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126

DEPARTMENT OF THE INTERIOR

NOVEMBER 6, 1924

upon enrollment or recognition by the tribe as a member. The descendents of an enrolled member by reason of their Chippewa blood may be entitled to share in tribal funds even though not enrolled as tribal members.

    With reference to the act of June 7, 1897, supra, the court held in the case of Vezina v. United States (245 Fed., 411, 420):

    "*     *     * Under this statute Mrs. Vezina is clearly entitled to be recognized and treated in all respects as if she had remained upon the reservation. It is true that, if Mrs. Delaney was now living, under our decision in Oakes v. United States, 97 C.C.A. 139, 172 Fed. 305, Mrs. Vezina would not be entitled to be enrolled under this statute. That decision would probably exclude the children of Mrs. Vezina from the right to enrollment and from allotment. As there is no case before us now, except the case of Mrs. Vezina, we do not care to express a more definite opinion upon the question of her children."
    It was subsequently held in opinion rendered by the Solicitor on December 21, 1920, that the children of Mrs. Vezina were entitled to participate in the distribution of tribal funds under the act of January 14, 1889, "not as members of the tribe but as the 'issue' of Elizabeth Vezina;" but that they were not entitled to be enrolled under said act for the purpose of being allotted tribal lands. Reference was made in that connection to Solicitor's opinion of February 17, 1919, supra.

    In construing the act of June 7, 1897, supra, it was held by the Solicitor in the case of Addie Prickett et al.(50 L.D., 554), applicants for enrollment with the Menominee Tribe of Indians, Wisconsin, as follows:

    "The opinion of the Assistant Attorney General of March 14, 1905, supra ,in construing the act of June 7, 1897, evidently went too far in holding 'and the issue of such marriage are recognized by tribal usage as its members,' as said act clearly does not impose any such condition upon the persons coming within its provisions. In this respect the opinion is really broader than the instructions in the matter of the New York Indians which it adopts. Under the terms of the act to entitle children born of a marriage between a white man and an Indian woman to rights and privileges in the mother's tribe it must appear that she is recognized by the tribe as belonging thereto, but no such requirement is laid upon the children themselves. The scope of the act is properly set out in the case of William Banks, supra."
    The holding in said case of William Banks (26 L.D., 71) was as follows:
    "The object of that act was not to make the persons coming within its provisions members of any tribe of Indians nor to reinstate them where they had withdrawn from such membership but to confer upon them simply one of the incidents of membership, that is, a right to share in the distribution of the property of the tribe."
    The specific question involved in the Solicitor's opinion of February 17, 1919, supra,was as to the rights of "children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interest accruing upon the fund arising under the act of January 14, 1889 (25 Stat., 642)," and after reciting certain provisions of the act it was said in the opinion:
    "Thus it appears that Indian blood-membership among the individual Indians originally enrolled as together constituting the tribe that created the trust and conveyed the surplus lands giving rise to the trust fund, or descent from those Indians-is made the essential and sole basis of the right to participate in the current interest accruing from the fund in its final distribution."
    Again, after reference to the trust created, it was said:
    "And nowhere in its terms of settlement is either residence with or continued or 'recognized' membership of the tribe, or birth on the reservation, or United States citizenship, or any other qualification mentioned, save only being 'a Chippewa Indian,' i.e., possession, in whole or in part, of the blood of one of the originally enrolled members of that tribe."
    And after stating that the word "issue" in section 7 of the act of 1889, supra, is used in its enlarged sense, it was said:
    "The issue, then, includes all the lineal descendents of the ancestor. But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust. His 'recognition' by the tribe as such is merely evidentiary of such membership, and is



 

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not the sole evidence competent to establish the fact. His descendants (whether children or grandchildren) take an interest, not as tribal members, but as of the ancestor's blood; his blood entitling him and them alike, because it was tribal blood."

    The language employed in said opinion-"membership among the individual Indians originally enrolled," "originally enrolled members of that tribe." A tribal membership at the time of the creation of the trust,"-has heretofore been interpreted as referring to enrollment by the Chippewa Commission appointed under the provisions of the act of January 14, 1889. That this interpretation is a correct one is indicated by the statement of facts set forth in the opinion as follows:
    "In the particular case giving rise to a call for this opinion, Sarah Kadrie, neeCogger, was a full-blood Chippewa Indian woman born on the reservation in the year 1892-subsequent to the cession and the original enrollment. She was an only child of her mother, a member of the original enrollment. As such, she is entitled to participate for herself in the annuities; and that is accorded to her."
    There is nothing in the act of April 14, 1924. to indicate an intention that a narrow or restricted construction is to be placed upon the words "erroneously omitted or stricken from the Chippewa annuity rolls." The meaning of the words "erroneously stricken" is plain and bearing in mind the settled rule that legislation affecting Indian affairs is to be liberally construed in favor of the Indians, it may very properly be concluded that the words "erroneously omitted" were intended to include errors both of omission and commission in the matter of enrollment. In other words, the act of April 14, 1924, was apparently intended to include cases of failure where action should have been taken but was not, as well as where action was taken but resulted in erroneous omission from the rolls. To state the proposition in still another way, do the words "erroneously omitted" in said act contemplate commission of error by actual refusal to enroll an applicant or do they also include mere omission for any reason even though no formal application is made, on the theory that the person has all along been entitled to enrollment but for some reason his name has not been placed on the rolls, and further that the duty rests to enroll all persons legally entitled? As above indicated it is believed that the law comprehends both the instances mentioned.

    The facts are as hereinabove set out, that the applicant, Ralph L. Connors, is a descendant of a full-blood Fond du Lac Chippewa; that his father was a half-blood Fond du Lac Chippewa and his mother a white woman; that said applicant was enrolled for annuity payments under the act of 1889 with the Fond du Lac Band on the ground that his grandmother being a full blood, it was to be assumed that she was entitled to enrollment, although neither the grandmother nor applicant's father was ever enrolled with that band.

    It was held in the Solicitor's opinion of February 17, 1919, supra, that the only requirement of an applicant for enrollment for the purpose of annuities under the act of January 14, 1889, is to show, possession in whole or in part of the blood of one of the "originally enrolled" members of the tribe; that his ancestor must be found to have been of the "tribal membership" at the time of the creation of the trust under said act. According to this opinion the ancestor must have been an enrolled member. It was also held in the Solicitor's opinion in the Addie Prickett case, supra, that under the terms of the act of June 7, 1897, the only requirement laid upon children born of a marriage between a white man and an Indian woman to entitle them to annuities is to show that the mother was at one time a recognized member of the tribe.

    While the position was taken in Solicitor's opinion of February 17, 1919, that an applicant for annuities under the act of 1889 must show that he is a descendant of an enrolled member of the tribe, yet it would be unjustifiable distinction to hold that the ancestor who was entitled to enrollment, although never actually enrolled for any reason, was not in an equally favorable position for purposes of the act. The fact is, that in the case of Vezina v. United States, supra, the mother of plaintiff, applicant for enrollment, was not herself an enrolled member; but the court held that Mrs. Vezina was nevertheless entitled to be enrolled as of her ancestor's blood. And as hereinbefore set forth, the Solicitor for this Department has expressed the view, December 21, 1920, reference being made to Solicitor's opinion of February 17, 1919, that the descendants of Mrs. Vezina were entitled to participate in the distribution of tribal funds arising under section 7 of the act of January 14, 1889, "not as members of the tribe but as the 'issue' of Elizabeth Vezina". It was further held in that connection: "While Elizabeth Vezina was not enrolled or recognized by the tribe as a member, yet her right to membership and the benefits flowing therefrom has been established by the court."

    The name of Ralph L. Connors was placed on the Fond du Lac Chippewa Indian roll May 23, 1922, which for annuity payments under the act of January 14, 1889, which was prior to the passage of
 


 

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the act of April 14, 1924. Therefore, strictly speaking, he is not a person whose name has been "erroneously omitted or stricken" from the Chippewa annuity rolls. That act further provides, however, for persons "who have been or may hereafter be found entitled to enrollment for annuity payments authorized by section 7 of the act of Congress approved January 14, 1889."

    Applying the foregoing views and cited decisions to the facts of the case in hand, my opinion is that the applicant, Ralph L. Connors, is entitled to back annuities within the purview of the act of April 14, 1924, not as a member of the tribe, but as the lineal descendant of an ancestor who, though not actually enrolled, was a recognized member of the tribe at the time of the creation of the trust out of which said annuities arise, and therefore entitled to enrollment, and on the theory that applicant was all along entitled to such annuities.

Solicitor
Approved: November 6, 1924.

OIL ROYALTIES FROM
ALLOTTED LANDS

M-13807                                                                                                                         November 8, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in the matter of the authority of this Department to exercise control or supervision over some $30,000 now in the hands of the Superintendent for the Five Civilized Tribes at Muskogee, the property of Lucinda Pittman, a full blood Creek Indian.

    The funds in question were derived by way of oil and gas royalties from lands allotted to Rowie Elizabeth Pittman, deceased, a minor daughter of Lucinda Pittman by her former husband Robert Pittman, a white man and a non citizen or member of the Creek Tribe. Robert Pittman and Lucinda were married prior to 1892. Several children, all half bloods, were born as a result of this union, including the said Rowie Elizabeth Pittman. The latter died February 10, 1909, at the age of 17 years, intestate, unmarried and without issue. During her lifetime she had been allotted 160 acres of land in the Creek Nation, of which 40 acres constituted the "homestead", the remainder being commonly referred to as "surplus". She being of but one-half Indian blood all restrictions against alienation of the surplus part of this allotment were removed by section 1 of the act of May 27, 1908 (35 Stat., 312), those against the homestead still continuing. The restrictions having been removed on 120 acres of those lands prior to the death of the allottee a subsequent change in ownership by inheritance or otherwise would not reimpose those restrictions: See the act and section just cited. The homestead of 40 acres, however, presents a different question and one that is not entirely free from difficulty. Section 9 of the said act of May 27, 1908, provides in part:

    That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: * * * .
    For a considerable period after the enactment of the above statute the view prevailed rather generally that the death of an allottee of the Five Civilized Tribes removed all restrictions against alienation even against the homesteads of these allottees. In Parker v. Richards, however (250 U.S., 235, reversing 245 Fed., 330), the Supreme Court held that as to such lands inherited by a full blood Indian the restrictions are not removed until a conveyance thereof has been approved by the proper court, and further, that the rents and royalties derived from such lands are subject to supervision by the Secretary of the Interior until the restrictions have been removed. Whether the homestead part of this allotment therefore remained restricted after the death of the allottee in 1909 depends entirely on whether her heirs, or any of them, were full blood Indians. Before proceeding to a consideration of this question, however, it may be well to point out that jurisdiction to determine the heirs of deceased allottees of the Five Civilized Tribes rests not with the Secretary of the Interior but in the local courts: See the acts of April 28, 1904 (33 Stat., 573, section 2) , May 27, 1908 (35 Stat., 312, sections 2, 6 and 9), June 25, 1910 (36 Stat., 855, sections 1 and 2), and of June 14, 1918 (40 Stat., 606). The last act removes any doubt about the fact that the finding of heirs by the local courts shall be conclusive, subject, of course, to the usual right of appeal.

    With reference to the descent of lands in the Creek Nation, however, section 6 of the act of June 30, 1902 (32 Stat., 500), provides:

    The provisions of the act of Congress approved March 1, 1901 (31 Stat., L., 861), in so



 

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NOVEMBER 8, 1924

far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, That only citizens of the Creek Nation, male and female, and their Creek descendants shall, inherit lands of the Creek Nation: And provided further, That if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to noncitizen heirs in the order named in said chapter 49.

    The act of March 1, 1901, referred to in the foregoing, is commonly know as the original Creek agreement, the amendatory act of 1902 being known as the supplemental agreement. It was under these acts or agreements that allottees of the Creek Tribe received their lands in severalty. Subsequently, however, by the enabling act of June 16, 1906, under which Oklahoma was admitted as a State (34 Stat., 267), the local statutes of descent then in force in the Territory of Oklahoma were substituted for Chapter 49 of Mansfield's Digest: See Jefferson v. Fink (247U.S., 288). Without discussing the local statutes of descent in extensoit is sufficient for our present purpose to point out that under those statutes: "if the decedent leaves no issue, nor husband, nor wife, the estate must go to the father". In the instant case, however, the father being white and a noncitizen of the Creek Tribe we must consider whether he was capable of or excluded from inheriting under that provision in the supplemental Creek agreement, supra, which declares that only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation. The Oklahoma enabling act did not retain this specific provision relating to the Creeks and after admission of the new State it shortly became a much mooted question whether this provision in the supplemental Creek agreement should prevail or was to be disregarded in determining the heirs of deceased Creek allottees. The reported decisions are by no means uniform on this point. For a considerable period after admission of the new State its supreme and other courts held to the view that the Creek law of descent-meaning the proviso in the supplemental Creek agreement, supra-controlled (Thompson v. Cornelius(155 Pac., 602). Later, however, the same courts adopted a different view, holding that the local statutes of descent control without regard to the provision in the supplemental Creek agreement: In re Pigeon's Estate (198 Pac., 309). Numerous decisions by the State courts to the same effect, pro and con, could be multiplied without advantage here. This later view seems to have been recognized at least by the lower Federal Courts: Locke v. McMurry (287 Fed., 276), and Hill v. Rankin(289 Fed., 511). This ruling, however, is not in accord with decisions by the Supreme Court of the United States: Washington v. Miller (235 U.S., 422) ; Campbell v. Wadsworth(248 U.S., 169-177); see also the concluding paragraph in Jefferson v. Fink (247 U.S., 288-294).

    With these rulings by our highest court at hand I am unable to see how the proviso to section 6 of the supplemental Creek agreement is to be disregarded. It is a substantial part of the law under which those Indians were allotted and repeals by implication are not lightly to be inferred. If we exclude the white father from inheriting, which under the rulings of the higher court must be done, the descent would then be cast on the full blood Indian mother: Skelton v. Dill (235 U.S., 206-208) ; McDougal v. McKay (237 U.S., 373-385); Washington v. Miller and Campbell v. Wadsworth, supra.

    By decree of the District Court of El Paso County, Colorado, dated February 24, 1911, Robert Pittman and Lucinda were divorced, the former husband later marrying a white woman. It is also shown that by quitclaim deed dated March 8, 1920, Robert Pittman and his wife Agnes, "for $1 and other valuable considerations" conveyed to Lucinda Pittman all of their right, title and interest in and to the 160 acres here involved. Lucinda Pittman therefore is now the undisputed owner of this entire allotment but as previously observed the restrictions had been removed from 120 acres of these lands prior to the death of the allottee. Being so removed these lands would come into the hands of the full blood Indian mother, unrestricted, and hence free from further supervision. This would be true, regardless of whether she acquired title by "purchase" or by descent. I am of the opinion, however, that under the law these lands came into the hands of Lucinda Pittman by descent and therefore that as to the homestead of 40 acres,-she being a full blood,-the restrictions remained and will remain until duly removed in the manner provided by law. Being so restricted the oil and gas royalties derived from the homestead part of the allotment remain subject to the supervision of the Secretary of the Interior under the ruling in Parker v. Richards, supra.
 

Solicitor.
Approved: November 8, 1924.
Assistant Secretary.
 


 

130

DEPARTMENT OF THE INTERIOR

NOVEMBER 11, 1924

FIVE CIVILIZED TRIBES-
OIL ROYALTIES

M-31861                                                                                                                    November 11, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in connection with the availability of upwards of $125,000 now on deposit with the superintendent of the Five Civilized Tribes at Muskogee, belonging to the estate of Ella Williams, deceased, the particular point at issue being whether these funds are now or can be made available for use by her heirs.

    These moneys were derived by way of oil and gas royalties from the homestead part of certain lands allotted to the said Ella Williams as a member of the Chickasaw Tribe, she being a member thereof of three-quarter Indian blood. Pursuant to the act of July 1, 1902 (32 Stat., 641), the allotment to each member of the Choctaw and Chickasaw Tribes was divided into two parts commonly referred to as "homestead" and "surplus", with varying restrictions against alienation, taxation, etc., as provided for in that act. With the surplus lands we are not here concerned. Ella Williams died in October, 1916, intestate, survived by her husband, George Williams, a noncitizen of the Chickasaw Tribe, and six children of but three-eights Indian blood, five of whom were born before and one after March 4, 1906. Under applicable laws of descent the husband inherited one-third and each child a one-ninth interest in this estate, subject, however, to a special right or estate, hereinafter more fully referred to, in the minor daughter, Cecile Williams, who was born since March 4, 1906.

    During her lifetime this allottee had executed an oil and gas lease covering her homestead lands, which lease was duly approved by this Department in March, 1913. Thereafter oil was discovered and the funds now on hand represent accumulated royalties since the death of the decedent in 1916. Royalties are still being accumulated from the same source at an average monthly rate of around $900. The heirs, or some of them at least, are reported to be in needy circumstances and hence if relief can be afforded it should be extended. The difficulty in this situation, if any exists, rests mainly in a proviso to section nine of the act of May 27, 1908 (35 Stat., 312), which reads in part:

    "That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land. *     *     * Provided further, That if any member of the Five Civilized Tribes of one half or more Indian blood shall die leaving issue surviving, born since March fourth, nine teen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one."
    The conditions just set forth obtain here. The Supreme Court of the United States has had occasion to deal with a substantially similar situation involving the homestead of a deceased Creek allottee: (Parker v. Riley,250 U.S., 66). That decision held in part (pp. 70-71):
    "Under the provision in section nine specially providing for issue born after March 4, 1906, Julia was entitled for her support to the exclusive use of the entire homestead while she lived, but not beyond April 26, 1931, and those who took the fee took it subject to that right. The rights of all in the royalties must, as we think, be measured by that standard. In this view Julia is entitled to the use of the royalties, that is to say, the interest or income which may be obtained by properly investing them, during the same period, leaving the principal, like the homestead, to go to the heirs in general on the termination of her special right."

In the same case, however, it was also stated:

    "We need not stop to consider whether, strictly speaking, the right thus specially given to Julia was an estate for life or for years, for it evidently was not the purpose to make any nice distinctions along that line. Nor need we consider what effect a removal of the restrictions 'in the manner provided in section one' after the death of the allottee would have had on the relative rights of Julia and the other heirs, for no such removal was attempted or intended by the Secretary of the Interior."

    Analyzing more particularly the proviso to section nine of the act of May 27, 1908, supra, it is manifest that the special right or estate in the minor born since March 4, 1906, is to continue until April 26, 1931, "unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one" of that act. From the latter we read:
 


 

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    "All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act."

    A statute, if possible, is to be construed in the light of its obvious policy (241 U.S., 432), and, according to a familiar rule, legislation relating to the Indians is to be construed in their favor. (Id. 59). Is it to be presumed that Congress, by the proviso first hereinabove referred to, intended that the heirs of a deceased Indian, possessed of a comparatively wealthy estate, should be permitted to suffer on account of language used in a particular part of that proviso which, within itself, clearly indicates that the Secretary of the Interior may remove the restrictions? In the exercise of a sound discretion vested in the latter officer by the act of May 27, 1908, and other pertinent statutes relating to the Five Civilized Tribes, the restrictions have been lifted from time to time, in whole or in part, from lands allotted to members of these tribes. No reason is seen why the same authority may not be invoked to relieve the situation now here.

    While not prone to offer suggestions as to administrative procedure, yet, with due regard to the special right or estate in the minor born since March 4, 1906, I am of the opinion that interest to April 26, 1931, can be computed at a reasonable rate on the amount of funds now on hand and after deducting such interest from the amount the remainder can be distributed to the several heirs according to their respective shares in the estate. The "interest" so due the minor and set apart in advance for her benefit should only be expended, of course, year by year, or, permissibly, month by month, as and when such interest would otherwise ordinarily accrue. As to supervision by the Secretary of the Interior over oil and gas royalties from restricted lands allotted to members of the Five Civilized Tribes; see Parker v. Richards, (250 U.S., 235) .

    Other administrative methods of overcoming the situation here could be pointed out but I deem it unnecessary to discuss those at this time.

Solicitor.
Approved: November 11, 1924.

FT. APACHE RESERVATION--
MINERAL LEASES

50 L.D. 672                                                                                                                        November 15, 1924.

INDIAN LANDS--FORT APACHE LANDS--MINERAL LANDS--COBALT--ASBESTOS--LEASE

    The issuance of a lease conferring the right to mine all the metalliferous mineral deposits in a tract of land on the Fort Apache Indian Reservation, Arizona, pursuant to the act of June 30, 1919, as amended by the act of March 3, 1921, precludes the granting of a lease to another for the mining of any one or more of the minerals specified in those acts so long as the original lease is in effect.

EDWARDS, Solicitor:

    My opinion has been requested in connection with an alleged discovery of cobalt by one H. W. Fowler on the Fort Apache Indian Reservation, Arizona, the precise question being whether persons other than the lessees under an existing lease can acquire any mining rights or privileges in these lands.

    By section 26 of the act of June 30, 1919 (41 Stat., 3, 31). the Secretary of the Interior was authorized to lease unallotted lands within Indian reservations in nine of our western States, including Arizona, for the purpose of mining gold, silver, copper, and other valuable "metalliferous minerals", substantially under such rules and regulations as the Secretary of the Interior might prescribe. By an amendatory item in the act of March 3, 1921 (41 Stat., 1225, 1231), magnesite, gypsum, limestone, and asbestos, were brought within the terms "metalliferous minerals" as used in the earlier statute. Appropriate regulations governing operations under this legislation will be found in 47 L.D., 261, and 48 L.D., 263, 266.

    Pursuant to the statutes and the regulations referred to on June 29, 1922, this Department approved a mining lease in favor of G. W. Adams and L. R. Jacobson, covering certain lands on the Fort Apache Indian Reservation embraced in claims locally known as "Horseshoe Nos. 1 and 2", containing an aggregate area slightly in excess of 38 acres. This lease was founded on a prior application alleging a valuable discovery of asbestos but when
 


 

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we turn to the lease itself we read from section one--

    The lessor, for and in consideration of the royalties, covenants, stipulations, and conditions hereinafter contained, and hereby agreed to be paid, observed and performed by the lessee, doth hereby demise, grant, lease, and let unto the lessee for the term of 20 years with privilege of renewal for successive periods of 10 years upon such reasonable terms and conditions as may be prescribed by the lessor, unless otherwise provided by law at the time of the expiration of such periods, from the date of signing hereof by the lessor, for the purpose of mining all the deposits of metalliferous minerals in or under the following described lands. [Italics supplied.]
    Cobalt is a metalliferous mineral and hence comes well within the class of deposits subject to lease under the act of June 30, 1919, supra. The lessees in the lease now here thereby obtained an exclusive right to mine "all the deposits of metalliferous minerals" in or under the lands covered thereby. Any person or persons, therefore, other than the present lessees, their agents or assigns, attempting to mine deposits of this nature within these lands would properly be regarded as trespassers. I am of the opinion that under the situation as it now stands, mining rights adverse to the present lessees cannot be recognized or accorded by this Department.

    It would be idle here, of course, to speculate on whether separate leases, with different lessees in each case, one for each of the different varieties of metalliferous minerals, would have been permissible under the statute referred to. Apparently such a procedure was not contemplated by the regulations as originally promulgated and in view of the multiplicity of "metalliferous minerals" the wisdom of considering such a course may seriously be questioned.

Approved:
F. M. GOODWIN, Assistant Secretary.

EXTENT OF TITLE TO LANDS
PATENTED AS MISSION CLAIMS

50 L.D. 676                                                                                                                       November 21, 1924.
M-13866

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion in connection with the issuance of patents for certain lands on the Crow Creek Indian Reservation, South Dakota, heretofore set apart to the Protestant Episcopal Church for missionary purposes.

    By the act of March 2, 1889 (25 Stat. 888), the Great Sioux Reservation was carved up into a number of small reservations for sundry bands of the Sioux Tribe and a large part of their former claimed territory made available for homestead settlement and entry. Among the diminished reservations so created we find the one at Crow Creek, (section 6 of the act referred to). With reference to the entire area, however, from section 18 of the act we read:

    "That if any land in said Great Sioux Reservation is now occupied and used by any religious society for the purpose of missionary or educational work among said Indians whether situate outside of or within the lines of any reservation constituted by this act, or if any such land is so occupied upon the Santee Sioux Reservation, in Nebraska, the exclusive occupation and use of said land, not exceeding one hundred and sixty acres in any one tract, is hereby, with the approval of the Secretary of the Interior, granted to any such society so long as the same shall be occupied and used by such society for educational and missionary work among said Indians: and the Secretary of the Interior is hereby authorized and directed to give to such religious society patent of such tract of land to the legal effect aforesaid." [Italics supplied.]
    A provision of like tenor is to be found in the general allotment act of February 8, 1887 (24 Stat. 388, section 5), except that the latter carries no specific directions as to the issuance of patents for these so-called "church lands." Long before the enactment of these statutes various religious organizations had been zealously laboring among the Indians looking to their uplift in moral and other respects. Prior to March 2, 1889, the domestic and foreign missionary society of the Protestant Episcopal Church had established a number of missions among the Sioux, including three on the Crow Creek Reservation at stations locally known as "St. John the Baptist," "All Saints Church," and "Christ Church." Substantial improvements, comparatively speaking, were erected and have since been maintained on these sites, in some cases being enlarged or rebuilt as the needs of the church might require.

    On the extension of our public land system of surveys over the Crow Creek Reservation and an allotment in severalty to the Indians there, as provided for in the act of 1889, the areas occupied and
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1924

used for missionary purposes were adjusted to such system of surveys and set apart to the respective organizations by placing appropriate descriptions of the lands so occupied and used on the allotment schedules, which schedules were duly approved here in 1895. October 23, of that year, a patent was issued for the three mission sites herein above mentioned, embracing an aggregate area of 130 acres, in which patent, after reciting a description by legal subdivisions of these three missionary sites, the tenendum clause of that patent was made to read:

    "Now know ye: That the United States of America, in consideration of the premises and in conformity with the eighteenth section of said Act of Congress approved March second, Eighteen hundred and Eighty-nine, and the order aforesaid, hereby agrees to hold in trust for the said 'Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States of America' the tracts of land above described so long as the same shall be occupied and used by such society for educational and missionary work among said Indians." [Italics supplied.]
    Just why a "trust form" of patent was resorted to is not now entirely clear for when we turn to the particular section of the statute under which is sued we find that the land so used and occupied was, with the approval of the Secretary of the Interior, to be "granted" to such societies or organizations as long as used for educational or missionary work among the Indians. Further, that a patent of "legal effect aforesaid" was to be issued to such organizations. The usual form of documentary title evidencing a grant is a patent in fee and in the absence of legislative direction to the contrary very properly such a patent could have been issued to the church in this instance with an appropriate reversionary clause in the event that the lands ceased to be used for the purpose designated.

    The church is now here asking for a patent in fee simple but whether with or without a reversionary clause is not definitely shown by the record now before me. In presenting the matter to the Department, however, the Commissioner of Indian Affairs invites attention to additional legislation dealing with the same subject-matter, and from the Indian appropriation act of March 3, 1909 (35 Stat. 781, 814), we read:

    "That the Secretary of the Interior is hereby authorized and directed to issue a patent in fee simple to the duly authorized missionary board, or other proper authority of any religious organization engaged in mission or school work on any Indian reservation, for such lands thereon as have been heretofore set apart to and are now being used and occupied by such organization for mission or school purposes." [Italics supplied.]
    On September 21, 1922, however, a like measure was enacted (42 Stat. 994-5), which provides:
    "That the Secretary of the Interior is hereby authorized and directed to issue a patent to the duly authorized missionary board, or other proper authority, of any religious organization engaged in mission or school work on any Indian reservation for such lands thereon as have been heretofore set apart to and are now being actually and beneficially used and occupied by such organization solely for mission or school purposes, the area so patented to not exceed one hundred and sixty acres to any one organization at any station; Provided, that such patent shall provide that when no longer used for mission or school purposes said lands shall revert to the Indian owners."
    It will be observed that the proviso in the legislation last referred to is of similar import to the obligation placed upon organizations of this character by section 18 of the act of March 2, 1389, supra. Further, that neither of these conditions or obligations appears in the act of March 3, 1909. As supplemental acts relating to the same subject matter may properly be regarded as a legislature interpretation of prior acts, I am of the opinion that we would not now be justified in issuing an unqualified fee patent to this church organization pursuant to the act of March 3, 1909, in utter disregard of the later legislation in the act of September 21, 1922. We now can, of course, in lieu of the outstanding trust patent which is with the record in the case, issue a patent in fee with a reversionary clause in the event that the lands described therein cease to be used for missionary or educational purposes, and this, under authority of the act of September 21, 1922. As previously pointed out, however, this is simply the character of patent that the church was entitled to in the first instance.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.


 Approved: November 21, 1924.
F. M. GOODWIN, Assistant Secretary.
 


 

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DECEMBER 1, 1924

TITLE TO LAND

M-14017                                                                                                                           December 1, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    It appears that a deed executed by C. R. and K. F. Huddleston to the United States for 10 acres in Sec. 34, T. 10 N., R 10 W., Miss., was accepted by you on the assurance of the Attorney General that the abstract of title submitted for his consideration showed that the proponents were the owners of and could convey a good title to the tract.

    It now further appears that the same grantors have executed a further conveyance to the Government of other lands forming a part of the section mentioned, which were also shown by the said abstract of title to belong to them and I have been asked to express my opinion as to whether or not this deed may be accepted under the opinion already rendered by the Attorney General.

    The abstract mentioned is not before me, but you are informed that you may with propriety accept the deed if it be a fact that the title to the land conveyed by it is the same as the title covered by the abstract under which the Attorney General rendered his opinion.

    It is suggested, however, that before the deed is accepted, it should be satisfactorily shown that the grantors have not since the compilation of the abstract mentioned, incumbered in any the land, and that it is at this time free from liens for taxes or otherwise.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: December 1, 1924.
E. C.FINNEY, First Assistant Secretary.

QUAPAW TRIBE-HEIRSHIP

M-13772                                                                                                                          December 23, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in connection with the determination of heirs to the estate of Alexander Mudd, deceased allottee of the Quapaw Tribe of Indians, Oklahoma.

    The heirs in this case were determined July 28, 1914, the estate being awarded to persons claiming to be heirs on the maternal side. Petition for rehearing has been filed in behalf of persons claiming one-half the estate as heirs on the paternal side.

    The allotment to Alexander Mudd was made under the provision contained in the Indian appropriation act of March 2, 1895 (28 Stat., 876, 907), ratifying and confirming allotments of land to Quapaw Indian Territory, in pursuance of an act of the Quapau National Council approved March 23, 1893. Patent with restrictions against alienation for 25 years was issued to the allottee September 26, 1896, which time was extended for an additional 25 years by the act of March 3, 1921 (41 Stat., 1225, 1248). He died January 19, 1898, at the age of 15 years, unmarried and without issue, brothers, or sisters, or children of deceased brothers or sisters. Both of his parents died before him and long prior to the allotment of lands on the Quapaw Reservation. There were no brothers or sisters of his father living when the allottee died in 1898 but an uncle and aunt on his mother's side were then living.

    At the time of Alexander Mudd's death the descent of Quapaw estates was controlled by chapter 49 of Mansfield's Digest of the Statutes of Arkansas, put in force by section 31, act of Congress of May 2, 1890 (26 Stat., 81, 94), in the remaining portion of Indian Territory after said act had erected therein the Territory of Oklahoma. Both of these Territories were unitedly admitted into the Union November 16, 1907, as the State of Oklahoma.

    In a finding of heirship by the District Court of Ottawa County, Oklahoma, on November 24, 1909, the estate of Alexander Mudd was awarded in equal shares to his cousin, Victor Griffin, son of a deceased aunt, and to his uncle, Joe Buffalo, heirs on the mother's side, with a further finding that upon the death of Joe Buffalo, the laws of Arkansas still being in force, his one-half interest went to his six children. The finding of the court was apparently based on that provision in Mansfield's Digest reading in part as follows:

    "In cases where the intestate shall die with out descendants *     *     * if the estate be a new acquisition, it shall descend to the father for his lifetime and then descend in remainder to the collateral kindred of the intestate in the manner provided in this act."
    The action of the court was adopted by the Department July 28, 1914, and the allotment of Alexander Mudd was partitioned accordingly. Victor
 


 

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Griffin subsequently applied for permission to sell his interest, the application was approved and the sale was made, his deed to the purchase being ap proved by the Department.

    It is contended in the petition for rehearing that the estate of Alexander Mudd was ancestral and upon his death one-half thereof descended to the heirs of the paternal side, in view of decision in the case of Shulthis v. McDougal (170 Fed., 529). The question specifically presented for opinion is as to the applicability of said decision to the Quapaw case of Alexander Mudd.

    In the caseof Shulthis v. McDougal the court had under consideration acts of Congress relating to the Five Civilized Tribes of Indians and the estate involved was that of a member of the Creek Nation. The act of March 1, 1901 (31 Stat., 861, 870), known as the Original Creek Agreement, in providing for the allotment in severalty of the lands of the Creeks revived their tribal law of descent and distribution which had been abrogated by prior acts of Congress extending to Indian Territory chapter 49 of Mansfield's Digest. This, however, was temporary as by section 6 of the act of June 30, 1902 (32 Stat., 500, 501), known as the Supplemental Creek Agreement, the Arkansas Law of descent with certain qualifications was reinstated as follows:

    "The provisions of the act of Congress, ap proved March 1, 1901 (31 Stat. L. 861). in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, That only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, That if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to non citizen heirs in the order named in said chapter 49."
    There was a similar provision but without the provisos in the act of May 27, 1902 (32 Stat., 258). It was under the above act or agreement of June 30, 1902, qualifying the Arkansas statutes of descent in respect to the Creek Nation, that members of that tribe were allotted their lands in severalty, and the provisions thereof continued operative until Oklahoma was admitted as a State under the enabling act of June 16, 1906 (34 Stat., 267), when the local statutes of descent then in force in the Territory of Oklahoma were substituted for chapter 49 of Mansfield's Digest. Jefferson v. Fink (247 U.S., 228). While prior decisions of the lower courts are not entirely uniform on the subject it is now pretty well settled in decisions subsequently rendered by the United States Supreme Court that the provisos above quoted in the Supplemental Creek Agreement of June 30, 1902, were not affected by the general act of April 28, 1904 (35 Stat., 573), continuing and extending the laws of Arkansas in Indian Territory, nor by the enabling act admitting Oklahoma as a State, the position being taken that said provisos are a substantial part of the law under which the Creek Indians were allotted their lands in severalty. Washington v. Miller(235 U.S., 422), Jefferson v. Fink (247 U.S., 288, 294-5). The said act of April 28, 1904, reads as follows: "All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation so as to embrace all persons and estates in said Territory, whether Indian, freedman, or otherwise, etc."

    It was held in the case of Washington v. Miller, supra, that the above act of April 28, 1904, did not operate to repeal the provisos in section 6 of the Supplemental Agreement of June 30, 1902.

    The child involved in the case of Shulthis v. McDougal,Andrew J. Berryhill, was not eligible to enrollment under the provisions of the Original Creek Agreement of March 1, 1901, and only became entitled to enrollment under section 7 of the Supplemental Creek Agreement of June 30, 1902. Shulthis v. McDougal (162 Fed., 331, 336). The contention of petitioners for rehearing is that the heirs of Alexander Mudd should have been determined in accordance with the Arkansas statutes of a descent as applied in the Berryhill case. It is evident, however, that the Arkansas law as modified or qualified by the Supplemental Creek Agreement is not applicable in determining the heirs to the estate of a member of the Quapaw Tribe of Indians whose affairs are subject, as hereinabove shown, to special legislation peculiarly applicable to them. Besides, the facts in the Berryhill case are materially different from those in the case of Alexander Mudd thereby giving rise to basis for a finding of heirs according to different laws of descent. He left surviving him his father, a member of the Creek Tribe, his mother who was a non citizen of the Creek Tribe, and several paternal uncles and aunts. His name was not placed on the tribal rolls until after his death nor was his allotment made until thereafter. Patent covering his allotment was not issued in his name but to his heirs.

    The original decision in the case of Shulthis v. McDougal was rendered by the Circuit Court of
 


 

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the United States for the Eastern District of Oklahoma (162 Fed. 331). The court after discussing the distinction between new acquisitions and ancestral estates concluded that the allotment of Andrew J. Berryhill was in contemplation of the law a new acquisition, holding (syllabus):

    "Under the Arkansas law of descent and distribution an allotment acquired by a Creek citizen by selection and certificate of allotment or by patent became a "new acquisition," and upon the death of such citizen, before allotment or after allotment, without issue, or brothers or sisters, leaving a father, such father took a life estate; the fee passing to the uncles and aunts."
    The case was appealed to the Circuit Court of Appeals, Eighth Circuit (170 Fed., 529), where the decree of the lower court was affirmed. The court, after referring to that portion of Mansfield's Digest of the Statutes of Arkansas as to a new acquisition, above quoted, held (syllabus):
    "*     *     * Technically, the Arkansas statute did not apply to the situation since the land to which the decedent was entitled and which was the common property of the tribe did not, strictly speaking, come to him by grant, inheritance, or purchase, but by a division of lands held in effect by a tendency in common, to an interest in which he was born as a member of the tribe entitled to enrollment therein; but that, applying the statute by analogy, such land was not a "new acquisition" but came to him by the blood of his tribal parent, or, within the meaning of the statute, 'from his father.' and that therefore, on his death and the subsequent allotment his father took the full title, and not merely a life estate."
    The case of Shulthis v. McDougal was taken on appeal to the United States Supreme Court (225 U.S., 561), but it was there dismissed for want of jurisdiction. Subsequently that court had before it in McDougal v. McKay (237 U.S., 372), the facts of the Andrew J. Berryhill case and the question of descent under Mansfield's Digest of the Laws of Arkansas. After quoting extensively from the decision in Shulthis v. McDougal (170 Fed., 529), and from a decision in another case by the Supreme Court of Oklahoma wherein the facts are materially different from those in the Quapaw case of Alexander Mudd in that decedent involved in that decision left surviving him father, mother, brothers, sister and her husband, the court decided that the estate of Andrew J. Berryhill was ancestral within the meaning of chapter 49 of Mansfield's Digest. The court at the same time found that the canons of descent contained in Mansfield's Digest were not precisely applicable to the circumstances surrounding the Berryhill case and expressly stated that in any event it felt constrained for reasons stated to follow the conclusion reached by the Circuit Court of Appeals and the Supreme Court of Oklahoma. The court refrained from deciding a question raised by the pleadings, evidently because not deemed pertinent, namely, that if Andrew J. Berryhill had lived to receive an allotment "he would have taken the same, not technically merely, but substantially, by the purchase from the United States and the Creek Nation, and not by descent from his tribal parents," and that under these circumstances "he would have taken the allotment as a new acquisition."

    It is reasonably clear, therefore, that the findings in the case of Shulthis v. McDougal, involving as they did acts and agreements particularly applicable to the Creek Indians, having no application in the matter of determining heirs to estates of the Quapaws except as they may aid generally in the interpretation of legislation which put in force the Arkansas laws of descent in the Territory prior to the admission of Oklahoma as a state. Decisions had been rendered in that case by the Circuit Court and the Circuit Court of Appeals prior to the time the District Court of Ottawa County, Oklahoma, rendered its decision in the Quapaw case of Alexander Mudd. It is a fair presumption that the latter court was familiar with the Shulthis v. McDougal case and regarded it as inapplicable to the Quapaw situation it had in hand. That the Department may adopt the heirship finding of that court as its own even though said court may have been without jurisdiction in the premises is well settled.

    While chapter 49 of Mansfield's Digest of the Statutes of Arkansas relating to descent extended to the Quapaws and consequently the determination of heirs to the estate of Alexander Mudd is controlled thereby, nevertheless such determination is unaffected by any conclusions reached by the courts in the Shulthis v. McDougal case based as they are on acts and agreements which qualified such statutes and related exclusively to the Indians of the Creek Nation.

    The provisions of Mansfield's Digest relating to descent clearly distinguish between an estate coming to a decedent by a parent and a new acquisition and prescribed different rules of inheritance. The estate of Alexander Mudd did not come to him by his parents but his allotment was regularly made to him after their deaths as an enrolled member of the tribe in his own right and in that respect is
 


 

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clearly distinguished from the estate involved in the case of Shulthis v. McDougal.

    It is my opinion that there is no justification so far as the case of Shulthis v. McDougal is concerned for disturbing the heirship to the estate of Alexander Mudd as already found. Under the decision of the court as adopted by the Department the estate now stands awarded to the next of kin.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: December 23, 1924.
F. M. GOODWIN, Assistant Secretary.

TAXATION OF RESTRICTED LANDS

M-14237                                                                                                                       December 23, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested with reference to the taxability, under our Federal income tax laws, of the income derived by members of the Kaw Indian Tribe, Oklahoma, from their "restricted lands."

    As I see it this question has virtually been determined by outstanding opinions relating to the Indians of other tribes whose lands are in substantially a similar status to that of the Kaws: See the opinion of the Attorney General dated March 15, 1924, relating to allottees of the Five Civilized Tribes in Oklahoma; also my opinion of October 8, 1924 (M. 12946), dealing with restricted lands of the Quapaw Indians in Oklahoma. In each of these rulings it was held that the income flowing to individual Indians from their restricted property is not subject to tax under our existing internal revenue laws. In this connection it is not inappropriate to invite attention also to the opinion by the Attorney General, dated August 14, 1924, wherein he held that the statutes of limitation of five years within which claims for refunds of income taxed erroneously paid must be filed do not apply to restricted Indians. The underlying reasons given in the latter opinion appeal to me as most cogent from a legal as well as other standpoints.

    I deem it unnecessary here to present an extensive review of the situation with respect to the Kaws. Sufficient to say that under the act of July 1, 1902 (32 Stat., 636), the "homestead" of 160 acres allotted to each member of this tribe was to remain inalienable and "nontaxable" for a period of 25 years from January 1, 1903; that is until January 1, 1928. While the "surplus lands" allotted to each member, approximating 240 acres, were to remain inalienable for a period of 10 years only, yet such lands were also to remain "nontaxable" as long as the title is held by the original allottee," not exceeding 25 years from the date of patent in each case. As to minors a further declaration is to be found to the effect that the lands allotted to minor members of the tribe shall be inalienable during minority. As to those matters see section 2 of the act referred to. None of the periods mentioned have expired by lapse of time, and by the act of March 4, 1923 (42 Stat., 1561), the restricted period as to minors has been extended for a further period of 25 years from the date of the latter act. So also as to "the homesteads," in the hands of incompetent members of this tribe, the restricted period is, by the act of May 27, 1924 (43 Stat., 176), to be continued for an additional period of 20 years from January 1, 1928.

    The status of lands allotted to the Kaws is substantially on all fours with that of allottees of the Five Civilized Tribes in that each member of these tribes received "homestead" and surplus lands," with varying restrictions as to alienation and taxation against each class of lands. The Kaws, however, if any distinction is to be found, enjoy a stronger exemption from taxation. Hence, the income derived from the restricted lands in the hands of the Kaws is not subject to taxation during the period of exemption.

    In connection with the question presented my attention has been invited to a recent ruling by the Treasury Department with respect to the Osage Indians wherein it was said that:

    "It would seem, therefore, that if because of the plenary power control of Congress over Indian Affairs, it may properly subject the Osage property (tribal) to taxation for State and County purposes, the same reasoning requires it to be held that Congress may also subject such property to taxation for Federal Governmental purposes. If it is deemed proper that such property and its owners should bear a proportion of the cost of State and County government, there seems no reason why it can not also be deemed proper that such property and its owners should bear a part of the cost of Federal Government. As the Attorney General has said, whether the income in question should be taxed for Federal purposes is a matter for the determination of Congress." [Parenthetical data supplied.]
    About the plenary power of Congress over tribal Indian property there can be no doubt and in the
 


 

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DECEMBER 23, 1924

absence of some controlling reason to the contrary Congress undoubtedly has the power to subject such property to taxation either by the State or Federal Government. The question of taxation of the Osages, however, not being before me for determination is one regarding which I here express no opinion.

Solicitor.
Approved: December 23, 1924.
Assistant Secretary.

STATE RIGHT TO TAX
PATENTS IN FEE

M-13864                                                                                                                             December 24, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in connection with the question of taxation by the State of Washington against lands allotted to Indians of the Colville Reservation where the allottees applied for and received patents in fee simple prior to the expiration of the original trust period.

    From the record presented it appears that some 500 allottees on this reservation have heretofore received patents in fee and that of those who still retain title some have voluntarily paid the taxes thereon while others have refused so to do on the ground that such lands are not taxable by the State until the full 25-year period called for by their original trust patents has expired.

    By the act of July 1, 1892 (27 Stat., 62), Congress provided for allotments in severalty to the Indians and the disposal of the surplus unallotted lands within that part of the Colville Indian Reservation commonly referred to as the "north half." By the act of March 22, 1906 (34 Stat., 80), a practically similar disposal was provided for with reference to lands within the diminished or south half of this reservation. Both acts, after providing for an allotment of 80 acres to each Indian, substantially directed the issuance of patents in accordance with the general allotment act of February 8, 1887 (24 Stat., 388). This, in turn, (section 5) calls for patents under which the United States declared that it would hold the lands so allotted in trust for 25 years for the benefit of the allottee or in case of death, of his heirs, and that at the expiration of said period it would convey the lands in fee to the allottee or to his heirs as the case might be "free from any charge or incumbrance whatsoever." In other words, our familiar 25-year trust patent, which, so long as the land remained in that status operated as an effective bar against taxation by the State: (143 Fed., 287). As the period of the trust is to be calculated in each instance from the date of the primary or trust patent, necessarily this will vary as to individual allottees but for our present purposes it is sufficient to state that trust patents on the north half of the Colville Reservation were issued mainly under date of July 31, 1920; those for allotments on the south half bearing date mainly of April 13, 1917. Hence, the 25-year trust period has not expired, by lapse of time, in any instance.

    Congress, however, on May 8, 1906 (34 Stat., 182), amended the general allotment act in several respects, with which we are here concerned to the extent only of that proviso which reads in part:

    "That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent." [Italics supplied.]
    For a considerable period the view prevailed rather generally that inalienability and nontaxability as applied to allotted Indian lands were coexistent factors, or, in other words, that as soon as restrictions are removed the lands then become subject to taxation. Evidently Congress entertained a like view for in several measures pertaining to such matter that body attempted, as it did in the act of May 8, 1906, supra, to couple taxability with a removal of the restrictions against alienation: See act of June 21, 1906 (34 Stat., 353), relating to allottees on the White Earth Reservation, Minnesota, and the act of May 27, 1908 (35 Stat., 312), relating to the Five Civilized Tribes in Oklahoma. In 1912, however, the Supreme Court of the United States, after pointing out that alienability and taxability are separate and distinct subjects, laid down the rule, substantially, that while Congress could remove the restrictions against alienation whenever it saw fit so to do, yet where an Indian has once obtained a vested right of exemption from taxation for a definite period it is thereafter beyond the power of Congress, by statute, to deprive the Indian of that right without his consent: Choate v. Trapp (224 U.S., 656-673). To the same effect is
 


 

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JANUARY 23, 1925

the decision by the Eighth Circuit in Morrow v. The United States (243Fed., 854), involving allottees of the White Earth Reservation, Minnesota. See also 49 L.D., 348-352, wherein it was pointed out that a removal of restrictions, within itself, does not deprive the Indian of any property right but simply enlarges his privilege of dealing with the lands allotted to him which he could there after retain, incumber, or dispose of, as he might see fit. Enlargement of personal privileges are matters of which one can hardly be heard to complain, but when we attempt to couple this with an invasion of a vested property right we confront a different situation. If it is beyond the power of Congress to invade a property right resting in the Indian, surely it is likewise beyond the power of an administrative officer, by the issuance of a patent in fee prior to the expiration of the trust period, without the consent of the Indian, to deprive him of a right which has once vested. In other words, his lands cannot thus be made subject to taxation without his consent: Benewah County, Idaho v. United States (290 Fed., 628).

    We are not here greatly concerned, however, with those comparatively few cases where patents in fee have issued without the consent of the Indian. For, as indicated in the opening paragraph, the question now here deals only with those Indians who applied for and received patents in fee simple prior to the expiration of the original trust period provided for in the primary or trust patents issued to them. This brings into view a somewhat different situation, and one with respect to which there can be but little if any doubt. Where an allottee voluntarily applies for a removal of restrictions prior to the expiration of the period of exemption originally provided for, the granting of such application subjects the lands to taxation even in the hands of the original allottee: See Sweet v. Shock(245 U.S., 192-196-7). The application for removal of restrictions or, as in this case, the issuance of a patent in fee, being wholly voluntary on the part of the Indian, he takes title subject to the terms, conditions, and limitations of the statute under which the application is granted. In other words, he can not embrace the benefits of a statute and at the same time escape the responsibilities or liabilities arising thereunder. In so far as allottees on the north half of the Colville Indian Reservation are concerned the fact that such lands after issuance of a patent in fee became taxable is fortified by that legislative declaration in the act of July 1, 1892, supra, the very act under which they received their lands in severalty, which declares:

    "That such allotted lands shall be subject to the laws of eminent domain of the State of Washington, and shall, when conveyed in fee simple to the allottees or their heirs, be subject to taxation as other property in that State."
    Aside from the legislative declaration just mentioned, however, I am of the opinion that when an Indian allottee applies for and receives a patent in fee simple pursuant to the act of May 8, 1906, supra, even prior to the expiration of the original trust period, such lands then become subject to taxation.

    In connection with this matter the Commissioner of Indian Affairs invites attention to section 2 of the act of July 1, 1892, supra, in which Congress authorized the Secretary of the Interior, in his discretion, to use part of the proceeds derived from the sale of surplus lands within the north half of the Colville Indian Reservation to pay such part of the local taxes as might properly be chargeable against the lands allotted to these Indians "so long as such allotted lands shall be held in trust and exempt from taxation." Having found that the issuance of a patent in fee not only terminates the trust but also subjects the land to taxation, this feature of the situation is not of great materiality here. It may be observed, however, that by the act of June 7, 1924 (43 Stat., 599), Congress has directed payment to Stevens and Perry Counties, Washington, of some $115,767 in lieu of taxes against lands allotted to Indians on the Colville Reservation pursuant to section 2 of the act of July 1, 1892, supra, but this is to be used, of course, only in settlement, ratably, of taxes denied to the State where the lands so allotted are still "held in trust" and therefore exempt.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: December 24, 1924
F. M. GOODWIN, Assistant Secretary

CREEK-DESCENT OF LANDS

M-13807                                                                                                                                                  January 23, 1925.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My attention has been invited to a communication from the Superintendent for the Five Civilized Tribes in connection with the estate of Rowie Elizabeth Pitman, a deceased allottee of the Creek Indian Tribe, Oklahoma, which was the subject of my opinion of November 8, 1924.

    The superintendent seems to be laboring under
 


 

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the impression that the enabling act under which Oklahoma was admitted into the Union as a State (34 Stat., 276) operated as a repeal of that proviso in section 6 of the supplemental Creek agreement embodied in the act of June 30, 1902 (32 Stat., 500),- the basic law under which these Indians received their allotments in severalty-which reads:

    "That only citizens of the Creek Nation, male and female, and their Creek descendants, shall inherit lands of the Creek Nation."
    When we examine the rulings laid down by our Supreme Court in Skelton v. Dill (235U.S., 206); Washington v. Miller (Id., 422) ; McDougal v. McKay (237 U.S., 373); and Campbell v. Wadsworth (248 U.S., 169-177), we cannot escape the conclusion that the proviso quoted from the supplemental Creek agreement is still in force and effect. This matter was discussed quite fully in my prior opinion, wherein, after pointing out that there is nothing in the enabling act of the State, either expressed or implied, indicating an intent on the part of Congress to repeal the specific provision in the law or agreement referred to governing the descent of lands in the Creek Nation, it was further observed that repeals by implication are not lightly to be inferred. In other words, in the absence of an express declaration by Congress to that effect, we are not warranted, by implication, in imputing to that body an intent to repeal an express declaration in an agreement with these Indians under which their tribal lands were allotted in severalty. Further discussion of this feature of the matter should be unnecessary, but, largely for convenient reference by the superintendent, several paragraphs from the syllabus in Washington v. Miller (235 U.S., 422) are set up below:
    "Section 6 looked to the future no less than to the present and is intended to prescribe rules of descent applicable to allotments and there is nothing in that section indicating that it was intended to be less comprehensive; the words "lands of the Creek Nation" as used therein mean lands in the Creek Nation and include such lands after as well as before allotment.

    "Repeals by implication are not favored and usually occur only in cases of such irreconcilable conflict between an earlier and later statute that effect cannot reasonably be given to both.

    "Where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is to remain in force as an exception to the general.

    "There is no incompatibility between a general statute purporting to regulate descent and distribution of all lands within a Territory and a special statute directly regulating descent and distribution of a particular class of Indian lands therein.

    "Under Par. 6 of the agreement of June 30, 1902, regulating descent and distribution of Creek Indian allotments, the non-citizen father does not inherit where there are citizen heirs who can take the inheritance." [Italics supplied.]

    In the instant case the allottee died while yet a minor, unmarried and without issue, leaving her father, Robert Pitman, a white man, her mother, Lucinda Pitman, a full-blood Creek Indian, and several brothers and sisters by the same parents, these children, like the allottee, of course, being of but one-half Indian blood. Under these circumstances and the law, my opinion of November 8th expressed the view that the father being white and a noncitizen or member of the Creek tribe, took no share as an heir in the allotment of this decedent. Further, that the homestead part of this allotment, the decedent being of one-half Indian blood, was restricted at the time of her death and remained restricted in the hands of the full-blood Indian mother and heir, hence, that the oil and gas royalties derived therefrom, in the hands of the Superintendent of the Five Civilized Tribes, remained subject to control and supervision by the Secretary of the Interior; citing Parker v. Richards (250 U.S., 235). In that connection attention may also be invited to the ruling by the Eighth Circuit Court of Appeals in United States v. Hinkle (261 Fed., 518).

    My prior opinion pointed out further that jurisdiction to determine the heirs of deceased allottees of the Five Civilized Tribes rests not in the Secretary of the Interior but in the local courts: hence, that opinion is not to be regarded as a determination of the heirs of the decedent in this instance, but rather as an expression of the view, amply supported by the law and decisions referred to, that the royalties derived from the restricted part of this allotment remained restricted in the hands of the full-blood Indian heir, subject to continued supervision by the Secretary of the Interior. The concluding paragraphs of the earlier opinion lead to the impression that the full-blood Indian mother was the sole heir of the decedent. This impression can best be clarified by inserting the words "in part" after the word "cast" in line 16, page 6, and also in line 14, page 7, after the word "lands." As
 


 

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so modified and understood, my former opinion is adhered to, it being manifest that the scope of the opinion is simply to the effect that whatever part of the restricted allotment of Elizabeth Rowie Pitman came into the hands of her full-blood Indian mother by descent, remained restricted in the hands of the flubbed Indian heir, and that the royalties therefrom, while the lands were so restricted, remain subject to control by the Secretary of the Interior under the rulings laid down in Parker v. Richards and United States v. Hinkle, supra.

                                                                                                                                                  JOHN H. EDWARDS,

Solicitor.
Approved: January 23, 1925.
F. M. GOODWIN, Assistant Secretary.

FLATHEAD--ENROLLMENT

M-14233                                                                                                                          April 24, 1925.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in the matter of the enrollment of Harry Leon Beauchaine with the Flathead Tribe of Indians, Montana.

    By section 28 of the act of May 25, 1918 (40 Stat. 561, 591-2) the Secretary of the Interior was authorized:

    "To withdraw from the United States Treasury and segregate the common, or community funds of any Indian tribe which are, or may hereafter be, held in trust by the United States, and which are susceptible of segregation, so as to credit an equal share to each and every recognized member of the tribe except those whose pro rata shares have already been withdrawn under existing law, *     *     * Provided, however, That the funds of any tribe shall not be segregated until the final rolls of said tribe are complete."
    It is provided in the act of June 30, 1919, (41 Stat. 3, 9) as follows:
    That the Secretary of the Interior is hereby authorized wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian blood, when approved by the said Secretary are hereby declared to constitute the legal membership of the restrictive tribes for the purpose of segregating the tribal funds as provided in section 28 of the Indian Appropriation Act approved May 25, 1918 (Fortieth Statutes at Large, pages 591 and 592), and shall be conclusive both as to ages and quantum of Indian blood."
    Under the foregoing legislation and the for the purpose contemplated therein a "final" roll of the Flathead Indians was prepared, and it was approved January 22, 1920. After this approval the Superintendent reported to the Indian Office that several children apparently entitled to enrollment had, for various reasons, been omitted from the roll. That office referred the matter to the Department, which stated, among other things: "It was undoubtedly intended by the act of June 30, 1919, and the by approval of January 22, 1920, that the membership roll of the tribe should be a final roll in fact as well as in name. It is also clear that by subsequently permitting additions to the roll its finality would not only be disturbed but also the pro rata distribution of the tribal funds."

    The Department subsequently recommended legislation by Congress in the premises, resulting in the passage of the act of May 31, 1924 (43 Stat. 246), which provide for the addition of the names of certain persons to the final roll of the Flathead Indians as follows:

    "That the Secretary of the Interior be, and he is hereby authorized to add to the final roll of the Indians of the (Jocke) Flathead Indian Reservation, Montana, approved January 22, 1920 under the Act of May 25, 1918 (Fortieth Statutes, page 591), and the Act of June 30, 1919 (Forty-first Statutes, page 9), the names of the following persons, descendants of the Confederated Flathead Tribes of Indians: *     *     * Harry Leon Beauchaine *     *     *."

    "The Secretary of the Interior is also authorized to pay to each of the persons named a sum equal to that heretofore paid per capita to those whose names were on the approved roll, such payments to be made from any tribal funds in the Treasury to the credit of the Flathead Indians."

    In view of this act the name of Harry Leon Beauchaine was placed on the final roll of the tribe, it appearing from the records of the Indian Office at the time that he was entitled to enrollment. Not only was he enrolled for a per capita payment from the tribal funds but he was also allotted a tract of land on the Flathead Reserva-
 


 

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tion under the act of February 25, 1920 (41 Stat. 452), and both trust and restricted fee patents were issued covering his allotment. He was enrolled as the son of Joseph Beauchaine and his wife, Lillian, the former being enrolled and allotted on the Flathead Reservation and the latter on the Coeur d'Alene Reservation, Idaho.

    It now appears that Harry Leon Beauchaine is not entitled to any rights whatever on the Flathead Reservation. He is not the son of Joseph Beauchaine, but of one Roy Kirkpatrick, a white man and the former husband of Lillian Beauchaine. He was already enrolled at the Coeur d'Alene Reservation as John Kirkpatrick and was so enrolled by his mother. However, upon his enrollment and allotment on the Flathead Reservation, instructions were issued by the Indian Office to the Superintendent to drop his name from the Coeur d'Alene rolls.

    The act of May 31, 1924, specifies the persons whose names were to be added to the roll in question as "descendants of the Confederated Flathead Tribes of Indians". The mother of Harry Leon Beauchaine is enrolled on the Coeur d'Alene Reservation and is said to be of Spokane stock. Joseph Beauchaine, enrolled at Flathead, is not the father of Harry, as originally reported; consequently, the latter is not of the blood of either of the tribes on the Flathead Reservation.

    The specific question presented for opinion is as to whether, in view of the provisions of the act of May 31, 1924, "the name of Harry Leon Beauchaine may be withheld from the Flathead final roll and payment of his claim for per capita tribal shares denied; or whether the act last mentioned should be considered mandatory, directing the enrollment of all persons named therein".

    The last question need only be answered in connection with the matter of withholding per capita payments, as it is academic rather than practical in so far as enrollment is concerned. Whether it was mandatory upon the Department to enroll Beauchaine is not now to be decided, because, mandatory or permissive, whatever the act may be, the fact is that he was actually enrolled. He has been placed upon the final roll and there can be no question that there was due authority of law to place him there. But as to withholding his share of tribal payments a different question is presented because the payment not having been made it is a matter still within the control of the Department unless the act of May 31, 1924, authorizing such payment is mandatory.

    In the case of Martin Wolfe (49 L.D. 625), the Department had under consideration legislation which "authorized" the Secretary to do certain things and in which it was said: "In its ordinary meaning 'authorized' is permissive in character, not imperative, and has only been held to be mandatory in the construction of public statutes when a certain condition exists". In that connection the following was quoted from Lewis Sutherland Statutory Construction, construing "permissive" words of almost identical meaning with "authority":

    "But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, some thing in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called on to do so."
    So that while the name of Harry Leon Beauchaine was in fact placed upon the final roll of the Flathead Tribe, it is obvious that if the actual facts had been known at the time, this would not have been done. In view of the situation, there can be no question as to the power of the Secretary to withhold payments to him of the per capita shares of the tribal funds, and under the circumstances it becomes his duty to do so.

    As hereinbefore stated, Harry Leon Beauchaine was not only enrolled for per capita payments but was also given an allotment of land on which trust and restricted fee patents were issued. It will be necessary to ask authority of Congress to cancel these patents. Under the act of April 23, 1904 (33 Stat. 297) the Secretary is authorized to cancel trust patents in specified instances but not in a case of this kind. He may, however, under the provisions of that act, apply to Congress for authority to cancel the trust patent in question. By the act of March 3, 1925 (Public No. 349), the Secretary is authorized to cancel restricted fee patents covering allotted lands of the Winnebago Indian Reservation in Nebraska. In view of this legislation authority may very properly be asked of Congress to cancel the restricted fee patent issued in the present case. As authority must be obtained to cancel these patents, Congress may very well be requested at the same time for authority to strike the name of Harry Leon Beauchaine from the final roll of the Indians of the Flathead Reservation.

                                                                                                                                            EDWARD WRIGHT,

Acting Solicitor.
Approved: April 24, 1925.
JOHN H. EDWARDS, Assistant Secretary.
 


 

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MAY 12, 1925

EXTENT OF INDIAN WATER
RIGHTS

M-15849                                                                                                                           May 12, 1925.

The Honorable,
The Secretary of the Interior.

My DEAR MR. SECRETARY:

    The question submitted for my opinion thereon, at the instance of the Commissioner of Indian Affairs, is as to the extent to which the right to use the waters of certain creeks should be asserted for the benefit of the Blackfeet Indians.

    It appears that, independent of the State laws, these Indians collectively hold the dominant right to the use of so much of the waters of these creeks as would be reasonably necessary to the irrigation of the arid area of their lands, and that all the waters thereof not so needed are subject to appropriation by other persons under the laws of Montana. Appropriation of these waters is now being claimed by the Toole County and the Cut Bank irrigation districts.

    For the purpose of effecting an amicable adjustment of the adverse claims thus arising, Congress passed the act of February 26, 1923 (42 Stat. 1289), which authorized the Secretary of the Interior to enter into an agreement with the districts "to fix the extent of the prior right of the Indians residing, and entitled to reside on the Blackfeet Indian Reservation, collectively, to the waters" mentioned.

    The extent to which the Indians are entitled to this water, is, of course, to be controlled by the character and area of those parts of their lands on which it could be beneficially used for irrigation, and after the making and completion of the necessary investigations and estimates it was reported that that area, including scattered tracts, embraced 119,550 acres and would require an annual diversion of 284,300 acre-feet.

    After a report of these estimates had received departmental approval, representatives of one of the districts mentioned questioned its correctness on the ground that the  duty of water is placed too high, and for the further reason that the Indians are not now capable of profitably irrigating certain lands which embrace 40,000 acres, because of the character of the lands.

    It was stated in the Indian Office letter requesting my opinion that:

    "The question, therefore, is whether or not the Act of February 26, 1923, permits of a construction of the nature contended for by the Toole County representatives, which is to the effect that only those lands should be included in the irrigable area which the Indians may irrigate or whether or not there should be included, as has been contended by this Bureau, all the lands actually susceptible of irrigation. The Toole County representatives take the position that this 40,000 acres may be feasible of irrigation by a white man but that the Indians are not educated to the point where they will irrigate same. The position assumed by the Bureau is that the Act contemplated the fixing for all times the ultimate irrigation needs of the Indians".
    I fail to find anything in the statute mentioned which furnishes an answer to the question submitted. While that act recognizes the prior right of the Indians, it makes no reference whatever to the extent of that right. The prior right of these Indians to the use of this water was not conferred but merely recognized by that act. That right had its origin in the treaty ratified by the act of May 1, 1888 (25 Stat. 113), under which the Blackfeet Indians and Indians on other similar reservations acquired the right to lands themselves. The lands now held by the Indians under that treaty were formerly a part of a very much larger area which they had the right to occupy, an area far in excess of their needs, which was reduced by the treaty mentioned. The act ratifying the treaty provided for the allotment of lands in the reduced area in severalty to individual Indians in order to help them, as they declared in the treaty, "to obtain the means to enable them to become self-supporting as a pastoral and agricultural people, and to educate their children in the paths of civilization".

    The courts have twice interpreted that act of 1888 and the treaty in so far as they concern the rights of the Indians to the use of water, once in Mintern v. United States (207 U.S. 564), and again in Conrad Investment Company v. United States (161 Fed. 829). In each of these cases it was held that inasmuch as the treaty was entered into before the admission of the Territory of Montana into the Union, Congress had the power to reserve, and did reserve the waters in this and a similar reservation for the use of the Indians for irrigation purposes, and thus exempted such waters from the operation of the State laws later enacted to control the appropriation of waters.

    In the Conrad case the court made a declaration which is helpful in the present consideration when it said:

    "What amount of water will be required for these purposes may not be determined with absolute accuracy at this time; but the policy of
 

 

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the government to reserve whatever water of Birch creek may be reasonably necessary, not only for present uses, but for future requirements, is clearly within the terms of the treaties as construed by the Supreme Court in the Winters Case."

    It was natural and entirely reasonable that the court should hold that the prospective needs of the Indians as well as their present needs should control in determining the amount of water to which the Indians were entitled. Congress recognizes the fact that the needs for water by those untutored aborigines who were then inclined and desired to change themselves into "a pastoral and agricultural people" would grow larger as time went on and they developed and took on greater ability as agriculturalists; and it will not do now to say that they are not entitled to water for the irrigation of the 40,000 acres referred to because they have not yet reached the point in their development where they can use that water as profitably as a white man could use it.

    If the amount of water to be allowed to these Indians now could be hereafter increased from time to time as their ability to use it grew larger, there might be force in the contention that the 40,000 acres should be left out of the present consideration, but both their present and their prospective needs must be protected by the agreement, because it is evident that Congress intended that the agreement should be a final determination of the entire rights of the Indians and that therefore there could
be no future adjustments notwithstanding the fact that changed conditions may hereafter call loudly for the use of additional water by the Indians.

    In conclusion I am constrained to inform you that in my opinion the amount of water set apart for the Indians should be such as would reasonably enable them either now or hereafter to reclaim and successfully to cultivate the entire irrigable area of their lands.

                                                                                                                                        C. EDWARD WRIGHT,

Acting Solicitor.
Approved: May 12, 1925.
JOHN H. EDWARDS, Assistant Secretary.

DISPOSITION OF ALLOTMENT
FUNDS--OSAGE

M-17687                                                                                                                      December 19, 1925.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs my opinion has been requested as to the disposition to be made of some $4,970.95, the property of Mrs. Blanche Stroud, Osage allottee No. 1394, under circumstances arising as follows:

    Pursuant to the Osage allotment act of June 28, 1906 (34 Stat. 389), the land and moneys belonging to this tribe were divided equally among the tribal members according to a final roll of the tribe prepared in accordance with the terms of that act. Such final roll contains the names of some 2,229 members, each of whom received in allotment 160 acres of land designated as a "homestead" and approximately 400 acres commonly referred to as "surplus." Varying restrictions as to alienation, taxation, etc., were imposed against each class of land in the hands of these allottees, but under section 3 of the act, the oil, gas, coal, and other minerals under the lands so allotted did not pass to the individual allottees, but were to remain the common property of the tribe for a period of 25 years from April 8, 1906, subject to lease in the meantime by the tribal council for the benefit of the tribe at large under such rules and regulations as the Secretary of the Interior might prescribe. This period of communal ownership of the underlying mineral deposits has since been extended to April 7, 1946, but nothing material here turns on that. The rents and royalties derived from tribal leases covering these mineral deposits, together with the funds from certain other sources, were directed to be distributed per capita, in quarterly installments to the enrolled members of this tribe (section 4) and by a provision in section 2, subsection 7, the Secretary of the Interior was authorized to issue to the members of this tribe found to be capable of managing their own affairs, a "certificate of competency", whereupon all restrictions as to alienation, taxation, etc., of the lands allotted to such members, except the homestead, were removed. Pursuant to the authority just mentioned on January 17, 1910, a certificate of competency was duly issued to Mrs. Stroud. She being of but one-eighth Indian blood, such restrictions as may have remained even against her homestead lands were removed by section 3 of the act of March 3, 1921 (41 Stat. 1249).

    The income flowing to the Osage Tribe from royalties on oil and gas deposits underlying that reservation increased to such an extent that for a number of years last past the net income accruing to each member of the tribe has averaged around $10,000 per annum. In this connection it is to be remembered that prior to distribution the income from such sources is tribal rather than individual, That is, a member on whose allotted lands no oil and gas wells are located receives exactly the same share as the member on whose lands the most pro-
 


 

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OPINIONS OF THE SOLICITOR

DECEMBER 19, 1925

ductive wells may be located. Under the earlier legislation referred to, this income was distributable in quarterly installments to enrolled members of the tribe, the shares due minors being paid to their parents with certain exceptions not here material: Work v. Mosier (261 U.S. 352). This led to such gross extravagance that Congress decided to make a change and by the act of March 3, 1921, supra, directed:

    Sec. 4. That from and after the passage of this Act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly. *     *     *
    Of like import, in so far as competent members of this tribe are concerned, is the opening sentence of section 1 of the act of February 27, 1925 (43 Stat. 1008), which reads:
    That the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe of Indians in Oklahoma having a certificate of competency, his or her pro rata share, either as a member of the tribe or heir or devisee of a deceased member, of the interest on trust funds, the bonus received from the sale of oil or gas leases, the royalties therefrom, and any other moneys due such Indian received during each fiscal quarter, including all moneys received prior to the passage of this Act and remaining unpaid.
    In both instances, it will be observed the legislative direction with respect to competent members of this tribe is clear and unambiguous; to wit, the Secretary "shall cause to be paid." In the absence of some controlling reason to the contrary therefor, nothing would remain for administrative officers of the Government to do but perform the purely ministerial duty directed by the statute: i.e. to pay or "cause to be paid:" Work v. Lynn (266 U.S. 162). In other words, the matter is not one calling for the exercise of administrative discretion. Under date of January 9, 1925, however, the Collector of Internal Revenue for the first district of Texas, within which district Mrs. Stroud for a member of years past has resided, caused to be served on the Superintendent of the Osage Agency, at Pawhuska, Oklahoma, through whose hands disbursements to members of the Osage tribe are made, a "notice of levy on bank deposits." This was accompanied by a "notice of tax lien under Internal Revenue laws," covering certain income taxes alleged to be due from Mrs. Stroud for the years 1920 and 1921, such notices having been filed pursuant to section 3186 of the Revised Statutes as amended by the act of March 4, 1913 (37 Stat. 1016) , which reads:
    If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount shall be alien in favor of the United States from the time when the assessment list was received by the collector, except when otherwise provided, until paid, with the interest, penalties, and costs that may accrue in addition thereto upon all property and rights to property belonging to such person: Provided, however, That such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice of such lien shall be filed by the collector in the office of the clerk of the district court of the district within which the property subject to such lien is situated: Provided, further, Whenever any State by appropriate legislation authorizes the filing of such notice in the office of the registrar or recorder of deeds of the counties of that State, or in the State of Louisiana in the parishes thereof, then such lien shall not be valid in that State as against any mortgagee, purchaser, or judgment creditor, until such notice shall be filed in the office of the registrar or recorder of deeds of the county or counties, or parish or parishes in the State of Louisiana, within which the property subject to the lien is situated.
    Copies of notice of such lien appear to have been filed also with the clerk of the Federal Court for the western district of Oklahoma and the clerk of the County Court of Boxer County, Texas, as required by the statute. On bringing this matter to the attention of the Commissioner of Indian Affairs, the Superintendent at Osage was directed to withhold from Mrs. Stroud the sum herein first above mentioned and she is now here, by brief of her attorneys, demanding payment of the funds so withheld. Considerable controversy seems to exist between the taxpayer and the collector as to the taxes in dispute, Mrs. Stroud insisting that all tees due from her have been paid and that the sum now
 


 

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DECEMBER 19, 1925

demanded represents unpaid taxes assessed against her husband, Sam W. Stroud, a white man and a nonmember of the Osage Tribe. This seems to be borne out in large measure by a letter from the tax collector to the special disbursing agent at the Osage Agency under date of August 17, 1925, wherein it was said:

    In reply, you are advised that the tax liability for the years in question was assessed from an investigation of the operations of Mr. Stroud in connection with the promotion of certain stock in the Stroud Motor Company of San Antonio, Texas. It developed from this investigation that Mr. Stroud and his partner, Mr. Geo. McDowell had received large sums of money from the promotion and sale of this stock for which they had not accounted to this Bureau in their income tax return.

    As husband and wife are permitted to file community returns in Texas, both Mr. and Mrs. Stroud executed delinquent returns and acknowledged their liability. The returns in question showed a like amount of tax due by both husband and wife. There is still due by the husband Sam W. Stroud, the amount of $1812.95 plus 5 per cent $90.65 and interest at the rate of one per cent per month from December 16th, 1922. This item was not included in the claim filed with your Department. [Italics supplied.]

    Even in those States, however, where the law of community property prevails, the separate estate of the wife is not liable for the debts of her husband: C. J. 115-116. The courts of Texas have so held: Red River National Bank v. Ferguson (206 S.W. 923), Arnold v. Leonard (273 S.W. 799). Community property, of course, is understood to mean that property acquired after coverture by the joint efforts of a husband and wife. Under no construction of that term can it be said that the income flowing to Mrs. Stroud as an enrolled member of the Osage Tribe is community property belonging jointly to herself and husband.

    In view of the mandatory provisions of the acts of March 3, 1921, and February 27, 1925, supra, with respect to payments to competent members of the Osage Tribe, I am of the opinion that the funds here in question should be paid to Mrs. Stroud.

                                                                                                                                        JOHN P. MCDOWELL,

Acting Solicitor.
Approved: December 19, 1925.
JOHN H. EDWARDS, Assistant Secretary.

TAXATION--RESERVATION

M-17187                                                                                                                     January 20, 1926.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to whether the income of Tom Pavatea, an Indian of the Hopi Tribe, Arizona, and other Indians in a like situation, is subject to an income tax under our Internal Revenue laws.

    The amount in question, asserted to be due by the Internal Revenue Bureau, aggregates $367.50, being $294 in taxes for the years 1918, 1919 and 1920, and $73.50 in penalties assessed against this Indian for failure to file returns for the years mentioned and subsequent years.

    The Indians of the Hopi Reservation are unallotted tribal Indians in the fullest sense of that term. They occupy a reservation approximating 2,500,000 acres in Northern Arizona, set apart in 1882 for the use and benefit of these Indians in common. This reservation lies adjacent to and almost surrounded by the Navajo Reservation, also unallotted, containing in round numbers some 1,200,000 additional acres. The vast domain occupied by these Indians is largely arid, or at best semiarid, being valuable mainly for grazing purposes. Extensive areas therein are of but scant value even for that purpose. Essentially the Indians of these tribes are herdsmen rather than agriculturists, the conditions surrounding their habitat of necessity forcing them to be so. Dependent chiefly on sheep, goats and cattle for a means of livelihood, the Indians of these two tribes, exceeding some 30,000 in number, afford possibly the best remaining illustration of the old tribal Indian as yet but lightly touched by the hand of civilized man. Tom Pavatea is a full-blood, reported as "never having been away to school", residing at Polacca, in the heart of the Hopi Reservation; uneducated, unable to read or write, and with such a scant knowledge of the English language as to be almost unable to speak it intelligently. In addition to some interests in sheep and cattle raised on the reservation he conducts a small trading post among his fellow tribesmen at Polacca. His income, here sought to be taxed, is derived mainly from these sources, augmented in part by a stage line conducting tourists over the Hopi Reservation and the adjacent Navajo country. He keeps no books or records of his financial transactions; in fact, personally he is unable so to do.

    From the inception of sovereignty by this country the Indians have ever been treated as wards of
 


 

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the Nation, entitled to its protection and support, dependent upon it, during earlier times at least, for their daily food, and wholly dependent on the legislative powers of Congress for their political and civil rights. Cherokee Nation v. Georgia (5 Pet. 1); United States v. Kagama (118 U.S. 383); United States v. Rickert (188 U.S. 437); United States v. Sandoval (231 U.S. 45). According to a similar rule legislation affecting the Indians is to be construed in their favor (215 U.S. 279), and an intention to make a radical departure is not lightly to be inferred (241 U.S. 599). It has even been held that legislation of a general nature or of prima facie general application does not extend to the Indians in the absence of some clear intent to include them; 109 U.S. 571; 112 U.S. 99-100; 241 U.S. 605, 606. "The Indian has always been the object of special legislation. Never has it been the practice to legislate for him generally along with the rest of the people": (34 Op. Atty. Gen. 444). In Choate

v. Trapp (224 U.S. 665-675), the Supreme Court said:

    * * * In the Government's dealings with the Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years and has been applied in tax cases.
    Even as to income taxpayers other than Indians the same court has also held that doubts must be resolved in favor of the taxpayer rather than in favor of the Government: Gould v. Gould (245 U.S. 151); United States v. Merriam (263 U.S.
1'79). From the former case we read (p. 153):
    In the interpretation of statutes levying taxes it is the established practice not to extend the provisions by implication beyond clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out.
    When we come to examine our Internal Revenue acts of September 8, 1916 (39 Stat. 756); February 24, 1919 (40 Stat. 1057); November 3, 1921 (42 Stat. 227), and June 2, 1924 (43 Stat. 253), they are wholly silent as to the Indians or the income derived by the Indians from restricted or governmentally controlled sources. The hearings on these bills disclose no reference to the Indians or any understanding that in framing these statutes Congress had in mind the imposition of a tax on these dependent wards of the Nation.

    The Attorney General has had occasion recently to consider the applicability or rather the non applicability of our Internal Revenue laws to the Indians (34 Op. Atty. Gen. 275; id. 303; id. 439); also an opinion dated November 11, 1925, relating to the Kaw Indians in Oklahoma, not yet reported. In each of these it was held that the statutes mentioned do not apply to the incomes flowing to restricted Indian allottees from their restricted property or from sources controlled for their benefit by the Government. It was also held (34 Op. Atty. Gen. 303, 306), that an Indian's claim for refund for such taxes erroneously paid or collected is not barred by the statutes of limitation or lapse of time within which such claims are required by law to be filed. The situation here is possibly best summed up in the Attorney General's opinion of March 20, 1925, wherein, after citing the Internal Revenue acts referred to, it was said (p. 445):

    No specific reference, however, is made in these Acts to Indians and their property. We have seen that none of the treaties or statutes dealing with the Quapaw Indians contains any provisions subjecting their lands to State or Federal taxation. On the contrary by the Quapaw Allotment Act Congress, instead of providing a way to compel the Indians to contribute out of their property to the support of the Federal Government, immediately concerned itself with a provision of law securing to them the continued possession and enjoyment of their lands by making the same inalienable. In order to make this restriction against alienation properly effective, it would seem that inalienability and nontaxability should go hand in hand, at least until Congress clearly provides otherwise. At any rate, I am unable, by implication, to impute to Congress under the broad language of our Internal Revenue Acts an intent to impose a tax for the benefit of the Federal Government on income derived from the restricted property of these wards of the nation; property the management and control of which rests largely in the hands of officers of the Government charged by law with the responsibility and duty of protecting the interests and welfare of these dependent people. In other words, it is not lightly to be assumed that Congress intended to tax the ward for the benefit of the guardian.
    We are here dealing with unallotted tribal In-
 


 

148

DEPARTMENT OF THE INTERIOR

JANUARY 20, 1926

dians residing on a large "reservation" set apart for their use, the legal title to which rests not in the Indians, either individually or as a tribe, but in the United States. Appropriations by Congress have annually been used for many years past for the protection, welfare and betterment of these and other dependent Indians similarly situated. Appropriations by Congress have also been used annually for the education, civilization and support of these Indians; all looking to their civic advancement.

    The income here in question accruing to Tom Pavatea was derived from sources almost entirely, if not exclusively, within the reservation set apart for the use of the tribe of which he is a member, and for the reasons herein given I am of the opinion that such income is not taxable under existing Internal Revenue law.

                                                                                                                                        JOHN P. MCDOWELL,

Acting Solicitor.

Approved: January 20, 1926.
JOHN H. EDWARDS, Assistant Secretary.

TITLE TO LANDS

M-18604                                                                                                                      March 6, 1926.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to the extent or character of title acquired by the Indians in lands withdrawn for their benefit by Executive Order.

    The Solicitor for this Department had occasion to deal somewhat extensively with this matter in connection with the applicability of the public-land leasing act of February 25, 1920 (41 Stat. 437), to lands within Indian reservations created by Executive order, and in an opinion dated February 12, 1924, it was held that the title to such lands rests in the United States. It was further therein pointed out, however, that with but few exceptions this was equally true with respect to unallotted lands in Indian reservations created by treaty or by act of Congress. That is, as to all three classes of lands, or the lands within all three classes of reservations,-treaty, act of Congress, or Executive order,-the legal title is in exactly the same place, to wit, the United States. It was there held that the public-land leasing act did not apply to lands within Indian reservations created by Executive order and on submitting the matter to the Attorney General those views were upheld in an opinion by that officer dated May 27, 1924 (34 Op. Atty. Gen. 181). The conclusions so reached are amply fortified by a long line of court decisions, including the Supreme Court of the United States. From an early date the latter court laid down the rule that under the doctrine of "discovery" the fee to the lands in this country, in the absence of an express grant from the sovereign, was not in its aborigines and that the only right or title existing in them was that of use and occupancy. This doctrine was ably expounded by Chief Justice Marshall of the Supreme Court in Johnson v. McIntosh (8 Wheat. 543), and was again reiterated by the same court in Beecher v. Wetherby (95 U.S. 517), wherein the court said (pp. 525-6):

    But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government.
    In both of the decisions referred to it was further stated:
"the right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant."
    During earlier times, at least, Congress accorded to the Chief Executive a broad discretion about setting apart lands from our public domain for various national purposes, including the protection of the Indians (228 U.S. 243), and the power so resting in the President was never seriously questioned or curtailed until June 30, 1919, when Congress by act of that date (41 Stat. 3-34), provided:
 


 

149

OPINIONS OF THE SOLICITOR

MARCH 6, 1926

    That hereafter no public land of the United States shall be withdrawn by Executive Order, proclamation, or otherwise, for or as an Indian reservation except by act of Congress.

    That the title to lands within Indian reservations created by Executive order rests on substantially the same basis as lands within reservations created by treaty or by act of Congress is amply illustrated by that holding of the Supreme Court in Spaulding v. Chandler (160 U.S. 394-402), wherein it was said:
    It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.
    Even as to Indian treaty reservations, however, the same court in Leone Wolf v. Hitchcock (187 U.S. 553-565), held that the plenary power of Congress over tribal Indian property is such that the provisions of an existing treaty with the Indians could be abrogated without their consent, but that presumably such action would not be had without full considerations of justice, humanity and public policy. It will be seen therefore that it is largely a question of policy for Congress to determine and this gave rise to that further ruling by the same court in Blackfeather v. United States (190 U.S. 368), wherein it was held that the moral obligations of the government towards the Indians are for Congress alone to recognize and that the courts can exercise only such jurisdiction over the subject matter as Congress has or from time to time may see fit to confer upon them.

    Manifestly, from the foregoing, the extent or character of the Indian title in lands withdrawn for their benefit by Executive order is not easily defined with particularity. Admittedly, the legal title to such lands is in the United States. A reservation so created is not in the nature of a private grant, but is rather a setting apart of designated lands for a manifest public purpose, subject to such further grant or recognition of title as Congress from time to time may see fit to accord.

    While this disposes of the strictly legal aspects of the situation generally, yet I am reluctant to dismiss it without inviting attention to the further fact that Executive orders withdrawing lands for Indian purposes are by no means uniform. For instance:

                                                                                                                                        THE WHITE HOUSE,

October 20, 1910.
It is hereby ordered that the following-described lands in the State of Arizona, viz., all of sections 1 and 12 in township 1 north, range 4 east of the Gila and Salt River meridian be, and the same are hereby, withdrawn from settlement, entry, and sale, and set apart as an addition to the Salt River Indian Reservation. Provided, That nothing herein shall affect any existing valid rights of any person to the lands described.
                                                                                                                                        THE WHITE HOUSE,
March 22, 1911.
    It is hereby ordered that Executive order of June 14, 1879, creating a reservation for use of the "Pima and Maricopa Indians," be, and the same is hereby, amended so as to make said reservation available for use of the Pima and Maricopa Indians, and such other Indians as the Secretary of the Interior may see fit to settle thereon.
                                                                                                                                        THE WHITE HOUSE,
November 14, 1901.
    It is hereby ordered that the following-described tract of country in Arizona, viz., commencing at a point where the south line of the Navajo Indian Reservation (addition of January 8, 1900) intersects the Little Colorado River; thence due south to the fifth standard parallel north; thence east on said standard to the middle of the south line of township 21 north, range 15 east; thence north on the line bisecting townships 21, 22, 23, 24, said range 15 east, to the south line of the Moqui Reservation; thence due west to the place of beginning, be, and the same is hereby, withdrawn from sale and settlement until such time as the Indians residing thereon shall have been settled permanently under the provisions of the homestead laws or the general allotment act approved February 8, 1887 (24 Stats., 388), and the act amendatory thereof, approved February 28, 1891 (26 Stats., 794).
    Omitting a description of the lands involved, which is quite lengthy, Executive Order of February 1, 1917, reads:
 


 

150

DEPARTMENT OF THE INTERIOR

MARCH 6, 1926

    Executive orders dated June 16, 1911, December 5, 1912, and January 14, 1916, withdrawing certain lands in Arizona for the benefit of the Papago Indians, be, and the same hereby are, revoked, and, exclusive of a tribal right to the minerals therein contained, all surveyed land and all unsurveyed land which, by protraction of the regular system of public-land surveys from the township corner at the intersection of the Gila and Salt River meridian with the third standard parallel south, would fall within the townships and ranges listed below, be, and the same hereby are, withdrawn and set apart as a reservation for the benefit of the Papago Indians in Arizona.

            *                                *                                *                                *                                *

    The foregoing reservation is hereby created with the understanding that all mineral lands within the reservation which have been or which may be shown to be such and subject to exploration, location, and entry under the existing mining laws of the United States and the rules and regulations of the Secretary of the Interior applying thereto, shall continue to be subject to such exploration, location, and en try notwithstanding the creation of this reservation; and town sites necessary in connection with the development of the mineral resources of the reservation may be located within the reservation under such rules and regulations as the Secretary of the Interior may prescribe, and patented under the provisions of the town-site laws of the United States: Provided, That nothing herein contained shall affect any existing legal right of any person to any of the lands herein described.

    These but illustrate the fact that as to particular reservations, or a particular tribe or band of Indians, relevant facts and circumstances surrounding the creation of the reservation should not be disregarded in determining the character or extent of the Indian title. It may also be mentioned that by Executive Orders of November 9, 1907, and January 28, 1908, some 3,000,000 acres in Arizona and New Mexico were added to the Navajo Reservation. Out of this area some 328,000 acres were allotted in severalty to 2,064 members of the Navajo Tribe; authority for this latter action being found in section 1 of the general allotment act of February 8, 1887 (24 Stat. 388), as amended. The surplus or unallotted lands within this addition to the Navajo Reservation, approximating 2,600,000 acres, have since been restored to the public domain as required by section 25 of the act of May 29, 1908 (35 Stat. 444-457). Needless to add, the unallotted lands were so restored to the public domain with out compensation to the Indians. This alone amply illustrates the power of Congress over the subject matter.

                                                                                                                                                      E. O. PATTERSON,

Solicitor.

Approved: March 6, 1926.
JOHN H. EDWARDS, Assistant Secretary.

OSAGE--CERTIFICATE
OF COMPETENCY

M-18423                                                                                                                                   March 16, 1926.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested with respect to a question arising under section 4 of the act of February 27, 1925 (43 Stat. 1008) , reading as follows:

    Whenever the Secretary of the Interior shall find that any member of the Osage Tribe of more than one-half Indian blood, to whom has been granted a certificate of competency, is squandering or misusing his or her funds, he may revoke such certificate of competency after notice and hearing in accordance with such rules and regulations as he may prescribe, and thereafter the income of such member shall be subject to supervision and investment as herein provided for members not having certificates of competency to the same extent as if a certificate of competency had never been granted: Provided, That all just indebtedness of such member existing at the time his certificate of competency is revoked shall be paid by the Secretary of the Interior, or his authorized representative, out of the income of such member, in addition to the quarterly income hereinbefore provided for: And provided further, That such revocation or cancellation of any certificate of competency shall not affect the legality of any transactions theretofore made by reason of the issuance of any certificate of competency.
    The certificate of competency referred to is that instrument authorized to be issued by the Secretary of the Interior pursuant to section 2 of the act of June 28, 1906 (34 Stat. 339), to any member of

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