular way. The prior status of the lands would be immaterial. The statute cannot be read in such a way as to give the Secretary in effect a power to include land within a grazing district and yet suspend the operation of the act with respect to the disposition of proceeds. Similarly, while consent to the inclusion of the ceded lands within grazing districts was given upon the condition that "the right, title and interest of the Indians in and to these lands shall in no way be jeopardized," there is no basis in the act for assuming that consent could be conditionally given, particularly in view of the fact that the act itself was designed to protect the interests of the Indians in the ceded Indian lands by continuing the applicable public land laws in operation with respect to such lands as were included within grazing districts. There was therefore no interest of the Indians !that could be jeopardized by the disposition of the lands under the act, and the consent to the inclusion of these lands in grazing interests was complete and effective. The disposition of the resulting proceeds must therefore be carried out in accordance with the formula which the Taylor Act expressly provides.

    A very different question is presented with respect to the disposition of income derived from isolated tracts leased under section 15 of the Taylor Act. These proceeds cannot be treated under section 11, since that provision relates only to the proceeds derived from ceded Indian lands included within a grazing district. There is no express reference in section 11 to Indian ceded lands leased as isolated tracts, and to apply a general statutory provision in such a way as to terminate a promised source of Indian income, as the General Land Office suggests, would seem not only confiscatory but a breach of the fiduciary obligations of the United States. The lands, while they have been treated as "vacant, unappropriated and unreserved lands of the public domain" within the meaning of section 15 of the Taylor Grazing Act (see letter of First Assistant Secretary to the Commissioner of the General Land Office, dated September 14, 1936), are nevertheless held by the United States as a trustee for the benefit of the Indians.2 Only by the use of the clearest and most unmistakable language could Congress be deemed to have intended that the Indians should receive absolutely nothing from the use of these lands. I find no such language here.

    Section 10 of the Taylor Grazing Act, as amended by the act of June 26, 1936 (49 Stat. 1976, 1978), in so far as relevant here, provides:

    "That, except as provided in sections 9 and 11 hereof, ail moneys received under the authority of this Act shall be deposited in the Treasury of the United States as miscellaneous receipts, but 25 per centum of all moneys received under this Act during any fiscal year is hereby made available, when appropriated by the Congress, for expenditure by the Secretary of the Interior for the construction, purchase, or maintenance of range improvements, and 50 per centum of the money received under this Act during any fiscal year shall be paid at the end thereof by the Secretary of the Treasury to the State in which the grazing
___________
  2 While the determination of the question whether lands are to be deemed to be held in trust depends in each case upon the terms of the act of cession, it is well settled that when it is provided that the proceeds of ceded lands shall be held for the benefit of the Indians they are to be regarded as trust lands (Chippewa Indians v. United States, 305 U.S. 479; Minnesota v. Hitchcock, 185 U.S. 373; Ash Sheep Company v. United States 252 U.S. 159). Such a provision is included in all four acts of cession applicable to the lands under consideration. The act of February 20, 1895 (28 Stat. 677), ceding certain of the lands of the Utes, and the act of February 20, 1893 (27 Stat. 469), ceding certain lands of the San Carlos Indians, contain, moreover, express declarations of trust. It is true that the acts of June 15, 1880 (21 Stat. 1993, and February 20, 1895 (28 Stat. 677), ceding the Ute lands, contain a declaration to the effect that these lands should be deemed public lands or part of the public domain, but this did not deprive them of their trust character, nor indicate that they are not also to be deemed Indian lands. The purpose of such a declaration is merely to indicate that such lands are subject to disposal under the public lands laws (56 I.D. 330, 338). In this opinion of the Acting Solicitor of this Department the very Ute lands ceded under the act of June 15, 1880, were held to be trust lands, and as such subject to restoration to tribal ownership under the Indian Reorganization Act. In a memorandum dated August 27, 1938, the Solicitor of this Department held that the status of the Ute lands ceded under the act of February 20, 1895, was the same as that of the lands ceded under the act of June 15, 1880. There seems to have been some difference of opinion concerning the character of the San Carlos lands ceded under the act of June 10, 1896. Indian Office File 134241-14 San Carlos 301 shows that at one time the Indian Office and the Department took the view that the agreement and ratifying act of 1896 completely extinguished the Indian title to the ceded lands. In a later memorandum dated February 7, 1934, however, the Solicitor of the Department disagreed with this view and came to the conclusion that the "cession made by the Indians in the agreement of 1896 was not made to the United States absolutely but in trust." All the Ute and San Carlos ceded lands must therefore be deemed to be trust lands.
 



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OPINIONS OF THE SOLICITOR

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districts or the lands producing such moneys are situated . . ." (Italics added.)3

    There is no express reference to ceded Indian lands, nor any express provision for the disposition of the proceeds of such lands, in either the original or the amended form of section 10. Section 9 applies only to voluntary contributions. Section 11 is expressly confined to Indian ceded lands included within grazing districts, and consequently cannot be applied to Indian ceded lands leased as isolated tracts under section 15 of the act. It is apparent from the scheme of the statute that Congress appreciated the distinction between lands included in a grazing district and lands leased as isolated tracts, and therefore the failure to make the same provision as in section 11 with respect to ceded Indian lands cannot be treated as an inadvertence.

    In my opinion, section 10 of the Taylor Act and its amendment by the act of June 26, 1936, should be construed as inapplicable to Indian lands. As it originally stood, the first part of section 10 applied to public lands leased as isolated tracts as well as to lands included in grazing districts; since the proceeds were received "under the authority of this Act," and since they were not covered by the later exception of the proceeds from grazing districts, they would have to be covered into the Treasury as miscellaneous receipts. The amendment of section 10 merely altered the form of disposition of the proceeds of lands leased as isolated tracts to provide for the 25 and 50 percent distribution theretofore applicable only to the grazing district lands. As stated in the Committee report on the bill: "It is proposed to amend section 10 of the Taylor Act to provide that fees received from the leasing of individual tracts shall be disposed of in the same manner as fees received for permits within grazing districts." It is true that section 10 speaks broadly of "all moneys received." But neither the original nor the amendatory act expressly affected the interests of the Indians, and Congress gave no indication of having considered the proceeds of Indian lands leased as isolated tracts.

    The situation, then, is that a technical and literal construction of section 10 might treat the proceeds of ceded Indian lands leased as isolated tracts as falling within the category of "moneys received under the authority of this Act" notwithstanding the fact that Congress did not expressly refer to these proceeds, that the United States was obliged to receive them as a trustee, and that when the problem of Indian ceded lands was considered Congress made special provision (in section 11) for Indian participation in the disposition of "grazing district" proceeds. On the other hand, it may be argued with some force that the "moneys received under the authority of this Act" were only those which the United States was entitled to receive in its own right as a proprietor and not to those received only by reason of a trust relationship. This is essentially the view that was taken by the Attorney General in interpreting a statute granting the State of Kansas part of the proceeds of public land disposals within the State and holding that the State was not entitled to any part of the proceeds which the United States received, as a trustee for the original Indian owners, when it disposed of ceded Indian lands in the State of Kansas as "public lands." (19 Op. Atty. Gen. 117.)

    As between the two competing interpretations of section 10, choice must be made in the light of the settled rule of construction that in the field of Indian legislation ambiguities are to be resolved in favor of the Indians. Winters v. United States, 207 U.S. 564; 576; Choate v. Trapp, 224 U.S. 665, 675; United States v. Nice, 241 U.S. 591, 599; Carpenter v. United States, 280 U.S. 363, 366. As the Court said in the Nice case, "legislation affecting the Indians is to be construed in their interest . . ." Applying this rule of construction, this Department has always held that when Indian lands ceded in trust have been subjected by Congress to a new form of disposal, the resulting proceeds go in their entirety to the Indians unless Congress has expressly provided otherwise, and this rule has been applied even when the statute authorizing the new form of disposal, contains a general clause governing the disposition of proceeds. Christ C. Prange and William C. Braasch, 48 L.D. 448; Frank A. Kemp, 47 L.D. 560; Flathead Lands, 48 L.D. 468. Indeed, this Department has ruled to the same effect even when the interests of Indians have not been involved. When the question was raised how the proceeds of lands withdrawn for reclamation purposes and leased as isolated tracts under section 15 of the Taylor Grazing Act should be disposed of, section 4, subsection I of the act of December 5, 1924 (43 Stat. 672, 703), specifically relating to reclamation lands rather than section 10 of the Taylor Grazing Act, was held applicable (see M. 29482, letter of First Assistant Secretary to Commissioner of the General Land Office, dated October 8, 1937).

    Since the act as a whole contains no provision clearly disposing of the proceeds of ceded Indian lands leased as isolated tracts, such proceeds should go to the Indians in their entirety.

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  3 As originally enacted (413 Stat. 1269, 1273), the italicized words were omitted and the phrase "from each grazing district" used instead.
 



1178

DEPARTMENT OF THE INTERIOR

NOVEMBER 21, 1942

    My conclusions are, therefore, as follows:

    1. With respect to the lands included within grazing districts

    (a) That the Ute Indians are entitled to receive 50 percent of the proceeds of the lands ceded by them under the acts of June 15, 1880, and February 20, 1895, title to which has not been extinguished by the act of June 28, 1938;

    (b) That the San Carlos Indians are also entitled to receive 50 percent of the proceeds of the lands ceded by :them under the acts of February 20, 1893, and June 10, 1896.

    2. That the Ute and San Carlos Indians are entitled to all of the proceeds of the lands ceded by them under the foregoing acts which may have been leased as isolated tracts under section 15 of the Taylor Grazing Act.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.


Approved: November 21, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

COLVILLE RESERVATION-AUTHORITY FOR LAND
CONVEYANCE PLAN WHICH WOULD VEST LIMITED
RIGHTS OF ALIENATION AND DESCENT

M-31724                                                                                                                                         November 21, 1942.

Synopsis of
Solicitor's Opinion

Re:

Authority for carrying into effect on the Colville Indian Reservation in the State of Washington a land conveyancing plan under which the tribal lands would be conveyed to the individual members for a consideration with limited rights of alienation and descent.
Held:
1. That the proposed plan is not authorized by any specific provision of law.

2. That the power, inherent in the tribe, to provide for the orderly distribution of the use and occupancy of tribal lands, does not, in view of the inhibitions of 25 U.S.C. sec. 177, extend to the creation of vested enforceable interests in the individual members of the tribe.

3. That the proposed plan, which appears to be designed to create vested enforceable interests in the individual members should not be undertaken in the absence of clear congressional authority.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    I am in receipt of your letter of March 6 requesting an opinion on the question whether there is sufficient existing authority to carry out a proposed program of land conveyancing on the Colville Indian Reservation which would have the following features:

    1. "A conditional sale of a right of exclusive use of tribal land, together with improvements thereon to individual Indians regularly enrolled on the Colville Reservation."

    2. The consummation of such sales "through the medium of a 'tribal homestead deed' to be designed, which would recite that the lands and improvements so purchased are held in trust for the tribe for the exclusive use and occupancy by the Indian purchaser during his lifetime" with the right "to designate by will whom he wishes to acquire his interest in the purchased property."

    3. The "tribal homestead deed" would also recite that "the lands covered therein are not subject to alienation to whites or to Indians not regularly enrolled on the Colville Reservation, but that the Indian purchaser from the tribe may reconvey the property to some other regularly enrolled Colville Indian with the consent of the tribal council."

    4. All such "tribal homestead deeds" are to be "approved by the Tribal Council and the Commissioner of Indian Affairs."

    The correspondence indicates that this plan has been devised because the Colville Tribe is dissatisfied with the existing system of making land use assignments to members of the tribe, and desires some more permanent and secure form of tenure. The Indian Office has taken the position that while it would be opposed to any form of conveyance which would contemplate "the ultimate acquisition of title," it might consider the alternative plan that has been outlined.

    The lands to which the proposal relate are of two types: surplus unallotted lands within the Colville Indian Reservation as created by Executive order of April 9, 1872 (Kappler, Indian Affairs, Laws and Treaties, vol 1, p. 916), and lands purchased for the tribe with tribal funds appropriated by the Deficiency Appropriation Act of 1939 (53 Stat. 1301, 1314), and reappropriated by the Act of June 28, 1941 (55 Stat. 303, 313).
 



1179

OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1942

Title to the lands purchased under the cited acts is taken by the United States in trust for the tribe. Both classes of land are subject to allotment in severalty to the individual members of the tribe in conformity with the General Allotment Act of February 8, 1887 (24 Stat. 388, 25 U.S.C. secs. 331, 332, 348), as amended. The authority to allot the reservation land is found in the act of March 22, 1906 (34 Stat. 80), as amended by section 30 of the act of June 25, 1910 (36 Stat. 855, 863). Authority to allot the purchased lands is found in the act of February 14, 1923 (42 Stat. 1246, 25 U.S.C. sec. 335). These statutes, which prescribe with particularity the allotment procedure and provide for an absolute transfer of the tribal title to the individual allottees in trust with the promise to convey the fee at the end of a prescribed period, obviously confer no authority for the plan of land conveyancing now proposed.

    No statutory provision specifically authorizing the proposed plan has been found. The authority, if it exists at all, must stem from the power, inherent in the tribe, to provide for the orderly distribution of the use and occupancy of the tribal lands among the individual members of the tribe. In determining whether that power, the existence of which is not open to question.1 extends to the present case, we are met at the outset with the inhibitions contained in section 177 of title 25 of the United States Code. That section reads:

    "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. . . ."
    The purpose of Congress in enacting the foregoing provision no doubt was to protect the Indian tribes against improvident alienation of their lands to non-Indians. But the language used is all-inclusive. It is immaterial, therefore, whether the forbidden transaction involves Indians or whites. It is likewise immaterial whether the particular transaction be one running from the tribe to its members or from the members to each other. If the tribe may not sell tribal land neither may the individual members sell tribal land or any interest therein. The inhibition of the statute has the same application to individual Indians that it has to Indian nations or tribes (18 Op. Atty. Gen. 486). The reason for this rule is that the individual Indian must be deemed "to be acting by authority from the tribe only" (Jones v. Meehan, 175 U.S. 1, and earlier authorities there cited). As stated in Franklin v. Lynch, 233 U.S. 271: "As the tribe could not sell, neither could the individual members for they had neither an individual interest in the tribal land nor vendible interest in any particular tract."

    If, therefore, the plan of conveyancing proposed contemplates the "purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto," the transaction is without validity unless made in the prescribed manner. The mere fact that no absolute conveyance of the fee is intended is obviously not decisive. The attempted transfer of any title or claim to the tribal land is equally within the prohibition. In an opinion dated August 9, 1939 (57 I. D.31), the Solicitor for this Department had occasion to consider a similar question arising under section 17 of the Pueblo Lands Board Act the provisions of which section are almost identical with 25 U.S.C. sec. 177. The particular question considered by the Solicitor was whether the statute applied to an assignment of land from a pueblo to one of its members. The Solicitor ruled that the test to be applied was whether the assignment conveyed an interest in the land. He stated:

    "The language of this act is broad enough to cover even an assignment of land from a pueblo to one of its members, if such assignment amounts to a transfer of right, title or interest in real property. Any such assignment, made by the pueblo without the prior approval of the Secretary of the Interior, would be, according to the statute, without validity in law or equity. On the other hand, if an assignment does not convey an interest in the land itself, it does not fall within the scope of the statute cited. It becomes important therefore to distinguish between those transactions which convey an interest in real property and those transactions which, while relating to the use of real property, do not create an interest therein." (p. 41)
    Applying a similar test here, the conclusion that the transaction is in violation of the statute is inescapable. The interest sought to be established in the individual is much more than the bare right of occupancy. For a consideration, it is proposed to convey to the individual Indian a full and complete possessory title with a right to transmit that title by descent or to alienate it by will or by conveyance inter vivos, to other members of the tribe. The element of purchase plus the incidents of descent and alienation stamp the transaction as one designed to individualize the tribal title and

__________
  1 Cohen, Handbook of Federal Indian Law, pp. 143, 188.
 



1180

DEPARTMENT OF THE INTERIOR

NOVEMBER 21, 1942

create in the individual an enforceable vested interest. Even if it be conceded that such a grant would not be indefeasible so far as the tribe itself is concerned and that the tribe nevertheless retains the power to revoke the grant, this would not preclude the applicability of 25 U.S.C. sec. 177. The whole plan in fact involves an inescapable dilemma. If a mere assignment is contemplated, the goal of security is impossible of achievement. If, on the other hand, a valid "title" or "claim" is created, it must encounter the prohibition of the statute.

    My conclusion is that there is not sufficient existing authority to carry into effect the proposed plan of conveyancing. In any event, the matter is so doubtful as to render the adoption of the plan unwise in the absence of clear congressional authority.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.


Approved: November 21, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

OIL AND GAS LEASES-ADVANCE
ROYALTIES-FORMS USED FROM
1908 TO 1933

M-31134                                                                                                                                           December 24, 1942.

Synopsis of
Solicitor's Opinion

Re:

Payments of advance royalty under oil and gas leases covering restricted allotted Indian lands executed on forms of lease in use during the period from 1908 to 1933.
Held:
1. That advance royalty payments are not minimum payments under lease form (a) approved April 20, 1908 (amended February 6, 1911 and June 29, 1911) used by the Five Civilized Tribes Indian Agency prior to 1925, nor under lease form 5-154h used prior to 1925 by Indian agencies other than the Five Civilized Tribes.

2. That under lease form 5-154h, adopted December 24, 1924, and used by all Indian agencies in Oklahoma (except Osage) from 1925 to 1933, the advance royalties constitute minimum payments required to be made until such time as royalties on production exceed the advance royalty payments.

3. That the obligation of the lessees to make payment of advance royalties under leases executed on form 5-154h, adopted December 24, 1924, is not limited to the fixed or 10-year period but continues during subsequent periods of the lease subject to termination only by the completion of a well or wells producing oil or gas in quantities sufficient to return to the lessor an income in excess of the advance royalty payments.

4. That neither lease form (a), used by the Five Civilized Tribes Indian Agency prior to 1925, nor lease form 5-154h, used prior to 1925 by Indian agencies other than the Five Civilized Tribes, requires the leases to resume the payment of advance royalties after producing wells on the leaseholds cease to produce.

5. That under lease form 5-154h, in use by all Indian agencies in Oklahoma except Osage from 1925 to 1933, the leasee is obligated to resume the payment of advance royalties when the producing well or wells cease to produce only during the fixed period of 10 years.

6. That advance royalties must be paid in addition to the prescribed rental for a non-utilized gas well during the fixed period of the lease and any extension thereof by payment of the non-utilized gas rental.

7. That where a lease, which has been continued in force after the fixed 10-year period by production returning stipulated royalties in excess of advance royalties, is assigned during a year in which production ceases or declines to the extent that the production royalties are less than the advance royalties, no question of apportionment of advance royalties as between the assignor and assignee can arise because the obligation to make the advance royalty payments had previously terminated and is not revived by cessation or decline of production.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You submitted on January 17, 1941, a request for an opinion on a number of questions concerning the interpretation of advance royalty provi-
 


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