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276

DEPARTMENT OF THE INTERIOR

SEPTEMBER 16, 1931

vision of lands and consolidation, as referred to above. However, in the meantime, the Senate Committee on Indian Affairs has formally requested that action be deferred in the matter until the committee has opportunity to further investigate the rights of the Indians; also it appears the view was informally expressed by members of the Sub-Committee of the Senate Committee on Indian Affairs during its recent trip through the Southwest that before active steps are actually taken toward effecting the division and consolidation, that the validity of the railroad title under the original granting Act of July 27, 1866, supra, be formally passed upon by the Attorney General.

    The record discloses that the question now submitted and related questions have received the consideration of the Department on a number of occasions during the past 12 years.

    In so far as the immediate question is concerned, it first received careful consideration in 1919 when the Commissioner of the General Land Office by letter dated April 19 of that year, requested instructions concerning the survey of lands within the primary limits of the portion of the grant within the boundaries of this reservation. On April 26, 1919, the matter was submitted to the Commissioner of Indian Affairs with direction to report as to whether funds were available to cover the portion of the cost of the survey to be borne by the Government. On May 13, 1919, the Commissioner, in his reply, objected to the making of the survey and requested authority to prepare a letter to the Attorney General with the view to having steps taken through the courts to quiet any alleged claims of the Atlantic & Pacific Railroad Company and its successor in interest, the Santa Fe Pacific Railroad Company, to any land within the boundaries of the reservation on the ground that said lands were not within the grant to the railroad company; that they did not have the status of public lands within the meaning of the granting act; that they were subject to "other claims or rights", and that they were "reserved" from other disposition at that time owing to long-continued use and occupancy by the Indians. The record shows that the matter was carefully considered by the Department, after which, on October 2, 1919, the First Assistant Secretary advised the Commissioner of the General Land Office that the survey might properly proceed and that funds were available for paying the Government's share of the cost of the proposed survey.

    In that letter it was stated:

    Your letter was referred to the Commissioner of Indian Affairs for report, and in his reply of May 13, 1919, the position is taken that the lands in question were excepted from the railroad grant by reason of the prior use and occupancy of the Indians, notwithstanding the fact that the grant to the company and the definite location of the road were prior to the establishment of the Indian Reservation.

    This matter has been given very careful consideration in connection with extensive memoranda subsequently prepared on the subject, and the conclusion reached that there is no such Indian claim as prevents the railroad grant from attaching to these lands; that the grant can be forfeited only by express Congressional action; that therefore the Executive order creating the Indian reservation did not deprive the railroad company of any rights to the lands; and that the claim of the railroad company can not be resisted on the ground of Indian use and occupancy prior to the grant. It has accordingly been determined that the survey of these lands may properly proceed.

    Under date of October 20, 1919, the First Assistant Secretary made demand on the company to deposit in a proper United States depository the sum of $30,000, determined to be sufficient to pay the cost of field and office work involved in surveying unsurveyed lands in the reservation, under penalty of proceedings for forfeiture of the grant in the event of default.

    On December 27, 1920, the Commissioner of Indian Affairs requested review of the case, and on January 26, 1920, the First Assistant Secretary advised him that the matter had been reviewed and that the unanimous conclusion of the officers of the Department was that "the railroad company has full, complete, and incontestable title to the odd numbered sections in this reservation and embraced in the grant limits." It was further stated that attention should now be directed to the consideration of the question of consolidating the lands into two parcels, for the Indians and the railroad company, respectively.

    The survey of the lands was completed and on September 28, 1922, plats of survey were transmitted to the Commissioner of Indian Affairs for his information, covering eight townships within the reservation.

    Subsequent consideration designed to promote the welfare of the Indians led to the enactment of the act of February 20, 1925 (43 Stat. 954), authorizing exchanges of Government and privately owned lands in the reservation with a view to facilitating consolidation of railroad and Indian lands, respectively.
 


 

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    As stated in the Assistant Commissioner's letter, suit was subsequently instituted by the United States in the District Court of the United States for the District of Arizona against the Atchison, Topeka & Santa Fe Railway Company on behalf of the Indians, involving title to Peach Springs, situated in Secs. 2 and 3, T. 23 N., R. 11 W., G. & S. R. M., within the boundaries of the reservation. That suit was terminated by stipulation entered into by counsel for the respective parties, and judgment and decree were duly entered July 7, 1931. On July 15, 1931, the Attorney General advised that his Department was now closing its files with respect to this litigation.

    It was decreed that the United States, for the use and benefit of the Walapai, or Hualapai, Indians, or tribe of Indians, owns absolute fee title to Secs. 2 and 3, subject only to the rights to be adjudged to the railway company to take and use water of Peach Springs, occurring in said sections, for railroad, domestic, and other uses and purposes, et cetera.

    The First Assistant Secretary, on July 30, 1931, acknowledged receipt of the Attorney General's letter and requested advice as to the validity of the title of the railway company to the odd-numbered sections within the reservation.

    It appears to be the intention to submit the matter formally for the opinion of the Attorney General, and request is now made as to my opinion of the validity of the railroad company's claim to the odd-numbered sections of land within the reservation under the granting act, and whether the Indians, through prior occupancy and possession of the lands, had a valid claim thereto which has never been extinguished. In effect, request is now made for a review of the departmental action heretofore taken.

    The lands are claimed by the railroad company under the grant made by the act of July 27, 1866, supra, to the Atlantic & Pacific Railroad Company, of which the present claimant is successor in interest. The date of the definite location of the road was March 12, 1872. The Walapai, or Hualapai, Indian Reservation was established by Executive order of January 4, 1883. The order reads as follows:

                                                                                                                                             EXECUTIVE MANSION,

January 4, 1883.
 
    It is hereby ordered that the following described tract of country, situated in the Territory of Arizona, be, and the same is hereby set aside and reserved for the use and occupancy of the Hualapai Indians, namely: Beginning at a point on the Colorado River five (5) miles eastward of Tinnakah Spring: thence south twenty (20) miles to crest of high mesa; thence south 40° east twenty-five (25) miles to a point of Music Mountains; thence east fifteen (15) miles; thence north 50° east thirty-five (35) miles; thence north thirty (30) miles to the Colorado River; thence along said river to the place of beginning, the southern boundary being at least two (2) miles south of Peach Spring, and the eastern boundary at least two (2) miles east of Pine Spring.

    All bearings and distances being approximate.

CHESTER A. ARTHUR.


     As the grant to the company and the definite location of the road were prior to the establishment of the Indian reservation, the question submitted is dependent on whether or not the lands in question were excepted from the railroad grant by reason of prior use and occupancy of the Indians. In so far as the record shows there was no treaty, act of Congress, or order by administrative officers purporting to reserve these lands prior to the date of the Executive order of January 4, 1883, other than that dated July 8, 1881, issued by Major General Willcox, Department Commander, setting aside, subject to the approval of the President, the area which was afterwards included in the Executive order. It should also be stated that the record discloses no cession of lands from these Indians to the United States.

    It appears from the reports of the Army officers and other sources that, at the time of the granting act, the Walapai Indians roamed the mountainous country of northwestern Arizona, including the lands afterwards embraced in the reservation. Efforts to place them under control met with vigorous resistance, but after operations covering several years, the Indians surrendered to the military authorities, and, in 1869, they were forcibly removed to a reservation on the lower Colorado River, created by act of Congress May 3, 1865 (13 Stat. 559). The reservation was unsuited to their wants and many of them died of disease, and, in 1875, they fled from the reservation and became wanderers and fugitives in the desolate mountain regions where they formerly roamed, part of which were later embraced in the Walapai Reservation. In July, 1881, the local military commander, at the request of the Indians, recommended to the Department Commander the creation of a reservation for their benefit as soon as practicable, and as a result the military order referred to was issued by the Department Commander.

    Various affidavits secured in accordance with stipulation of counsel in connection with the Peach
 


 

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Springs suit disclose some further information concerning the use of the waters of the springs on the reservation. It appears that, at the present time, there are only a few Indians on the reservation, most of them living at or near the Peach Springs station of the railway company. Most of them are living at the Walapai Indian School Reservation, a small reservation a few miles south, which was created on May 4, 1900, by President McKinley on lands conveyed by the railroad company.

    Section 3 of the act of July 27, 1866, supra, under which the railroad company bases its claim, reads in part as follows:

    That there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the commissioner of the general land office;
    Section 2 of the act contains the following provision:
    The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act.
    While the rights of the natives as occupants were generally respected by the European nations when they took possession of the American continent, they all asserted the ultimate dominion and title to be in themselves. Johnson v. McIntosh (8 Wheat 543); Hayt v. United States (38 Ct. Claims, 355). The same principle has generally been followed in the policy of the United States with respect to the rights of Indians growing out of their occupancy of lands within its borders. It has been generally recognized, however, that this right may be extinguished by the Government, which holds the fee, leaving the fee unincumbered to pass to a grantee of the Government, but it has been regarded as sacred and something not to be taken from the Indians without their consent and then upon such consideration as may be agreed upon. Leavenworth, Lawrence & Galveston Railroad Company v. United States (92 U.S. 733), Johnson v. McIntosh, supra, United States v. Lindahl (221 Fed. 143), Lone Wolf v. Hitchcock (187 U.S. 553), Minnesota v. Hitchcock (185 U.S. 373, 385).

    In the case of Leavenworth, Lawrence & Galveston Railroad Company v. United States, supra, it was held that where the right of an Indian tribe to the possession and use of certain lands as long as it may choose to occupy the same, is assured by treaty, a grant of them absolutely or cum onere by Congress to aid in the building of a railroad, violates an express stipulation, and a grant in general terms of "land", can not be construed to embrace them. This case involved a grant to the State of Kansas in aid of the construction of a railroad, and with respect to lands reserved for the Osage Indians, the court said:

    But did Congress intend that it should reach these lands? Its general terms neither include nor exclude them. Every alternate section designated by odd numbers, within certain defined limits, is granted; but only the public lands owned absolutely by the United States are subject to survey and division into sections, and to them alone this grant is applicable. It embraces such as could be sold and enjoyed, and not those which the Indians, pursuant to treaty stipulations, were left free to occupy.
    The case of Minnesota v. Hitchcock, supra, involved lands claimed to be within a school grant to the State. The court decided in that case that the general scope of the legislation in these matters and the policy of the United States in respect to its public schools and also to the Indians sustained the contention that none of these Indian lands passed under the school grant to the State.
    Whether this tract, which was known as the Red Lake Indian reservation, was properly called a reservation, as the defendant contends, or unceded Indian country, as the plaintiff insists, is a matter of little moment. Confessedly the fee of the land was in the United States, subject to a right of occupancy by the

 

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Indians. That fee the Government might convey, and whenever the Indian right of occupancy was terminated (if such termination was absolute and unconditional) the grantee of the fee would acquire a perfect and unburdened title and right of possession. At the same time, the Indians' right of occupancy has always been held to be sacred; something not to be taken from him except by his consent; and then upon such consideration as should be agreed upon.


                    *                                *                                *                                *                                *

    Yet if it was necessary to determine the question we should have little doubt that this was a reservation within the accepted meaning of the term.
                    *                                *                                *                                *                                *
    Of course, when the Indian tribe has been removed by treaty from one body of land to an other the interest of the tribe in the land from which it has been removed ceases and the full obligation of the Government to the Indians is satisfied when the pecuniary or real estate consideration for the cession is secured to them. But in some instances, and this is one of them, the Indians have not been removed from one reservation to another, but the Government has proceeded upon the theory that the time has come when efforts shall be made to civilize and fit them for citizenship. Allotments are made in severalty, and something attempted more than provision for the material wants of the Indians. In construing provisions designed for their education and civilization as fully if not more than in construing provisions for their material wants, is it a duty to secure to the Indians all that by any fair construction of treaty or statute can be held to have been understood by them or intended by Congress.
    In the case of Northern Pacific Railway Company v. Winner (246 U.S. 283), it was held that lands opposite the line of the Northern Pacific Railway Company constituting an Indian reservation, when the line was definitely located, were not embraced in the grant of the odd-numbered sections made to the company by the act of July 2, 1864 (13 Stat. 365). On page 288, the court said:
    That the reservation was in fact made and the lands exclusively devoted to the use of the Indians from the date of the agreement of August, 1877, is beyond controversy; that no objection was ever made by his superiors to the action taken by Colonel Watkins is equally clear, and to hold that, for want of a formal approval by the Secretary of the Interior, all of the conduct of the Government and of the Indians in making and ratifying and in good faith carrying out the agreement between them, even to the extent of protecting the reservation by military forces from intrusion, is without effect, would be to subordinate the realities of the situation to mere form, for the delay in the issuing of the formal Executive Order of the President under the circumstances can be attributed only to the exigencies of the public business;-by his representative, the Secretary of the Interior, he had approved the setting apart of the lands to the use of the Indians almost three years before. The judgment of the Circuit Court of Appeals will be affirmed for the reason that the Spokane Indian Reservation was lawfully created prior to the filing of the plat of the line of the plaintiff company on October 4th, 1880.
    The cases hereinbefore cited, wherein it was held that the particular grant involved did not attach, concerned lands which had been reserved for the use of Indians, pursuant to treaty obligations, acts of Congress, or by proper administrative authority.

    With respect to unreserved lands, it has been the established policy of the Government, in dealing with unreserved lands actually occupied and improved by individual Indians, prior to initiation of rights under the various public land laws, to appropriately protect the interests of such individual holders.

    The caseof Cramer et al. v. United States (261 U.S. 219) held that lands definitely occupied by individual Indians were excepted from the Central Pacific grant of July 26, 1866 (14 Stat. 239), as lands "reserved * * *. or otherwise disposed of", and that such possessory rights, though not recognized by any statute or other formal governmental action of the time, were protected by the settled policy of the Government towards the Indians:

    Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States. Beecher v. Wetherby, 95 U.S. 517, 525; Minnesota v. Hitchcock, 185 U.S. 373, 385. It is true that this policy has had in view the original nomadic tribal occupancy, but it is likewise true that in its essential spirit it applies to individual Indian occupancy as well; and the reasons for maintaining it in the latter case would seem to be no less cogent, since such occupancy being of a fixed character lends support to another well understood policy, namely, that of inducing the Indian to



 

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forsake his wandering habits and adopt those of civilized life. That such individual occupancy is entitled to protection finds strong support in various rulings of the Interior Department, to which in land matters this Court has always given much weight. Midway Co. v. Eaton, 183 U.S. 602, 609; Hastings & Dakota R. R. Co. v. Whitney, 132 U.S. 357, 366. That department has exercised its authority by issuing instructions from time to time to its local officers to protect the holdings of non-reservation Indians against the efforts of white men to dispossess them.

    The court further stated that the rights of one who occupies part of a subdivision of public land without laying claim to or exercising dominion over the remainder, are confined to the part occupied.

  It is quiteclear that the question for decision in the Cramer case was not analogous to the one here presented. In that case the right of the Indian was based on occupancy of a specific tract and the improvement of same as an individual apart from any tribal relation. It is undoubtedly true that lands occupied by individual Walapais and improved by them prior to the date when the right of the railroad would otherwise attach, would be excluded from the grant. But there is no evidence of such individual occupancy present in this case as to any of the lands.

    Nor was there at the time of the granting act or at the time of the date of definite location of the line, any existent reservation affecting the lands in question which had been set aside for their use by treaty, act of Congress or Executive order. In fact, at the date of definite location, there were no Indians inhabiting this region of the country. They were residing at that time on the reservation along the lower Colorado River, which had been created for them by act of Congress.

    As a result of the conditions arising after their unauthorized return to this region, the reservation was created for their protection and welfare.

    While the available information bearing upon the question of use and occupancy of the lands now embraced in the reservation prior to the time of the grant to the railroad company is meager and consists principally of the statements in the reports of the military authorities, it appears sufficient to support the conclusion of the Department heretofore reached. There is nothing to show that, prior to the time of the removal of the Indians from northwestern Arizona to the reservation created for them on the lower Colorado, there was such use and occupancy of the lands subsequently embraced in the reservation, separate and apart from the vast area of the public domain, to impress upon them the status of Indian lands. In any event, the fee was in the United States, and it was within the power of the Congress to transfer such lands without restriction, to terminate any right which they might have to further use and occupy the lands and to provide other lands for their use and occupancy. In my view, their removal to the reservation provided for their use by act of Congress under the circumstances disclosed by the reports, extinguished any right which they might have acquired to use and occupy any of these lands, and they became subject to disposition under the public land laws, unburdened with any title based on aboriginal occupancy.

    Viewed in its most favorable light, the information does not, in my opinion, establish an Indian title growing out of use and occupancy of the area which would defeat the grant to the railroad company. The lands were unoccupied public lands of the United States at the date of the definite location of the road on March 12, 1872, and, in consequence, the grant of the alternate or odd-numbered sections within that area attach as of that date. United States v. Southern Pacific Railroad Company (146 U.S. 570); Southern Pacific Railroad Company v. United States (183 U.S. 519). The rights of the Indians in lands within the boundaries of the reservation date from the Executive order of January 4, 1883, when the lands were set aside for their use and occupancy. The map of the definite location having been filed long prior to the creation of the reservation, it therefore appears that the views expressed in the letter of the First Assistant Secretary to the Commissioner of the General Land Office, dated October 2, 1919, to the effect that there was no such Indian claim as prevented the railroad grant from attaching to these lands, was correct. Furthermore, in subsequent legislation-act of February 20, 1925 (43 Stat. 954),-Congress gave tacit recognition to the rights of the railroad company to lands within the reservation under its grant when it authorized the Secretary to divide and consolidate the respective holdings of the Indians and private parties, in order that the Indian lands might be embraced in a large, compact body for their exclusive use and benefit.

                                                                                                                                                               E. C. FINNEY,

Solicitor.
Approved: September 16, 1931.
JOHN H. EDWARDS, Assistant Secretary.
 


 

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ALASKAN REINDEER ACQUISITION

M-26690                                                                                                                                      September 16, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    I have been requested to render an opinion in regard to the procedure to be followed in cases that have been brought to the attention of the General Reindeer Superintendent at Nome, Alaska, involving the acquisition of female reindeer by traders in settlement for bills incurred by the native owners.

    It is not practicable to formulate a satisfactory opinion on the general question, as the facts and circumstances of each particular case might be determinative of the procedure to be followed. The correspondence submitted with the request relates to a case about ten years old where female deer were turned over to a trader in satisfaction of bills incurred under most distressful circumstances. I could not recommend any action at this late date to recover the animals (or the value thereof) which were transferred to procure medical aid and sustenance for the immediate need of the natives. In such a case I think the long delay and the circumstances of the transaction would justify the presumption that the disposal was sanctioned by the property authority, or that the transaction should be condoned at this time and permitted to rest undisturbed.

    I do not find any restrictions in the regulations on the sale of male reindeer owned by the natives except as provided under contract with each apprentice, but there has always been a restriction on the sale of female reindeer. The last regulation, by order of October 2, 1929, provides:

    Female reindeer may be disposed of by a native of Alaska to any person upon the written approval in each instance of the General Supervisor of the Alaska Reindeer Service or his agent, provided each individual native owner must at all times retain at least 100 female deer for breeding purposes; reports of sales, transfers and slaughter shall be made to the General Supervisor on forms provided by him.
    I think this regulation may be enforced in a proper case by bringing suit to recover the animals illegally transferred, or the value thereof. But I am of the opinion that this regulation has application only in respect to animals concerning which the Government is authorized to act in behalf of the natives who may, in such connection, be regarded as wards of the Nation. The law as embodied in section 39, title 48, U.S. Code, contemplates that when practicable the reindeer owned by the United States shall be turned over to the natives, or to the missions, to be held and used under such conditions as the Secretary of the Interior shall prescribe. In respect to any such animals so turned over to the natives, as well as the increase of such animals, it is doubtless within the province of the Secretary of the Interior to control the disposal thereof by regulations. It may be, however, that natives in some instances have acquired female reindeer by their own labor or funds which could not be traced to a Government source, but which were obtained altogether independently of the Government. In such case it does not appear that the Government would have jurisdiction to interfere with any transfer thereof by the native, as I am not aware of any provision of law whereby any Government agency has been constituted general guardian for the natives so as to place any and all of their private property under control of the Government.

    Furthermore, I do not believe that the regulation as drawn would be applicable to a case where a native sells a male reindeer and with the proceeds buys a female reindeer, or where he trades a male reindeer for a female reindeer. He is permitted to dispose of male reindeer without restriction, except as may be provided by contract with apprentices, and it follows that he may do as he pleases with that which he receives in return for such transfer. I see no reason, however, why the regulation could not be amended to meet such a situation if deemed advisable from an administrative point of view.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: September 16, 1931.
JOHN H. EDWARDS, Acting Secretary.

TAXATION OF MINERAL PRODUCTION-
FIVE TRIBES

53 I.D. 502
M-26672                                                                                                                                  September 22, 1931.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to the right of the State of Oklahoma under section 3 of the act of May 10, 1928 (45 Stat. 495), to tax the royalty
 


 

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interests of members of the Five Civilized Tribes in the oil and gas produced from their restricted lands. Said section 3 reads:

    That all minerals, including oil and gas, produced on or after April 26, 1931, from restricted allotted lands of members of the Five Civilized Tribes of Oklahoma, or from inherited restricted lands of full-blood Indian heirs or devisees of such lands, shall be subject to all State and Federal taxes of every kind and character the same as those produced from lands owned by the other citizens of the State of Oklahoma; and the Secretary of the Interior is hereby authorized and directed to cause to be paid, from the individual Indian funds held under his supervision and control and belonging to the Indian owners of the lands, the tax or taxes so assessed against the royalty interest of the respective Indian owners in such oil, gas, and other mineral production.
    The above provision of law is free from ambiguity. In so far as it was within the power of Congress to so provide, the plain effect is to subject to both Federal and State taxation on and after April 26, 1931, all minerals produced from the restricted lands of members of the Five Civilized Tribes, including the royalty interests of the Indian owners. Bearing in mind, however, that it is beyond the power even of Congress to invade or impair vested rights, it becomes important, in determining whether the statute is effective to accomplish the plainly expressed purpose, to consider the rights of these Indians with regard to the taxability of their lands under prior legislation and treaties negotiated with them.

    The Five Civilized Tribes embrace the Choctaws, the Chickasaws, the Cherokees, the Creeks, and the Seminoles. Each of these tribes originally owned in common extensive areas of land in what is now the State of Oklahoma, which lands were allotted in severalty to the enrolled members of the tribes through agreements negotiated by a commission created for that purpose. (See sections 15 and 16, act of March 3, 1893, 27 Stat. 645.) Separate agreements were negotiated with each tribe but all were substantially the same in general outline and purpose, and provided in the main for relinquishment by the members of all claims to tribal property, in consideration of which they were to receive allotments of land in severalty subject to certain specified conditions.

    Part of the lands so allotted to each number was to be designated as a homestead and the remainder surplus.Exemption from taxation in varying degrees was granted as to certain lands in each agreement. The original Choctaw and Chickasaw agreement (section 29 of the act of June 28, 1898, 30 Stat. 495, 507, as modified by the act of July 1, 1902, 32 Stat. 641), provided that "all the lands allotted shall be nontaxable while the title remains in the original allottee but not to exceed 21 years from date of patent". Section 13 of the Cherokee agreement set forth in the act of July 1, 1902 (32 Stat. 716), declared that "during the time said homestead is held by the allottee the same shall be non-taxable and shall not be liable for any debt contracted by the owner thereof while so held by him". Section 7 of the original Creek agreement (act of March 3, 1901, 31 Stat. 861, 863), and section 16 of the supplemental agreement (act of June 30, 1902, 32 Stat. 500), provided that the lands allotted as homestead "should remain non-taxable" for 21 years from the date of the deed therefor. The original Seminole agreement ratified by the act of July 1, 1898 (30 Stat. 567, 568), provided that each allottee should designate one tract of 40 acres "which shall by the terms of the deed be made inalienable and nontaxable as a homestead in perpetuity."

    The grant of nontaxable land to the Choctaws and Chickasaws thus extended to both the homestead and surplus allotments, but the nontaxable grant in the case of the Creeks, the Cherokees and the Seminoles was confined to the homestead allotment, no provision being contained in the agreements with these three tribes for the exemption of the surplus allotments from taxation. In addition to the provision for tax exemption, however, each agreement imposed restrictions against the alienation of the allotted lands, both homestead and surplus, the effect of which was to withdraw the lands from State taxation during the period of restrictions. See Carpenter v. Shaw(280 U.S. 363, 366), United States v. Rickert (188 U.S. 432), United States v. Shock (187 Fed. 870).

    The periods of restriction fixed in the allotment agreements were not identical, but were subsequently made uniform by the acts of April 26, 1906 (34 Stat. 137), and May 27, 1908 (35 Stat. 312). The periods of restriction as fixed by these acts would have expired in the absence of further legislation by Congress on April 26, 1931. By reason of these restrictions against alienation, all of these lands, including the surplus allotments of the Cherokees, the Creeks and the Seminoles, were exempt from taxation for a period coextensive with the period of restrictions against alienation in addition to the specific provisions contained in the allotment agreements for the nontaxability of specified lands for stated periods.

    For the purpose of this opinion, therefore, the lands of these Indians must be divided into two
 


 

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classes. First, those lands to which an exemption from taxation has attached by the express provisions of the allotment agreements, and second, those lands to which the exemption from taxation attached, not by virtue of a grant of nontaxable land made by the original allotment agreement, but as an incident of the restrictions against alienation.

    As to the lands embraced in the first class, the Supreme Court of the United States in Choate v. Trapp (224 U.S. 665), has held, with respect to the grant of nontaxable land made by the Choctaw and Chickasaw agreement hereinbefore referred to, that such grant conferred upon the allottees property rights within the protection of the fifth amendment to the Federal Constitution and hence not subject to repeal or impairment by later congressional legislation. To the same effect in Gleason v.
Wood (224 U.S. 679), involving Choctaw lands; English v. Richardson (224 U.S. 680), involving Creek lands and Carpenter v. Shaw, supra.

    In the Carpenter v. Shaw case, decided January 6, 1930, the State of Oklahoma had undertaken under section 9814, Comp. Stats. Okla., 1921, to impose a tax of three per cent upon the gross value of the royalty interests of certain Choctaw Indians of less than half blood in oil and gas produced from lands granted to them as nontaxable under the original allotment agreement. The restrictions against alienation had been removed by the act of May 27, 1908, supra, with the declaration that such lands should thereupon become subject to taxation. In addition to this, section 3 of the act under consideration had expressly provided for the taxation by the State of such royalty interests. Notwithstanding all this, the Supreme Court held that the tax sought to be imposed was not a tax on oil and gas severed from the realty, but was a tax upon the right reserved in the Indians as lessors and owners of the fee and was forbidden by the tax exemption provision contained in the allotment
agreement. In so holding the Court said:

    Whatever was the meaning of the present exemption clause at the time of its adoption must be taken to be its effect now, since it may not be narrowed by any subsequently declared intention of Congress. Choate v. Trapp, supra. Having in mind the obvious purpose of the Atoka Agreement to protect the Indians from the burden of taxation with respect to their allotments and this applicable principle of construction, we think the provision that "the lands allotted shall be non-taxable while the title remains in the allottees" can not be taken to be restricted only to those taxes commonly known as land or real estate taxes, but must be deemed at least to embrace a tax assessed against the allottees with respect to a legal interest in their allotment less than the whole, acquired or retained by them by virtue of their ownership.

    Where a Federal right is concerned we are not bound by the characterization given to a State tax by State courts or legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the Federal right asserted. Choctaw Gulf R. Co. v. Harrison, supra; Galveston, H. & S.A.R. CO. v. Texas,210 U.S. 217, 227. We think it plain that the tax imposed on the royalty interest of the present petitioners is not a tax on oil and gas severed from the realty, but is, by its very terms, a tax upon the right reserved in them as lessors and owners of the fee. The tax is imposed on the "royalty interest * * * except such interests of the State of Oklahoma or such royalty interests as are exempted from taxation under the laws of the United States" and is made "a lien on such interest." It is in lieu of all other taxes "upon any property rights attached to or inherent in the right" to the specified minerals and "upon the mining rights and privileges for the minerals aforesaid belonging to or appertaining to the land."

    It sufficiently appears, were that controlling, that numerous decisions of the Oklahoma courts since the Atoka agreement have treated the royalty interest of the lessor as a right attached and incident to his ownership or reversionary interest in the land. Barnes v. Keys, 36 Okla. 6; Strawn v. Brady, 84 Okla. 66; Harris v. Brady, 136 Okla. 274; compare Rich v. Doneghy, 71 Okla. 204, and see Parker v. Riley, 250 U.S. 66. But even if this did not appear to be the case, an interest commonly so regarded and practically so associated with the use and enjoyment of the allotted lands could not, under the rule of liberal construction rightly invoked by the petitioners, be deemed excluded from the benefits of the exemption granted by section 29.

    Upon the principle stated and applied in the foregoing decisions, I am clearly of the opinion that all of the lands allotted to the members of the Five Civilized Tribes, made nontaxable by the provisions of the agreements under which the allotments were made, continue to be exempt in the hands of the Indian allottees from all forms of State taxation during the period provided for in such agreements, irrespective of subsequent legislation by Congress purporting to subject them to taxation, including section 3 of the act of May 10, 1928.
 


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 22, 1931

    As to the lands embraced in the second class, that is, those exempt from taxation as an incident of the restrictions against alienation, it is to be observed that at the time of the passage of the act of May 10, 1928, the restrictions and likewise the exemption from taxation would have terminated on April 26, 1931. Thereafter the lands would have been freely alienable, and likewise subject to taxation in the absence of some provision to the contrary by Congress. The restrictions against alienation by reason of which this class of lands was protected from taxation, did not constitute a vested property right but were in the nature of personal disabilities to be continued or dropped at the will of Congress. As stated by the Supreme Court in Choate v. Trapp, supra, "the right to remove the restriction 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."

    By section one of the act under consideration Congress did extend the restrictions against alienation for an additional period of 25 years, but in so doing that body saw fit to depart from its usual policy of relieving the lands from taxation by declaring in section three that all mineral production from the lands, including the royalty interest of the Indian owners should be subject to state and Federal taxation. In so far as the lands to which no vested right of immunity from taxation has attached are concerned, the legislation providing for the tax invaded no right of the Indians and was unquestionably a proper exercise of the plenary power possessed by Congress over the subject matter. See in this connection opinion of the Attorney General rendered November 4, 1921 (33 Ops. Atty. Gen. 60), upholding the validity of section 5 of the act of March 3, 1921 (41 Stat. 1251), authorizing the State of Oklahoma to tax the oil and gas production from Osage Indian lands, including the royalty interest of the Osage Tribe. In my opinion, therefore, the royalty interests of the Indians in the oil and gas produced from this class of lands became subject to taxation by the State of Oklahoma under the provisions of section 3 of the act of May 10, 1928, on and after April 26, 1931.

    A further question arising out of an apparent conflict between sections 3 and 4 of the act of May 10, 1928, remains to be considered. The latter section as amended by the act of May 24, 1928 (45 Stat. 733). reads:

    That on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of the Five Civilized Tribes in excess of one hundred and sixty acres shall be subject to taxation by the State of Oklahoma under and in accordance with the laws of that State, and in all respects as unrestricted and other lands; Provided, That the Indian owner of restricted land, if an adult and not legally incompetent, shall select from his restricted land a tract or tracts, not exceeding in the aggregate one hundred and sixty acres, to remain exempt from taxation, and shall file with the Superintendent of the Five Civilized Tribes a certificate designating and describing the tract or tracts so selected; Provided further, That in cases where such Indian fails, with two years from date hereof, to file such certificate, and in cases where the Indian owner is a minor or otherwise legally incompetent, the selection shall be made and certificate prepared by the Superintendent for the Five Civilized Tribes; and such certificate, whether by the Indian or by the Superintendent for the Five Civilized Tribes, shall be subject to approval by the Secretary of the Interior; and, when approved by the Secretary of the Interior shall be recorded in the office of the Superintendent for the Five Civilized Tribes, and in the county records of the county in which the land is situated; and said lands, designated and described in the approved certificates so recorded, shall remain exempt from taxation while the title remains in the Indian designated in such approved and recorded certificate, or in any full-blood Indian heir or devisee of the land: Provided, That the tax exemption shall not extend beyond the period of restrictions provided for in this Act: And provided further, That the tax-exempt land of any such Indian allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres.
    In section 3 Congress provided without qualification that all minerals produced from the restricted lands of these Indians should be subject to both State and Federal taxation. Section 4 declares that on and after April 26, 1931, all of such restricted lands, exclusive of 160 acres to be selected and designated by each Indian as therein provided shall be subject to taxation by the State of Oklahoma in accordance with the laws of that State and in all respects as unrestricted and other lands. As to the 160 acres so selected and designated, it was declared also without qualification that the same was to remain exempt from taxation "while the title remains in the Indian designated in such approved and recorded certificate or in any full-blood heir or devisee of the land." Under this latter provision, standing alone, it is clear that the designated 160-acre tract would be protected from the mineral
 


 

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OPINIONS OF THE SOLICITOR

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production tax as well as other forms of taxation. To so hold, however, is to reduce to mere surplusage the provisions of section 3 relating to the mineral production tax, inasmuch as the only lands remaining upon which that section could operate would be those in excess of the designated 160 acres, the taxation of which for all purposes, including the mineral production tax, was expressly provided for in section 4. No further provision for the taxation of the excess lands was necessary and hence it is obvious that section 3 was designated to accomplish some further purpose. That purpose, I think, was to subject to taxation on and after April 26, 1931, the mineral production from all of the restricted lands of these Indians, including the 160 acres designated under the provisions of section 4 above. In enacting said section 4, particularly the clause exempting designated lands from taxation, Congress doubtless had in mind the granting of an exemption from what is commonly known as land or real estate taxes as distinguished from a mineral tax such as provided for in section 3. Under this view, which harmonizes the two sections and gives effect to both and is thus in accord with well established rules of statutory construction (see 25 R.C.L., section 247, page 1006, and cases there cited), the lands designated as tax exempt under the provisions of section 4 above would be exempt from all forms of State taxation exclusive of the mineral production tax, to which production tax they would be subject save where protected therefrom by the doctrine announced in Choate v. Trapp, and Carpenter v. Shaw, supra.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved : September 22, 1931.
JOS. M. DIXON, First Assistant Secretary.

OSAGE FUNDS-FEDERAL SUPERVISION

M-26731                                                                                                                                          October 14, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    February 5, 1930, the Circuit Court of Appeals, Tenth Circuit, in Blackbird v. Commissioner of Internal Revenue (38 Fed. 2d 976), held that the in come of a restricted full-blood member of the Osage Tribe of Indians, derived from tribal sources, was not subject to taxation under the various Federal revenue acts. Under this decision, according to informal advice received by the Commissioner of Indian Affairs, a refund of certain moneys representing taxes paid upon the income of Martha Washington To-Wah-e-he, is about to be made by the Commissioner of Internal Revenue. It is expected that the money so refunded will be forwarded to the Superintendent of the Osage Indian Agency at Pawhuska, Oklahoma, and the Commissioner of Indian Affairs desires to know whether such moneys may be regarded as restricted funds; that is, subject to governmental control and supervision. At his suggestion, you request my opinion in the matter.

    Martha Washington To-wah-e-he is not a member of the Osage Tribe, but is a restricted member of the Cherokee Tribe in Oklahoma, enrolled upon the final rolls of that tribe as a half-blood under the name of Martha Washington Axe. She was legally married to To-wah-e-he, a full-blood Osage, who died testate August 4, 1916, leaving a valid will, under the provisions of which the wife, Martha, succeeded to his entire estate. This estate consisted, among other property, 1 1/2 shares in the Osage tribal income derived chiefly from leases of mineral deposits underlying the Osage reservation, which income is distributable quarterly pro rata among the enrolled members of the tribe, the shares of deceased members being paid to their heirs or devisees as the case may be. See act of June 28, 1906 (34 Stat. 539), as amended March 3, 1921 (41 Stat. 1249), and February 27, 1925 (43 Stat. 1008).

    The amount of the anticipated refund is not stated, nor is it shown when and by whom the income taxes were paid. This information is not regarded as essential, however, inasmuch as we are here concerned only with the status of moneys refunded on account of taxes paid upon the interest acquired by Martha Washington To-wah-e-he under the will of her deceased husband in the quarterly distributions of the Osage tribal income. The status of the moneys refunded, that is, whether restricted or unrestricted, is determined, of course, by the statusof the income from which paid. Such income in the hands of the testator clearly would have been restricted, he being a restricted full-blood Osage, but whether subject to like restrictions in the hands of his devisee, Martha, depends upon the operation of the will as effecting a removal of restrictions from Martha's interest in the quarterly distributions as and when made.

    The will was made and approved under authority of section 8 of the act of April 18, 1912 (37 Stat. 86), which reads:

    That any adult member of the Osage Tribe of Indians not mentally incompetent may dispose of any or all of his estate, real, personal. or mixed, including trust funds, from which



 

286

DEPARTMENT OF THE INTERIOR

OCTOBER 14, 1931

restrictions as to alienation have not been removed, by will, in accordance with the laws of the State of Oklahoma: Provided, That no such will shall be admitted to probate or have any validity unless approved before or after the death of the testator by the Secretary of the Interior.

    The Supreme Court of the United States in La Motte v. United States (254 U.S. 570), held that a devise of a direct or inherited restricted Osage allotments made pursuant to section 8 above, operates as a conveyance of the land free from all restrictions, and this notwithstanding the fact that the devisees were themselves restricted members of the Osage Tribe. That the same principle would apply to funds passing under such will appears to have been recognized by the Court in the following language:
    This provision is broadly written, is in terms applicable to restricted lands and funds, and enables the Indian to dispose of all or any part of his estate by will, in accordance with the state law, if his will be approved by the Secretary. True, it does not say that a disposal by an approved will shall put an end to existing restrictions, but that is an admissible, if not the necessary, conclusion from its words.
    In Yarhola v. Duling (207 Pac. 293) the Supreme Court of Oklahoma specifically ruled that restricted funds devised by will passed to an Indian devisee free from restrictions, saying:
    The next question for consideration is whether the funds sought to be loaned, being acquired by Yarhola by will, are unrestricted. The Supreme Court of the United States in the case of La Motte v. U.S., 254U.S. 570, 41 Sup. Ct. 204, 65 L. Ed. 410, held in substance that the devisee of restricted land by will, approved according to the act of Congress, operates as a conveyance of the land free from restrictions. By applying the same principle to restricted funds that were devised by will, executed in accordance with an act of Congress, the devisee would take the same free of restrictions. See,also, McKinney v. Bluford, supra,and Barlow v. Soldofsky, supra.We think the position of the defendant is well taken, and the probate attorney in his official capacity has no authority to appear in this case, nor did he have such right or authority to appear in the county court in his official capacity, for the reason the funds were unrestricted and not under the supervision or control of any agency of the United States.
    It appears from the record at hand that the doctrine announced in the foregoing decisions has been repeatedly invoked and followed by this Department with respect to the income of the Indian under consideration. August 9, 1926, the Commissioner of Indian Affairs, in a letter approved by the Assistant Secretary of the Interior on August 11, 1926, ruled upon authority of the La Motte decision that the funds of Martha Washington To-wah-e-he were unrestricted and directed the Superintendent of the Osage Indian Agency to turn over to Martha's legal guardian the funds then on hand or thereafter accruing to her credit. This decision was adhered to in a letter signed by the Commissioner on August 27 and approved by the Assistant Secretary of the Interior on September 2, 1926. Again, on October 24, 1930, the Department considered the question and advised the Commissioner of Indian Affairs, in a decision signed by the Assistant Secretary of the Interior, that the funds accruing to Martha were not subject to governmental control and supervision, and that the duty of the Department with respect thereto was a purely ministerial one of making payments to her as and when due. In that decision the Department, referring to the La Motte case, said:
    That decision, to be sure, dealt with lands, but the ruling announced appears toapply with equal force to funds. The authority to dispose of both classes of property is conferred by the same statute and if the effect of the will is to remove restrictions as to the one, the same result logically follows as to the other.
    The uniform holding of the Department over a period of years has thus been that the funds here involved are unrestricted and in accordance therewith all such funds have been released to the Indian or her duly appointed guardian for disposition by them free from governmental control and supervision.

    It is to be observed that the La Motte case was decided in January, 1921, prior to the enactment of the act of March 3, 1921 (41 Stat. 1249), which, as amended by the act of February 27, 1925 (43 Stat. 1008), places definite and specific restrictions upon the expenditure and disbursement of funds flowing to members of the Osage Tribe, whether accruing to them in their own right, or as heirs or devisees of deceased members. As to them, of course, the principle announced in the La Motte case no longer applies. But, as hereinbefore pointed out, Martha Washington To-wah-e-he is not a
 


 

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OPINIONS OF THE SOLICITOR

OCTOBER 20, 1931

member of the Osage Tribe, and the enactments referred to contain no specific provision for the provision of the income of Indians such as she. Ordinarily, this omission might not be regarded as necessarily fatal, as the power of the Secretary with respect to the Indians and their property is not always dependent upon express congressional authority. Rainbow v. Young (161 Fed. 835); Territory of Alaska v. Annette Island Packing Company (289 Ped. 671); United States v. McDaniel (7 Pet. 1). As a restricted member of the Cherokee Tribe, Martha may properly be regarded as in need of protection and it might well be urged that in the absence of some provision to the contrary, supervision naturally falls to the Secretary of the Interior. See in this connection Parker v. Richards (250 U.S. 235). It must be admitted, however, that had Congress intended to invest the Secretary with supervision over the income devised to Indians not members of the Osage Tribe, it would have been easy to so provide. Not having done so, it may be reasonably inferred that no such supervision was intended. The Department has uniformly so construed the law, and that construction not only is entitled to the most respectful consideration (see United States v. Moore,95 U.S. 763), but must be recognized as reasonably supported by the decisions in La Motte v. United Statesand Yarhola v. Duling, supra.

    While the matter is not free from difficulty, I am of the opinion under the circumstances presented that the funds in question can not be properly regarded as subject to governmental supervision and control.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: October 14, 1931.
JOS . M. DIXON, First Assistant Secretary.

DELEGATION BY SECRETARY--
MINISTERIAL OR CLERICAL ACT

M-26750                                                                                                                                         October 20, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Upon a recommendation of the Commissioner of Indian Affairs you have requested my opinion relative to the right of the Secretary of the Interior to delegate to a subordinate in the field certain action required under section 4 of the act of June 7, 1924 (43 Stat. 475, 476). For convenience the law in question is quoted as follows:

    That no part of the sum provided for herein shall be expanded for construction on account of any lands in private ownership until an appropriate repayment contract in accordance with the terms of this Act and, in form approved by the Secretary of the Interior, shall have been properly executed by a district organized under State law, embracing the lands in public or private ownership irrigable under the project, and the execution thereof shall have been confirmed by decree of a court of competent jurisdiction, which contract, among other things, shall contain an appraisal approved by the Secretary of the Interior, showing the present actual bona fide value of all such irrigable lands fixed without reference to the proposed construction of said San Carlos Dam, and shall provide that until one-half the construction charges against said lands shall have been fully paid, no sale of any such lands shall be valid unless and until the purchase price involved in such sale is approved by the Secretary of the Interior, and shall also provide that upon proof of fraudulent representation as to the true consideration involved in any such sale, the Secretary of the Interior is authorized to cancel the water right attaching to the land involved in such fraudulent sale; and all public lands irrigable under the project shall be entered subject to the conditions of this section which shall be applied thereto.
    The question requiring decision involves similar laws connected with the Kittitas project in the State of Washington under construction by the Bureau of Reclamation, pursuant to the act of June 17, 1902 (32 Stat. 388), the Vale, Owyhee and Baker projects in Oregon, and the Sun River project in Montana.

    The act of June 7, 1924, supra, appropriated $5,500,000 for the construction of Coolidge Dam in the canyon of the Gila River near San Carlos, Arizona. One of the provisions of the act required an appraisal of all land to be irrigated from the water stored and that "until one-half the construction charges against said land have been fully paid, no sale of any such lands shall be valid unless and until the purchase price involved in such sale is approved by the Secretary of the Interior."

    An employee of the field, Office of the Commissioner of Indian Affairs, has recommended that the Chief Clerk and Special Disbursing Agent on the San Carlos project be given authority to approve the purchase price involved in the land sales made on the project, and the question arises whether the Secretary of the Interior can delegate the authority
 


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 20, 1931

given to him by Congress to a subordinate living in the vicinity of the land.

    The general rule is, that an agent in whom is imposed trustor confidence, or who is required to exercise discretion or judgment may not entrust the performance of his duties to another without the consent of his principal, and since nearly all acts of agency involve discretion, the one clothed with authority to act for a principal must ordinarily perform the act himself and can not without the principal's consent, delegate it to another; or as is frequently stated, an agent can not delegate powers calling for the exercise of discretion, skill or judgment, or to do acts that are not merely clerical, mechanical or ministerial in their nature. It has been held that an agent appointed to lease or sell real estate can not delegate such authority. Where an agent is employed to do acts which do not call for the exercise of judgment or discretion or where he has exercised his discretion and determined upon the propriety of the act, he may delegate to a subagent the execution of the merely mechanical, clerical or ministerial acts involving no judgment or discretion.

    In carrying out the law of Congress the Secretary of the Interior is the administrative agent, and the ordinary rules of agency apply forcefully to him. The relation of an agent to his principal is ordinarily that of a fiduciary, and as such it is his duty in all dealings concerning or affecting the subject matter to act with the utmost good faith and loyalty for the furtherance and advancement of the interest of his principal.

    Where authority has been delegated by Congress to the head of a Department or to some assistant, the courts and the Comptroller General have held strictly to the necessity of direct authority being exercised by the officer who receives the grant. Hajdamacha v. Karmuth (23Fed. (2d) 958; Midland Oil Company v. Turner(179 Fed. 74, 76).

    There is a line of cases regarding the appointment and discharge of employees which hold in effect, that the power to appoint and remove being discretionary in character, such authority being vested in the head of a Department, it can not be delegated (26 Comp. Decs. 444); Burnap v. United States (252 U.S. 512; 4 Comp. Gen. 675). In the case of Low-Kwai v. Backus (229 Fed. 481), it is said that where the statute provides that if the Secretary of Commerce and Labor is satisfied that an alien is subject to deportation, he shall cause such alien to be taken into custody, etc. held that under the statute it is the Secretary who must be satisfied that the alien is subject to deportation, and where the Secretary apparently was not satisfied of such fact, he had no authority to authorize the Commissioner of Immigration to satisfy himself on this point and thus decide the question committed by Congress to the Secretary. Harris v. San Diego Flume Company (25 Pac. 758).

    On March 13, 1928, the Assistant Secretary had under consideration the authority vested in the Secretary of the Interior pursuant to section 4 of the act of March 15, 1894 (28 Stat. 312). This act provides:

    The Commissioner of Indian Affairs is authorized to advertise in the spring of each year for bids, and enter into contracts, subject to the approval of the Secretary of the Interior, for goods and supplies for the Indian Service required for the ensuing fiscal year * * *.
    The Assistant Secretary decided that the language used in the statute did not appear to be susceptible of the construction that such approval by the Secretary or an officer authorized to act in his stead can be waived or delegated to another, and that advance authority to enter into contracts under the law would not meet its requirement. It was also decided that to give validity to such contract it must be approved by the Secretary or an officer designated by him under authority of law to perform such duty. The duty thus imposed can not be otherwise delegated (4 Comp. Gen. 675).

    It is my opinion that the Secretary of the Interior can not delegate to anyone the approval of the purchase price involved in a sale of land on the San Carlos project, Arizona, as provided in the act of June 7, 1924, supra.

    There are some decided cases that point to a method of simplifying the action to be taken under the act. The difficulty encountered in administration is no reason for evading the law. It must be concluded that some delay will occur in making a report and transmitting it to the Secretary of the Interior, but expeditious action should be expected.

    In the case reported in 19 Comp. Decs. 628 it is said that the head of a Department may, in writing, authorize advertisement in general terms and at the same time direct some subordinate official to select the medium for the same (13 Comp. Dec. 446; 18 Comp. Dec. 531; 2 Comp. Gen. 459). The case in 19 Comp. Dec., had under consideration Sec. 3828, Revised Statutes, which is the act of June 15, 1870 (16 Stat. 308). This statute inhibited the publication of any advertisement or notice in any newspaper whatever except in pursuance of a written authority for such publication from the head of such Department. The decisions under this statute indicate that if the action required by the statute relative to the San Carlos project can be reduced to mechanical, clerical or ministerial acts by a field officer, there can be no legal objec-
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 3, 1931

tion to his designation to perform such acts. In the law first quoted, the important grant of power by Congress to the Secretary is the approval of the purchase price involved in the sale of land on the project prior to the time when more than one-half of the construction charge remains unpaid. If a plan can be devised whereby the Secretary of the Interior can exercise his judgment and discretion in a general way, and fix a maximum price for lands of similar quality, it is believed that approval could be given by the field employee to all sales of land made at a price equal to or less than the maximum designated.

    On the San Carlos project the lands prior to cultivation and improvement were similar in character and quality. The cost of a Government water right (the construction charge) will be equal for each acre, so it might be assumed that a maximum price could be fixed on appropriate appraisal duly approved by the Secretary of the Interior. Authority could then be delegated to a field agent to approve all sales where the consideration for the transfer did not exceed the price fixed in such approved appraisal.

    The judgment and discretion reposed in the Secretary of the Interior by the act of Congress must be exercised by him, but he can delegate to another the ministerial or clerical act involved in approving the sale of the land.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: October 20, 1931.
JOS. M. DIXON, First Assistant Secretary.

EFFECT OR LEGALITY OF A FEE SIMPLE PATENT APPLIED
FOR PRIOR TO BUT ISSUED SUBSEQUENT TO
ALLOTTEE'S DEATH

M-26882                                                                                                                                    November 3, 1931.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Upon request of the Commissioner of Indian Affairs there has been referred to me for an opinion "supplemental" to the Solicitor's opinion approved March 30, 1922, as to the effect or legality of a fee simple patent issued on an Indian allotment during the trust period in the name of the allottee who made application therefor but who died prior to the time such patent was issued.

    The case involved in the Solicitor's opinion of March 30, 1922, was that of Tony Blackbird, a Sioux Indian, who received an allotment on which the usual 25-year trust patent issued. Prior to the expiration of the trust period he applied for a fee simple patent which was issued but before this was done the allottee had died. The fact of the prior death of the allottee was not known when the patent was issued and upon ascertaining the fact patent was not "delivered" but was retained in the Indian Office. However, interested parties obtained a certified copy of the patent and had the same recorded, Conveyances to third parties from the widow and children of the deceased allottee were also placed of record against the land involved as well as mortgages or other incumbrances. The Solicitor held that the question as to whether under the circumstances the fee simple patent issued in the name of Tony Blackbird was void or voidable was one for the courts to determine; that the Secretary of the Interior is without power to cancel a fee simple patent once issued and placed of record, this being an exclusive function of the courts.

    The particular case involved in the Indian Office request for opinion is that of Catrina Chavez, a Shoshone Indian, who applied for fee simple patent June 4, 1918, and died November 1, 1918, leaving a husband and several children. It not being known at the time that she had died a fee simple patent was issued in her name December 11, 1919. The local court set apart the real property of the estate to the husband who on the same date deeded the land to his attorney.

    In connection with the present request for opinion the Indian Office refers to the act of February 26, 1927 (44 Stat. 1247) which was passed after the Solicitor's opinion in the Blackbird case and was amended by the act of February 21, 1931 (46 Stat. 1205). Said act of February 26, 1927, which authorizes the cancellation under certain conditions of fee simple patents to Indians for allotments held in trust by the United States provides:

    That the Secretary of the Interior is hereby authorized, in his discretion, to cancel any patent in fee simple issued to an Indian allottee or to his heirs before the end of the period of trust described in the original or trust patent issued to such allottee, or before the expiration of any extension of such period of trust by the President, where such patent in fee simple was issued without the consent or an application therefor by the allottee or by his heirs: Provided, That the patentee has not mortgaged or sold any part of the land described in such patent: Provided also, That upon cancellation of such patent in fee simple the land shall have the same status as though such fee patent had never been issued.

 

290

DEPARTMENT OF THE INTERIOR

NOVEMBER 20, 1931

    The amendatory act of 1931 contains practically the same language as follows:

    Where patents in fee have been issued for Indian allotments, during the trust period, without application by or consent of the patentees, and such patentees or Indian heirs have sold a part of the land included in the patents, or have mortgaged the lands or any part thereof, etc.
    The authority to cancel a fee simple patent under the prescribed conditions contained in the act of 1927 is expressly limited to a case where the patent was issued without the consent or an application by the allottee. For this reason the provisions of the act are not applicable to the facts of the instant case where an application was actually made by the allottee for a fee simple patent. The present case is controlled not by the act of February 26, 1927, or the amendatory act of 1931, but by section 2448, Revised Statutes, which 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 his life.
    The courts hold that the provisions of the above section are applicable to Indian allotments. Crews v. Burcham (1 Black 352, 356); United States v. Chase (245 U.S. 89, 101); and Larkin v. Paugh (276 U.S. 431, 438-9). It was held in the latter case:
    We conclude that by reason of this statute the fee simple patent to Greyhair, although issued 19 days after his death, operated to invest his "heirs, devisees or assignees" with the title, and divest the United States of it, "as if" the patent had been issued to him "during life." Of course those who received the title, whether heirs, devisees or assignees, took it as though it came from him, and not as if they were the immediate grantees of the United States. See Harris v. Bell 254 U.S. 103, 108. The statute leaves no room for doubt on this point.

    With the issue of the patent, the title not only passed from the United States but the prior trust and the incidental restriction against alienation were terminated. This put an end to the authority theretofore possessed by the Secretary of the Interior by reason of the trust and restriction-so that thereafter all questions pertaining to the title were subject to examination and determination by the courts, appropriately those in Nebraska, the land being there. Brown v. Hitchcock, 173 U.S. 473;Lanev. Mickadiet, 241 U.S. 201, 207, et seq.

    My opinion is that the fee simple patent in the case presented by the Indian Office was legally issued and that the situation presented by that office is not controlled by the act of February 26, 1927, or the amendatory act of February 21, 1931, authorizing the Secretary under certain conditions to cancel fee simple patents, but by the provisions of section 2448, Revised Statutes.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: November 3, 1931.
Jos. M. DIXON, First Assistant Secretary.

FINAL ROLLS OF THE CROW INDIAN TRIBE
OF MONTANA PREPARED UNDER ACT OF
JUNE 4, 1920 (41 STAT. 751)

M-26395                                                                                                                                 November 20, 1931.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Upon recommendation of the Commissioner of Indian Affairs my opinion is requested on certain questions arising in connection with the final rolls of the Crow Indian Tribe in Montana, prepared under the provisions of the act of June 4, 1920 (41 Stat. 751), entitled "An Act to provide for the allotment of lands of the Crow Tribe, for the distribution of tribal funds and for other purposes."

    The original reservation of the Crow Tribe was reduced in area by cessions made under three successive acts of Congress, each of which provided for allotments in severalty to the Indians and disposal of the unallotted lands under the public land laws. Bills were subsequently introduced in Congress, some looking to the reopening to public entry of the remaining tribal lands and others for the pro-rating instead of such lands among the members of the Crow Tribe. None of these bills was enacted and the matter culminated in the above act of June 4, 1920, section 1 of which authorizes the allotment of lands in severalty to the members of the Crow Tribe as follows:
 


 

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    * * * one hundred and sixty acres to the heirs of every enrolled member, entitled to allotment, who died unallotted after December 31, 1905, and before the passage of this Act; next, one hundred and sixty acres to every allotted member living at the date of the passage of this Act, who may then be the head of a family and has not received allotment as such head of a family; and thereafter to prorate the remaining unallotted allottable lands and allot them so that every enrolled member living on the date of the passage of this Act and entitled to allotment shall receive in the aggregate an equal share of the allottable tribal lands for his total allotment of land of the Crow Tribe. Allotments made hereunder shall vest title in the allottee subject only to existing tribal leases, which leases in no event shall be renewed or extended by the Secretary of the Interior after the passage of this Act, * * *.

    Section 3 of the act provides:
    That the Secretary of the Interior shall, as speedily as possible, after the passage of this Act, prepare a complete roll of the members of the Crow Tribe who died unallotted after December 31, 1905, and before the passage of this Act; also, a complete roll of the allotted members of the Crow Tribe who six months after the date hereof are living and are heads of families but have not received full allotments as such; also, a complete roll of the unallotted members of the tribe living six months after the approval of this Act who are entitled to allotments. Such rolls when completed shall be deemed the final allotment rolls of the Crow Tribe, on which allotment of all tribal lands and distribution of all tribal funds existing at said date shall be made.
    From casual examination it might appear that conflict exists between the provisions of sections 1 and 3 of the act of June 4, 1920, as to the various classes of allottees provided for therein, but a careful analysis of the situation made in the Solicitor's Opinion of November 22, 1921 (48 L.D. 479), in the case of Big Lark, a Crow Indian, shows that it is possible to reconcile or harmonize the two provisions. Section 11 of the same act after providing, among other expenditures, for the purchase of seed, animals, machinery, tools, implements, and other equipment for sale to individual members of the tribe, further provides:
    That after said sums have been reserved and set aside, together with a sufficient amount to pay all other expenses authorized by this Act, the balance of such consolidated fund, and all other funds to the credit of the tribe or placed to its credit thereafter, shall be distributed per capita to the Indians entitled.
    The foregoing was the situation so far as the present inquiry is concerned as it existed under the act of June 4, 1920, and before any further congressional legislation had been enacted. It was said, among other things, in the Solicitor's Opinion of November 22, 1921, supra, with respect to the finality of the rolls of the Crow Tribe as provided for in that act:
    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 prorated 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. * * *

    The act of May 19, 1926 (44 Stat. 566), provided for the allotment of lands to living children on the Crow Reservation, including lands theretofore opened to entry. Section 1 of the act reads as follows:
    That the Secretary of the Interior is hereby authorized to allot lands in severalty to children of the Crow Tribe, now living, not heretofore allotted, from any suitable lands belonging to the tribe now available for allotments, or which may became available, including any Crow lands heretofore opened to entry and sale.
    This section was amended by the act of May 2, 1928 (45 Stat. 482), by adding after the words "including any Crow lands opened to entry and sale" the following: "and to allot land to children hereafter born so long as there are lands of said tribe available for allotment purposes." Except for this addition the provisions of said section 1 remain the same.

    The act of June 4, 1920, supra, was amended by
 


 

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the act of May 26, 1926 (44 Stat. 658), the title of which is "An act to amend sections 1, 5, 6, 8 and 18 of an act approved June 4, 1920." The provisions of sections 5, 6, 8 and 18 have no decisive bearing in connection with the present inquiry. Section 1 of the act of 1920 is repeated verbatim in the amendatory act of May 26, 1926, the amendment consisting of the following addition thereto:

   Providedfurther, That any allottee classified as competent may lease his or her allotment or any part thereof and the allotments of minor children for farming and grazing purposes. Any adult incompetent Indian with the approval of the superintendent may lease his or her allotment or any part thereof and the allotments of minor children for farming and grazing purposes. The allotments of orphan minors shall be leased by the superintendent. Moneys received for or on behalf of all incompetent Indians and minor children shall be paid to the superintendent by the lessee for the benefit of said Indians. No lease shall be made for a period longer than five years. All leases made under this section shall be recorded at the Crow Agency.
    The questions submitted by the Indian Office for opinion are the following:
    1. Should the distribution of funds accruing from any source subsequent to six months after June 4, 1920, be limited to Indians whose names appear on the final rolls prepared under Section 3 of the Act of June 4, 1920?

    2. Should the names of after-born children living at the date of payment be added to the roll so that they will participate therein?

    3. Should the names of all enrollees who may have died before payment of any such subsequent accruals be eliminated from the roll?

    The questions involve the right of Crow children born since the closing of the final rolls, as provided for in the act of 1920, to participate in the distribution of the funds of the tribe. The act of May 19, 1926,supra, expressly authorizes allotments of land to Crow children born after the closing of the prior rolls, but nothing is said therein as to the right of the children to share in the distribution of tribal funds. It has been contended that such children are entitled to share in all the funds accruing to the tribe subsequent to December 4, 1920, the date the prior rolls became final and also all future accruals, on the theory that the act of 1920 contemplated that the rolls provided for therein were intended to be final only as to allotments of lands and the distribution of tribal funds "existing at that date"-December 4, 1920; in other words the contention being that as section 3 of the act of June 4, 1920, specifies that the distribution of all tribal funds "existing" six months after the date of the act should be paid to those on the final rolls and makes no provision for the distribution thereof, Congress must have intended when that section is taken in connection with section 11 of the act that such funds should be distributed in accordance with the usual practice as to per capita payments under a fluctuating roll, that is, eliminating the deaths and adding the births.

    However, a different view is possible under the legislation, that is, that Congress meant what it said in the act of 1920 in declaring the rolls of the tribe to be final and that the intention of the subsequent legislation was to limit the right of afterborn children to allotments of land only-it was not also the intention that they share in the distribution of funds as fixed by section 3 of said act. If the theory advanced were following the adding of the names of new-born children and striking off the names of enrolled members who have died would virtually require a new roll at the time each payment is made. To adopt such a course would clearly be inconsistent with the declared finality of the rolls in the act of 1920, a course that could only be justified in accordance with express legislation. Besides, as the disposal of the bulk of the Crow property is controlled by the provisions of the act of June 4, 1920, declaring the rolls final, it is unlikely that Congress would provide a different method for the disposition of the comparatively small remaining property, thus necessitating two different rolls.

    Section 3 of the act of 1920 which declares: "Such rolls when completed shall be deemed the final allotment rolls of the Crow Tribe, on which allotment of all tribal lands and distribution of all tribal funds existing at said date shall be made," and section 11 of said act which declares: "That after said sums have been reserved and set aside, together with a sufficient amount to pay all other expenses authorized by this act, the balance of such consolidated funds, and all other funds to the credit of the tribe or placed to its credit thereafter, shall be distributed per capita to the Indians entitled, "were left undisturbed by the amendatory act of May 26, 1926, supra; consequently said sections remain conclusive and exclusive in the absence of subsequent legislation to the contrary as to who are entitled to share in the distribution of the tribal funds and the expression "to the Indians entitled" can refer to none other than those whose names appear on the final rolls provided for in the act of 1920. Of course funds would thereafter
 


 

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accrue and this fact is recognized in section 11. This section taken in connection with section 3 would itself seem to carry an explanation of the provision "to the Indians entitled," that is, after providing in section 3 which declares: "Such rolls when completed shall be deemed the final allotment rolls of the Crow Tribe, on which allotment of lands and the distribution of all tribal funds existing at such date shall be made," it was evidently realized that there would be accruals of funds thereafter, hence the provision in section 11-"and all other funds to the credit of the tribe or placed to its credit thereafter, shall be distributed per capita to the Indians entitled," which necessarily means the Indians appearing on the final rolls. It must be borne in mind that at the time of the act of 1920 not even the allotment of lands, much less the distribution of tribal funds to afterborn children was in contemplation. The act of May 26, 1926, as stated, left unchanged sections 3 and 11 of the act of 1920, but nothing was said as to the funds in that connection. Hence there is no significance in the provisions of section 3 of the act of 1920-"distribution of all tribal funds existing at said date"-as would warrant the conclusion that it was intended that the children for whom only allotments are provided in the act of May 19, 1926, should also share in the tribal funds. This is confirmed by section 11 of the act of 1920 when taken in connection with section 3 thereof, showing that the provision "to the Indians entitled" was not intended to include children living on May 19, 1926, for whom allotments of land only were provided for in said act. Furthermore, the act of May 19, 1926, authorizing allotments of land to children then living did not alter the situation existing under the provisions of the act of 1920 further than to provide for a class that would not otherwise have been entitled to either allotments of land or other tribal property.

    In view of the positive declaration as to the finality of the rolls made up under the act of 1920 and the fact that the act of May 19, 1926, only authorized the allotment in severalty of lands to children living on that date, with no mention of funds, it is fair to conclude that it was not the congressional intent in said act to grant to the children any other right than that of an allotment of land; that is, the distribution of funds accruing from any source subsequent to six months after June 4, 1920, should be limited to Indians whose names appear on the final rolls prepared under section 3 of the act of June 4, 1920. Accordingly the answer to the first question propounded by the Indian office is yes; and the answer to the second and third questions is no.

    As hereinbefore stated section 1 of the act of June 4, 1920, is set forth verbatim in the amendatory act of May 26, 1926. In this connection it may be said that apparently the sole object in view in amending said section was merely to extend to allottees thereunder a further privilege, namely, authorizing them to lease their allotments or any part thereof and the allotments of minor children for farming and grazing purposes. To accomplish the object it was evidently thought advisable, as has sometimes been done to repeat the provisions of the entire section, merely adding a proviso to cover the new matter. The method employed, however, was evidently not intended, nor did it have the effect, of moving forward the date of the qualifications of allotment from June 4, 1920, to May 26, 1926. To hold otherwise would be to nullify the declaration of Congress in section 3 of the act of 1920 that the rolls made up pursuant thereto should be the final allotment rolls of the tribe and require the making up of entirely new allotment rolls which should bear among others the names of children subsequently born and living on May 26, 1926, the date of the amendatory legislation. That this was not intended is plainly indicated by the fact that Congress in the act of May 19, 1926, regarded it necessary to enact special legislation authorizing allotments to such children, which special legislation was pending before Congress at the time the amendatory act of May 26, 1926, was under consideration and was enacted but seven days prior thereto; and that such was not the intention is further indicated by the fact that the provisions of the act of May 19, 1926, would otherwise have been unnecessary because children born between June 4, 1920, and the passage of the act of May 26, 1926, would already have been provided for.

    If the Indians are not satisfied with existing laws as construed herein their remedy is to apply to Congress for additional legislation.

                                                                                                                                                                E. C. FINNEY,

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

TAXABILITY OF HOMESTEAD ALLOTMENTS OF
MEMBERS OF THE OSAGE TRIBE

53 I.D. 564                                                                                                                                  November 28, 1931.

INDIAN LANDS-ALLOTMENT-CERTIFICATE OF COMPETENCY-
TAXATION-OSAGE TRIBE

    The termination of the period of exemption from taxation of homestead allotment of members of the Osage Tribe of one-half or more of Indian blood to whom certificates of competency have been issued is governed by subsection 7 of

 

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section 2 of the act of June 28, 1906, which declared that such allotments should become taxable 25 years from the date of its enactment, unless the allottee die sooner, in which event the homestead becomes immediately taxable.


INDIAN LANDS-ALLOTMENT-ALIENATION-TAXATION-
CONGRESS

    Congress has the power to forbid the alienation and at the same time permit taxation of Indian allotments or vice versa.


INDIAN LANDS-ALLOTMENT-CERTIFICATE OF COMPETENCY
TAXATION-OSAGE TRIBE

    The act of March 2, 1929, has no application to the question of exemption from taxation of homestead allotments of members of the Osage Tribe having less than one-half of Indian blood or of members of that tribe having more than one-half of Indian blood but to whom certificates of competency had been issued.


INDIAN LANDS-ALLOTMENT-CERTIFICATE OF COMPETENCY-
TAXATION-OSAGE TRIBE

    The act of March 2, 1929, is applicable to and extends the time of the termination of the period of exemption from taxation of homestead allotments of members of the Osage Tribe of one-half or more of Indian blood to whom certificates of competency had not been issued to January 1, 1959, where the title remains in the allottee or in his unallotted heirs or devisees of one-half or more of Osage Indian blood.


INDIAN LANDS-ALLOTMENT-CERTIFICATE OF COMPETENCY-
TAXATION-OSAGE TRIBE

    Under subdivision 4 of section 2 of the act of June 28, 1906, as modified by section 3 of the act of March 3, 1921, the homestead allotments of adult members of the Osage Tribe of less than one-half of Indian blood, to whom certificates of competency have not issued, became subject to taxation on and after April 8, 1931, if held by the original allottee on that date.


INDIAN LANDS-ALLOTMENT-CERTIFICATE OF COMPETENCY-
TAXATION-OSAGE TRIBE

    Whether the act of March 3, 1921, was effective to subject to taxation on and after April 8, 1931, homestead allotments of members of the Osage Tribe of less than one-half of Indian blood holding certificates of competency not decided.


FINNEY, Solicitor:

    You [Secretary of the Interior] have requested my opinion upon the following questions relating to the taxability of lands allotted as homesteads to certain members of the Osage Tribe of Indians in Oklahoma:

    (1) Does the period of exemption from taxation of the homestead of an Osage allottee of one-half or more Osage blood who has a certificate of competency end 25 years from the date of the act of June 28, 1906 (34 Stat. 539), or upon his death?

    (2) Is the period of exemption from taxation of such a homestead extended to January 1, 1959, by the act of March 2, 1929 (45 Stat. 1478, 1479)?

    (3) Is the taxable status of such a homestead similar to that of a member having less than one-half Osage blood under section 3 of the act of March 3, 1921 (41 Stat. 1249)?

    By the act of June 28, 1906 (34 Stat. 539), provision was made for the division and distribution of the lands and funds of the Osage Tribe among the enrolled members thereof. Of the tribal lands there were reserved from allotment certain parcels, some of which were used by the United States or the tribe, and others of which were used by individuals for the benefit of the tribe. From the remainder each member was allotted some 600 acres of land of which 160 acres were designated as a homestead and the balance surplus. The funds in trust were divided pro rata to be held for a period of 25 years subject to the supervision of the United States. The oil, gas, coal, and other minerals in all the lands were reserved for a like period for the benefit of the tribe. The surplus land was made inalienable for a period of 25 years, but nontaxable for only three years. As to the homestead, section 2, subdivision 4, of the act directed that the same "shall be inalienable and nontaxable until otherwise provided by act of Congress." The seventh subdivision of the same section empowered the Secretary of the Interior upon petition of any adult member of the tribe to issue to such member a certificate of competency-
authorizing him to sell and convey any of the lands deeded him by reason of this Act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee, if upon investigation, consideration, and examination of the request he shall find any such member fully competent and capable of transacting his or her own business and caring for his or her own individual affairs; Provided, That upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States. [Italics supplied.]
    The foregoing provision, in so far as pertains to alienability and taxability of the homestead is, it will be observed, at variance with subdivision 4, the
 


 

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latter providing that the homestead shall be inalienable and nontaxable until otherwise provided by Congress and the former that the homestead remain inalienable and nontaxable for a period of 25 years or during the life of the homestead allottee. This apparent conflict, however, has been considered and harmonized by our Federal courts, it being held that subdivision 4 applies only to the homestead allotments of members not having certificates of competency and that subsection 7 relates to those to whom certificates of competency have issued. See United States v. Aaron (183 Fed. 347, affirmed 204 Fed. 943); United States v. Board of Commissioners of Osage County (193 Fed. 485, affirmed 216 Fed. 883).

    The homestead allotments of Indians having certificates of competency were thus inalienable and nontaxable "for a period of 25 years or during the life of the homestead allottee." While this expression is somewhat loosely framed its meaning appears reasonably clear. The period of inalienability and nontaxability was not to run indefinitely so long as the allottees remained alive even beyond the 25-year period, but was to terminate upon the happening of either of the contingencies mentioned, that is to say, at the expiration of 25 years if allottee lived that long, or upon his death should he sooner die. This construction not only brings the period of restriction and taxability of the homestead in harmony with the period of governmental supervision uniformly provided for in the act of 1906, but is in accord with the view expressed by the court in United States v. Board of Commissioner, supra. The question in that case related to the taxability of the homestead allotments of members not having certificates of competency. It was urged that they were controlled by the provision in subdivision 7 of section 2, providing for nontaxability for a period of 25 years or during the life of the homestead allottee rather than subdivision 4 of section 2, providing that the homestead should remain inalienable and nontaxable until otherwise provided by Congress, and that therefore the exemption from taxation terminated in any event upon the death of the allottee, notwithstanding the fact that the 25-year period had not then expired. Answering this contention the court said (p. 488)-

    * * * But, in the view of this court, the homesteads are not taxable upon the death of the allottees unless certificates of competency are issued to them. Subdivisions 4 and 7 of section 2 should be construed together, and both harmonized and given effect. A conflict of terms is avoided by taking the former to refer to cases where the certificates are not issued and the latter to those where they have issued, and this is clearly the construction which should be adopted. The result is that the homesteads remain inalienable and nontaxable, in the absence of certificates, without further legislation, but, if the certificates issue to the allottees, then their homesteads are inalienable and nontaxable for 25 years, or during the life of the allottee. If not specified that the homesteads are, in these contingencies, alienable and taxable, but that they were intended to be so seems plain from the language used, if any definite purpose is to be assigned to the provisions, and if the policy is to obtain, as uniformly pursued, of advancing the Indians to independent citizenship, common incidents of which are the right to dispose of property and the duty to pay taxes for the support of government. [Italics supplied.]
    By subsequent legislation as found in section 3 of the act of March 3, 1921 (41 Stat. 1249), Congress removed all restrictions against the alienation of lands, both homestead and surplus, of adult Osages of less than one-half blood with the declaration that: "The homestead allotments of the members of the Osage Tribe shall not be subject to taxation if held by the original allottee prior to April 8, 1931." This provision is without importance here because, as held by the Circuit Court of Appeals in United States v. Mullendore (35 Fed. (2d) 78), it is confined to lands of Indians of less than one-half blood and has no bearing upon the homesteads of allottees having one-half or more Indian blood, the class with which we are here concerned.

    Under the act of 1906, therefore, the homestead allotments of members of this tribe of one-half or more Indian blood to whom certificates of competency have issued will, in my opinion, become taxable 25 years from the date of that enactment unless the allottee die before that time, in which event the homestead becomes immediately taxable. This answers the first question and brings us to a consideration of the second question as to whether the exemption from taxation attaching to such homestead allotments was extended by the act of March 2, 1929 (45 Stat. 1478, 1479), the pertinent provisions of which read:

    The lands, moneys, and other properties now or hereafter held in trust or under the supervision of the United States for the Osage Tribe of Indians, the members thereof, or their heirs and assigns, shall continue subject to such trust and supervision until January 1, 1959, unless otherwise provided by Act of Congress.

            *                                *                                *                                *                                *

    Homestead allotments of Osage Indians not



 

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having a certificate of competency shall remain exempt from taxation while the title remains in the original allottee of one-half or more Osage Indian blood and in his unallotted heirs or devisees of one-half or more of Osage Indian blood until January 1, 1959: Provided, That the tax-exempt land of any such Indian allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres.

    The provision first above quoted is of a general nature operating to continue the existing restrictions and incidental supervision of the United States over all the property of these Indians, whether real or personal, tribal or individual, until January 1, 1959. Under this broad language there can be no doubt, I think, that the restrictions against alienation of the lands allotted as homesteads to Indians of one-half or more Osage blood having certificates of competency were extended for the time stated in all cases where such restrictions had not already expired or otherwise have been removed. The ordinary and usual rule, to be sure, is that where Congress, in the execution of its policy towards the Indians, imposes for their protection restrictions against the alienation of their lands, such lands constitute an instrumentality of the Federal Government, and as such immune from taxation. See United States v. Rickert (188 U.S. 432); Carpenter v. Shaw (280 U.S. 363, 366), United States v. Shock (187 Fed. 870). But it is competent for Congress to vary this rule and it has repeatedly done so with respect to the Osages. A notable illustration of this is found in the act of 1906 under which the surplus lands were made inalienable for 25 years but taxable within 3 years. Again in the act of March 3, 1921, supra, the restrictions against alienation of the lands both homestead and surplus of adult members having less than one-half Osage blood were removed, but the exemption from taxation of the homestead allotments was expressly continued until April 8, 1931. The power of Congress to forbid alienation and at the same time permit taxation, or vice versa, was considered and upheld in United States v. Board of Commissioners, supra, wherein the court, referring to the status of the surplus lands of members of the Osage Tribe said (p. 490)-
    A question arises as to the soundness of a construction by which the surplus lands, although inalienable, may be subject to taxation. As already noticed, the powers of alienation and taxability generally are forbidden or authorized concurrently. But the subject is purely legislative, and no question can be raised as to the power of Congress to prescribe absolutely the time and terms for the exercise of both. Rainbow v. Young, 161 Fed. 835, C.C.A. 653. This being so, it may forbid one and authorize the other. It will be noted that subdivision 4 of section 2 declares the homesteads inalienable and nontaxable, but declares the surplus lands inalienable only, forcibly manifesting a purpose to permit the taxation of the latter in advance of alienation.
    The provision in the act of March 2, 1929, continuing restrictions and Federal supervision contains nothing relating expressly to the taxation of the homestead allotments of these Indians, and it can not be regarded as having any bearing upon that subject in view of the fact that Congress saw fit to deal specifically in that legislation with the taxation of such homesteads. This it did by enactment of the provision of law last above quoted which continues the exemption from taxation in terms so clear as to remove any doubt of congressional intent in the matter. The benefit of the continued exemption was extended only to Indians of the degree of blood mentioned-one-half or more-"not having a certificate of competency." The irresistible import of this language is that Indians having certificates of competency are excluded from the benefit of the exemption and that their lands in so far as taxation is concerned were to remain in the same status as before.

    Any lingering doubt about the intent of Congress is removed by the legislative history of the enactment which it is competent to consider in matters of this kind. See Work v. Bruffet (276 U.S. 560);United States v. Mullendore, supra. The measure was first introduced as H.R. 9294 and S. 2727. Numerous hearings were had, many objections were made, and numerous amendments suggested with the result that a substitute or compromise bill was drafted and introduced as H.R. 13407 and S. 2360. So far as material to the present issue, the compromise bill provided "homestead allotments shall remain exempt from taxation while the title remains in the allottee or in his unallotted heirs of one-half degree or more of Osage Indian blood until January 1, 1959." This provision, had it been enacted, would have continued the exemption from taxation attaching to homestead allotments, not only of Indians not having certificates of competency, but also of those to whom certificates of competency had issued. For this reason the Oklahoma delegation actively opposed the measure. Of interest in this connection is the statement contained in the minority views of Representative Howard appended to the report of the subcommittee on Indian Affairs, House of Representatives, on HR. 9294, as follows: "I suggest that the measure
 


 

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be so written that nontaxable land provided for shall only be granted to Indians without certificates of competency and that whenever lands descend to those of less than one-half blood that the nontaxable status cease." When the compromise bill was pending before the subcommittee of the Committee on Indian Affairs, United States Senate, Representative Howard appeared and objected, among other things, to any extension of the tax exemption on homesteads of Indians having certificates of competency and the amendment suggested by him is disclosed in the following discussion (see pages 5 and 6 of hearing before the Senate Subcommittee on S. 2360, February 20, 1929)-

    Senator Thomas. What is your recommendation as to that section?

    Representative Howard. On behalf of the Oklahoma delegation, I was asked to say-I am asking that on line 24, after the word "allotments", there be inserted the words "homestead allotments of Osage Indians not having a certificate of competency shall remain exempt from taxation."

    Senator Thomas. How would it read then? Representative Howard. It would read "homestead allotments of Osage Indians not having a certificate of competency shall remain exempt from taxation."

    A like amendment was suggested by Representative Hastings on the floor of the House with the statement (see volume 70, Congressional Record, page 2947)-
    My amendment is to require those who are free from Government's supervision and who are turned loose to be taxed and it will permit those of one-half or more Indian blood to whom certificates of competency have been issued to have their lands taxed.
    The bill was amended as suggested and as so amended passed both Houses of Congress and was finally enacted into law. The intent of Congress to exclude the homesteads of members of the Osage Tribe of one-half or more Indian blood to whom certificates of competency have issued from the benefit of the tax exemption extension is thus made plain. The taxation of such homesteads is therefore controlled by the provisions of the act of June 28, 1906, supra, under the provisions of which, as we have seen, the exemption terminates 25 years from June 28, 1906, or June 28, 1931, unless accelerated by the death of the allottee prior to that time. The second question is accordingly answered in the negative.

    Regarding the third question-whether the taxable status of the homestead of an allottee of one half or more Osage blood to whom a certificate of competency has issued is the same as that of a member of having less than one-half Osage blood-it is clear that the exemption from taxation in the latter case like the former, remained as before and was not extended by the act of March 2, 1929. Whether alike or not in other respects may be sufficiently answered by pointing out the situation with respect to the taxation of homestead allotments of members having less than one-half blood inasmuch as the taxable status of members having one-half or more blood to whom certificates of competency have issued, has already been determined. From the viewpoint of taxation, the homesteads of allottees of less than one-half blood must of necessity be divided into two classes: First, those not having certificates of competency, and second, those having certificates of competency. As to the first class, we have seen that the taxation of homestead allotments of all members of the Osage Tribe not having certificates of competency and regardless of degree of blood was originally controlled by subdivision 4, section 2 of the act of 1906, declaring that the homestead should remain inalienable and nontaxable until otherwise provided by Congress. As to them, therefore, no definite period of nonalienability and nontaxability was fixed, the matter being left for such further action as Congress saw fit to take. The restrictions against alienation of such homesteads belonging to adult allottees of less than half blood were subsequently removed by section 3 of the act of March 3, 1921, supra, but with the declaration that the lands should not be subject to taxation if held by the original allottee prior to April 8, 1931. As regards members not having certificates of competency of the degree of blood mentioned, this declaration fixing the tax-exemption period to expire on April 8, 1931, was within the power reserved by Congress in the act of 1906, and the exemption must, therefore, be held to have terminated upon the date fixed. See United States v. Mullendore, supra.

    With respect to the taxation of homesteads of members of the second class, that is those of less than one-half blood to whom certificates of competency had issued, Congress had provided in subdivision 7, section 2 of the act of 1906 that they should be inalienable and nontaxable for a period of 25 years, or during the life of the homestead allottee. Under that provision, as we have seen, the restrictions against alienation and the exemption from taxation continued until June 28, 1931, if the allottee lived that long. Upon the passage of the act of March 3, 1921, the restrictions against alienation of these homesteads were also removed, but
 


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 28, 1931

whether that act was effective to cut down the period of tax exemption from June 28, to April 8, 1931, presents a question of some difficulty unnecessary here to decide because it appears that in either event the lands would not be placed upon the tax rolls of the State until the fiscal year beginning July 1, 1931, and ending June 30, 1932. (See sections 9690 and 9719, Compiled Oklahoma Statutes 1921.)

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

RESTRICTIONS ON INHERITED
PERSONALTY

January 20, 1932.

Memorandum for Secretary Wilbur:

    You have presented to me for consideration the matter of the distribution of certain funds and securities now in the hands of the Department which were inherited by Ellen Wacoche, now Clinton, from her deceased husband, Benjamin Wacoche, full-blood Creek Indian. The funds and securities in question represent royalties derived from an oil and gas lease made during the lifetime of the allottee upon lands allotted to him and held under restrictions against alienation up to the time of his death.

    Mrs. Clinton has been adjudged by the courts of Oklahoma to inherit an undivided one-half interest in the entire estate. She is an unenrolled, unrestricted Indian of the half-blood. Under the provisions of section 9 of the act of May 27, 1908 (35 Stat. 312), as amended, the interest of Mrs. Clinton in the lands allotted to the decedent passed to her free from restrictions, a circumstance which, under my opinion of August 11, 1930, M. 26067, likewise entitled her to receive from the Government, free from restrictions, her share of the accumulated funds and securities in its hands. It was expressly so decided in your memorandum of January 13, 1932, with the direction that one-half of such funds and securities be turned over to Mrs. Clinton. It now transpires, however, that Mrs. Clinton has made assignments of her entire interest in this estate and that such assignments have been presented to you with demands for direct payments to the assignees on the ground that the property being unrestricted, distribution must be made in accordance with the assignments. A description of these assignments as they appear in the present record follows:

    (1) This is a contract dated February 18, 1930, by which "Ellen Wacoche" employed the firm of Wallace and Wallace to render all legal services necessary to establish her claim to an undivided one-half interest in the estate of Benjamin Wacoche for a contingent fee of 50 per cent and contains an express assignment to the attorneys of one-half of her entire interest in the estate, including cash and securities on hand at the time of Benjamin Wacoche's death, set up specifically in the assignment as $34,498.80 in cash and $87,000 in designated Government bonds and notes. The original of this instrument is not with the record. The copy submitted is typewritten and not certified. It purports to have been signed and acknowledged by both parties. The fee provided for in this contract, it may be said, has uniformly been regarded by this Department as excessive, but tested by the laws of the State of Oklahoma, the fee charged is lawful. See Sec. 4101, Comp. Okla. Stat. 1921.

    (2) This is an assignment by "Ellen Clinton, formerly Wacoche", to Harry Smith and John F. Raper of "one-half of all my share of the moneys and securities of the estate of Benjamin Wacoche, deceased". It was executed and acknowledged on November 30, 1931. The consideration recited is "for value received", the actual consideration not being stated.

    (3) This is an assignment by Messrs. Smith and Raper to one L. W. Duncan of the interest acquired by them under the foregoing assignment in the funds and securities here in question. It is executed and acknowledged under date of December 2, 1931. No consideration is shown other than "for value received."

    (4) This is an assignment executed July 25, 1931, by Creekmore Wallace for himself and the firm of Wallace & Wallace, not acknowledged, to J. N. Winford of "$3,037 of that part of the money of the estate of Benjamin Wacoche, deceased, which will become due to said Creekmore Wallace and Wallace & Wallace" under the contract and assignment of February 18, 1930. The consideration for this assignment appears to be the sum of $2,537 advanced by the assignees to be used in the compromise of then pending litigation.

    It is a familiar rule that every man has power over his own property to make any disposition of it he chooses except where restrained by public policy or rights of others, and the assignee under a voluntary assignment, usually becomes vested with all the rights which his assignee possessed with respect to the property transferred. These princi-
 


 

299

OPINIONS OF THE SOLICITOR

JANUARY 20, 1932

pies are fully recognized, but when we come to consider the binding effect of transfers such as that under consideration, it is well to bear in mind that we are dealing with a property in the hands of administrative officers of the Government. The uniform practice of this Department and likewise that of the General Accounting Office, so I am informed, is to deal only with the owner of said property and not to recognize assignments and transfers to others except where specifically authorized by existing law. This practice doubtless has its foundation in the general policy reflected by various provisions of the Revised Statutes and other Congressional enactments designed to protect the Government in the matter of all claims and demands against it. Speaking of this policy, the Supreme Court of the United States in Calhoun v. Massie (253 U.S. 170), said:

    "For nearly three-quarters of a century Congress has undertaken to control in some measure the conditions under which claims against the Government may be prosecuted. Its purpose has been in part to protect just claimants from extortion or improvident bargains and in part to protect the Treasury from frauds and imposition. See United States v. Van Leuven, 62 Fed. Rep. 52, 56. While recognizing the common need for the services of agents and attorneys in the presentation of such claims and that parties would often be denied the opportunity of securing such services if contingent fees were prohibited, Taylor v. Beniss, 110 U.S. 42, 45, Congress has manifested its belief that the causes which gave rise to laws against champerty and maintenance are persistent. By the enactment, from time to time, of laws prohibiting the assignment of claims and placing limitations upon the fees properly chargeable for services Congress has sought both to prevent the stirring up of unjust claims against the Government and to reduce the temptation to adopt improper methods of prosecution which contracts for large fees contingent upon Success have sometimes been supposed to encourage. The constitutionality of such legislation, although resembling in its nature the exercise of the police power, has long been settled (Marshall v. Baltimore & Ohio R.R. Co., 16 How. 314, 336; United States v. Hall, 98 U.S. 343, 354, 355; Ball v. Halsell, 161 U.S. 72, 82, 84)."
    Some of the statutes illustrative of this policy in Indian matters are sets. 2103, etc., R. S., regulating contracts with the Indian Tribes and individual Indians and prescribing the conditions of payment under such contracts, and Sec. 18 of the act of June 30, 1913 (38 Stat. 77, 97), declaring that no contract with any Indian where such contract relates to "the tribal funds or property in the hands of the United States" shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given.

    Sec. 3477, R. S., a statute of general application, by which transfers and assignments of all claims against the United States are prohibited unless made in the manner therein prescribed, needs some consideration. The evils aimed at by this enactment, as repeatedly set forth in court decisions, are the danger that the rights of the Government might be embarrassed by having to deal with a multiplicity of demands instead of one by the introduction of parties who were strangers to the original transaction and the danger that, by the transfer of a claim against the Government, the way might be conveniently opened to improper influences in prosecuting the claim before the Departments, the courts, or the Congress. See Hager v. Swayne (149 U.S. 242); Seaboard Air Line Railway v. United States (256 U.S. 655); Goodman v. Niblach (102 U.S. 556). Speaking of the scope and effect of Sec. 3477, Mr. Justice Strong in United States v. Gillis (95 U.S. 413) said:

    "No language could be broader or more emphatic than these enactments. The words embrace every claim against the United States, however arising, of whatever nature it may be, and wherever and whenever presented."
    The language just quoted was approved in Spofford v. Kirk (97 U.S. 488), and the court, continuing further, said:
    "It would seem to be impossible to use language more comprehensive than this. It embraces alike legal and equitable assignments. It includes powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof. It strikes at every derivative interest, in whatever form acquired, and incapacitates every claimant upon the government from creating an interest in the claim in any other than himself."
    To these decisions may be added the decision of the Comptroller General of June 9, 1927 (6 Comp. Dec. 810), declining to recognize an assignment made by a company of moneys in the hands of the Government representing an overpayment of certain duties and in which the Government, of course, had no interest other than to return the same to the
 


 

300

DEPARTMENT OF THE INTERIOR

JANUARY 20, 1932

person entitled thereto. Construing the word "claim" as used in Sec. 3477:

    "The word 'claim' as used in section 3477, Revised Statutes, embraces all claims against the United States of whatsoever character and comprehends all demands upon the United States, whether made for liquidated or unliquidated claims, 4 Comp. Dec. 496; United States v. Gillis, 95 U.S. 413; Spofford v. Kirk, 97 id. 488; and the claim of the New York Board of Fire Underwriters against the importing company, which is the subject of the claimed assignment here in question, involves a payment to be made by the United States, and consequently is such a claim upon the United States as is contemplated under the statute."
    It does not appear that the question of whether a demand by an Indian whose restrictions have been removed for funds in the hands of administrative officers of the Government is a claim against the United States within the meaning of Sec. 3477 has been presented to the courts for consideration. It may be persuasively argued that it is not. Assuming but not conceding, that it is not such a claim, is it to be admitted as a matter of law that no valid reason can be assigned why anyone having a claim to funds in the hands of administrative officers of the Government may not assign any part or amount of such claim as may suit his pleasure or necessities, thereby involving the Government in the vexatious task not only of determining the legality of the transfers but also of ascertaining to whom and in what proportions payments should be made? The mischiefs which Sec. 3477 was designed to remedy are unquestionably as much present in such a case as in the case of direct claims against the Government. A specific statutory inhibition is not always necessary. Thus, in Buchanan v. Alexander (4 How. 20), the Supreme Court of the United States held that moneys in the hands of disbursing officers of the Government are not subject to attachment or garnishment, although there was no specific statute prohibiting it, the decision resting upon the grounds of public policy. See also Manwell v. Grimes (149 Pac. 1182); White v. Wright (1 Pac. 2d 668); 13 Op. Atty. Gen. 567; 23 Comp. Dec. 678). In the White-Wright case, funds belonging to a white woman inherited from her deceased Osage husband, were involved, and the court said, among other things:
    "In the last analysis, we see nothing but what is in effect an effort to assert a claim against the United States, as the garnishment proceedings, while running against the officers individually, seek to hold the officers for what they hold officially, and to hold them liable would be to dictate how, when, and in what manner, the governmental duty of the United States should be performed. This cannot be done, because the government cannot be subject to garnishment, nor can it be done indirectly by subjecting its servants to process. Manwell v. Grimes, supra; Clark v. Board of Com'rs of Osage County, 62 Okl. 7, 161 Pac. 791, L. R. A. 19178, 1269; Buchanan v. Alexander supra; Rood on Garnishment, Sets. 25 and 26, pages 32 and 33."
    Again, in the recent case of Taylor v. Tayrien (51 Fed. 2d 884), the Circuit Court of Appeals, Tenth Circuit, held that the right of an Osage Indian of less than one-half blood having a certificate of competency to share in the periodical distribution of the Osage tribal income, was not transferable and did not pass to his trustee in bankruptcy. To the same effect is Taylor v. Jones (51 Fed. 2d 892) , involving the income inherited by a Kaw Indian of less than the half-blood having a certificate of competency. In neither of these latter two cases was there any express statutory inhibition against assignments or transfers.

    In view of the foregoing, I am of the opinion that the assignments under consideration can not be regarded as binding to the extent of imposing upon administrative officers of the Government having the custody of the property transferred, the positive and mandatory duty of making payments direct to the assignees.

    I find, however, upon examination of the assignments above referred to, that all of them, with the exception of the assignment from Wallace and Wallace to Winford, contain powers of attorney authorizing the assignee to make collection from the Department to the extent of the interests assigned. The assignment to Winford, in the execution of which he joined, likewise contains a power of attorney, but in that case the power runs to Creekmore Wallace of the firm of Wallace and Wallace. It has been held by the Supreme Court of the United States that the payment of a claim by the Government to one authorized to receive it by power of attorney is good as between the government and the claimant. See United States v. Bailey (109 U.S. 432). In this case, however, one of the assignees, L. W. Duncan, claims under an assignment not directly from Mrs. Clinton, but from her assignees, Raper and Smith, and hence Mr. Duncan has no power of attorney from Mrs. Clinton. In addition to this all of the powers are inseparably connected with the assignments of
 


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