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OPINIONS OF THE SOLICITOR

November 11, 1922

other. The most general and absolute terms of one section may be qualified and limited by conditions and exceptions contained in another, so that all may stand together."

    Considering the Act of June 4, 1920, as a whole therefore, and viewing it in the light of its obvious policy, the legislative intent becomes clear. The "final rolls of the Crow Tribe" embrace classes A, B, C, and D. After having first satisfied the prior rights of classes A and B by allotting 160 acres to each member whose name appears in those classes, and fulfilling other requirements of the act, such as adjusting the school land grant to the State, reserving the areas needed for administrative purposes, etc., the "unallotted allottable lands" still undisposed of are then to be pro-rated among the members whose names appear on the remainder of the final rolls--that is, classes C and D. True, some of those members will appear in both B and D, but if their rights as class B allottees are first satisfied, their inclusion in class D so as to receive a pro rata share in the final division of the allottable lands but carries out the intent of the act. Big Lark, the allottee here involved, undoubtedly appears in class D. She may also appear in class B as "the head of a family" but the facts now before me are not sufficient to determine that issue. Her rights, however, as a class D allottee to share in the final distribution of the allottable tribal lands can at least now be determined.

    The situation here is strikingly analogous to that obtaining among the Osage Indians in Oklahoma. The act of June 28, 1906, supra, directed that the roll of the Osage Tribe as it existed on June 1, 1906 (with certain additions, including children born to enrolled members between January 1 and July 1, 1906)) should constitute the final roll of the Osage Tribe on which the distribution of tribal land and money should be based. The right of deceased members who, prior to death, failed to receive their distributive share of the tribal lands, has been recognized and confirmed. Levindale Lead and Zinc Mining Co. v. Coleman (241 U.S., 432-437) ; Kenney v. Miles (250 U.S., 58-64). The question naturally arises, therefore, in the final division of the Crow lands under the act of June 4, 1920, are we to follow the rule first herein stated, that a deceased member is not entitled to share unless a selection of the lands wanted was made prior to death, or, are we to follow the rule which obtained with respect to the Osages?

    In attempting to follow the rule first stated, we encounter serious difficulty. A pro rata division cannot well be made without having a fixed number who are entitled to share. If that number is subject to change from time to time, as deaths occur, we have a "floating divisor" which yields a fluctuating quotient. This renders a pro rata division physically impossible. A single death upsets the entire calculation and we must then begin anew. Applying this principle to the situation at Crow, with, say 1,800 members entitled to share, if the right to participate is then founded on an individual selection of the lands wanted, before those selections can be made and recorded, intervening deaths will upset the entire basis of the distribution. Successive efforts would meet with no better result.

    Aside from this administrative difficulty, which admittedly is serious, there are other considerations which should not be overlooked. Usually the acts of Congress relating to matters of this kind provide for allotments in given areas, as 40, 80 or 160 acres, etc., and it has been customary to make allotments to children born to enrolled members of the tribe as long as the allotting crews remain in the field. Where the tribal membership is large frequently several years are required to complete the allotment work, during which time the allotment roll is materially increased by virtue of births and selection in behalf of new-born children. Here, however, a different situation obtains, for clearly there is no authority to add to "the final rolls of the Crow tribe" any children born after December 4, 1920. Again, under our other acts, the lands remaining after completion of the allotment work either become subject to public sale and entry, or else remain Indian tribal property subject to future disposition by Congress. Here theoretically at least, no allottable lands are to remain, as they must be pro-rated in such manner as to give members of the tribe living on a certain date an equal share.

    Administrative officers being without power to alter or amend existing law, we can not change the requirements of the act in this respect, and if we strike from the final roll the names of those members who have died since the date specified in the act, or accomplish the same result by refusing to make allotments to such members, who died without making a "selection prior to death," we would in effect, substitute for the date fixed by Congress a different one of our creation. I am satisfied there fore that the legislative intent of the act of June 4, 1920, is that the enrolled members of the Crow tribe living on June 4, 1920, together with the unallotted members living on December 4, 1920, (Classes C and D) , constitute "the final rolls" of the Crow tribe in so far as the pro-rata distribution of "the remaining unallotted allottable lands" are concerned, and that in making such distribution each member whose name appears on that roll is entitled to share, regardless of whether a "selection" was made prior to death. In other words, the right so to share is a descendible one which, in case
 


 

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of death intestate, inures to the benefit of the heirs. Big Lark, as an enrolled member of the Crow tribe living on June 4, 1920, is entitled to a distributive share of the final division of the Crow allottable lands.

   The second question-the right to dispose of a so-called "expectancy" by will--presents far less difficulty. If the expectancy consists of a mere "float" which ceases at death, then there is nothing for a testator to convey by will. If the right, however, is a descendible one which in case of intestacy inures to the benefit of his heirs, the rule is now otherwise. As pointed out in my opinion of October 29, 1921, M-6083, the matter of Indian wills, generally, is controlled by section 2 of the act of June 25, 1910 (36 Stat., 855), as amended by the act of February 14, 1913 (37 Stat., 678). In its original form this legislation limited the power of an Indian to dispose of his property by will to his individual "trust allotment" only. Experience demonstrating this to be too narrow the amendatory legislation broadened the Indians' testamentary capacity so as to include:

   "Any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation, or individual Indian moneys or other property held in trust by the United States."
   According to a familiar rule, statutes relating to Indians are to be construed in their favor, United States v. Nice (241 U.S., 591). Big Lark, being entitled to an additional allotment on the Crow Reservation, and those lands, in effect, being held in trust by the United States for her benefit, I am of the opinion that subject to the approval of the Secretary of the Interior, as required by the legislation herein last referred to, she had the power to dispose of such additional allotment by will.
 
EDWIN S. BOOTH,
Solicitor.

OSAGE--PAYMENTS TO MINORS

M-6383                                                                                                                   November 23, 1921.

The Honorable,

The Secretary of the Interior.

DEAR MR. SECRETARY:

   Two questions presented by the Commissioner of Indian affairs relating to payments to Osage Indians in Oklahoma have been referred to me for opinion, which may be briefly stated as:

   1. Can payments due minor children be made to their parents or must legal guardians be appointed to receive such payments?

   2. Can the superintendent exercise any discretion by withholding payments from legal guardians found not to be proper persons to be entrusted with such funds?

    These questions arise in connection with Section 4 of the act of March 3, 1921 (41 Stat., 1249) which reads in part:

    That from and after passage of this Act the Secretary shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the in come is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members under twenty one years of age personally in charge $300 quarterly payments to legal guardians and adults, not having certificates of competency to be paid under the supervision of the superintendent of the Osage Agency *     *     *
    As to minors who are members of the tribe, it will be noted that the act specifically authorizes the payment of $500 per quarter "to the parents or natural guardians or legal guardians" actually having such minor members in charge. Clearly this is
permissive, and payment can be made either to the parent or other natural guardian, or to the legal guardian if one has been appointed, depending entirely on the circumstances connected with each particular case; that is, whether the parent or other natural guardian or the legal guardian has the care, custody, maintenance and education of such minor member in charge.

      In an opinion dated June 4, 1921 (M. 4017) my predecessor held that minors whose names do not appear on the "Osage final roll," but who are entitled to share in these payments, by inheritance or otherwise, are in the same category as persons who are not members of the Osage Tribe, and that the
 



 

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shares due such members are to be paid in full to their parents or legal guardians. As to this class of minors, where the amounts to be paid are nominal, the expense incident to the appointment of legal guardians can well be avoided and payments can be made with safety to the parents or other natural guardians direct. Where the amounts are large, however, prudence would suggest the need of a legal guardian to receive and account to the proper court for the shares due such minors. No fixed rule can well be stated but the record now before me indicates instances in which non-enrolled minors are entitled to sums ranging as high as $19,000. Certainly sums as large as these, belonging to minors, even though entirely of white blood, should not be turned over except to a duly appointed legal guardian.

    As to the second question, it should be understood that this relates to minor enrolled members of the Osage Tribe only, for, as previously shown, the shares due minor non-members are to be paid in full either to the parent or the legal guardian, and after payment are no longer subject to control or supervision. With respect to payments in behalf of minor members, the act specifically directs that "all of said quarterly payments to legal guardians and adults, not having certificates of competency [are] to be paid under the supervision of the Superintendent of the Osage Agency." As pointed out in the prior opinion regarding this matter, expenditure of the funds so paid is still subject to supervision by the superintendent and the legal guardians of enrolled minor Osage Indians are bound by this provision of the act. Necessarily this vests some discretion in the superintendent and where legal guardians are believed to be untrustworthy payments to such guardians can be withheld, at least until that issue can be determined by the proper court and, if need be, a new guardian appointed.
 

EDWIN S. BOOTH,
Solicitor.

 

STOCKBRIDGE--MUNSEE--
BACK ANNUITY PAYMENTS

D-42071 (Supp.)                                                                                                                                  December 29, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    October 8, 1917, the Solicitor for this Department rendered an opinion involving the matter of back annuity payments to certain members of the Stockbridge and Munsee Tribes of Indians under the provisions of the act of May 18, 1916 (39 Stat., 123, 156) . Request has been made for reconsideration of that opinion in connection with the case of John S. Putnam, deceased, unallotted Stockbridge Indian, now pending before the Department.

    The salient facts are that by the act of February 6, 1871 (16 Stat., 404), two rolls of the Stockbridge and Munsee tribes were authorized to be made, one to be denominated the citizen roll, to embrace all such persons as signified their desire to sever their relations with the tribe, and to become citizens of the United States; the other to be denominated the Indian roll, to embrace all such as desired to retain their tribal character and continue under the care and guardianship of the United States. The citizen roll was to be held as a surrender on the part of those whose names were placed thereon, of all claims as members of the tribe, "and they and their descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States." These rolls were approved in 1874. After the enrollment as provided for in the act, many persons claimed that it was their desire to have their names on the Indian roll but were wrong fully prevented. The result was that after investigation by the Indian Office and reports to Congress, the act of March 3, 1893 (27 Stat., 744)) was passed, a part of the preamble and pertinent portions of the act reading as follows:

    Whereas by the interpretation placed by Government officials on the act of February sixth, eighteen hundred and seventy-one, an act for the relief of said Indians, a large part of said Indians (and their descendants) who signed said treaty of eighteen hundred and fifty-six, and have continued with said tribe from the making of said treaty to the present time, are excluded from participating in tribal funds and the right to occupy said reservation: Therefore

   Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    That all persons who were actual members of said tribe of Indians at the time of the execution of the treaty of February fifth, eighteen hundred and fifty-six, and their descendants, and all persons who became members of the tribe under the provisions of article six of said treaty, and their descendants, who did not in and by said treaty, and have not since its execution, separated from said tribe, are hereby declared members of said Stockbridge
 



 

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and Munsee tribe of Indians and entitled to their pro rata share in tribal funds and in the occupancy of tribal lands; *     *     *
    Sec. 2. That it shall be the duty of the Secretary of the Interior, without unnecessary de lay after the passage of this act, to cause to be taken an enrollment of said tribe on the basis of the provisions of this act * * *

    In pursuance of the above provisions a roll was prepared in 1894. From the number of applications that were being filed under this act it soon became apparent that there were not sufficient tribal funds in the treasury to pay all the claims. It was not deemed advisable to make a partial settlement for the reason that such a course would make preferred claims of some and result in dissatisfaction. Therefore, action on pending claims was suspended, claimants being advised that it would be necessary to obtain an appropriation by Congress in order to pay all claimants the amounts due them. The act of May 18, 1916, was accordingly passed which is as follows:
    There is hereby appropriated the sum of $95,000, to be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians, for the payment of the members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the Act of Congress of March third, eighteen hundred and ninety three, equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said Act, and such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March third, eighteen hundred and ninety three, entitled, "An Act for the relief of the Stockbridge and Munsee Tribes of Indians of the State of Wisconson."
    The questions involved in the Solicitor's opinion of October 8, 1917, were as to what persons are entitled to share in the fund thus created for the payment of these claims, and also as to whether the ordinary fees authorized to be collected in determining the heirs of deceased Indians generally are chargeable in connection with the pro rata distribution of such funds. The particular case under consideration at that time related to the estates of Harriette and George J. Bennett, deceased, unallotted Stockbridge Indians. The facts were that Harriette died in 1907, having been twice married, her first husband being Joseph Martin who died in 1874, there being three children born of that marriage. The second husband was George J. Bennett who died in 1895. No children were born of this union, but George had several children by a former marriage. The claims filed were for what would have been the shares of the parties, had they lived, in the fund created by the act of May 18, 1916. It was said in the Solicitor's opinion, among other things:

    The language of the act of May 18, 1916, supra, provides that "such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March 3, 1893." This provides only for payments to claimants living or to claimants whose deceased ancestors were enrolled under the act of March 3, 1893. The usual definition of "ancestor" is one who has preceded another in a direct line of descent. In contemplation of the said act of May 18,1916, George J. Bennett was not the "ancestor" of either Harriette Bennett or of the children of her first husband.

            *                                *                                *                                *                                *

   The funds as appropriated are communal in their nature, and at the time of George's death his share had not only not been distributed but was not in existence; hence the provisions of the Wisconsin statutes of allowance and distribution above quoted do not apply in the distribution of his estate, as George, at the time of his death did not have such an interest in the undivided funds of the tribe as would sustain the right of selection by the widow under said statutes.

   The proper distribution of the personal or individual share of Harriette Bennett is to the children by her first husband in equal parts, and that of the share of George Bennett to his children in equal parts without any deduction from his share on account of his widow, the said Harriette Bennett.

    On the question of charging fees for distributing the fund the Solicitor after referring to legislation appropriating a sum "for the purpose of determining the heirs of deceased Indian allottees pursuant to the act of June 25, 1910 (36 Stat., 855, 856),"  said:
    The act of June 25, 1910, was for the purpose primarily, at least, of determining the heirs of deceased Indians to whom allotments of land had been made, the act providing

 

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"that when any Indian to whom an allotment of land has been made *     *     * dies before the expiration of the trust period *     *     * the Secretary of the Interior * * * shall ascertain the legal heirs of such decedent."

    That act involves the determination of heirs to personal or individual property, while the money appropriated by the act of May 18, 1916 (39 Stat., 123, 156), was an additional communal fund authorized to be distributed per capita to those members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the act of March 3, 1893. This is in no sense such property as was contemplated by the act of May 18, 1916 (39 Stat., 123, 127), and prior similar acts authorizing the collection of a fifteen dollar fee in connection with the work of determining the heirs of deceased Indian allottees; consequently there is no authority for requiring the heirs under that act to pay such fee--in fact, the funds involved in the act of May 18, 1916 (39 Stat., 123, 156), are not only tribal in character but under its provisions claimants of the shares of deceased ancestors take direct and not by inheritance.

    The facts in the pending case of John S. Putnam are that he died in 1898 unmarried and without issue, survived only by his father who died in 1902, and his mother who died in 1908. The present recommendation of the Indian Office in said case is for action following the view expressed in the Solicitor's opinion of October 8, 1917, the position being taken that Putnam having died prior to the act of May 18, 1916, without issue, the case is not one coming within the purview of said act; that "even if under the act of May 18, 1916, there could have been placed to the name of John S. Putnam the amount to which he would have been entitled had he been living on that date, his father and mother would not have been entitled to such funds."

    As shown, the main reasons given for the conclusions reached by the solicitor are that the fund created by the act of May 18, 1916, is tribal or communal; that owing to the use of the word "ancestor" in said act, persons claiming under a deceased member enrolled under the act of March 3, 1893, are limited to those related to such member in a direct line of descent; and that said fund is not only tribal or communal, but, under the provisions of the act, claimants of the shares of deceased members take direct and not by inheritance. On the other hand, it is urged in support of the request for reconsideration that the fund in question is not tribal or communal but individual; that the act of May 18, 1916, as well as prior acts deals with the Indians in question not in a tribal capacity but as individuals; that under the provisions of said act each Indian enrolled under the act of March 3, 1893, has a vested right in the fund: that there is no expressed intention in the act to lessen this right: and, consequently, that ail the heirs of a deceased enrolled member are entitled to succeed to his share, the determination of such heirs being governed by the state laws of descent applicable to the estate of deceased Indians generally under the provisions of the act of June 25, 1910, supra.

    In deference to the unusual interest manifested as shown by the copious views expressed in memoranda submitted both for and against the position taken by the Solicitor in his opinion, it is deemed proper to discuss this matter in detail and at greater length than would ordinarily be regarded as essential in the premises. After all, however, the main question involved is as to the meaning and intention of Congress as expressed in the act of May 18, 1916; that is, whether upon the death of a member enrolled under the act of March 3, 1893, the claimants of his share of the fund are limited to those in a direct line of descent or whether such claimants also include the heirs generally of the decedent.

    On the question as to whether the fund created by the act of May 18, 1916, is tribal or individual, the act itself in making the appropriation provides that it shall "be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians." This provision was by way of amendment and was inserted advisedly as it was not in the original draft of the bill. The point was raised at the time as to whether the absence of such a provision might not preclude the use of tribal funds in the payment of these claims. The provision was accordingly inserted to show that the appropriation was for the purpose of "supplementing" the tribal funds. To supplement is to make an addition to something already arranged or set apart. The definition of the word addition--"increase;" "augmentation;" "accession"--evidently conveys the idea had in mind. The appropriation was thus to be used along with the tribal fund, the common property of the tribe, in the payment of these claims. If the funds of the Indians had been sufficient to pay all claims of the members entitled, the payment would clearly have been from a tribal or communal fund. The fact that the fund was added to in order to equalize payments made to other members enrolled prior to the act of March 3, 1893, did not and could not have the effect of changing the character of the fund thus created from tribal to individual but the amount appropriated became a part of the tribal fund of the Stockbridge and
 


 

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Munsee Indians to be used for the purpose provided in the act. Under the terms of said act the particular share becomes individualized either in the hands of the original claimants or upon their death in the hands of those found entitled thereto, only after the claim is proven by the issuance of the certificate and order of the Commissioners of Indian Affairs, and until thus reduced to individual possession by payment, the fund remains tribal or communal in character; and not until payment does it become distinct from the tribal fund and part of claimant's estate distributable in accordance with the general laws of descent.

    The principle involved here in view of the provision in the law that claims can only be paid upon the certificate and order of the Commissioner of Indian Affairs is really similar to an allotment in severalty of tribal lands. The character of the Indian's right prior to allotment is thus described in the case of Woodbury v. United States (170 Fed., 302), affirmed in the case of La Rogue v. United States (239 U.S., 62) : "Until the allotment was made, Woodbury's right was personal--a mere float--giving him no right to any specific property. This right, from its nature, would not descend to his heirs. They, as members of the tribe, were severally entitled to their allotments in their own right. To grant them the right of their ancestor, in addition to their personal right, would give them an unfair share of the tribal lands. The motive underlying such statutes forbids such a construction."

    The fact is, in case of an allotment of land out of the common holdings of the tribe, unless the allotment was actually made or a proper selection filed prior to the death of the Indian, the right to an individual share in the property of the tribe would die with him. In case of the act of May 18, 1916, the right of descendants to back annuities was saved by specific provision therein.

    The Controller of the Treasury has had occasion to pass upon certain questions arising under the act of May 18, 1916, and in the course of his opinion referred to the fund created by that act as being "tribal."

    The foregoing demonstrates the distinction between the matter of the payments of these claims and the ordinary cases of heirship coming under the general act of June 25, 1910, supra, relating to property held in trust for the individual Indian and furnishes as explanation as to why no fees are to be collected as provided for in the determination of heirs under that act. The act of May 18, 1916, involves a matter of annuity payments, pure and simple; that is, there is a fund for distribution to the members of the Stockbridge and Munsee Tribes of Indians found to be entitled thereto, and as in the original pro rata distributions of the kind no fees are provided for such work, as is the case in the determination of heirs under the act of June 25, 1910. It is clear that until apportionment or payment, a claimant's share in the fund created by the act of May 18, 1916, does not come under trust for the benefit of the individual Indian and in the event of his death before receiving payment the share does not pass to his heirs generally as contemplated by the act of June 25, 1910; also, if a deduction had to be made from each share in order to pay fees for determining heirs, it would not be an equitable payment as contemplated by said act of May 18, 1916.

    In reality, the situation here, divorced from all extraneous and irrelevant considerations, is very simple. A number of persons were erroneously left off the roll on which their names should have been placed. As to those who were originally enrolled there was no question of heirship or succession, nor was any such question involved in respect to those who were enrolled under the act of March 3, 1893, who are now living and to whom claims can be paid personally. Presumably the most of the latter have already been paid. Owing, however, to the lapse of time, many of the persons who should have been enrolled but were excluded, have died. As to them it was evidently deemed only just that their descendants should succeed to their shares. It is merely a question of determining these descendants and when determined, they take a direct share and not by inheritance, the same as the deceased member would have done had he lived; in other words, they stand in his place. The act of June 25,
1910, has no relation to the situation: furthermore, if Congress had in contemplation the heirs generally of deceased claimants, then it would no doubt have specifically provided for the determination of such heirs according to existing law. The fact is, the act of June 25, 1910, is never invoked in the matter of making annuity payments and as the present situation does not differ from the ordinary one in that respect ,there was no occasion for making any different provision for such payments. It is not to be presumed that Congress contemplated any radical departure from the ordinary method of making annuity payments.

    Besides appropriating a sum "in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians" for the payment of back annuities to certain members, the act of May 18, 1916, further provides that "such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the act of March third, eighteen hundred and
 


 

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ninety-three." The construction claimed for this provision in connection with the request for reconsideration, is that Congress used the word "ancestor" in its technical sense; that is, any one from whom an estate is inherited, a former possessor, the person last seized, etc., whereas the ordinary and approved meaning of the word was followed in the Solicitor's opinion; that is, one from whom a person descends, one from whom a person lineally descends, one who has preceded another in a direct line of descent, etc. In absence of specific declaration to the contrary, words used in statutes are to be construed according to the context and approved usage of the language employed. The act of May 18, 1916, as originally drawn, was for the payment of "back annuities to those members of the tribe or their heirs who were wrongfully excluded from the rolls." It will thus be seen that the construction claimed for the act in opposition to that of the Solicitor is as if said act actually contained the language quoted. If the act read "members enrolled under the act of March 3, 1893, or their heirs," it would possibly be susceptible of the construction now claimed for it. But the language was changed by Congress to read instead "such claimants or the ancestors of such claimants." There can be no question but that Congress by this change and modification intended something different from the provision in the original draft of the measure; otherwise, there would have been no object in making the change. Therefore, while the word "ancestor" is susceptible of two definitions, it is fair to assume that the purpose of Congress in making the change was to use the word in its popular and ordinary sense rather than in its technical sense which would but follow the same meaning apparently intended by the language used in the original draft of the bill. Furthermore, it is possible to gather the meaning and intention of legislation from the conditions surrounding the purpose to be accomplished. The Appropriation was made in accordance with and pursuant to the provisions of the act of March 3, 1893, which directed the enrollment of excluded members "and their descendants." Certainly there would be no warrant for construing the word "descendants" used in that act as meaning heirs generally. The use of the word "ancestor" in the act of May 18, 1916, in the sense as found by the Solicitor is therefore entirely in accord and consistent with the provisions of the act of March 3, 1893, which directed the enrollment of persons erroneously excluded from the roll of 1874, prepared in accordance with the act of 1871, which also provided for "descendants." As further indicating the construction to be placed upon the act in question, reference may be made to the views expressed by an attorney claiming to represent a number of estates of Stockbridge Indians. He was contending that the Commissioner of Indian Affairs had authority under said act to certify and order payment to administrators of the shares of deceased Indians. It was said in that connection, among other things:

    *     *     * When a claim is filed by a descendant showing that the ancestor was so enrolled it is the duty of the Commissioner to certify and order payment to such person which in legal effect would be payment to the ancestor who was enrolled.

    *     *     * it is noted that no mention is anywhere made of "heirs." The act of May 18, 1916, is silent upon the question of heirship. It does not say that if any enrolled Stockbridge is dead his share shall be paid to his heirs.

    In the foregoing view there can be little or no question that Congress by the use of the word "ancestor" meant to place a limitation upon claimants to the fund created by the act of May 18, 1916. The fund appropriated by that act was referred to in Committee hearings as a "gratuity appropriation." While it was clearly intended that this appropriation should become a part of and be used along with a tribal fund, the legislation nevertheless called for the use of public money for the purpose. For this reason Congress had more latitude in prescribing the manner in which the fund is to be paid out than in authorizing the pro rata or per capita distribution of funds belonging exclusively to the tribe. For a similar reason the augmented funds must be distributed strictly in accordance with statutory authority. The Committee hearings show that the whole proposition was very closely scrutinized.

    Reference has been made to the fact that the fund added to the tribal fund by the act of May 18, 1916, was regarded in Committee hearings as being a gratuity appropriation. In other words, Congress augmented or increased the tribal funds of the Stockbridge and Munsee Tribe of Indians for the purpose of paying back annuities due those members who were erroneously excluded from the Indian roll of 1874, and thus equalizing the amounts paid to other members prior to the enrollment under the act of March 3, 1893. The character of the existing tribal fund was in no manner changed by the process. The sum asked of Congress as being required for the payment of these claims was estimated or approximate only. As to what shall become the surplus if any, after satisfying all proper claims, whether it shall remain in the category of tribal funds or fail back into the treasury, it is unnecessary to determine. It is sufficient to
 


 

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know that for the specific purpose of paying and equalizing these claims it is a tribal fund because Congress has expressly made it so. The fund created was for one purpose only. Consequently there is no merit to the contention that if the fund be tribal or communal then it must be subject to disbursement for tribal expenditures generally, and that it is necessarily individual and not tribal be cause al members do not participate in its distribution. The very purpose of the appropriation refutes the contention. But notwithstanding the fund was created for a specific purpose, it is just as much tribal in its nature as were the funds from which "other members" of the tribe were paid prior to the enrollment under the act of March 3, 1893, and for the purpose of equalizing the amounts of which payments the fund in question was created.

    It has been urged that as the act of May 18, 1916, provides for the payment of "members in amount equal to that paid other members prior to enrollment," it shows that the fund created by said act is individual and not tribal. The language quoted provides to whom payments are to be made and how much, which of necessity refers to individual claims; but the preceding portion of the act creates the fund from which the payments are to be made, "to be used in addition to the tribal funds," which definitely stamps the character of the fund as tribal. The members of a tribe have an inherent interest in the tribal lands and funds but until segregated by allotment or payment in severalty they remain the common property of the tribe. It is true that the act provides as quoted, and that the amount is to be paid upon claims filed by individuals. But this is true of all acts providing for annuity payments out of tribal funds. The act in question also provides that payments are to be made upon certificate and order of the Commissioner of Indian Affairs showing the qualifications of claimants. This implies that not all claimants are entitled to payment.

    Under the provisions of the act of May 18, 1916, there can be no vested right to any particular share of the fund created thereunder until the issuance of the certificate and order of the Commissioner of Indian Affairs upon claim being filed with him showing a right to payment out of the fund. There may be a vested right to an undivided interest in the fund prior to that time but this even is only true of the original claimant and unless the right or share is reduced to possession prior to his death there can be no vested right in any sense in those entitled to succeed to his share.

    The construction claimed for the act of May 18, 1916, as stated is as if it read "member enrolled under the act of March 3, 1893, or their heirs." As bearing upon the question of the meaning and intention of Congress the effect of such a construction would be to permit persons to share in this fund who already have received payments in their own right or who perhaps have shared in payments that have already been made or may share in still other payments of persons whose claims are as yet undetermined. The result would be that instead of a pro rata division of the funds on the basis of the number of persons shown by the roll of 1894 as primarily contemplated by the act of May 18, 1916, a large and indefinite number of persons would be beneficiaries who possibly are of no Indian blood, who are not members of the tribe and in no way related to the original claimant. It is not believed that such a result was contemplated by Congress in its gratuitous appropriation and it would be contrary to the object of the act which was primarily to provide for the members wrongfully left off the roll of 1874; contrary to the provisions of the treaty of 1856 (11 Stat., 663, 678), with the Stockbridge and Munsee Tribe of Indians; and contrary to the provisions of subsequent legislation relating to said Indians as found in the acts of February 6, 1871 (16 Stat., 404), March 3, 1895 (27 Stat., 744), and the act of June 21, 1906 (34 Stat., 325, 382), all of which specifically confine the apportionment of the lands and funds of the tribe to "actual members" and "their descendants."

    The appropriation in question was as hereinbefore stated based an an estimated number of the members of the tribe excluded from the rolls. These are the persons Congress had in contemplation and for whom provision was made that there should be paid "equal amounts to the amounts paid to the other members of the tribe prior to the enrollment under the act of 1893." At the same time Congress evidently realized that in case of the death, before receiving payment of the original claimant, for whom it was primarily legislating, it would be only just that the amount to which he would have been entitled should go to his descendants or those claiming in a direct line of descent from him. Such limitation could result in no serious injury to those who might otherwise be his heirs generally for the reason, as previously stated, that more than likely they had received payments or were entitled to the same in their own right or as claimants through their ancestors in one or more direct lines. In this view the value of the right of the deceased member is not only not lessened by the limitation placed by Congress in the act of May 18, 1916, but possibly in numerous instances would be enhanced in favor of those in whom the descendant was directly or vitally interested, namely, his own children, grandchildren, etc.; besides, but for such a limitation there would not be a true equalization of amounts paid to other members as con-
 


 

35

OPINIONS OF THE SOLICITOR

DECEMBER 29, 1921

templated by the act and the payments to some might thereby be greatly in excess of those received by other members.

    The argument has been advanced that as Congress was dealing with property rights the word "ancestor" was used to denote the person from whom an estate is inherited and not in the sense of a progenitor; and by way of illustration reference is made to the case of an Indian who being properly enrolled and having presented his claim, died prior to receiving payment. It is suggested that the amount to which such an Indian was entitled would go to his heirs generally. That is probably what would happen for the reason that the Indian would be treated the same as if he had lived and received payment in person. His claim being in all respects regular, was identified by action taken by him prior to his death. The situation would be analogous to that of an Indian who made an allotment selection of land prior to his death. The Department holds that a proper selection having been made prior to death, even though not formally approved until thereafter, the right inures to the benefit of the allottee's heirs. In Putnam's case, upon which the instant request for reconsideration is based, while enrolled under the act of March 3, 1893, he died prior to the act of May 18, 1916, and consequently did not and could not bring himself within the purview of said act. If sufficient work had been done by him in this respect, the position could probably be taken that his share of the funds had so far been perfected and individualized as that it would go to his heirs generally because the claim would then no longer be one under the act of May 18, 1916, or controlled by the limitation therein in the matter of descent. But the law in question was not enacted to create property rights for the benefit of heirs. It was designed to operate primarily for the benefit of the members themselves who were erroneously excluded from enrollment and at the same time Congress evidently concluded, as stated, that in the case of the death of such members prior to payment, their descendants ought in justice to enjoy their rights, and Congress was interested to that extent only.

  Asa matter of recapitulation it may be said further that apparent error is made in many of the views opposing the Solicitor's opinion in treating the share a deceased claimant would have received had he lived as if it were actually individualized, when the fact is that having died prior to payment his share of the fund remained tribal in character, subject under the terms of the act to payment to his successors in interest as determined. If the share had been paid prior to the original claimant's death, then there is no question that it would thus have become part of his estate, distributable in accordance with the general laws of descent. But the share was not segregated from the tribal funds prior to the claimant's death, consequently he died without the same being in his individual possession. The act provides, however, that if claimant should die without having received his share and it is shown that he was enrolled under the act of March 3, 1893, then the payment is to be made to the person or persons whose "ancestor" he may be found to have been. The use of the word "ancestor" in this connection is therefore very significant.

    It is difficult to see in what way the right of a deceased claimant would be enhanced to him by providing that his heirs generally should share in the payment he would have received had he lived. On the contrary, the right might be of greater value and certainly of more comfort to him by limiting it to his lineal descendants instead of having it go to the remote heirs in whom he could have no personal interest or concern. This was evidently the view entertained by Congress as shown by the fact that it ignored the draft of the bill which would have permitted the heirs generally to inherit, and instead inserted the words of limitation found in the act.

    It is likewise difficult to see how the appropriation made by the act of May 18, 1916, can be regarded in other light than as a gratuity. While a moral obligation rested upon Congress to remedy the error committed in excluding certain members from the Indian roll, there was no legal obligation for making an appropriation out of public funds for the purpose. There may have been and doubt less was a process available by which the error could have been corrected by the use of tribal funds exclusively. It is clear that if the members excluded had been included among those enrolled in 1874, the tribal funds would have been insufficient to pay the pro rata amounts that were paid to members enrolled prior to the act of March 3, 1893. On the theory that those excluded ought to have been enrolled, it is clear that those who were paid annuities prior to that act were paid too much. There being no way to recover the excess Congress provided a sum that would enable the Commissioner of Indian Affairs to pay the originally excluded members who were enrolled under the act of March 3, 1893 "equal amounts to the amounts paid to other members of said tribe prior to the enrollment under said act." The consideration for the appropriation was that certain members had been wrongfully excluded from the Indian roll and because the existing tribal fund was inadequate to meet the claims of all such members. In an administrative sense the fact that certain members were excluded became the basis of a tribal claim which would in ordinary course have been paid from the
 


 

36

DEPARTMENT OF THE INTERIOR

DECEMBER 29, 1921

tribal funds if they had been sufficient. Claims of Indians erroneously left off annuity rolls or stricken from such rolls have frequently been authorized by Congress to be paid from funds belonging to the Indians. The tribal fund in question being insufficient, Congress made up the deficiency. In one view it was the duty of the tribe to pay the claims because other members had already received pro rata payments in excess of what they would have received had the excluded members been properly enrolled at the time. In other words, the tribal funds were distributed on a pro rata basis notwithstanding all the Indians entitled had not been enrolled.

    It is contended that the appropriation contained in the act of May 18, 1916, was for the purpose of righting a wrong, of doing justice, of being liberal, and of granting as valuable a right as possible. In the face of this, however, it is proposed to charge claimants fees for determining their rights. It is not customary nor is there any legal authority to charge fees for the purpose of ascertaining the persons entitled to share in this fund created by the act of May 18, 1916, and which the Commissioner of Indian Affairs is directed to distribute. The only authority for collecting fees is in connection with the determination of heirs generally to trust lands and funds under the provisions of the act of June 25, 1910, supra. The authority of Congress for collecting fees under that act does not extend and was not intended to extend to the determination of those entitled to share in the annuity funds created by the act of May 18, 1916. If fees were charged for the work involved under that act it would not only be an illegal charge, but in view of the purpose for which the appropriation was made it would be an unjust charge. The persons contemplated by the act are entitled to an equalization payment without any deduction for fees. As said by the Solicitor, "claimants of the shares of deceased ancestors take direct and not by inheritance."

    The act of May 18, 1916, must be construed in accordance with its language, regardless of the results which must flow from such construction so long as such results are not unjust or absurd, which is clearly not the case in the present situation. After all, it is not so much what the history of prior acts relating to the Stockbridge and Munsee Tribes may reveal with respect to the policy of the Government towards them as what the particular act in question provides. However, all the light available to assist in the construction of said act such as prior legislation in pari materia relating to these Indians and all the surrounding circumstances leading to the passage of said act show in dubitably that the word "ancestor" appearing in the act was used in its popular and approved sense and as a word of limitation confining claimants through deceased members to a particular class--those related in a direct line of descent.

    After an extended and careful consideration of the act of May 18, 1916, it is my opinion that the construction placed thereon by the Solicitor on October 8, 1917, is a proper one; consequently, no valid reason is found for disturbing the position taken by him in the premises.

                                                                                                                                                            EDMUND BOOTH,

Solicitor.
Approved: December 31, 1921.

F. M. GOODWIN, Assistant Secretary.

OSAGE-ROYALTY PAYMENTS TO INCOMPETENTS

M-4017 (Supp)                                                                                                                                        January 4, 1922.

The Honorable,
The Secretary of the Interior.

DEAR M R . SECRETARY:

    You have requested me to review an opinion by my predecessor, dated June 4, 1921, relating to payments to members of the Osage Indian Tribe, Oklahoma, pursuant to the act of March 3, 1921 (41 Stat., 1249). In said prior opinion it was held in part that the income due adult members of this tribe not having certificates of competency and for whom legal guardians had been appointed should be paid to such guardians, but that the expenditure of the quarterly allowance and investment of the remainder is subject to further supervision by the Superintendent of the Osage Agency.
   Section 4 of the act referred to reads in part:

    "That from and after the passage of this Act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the funds received from the sale of leases and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members un-
 


 

JANUARY 4, 1922                                   OPINIONS OF THE SOLICITOR                                                              37
 

der twenty-one years of age personally in charge $500 quarterly out of the income of said minors all of said quarterly payments to legal guardians and adults, not having certificates of competency to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma State, county, or school bonds, or place the same on time deposits at interest in banks in the state of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe."
    As observed in the former opinion, the language used in the foregoing provision could undoubtedly have been more happily framed so as to express its real intent. A brief examination, however, discloses that by this legislation the members of the Osage Tribe are divided into two primary or general classes, viz: "Competents" and "incompetents." With the former we are not concerned, as, clearly, the shares due such are to be paid to them without further supervision as to expenditure.

    The "incompetents," however, are further subdivided into groups or classes which may be conveniently designated as: (a) Adults with legal guardians, (b) adults without legal guardians, (c) minors with legal guardians and (d) minors with out legal guardians.

    It may be well here to invite attention, briefly, to prior legislation dealing with these people. The act of June 28, 1906 (34 Stat., 539), directed the preparation of a final roll of the Osage Tribe and that the lands and funds belonging to these Indians be divided. equally among the members whose names appear on that roll. As finally constituted, the roll so prepared embraces some twenty-two hundred names and the lands allotted to those Indians were subject to certain restrictions against alienation, which restrictions, however, could be removed, as to the adult Indians, in the discretion of the Secretary of the Interior, by the issuance of a "certificate of competency." Sections 4, 5 and 6 of this act provide for the disposal to be made of the tribal funds but nothing therein appears of particular moment at this time, except as hereinafter briefly indicated.

    Section 3 of the act of April 18, 1912 (37 Stat., 86)--an act "supplementary to and amendatory of" the act of June 28, 1906--specifically subjects the Property of "deceased and orphan minors, insane, or other incompetent allottees of the Osage Tribe, "in probate matters, to the county courts of the State, which, in Oklahoma, are the probate courts. Copies of all papers filed in connection with the estates of these Indians were required to be served on the Superintendent of the Osage Agency, and that officer was empowered to appear in said courts whenever in his judgment the protection of the Indians required it. The Secretary of the Interior and the Superintendent of the Agency were also authorized to investigate "the conduct" of executors, guardians, administrators and other persons having charge of the estates of these Indians and to take such action, either civil or criminal, for the protection of their interests as the exigencies of each case might require. It was further provided "that no guardian should be appointed for a minor whose parents are living, unless the estate of said minor is being wasted or misused by such parents," and "that no trust funds of a minor or a person above mentioned who is incompetent shall be released and paid over except to a guardian of such person duly appointed by the proper court."

    The act of March 3, 1921, supra, is the latest expression by Congress in the matter and as to "incompetent adults" for whom legal guardians have not been appointed, no difficulty is met in determining that the shares due such are subject to supervision as to expenditure and investment of the remainder in the manner indicated in the act. So also as to minors, either with or without legal guardians; it being equally clear that an allowance of $500 per quarter is provided for the proper maintenance, support and education of such minors, to be paid to "the parents or natural guardians or legal guardians" actually having such minor members personally in charge; the remainder of the shares due such minors to be conserved for their future benefit in the manner indicated in the act. The real difficulty is encountered when we come to consider payments to incompetent adults for whom legal guardians have been appointed, and this difficulty can best be appreciated when we place in juxtaposition the pertinent provisions only which relate to payments in such cases, thus:

    "From and after the passage of this act the Secretary of the Interior shall cause to be paid ------------ except where incompetent adults have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians --------------- all of said quarterly payments to legal guardians and adults not having certificates of competency to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder ---------------- under such rules and regulations as the Secretary of the Interior may prescribe." [Italic supplied.]
    It will be noted that the legislative direction here is to the Secretary of the Interior. The expression "to be paid under the supervision of the Superin-
 



 

38                                                       DEPARTMENT OF THE INTERIOR                                  JANUARY 11, 1922

tendent" is not as clear as might be desired; and, as most commonly used the word "paid" implies simply a delivery of the amount due to the person entitled. The word, however, has a broader meaning and includes with equal force "the discharge of an obligation." The obligation here resting upon the Secretary in so far as payments to minors and incompetent adults, whether with or without legal guardians, is certainly broader than the mere delivery of the amount due to the person entitled. Undoubtedly, the obligation is to see that the corpus of the estates of such minors and incompetent adults is conserved for their future benefit. Again, it should be noted that payments to these two classes of distributees--"legal guardians" and "adults not having certificates of competency"--are on a parity and necessarily they must stand or fall together." "All of said quarterly payments to legal guardians and adults, not having certificates of competency" are "to be paid under the supervision of the Superintendent." If supervision after delivery is not to be had in one case then it is not to be had also in the other; hence, I see no legal grounds for questioning the soundness of the prior opinion in this respect.

    I do not see my way clear, however, to subscribe to the ruling laid down in the former opinion in one particular. The final rolls of the Osage Tribe exclude children born after July 1, 1907. Many of such children, by inheritance or otherwise, have come into possession of shares of deceased members whose names are on the final roll. As time progresses naturally more of the older members of this tribe will pass into the Great Beyond, leaving, perchance, full-blood minor children of tender age. The prior holding was to the effect that such minors are in the same category as persons who are not members of the tribe and hence not entitled to further protection at the hands of the Government. As I see it, however, the Indians of this tribe are entitled to the protection accorded them by the acts of Congress relating to their affairs and, whether their names do or do not appear on the final roll, is not the true criterion as to whether such Indians are entitled to further protection in our dealings with their property rights. Most of the tremendous wealth accruing to the members of this tribe arises from oil and gas rights, which are still tribal. Under the original act of 1906 such rights were to become individualized on April 8, 1931, but the act of March 3, 1921, supra, extended the period of communal ownership to April 8, 1946. As the older members of the tribe die, therefore, more and more of this valuable property right will come into the hand of others, doubtless in many in stances full-blood minors whose names are not on the final roll, and the fact that their names do not appear on such final roll does not, within itself, place such minors beyond the pale of the Government's protecting hand. The true criterion is "competency" and "incompetency," and in practically all legislation dealing with these and other Indians, minority implies incompetency. In the original act of June 28, 1906, supra, we find that:

    "The shares due minor heirs, including such minor Indian heirs as may not be tribal members and those Indian heirs not having certificates of competency, shall be paid into the Treasury of the United States and placed to the credit of the Indians upon the same conditions" etc. [Italic supplied.]
    Again, in section 3 of the act of March 3, 1921, it is directed that the shares due competent members, either in their own right or as an heir of a deceased member, shall be paid to them outright. Inversely, if not competent their shares shall not be paid to them, either their own shares or those accruing to them by way of inheritance. Hence, incompetent minor Indians of this tribe whose names are not on the final roll, are entitled to the same measure of protection as those minor members whose names do appear on that roll.

    I am of the opinion therefore that the payments due incompetent Indians of this tribe under the act of March 3, 1921, whether adults or minors, either with or without legal guardians, and whether their names appear on the final roll or not, are subject to distribution and investment, under supervision of the Superintendent, pursuant to such rules and regulations as the Secretary of the Interior may prescribe, and that the legal guardians appointed by the courts of the State, where such action has been had, are bound by the requirements of the Federal statute in this respect.

                                                                                                                                     ------------------------,
                                                                                                                                                                   Solicitor.

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

TAXATION OF RESTRICTED ALLOTMENTS

M-2258                                                                                                                                                   January 11, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    March 11, 1921, the then Solicitor for this Department rendered an opinion to the effect that the
 


 

39

OPINIONS OF THE SOLICITOR

JANUARY 11, 1922

lands allotted to Robert Pitman, Jr., a deceased minor allottee of the Creek Indian Tribe, Oklahoma, are not subject to taxation by the State authorities. You request my views in the matter.

    The decedent, as shown by the final rolls of the Five Civilized Tribes, was a "new born" half blood Creek, three years of age at the date of enrollment. He died October 14, 1919, while still a minor, his allotment passing by way of inheritance into the hands of his full blood Indian mother, Lucinda Pitman. For the purposes of this discussion it is essential to bear in mind these three salient factors, viz: (1.) That the allottee was a half blood, (2.) A minor, and (3.) That his allotment was inherited by a full blood who still retains title.

    Allotments to the Creek Indians were made subject to the provisions of agreements with this tribe to be found in the acts of March 1, 1901 (31 Stat., 861), and June 30, 1902 (32 Stat., 500). The former is commonly known as the original agreement and the latter as the supplemental agreement. Both contain provisions similar in many respects and each contemplated that the members of the Creek Tribe would receive 160 acres of the communal lands in severalty, of which 40 acres should be designated as "homestead," to remain inalienable, non-taxable, and free from incumbrance for a period of 21 years and the remainder commonly referred to as "surplus" should remain inalienable for a period of five years only. In the original agreement no definite date was fixed for determining when the 21-year restricted period as to the home stead should begin to run, but the supplemental agreement fixed such date as that under which the tribal deeds or patents were issued to individual allottees. As to the surplus, the five-year restricted period in the original agreement began with the date of ratification by the Creek National Council of that agreement, while the supplemental agreement provided a similar restricted period to begin with the approval of the later agreement. In these respects, of course, the supplemental agreement modified and amended the one of the prior date. One provision of some moment, however, appears in the original but not in the supplemental agreement. This reads (section 4) that the "allotment for any minor *     *     * shall not be sold during minority." Separate deeds or patents were to be had for the homestead and surplus allotments and the tribal deeds to Robert Pitman, Jr., for the lands allotted to him were issued under date of May 24, 1907, by the principal chief of the Creek Nation. The original 21-year restricted period as to the homestead will not expire therefor until May 24, 1928, while under the supplemental agreement, the five-year limitation as to the surplus expired in 1907.

    Legislation subsequent to these agreements bearing on the situation to a material extent, must, however, be considered. The act of April 26, 1906 (34 Stat., 137), applies to all of the allottees of the Five Civilized Tribes in Oklahoma, and in section 19 of that act, after extending the restrictive period as to the full bloods to April 26, 1931--with which we are not primarily concerned here--it was further directed:

    That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee.
    Several provisions to be found in the act of May 27, 1908 (35 Stat., 312), are also relevant and are reproduced below, italic where indicated having been supplied:
    That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said allottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act. * * *

    Sec. 4. That all land from which restric-


 

40

DEPARTMENT OF THE INTERIOR

JANUARY 11, 1922

tions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes. *     *     *

    Sec. 6. That the persons and property of minor allottees of the Five Civilized Tribes, shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma. * * *

   Provided, That no restricted lands of living minors shall be sold or encumbered, except by leases authorized by law, by order of the court, or otherwise.

    Sec. 9. That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions from the alienation of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.

    It will be noted, of course, that under the foregoing all restrictions against alienation of lands allotted to half bloods, including minors, were removed except as to the homesteads (section 1) and that nothing therein contained should be construed to reimpose restrictions which had been removed by any prior law; also, that no restricted land of living minors should be sold or incumbered (section 6) and that the death of any allottee should remove all restrictions except as to the interest of any full blood Indian heir therein (section 9). These conditions obtain here, largely, and in so far as the record now before me discloses, there has been no removal of the restrictions in this instance except as provided by law.

    The difficulty frequently encountered in questions relating to taxation of allotted Indian land arises from the impressions so generally prevalent that restrictions against alienation and exemption from taxation always go hand in hand. These two factors may be and frequently are coexistent but they sometimes become divorced. In its legislation relating to these people, Congress has clearly expressed its intent that when the restrictions against alienation are removed then the lands shall become subject to taxation by the State authorities, and vice versa. This result has not always followed, however, even in the face of expressed legislation to that effect. See Choate v. Trapp (224 U.S., 665), and Morrow v. United States (243 Fed. 854). In the former case, which involved lands allotted to Choctaw and Chickasaw Indians in Oklahoma, the court says (page 673):

But the exemption (from taxation) and non-alienability were two separate and distinct subjects. One conferred a right and the other imposed a limitation * * * The right to remove the restrictions was in pursuance of the power under which Congress could legislate as to the status of the ward, and lengthen or shorten the period of disability. But the provision that the land should be nontaxable was a property right which Congress undoubtedly had the power to grant. That rightfully vested in the Indians and was binding upon Oklahoma.

In the Morrow case, it is said that (p. 856):

    There is no question that the Government may, in its dealings with the Indians, create property rights which, once vested, even it can not alter.

    Both cases held that the lands allotted were not subject to taxation during the period of exemption, as long as the title remained in the Indians. A companion case to Choate v. Trapp, and decided on the principles announced in that case, is to be found in English v. Richardson (224 U.S., 680). The latter case dealt with the taxability of lands allotted to a Creek Indian but whether homestead, or surplus, or both, does not appear from the reported decision. The court held, however, that the plaintiff was entitled to the exemption granted by Congress. I find no difficulty, therefore, in holding that the homestead allotment of Robert Pitman, Jr., was not taxable during his lifetime, the title having remained in him up to the time of his death and he having died prior to the expiration of the period of exemption.

    The surplus part of this allotment presents a somewhat different situation. The five-year limitation against alienation as to such surplus expired in 1907, unless force and effect is to be given to that expression in the original Creek agreement which declares that the allotment for any minor "shall not be sold during minority." As to this see United States v. Shock(187 Fed., 863) . At least there is no discord between that provision in the original agreement and a similar one found in section 6 of the act of May 27, 1908, which directs that the restricted land of living minors shall not be sold by order of the court or otherwise. Some question may remain, therefore, whether the surplus lands of this allottee were taxable by the State authorities during his lifetime, even though the five-year expressed period of limitation in his patent had expired and even though section 1 of the act last mentioned removed the restrictions
 


 

41

OPINIONS OF THE SOLICITOR

MARCH 10, 1922

against alienation of all lands allotted to half bloods, including minors, except the homestead. United States v. Shock, and English v. Richardson, supra. The allottee here, however, died while still a minor and this brings into bearing section 9 of the act of May 27, 1908, which provides that the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions against alienation except as to the interest of any full blood Indian heir therein. In construing this provision the Supreme Court, in Parker v. Richards (250U.S., 235-239), says:

    In cases presenting the question whether lands inherited from allottees by full-blood Indian heirs are freed from restrictions by section 9, and thus brought within another provision in the same act declaring that land from which restrictions have been or shall be removed shall be taxable and subject to other civil burdens, the Supreme Court of the State and the federal court of that district have both held that under the proviso such land remains restricted in the hands of the full-blood heirs, and so is not within the taxing provision. Marcy v. Board of Commissioners, supra; United States v. Shock, 187 Fed. Rep. 870.
    Entertaining a like view of the proviso, we conclude that the land covered by the lease is still restricted land.

    My predecessor held that the lands allotted to Robert Pitman, Jr., are not subject to taxation by the State authorities and with that holding I agree. Should any taxes assessed against these lands have been paid under protest, the ruling laid down by the Supreme Court in Ward v. Love Co., Oklahoma (253 U.S., 17), and in Broadwell v. Carter Co., (Ibid. 25) will prove of interest and importance.

                                                                                                                                EDWIN S. BOOTH,
                                                                                                                                                       Solicitor.
 
 

KIOWA, COMANCHE-PATENTED ALLOTMENTS

M-7002                                                                                                                                                   March 10, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is requested in the matter of three patented allotments in severalty to certain Indians of the Kiowa, Comanche and Apache Reservation, Oklahoma.

    This reservation was set apart for the above tribes by the treaties of October 21, 1867 (15 Stat., 581 and 589), under which the 98th Meridian West was established as the eastern boundary of said reservation. It appears that there are several maps of survey of the area embracing the allotments in question which do not agree. Thus, a map of survey approved May 22, 1900, shows an old (obliterated) and a new 98th Meridian West.

    By agreement ratified by the act of June 6, 1900 (31 Stat., 672, 676), the Kiowa, Comanche and Apache Tribes ceded their lands as described in the treaty of 1867, subject to allotments in severalty to the individual members of said tribes and subject to the setting aside of 480,000 acres of grazing lands for the Indians. The act further provided that after allotments and the setting aside of grazing lands, the surplus lands were to be open to settlement under the general provisions of the homestead and townsite law. The allotments in question were made under said act but owing apparently to the discrepancies in surveys and resurveys they were not made to conform to the true boundary of the reservation, especially in reference to the east section lines of the particular sections in which the allotments are located. The result is that parts of said allotments extend into and cover lands in the Chickasaw Nation. The parts of the allotments thus in conflict will have to be surrendered by the allottees and the question arises as to how they may be compensated for the loss. The questions submitted for opinion are as to whether by virtue of the act of March 3, 1909 (35 Stat., 781, 784), authority exists for these allottees to make exchanges for any unappropriated lands on the Kiowa Reservation, and if not, whether additional allotments can be made to them from lands known as the Pasture Reserves.

    After allotments were made to these Indians under the act of June 6, 1900, the surplus lands were open to disposal in accordance with the provisions of said act. By the act of June 5, 1906 (34 Stat., 213), the provision in said act of June 6, 1900, setting aside 480,000 acres of grazing land was repealed and it was provided that the pasture lands should be open to settlement and disposed of to the highest bidder under the provisions of the homestead laws, the money arising from the sale to be deposited in the Treasury to the credit of the Kiowa, Comanche and Apache Tribes to draw interest. The act of June 13, 1913 (38 Stat., 77, 92), authorized the Secretary of the Interior to sell the unused, unallotted, unreserved lands in the reservation, the proceeds to be deposited to the credit of the Indians to draw interest and to be known as
 


 

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DEPARTMENT OF THE INTERIOR

MARCH 10, 1922

the Kiowa Agency Hospital Fund, "to be used only for the maintenance of said hospital." The act of March 3, 1919 (40 Stat., 1318), provided that any vacant lands in the wood and pasture reserves in said reservation open to entry under the act of June 5, 1906, should be subject to sale at public auction to the highest bidder.

    Under date of November 24, 1919, the Solicitor for this Department had occasion to review and consider the various acts, the above as well as others, affecting lands in the Kiowa, Comanche and Apache Reservation opened to disposition as provided in the act of June 6, 1900, and the legislation relating to lands in the pasture reserves. As to the former it was held: "It is clear that no further allotments, even if there be lands remaining undisposed of, can be made to Indians coming within the provisions of said act of 1900." And as to grazing lands opened to settlement under the act of June 5, 1906, it was held: "Consideration of these various acts leads inevitably to the conclusion that the tracts in the former pasture reserves can be disposed of only by sale, as provided in the acts of June 30, 1913, and March 3, 1919, supra, and are therefore not subject to allotment to Indians." The matter under consideration at that time was the proposed allotments to two duly enrolled and recognized members of the Comanche Tribe of Indians. A bill was introduced in Congress authorizing the Secretary to make an allotment to one of the persons by name, the other having died in the meantime, "from the unallotted, unreserved, unappropriated, and undisposed of tracts within the former Kiowa, Comanche and Apache Indian Reservation in Oklahoma *     *     *, a duly enrolled and recognized member of the Comanche Tribe who has not heretofore been allotted, but who is entitled to an allotment under the provisions of the act of Congress of June 6, 1900 (31 Stat., 676): Provided, That all acts of Congress inconsistent with making the allotment herein provided for are hereby amended accordingly."

    It was held in the case of Ethel E. Huston (43 L.D., 531) cited and followed in the case of Knight Placer Mining Association v. Hardin (47 L. D., 331), having special reference to the act of June 30, 1913, supra:

    This act clearly contemplates that all of the unused, unallotted and unreserved lands within the limits of the reservation named should be sold, with a view to providing hospital funds for the benefit of the Indians, and should thereafter be subject to no form of disposition other than that therein authorized or prescribed.
    It appears that the Department then thought these lands were so appropriated to another use that they could not be disposed of in any other form, and it was remarked in the Hardin case:
    The decisions of the Department, therefore, are uniformly to the effect that there is no authority for the disposition of any of said pasture lands under the provisions of the mining law or otherwise than as directed by the acts hereinbefore cited.
    It is suggested in the request for opinion that as the allottees in question were originally allotted lands which were never in the Kiowa, Comanche and Apache Reservation and that their allotments were therefore incomplete under the provisions of the act of June 6, 1900, there may be authority under the act of March 3, 1909, supra, for permitting them to exchange the parts of their allotments extending into and covering lands in the Chickasaw Nation for any unappropriated lands in said reservation or to make additional allotments out of pasture reserve lands. The act of 1909 provides:
    That if any Indian of a tribe whose surplus lands have been or shall be ceded or open to disposal has received or shall receive an allotment embracing lands unsuitable for allotment purposes, such allotment may be canceled and other unappropriated, unoccupied, and unreserved land of equal area, within the ceded. portions of the reservation upon which such Indian belongs, allotted to him upon the same terms and with the same restrictions as the original allotment, and lands described in any such canceled allotment shall be disposed of as other ceded lands of such reservation.
    The above act on its face clearly shows that it was not intended to cover a situation like the present one. In view, however, of the specific provisions of the various acts for the disposition of the surplus lands of these Indians and the uniform rulings that no further allotments can be made of such lands, my opinion is that relief such as that suggested can not be extended to these allottees.

    Besides, the Superintendent of the Kiowa Agency states that "there is no unallotted land on this reservation, except a few tracts that have been sold by the General Land Office, on which payments have defaulted." He further states that "the three tracts in question that have been thus allotted are very valuable tracts of land and it would be unfair, after these Indians have made selections and their selections approved and trust patents issued, to
 


 

43

OPINIONS OF THE SOLICITOR

MARCH 29, 1922

provide them with less valuable tracts of land." Attention is invited to the Superintendent's suggestion as to the solution of this matter by which these allottees may possibly be afforded relief.

                                                                                                                                        EDWIN S. BOOTH,
                                                                                                                                                                    Solicitor.

CANCELLATION OF FEE
DECEASED ALLOTTEE

M-6882                                                                                                                                                    March 29, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the validity of a patent in fee issued to an Indian where the allottee died prior to the issuance of such patent, and, inferentially, as to the power of the Secretary of the Interior to cancel such patent.

    Briefly the facts in the case are: Tony Blackbird, a Sioux Indian of the Lower Brule Reservation, South Dakota, received an allotment of 326.44 acres for which the usual 25-year trust patent issued December 31, 1903, pursuant to the act of March 2, 1889 (25 Stat., 888), and the general allotment act of February 8, 1887 (24 Stat., 388). The original trust period on this allotment would not have expired until December, 1928, but in March, 1913, the allottee applied for a patent in fee, on the ground of "competency"; authority for the issuance of such patent in cases of this kind being found in the act of May 8, 1906 (34 Stat., 182). Based on favorable recommendations from the Indian Service a final or fee patent issued to this Indian on October 7, 1913, which patent was duly recorded on the records of the General Land Office. In the meantime, however, on May 30, 1913, the allottee died, which fact it appears was not brought to the attention of the Indian Office or of the Department prior to the actual issuance of patent. On ascertaining that fact, however, the fee patent was not "delivered" but was retained in the Indian Office, Interested persons obtained a certified copy of the patent, had the same recorded and conveyances to third parties now also appear of record from the widow and two children of the deceased allottee, these appearing to be the only heirs at law, of the decedent. Mortgages or other incumbrances are now of record against the land involved.

    Fundamentally a patent or other instrument of conveyance to a grantee not in being, as to a fictitious person, is void and conveys no title. (112 U.S., 24-31; 199 U.S., 63-80; 217 Fed., 11). This rule has been invoked at times as authority for canceling or otherwise setting aside instruments issued in the name of fictitious persons. To state the rule another way: There must be grantee capable capable of taking title unless the common law rule has been altered by statute. Corpus Juris, vol. 18, p. 158. As to this the act of May 20, 1836 (5 Stat., 31) embodied substantially in the Revised Statutes as Section 2448 provides--

    "Where patents for public lands have been or may be issued, in pursuance of any law of the United States, to a person who had died, or who hereafter dies, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee as if the patent had issued to the deceased person during life."
    While in both instances the statute literally reads "public lands" and at times a sharp distinction is to be drawn between "public lands" and "Indian lands" (227 U.S., 367; 239 U.S., 63; 252 U.S., 159), yet the Supreme Court itself has held that the statute above quoted is applicable to lands allotted to Indians. Crews v. Burcham (1 Black-66 U.S., 352-6); United States v. Chase (245 U.S., 90-101). See also Kenney v. Miles (250 U.S., 60, footnote). The reason for so holding is apparent. Doubtless many certificates of allotment, trust patents, and other forms of paper evidence of title have been issued to Indian allottees who were dead at the time of the issuance of such instruments. To hold these instruments void would necessitate cancellation and the issuance of new instruments in many cases to the heirs of the decedent. Manifestly, a proceeding of this kind would be useless. How much better, therefore, to hold that the title so acquired inures to the benefit of the heirs of the patentee or grantee. This the courts have done.

    As to the authority of the Secretary of the Interior to cancel patents in fee after issuance, even though never "delivered," we have no statute which specifically clothes that officer with such authority. On the other hand, we find many decisions by the courts showing a lack of such authority. Extracts from a few of these appear below:

    "Title by patent from the United States is title by record and delivery of the instrument to the patentee is not, as in a conveyance by a private person, essential to pass the title." United States v. Benorz (102 U.S., 378).



 

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DEPARTMENT OF THE INTERIOR

MARCH 29, 1922

    "After the issuance of patent the matter becomes subject to inquiry only in the courts and by judicial proceedings."

    Michigan Land & Lumber Company v. Rust (168 U.S., 593).

    "The power of supervision and correction vested in the Secretary of the Interior over Indian allotments is not unlimited and arbitrary; it can not be exercised to deprive any person of land the title to which has lawfully vested."

  Ballinger v. Frost (216 U.S., 240).

    The true situation, as I see it, is possibly best summed up in Steel v. Smelting Company (106 U.S., 447) , wherein the court said, page 454:
    "So with a patent for land from the United States *     *     * It can not be vacated or limited in proceedings where it comes collaterally in question. It can not be vacated or limited by the officers themselves; their power over the land is ended when the patent is issued and placed on the records of the Department. This can be accomplished only by regular judicial proceedings, taken in the name of the Government for that special purpose."
    These views are set forth at some length because Secretaries of this Department, of their own volition have had occasion at times to resort to the cancellation of patents in fee after issuance. See United States v. Caster (271 Fed., 615), and United States ex rel. Prettybull v. Lane (47 App. D.C., 134). Superficially, the two decisions are not in harmony. In the former it was held, in effect, that the Secretary of the Interior is without power to recall the title after issuance of a patent in fee simply by canceling the patent and correcting the records of his Department accordingly. In the latter case the court refused a writ of mandamus to compel the Secretary to deliver the patent where it appeared that such patent was procured through false and fraudulent representations. This but illustrates the doctrine that "he who comes into equity must come with clean hands." While mandamus will lie upon a proper showing to compel the performance of a purely ministerial act (82 U.S., 541; 211 U.S., 249; 216 U.S., 240-1), yet such writ will be refused where the object to be sought promotes or aids a wrong (222 U.S., 204; 245 U.S., 308-311). The latter principle is reflected in the Prettybull case but it still remains to be seen whether the cancellation of the patent in fee in that instance by the Secretary of the Interior reinvested the fee to those lands in the United States or that the courts would not uphold a conveyance by the patentee of those lands.

    The essential difference between a void patent and a voidable patent lies in the fact that the former is a complete nullity and conveys no title. Hence, on cancellation, no one can be heard to complain. With a voidable patent, however, the rule is otherwise and whether the fee in such cases is to be recalled is a judicial question and one for determination by the courts. Such is the situation, as I see it, with reference to the case at hand. Sufficient grounds may exist for voiding the patent in this instance as the record before me indicates that misrepresentations may have been made as to the "competency" of Tony Blackbird. Even if this is true, however, that would not justify an administrative officer in arbitrarily canceling the patent, and this is particularly true where the rights of third parties have intervened. The matter is solely one for the courts to determine.

    I am not unmindful of the fact that the patent in fee in this case issued prior to the expiration of the trust period, in the name of the original allottee, under authority of the act of May 18, 1906, supra, on the alleged ground of "competency," and it might be argued, that a dead Indian certainly is not a competent Indian. Thus it might be said that the foundation or authority for the issuance of this patent in the first instance was lacking, and while there may be some force to that argument, yet whether that fact renders the patent void or void able is a question for judicial determination by the courts. In this connection, however, it may be pointed out that:

    "Every patent for public or Indian land carries with it an implied affirmation or finding of every fact made a prerequisite to its issue. Dixon v. Luck Land Company (242 U.S., 374) ."

  See also United States v. Wildcat (244U.S., 111).

    Needless to add I am of the opinion that the Secretary of the Interior is without power to cancel a patent in fee once issued and placed of record in the General Land Office but that this is a function resting exclusively in the courts. To hold otherwise would shake the very foundations upon which the title to most of our public and Indian lands rest.

                                                                                                                                    EDWIN S. BOOTH,
                                                                                                                                                             Solicitor.

Approved: -----------------------

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


 

45

OPINIONS OF THE SOLICITOR

APRIL 5, 1922

CHOCTAW AND CHICKASAW-
COAL LANDS

M-7316                                                                                                                                                          April 5, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the authority of the Secretary of the Interior to refund to purchasers of coal and asphalt deposits in the segregatedcoal and asphalt lands of the Choctaw and Chickasaw Nations, Oklahoma, payments heretofore made by lessees of those deposits as "advance royalties."

    The issue here turns primarily on the provisions of the act of February 8, 1918 (40 Stat., 433), which, after providing for the appraisement and sale of these deposits under rules and regulations to be prescribed by the Secretary of the Interior, further provides in section 4 (pertinent provisions only reproduced)--

    "That such deposits of coal or asphalt on the leased lands shall be sold subject to all rights of the lessee *     *     * and that advance royalty paid by any lessee and standing to the credit of said lessee shall be credited by said purchaser to the extent of the amount thereof, and that no royalties shall be paid by said lessee to said purchaser until the credit so given shall be exhausted at the rate of 8 cents per ton mine run, *     *     * and if any lessee becomes the purchaser of any coal deposits on any undeveloped lease owned by him, then one-half of the advance royalties paid by any lessee on such lease shall be credited on the purchase price thereof, and any residue of advance royalties heretofore paid by any lessee shall be credited to such lessee on account of any production of coal on any other lease which he may own and operate.
    Regulations promulgated pursuant to the foregoing, approved September 24, 1918, contain the following--
    "Any unused advance royalty to the credit of a lessee under existing leases, shall be paid by said Superintendent, when final payment of the purchase price is made, to the purchaser for the benefit of the lessee under the terms of the lease and the Act of Congress approved February 8, 1918: Provided, however, that if any lessee becomes the purchaser of any coal deposits on any undeveloped lease owned by him, the one-half of the advance royalties paid by any lessee on such lease shall be credited on the purchase price thereof, and any residue of advance royalties heretofore paid by any lessee shall be credited to such lessee on account of any production of coal on any other lease which he may own and operate.
    The printed advertisements under which these deposits were sold read in part--
    "Terms: Twenty per cent (20%) of the purchase price at the time of the sale, and the remainder in four equal annual installments, payable in one, two, three and four years, respectively, from the date of sale. All deferred payments bear 5 per cent (5%) interest per annum from date of sale. All royalties on tracts now under lease, and on any lease made on unleased tracts subsequent to the sale and be fore final payment, must be paid to the Superintendent for the Five Civilized Tribes and be held by him and paid to the purchasers after full payment has been made or in annual installments in the discretion of the Secretary of the Interior."
    Under these circumstances, the purchasers of these deposits, other than the lessees themselves, are entitled, when final payment has been made, to a refund of the unused advanced royalties standing to the credit of the lessee. Where the lessee him self becomes the purchaser on any undeveloped lease owned by him then such purchaser is entitled to credit on the purchase price to the extent of one-half of the advanced royalties so standing to his credit on that particular tract of land.

    The Indian appropriation acts for recent years each contain a provision reading substantially as below, which is taken from the act of March 3, 1921 (41 Stat., 1225-1242)--

    "That hereafter no money shall be expended from tribal funds belonging to the Five Civilized Tribes without specific appropriation by Congress except: (here follows certain exceptions not immediately relevant)."
    This, however, as I see it, is not to be construed as a limitation against the discharge by this Department of an obligation which Congress, itself, has directed should be paid. The act of February 8, 1918, supra, itself, operates as an authorization by Congress for the expenditure of these funds in the manner therein directed and an additional specific appropriation by Congress for that purpose is not
 


 

46

DEPARTMENT OF THE INTERIOR

APRIL 5, 1922

required in order to enable these payments to be made.

    Just what constitutes "advanced royalties," or as expressed in the regulations, "unused advanced royalties" may depend somewhat on the circumstances connected with each particular transaction. As to these, however, see the act of June 28, 1898 (30 Stat., 495-510) , and the case of United States v. McMurray (181 Fed., 723). See also an opinion by my predecessor under date of December 11, 1918, wherein it was indicated that advanced royalties per se, and the payments made by lessees for failure to operate and produce coal as required by the regulations, both constitute "advanced royalties" within the purview of section 4 of the act of February 8, 1918, supra.

                                                                                                                                EDWIN S. BOOTH,
                                                                                                                                                        Solicitor.

Approved:
M. GOODWIN, Assistant Secretary.

TRUST ALLOTMENT-EXPIRATION

M-5379
M-5702                                                                                                                                                       April 27, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion on several questions relating to the status of Indian "trust allotments" after the expiration of the trust period but prior to the issuance of final or fee patents therefor, and as to the jurisdiction of the Secretary of the Interior over such allotments. The questions presented may be briefly stated thus:

    1. Can the Secretary of the Interior sell the land and issue a patent in fee to the purchaser?

    2. Can the land be partitioned and patents in fee be issued to adult heirs and new trust patents issued to minor heirs?

    3. Can a patent in fee be issued to the heirs in common, including minor heirs?

    4. Can the trust period be extended, with or without further action by Congress?

    5. Of what validity is a deed executed by the allottee or his heirs prior to actual issuance of the fee patent?

    It is essential to bear in mind that we are here dealing only with those Indian allotments on which the trust period has expired by operation of law--i.e., lapse of time--and for which the final or fee patent has not issued. The term "trust allotment" as applied to Indian lands allotted in severalty is so well understood that an extended discussion here is doubtless unnecessary. The original or "trust patents" for all such allotments provide for a definite period of trust, usually twenty-five years, at the expiration of which the United States agrees to convey the fee, by patent, to the allottee or to his heirs, discharged of the trust and free of all charge or encumbrance whatsoever. See section 5 of the General Allotment Act of February 8, 1887 (24 Stat., 388), on which most of our Indian trust allotments are founded, and from which, for convenient reference, I quote:
    "*  *  * 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. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void." [Italic supplied.]
    Manifestly this legislation contemplates that when the trust has expired the allottee or his heirs then become entitled, as a matter of right, to a final or fee patent. True, the act contains a provision by which the trust may be extended, in the discretion of the President, and while this act, in itself, is silent as to whether the authority so conferred, if exercised at all, is to be invoked only during the trust period, yet in the act of June 21, 1906 (34 stat., 326), we find:
    "That prior to the expiration of the trust period of any Indian allottee to whom a trust or other patent containing restrictions upon alienation has been or shall be issued under any law or treaty, the President may in his discretion continue such restrictions on alienation for such periods as he may deem best." [Italic supplied.]
 

 

47

OPINIONS OF THE SOLICITOR

APRIL 27, 1922

    Viewing this provision as a legislative interpretation of prior acts relating to the same subject matter (221 U.S., 286-309; 41 Sup. Ct. Rep., 561), it follows that if the trust is to be extended, such action must be had prior to its expiration. Otherwise action of this kind would virtually amount to a reimposition of restrictions against alienation, or the creation of a new trust, rather than an extension of the former period. Congress, of course, can reimpose restrictions even after they have once expired (Brader v. James, 246 U.S., 88), but where vested rights have intervened, the rule even there may be otherwise. With these, however, we are not now concerned other than to observe that in the absence of express legislation by Congress, which I do not find, it is beyond the power of administrative officers to extend the period of the trust after that period has once expired. This answers the fourth question.

    When we come to consider the jurisdiction of the Secretary of the Interior over Indian trust allotments, his powers and duties in connection therewith, and particularly such matters as a determination of the heirs of deceased allottees, a sale or partition of the allotment, issuance of patents in fee to the heirs or to purchasers, etc., these rest largely on the act of June 25, 1910 (36 Stat., 855), which, in terms, gives the said Secretary exclusive jurisdiction over the estates of deceased allottees. Hallowell v. Commons (239 U.S., 506); Lane v. Mickadiet (241 U.S., 201). When we examine that statute, however, even section 1 of which is quite lengthy, we find therein certain limitations, as the following, taken from that act will disclose (pertinent provisions only reproduced):

    "When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent *     *     * the Secretary of the Interior *     *     * shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee; *     *     * if he shall decide one or more of the heirs to be incompetent, he may, in his discretion cause such lands to be sold; *     *     * provided, that if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent *     *     * to be set aside and patents in fee to be issued to them therefor *     *     * provided, that the proceeds of the sale of inherited lands shall be paid to such heir or heirs as may be competent and held in trust subject to use and expenditure during the trust period for such heir or heirs as may be incompetent, as their respective interests shall appear." [Italic supplied.]
    Standing alone and read literally, the expression, "before the issuance of a fee simple patent," would imply jurisdiction in the Secretary of the Interior to do those things provided for in the act at any time prior to actual issuance of the final patent, but when construed in conjunction with the language immediately preceding, "before the expiration of the trust period," it becomes manifest that these two elements are essential and must be coexistent. The conjunction used is "and," not "or," in other words, and to state the proposition negatively, the trust period must not have expired and a fee simple patent must not have issued. Absence of either results in a loss of jurisdiction. It could not successfully be contended that jurisdiction remains in the Secretary after the issuance of a patent in fee where such patent issues prior to the expiration of the trust period, as to which see the act of May 8, 1906 (34 Stat., 182). On the issuance of a patent of this kind the trust is thereby terminated, and likewise, when that period expires by operation of law the trust also terminates. Either contingency terminates the jurisdiction of the Secretary of the Interior over the subject matter. This is measurably reflected by the proviso last reproduced above from the act of 1910, which directs that the precedes derived from a sale of inherited Indian lands shall be paid to competent heirs and held in trust during the trust period for such heirs as may be incompetent.

    If any doubt remains about the matter we need only return to the organic acts under which these allotments are made and observe therein the plain congressional direction that the lands so allotted are to be held in trust for a definite period, at the expiration of which the fee is to be conveyed by patent to the allottee or to his heirs. Of what avail is a fixed period of trust, if on expiration of that period the administrative officers extend such trust indefinitely simply by declining to issue final patent, continuing in the meantime to exercise supervision and control? In Lane v. Mickadiet, supra, the Supreme Court says (page 207):

    "It is undoubted that the fee simple title to the lands embraced in the allotment had not passed from the United States, and that as expressly stated in the granting act, the land was held in trust by the United States for the benefit of the allottee to await the expiration of the trust period fixed by law when the duty



 

48

DEPARTMENT OF THE INTERIOR

APRIL 27, 1922

on the part of the United States of conveying the fee to the land would arise."

    Again, in several syllabi of Hallowell v. Commons, supra, holding that the Secretary has exclusive jurisdiction to determine the heirs of deceased Indian allottees, we find such expressions as "dying during the period in which an allotment"; "dying within the trust period"; all illustrative of the true intent.

    I am of the opinion, therefore, that on expiration of the trust period provided by law the jurisdiction previously resting in the Secretary of the Interior over such Indian allotments ceases, and that there then remains nothing to be done but the purely ministerial duty of casting the legal title on the person or persons to whom such title belongs. Accordingly the first and second questions are answered in the negative and the third question in the affirmative. In fact, in regard to the latter, this appears the logical thing to do, i.e., issue final patent to the heirs generally without naming them or attempting to set up their respective interests in the estate. Otherwise, "newly discovered heirs" may arise after issuance of such patent, and it would then prove embarrassing to find that the outstanding fee patent issued by the Government had named the heirs and specifically set forth their respective interests in the estate. I regard the former as the safe rule to follow in practically all cases, regardless of whether the heirs have previously been determined by this Department, by the local courts, or remain undetermined. The trust having expired by operation of law and our jurisdiction over the land having terminated, issuance of the final patent to "Heirs of--" would leave the matter open for any adjustment that subsequent development might require.

    As to the fifth question, this is a matter cognizable primarily by the courts, for, finding as we have that jurisdiction over these allotments terminates automatically on expiration of the trust period, whether the allottee or his heirs then have power to make a valid conveyance of the land so allotted, prior to actual issuance of the final patent, is a matter for determination by the courts rather than by administrative officers of the Government. In this connection, however, it may be said that the fee to lands so allotted does not pass co instanti on expiration of the trust, as the law does not so provide. Necessarily, therefore, actual passage of the fee must await issuance of the final patent. The right to such patent, however, has been fully earned--become vested--so to speak, on expiration of the trust period and whether the courts will or will not uphold conveyances executed in the interim between the expiration of the trust and the issuance of final patent is purely speculative. They (the courts) may uphold such transactions by applying the doctrine of relation, as to which see Lomax v. Pickering (173 U.S., 27 et seq.); Barnett v. Kunkel (259 Fed., 399), and Anchor Oil Company v. Grey (41 Sup. Ct. Rep., 545). Not being a matter primarily for departmental determination, however, it is one regarding which I express no definite conclusion. We are concerned here only with the issuance of final patent, and having performed that duty we may well leave to the courts controversies involving the title between the patentees and their grantees. Should it develop, prior to issuance of final patent, that the allotment was founded on fraud or mistake in the first instance, administrative officers may then be justified in withholding final patent, for, as observed by the Supreme Court in Knight v. United States Land Association (142 U.S., 161, 178), it would be useless for the Secretary of the Interior to issue final patent and immediately thereafter to request the Attorney General to institute proceedings to set the patent aside. In the absence of some controlling reason, however, on the expiration of the trust period nothing then remains to be done but to cast the fee on the allottee, or on his heirs, as the case may be.

    My prior opinions of July 14 and August 8, 1921, regarding this matter are hereby overruled.

                                                                                                                                        EDWIN S. BOOTH,
                                                                                                                                                                   Solicitor.

Approved: ----------------------------

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

WINNEBAGO-TRIBAL FUNDS

M-7193                                                                                                                                                        April 29, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    On recommendation of the Commissioner of Indian Affairs, you request an expression of my views as to the disposition to be made of some $19,500 on deposit in the Treasury to the credit of the Winnebago Tribe, being the residue of tribal moneys be longing to those Indians.

    After inviting attention to the act of July 1, 1912 (37 Stat., 187), to be considered presently, the Commissioner states that the funds in question, as shown by the records of his office, arose as follows:
 


 

49

OPINIONS OF THE SOLICITOR

APRIL 29, 1922

Fulfilling treaties with the Winnebagoes, proceeds
    of lands (Minnesota), act of February 21, 1863
    (12 Stat., 659) . . . . . . . . . . . . . . . . . . . . . . . . . . $18,699.61

Proceeds of Winnebago Reservation, Minnesota,
    section 4, act of February 21, 1863 (12 Stat.,
    659) . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 100.00

Fulfilling treaties with Winnebagos, allotted
    lands, Nebraska, act of July 4, 1888 (25 Stat.,
    240) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762.63

    The act of 1912, supra, is entitled "An Act For the relief of Winnebago Indians in Nebraska and Wisconsin," and aside from its enacting clause, reads:
    That the Secretary of the Interior is hereby authorized when the amount of tribal funds due the Winnebagoes in Wisconsin shall have been ascertained, in accordance with the enrollment as hereinafter provided, to expend said funds for their benefit in such manner, including the purchase of lands for said Indians, as he may deem proper, or, in his discretion, to distribute said funds, or any part thereof, per capita among said Indians: Provided, That the Secretary of the Interior is hereby authorized to adjust the differences, not already provided for by statute, between the two branches of the tribe, arising from errors in the payment of annuities, and to settle the same before the final division of the trust funds is made: Provided, further, That a special census of the two branches of the Winnebago Tribe shall be taken as of June thirtieth, nineteen hundred and twelve, and that the final division of the capitalized funds of the tribe shall be based upon the number of persons belonging to each branch who are alive on that date. [Italic supplied.]
    This act is but cumulative legislation relating to the same matter, for in the Indian appropriation act of March 3, 1909 (35 Stat., 781-798), after directing that some $880,000 be placed to the credit of the Winnebago Indians, as the balance due this tribe pursuant to earlier understandings, the Secretary of the Interior was directed to cause a new enrollment to be made of all Winnebago Indians entitled to share therein, except those enrolled at the agency in Nebraska, as to whose enrollment doubtless sufficient records were then extant. On completion of that roll, the Secretary was further directed to distribute these funds per capita, except to the Winnebago Indians resident in Wisconsin, the shares due the latter to be held in the Treasury pending further legislation.

    The situation here will the better be appreciated if it is recalled that during earlier days, for motives into which we need not now go, the habitat of the Winnebagoes as a tribe was shifted from time to time as the westward march of civilization pressed ever onward. See 7 Stat., 370 and 1101; and 14 Stat., 671. Without tracing these various migrations in detail, sufficient to say that the main body of the tribe finally located on lands in what is now the State of Nebraska and where allotments in severalty have since been made to some 1,500 members of this tribe. As so frequently occurs when migrations of this kind are brought about, the entire membership did not always follow the parent body of the tribe, some individuals preferring to remain where they were then located, or else returned after a short stay in the new country. For manifest reasons it was desirable, during earlier times at least, to have the Indians of the various tribes located in as compact bodies as possible, and to this end earlier treaties and agreements frequently contained clauses in the nature of a penalty or forfeiture of tribal rights on the part of those members who failed to rejoin the main body of the tribe. Illustrative of this, see article 5 of the treaty of April 15, 1859 (12 Stat., 1103), with the Winnebago Indians, the concluding proviso of which reads:

    "Provided however, that those who do not rejoin and permanently reunite themselves with the tribe within one year from the date of ratification of this agreement, shall not be entitled to the benefit of any of its stipulations."

    Within later years, however, a more equitable policy prevailed, and, as to the Winnebagoes, as early as 1870 we find a proviso which reads--act of July 15, 1870 (16 Stat., 361):

    And the said Winnebago Indians, and all others being members of said tribe lawfully residing in the State of Minnesota shall hereafter be entitled to receive their pro rata distributive proportion of all annuities in goods, money or property, and any other moneys to which said tribe is or may be entitled under any law or treaty now in force, at their homes in Minnesota the same as though they had removed West and settled with the Western Winnebagoes.
    Again, the act of January 18, 1881 (21 Stat., 315), confirmed the right of the Winnebago Indians who remained in Wisconsin to select "homesteads" from the public lands in that State, and selections made by something over 400 members of this tribe were subsequently patented to them subject to certain restrictions against alienation. Section 3 of that act directed that future distribution of annuities due the Winnebago Indians should
 


 

50

DEPARTMENT OF THE INTERIOR

APRIL 29, 1922

be made on the basis of pro rata division between that portion of the tribe in Nebraska and that portion in Wisconsin, according to the number in each band as shown by the census to be made pursuant to the provisions of that act.

    With this brief recourse to the earlier legislative history relating to these people, we return to the act of July 1, 1912, and on reexamination find no difficulty in determining that it was designed to operate as a final division of the trust funds belonging to this tribe. It directed the preparation of a special census or roll of the two branches of this tribe (those in Nebraska and those in Wisconsin) as of June 30, 1912, and that the final division of their capitalized funds should be based upon the number of persons belonging to each band who were alive on that date. In other words, "a final roll" as of June 30, 1912. Based on such roll, the shares due the Winnebago Indians in Wisconsin could be expended for their benefit, or in the discretion of the Secretary of the Interior, paid to them per capita. This but removed the previous inhibition found in the act of March 3, 1909, directing that their funds be retained in the Treasury pending additional legislation by Congress.

    I find no authority under existing law to add to these Winnebago rolls the names of any children born since June 30, 1912, and I am of the opinion that the residue of tribal funds now in the Treasury is to be divided between the two branches of this tribe and distributed per capita as shown by the final roll prepared, or expended for their benefit, in the discretion of the Secretary of the Interior, pursuant to the provisions of the act of July 1, 1912.

                                                                                                                                            EDWIN S. BOOTH,
                                                                                                                                                                        Solicitor.

FT. BELKNAP--CHANGES IN
ALLOTMENT ROLL

M-7599                                                                                                                                                           June 9, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    There has been referred to me for opinion a question submitted by the Indian Office as to whether the Secretary of the Interior is authorized to make changes in the allotment roll of Indians of the Fort Belknap Reservation, Montana.

    The roll approved by the Department January 9, 1922, was prepared by a commission appointed in pursuance of section 1 of the special act of March 3, 1921 (41 Stat., 1355), which provides in part:

    That within one year from the date of approval of this Act the Secretary of the Interior shall appoint a commission of three persons, two of them shall be members of the Gros Vontre and Assiniboine Tribes of Indians and one member an employee of the Interior Department, who shall cause to be prepared, in such manner as they may deem advisable, a complete and final roll, to contain the names of all Indians ascertained to have rights on the Fort Belknap Reservation, Montana. Immediately upon the approval of the said roll which shall be the conclusive and final evidence of the right of any Indian of the reservation to an allotment of land, the Secretary of the Interior is hereby authorized and directed to allot pro rata, under rules and regulations and in such areas and classes of lands as may be prescribed by him, among such enrolled Indians all the unreserved and otherwise undisposed-of lands on the Fort Belknap Reservation. *     *     *
    The act requires the appointment of an enrollment commission within one year from the date of its approval, but it does not prescribe any time limit within which the roll must be completed and it appears that the actual allotment of the reservation has not as yet been made. The question submitted is apparently in view of that provision of the act which declares "immediately upon the approval of the said roll which shall be the conclusive and final evidence of the right of any Indian of the reservation to an allotment of land" etc.

    The further provisions of the act show that the authority and jurisdiction of the Secretary of the Interior do not end with the preparation and approval of the roll. Allotments of land are to be made and trust patents issued to allottees. In other words the Secretary's jurisdiction continues until he has performed the final acts authorized by law.

    In December, 1914, the Solicitor for this Department expressed opinion on legislation contained in the Indian appropriation act of that year (38 Stat., 582, 605), which provided:

    That within ninety days after the approval of this Act a complete roll of the unallotted members of the La Pointe or Bad River Band of Chippewa Indians, of the State of Wisconsin, entitled to allotments under existing laws on the Bad River Reservation, shall be made and completed by the Secretary of the Interior with the assistance of a committee of members

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