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151

OPINIONS OF THE SOLICITOR

MARCH 16, 1926

the Osage Tribe found to be capable of managing his own-affairs. By means of these certificates, in competent members are placed in the class known as competents. Their affairs are no longer under the supervision of the Department and they become subject to the jurisdiction of the local courts by whom they may be adjudged incompetent and guardians appointed for them. Where such a situation obtains I am asked for an opinion as to whether the Secretary of the Interior may within the meaning of the statute find that the Indian is squandering or misusing his funds.

    Without tracing the legislative history of the Osages in detail, it is sufficient for present purposes to say that they have communal ownership in the mineral deposits underlying their reservation. The rents and royalties derived from tribal leases covering these mineral deposits together with the funds from certain other sources are distributed per capita in quarterly installments to the enrolled members of the tribe in accordance with the directions of, and subject to certain limitations laid down by Congress. See Section 4 of the act of March 3, 1921 (41 Stat. 1249-1250); and section 1 of the act of February 27, 1925, supra.Both of these acts direct the Secretary of the Interior in mandatory language to pay or cause to be paid to members having certificates of competency their full pro rata shares which for a number of years has averaged approximately $10,000 per annum. Experience having shown that some of these Indians to whom certificates of competency had issued were inclined to fall into habits of gross extravagance and waste with the result that their funds were rapidly being dissipated, Congress with a view to protecting them from their own improvidence enacted the provision of law under consideration providing for the revocation in the cases mentioned of the certificate of competency and the payment thereafter, under supervision, of the income directed to be paid to members not having certificates of competency $1,000 quarterly-the remainder to be invested in the manner elsewhere provided for in the act.

    So far as the matter here involved is concerned, the language of the statute is without ambiguity. It vests in the Secretary the power to revoke a certificate of competency, but restricts the exercise of that power to any member of more than one-half Indian blood that he finds is squandering or misusing his funds. The terms of the statute do not limit the finding of the Secretary to members not under guardianship and, considering the mandatory direction in section 1 that the Secretary "shall cause to be paid" to each adult member having a certificate of competency his pro rata share of the tribal income, it seems clear that Congress did not intend that the power of the Secretary to revoke the certificate of competency should be curtailed by the appointment of a guardian by the local court.

    The Comptroller General of the United States had occasion recently to consider the effect of the appointment of a guardian upon the right of an adult Osage Indian having a certificate of competency to receive his full income, and in a decision rendered March 2, 1926 (not reported) said:

    It appears to be beyond question, therefore, that the purpose and effect of the law is that the possession of a certificate of competency by an adult Indian is the determining factor in the distribution of pro rata income and entitles such Indian to his full pro rata share irrespective of the fact that a guardian might have been appointed by the court.
    If the Indian receives his full share of the income and squanders or misuses it, manifestly the fact that the local court has appointed a guardian for him does not preclude the Secretary from finding that he is wasting or misusing his funds.

    Presented with the record is a statement signed by attorneys representing Alex Cannon, Certificate of Competency Allottee No. 109, wherein the contention is made that as an Indian under guardianship does not have control over his funds, he could not waste or misuse them and, therefore, a specific finding that he is so wasting or misusing his funds is not possible. This contention presupposes payment of the income to the guardian rather than to the Indian direct. However, the question which the Secretary has to determine before exercising the power of revocation is wholly one of fact, and a mere showing that the Indian has a guardian to whom his income is paid, while competent for the Secretary to consider in the determination of such question of fact, is not by any means so conclusive as to justify the legal presumption that it is not possible for a specific finding to be made of the squandering or misuse of funds by the Indian.

    I conclude, therefore, that the Secretary of the Interior may, upon a proper showing, find that an adult Osage Indian of more than one-half blood, having a certificate of competency and for whom a guardian has been appointed, is squandering or misusing his funds, whether such funds are paid to the guardian or direct to the Indian.

                                                                                                                                                     E. O. PATTERSON,

Solicitor.
Approved: March 16, 1926.

JOHN H. EDWARDS, Assistant Secretary.
 


 

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DEPARTMENT OF THE INTERIOR

JUNE 2, 1926

CERTIFICATE OF COMPETENCY
OSAGE

M-19190                                                                                                                                  June 2, 1926.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In connection with the issuance of certificates of competency to members of the Osage Indian Tribe, Oklahoma, you have requested my opinion on the question whether members of this tribe of less than one-half Indian blood automatically become entitled to such a certificate on reaching the age of 21 years.

    As will presently appear, the question presented turns largely on certain provisions in the act of June 28, 1906 (34 Stat. 539), known as the Osage allotment act, and the amendatory act of March 3, 1921 (41 Stat. 1249). The statute first referred to provided for the making of a final roll showing the membership of the Osage tribe and an equal division of the tribal property, lands and money, among the tribal membership as shown on that roll. Each enrolled member received in allotment approximately 660 shares of land and about $3,900 as his or her share of the tribal funds then on hand. The oil, gas, coal and other mineral deposits under lying the Osage reservation however, did not pass to the individual allottees at the time of allotment, but under the terms of this act were to remain the common property of the tribe until April 8, 1931, subject to lease in the meantime by the tribal council for the benefit of the tribe at large, under appropriate regulations to be prescribed by the Secretary of the Interior. Out of the land so allotted, each member was required to designate 160 acres as a homestead, the remainder of the lands assigned to each individual being commonly referred to as surplus. Both classes of land were to remain inalienable for a period of 25 years, unless restrictions against the surplus lands were removed, in accordance with the provisions of section 2 of that act, subsection 7, which provides:

    "That the Secretary of the Interior, in his discretion, at the request and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain in alienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee, if upon investigation, consideration and examination of the request he shall find any such member fully competent and capable of transacting his or her own business and caring for his or her own individual affairs: Provided, That upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States: Provided, That the surplus lands shall be nontaxable for the period of three years from the approval of this act, except where certificates of competency are issued or in case of the death of the allottee. unless otherwise provided by Congress: And provided further, That nothing herein shall authorize the sale of the oil, gas, coal, or other minerals covered by said lands, said minerals being reserved to the use of the tribe for a period of twenty-five years, and the royalty to be paid to said tribe as hereinafter provided: And provided further, That the oil, gas, coal, and other minerals upon said allotted lands shall become the property of the individual owner of said land at the expiration of said twenty five years, unless otherwise provided for by act of Congress."
    It is elsewhere provided in the same statute that the word minor or minors as therein used shall be construed to mean those members of the tribe under the age of 21 years. Analyzing the legislation just reproduced it will first be observed that the granting of certificates of competency thereunder is discretionary in the Secretary of the Interior; that is, they can not be demanded as a matter of right, but where granted, several essential requirements must be at hand; viz. (a) the applicant must be an adult; (b) a request or petition from the applicant for such certificate must be at hand; (c) a finding by the Secretary of the Interior that the applicant is competent and fully capable of managing his or her affairs. The practical effect of the issuance of such a certificate is to remove the restrictions against alienation of all surplus lands, but not the homestead.

    With respect to the tribal moneys, section 4 of the act of 1906 directed that those funds then on hand, together with the receipts from certain other sources, including the sale of Osage lands in Kansas, should be held in trust by the United States for 25 years from January 1, 1907, but were to be segregated as shortly after that date as possible by placing to the credit of each individual member his or her pro rata share. The interest on the trust funds
 


 

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so segregated was to be paid quarterly to the individual members, competent or incompetent, the interest on shares due minors to be paid to their parents save in certain instances not here material. Under the second paragraph of said section 4, the royalties received from oil, gas, coal and other leases of the reserved mineral deposits, together with the funds from the sale of town lots and other reservation lands in Oklahoma were to be deposited in the Treasury of the United States, but instead of being retained as a trust fund were to be paid to enrolled members of the tribe in the same manner and at the same time as the interest on the trust funds were paid; that is quarterly, on a per capita basis. This gave rise to the quarterly distribution of moneys to the Osages, which prior to the year 1916 rarely if ever exceeded $1,000 per quarter per member. This was not regarded as excessive. But beginning with the year last mentioned, or thereabouts, due to increased activities in this oil field and the high prices prevailing during the war, the income accruing to each member of the Osage tribe rapidly increased until it averaged around $10,000 per annum or better. There being no authority to withhold this income even from the incompetent members of the tribe except, as noted, in instances not here material (261 U.S. 352), this led to such gross extravagances on the part of these Indians that Congress finally decided to take a hand in the matter. Accordingly, by the act of March 3, 1921, supra, after continuing the period of communal ownership of the underlying mineral deposits until April 7, 1946, the Secretary of the Interior was directed (section 4) to pay to the adult members of this tribe, having certificates of competency their entire share either in their own right or as heirs of deceased members, of the interest on the segregated trust funds the bonus received from the sale of leases and the royalties received from the oil, gas and other mineral deposits. Adult members not having certificates of competency were to be paid only $1,000 per quarter, with an allowance of $500 per quarter in behalf of enrolled minor members, for their education and support, to be paid to their parents or legal guardians. The remainder of the shares due minors and adults not having certificates of competency was to be invested and conserved for their future benefit. With but slight modifications with reference to allowances in behalf of minors, with which we are not here concerned, the act of February 27, 1925 (43 Stat. 1008), contains the same congressional direction with reference to payment to these Indians; that is, adult members having certificates of competency are to be paid their shares and adult members not having a certificate of competency to be paid $1,000 per quarter only; the remainder of the shares due the latter to be conserved for their future benefit. The point here desired to be emphasized is the sharp distinction thus drawn by Congress between the members of this tribe having certificates of competency and those who do not. With this distinction in mind we recur to section 3 of the act of March 3, 1921, supra, and read:

    "That all members of the Osage Tribe of Indians are hereby declared to be citizens of the United States, but this shall not affect their interest in tribal property or the control of the United States over such property as is now or may hereafter be provided by law, and all restrictions against alienation of their allotment selections, both surplus and homestead, of all adult Osage Indians of less than one-half Indian blood, are hereby removed, and the Secretary of the Interior shall, within four months after the passage of this Act, determine what members of said tribe are of less than one half Indian blood, and their ages, and his determination thereof shall be final and and conclusive. The homestead allotments of the members of the Osage Tribe shall not be subject to taxation if held by the original allottee prior to April 8, 1931."
    In behalf of Clarence Fasley, an enrolled member of the Osage Tribe of less than one-half Indian blood who recently became of age and in behalf of certain other members similarly situated, it is now contended that on reaching the age of 21 years such members became entitled, ipso facto, to a certificate of competency, as a matter of right or of law without any further showing as to competency.

    There is a material difference, however, between the removal of restrictions against alienation and the issuance of a certificate of competency, particularly where the latter is based on ability to handle one's own affairs. At times and under given circumstances restrictions against alienation as applied to lands allotted to the Indians, savor largely of covenants running with the land. Competency, of course, is a personal attribute or equation. These two, competency and the power to alienate certain lands are not synonymous or even coexistent factors in all cases. Frequently they go hand in hand but not necessarily always so. Congress itself, at times, has lifted restrictions against alienation, in masse, without special regard to the competency of the individual Indian land owner. With respect to the Osages, as previously shown, under the act of 1906, the issuance of a certificate of competency did not remove the restrictions against alienation of the homestead and under other legislation dealing with these people, the Secretary of the Interior is em-
 


 

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powered to lift the restrictions against alienation on part or all of their allotted lands including the homesteads even in the hands of incompetent members of the tribe; act of March 3, 1909 (35 Stat. 778); act of May 25, 1918 (40 Stat. 561-579). This but again emphasizes the fact that removal of restrictions against alienation is not synonymous with competency, or the right to a certificate of that character.

    The more recent legislation relating to the Osages, beginning with the act of March 3, 1921, manifests a clear intent on the part of Congress to confine the quarterly distributions of their entire income to those members of the tribe "having a certificate of competency". Had Congress intended to include in this class those in whose favor restrictions against alienation have otherwise been removed, doubtless appropriate language to accomplish that result would have been inserted in the statute. When we turn to the legislation authorizing the issuance of certificates of competency to members of the Osage Tribe this is to be found solely in the act of June 28, 1906, supra, which as above shown, places the matter entirely in the discretion of the Secretary of the Interior, based on a finding as to competency of the applicant. Hence, such a certificate can not be demanded as a matter of right or as a matter of law. An intent on the part of Congress to alter the situation in this respect is not lightly to be implied, hence I am of the opinion that there is nothing in the act of March 3, 1921, supra, or elsewhere in the legislation relating to the Osages, which automatically requires the issuance of certificates of competency to members of that tribe of less than one-half Indian blood on such members reaching the age of 21 years.

                                                                                                                                                     E. O. PATTERSON,

Solicitor.
Approved: June 2, 1926.
JOHN H. EDWARDS, Assistant Secretary.

CERTIFICATE OF COMPETENCY
OSAGE

M-19225                                                                                                                                  June 7, 1926.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Section 4 of the act of February 27, 1925 (43 Stat. 1008, 1010), reads in part 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, * * *"
    It is contended that the above provision, in view of the language "is squandering or misusing his or her funds", deals with the present tense and was not intended to be retroactive, and, therefore, precludes investigation of any expenditures made prior to the act. The case has been referred for my opinion in the premises.

    The regulations approved March 6, 1925, may be said to carry a construction of the provision in question in that they require the Indian, among other things, to make a complete accounting of his or her funds, indicating the amounts of money received from the Superintendent, Osage Agency, "since the granting of his or her certificate of competency," and also furnish an itemized statement of moneys on hand, amounts now invested, present indebtedness and for what purpose incurred.

    While the general rule is that statutes are to be construed and applied prospectively, unless a contrary intention is distinctly expressed or necessarily implied, yet there are well-recognized exceptions to the rule. Thus, it is stated in Black on Interpretation of Laws, pages 247, 252, and 254:

    'A statute cannot properly be called retrospective merely because a part of the requisites for its operation may be drawn from a time antecedent to its passage.

    In the absence of any express declaration in the act the question whether it is meant to be prospective or retrospective is one of construction upon the statute, considered per se and in connection with the subject matter. And the occasion of the enacting of the law may be looked to, to assist in determining its character as retroactive or prospective.

    The intention of the legislation that the statute should operate retrospectively may be discovered * * * not only in the use of explicit terms, but in necessary implications from the language used. Such, for instance, would be the case when a retrospective interpretation would make the statute sensible and effective, but any other would render it unmeaning."

    Furthermore, the provision under consideration may fairly be regarded as remedial in question and consequently is not within the strict application of the general rule against retroactive legislation. Undoubtedly, the situation to be remedied by the act grew out of the fact that members of the Osage
 


 

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Tribe to whom certificates of competency had been granted were found to be squandering or misusing their funds. It is well understood that beneficial or remedial statutes are to be liberally construed. The statute should, if possible, be construed in the light of its obvious policy. The policy inherent in the present legislation is one relating to the welfare and protection of Indians-wards of the United States (Levindale Lead Co. v. Coleman, 241 U.S. 432, 437).

    In support of the contention that the act in question is prospective only, it is urged that if Congress had not intended to limit investigation of expenditures to future cases it would have used the language "has been or is squandering or misusing his or her funds," instead of the language actually employed. It will be observed that the act also refers to any member of the Osage Tribe of more than one-half blood "to whom has been granted a certificate of competency." Under a similar strict construction as that contended for, it would have to be held that as the act does not read in substances, "to whom has been or may hereafter be granted a certificate of competency," it was necessarily intended to be operative only in cases where certificates of competency were granted prior to its passage, which, of course, was evidently not the intention.

    It is set forth in 25 Ruling Case Law, paragraphs 35 and 36, pages 789, 790:

    "It has been declared that, in the absence of express words to that effect, a law can operate only upon future, and not upon past transactions. But this is too broad a statement of the rule. The intention of the legislation controls, and if it is unmistakable that an act was intended to operate retrospectively that intention must be given effect, even though it is not disclosed by express words, and even though the law, thus construed, must be declared to be invalid.

    "The rule that statutes are to be given a prospective rather than a retrospective operation, like other rules of interpretation, is resorted to to give effect to the presumed and reasonably probable intention of the legislature, when the terms of the statute do not of themselves make the intention certain or clear, and cannot be invoked to change or defeat the intention when it is made obvious or manifest by the terms of the statute. It is sometimes held that the intent favoring retrospective application must affirmatively appear in the words of the statute. The better rule of construction, and the rule peculiarly applicable to remedial statutes, however, is that a statute must be so construed as to make it effect the evident purposefor which it was enacted; and if the reason of the statute extends to past transactions as well as to those in the future, then it will be so applied, although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."

    In the case of Lamb v. Powder River Live Stock Co. (132 Fed. 434, 436), the court held:
    "The rule that statutes are to be given a prospective, rather than a retrospective, operation, is well recognized; but, like other rules of interpretation, it is reported to to give effect to the presumed and reasonably probable intention of the Legislature, when the terms of the statutes do not of themselves make the intention certain or clear, and cannot be invoked to change or defeat the intention when it is made obvious or manifest by the terms of the statute."
    It was held in the case of United States v. Louis & Nash. R. R. (236 U.S. 318, 337), that the right of inspection and examination given to the Interstate Commerce Commission by an act of Congress was not intended to be limited to such accounts, records, and memoranda only as were made after the passage of the act, but it was intended to permit an examination of all such accounts, records, and memoranda, for the purpose of carrying out the provisions of the act, the court stating in that connection "we think it is clear from the terms of the act, read in the light of its purpose, that Congress did not intend to draw the line of inspection at pre-existing accounts, records and memoranda."

  See also Clark Implement Co. v. Wadden (149 N.W. 424).

    In the case of Work v. Mosier (261 U.S. 352), the court had under consideration a provision in section 4 of the Osage act of June 28, 1906 (34 Stat. 539), directing payment to parents of the income due minors with the proviso "That if the Commissioner of Indian Affairs becomes satisfied that the said interest of any minor is being misused or squandered he may withhold the payment of such interest." The court held (pages 360, 362):

    "Congress evidently intended that the Commissioner should through his agents keep track of the conduct of parents in the use of the income of their children and necessarily vested him and the Secretary with power to require an account of how the income was being used; * * *. The proviso imposes on the Commissioner the duty of supervising each case and determining from the circumstances whether there has been, in cases of payments made,
 

 

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DEPARTMENT OF THE INTERIOR

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misuse or squandering, and if so, of withholding further payment on account of it.


                                *                                *                                *                                *                            *

    The relators had refused and neglected to give an accounting of the funds last paid to them for the minors and the Commissioner and Secretary were entitled to withhold future payments until the Commissioner was by such accounting enabled to determine whether in his judgment there was a misuse or squandering of the income then being expended. The fact that, in the past the relators had satisfactorily accounted for money received is not sufficient. The Commissioner was entitled to the latest information before acting.* * * Subject to the construction we have put upon the statute, the discretion is vested in the Commissioner to determine in each case whether in his judgment there has been misuse or squandering, and within the same limitation, to decide what is misuse or squandering."
    The word "is" is sometimes held to be the equivalent of "has been". After all, however, that word when used in defining present time is a relative term, as has been said, "Every present time is relative. It may have been present formerly, it may be present now, or it may be present at some future period."

    In seeking the intention of the legislation in question, the purpose to be accomplished must be considered. Obviously, it could not be intelligently determined whether a certificate of competency ought to be cancelled for squandering or misuse of funds without knowing all the facts connected with their expenditure, and necessarily such facts must appear from the time of granting the certificate under which the funds were to pass into the Indian's control.

    Applying the foregoing principles, it fairly and reasonably follows that the Department is justified in taking the position that investigation from the time of granting a certificate of competency is a necessary prerequisite to properly administering the provisions of the Osage act of February 27, 1925, authorizing the cancellation of such a certificate; that only through such investigation is it possible intelligently to carry out such provisions; and that being the case, it was evidently the intention of Congress that the Secretary under the practical operation of the act should look to the past as well as to the future.

                                                                                                                                                 E.O. PATTERSON,

         Solicitor.
Approved: June 7, 1926
JOHN H. EDWARDS, Assistant Secretary.
 
 
JURISDICTION OF STATE
PROBATE COURTS

                                                                                                                                                        October 4, 1926.


The Honorable,
The Secretary of the Interior

DEAR MR. SECRETARY:

    You have requested my opinion as to whether funds derived by restricted adult allottees of the Five Civilized Tribes from their restricted lands are subject to the exclusive jurisdiction of the Secretary of the Interior, or to state the question an other way, what jurisdiction, if any, have the pro bate courts of Oklahoma over restricted funds.

    It is clear at the outset that unless Congress has conferred jurisdiction upon such courts it does not exist. No power rests in the State to confer it. (Hickory v. Campbell, 182 Pac. 233.) Unless the acts of April 26, 1906 (34 Stat. 137), and May 27, 1908 (35 Stat. 312), place jurisdictional powers in such courts, I know of no other source from which it can be derived. A brief outline of the situation as it existed prior to the enactment of these statutes afforded aid in their construction.

    Prior to its admission as a State, Oklahoma consisted of two territories, viz., Oklahoma Territory and "Indian Territory." The latter, however, never had a territorial form of government (Jefferson v. Fink, 247 U.S. 290) . Both territories formed part of that domain acquired from France by the Louisiana Purchase in 1803. Beginning shortly after the War of 1812, in a series of treaties with the so-called Five Civilized Tribes, consisting of the Choctaws, Chickasaws, Cherokees, Creeks, and Seminoles, then inhabiting parts of Georgia, Alabama and other States east of the Mississippi River, the Federal Government began a concerted effort to locate these Indians west of that river. This finally resulted in patenting to the tribes named, in fee simple, practically the entire area embraced in "the Indian Territory" and pursuant to the treaties mentioned these tribes were permitted to set up autonomous forms of government having their own courts, legislative bodies, etc. Subsequent events demonstrated the fallacy of so doing and steps were taken to rectify the error. By later agreements with these tribes supplemented by various congressional enactments, sovereignty and jurisdiction by the Federal Government was reasserted and reassumed over these Indians and their affairs. Provision was also therein made for allotting in severalty among the tribal members the lands previously patented by the United States to the respective tribes. Such allotments were coupled with suitable restrictions
 


 

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against alienation, encumbrance, etc., by the individual allottee but the legal title to these lands remained outstanding in the individual allottee and was not revested in the United States.

    Also prior to statehood by Oklahoma our Supreme Court had ruled that in the absence of legislation by Congress, questions involving the determination of title to and the right of possession of Indian allotments were not primarily cognizable by any court, State or Federal: (McKay v. Kalyton, 294 U.S. 458). Insofar as the Indians in the Indian Territory were concerned, however, Congress had previously by the act of April 28, 1904 (33 Stat. 573) specifically clothed the United States district courts for that territory with jurisdiction over the estates of all decedents, and the guardianship of minors and incompetents whether Indian, freedmen or otherwise. The Enabling Act of June 16, 1906 (34 Stat. 267), under which Oklahoma was admitted as a State failed to expressly confer jurisdiction in such matters either on the courts of the new State or on the two newly created United States district courts for the State of Oklahoma. Rather, by section 1 of that act, Congress manifested a clear intent to retain jurisdiction and sovereignty over the Indians in the Federal Government, as long as the Indian title remains unextinguished. The Constitution of the new State, of course (Art. 1, Sec. 3), is in entire harmony with that requirement:
(Sperry Oil Co. v. Chisholm, 264 U.S. 493).

    The act of April 26, 1906, supra, which antedated statehood by Oklahoma, is a comprehensive measure designed as its title will show, to afford a final disposition of the affairs of the Five Civilized Tribes in the then Indian Territory. By section 19 of that act the restrictions against alienation, etc., of all lands allotted the full-blood Indians of these tribes were continued for a further period of 25 years or until April 26, 1931. Section 20 of that act declared all leases, rental contracts, etc., covering lands other than homesteads and exceeding one year in duration, to be null and void unless ap proved by the Secretary of the Interior, with a proviso to the effect that the allotments of minors and incompetents could be leased or rented under order of the proper court, meaning of course, the United States district court for the Indian Territory in which the lands were located. Section 22 being of greater import here is reproduced below:

    "That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she be longs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in case of the organization of a State or Territory, then by proper court of the county in which said minor or minors may re side or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe."
    Particular attention is invited to the concluding sentence of the foregoing which required all conveyances by full-blood heirs to be approved by the Secretary of the Interior. That is, even the jurisdiction previously resting in the United States district courts over such matters was curtailed or limited to the extent of requiring the approval of the Secretary of the Interior. Matters stood thus on admission of the new State, November 11, 1907, and as previously mentioned, the Enabling Act failed to expressly confer jurisdiction over the Indians and their property either on the courts of the State or on the newly created Federal courts for that district.

    On the other hand, Congress placed, in section 1 of the Oklahoma Enabling Act, following the enacting clause, this proviso:

    "Provided that nothing contained in the said Constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories, or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property or other rights, by treaties, agreements, law or otherwise, which it would have been competent to make if this act had never been passed."
    The terms and conditions of this act were duly accepted by the constitutional convention by irrevocable ordinance and the result is a solemn agreement on the part of the State of Oklahoma never to interfere with the United States and its duly constituted officials in the exercise by the United States of its expressly reserved authority to make any law or regulation respecting the Indians in the same manner and to the same extent as theretofore.

    The act of May 27, 1908, supra, removed the restrictions against alienation as to certain classes of allottees of the Five Civilized Tribes, but as to
 


 

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those of three-fourths or more Indian blood such restrictions were to remain until April 26, 1931, except, quoting from that statute:

    "Sec. 1. * * *  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 * * *. [Italics supplied.]

   Sec. 2. That all lands other than homesteads allotted to members of the Five Civilized Tribes from which restrictions have not been removed may be leased by the allottee if an adult, or by guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years, without the privilege of renewal: Provided, That leases of restricted lands for oil, gas or other mining purposes, leases of homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise: And provided further, That the jurisdiction of the probate courts of the State of Oklahoma over lands of minors and incompetents shall be subject to the foregoing provisions, and the term minor or minors, as used in this act, shall include all males under the age of twenty-one years and all females under the age of eighteen years.

                        *                               *                                *                            *                                *

    Sec. 9. That the death of any allottee of the Five Civilized Tribes shall operate to re move all restrictions upon the alienation of said allottee's lands: 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: 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, nineteen 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 * * *."

    It will be noted, from section 2, supra, that oil, gas and certain other leases covering the restricted lands belonging to these Indians could be made with the approval of the Secretary of the Interior, and not otherwise.

    The matter of the jurisdiction of the Secretary of the Interior over the funds of Indians of the Five Civilized Tribes from their restricted allotments, was noticed by the United States Circuit Court of Appeals for the eighth circuit in the case of the United States v. Hinkle (261 Fed. 518) and the status of such funds was clearly defined. The Court, after directing attention to sections 19 and 20 of the act of April 26, 1906, and section 2 of the act of May 27, 1908, said:

    "* * * the exclusive custody and control of mineral rents and profits derived from restricted lands of full-blood tribal Indian citizens of the Five Civilized Tribes is vested in the Secretary of the Interior, subject only to such rules and regulations as he may prescribe, as an independent trust fund, separate and distinct from the trust estate in the land itself, and that the rules and regulations referred to show that the Secretary has elected to administer this trust and to retain the custody and control of such funds "until such time or times as the payment thereof is considered best for the benefit of said lessor, or his or her heirs."
* * *"
    The Supreme Court of the United States in Parker v. Richard (250 US. 235) in dealing with lands inherited by a full-blood heir, held:
    "During the continuance of such restrictions, the duty to protect the interests of the full-blood heir by supervising the collection, care and disbursement of royalties arising from an oil and gas lease made under Sec. 2, remains with the Secretary of the Interior."
  See also Sunderland v. United States (266 U.S. 226), dealing with the investment of funds derived from a sale of restricted allotted lands.

    Under constitutional authority and since the foundation of our Government, the Indians have been treated as wards of the Government, and the United States has acted as guardian of all restricted Indians. The power of Congress to regulate the affairs and to provide for the supervision of these wards of the Nation is not debatable.

    As stated by the Attorney General in an opinion of March 20, 1925, relative to the Quapaw Indians and the matter of income tax,

    "The Indians have always been treated as wards of the Nation. LaMotte v. United States,



 

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254 U.S. 570; U.S. v. Kagama,118 U.S. 375. This condition of wardship is not affected by the allotment of land to the Indian (Bond v. United States, 181 Fed. 613), nor by the conferring of citizenship upon him. Winton v. Amos, 255 U.S. 373; U.S. v. Sandoval,231 U.S. 228. It rests entirely with Congress to determine when the relationship shall cease, Lone Wolf v. Hitchcock, 187 U.S. 553; Tiger v. Western Investment Co., 221 U.S. 286."
    Section 441 of the Revised Statutes provides that:
    "The Secretary of the Interior is charged with supervision of public business relating to the following subjects: * * * Third, the Indians."
    Section 463 of the Revised Statutes provides that:
    "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior and agreeably to such regulations as the President may prescribe, have the management of all Indian Affairs and all matters arising out of the Indian relations."
   The supervision and control of the Indian wards of the Government is necessary for their protection and welfare, and the Secretary of the Interior and Commissioner of Indian Affairs are charged, by law, with the duty of acting for the Government as the custodian of the property of the Indians and as the protectors of their rights. Congress has given to the Secretary of the Interior and to the Commissioner of Indian Affairs certain supervisory authority over the Indians and their property, and under this authority they have duties to perform which are not definitely defined and minutely expressed by the statutes. Rainbow v. Young (161 Fed. 835).

    No doubt the courts of Oklahoma may appoint guardians of adult restricted, Indians of the Five Civilized Tribes as they might of other citizens of the State upon a proper showing being made and a compliance with the statute; but such jurisdiction, when exercised, can so far as the estate of the Indian is concerned, extend only to such property as might be under his control, free from the supervision of the Secretary of the Interior. In other words it is the status of the particular property as distinguished from the status of the Indian, that determines the jurisdiction of the Secretary of the Interior. His authority can be in nowise modified or controlled by the fact that the ward may be by a local State court adjudged competent or incompetent. Section 2 of the act of May 27, 1908, supra, in terms which are clear and specific, provides that all oil, gas, or mineral leases, and all other leases of restricted lands for a term longer than five years, and of homesteads for more than one year, can only
be made by approval of and under such rules and regulations as the Secretary of the Interior may prescribe. Clearly this invests the Secretary of the Interior with full authority to impose such conditions and restrictions as in his judgment and discretion seem warranted in any particular case touching the collection and disposition of the rentals which, under any reasonable construction of the statute, are as fully restricted as is the land itself.

    The Court in the case of United States v. Hinkle, supra, squarely held, that such rents were "an independent trust fund, separate and distinct from" the land itself, and within the exclusive jurisdiction of the Secretary of the Interior. It will not be seriously contended that as to the land, the action of a probate court declaring the allottee incompetent would oust the jurisdiction or relieve the responsibility of the Secretary of the Interior. This rule is not a new one. In cases where the estate of the ward is impressed with a trust, with power of administration vested in a trustee, the status of the trust fund places it beyond the reach of a guardian of the beneficiary. (Hallinan v. Hearst, 66Pac. 17; 55 L.R.A. 216-219; Vaccaro v. Ciculla, 14 S.W. 43, 47; In re Young's estate, 17 Phila. 511 (Pa.)). And if there be no other estate than that subjected to the trust, the appointment of a guardian of the estate of a ward by the probate court is improper (Studebaker v. Hogen, 176 Pac. 339, 340).

    The authority to administer such restricted funds of necessity carries with it the absolute right to determine the method of administration. His refusal to recognize any power in the probate courts with respect to such fund, is not inconsistent with, nor opposed to the full exercise by such courts of every power incident to the discharge of the duties confided to them and as to all property not withheld from their jurisdiction they are supreme within the limits of the statutes conferring their minority. A ward of the United States may well be also the ward of a local county court. But the mere fact that he has property not restricted, as the term is here employed, affords no basis for a conclusion that the status of the restricted fund is changed. Without intervention by the local courts the possessor of the two funds would have unquestioned control of the unrestricted fund but his powers as to the other would not be enlarged in any degree for that reason alone. And the appointment of a guardian of his person and estate would not extend the authority of such guardian beyond that previously vested in his ward. To carry the rule beyond this forces the absurd conclusion that the broad powers of the United States, exercised by the Secretary of the In-
 


 

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DEPARTMENT OF THE INTERIOR

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terior as its accredited representative, can be destroyed by a decree of a county court of a State, which by solemn compact, conditional upon its admission as a State, has declared that the supreme authority of the United States in the premises shall never be limited or impaired. If such effect were accorded the decrees of county or any other State courts, these wards of the Government for whose benefit the restrictions were imposed, might by merely having application made in their behalf, obtain the appointment of a guardian on the sole ground of their inability to properly manage their affairs (the very ground which justifies the administration of the restricted funds as Congress has expressly provided) and nullify the act of Congress and extinguish the guardianship of the United States. This would result in the restrictions imposed remaining operative only in the cases of competent adult wards, the particular class about which there would be the least concern, and the very one over which the Secretary of the Interior, in the exercise of sound judgment and discretion might be expected to voluntarily relinquish governmental guardianship. It is idle to suggest that had Congress intended any such result it would have, in terms, provided for the transfer or relinquishment of the control exercised by the United States. And where, as here, instead of this, it carefully provided for and defined the limits of such control, I am clearly of opinion, it can not be disturbed by any action of the local probate courts, and that the decree of such courts determining the status of the wards as incompetents, or the degrees of incompetency, insanity, or what-not have no controlling force so far as the Secretary of the Interior is concerned in the administration of such restricted funds. He may, or may not, as his judgment dictates, utilize local guardians as the agency through which he will deal with the Indian wards with respect to such restricted funds, but such guardians merely because they occupy that position, have no right to demand recognition by him, nor can it be compelled by the courts, nor his judgment and discretion in the premises, dictated or controlled. The reasoning advanced by the Court in the case ofBlanset v. Cardin (256 U.S. 325), on the question there presented, applies very forcibly in this. The Court had under consideration the construction of the act of February 14, 1913 (37 Stat. 678), amending section 2 of the act of June 25, 1910 (36 Stat. 855, 856) conferring the right of testamentary disposition upon certain Indians, wards of the United States. Other acts of Congress provided that in cases of intestacy the descent was controlled by local State laws, and such laws also prevented the husband or wife from bequeathing more than two-thirds of the estate away from the other. It was conceded that so long as the property remained restricted, the acts of Congress and not the State statutes were paramount, but it was further insisted that as the restrictions ipso facto fell with the death of the testatrix, the operation of the State laws revived and the jurisdiction of the Secretary of the Interior under the Federal law was destroyed. The Court said:

    "If the first contention is true, the act of Congress is reduced to impetence by its contradictions. According to the contention it permits a will and immediately provides for its defeat at the very instant it is to take effect. Such antithetical purpose can not be imputed to Congress and it is repelled by the words of Section 2."
  See also Blundell v. Wallace (267 U.S. 373, 377).

    Assuming it was the purpose of Congress to permit the making of wills only by competent adults, still no decree of a State court made prior to the making of a will by an Indian under authority of a Federal statute, declaring such Indian incompetent, would bind the Secretary of the Interior to withhold his approval of it. So long as the Federal statute controls, it is within the jurisdiction of the Secretary of the Interior, and not in any State court, to determine not only the question of competency of the maker of the will, but every other question upon which his approval or disapproval of it depends. It can never be assumed that where Congress has attempted to protect a particular class, who though in some other relation may be with in the reach of State legislation, intends by the same act to provide a way for defeating its clear purpose, by or through the acts of some other
agency, such as probate court, over which it has no control.

    It is my opinion that, except as to the rents from leases which the allottee is specifically authorized to make without the approval of the Secretary of the Interior, the proceeds derived from all other leases are restricted; that this status places them beyond the jurisdiction of the probate courts of the State, and leaves the jurisdiction where it has been placed by Congress in the Secretary of the Interior and Commissioner of Indian Affairs; whose control is exclusive and unrestricted, not only so far as such courts are concerned, but so far also as any legislative power of the State goes to confer a conflicting authority on those courts.

                                                                                                                                            E. O. PATTERSON,

Solicitor.
Approved:-----------------------------

--------------------, Assistant Secretary.
 


 

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ASSESSMENT CHARGES ON

IRRIGATION PROJECTS

M-20183                                                                                                                               November 6, 1926.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    In connection with irrigation work on Indian reservations you have requested my opinion on several questions presented by the Commissioner of Indian Affairs who, after referring to the two main classes into which such projects fall,-those on which the irrigation costs constitute a lien against the lands benefited and those on which no such lien exists,-submits the following:

    1. Can the Secretary of the Interior assess charges against lands within these two projects that are State school lands where such lands are susceptible of receiving water but are not now being cultivated owing to the fact that the title is still in the respective States?

    2. Where Indian lands are leased under both projects, the leases providing for the lessees to pay the operation and maintenance assessments accruing during the period of such leases, but the lessees fail to pay such charges, would subsequent purchasers of the lands take such lands subject to the accrued charges?

    3. Where land is purchased under Government sale holding out that a paid-up water right went with the land (See Attorneys General Opinions 33, page 25, supra); also where a white man purchases direct from a fee patent Indian, is this Service required to continue construction work to provide irrigation facilities for the total area of the irrigable allotment when at the date of the sale or the issuance of fee patent only part of the land was then actually under constructed works and could accordingly be irrigated?

    4. Referring further to Question No. 3, opinion is also desired as to whether or not in cases where fee patent Indians sell direct to white purchasers and no construction charges are paid and no lien is created by express legislative act to assure their repayment, the Government can refuse delivery of water unless and until the purchaser executes an agreement to pay his share of the construction cost.

    From the inception of activities by the Federal Government in connection with irrigation work among the Indians down to the year 1900 or thereabouts practically all appropriations by Congress for such work were purely gratuitous; that is, there was no thought of requiring the Indian to repay. About the year mentioned, however, this policy underwent a decided change, to the extent at least of either drawing on tribal funds belonging to the Indians chiefly concerned, if such funds were at hand, or by making direct appropriations from the Federal Treasury to be reimbursed from tribal funds of the Indians derived from sales of unallotted lands within their reservation as and when had. For illustrative purposes see section 4 of the act of May 31, 1900 (31 Stat. 247), dealing with the Crow Indians in Montana: article 4 of the agreement with the Indians of the Wind River Reservation, Wyoming, ratified by the act of March 3, 1905 (33 Stat. 1016), and the provisions of the act of June 21, 1906 (34 Stat. 375,) dealing with irrigation among the Ute Indians in Utah. Others could be cited but these are ample for our present purpose. On many of the reservations, however, the entire tribal membership failed to receive irrigable lands in severalty; that is, some held allotments lying within the irrigable areas while others did not. This arose from several causes among which may be mentioned the immediate habitat of individual members of the tribe, preference in selecting lands wanted in allotment, but more largely because on a great many reservations allotments in severalty were made years before the inauguration of any irrigation scheme. At any rate, on most of the reservations where irrigation is in vogue we find some of the Indians holding allotments under the irrigation systems while other members of the same tribe have no land under ditch. Naturally those members who received no irrigable lands in allotment protested against the expenditure or hypothecation of their share of a fund common to the entire tribe for the special benefit of their more fortunate brethren who happened to hold irrigable lands in allotment. Appreciating the lack of equity in situations of this kind Congress set about to rectify it and by an item of general application in the Indian appropriation act of August 1, 1914 (38 Stat. 582), after advancing some $335,000 for irrigation work among the Indians further directed:
    That all the moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursement to be made under such rules and regulations as the Secretary of the Interior may prescribe: Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made re-
 

 

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imbursable out of tribal funds of said Indians, in accordance with the benefits received by such individual Indians so far as practicable from said irrigation project, said cost to be apportioned against such (each) individual Indian under such rules, regulations, and conditions as the Secretary of the Interior may prescribe.

    Even prior to the year 1914, in a few instances at least, in dealing with particular projects or reservations Congress had placed the burden of the cost of irrigation work where it more properly belongs, on the shoulders of the individual Indians benefited or better still by way of a lien against the land irrigated. Illustrative of this see the act of August 24, 1912 (37 Stat. 522), which reads in part:
    That the proportion of the cost of the irrigation project on the Gila River Indian Reservation heretofore and herein authorized to be paid from the public funds shall be repaid into the Treasury of the United States as and when funds may be available therefor: Provided further, That in the event any allottee shall receive a patent in fee to an allotment of land irrigated under this project before the United States shall have been wholly reimbursed as here in provided, then the proportionate cost of the project, to be apportioned equitably by the Secretary of the Interior, shall become a first lien on such allotment, and the fact of such lien shall be recited on the face of each patent in fee issued and the amount of the lien set forth therein, which said lien, however, shall not be enforced so long as the original allottee or his heirs shall own the allotment; and the receipt of the Secretary of the Interior, or of the officer, agent, or employee duly authorized by him for that purpose, for the payment of the amount assessed against any allotment as herein provided shall, when duly recorded by the recorder of deeds in the county wherein the land in located, operate as a satisfaction of such lien.
    Legislation of similar import with respect to the Colorado River and Yuma Indian Reservations in California and Arizona will be found in the act of March 3, 1911 (36 Stat. 1063), and in the act of May 18, 1916 (39 Stat. 139 et seq.), dealing with the Blackfeet, Flathead, and Fort Peck Reservations in Montana. Others could be mentioned, if necessary, but it will here be observed that the substantive legislation in the act of August 1, 1914, supra, creates no lien for repayment of the irrigation charges but simply directs the Secretary of the Interior to require reimbursement, if the Indians have adequate funds to repay, under such rules and regulations as the Secretary may prescribe. Administrative officers of the Government being without power to insert conditions or limitations in land patents not contemplated by law (Burke v. So. Pac. R.R. Co.,234 U.S. 670), it follows that the Secretary of the Interior is unable to impose a lien for repayment of these irrigation charges except where Congress has expressly so directed. In this connection it is to be remembered that most of our Indian allottees, holding lands within these irrigation projects, received title therefor under our familiar 25-year trust patents which declare that at the expiration of the trust period the fee will then be conveyed, also by patent, "free of all charges or incumbrances of any nature whatsoever." In the face of this obligation on the part of the Government, the right of the Indian to an unincumbered title on expiration of the trust is not lightly to be invaded. At any rate we are thus confronted with the two classes into which those projects fall, those on which Congress has specifically provided for the retention of a lien to guarantee repayment of the irrigation charges and those on which no such lien exists. With these observations in mind we return to the question first presented above.

    From an early date in providing for the disposal of lands within Indian reservations Congress has uniformly granted certain areas therein, usually Sections 16 and 36 in each township (or an equivalent), to the State or States in which such lands are located in support of the common or public schools of such States. For the grant so made compensation has usually been awarded to the Indians but with that feature of the matter we are not now concerned. In no instance, however, and I speak advisedly, has either Congress or the Indians assumed any obligation, legal or otherwise, to furnish water for irrigation purposes to any lands so granted to a State. The State of course simply takes such lands in place, or indemnity lands elsewhere in case of loss, and the State is entitled only to these lands in their original or native condition, without enhancement in value at the expense either of the Federal Government or of the Indians, by way of irrigation or otherwise. That is to say, if water is desired for such lands, the expense incident thereto must be borne by the State or by its grantees. As officials of a State, however, in the absence of appropriate authority from the legislative body, are without power to burden or impair lands belonging to the State with liens or obligations of the character with which we are now dealing, water should not be delivered to any State lands through any irrigation system constructed by the Govern-
 


 

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ment, in the absence of specific agreements with officers of the State supported by proper statutory authority. Further, in the absence of express legislation by Congress to that effect, lands so granted to any State can not be burdened with such a lien by officers of the Federal Government, without the consent of the State. Situations of this kind can best be met by distributing the costs or "irrigation charges" over the remaining area within the project, omitting the State school lands. Thus, if a given project embraces say 40,000 acres, including 2,000 acres belonging to the State, in the absence of a contract with the State officials, supported by the necessary statutory authority, the lands belonging to the State should be excluded from the area furnished with water and the project costs distributed over the remaining 38,000 acres within the project. Later, should the State school lands come into a position to assume a proper proportionate part of the costs of the system, water can then be delivered to such lands and the project charges redistributed over the entire area within such project. This reduces the matter simply to one of bookkeeping and hence needs no further discussion here.

    As a preliminary to the second question it may be said that on those projects where a specific lien for repayment of the irrigation charges is retained, such charges, of course, remain a lien against the land until paid; enforceable as such, or, as indicated in the answer to the fourth question below, where the liability to repay is undoubted, delivery of water may be refused until payment is made. In all such matters of course the provisions of special enactments relating to particular projects are not to be disregarded, such as a declaration in the act of August 24, 1912, supra, to the effect that the lien is not to be inforced as long as the land is in Indian ownership; and those provisions of the act of May 18, 1916 (39 Stat. 141), relating to the Blackfeet, Flathead, and Fort Peck Reservations in Montana, wherein it is said:

    "That in additions to the construction charges every allottee, entryman, purchaser, or owner shall pay to the superintendent of the reservation a maintenance and operation charge based upon the total cost of maintenance and operation of the systems on the several reservations, and the Secretary of the Interior is hereby authorized to fix such maintenance and operation charge upon such basis as shall be equitable to the owners of the irrigable land. Such charges when collected shall be available for expenditure in the maintenance and operation of the systems on the reservation where collected: Provided, That delivery of water to any tract of land may be refused on account of nonpayment of any charges herein authorized, and the same may, in the discretion of the Secretary of the Interior, be collected by a suit for money owed: * * *"
    Ordinarily where lessees of Indian lands within an irrigation project obligate themselves to pay the annual operation and maintenance charges then become part of the consideration for the lease, collectable as such from the lessee, or from his bonds men in case of failure to pay. Hence, in the absence of an express agreement between the parties to that effect I am unable to see how a subsequent lessee or owner can be held accountable for the delinquencies of a former occupant of the same premises. This is particularly true in those cases where no lien is retained for repayment of the irrigation charges. In the practical operation of projects of this character some losses are bound to occur as it is usually impossible in every instance to collect down to the last penny. These so-called "project losses," meaning those items it is found impossible to collect, may be accounted for by charging them off to profit and loss or under appropriate circumstances by covering them into the project and redistributing them over the entire area as a part of the construction costs. A procedure analogous in principle at least has been resorted to on our Federal reclamation projects and has been recognized and upheld in the case of Numpa and Meridian Irrigation District v. Bond (283 Fed. 569-573).

    The third inquiry brings into view two classes of obligees or assumed obligees, (a) purchasers of allotted Indian land sold under governmental supervision and (b) purchasers of such land who buy direct from Indians holding patents in fee simple. For convenience in discussion these will be treated separately although both subdivisions relate only to those projects on which no lien exists for repayment of the irrigation charges. As indicated in the question submitted 3 (a) has already been dealt with in part in the Attorney General's opinion of September 3, 1921 (33 Op. A.G. 25). Therein it was held that liability for repayment of the costs of irrigation,-the construction charge,-on the Wind River Reservation, Wyoming, is a personal obligation or liability resting against individual Indian allottees holding lands within the irrigated areas there, and that where such lands are sold under governmental supervision to purchasers who paid the estimated construction charge at the time of sale, such purchasers can not thereafter be held liable for additional payments in this behalf. Further, that this holds true even in those cases where the construction charge had been un-
 


 

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derestimated in the first instance. In other words, we can not require a purchaser to pay for the same thing twice, and any error in estimating the construction charge is one for which the purchaser is not responsible and can not be held accountable. It will be recalled that sales of this character are had pursuant to that provision in section 1 of the act of June 25, 1910 (36 Stat. 856), which reads in part:

    "All sales of lands allotted to Indians authorized by this or any other act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of ten per centum of the purchase price at the time of the sale."
    Regulations prescribed by an administrative officer, if in harmony with the statute, have all the force and effect of law. Hence, where the Secretary of the Interior in prescribing the terms of sale of allotted Indian lands, holds out to and assures the purchaser that the lands so sold carry a "paid up water right" we can not thereafter repudiate that obligation by demanding from the purchaser additional compensation. The criterion for determining the purchaser's liability in such cases is not the area under ditch at the time of sale, or the area to which water can be delivered for irrigation purposes at that time, but rather the area so sold as having a paid-up water right. That is, if an allotment is sold as having a paid-up water right for 80 acres and the purchaser buys accordingly, we can not thereafter recover additional compensation on the ground that at the time of sale only 40 acres were then actually under ditch. We must look to "the terms of the sale" for guidance rather than to the area being irrigated at the time of sale.

    Purchasers buying direct from Indians to whom patents in fee have issued (class 3-b above) occupy a somewhat different position in so far as contractual obligations with the Government are concerned. The rights of purchasers under such circumstances have previously been dealt with, in part, in an opinion by the Solicitor for this Department under date of December 15, 1922 (49 L.D. 370), the project there under discussion also being the one at Wind River. In that opinion it was pointed out that where the obligation to repay is a personal one resting against the Indian,-there being no lien running as a covenant with the land,-such obligation can not be shifted to the shoulders of purchasers from the Indian, in the absence of an express agreement to that effect. Here the area under ditch at the time of issuing the patent in fee simple to the Indian may be used as the criterion for determining the liability of the respective parties in interest. The former Indian owner is liable for the irrigation charges, construction, operation, and maintenance, accruing prior to the time he parts with the title; hence, repayment of those charges, if to be had at all, is to be had from the former Indian owner rather than from his grantee, in the absence of an express agreement otherwise between the parties. In other words, a purchaser can not be held liable for a personal indebtedness resting against the former Indian owner of the land. Being under no obligation, legal or otherwise, to furnish water gratis to such white land owners, such charges, construction, operation, and maintenance as accrue after the passing of the title are properly chargeable to the then owner of the land; hence, where part of the land only is under ditch at the time of sale, if such subsequent owner of the land desires water for any additional area, in the tracts so purchased, he must assume the obligation of paying therefor. It would be advisable, however, under such circumstances, to require the purchaser to execute an agreement to that effect, and de livery of water to such additional area may be with held until the purchaser agrees to pay therefor.

    The matter of collecting from the Indians, generally, leads me to reinvite attention to that clause in the act of August 1, 1914, supra, requiring reimbursement "Where the Indians have adequate funds to repay." Some consideration should be given to the financial status of individual Indians as doubtless Congress never intended that any of its Indian wards would be impoverished as a result of appropriations made by that body in their behalf. Situations of this kind amply illustrate the superiority of having expenditures of this character rest against the lands benefited, by way of a lien, but even as to that class of cases, where vested rights have once been created, some question may well be raised as to the power of Congress to impair or invade such rights: Choate v. Trapp (224 U.S. 665) ; Morrow v. United States (243 Fed. 854); and United States v. Heinrich(12 F. 2d 938). The latter case is now on appeal before the Ninth Circuit, and as the constitutional powers of Congress over such matters is one properly belonging to the courts for determination, further discussion of this feature of the matter would be inappropriate here.

    The answer to the fourth and last question turns in a large measure on the answer to the third. Where no lien exists for repayment of the irrigation charges and where purchasers buy direct from the Indians without having agreed to assume an indebtedness resting against the former Indian owner such purchasers can not be required to assume the indebtedness by a refusal to deliver water until he agrees to pay. This would savor too largely
 


 

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of arbitrary action without due regard to the rights and equities of the respective parties in the premises. In its final analysis it would simply be equivalent to creating or enforcing a lien where none exists. Delivery of water, of course, may be refused under proper circumstances, if a delinquent water user refuses to pay. Mower v. Bond (8F. 2d 518), and Holmes v. Whitestone Irrigation and Power Company (244 Pac. 579). In the absence of a valid obligation to pay, however, refusal of water until payment is made or until the land owner agrees to pay would not, in my opinion, be justified.

                                                                                                                                                      E. O. PATTERSON,

Solicitor.
Approved: November 6, 1926.
JOHN H. EDWARDS, Assistant Secretary.

STATE TAX ON
ALLOTMENTS--OSAGE

M-18320                                                                                                                                   December 21, 1926.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested further consideration of the right of the State of Oklahoma to tax the "homestead" allotments of deceased members of the Osage Indian Tribe in those cases where the allottees were of one-half or more Indian blood and where neither the original allottee nor his heirs have received a certificate of competency.

    The matter at hand was the subject of an opinion by me under date of August 14, 1926, wherein after discussing pertinent legislation dealing with the subject matter, it was held that the homestead allotments of deceased members of the Osage Tribe, under the circumstances mentioned, are not subject to taxation by the State. In suggesting additional consideration of the question the Commissioner of Indian Affairs presents an extended memorandum by the tribal attorney for the Osage Indians, wherein taxation by the State of the "surplus" lands allotted to these Indians is discussed at considerable length, and also wherein numerous decisions by the courts dealing with taxation as applied to allottees for the Five Civilized Tribes are invoked. These issues are fully appreciated here, but as shown in my prior opinion, we were not then and are not now dealing with taxation of the surplus lands but of the homesteads. The Supreme Court of the State of Oklahoma, in a case dealing with the Osages,-Hudson v. Hopkins(183 Pac. 507-512) ,-recognizes the fact that:

    "The decisions of the courts in relation to taxation pertaining to the Five Civilized Tribes do not give us much assistance in the case at bar for the reason that they are all founded on different acts of Congress and treaties."
    Under the Osage Allotment Act of June 28, 1906 (34 Stat. 539), each enrolled member of that tribe received an allotment of approximately 660 acres of land, and, quoting from the statute, section 2, subsection 4:
    "Each member of said tribe shall be permitted to designate which of his three selections shall be a homestead, and his certificate of allotment and deed shall designate the same as a homestead, and the same shall be inalienable and nontaxable until otherwise provided by act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided."
    Section 2, subsection 7:
    "That the Secretary of the Interior, in his discretion, at the request and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain in alienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee; if upon investigation, consideration, and examination of the request he shall find any such member fully competent and capable of transacting his or her own business and caring for his or her own individual affairs: Provided, That upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States: Provided, That the surplus lands shall be nontaxable for the period of three years from the approval of this act, except where certificates of competency are issued or in case of the death of the allottee, unless otherwise provided by Congress."
    The right of the State to tax the surplus lands after expiration of the three-year exemption, of
 


 

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course, has long since been well settled in favor of the State. United States v. Board of Commissioners of Osage County, Oklahoma (193 Fed. 485; affirmed, 216 Fed. 883). As previously indicated, however, we are not here primarily concerned with taxation of the surplus. Hence, confining the discussion as much as possible to the homesteads, it will first be observed from the legislation reproduced above that such homesteads were to remain inalienable and nontaxable until otherwise provided by Congress. In the subsequent provision of the same statute, however, dealing with the issuance of certificates of competency, which removed the restrictions, these were not to include the homesteads, but it was therein further provided that such homesteads "shall remain inalienable and nontaxable for a period of 25 years, or during the life of the homestead allottee". Admittedly, the concluding clause of the expression just used, if now open to original construction, would imply a rather clear intent on the part of Congress that upon the death of an allottee all restrictions against both alienation and taxation of the homesteads should cease. That issue, however, has been put at rest just the other way by repeated decisions of the courts, as to which see United States v. Aaron (183 Fed. 347; affirmed 204 Fed. 943); United States v. Board of Commissioners of Osage County, supra, and Kenny v. Miles (250U.S. 58-64). In the latter case the Supreme Court of the United States pointed out the essential difference, in so far as restrictions against alienation are concerned, between allotments of deceased members of the Osage Tribe and those of the Five Civilized Tribes. This again but illustrates the fact that in dealing with the Osages we cannot with safety rely on or invoke rulings pertaining to the Five Civilized Tribes.

    It may prove helpful to a better understanding of the situation obtaining among the Osages and also as to the difference between these and allottees of the Five Civilized Tribes if we digress here for a brief discussion of the question of restrictions generally as applied to the Indians and their allotted lands. It has been contended, and the Courts have held in some instances, that the restrictions against alienation and taxation are analogous to covenants running with the land. Goodrum v. Buffalo (162 Fed. 817); Johnson v. United States (283 Fed. 954), and Bowling v. United States (233 U.S. 528). Reading "covenants" in this respect to mean obligations or conditions, it will readily be seen that unless such covenants or "restrictions" run with the land when they are not covenants real but simply personal obligations or limitations (15 C. J. 1220). In other words, unless the restrictions bind the heir as well as the original allottee, then it certainly can not be said that such restrictions run with the land. Herein lies the fundamental distinction between the Five Tribes and the Osages, for with the former, save in certain exceptions not here material, Congress has expressly declared that the death of an allottee of those tribes shall remove all restrictions. Act May 27, 1908 (35 Stat. 312, section 9). Some such result may have been intended with respect to the Osages, but Congress not having expressly so declared and the courts, with whose decisions, supra, I am in full accord, having held otherwise, we can not now by implication invoke a different rule. It may also be well again to point out, as wasdone in my prior opinion, that as applied to the Osage homesteads, the restrictions against alienation and those against taxation are coexistent and coextensive factors; that is, they go hand in hand, and where the former exists the latter must necessarily follow. This is manifested in no small measure by use of the conjunctive word "and" in the legislation supra,dealing with the alienation and taxation of such lands, and it was so recognized and construed in United States v. Board of Commissioners, supra.
    It is now insisted that the act of April 18, 1912 (37 Stat. 86), which is supplemental to and amendatory of, the act of June 28, 1906, supra,has some material bearing on the situation now here. In so far as in any manner pertinent, the provisions of that act may be briefly stated thus: Section 1 directs that until the inherited lands of deceased members of the Osage Tribe shall have been partitioned or sold, the Secretary of the Interior is to pay the taxes on said lands out of any money due the heirs from the decedent's segregated funds in the Treasury of the United States; section 3 subjects the property of deceased and incompetent members of the Osage Tribe to the jurisdiction of the probate courts of the State; section 6 provides for a partition or sale by and through those courts of the lands of deceased members, subject to the condition that no partition or sale of the restricted lands of a deceased allottee shall be valid until approved by the Secretary of the Interior, and section 7 provides that the lands of deceased members shall not in any manner be incumbered, taken, or sold to secure or satisfy any debt or obligation contracted or incurred prior to the issuance of a certificate of competency or removal of the restrictions against alienation, and this latter section concludes with a proviso which reads: "That nothing herein shall be construed so as to exempt any such property from liability for taxes." In all of this, however, should be borne in mind the fact that the property therein being dealt with included two classes of realty; that is, surplus lands which had previously been expressly made taxable by
 


 

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Congress and the homesteads as to which there was not only no such declaration but one concerning which the courts have long since decided are not taxable as long as the restrictions against alienation remain. The effort to construe this legislation as altering the situation with respect to the homesteads would run counter to several familiar rules, viz. (1) That statutes imposing taxes are not to be extended or enlarged by implication; (2) in tax matters doubts must be resolved against the Government and in favor of the taxpayer, and (3) wherever possible legislation affecting the Indians is to be construed in their favor, United States v. Merriam (263 U.S. 179); Gould v. Gould (245 U.S. 151), and United States v. Nice (241 U.S. 591).

    The decision of the Eighth Circuit Court of Appeals in the case of United States v. Board of Commissioners of Osage County, Oklahoma (216 Fed. 883), which involved in part the very question with which we are now dealing, was handed down on August 20, 1914, some two years and four months after the passage of the act of April 18, 1912, supra.As the courts are presumed to be familiar with and to take judicial notice of legislation affecting matters pending before them, it may safely be assumed that had the statute last referred to had any material bearing on the question now here, that fact would not have escaped the attention of the court.

    Even though it may involve repetition to some extent, yet largely for the purpose of clarifying the situation with respect to taxation as applied to the Osages, I am disposed to invite attention to four distinct lines of decisions dealing with this matter, to wit:

(1) United States v. Board of Commissioners of Osage County, Oklahoma (193 Fed. 485; affirmed, 216 Fed. 883). This involved taxation, both of the surplus after expiration of the three-year period of exemption, and the homesteads of deceased members; it being therein held that the surplus were taxable but the homesteads were not until the exemption against the latter had been removed by Congress.

(2) United States v. Board of Commissioners of Osage County, Oklahoma (254 Fed. 570; reversed, 251 U.S. 128; 1 F. 2d 901; affirmed, 267 U.S. 587). These should by no means be confused with those under No. 1, supra, as they turn solely on alleged excessive valuations by the State of Oklahoma of Osage lands that were taxable rather than a denial of a right in the State to levy any tax at all.

(3) United States v. McCurdy, County Treasurer of Osage County (280 Fed. 103; affirmed, 264 U.S. 484). These involved attempted taxation by the State of Osage surplus allotments prior to the expiration of the three- year period of exemption; such right being denied the State even in those cases where the allottees had died prior to the expiration of said period.

(4) McCurdy County Treasurer of Osage County, Oklahoma, v. United States (246 U.S. 263). This involved taxation by the State of lands purchased with Indian funds from which the restrictions had previously been removed, the decision there being in favor of the State.


    The latter case recalls that line of decisions to the effect that where the covenants, i.e., the "restrictions", especially those against taxation, have ceased to run they can not be reimposed except by act of Congress; also that where restricted Indian property comes into the hands of persons other than of Indian blood, by inheritance or otherwise, the covenants also then cease; Levindale Lead and Zinc Mining Company v. Coleman (241 U.S. 432) and Childers v. Pope (249 Pac. 726). The case last mentioned is not without considerable interest here. It involved the right of the State to impose an inheritance tax on the estate of Nah-me-tsa-he, a deceased full-blood member of the Osage Tribe. Therein the Supreme Court of the State held, on October 5, 1926, that the shares in this estate, including the restricted lands, inherited by a full-blood Indian heir, Rhoda Wheeler Pope, are not subject to an inheritance tax by the State, following the rule announced by the Supreme Court of the United States in Childers v. Beaver,-a Quapaw case (270 U.S. 555). The Supreme Court of the State also held that the shares of O. V. Pope, the white husband of the deceased allottee in the case mentioned, were properly taxable, this being in harmony with the theory on which Levindale Lead and Zinc Company v. Coleman, supra, was founded. With these rulings by the Supreme Court of the State I am in entire accord, but if, as contended, the death of an Osage allottee removes all restrictions against taxation of the homestead, then I am unable to see wherein such property would not then become subject to the State inheritance tax. In other words, under what theory of the law can it be said that such lands are exempt from the State inheritance tax yet at the same time are subject to ordinary, or what might be termed, direct taxes?

    To avoid prolonging the discussion I have deemed it unnecessary again to review the effect of the act of March 3, 1921 (41 Stat. 1249), which deals with the Osages, as the scope of that statute was fully covered in my prior opinion. After carefully reviewing the entire situation, I have found
 


 

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no occasion to question the soundness of the view previously expressed.

                                                                                                                                                        E. O. PATTERSON,

Solicitor.
Approved: December 21, 1926.
JOHN H. EDWARDS, Assistant Secretary.

TITLE TO BED OF RED RIVER

M-18772                                                                                                                                     December 24, 1926.

The Honorable,
The Secretary of the Interior:

DEAR MR. SECRETARY:

    On March 25, 1926, I rendered an opinion concerning the ownership of the bed of Red River in Oklahoma between the easterly boundary of that State and the 98th meridian of west longitude. After a review of the principal treaties and statutes involved, the conclusion was reached that the United States did not own any portion of the river bed in the area in question.

    The opinion of the Attorney General was requested on this point, and the opinion of March 25, 1926, was forwarded to him for consideration in connection therewith. On September 14, 1926, the Attorney General addressed to you a letter expressing his preliminary view of the situation as follows:

    "Your letter was accompanied by the formal opinion of the Solicitor of the Department of the Interior, in which he arrives at the conclusion that the United States has no title to the land in question. The investigation so far made of the matter by this Department would tend to indicate to the contrary, on the ground that in the case of Oklahoma v. Texas, 256 U.S. 70, 608, the Court held the State of Texas, its grantees and licenses had no proprietary interest in the bed of the river, and in Oklahoma v. Texas, 258 U.S. 574, the Court held that the title to the bed of the river did not pass to the State of Oklahoma at the time of its admission to the Union, and that if it had any interest whatsoever in the land it would be incident to its ownership of riparian lands on the northerly bank, which would, of course, be likewise the case as to any grantees or licensees of the State. This would leave for consideration:

    (a) The treaty of June 22, 1855 (11 Stat. 611) between the United States and the Choctaw and Chickasaw Nations of Indians, and

    (b) Any statutes or treaties subsequent to the said treaty of June 22, 1855, affecting the lands in question.

    A construction of the language of the Treaty of 1855 (which, by its terms, superseded the previous treaty with the Choctaws of September 27, 1830, 7 Stat. 333) would seem to indicate clearly that the treaty of 1855 granted only from the north bank of the Red River, and hence would exclude the entire bed of the river. It was also decided in Oklahoma v. Texas, 258 U.S., supra, that allotments and patents of Indian lands originally granted by treaty would be bound by the exterior limits contained in the original treaty or grant.

    It would follow that unless there are some statutes with reference to allotments of the lands granted by the treaty widening the scope of the treaty so as to grant riparian or other rights in the bed of the river that the bed of the river would remain the property of the United States. The opinion submitted by the Solicitor of the Interior Department specifically refers to the Acts of June 6, 1900 (31 Stat. 672), June 5, 1906 (34 Stat. 213), the Treaty of April 28, 1866 (14 Stat. 769), the Treaty of 1867 (14 Stat. 581), [15] the Acts of June 28, 1898 (30 Stat. 495, 505), July 1, 1902 (32 Stat. 641) and also suggests "subsequent acts and treaties which provided for the survey and allotting of the lands, and for the issuance of tribal deeds or patents therefor by the officers of the Chickasaw and Choctaw Nations". (pp. 7,8 of Op. of Solicitor of Department of the Interior).

    I should be glad to have a citation to such "subsequent acts and treaties" bearing upon the matter in question before rendering a final decision upon the question, and would also be glad to have the matter further considered by the Solicitor of the Interior, in view of the preliminary views above expressed."

    The entire matter has been given further consideration, and the following represents the conclusion reached:

   There can be no question but that the State of Texas and those deriving title through that State have no ownership in the lands north of the south bank of Red River. United States v. Texas(162 U.S. 1); Oklahoma v. Texas (256 U.S. 70; id.
258 U.S. 574; id. 260 U.S. 606).

    Evidence presented in the suit Oklahoma v. Texas as to non navigability of Red River within the limits of the State of Oklahoma at the time of the admission of said State into the Union (summarized in 258 U.S. 574), led to the conclusion that Oklahoma acquired no title to the bed of Red
 


 

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River, as an incident of its sovereignty upon admission into the Union, and that such rights as rest in it or its grantees are incidents to riparian ownership of lands on the north bank of said river. Since the riparian lands throughout the area in question were, long prior to statehood of Oklahoma, disposed of to the Choctaw and Chickasaw Indians, it is clear that no such riparian rights exist in the State of Oklahoma or its grantees.

    The elimination of the two States leaves the question of ownership between the United States and the Indians. The term Indians is here used collectively to embrace the Choctaw and Chickasaw Nations or Tribes and individual members of said tribes holding allotments of riparian lands.

    The United States originally acquired ownership of these lands by a treaty of 1803 with France and a treaty of 1819 with Spain, and unless title passed from the United States to the Indians this original ownership would continue as to the river bed.

    The former opinion in this matter (Op. Ma. 25, 1926) pointed out that the United States had parted with title to the area in question and other land to the Choctaw Nation, pursuant to a treaty of September 27, 1830, and a patent issued on March 23, 1842, pursuant to said treaty. A restatement of the reasoning by which it was concluded that the Indians acquired ownership of the bed of Red River as an incident to ownership of the riparian lands under the aforesaid treaty and patent is deemed unnecessary.

    The preliminary view of the Attorney General as expressed in his letter of September 14, 1926, is that the treaty of June 22, 1855 (11 Stat. 611), between the United States and the Choctaw and Chickasaw Nations superseded the previous treaty of September 27, 1830 (7 Stat. 333), and by its terms limited the Indians' title to lands north of the north bank of Red River.

    This preliminary view necessarily implies that the treaty of 1885, in addition to abrogating the treaty of 1830, likewise extinguished all Indian titles under the patent of 1842.

    After careful reexamination of the treaties referred to and other treaties herein to be cited, I am unable to agree with the preliminary view that the treaty of 1855 affected Indian titles acquired under earlier treaties and the patent of 1842.

    Prior to 1820 the Choctaw Nation held lands in the State of Mississippi, and by the treaty of October 18, 1820 (7 Stat. 210), ceded part of the lands occupied by them in Mississippi to the United States in exchange for "a tract of country west of the Mississippi River, situate between the Arkansas and Red Rivers". The area specifically described commenced in the present State of Arkansas and lay between the Arkansas River and the Canadian Fork and was described as running from the source of the Canadian Fork "due south to Red River, thence down Red River", etc. In this treaty the commissioners of the United States, in its behalf, ceded the area described to the Choctaw Nation.

    It should be noted in passing that this cession was made following the conclusion of the treaty of February 22, 1819, between the United States and Spain, which gave ownership of the river bed to the United States and that the cession was made while said treaty of 1819 was under consideration by the Congress, said treaty being ratified and proclaimed February 22, 1821 (8 Stat. 252).

    It developed that certain of the lands ceded to the Choctaw Nation in 1820 were occupied by white settlers, and by treaty of June 20, 1825 (7 Stat. 234), the Choctaw Nation receded to the United States the easterly portion of the lands ceded to it in 1820 "lying east of a line beginning on the Arkansas (River), 100 paces east of Fort Smith, and running thence due south to Red River". This new easterly boundary of the Choctaw cession marked what is now the present westerly boundary of the State of Arkansas. An act of Congress approved May 28, 1830 (4 Stat. 411), authorized the President to create districts west of the Mississippi River, to be given to Indians holding lands east of said river in exchange for said land. Section 3 of the act authorized the President "solemnly to assure" the Indians making such an exchange "that the United States will forever secure and guarantee to them * * * the country so exchanged with them, and if they prefer it, that the United States will cause apatent or grant to be made and executed to them for the same."

    The treaty of September 27, 1830, was made pursuant to the act of May 28, 1930, and provided for the issuance of a patent to the Choctaw Nation. This treaty, by its express terms, ceded to the Indians the same lands as were ceded to them in 1820 less the area receded to the United States in the treaty of 1825. The patent also described the same areas. Each described the land as running to Red River and down Red River. In other words, the river was the boundary. The cession of 1820 was in terms of present grant and undoubtedly vested the Indians with as perfect a title as that recognized and upheld by the Supreme Court in the case of New York Indians v. United States (170 U.S. 1). See also Choctaw Nation v. United States (119 U.S. 1); Fleming v. McCurtain (215 U.S. 56).

    The Choctaw Nation gained no new lands under the treaty of 1830, but instead secured a conveyance of title by patent and many rights incident to an autonomous form of government as well as undertakings relative to the lands ceded by them east of the Mississippi River. These appear to have been
 


 

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the considerations for the giving up by the Choctaws of all said lands east of the Mississippi River.

    The area in question was occupied by the Choctaw Nation, which appears to have included the Chickasaws, and, on January 17, 1837, a treaty (11 Stat. 573) was made between the Choctaw and Chickasaw Tribes in which for considerations therein set forth the Choctaw Nation agreed to set aside for the Chickasaws a district out of the westerly part of the tract ceded and patented to the Choctaw Nation. The United States had no interest in this treaty except to supervise and give approval thereto as an incident to its guardianship of the Indians. The proposed district was described as one beginning "at a point on the north bank of Red River, going north by varying courses to the Canadian Fork, thence to the source of the Canadian Fork, and due south to Red River and down Red River," etc. The thing to be especially noted in this respect is that, while the reference is to the northern bank of the river, that limitation, if it in fact excluded the Chickasaws from ownership of the bed of the river, would have left such ownership in the Choctaw Nation and in nowise revested the United States with any ownership therein.

    The treaty of 1855, while providing in section 21 that it should supersede all previous treaties as to matters inconsistent with the provisions of said treaty of 1855, expressly states its purpose to be to embody "in one comprehensive instrument" all subsisting treaty stipulations between the United States and the Choctaw Indians. The land described, which, according to article 1 of the treaty "shall constitute and remain the Choctaw and Chickasaw country," is the same area as that originally ceded to the Choctaws by the treaty of 1820, save in so far as it was diminished by recessions to the United States, and carries a relinquishment of claim to lands west of the 100th meridian, which lands, although described in the earlier cessions and treaties, were, in fact, outside the territorial limits of the United States at the time said grants were made. The Chickasaw district was, in fact, created by the treaty of 1855, but, as heretofore pointed out, said district was carved out of lands concededly belonging to the Choctaw Nation, and the terminology employed in describing the Chickasaw district has no direct bearing upon the question of ownership by the United States of lands in the bed of Red River.

    It seems unnecessary fully to analyze the treaty of 1855, however, since the Supreme Court has repeatedly recognized the earlier cessions as the source of Choctaw title. In Choctaw Nation v. United States, supra, the purpose of the treaty of June 22, 1855, was fully considered, and the history of the Choctaw title and subsequent treaties was set forth in detail. Again, in Fleming v. McCurtain, supra, and Choctaw v. Trapp (224 U.S. 665), the existence of a title in the Choctaws and Chickasaws prior to the treaty of 1855 was expressly recognized.

    The treaty of April 28, 1866 (14 Stat. 769), carried a recession to the United States by the Choctaws and Chickasaws of "a territory west of the 98th degree, west longitude, known as the leased district in consideration of the sum of $300,000." This district had been leased to the United States for the benefit of other Indians pursuant to the treaty of 1855, and it was apparently upon this title acquired by the United States under the treaty of April 28, 1866, that the Supreme Court found in Oklahomav. Texas (258 U.S. 574) that the United States, in creating the Kiowa, Comanche, and Apache Reservations under the treaty of 1867 (14 Stat. 581), had only divested itself of title to the lands "north of the main channel of Red River". The Court, in its opinion in that case, did not go behind the treaty of 1867.

    By the act of March 3, 1871 (16 Stat. 538), the Congress abolished treaties as a future method of contracting with the Indians and substituted agreements to be ratified by the Congress. At a later date, direct legislation was adopted.

    The Choctaws and Chickasaws are of the Five Civilized Tribes, each of which holds title under similar circumstances, and with whom, under the Atoka Agreement of April 23, 1897, arrangements were made for the allotment and patenting by the Tribes,of the lands owned by them to individual members of said tribes. Act of June 28, 1898 (30 Stat. 505); act of July 1, 1902 (32 Stat. 641). Since then many other acts of Congress, comprising a volume of 580 pages up to the year 1914 (Laws relating to the Five Civilized Tribes in Oklahoma Government Printing Office, 1915), with many additions since that date, have been passed.

    All these agreements and acts of Congress deal with the lands of the Indians as lands theretofore acquired by the Choctaws and Chickasaws, and nothing has been found in any of them indicating a surrender to the United States by these Indian Tribes, or by individual allottees, of such title as they acquired under or through the early cessions and patent as to lands in the bed of Red River. It follows, therefore, that since the original cessions and patent carried ownership of the bed of the
river, as an incident of ownership of riparian lands (a matter fully considered in the opinion of March 25, 1926), the Indians or their successors and not the United States, own the bed of Red River be-
 


 

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DECEMBER 28, 1926

tween the 98th meridian and the Arkansas boundary.

                                                                                                                                                      E. O. PATTERSON,

Solicitor.
Approved: December 24, 1926.
E. C. FINNEY, First Assistant Secretary.

SIOUX BENEFITS

M-20612                                                                                                                                  December 28, 1926.

The Honorable,
The Secretary of the Interior,

DEAR MR. SECRETARY:

    My opinion is requested on certain questions arising in connection with applications that have been made for Sioux benefits under provisos in section 17 of the act of March 2, 1889 (25 Stat. 888, 894-5), and other legislation. The pertinent provisions of that section are as follows:

    "That each head of family or single person over the age of eighteen years, who shall have or may hereafter take his or her allotment of land in severalty, shall be provided with two milch cows, one pair of oxens, with yoke and chain, or two mares and one set of harness in lieu of said oxen, yoke and chain, as the Secretary of the Interior may deem advisable, and they shall also receive one plow, one wagon, one harrow, one hoe, one axe, and one pitch fork, all suitable to the work they may have to do, and also fifty dollars in cash; to be expended under the direction of the Secretary of the Interior in aiding such Indians to erect a house and other buildings suitable for residence or the improvement of his allotment; * * *Provided, That after the Government has been reimbursed for the money expended for said Indians under the provisions of this act, * * *"
    The act of June 10, 1896 (29 Stat. 321-334), authorizes the payment of money to certain Indians in lieu of the articles of personal property mentioned in section 17 of the act of 1889, as follows:
    "The Secretary of the Interior is hereby authorized and directed to ascertain the number of Sioux and Ponca Indians in South Dakota and Nebraska who would not be benefited by the fulfillment of the proviso of section seventeen of an Act entitled 'An Act to divide a portion of the reservation of the Great Sioux Nation of Indians in Dakota into separate reservations and secure the relinquishment of the Indian title to the remainder, and for other purposes,' approved March second, eighteen hundred and eighty-nine, by the receipt from the United States of the articles of personal property therein mentioned and who desire to have the same converted into money, and in lieu of such articles of personal property, or any part thereof he may think proper, the Secretary of the Interior shall convert or commute the same, or so much thereof as he may think proper, into money, and pay the amount thereof to such Indians; and the payment under the provisions of this Act shall be a liquidation of the obligation of the United States to said Indians under that portion of said section seventeen, so far as the articles of personal property therein named are concerned."
    The present applications are by the heirs of deceased Indians who, it is alleged, had selected tracts of land for allotment in severalty during their lifetime but who died prior to the date their allotments were approved or trust patents issued. They are applying for the commuted value of the Sioux benefits to which they claim decedents were entitled. The list of the claimants is appended, and it is asserted that each of the persons whose names appear thereon was the head of family or single person over the age of 18 years. This is not shown, however, by the list itself nor by the record at hand. The only thing shown by the list in that respect is the dates of death and approval of allotments, except that in a few instances the date of the decedents' birth is also given.

    The position of the Department heretofore has been that a selection filed for or on behalf of a person entitled to an allotment during his lifetime under the acts of Congress authorizing allotment of Sioux Indian lands inures to the benefit of the heirs upon his death. (Charles Tackett, 40 L.D. 4.) On the contrary, it has been held that where one entitled to allotment dies without an allotment, having been made or selection filed by him or in his behalf, the right perishes with him, and his heirs are not entitled to an allotment based upon his right. (Dallas Shaw, 40 L.D. 9; Instructions, 42 L.D. 446; John Gassman, 42 L.D. 582.) The Tackett case was based on instructions (14 L.D. 463), and the case of Florence May Ree (17 L.D. 142), it being held in the former case that where a selection of land has been received under the provisions of the act of 1889 and there are no prior valid claims thereto, the same should be duly allotted,
 


 

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and in case of the death of the allottee prior to approval, patent should issue as required in section 8 of the act. In the Gassman case it was held:

    * * * in order to initiate such right to allotment as can be confirmed to the heirs after death, application must have been made or a selection filed with some officer of the Indian Service authorized or directed to make allotments. If selection has thus regularly been made by or for a person in being, so that nothing remains but the scheduling and approval of the described selection, then a right is initiated and secured which can be confirmed for the benefit of the heirs."
    It is contended in behalf of the applicants herein that the right to receive Sioux benefits "attaches as an incident to the taking of an allotment;" that "selection and recording of an allotment creates in the allottee a vested right and that the issuance of the trust patent is purely a ministerial act," which "relates back to and attaches to the land as of the date of selection and recording."

    The act of 1889 in section 8 thereof authorizes an allotment of land in severalty to "each head of family," "each single person over eighteen years of age," "each orphan child under eighteen years of age," and "each other person under eighteen years now living or who may be born prior to the date of the order of the President directing an allotment of lands * * *." It is further provided in section 9 of the act that the allotment set apart under the provisions thereof "shall be selected by the Indians, head of families selecting for their minor children, and the agents shall select for each orphan child * * * ." It is apparent, therefore, that the mere fact of a selection of land in allotment is not proof in itself that the person was at the time the head of family or single person over 18 years of age. Only the general statement is made that the applicants in question were heads of families or single persons over the age of 18 years without specifically showing that any or all of them have that status. Nor is it shown at what date the alleged status existed, whether at date of selection, death of the person for whom selection was made, approval of the allotment, or issuance of trust patent, factors that must necessarily have a bearing in determining the right to Sioux benefits. Assuming, however, for the purposes of this opinion and review of the situation generally, that the assertions made in support of the present applicants as to head of family, age, etc., are well founded, the fact remains that the true test that must be applied in determining rights to Sioux benefits is contained in section 17 of the act of 1889, which expressly limits allotment of personal property or benefits to only two of the classes enumerated in said section 8,as follows:

    "Each head of family or single person over the age of eighteen years, who shall have or may hereafter take his or her allotment in severalty."
    The first contention above of course depends upon what is meant by the words in the act "take his or her allotment in severalty." It is not made to appear, and can not be assumed, that this language was intended to have any different meaning than the words "to whom such allotment shall have been made, used in other portions of the same act. The Department and the courts in construing language in the general allotment act of February 8, 1887 (24 Stat. 388), identical with the latter quotation, have held that an allotment is not "made" until the issuance of trust patents. (Klamath allotments, 38 L.D. 559; United States v. Reynolds, 250 U.S. 104.) It was held in the case of Florence May Ree, supra, referring to the Sioux act of March 2, 1889 (25 Stat. 888): "The provisions of said act of 1889 are the same as to the matter under consideration as those of the general allotment act of February 8, 1887 (24 Stat. 388), and the same rule should govern under both acts." The fact is that the provisions of sections 2 and 5 of the general allotment act of 1887 were carried into sections 8 and 9 of the Sioux act of 1889. Furthermore, the Reynolds case was on appeal from decision of the lower court which held that under section 5 of the act of 1887 the right of an allottee to trust patent becomes absolute upon approval of the allotment by the Secretary of the Interior and that equitable title is then complete. After referring to several cases, among them being that of Ballenger v. Frost (216 U.S. 240), under the particular circumstances of which case it was held the allottee's right had become fixed, the Secretary thereafter having nothing but the ministerial duty to perform of seeing that the patent was duly executed and delivered, the Supreme Court said:
    "The rule established by these cases is familiar. But we do not think it can be applied so as to give finality to the act of the Secretary in approving the allotment under section 5 of the act of 1887. * * * we have reached the conclusion that by the better construction the trust period begins and dates from the issuance of the trust patent and not from the approval of the allotment. * * *
 

 

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DECEMBER 28, 1926

    This construction of the Act of 1887 puts it in agreement with other acts for the allotment of Indian lands, which, while subsequently passed and perhaps not strictly to be regarded as a legislative interpretation, nevertheless seem to us to indicate the effect that Congress attributed to the Act of 1887."

    The primary object in view in granting benefits is indicated by the provisions of the act of 1889, which was as the act says, for the purpose of aiding the allottee to erect buildings and otherwise improve his allotment. Clearly the Secretary of the Interior would not be justified in allowing benefits to begin prior to the time he has an allotment. As to the right of heirs, the act of 1889 provided in section 11 thereof, following the language in section 5 of the general allotment act of 1887:
    "That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue there for in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted for the period of 25 years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs * * * "
    Neither the act of 1889 granting benefits nor the amendatory act of 1896 authorizing the payment of money in lieu of benefits provides that the right thereto shall descend to the heirs of a deceased allottee.

    The foregoing is far short of establishing a rule that the Indian by a mere selection of a tract of land for allotment thereby secures a vested right; on the contrary, it fairly shows an opposite or different rule. The fact is that the practice has been to withhold benefits upon a mere selection until approval of the allotment, for the obvious reason that the selection might never be approved. If the Indian at the time of his death was not the head of family nor single person over the age of 18 years, he, of course, under the law was not entitled to benefits, nor would his heirs be so entitled. If the Indian at the time of his death was the head of family or single person over the age of 18 years, but his allotment selection had not been approved, his heirs are not entitled to the benefits he would have received had his death not occurred prior to the approval of the allotment. In case of allotment selections by minors they must be alive on the date they become 18 years of age, to be entitled to benefits.

    The Department on August 5, 1909, following the existing practice, took the position that the heirs of deceased allottees were entitled to Sioux benefits or the cash in lieu thereof, to which the deceased allotteeswould have been entitled had they continued to live. The correctness of the position so taken must rest upon a very liberal construction of the language and purpose of the act. Beyond this no extension of the rule could be justified.

    In decision of May 18, 1911, the Department held that an allottee within the meaning of section 17 of the Sioux act of 1889, and the amendatory act of 1896 is one whose allotment has been approved by the Department. That decision was responsive to a number of questions submitted by the Commissioner of Indian Affairs relating to the benefits provided for in said acts. Among other things it was said:

    "In case of the benefits contemplated by the act of March 2, 1889, it would not be safe or justifiable to furnish the same upon mere application or selection; as the allotment applied for or selected might never be approved * * *; one to be entitled to these benefits must have the status of a recognized allottee that is, his application for allotment must be an approved one, and he must at the same time be either the head of a family or a single person over the age of 18 years."
    The amendatory act of 1896 authorizes the Secretary of the Interior to commute the articles of personal property provided under section 17 of the act of 1889, or such part as he may think proper, into money, in cases where it is shown that the Indians "would not be benefited" by receiving the property. It thus appears that it must first be ascertained, before the benefits are furnished, whether or not the Indian comes within the statute. Where the Indian dies without having applied for benefits it does not necessarily follow that even though he had continued to live it would have been found that he "would not be benefited" by receiving the personal property and therefore entitled to commutation under the act of 1896. The right to these benefits does not accrue until the allotment has been approved. The ancestors of the heirs whose applications are now presented were not in being when allotments were approved in their names, nor were applications made by them for benefits prior to their deaths. Even if applications had been made they could not have been allowed as at the time of their deaths their allotments had not been approved. Furthermore, the heirs herein themselves, if any or all of them are
 


 

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DECEMBER 28, 1926

allottees, may be entitled to benefits in their own right, to also furnish them the benefits to which their ancestors might have been entitled had they continued to live would have amounted to the payment of double benefits. It is a serious question whether it was intended by Congress to impose such a burden upon the Indians as a whole from whose common fund the benefits must ultimately be paid. Every indication is that these benefits were intended to be personal in their nature and that the object of furnishing them to the allottees was for the purpose, as the act says, in aiding them in cultivating and improving the lands held by them in "severalty," This is borne out by the fact that such benefits are confined to "each head of family or single person over the age of 18 years."

    As to the effect of selecting and listing allotment selections, see the case of LaRoque v. United States (239 U.S. 62, 66), where the court said:

    "As calling for a different construction of the Nelson Act the defendant relies upon the provision for a census of the Indians and upon the report of the negotiations with them resulting in the cession contemplated by the act, the contentions advanced being that the provision for a census makes it clear that the census when completed was to be accepted as finally determining who were to receive allotments, and that the report of the negotiations shows that the Indians gave their assent to the cession in the belief that the right to select and receive an allotment would not be terminated by death but would pass to the heirs of the deceased. We are unable to assent to either contention. While the act directed that a census be made 'for the purpose,' among others, 'of making the allotments' contemplated, we think this meant nothing more than that the census should serve as a preliminary guide in ascertaining to whom allotments should be made. There was no direction that it be treated as controlling-or that allotments be made to all whose names appeared therein or only to them. * * *"
    The Tackett and allied cases relied upon by the present applicants necessarily carry the implication that a selection filed prior to the Indian's death saves the allotment right for the benefit of his heirs only in the event that he is subsequently found in all respects entitled to an allotment, as the mere listing of the selection can not possibly in itself create a descendible right.

    As to the contention that the filing of an allotment selection creates a vested right, it was held in the case of Woodbury v. United States (170 Fed. 302, 305):

    "Until the allotment was made, Woodbury's right was personal-a mere float-giving him no right to any specific property. This right, from its nature, would not ,descend to his heirs. They, as members of the tribe, were severally entitled to their allotments in their own right. To grant them the right of their ancestor, in addition to their personal right, would give them an unfair share of the tribal lands. The motive underlying such statutes forbids such a construction. As the learned United States attorney says, in his able brief:

    'It is well to remember that these Indian laws were not enacted merely to create property rights for the enrichment of Indian families. They were designed to operate on the individual Indian in his lifetime, to the end that they might mold and shape his life and habits somewhat after the manner and ways of civilization.' "

    See also Clay v. United States (282 Fed. 268). The courts have frequently had occasion to pass on the question of the estate an Indian allottee has prior to the issuance of patent, taking the position that prior to final or fee patent the most the Indian has under any circumstances is an equitable right.

    It appears that where an Indian after his allotment has been approved, applies for benefits, but dies either prior to receiving the articles of personal property enumerated in the act of 1889, or the payment in cash in lieu of such property under the act of 1896, the right thereto becomes an asset of his estate (21 Comp. Dec. 806; see also 2 Comp. Gen. 13).

    While no occasion is seen for disturbing the existing practice in the matter of allotment selections, nevertheless if the same or a similar rule were strictly applied to benefits that prevail in respect of allotments on which they are based, there is serious question as to whether in the absence of an application for such benefits prior to death, the right thereto is not thereby terminated just as in the case of the allotment right itself.

    My opinion is that the heirs herein who are applying for the commuted value of the benefits which they claim became due them upon the death of their ancestors, are not entitled to the same.

                                                                                                                                                      E. O. PATTERSON,

                                            Solicitor.

Approved: December 28, 1926.
JOHN H. EDWARDS, Assistant Secretary.
 


 

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OPINIONS OF THE SOLICITOR

JANUARY 8, 1927

CHIPPEWA-BACK ANNUITY CLAIMS

M-15954                                                                                                                                                     January 8, 1927.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested on the question of the rights of certain persons to share in the distribution of the interest accruing upon and of the principal of the funds arising under the act of January 14, 1889 (25 Stat. 642), entitled "An act for the relief and civilization of the Chippewa Indians in the State of Minnesota."

    The question arises in connection with an application filed by Mrs. Jane B. Andrews under the act of April 14, 1924 (43 Stat. 95), entitled "An act to provide for the payment of claims of Chippewa Indians of Minnesota for back annuities."

    The family history of Mrs. Andrews is set out in the case of Oakes v. United States (172 Fed. 305), decision in which was rendered in 1909, construing the provisions of the act of January 14, 1889 (25 Stat. 642). She is a descendant of Margaret Beaulieu, a full-blood Minnesota Chippewa, who was enrolled and recognized as a member of that tribe and was living upon the tribal reservation at White Earth at the time of her death. The grandmother of Mrs. Andrews was Julia B. Beaulieu, the daughter of Margaret Beaulieu who was born a member of the same tribe and was enrolled and recognized as such until 1849. In 1829, Julia B. Beaulieu married a white man by the name of Oakes and they lived in the Chippewa country until 1849. In that year they moved to Ft. Ripley on the Mississippi, and the next year to St. Paul, where the husband, Mr. Oakes was engaged in the banking business until the time of his death in 1879. The mother of Mrs. Andrews was Jane B. Jones, a daughter of Mrs. Oakes, who was born in the Chippewa country and was enrolled and recognized as a member of the tribe until 1849, when her parents took her to Ft. Ripley and then to St. Paul. Mrs. Jones was married twice, each time to a white man. Mrs. Andrews is a daughter of Mrs. Jones by her first husband whose name was Van Etten and was born and reared in St. Paul. She was never enrolled or recognized as a member of the tribe, and was also married to a white man. As stated by the court in the Oakes case: "After the Oakes family moved to St. Paul, Mrs. Oakes and Mrs. Jones, abandoned their former tribal relations, adopted the customs, habits and manners of civilized life and ceased to be recognized as members of the tribe."

    The members of the above family, with the exception of the great-grandmother, Margaret Beaulieu, were all residents of St. Paul, when the act of January 14, 1889, was passed. Margaret Beaulieu, the mother of Mrs. Oakes, died in 1877, which was long prior to the passage of said act of 1889. The names of Mrs. Oakes and Mrs. Jones were placed upon a supplemental roll in 1894, but were dropped therefrom the next year. In 1905, they applied for allotments of specific lands, but their applications were denied. Thereupon, they commenced suit in the Circuit Court of the United States, District of Minnesota, asserting that they were entitled to have allotted to them certain lands on the White Earth reservation, but that their applications had been unlawfully denied. The court found that none of the applicants came within the terms of the act of 1889. They then appealed to the Circuit Court of Appeals, Eighth Circuit (Oakes v. United States, 172 Fed. 305). Before applying for allotments Mrs. Oakes and Mrs. Jones took up their residence on the White Earth reservation. In the Oakes case the court said: "Whether or not Mrs. Andrews and Mrs. Bent also a daughter of Mrs. Jones did likewise may be left undetermined because if they did, it would not help them as will be seen presently."

    Broadly speaking, the act of 1889, known as the Nelson act, provided for the cession by "all the different bands or tribes of Chippewa Indians in the State of Minnesota" of all their title and interest in and to their reservations in said State not needed for allotments; for allotments of land in severalty in conformity with the act of February 8, 1887 (24 Stat. 388), and for the sale of the remaining lands. The money thus accruing after deducting expenses was to be placed in the Treasury of the United States to the credit of "all the Chippewa Indians in the State of Minnesota" as a permanent fund to draw interest at the rate of five percentum per annum for fifty years, such interest and permanent fund to be expended as follows:

    One-half of said interest shall, during the said period of fifty years, except in the cases hereinafter otherwise provided, be annually paid in cash in equal shares to the heads of families and guardians of orphan minors for their use; and one-fourth of said interest shall, during the same period and with the like exception be annually paid in cash in equal shares per capita to all other classes of said Indians; and the remaining one-fourth of said interest shall, during the said period of fifty years, under the direction of the Secretary of the Interior, be devoted exclusively to the establishment and maintenance of a system of

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