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251

OPINIONS OF THE SOLICITOR

JUNE 14, 1930

to the United States and set apart as an Indian Reservation.

                                                            Very respectfully, your obedient servant
                                                                                                                                        CALEB B. SMITH,
                                                                                                                                                            Secretary.

                                                                                                                                    EXECUTIVE OFFICE,
                                                                                                                                                 October 3, 1861.

    Let the reservation be established as recommended by the Secretary of the Interior.
                                                                                                                                                A. LINCOLN.

    The action of President Lincoln in setting aside this reservation was confirmed by an act of Congress approved May 5, 1864 (13 Stat. 63); section 2 of this act provides as follows:

    And be it further enacted, That the superintendent of Indian affairs for the territory of Utah be, and he is hereby, authorized and required to collect and settle all or so many of the Indians of said territory as may be found practicable in the Uintah valley, in said territory, which is hereby set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same.
    The act of June 18, 1878, (20 Stat. 165), repealed section 1 of the act of May 5, 1864, but did not disturb section 2 of the act which remains as permanent law. This appears to settle the validity of action of President Lincoln in setting aside the reservation and it remains to turn our attention to the actions taken by President Roosevelt in setting aside a part of the Uintah Indian Reservation and attaching it to the Uintah Forest Reserve.

    By act of March 3, 1905 (33 Stat. 1070) it is provided:

    That before the opening of the Uintah Indian Reservation the President is hereby authorized to set apart and reserve as an addition to the Uintah Forest Reserve, subject to the laws, rules, and regulations governing forest reserves, and subject to the mineral rights granted by the Act of Congress of May twenty-seventh nineteen hundred and two, such portion of the lands within the Uintah Indian Reservation as he considers necessary, and he may also set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development, and may confirm such rights to water thereon as have already accrued; Provided, That the proceeds from any timber on such addition as may with safety be sold prior to June thirtieth, nineteen hundred and twenty, shall be paid to said Indians in accordance with the provisions of the Act opening the reservation.
    Acting on the authority granted in the provision just quoted President Roosevelt by proclamation made June 14, 1905 (34 Stat. 3116), after quoting from the act of March 3, 1905, proclaimed that certain lands in the Uintah Indian Reservation are hereby added to and made a part of the Uintah Forest Reserve, and the boundaries of the forest reserve were changed accordingly. The lands included by this proclamation in the forest reserve comprised an area of 1,010,000 acres.

    There can be no doubt of the authority of President Roosevelt to issue the proclamation because his right is based upon statutory authority. The right of Congress to dispose of the property of Indian tribes, to set aside lands for Indian reservations or to increase and decrease the size of the reservations has been the subject of decisions by the Supreme Court in numerous cases. In Lone Wolf v. Hitchcock (187 U.S. 553), the Supreme Court says:

    The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy particularly if consistent with perfect good faith towards the Indians.
    In the case of Stephens v. Cherokee Nation (104 U.S. 445), the court says:
    The lands and moneys of these tribes are public lands and public moneys and are not held in individual ownership, and the assertion by any particular applicant that his right therein is so vested as to preclude inquiry into his status involves contradiction of terms.
    It is interesting to note that by the act of Congress approved April 4, 1910 (36 Stat. 269), the Secretary of the Interior was authorized to purchase in connection with the Strawberry Valley
 


 

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DEPARTMENT OF THE INTERIOR

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project, Utah, 61,000 acres of land at $1.25 per acre with the provision that title should pass to the owners of the lands irrigated from the project. This money was paid into the Federal Treasury by transfer from the reclamation fund for the benefit of the Uintah Indians.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: June 14, 1930.
RAY LYMAN WILBUR, Secretary.

TAXATION OF ALLOTMENTS-TRUST
PERIOD-EXPIRATION

53 I.D. 133

M-25930                                                                                                                                              June 30, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to whether the lands allotted to the members of the Nez Perce Tribe of Indians in Idaho become subject to taxation by the State upon the issuance of fee simple patents therefor, following expiration of the 25 year trust period provided for in the acts under which these Indians were allotted.

    The Nez Perce Indians were allotted lands in severalty pursuant to the provisions of the general allotment act of February 8, 1887 (24 Stat. 388) and for the lands so allotted the allottees received patents of the form and legal effect provided in section 5 of that act which reads:

    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. * * *
    The United States, under the foregoing provision, retained the legal title, giving the allottee a paper or writing inaptly termed a patent (See United States v. Nice, 241 U.S. 591, 595), showing that at a particular time in the future, unless it was extended by the President, the allottee or his heirs, as the case might be, would be entitled to a regular patent, conveying the fee discharged of the trust and free of all charge and incumbrance. The United States thus retained its hold upon the land for a period of 25 years and as much longer as the President in his discretion might determine. While the statute contains no express provision with respect to taxation of the land during or after the expiration of the trust period, the intent of Congress in that regard is plain. During the restricted or trust period, the land is held by the United States for the allottee or his heirs, as a part of the general policy of dealing with the Indians and is being administered as a governmental instrumentality. While so held and administered, no power rests in the State to assess and tax the same until at least the fee is conveyed to the Indian. United States v. Rickert (188 U.S. 432). Upon issuance of the fee simple patent following expiration of the trust period, however, the title passes from the United States to the allottee. The jurisdiction and authority theretofore possessed by the Secretary of the Interior by reason of the prior trust and restriction come to an end (Larkin v. Paugh, 276 U.S. 431), and the allottee becomes invested with full power of alienation and as a necessary incident thereof, the lands become subject to taxation in the same manner as property belonging to other citizens. (Goudy v. Meath, 203 U.S. 146).

    Presented with the record, however, is a brief filed by Serven and Patten, attorneys representing certain of the Nez Perce Indians, wherein it is contended that an exemption from taxation attaches to these lands even after expiration of the trust period and issuance of fee simple patent. This contention rests mainly upon the following provision contained in the original treaty with these Indians concluded June 9, 1863 (14 Stat. 647):

    Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of, only to the United States or to persons then being members of the Nez Perce tribe, and of Indian blood, with the permission of the President, and under such regulations as the Secretary of the Interior or the Commissioner of Indian Affairs shall prescribe. * * *
    But an examination of the provisions of the
 


 

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OPINIONS OF THE SOLICITOR

JUNE 30, 1930

treaty of 1863 and subsequent legislation and agreements with these Indians, coupled with other circumstances hereafter referred to, clearly discloses that the provision in question, whatever its effect might otherwise have been, never attached to the lands allotted to the members of this tribe of Indians.

    Under the treaty of 1863, by which the Nez Perce Reservation was created, the United States agreed to reserve the land for a home and the sole use and occupancy of said tribe. So far as here material, the treaty provided that immediately after ratification thereof, the President should cause the boundaries of the reservation to be surveyed and established, after which the cultivable land should be surveyed into lots of 20 acres each and one such lot assigned to each member of the tribe over the age of 21 years, or the head of a family, who desired it "as a permanent home for such person," and set apart for the perpetual and exclusive use and benefit of himself and heirs. Then followed the provision reproduced above with respect to the taxability and alienability of the lands assigned. The residue of the land was to be held in common for pasturage for the sole use and benefit of the Indians, with the provision, however, for future assignments of land from time to time as members of the tribe might come upon the reservation and claim the privileges granted by the treaty. By an amendatory treaty of August 13, 1868, ratified February 24, 1869 (15 Stat. 693), provision was made, among others, for the removal of Indians residing outside the reservation to allotments within the reservation, or upon certain conditions such Indians might be allowed to remain on the lands then occupied by them upon the same terms and conditions as those within the reservation.

    Examination of the records of the Indian Office, however, discloses that no allotments were made to the Indians under the provisions of these earlier treaties, because the Indians, being dissatisfied with the small quantity of land to which each was entitled, had refused to take such allotments. Matters stood thus when the general allotment act of 1887 was passed, section 1 of which provided that in all cases where "any tribe or band of Indians has been or shall hereafter be located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or Executive order setting apart the same for their use," the President is authorized, whenever in his opinion any such reservation or part thereof is advantageous for agricultural or grazing purposes, to cause the same to be surveyed and to allot the lands in severalty to any Indian located thereon in the quantities therein specified. Acting upon authority of this statute, which embraced within its scope reservations created by treaty stipulation, such as the Nez Perce, the President, on April 13, 1889, issued directions for the making of allotments of land in severalty to the Indians of the Nez Perce Reservation under the provisions of the general allotment act. Pursuant thereto, a schedule of allotments, based upon selections made by the Indians, was approved by the Secretary of the Interior on March 19, 1895, and trust patents therefor fully issued to the allottees in conformity with section 5 of the general allotment act, as aforesaid.

    In the act of August 25, 1894 (28 Stat. 286, 326, 327, 330), making appropriations for current and contingent expenses of the Indian Department and fulfilling treaty stipulations with the various Indian Tribes, will be found an agreement between the Nez Perce Tribe of Indians and the United States, from which it appears that in making that agreement the parties proceeded under authority of the act of 1887. By that agreement, the Indians ceded, sold relinquished and conveyed to the United States all their claim, title and interest in and to certain unallotted lands with the reservation, except certain specified tracts which they retained. The parties stipulated that the lands so ceded should not be open for settlement until "trust patents" for the allotted lands had been duly issued and recorded and the first payment made to the Indians. Article 5 stipulated that all allotments made to the members who have died since the same were made, or may die before the ratification of the agreement, shall be confirmed "and trust patents issued in the names of such allottees respectively." Article 3 provided for relinquishments by certain allottees, with provision for the issuance of a new patent "of form and legal effect prescribed by the fifth section of the act of February 8, 1887 (Twenty-fourth Statutes three hundred and eighty-eight.), for the new allotment and that portion of the old allotment surrendered." It is significant to note that the earlier treaties contained no provision for the issuance of trust patents and the stipulations in this later agreement for the issuance of such patents as provided for in the fifth section of the general allotment act, clearly show that it was the understanding of the parties that the provisions of the general allotment act controlled in the matter of allotments, and the agreement can, therefore, have no other effect than to confirm the action of the President in causing the allotments to be made thereunder.

    The refusal of the Indians to take allotments under the earlier treaties of 1863 and 1869, the subsequent enactment of the general allotment act of 1887, embracing within its scope reservations such as the Nez Perce created by treaty stipula-
 


 

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tion, and the making of allotments thereunder to the Indians with their consent as manifested, not only by the selections made by them, but by the subsequent agreement of 1894, make it plain that the provisions of the original treaty of 1863 relied upon as creating the tax exemption here claimed, were superseded by the provisions of the general allotment act.

    The rights of the Nez Perce Indians with respect to the lands allotted to them, are thus determined by the general allotment act of 1887 and as that act contains no provision exempting the allotted lands from taxation after issuance of fee simple patents upon expiration of the trust period, I am clearly of the opinion that such lands thereupon become subject to the taxing power of the State.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved June 30, 1930.
Jos. M. DIXON, First Assistant Secretary.

POWER OF SECRETARY-WATER CHARGES

M-26034                                                                                                                                       July 3, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have referred to me for opinion questions submitted by the Commission of Indian Affairs whether the Secretary of the Interior may set aside regulations which fix the date and amount of annual payments of water right charges under a law which authorizes him to prescribe the terms of repayment of a reimbursable appropriation.

    By the act of Congress of May 18, 1916 (39 Stat. 155), it is provided:

    That there is hereby appropriated, out of any funds in the Treasury not otherwise appropriated, $95,000, to be used by the Commissioner of Indian Affairs under the direction of the Secretary of the Interior, in the acquisition of water rights for the lands heretofore allotted to Indians, situated within the boundaries of the West Okanogan Valley irrigation district, Okanogan County, Washington, and for the payment of the proportionate operation and maintenance charges of the said district. The Secretary of the Interior is authorized to negotiate for said water rights and to pay therefor as he may deem appropriate, such part of the sum herein appropriated as he may determine to be necessary for the best interests of the Indians: Provided, That nothing herein contained shall be construed to authorize any lien or claims upon or against said allotted lands not herein specifically appropriated for: Provided further, That the amounts expended under this appropriation shall be reimbursed to the United States by the owners of the land on behalf of which such expenditure is made, upon such terms as the Secretary may prescribe, which shall be not less favorable to the Indians than the reimbursement required of settlers upon lands irrigated under the provisions of the Reclamation Act of June seventeenth, nineteen hundred and two (Thirty-second Statutes at Large, page three hundred and eighty-eight.) and Acts amendatory thereof or supplementary thereto; and if any Indian shall sell his allotment or part thereof, or receive a patent in fee for the same, any amount of the charge made to secure reimbursement remaining unpaid at the time of such sale or issuance of patent shall be a lien on the land, and patents issued therefor shall recite the amount of such item.
    Pursuant to the legislation quoted, water rights were purchased from the West Okanogan Valley Irrigation District for 31 Indian allotments situated within the boundaries of that District and payment therefor was made out of the appropriation of $95,000.

    The irrigable lands in 18 of the allotments have passed out of the trust status, fee patents having been issued therefor, and practically all of them have been sold and now have the status of deeded lands.

    Acting under the authority granted in the statute to compel reimbursement upon such conditions as the Secretary may prescribe, he issued, on February 19, 1918, regulations containing the following provision:

    * * * in the sale of any of these allotments within the West Okanogan Valley irrigation district, the purchaser should distinctly be given to understand that in addition to the appraised value of the land itself, he will be required to begin reimbursement to the United States for outstanding water rights against the land purchased, within two years of the date of the approval of the sale to him of the allotment so bought, payment to be made in twenty annual installments, one-twentieth to be paid on the first day of December of the



 

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second year following the date of approval of sale.

    The terms of repayment having been fixed, there accrued against the lands for which water rights had been acquired certain charges for the expenditure made to acquire the water rights.

    By the act of Congress approved May 4, 1922 (42 Stat. 579), an appropriation was made for operation and maintenance charge for these lands which charge was made a lien against the land. This statute is quoted as follows:

    For the payment of the proportionate maintenance and operation charges against allotted Indian lands situated within the boundaries of the West Okanogan Valley Irrigation District, Okanogan County, Washington, $20,000 to be reimbursed to the United States in accordance with the provisions of the Act of May 18, 1916 (Thirty-ninth Statutes at Large, pages 155-165), and subject to the lien created therein:
    Much difficulty having been experienced in securing repayment of the charges accruing under the law and regulations, the question arises whether the Secretary of the Interior can amend the regulations and fix a different time for payment of the charges. The regulations issued in this instance are not unlike the public notice issued under the reclamation act for repayment of charges.

    A question similar to the one under consideration was before this office and an opinion was rendered December 31, 1923, which is found in L.D. page 223. In that case, the conclusion was reached that the Secretary of the Interior is not legally authorized to issue an order for the extension of the time of payment under public notices without specific act of Congress.

    When conditions arise which create an indebtedness in favor of the United States, the administrative officer cannot extend the time of payment because such action would be detrimental to the interests of the United States. A contractual condition exists between the United States and the debtor.

    In 8 Comptroller's Decisions, 104, it is said:

    Its (The United States) officers do not possess plenary powers and it must be assumed that they are not authorized to sacrifice its interests. Therefore it has been properly held that a government officer is not authorized to extend the time of a contract if such extension will appear to release the contractor or otherwise detrimental to the interests of the Government.
    In 5 Comptroller General, 605, he states:
    Officers of the Government are not authorized to modify the terms of a contract which has been entered into if such modification will be prejudicial to the United States.
    I have the honor to inform you that in my judgment the Secretary of the Interior is not legally authorized and there is no law empowering him to issue new regulations which would grant extensions of time for the payment of water right charges that have accrued under the regulations issued February 19, 1918, pursuant to the act of May 18, 1916 (39 Stat. 155).

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: July 3, 1930.

JOHN H. EDWARDS, Assistant Secretary.

CALIFORNIA INDIANS-ENROLLMENT

M-25999                                                                                                                                       July 8, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Some doubt having arisen in the premises, my opinion is requested as to the proper interpretation to be placed upon the act of April 29, 1930 (Public 177), amending section 7 of the Act of May 18, 1928 (45 Stat. 602), entitled, "An Act Authorizing the Attorney General of the State of California to bring suit in the Court of Claims on behalf of the Indians of California."

    It is provided in section 1 of the act of May 18, 1928: "That for the purposes of this Act the Indians of California shall be defined to be all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State." Section 7 of said Act reads as follows:

    For the purpose of determining who are entitled to be enrolled as Indians of California, as provided in section 1 hereof, the Secretary of the Interior, under such rules and regulations as he may prescribe, shall cause a roll



 

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JULY 8, 1930

to be made of persons entitled to enrollment. Any person claiming to be entitled to enrollment may within two years after the approval of this Act, make an application in writing to the Secretary of the Interior for enrollment. At any time within three years of the approval of this Act the Secretary shall have the right to alter and revise the roll, at the expiration of which time said roll shall be closed for all purposes; thereafter no additional names shall be added thereto: Provided, That the Secretary of the Interior, under such rules and regulations as he may prescribe, shall also cause to be made, within the time specified, herein, a roll of all Indians in California other than Indians that come within the provisions of section 1 of the Act.

    Subsequently it was found that it would not be possible to complete the enrollment work within the time limit provided for in the act of May 18, 1928, and that it would be necessary to obtain legislation for an extension of time. Thereupon, Congress enacted the act of April 29, 1930, as follows:
    That section 7 of the Act of May 18, 1928 (Forty-fifth Statutes at Large, page 602), is hereby amended to read as follows:

    "Sec. 7. For the purpose of determining who are entitled to be enrolled as Indians of California, as provided in section 1 hereof, the Secretary of the Interior, under such rules and regulations as he may prescribe, shall cause a roll to be made of persons entitled to enrollment. Any person claiming to be entitled to enrollment may within four years after the approval of this Act make an application in writing to the Secretary of the Interior for enrollment. At any time within five years of approval of this Act the Secretary shall have the right to alter and revise the roll, at the expiration of which time said roll shall be closed for all purposes and thereafter no additional names shall be added thereto: Provided, That the Secretary of the Interior, under such rules and regulations as he may prescribe, shall also cause to be made, within the time specified herein, a roll of all Indians in California other than Indians that come within the provisions of section 1 of this Act."

    This act bears the same title as the act of May 18, 1928. The only change made in section 7 of the original act by the act of April 29, 1930, is to substitute the words four and five in place of two and three as indicated by the supplied underscorings in the above quotations of the two acts. That the act of April 29, 1930 (H.R. 10081) was merely intended as a substitute in those particulars for section 7 of the act of May 18, 1928, is further shown by the words, "as provided in section 1 hereof" and "Indians that come within the provisions of section 1 of this Act", meaning the act of May 18, 1928, as said section 1 is not a part of the act of April 29, 1930. In other words, by the act of April 29, 1930, applicants are given four years from date of approval of the act of May 18, 1928, in which to apply for enrollment instead of two years, and the Secretary of the Interior has five years from that date in which to revise the roll instead of three years. Any doubt as to the purpose of the later act is effectually removed by the report of the Committee on Indian Affairs (H.R. Report No. 796) adopted by the Senate Committee on Indian Affairs (Senate Report No. 512) wherein it is said: "The purpose of H.R. 10081 is to grant two additional years within which enrollment might be made. In other words, four years will be allowed for enrollment instead of two with the additional year for revision."

    To repeat, the changes made by the amendatory act of 1930 were merely substituted or written into the existing act of 1928 to be calculated from the date of the original act, that is, the act of May 18, 1928, remains the controlling act for carrying out the enrollment work in the manner provided for therein, the amendment merely granting additional time in which to complete the same. It seems clear that it was the purpose of the act of April 29, 1930, to grant only two additional years or four years in all in which the Indians could apply for enrollment. If this time were calculated from the date of the amendatory act, the effect would be to grant them an extension up to April 29, 1934, which was clearly not the intention.

    You are accordingly advised that the Indians of California under section 7 of the act of May 18, 1928, as amended by the act of April 29, 1930, are granted the right to apply for enrollment for four years from May 18, 1928, or up to May 18, 1932, and that the Secretary of the Interior has five years or until May 18, 1933, in which to alter or revise the roll, "at the expiration of which time said roll shall be closed for all purposes and thereafter no additional names shall be added thereto."

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: July 8, 1930.
JOHN H. EDWARDS, Assistant Secretary.
 


 

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AUGUST 11, 1930

STATUS OF FLATHEAD SURPLUS LANDS

53 I.D. 154

M-26075                                                                                                                                           August 5, 1930.

The Honorable,
The Secretary of the Interior,

DEAR MR. SECRETARY:

    You have referred to me for an opinion a question submitted by the Commissioner of Indian Affairs as follows:

    Are the unentered surplus lands within the Flathead Indian reservation, Montana, which have been opened to entry and sale, subject to the terms of the general leasing act of February 25, 1920 (41 Stat. 437); and, if so, are not the Indians entitled to the entire proceeds received from such leases, in view of the opinion of the Supreme Court in the case of Ash Sheep Company v. United States (252 U.S. 159)?
    The Flathead Indian Reservation was established by the treaty of July 16, 1855 (12 Stat. 975), and by act of April 23, 1904 (33 Stat. 302), the Secretary of the Interior was directed to cause all of the reservation to be surveyed, to make allotments, to classify and appraise the lands remaining after allotments, and to dispose of such remaining lands under the general provisions of the homestead, mineral, and town-site laws of the United States, with certain exceptions.

    In section 9 of said act it is provided that the lands shall be opened to settlement and entry by proclamation of the President. In section 14 it is provided that the proceeds received from the sale of said lands shall be expended for the benefit of or paid to the Indians. Section 16 reads as follows:

    That nothing in this act contained shall in any manner bind the United States to purchase any portion of the land herein described, except sections sixteen and thirty-six, or the equivalent, in each township, and the reserved tracts mentioned in section 12, or to dispose of said land except as provided herein, or to guarantee to find purchasers for said lands or any portion thereof, it being the intention of this Act that the United States shall act as trustee for said Indians to dispose of said lands to expand and pay over the proceeds received from the sale thereof only as received.
    The unallotted lands were opened to entry by proclamation of the President dated May 22, 1909 (36 Stat. 2494).

    It is clear that the lands involved are not public lands or lands owned by the United States within the meaning of the leasing act of February 25, 1920, supra. In addition to the cited case of Ash Sheep Company v. United States, attention is invited to the case of Peter Fredericksen (48 L.D. 440).

    Section 35 of the leasing act provides for the disposition of all proceeds from lands leased under said act. These provisions are utterly inconsistent with the provisions of section 14 of the act of April 23, 1904, supra.

    The unentered surplus lands within the Flathead Indian Reservation, Montana, which have been opened to entry and sale, are not subject to the terms of the general leasing act of February 25, 1920.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: August 5, 1930.
Jos. M. DIXON, First Assistant Secretary.

RESTRICTIONS UPON LANDS AND
FUNDS-FIVE TRIBES

53 I.D. 157

M-26067                                                                                                                                            August 11, 1930.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs you have requested my opinion upon the following questions dealing with the restrictions upon lands and funds of members of the Five Civilized Tribes in Oklahoma.

    1. Will the restrictions now attaching to accumulated funds derived from restricted lands allotted to members of the Five Civilized Tribes terminate on April 26, 1931, the date of expiration of the present restrictions imposed upon such lands by sections 1 and 9 of the act of May 27, 1908 (35 Stat. 312), or do sections 1 and 2 of the act of May 10, 1928 (45 Stat. 495), extending the existing restrictions against the lands for an additional period of 25 years, also extend the restrictions upon such accumulated funds for a like period?

    2. What is the legal effect of the repeal by
 


 

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section 2 of the act of May 10, 1928, of the provision of section 9 of the act of 1908, as amended, creating for the issue born since March 4, 1906, a special estate in the homestead of a deceased allottee of one-half or more Indian blood with respect to termination of restrictions upon such homestead as well as the accumulated income therefrom?

    3. Admitting that the special estate created in favor of the issue born since March 4, 1906, terminates on April 26, 1931, do the accumulated funds on hand derived from the homestead then become the absolute property of such issue, or is it divisible among all the heirs of the decedent in accordance with their respective interests under the laws of the State of Oklahoma?

    Before discussing these somewhat complicated questions, it may be well to refer briefly to the status of the lands involved with respect to the restrictions upon alienation existing there against prior to the restrictions extension act of 1928, as well as the scope of the latter act.

    The Five Civilized Tribes originally owned extensive areas of land in what is now the State of Oklahoma. Division of these lands, which were held in communal ownership, was had through allotments in severalty to the individual members of the tribes, pursuant to agreements negotiated with the several tribes for that purpose, which agreements provided for varying periods of nonalienability and non-taxability. With these agreements, however, we are not here concerned, as Congress, by the act of May 27, 1908 (35 Stat. 312), provided a new and uniform scheme of restrictions applicable alike to all of the Five Civilized Tribes. Section 1 of that act dealt with the restrictions upon allotted lands of living allottees and for that purpose divided such lands into three classes based upon the Indian blood of the allottees. First, both homestead and surplus allotments of allottees having less than one-half Indian blood. Second, surplus allotments of allottees of half and less than three-fourths Indian blood. Third, homesteads of allottees of one-half or more Indian blood, and both homestead and surplus allotments of allottee having three-fourths or more Indian blood. Lands of allottees in classes one and two were freed from all restrictions, but as to lands within the third class, Congress declared that they "shall not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe."

    Section 9 of the same act dealt with the restrictions upon lands of deceased allottees and provided:

    That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienations of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section 1 hereof, for the use and support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.
    The above section was amended by the act of April 10, 1926 (44 Stat. 239), by extending, among other things the scope of the first proviso relating to conveyances by full-blood heirs so as to include within its provision full-blood devisees.

    The death of an allottee under section 9 as interpreted by the courts operates to remove the restrictions upon alienation of the lands allotted to the decedent with two exceptions. First, lands inherited by or devised to full-blood members of the Five Civilized Tribes, and as to them the Supreme Court of the United States in Parker v. Richards (250 U.S. 235) has held that the restrictions are not removed but merely relaxed to the extent of sanctioning such conveyances as receive the approval of the proper local court, which acts in that regard as a Federal agency. Further, that such lands in the hands of a full-blood continue in the restricted class, and during the restricted period supervision over the collection, care and disbursement of royalties, accruing from a lease made during the lifetime of the allottees falls to the Secretary of the Interior. But where the lease is made by the full-blood heir, the Circuit Court of Appeals, Eighth Circuit, in a final decision from which no appeal was taken, has held that such a lease is a
 


 

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conveyance of an interest in the land, valid when approved by the proper local court and operating to terminate the jurisdiction and control of the Secretary of the Interior. See United States v. Gypsy Oil Company (10 Fed. 487). While this decision is open to serious question as in conflict with the rule as laid down in Parker v. Richards, supra, the decision having become final must be accepted as controlling in the class of cases to which it applies, at least until overruled or modified by subsequent decisions of courts of equal or higher standing having occasion to reexamine the question. The second exception embraces homestead allotments of deceased allottees of one-half or more Indian blood, leaving issue born since March 4, 1906, such homesteads being restricted and inalienable for the use and support of such issue during lifetime but not beyond April 26, 1931.

    The act of May 10, 1928, extending restrictions upon these lands, so far as material, reads:

    Sec. 1. That the restrictions against the alienation, lease, mortgage, or other encumbrance of the lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood be, and they are hereby, extended for an additional period of twenty-five years commencing on April 26, 1931: Provided, That the Secretary of the Interior shall have the authority to remove the restriction, upon the applications of the Indian owners of the land, and may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.

    Sec. 2. That the provisions of section 9 of the Act of May 27, 1908 (Thirty-fifth Statutes at Large, page 312). entitled "An Act for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, and for other purposes," as amended by section 1 of the Act of April 12, 1926 (Forty-fourth Statutes at Large, page 239)) entitled "An Act to amend section 9 of the Act of May 27, 1908 (Thirty-fifth Statutes at Large, page 312), and for putting in force, in reference to suits involving Indian titles, the statutes of limitations of the State of Oklahoma, and providing for the United States to join in certain actions, and for making judgments binding on all parties, and for other purposes," be, and are hereby extended and continued in force for a period of twenty-five years from and including April 26, 1931, except, however, the provisions thereof which read as follows:

    "Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions: if this be not done, or in the event the issue hereinabove provided for died before April 26, 1931, the lands shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions: Provided, That the word "issue," as used in this section shall be construed to mean child or children: Provided further, That the provisions of section 23 of the Act of April 26, 1906, as amended by this Act, are hereby made applicable to all wills executed under this section: "which quoted provisions be, and the same are, repealed, effective April 26, 1931: Provided further, That the provisions of section 23 of the Act of Congress approved April 26, 1906 (Thirty-fourth Statutes at Large, page 137), as amended by the provisions of section 8 of the Act of Congress, approved May 27, 1908 (Thirty-fifth Statutes at Large, page 312), be and the same are hereby continued in force and effect until April 26, 1936.

    Section 1 above plainly extends for an additional period of 25 years the restrictions attaching to lands of living allottees under Section 1 of the act of 1908, which, as we have seen, embraces homesteads of allottees of one-half or more Indian blood, and both homestead and surplus allotments of allottees of three-fourths or more Indian blood. It is also plain that section 2, while repealing the provision creating a special estate for the issue born since March 4, 1906, to homestead allottees of one-half or more Indian blood, likewise extends for the same period the restrictions attaching under section 9 of the act of 1908, as amended, to lands inherited by or devised to full-blood members of the Five Civilized Tribes. With this situation in mind, we turn to the first question as to whether the extension of restrictions applies to funds now in the control of the Secretary of the Interior, representing the income derived from these restricted lands.

    Section 2 of the act of 1908 declared that "leases of restricted lands for oil, gas, or other mining purposes * * * may be made with the approval
 


 

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of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise."

    The funds here involved represent for the most part accumulated royalties from minerals produced under leases made and approved under this provision. The leases are on forms providing, in conformity with existing regulations, that the Secretary of the Interior, through his representatives, shall supervise all operations under these leases, that the royalties thereunder shall be paid to his representatives, that with certain exceptions the regulations then or thereafter in force should be deemed a part of the leases, and that supervision should only be relinquished in the event of removal of restrictions from the lands. The leases and the regulations thus contemplate continued supervision of the Secretary of the Interior over the collection, care, and disbursement of royalties so long as the lands remain restricted, and in view of this action of Congress in extending the restrictions upon the lands for an additional period of 25 years, the event which otherwise would have terminated the Secretary's supervision and control over the leases and the royalties in 1931 will not then occur and may not thereafter occur until the restrictions expire in regular course in 1956.

    The fact that the act of 1928 is an act extending restrictions upon lands with no specific mention therein of funds is unimportant. The act of 1908, like that which it amended, is a comprehensive, measure designed by Congress for the protection of the Indians against their own improvidence and overreaching by others. Admittedly, the need for such protection extends to the income from the lands as much as to the land itself, and, as was said by the Circuit Court of Appeals, Eighth Circuit, in United States v. Brown (8 Fed. 2d 564): "It would present a remarkable inconsistency in governmental policy of such funds were not subject to the same beneficent control as the lands from which they are derived."

    From the viewpoint of governmental control no sound basis in fact exists for making any distinction between the lands and the income therefrom. The lands being restricted, the proceeds therefrom are likewise restricted and under the protecting care of the Federal Government. United States v. Mott (34 Fed. 2d 860). In authorizing the leasing of lands for oil, gas, or other minerals with the approval of the Secretary of the Interior, Congress permitted a change in the form of the property. No citation of authority is needed to sustain the doctrine that into whatever form trust property is converted it continues to be impressed with the trust. The rule is a salutary one and has been repeatedly applied to the trust or restricted property of the Indians. Thus, in United States v. Thurston County (143 Fed. 287) it was held that the proceeds of the sales of allotted lands are held in trust by the United States for the same purposes as were the lands; that no change of form of property divests it of a trust, and that the substitute takes the nature of the original and stands charged with the same trust. Again in National Bank of Commerce v. Anderson (147 Fed. 87) The Circuit Court of Appeals, Ninth Circuit, held that the sale of allotted lands, within the consent of the Secretary of the Interior, did not affect the trust which attached to the proceeds under the rules prescribed by the Interior Department. In that case the court said:

    We construe the act as expressing the intention of Congress, not to end the trust but to permit a change of the form of the trust property. The property being held in trust by the United States for a period which had not yet expired and which was subject to further extension by the President, the intention to terminate the trust must be found to be clearly expressed in order to warrant us in holding that the trust does not follow the property in its changed form.
    Similar expressions will be found in United States v. Gray (201 Fed. 119) and United States v. Moore (284 Fed. 86). In United States v. Brown, supra, the rule was expressly applied to royalties derived from a lease upon restricted lands of a member of the Five Civilized Tribes, the court saying: "It must be conceded that the royalties accruing therefrom are lodged with the officers of that Department impressed with the same trust as are the lands themselves." See also Barnes v. Keys (36 Oklahoma 6); Strawn v. Brady (84 Oklahoma 66); Harris v. Brady (136 Oklahoma 274); Parker v. Riley (250 U.S. 66). In the case last cited, the Supreme Court held that the royalties derived from a lease of the homestead allotment of a deceased member of the Five Civilized Tribes took the place pro tanto of the land as the lessee extracted and took the minerals and that the rights of the heirs in the royalties were the same as in the homestead.

    It sufficiently appears from the foregoing decisions not only that the royalty interest of the lessee is but a right attached and incident to his ownership of the land but that the proceeds from the lands, whether derived from sale or lease, partake of the nature of the lands themselves and are impressed with the same trust. The status of the funds is thus determined by the status of the lands from which derived, and it therefore follows that the
 


 

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act of May 10, 1928, supra, extending restrictions upon the lands for an additional period of 25 years, ipso facto, extends for a like period, the restrictions upon the funds.

    As to the second question, it becomes necessary first to consider the matter of when the restrictions terminate upon the homestead of deceased allottees leaving issue born since March 4, 1906. The special estate therein belonging to such issue was, as we have seen, created by the second proviso to section 9 of the act of May 27, 1908, as amended by the act of April 10, 1926, supra. This proviso declared that the homestead should remain restricted and inalienable for the use and support of such issue during life but not beyond April 26, 1931. The restrictions so imposed were designed, of course, for the protection of the owners of the special estate and were substantially the same as those attaching to lands of living allottees under section 1 of the act of 1908. Repeal of the proviso by section 2 of the act of May 1, 1928, supra, effective April 26, 1931, operates, of course, to terminate the special estate as of that date. But this does not necessarily mean that all restrictions against alienation of the homestead were then to terminate, as there is for consideration the first proviso of the same section by which the sale of any interest inherited by or devised to a full-blood member of the Five Civilized Tribes is subject to the approval of the proper local court-a provision which, as hereinbefore pointed out, continues the restrictions in relaxed form in the hands of such full-blood Indians. True, the second proviso creating the special estate, contains the provision that:

if no such issue survives, then such allottee, if an adult, may dispose of his homestead by will, free from all restrictions; and if this be not done, or in the event the issue hereinbefore provided for, die before April 26, 1951, the land shall then descend to the heirs according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.
    This provision, which indicates that upon the termination of the special estate the restrictions will terminate is undoubtedly broad but so is the first proviso. As both are in the same section of the same act they evidently were intended to operate harmoniously and should be construed accordingly. If the second proviso be regarded, as well it may, as contemplating the removal upon termination of the special estate, only of those restrictions im posed upon the homestead for the protection of the owners of the special estate, the two provisions will operate in entire harmony and all full-bloods will receive the measure of protection that Congress undoubtedly intended that they should have. While the matter is by no means free from doubt, I am constrained to hold that this is the true construction, and am therefore of the opinion that upon termination of the special estate in the homestead, the restrictions upon alienation of the lands are only removed where the heirs or devisees, as the case may be, are of less than the full-blood and that where such heirs or devisees are of the full-blood, their interests are subject to the restrictions attaching thereto under the first proviso of section 9 of the act of 1908, as amended, as interpreted in the cases of Parker v. Richards and United States v. Gypsy Oil Company, supra.

    Having already determined in connection with the first question that the income falls in the same category as the lands from which derived, no other conclusion can be reached than that the expiration of the restricted or trust period on the lands terminates the restrictions upon the income. Nothing in the decision of the Circuit Court of Appeals in United States v. Hinkle (261 Fed. 518) makes to the contrary. That decision held that the exclusive control and custody of minerals, rents, and profits derived from restricted lands of full-blood tribal Indians of the Five Civilized Tribes were vested in the Secretary of the Interior as a trust fund separate and distinct from the trust estate in the land itself, and that the right to such rents and profits accruing during the term of restriction can not be conveyed by the allottee or his heir. Doubtless, the court in holding that the mineral rents and profits constitute a trust fund separate and distinct from the land had in mind that the Secretary of the Interior, in the exercise of authority reposing in him under the law might remove the restrictions and terminate the trust as to one without impairing or disturbing the trust as to the other. That the two classes of property are separate and distinct to that extent is undeniably true, but the court did not consider, and hence did not decide, that the period of the trust as to the mineral rents and profits was any different from that fixed by Congress with respect to lands. Ample authority to the contrary will be found in the decisions above cited, which support the doctrine that the proceeds from the land are impressed by the same trust as the lands themselves. It should be remembered in this connection that the power of Congress over the Indians and their property is plenary and that it is for that body to determine when its guardianship shall cease. United States v. Nice (241 U.S. 598); Winston v. Amos (255 U.S. 373). Whenever Congress has so determined the supervision and control therefore exercised by the Secretary of the Interior as the agent selected by Congress to per-
 


 

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form its guardianship powers necessarily come to an end.

    The third question presents little difficulty. It is controlled by the decision of the Supreme Court of the United States in Parker v. Riley, supra, wherein the rights of the heirs and the owners of the special estate in the homesteads of deceased allottees leaving surviving issue born since March 4, 1906, were defined as follows:

    Thus the rights of all in the royalties were the same as in the homestead. Nothing in the Act of May 27, 1908, makes to the contrary. Under the provision in section nine specially providing for issue born after March 4, 1906, Julia was entitled for her support to the exclusive use of the entire homestead while she lived, but not beyond April 26, 1931, and those who took the fee took it subject to that right. The rights of all in the royalties must, as we think, be measured by that standard. In this view Julia is entitled to the use of the royalties, that is to say, the interest or income which may be obtained by properly investing them, during the same period, leaving the principal, like the homestead, to go to the heirs in general on the termination of her special right.
    Obviously, under the foregoing decisions the accumulated funds on hand from the homestead do not, upon termination of the special estate, become the absolute property of the issue born since March 4, 1906, but are for distribution among the heirs in accordance with their respective interests under the applicable laws of descent and distribution.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: August 11, 1930.
Jos. M. Dixon, First Assistant Secretary.

TAXATION OF SAC AND FOX LANDS

53 I.D. 187                                                                                                                                     October 8, 1930.
M-26163

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs you have requested my opinion as to whether the lands hereinafter referred to, constituting what is known as the Sac and Fox Indian Reservation in the State of Iowa, are subject to taxation by the State.

    By the treaty of October 11, 1842 (7 Stat. 596), the Sac and Fox Indians ceded to the United States all their lands west of the Mississippi River, the United States agreeing to assign them as a reservation and permanent place of residence, a tract of land on the Missouri River or some of its tributaries, to which the Indians were to remove within three years, the Government also agreeing to pay the Indians certain annuities and furnish certain supplies. In conformity with this treaty, a reservation was set apart for the Indians within what are now the boundaries of the State of Kansas, and the tribes with the exception of some individuals removed thereto. By the treaty of October 1, 1859 (15 Stat. 467), provision was made, among others, for allotments of land in severalty to the members of the tribes. Some of the Indians, however, headed by Chief Maw-mew-wah-ne-kah were bitterly opposed to receiving lands in severalty and refused to be enrolled for that purpose and it was charged that Chief Maw-mew-wah-ne-kah used his influence to impede and prevent execution of the treaty. For this conduct he was deposed from his chieftainship and thereupon with some five or six lodges who were induced to follow him he was subsequently joined by other members of the tribe and by straggling Pottawatomies and Winnebagoes. They established themselves in Tama County, where the nucleus of their present reservation was formed by the purchase from white settlers, with the proceeds derived from the sale of a band of ponies, some 419 acres of land.

    From the time they left Kansas up to 1867 they received no aid from the Federal Government and all efforts of the Government to have them return to their people, even the withholding of annuities otherwise due them, were without avail. Attention, however, having been called to the destitute condition of these Indians, Congress, by an item in the Indian appropriation act of March 2, 1867 (14 Stat. 507), provided for the payment of annuities to them so long as they were peaceful and had the assent of the Government of Iowa to remain in that State. Such assent of the State having previously been given by an act of the General Assembly in 1856, a special agent was appointed to attend to the band and pay them their annuities, and at their request $2,000 of their first annuity money was used to purchase a tract of 99 acres of privately owned land in the State. Since then additional purchases of land amounting in the aggregate to some 3,000 acres have from time to time been made in the same manner. In the acquisition of these lands, it was apparently the desire of the Indians to establish a tribal or communal title and to that end the legal title was conveyed to the
 


 

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OPINIONS OF THE SOLICITOR

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Governor of the State of Iowa in trust for the Sac and Fox Indians in Tama County, Iowa, except in a few instances where the trustee selected to hold the legal title was the United States Indian agent then in charge of these Indians.

    Such was the condition and status of the lands here involved in 1893 when the legislature of the State of Iowa was induced to pass an act ceding jurisdiction to the Federal Government (Act 26th, General Assembly, Chapter 110, Page 114). The provisions of this act, being material to the question at hand, are reproduced below in full:

    Section 1. That, except as hereinafter provided, exclusive jurisdiction of the Sac and Fox Indians residing in Iowa and retaining the tribal relation, and of all other Indians dwelling with them, and of all lands now or hereafter owned by or held in trust for them as a tribe, be and the same is hereby tendered to the United States, and that, as soon as the United States shall accept and assume such jurisdiction, all such jurisdiction on the part of the State of Iowa shall cease.

    Sec. 2. Consent is hereby given to the United States to purchase any land in Tama county to be used for and in connection with any school or schools to be established and managed by federal authority for the education of said Indians.

    Sec. 3. Nothing contained in this act shall be so construed as to prevent on any of the lands referred to in this act, the service of any judicial process issued by or returnable to any court of this state or judge thereof, or to prevent such courts from exercising jurisdiction of crimes against the laws of Iowa committed thereon either by said Indians or others, or of such crimes committed by said Indians in any part of this state, or to prevent the establishment and maintenance of highways and the exercise of the right of eminent domain under the laws of this state over lands now or here after owned by or held in trust for said Indians, or to prevent the taxation of said lands for state, county, bridge, county road, and district road purposes, and such other purposes as the general assembly may from time to time by special statute provide. [Italics supplied.]

    By a clause inserted in the Indian appropriation act of June 10, 1896 (29 Stat. 321, 331), Congress accepted the cession of State jurisdiction in the following language:
    That the United States hereby accepts and assumes jurisdiction over the Sac and Fox Indians of Tama County, in the State of Iowa, and of their lands in said State, as tendered to the United States by the act of the legislature of said State passed on the sixteenth day of January, eighteen hundred and ninety-six, subject to the limitations therein contained: and the United States Indian agent of the Sac and Fox Agency, Iowa, and the governor of the State of Iowa, respectively, are hereby authorized to transfer by deed of conveyance, for the use and benefit of said Indians, the legal title held by them in trust, respectively, and the trusteeship of the lands of the Sac and Fox Indians of Tama County, Iowa, to the Secretary of the Interior and his successors in office. [Italics supplied.]
    In conformity with the foregoing legislative authority, the legal title to the lands owned by these Indians was transferred to the Secretary of the Interior in trust for the Indians and since then some 300 acres additional have been purchased for their benefit under authority of the act of April 30, 1908 (35 Stat. 80), the legal title to which was likewise conveyed to the Secretary of the Interior in trust for the Indians.

    The right of the State to tax the lands has been exercised since the original acquisition by the Indians, such taxes being paid at first from the proceeds derived from leasing some of the lands and later, after the cession of State jurisdiction, from appropriations made by Congress from tribal funds for the support and civilization of these Indians. However, by item contained in the act of March 4, 1929 (45 Stat. 1583), it was provided that no part of the appropriation for these Indians "shall be available for the payment of taxes on any lands held in trust by the United States for the benefit of the Indians." A similar provision is contained in the act of May 14, 1930 (Public No. 217, 71st Congress, page 25).

    When we come to consider the question of the right of the State to tax these lands it is well to bear in mind that they were part of the State of Iowa upon her admission into the Union in 1845. The jurisdiction of the State thereover was then full and complete. Purchase of the lands by the Indians clearly did not divest the State of that jurisdiction and it continued unimpaired until the cession of 1896. By that cession the right of the State then existing to tax the lands was reserved and that reservation was solemnly accepted by the United States in the enactment of June 10, 1896, supra. This seemingly should have settled the matter, but now that the tribal funds are no longer available for the payment of taxes, it is urged that
 


 

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the cession operated to vest in the United States exclusive jurisdiction over the lands and that the attempted reservation of the right to tax is repugnant to and inconsistent with that result and therefore should be rejected. The case of Peters v. Malin (111 Fed 244), cited by the Commissioner of Indian Affairs dealt with the criminal and civil jurisdiction of the State of Iowa over these Indians and their lands and to some extent lends support to the view advanced. But that case can not be regarded as controlling for the reason that the matter of taxation was neither involved nor discussed. It has been repeatedly held that where taxable lands are purchased by or for the benefit of the Indians even with restricted funds held in trust by the Federal Government, the right of the State to tax the same continues unimpaired irrespective of the fact that the title was conveyed by deed containing restrictions against alienation or encumbrance. Shaw v. Oil Corporation (276 U.S. 575); McCurdy v. United States (246 U.S. 263); United States v. Mummert (15 Fed. 2d 926); Work v. Mummert (29 Fed. 2d 393). Of course, where the United States itself acquires the title to lands for the purposes provided for in Article 1, Section 8, of the Federal Constitution, such lands being purchased with the consent of the State legislature of the State in which located, Federal jurisdiction according to the express declaration of the Constitution is exclusive of all State authority and any attempted reservation by the State repugnant thereto in ceding jurisdiction over such lands would doubtless be ineffective. See in this connection Surplus Trading Company v. Cook (281 U.S. 647, 657). But we are not here dealing with lands purchased or acquired by the United States under the constitutional provision referred to or any other of which I am aware. The lands were purchased by the Indians with their own funds and even now title is not in the United States but in the Secretary of the Interior in trust for the Indians. In such a case, the rights of the State and Federal Government in the matter of transfer and jurisdiction are, I think, controlled by the decision of the Supreme Court of the United States in Fort Leavenworth Railroad Co. v. Lowe (114 U.S. 525), the leading case upon this subject. The question there was whether a railroad running into the military reservation of Fort Leavenworth was subject to taxation by the State of Kansas. The United States had had exclusive jurisdiction over the land in question from 1803 by the cession of France until the admission of Kansas into the Union. For many years before such admission the lands had been reserved from sale by the United States for military purposes and occupied as a military post. Until the admission of Kansas, the governmental jurisdiction of the United States was complete but when Kansas came into the Union on an equal footing with the original states, the previous military reservation was not excepted from the succeeding jurisdiction of the new State. In February, 1875, however, Kansas ceded its jurisdiction to the United States but saved to itself "the right to tax railroad, bridge, and other corporations, their franchises and property, on the ceded reservation." The court held among other things that when a formal cession was made by the State to the United States, after the original purchase of the ownership of land had been made, the State and the Government of the United States could frame the cession and acceptance of governmental jurisdiction so as to divide the jurisdiction between the two as the parties might determine, provided only that they save enough jurisdiction for the United States to enable it to carry out the purpose of the acquisition of jurisdiction. The court there fore held that the saving clause in the language of the cession requiring that the railroad should pay taxes was not invalid but was in accord with the power of both parties and might be enforced. See also Palmer v. Barrett (162 U.S. 597), wherein the Supreme Court, upholding the validity of a some what similar reservation in an act of the State of New York ceding jurisdiction to the Federal Government over certain lands in that State said:

    In the absence of any proof to the contrary, it is to be considered that the lease was valid, and that both parties to it received the benefits stipulated in the contract. This being true, the case then presents the very contingency contemplated by the act of cession, that is, the exclusion from the jurisdiction of the United States of such portion of the ceded land not used for governmental purposes of the United States therein specified. Assuming, without deciding, that if the cession of jurisdiction to the United States had been free from condition or limitation, the land should be treated and considered as within the sole jurisdiction of the United States, it is clear that under the circumstances here existing, in view of the reservation made by the State of New York in the act ceding jurisdiction, the exclusive authority of the United States over the land covered by the lease was at least suspended whilst the least remained in force.
    In view of the manner in which title to the lands under consideration was acquired and is now held and upon authority of the decisions just cited, I am of the opinion that the cession of jurisdiction by the State of Iowa, saving to itself the right of taxation became valid and binding when accepted by the United States and that the acts of
 


 

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cession and acceptance are determinative of the right of the State to tax the lands in controversy.

E. C. FINNEY,
Solicitor.

Approved: October 8, 1930.
Jos. M. DIXON, First Assistant Secretary.

DIVISION OF WATERS OF AHTANUM CREEK, WASHINGTON,
BETWEEN YAKIMA INDIANS AND WHITE LAND
OWNERS

53 I.D. 328                                                                                                                                     March 18, 1931.

WATER RIGHTS-RECLAMATION-INDIAN LANDS-
WATERMASTER

    A provision in a contract for the division of the waters of Ahtanum Creek entered into between the United States on behalf of the Indians on the Yakima Indian Reservation and the white landowners outside of the reservation for the appointment of a watermaster on or before June 15 each year, contemplated that the apportionment of the waters was to be made only during the irrigation season, and not then until the watermaster had been appointed, but that his appointment could be made before that date, if desirable.


WATER RIGHTS-RECLAMATlON-INDlAN LANDS-EQUITABLE
RIGHTS-SECRETARY OF THE INTERIOR

    The department will not attempt to abrogate a contract entered into more than twenty years ago between the United States on behalf of the Indians on the Yakima Indian Reservation and the white landowners outside of the reservation under which more than fifty per cent of the waters of Ahtanum Creek were apportioned to the latter during the irrigation season each year where the division was based upon beneficial use at the time the agreement was made and valuable rights have been acquired in reliance upon the terms of the contract, .notwithstanding that the Secretary of the Interior may not have had authority at the time to bind the Indians by such agreement.


COURT DECISION CITED AND DISTINGUISHED

    Caseof Winters v. United States (207 U.S. 564), distinguished.


FINNEY, Solicitor:

    You [Secretary of the Interior] have submitted to me for opinion certain questions propounded by the Commissioner of Indian Affairs relative to the water rights on Ahtanum Creek a stream forming the northerly boundary of the Yakima Indian Reservation in the State of Washington. The questions submitted are as follows:

    1. Whether certain old Indian rights to the use of water from the south fork of Ahtanum Creek were taken into consideration when the agreement of 1908 was made.

    2. Whether the division of the water on the basis of 75-25 in the agreement of 1908 was without limitation as to time of use throughout the season or was confined to the period of low water usually beginning about the middle of June.

    3. Whether the parties representing the Government had authority to bind and limit the use of water upon the Yakima Indian Reservation along the lines set forth in the agreement of 1908.

    The first question was considered in the [unreported] Solicitor's opinion of May 24, 1930 (M. 25937), wherein it was stated in the last sentence of the opinion that "The diversion of water for about 60 acres in the vicinity of the south fork of Ahtanum Creek seems to require no affirmative action as the condition now prevailing has existed for sixty years."

    All of the questions submitted resolve about a contract made May 9, 1908, between the United States, acting in behalf of the Indians on the Yakima Indian Reservation, and W. W. Glidden, et al., representing the white landowners living on the northerly side of Ahtanum Creek and irrigating their lands by diversions from such creek. The validity of the contract depends to some extent upon the interpretation to be placed upon the treaty made with the Yakima Indians on June 9, 1855, which treaty was ratified by Congress March 8, 1859 (12 Stat. 951). It is claimed by some that the waters of Ahtanum Creek should be divided equally between the reservation lands on the south side of the creek and the white men's lands on the north side of the creek because this stream is the boundary line of the reservation and, therefore, following the ruling in the case of Winters v. United States (207 U.S. 564), one-half of the water belongs to the Indians and the other half to the whites.

    In Article 2 of the treaty above referred to the Indians ceded, relinquished and conveyed to the United States a tract of land which was explicitly described, reserving from the tract the land included within the following boundaries, which is the present Yakima Indian Reservation:

    Commencing on the Yakima River, at the mouth of the Attah-nam River; thence westerly along said Attah-nam River to the forks; thence along the southern tributary to the Cascade Mountains; thence southerly along the main ridge of said mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickitat and Pisco rivers; thence down said spur to the divide between the waters of said rivers: thence along said



 

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divide to the divide separating the waters of the Satass River from those flowing into the Columbia River; thence along said divide to the main Yakima, eight miles below the mouth of the Satass River; and thence up the Yakima River to the place of beginning.

    Further reference will be made to this provision of the treaty in connection with the discussion of the third question propounded.

    In the contract of May 8, 1908, the parties agree by Article 1 to a division of the waters of Ahtanum Creek and its tributaries on the basis of 25 per cent of the natural flow of the creek to the Indian lands and 75 per cent of the natural flow of the stream to the white lands. In article 3 it is agreed that the waters flowing in the creek shall be measured at a point locally known as the Narrows which is on the creek below the confluence of the north fork and the south fork of Ahtanum Creek. It is provided that to the amount thus ascertained at the point of measurement shall be added the amounts of water diverted from said Ahtanum Creek including its north and south forks above the point of measurement, the total thus obtained to be divided in the percentages set forth in Article 1. It is evident that the division of water at the point of measurement was intended to take into consideration the total flow of the stream at the point of measurement including the diversions above that point.

    It was not intended by my opinion of May 24, 1930 [unreported], to decide what should be done about the appropriations on the south fork of the creek, but to say that they need not be considered in determining the other questions decided.

    Turning our attention now to the answer of the second question, which involves also an interpretation of the contract of May 9, 1908, the contract seems to contemplate the measurement of the water during a time when a division must be made between the various appropriators on the stream. It is certain that it did not attempt to divide the waters or provide for their measurement and division outside of the irrigation season. There is no intimation that the parties contemplated the storage of water or use of water from storage and the distribution of the same to the lands of either party to the agreement. The term low water flow is intended to describe the period when it becomes necessary to measure and divide the waters between the appropriators. From the beginning of the irrigation season up to the time that the waters must be divided, there is sufficient water in the stream to supply all lands and permit water to go to waste below the diversions. At that time of year the contracting parties were not interested in a division of the waters. Therefore, they provided for the appointment of a water commissioner and the beginning of the division of the waters by him when the flow of the stream fell to a point where it was impracticable for all of the appropriators to secure all of the water they could divert, or that was required for their lands. The date when the division of water became necessary is variable with each year. The contract fixed the time for the appointment of the ditchmaster "on or before the 15th of June of each and every year." As stated in my previous opinion, this could not be construed to mean June 15 of each year because the parties used the words on or before which, properly construed, makes it possible to appoint the ditchmaster before June 15, if desirable. It is evident that the parties did not intend by the contract to provide for a division of the waters until the ditchmaster was appointed but when his appointment was made he was supposed to begin the division of the water between the parties to the contract. This may appear as an amendment of the opinion rendered by me May 24, 1930, wherein it was stated that the division "is without limitation as to the season of the year." This referred only to the time of the appointment of the watermaster. It is my conclusion that the contract plainly shows that the parties were considering the waters in the stream during the irrigation season and they believed that there was no necessity for a division of the water during the early part of the irrigation season but that at some time during the summer the stream would fall to a point where there would be a shortage for some of the water users, at which time a watermaster would be appointed by agreement of the parties. By the appointment they agreed upon the man who should make the division of the water and also the time when a division was necessary.

    In question No. 3 we are presented with greater difficulties as it involves the treaty rights of the Indians and also the right of the Secretary of the Interior to make a contract for and on behalf of the Indians which would limit their rights to the diversion of the waters of Ahtanum Creek which is the northerly boundary of the reservation. From the portion of the treaty previously quoted, it is shown that the boundary is fixed as commencing on the Yakima River, thence proceeding westerly along said Ahtanum River to the forks. These words give little information as to whether the boundary line was the thread of the stream or whether it would be on the north or the south bank of the stream. The land on the north bank of Ahtanum Creek and west of the Yakima River was surveyed July 14, 1864. This survey was by meander lines along the north bank of the creek. The survey of lands on the south bank of the stream lying west of the Yakima River, which is
 


 

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on the present Indian Reservation, was made February 7, 1893. This line was also meandered. There was no attempt to establish a line in the bed of the stream. It might be asserted that the meander line on the south bank was all that represented the boundary of the Indian reservation because that would be land within the limits of the area described in section 2 of the treaty of 1855. The Supreme Court of the United States in the case of Oklahoma v. Texas (256 U.S. 70, 90), would not give such a narrow interpretation to the words used. Further, the Supreme Court decisions lead to the conclusion that where a stream marks the boundary between sovereignties, the thread of the stream is the line which represents the division of authority.

    The records in the Indian Office indicate that a dispute arose in 1907 relative to the division and use of waters from Ahtanum Creek and that arrangements were made that year looking to the institution of a suit to determine the rights of the parties. After negotiations had been carried on for some time the contract of May 9, 1908, was evolved which divided the waters as above explained. At that time the case of Winters v. United States, supra, was pending in the courts and after the decision was rendered by the Supreme Court of the United States it was contended that the Secretary of the Interior had by such contract deprived the Indians on the reservation of some of their rights by entering into the agreement of May 9, 1908.

    In the case of Winters v. United States the conditions are in my opinion different than those presented by the conditions existing at the time the treaty was made in 1855 with the Yakima Indians. In the Winters case the Court was considering a treaty made May 1, 1888 (25 Stat. 113). It described the boundary of the reservation as (P. 124)-

beginning at a point in the middle of the main channel of Milk River opposite the mouth of Snake Creek; thence due south to a point * * * thence due east * * * thence following the southern crest of said mountains * * * thence in a northerly direction to a point in the middle of the main channel of Milk River opposite the mouth of Peoples Creek; thence up Milk River in the middle of the main channel thereof, to the place of beginning.
    The decision of the Circuit Court of Appeals in Winters v. United States is found in 143 Fed. 740, and this is referred to because it gives an extended history of the situation. The court said (p. 745)-
    Now we have the basis from which to determine whether or not the Indians were, by the terms of the treaty, given any right on the reserve which they accepted to the flowing waters of Milk River from which to irrigate their lands so as to enable them to cultivate the soil on the lands of the government set apart to them for the purposes mentioned in the treaty. * * *

    * * * Why was the northern boundary of the reservation located "in the middle of Milk River" unless it was for the purpose of reserving the right to the Indians to the use of said water for irrigation as well as for other purposes?


    At the time the treaty was made in 1888 irrigation had been practiced in Montana, where this reservation was located, for twenty or thirty years. At the time the treaty was made with the Yakima Indians in 1855 irrigation was practically unknown in the United States except for some areas irrigated by the Mormons in Utah beginning in 1847 and for some irrigation in California. There was evidently no intention of the parties to the treaty of 1855 to consider the question of the use or division of title to the waters of Ahtanum Creek.

    Assuming that the treaty did not decide the rights to the waters of Ahtanum Creek but that the people living along the stream might appropriate and use the waters, we find that a dispute arose and in 1907 it was agreed that the water should be divided on the basis of 25 per cent to the lands on the south side of the stream and 75 per cent to the lands on the north side of the stream when it became necessary to divide the waters. It is asserted in the record in the Indian Office that this division was based upon the determination that at that time 4500 acres were irrigated by whites on the north side of the stream and 1500 acres on the south side of the stream. In other words, it was a division of the waters based upon beneficial use at the time the agreement was made. With these facts in view, does the Secretary of the Interior have authority to make a contract which would limit the use of water to the Indian lands on the reservation? Water used for irrigation purposes is an appurtenance to the land on which it is used. In this respect it can be considered real estate and the rules of law regarding real property should be applied in determining the rights of the parties. To dispose of some of the water in the boundary stream of the reservation by sale or otherwise involves the right of the Secretary of the Interior to dispose of the property of the Indians of a reservation.

    By the act of Congress approved July 9, 1832 (4 Stat. 564), there is a provision for the appoint-
 


 

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ment of a Commissioner of Indian Affairs who shall have the direction and management of all Indian affairs and of all matters arising out of Indian relations, and by section 5 of the act approved March 3, 1849 (9 Stat. 395), it is provided that the Secretary of the Interior shall exercise the supervisory and appellate powers now exercised by the Secretary of the War Department in relation to all of the acts of the Commissioner of Indian Affairs.

    The authority of the Secretary of the Interior attempted to be exercised in this instance has reference to a treaty between the United States and an Indian tribe, and there is considerable doubt in my mind whether he has authority to divest the tribe of any of the rights in real property held by the Indians. It has been held by me in two opinions that the contract of May 9, 1908, should not be abrogated by the United States because it has been in force for more than twenty years and valuable rights have been acquired by acting upon the terms of the agreement. This is evidenced by the decree by Judge Nicholson in the Superior Court of the State of Washington in and for Yakima County May 7, 1925, wherein he adjudicated and determined the water rights of the landowners on the north bank of Ahtanum Creek and settled the priority rights of such landowners. The rights of the Indians and of the whites have been established and grown for over twenty years on the basis of the agreement of May 9, 1908, and it is my opinion that the rights should not be disturbed by an abrogation of the agreement on the theory that the Secretary of the Interior did not have authority to make the agreement for the Indians.

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

FORT HALL IRRIGATION PROJECT-DAMAGES

53 I.D. 399
M-26489                                                                                                                                            July 10, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have submitted to me for opinion questions propounded by the Commissioner of Indian Affairs in his letter of June 24, 1931, to you. The questions are stated as follows:

    1. Whether or not the act of February 20, 1929 (45 Stat. 1252), is applicable to the Fort Hall Indian Reservation project, Idaho, in view of sections 2 and 10 of the act of Congress of February 4, 1931 (Public No. 607, 71st Congress), authorizing the construction of the Michaud division of the Fort Hall Indian Reservation project?

    2. Whether or not under the provisions of the act of Congress of February 20, 1929 (45 Stat. 1252), the conditions under which these damages resulted are such as to create a legal liability on the part of the irrigation project.

    3. Does the act of February 20,1929, supra, make the Secretary of the Interior or other Government officials insurers of the water users of the Indian irrigation project so that payment for damages, even though they come under the class damnus absque injuria, is obligatory on the Secretary of the Interior if satisfactory agreements have been reached as to the amount of damages sustained?

    The first question propounded has no relation to the second and third questions except that they all involve the authority given the Secretary of the Interior to settle damage claims by agreement.

    The act of Congress authorizing the construction of the Michaud division of the Fort Hall Indian project provides in section 2 as follows:

    The Michaud division shall bear its equitable share of the cost of the present existing works and for the development of that part of the water supply that will be used on the lands of the Michaud division. Of the cost of the existing system $362,500 is hereby allocated to the Michaud division, as provided in section 3 thereof in consideration of the share of the developed water supply hereby allocated to that division and of its share of the existing works. The said $362,500 is hereby authorized to be used in completing the distributary system of the Fort Hall and Gibson divisions, including the rebuilding of the Tyhee siphon; the completion of storage facilities, and the enlargement and straightening of the Blackfoot River Channel, and including payment of damages for the benefit of the entire irrigation project.
    Prior to the enactment of this law the Fort Hall Indian irrigation project had been under construction for a number of years and there had been developed a large storage dam on the Blackfoot River capable of storing 410,000 acre-feet of water to be used on land 25 to 50 miles west of the reservoir on the Snake River in Idaho. The stored water on its way to the irrigated land passes down
 


 

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the channel of the Blackfoot River for a distance of perhaps 40 miles. The stream bed is tortuous and in the irrigation of lands in the Fort Hall and Gibson units, comprising some 70,000 acres, it was discovered that lands adjacent to the Blackfoot River were flooded on certain occasions and damage was done to the property. The stored water required for the Fort Hall and Gibson units and also on the Michaud division must traverse the same course down the Blackfoot River to the irrigable lands.

    With this information at hand the legislation set forth in the act of Congress approved February 4, 1931, supra, provided for payment of damages due to the enlargement and straightening of the Blackfoot River Channel for the benefit of the entire irrigation project.

    The damages referred to in this act are damages incident to the construction of irrigation works. The payment is for a purpose similar to that made in the purchase or condemnation of land required for flowage purposes or for canal right of way. It becomes a part of the construction cost of the project works.

    It is my conclusion that the Michaud Act does not supersede the act of February 20, 1929, supra, except that payment of specific damages enumerated in the Michaud Act must be made from the appropriation made pursuant to the authorization of such act.

    Turning our attention to questions Nos. 2 and 3, it may be stated that these questions are hypothetical. A reading of the files and records, however, discloses that the questions are based upon 11 claims which arose in 1929 due to operation and maintenance of the Wapato project, Washington. Instead of expounding the law in reply to the questions submitted, I shall content myself by showing what action should be taken upon the claims that have been submitted by the field office of the Wapato project to the Commissioner of Indian Affairs.

    The claims may be listed as follows:



                                                                                                                                                 Amount claimed    Contracted

Henry Bentel _________________________________________________________        $    150.00                $   50.00
H. B. Miller _________________________________________________________               479.00                    259.00
Jasper McDonald _____________________________________________________               500.00                    225.00
J. Faucher __________________________________________________________               100.00                    100.00
A. Z. Moore ________________________________________________________                408.00                    210.50
F. D. Wirt __________________________________________________________                  25.00                      25.00
Lorne and Ralph Campbell ______________________________________________               968.00                    402.50
W.C. Kennedy ______________________________________________________                348.00                    162.00
J.L. Meikle _________________________________________________________              2,347.60                   500.00
Thomas B. Tourney ___________________________________________________                ______                      ____
Congdon Orchards (Farmer) _____________________________________________               241.00                   176.00

        Total ___________________________________________________________                _____               2,162.50


    The first seven claims are due to damages resulting from a break in the Wapato Canal on April 26, 1929, alleged to be due to burrowing animals. The next two claims arise from a break in Lateral No. 3 on June 30, 1929, which choked a pipe drain, causing the water to back up and flood certain crops belonging to the claimants. The next claim is for damages to trees on a right of way taken by the United States which was reserved under the act of August 30, 1890 (26 Stat. 371), and the last claim arises from the destruction of bees, beehives, and other equipment caused by a fire which escaped from maintenance men while they were burning weeds on the canal banks. All of these claims, except the one for the destruction of trees upon the canal right of way, must be considered in connection with the act of February 20, 1929 (45 Stat. 1252), which is quoted in full:

    That the Secretary of the Interior be, and he is hereby authorized to pay out of the funds available for the Indian irrigation projects for damages caused to owners of lands or other private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works of such projects and which may be compromised by agreement between the claimant and the Secretary of the Interior, or such officers as he may designate: Provided, That the total of any such claims authorized to be settled as herein contemplated shall not exceed 5 per centum of the funds available for the project under which such claims arise during any one fiscal year.
    This act is the counterpart of similar provisions carried in Interior Department bill since 1915 for payment of damages due to survey, construction, operation and maintenance under the act of June 17, 1902 (32 Stat. 388).

    On the recommendation of the Bureau of Reclamation the Department has issued regulations covering the determination of facts and decision upon payment of claims arising under these laws which authorize the Secretary of the Interior to pay damages providing he can agree with the claimant as to the amount of damages which shall be paid.

    Injuries upon which such claims are based may be due to (a) actual negligence of Government employees or to (b) unavoidable causes in which the element of negligence does not appear. A general rule of law is that, without the consent given in some act of Congress, the Government is not liable to be sued for the torts, misconduct, misfeasance, or laches of its officers or employees. Bigby v. United States (188 U.S. 400). Another general rule of law is that the Government is liable for property taken or injured by its employees for
 


 

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public use. United States v. Lynah (180 U.S. 445); Bothwell v. United States (254 U.S. 231).

    In addition to the two acts above referred to there is a provision of law authorizing the adjustment of claims involving negligence of not exceeding $1,000. Act approved December 28, 1922 (42 Stat. 1066). These acts relate exclusively to damages to property and do not cover damages to persons.

    The degree of care and watchfulness exercised by employees of the United States should be such that it may not be said in any case that negligence existed to such an extent that an individual would have been liable under like circumstances. The courts have held generally that a private irrigator is liable for damages due to negligence or unskillfulness in the construction or in the operation and maintenance of his irrigation works. He must keep the works in good repair and is liable for all damages caused by failure to do so. He is not an insurer against damage without reference to the question of negligence, but is liable only when negligent. He must prepare to meet only such emergencies as may reasonably be expected to arise in the course of nature. He is not required to prepare for storms of such unusual violence as to surprise cautious and reasonable men. If in the actual operation of a canal sudden and unexpected damage results by reason of some hidden defects which could not reasonably have been foreseen, he would not be liable. Sutliff v. Sweetwater Water Co. (182 Cal. 34; 186 Pac. 766). After discovery of the defect, however, and after reasonable opportunity to correct it, if he continue to use the canal system his liability for subsequent damages would be the same as if he had known of the defect at the time of construction. Torney v. Anderson-Cottonwood Irrigation District (200 Pac. 814); Howell v. Big Horn Basin Colonization Co. (81 Pac. 785-Wyo); Watts v. Billings Bench Water Association (253 Pac. 260-Mont.).

    The field officers in charge of the Wapato project have secured the benefit of well prepared briefs of the irrigation district attorney.

    The only facts submitted in the case are those accumulated by the employees of the Government. Two years have elapsed since these claims arose. It is possible that a jury would decide that the claimants for damages due to breaks in the canals and to the escaping fire were entitled to recover. A judge would probably submit the matter to a jury.

    A history of this legislation, authorizing settlement of damages by contract is well within my personal knowledge. Congress was asked to pass the legislation in 1915 in order that small claims could be adjusted. Experience had shown that in the ordinary operation and maintenance of an irrigation project injury would result to the property of farmers on the project due to unforeseen cause or to carelessness and negligence on the part of laborers and subordinate employees. Until the enactment of the first legislation in 1915 there was no authority vested in the Secretary of the Interior to consider or pay any claim which sounded in tort. All of the claims outlined fall in that class.

    A very strict construction of the law might permit the Secretary to refuse to approve the payment of any of the claims submitted. There is evidence that the section of the Wapato Canal where the break occurred is subject to damage by burrowing animals. The records also indicate that great care had been exercised by men on the project to overcome the natural conditions which made carrying of water in the canal a dangerous operation. That their efforts have been reasonably successful is evidenced by the fact that the only claims which have been considered for payment are those arising in a space of four days in 1929.

    The claim for the destruction of bees and beehives indicates that the maintenance men were engaged in their lawful operations of burning the weeds on the canal banks. It has been found that this is the most efficient method of destroying the weeds and maintaining the ditches so that they will carry the quantity of water for which they were designed. Reasonably prudent men in carrying on this work might expect that a sudden change of wind would occur, but this is a necessary risk incident to the work. The sudden change of wind is an act of God, and if the men were proceeding with due care in the handling of the fire and the wind changed and the fire escaped, the damages could be liquidated by agreement between the Secretary of the Interior and the claimant.

    The actual settlement of the claims and the approval of the vouchers are administrative acts. However, in my opinion the authority granted to the Secretary of the Interior by the act of February 20, 1929, supra, is sufficient to permit the payment of the 10 claims submitted.

    Turning my attention now to the payment for damages to trees destroyed on a right of way reserved under the act of August 30, 1890, supra, it can be stated that the reservation provided by this act is sufficient, if strictly construed, to prevent the recovery of any sum of money for improvements upon the right of way required for the construction of the irrigation works.

    It has not been the policy of the Department to adhere strictly to the legal possibilities, and it has decided in an opinion of April 24, 1919 (47 L.D. 158), that the landowner may be compensated for the actual value of his improvements on the right of way, but no allowance can be made for the resulting damages to the land. In this case the canal right of way cut the small farm into two nearly
 


 

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JULY 20, 1931

equal parts and made it much more expensive and difficult to irrigate. Payment was authorized for the crops growing on the right of way and rejected as to claim for resultant damage to the land. When the United States utilizes a right of way reserved under the act of August 30, 1890, supra, it may pay for the value of the crops and the improvements on the land taken.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: July 10, 1931.
Jos. M. DIXON, First Assistant Secretary.

DISTRIBUTION OF ROYALTIES-DECEASED CREEK

53 I.D. 412                                                                                                                                        July 20, 1931.

M-26583

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion upon a question arising out of the distribution of some $55,600 representing royalties on oil and gas produced from the homestead allotment of Mable Walker, deceased one-half blood Creek allottee, described as the SE 1/4 SE 1/2 Sec.29, T. 8 N., R. 8 E., in Oklahoma.

    Mable Walker, the allottee, died intestate May 7, 1921, leaving a husband, Jeff Walker, and three children, Johnson Walker, an adult, and Turner and Mose Walker, both minors, born subsequent to March 4, 1906. Under the applicable law of descent, the husband took one-third and each of the children two-ninths in the homestead allotment of the decedent subject to the estate especially given to the two children born since March 4, 1906, by the second proviso to section 9 of the act of May
27, 1908 (35 Stat. 312).

    March 23, 1923, Johnson Walker, one of the heirs, enrolled as a one-quarter blood Creek, executed a deed conveying to John W. Willmott and B. D. Lack his interest in the oil, gas and other minerals underlying this homestead allotment. The deed was duly delivered to the grantees and by them presented to the Secretary of the Interior and approved by him on April 2, 1924 (subject to the special estate in the homestead of minors born since March 4, 1906, under the proviso to section 9 of the act of May 27, 1908 (35 Stat. 312). Certain information presented to the Department by the superintendent for the Five Civilized Tribes after the execution, delivery and approval of the deed to Willmott and Lack tended to show that the consideration of $500 was inadequate and that the deed was obtained under circumstances of a questionable nature. Demand for reconveyance was accordingly made upon the grantees and upon their failure so to do, suit was instituted by the United States in the District Court for the Eastern District of Oklahoma to cancel the deed. The trial court handed down a decree canceling the deed but this decree was reversed by the Circuit Court of Appeals, 8th Circuit, that court holding that the deed having been taken by the grantees and approved by the Secretary of the Interior in subordination to the rights of the minors born after March 4, 1906, was valid. (See Willmott v. United States, 27 Fed. 2d. 277.) No appeal was taken, the decision has become final, and the validity of the deed is not now open to question.

    At the time of the death of the allottee, Mable Walker, there was an outstanding oil and gas lease upon the land given by the allottee with the approval of the Secretary of the Interior in 1919. This lease was later surrendered and a new or substitute lease taken with the Secretary's approval, in the execution of which all the parties in interest joined. Production of minerals from the land under this lease began in the fall of 1923, and royalties thereon in the amount aforesaid have been collected and are now held by the Superintendent for the Five Civilized Tribes. The estate especially given to the minors born since March 4, 1906, by the second proviso to section 9 of the act of May 27, 1908, supra, terminated under the provisions of that enactment on April 26, 1931, and the grantees of Johnson Walker have accordingly made demand upon the superintendent for the payment to them of the share of such royalties which their grantor, the said Johnson Walker, would have been entitled to in the absence of a conveyance.

    Under these circumstances the question upon which I am asked to rule is whether the deed referred to became effective upon the date of its execution, March 23, 1923, or upon the date of its approval by the Secretary of the Interior, April 2, 1924, or upon April 26, 1931, the date of termination of the special estate of the minors born after March 4, 1906.

    It is apparent, I think, without argument that the date upon which the Secretary gave his approval to the deed in controversy can not be regarded as the effective date of the deed. Under the rule laid down by the Supreme Court of the United States in Pickering v. Lomax (145 U.S. 310), the approval of the Secretary related back and took effect as of the time of the execution and delivery of the deed, no rights of third parties having intervened in the meantime. See also Lomax v. Pickering (173 U.S. 26); Anchor Oil Co. v. Gray (257
 


 

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JULY 20, 1931

Fed. 277, affirmed 256 U.S. 519). This view is fortified in the instant case by the provisions of the deed itself which in express terms declares that it shall convey not only the grantors' interest in the oil, gas and other minerals underlying the land but also "all interest in all my right, title and estate under and by virtue of any oil and gas mining lease, or other mineral leases, now or hereafter existing upon said premises, or any part thereof, including all rents and royalties accrued." All of the royalties now in the hands of the superintendent for the Five Civilized Tribes have accrued since the execution and delivery of the deed and the intention of the grantor as clearly expressed in the deed is that his interest therein should pass by the conveyance.

    The Commissioner of Indian Affairs suggests, however, that the deed should be regarded as having no effect until the expiration of the special estate of the minors on April 26, 1931, urging in support of that position that to give effect to the instrument prior to that time is to permit the heir to bargain away his right to receive royalties under an existing lease, which he states is contrary to the views expressed by the Circuit Court of Appeals, 8th Circuit, in United States v. Hinkle (261 Fed. 518). The Commissioner further suggests that the deed might be construed as an executory contract to assign or a covenant to convey a remainder in expectancy contingent as to future use and enjoyment upon termination of the special estate of minors born since March 4, 1906. This latter suggestion of the Commissioner appears to be predicated largely upon the theory that the heir, Johnson Walker, inherited no present interest in the land under consideration which he could convey prior to April 26, 1931, with or without the approval of the Secretary of the Interior and it may, therefore, be well to refer briefly to the relative rights of the heirs in general and the owners of the special estate under the second proviso to section 9of the act of May 27, 1908, supra, which reads:

    That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-six, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.
    Fortunately we are not without a judicial interpretation of the foregoing statute by our highest court. In Parker v. Riley (250 U.S. 66), the Supreme Court of the United States had occasion to consider and define the respective rights of the heirs in general and the owner of the special estate in the homestead of an allottee who died leaving a child born since March 4, 1906. The homestead was under lease for oil and gas mining purposes and the question arose as to whether the child born after March 4, 1906, was entitled to all the royalties accruing during her life but not beyond April 26, 1931, or if not to the royalties to the income or interest therefrom during that period. The court after pointing out that the death of the allottee did not remove the restrictions from the homestead and that the rights of the heirs, including the one born after March 4, 1906, in the royalties were the same as in the homestead, held that the afterborn child was entitled to the use of the royalties for her support, that is to say, the interest or income that might be obtained by properly investing them during the period to April 26, 1931, leaving the principal like the homestead to go to the heirs in general upon termination of the special estate of the afterborn heir. In so holding, however, the Supreme Court pointed out very clearly that the fee to the homestead descended to the heirs who took the same subject only to the rights of the afterborn heir as defined therein. This was also recognized in Willmott v. United States, supra, and the interest of the heir, Johnson Walker, in the homestead here involved was defined by that court in the following language:
    Under section nine, however, all that Johnson Walker could convey was an undivided two-ninths interest in the fee in remainder; and so applying the section the Commissioner and the Secretary accepted and approved the deed, with the acquiescence of the grantees, as a conveyance of an undivided remainder interest.
    Under the foregoing decisions, it is obvious that the interest inherited by Johnson Walker was not a mere expectancy or even a contingent remainder but a present vested interest in the fee in remainder, the beneficial use or enjoyment of which was postponed until the termination of the special estate of the issue born since March 4, 1906. The trend of the decisions to be sure is that the interest of the
 


 

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heir, regardless of degree of blood, is restricted and inalienable without action by the Secretary of the Interior as provided in the statute. See Privett v. United States (256 U.S. 202) ; United States v. Martin (45 Fed. 2d 836); Grisse v. Milsey (230 Pac. 883); Kimbro v. Harper (238 Pac. 840); Gage v. Harlin (250 Pac. 82). But where the required action by the Secretary is had there can be little doubt as to the validity of the transaction. Willmott v. United States, supra.

    The approval given by the Secretary of the Interior to the Johnson Walker deed constitutes the important distinction between this and the case of United States v. Hinkle (261 Fed. 518), relied upon by the Commissioner of Indian Affairs in asserting the absence of any right in Walker "to bargain away his right to receive royalties under an existing lease." In the Hinkle case a deed had been executed on January 5, 1916, by Sophie Robert nee Cash, full blood heir of Wallace Cash, a deceased full blood Choctaw Indian, conveying to one J. S. Mullen the allotment of the decedent, "together with all claims and demands for rents, revenues and profits of whatsoever kind and description that have theretofore accrued from said land to J. S. Mullen, his grantees or lessees." The deed was not approved by the Secretary of the Interior but was approved by the county court acting as a Federal agency under the provisions of section 9 of the act of May 27, 1908. The validity of the conveyance as to the land appears to have been conceded, the principal question presented involving the right of the United States to require an accounting for the mineral rents and profits from 1904 to 1916, the date of the conveyance, during which period the land was restricted, it being contended that such right of accounting was cut off by the release given in the deed. The court held that the exclusive custody and control of the mineral rents and profits during the restricted period was vested in the Secretary of the Interior and that the deed which had not received his approval was not effective to release the grantee and other defendants from the claim of the United States on behalf of the grantor to the mineral rents and profits taken from the land during the period of restrictions. That decision, which is in harmony with the uniform holdings of the courts that transactions in violation of the Federal restrictions are void, does not hold that the attempted release would not have been validated by the approval of the Secretary of the Interior and the decision contains nothing to support the contention made by the Commissioner that Johnson Walker could not, with the approval of the Secretary, transfer his interest in the land under consideration together with his right to share in the mineral rents and profits therefrom. To the contrary the same court in Willmott v. United States, supra, said in upholding the validity of this identical deed:

    The only contention is, that restrictions against alienation of Johnson Walker's undivided interest in the homestead were not first removed by order of the Secretary as contemplated by section one of the Act of May 27, 1908 (35 Stat. 312); and that the order made by the Secretary on April 2, 1924, approving the conveyance, was not sufficient for that purpose. No ruling to that effect by any court or administrative officer, applicable to the facts here, has been called to our attention. The Secretary was given plenary power over the subject matter. The contention deals with form and not substance. We think the action of the Secretary in his order of April 2, 1924, if action by him was necessary, served the purpose of the proviso in protecting the rights of the surviving heir born since March 4, 1906. * * * Moreover, the plain purpose of the proviso is to protect the rights of such an heir by prohibiting the conveyance, with out the Secretary's approval, of the estate for life or years-to protect that estate for him. A conveyance of the remainder does not interfere with that purpose.
    In view of the foregoing, I am of the opinion that the deed executed and delivered by Johnson Walker on March 23, 1923, as approved by the Secretary of the Interior operated to transfer as of that date to the grantees Willmott and Lack, all of the said Johnson Walker's right, title, and interest in and to the minerals underlying the land described therein, including his interest or share in the royalties subject to distribution on April 26, 1931, the date upon which the special estate of the issue born since March 4, 1906, terminated.

                                                                                                                                                              E. C. FINNEY,

Solicitor.

Approved: July 20, 1931.
Jos. M. DIXON, First Assistant Secretary.

TAX EXEMPT SELECTIONS-FIVE CIVILIZED TRIBES

53 I.D. 471
M-26673                                                                                                                                     September 4, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to whether a 50 acre tract of land described as the SW1/4SW1/4
 


 

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and NW1/4SE1/4SW1/4 Sec. 2, T. 26 N., R. 22 E., and allotted as surplus to Betsy England, now Myers, a full-blood Cherokee Indian, may be designated as exempt from taxation under the provisions of section 4 of the act of May 10, 1928 (45 Stat. 495), amended May 24, 1928 (45 Stat. 733), reading:

    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 that State, and in 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 Indian fails, 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 for the Five Civilized Tribes, shall be subject to approval by the Secretary of the Interior; and, when approved 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 allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres.
    The foregoing provision limits the nontaxable lands of each member of the Five Civilized Tribes, including the Cherokee Nation, from and after April 26, 1931, to 160 acres, to be selected and designated as therein provided. But by the express provisions of the statute, restricted lands only may be selected and designated as tax exempt, and no authority exists for including in such selection and designation any lands not subject to restrictions against alienation.

    From the record at hand it appears that on December 18, 1905, all the restrictions against alienation of the 50-acre tract here involved were removed by order of the Secretary of the Interior, issued under authority of the act of April 21, 1904 (33 Stat. 204), after an application therefor had been made by the allottee and the Secretary had found that she was competent and capable of managing her affairs free from Federal supervision. It is urged, however, that the restrictions so removed were reimposed by section 19 of the act of April 26, 1906 (34 Stat. 137), and continued in force by the acts of May 27, 1908 (35 Stat. 312), and May 10, 1928, supra. Section 19 of the act of 1906 reads:

    That no full blood Indian of the Choctaw, Chickasaw, Cherokee, Creek or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this Act, unless such restriction shall, prior to the expiration of said period, be removed by Act of Congress.
    The facts and circumstances inducing the enactment of the foregoing provision are well stated by the Supreme Court of Oklahoma in Brown v. Miller (215 Pac. 748). It may not be amiss to briefly restate them here. The lands belonging to the Five Civilized Tribes were allotted under the provisions of agreements negotiated with the several tribes and confirmed by Congress. These agreements, so far as material, provided for the allotment to each member of a specified quantity of land to be designated as a homestead and other land known as surplus. Restrictions against the alienation of both classes of land were imposed for definite periods, varying in different agreements. The periods of restrictions so fixed, particularly as to the surplus lands, were short, and at the time of the passage of the act of 1906 had expired in a number of instances and were about to expire in a great many others. Congress was cognizant of the fact that the full blood members of these tribes were in the great majority of cases, incompetent and in need of further protection without which their lands, from which the restrictions were passing by operation of law, that is, by expiration of
 


 

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the periods of restriction fixed in the allotment agreements, would rapidly be disposed of at grossly inadequate prices. To extend the needed protection to these incompetent full bloods, section 19 of the act of 1966 was enacted and the clear purpose and intent of that section as reflected by the conditions then confronting Congress, was to extend the periods of restriction then about to expire and reimpose those that had expired by operation of law. Congress was not concerned with the competent Indians whose restrictions for that reason had been removed by the Secretary under authority of the prior enactment of 1904. They were not regarded as in need of Federal supervision, and it would have required clear language to include them in the reimposition of restrictions. That they were not in fact included was expressly decided in United States v. Smith (266 Fed. 740). There as here, the Secretary of the Interior had removed the restrictions from the land of a full blood allottee prior to the passage of the act of 1906, and after that enactment the lands were conveyed by the allottee. The court held that the act of 1906 reimposed only those restrictions which had theretofore been removed from lands of this character by operation of law and that the statute did not nullify or suspend the act of the Secretary of the Interior in removing restrictions prior to the passage of the act. See also Brown v. Miller, supra.

    The decision of the Supreme Court of the United States in Brader v. James (246 U.S. 88), relied upon in support of the claim that the restrictions were reimposed upon the lands under consideration by the act of 1906, is not in point, as the question of the effect of that act upon lands from which the restrictions had been removed by the Secretary of the Interior in the exercise of administrative authority conferred upon him by the law then in force was not before the court for decision. The question there was whether the restrictions which had expired by operation of law were reimposed by the act of 1906, and the views herein expressed are in entire harmony with the decision of the court upon that question.

    It follows, therefore, that the 50 acre tract of land under consideration is free from restrictions and hence is not eligible to exemption from taxation under the provisions of the act of May 10, 1928, supra.

                                                                                                                                                        O. H. GRAVES,

Acting Solicitor.

Approved: September 4, 1931.
JOHN H. EDWARDS, Assistant Secretary.

WALAPAI (HUALAPAI) INDIAN
RESERVATION-SANTA FE PACIFIC
RAILROAD CO.-TITLE TO LAND

M-26667                                                                                                                             September 16, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    The Assistant Commissioner, Office of Indian Affairs, has requested an opinion regarding the validity of the claim of the Santa Fe Railroad Company, as successor in interest of the Atlantic & Pacific Railroad Company, by virtue of the grant under the act of July 27, 1866 (14 Stat. 292), to the alternate or odd-numbered sections within the boundaries of the Walapai (Hualapai) Indian Reservation in Arizona, which was established by Executive order of January 4, 1883.

    The following state of facts is quoted from the letter of the Assistant Commissioner:

    The alternate or odd-numbered sections of land therein are claimed by the Santa Fe Pacific Railroad Company, as successors in interest to the Atlantic & Pacific Railroad Company by virtue of a grant made to the latter company by the Act of July 27, 1866 (14 Stat. 292), which grant attached on March 12, 1872, the date on which the map of definite location of the road was filed. Title to the even numbered sections is retained by the Government for the benefit of the Indians.

    To overcome the disadvantages of this "checkerboard" control of lands, the Act of February 20, 1925 (43 Stat. 954), was passed, conferring authority for exchanges necessary to effect consolidation of the Indian and railroad controlled land. During 1930 our field men and representatives of the railroad company made an examination and appraisement of the entire reservation, and a division of the lands pursuant to the above act was tentatively agreed upon. Consummation has been withheld pending a compromise adjustment of litigation which was initiated in behalf of the Indians involving title to Peach Springs, located within the reservation. Judgment and decree in the case were entered July 7, 1931, in the District Court of the United States for the District of Arizona, effectually disposing of the suit (L-388 Prescott, copy of stipulation and decree herewith).

    Upon termination of the suit the way appeared clear to proceed with the proposed di-



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