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226

DEPARTMENT OF THE INTERIOR

AUGUST 21, 1929

    A later act of March 3, 1921 (41 Stat. 1225, 1249), provides as follows: "That all said lands allotted to or inherited by the Quapaw Indians may, when subject to restrictions against alienation, be leased for mining purposes for such period of time and under such rules, regulations, terms and conditions only as may be prescribed by the Secretary of the Interior, and such lands while restricted against alienation may be leased for mining purposes as provided herein."

    This clearly places the control and supervision over future mining leases in the Secretary of the Interior. It was held in Solicitor's Opinion of June 2, 1922, that the above provision "did not and could not impair valid preexisting leases."

    Some three months after the leases in question had expired, on May 2, 1922, under the Solicitor's Opinions and court decisions above referred to new leases were made and entered into by the Indians and the Eagle-Picher Lead Company, and these were approved by the Secretary of the Interior on September 6, 1922. The present request for approval of the old leases raises the question, of course, as to whether the surrounding circumstances particularly set out above may be regarded as being an approval of or acquiescence in said leases. The history of the case shows there can be little or no question as to the latter.

    It is found that the cases cited in support of the request for approval are not strictly controlling for the reason that under the statute the validity of the leases in question was not specifically conditioned or made dependent upon the prior approval of the Secretary, or the President, as was the case in the matter of certain deeds involved in those cases.

    The absolute necessity for the action requested is not apparent. We are not dealing here with existing leases concerning the validity of which there may be some doubt, or a situation where, even though apparently unnecessary, it could do no particular harm to approve the leases. Here the leases have long since expired, and no serious objection is being raised as to their validity, certainly not by the Department. On the contrary, what action has been taken by the Department is in the direction of acquiescence virtually amounting to approval. In fact, its attitude has been that the law did not require approval by the Secretary.

    Furthermore, in view of the matters set out and the discussions contained in the decisions leading up to the conclusion that these leases expired on May 2, 1922, it is difficult to say just what might be involved in a formal approval of them at this late date. They have been treated as valid by the Department, and, under all the circumstances, it is my view, not only that formal approval is apparently unnecessary, but that it would not be advisable, in some respects, the leases having long since
expired, to take the action requested.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: August 21, 1929.
JOS. M. DIXON, First Assistant Secretary.

WIND RIVER RESERVATION--REPAYMENT OF
IRRIGATION CONSTRUCTION COSTS

52 L.D. 709                                                                                                                           Opinion, September 9, 1929.

INDIAN LANDS-WIND RIVER RESERVATION-WYOMING-
RECLAMATON-IRRIGATION-CONSTRUCTION COSTS-LIEN-
REPAYMENT-TRIBAL FUNDS

    The act of March 3, 1905, provided that the construction costs of the irrigation project on the Wind River Indian Reservation in Wyoming should be repaid in their entirety from tribal funds, and no individual obligation was imposed upon the particular Indians whose lands were to be benefited by the irrigation system.
INDIAN LANDS-WIND RIVER RESERVATION-WYOMING-
RECLAMATION-IRRIGATION-CONSTRUCTION COSTS-LIEN-
REPAYMENT-TRIBAL FUNDS-STATUTES
    The act of August 1, 1914, which changed the preexisting plan of requiring repayment of construction costs from tribal funds to the more equitable one that the individuals benefited should bear the burden, did not contain any provision for the creation of a lien against the lands benefited, and consequently the obligation to repay was merely a personal one imposed upon the landowner.


INDIAN LANDS-RECLAMATION-IRRIGATION-COSTS-
LIEN-STATUTES

    The provision in the act of March 7, 1928, which created a first lien against irrigable lands under all irrigation projects within Indian reservations where the construction, operation and maintenance costs of such projects remained unpaid and reimbursable, had no rectroative effect to the extent of imposing a lien upon lands that had theretofore passed into private ownership free therefrom, or in any way to alter the rights and obligations of parties as fixed prior to the effective date of that act.
INDIAN LANDS-WIND RIVER RESERVATION-WYOMING-
RECLAMATION-IRRIGATION-ALLOTMENT-PATENT-
PURCHASER-COSTS-PAYMENT
    Where irrigable land within the Wind River Indian Reservation in Wyoming, allotted to an Indian in severalty, had been patented to him in fee subsequent to the act of August 1, 1914, but prior to the act of March 7, 1928, the the liability of the Indian, and one purchasing from him, is to be divided between them in proportion to the areas brought under irrigation during their respective ownership



 

227

OPINIONS OF THE SOLICITOR

SEPTEMBER 9, 1929

INDIAN LANDS-WIND RIVER RESERVATION-WYOMING-
RECLAMATION-IRRIGATION-ALLOTMENT-PATENT-
PURCHASER-CONSTRUCTION COSTS-PAYMENT-STATUTES

    The liability imposed by the acts of August 1, 1914, upon an Indian allottee holding a fee patent who sells his land to a white purchaser to pay the construction costs in proportion to the acreage irrigated up to the time the Indian parted with his title, being an obligation in the form of a personal indebtedness, can not be shifted to the purchaser in the absence of an express agreement to that effect.


INDIAN LANDS-RECLAMATION-IRRIGATION-ALLOTMENT-
PURCHASER-CONSTRUCTION COSTS-REPAYMENT-
DELIVERY OF WATER

    Being under no obligation to deliver water free of cost, the right of the Government to require a purchaser from an Indian holder of a fee simple patent to repay such proportionate part of the irrigation construction costs as are properly assessable against land brought under irrigation subsequent to the date of his purchase, can not be defeated by any covenant incorporated in the Indian's deed.


PRIOR SOLICITORS' OPINIONS ADHERED TO

    Solicitors' opinions of December 15, 1922 (49 L.D. 370). and November 6, 1926 (51 L.D. 613), adhered to.

FINNEY, Solicitor:

    You [Secretary of the Interior] have requested my opinion as to the liability of Charles R. Syrie, a white man, for repayment of irrigation construction costs on lands within the Wind River irrigation project in Wyoming purchased by him from William Hamilton, an Indian allottee to whom a patent in fee had previously issued.

    Mr. Hamilton, it appears, was allotted under the general allotment act of February 8, 1887 (24 Stat. 388) 100 acres of land on the Shoshone or Wind River Reservation described as the N. 1/2 NW. 1/4 and S. 1/2 NE. 1/4 NE. 1/4 Sec. 24, T. 1 S., R. 1 E., 20 acres of which was classed as irrigable land, and the balance nonirrigable agricultural or nonirrigable grazing lands. Pursuant to a finding that the Indian was competent and upon authority of the act of May 8, 1906 (34 Stat. 182), the Secretary of the Interior on August 25, 1916, issued to the allottee a fee simple patent. Subsequently, on October 9, 1917, the allottee by warranty deed conveyed the entire allotment to Mr. Syrie together with-

    All and singular the improvements of every kind and nature thereon, and in any wise appurtenant thereto, including and conveying hereby all waters appropriated for beneficial use upon and the irrigation of said lands, together with all irrigation ditches and laterals appurtenant to said lands for irrigation thereof and the use of the waters thereon; also the proportionate right to the use of water through and from the Coolidge Ditch.
    While, as indicated above, but 20 acres of the land was classed as irrigable, it appears that the actual irrigable area was about 70 acres. Some conflict appears as to the area under irrigation at the time the Indian parted with his title. The Indian Office states that the allottee had developed approximately 40 acres of irrigable land at the time he was found competent to receive a fee patent, and that 35 acres thereof were then under cultivation. Mr. Syrie alleges that at the time he purchased the land approximately 70 acres were under irrigation, all of which had been farmed and irrigated during the season of 1916 and 1917, and he contends that under the then existing legislation and in virtue of the clause in his deed reproduced above, the lands passed to him free from any charge for the construction costs of the project. On the other hand, the Commissioner of Indian Affairs has taken the following position:
    This office and the department has heretofore recognized paid-up water rights as to irrigation construction costs on a 20 acre tract originally allotted as irrigable land, in accordance with an opinion by the Attorney General dated September 2, 1921, and an opinion by the Solicitor for the Interior Department, dated December 15, 1922; but in view of the fact that a considerable portion of the remainder of the allotment, originally allotted as grazing land, has been brought under irrigation by the construction of the Wind River Irrigation Project. It has been held that such area is subject to assessment for its pro rata share of the irrigation construction costs, under the provisions of the Act of August 1, 1914, supra, and subsequent legislation. Since the Indian was allotted but 20 acres of irrigable land, indicating that the Government contemplated the placing of that area only under irrigation, the present owner is apparently without adequate grounds for his claim to a paid up water right for the total area now under irrigation, being approximately 70 acres.
    The act of March 7, 1928 (45 Stat. 200, 210), contains the following provision:
    * * * That the costs of irrigation projects and of operating and maintaining such projects where reimbursement thereof is required by laws shall be apportioned on a per acre basis against the lands under the respective

 

228

DEPARTMENT OF THE INTERIOR

SEPTEMBER 9, 1929

projects and shall be collected by the Secretary of the Interior as required by such law, and any unpaid charges outstanding against such lands shall constitute a first lien thereon which shall be recited in any patent or instrument issued for such lands.

    The above legislation, it will be observed, creates a first lien against irrigable lands under all irrigation projects where the construction, operation, and maintenance costs of such projects remain unpaid and are reimbursable and had it been in force at the time the transactions above referred to took place, it is clear that the irrigation construction costs would have been a charge running as a covenant with the land and enforceable as such against the Indian and his successors in interest. But, bearing in mind that it is beyond the power even of Congress to invade or impair vested rights (Choate v. Trapp, 224 U.S. 665), it becomes necessary to look at the situation prevailing under the prior legislation dealing with this project, particularly with respect to the rights and obligations of the parties as they then existed.

    By the act of March 3, 1905 (33 Stat. 1016), ratifying an agreement previously made, the Wind River or Shoshone Indians ceded and relinquished to the United States part of their reservation retaining the right, however, for individual Indians desiring to do so, to select allotments within the ceded area. The United States was to act as trustee in the disposal of the ceded lands for the Indians and the proceeds arising from such disposition were to be paid over or expended for specific purposes, one of which as set forth in Article 4 of the agreement was-

    It is further agreed that of the moneys derived from the sale of said lands the sum of one hundred and fifty thousand dollars, or so much thereof as may be necessary, shall be expended under the direction of the Secretary of the Interior for the construction and extension of an irrigation system within the diminished reservation for the irrigation of the lands of the said Indians.
    Anticipating receipts from sales of the ceded lands, Congress, in section 3 of the same act (page 1022) appropriated certain sums from the Treasury. The last item of these appropriations reads-
    * * * and the sum of twenty-five thousand dollars is hereby appropriated out of any money in the Treasury of the United States not otherwise appropriated, the same to be reimbursed from the proceeds of the sale of said lands, to be used in the construction and extension of an irrigation system on the diminished reserve, as provided in article four of the agreement.
    Subsequent Indian appropriation acts each carried an annual appropriation for continuing the construction of an irrigation system for the benefit of the Indians of the Wind River Reservation, reimbursement of which was to be had out of the proceeds derived from sales of surplus tribal lands in accordance with the act of March 3, 1905, supra. In other words, the construction costs of this project were not originally imposed upon the particular Indians whose lands were benefited by the irrigation system but were to be repaid in their entirety from tribal funds.

    By the act of August 1, 1914 (38 Stat. 582, 583), however, Congress changed its policy. That enactment, which was held by the former Solicitor for this department (opinion of May 25, 1920, D-47513) and the Attorney General (33 Ops. Atty. Gen. 26) to apply to Wind River, reads in part-

    * * * That all moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe: Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made reimbursable out of tribal funds of said Indians in accordance with the benefits received by each individual Indian so far as practicable from said irrigation project, said cost to be apportioned against such individual Indian under such rules, regulations, and conditions as the Secretary of the Interior may prescribe.
    The plan of requiring repayment of the construction costs of the Wind River and other projects from tribal funds was thus abandoned in favor of the more equitable one that the individuals benefited should bear the burden.

    In none of this earlier legislation however, was there any provision for the creation of a lien against the lands benefited and it is clear that the lands here involved were not burdened with any such lien. The trust patent received by Hamilton, the allottee, declared, in conformity with section 5 of the general allotment act of 1887, supra, that the United States would hold the lands in trust for a period of 25 years with the promise to convey the fee at the end of that time "discharged of said
 


 

229

OPINIONS OF THE SOLICITOR

JANUARY 25, 1930

trust and free from all charges or encumbrances whatsoever." Pursuant to this promise to convey clear and unencumbered title, the fee patent, issued as aforesaid in 1916, recited no lien specific or otherwise for the repayment of the irrigation construction costs and the land, therefore, passed to the allottee and likewise to his purchaser free from any such charge. There being no lien, the obligation to repay was, of course, a personal one resting against the landowner. See in this connection Solicitor's opinion of December 15, 1922 (49 L.D. 370).

    In this situation it is plain, I think, that the acreage allotted to the Indian as irrigable land has no importance in so far as determination of the liability of the respective parties is concerned. True, had the project been constructed as originally planned, that is, the cost to be paid from tribal funds, no obligation to repay would have rested on the landowner, Indian or white. But, as we have seen, the plan changed so as to shift the obligation to repay the whole cost of the project to the individuals benefited, each of whom was to pay his proportionate part of the expense for every acre irrigated whether the area so irrigated consisted of 20 acres, 40 acres, or the entire irrigable area of the allotment. The obligation being personal and not a charge against the land, the correct standard of liability as between the Indian and one purchasing from him was, in my opinion, that set forth in Solicitor's opinion of November 6, 1926 (51 L.D. 613), to the effect that such liability is to be divided between the parties according to the areas brought under irrigation during their respective ownerships. As to the acreage irrigated up to the time the Indian parted with his title, the obligation to repay was chargeable to him in the form of a personal indebtedness which could not be shifted to the shoulders of the purchaser in the absence of an express agreement to that effect. If, however, the Indian had desired water for additional areas. he would, of course, have had to assume the obligation of paying therefor. By the same token and in accord with the well-settled doctrine that one can not transfer any greater estate or interest than he himself has, the purchaser is in a like position and this would be so irrespective of any covenant that might be contained in the deed from the Indian for any breach of which the purchaser must, of course, look to his grantor, it being clear that the Government is not bound thereby.

    Manifestly, therefore, under the legislation in force at the time of acquisition of title by Mr. Syrie, no lien for repayment of the irrigation construction costs rested against the land and, in the view I take, the land passed to him free from any obligation to repay any part of the construction costs assessable against such portion thereof as was then under irrigation, the obligation of making such repayment representing a personal indebtedness of the Indian which, as indicated above, could not be shifted to the purchaser in the absence of an express agreement to that effect. This being so, I think it plain that the act of March 7, 1928, supra, can have no retroactive effect to the extent either of imposing a lien against the land or in any way to alter the rights and obligations of the parties. So to do would have the effect of impairing rights and obligations that had become vested and fixed under the prior legislation and this would run counter to the doctrine recognized and upheld by the court in United States v. Heinrich (12 Fed. 2d series, 938). See also Choate v. Trapp, supra.

    In conclusion I have to advise that, in my opinion, Mr. Syrie is liable for repayment of only such proportionate part of the construction costs of the Wind River irrigation project as are properly assessable against such additional areas as may have been brought under irrigation after the acquisition of title by him. As to this acreage he is in no position to insist or demand that the Government furnish water free of costs, but it would be advisable, as suggested in Solicitor's opinion of November 6, 1926, above referred to, to require the execution of an agreement to that effect and delivery of water to such additional areas may be withheld until he agrees to pay therefor.

Approved:
JOHN H. EDWARDS, Assistant Secretary.

LIABILITY FOR IRRIGATION COSTS

M-25347                                                                                                                                  January 25, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the liability of Charles S. Syrie, a white man, for repayment of irrigation construction costs on lands within the Wind River irrigation project in Wyoming purchased by him from William Hamilton, an Indian allottee to whom a patent in fee had previously issued.

    Mr. Hamilton, it appears, was allotted under the general allotment act of February 8, 1887 (24 Stat. 100 acres of land on the Shoshone or Wind River Reservation described as the N 1/2 NW 1/4 and S 1/2 NE 1/2 NW 1/2 of Sec. * * * T. 1 S., R. 1 E., 20
 


 

230

DEPARTMENT OF THE INTERIOR

JANUARY 25, 1930

acres of which was classed as irrigable land, and the balance nonirrigable agricultural or nonirrigable grazing lands. Pursuant to a finding that the Indian was competent and upon authority of the act of May 8, 1906 (34 Stat. 182), the Secretary of the Interior on August 25, 1916, issued to the allottee a fee simple patent. Subsequently, on October 9, 1917, the allottee by warranty deed conveyed the entire allotment to Mr. Syrie together with

    all and singular the improvements of every kind and nature thereon, and in any wise appurtenant thereto, including and conveying hereby all waters appropriated for beneficial use upon and the irrigation of said lands, together with all irrigation ditches and laterals appurtenant to said lands for irrigation thereof and the use of the waters thereon; also the proportionate right to the use of water through and from the Coolidge Ditch.
    While, as indicated above, but 20 acres of the land was classed as irrigable, it appears that the actual irrigable area was about 70 acres. Some conflict appears as to the area under irrigation at the time the Indian parted with his title. The Indian office states that the allottee had developed approximately 40 acres of irrigable land at the time he was found competent to receive a fee patent, and that 35 acres thereof were then under cultivation. Mr. Syrie alleges that at the time he purchased the land approximately 70 acres were under irrigation, all of which had been farmed and irrigated during the season of 1916 and 1917, and he contends that under the then existing legislation and in virtue of the clause in his deed reproduced above, the lands passed to him free from any charge for the construction costs of the project. On the other hand, the Commissioner of Indian Affairs has taken the following position:
    This Office and the Department has heretofore recognized paid-up water rights as to irrigation construction costs on a 20 acre tract originally allotted as irrigable land, in accordance with an opinion by the Attorney General dated September 2, 1921, and an opinion by the Solicitor for the Interior Department, dated December 15, 1922; but in view of the fact that a considerable portion of the remainder of the allotment, originally allotted as grazing land, has been brought under irrigation by the construction of the Wind River Irrigation Project, it has been held that such area is subject to assessment for its pro rata share of the irrigation construction costs, under the provisions of the Act of August 1, 1914, supra, and subsequent legislation. Since this Indian was allotted but 20 acres or irrigable land, indicating that the Government contemplated the placing of that area only under irrigation, the present owner is apparently without adequate grounds for his claim to a paid up water right for the total area now under irrigation, being approximately 70 acres.
    The act of March 7, 1928 (45 Stat. 210) contains the following provision:
    That the costs of irrigation projects and of operating and maintaining such projects where reimbursement thereof is required by laws shall be apportioned on a per acre basis against the lands under the respective projects and shall be collected by the Secretary of the Interior as required by such law, and any unpaid charges outstanding against such lands shall constitute a first lien thereon which shall be recited in any patent or instrument issued for such lands.
    The above legislation, it will be observed, creates a first lien against irrigable lands under all irrigation projects where the construction, operation, and maintenance costs of such projects remain unpaid and are reimbursable and had it been in force at the time the transactions above referred to took place, it is clear that the irrigation construction costs would have been a charge running as a covenant with the land and enforceable as such against the Indian and his successors in interest. But, bearing in mind that it is beyond the power even of Congress to invade or impair vested rights (See Choate v. Trapp, 224 U.S. 665), it becomes necessary to look at the situation prevailing under the prior legislation dealing with this project, particularly with respect to the rights and obligations of the parties as they then existed.

    By the act of March 3, 1905 (33 Stat. 1016), ratifying an agreement previously made, the Wind River or Shoshone Indians ceded and relinquished to the United States part of their reservation retaining the right, however, for individual Indians desiring to do so, to select allotments within the ceded area. The United States was to act as trustee in the disposal of the ceded lands for the Indians and the proceeds arising from such disposition were to be paid over or expended for specific purposes, one of which as set forth in Article 4 of the agreement was:

    It is further agreed that of the moneys derived from the sale of said lands the sum of one



 

231

OPINIONS OF THE SOLICITOR

JANUARY 25, 1930

hundred and fifty thousand dollars, or so much thereof as may be necessary, shall be expended under the direction of the Secretary of the Interior for the construction and extension of an irrigation system within the diminished reservation for the irrigation of the lands of the said Indians.

    Anticipating receipts from sales of the ceded lands, Congress, in section 3 of the same act (page 1022) appropriated certain sums from the Treasury. The last item of these appropriations reads:
and the sum of twenty-five thousand dollars is hereby appropriated out of any money in the Treasury of the United States not otherwise appropriated, the same to be reimbursed from the proceeds of the sale of said lands, to be used in the construction and extension of an irrigation system on the diminished reserve, as provided in article four of the agreement.
    Subsequent Indian appropriation acts each carried an annual appropriation for continuing the construction of an irrigation system for the benefit of the Indians of the Wind River Reservation, reimbursement of which was to be had out of the proceeds derived from sales of surplus tribal lands in accordance with the act of March 3, 1905, supra. In other words, the construction costs of this project were not originally imposed upon the particular Indians whose lands were benefited by the irrigation system but were to be repaid in their entirety from tribal funds.

    By the act of August 1, 1914 (38 Stat. 582, 583), however, Congress changed its policy. That enactment which was held by the former Solicitor for this Department (opinion of May 25, 1920, D-47513) and the Attorney General (33 Ops. A. G.
26) to apply to Wind River, reads in part:

    That all moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe: Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made reimbursable out of tribal funds of said Indians in accordance with the benefits received by each individual Indian so far as practicable from said irrigation project, said cost to be apportioned against such individual Indian under such rules, regulations, and conditions as the Secretary of the Interior may prescribe.
    The plan of requiring repayment of the construction costs of the Wind River and other projects from tribal funds was thus abandoned in favor of the more equitable one that the individuals benefited should bear the burden.

    In none of this earlier legislation, however, was there any provision for the creation of a lien against the lands benefited and it is clear that the lands here involved were not burdened with any such lien. The trust patent received by Hamilton, the allottee, declared, in conformity with section 5 of the general allotment act of 1887, supra, that the United States would hold the lands in trust for a period of 25 years with the promise to convey the fee at the end of that time "discharged of said trust and free from all charges or incumbrances whatsoever." Pursuant to this promise to convey clear and unincumbered title, the fee patent, issued as aforesaid in 1916, recited no lien specific or otherwise for the repayment of the irrigation construction costs and the land, therefore, passed to the allottee and likewise to his purchaser free from any such charge. There being no lien, the obligation to repay was, of course, a personal one resting against the landowner. See in this connection Solicitor's opinion of December 15, 1922 (49 L.D. 370).

    In this situation, it is plain I think that the acreage allotted to the Indian as irrigable land has no importance in so far as determination of the liability of the respective parties is concerned. True, had the project been constructed as originally planned, that is the cost to be paid from tribal funds, no obligation to repay would have rested on the landowner, Indian or white. But, as we have seen, the plan changed so as to shift the obligation to repay the whole cost of the project to the individuals benefited, each of whom was to pay his proportionate part of the expense for every acre irrigated whether the area so irrigated consisted of 20 acres, 40 acres, or the entire irrigable area of the allotment. The obligation being personal and not a charge against the land, the correct standard of liability as between the Indian and one purchasing from him was, in my opinion, that set forth in Solicitor's opinion of November 6, 1926 (51 L.D. 613), to the effect that such liability is to be divided between the parties according to the areas brought under irrigation during their respective ownerships. As to the acreage irrigated up to the time the Indian parted with his title, the obligation to repay was chargeable to him in the
 


 

232

DEPARTMENT OF THE INTERIOR

JANUARY 25, 1930

form of a personal indebtedness which could not be shifted to the shoulders of the purchaser in the absence of an express agreement to that effect. If, however, the Indian had desired water for additional areas, he would, of course, have had to assume the obligation of paying therefor. By the same token and in accord with the well-settled doctrine that one can not transfer any greater estate or interest than he himself has, the purchaser is in a like position and this would be so irrespective of any covenant that might be contained in the deed from the Indian for any breach of which the purchaser must, of course, look to his grantor, it being clear that the Government is not bound thereby.

    Manifestly, therefore, under the legislation in force at the time of acquisition of title by Mr. Syrie, no lien for repayment of the irrigation construction costs rested against the land and, in the view I take, the land passed to him free from any obligation to repay any part of the construction costs assessable against such portion thereof as was then under irrigation, the obligation of making such repayment representing a personal indebtedness of the Indian which, as indicated above, could not be shifted to the purchaser in the absence of an express agreement to that effect. This being so, I think it plain that the act of March 7, 1928, supra, can have no retroactive effect to the extent either of imposing a lien against the land or in any way to alter the rights and obligations of the parties. So to do would have the effect of impairing rights and obligations that had become vested and fixed under the prior legislation and this would run counter to the doctrine recognized and upheld by the court in United States v. Heinrich (12 Fed. 2d 938). See also Choate v. Trapp, supra.

    In conclusion I have to advise that in my opinion Mr. Syrie is liable for repayment of only such proportionate part of the construction costs of the Wind River irrigation project as are properly assessable against such additional areas as may have been brought under irrigation after the acquisition of title by him. As to this acreage he is in no position to insist or demand that the Government furnish water free of costs but it would be advisable as suggested in Solicitor's opinion of November 6, 1926, above referred to, to require the execution of an agreement to that effect and delivery of water to such additional areas may be withheld until he agrees to pay therefor.

Solicitor.
Approved:
--------------------, Assistant Secretary.

TAXABILITY OF CHEROKEE LANDS

53 I.D. 48

M-25737                                                                                                                                          March 3, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the rights of Stealer Wilson a three-fourths blood member of the Cherokee Nation in Oklahoma with respect to the taxability of his lands under the provisions of the act of May 10, 1928 (45 Stat. 495), as amended by the act of May 24, 1928 (45 Stat. 733).

    Before discussing the provisions of the legislation in question, it may prove helpful to refer briefly to certain well-known facts and also to prior legislation bearing upon the taxability and alienability of lands allotted to members of this tribe and the
powers of Congress with respect thereto.

    The Five Civilized Tribes of which the Cherokee Nation is one, originally owned extensive areas of land in the territory now embraced within the limits of the State of Oklahoma. They existed, broadly speaking, as political governmental entities, holding their lands in communal ownership, controlled mainly by their own laws and customs with the definite right of excluding practically all nontribal members from their territory. The somewhat anomalous condition thus existing presented a serious obstacle to the creation of a State which Congress desired to recognize for the government and development of that part of the country. This, coupled with changing conditions and necessities led to the passage of the act of March 3, 1893 (27 Stat. 645), by which Congress inaugurated a policy looking to termination of the tribal existence and government and the allotting of their lands in severalty through agreements to be negotiated with the several tribes by what is known as the Dawes Commission created by that act. Separate agreements were negotiated with each tribe but all were substantially the same in general outline and purpose and provided in the main for relinquishment by the members of all claims to tribal property in consideration of which they were to receive allotments of land in severalty to be nontaxable and inalienable for specified periods.

    The Cherokee agreement ratified by the Indians August 7. 1902, is found in the act of July 1, 1902 (32 Stat. 717). Under it, each member received an allotment of land equal in value to 110 acres of the average allotable land of the Cherokee Nation (Sec. 11). The act further provides:
 


 

233

OPINIONS OF THE SOLICITOR

MARCH 3, 1930

    Sec. 13. Each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead out of said allotment equal in value to forty acres of the average allotable lands of the Cherokee Nation, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. Separate certificate shall issue for said homestead. During the time said homestead is held by the allottee the same shall be nontaxable and shall not be liable for any debt contracted by the owner thereof while so held by him.

    Sec. 14. Lands allotted to citizens shall not in any manner whatever or at any time be uncumbered, take, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of this Act.

    Sec. 15. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alien able in five years after issuance of patent.

    Pursuant to the foregoing provisions the lands allotted to members of the tribe as homesteads were inalienable during the life of the allottee not exceeding 21 years from the date of allotment. But "during that time said homestead is held by the allottee" the same is nontaxable. The remainder of the lands allotted to each member commonly termed the surplus, was inalienable for a period of five years from the date of patent. While the statute does not expressly so provide, it is clear that the surplus was also nontaxable for the five-year period because the restrictions against alienation as therein imposed prohibits both voluntary and involuntary alienation, and hence the lands while so restricted are not subject to leave, sale, or execution for debts, whether for taxes or otherwise. (See Sol. Op. of November 13, 1922, 49 L.D. 348).

    By later legislation as found in the acts of April 26, 1906 (34 Stat. 137), and May 27, 1908 (35 Stat. 312), Congress set up a new and uniform set of restrictions applicable alike to all of the Five Civilized Tribes. Without discussing the provisions of this later legislation in detail, it is sufficient for present purposes to point out that the restrictions against alienation of lands allotted to certain members of these tribes, including full-bloods and three-fourths bloods, not theretofore removed by or under any prior law, were continued to April 26, 1931, and the restrictions as to certain other lands were removed with the provision that such lands should thereupon become subject to taxation by the State.

    It is now settled law that the extension and removal of restrictions against alienation affected by these acts was within the powers of Congress and that such statutes are valid and constitutional. Heckman v. United States, (224 U.S. 413) ; Brader v. James (246 U.S. 88); Talley v. Burgess (246 U.S. 104). But with respect to the exemption from taxation a different rule obtains. The Supreme Court of the United States in Choate v. Trapp (224 U.S. 665), had occasion to consider the effect of the provision in the act of May 27, 1908, supra, declaring that the lands from which the restrictions were removed should thereupon become subject to taxation in relation to lands of the Choctaws and Chickasaws on which the period of exemption from taxation had not applied under the original agreement with those Indians. It was there held that the exemption from taxation was a vested property right which the Indians had acquired for the consideration in part of their release of all their claims as individuals to the tribal property and that such rights were protected from abrogation by the provision of the fifth amendment to the Federal Constitution. To the same effect is Gleason v. Wood (224 U.S. 679), and English v. Richardson
(224U.S. 680). See also Carrenter v. Shaw, decided by the Supreme Court of the United States on January 15, 1930; Advanced Opinions Supreme Court No. 5, page 123. In the Choate-Trapp case, The Supreme Court pointed out the clear distinction between the exemption from taxation and the restriction on alienation and defined the powers of Congress in relation thereto as follows:

    But the exemption and nonalienability were two separate and distinct subjects. One conferred a right and the other imposed a limitation * * *. The right to remove restrictions was in pursuance of the power under which Congress could legislate as to the status of the ward and lengthen or shorten the period of disability. But the provision that the land should be nontaxable was a property right which Congress undoubtedly had the power to grant. That rightfully vested in the Indians and was binding upon Oklahoma.
  See also Welch v. First Trust and Savings Bank (15 Fed. 2d. 184.)

    It is thus apparent that the provisions of the foregoing legislation imposed restrictions upon alienation of the lands allotted in severalty to the members of the Five Civilized Tribes do not constitute irrevocable covenants but are more in the nature of personal disabilities imposed upon the Indians which Congress has power to enlarge or restrict as and when it sees fit so to do. The exemption from taxation on the other hand rests upon a much different footing. Such exemption
 


 

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once attached becomes a vested property right protected from impairment or abrogation by the provisions of the Federal Constitution to the same extent as any other property right. With this in mind, we turn to the provisions of the act of 1928, the first section of which extends for an additional period of 25 years, the existing restrictions otherwise expiring on April 26, 1931. Section 4 is of most importance here and is quoted below in full:

    That on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of the Five Civilized Tribes in excess of one hundred and sixty acres shall be subject to taxation by the State of Oklahoma under and in accordance with the laws of the State, and all respects as unrestricted and other lands: Provided, that the Indian owner of restricted land, if an adult and not legally incompetent, shall select from his restricted land a tract or tracts, not exceeding in the aggregate one hundred and sixty acres, to remain exempt from taxation, and shall file with the Superintendent of the Five Civilized Tribes a certificate designating and describing the tract or tracts so selected; Provided further that in cases where such Indians fail, within two years from date hereof, to file such certificate, and in cases where the Indian owner is a minor or otherwise legally incompetent, the selection shall be made and certificate prepared by the Superintendent for the Five Civilized Tribes; and such certificate, whether by the Indian or by the Superintendent of the Five Civilized Tribes, shall be subject to approval by the Secretary of the Interior; and, when approved by the Secretary of the Interior, shall be recorded in the office of the Superintendent for the Five Civilized Tribes, and in the county records of the county in which the land is situated; and said lands, designated and described in the approved certificates so recorded, shall remain exempt from taxation while the title remains in the Indian designated in such approved and recorded certificate, or in any full-blood Indian heir or devisee of the land: Provided, that the tax exemption shall not extend beyond the period of restrictions provided for in this Act. And provided further, that the tax-exempt land of any such Indian allotted, heir, or devisee shall not at any time exceed one hundred and sixty acres.
    The language of the statute as just quoted is free from ambiguity in so far as it was within the power of Congress to so provide, the plain effect is to limit the tax-exempt acreage of these Indians to not exceeding 160 acres which are to be designated from his restricted allotted, inherited and devised lands in the manner therein provided for. Turning to the facts at hand, however, we find that the Indian whose lands are involved in the present inquiry received an allotment of 649.44 acres of land, of which 240 acres were designated as his homestead, and the remainder, 409.44 acres as surplus. With the surplus lands we are not here so much concerned because as to that land the restrictions against alienation and the exemption from taxation run concurrently for a period expiring on April 26, 1931. As to the homestead, however, section 17 of the original Cherokee agreement declared that "during the time said homestead is held by the allottee the same shall be nontaxable." Under this provision it is plain that the homestead of the allottee is exempt from taxation so long as it is held and owned by him and that such exemption is protected by the Federal Constitution on principles stated and applied in Choate v. Trapp, supra. Manifestly, therefore, this right of exemption from taxation can not be forcibly struck down in whole or in part and the act of 1928 must be considered as ineffective in so far as it purports so to do. While this is true, it by no means follows that the allottee is entitled to select and hold under the act of 1928 additional tax-exempt lands, as that would clearly contravene both the spirit and letter of the statute.

    It is to be observed, however, that the exemptions from taxation attaching to the 160 acres selected and designated under the act of 1928 is broader in its scope than that attaching to the homestead under the original Cherokee agreement in that the benefit of the exemption inures to the heirs and devisees of the allottee. In view of this it may well be that the allottee in the instant case, or others similarly situated, may prefer the exemption from taxation extended by the act of 1928 rather than stand on their rights under the original agreement. No legal one is seen why they should not be permitted so to do. As said by the Supreme Court of the United States in Sweet v. Shock (245 U.S. 192), "The right or privilege of exemption from taxation can not be taken from an allottee's land while he retains the title. The surrender may not be forced from him, but he may yield it and bargain for another right or privilege".

    It follows from what has been said that the allottee here involved and other members of the Cherokee Tribe in like position, may do one of two things. First, they may retain the right of non-taxability attaching to their lands under the original agreement with the Cherokee Tribe or second, they may if they so desire, waive that right in favor of the exemption extended by the act of 1928,
 


 

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which may be accomplished by selection and designation in the manner provided for therein.

Solicitor.
Approved:
------------------First Assistant Secretary.

CUSTOM MARRIAGE AND DIVORCE

53 I.D.78                                                                                                                                                     April 12, 1930.

INDIAN LANDS-MARRIAGE-DIVORCE-DEPARTMENT OF THE
INTERIOR-JURISDICTION

    The Department of the Interior has no concern with reference to the distribution of unrestricted property belonging to Indian estates regardless of the fact that the question of marriage or divorce may be involved.


INDIAN LANDS-CEREMONIAL MARRIAGE-INDIAN CUSTOM
DIVORCE

    Where Indians, parties to a ceremonial marriage, both of whom were still living in tribal relations, separated with the clear intention of not living together again, such separation constitutes a valid Indian custom divorce.


INDIAN LANDS-INDIAN CUSTOM DIVORCE-DESCENT AND
DISTRIBUTION-ESTOPPEL

    Where an Indian wife separated from her Indian husband with clear intention of never living with him again, she is estopped from claiming any share in his estate.


INDIAN LANDS-INDIAN HEIRSHIP-SECRETARY OF THE
INTERIOR-COURTS-JURISDICTION-STATUTES

    The act of June 25, 1910, made the Secretary of the Interior a special tribunal with exclusive jurisdiction to determine the heirs of deceased Indians, and his decisions thereon are final and conclusive, and notreviewable by the courts even after the expiration of the trust period.


INDIAN LANDS-INDIAN CUSTOM DIVORCE

    In recognizing the validity of Indian custom divorces no distinction is to be made in the kind of marriage which such divorce dissolves so long as the parties contracting the marriage and effecting the divorce are Indian wards of the Government and living in tribal relations.


INDIAN LANDS-GUARDIANSHIP-JURISDICTION

    When the guardianship of the United States over Indians terminates is a political matter to be determined by Congress, and one over which neither the courts nor the States have any power.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE

    A marriage contracted between members of an Indian tribe, in accordance with customs of such tribe, where the tribal relations and government existed at the time of the marriage, and there was no Federal statute rendering the tribal customs invalid, is a valid marriage for all purposes.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE-
COMMON LAW MARRIAGE

    An Indian custom marriage is a legal marriage according to the customs of the tribe and is, therefore, not to be treated as the equivalent of a common-law marriage among whites.


INDIAN LANDS-ALLOTMENT-DESCENT AND DISTRIBUTION-
TRUST PATENT-MARRIAGE-STATUTES

    The provision in section 5 of the act of February 8, 1887, making the laws of descent of the State or Territory where the lands are situated applicable after trust patents have been issued was merely for the purpose of establishing a rule for the determination of heirship; the act does not undertake to prescribe what is necessary to constitute the legal relation of husband and wife, or of parent and child.


INDIAN LANDS-ALLOTMENT-CITIZENSHIP-MARRIAGE-
DIVORCE-STATUTES

    Under the act of May 8, 1906, which amended section 6 of the act of February 8, 1887, an Indian did not become a citizen of the United States upon allotment; consequently, as to allotments thereafter made the allottee did not become subject to State laws, but his domestic relations continued to be governed by tribal custom.


INDIAN LANDS-ALLOTMENT-PATENT-JURISDICTION-
INDIAN CUSTOM MARRIAGE

    The allotment of lands in severalty to Indians does not terminate their tribal relations, but all Indian allottes remain subject to the exclusive jurisdiction of the United States until the issuance of fee simple patents, and so long as this jurisdiction continues the marriage relations of such Indians are to be determined by their tribal customs, and not by the laws of the State.


INDIAN LANDS-ALLOTMENT-HEIRSHIP-STATUTES

    The act of February 8, 1887, is primarily an allotment act, whereas the act of June 25, 1910, is for the purpose of determining the heirs of deceased allottees, and if a conflict arises between the provisions of the two acts with reference to the determination of heirship, the latter act governs.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE-CEREMONIAL
MARRIAGE-PRESUMPTION OF ABANDONMENT

    The fact that certain members of an Indian tribe who were married and lived together according to tribal custom were subsequently ceremonially married is not sufficient to raise the presumption of abandonment of tribal custom and that Indian custom marriage and divorce are no longer practiced by the tribe.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE-INDIAN
CUSTOM DIVORCE

    The Department of the Interior can not hold by regulation that one particular tribe of Indians is sufficiently advanced to justify its marriage relations being henceforth regulated in



 

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accordance with the white man's law, and that other tribes are not so advanced, but it must recognize Indian custom marriage and Indian custom divorce generally until Congress fixes some other definite and uniform rule.


INDIAN LANDS-MARRIAGE-DIVORCE

    A law or ordinance adopted by an Indian tribe regulating marriage and divorce is not mandatory and does not invalidate custom marriage and divorce.


INDIAN LANDS-INDIAN CUSTOM DIVORCE -EVIDENCE

    The question as to when an Indian custom divorce has been consummated is one of fact in each particular case.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE-
INDIAN CUSTOM DIVORCE

    Congress alone has the power to say when Indian custom marriage and divorce shall cease to be valid.


INDIAN LANDS-CITIZENSHIP-STATUTES

    The act of June 2, 1924, which declared all noncitizen Indians born within the territorial limits of the United States to be citizens of the United States did not contemplate any disturbance of the existing status and relations of the Indians with respect to their property and other recognized rights.


INDIAN LANDS-INDIAN CUSTOM MARRIAGE-INDIAN
CUSTOM DIVORCE

    Congress, the courts, and the Department of the Interior have all recognized Indian custom marriage and Indian custom divorce as of equal validity with ceremonial marriage and legal divorce under State laws.


FINNEY, Solicitor:

    My opinion is requested on certain matters submitted by the Commission of Indian Affairs relating to the department's finding of heirs on October 8, 1927, to the estate of Noah Bredell, a deceased Nez Perce Indian, Fort Lapwai Agency, Idaho.

    The estate consisted partly of property held in trust by the United States and partly of unrestricted property over which the department has no jurisdiction. The finding of heirs by the department extended only to the property held in trust. An administrator was appointed in Idaho for the unrestricted part of the estate and as to the distribution of this part the department, of course, is not concerned. This is equally true of all property belonging to Indian estates over which the department has no jurisdiction, whether the question of marriage and divorce, as in this case, is involved or not.

    Under the department's finding of heirs to the estate of Noah Bredell one Lillie Viles, to whom he was married by ceremony, was excluded on the ground that she separated from him under such circumstances as constituted a valid Indian custom divorce.

    The specific questions submitted for opinion are: (1) Whether the 1927 decision should stand or be reversed and (2) the broad general policy as to what constitutes Indian custom marriage and divorce.

    Although the department heretofore has frequently had occasion to consider and pass upon similar questions, in view of somewhat prevalent misconceptions it is deemed advisable to review the situation at considerable length. It may be said here that in view of repeated statements and references that have been made concerning the marital history of Noah Bredell, his having been a member of the church and his seeming inclination to follow the white man's ways, the question is not whether he divorced himself from Lillie Viles, but whether her actions and demeanor amounted to a divorce from him according to the Indian custom; and furthermore as to whether such a divorce may be recognized in view of the fact that the parties went through the form of a ceremonial marriage.

    The department determined the heirs to the estate of Noah Bredell October 8, 1927. Similar contentions were made at the original hearing for such determination as are now being made for a reopening of the case. No new evidence of a material nature has been added to the record made up at that time. On the question as to whether the separation of the parties may be regarded as a divorce in accordance with Indian custom the pertinent facts are as follows: Noah Bredell and Lillie Viles were married August 18, 1925. She left him the next day and never returned to him. He died on or about August 13, 1926, one year after the marriage and separation. He was about 70 years of age and Lillie Viles was 29. She testified-

Q. Why did you leave him after two days?

A. He refused to support my children. He agreed to support my children, before I married him; I had two children, age eight and five.

Q. Was there any other reason for leaving him?

A. Well, that was the main reason.

Q. Did you ever go back to live with him, or did you ever intend to go back to live with him?

A. I never went back; I intended to go back to live with him if he would support my children, but he never would offer to support my children.

Q. Are you a member of the Nez Perce Tribe of Indians in Idaho?

A. Yes sir.



 

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Q. Was Noah a member of the tribe?

A. Yes sir.

Q. Had either you or Noah ever renounced your tribal affiliation or privileges or benefits?

A. No sir.

Q. Did you and Noah live in the manner and custom of Indian life, and did you attend tribal councils, camp gatherings and the like?

A. Yes, that was our custom.

    She further testified that she never carried on marriage relations with Noah Bredell after she left him the next day after the marriage; that he sent for her and wanted her-
to go to the Indian Congress with him in June, but I was working at the game farm, and could not leave my job and go with him; and before that he came to me and asked me to go back and live with him, but he said he was sorry that he could not take care of my children, so I refused to go back and live with him. That was June after I left him in August, it was June, 1926.

Q. How many times did he talk to you about going back, from the time you left him until the time he died?

A. Once, And that once he sent word for me to come.

    Another witness testified-
Q. Were Noah and Lillie both members of the Nez Perce Tribe of Indians in Idaho, who received annuity payments, and enjoyed tribal rights and privileges?

A. Yes sir.

Q. Had they or either of them ever severed their tribal relations? Did they renounce their tribal rights and take up the white manner of living, or did they continue to live in the manner and custom of Indian life?

A. They continued to be Nez Perce Indians and to live in the same manner of Indian life, they were both quarter-breeds, but they still continued their Indian custom of living.

    The foregoing not only shows that these parties were still living in tribal relations but clearly indicates that Lillie Viles did not intend to live with Noah Bredell again. She had received his final answer that he could not take of her children, which fairly shows her motive for marrying him at all and as she says was her "main reason" for leaving him. The department was fully justified from the evidence in concluding that her separation or abandonment of Noah Bredell amounted to a valid Indian custom divorce. According to her own testimony she never intended to live with him again which if there were no other reason ought effectually to estop her from claiming any share in his estate. The material question on this phase of the matter is as to what material difference, if any, results from the fact that the parties were married by ceremony instead of by Indian custom in so far as the kind of divorce is concerned.

    In determining the heirs of deceased Indians the practice of the department long has been not only to recognize Indian custom divorce of an Indian custom marriage, but of a ceremonial marriage as well, and there are valid and conclusive reasons for the practice. There is no question as to recognizing the validity of Indian custom marriages and divorces. Therefore it necessarily follows that they must be treated as being of equal validity with ceremonial marriage and legal divorce under the laws of the State, otherwise their recognition would carry no force whatever. It was held in the case of Kunkel v. Burnett (10 Fed., 2d Series, 804, 805)-

    By the custom established, no formal contract or ceremony is essential to a marriage; a mere meeting and cohabitation as husband and wife constitute marriage. By the same custom a divorce may be effected by a separation by mutual consent.
    By the act of June 25, 1910 (36 Stat. 855), the Secretary of the Interior is authorized to determine the heirs of deceased Indians and it is provided that "his decision thereon shall be final and conclusive." It was early held in the case of Bond v. United States (181 Fed. 613), that this act made the Secretary of the Interior a special tribunal for the purpose and in declaring that his decision should be "final and conclusive" made the authority conferred upon him exclusive, thereby depriving the courts of jurisdiction to determine heirship. This ruling was followed in the case of Pel-ata-yakot v. United States (188 Fed. 387), wherein it was held: "The provision is comprehensive, and clearly evinces the intention of Congress to confer exclusive jurisdiction to decide such controversies upon the Secretary of the Interior." It was also held (syllabus) in the case of Parr v. Colfax (197 Fed. 302), referring to the act of 1910: "Such act deprived the Circuit Court of Appeals of jurisdiction to entertain an appeal from a decree sued out after the statute went into effect, since it deprived the court of jurisdiction to enforce any judgment it might render on such appeal." See also McKay v. Kalyton (204 U.S. 458); Caesar v. Krow (176Pac. 927); Hallowell v. Commons (239 U.S. 506); Lane v. Mickadiet (241 U.S. 201);
 


 

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United States v. Bowling (256 U.S. 484) ; First Moon v. White Tail (270 U.S. 243). In the case of Spicer v. Coon (238 Pac. 833), the Supreme Court of Oklahoma held that a determination by the Secretary of the Interior of the legal heirs of an Indian allottee as authorized by the act of June 25, 1910, is final and conclusive, and not reviewable by the courts even after expiration of the trust period. That the department is not bound by the laws of the State or the decisions of the courts in matters of this kind was fully settled in the case of Bond v. United States(181 Fed. 613); Blansetv. Cardin (256 U.S. 319), and Sperry Oil Co. v. Chisholm(264 U.S. 488). This is self-evident, otherwise the courts and not the Secretary of the Interior in whom exclusive authority is lodged by law would become the forum for determining heirship.

    As exclusive authority rests in the Secretary of the Interior to determine the heirs of deceased Indians and the courts disclaim any jurisdiction in the premises, and in view of the fact that marriage and divorce among the Indians in accordance with tribal custom are recognized as valid, it necessarily follows that an Indian custom marriage is of equal validity with a ceremonial one, and similarly an Indian custom divorce is of equal force with one procured through legal procedure. The department on March 14, 1912, in the (unreported) case of Heirs of Pishedwin, which involved an Indian custom divorce of a ceremonial marriage, held-

    In recognizing the validity of Indian custom divorces, the department does not make any distinction in the kind of marriage which such a divorce dissolves so long as the parties contracting the marriage and effecting the divorce are Indian wards of the Government and living in tribal relations. A marriage between two such Indians, accompanied by certain elements which would make a good common law marriage or a ceremonial marriage among citizens of a State, does not thereby become proof against a subsequent Indian custom divorce.

    A marriage "by Indian custom," in the view of the department, is as real a "marriage" as one accompanied by a legal ceremony according to forms prescribed by State laws. Similarly, a divorce by Indian custom, while the parties are wards of the Government, is, in the view of the department, a valid divorce dissolving the prior marriage relation, no matter what may have been the method or the manner by which the marriage was assumed.[Italics supplied.]

which is tantamount to saying that a ceremonial marriage between Indians, being of no more validity nor of any more binding force than one according to tribal custom would have been, such marriage can and will be treated as a valid Indian custom marriage regardless of the ceremony performed in accordance with the laws of the State, as the ceremony was unnecessary to constitute a valid marriage. For similar reasons their separation according to Indian custom constitutes a valid divorce without going through the form of legal procedure to procure it. The fact that the Indian may go through a legal ceremony when without such ceremony and by Indian custom the marriage would have been equally valid can not affect the efficacy of a subsequent Indian custom divorce, the parties still living in tribal relations.

    As to the validity of Indian custom marriage and divorce, and as further showing the attitude of the courts, reference is made to the following cases. It was held in the case of Cyr v. Walker (116 Pac. 931, 934)-

    * * * The courts of the American Union have, from an early time, recognized the validity of marriages contracted between the members of any Indian tribe in accordance with the laws and customs of such tribe, where the tribal relations and government existed at the time of the marriage, and there was no federal statute rendering the tribal customs or laws invalid (Morgan v. McGhee, 5 Hump. (Tenn.) 13; Earlv. Godley, 42 Minn. 361, 44 N. W. 254, 7 L. R. A. 125, 18 Am. St. Rep. 517); and such marriages between a member of an Indian tribe and a white person, not a member of such tribe, have been held and regarded as valid, the same as such marriages between members of the tribe. Morgan v. McGhee, supra; Wall v. Williamson, 8 Ala. 48; Wall v. Williams, 11 Ala. 826; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598; La Riviere v. La Riviere, 77Mo. 512. And the same effect is given to the dissolution of the marriages under the customs of the tribe as is given to the marriage relation itself. Wall v. Williamson, supra; Wall v. Williams, supra.
   See also State v. Columbia George (65Pac. 604); McBean v. McBean (61 Pac. 418); Kobogum v. Jackson Iron Co. (43 N.W. 602); Earl v. Godley (44 N.W. 254); James v. Adams (155 Pac. 1121); Davidson v. Roberson (218 Pac. 878); Ortley v. Ross (110N. W. 982); Coker v. Moore (249 Pac. 694), and Kunkel v. Burnett (10 Fed., 2d Series 804). The latter case leaves no doubt as to the correctness of the position taken by the department in this matter.
 


 

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It was held in the case of Tiger v. Western Investment Co. (221 U.S. 286)-

    It is for Congress, in pursuance of long established policy of this Government, and not for the courts, to determine for itself when, in the interest of the Indian, Government guardianship over him shall cease.
    In contending for the reopening of the instant case the belief seems to prevail that even in a case where the marriage is by Indian custom, procedure in accordance with the laws of the State ought to be required to dissolve it. Apparently this is on the theory that marriage by custom among the Indians is the same as or equivalent to common law marriage among the whites. While the two forms possess some elements in common, they are, nevertheless, distinct and independent. For in accordance with the immemorial tribal custom an Indian marriage and an Indian divorce according to such tribal custom are as much a legal marriage and a legal divorce among the Indians as are ceremonial marriages and legal divorces among whites. They are in accordance with what constitutes tribal law. It was held in the case of Buck v. Branson (127 Pac. 436), syllabus-
    A marriage contracted between members of an Indian tribe, in accordance with the customs of such tribe, where the tribal relations and government existed at the time of such marriage, and there was no federal statute rendering the tribal customs invalid, will be recognized by the courts as a regular and valid marriage for all purposes.

    (a) And the same effect is also given to the dissolution of marriages, under the customs of the tribe as is given to the marriage relation itself.

    (b) Such marriages are not to be treated as common-law marriages, but as legal marriages according to the customs of the tribe, when such customs are recognized by Congress as concerning and regulating the domestic relations of the tribe.

    Also in thecase of McFarland v. Harned (243Pac. 141, 143)-
    Marriage, according to tribal customs, is neither a common-law nor a ceremonial marriage, but is nevertheless a legal marriage according to the customs of the tribe when such customs are recognized by Congress as regulating their domestic relations.
    The case of Buck v. Branson, supra, was followed by that of James v. Adams (155 Pac. 1121), wherein it was held (syllabus)-
    Marriages, contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, will be upheld by the courts, in the absence of a federal law rendering invalid the laws and customs of the tribe.

    A dissolution of the marriage contract, according to such tribal laws, usages, and customs, will be likewise upheld by the courts.

    It was held in Kunkel v. Burnett (10 Fed., 2d Series, 804, 806):
    While it is true the decisions are not uniform as to the validity of Indian divorces, it may safely be stated that, so long as the Indians live together under the tribal relation and are not subject to the laws of the state, but only to the jurisdiction of the Congress, and the paramount federal law places no limitation upon such tribes in reference to managing their own affairs, including their domestic relations, marriages and divorces according to the usages and customs of the tribe will be treated as valid by the courts.
    Also in the cast of La Framboise v. Day (161 N. W. 529), it was held (syllabus)-
    Where a half-breed marries an Indian woman according to Indian customs, lives with her as her husband in the tribal haunts, and is thereafter divorced from her according to Indian custom, such divorce will be recognized by the courts of the State as terminating the marriage relation.
    And in the opinion (p. 530)-
    * * * According to the custom of the Sioux Indians an Indian marriage might be terminated and either party be at liberty to marry again, by mere abandonment without further ceremony. * * * It was not a "common-law" marriage, so called, but a marriage according to the custom and laws of the tribe to which the parties belonged. * * * * This principle clearly applies to divorce.
    In Wall v. Williamson (11 Ala. 839), referred to in Johnson v. Johnson's Administrator (77 Am. Dec. 598, 602), the court said-
 


 

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    Marriages among the Indian tribes must be regarded as taking place in a state of nature; and if, according to the usages and customs of the particular tribe, the parties are authorized to dissolve it at pleasure, the right of dissolution will be considered a term of contract. Either party may take advantage of this term. * * *.

    Reference also has been made to section 5 of the act of February 8, 1887 (24 Stat. 388), as having a controlling bearing in this matter of determining heirs to the estate of deceased Indians. That section after referring to the approval of the allotment of lands and directing the issuance of trust patents thereon further provided: "That the law of descent and partition in force in the State or Territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided." But it was held in the case of United States v. Bellm (182 Fed. 161, 166), wherein decision was rendered after the act of 1910 conferring exclusive jurisdiction upon the Secretary to determine heirs-
    * * * that having provided that the allotment should be held in trust for the benefit of the heirs in case of an allottee's death the proviso adopting the laws of descent of the State was merely for the purpose of providing a rule by which the heirs should be determined.
    In the case of Fosburg v. Rogers (114 Mo. 122, 21 S. W. 82, 84), referring to State statutes of descent it was held-
    * * * But this section must be understood as merely laying down general rules of inheritance, and not as completely and accurately defining how the status is to be created which gives the capacity to inherit. It does not undertake to prescribe who shall be considered a child or a widow or a husband, or what is necessary to constitute the legal relation of husband and wife, or of parent and child. Those requisites must be sought elsewhere.
    It was also provided in section 6 of said act of February 8, 1887, that Indians to whom allotments are made and trust patents issued under the provisions of that act "shall have the benefit of and be subject to the laws both civil and criminal of the State or Territory in which they may reside." But under the act of May 8, 1906 (34 Stat. 182), amending said section, Indians to whom trust patents are thereafter issued do not thereby be come subject to State laws, the act providing-
    That until the issuance of fee simple patents all allottees to whom trust patents shall here after be issued shall be subject to the exclusive jurisdiction of the United States.
    The Supreme Court in the case of United States v. Pelican(232 U.S. 442), said that the act of May 8, 1906, was passed "so as distinctly to postpone to the expiration of the trust period the subjection of allottees under that act to State laws." The court also said in the case of United States v. Celestine (215 U.S. 278), that the passage of the act of 1906 suggests that Congress "in granting full right of citizenship to Indians, believed that it had been too hasty."

    It appears that after the act of February 8, 1887, and prior to the act of May 8, 1906, the practice prevailed for a time of basing recognition of Indian custom marriage and divorce on the fact as to whether they took place before or after allotment and trust patent, in view of the provisions in section 6 of the former act declaring that upon completion of allotments and patenting of the lands the allottees should have the benefit of and be subject to State laws, and also declaring Indians to whom allotments were made to be citizens of the United States. The contention at that time was that since by the act of 1887 every Indian to whom an allotment is made "under any law or treaty" is declared to be a citizen of the United States and entitled to all the rights, privileges and immunities of such, the marriage or divorce of an allottee must be governed and controlled by the laws of the State in which he resides and not by tribal customs. This was on the theory that by the allotment the tribal relations of the Indian were severed. But this condition did not exist because as held by the courts the allotment of lands and conferring of citizenship are not incompatible with continued tribal relations and guardianship of the Government. Both the department and the courts soon took the position that as allotments of land in severalty to Indians and conferring of citizenship did not terminate their tribal relations, the marriage and divorce relations of the Indians are to be determined by their tribal customs. It was held in the case of Kalyton v. Kalyton (74 Pac. 491, 492)-

    * * * though these people have been invested with the rights of citizenship and guaranteed the protection of the laws, and rendered amenable thereto, the object evidently intended to be subserved by such legislation



 

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was to encourage them to forsake their primitive ways and to adopt a higher civilization. Reforms of this character are necessarily radical, and not cheerfully submitted to or acquiesced in by uneducated Indians. The change from savagery to refinement is slow, and results from convincing the ignorant of the superior advantages which the latter state affords. * * * Though Indians residing on a reservation, to whom land therein has been allotted in severalty, are classed as citizens, and deemed to be subject to the laws of the state, the federal courts only have jurisdiction of grave crimes committed on the reservation by one such Indian against another. State v. Columbia George, supra. This is an admission that notwithstanding the allotment a quasi tribal relation still subsists, and that the general government continues to exercise a paternal care over these wards of the nation, and until that guardianship is removed, the state courts should not interfere with or disturb the domestic relations of such Indians.

    Also in the case of Yakima Joe v. To-is-lap (191 Fed. 516), it was said (syllabus)-
    The allotment of lands in severalty to Indians * * * did not terminate their tribal relations, and so long as the same continue the marriage relations of such Indians are to be determined by their tribal customs, and not by the laws of the State, and their marriage or divorce in accordance with such customs is valid everywhere and for all purposes.
    The Supreme Court in the case of United States v. Nice (421 U.S. 591), held in respect to allottees under the act of 1887 that their tribal relations are not disturbed by allotments or trust patents. It was said (p. 599)-
    The ultimate question then is, whether section 6 of the act of 1887-the section as originally enacted-was intended to dissolve the tribal relation and terminate the national guardianship upon the making of the allotments and the issue of the trust patents, without waiting for the expiration of the trust period. According to a familiar rule, legislation affecting the Indians is to be construed in their interest and a purpose to make a radical departure is not lightly to be inferred. Upon examining the whole act, as must be done, it seems certain that the dissolution of the tribal relation was in contemplation; but that this was not to occur when the allotments were completed and the trust patents issued is made very plain.
    The act of February 8, 1887, is primarily an allotment act, whereas the act of June 25, 1910, is for the purpose of determining the heirs of deceased allottees and confers exclusive authority upon the Secretary of the Interior in the premises. But before the point of determining heirs is reached it is essential to determine whether or not the decedent was married at the time of his or her death. The act of 1910 does not provide that this determination of heirs shall be in accordance with the laws of descent of the State but does provide that the decision thereon shall be final and conclusive. As stated in the case of United States v. Bellm, supra, adopting the laws of descent of the State is merely for the purpose of providing a rule by which the heirs shall be determined. The marital status of the deceased Indian must necessarily first be ascertained and then his or her heirs are determined in accordance with the facts surrounding the marriage relations. The status of the deceased Indian in respect of his marriage relations at the time of his death and the status of the heirs after his death are different and distinct things. Having ascertained the marital status of decedent then it is for the Secretary to determine his or her heirs in accordance with the adopted rule. As set forth in the case of Fosberg v. Rogers, supra, the requisites for determining the marital status or relations of a deceased Indian must be sought elsewhere than in the laws of descent. As also previously set out herein it is well settled that the Secretary of the Interior is not bound by the laws of the State in the matter. If there be any conflict between the provisions of the allotment act of 1887 and those of the heirship act of 1910, the general rule is that the last act must govern.

    It is also urged that Indian custom marriage and divorce no longer prevail among the Indians of the Nez Perce Tribe, certain affidavits being furnished and references made to reports as to the advancement of these Indians. The department has heretofore had occasion to consider a similar contention in heirship cases coming from other tribes, in one of which it was said-

    The policy of the Government is to recognize Indian custom marriage and divorce because experience, has demonstrated there is no escape from such a course. The courts have held that so long as Indians continue in tribal relations their domestic affairs are controlled by their peculiar customs.

                *                                *                                *                                *                                *

    It would seem to be impractical from an ad-



 

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ministrative standpoint to isolate any particular tribe because of its superior advancement so long as tribal relations continue. In other words, the policy can not be adopted of holding by regulation that one particular tribe is sufficiently advanced to justify its marriage relations being henceforth regulated in accordance with the white man's law, while other tribes are not. The general policy being to recognize Indian custom marriage and divorce, it must prevail until a definite and uniform rule is established, which can only be done by Congress.

    It was said in the case of The Kansas Indians (5 Wall. 737, 756)-
    * * * This people have their own customs and laws by which they are governed. Because some of those customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, but does not tend to prove that their tribal organization is not preserved.
    In 31 C. J. 486 it is said-
    So long as the tribal organization is recognized by the National Government, the fact that the habits and customs of the Indians have been changed by intercourse with the whites does not authorize the courts to disregard the tribal status.
    Also in the case of United States v. Dewey County (14 Fed., 2d Series, 784), it was said (syllabi)-
    When the guardianship of the United States over Indians terminates is a political matter, to be determined by Congress, and over which neither the courts nor the State has any power.

    Neither the ownership of the lands in fee in severalty by Indians, nor the conferring of citizenship and political rights upon them by a State, is incompatible with continuance of their tribal relations, or with continued guardianship over them by the United States.

    There are instances where Indians were married and lived together according to tribal custom but were subsequently married by ceremony. It was contended that this was proof that the marriage relation did not formerly exist between the parties. However, the court said in the case of Owens v. Carpenter (252 Pac. 61, 62)-
    * * * we do not regard these facts as evidence or proof of any illegitimate relation between them, but it is merely proof of a change of opinion or view on the part of these people and an effort to bring themselves within the sphere of the modern idea of what constitutes a marriage.
    The evidence offered in support of the claim that custom marriage and divorce are no longer followed by the Nez Perce Indians amounts to little more than a showing of considerable progress among them and that in case of some of the Indians their marriages are by ceremony. This falls far short of proof that the custom of marriage and divorce has in the main disappeared. Besides, the advancement in the ways of civilization is not proof of the abandonment of old tribal customs. Such abandonment is perhaps to be accomplished by a process of education that the white man's ways are best. In a memorandum opinion of the Solicitor for this department of February 3, 1925, it was said among other things-
    Marriage by custom and divorce are as old as Indian life and a very strong presumption of fact exists and must always be indulged in that they still exist among Indians until it is established clearly and beyond doubt that the customs have passed away and no longer exist, and that the Indians no longer recognize or practice the customs. In the present case, in my opinion, this very strong presumption of fact that the age-old customs still exist is not overcome by the evidence of the few witnesses who testified on that point in this particular case.
    In connection with the petition for reopening this case, Indian custom marriage and divorce are referred to as being immoral, and for that reason it is urged that they ought not to be recognized.

    Any difference of opinion on this subject is, of course, largely due to the standpoint from which the situation is viewed. The fact that the custom has been generally recognized by the authorities is entitled to much weight. That the Indians still look with sanctity upon their old tribal method of consummating marriage there can be no doubt, and that the custom is deeply implanted is evidenced by the fact that notwithstanding long years of labor and instruction by faithful men and women in an endeavor to convert the Indian to the white man's ways in this matter, they still adhere to a very large extent to the tribal custom. What effect the enactment of rigid and arbitrary laws abolishing the custom instead of pursuing an educational process of conversion is of course problematical.
 


 

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Besides, abolishment by law of the custom and imposing the requirement that marriage and divorce be in accordance with State law might not necessarily result in moral improvement. From the Indian standpoint it must be assumed that morally, marriage and divorce in accordance with tribal custom and usage are just as solemn and significant as they are among white persons in accordance with the laws of the State and decrees of the courts. White persons become married and divorced by compliance with a regulation or custom incorporated into statute law which they have created to guide themselves by, and the Indians in being married and divorced by tribal custom comply with the law or custom which they have set up from time immemorial to guide themselves by. The effect is the same in both cases. The Indians under their tribal customs or law are just as surely, solemnly and absolutely married and separated as are the whites under the statute law and the decrees of the courts. And considering the history and different characteristics of the two races the morals in an Indian community are perhaps not broken down to any greater extent than are the morals of a white community-the Indian's condition under his tribal law or custom in this respect is no worse comparatively than that of the white man under his statutory law upon the subject. The foregoing views are supported by the courts in a number of cases. It was held in Buck v. Branson, supra (p. 437)-

    * * * It being conceded that such marriages are valid, we will therefore give that phase of the case no further consideration. In Wall v. Williamson, 8 Ala. 48, it is said by the court in discussing this proposition: "By that law, it appears that the husband may at pleasure dissolve the relation. His abandonment is evidence that he has done so. We conceive the same effect must be given to this act as would be given to a lawful decree in a civilized community dissolving the marriage. However strange it may appear at this day that a marriage may thus easily be dissolved, the Choctaws are scarcely worse than the Romans, who permitted a husband to dismiss his wife for the most frivolous causes."
    Also in McFarland v. Harned, supra, it was held (p. 143)-
    We know of no rule of law or of sound public policy which would justify us in withholding from this union the same presumptions of good faith usually indulged by the courts in favor of marriages generally, merely because the relationship does not conform to the domestic practices of a more civilized society.
    In urging the point of immorality of Indian custom marriage and divorce the effect or result of not recognizing the validity of such custom is apparently overlooked in connection with the determination of heirs to estates of deceased Indians. Not to recognize the validity of such custom would result in the offspring of the cohabitation being illegitimate where Indians are married and divorced a number of times. Not to recognize the first marriage or only the first marriage would result in all offspring of subsequent marriages of all parties being illegitimate.

    The case of Carney v. Chapman (247 U.S. 102) involved an ordinance of the Chickasaw Indian Tribe concerning solemnization of marriages by a judge or ordained preacher of the gospel. In considering the effect of that tribal act and the validity of marriage according to tribal custom, the court in affirming the decision below said (p. 104)-

    * * * There was evidence also that it was customary to disregard solemnization before a judge or preacher. It would be going somewhat far to construe the Chickasaw statute as purporting to invalidate marriages not so solemnized.
    The caseof Chantey v. Whinnery (147 Pac. 1036), involved a statute of the Creek Indian Tribe, regulating marriage and divorce. A marriage entered into prior to this act in accordance with the laws and customs of the tribe which continued thereafter was upheld by the court as being valid.

    In the case of Burnett v. Prairie Oil and Gas Co. (19 Fed., 2d Series, 504), the court held (syllabi)-

    * * * that Creek Indians, who were husband and wife, separated by mutual consent in accordance with requirements of Creek customs, will not be disturbed if supported by evidence.

    Noncompliance with Creek tribal ordinance of 1881, providing that divorce may be adjudged by district court, did not render divorce according to previous custom invalid since such ordinance was not mandatory.

    It was held in the case of Kunkel v. Burnett(10 Fed., 2d Series, 804), syllabus-
    Divorce between Indians by mutual consent,



 

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in accordance with a proven custom of tribe while tribal relation existed, heldvalid, and a subsequent marriage by one of said parties valid, as affecting title to land, notwithstanding existence at time of an Indian law regulatory of divorces.

    The similtude of the Indian custom marriage to the common law marriage is indicated by the fact that in Oklahoma where State laws apply to the Indians of the Five Civilized Tribes, Indian custom marriages have been sustained as common-law marriages under the State law; and divorces many times inferred from the fact of long and continuous separation.

    The case of Wo-gin-up's estate (192 Pac. 267), is frequently referred to as showing that Indians in their marriage relations are subject to the laws of the State. But in that case the parties were not living on a reservation or in tribal relations. The court held that where an Indian, living in a State in which (syllabus)-

    * * * there was no reservation, divorced his wife and married another, pursuant to tribal custom, the divorce and second marriage were invalid, there being no compliance with the local laws, for an Indian, not as a part of a tribe or on a reservation, is subject to the laws of the State. * * *.
    It is for Congress alone to say when the customs in question shall cease. Bills have repeatedly been introduced in Congress having in view the abolishment of Indian custom marriage and divorce, and subjecting the Indians to the laws of the State, but none of these was ever enacted. The introduction of these bills implies recognition by Congress that State marriage and divorce laws are not applicable or controlling in the matter of tribal custom marriage and divorce. Certainly any attempt by the department independently to change the situation would be tantamount to legislation by regulation. There is nothing in this record conclusively showing that the Nez Perce Indians as a tribe have reached that state where the devolution of property or ethical considerations would cause them to feel that the existing customs are so unsatisfactory that they should be done away with. Although they are much advanced in the ways of civilization no protest has been made by them. As was held in the case of Kobogum v.Jackson Iron Co. (43 N. W. 602, 605)-
    * * * The United States Supreme Court and the State courts have recognized as law that no State laws have any force over Indians in their tribal relations. * * *. We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian custom and usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes. * * * We have here marriages had between members of an Indian tribe in tribal relations, and unquestionably good by the Indian rules.
    The validity of Indian custom marriage has been recognized by Congress. It was said in the case of United States v. Quiver (241 U.S. 692, syllabus)-
    The policy reflected by the legislation of Congress and its administration for many years is that the relations of the Indians among themselves are to be controlled by the customs and laws of the tribe, save where Congress expressly or clearly directs otherwise.
    And in the opinion (p. 603)-
    At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person and property of another Indian to be dealt with according to their tribal customs and laws.
    It was held in the case of Ortley v. Ross (110 N. W. 982, 983)-
    Now, it is contended by appellants that, as the alleged marriage between the father and mother of the plaintiffs was polygamous, it was neither valid in the State of Minnesota, where the parties then resided, nor in the State of Nebraska, to which they subsequently removed. This contention would be well founded if this marriage had taken place between citizens of the United States in any State of the Union. But a different rule prevails with reference to the marriages of Indians, who are members of a tribe recognized and treated with as such by the United States government; for it has always been the policy of the general government to permit the Indian tribes as such to regulate their own domestic affairs, and to control the intercourse between the sexes by their own customs and usages. Consequently, when a member of an Indian tribe becomes a citizen of the United States and subject to its laws, by taking lands in severalty under the provisions of a treaty,



 

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as in the case at bar, a liberal rule is applied in determining the legitimacy of any offspring that he may have begotten under the customs and usages of the tribe to which he formerly belonged. The rule so applied is that marriages valid by the law governing both parties when made must be treated as valid everywhere. [Italics supplied.]

    It is urged that as Noah Bredell and Lillie Viles were ceremonially married and as it was reported that he contemplated applying for a divorce, thereby indicating intention to abandon the customs of his tribe and adopt the white man's law, it ought to be the policy of the department in the interests of morality and encouragement among the Indians to uphold such endeavors and not to "force" the divorce customs of the tribe upon the parties. Noah Bredell never applied for a legal divorce and the department has never thrown any obstacles in the way of Indians who are married ceremonially against invoking the divorce laws of the State. The condition the department is called upon to determine is where the parties are ceremonially married and no application is made for divorce and they are never divorced according to the laws of the State, but are divorced by Indian custom, as was the fact in the instant case. The question of force could only arise if the parties were compelled to procure a divorce in accordance with the laws of the State which under their recognized customs would be unnecessary and which law "never bound them." Kobogum v. Jackson Iron Co., supra.The instant case, like every other, must be decided on its own particular facts and if they show that the wife's abandonment of her husband was such as to constitute an Indian custom divorce, as his alleged applying for divorce, taken in connection with other circumstances, would indicate, then she is not in a position to justly claim to be the surviving wife of Bredell at the time of his death merely because they were married by ceremony any more than, if it were conclusively shown that marriage and divorce by custom had ceased in the tribe, resort might be had to the discarded custom to support a claim of valid marriage.

    There has been some evidence of doubt and confusion as to the scope and effect in this matter of the blanket act of June 2, 1924 (43 Stat. 253) which declared all noncitizen Indians born within the territorial limits of the United States to be citizens of the United States. It was clearly not the intention of Congress by said act to disturb the existing status and relations of the Indians in respect to their property and other recognized rights. The act specifically provided that the granting of citizenship should not affect their property rights and it is fair to assume that it was not the intention of Congress to disturb their ancient and recognized customs without specifically so providing. As held in the case of United States v. Nice, supra (p. 598)-

    * * * Citizenship is not incompatible with tribal existence or continued guardianship, and may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection.
    The policy of the Government is to recognize Indian custom marriage and divorce because experience has demonstrated there is no escape from such a course. The courts have held that so long as Indians continue in tribal relations their domestic affairs are controlled by their peculiar customs. This is recognized in the act of May 8, 1906 (34 Stat. 182), the effect of which is, in so far as allotments thereafter made are concerned, not to disturb or interfere with the domestic relations of the Indians. Under the provisions of that act an Indian does not become a citizen upon allotment, hence, his domestic relations are governed entirely by the tribal custom. This in the judgment of some may be retrogression, but Congress has spoken.

    Marriage and divorce are provided for by statute in all of the States, although the laws are not uniform, yet, notwithstanding such statutory provisions common-law marriages are recognized and upheld in many of the States. There would seem to be no reason why in the absence of any Federal law an exception should be made of the Indians in the matter of their customs, by holding them to a stricter rule that prevails among the whites. Besides, the courts in respect to white people studiously endeavor to sustain marriage and divorce by indulging presumptions, inferences, and otherwise even in the face of statutory law governing such relations. It would seem that the Indian, whose only law is the immemorial custom of his tribe, so long as there is no Federal statute to the contrary, and in view of the long recognition of the custom by the department, the courts and Congress, ought to be entitled to equal consideration.

    Upon careful examination and consideration of the record I find no good reason for disturbing the action heretofore taken in the matter of heirship to the estate of Noah Bredell; and as Congress, the courts, the department, and in many instances the States, have all recognized the validity of Indian custom marriage and divorce, it necessarily follows that they must be recognized and treated as being of equal validity with ceremonial marriage
 


 

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and legal divorce. Hence the policy and practice heretofore in this regard are fully justified and should be followed until the enactment by Congress of legislation changing the situation.

Approved:
JOS. M. DIXON, First Assistant Secretary.

FEDERAL WATER POWER ACT-STATE
POWERS TO TAX LICENSES ON INDIAN
RESERVATIONS

M-25698                                                                                                                                      May 15, 1930.

The Honorable,
The Secretary of the Interior,

DEAR MR. SECRETARY:

    You have requested my opinion as to whether the physical properties necessary to be installed and utilized by permittees or licensees for the development of water power on the Menominee Indian Reservation in Wisconsin are subject to taxation by the State.

    The Federal Water Power Act of June 10, 1920 (41 Stat. 1063) authorizes the Federal Power Commission to issue permits or licenses for the development of hydroelectric power on the public domain and within certain classes of reservations including "tribal lands embraced within Indian reservations" (sections 3, 4d and 4e). Section 10e provides that when licenses are issued involving the use of tribal lands within Indian reservations, the Commission shall fix a reasonable annual charge for the use thereof subject to readjustment as therein provided. Section 17 directs that the proceeds derived from any Indian reservation shall be placed to the credit of the Indians.

    The Menominee Reservation in Wisconsin as created pursuant to the provisions of the treaties of October 18, 1848 (9 Stat. 952) and May 12, 1854 (10 Stat. 1064) is a tribal, unallotted reservation. Within this reservation are certain lands abutting on Wolf River which are strategically located for the development of water power. Pursuant to the provisions of the Federal Water Power Act, applications for licenses to develop power at these sites have been filed with the Federal Power Commission by the Wisconsin Power and Light Company, a corporation organized and existing under the laws of the State of Wisconsin. The project works have not been constructed, final permit or license not in fact having issued. But the Menominee Indians, as beneficial owners of the sites and entitled to the proceeds derived from disposals thereof, have raised the question presented in the present inquiry of the right of the State to tax the physical properties necessary to be installed in the development, transmission and distribution of power, such as dams, power houses, machinery, transmission lines, and the like, upon the theory, no doubt, that if such property be immune that factor must be taken into consideration and be given due weight in determining and fixing the compensation to be paid them for the use of the sites.

    It should here be pointed out that the properties with which we are here dealing are those installed or constructed at the expense of the licensee and sections 14 and 15 of the Federal Water Power Act clearly recognize that ownership of such properties rests in the licensee. True, section 14 gives the United States the right upon expiration of the licensee and under specified conditions including compensation to the licensee, to take over and operate the project together with all property "owned and held by the licensee." Obviously, however, this vests in the United States no present right to the property but merely confers an option that may or may not be exercised at some future time. In Baltimore Shipbuilding and Dry Dock Co. v. Baltimore (195 U.S. 375), the Supreme Court of the United States had occasion to consider the taxability of property held under somewhat similar conditions and in upholding the right of the State to tax the same said:

    It would be a very harsh doctrine that would deny the right of the States to tax lands because of a mere possibility that they might lapse to the United States.
    The only reference to taxation appearing in the Federal Water Power Act is found in section 8. That section, after providing that no voluntary transfer of any license or any rights granted thereunder shall be made without the approval of the Federal Power Commission, declares that "a mortgage or trust deed or judicial sales made thereunder or under tax sales, shall not be deemed voluntary transfer within the meaning of this section." In thus excepting tax sales from the inhibition against transfers, it may be that Congress did not intend thereby to impair any existing exemption from taxation but rather had in contemplation such tax sales as were had pursuant to levies and assessments valid under existing law. Nevertheless it might be argued with some force that this is an express recognition on the part of Congress that these licenses and their property are subject to the taxing power of the State. Further speculation along these lines, however, is unnecessary as
 


 

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the answer to the question at hand may be found in other considerations.

    The legislature of the State of Wisconsin has not seen fit to exempt the property of public utilities such as this licensee, from taxation (See Sets. 76.01 to 76.53 Wisconsin Statutes 1925). No specific or general provision of any act of Congress of which I am aware purports so to do. Nor does the fact that such property will be placed or erected on an Indian reservation withdraw the same from the taxing power of the State. Thomas v. Gay (169 U.S. 264, 273); Utah and Northern Ry. Co. v. Fisher (116 U.S. 28); Maricopa and Phoenix R. R. v. Arizona (156 U.S. 347). Under the provisions of the Federal Water Power Act, however, the Federal Power Commission is the agency of the Government to which Congress has delegated authority over water power values in Indian reservations and it is the duty of that Commission to dispose of the Indian power sites to the best advantage of the Indians. The licensees chosen by that Commission for the development of power at such sites occupy much the same position in their relations to the Government and the Indians as lessees of coal and oil lands within Indian reservations and the latter are regarded as instrumentalities employed by the Federal Government as a means of carrying out its policies towards the Indians. Choctaw and Gulf R. R. v. Harrison (235 U.S. 292); Indian Oil Co. v. Oklahoma (240 U.S. 522); Jaybird Mining Co. v. Weir (271 U.S. 609). But, conceding that the licensee is an instrumentality of the Federal Government, does it necessarily follow that its property is exempt from taxation?

    It is, of course, well settled that Federal instrumentalities are not subject to State control and that the governmental purpose cannot be thwarted through the medium of State taxation or otherwise. Accordingly, it has been held that an occupation or privilege tax assessed by the State upon the production of coal from a mine on Choctaw and Chickasaw Indian lands is invalid. Choctaw and Gulf R. R. v. Harrison, supra. In Indian Oil co. v. Oklahoma, supra, it was held the State could not tax oil leases of lands made by the Osage tribe of Indians either directly or as represented by the capital stock of the corporation owning them. In Howard v. The Oil Companies (247 U.S. 503), a tax imposed by the State upon the gross value of the production of oil and gas less the royalty interest under leases of Osage lands was declared invalid. Of like import are the cases of Large Oil Co. v. Howard, (248 U.S. 549); Gilespie v. Oklahoma (257 U.S. 501, 505) and Jaybird Mining Co. v. Weir, supra.

    In my opinion, however, these cases cannot be considered as decisive of the question under consideration for the reason that we are not here dealing with an occupation or privilege tax. Neither are we dealing with a tax upon the operations of licensees nor a tax upon products or the income therefrom derived from tax-exempt Indian lands. The tax here involved is a property tax and the property belongs not to the Indians nor to the United States but to a private corporation engaged in business for its own purposes as well as those of the United States and interested in profit on its own account. Wherever the courts have been called upon to consider the taxability of such property, they have uniformly held that the tax bears too remote a relation to the efficient exercise of a Federal power to withdraw the same from the taxing power of the State.

    In Thomas v. Gay, supra, the above rule was expressly applied to an Indian reservation. There the Territory of Oklahoma sought to tax livestock grazing on an Indian reservation under leases granted by the Indians to the owners of the cattle. The Supreme Court held that there was nothing in the treaties between the United States and the Indians occupying these reservations which disabled the United States from bringing the reservation within the limits of the Territory of Oklahoma; that taxing personal property of persons other than Indians and situated within the reservation did not impair the rights of persons or property pertaining to the Indians; and that the taxation of cattle kept for grazing purposes upon the reservation under a lease duly authorized by act of Congress was not a violation of the rights of the Indians nor an invasion of the jurisdiction and control of the United States over them and their lands. To the same effect are Wagoner v. Evans (170 U.S. 588); Catholic Missions v. Missoula County (200 U.S. 118); Truscott v. Hurlbut Land and Cattle Co. (73 Fed. 60).

    In Choctaw O. and G. R. R. Co. v. Mackey, supra, the question under consideration was closely analogous to the present one. That case involved the legality of tax assessments against the railroad company's right of way and station grounds upon which stood the passenger depot, the freight houses, the express offices, cotton platform and an oil warehouse, grain, elevator, coal bins and team tracks. The contention was made that the railroad was an instrumentality through which the Government under-took to perform its obligation to develop coal lands belonging to the Indians and that if the railroad's interest in the properties in question could be subjected to a special assessment and possible sale thereunder, apart from the railroad franchises, the congressional purpose might be obstructed. Rejecting this content, the Supreme Court said:
 


 

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MAY 15, 1930

    The mere fact that property is used among others by the United States as an instrument for effecting its purpose, does not relieve it from State taxation * * * and even though it be granted that the Federal Government utilized the railroad as an instrument in working out its policy toward the Indians the tax upon the railroad property would be none the less valid.

    The doctrine of these cases fully sustains, I think, the authority of the State of Wisconsin to tax property such as that here involved and I, therefore, so hold. In so holding I am not unmindful of the fact that the revenue derived by the Indians in the way of rentals may conceivably be affected, as the licensees doubtless may be able and willing to pay more for the use of these power sites were they to enjoy immunity from taxation of the property utilized by them in the development of power. Such an effect upon the financial return to the Indians, however, is I think too remote and indirect to render the tax invalid as an interference or obstruction of the governmental purpose. See Thomas v. Gay, supra.

    While entertaining the foregoing view, I desire to point out that the question presented, involving as it does the right of a State to tax property belonging to a private corporation, is one not within the jurisdiction of this Department to determine, and our opinion in the matter will have no binding effect upon either party or upon any court in which the question may be raised.

Solicitor.

Approved: -------------------------
---------------------------------First Assistant Secretary.

NON-TAXABILITY OF LEASES OF RESTRICTED YAKIMA

INDIAN ALLOTMENTS

53 I.D. 107

M-25873                                                                                                                                        May 23, 1930.

INDIAN LANDS-ALLOTMENT-LEASE-TAXATION

    Lands allotted to Indians in severalty under the general allotment act of February 8, 1887, as amended by the act of February 28, 1891, are not subject to taxation by a State or municipality for any purpose during the period that the lands are held in trust by the United States. United States v. Rickert (188 U.S. 432).


INDIAN LANDS-ALLOTMENT-LEASE-TAXATION-RENTAL

    The Secretary of the Interior is without authority, under existing law, to require non-Indian lessees of restricted allotted lands on the Yakima Indian Reservation in the State of Washington to pay certain stipulated sums additional to the regular rentals for the benefit of the local authorities in lieu of taxes which the county is not authorized to collect.
FINNEY, Solicitor:

    You [Secretary of the Interior] have requested my opinion upon a matter arising in connection with the leasing of restricted allotted lands on the Yakima Indian Reservation in the State of Washington for agricultural purposes.

    It is explained by the Commissioner of Indian Affairs that the Yakima Indian Reservation embraces a considerable area of land valuable for agricultural purposes, a large part of which is and has been under irrigation and in a high state of cultivation for a number of years: that much of this land is leased to persons other than Indians who enjoy the benefit of the usual facilities provided by the State for its citizens, such as free schools, improved highways, etc., all without substantial cost to them due to the nontaxability of the leased lands and the permanent improvements thereon; that the State and county authorities feel that these non-Indian lessees should be required to pay their just proportion of the expenses of providing and maintaining the facilities mentioned and to that end have urged, with much insistence, that the leasing regulations be amended "so as to provide that no lease covering allotted Indian lands would be approved unless the lessee, in addition to the rental agreed upon to be paid to the Indian owner of such land, would also agree to pay or for the benefit of the local authorities an additional sum to be stipulated in lieu of taxes which the county is otherwise unable to collect, also that the lease forms and advertisements, if any, inviting bids on such leases should contain similar conditions."

    The question presented is whether authority exists in the Secretary of the Interior, under existing law, to require lessees of these lands to meet the conditions mentioned.

    The authority to tax necessarily falls to the legislative power. United States v. New Orleans (98 U.S. 381, 392); Palmer v. McMahon (133 U.S. 660, 669). And, as suggested by Judge Cooley in his work on Taxation (Vol. 1, p. 43), it is an inflexible principle of our law that no executive or administrative office can lay any tax whatsoever except in execution of laws enacted for his observance. For this reason, if no other, the validity of a regulation of the nature contemplated, which would savor strongly of an attempt on the part of an administrative officer of the Federal Government to levy a tax upon a certain class of citizens for the benefit of a State, is open to such serious question as to render its adoption and promulga-
 


 

249

OPINIONS OF THE SOLICITOR

MAY 23, 1930

tion inadvisable in the absence of clear statutory authority therefor. Still other considerations, however, further demonstrate the illegality of the proposed measure.

    The Yakima Indians were allotted lands in severalty pursuant to the provisions of the acts of December 21, 1904 (33 Stat. 595) and May 6, 1910 (36 Stat. 348), such allotments being made under the general allotment act of February 8, 1887 (24 Stat. 388) as amended by the act of February 28, 1891 (26 Stat. 794). Section 5 of the general allotment act provides-

    That upon the approval of the allotments provided for in this Act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period.
    Under the foregoing provision, the United States retains the legal title giving the Indian allottee a paper or writing improperly termed a patent (see United States v. Rickert, 188 U.S. 432), showing that at a particular time in the future, unless it was extended by the President, the allottee or his heirs, as the case may be, would be entitled to a regular patent conveying the fee discharged of the trust and free from all charge or incumbrance. The United States thus retained its hold on the lands allotted for a period of 25 years after the allotment and as much longer as the President in his discretion might determine, and the clearly expressed intent of Congress is that so long as the land remains in that status it is beyond the power of the State to tax the same for any purpose. In upholding the non-taxability of lands of this character during the period of the trust, the Supreme Court in United States v. Rickert, supra, said (p. 437)-
    If, as is undoubtedly the case, these lands are held by the United States in execution of its plans relating to the Indians-without any right in the Indians to make contracts in reference to them or to do more than to occupy and cultivate them-until a regular patent conveying the fee was issued to the several allottees, it would follow that there was no power in the State of South Dakota, for State or municipal purposes, to assess and tax the lands in question until at least the fee was conveyed to the Indians. These Indians are yet wards of the Nation, in a condition of pupilage or dependency, and have not been discharged from that condition. They occupy these lands with the consent and authority of the United States; and the holding of them by the United States under the act of 1887, and the agreement of 1889, ratified by the act of 1891, is part of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life, and ultimately the privileges of citizenship. To tax these lands is to tax an instrumentality employed by the United States for the benefit and control of this dependent race, and to accomplish beneficent objects with references to a race of which court has said that "from their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen." United States v. Kagama, 118 U.S. 375, 384. So that if they may be taxed, then the obligations which the Government has assumed in reference to these Indians may be entirely defeated; for the act of 1887 the Government has agreed at a named time to convey the land to the allottee in fee, discharged of the trust, "and free of all charge or incumbrances whatsoever." To say that these lands may be assessed and taxed by the county of Roberts under the authority of the State, is to say they may be sold for the taxes, and thus become so burdened that the United States could not discharge its obligations to the Indians without itself paying the taxes imposed from year to year, and thereby keeping the lands free from incumbrances.
    See also Choate v. Trapp (224 U.S. 665, 673), wherein it was held that where an Indian has once obtained a vested right of exemption from taxation for a definite period, it is beyond the power even of Congress thereafter to deprive the Indian of that right without his consent. To the same effect is the decision of the 8th Circuit in Morrow v. United States (243 Fed. 854).
 


 

250

DEPARTMENT OF THE INTERIOR

MAY 23, 1930

    The Yakima Indians have not been fully emancipated. They are wards of the Government and the retention of title by the United States with the grant of exemption from taxation during the period so held constitutes an important part of the legislative policy of Congress towards the Indians. Administrative officers of the Government are bound not only to respect this condition as much as outsiders, but as agents of the Government charged with the execution of its guardianship powers over the Indians, it is their duty to enforce the tax exemption and protect the same from impairment or infringement in any manner.

    Turning to the leasing laws, in which the authority to prescribe the regulation under consideration must be found, if it exists at all, we find that Congress by an item contained in the Indian appropriation act of May 31, 1900 (31 Stat. 221, 246), has authorized leasing of certain lands allotted to the Yakima Indians in the following language:

    That the Indians to whom lands have been allotted on the Yakima Reservation in the State of Washington shall be permitted to lease unimproved allotted lands for agricultural purposes, for any term not exceeding ten years upon such terms and conditions as may be prescribed by the Secretary of the Interior.
    Subsequent legislation of a general nature relating to leases of this character as found in section 4 of the act of June 25, 1910 (36 Stat. 855, 856) and the act of March 3, 1921 (41 Stat. 1225, 1232) is of the same general tenor in that such leases are authorized to be made under such rules and regulations as the Secretary may prescribe.

    In restricting the right of the Indians to the making of only such leases as are in accord with the rules and regulations prescribed by the Secretary of the Interior, it is plain that the primary intent of Congress had to do with the protection of the Indians from their own improvidence and overreaching by others. See LaMotte v. United States (254 U.S. 570). To that end the discretion of the Secretary is very broad. His powers, however, are not unlimited. He is not vested, for instance, with arbitrary authority (Anicker v. Gunsburg, 246 U.S. 110), and he necessarily is restrained from taking any action by regulation or otherwise that would have the effect of invading or impairing rights and privileges conferred upon the Indians by Congress. The regulation under consideration is one clearly not to the interest or for the benefit of the Indians. To the contrary a requirement that as a condition of the leasing of the lands the lessee pay for the benefit of the State, in addition to other considerations, an amount equivalent to that customarily assessed and collected by the State as taxes upon property of this kind, would unquestionably diminish to that extent the income flowing to the Indians from the leasing of their lands. The burden would thus be placed upon the Indians and the plain effect of such a measure would be to shorten or curtail the period during which Congress has said they shall enjoy immunity from taxation.

    I have to advise, therefore, that the suggested amendment to the leasing regulations involving as it does an attempt to do by indirection that which can not lawfully be done directly is unauthorized.

Approved:

Jos. M. DIXON, First Assistant Secretary.

CREATION OF INDIAN RESERVATIONS

53 I.D. 128                                                                                                                                      June 14, 1930.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion relative to the validity of certain acts of President Lincoln and President Roosevelt in connection with the creation of the Uintah Indian Reservation in Utah and the disposition of some of the lands in the reservation.

    The Uintah Indian Reservation was created by Executive order of October 3, 1861. The recommendation of the Secretary of the Interior and the order of President Lincoln are as follows:
 

DEPARTMENT OF THE INTERIOR,
        Washington, October 14, 1930.


THE PRESIDENT
Sir:

    I have the honor herewith to submit for your consideration the recommendation of the Acting Commissioner of Indian Affairs that the Uintah Valley in the Territory of Utah, be set apart and reserved for the use and occupancy of Indian Tribes.

    In the absence of an authorized survey (the valley and surrounding country being as yet unoccupied by settlements of our citizens) I respectfully recommend that you order the entire valley of the Uintah River within Utah Territory, extending on both sides of said river to the crest of the first range of contiguous mountains on each side, to be reserved
 



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