Home

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OPINIONS OF THE SOLICITOR

OCTOBER 29, 1957

matters affecting their respective tribes. However, the only legal duty which these tribal officers have under the statute is to execute such deeds of conveyance or leases which the Secretary of the Interior may present to them.

    Congress by section 28 of the act of April 26, 1906, supra, provided that no act, ordinance or resolution except resolutions of adjournment of the tribal council or the legislature of any of said Five Tribes or nations would be of any validity until approved by the President of the United States. The act of March 3, 1909 (35 Stat. 781, 805), provided compensation for tribal councils for the length of time authorized by the Secretary of the Interior.

    The only legal authority remaining in the Seminole General Council is found in the act of April 27, 1932 (47 Stat. 140), which provides that the remaining tribal lands of the Seminole Nation can not be disposed of under existing law without the approval of the General Council.

    In summation, the duties of the Principal Chief are confined to the execution of deeds of conveyance or leases submitted to him by the Secretary of the Interior. The remaining tribal lands of the Seminole Nation cannot be disposed of by the Secretary of the Interior under existing law without the approval of the General Council.

    Administratively, of course, your office can consult with the Principal Chief and the General Council if you so desire, but their respective legal duties are indicated above.

    In answer to your question, mentioned in the first paragraph herein, as to whether the lease dated December 1, 1952, signed by Mr. Marcy Gully, should be re-executed, it is our opinion that the lease is valid and therefore re-execution is not necessary.

    Former Assistant Secretary Lewis, on November 2, 1954, revoked Mr. Cully's appointment as Principal Chief effective as of the beginning of his term, November 20, 1952. This action was based upon an investigation and a decision that the appointment had been obtained by misrepresentation as to action taken by the General Council of the Seminole Nation with respect to endorsement of Mr. Cully for appointment.

    Notwithstanding the revocation of Mr. Gully's appolintment, he was de facto Principal Chief of the Seminole Nation at the time the lease in question was signed by him on the first day of December 1952, as well as on May 8, 1953, the date the lease was approved in the Department of the Interior. The lease is valid and therefore re-execution is not necessary.

    A de facto officer is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. Waterman v. Chicago and I. R. Company, 139 III. 658; 15 L.R.A. 418. The law validates the acts of de facto officers as to the public and third persons on the ground that, although not officers de jure, they are, in virtue of the particular circumstances, officers in fact whose acts public policy requires should be considered valid. Sawyer v. State, 94 Fla. 60, citing R.C.L.; Powers v. Commissioner, 110 Ken. 386; 53 L.R.A. 245.

    Although not necessary for a decision as to the validity of the lease under consideration, it is noted that the portion of the act of April 26, 1906, quoted in the third paragraph of this memorandum, contains a provision to the effect that if the Principal Chief fails, refuses or neglects for a certain period after notice to execute an instrument, then approval by the Secretary of the Interior and recordation shall convey legal title. The lease bearing signatures of Mr. Cully as Principal Chief and R. E. Minnis, Jr., as lessee, was approved on May 8, 1953, by the Chief, Branch of Land, Bureau of Indian Affairs, under authority delegated by Secretarial Order No. 2508.

    The record shows that the General Council of the Seminole Nation at a meeting on April 2, 1955, reaffirmed said lease and a report from Area Director Fickinger, dated August 7, 1957, shows the lease in a producing status as of that date.

    In our opinion there is no question as to the validity of the lease discussed above.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

AUTHORITY OF SEMINOLE TRIBE OF OKLAHOMA
TO BORROW MONEY AND PLEDGE ASSETS AS
SECURITY FOR LOAN FROM REVOLVING FUND

M-36482                                                                                                                         October 29, 1957.

Indian Tribes: Fiscal Matters

The act of May 7, 1948, 25 U.S.C. 482, authorized loans to tribes, bands, groups and individual Indians. The Seminole Tribe of Oklahoma is recognized by the Department of the Interior as a tribal entity and should be considered eligible for a loan from the revolving fund.

Indian Tribes: Tribal Personalty: Alienation

There appears to be no clear-cut authority for the general council of the Seminole Tribe of Oklahoma to act independently, on behalf of the tribe, in matters involving the pledging of tribal


 

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assets as security for a loan to the tribe. To bind the tribe in such matters, the general council must act in conjunction with the Principal Chief.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority of Seminole Tribe of Oklahoma to borrow money and pledge
                 assets as security for loan from revolving fund.

    Your memorandum dated July 3, 1957, contained a request for my opinion on whether or not the Seminole Tribe of Oklahoma, as presently organized, has authority to borrow money from the revolving fund established by the acts of June 18, 1934 (25 U.S.C. 470) and June 26, 1936 (25 U.S.C. 506), and subsequently modified by the act of May 7, 1948 (25 U.S.C. 482); and if the tribe becomes obligated for such a loan is there authority for the pledging of tribal assets as security therefore.

    The Field Solicitor at Muskogee, Oklahoma, has already given a preliminary opinion on this matter. In a memorandum of March 19, 1957, he states:

    "The Seminole Tribe may, under statutory provisions and the regulations of the Secretary of the Interior, participate in the revolving credit funds of the Department of the Interior without organization or incorporation. *     *     * "

I concur with his opinion. The act of May 7, 1948, supra, authorized loans to tribes, band, groups and individual Indians. The Seminole Tribe of Oklahoma is recognized by the Department as a tribal entity, and should be considered eligible for a loan from the revolving fund.

    A second point which was submitted for our determination is the question of who may represent the tribe in making application and pledging tribal assets as security for such a loan.

    Provisions for the termination of Seminole tribal government were made under section 8 of the act of March 3, 1903, 32 Stat. 982, 1008. However, it was thereafter deemed necessary to continue the tribal existence until all property held by the tribe was distributed, and legislation was enacted (act of April 26, 1906, 34 Stat. 137, 148) which provided that "the tribal existence and present tribal governments" of the Five Civilized Tribes were to be continued in full force and effect for all purposes authorized by law until otherwise provided by law.

    The tribal lands of the Seminoles were reduced by allotment and sale until only 320 acres now remain. The Bureau issued instructions for the appraisal and sale of this property in 1931. In a memorandum dated February 26, 1932, the Commissioner of Indian Affairs directed that conveyances of Seminole land required the signature of the Principal Chief. It was stated in that memorandum:

    "It will be observed that the consent of the Seminole Tribe is already provided for by existing statute [act of April 26, 1906, supra] in the only way such consent can be had with any substantiation in law. There is no sanction of law for any tribal council, or for any group of Seminole Indians, to act for the tribe or nation in such matters."

    The proposed sale of the Mekusukey lands was sharply resisted by the Indians and the plans for disposal were dropped. The antagonistic reaction of the Seminole Indians was so strong that they were able to secure passage of the act of April 27, 1932, 47 Stat. 140, which provides:

    "That hereafter the Secretary of the Interior shall not sell, lease, encumber, or in any manner dispose of, any land or any interest in land belonging to the Seminole Tribe or Nation in Oklahoma or reserved for the benefit of such tribe, except with the approval of the Seminole Tribe or Nation acting through its general council selected in pursuance of Seminole customs."

    House Report 766, 72d Congress 1st Session, p. 2, outlined the purpose of this legislation and presented a clear indication of the fact that Congress recognized a Seminole tribal council capable of acting for and on behalf of the Seminole tribe. It was said in that report:

    "This tribe has, through its residence in Oklahoma and does now, maintain a strong tribal government. The Indians (not counting the freedmen-negroes) are divided into 12 bands, each of which elects a band chief and two band councilmen. These chiefs and councilmen meet annually and constitute the general council, and that body each four years elects a chief of the Seminole Tribe *     *     *.

    "The purpose of the bill HR 10362 is to make certain that the Mekusukey land will not be sold and conveyed away as was the Emahaka land without the consent of the Seminole Tribe acting through its general council."

    In my opinion there is adequate authority in statutes and tribal custom for recognition of certain actions by the general council of the Seminole Nation, viz, consent to sale of land. With regard to


 

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the pledging of tribal assets as security for a loan, however, there appears to be no clear-cut authority for the tribal council to act independently on behalf of the tribe. I believe that to bind the Seminole Tribe in such matters, the general council must act in conjunction with the Principal Chief. See Solicitor's Opinion M-36471, Authority of Principal Chief of Seminole Indian Nation and the General Council of the Seminole Indian Nation under Pertinent Acts of Congress (August 29, 1957).

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

REVOCATION OF LOCAL OPTION TO BAN
LIQUOR--INDIAN LIQUOR LAW ACT OF
AUGUST 15, 1953

M-36447                                                                                                                     November 6, 1957.

Indian Tribes: Tribal Government--Indians: Law and Order

An Indian tribe having voted its preference to have a "dry reservation" under the local option clause of the Act of August 15, 1953 (67 Stat. 586), has not necessarily committed itself irrevocably, but may later suspend the application of the federal Indian liquor laws by duly adopted ordinance certified by the Secretary of the Interior and published in the Federal Register.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of "Local Option" clause of repeal of Indian Liquor Law
                 Act of August 15, 1953 (67 Stat. 586).

    This refers to your memorandum of January 28, 1957, and that of the Field Solicitor, dated January 14, 1957, in which the opinion of this office was requested on the question of whether a tribe having once voted its preference to have a "dry reservation," under the local option clause of the act cited above, has committed itself irrevocably and cannot thereafter adopt the contrary course of permitting and licensing the sales of intoxicating liquor on its reservation.

    The part of the act of August 15, 1953, supra, which is pertinent here provides:

    "Sec. 2. Title 18, United States Code, is hereby further amended by inserting in chapter 53 thereof immediately after section 1160 a new section, to be designated as section 1161, as follows:

        " '1161. Application of Indian liquor laws

        " 'The provisions of section 1154, 1156, 3113, 3488, and 3618 of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.' "

    The Field Solicitor has suggested that this question may be answered affirmatively, for he states:

    "*     *     * the analogy occurs to us of the provision of the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, extending the option to Indian tribes to accept or reject the provisions of said Act. It is our understanding that action by a Tribe either accepting or rejecting has been held irrevocable, though not specifically so provided."

    The provision referred to in the act of June 18, 1934, supra, is as follows:

    "Section 18. This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice."

    After comparing the language used in the two acts, supra, we are not impressed with any compulsion to accept the analogy submitted. The 1934 act provides that the Indians vote on acceptance of the provision of the act at a special election duly called within a certain period of time. In Solicitor's Opinion M-27810, December 18, 1934, it was held that the tribe was not limited to a single election provided the elections occurred within the time provided by law. After that time the status of the several tribes with respect to the application of Indian Reorganization Act to their property and affairs was permanently fixed. The 1953 act was aimed at an entirely different objective. The act of August 15, 1953, contains no such limiting provision. As its title clearly states it was designed to eliminate discriminatory legislation against the In-


 

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dians. This is accomplished by extending to each tribe the authority to suspend the application of the Federal liquor laws to the area under its jurisdiction. The choice in each instance is with the tribe, subject only to such limitations as are prescribed by the 1953 act itself. This concept of self determination is inconsistent with the suggestion that a tribe, by a single ordinance thereby necessarily exhausts its authority. It was pointed out in an earlier opinion (M-36241, Sept. 22, 1954) that the tribes have broad latitude under the 1953 act to regulate liquor transactions.

    In our view of the matter, the 1953 act affords continuing permission to the tribes to suspend the application of the Federal Indian liquor laws. Thus, although a tribe has voted "dry" it may thereafter exercise the option of self-determination by enacting a subsequent ordinance pursuant to authority provided under the 1953 act.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

DISPOSAL OF SURPLUS LAND AND BUILDINGS AT
CELILO FALLS, OREGON

                                                                                                                                    November 18, 1957.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Disposal of surplus land and buildings at Celilo Falls, Oregon

    A question has been raised as to whether certain lands and fish drying sheds located thereon can be sold under authority of 25 U.S.C. 293 or 294, or whether additional legislation will be required to effect such conveyance.

    The land in question was purchased with funds appropriated under the Act of July 27, 1947, 61 Stat. 460, 466, and title is held by the United States in trust for the Yakima, Umatilla, Confederated Tribes of Warm Springs, and other Columbia River Indians affiliated with the aforementioned tribes. The tract, comprising 30.6 acres more or less, is apparently unsuitable for continuance of the purpose for which it was acquired, because the closure of the Dalles Dam has resulted in a curtailment of fishing activity at this spot.

    Section 293 of Title 25 U.S. Code provides authority for sales of land purchased by the United States for day school or other Indian administrative uses "when the land is no longer needed for the original purpose." Sales under authority of this act are limited to 160 acres or less and are made subject to applicable regulations under the Federal Property and Administrative Services Act of 1949 by the Secretary of the Interior. Although section 293 specifies only sales of land, such authority, if applicable, may be construed as extending to buildings located thereon. Cf. Sol. Op. M-27671, March 1, 1934.

    Section 293 further provides that the proceeds of any sale must be credited into the United States Treasury; where the purchase price of the land to be paid was paid from tribal funds, proceeds of such sale shall be placed in the Treasury to the credit of the respective tribes of Indians. The purchase price in this case was appropriated by Congress rather than from the funds of any of the named tribes. However, it is clear that the lands purchased were to be held in trust for the named tribes and affiliated Columbia River Indians who were "entitled to enjoy fishing rights at their old and accustomed fishing sites at or in the vicinity of Celilo Falls on the Columbia River." It is not possible for this office to determine conclusively the rights and interests with respect to this tract of land at the present time.

    Another question which must be resolved, with respect to an application of section 293, is whether title taken in trust for certain named tribes can be disposed of without obtaining the consent of those Indians having a beneficial interest in the property.

    We think that the Secretary or his delegated representative cannot proceed under this statute without obtaining consent particularly from interested tribes organized under the Act of June 18, 1934, 25 U.S.C. 476. The Confederated Warm Springs Indians are such a tribe.

    Although it might be argued that fish drying sheds are analogous to barracks, warehouses and other buildings ordinarily classed as "agency buildings," it is believed that section 294 of Title 25 U.S. Code is not applicable in this instance. Section 294 provides authority for the sale of "any abandoned agency buildings situated on lands belonging to any Indian tribe and no longer needed for Indian or administrative purposes." At the outset it appears that the buildings are not abandoned; on the contrary, each of the drying sheds is constructed with living quarters for several families who appear to be presently occupying space assigned to them.

    In addition to the code sections discussed above the applicability of a third section, 25 U.S.C. 190, recommended by the field solicitor might well be considered. Section 190 provided authority for sales of government or tribal non-reservation as well as reservation tracts of 40 acres or less not needed for allotment where the value of the property does not exceed $2,000.00, and small unallotted tracts no exceeding 40 acres where the sale will serve the


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 6, 1957

tribal interests. The amount paid for the land in question at the time of purchase (1947) was $2,000.00. However, the records do not indicate the current value of the land, and it is believed that this information, as well as a finding that a sale will serve the tribal interests, is required before any further action is taken under section 190.

    In conclusion, it is our opinion that neither section 190 nor 293 can be regarded as providing clear authority for the requested disposition even if the proper findings required by each could be made. The equitable interests in this property are not clearly set forth in the deed, and we foresee difficulty in crediting the proceeds of a sale under either section to the various owners. Therefore, it is recommended that appropriate legislation be sought to provide for the manner in which the disposition of the property may be accomplished and to direct the proper crediting of the proceeds derived there from.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

STATUS OF OZETTE RESERVATION, WASHINGTON

64 I.D. 435

M-36456                                                                                                                     November 21, 1957.

Indian Lands: Tribal Lands: Alienation

An Executive Order reservation withdrawal from the public domain "For the Ozette Indians not now residing upon any Indian reservation" may be revoked if in fact there are no longer any living Indians identifiable as members of the Ozette tribe. In such case, the equitable estates merge in the United States and the trust is terminated.

Indian Tribes: Reservations

Descendants of Ozette Indians who abandoned the reservation relinquished all rights thereon when they did not return to cast their votes to determine the future of the reservation lands when the election was held in 1935. It is believed that all those persons desiring to preserve a tribal relationship cast their votes in similar elections as residents of other reservations.

Indian Tribes: Reservations

The mere fact that the Ozettes were historically a branch or part of the Makah tribe does not give the Makah tribe any rights to the Ozette reservation.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Status of Ozette Reservation, Washington

    You have requested my opinion on questions relating to the disposal of approximately 719 acres of land comprising the Ozette Indian Reservation, Washington. This reservation was created by Executive Order in 1893 for the Ozette Indians not then residing upon any Indian reservation.

    At present, it is reported, there are no Indians residing on this reservation, although it appears that members of the Makah Tribe sometimes use the site for hunting, fishing and camping purposes. Since 1941, when the Makah Tribal Council passed a resolution (February 19, 1941) requesting the transfer of the reservation to the Makah Tribe, several plans for disposal of the Ozette reservation have been considered. One of these was presented by the Superintendent of the Olympic National Park who recommended that action be taken to hold the area for an addition to the Olympic Acquisition and to be administered as a part thereof in order to preserve sea run salmon and cutthroat trout. This proposal was subsequently considered by the Secretary of the Interior, who on December 9, 1941, decided that no further action should be taken at that time to add the reservation land to the park.

    In 1955 the Makah Tribal Council submitted for approval a resolution (No. 12, February 7, 1955) authorizing the expenditure of $1,000 of tribal funds for the construction of a hunting lodge on the Ozette location. Approval was denied on the ground that no tribal funds should be used to make improvements on land until the tribe was found to have an equitable interest in the land.

    There is now submitted for our consideration a petition wherein the Makah Indian Tribe has made a formal claim to the Ozette Indian Reservation. The petition requests the Commissioner "to set the reservation over to the Makah Indian Tribe, and make it a part of the Makah Indian Reservation." In support of its claim, the Makah Indian Tribe submits the argument that the Ozette Reservation "was created for Makah Indians living at Ozette Village, and those Indians were sometimes referred to and called Ozettes." The petition further states that over one-half of the Makahs on the tribal rolls today were either born at Ozette or are direct descendants of persons born at Ozette.

    The tract of land with which we are concerned is located near an old Indian fishing village at the mouth of the Ozette River. It was withdrawn from public entry and reserved for the Indians by Presi-


 

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DEPARTMENT OF THE INTERIOR

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dent Grover Cleveland on April 12, 1893, by Executive Order, which reads:

    "It is hereby ordered that the following described lands, situated and lying in the State of Washington, viz, commencing at Point Apot-Sloes (Indian name), on the ocean beach about one-half a mile north of the Indian village Ozette in Clallam County, said State; thence due east 1 mile; thence due south to the point of intersection with the southern boundary line of the said Indian village extended eastward, and the northern boundary line of Charley Weberhard's claim; thence due west to the Pacific Ocean; thence with the Pacific Ocean to the point of beginning, be, and the same are hereby, withdrawn from sale and settlement and set apart as a reservation for the Ozette Indians not now residing upon any Indian reservation: Provided, however, That any tract or tracts, if any, the title to which has passed out of the United States, or to which valid legal rights have attached under existing laws of the United States providing for the disposition of the public domain, are hereby accepted and excluded from the reservation hereby created."

    The lands involved here, as in the case entitled United States v. Santa Fe Pacific Railway Company, 314 U.S. 339, were a part of the ancestral home occupied by the Indian claimants. There were several fishing sites which had been used from time immemorial by the various bands of the Makah tribe. Such occupancy constitutes "Indian title." United States v. Shoshone Tribe, 304 U.S. 111; Mitchel v. United States, 9 Pet. 711. An examination of the treaty with the Makahs made January 31, 1855 (12 Stat. 939), clearly shows that the Ozette Indians were a part of the Makah Tribe. However, under Article 1 of the 1855 treaty, supra, the Makah Indians relinquished all their right, title and interest in and to the lands and country formerly occupied by them, for a designated tract of land set apart as the Makah Reservation. Likewise, all of the Ozettes who subsequently left the original fishing village as a result of the signing of this treaty, and removed to the Makah Reservation established under Article 2 thereof, relinquished any tribal claims which they might have maintained outside that reservation. Cf. United States v. Santa Fe Pacific Railway Company, supra, page 357. With this view, we here take a different position from that expressed on November 26, 1941, by the Chief Counsel of the Bureau of Indian Affairs in an informal memorandum opinion concerning the rights of Ozette Indians in the Ozette reservation. He then stated:

    "While an Indian, of course, is not entitled to an allotment with more than one tribe or on more than one reservation, yet these small village sites were never intended for allotment purposes, do not contain sufficient area to justify allotment in severalty and remain tribal property of the Indians formerly using or occupying those sites.

    "With this background, as I see it, the Ozette Reservation remains the tribal property of the Indians of this band who are mostly of Makah blood, as I understand it, and who equally have a right to participate in the disposition of the tribal asset at Ozette, if and when disposition is to be had, regardless of the fact that such Indians may have received allotments elsewhere as a Quinaielt or Makah."

    When the Ozette lands were recommitted to Indian occupancy by the Order of April 12, 1893, the recognizable right of use was accorded only to "Ozette Indians not now [1893] residing upon any Indian Reservation." The character of title acquired by these Indians in lands withdrawn for their benefit by the Executive Order was the same right to possess and occupy the lands for the purposes designated as was granted to other tribes by treaty. Spaulding v. Chandler, 160 U.S. 394, 402, 403.

    There is no doubt that the Executive Order has never been revoked or superseded by legislation extinguishing the rights of the Indians for whom the reservation was created. However, it now appears that there are no longer representatives of the class designated. The records show that all Indians enrolled as Ozettes are now deceased. Most of the families who occupied the reservation as a permanent residence, left the site about 1903 when, due to a lack of school facilities, the Government insisted that the young children go to school in Neah Bay. These children were subsequently enrolled in other tribes on the Makah reservation and elsewhere.

    On April 13, 1935, two Indians, constituting the total population remaining on the Ozette Reservation, voted to accept the provisions of the Indian Reorganization Act of June 18, 1931, and in doing so, they accepted the provisions of that portion of the act now codified as section 361 of Title 25. U.S.C.A., which provides that the land of the reservation should not thereafter be allotted in severalty. Since the land within the Ozette Reservation had not been allotted prior to acceptance of the Indian Reorganization Act, the entire beneficial interest was preserved for the tribal community or its successor, and not in any group of Indians individually. Therefore, no persons


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1957

other than members of an Ozette tribe can be recognized as having rights therein.

    Now, in answer to the specific questions you have presented, my opinion is as follows:

    1. Are there any classes of persons who could successfully exercise a valid claim to the Ozette Reservation?

    Indians organized as an Ozette Tribe, pursuant to the 1934 Act, could exercise a class claim to the Ozette Reservation. None of the Indians who now use the site of the Ozette Reservation, whether they be descendants of Ozette Indians or of other bands and tribes, are members of a recognized Ozette tribe. Therefore, no groups now in existence can be said to have such beneficial ownership right in the land as would be sufficient without further Act of Congress, to support a claim against the United States. See Sol. Op. M-36413, February 8, 1957.

    If in fact there are no living Indians identifiable as Ozettes, then the purposes of the trust under the Executive Order setting apart the Ozette Reservation have been fully carried out. The records of the Indian Bureau show that this is the situation. In such a case the entire legal and equitable estates merge in the United States (the trustor-trustee) and the trust is terminated, there being no one other than the trustee to whom the property could go by way of resulting trust or other theory. 54 Am. Jur. 86, 99. Quapaw Tribe et al. v. United States, 120 F. Supp. 283, 286.

    2. Does the Makah Tribe of Indians have an enforceable property or use claim to the lands or waters within the Ozette reservation?

    No. In my opinion, there are no outstanding enforceable Indian rights to the Ozette reservation. Descendants of Ozette Indians who abandoned the reservation relinquished all rights thereon when they did not return to cast their votes to determine the future of the reservation lands when the election was held in 1935. It is believed that all those persons desiring to preserve a tribal relationship cast their votes in similar elections as residents of other reservations. The mere fact that the Ozettes were historically a branch or part of the Makah Tribe does not give the Makah Tribe any rights to the Ozette reservation.

    3. If there is no person or organization which can exercise a valid claim to the reservation, what is the reservation's status? That is, is it, or can it become an Indian reservation, public domain, or "property" as defined in the General Services Act?

    The Ozette Reservation is and will continue to be an Indian reservation until returned to the public domain or otherwise disposed of by congressional action. It is axiomatic that a withdrawal of public lands by executive order does not terminate merely because the purpose of the order may have become obsolete. See Sol. Op. M-36078, May 16, 1951. The Order setting the Ozette Reservation apart for the use of a certain group of Indians, although possibly obsolete, is still in effect.

    Under the provisions of section 3 of the Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 471 et seq., which now governs the disposal of Government property, certain controlling definitions are given.

    "(d) The term 'property' means any interest in property of any kind except (1) the public domain (including lands withdrawn or reserved from the public domain in which the [General Services] Administrator, with the concurrence of the Secretary of the Interior, determines are suitable for return to the public domain for disposition under the general public land laws because such lands are not substantially changed in character by improvements) and lands reserved or dedicated for national forest or national park purposes; *     *     *"

    We understand that the character of the land has not been substantially changed by reason of improvements, therefore, the provisions for disposal contained in the Federal Property and Administrative Services Act of 1949 do not apply.

    It is our opinion that the Ozette reservation falls within exception (1) to the section quoted above, inasmuch as it was created by a withdrawal from the public domain. On revocation of the 1893 Order, the lands will be returned to the public domain for disposition or administration under the applicable public-land laws. For the reasons stated above in my opinion, returning these lands to the public domain is not contrary to the high standard of fair and honorable dealings required in Indian matters.

    4. In view of the act of March 3, 1927 (44 Stat. 1347; 25 U.S.C. 398d) can the reservation be disposed of by any means other than by an Act of Congress?

    I have considered section 4 of the act of March 3, 1927. supra, and believe it to be inapplicable to this situation. Section 4 must be read in context, and the act as a whole relates to the leasing of Executive Order Indian reservations for oil and gas mining purposes. The legislative history of the act shows that the language of section 4 was intended merely to provide a limitation on the enlargement of such reservations in accord with the prior act of June 30, 1919 (41 Stat. 3-34), which prohibited the further creation of extensive reservations except by act of Congress. Senate Rept. 1240, 69th Cong., 2d


 

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DEPARTMENT OF THE INTERIOR

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Sess. While a special act of Congress would be the most satisfactory method of handling this disposal, the withdrawal order may be revoked and disposal effected under public land laws.

    5. Can the Reservation be transferred to the National Park Service? If so, under what authority and condition?

    The Park Service has not recently renewed its request for this land, and as long as the 1893 Order is still in effect, we do not wish to undertake a consideration of whether the direction over these lands can be transferred to the National Park Service.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

TRIBAL GOVERNMENT OF THE RED LAKE
BAND OF CHIPPEWA INDIANS

M-36473                                                                                                                     November 22, 1957.

Indian Tribes: Tribal Government

Where an Indian tribal constitution provides for a hereditary chief system of government, a tribal council chosen by the hereditary chiefs is the only group which can be recognized as the legitimate tribal government.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Construction of the 1918 Constitution of the Red Lake Rand of Chippewa Indians

    There have arisen several questions as to the proper construction of various provisions of the Constitution of the Red Lake Band of Chippewa Indians and the further question as to which of two rival groups are the legitimate holders of the tribal power under their tribal constitution. From a legal point of view the difficulty in preparing an answer is increased by the inadequate draftsman ship of the Red Lake Constitution.

    The United States, through its Commissioner of Indian Affairs, has dealt with the Red Lake Hand of Chippewa Indians as a tribe or band and has, in effect, recognized the Constitution, which the band adopted April 13, 1918, as the document setting forth in writing their organizational relationships. The Bureau is under the handicap of attempting to work with the band through this inadequate document supplying deficiencies through research into the customs of the tribe.

    The document under consideration, in effect, continued a primitive non-representative form of government without any prescribed limitations on its powers or jurisdiction. The document must be read to place in the Tribal Council all the powers previously recognized as vested in the historical Indian band by its customary law insofar as these powers have not been subsequently withdrawn by treaty or statute. The band also may claim such powers as may be given to it from time to time by statute.

    Under the present constitution the Tribal Council consists of "the several chiefs of the Red Lake Reservation" and "five Indians appointed by each chief." Tribal custom must be relied upon to determine who is entitled to the title and responsibilities of "chief." It appears that the chiefs have been chosen on the aristocratic principle of inheritance by birth or adoption. There is nothing in the Constitution of the United States or acts of Congress which prescribes any particular form of government for an Indian tribe, and although the Bureau of Indian Affairs favors a democratic society with a representative government, the Bureau respects the privilege of Indians to perpetuate societies of their own making even where the type of government chosen is not necessarily representative in form.

    Your inquiry has presented four questions, all having to do with the interpretation of the 1918 Tribal Constitution of the Red Lake Band of Chippewa Indians, which we shall try to answer as follows:

    1. What interpretation should be placed on the provisions of the 1918 tribal constitution with respect to the organization and powers of the General Council?

    The "General Council" is the name of the organization or community of the Red Lake Band of Chippewa Indians. Care should be taken to distinguish the "General Council," which is the community itself, recognized by the Bureau of Indian Affairs as an Indian tribe, from the "Council" which is the body of members to which all the governmental powers of this community have been delegated by the 1918 constitution. This constitution gives the "General Council" no powers of government. As is shown in Article 2 of the 1918 constitution, the General Council's design is such as to place full and complete authority in the several chiefs of the Red Lake Indian Reservation and their appointees who constitute the "Council" of the Red Lake Band of Chippewa Indians.

    2. What interpretation should be placed on Article 2 of the tribal constitution relative


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 29, 1957

to the power to fill vacancies in the General Council?

    Construing your question to refer to the "Council" and not the "General Council," we interpret Article 2 to give the Chiefs, together with their appointees, power to fill any vacancies in the "Council." The members of the tribe as a whole appear to have no authority to fill vacancies under this constitution.

    3. What constitutes the rights and authority of the hereditary chiefs as contained in Article 6 of the tribal constitution to decide disputes as to chiefs?

    We interpret Article 6 to give to the "Council" the jurisdiction to decide disputes as to the proper choice of successor chiefs. It is believed that the "Council" will follow tribal custom in this matter and that the "Council" itself shall have the final say as to what the tribal custom is.

    4. Which in your opinion, is the properly constituted body to act as the General Council of the Red Lake Indians?

    It is understood that at the time the Red Lake Band of Chippewa Indians adopted their constitution, a hereditary system was, and had been for many years, recognized as the tribal custom. It must therefore be assumed that the reference to the chiefs in the Constitution contemplated a continuation of the tribal custom with respect to recognition of a person as a chief. Until such time as the members of the Tribe may see fit to change their Constitution, the Tribal Council chosen under the hereditary chief system is the only group that can be recognized as the legitimate government of the tribe.

    In summation the Council, consisting of hereditary chiefs and their appointees, exercises all governmental authority of the Red Lake Band. The "General Council," i.e., all the members of the Band, organized as a body politic under the name of "The General Council of the Red Lake Band of Chippewa Indians," have only such powers as the Council of Chiefs cares to give them or which they may derive from their customary tribal law. Under Article 2 of the 1918 Constitution, the Council is a self-perpetuating body whose chiefs appoint their successors, and this Council as a whole decides disputes. There can be no doubt that the Council of Chiefs and their appointees must be recognized as the legitimate Council of the Red Lake Band of Chippewa Indians.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

FIVE CIVILIZED TRIBES--JURISDICTION OVER
RESTRICTED PROPERTY

                                                                                                                                    November 29,1957.

HON. CARL ALBERT
House of Representatives
Washington 25, D.C.

DEAR MR. ALBERT:

    Your letter to the Commissioner of Indian Affairs, dated November 18, 1957, has been referred to this office since the information requested therein pertains to an interpretation of laws applicable to the Five Civilized Tribes of Oklahoma.

    This department takes the position that the language of section 3, of the act of August 4, 1947 (61 Stat. 731), under which the state courts of Oklahoma are given exclusive jurisdiction of certain matters affecting Indians of the Five Civilized Tribes, does not diminish the authority of the Secretary of the Interior with respect to the supervision of restricted Indian property. The legislative history of the 1947 act clearly shows that the word "exclusive" was used only to preclude an assumption that the federal courts had jurisdiction over such matters. In no way was it intended that section 3 should affect the jurisdiction of the Secretary of the Interior regarding restricted Indian property.

    In the Solicitor's opinion regarding the estate of Martha Jackson Chisholm, a deceased Creek Indian, M-36426, 64 L.D. 17 (1957), it was held that section 3 of the 1947 act, supra, did not empower the county court to order payment of claims against a restricted estate of a deceased Indian of the Five Civilized Tribes. It is analogous, we believe, that the language of section 3, supra, does not remove the necessity of obtaining approval by the Secretary of the Interior of the alienation of an interest in restricted allotted lands. Therefore, it is our opinion that the sale of an oil and gas lease on restricted land by the guardian of an incompetent allottee lacks validity until approved by the Secretary or his authorized representative.

    With regard to the statement in Mr. Smith's letter to you as to the policy of requiring certain funds of Five Tribes Indians to be deposited to their credit in the Area Director's office rather than to be turned over to a guardian appointed by the state court, we believe it is sufficient to say that section 5 of the 1947 act, supra, clearly states that "restricted funds and securities remain subject to the jurisdiction of said Secretary until other wise provided by Congress."

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 23, 1957

DECEASED KICKAPOO OF MEXICAN NATIONALITY
WHOSE ESTATE CONSISTS OF AN INTEREST IN
AN OKLAHOMA RESTRICTED ALLOTMENT

                                                                                                                                    December 23, 1957.

MR. GEORGE B. SCHWABE, JR.
Regional Solicitor
712 Petroleum Building
Tulsa 3, Oklahoma

DEAR MR. SCHWABE:

    This refers to your memorandum of November 21, 1957, and to previous correspondence, in which references were made to an opinion by your office, dated June 14, 1955, regarding the jurisdiction of the Department to probate the estate of Wa-pa-na-ka-the-ah, a deceased Mexican Kickapoo Indian, whose estate apparently consists of a one-eighteenth inherited interest in eighty acres of land in Oklahoma, being the allotment of Pa-pe-ack, deceased allottee No. 189 of the Mexican Kickapoo Indian tribe in Oklahoma.

    The above inherited interest was acquired in the following manner: Upon the death of the original Indian allottee, her sole heir was determined by the Assistant Secretary of the Interior on March 28, 1918, to be her husband, Ke-ah-nah, an unallotted Mexican Kickapoo Indian (58195 17). Upon Ke-ah-nah's subsequent death, this Department determined his heirs on July 14, 1919 (3665-19), to be his six children, each of whom accordingly inherited a one-sixth interest in the lands involved. Thereafter, this Department determined the heirs of one of Ke-ah-nah's children, Mut-twa-ah-quah (15438-48), through which latter estate the above decedent, Wa-pa-na-ka-the-ah, apparently acquired his one-eighteenth interest.

    It appears from your opinion of June 14, 1955, that the trust period on the allotment in question has not expired because of repeated extensions. Accordingly, it is our view that the Department properly determined the heirs of the above decedents who died during the trust period possessed of inherited interests in the allotment. Moreover, their inherited interests remained restricted since there is no indication that such interests became subject to the removal of restrictions provisions of the act of June 21, 1906 (34 Stat. 325, 363). Of course, if, as you point out, there is a showing that an interest in the allotment was inherited by a national of another country, it is believed that jurisdiction over such an interest by this Department would cease. See Solicitor's Opinion of December 18, 1953 (M-36186), wherein it was determined that the Secretary of the Interior had no probate jurisdiction over certain interests in restricted or trust property because such interests had been inherited by Indians who were Canadian nationals.

    The responsibility of determining whether a deceased Indian heir or devisee of restricted land is a national of another country is regarded as a probate function. See the memorandum, dated May 21, 1957, from the Acting Commissioner of Indian Affairs to all Area Directors and Superintendents, a copy of which is attached. Thus, as a part of such general instructions, the following statement is made:

    "In cases where an Indian dies owning trust or restricted property and there is doubt that he was an Indian of the United States, you should call this situation to the attention of the Examiner in referring the case to him in order that he may consider the question be fore assuming probate jurisdiction.*     *     *"

    The Examiner of Inheritance apparently has made a finding that Wa-pa-na-ka-the-ah is a Mexican citizen or national. On that basis the Examiner refused to take probate jurisdiction over such decedent's estate, in which conclusion you concur. Accordingly, absent an appeal by an interested party from the Examiner's finding, that decedent's inherited interest may be regarded as no longer subject to this Department's jurisdiction, either probate or otherwise.

    Moreover, the question whether the remaining interests held by other Indian heirs in the above allotment are restricted and subject to this Department's jurisdiction may likewise be dependent upon further action by the Examiner of Inheritance pursuant to other provisions in the directive of May 21, 1957, to-wit:

    "In prior cases in which the Bureau's records indicate this issue may be material, but in which there has been no adjudication of the question, the Examiners will reopen the cases upon appropriate request from the Superintendents. A mere statement in the testimony or record as to nationality does not constitute an adjudication of the question. However, a statement in the decision of the Examiner may be relied upon if a careful study of the supporting probate record indicates that the statement was an actual judicial finding of fact."

    Copies of this letter have been sent to the Area Director, Bureau of Indian Affairs, Anadarko, Okla-


 

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OPINIONS OF THE SOLICITOR

JANUARY 13, 1958

homa, and to Examiner John R. Graves, for their information and guidance.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

TRIBAL ELECTION--DISQUALIFICATION OF CANDIDATE
FOR NON-RESIDENCY IN VOTING DISTRICT
CONSTITUTIONAL INTERPRETATION AND
APPLICATION OF STATE LAW

                                                                                                                                        January 3, 1958.

Memorandum

To:            James D. Geissinger, Regional Solicitor, Denver
From:        Solicitor
Subject:     Request of Lester Youpee for reconsideration Field Solicitor's opinion of May 7, 1957

    This memorandum may serve to reply to Lester A. Youpee of Brockton, Montana, who protested Field Solicitor Bielefeld's opinion dated May 7, 1957, wherein the Field Solicitor held ineffective Resolution 1--57--4 of the Fort Peck Executive Board which purported to seat Mr. Youpee in the place of Mr. Earl Jones as a member of the Tribal Executive Board. Mr. Jones' election as representative of Riverside District was declared null and void by resolution of the Fort Peck Executive Board and said action was sustained in the aforestated Field Solicitor's opinion. However, that part of the Fort Peck Executive Board's resolution wherein "the candidate receiving the next largest cumulative votes in the Riverside District election of April 15th be declared the Tribal Executive Board member and that the candidate be identified for the election record as Mr. Lester A. Youpee," was ruled invalid by the Field Solicitor.

    The facts indicate that at the Fort Peck election on April 15, 1957, Earl Jones received 33 votes for the position of the Riverside District member of the Fort Peck Executive Board. Lester Youpee received 22 votes for the same position. The Fort Peck Executive Board refused to seat Mr. Jones because he did not reside in the Riverside District and his election was declared null and void. Mr. Youpee was then purportedly elected by the Fort Peck Executive Board to the vacancy caused by Mr. Jones' disqualification.

    The above described Fort Peck Executive Board resolution No. l--57--4 was passed after the Superintendent had referred to the Executive Board the question of "who should be properly seated or whether a new election should be called." While the Fort Peck Tribal Executive Board was obligated to decide this matter, it had the obvious duty to render its decision in accordance with the terms and provisions of the Fort Peck Constitution and Bylaws.

    Field Solicitor Bielefeld correctly concluded that the Fort Peck Constitution and Bylaws do not contain any provision which in itself would instruct the Tribal Executive Board in deciding the issue submitted to it; and he further stated that the Tribal Executive Board could resort to and employ Section 2, Chapter XII of the 1956 election Ordinance which stipulates that where ordinance provisions are of doubtful interpretation, resort may be had to the Montana law. Montana law reveals that where a majority of votes are cast for an ineligible candidate, then disqualification of that candidate does not entitle the person receiving the next highest number of votes, to be elected. Cadle v. Baker, 51 Mont. 176, 149 Pac. 960. See 29 C.J.S. 353.

    It is evident that by Fort Peck Executive Board Resolution No. l--57--4, the Tribal Executive Board attempted to elect Mr. Youpee as the Board member from the Riverside District. Such action must be disregarded since it is beyond the scope of authority which is vested in the Tribal Executive Board by the Fort Peck Constitution and Bylaws. The opinion of Field Solicitor Bielefeld which concludes that Resolution No. l--57--4 is ineffective to elect Lester Youpee as the Tribal Executive Board member representing the Riverside District, is hereby sustained.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

DEVOLUTION OF REAL PROPERTY--INTERPRETATION
OF YAKIMA ACT OF AUG. 9, 1946

M-36495                                                                                                                       January 13, 1958.

Indian Lands: Descent and Distribution: Generally

As to members of the Yakima Tribes dying after the approval of the act of August 9, 1946, Section 7 of that act applies to the devolution of that part of the decedent's trust or restricted estate which (1) came to the decedent through his membership in the tribes or (2) which consists of any interest in or the rents, issues, or profits from an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855 (12 Stat. 951), irrespective of whether the allotment, or interest


 

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DEPARTMENT OF THE INTERIOR

JANUARY 13, 1958

therein, was acquired by the decedent by allotment patent, inheritance, devise or restricted deed, but excepting decedent's restricted purchased lands which at any time prior to their acquisition by him may have been in an unrestricted status.

MR. R. J. MONTGOMERY
Examiner of Inheritance
P.O. Box 3537
Portland 8, Oregon

DEAR MR. MONTGOMERY:

    This refers to your request for a further interpretation of section 7 of the act of August 9, 1946, 60 Stat. 968, 25 U.S.C., 1952 ed., sec. 607, quoted below, dealing with the devolution of restricted Yakima estates, and limiting the inheritance or the devise of such property to enrolled members of the Yakima Tribes of one-fourth or more Indian blood:

    "Sec. 7. Hereafter only enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes shall take by inheritance or by will any interest in that part of the restricted or trust estate of a deceased member of such tribes which came to the decedent through his membership in such tribes or which consists of any interest in or the rents, issues, or profits from an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855, 12 Stat. 951, except that a surviving spouse of less than one-fourth of the blood of the Yakima Tribes may receive by inheritance or devise the use for life of one-half of the restricted or trust lands of the decedent located within the Yakima Reservation or within the area ceded by the said treaty of June 9, 1855."

Various other aspects of these quoted provisions were considered in the Solicitor's memorandum opinion, dated March 16, 1956 (M-36331).

    You state the view that the above limitation upon a Yakima decedent's heirs or devisees applies "only to the original allotment of a decedent, and applies to property inherited by a Yakima Indian since August 9, 1946," and also that such provisions are not applicable at any time to property obtained under a deed or purchase.

    Because of the clearly prospective nature of section 7 of the Yakima act, and the rule that the descent of a decedent's property is cast in his heirs immediately upon death (see the Solicitor's opinion of March 16, 1956, supra, p. 5), the devolution of the estate of a member of the Yakima Tribe whose death occurred before the approval of the act would in no wise be controlled by the limiting provisions of section 7, and the composition of the restricted estate would be immaterial. On the other hand, it is our opinion, contrary to yours, that the death of a deceased member of the Yakima tribes after the approval of the act would bring the provisions of section 7 into play, and this would be true irrespective of whether the restricted estate consists of an allotment or an inherited or purchased interest therein.

I.

    In effect, we believe your position is that since an inheritance received prior to the effective date of the act was not acquired by virtue of membership in the Yakima Tribes, consequently, the provisions of section 7 should have no application in the further transmittal by inheritance or by devise of such property upon the heir's death subsequent to August 9, 1946. In this respect you apparently have failed to give sufficient force to other provisions in section 7 which likewise limit the rights of inheritance in those instances where the restricted or trust estate of a Yakima member "consists of any interest in or the rents, issues, or profits from an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855, 12 Stat. 951, *     *     *."

    The term "any interest in *     *     * an allotment of land *     *     *" clearly embraces on its face an interest in an allotment held by inheritance as well as when the entire interest in the land had been acquired as an original allottee. Such a conclusion is supported by the background of the act, as reflected by our legislative file on this matter. Section 7 of the original bill (H.R. 6165, 79th Cong. 2d Sess.), which later became the act of August 9, 1946, was introduced in the following language:

    "Sec. 7. Hereafter only enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes shall inherit or take by devise any interest in that part of the restricted or trust estate of any deceased member of such tribes which came to the deceased member through his membership in such tribes, or which came to the deceased member by virtue of an allotment of land on the public domain within the area ceded by the treaty of June 9, 1855 (12 Stat. 951). *     *     *."

The Congressional Committee's amendment of those provisions (H. Rept. 2484, 79th Gong. 2d Sess.) is reflected by the language now found in


 

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OPINIONS OF THE SOLICITOR

JANUARY 13, 1958

section 7 of the act and quoted in full above. This substituted language was suggested in a memorandum, dated April 26, 1946, from the then Chief of the Indian Division [Associate Solicitor, Indian Affairs] to the Commissioner of Indian Affairs in the following pertinent respect:

    "Section 7, as originally drafted, was defective in failing to make it clear that the provisions of that section extended to lands, and the proceeds derived therefrom, located on the Yakima Reservation, or in the ceded area, which the decedent might have acquired by inheritance or devise from prior deceased Indians whether the prior deceased Indians were members of the tribe or not *     *     *."

    Thus, the view that the reference in the 1946 act to an allotment includes inherited interests therein as well comports with a similar position which this Department has consistently followed in Indian probate matters. That is the view that the reference in the act of June 25, 1910, as amended, 36 Stat. 855, 25 U.S.C., 1952 ed., sec. 372, to the Secretary of the Interior's authority to ascertain the heirs of a deceased Indian to whom an allotment of land has been made embraces, so long as the allotment remains in a restricted or trust status and subject to the Department's supervision, the power to determine the original allottee's heirs and also the heirs or beneficiaries of subsequently deceased Indian heirs. Of course, where the persons dying possessed of inherited interests in restricted property are not within the class whom Congress sought to protect such as Canadian Indians, this Department has disclaimed any authority to probate their estates (M-36186, December 18, 1953).

II.

    For the reasons we have indicated above with respect to inherited interests in allotments, it is difficult to perceive that an allotment within the areas specified in section 7 of the 1946 act loses its identity for purposes of that section merely because the allotment has been sold to a member of the Yakima Tribe. Otherwise, a convenient avenue for avoiding the apparent purpose of the act to retain ownership to certain lands in enrolled Yakima Indians could be provided by the execution of deeds to members whose prospective heirs or devisees are not qualified to take under the act. However, this question is no longer an open one, but has heretofore been determined. You have quoted from a letter of the Assistant Commissioner of Indian Affairs, approved by the Acting Assistant Secretary of the Interior on May 12, 1948, which represented general comments regarding the manner in which certain problems arising from an administration of the act, including the one now presented by you, should be handled. Your quotation constituted the answer to a question the first part of which pertained to purchasers, other than Yakima members, of trust lands who, upon their deaths, obviously could transmit to their heirs or devisees the interests in such purchased lands free of the limitations in section 7 of the 1946 Act. However, the second part of the question presented read as follows:

    "Could a Yakima, during his life, convey in trust, to one of his family of less than 1/4 blood, his trust property either for life or in perpetuity and the resulting owner take the land free from the restriction on inheritance?"

The interpretation or answer which was given in response to this question reads as follows:

    "If, however, a conveyance of all the right, title and interest in an allotment were made by a member of the Yakima tribes to his child of less than one-fourth blood, under the form of deed containing the trust provisions the land in the hands of the child would be subject to the inheritance restrictions of the Act, provided, of course, the child is a member of the Yakima tribes."

    To summarize, as to members of the Yakima Tribes dying after the approval of the act of August 9, 1946, sec. 7 applies to the devolution of that part of the decedent's trust or restricted estate which (1) came to the decedent through his membership in the tribes, or (2) which consists of any interest in or the rents, issues or profits from an allotment of land within the reservation or the ceded area. With respect to the latter category it is immaterial whether the allotment, or interest therein, was acquired by the decedent by allotment patent, inheritance, devise or restricted deed. Of course, sec. 7 of the act would not apply to any of the decedent's restricted, purchased lands which, at any time prior to their acquisition by him, may have been in an unrestricted status.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

 

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DEPARTMENT OF THE INTERIOR

FEBRUARY 5, 1958

RIGHTS OF INDIANS IN THE HOOPA VALLEY
RESERVATION, CALIFORNIA

65 I.D. 59

M-36450                                                                                                                         February 5, 1958.

Indian Tribes: Tribal Government

The Commissioner of Indian Affairs has been correct, as a matter of law, in recognizing tribal title to the communal lands of the 12 miles square executive order reservation in the Hoopa Valley Tribe. The Commissioner has been further correct in paying out per capita payments as authorized generally by the act of March 2, 1907, 34 Stat, 1221, to enrolled members of the Hoopa Valley Tribe only.

Indian Lands: Tribal Lands: Generally--Indian Tribes: Tribal Government

Nothing in the Order of October 16, 1891 indicates an intent to confer upon the Klamath River Indians an interest in the realty of the original Hoopa Valley Reservation. Despite the enlargement of the original Hoopa Valley Reservation, the Klamath River Tribe was never merged with nor absorbed into the Hoopa Valley Tribe. Therefore, the fact that the Hoopa Valley Tribe limited the scope of its jurisdiction under its 1949 Constitution does the Klamath River Indians no injustice. As an independent tribal group, neither the Klamath River Indians nor their successors, the Yuroks, have any property right in the original twelve mile square.

Indian Lands: Possessory Rights

It would be an unconstitutional taking to permit the Klamath River (Yurok) Indians to diminish the value of the right of occupancy in Hoopa Valley by paying to them a part of the proceeds of the resources taken therefrom. The Hoopa Indians have occupied this part of the reservation since 1865 and the benefits of such occupancy belong to them.

Indian Tribes: Reservations

Inasmuch as the Indian Reorganization Act provided a method of uniting the Hoopa and Klamath River tribes, and both tribes rejected such a plan, it is our opinion that these groups remain and must be recognized as independent tribal groups until such time as they affirmatively and voluntarily form a consolidated governmental body having jurisdiction over the total reservation both as to government and as to economic resources. Such a confederation or consolidation has not taken place.

Memorandum

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Rights of Indians in the Hoopa Valley Reservation, California

    This opinion is given in response to your request for a determination of the legality of recent per capita distributions to members of the Hoopa Valley Tribe of California. The per capita payments were made by request of the recognized governing body of the Hoopa Valley Reservation. Recipients are those persons whose names appear on the tribal membership roil approved by the Commissioner an March 25, 1952. The official membership roll approved October 1, 1949, contains the names of allottees, their descendants, unallotted residents of the twelve mile square area of Hoopa Valley who were eligible to receive allotments at the time the allotments were made, and other persons made members of the tribe by adoption.1

    It has been contended on behalf of certain members of the Yurok tribe that Indians and their descendants who were allotted on lands formerly known as the Klamath River Reservation and on that portion of the enlarged Hoopa Valley Reservation commonly referred to as the "Connecting Strip" or "Extension" are entitled to share equally in the payments from the proceeds of timber sales on the area comprising the original Hoopa Valley Reservation. It is further alleged that the Bureau of Indian Affairs improperly authorized the disbursal of per capita payment money at the request of the Hoopa Valley Business Council because the Hoopa Valley Tribal Constitution under which it acts is invalid.

    A group of Indians had been politically recognized as a Hoopa tribe by the United States as early as 1851 when a treaty was negotiated with the "Hoo-pah" or, as they were sometimes otherwise called, the Trinity River Indians. Although this treaty was never ratified, it is convincing evident of the existence of a Hoopa tribal group. Later, this tribal group exercised the rudiments of community government over the Indians of an area

____________________

    1 Constitution and By-laws of Hoopa Valley Tribe. Article IV. Membership. Approved September 4, 1952. Appendix I. Cf. also letter of Superintendent Boggess to Commissioner on January 13, 1947, re Hoppa Business Council resolution declaring all lands and resources of 12 miles square to be property of Hoopa Valley Indians alone.


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 5, 1958

comprising the twelve mile square original Hoopa Valley reservation and were thus qualified for political recognition as a tribe occupying the reserved area. We have seen no evidence, or contention, that any other tribal group claimed, at that time any governmental or economic jurisdiction over the twelve mile square area of the original Hoopa Valley Reservation.

    Subsequent to the admission of California as a state, the announced intent of Congress was to collect the various groups of Indians in California and to locate them on reservations set aside to afford protection against the encroachment of white settlers. On April 8, 1864 (13 Stat. 39) Congress authorized the President, in his discretion, to set aside not more than four tracts of land in California to be retained by the United States as Indian reservations, suitable in extent to accommodate the Indians in that State. The lands were to be located as remote from white settlements as possible, having due regard for their adaptability for the purpose for which they were intended. The act further provided that at least one of the reservations be located in what had theretofore been known as the "Northern District." Pursuant to this act, the Hoopa Valley Reservation was established as one of the four reservations contemplated by the legislation.

    Administrative actions looking toward the setting aside of this area as an Indian reservation were begun on August 21, 1864; and by 1865 a number of Hoopa Indians had already been located in Hoopa Valley which was formally reserved by Executive Order in 1876.

    The Executive Order establishing the Hoopa Valley Reservation provided:

    "EXECUTIVE MANSION, June 23, 1876. It is hereby ordered that the south and west boundaries and the portion of the north boundary west of Trinity River, surveyed in 1875 by C. T. Bissel, and the courses and distances of the east boundary, and the portion of the north boundary east of Trinity River reported but not surveyed by him, viz: Beginning at the southeast corner of the reservation at a post set in mound of rocks, marked `H.V.R., No. 3,' thence south 17 west 905.15 chains to southeast corner of the reservation; thence south 72 west 480 chains to the mouth of Trinity River, be, and hereby are, declared to be the exterior boundaries of Hoopa Valley Indian Reservation, and the land embraced therein, an area of 89,752.43 acres, be, and hereby is, withdrawn from public sale, and set apart for Indian purposes, as one of the Indian reservations authorized to be set apart in California by act of Congress approved April 8, 1864. (13 Stat., p. 39) U.S. GRANT."

    It should be noted that this Executive Order designates no particular tribe or class of Indians as the inhabitants of the area set aside. The order, therefore, must be construed as setting aside the reserve for the benefit of any Indians who were then occupying the area and those who availed themselves of the opportunity for settlement which the reservation presented from time to time. When the President formally set the boundaries of the Hoopa Valley Reservation on June 23, 1876, a "Hoopa Tribe," composed of remnants of the Hunstang, Hupa, Redwood, Saiaz, Sermalton, Miskut, and Tish-tang-a-tan bands of Indians, was already well established thereon. This tribe became stabilized in the area and somewhere along the line adopted a constitutional form of government and ever since has maintained its local integrity. The records of the Indian Bureau show that by 1916 the group was well organized with a representative tribal council.

    "This [Hoopa] council is composed of Indians living on the Hoopa Valley Reservation proper and represents all of the tribes not now extinct enumerated in the Act of Congress and presidential proclamation setting aside this as an Indian Reservation *     *     *. The Hoopa Council are the duly authorized representatives of the Indians in Hoopa Valley Reservation."2

The "Hoopa Valley Tribe" has continually exercised tribal governmental functions within the confines of the Hoopa Valley Reservation as established by the Executive Order of June 23, 1876, and is the proper organization for carrying on the functions of administering and managing whatever communal property or land may be owned or beneficially held by that tribe. We note that the tribe in 1949 adopted a written constitution which apparently fairly included as members all persons enrolled on the official roll of the Hoopa Valley Tribe and all children of at least one-quarter Indian blood, born to such members.

    We conclude, therefore, that as a matter of law the Commissioner of Indian Affairs has been correct in recognizing tribal title to the communal lands in the twelve mile square reservation to be in the Hoopa Valley Tribe. Cf. Spalding v. Chandler, 160 U.S. 394, 34 Op. A.G. 181, 1924. The superior

____________________

    2 Letter from Superintendent Morsdolf to Commissioner of Indian Affairs, June 19, 1916.


 

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DEPARTMENT OF THE INTERIOR

FEBRUARY 5, 1958

title of the Government in tribal lands and in allotted lands where no patents have been issued, implies, of course, wise management. It does not confer on the Government the right to despoil a tribe or an allottee of accrued rights. St. Marie v. United States, 24 F. Supp. 237, 240. The Commissioner has been correct in paying out per capita payments, authorized by the act of March 2, 1907, 34 Stat. 1221, only to enrolled members of the Hoopa Valley Tribe. This action is consonant with the principle that the test of the privilege of an individual Indian to share in tribal resources is tribal membership. Halbert v. United States, 283 U.S. 753.

    We now turn our attention to the contention that Indians other than enrolled members of the Hoopa Valley Tribe have a claim of right to an interest in the communal lands and resources of the Hoopa Valley reservation because the twelve mile square reservation was enlarged by the addition of a contiguous area of land on which Indians of other bands were residing.

    The first pertinent act of Congress providing for reservations for the Indians of California was the Act of March 3, 1853, 10 Stat. 238. This act authorized the President to "make five military reservations from the public domain in the State of California *     *     * for Indian purposes." The Act limited the area which might be reserved to 25,000 acres and appropriated $250,000 for subsistence and costs of removing the Indians to the reserved area. One of the areas so reserved was the Klamath River Reservation established November 16, 1855, by the Executive Order of President Franklin Pierce.

    In the year 1861, a flood destroyed the arable lands of the Klamath River Reservation and some of the Indians located thereon were removed to a new temporary reservation known as the Smith River Reserve, established May 3, 1862. A majority of these Indians preferred to reside on the old reservation, however, and nearly all of them returned within a few years to the Klamath River area. Meanwhile, by the act of April 8, 1864, supra. the State of California was constituted one superintendency for the administration of Indian affairs and the President was authorized to set apart four additional tracts of land within the State for Indian purposes. There were already in existence at that time the following reservations: Klamath River, Menducino and Smith River. Both the Mendocino and Smith River reservations were later discontinued by the act of July 27, 1868, 15 Stat. 221, 223. During this time, the Klamath River lands were treated as a distinct reservation administered by an Indian Agent of the United States who also oversaw the affairs and development of the Hoopa Valley Reservation approximately 20 miles away. As an aid to the administration of these two separated areas, they were brought together under the Order of October 16, 1891, which reads as follows:

    "EXECUTIVE MANSION, October 16, 1891. It is hereby ordered that the limits of the Hoopa Valley Reservation, in the State of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart in said State by act of Congress approved April 8, 1864 (13 Stat. 39) be, and the same are hereby, extended so as to include a tract of country 1 mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley Reservation to the Pacific Ocean: Provided, however, that any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended. BENJ. HARRISON."

    The limits of the Hoopa Valley Reservation were thus extended by the Executive Order of, October 16, 1891, to include a tract of land containing approximately 25,635 acres, one mile in width on each side of the Klamath River, extending from the limits of the Hoopa Valley Reservation to the Pacific Ocean. This enlarged Hoopa Reservation took a shape similar to that of a spoon with the Hoopas located in its bowl and the Klamath River Indians strung out along its handle. The following year, under the act of June 17, 1892, Congress discontinued the Klamath River Reservation as such, but preserved some rights for Indians previously located on the reservation by providing for allotments to all Indian applicants who made their selection thereon within one year. All lands not selected for allotment were opened to settlement under the public land laws. Indians who removed from the former Klamath River Reservation were relocated on the connecting strip and elsewhere, and the Klamath River Tribe became widely scattered.

    The Klamath River Indians, whose ancestors formerly resided on the Klamath River Reservation, have consistently been regarded as an identifiable tribe by the Federal Government. See 33 L.D. 205, 218. These Indians are also included in the general term "Yurok" meaning downstream Indians although a Yurok Tribe, as such, was not organized until recent years. The "Yurok Tribe" has never been recognized as having jurisdiction over any

 

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part of the "Hoopa Extension" because its membership is not confined to reservation Indians.3

    We can find no evidence to indicate that the enlargement of the reservation was intended in any way to upset the property interests of the Hoopa tribe to the original area under its jurisdiction. We read nothing in the Order of 1891 to show an intent to confer upon the Klamath River Indians an interest in the realty of the original Hoopa Valley Reservation.

    The former Klamath River reservation and the connecting strip are, technically, a part of the enlarged Hoopa Valley Reservation. However, to construe the order enlarging the Hoopa Valley Reservation as divesting the Hoopa Valley Tribe of their rights in their communal property would be contrary to established law. The rights of Indians to property within reservations attach when the lands are set aside. 34 Op. A.G. 171, 176 (1924). United States v. Santa Fe R.R. Co., 314 U.S. 339. The rights of the Hoopa Indians to the Hoopa Valley reservation antedate the Executive Order of 1891. Such vested rights in the land are not affected, without the tribe's consent, by a subsequent order enlarging the area of the reservation. To distribute the income from the assets of the original part of the Hoopa Valley Reservation to all the Indians in the Northern District of California would be to give to many of them the benefit of a right to which they are not entitled. Congress, as a trustee for unassimilated Indians, has power to legislate for the proper control and management of such of their property as is held by the Government in a trust capacity, but this power is not so extensive as to enable the Government "to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation *     *     *; for that would not be an exercise of guardianship, but an act of confiscation." United States v. Creek Nation, 295 U.S. 103, 110, citing Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113; Cherokee Nation v. Hitchcock, 187 U.S. 294, 307 308. Cf. United States v. Klamath Modoc Tribes, et al., 304 U.S. 119. It would be an unconstitutional taking diminishing the value of the Hoopa Indians' right of occupancy, if the Klamath River (Yurok) Indians were permitted to share the proceeds of the resources taken from the 12 mile square. The Hoopa Indians have occupied the 12 mile square area of the reservation since 1865 and the benefits of such occupancy belong to them. Shoshone Tribe v. United States, 299 U.S. 476, 496. Each and every individual member of the many tribes or bands of California Indians was privileged after 1865 to settle upon this reservation. None of them was required to do so. Those who accepted became vested with the full incidents of Indian title. Those who did not accept, and chose to remain where they were, or move elsewhere, can not be properly regarded as being invested with enforceable rights thereon either in themselves or in their posterity. Cf. Sol. Op. M-36181, Ownership of Unallotted Lands on the Tulalip Indian Reservation in the State of Washington, February 21, 1956.

    It has been alleged that the Hoopas withdrew from an existing Hoopa-Klamath tribal organization without knowledge or consent of the Klamaths. In view of the history of these tribes as set out above, that assertion is not well founded. On the contrary, the Klamath River Tribe was never merged with nor absorbed into the Hoopa Valley Tribe. Therefore, the action by which the Hoopa Valley Tribe limited the scope of its jurisdiction under its 1949 Constitution does the Klamath River Indians no injustice.

    The Hoopa Indians have actively attempted for more than half a century to preserve their interests in the Hoopa Valley Reservation and to keep the Klamath River Indians, and any others, from acquiring any tribal right in the area of the original twelve mile square. There is nothing in the records to indicate a recession from the position they held before Klamath River lands were annexed to the Hoopa Valley reservation. A study of the various actions taken in connection with the allotment of land on the reservations discloses the active resistance of the Hoopa tribe to the encroachment and claims of other tribes and other Indians. At a time when a number of outsiders were attempting to obtain allotments at Hoopa Valley, the tribal council, anxious to preserve the reservation for Indians of the Hoopa tribe, stated in a letter dated June 19, 1916, to the Commissioner of Indian Affairs:

    "There are certain tribes that are regarded as having tribal rights on the Hoopa reservation. This we cannot understand. Take the Klamath for instance--they represent a different tribe, talk a different language, and have never associated with the Hoopas to amount to anything. As near as we can understand the Hoopa and Klamath River reservation were allotted twenty some odd years ago. The Klamath are today enjoying the rights of their

____________________

    3 Yurok Tribe, incorporated under laws of California, October 24, 1949. The organization is recognized for the purposes for which it was formed namely "to promote the cultural, social, educational, and economical well being of members of the Yurok Tribe." Letter from Assistant Commissioner to Mrs. Lowana Brantner, November 26, 1954.


 

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allotments, own their lands and homes. While the Hoopas have had their land resurveyed and are now waiting to receive their allotments and are still uncertain about our land, and still they say we are linked with the other tribes surely there must be a mistake somewhere *     *     *."

    In reply, the Indian Bureau stated that only those persons enrolled as Indians on the Hoopa Valley Reservation or voluntarily adopted by the tribal business committee could be granted "any benefits whatever as Indians of the Hoopa Valley Reservation."4 Allotment rolls for Hoopa Valley were closed in 1923, but were subsequently reopened when other surveys were subsequently made in 1929 and 1933.

    In May of 1932, the Superintendent wrote to the Commissioner requesting definite instructions for the allotting of the Hoopa Valley. At that time about 175 selections of land for allotment had been on file at the agency for a period of nearly five years, and many Indians were in possession of definite tracts and had improved such lands. With respect to the situation on the reservation, the Superintendent made this observation:

    "The Office should understand that the great majority of these Indians feel that the Klamath and the Hoopa countries are separate and distinct and there is no fixed desire on the part of the Hoopas to take over any unallotted Klamath lands, and the great majority of the Klamaths have no desire to come in and take over Hoopa country. I am not unmindful of previous statements that have been made to me by the Office to the effect that it is considered by the Office as one reservation only."

The reply to this letter announced that a representative of the Commissioner was on his way to the reservation and would "go over the situation *     *     * on the ground."5

    Shortly thereafter, special allotting agent Charles E. Roblin was sent to Hoopa Valley to study the matter and report his views. The Roblin report, dated November 19, 1932, recommended that further allotments be authorized on the Hoopa Valley Reservation but that such allotment be limited to the agricultural lands, with the right to such allotments given only to those who had already occupied and improved lands for beneficial use. Two months later, in a supplemental report, Agent Roblin withdrew his recommendation that actual use be a condition precedent to allotment and recommended that claimants whose selections covered surveyed lands have their selections confirmed, provided that the individual's enrollment on the Hoopa Valley Agency rolls was regular and that he was entitled to allotment. Roblin further stated that among the Indians, a sentiment of urgency prevailed "based largely on a desire of the Hoopa Indians to exclude the Klamath River and Lower Klamath Indians from allotment on the original Hoopa Valley Reservation." It was Roblin's opinion "that the objection to the rights of these claimants as a class, should be disregarded." The Commissioner agreed that Indians from the "Connecting Strip" and the former Klamath River Reservation should be allotted equally with those already living on the original Hoopa Valley Reservation, but conceded that there was no sufficient available land to allot all these Indians thereon. Therefore, he approved only the allotment schedules which had been previously submitted by the Hoopa tribal council in 1921 stating, "after the schedules referred to above, no further allotments at Hoopa Valley will be made at this time." All unallotted lands were then held for tribal use under a proposed Indian Reorganization Act.

    Subsequently, on November 20, 1933, the Commissioner of Indian Affairs approved a Constitution and Bylaws of the Hoopa Business Council which provided in part:

    "Article III. The business council shall be composed of seven enrolled members of the Hoopa tribe; bona fide residents of Humboldt County, California, and twenty-one years of age or over."

    The Council represented only the Indians of the twelve mile square Hoopa proper. The Klamath River Extension was not represented on this council, and has not been represented there since.

    As a result of the enactment of the Indian Reorganization Act of June 18, 1934, 48 Stat. 986, a question arose as to whether a single referendum should be held on the enlarged Hoopa reservation; or whether separate elections should be held on the two areas permitting each section to determine its own destiny. On October 20, 1934, Commissioner John Collier communicated his decision to Mr. Roy Nash, District Coordinator for Reorganization Act in a letter containing the following sanction:

    "Superintendent Boggess is authorized to hold two separate elections on the Hoopa Valley Reservation, one of them on Hoopa Valley proper for the Hoopa, and another election on

____________________

    4 Letter from Chief Clerk, Indian Bureau, to Superintendent. Hoopa Valley School, July 17, 1916.
    5 Letter to Superintendent from Assistant Commissioner, dated September 16, 1932.


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 27, 1958

the territory occupied by the Klamath Indians, when the Secretary calls such election."

    The records further show that on December 15, 1934, the Indians on the Hoopa Valley Reservation voted to make the Indian Reorganization Act inapplicable on that reservation. The Klamath River Indians also opposed the application of the act to lands occupied by themselves. Thus, in two separate elections, which might have resulted in more closely tying the extension lands with the original twelve mile square area, both the Hoopa Indians and the Klamath River Indians defeated the reorganization measure. The total of votes for each of these tribes is recorded separately.6

    Inasmuch as the Indian Reorganization Act provided a method of uniting the Hoopa and Klamath River tribes, and both tribes rejected such a plan, these groups remain and must be recognized as independent tribal groups until such time as they affirmatively and voluntarily form a consolidated governmental body having jurisdiction over the entire reservation. Such a confederation or consolidation has not taken place.

    In summary, it is our opinion that the contentions on behalf of the Yurok Indians have not been substantiated, and that the Bureau of Indian Affairs has properly carried out its responsibilities in the premises. In reply to your specific questions, no Indians other than those enrolled as members of the Hoopa Tribe of the original 12 mile square reservation and their descendants have rights of participation in the communal property on that part of the Hoopa Valley Reservation.

    The Indian inhabitants of the Hoopa Extension and the other areas outside the jurisdiction of the Hoopa Valley Tribe may associate as a separate Indian tribe, or tribes, under constitutions acceptable to them and to the Bureau of Indian Affairs. But no such association can work to vest such Indians with an interest in the Hoopa Valley proper.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

CONDEMNATION ACTIONS INVOLVING INDIAN
LANDS WITHIN THE RANDALL DAM AND
RESERVOIR PROJECT, SOUTH DAKOTA

                                                                                                                                    February 27, 1958.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Condemnation actions involving Indian lands within the Randall Dam
                 and Reservoir Project, South Dakota

    Subsequent to the memorandum of January 17, 1958, from the Acting Assistant Solicitor, Indian Appeals and Litigation, on this subject, additional correspondence on the subject from the Director of the Missouri River Basin Investigations Project was referred to this office. In his letter to you dated January 17, 1958, the Director recommended that the Secretary of the Interior request the Department of Justice to delay calling any of the Indian tracts to trial until after Congress shall have had a chance to consider further the matter of a settlement by legislation.

    A check on the proposed legislation discloses the following situation. The Department's proposed report on H.R. 6125, a bill "To provide for the acquisition of lands by the United States required for the reservoir created by the construction of Randall Dam on the Missouri River and for rehabilitation of the Indians of the Crow Creek Sioux Reservation, South Dakota, and for other purposes" was submitted July 3, 1957, to the Bureau of the Budget for advice concerning the relationship of the proposed report to the program of the President. The proposed report recommends that Section 1 of H.R. 6125 be revised to read:

    "In addition to the fair value of the lands or interests in lands belonging to the Indians of the Crow Creek Reservation that were acquired by the United States for the purposes of the Randall Dam and Reservoir project by condemnation in the case of United States v. Crow Creek Tribe of Sioux Indians, et al., Civil Action 844, S.D., covering 269.24 acres, and Civil Action 184, covering 9,148.69 acres filed in the United States District Court for the District of South Dakota, Central Division, such Indians shall receive the additional payments and benefits provided for in this Act."

The reasons given in the proposal report for this suggested amendment are as follows:

    "Title to the lands in question is already vested in the United States pursuant to a condemnation action that is now pending in which a Declaration of Taking has been filed. The bill should recognize this fact rather than purport to convey to the United States a title which the United States already has acquired.

____________________

    6 Haas, "Ten Years of Tribal Government Under I.R.A.," U.S. Indian Service, 1947, p. 14.


 

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DEPARTMENT OF THE INTERIOR

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    "We believe that there is no need for a tribal referendum to determine whether the Indians accept the provisions of the Act since the title to the land has already been acquired by the Federal Government and the bill provides only for benefits in addition to fair compensation for the land."

    Similarly, the Department's proposed report on H.R. 6074, a bill "To provide for the acquisition of land by the United States required for the reservoir created by the construction of Randall Dam on the Missouri River and for rehabilitation of the Indians of the Lower Brule Sioux Reservation, South Dakota, and for other purposes" recommends that section 1 of the bill be amended to read:

    "In addition to the fair value of the lands or interests in lands belonging to the Indians of the Lower Brule Reservation that were acquired by the United States for the purposes of the Randall Dam and Reservoir project by condemnation in the case of United States v. Lower Brule Tribe of Sioux Indians, et al., Civil Action 186, S.D., covering 7,996.92 acres, filed in the United States District Court for the District of South Dakota, Central Division, such Indians shall receive the additional payments provided for in this Act."

    The same reasons for this amendment are given as were stated for the similar amendment to H.R. 6125.

    Thus, the proposed reports of this Department on the bills to which the Director of M.R.B.I. refers recommend that the bills be amended to provide only supplementary compensation to that which will be obtained for the lands in the pending condemnation actions. Accordingly, it does not appear that we should request the Department of Justice to delay the trials wherein the amount of compensation to be paid for the Indian lands will be determined, for to do so would be inconsistent with the proposed reports which contemplate that the courts will proceed to fix the fair value of the lands.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

LANDS WITHIN OZETTE RESERVATION--RETURN
TO PUBLIC DOMAIN

                                                                                                                        February 28, 1958.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Solicitor's Opinion M-36456 re status of' Ozette Reservation, Washington

    At your request I have reexamined that part of the opinion cited above which holds that Ozette Indian Reservation lands can be made a part of the public domain by the issuance of an Executive order revoking the order of April 12, 1893, which withdrew the lands for Indian use.

    Because of the peculiar nature of the trust status of the Ozette Reservation it is not likely that the rule set out in our opinion M-36456 could be applied to other Executive order reservations. The characteristic which distinguishes the Ozette lands from all others is that there are no longer any outstanding Indian interests there. The lands of the Ozette Reservation constitute a "dry trust" which may be terminated for lack of a beneficiary. It is proper to apply this legal principle only where the fact situation warrants its application. Since there appears to be no other Executive order Indian reservations lacking inhabitants who have an equitable interest therein, it is not necessary that the legal principle announced in M-36456 be modified for the protection of other Indian trust lands.

    On the matter of the interpretation given to section 4 of the Act of March 3, 1927 (44 Stat. 1347; 25 U.S.C. 398 (d) ) in the Ozette opinion, House Report 1791, 69th Congress, 2nd sess., contains the following language:

    "Since Congress has by the Act of June 30, 1919 (41 Stat. 3--34) forbidden the creation of Executive order reservations, except by act of Congress, section 4 of the bill [H.R. 15021] provides that no changes shall be made in the boundaries of existing Executive order reservations except by act of Congress." 68 Cong. Record 4580.

    We believe it was apparently well understood at the time that this and similar bills were debated in Congress that Indian rights attached when the lands are set aside for their use and occupancy and that the lands could not thereafter be retracted by the Federal government without compensating the Indian owners. The 1924 opinion of Attorney General Stone on this subject was adequately discussed in the debates on S. 4152, 69th Cong., 1st sess. This bill is similar to the Act of March 3, 1927, supra, but after passing both houses of Congress S. 4152 was vetoed by the President on July 2, 1926. The precise point of inquiry in all of this discussion, however, was not the question of power to withdraw or restore public domain lands, but rather


1821

OPINIONS OF THE SOLICITOR

MARCH 3, 1958

the character of mineral rights, if any, acquired under an Executive order reservation, in other words, whether a right of use and occupancy in reserved lands included the right to the underlying minerals. The 1927 act confirmed that such mineral rights belonged to the Indians.

    We will agree that by its clear terms the 1927 act precludes the changing of the boundaries of Executive order reservations, but we believe that section 4 of the act must be read in its proper context as applying to all such reservations where there is an existent Indian title. We believe that section 4 has no application in cases where Indian title, and whatever rights attach thereto, has been extinguished by reason of a merger of the legal and equitable titles in the United States.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

SALES TAX--THREE AFFILIATED TRIBES OF
THE FT. BERTHOLD RESERVATION

M-36448                                                                                                                             March 3, 1958.

Indian Tribes: Tribal Government--Indians: Taxation: Generally

The governing body of the Three Affiliated Tribes on the Fort Berthold Reservation acted within the scope of the traditional authority of Indian Tribes to tax persons under their jurisdiction and to exercise such other reasonable governmental powers as are necessary to maintain law and order and to provide traditional governmental service except insofar as such functions have been assumed by the paramount government, the United States, when, by Resolution dated March 11, 1948, the Tribal Business Council imposed a sales tax on the gross sales on all cattle and horses sold on or off the reservation, and on sales of crops produced as a result of revolving credit financing.

Indian Tribes: Fiscal Matters--Indians: Taxation: Generally

There is no legal objection to the imposition of the tribal sales tax designated by Tribal Business Council resolution. The tax is enforced against all of a class, namely, those who have produced livestock and crops "as a result of revolving credit financing." The borrowers were or should have been aware of the tax prior to their application for loans.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Sales tax, Three Affiliated Tribes of the Fort Berthold Reservation

    In a memorandum on this subject you requested my opinion as to whether the Tribal Business Council of the Three Affiliated Tribes, Fort Berthold Reservation, acted within the scope of its authority when it adopted the Resolution of March 11, 1948, which provides:

    "That the Tribal Business Council of the corporation authorize a sales tax of two percent (2%) on the gross sales return on all cattle and horses sold on or off the reservation. Sales of crops which have been produced as a result of revolving credit financing shall also be taxed two percent (2%). Other crop sales shall not be taxed for the same purposes *     *     *."

At this late date, nearly ten years after the adoption of the Resolution, we shall give the Tribe the benefit of any doubts, which if presented more seasonably, might have led to corrective suggestions as to the form of the Resolution. The time limit for disapproval in this connection lapsed ninety days after the enactment of the Resolution.

    In general there is little doubt but that the governing body of the Three Affiliated Tribes on the Fort Berthold Reservation acted within the scope of the traditional authority of Indian Tribes to tax persons under their jurisdiction and to exercise such other reasonable governmental powers as are necessary to maintain law and order and to provide traditional governmental services except in so far as such functions have been assumed by the paramount government, the United States. Iron Crow v. Oglala Sioux Tribe, 231 F. (2d) 89 (1956). Section 16 of the Indian Reorganization Act, 25 U.S.C. 476, under which these historical hands or tribes were constituted into a single statutory tribe can be read to require that their new Constitution shall give the statutory tribe "all powers vested in any Indian tribe or tribal council by existing law" and certain additional powers not theretofore ordinarily exercised by Indian tribes, which are specifically enumerated. Section 3 (d) of Article VI of the Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation provides that subject to the approval of the Secretary of the Interior the Tribal Business Council shall have the power. "*     *     * to levy taxes or license fees on nonmembers

 

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DEPARTMENT OF THE INTERIOR

MARCH 3, 1958

doing business within the reservation *     *     * consistent with Federal laws governing trade with Indian tribes." It could hardly be argued that it was only intended that the tribe should have power to tax nonmembers.

    In October of 1934 the Assistant Secretary of the Interior approved an opinion of the Solicitor which held that among the "powers vested in any Indian Tribe or Tribal Council by existing law" is the power "To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders." (55 I.D. 14, 16) This principle that an Indian Tribe has the power to tax as a corollary to its government function has been reaffirmed in the recent court case Iron Crow v. Oglala Sioux Tribe, supra. Further, it has been held that a tribe has capacity to sue in the Federal District Court for the collection of taxes which the tribe has validly imposed on nonmembers leasing tribal land. Oglala Sioux Tribe v. Barta, D.C., 146 F. Supp. 917.

    You have asked the further question whether the tribe may impose a sales tax only on sales of live stock by members indebted to the tribe for loans and on sales of crops produced by members who have been financed with loans from the tribe. A valid ordinance enacted to legislate against all members of a large class does not lose its validity because the restrictions or penalties are subsequently enforced against only a segment of the class. Nor can the members who are so taxed be heard to complain when they, as borrowers, were or should have been aware of the tax prior to their application for loans from the tribe and the use of the borrowed fund to raise livestock or crops. The content of the questioned resolution was incorporated into the Bureau of Indian Affairs' approved policies and plans in connection with loan agreements as long ago as 1950. We see no reason to reopen this question administratively at this late date.

    Although the Congress by the acts of August 15, 1953, 67 Stat. 590, and July 10, 1957, 71 Stat. 277, has removed the restrictions formerly placed on sales of such property we find no authority to support the theory that Congress intended thereby to extinguish tribal power to control sales of chattels on which they have a lien or to repeal tribal power to tax. We therefore see no legal objection to the continued imposition of the tribal sales tax on the class of persons so designated by the subject Tribal Business Council resolution. The Bureau of Indian Affairs may encourage the tribe to enact a resolution repealing the sales tax and renegotiate their loan agreement with the United States, but it is our opinion that the tribe could continue operating its credit program as at present without breach of its contract or violation of law.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

MEMBERSHIP--CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD
RESERVATION

65 I.D. 97

M-36476                                                                                                                             March 3, 1958.

Indian Tribes: Constitutions--Indian Tribes: Membership

Failure of the Secretary of the Interior to disapprove a Tribal Council ordinance which is inconsistent with the tribal constitution does not validate the ordinance.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Membership--Confederated Salish and Kootenai Tribes of the Flathead Reservation

    A question has been raised whether this Department will recognize as effective, at least as far as the Department is concerned, ordinances passed by the Tribal Council of the Salish and Kootenai Tribes of the Flathead Reservation in Montana, by which the Council authorizes itself (1) to remove from enrollment members who were previously enrolled in literal compliance with the membership criteria set forth in the tribal constitution and (2) extends future membership to all children or to to change the provisions of that constitution which any member of the Tribes "who is a resident of the reservation at the time of the birth of said children *     *     *," without complying with the constitutional procedure for such action. The Commissioner of Indian Affairs is advised to point out to the Tribal Council that serious doubts as to the legality of the resolution involved prevent him, as representative of the United States in its capacity as guardian of tribal assets, from recognizing the disenrollment of present members and the failure to enroll new members, insofar as such actions are predicated on the authority of the tribal resolutions inconsistent with the tribal constitution.


 

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DEPARTMENT OF THE INTERIOR

MARCH 3, 1958

    The proposals ("resolutions" or "ordinances") made by the Tribal Council on November 24, 1953, purporting to give the Council authority "to approve or reject the enrollment of any persons who were enrolled by the enrollment committee of April 3, 1944, or of any subsequently appointed enrollment committee" were void ab initio, for it is clear that the Constitution and Bylaws of the Confederated Salish and Kootenai Tribes of the Flat head Reservation do not authorize the Council of such tribes to propose ordinances which will change the eligibility requirements set forth in Section 1 (a) and (b) of Article II of the Constitution with respect to existing membership. Their constitution gives the Council power only to propose ordinances, subject to review by the Secretary of the Interior, governing future membership. No authority in the Constitution empowers the Council retroactively to take membership away from persons properly recognized and included as members under constitutional criteria then in effect.

    As to future membership, the constitutional power to propose ordinances does not imply a power to enact ordinances. The Constitution of the Flathead Reservation Indians, enacted October 4, 1935, appears to be the first adopted pursuant to the Indian Reorganization Act. Later constitutions differ considerably. One important difference is in the power granted to the Council on the subject of future membership. Section 2 of Article II, of the Constitution of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, provides that:

    "the Council shall have the power to propose ordinances, subject to review by the Secretary of the Interior, governing future membership and the adoption of members by the Confederated Tribes." (underscoring added)

In the article entitled "Powers and Duties of the Tribal Council," the Council is given power only "to enact resolutions of ordinances not inconsistent with Article II of this Constitution governing adoption and abandonment of membership." Article VI, sec. 1 (k) . The intent appears to be that the Council can propose ordinances governing both future membership and adoption, but can enact only ordinances concerning adoption and abandonment of membership. Ordinances which it proposes but which it is not authorized to enact must be presented to the Tribe for enactment. Article IX of the Constitution provides for submission of a "proposed ordinance or resolution of the Council *     *     * to a popular referendum, and the vote of a majority of the qualified voters voting in such referendum shall be conclusive and binding on the Tribal Council, provided that at 1east thirty percent (30%) of the eligible voters shall vote in such election."

    It may be suggested that the word "propose" means "promulgate" or "enact" or "adopt." It will be noted that these latter words are used elsewhere in the same section of the Constitution when considering such power. (See Article VI, Sec. 1 (i), (I) (n) (u)). Furthermore, Indian Reorganization Act Tribal Constitutions which empower the Council to enact ordinances governing future tribal membership generally employ those terms of finality. (See, for example, Blackfeet, Lake Superior Chippewa and Colorado River Tribes--"promulgate"; Mescalero Apache and Catawba Tribes--"pass.")

    The power to determine the basis of membership in a tribe, involving as it now does, substantial property interests, is of great importance to each member individually as well as to the tribe collectively, whether it concerns expansion or diminution of membership. If the Tribal membership has delegated this power, such delegation should be clear, and this is especially so where the delegation involves a change in customary tribal law. The provisions of the Flathead Constitution, as well as tribal custom, indicate that the power to change tribal law concerning future membership, except as to adoption and abandonment of membership, was not delegated to the then newly created Tribal Council of delegates, but is to be exercised through a popular referendum, as provided by Article IX of the Tribal Constitution. If the Flathead Indians wish to amend their Constitution to give this power to the Tribal Council established by their 1935 Constitution, Article X thereof provides for such action. This Tribe has previously amended its Constitution to enlarge the power delegated to the Tribal Council (see Amendment I to the Constitution, adopted Dec. 10, 1948) so no procedural difficulties should be experienced.

    Reviewing the facts, the Tribal Council's proposal is that in the future children of members of less than a certain amount of "Kootenai and Salish" blood be disqualified from membership although they possess the amount of "Indian" blood required for membership by the Constitution. A specific illustration involves enrollment of Germaine and Betty Low White, approximately 6% years and 4 years old, respectively, who are 7/32 Flathead, 8/32 Chippewa, and the balance non-Indian blood. Their
sister, Janet Marcelline, 13, is enrolled.

    The Constitution of these Confederated Tribes, adopted pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, does not limit membership to persons of "Kootenai 


 

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DEPARTMENT OF THE INTERIOR

MARCH 3, 1958

or Salish" blood. It provides that membership shall include "all children born to any member of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, who is a resident of the reservation at the time of the birth of said children *     *     * ." (Sec. 1 (b) , Art. II). In a letter dated February 10, 1955, to the Flathead Tribal Council, you concluded:

    "The basic membership provisions under which the tribe is now operating were enacted approximately 20 years ago. The situation has changed materially since that time. Whether the tribe wishes to amend section 1 (b) (of Article II) *     *     * must be determined by its members."

This recommendation is sound.

    Certain other tribes organizing subsequently under the Indian Reorganization Act, which desired to limit enrollment to children born of the "blood" of a particular tribe, specifically did so in their Constitution. (See for examples, Blackfeet, Ute, Fort Mohave, and Absentee-Shawnee Tribal Constitutions, Article II.) The Hualapai Tribe originally adopted the same broad constitutional provision as that quoted above, but their constitution was amended as of October 22, 1955, as provided by Section 16 of the Indian Reorganization Act, and now limits membership to "any child of one-fourth degree or more of Hualapai Indian blood."

    Under the specific provisions of the Tribal Constitution, therefore, the three White children would be entitled to enrollment. Failure to enroll the younger children resulted from an interpretation of tribal ordinances which purport to amend and limit the constitutional provisions referred to. Ordinance No. 4-A, October 4, 1946, of the tribal council, required "1/16 degree of Indian blood" as a limitation, but removed, by implication, the restriction concerning residence of the parents. Ordinance 10-A, April 3, 1951, rescinded the previous ordinance and further limited children as members by prohibiting membership to those who have "less than one-quarter degree Indian blood." Ordinance 18-A. adopted November 24, 1953, sought still further to limit the constitutional provision by requiring that "hereafter no person shall be enrolled as a member of the Confederated Salish and Kootenai Tribes who is less than l/4 degree of Salish or Kootenai Indian blood." The two younger White children evidently were born after the adoption of the 1951 Ordinance 10-A, but only the youngest was born after the 1953 Tribal action, Resolution 18-A. Their parents resided on the reservation at the time of the birth of each child. Since Ordinances 4-A, 10-A, and 18-A were designed to alter the constitutional provisions concerning tribal membership, and since these matters should be determined by a tribal referendum or constitutional amendment, the Commissioner should, as already suggested, advise the tribal authorities to consider resolving the problems presented in a manner consistent with their tribal constitution because he is obligated to distribute tribal funds, held in trust, pursuant to such constitution.

    It has been emphasized that the Secretary of the Interior did not disapprove the purported membership ordinances at the time of their submission to his office for approval. Even if a tribal council resolution were specifically approved, in whole or in part, it might, nevertheless, be invalid in whole or in part.

    The Commissioner must refuse to recognize a tribal ordinance which he has reasonable ground to believe invalid, and can recommend action to validate such ordinance. This duty arises from the requirement of Section 16 of the Indian Reorganization Act of June 18, 1934, supra, that amendments to such a tribal constitution as here involved be effected only at elections called by the Secretary for that purpose and that their text be approved by him. Further, the provisions of the tribal Constitution itself put a responsibility on the Secretary to review ordinances governing future membership (see Article II, sec. 1, and Article VI, sec. 2).

    This responsibility of the Secretary is not a gratuitous interference in the internal affairs of the tribe, nor is it an adjudication of a controversy. It involves a fundamental matter arising from the relationship of the tribe with the United States concerning the privilege of membership in the tribe. The tribe determines its membership, but it is a responsibility of the Secretary to make sure that those who purport to act for the tribe in determining membership have authority to do so; that they have acted in conformance with their tribal laws and Constitution; and that those whom they assert to be tribal members are, in fact, the Indians with whom the United States must deal as members. With regard to this question of the finality of a tribal determination as to its membership the Secretary of the Department of the Interior has expressed his view:

    "The power of an Indian tribe to determine its membership is subject to the qualification, however, that in the distribution of tribal funds and other property under the supervision and control of the Federal Government, the action of the tribe is subject to the supervisory authority of the Secretary of the In-


 

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OPINIONS OF THE SOLICITOR

MARCH 5, 1958

terior." [Citing United States ex rel. West v. Hitchcock, 205 U.S. 80 (1907); Mitchell v. United States, 22 Fed. (2d) 771; United States v. Provoe, 38 F. (2d) 799 reversed on other grounds, 283 U.S. 753 (1931). See also Wilbur v. United States, 281 U.S. 206.] The original power to determine membership, including the regulation of membership by adoption, nevertheless, remains with the tribe *     *     *." [55 I.D. 39, 40 (1934) ]

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

CONSENT OF INDIANS FOR SALE OF ALLOTTED
TIMBER

65 I.D. 101

M-36477                                                                                                                             March 5, 1958.

Indian Lands: Timber--Secretary of the Interior

Although no clear authority has been delegated to the Secretary of the Interior to dispose of timber upon allotted Indian land without the consent, express or implied, of all co-owners, he has authority, and also a responsibility to approve and facilitate the sale or other salvage of timber thereon without obtaining unanimous consent, in order to prevent loss from fire, decay, insect infestation or disease.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Consent of Indians for sale of allotted timber

    In your memorandum of May 20, 1957, you again raise the difficult problem of the necessity of unanimous consent of co-owners to the sale of timber upon allotted Indian land. You question whether the owner of a small fractional interest in allotted land can validly prevent a sale of timber thereon which appears obviously favorable to all owners. You also ask whether consent can be given to such a sale if it involves timber so damaged by fire, insects or disease that delay in obtaining consent of all owners may render the timber valueless.

    The first question is one of statutory interpretation. Restrictions upon alienation of allotted Indian lands at first precluded the sale of timber therefrom, where the chief value of the land was in its timber. Starr v. Campbell, (Wis. 1908), 208 U.S. 527. In 1889, Congress, as a result of a misinterpretation of a Supreme Court decision (see hereafter), empowered the President to authorize, subject to regulations, Indians residing on reservations or allotments to dispose of dead timber. Act of February 16, 1889, 25 Stat. 673. In 1910, the Secretary requested more general authority of Congress. He stated:

    "There is no general law under which authority for the sale of timber on Indian lands, whether allotted or unallotted, can be granted, except the act of February 16, 1889 (25 Stat. L., 673), under which the President may authorize the sale of dead timber, standing or fallen, on Indian reservations or allotments. The provisions of the act of April 21, 1904 (33 Stat. L., 189), empowers the Secretary of the Interior to authorize the sale of timber on allotments within the State of Minnesota, and the President has authority under the Chippewa treaty of September 30, 1854 (10 Stat. L., 1109), to permit Indians who receive lands under the treaty to cut timber from their allotments.

    "It is believed by this department that there should be a general law applicable to all Indian lands, because in many instances the timber is the only valuable part of the allotment or is the only source from which funds can be obtained for the support of the Indian or the improvement of his allotment.

    "It is also important that there be authority to cut the mature timber from unallotted Indian lands, because much of it goes to waste under existing conditions. If the timber could be cut, it would furnish employment to Indians who now are unable to find work; it would furnish funds for tribal uses which could take the place of funds that must now be appropriated from the Treasury for their support. The department is doing everything it can to induce the Indians who have been living in accordance with their primitive habits to take up gainful pursuits. In many cases this problem could be solved by furnishing employment in cutting the timber, which is the most available industry to which their hands could be turned. *     *     * The economic waste incident to withholding authority for cutting that which is deteriorating and which, if removed, would make way for new growth, should be given due consideration.

    "It is believed that legislation on this subject is very greatly needed." (Report No. 1135, H.R. 24922.)


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