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which they are part and their validity depends upon the legality of such assignments which this Department, in the nature of things, is not in position to determine. Under such circumstances, if delivery of Mrs. Clinton's share in this estate is to be made to the assignees, it may safely be done only under new powers of attorney executed by her authorizing the assignees to receive and collect the same to the extent of their interests. If such powers be furnished, the practice of the General Accounting Office in making payments of moneys in the hands of the government under such powers, which, I am informed, is to draw check in favor of the original claimant and forward the same in care of the agent, should be followed. Under this procedure, it would be proper to draw two checks, payable to the order of Mrs. Clinton, each covering one-half of her share in the cash on hand, one of which may be delivered to Mr. Duncan and the other to Wallace and Wallace, provided they have furnished new powers of attorney as suggested above. The same plan of distribution may be followed with respect to the government bonds and notes. I find from the records of the Indian Office that securities aggregating $82,000 are registered in the name of the Secretary of the Interior in trust for Benjamin Wacoche and are held for safekeeping in the Treasury Department. That part of these securities representing Mrs. Clinton's share may be assigned by you to her or assigned to the Secretary of the Treasury for reissue in the name of Mrs. Clinton. Delivery thereof may then be made to the attorneys in fact subject to the conditions stated above. Receipts in full and releases of all claims or demands against the government, its officers, or agents, should, of course, be taken, and care should be exercised to see that all lawful demands against the estate of Benjamin Wacoche have been paid before distribution is made. This latter suggestion is made because of the following direction contained in the order of distribution made August 28, 1931, bythe County Court in the estate of Benjamin Wacoche:

    "IT IS FURTHER ORDERED AND ADJUDGED that in the proportions above set forth, to wit: one-half to Ellen Clinton, formerly Ellen McKinney, formerly Wacoche, and one sixth each to Aggie Fox, Eliza Conner and Alex Wacoche, the said heirs, are entitled to immediate distribution of the moneys and securities of the estate of Benjamin Wacoche, deceased, now in the hands of the Secretary of the Interior, his officers and agents, less the expenses of administration and that the Secretary of Interior, his officers and agents, be and they are hereby authorized to make such distribution of said funds, less such sums for expenses for administration as shall hereafter be certified to the Superintendent of the Five Civilized Tribes by this Court."
    If the assignees are unable to meet the above conditions, then delivery of Mrs. Clinton's share in the funds and securities in question should be made to the administrator of the estate of Benjamin Wacoche for appropriate distribution.
Solicitor.
STATUS OF BOARD OF INDIAN COMMISSIONERS

Opinion, February 3, 1932

53 I.D. 589

BOARD OF INDIAN COMMISSIONERS-DEPARTMENT OF THE
INTERIOR-JURISDICTION

    The Board of Indian Commissioners created by the act of April 10, 1869, although provided for by appropriations included in the acts covering the Indian Service, nevertheless is independent of any department or bureau of the Government, and the selection and compensation of its personnel are matters not subject to the jurisdiction of the Department of the Interior.
FINNEY, Solicitor:

    You [Secretary of the Interior] have requested my opinion as to what, if any, jurisdiction you have over the Board of Indian Commissioners, particularly with reference to the number of employees maintained in the Washington office of the board and the compensation paid them. This question, it appears, has arisen in connection with the recent promotion of Earl Y. Henderson to secretary of the board, vice Malcolm McDowell, and the promotion of Mrs. Clara R. Burrows to assistant secretary, vice
Mr. Henderson.

    The Board of Indian Commissioners was organized under the provisions of section 4 of the act of April 10, 1869 (16 Stat. 13, 40), which reads-

    SEC. 4. That there be appropriated the further sum of two millions of dollars, or so much thereof as may be necessary, to enable the President to maintain the peace among and with the various tribes, bands, and parties of Indians, and to promote civilization among said Indians, bring them where practicable, upon reservations, relieve their necessities, and encourage their efforts at self-support; a report of all expenditures under this appropriation



 

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to be made in detail to Congress in December next; and for the purpose of enabling the President to execute the powers conferred by this act he is hereby authorized, at his discretion, to organize a board of commissioners, to consist of not more than ten persons, to be selected by him from men eminent for their intelligence and philanthropy, to serve without pecuniary compensation, who may, under his discretion, exercise joint control with the Secretary of the Interior over the disbursement of the appropriations made by this act or any part thereof that the President may designate; and to pay the necessary expenses of transportation, subsistence, and clerk hire of said commissioners while actually engaged in said service, there is hereby appropriated, out of any money in the treasury not otherwise appropriated, the sum of twenty-five thousand dollars, or so much thereof as may be necessary.

    The Board of Indian Commissioners, as created under the foregoing provision, consists of a body of unpaid private citizens. The purpose of its creation as expressed in the statute, was to enable the President of the United States to execute the powers conferred upon him thereby, which were to maintain peace among the Indian tribes, to promote their civilization, to relieve their necessities, and to bring them upon reservations. To carry out such powers an appropriation of $2,000,000 was made with the provision that the board might, under the direction of the President, exercise "joint control" with the Secretary of the Interior for the disbursement of such appropriation or any part thereof (See Ryan v. United States, 8 Ct. Cls. 265). The "joint control" to be exercised by the Secretary of the Interior and the board obviously had reference to the disbursement of the two million dollar appropriation and not to the smaller appropriation of $25,000 made to meet the expenses of transportation, subsistence, and clerk hire of the commissioners. The board and the Secretary were to cooperate, but neither was made subordinate to the other.

    The existence of the board was continued and its powers and duties defined by certain provisions contained in the act of July 15, 1870 (16 Stat. 335, 360), March 2, 1871 (16 Stat. 544, 568), May 29, 1872 (17 Stat. 165, 186), and May 17, 1882 (22 Stat. 68, 70). The latter act limited the powers of the board to visits to and inspection of agencies and other branches of the Indian Service and the inspection of goods purchased for that service with the requirement that the Commissioner of Indian Affairs consult with the board in the purchase of supplies and that the board should report its doings to the Secretary of the Interior. From that time onward the existence of the board, with the powers and duties mentioned, has been recognized by annual appropriations made by Congress to meet its expenses, such appropriation having been carried for convenience at first in the Indian appropriation acts, and in more recent years in the Interior Department appropriation acts.

    Regarding the personnel employed by the board, it is important to note that the act of July 15, 1870, supra, expressly empowered the board to appoint one of its number as secretary with such reasonable compensation as it may designate. An amendment to this provision authorized the employment of a secretary not a member of the board and the payment of his salary out of the appropriations which may be made for the board (Act August 24, 1912, 37 Stat. 518, 521). These provisions but illustrate the independent nature of the board and the intention of Congress that the appropriations made for its benefit should be expended upon its own responsibility.

    The Board of Indian Commissioners has been regarded, since its creation more than 60 years ago, as independent of any department or bureau. No control whatever over the employment of personnel by the board has been exercised or attempted by the Secretary of the Interior during all this time. In none of the legislation dealing with the board and its activities is there any provision authorizing the Secretary of the Interior to fix the compensation of its employees or to supervise the action of the board in that particular.

    As the head of the Interior Department you are authorized to employ such number of employees of the various classes recognized by law as may be appropriated for by Congress from year to year (Sec. 169, R. S.), subject, of course, to allocation of positions to grades and the fixing of rates of compensation as provided by the Classification Act of March 4, 1923 (42 Stat. 1488). Your authority in this regard, however, is necessarily confined to employees only of those bureaus or offices of the Interior Department which have been constituted such by the law of its organization or some subsequent enactment. The Interior Department was made one of the executive departments on March 3, 1849 (9 Stat. 395). It was specifically charged with the supervision of certain Executive bureaus, and its jurisdiction was defined in section 441, Revised Statutes. The Board of Indian Commissioners has never been placed under its jurisdiction by any express statute.

    I am of the opinion, therefore, that the Board of Indian Commissioners can not properly be regarded as a part of the Interior Department and hence the personnel to be employed by the board and the
 


 

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compensation to be paid to them are matters not coming within your jurisdiction.

Approved:
        JOHN H. EDWARDS,
                Assistant Secretary.

STATUS OF ALASKA NATIVES

53 I.D. 593
M-26915                                                                                                                                     February 24, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion on the legal status of the natives of Alaska-Eskimos, Aleuts, Indians, et al.

    Alaska was ceded to the United States by Russia under the treaty of March 30, 1867 (15 Stat. 539). Article III of the treaty provides:

    The inhabitants of the ceded territory, * * * if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.
    An opinion by the Solicitor of this Department under date of May 18, 1923 (49 L.D. 592), sets forth the following:
    In the beginning, and for a long time after the cession of this Territory Congress took no particular notice of these natives; has never undertaken to hamper their individual movements; confine them to a locality or reservation, or to place them under the immediate control of its officers, as has been the case with the American Indians; and no special provision was made for their support and education until comparatively recently. And in the earlier days it was repeatedly held by the courts and the Attorney General that these natives did not bear the same relation to our Government, in many respects, that was borne by the American Indians. (16 Ops. Atty. Gen. 141; 18 id., 139); United States v. Ferusta Seveloff (2 Sawyer U.S. 311); Hugh Waters v. James B. Campbell (4 Sawyer U.S. 121); John Brady et al. (19 L.D. 323).

    With the exception of the act of March 3, 1891 (26 Stat. 1095, 1101), which set apart the Annette Islands as a reservation for the use of the Metlakahtlans, a band of British Columbian natives who immigrated into Alaska in a body, and also except the authorization given to the Secretary of the Interior to make reservations for landing places for the canoes and boats of the natives, Congress has not created or directly authorized the creation of reservations of any other character for them.

    Later, however, Congress began to directly recognize these natives as being, to a very considerable extent at least, under our Government's guardianship and enacted laws which protected them in the possession of the lands they occupied; made provision for the allotment of lands to them in severalty, similar to those made to the American Indians; gave them special hunting, fishing and other particular privileges to enable them to support themselves, and supplied them with reindeer and instructions as to their propagation. Congress has also supplied funds to give these natives medical and hospital treatment and finally made and is still making extensive appropriations to defray the expenses of both their education and their support.

    Not only has Congress in this manner treated these natives as being wards of the Government but they have been repeatedly so recognized by the courts. See Alaska Pacific Fisheries v. United States (248 U.S. 78); United States v. Berrigan et al. (2 Alaska Reports, 442); United States v. Cadzow et al. (5 id. 125), and the unpublished decision of the District Court of Alaska, Division No. 1. in the case of Territory of Alaska v. Annette Islands Packing Company et al., rendered June 15, 1922.

    From this it will be seen that these natives are now unquestionably considered and treated as being under the guardianship and protection of the Federal Government, at least to such an extent as to bring them within the spirit, if not within the exact letter, of the laws relative to American Indians; and this conclusion is supported by the fact that in creating the territorial government of Alaska and vesting that territory with the powers of legislation and control over its internal affairs, including public schools, Congress expressly excluded from that legislation and control the schools maintained for the natives and declared that such



 

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schools should continue to remain under the control of the Secretary of the Interior.

    Any change that may have occurred in the original attitude of the United States towards the natives of Alaska is reflected in subsequent acts of Congress which were invariably intended to be in their interest and for their benefit, no distinction being made as to any particular natives.

    Some disposition has been shown to make a distinction between the Indians of Alaska and other natives, particularly the Eskimos. It has been asserted by ethnologists that the Eskimos are not of Indian but more likely are of Manchurian and Chinese origin. After the Indians, the Eskimos of Alaska are probably the most advanced of the natives and for this reason these two races are best known and are more frequently referred to than the other natives such as the Aleuts, Athapascans, Tlinkets, Hydahs and other natives of indigenous race inhabiting the Territory of Alaska. The Eskimos are said to know nothing of their early predecessors. The origin of the natives of Alaska will possibly some day become known, but whether that comes to pass or not the fact is that they are all wards of the Nation and are treated in material respects the same as are the aboriginal tribes of the United States.

    The act of March 3, 1899 (30 Stat. 1253), defining the penal and criminal laws of the United States relating to the District of Alaska provides in section 142 of Chapter 8 thereof, in the matter of selling liquor or firearms to Indians, as follows:

    The term "Indian" in this Act shall be so construed as to include the aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood.
    The above provision was amended by the act of February 6, 1909 (600, 603), by adding after the words "half blood" "who have not become citizens of the United States." This provision loses whatever significance it may have had if the act of June 2, 1924 (43 Stat. 253), declaring "all noncitizen Indians born within the territorial limits of the United States" to be citizens of the United States, is applicable to the natives of Alaska.

    In the case of United States v. Lynch (7 Alaska Reports 568, 572), referring to article III of the treaty of cession between Russia and the United States, the court held:

    Under this treaty the Tlinket tribe became subject to such rules and regulations as the United States may thereafter adopt as to the native Indians of the United States. Therefore, by the provisions of the treaty, the Indians of the Tlinket tribe became citizens of the United States, in common with the native Indian tribes of the United States, under the Act of June 2, 1924 (8 USCA Sec. 3), which provided that all noncitizen Indians, born within the territorial limits of the United States, shall be citizens, and that the granting of citizenship shall not, in any manner, impair or otherwise affect the right of any Indian to tribal or other property.
    Demurrer in the Lynch case was overruled. (7 Alaska Reports 643); seealso case of Rassmussen v. United States (197 U.S. 516).

    As Indians of Alaska are within the category of natives of Alaska and as the term "Indian" is to be so construed as to include the aboriginal races inhabiting Alaska, the ruling of the court in the Lynch case would seem to be equally applicable to all other natives of that Territory.

    Reference to the provisions of certain acts will give a definite idea of the extent to which the natives of Alaska have been recognized by the Congress as well as show the similarity of their treatment to that accorded the Indians of the United States. In the first place, the treaty between Russia and the United States after providing that the civilized native tribes "shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property, and religion," further provides: "The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country."

    The Indians, Eskimos, Aleuts and other natives of Alaska are therefore the wards of the Nation the same as are the Indians inhabiting the States. In re Sah Quah (31 Fed. 327), wherein it was held:

    The United States has at no time recognized any tribal independence or relations among these Indians, has never treated with them in any capacity, but from every act of Congress in relation to the people of this territory it is clearly inferable that they have been and now are regarded as dependent subjects, amenable to the penal laws of the United States, and subject to the jurisdiction of its courts. * * * They are practically in a state of pupilage, and sustain a relation to the United States similar to that of a ward to a guardian, * * *."
    In section 13 of the act of May 17, 1884 (23 Stat.
 


 

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24, 27), entitled "An Act providing a civil Government for Alaska" the Secretary of the Interior is authorized to make needful and proper provision for the education of the children of school age in the Territory of Alaska "without reference to race, until such time as permanent provisions shall be made for the same."

    A similar provision is contained in the act of June 6, 1900 (31 Stat. 321, 330). This act was amended by the act of March 3, 1901 (31 Stat. 1438), by providing that 50 per cent of all license money collected on business carried on outside incorporated towns in the District of Alaska should be used by the Secretary of the Interior in his discretion and under his direction for the support of schools outside incorporated towns. All schools were supported by annual appropriations made by Congress up to June 30, 1901. Thereafter, all schools outside incorporated towns remained under the supervision of the Secretary of the Interior and were supported by the license money referred to, until January 27, 1903.

    The act of January 27, 1905 (33 Stat. 616), entitled "An Act to provide for the construction and maintenance of roads, the establishment and maintenance of schools, and the care and support of insane persons in the District of Alaska and for other purposes" provided in section 7 thereof as follows:

    That the schools specified and provided for this Act shall be devoted to the education of white children and children of mixed blood who lead a civilized life. The education of the Eskimos and Indians in the district of Alaska shall remain under the direction and control of the Secretary of the Interior, and schools for and among the Eskimos and Indians of Alaska shall be provided for by an annual appropriation, and the Eskimo and Indian children of Alaska shall have the same right to be admitted to any Indian boarding school as the Indian children in the States or Territories of the United States.
    The act of March 30, 1905 (33 Stat. 1156, 1188), made an appropriation:
    To enable the Secretary of the Interior, in his discretion and under his direction, to provide for the education and support of the Eskimos, Indians, and other natives of Alaska; for erection, repair, and rental of school buildings; for text-books and industrial apparatus; for pay and necessary traveling expenses of general agent, assistant agent, superintendents teachers, physicians, and other employees, and all other necessary miscellaneous expenses which are not included under the above special heads, fifty thousand dollars, to be immediately available.
    The appropriation made by the act of June 30, 1906 (34 Stat. 697, 729), for $100,000 was "To enable the Secretary of the Interior in his discretion and under his direction, to provide for the education and support of the Eskimos, Aleuts, Indians and other natives of Alaska."

    Appropriations in increased amounts have since been made by Congress annually for the support of schools among the Eskimos, Aleuts, Indians and other natives of Alaska, the amount appropriated for that purpose for the fiscal year ending June 30, 1920, being $250,000. The act of May 27, 1908 (35 Stat. 317, 351), contains this additional provision:

    That all expenditure of money appropriated herein for school purposes in Alaska shall be under the supervision and direction of the Commissioner of Education and in conformity with such conditions, rules, and regulations as to conduct and methods of instruction and expenditure of money as may from time to time be recommended by him and approved by the Secretary of the Interior.
    All subsequent acts making appropriations for the support of schools among the natives of Alaska contain a like provision to the above.

    The Territory of Alaska was created by the act of August 24, 1912 (37 Stat. 512), and it is provided in section 3 thereof that the authority granted therein to the legislature to alter, amend, modify, and repeal laws in force in Alaska, shall not extend to the act of January 27, 1905, supra, and the several acts amendatory thereof, which act provides that schools for and among the Eskimos and Indians of Alaska shall be provided for by an annual appropriation.

    Section 416 of the Compiled Laws of Alaska provides: "The legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States."

    The act of March 3, 1917 (39 Stat. 1131), reads as follows:

    That the Legislature of Alaska is hereby empowered to establish and maintain schools for white and colored children and children of mixed blood who lead a civilized life in said Territory and to make appropriations of Territorial funds for that purpose; and all laws



 

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or parts of laws in conflict with this Act are to that extent repealed.

    Until that act was passed, as hereinbefore shown, the matter of schools for the children named therein was controlled by congressional legislation.

    In later acts, notably that of May 24, 1922 (42 Stat. 552, 583), Congress went further and made and is still making appropriations "To enable the Secretary of the Interior, in his discretion and under his direction, to provide for the education and support of the Eskimos, Aleuts, Indians, and other natives of Alaska."

    Two things are apparent from the foregoing, namely that the Indians and other natives of Alaska are as truly the wards of the Nation as are the aborigines and their descendants inhabiting the States with whom the Government has had to deal since its organization; and that Congress has assumed full cost for all educational facilities among the Alaskan natives. Under the act of March 3, 1917, supra, separate schools are in existence in Alaska, that is those for the education of white and colored children and "children of mixed blood who lead a civilized life", established and maintained by appropriations from territorial funds; and those for the education of Eskimos, Aleuts, Indians, and other natives provided for by the annual appropriations of Congress.

    The Solicitor for this Department has held that the Territory of Alaska can not legally collect from Eskimos, Aleuts and other natives of Alaska of full blood nor of those natives of mixed blood who do not lead a civilized life, the school tax imposed by the territorial act. The case of Davis v. Sitka School Board (3 Alaska Reports 481), involved a construction of the act of January 27, 1905, supra, particularly that provision relating to "children of mixed blood who lead a civilized life." The court held that-

    while the Davis children are of "mixed blood", they do not "lead a civilized life", within the meaning of section 7 of the act of Congress of January 27, 1905 (33 Stat. 617, c. 277), so as to entitle them to attend the public schools maintained for "white children and children of mixed blood who lead a civilized life." Held, that mandamus will not lie to compel the school board of Sitka to admit such children to the public schools therein; it appearing that the Government maintained a separate school for Eskimos and Indians "under the direction and control of the Secretary of the Interior."
    In the case of United States v. Berrigan (2 Alaska Reports 442), referring to the clause of the third article of the treaty of 1867 between Russia and the United States that "the uncivilized tribes (in Alaska) will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country", it was held:
    That the Athapascan stock, including the native bands of the Tanana, belong to the uncivilized tribes mentioned in this clause. As such they are entitled to the equal protection of the laws which the United States affords to similar aboriginal tribes within its borders.
    Also that-
    All the vacant and unappropriated lands in Alaska at the date of the cession of 1867 by Russia became a part of the public domain and public lands of the United States.
    And further that-
    The uncivilized native tribes of Alaska are wards of the Government. The United States has the right, and it is its duty, to protect the property rights of its Indian wards.
    In the case of Nugle v. United States (191 Fed. 141), after referring to the act of May 17, 1884, supra, providing a civil government for Alaska, and to section 1891 of the United States Revised Statutes which provide that "The Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within all the organized territories, and in every territory hereafter organized as elsewhere within the United States," the court held "all laws of Congress of general application not locally inapplicable are in effect in Alaska." The court further held:
    The provision of Act Feb. 8, 1887, c. 119, sec. 6, 24 Stat. 390, relating to allotments of lands to Indians in severalty, that "every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States and is entitled to all the rights, privileges and immunities of such citizen." is in effect in Alaska, and operates to make Indians therein, who are descendants of the aboriginal tribes, born since the annexation of Alaska, but who



 

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have voluntarily taken up their residence separate and apart from any tribe and adopted the habits of civilization, citizens of the United States, and the sale of liquor to such an Indian does not constitute an offense under Alaska Code Cr. Proc. sec. 142, as amended by Act Feb. 6, 1909, c. 80, sec. 9, 35 Stat. 603, making it an offense to sell liquor to an "Indian," which term is defined to include the aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood "who have not become citizens of the United States."

    The court also held, referring to the clause in article III of the Alaska treaty with Russia stipulating that the uncivilized native tribes of Alaska, "will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes in that country"; "there can be no doubt that this stipulation relates to the Indian tribes in Alaska, and manifestly the treaty was designed to insure them like treatment, under the laws and regulations of Congress, as should be accorded Indian tribes in the United States."

    It was argued in the Nagle case, supra, that because the Government has never treated with the Indian tribes in Alaska, therefore it was not the intendment that general laws respecting Indians should extend to the Territory of Alaska. But the court said:

    It should be borne in mind, however, that it has long since been declared to be the policy of Congress not to treat further with the Indians as tribes. Act March 3, 1871, c. 120, 16 Stat. 544, 566. Ever since the passage of that act, Congress has governed the Indians by law, and not by treaty, and the policy affords cogent reason why general laws should apply to individual Indians in Alaska as well as elsewhere.
    It was held in the case of United States v. Cadzow (5 Alaska Reports 125), that the aboriginal tribes of Alaska have a right to occupy the public lands of the United States therein subject to the control of both the lands and the tribes by the United States; also that the uncivilized native tribes of Alaska are wards of the Government-the United States has the right, and it is its duty, to protect the propertyrights of its Indian wards.

    There are provisions in each of the following acts design to protect the Indians of Alaska in the use and occupancy of the lands held by them: Acts of May 17, 1884 (23 Stat. 24), and June 6, 1900 (31 Stat. 330), providing a civil government for Alaska; Act of March 3, 1891 (26 Stat. 1095), repealing timber culture laws and for other purposes, and act of May 14, 1898 (30 Stat. 412), extending the homestead laws and providing for right of way for railroads in the District of Alaska.

    The act of May 17, 1906 (34 Stat. 197), is entitled "An Act authorizing the Secretary of the Interior to allot homesteads to the nativesof Alaska." This act authorizes the Secretary of the Interior in his discretion, to allot not to exceed 160 acres of nonmineral land "to any Indian or Eskimo of either full or mixed blood who resides in and is a native of said District". It was held in the case of Frank St. Clair (52 L.D. 597, 599-600):

    This is a special act relating to Alaska natives and is clearly separate and distinct from the act of May 14, 1898 (30 Stat. 409), extending the homestead land laws of the United States to the district of Alaska.

            *                                *                                *                                *                                *

    The vacant and unappropriated lands in Alaska at the date of the cession of 1867 by Russia became a part of the public domain of the United States; and the Indians of Alaska are wards of the Government and as such are entitled to the equal protection of the laws applicable to Indians within the limits of the United States. United States v. Berrigan (2 Alaska Reports 442); United States v. Cadzow (5 Alaska Reports 125). The natives of Alaska are wards of the Government and under its guardianship and care at least to such an extent as to bring them within the spirit if not within the exact letter of the laws relative to American Indians; their relations are very similar and in many respects identical with those which have long existed between the Government and the aboriginal peoples residing within the territorial limits of the United States (49 L.D. 592). The Indians and other "natives" of Alaska are in the same category as the Indians of the United States; from an early date, pursuant to the legislative intent indicated by Congress, this department has consistently recognized and respected the rights of the Indians of Alaska in and to the lands occupied by them. 50 L.D. 315; 51 L.D. 155; Alaska Pacific Fisheries v. United States (248 U.S. 78); Territory of Alaska v. Annette Island Packing Co. (289 Fed. 671).

    The status of an applicant under the act of May 17, 1906, authorizing the Secretary of the Interior to allot homesteads to the natives of Alaska is analogous to section 4 of the act of February 8, 1887 (24 Stat. 388), which provides that an Indian who has settled upon public lands of the United States shall be entitled



 

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to have the same allotted to him in the manner as provided by law for allotments to Indians residing upon reservations. This, of course, involves separation and living apart from the tribe. A reservation allottee is not required to reside upon or improve the land allotted to him. The court took the position in the case of Nagle v. United States (191 Fed. 141), that said act, especially that section thereof which declares an Indian born within the Territorial limits of the United States who has taken up within said limits his residence separate and apart from the tribe to be a citizen, is in effect in Alaska.

            *                                     *                                 *                                 *                                 *

    The allotment to an Indian or Eskimo under the act of May 17, 1906, creates a particular reservation of the land for the allottee and his heirs but the title remains in the United States. Charlie George et al. (44L.D. 113), Worthen Lumber Mills v. Alaska Juneau Gold Mining Co. (229 Fed. 966).

    See also 44 L.D. 113 and 48 L.D. 435. The natives of Alaska do not for the most part live on reservations and very few have been created. However, the Attorney General and the courts have recognized that power exists to create Indian reservations as well as reservations for other public purposes. Alaska Pacific Fisheries v. United States (248 U.S. 78); United States v. Leathers (26 Fed. cas. 897); and 17 Ops. Atty. Gen. 258.

    The act of March 3, 1891 (26 Stat. 1095, 1101), authorizing the establishment of townsites in Alaska the acquisition by individuals of limited areas for trade or manufacturing purposes, etc., expressly excepts "any lands * * * to which the natives of Alaska have prior rights by virtue of actual occupation." The act also set apart the Annette Islands as a reservation for the use of the Metlakahtla Indians who immigrated from British Columbia to Alaska, "and such other Alaskan natives as may join them." It has since been held that the reservation so created extends to and includes adjacent "deep waters". It was also held in that case-

    The reservation was not in the nature of a private grant but simply a setting apart "until otherwise provided by law" of designated public property for a recognized public purpose-that of safeguarding and advancing a dependent Indian people dwelling within the United States. See United States v. Kagama (118 U.S. 375, 379, et seq.); United States v. Rickert (188 U.S. 432, 437).

            *                                *                                *                                *                                *

    The purpose of creating the reservation was to encourage, assist and protect the Indians in their effort to train themselves to habits of industry, become self-sustaining and advance to the ways of civilized life. True, the Metlakahtlans were foreign born, but the action of Congress has made that immaterial here.

    And in the case of Territory v. Annette Island Packing Company (6 Alaska Reports 585, 601, 604)-
    While it may be true, as urged by counsel for the Territory that the Metlakahtlans residing on the reserve are not a tribe of Indians in the sense used in the Constitution of the United States, yet they are, and always have been, recognized as members of the Indian race, and the dealings of the Government with them have been as if they were a dependent people. * * *

    * * * These people, residing on a reservation established on their behalf by Congress, which they were authorized to use in common, subject to such restrictions and regulations as the Secretary of the Interior might make, took, in my view, a status politically analogous to that of native Indians on reservations within the United States, and hence became wards of the government. This view of the status of these people is borne out by the Supreme Court in Alaska-Pacific Fisheries v. United States, reported in 248 U.S. 78, 39 Sup. Ct. 40, 63 L. Ed. 138.

    The court also held in that case:
    The contract of lease between the Secretary of the Interior and the Annette Island Packing Company, together with its cannery, fish traps, and property used on the reservation under the lease, constitute and are an instrumentality of the United States, used by it in the performance of its duties to its Indian wards, and are not subject to taxation by the territory of Alaska. The attempt of the territory to levy and collect taxes on the said property or the packing company is ultra vires and void. Decree in favor of defendant and intervener and against the territory.
  See also Alaska Pacific Fisheries (240 Fed. 281); Territory of Alaska v. Annette Packing Company (289 Fed. 671).

    By Executive order of February 27, 1915, the President "withdrew from disposal, and set apart for the use of the Bureau of Education", 25,000 acres, including both land and water, surrounding
 


 

309

OPINIONS OF THE SOLICITOR

FEBRUARY 24, 1932

the village of Tyonek near the north end of Cook Inlet in Alaska. The primary object of the reservation was to enable the Department through the Bureau of Education to maintain a school and otherwise care for, support and advance the interests of the aboriginal natives of the village mentioned whose main support was through hunting, trapping and fishing. The question was submitted by the officers of the Bureau of Education as to the authority for entering into a lease for the establishment of a salmon cannery at or near the village. In Solicitor's Opinion of May 18, 1923 (49 L.D. 592), it was held that such authority existed, reference being made to the similar case of the Metlakahtla Indians of Annette Islands where it was held that the Secretary of the Interior had the power to grant such a lease. Territory of Alaska v. Annette Island Packing Company (289 Fed. 671). The Solicitor stated, among other things:

    The fundamental consideration underlying this question is the fact that these natives are, in a very large sense at least, dependent subjects of our Government and in a state of tutelage; or in other words, they are wards of the Government and under its guardianship and care. The relations existing between them and the Government are very similar and in many respects identical with those which have long existed between the Government and the aboriginal peoples residing within the territorial limits of the United States.
    It was also held:
    By article III of the treaty of March 30, 1867, under which the Territory of Alaska was ceded to the United States, and by subsequent acts providing for their education and support, Congress has recognized the natives of Alaska as wards of the Federal Government, thus giving them a status similar to that of the American Indians within the territorial limits of the United States.

            *                                 *                                 *                                 *                                 *

    While there is no specific statute relating to the subject, yet the inherent power conferred upon the Secretary of the Interior by section 441, Revised Statutes, to supervise the public business relating to the Indians, includes the supervision over reservations in the Territory of Alaska created in the interest of the natives and the authority to lease lands therein for their benefit.

    The Solicitor's Opinion of March 12, 1924 (50 L.D. 315), had under consideration the status of the natives of Alaska with respect to the title to certain tide lands near Ketchikan. Reference was made in that connection to the provisions of the treaty of March 30, 1867, under which the Territory of Alaska was acquired by the United States as well as to the act of May 17, 1884 (23 Stat. 24), which virtually constitutes the organic act for the Territory of Alaska and which declares:
    That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress. (Italics supplied.)
    The act of March 3, 1891 (26 Stat. 1095), as previously stated, excepts "any lands * * * to which the natives of Alaska have prior rights by virtue of actual occupancy." The act of May 14, 1898 (36 Stat. 409), extended the homestead laws of the United States to the Territory of Alaska and authorized the Secretary of the Interior to reserve for use of the natives of Alaska "suitable tracts along the water front of any stream, inlet, bay or seashore, for landing places for canoes and other craft used by such natives." Pursuant to this authority the Secretary on August 5, 1905, reserved the lands described as "all the lands in the vicinity of the mouth of Ketchikan Creek which lie between the lands occupied by the natives and the limits of low tide of Tongass Narrows."

    It was held in the above Solicitor's Opinion that "the tide or other lands occupied by or reserved for the Indians at Ketchikan, Alaska, can not be disposed of under existing law, but that power rests with Congress."

    It was also stated in that connection:

    From an early date, pursuant to the legislative intent indicated by Congress, this Department has consistently recognized and respected the rights of the natives of Alaska in and to the lands occupied by them. See 13 L.D. 120; 23 L.D. 335; 24 L.D. 312; 26 L.D. 517; 28 L.D. 427; 37 L.D. 334.
    See Solicitor's Opinion of May 27, 1925 (51 L.D. 155), relative to the power of the Territorial Legislature to impose a tax upon reindeer held or controlled by the natives of Alaska. Reference was made to the case of Territory of Alaska v. Annette Island Packing Company (289 Fed. 671), which involved the question as to the authority of the Territory to tax the output of a salmon cannery under lease by the Secretary of the Interior to a
 


 

310

DEPARTMENT OF THE INTERIOR

FEBRUARY 24, 1932

packing company. It was held that the lease was an instrumentality of the Government to assist the Metlakahtla Indians to become self-supporting and hence the Territory of Alaska could not collect such a tax from the corporation.

    It was held in the case of Steamer Coquitlam v. United States (163 U.S. 346):

    * * * Alaska is one of the Territories of the United States. It was so designated in that order and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that Territory. It is, therefore, in every substantial sense the Supreme Court of that Territory. * * *
    Under authority of the act of March 3, 1891 (26 Stat. 826), the Supreme Court of the United States in execution of this law by an order promulgated May 11, 1891, assigned the Territory of Alaska to the Ninth Judicial Circuit.

    From the foregoing it is clear that no distinction has been or can be made between the Indians and other natives of Alaska so far as the laws and relations of the United States are concerned whether the Eskimos and other natives are of Indian origin or not as they are all wards of the Nation, and their status is in material respects similar to that of the Indians of the United States. It follows that the natives of Alaska, as referred to in the treaty of March 30, 1867, between the United States and Russia, are entitled to the benefits of and are subject to the general laws and regulations governing the Indians of the United States, including the citizenship act of June 2, 1924 (43 Stat. 253), as Alaska has been held to be one of the Territories of the United States. Under the terms of Article III of the cession treaty of March 30, 1867, the civilized natives of Alaska have all along been citizens of the United States.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: February 24, 1932.
RAY LYMAN WILBUR, Secretary.

TAXATION OF INCOME FROM MINERAL PRODUCTION
FROM RESTRICTED LANDS OF MEMBERS OF
FIVE CIVILIZED TRIBES

Opinion, February 26, 1932

53 I.D. 606

STATUTORY CONSTRUCTION.
  Where the general language of a statute is broad enough to include the subject matter, any intent to exclude a person or class of persons must be definitely expressed therein.

INDIANS-INCOME TAX.
    Indians as well as other citizens must be regarded as subject to the revenue laws of the United States and of the States in which they reside unless the particular income sought to be reached has been exempted from taxation by some Congressional enactment or rule of law.

INDIAN LANDS-ALIENATION-INCOME-TAXATION.
    Restrictions against alienation imposed against lands for the protection of Indians have uniformly been regarded as withdrawing the lands from taxation, and where the lands themselves are nontaxable the income derived therefrom is likewise exempt.

DOUBLE TAXATION.
    Double taxation or unequal taxation, so long as the inequality is not based upon arbitrary distinctions, is not repugnant to the Federal Constitution.

INDIAN LANDS-MINERAL LANDS-OIL AND GAS LANDS-INCOME-TAXATION-FIVE CIVILIZED TRIBES.
    Section 3 of the act of May 10, 1928, subjected the income derived from mineral production from the restricted lands of the Five Civilized Tribes to both Federal and State taxation on and after April 26, 1931, except as to those lands allotted to members to which exemptions attached under provisions of the agreements under which allotted, such exemptions to continue for the periods specified irrespective of subsequent legislation by Congress purporting to subject them to taxation.

INDIAN LANDS-MINERAL LAND-OIL AND GAS LANDS-INCOME-TAXATION-FIVE CIVILIZED TRIBES
  The Federal and State income tax to be levied upon the income derived from the mineral production from the restricted lands of the Five Civilized Tribes under section 3 of the act of May 10, 1928, is to be based upon the net income, that is the gross income less allowable deductions, accrued after April 26, 1931, and not to be confined to interest alone.

FINNEY, Solicitor:

    You [Secretary of the Interior] have requested my opinion upon the following questions:

    1. Does section 3 of the act of May 10, 1928 (45 Stat. 495), empower the State of Oklahoma and the Federal Government to levy and collect taxes upon the income derived by members of the Five Civilized Tribes in Oklahoma from the production of oil, gas and other minerals from their restricted lands?

    2. If so, upon what basis should the taxes be computed?

    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 in 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



 

311

OPINIONS OF THE SOLICITOR

FEBRUARY 26, 1932

character the same as those produced from lands owned by 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.

    In my opinion of September 22, 1931 (53 I.D. 502), I had occasion to consider the scope and extent of the foregoing statute, and it was therein held that its provisions operated to subject the minerals produced from the restricted lands of these Indians to both Federal and State taxation save only as to those allottees upon whom exemptions from taxation had been conferred by the tribal allotment agreements, which exemptions constituted property rights within the protection of the Fifth Amendment to the Federal Constitution and hence were not subject to impairment by subsequent Congressional legislation, Choate v. Trapp (224 U.S. 665); Carpenter v. Shaw (280 U.S. 363).

    That opinion, however, neither considered nor decided the question of whether the income received by restricted members of the Five Civilized Tribes from mineral production on their lands was taxable by the Federal and State governments under their respective revenue laws.

    Section 3 above does not specifically mention income taxes unless that form of taxation be regarded as included in the broad language "All State and Federal taxes of every kind and character, the same as those produced from lands owned by other citizens of the State of Oklahoma." That taxation upon the income from production of minerals is included in this broad language is a permissible, if not a necessary, view. There is a substantial distinction, of course, between what are commonly known as property taxes and income taxes, the latter constituting an assessment upon the income of the person and not upon any particular property from which that income is derived. See Young v. Illinois Athletic Association (310 Ill. 75, 141 N. E. 369). This distinction has been repeatedly recognized by both the State and Federal Courts in connection with covenants contained in leases requiring the lessee to pay all tax and assessments against the leasehold premises, the uniform holding in such cases being that the covenant does not impose upon the lessee the obligation of paying income taxes which the lessor is required to pay upon the rent received, such holding resting primarily on the ground that an income tax is not a tax on the property from which the income is derived. Young v. Illinois Athletic Association, supra; Brainard v. New York Central Railroad Company (242 N.Y. 125, 151 N.E. 152); Illinois Central Railroad Company v. Indianapolis Union Railway Company (6 Fed. (2d) 830, 837); Mahoning Coal Railroad Company v. United States (41 Fed. (2d) 533, 537). Similarly, it might be urged that as section 3 subjects not the Indians but the minerals produced from their lands to taxation, Congress contemplated only the levy and collection of property taxes as distinguished from income taxes and did not intend to subject the Indians to the payment of the latter in addition to the former. Recognizing fully the propriety of drawing a distinction between property taxes and income taxes in a proper case, such distinction can not well be invoked here inasmuch as we are not dealing with the obligation of one under a contract to pay the taxes of another, but with the validity of the tax assessment itself, the determination of which obviously must rest upon quite different considerations.

    The language of the Federal revenue acts subjects the income of "every individual" to tax and includes income "from any source whatever". It has been suggested that this language, though otherwise comprehensive enough to include all Indians, restricted or unrestricted, does not embrace restricted Indians in the absence of special language bringing them within the provisions of the revenue laws. See Blackbird v. Commissioner of Internal Revenue (38 Fed. (2d) 976), also 34 Opinions Attorney General 439, 444. This broad proposition, however, seems to have been definitely rejected by the Supreme Court in Choteau v. Burnet (283 U.S. 691), in which it was held that the income derived from tribal sources of an Osage Indian having a certificate of competency was subject to the Federal income tax, the court saying, among other things: "The intent to exclude must be definitely expressed where, as here, the general language of the act laying the tax is broad enough to include the subject matter." Indians as well as other citizens must therefore be regarded as subject to the revenue acts of the United States and of the States in which they reside unless-and herein lies the fundamental reason for the exemption of the restricted Indians from the income-tax laws-the particular income sought to be reached has been exempted from the tax by some Congressional enactment or rule of law. Congress, in its dealings with the Indians, has frequently provided in express terms that their lands shall be exempt from taxation. Even in the absence of such express declaration, however, the restrictions against alienation imposed against the lands for the protection of the Indians have uniformly been regarded as withdrawing the lands
 


 

312

DEPARTMENT OF THE INTERIOR

FEBRUARY 26, 1932

from taxation. Carpenter v. Shaw (280 U. S. 363, 366); United States v. Rickert (188 U. S. 432); United States v. Shock (187 Fed. 870). The lands themselves being nontaxable, the income therefrom, coming as it does from an exempt source, is like wise exempt. Pollock v. Farmers Loan & Trust Company (157 U. S. 429; 158 U. S. 601). See also Gillespie v. State of Oklahoma (257U. S. 501). In the Gillespie case the Supreme Court held that the net income derived by lessee from sales of his share of oil and gas received under leases of restricted Osage and Creek lands could not be taxed by the State of Oklahoma, saying, among other things: "In cases where the principal is absolutely immune from interference, an inquiry is allowed into the sources from which net income is derived, and if a part of it comes from such a source, the tax is pro tanto void."

    The periods of restriction surrounding the lands belonging to the members of the Five Civilized Tribes, as fixed in the original allotment agreements negotiated with these tribes, 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 period of restrictions as fixed by these acts would have expired in the absence of further legislation by Congress on April 26, 1931. During this period the lands, the underlying minerals, and the income therefrom, were protected from both State and Federal taxation. Gillespie v. State of Oklahoma, supra; Carpenter v. Shaw, supra; 34 Opinions Attorney General 275. By section 1 of the act under consideration Congress extended the restrictions for an additional period of 25 years, but in so doing saw fit to depart from its usual policy of relieving the lands from taxation by declaring in section 3 that all minerals including oil and gas produced from these lands should be subject to all forms of State and Federal taxation. By this Congressional direction the exemption from taxation of the minerals was plainly and effectively removed, a circumstance which likewise made the income derived by the Indians from mineral production subject to taxation. Pollock v. Farmers' Loan & Trust Company, supra.

    Section 27 of the Oklahoma income-tax law, which become a law on April 4, 1931 (236 Acts of the 13th Legislative, Chap. 66, Art. 7) provides-

    All gross production taxes, gross receipts or gross revenue taxes paid or to be paid under other laws of this state, are hereby declared to be in lieu of general ad valorem property taxes, and shall not be construed to be in lieu of the next income tax hereby levied.
    It appears from the foregoing provision that the tax to be levied by the State of Oklahoma upon the income derived by these Indians from mineral production will be in addition to the gross production tax provided for by other laws of that State. This seems to savor strongly of double taxation but that in itself would not invalidate the tax. This was expressly decided in Shaffer v. Carter (252 U. S. 37). Upon this point the court said (p. 57)-
    Reference is made to the gross production tax law of 1915 (c. 107, Art. 2, Subdiv. A, Sec. 1; Sess. Laws 1915, p. 151), as amended by c. 39 of Sess. Laws 1916 (p. 104), under which every person or corporation engaged in producing oil or natural gas within the State is required to pay a tax equal to 3 per centum of the gross value of such product in lieu of all taxes imposed by the State, counties, or municipalities upon the land or the leases, mining rights, and privileges, and the machinery, appliances, and equipment, pertaining to such production. It is contended that payment of the gross production tax relieves the producer from the payment of the income tax. This is a question of state law, upon which no controlling decision by the Supreme Court of the State is cited. We overrule the contention, deeming it clear, as a matter of construction, that the gross production tax was intended as a substitute for the ad valorem property tax but not for the income tax, and that there is no such repugnance between it and the income tax as to produce a repeal by implication. Nor, even if the effect of this is akin to double taxation, can it be regarded as obnoxious to the Federal Constitution for that reason, since it is settled that nothing in that instrument or in the Fourteenth amendment prevents the States from imposing double taxation, or anyother form of unequal taxation, so long as the inequality is not based upon arbitrary distinctions. St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 367-368.
    The first question is accordingly answered in the affirmative with the qualification that as to those lands allotted to the members of the Five Civilized Tribes to which exemptions from taxation attached under the provisions of the agreements under which allotted, such exemptions continue for the periods specified in such agreements irrespective of subsequent legislation by Congress purporting to subject them to taxation.

    Regarding the second question, involving the basis for computation of the taxes to be paid, it is plain that the tax under both Federal and State law is upon the net income, which is determined
 


 

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OPINIONS OF THE SOLICITOR

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by subtracting the allowable deductions from the gross income. From a letter presented with the record, signed by the superintendent for the Five Civilized Tribes, it appears that he is in doubt as to whether, in making returns, there should be reported as gross income the entire amount of royalties and other funds received from mineral leases or whether the report of gross income should be confined to the interest earned or accruing upon such funds. He states in this connection that it has been the practice heretofore to report interest only. Explaining this former practice, it may be said that while both the Attorney General and the Internal Revenue authorities have recognized that the royalties produced from tax-exempt land were not subject to taxation, the latter authorities have ruled that the income which may be obtained by reinvestment of such royalties is taxable to the same extent as the investment income of other citizens and residents of the United States. See opinion of General Counsel, Bureau of Internal Revenue, July 13, 1931 (Vol. X, Internal Revenue Bulletin No. 28, p. 2). The practice of reporting interest only under this decision may have been proper, but as the exemption from taxation of the minerals and the income therefrom has now been removed, it is clear that the entire amount of royalties and other funds accruing from mineral leases should be reported as gross income. See Von Baumbach v. Sargent Land Company (242 U. S. 503). Under the provisions of the statute, however, only such income as accrued from minerals produced "on or after April 26, 1931" should be included in the returns.

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

TAX-EXEMPT LANDS-SALE OF RESTRICTED
LANDS

53 I.D. 637
M-26927                                                                                                                                        March 30, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion upon a question arising out of the act of March 2, 1931 (46 Stat. 1471), which reads:

    That whenever any nontaxable land of a restricted Indian of the Five Civilized Tribes is sold to the State of Oklahoma, or to any county or municipality therein, for public improvement purposes, or is acquired, under existing law, by said State, county, or municipality by condemnation or other proceedings for such public purposes, or is sold under existing law to any other person or corporation for other purposes, the money received for said land may, in the discretion and with the approval of the Secretary of the Interior, be reinvested in other lands selected by said Indian and such land so selected and purchased shall be restricted as to alienation, lease or incumbrance, and nontaxable in the same quantity and upon the same terms and conditions as the non-taxable lands from which the reinvested funds were derived and such restrictions to appear in the conveyances.
    The foregoing enactment provides in plain terms for the exemption from taxation of lands purchased under the supervision of the Secretary of the Interior for restricted members of the Five Civilized Tribes in Oklahoma with the proceeds derived from disposals of their restricted, nontaxable lands notwithstanding the fact that the lands so purchased are, at the time of acquisition, subject to all State taxes. Subject to the limitations contained in the statute, the authority so conferred clearly extends to such lands as may be selected and purchased within the boundaries of the State of Oklahoma. It appears, however, that one Jessie Henderson, nee Buzzard, a full-blood, Cherokee Indian, Roll No. 17450, desires to dispose of her restricted, nontaxable lands in Oklahoma and use the proceeds therefrom, not in the purchase of other lands in that State, but in the purchase of residential property located in the city of Omaha, Nebraska.

    The question thus presented is whether the act of March 2. 1931, supra, authorizes the withdrawal of taxable lands in States other than Oklahoma from the taxing power of those States when purchased in the manner provided for in the statute.

    The statute does not in express terms limit the selection of lands to be purchased with the proceeds from disposals of the nontaxable lands of these Indians to lands located in the State of Oklahoma. The language is that the Indian with the sanction of the Secretary of the Interior may invest such funds "in other lands selected by said Indian and such land so selected and purchased shall be restricted as to alienation * * * and nontaxable in the same quantity and upon the same terms and conditions as the nontaxable lands from which the reinvested funds were derived." This language standing alone lends some support to the view that the new selections are not confined to lands in the State of Oklahoma. But particular words and
 


 

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DEPARTMENT OF THE INTERIOR

MARCH 30, 1932

phrases can not thus be separated from the context so as to give a meaning not supported by other parts of the same statute, which must be construed as a whole (Peck v. Jenness, 48 U.S. 611, 622), and in the light of its obvious policy (Levindale Lead Co. v. Coleman, 241 U.S. 432).

    The act of March 2, 1931, conferred no new authority upon the State of Oklahoma. It was competent for that State or any of its political subdivisions prior to such enactment to acquire by condemnation or purchase restricted, nontaxable lands belonging to Indians of the Five Civilized Tribes for public improvement purposes. (See section 1, act of May 27, 1908, 35 Stat. 312; see also section 3, act of March 3, 1901, 31 Stat. 1058-1082.) New lands purchased with the proceeds from the lands so taken could be lawfully restricted against alienation (Sunderland v. United States, 266 U.S. 226), but no authority existed for exempting the same from taxation. Shaw v. OilCorporation, 276 U.S. 575; Work v. Mummert, 29 Fed. 2d, 393. The taking of the Indians lands by the State or its political subdivisions for public purposes thus operated to deprive the Indian of his exemption from taxation even without his consent where the lands are acquired under condemnation. To take the Indian's property in this way for the benefit of the State and to permit the State to tax the property purchased with the proceeds is manifestly unfair to the Indian, and the plain purpose of Congress in enacting the act of March 2, 1931, was to correct this inequality. This is shown by the fact that the legislation as originally introduced (H.R. No. 263), would have been operative only where it became necessary for the State of Oklahoma or some county or municipality thereof to take the nontaxable lands of the restricted Indians in that State for public purposes. The benefits of the proposed legislation being confined to the State of Oklahoma and to Indians in that State, it was the evident intent to confine its burdens also to that State. The bill was broadened by an amendment (see Senate Report No. 1695, 71st Congress, 3d Session) so as to extend the provisions of the statute to include the reinvestment of the proceeds derived from sales to private parties of the nontaxable lands. But this amendment affords no basis for imputing an intent to Congress to permit the nontaxable selections to be made from lands in States other than Oklahoma. It was apparent on the contrary that the lands so disposed of to private parties would immediately become taxable by the State of Oklahoma and that being so, justice and equity dictated that the proceeds therefrom when invested in other lands in that State should be protected from taxation.

    To permit the investment of these funds in lands in other States would not only impose an unjust burden upon those States for the benefit of Oklahoma and Oklahoma Indians, but in view of the various prior enactments of Congress, which make the Oklahoma laws applicable to lands of the Indians of the Five Civilized Tribes in certain particulars, the transfer of the exemption from taxation and the existing restrictions against alienation to lands in other States would produce such incongruities that that part of the statute declaring that the new lands should be held upon the "same terms and conditions" as the old could not well be applied. Section 2 of the act of April 12, 1926 (44 Stat. 239), makes the statutes of limitations of the "State of Oklahoma" applicable to all restricted Indians of the Five Civilized Tribes, the same as any other citizen of the "State of Oklahoma." Section 6 of the act of May 27, 1908 (35 Stat. 312), makes the persons and property of minor allottees subject to the jurisdiction of the probate courts of the "State of Oklahoma." Section 23 of the act of April 26, 1906 (34 Stat. 137), as amended by section 8 of the act of May 27, 1908 (35 Stat. 312), provides that certain wills of members of said tribes shall not be valid unless executed before one of certain specified officers, among those mentioned being a judge of the United States Court for the Indian Territory, and a judge of a county court of the State of Oklahoma. That was continued in force by the act of May 10, 1928, until April 26, 1956. Also said act of May 10, 1928 (45 Stat. 495), by section 3 thereof, provided that the production of minerals from such restricted lands should be subject to taxation the same as those produced from lands owned by other citizens of the "State of Oklahoma." Section 4 of that act also provided that all such lands in excess of 160 acres shall be subject to taxation by the "State of Oklahoma under and in accordance with the laws of that State."

    These rights are indigenous to the soil of Oklahoma. That State came into the Union burdened with the favors accorded by Federal laws to the Indian owners, and in its Constitution express recognition was given to the authority of the United States to legislate in respect to the Indians, their lands, property, or other rights. No injustice is done that State if exempted property be sold and other like property be bought with the proceeds and exempted from taxation. But it is a grave injustice to a State not so burdened to transfer the burden from Oklahoma to such other State. Congress has not clearly indicated its intention to permit such injustice, but on the contrary, has so frequently referred to the State of Oklahoma in its legislation on this subject as to plainly indicate its intention that such transactions for the benefit of the Five Civilized Tribes are to be confined to that State.

    Under section 4 of the act of May 10, 1928 (45
 


 

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OPINIONS OF THE SOLICITOR

JUNE 21, 1932

Stat, 495), as amended by the act of May 24, 1928 (45 Stat. 733), the nontaxable lands of members of the Five Civilized Tribes were limited to not exceeding 160 acres selected and designated as therein provided, the exemption running for a period co extensive with the period of restrictions against alienation which expires in 1956. Where such lands are disposed of in the manner provided for in the act of March 2, 1931, the investment of the proceeds therefrom in new nontaxable selections is in my opinion confined to lands in the State of Oklahoma.
 

E. C. FINNEY

BLACKFEET INDIANS-RIGHT TO
HUNT, FISH AND CUT TIMBER-
GLACIER NATIONAL PARK

M-27068                                                                                                                                         June 21, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In accordance with a reference of the Assistant Secretary, I have considered the questions submitted by the Director of the National Park Service concerning rights claimed on behalf of Blackfeet Indians to hunt and fish and cut timber within the Glacier National Park, Montana.

    The memorandum of the Director reads in part as follows:

    There is transmitted herewith for your information, letter dated April 22, 1932, from the Superintendent of the Glacier National Park transmitting copies of correspondence with Peter Oscar Little Chief of the Blackfeet Indian Reservation, concerning the rights of the Indians to fish, hunt and cut timber in the park. The Indians claim these rights are given to them under certain treaties heretofore made with the United States, copies of which are attached.

    Section 2 of the Act of May 11, 1910 (36 Stat. 354) which created the Glacier National Park provides that the area shall be under the exclusive control of the Secretary of the Interior who is authorized under the act to make rules and regulations for the care, protection, management and improvement of the park and for the care and protection of fish and game within its limits. The Act of August 22, 1914 (39 Stat. 699) accepted the cession of exclusive jurisdiction by the State of Montana over the lands embraced in the park. In this act, all hunting in the park was prohibited and it is further provided that fish may be taken from the waters of the park only at such seasons and in such times as may be directed by the Secretary of the Interior and the Secretary was also authorized to publish such rules and regulations as he may deem necessary and proper for the management and care of the park and for the protection of property therein, especially for the preservation from injury or spoliation of timber.

    The rights claimed are apparently based upon certain agreements between the United States and the Indians in connection with cessions of lands which were subsequently included within the National Park.

    By the act of Congress dated May 1, 1888 (25 Stat. 113), certain agreements entered into by commissioners on the part of the United States with the Gros Ventre, Piegan, Blood, Blackfeet and River Crow Indians in Montana, were ratified and confirmed. Under the terms of the agreements the reservation set apart by the act of April 15, 1874, for the use and occupancy of the above-named and other Indians was divided into separate reservations for the separate use and occupancy of the Indians named and portions were ceded and relinquished to the United States for a stated consideration. At page 129 the boundaries of the separate reservation for the Blackfeet Indians as determined by the agreement of February 11, 1887, are described as follows:

    It is hereby agreed that the separate reservation for the Indians now attached to and drawing rations at the Blackfeet Agency shall be bounded as follows, to wit:

    Beginning at a point in the middle of the main channel of the Marias River opposite the mouth of Cut Bank Creek; thence up Cut Bank Creek, in the middle of the main channel thereof, twenty miles, following the meanderings of the creek; thence due north to the northern boundary of Montana; thence west along said boundary to the summit of the main chain of the Rocky Mountains; thence in a southerly direction along the summit of said mountains to a point due west from the source of the North Fork of Birch Creek; thence due east to the source of said North Fork; thence down said North Fork to the main stream of Birch Creek; thence down Birch Creek, in the middle of the main channel thereof, to the Marias River; thence down the Marias River,



 

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in the middle of the main channel thereof, to the place of beginning.

    A further agreement by the commissioners for the United States and the Blackfeet Indians was signed at Blackfeet Agency on September 26, 1895. The act of June 10, 1896 (29 Stat. 321), at page 353 et seq., sets out in full the agreement as made, and accepted, ratified and confirmed the same. For the consideration named in the agreement the Indians conveyed to the United States a portion of the reservation as fixed in the act of May 1, 1888, supra. Article 1 of the agreement reads as follows:
    For and in consideration of the sums to be paid and the obligations assumed upon the part of the United States, as hereinafter set forth, said Indians of the Blackfeet Reservation hereby convey, relinquish, and release to the United States all their right, title, and interest in and to that portion of their present reservation in the State of Montana lying and being west of the following-described line, to wit:

    Beginning at a point on the northern boundary of the reservation due north from the summit of Chief Mountain, and running thence south to said summit; thence in a straight line to the most northeasterly point of Flat Top Crag; thence to the most westerly of the mouths of Divide Creek; thence up said creek to a point where a line drawn from the said northeasterly point of Flat Top Crag to the summit of Divide Mountain intersects Divide Creek; thence to the summit of Divide Mountain; thence in a straight line to the western extremity of the lower Two Medicine Lake; thence in a straight line to a point on the southern line of the right of way of the Great Northern Railway Company four miles west of the western end of the railway bridge across the north fork of the Two Medicine River; thence in a straight line to the summit of Heart Butte, and thence due south to the southern line of the present reservation; Provided, That said Indians shall have, and do hereby reserve to themselves, the right to go upon any portion of the lands hereby conveyed so long as the same shall remain public lands of the United States, and to cut and improve therefrom wood and timber for agency and school purposes, and for their personal uses for houses, fences, and all other domestic purposes: And provided further, That the said Indians hereby reserve and timber for agency and school purposes, and retain the right to hunt upon said lands and to fish in the streams thereof so long as the same shall remain public lands of the United States under and in accordance with the provisions of the game and fish laws of the State of Montana.

    The lands thus conveyed were afterward included in Glacier National Park and extend east of the divide to the present boundary of the Blackfeet Reservation. The provisions of the agreement of February 11, 1887, heretofore mentioned were continued in full force in so far as they did not conflict with the provisions of the subsequent agreement and act. The act confirming the agreement provided that upon the filing in the United States local land office for the district in which the lands surrendered by Article 1 of the agreement are situated, of the approved plat or survey authorized by this act, the lands so surrendered shall be opened to occupation, location and purchase under the provisions of the mineral land laws only, subject to the several articles of the foregoing agreement.

    Special attention is invited to the provisos in Article 1 above quoted, regarding the rights of the Indians to hunt and fish and cut timber on the lands conveyed "so long as the same shall remain public lands of the United States."

    By the act of May 11, 1910 (36 Stat. 354), the Glacier National Park was established. The act provides in part:

    That the tract of land in the State of Montana particularly described by metes and bounds as follows, to wit: Commencing at a point on the international boundary between the United States and the Dominion of Canada at the middle of the Flathead River: thence following southerly along and with the middle of the Flathead River to its confluence with the Middle Fork of the Flathead River; thence following the north bank of said Middle Fork of the Flathead River to where it is crossed by the north boundary of the right of way of the Great Northern Railroad; thence following the said right of way to where it intersects the west boundary of the Blackfeet Indian Reservation; thence northerly along said west boundary to its intersection with the international boundary; thence along said international boundary to the place of beginning, is hereby reserved and withdrawn from settlement, occupancy, or disposal under the laws of the United States, and dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States under the name of "The Glacier National Park;" and all persons who shall locate or settle upon or occupy the same, or any part thereof, except



 

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as hereinafter provided, shall be considered trespassers and removed therefrom: Provided, That nothing herein contained shall affect any valid existing claim, location, or entry under the land laws of the United States or the rights of any such claimant, locator, or entryman to the full use and enjoyment of his land.

    Section 2 of the act provides for the control and management of the park as follows:
    That said park shall be under the exclusive control of the Secretary of the Interior, whose duty it shall be, as soon as practicable, to make and publish such rules and regulations not inconsistent with the laws of the United States as he may deem necessary or proper for the care, protection, management, and improvement of the same, which regulations shall provide for the preservation of the park in a state of nature so far as is consistent with the purposes of this Act, and for the care and protection of the fish and game within the boundaries thereof.
    The questions submitted concern primarily the portion of the area within the park which was included within the conveyance by the Indians as described in Article 1 of the agreement of September 26, 1895, and subject to the provisos included therein.

    It will be noted that no restraint was placed by the agreement on the power of the United States to dispose of the land or to reserve it for public purposes, either of which would be inconsistent with the continuance of the privileges mentioned in the agreement. It is plain that it was the intention of the parties to the agreement and of Congress when it ratified the same and made certain provisions for survey and disposition of the land that the rights involved were only temporary in character, and that they would terminate with respect to any or all of the lands when they ceased to be public lands of the United States by reason of such disposition as Congress may have seen fit to make.

    The power over the public lands is vested in Congress by the Constitution without limitation, and has been considered the foundation on which the territorial governments rest. United States v. Gratiot (14 Pet. 526). It was a lawful exercise of the power to provide that the lands should be subject to disposition under the mining laws or other public land laws, and it was likewise within the power of Congress to set the lands apart for a public purpose. When the lands were disposed of or reserved for a public purpose, they ceased to be public lands of the United States as the term is understood in legislation. As generally used, the term applies to such lands as are subject to sale or other disposal under general laws. Newhall v. Sanger (92 U. S. 761). Lands which have been appropriated or reserved for a lawful purpose are not public lands and are to be regarded as impliedly excepted from subsequent laws, grants and disposals which do not especially disclose a purpose to include them. United States v. Minnesota (270 U. S. 181).

    In my opinion the rights to cut timber and to hunt and fish in accordance with the terms of the agreement were terminated as to any lands which had been disposed of under the public land laws, and as to the remainder when the lands were included within the Glacier National Park, by the act of May 11, 1910, supra, as the lands were no longer public lands of the United States.

    It is also to be noted that the right to hunt and fish as reserved was expressly subject to the provisions of the game and fish laws of the State of Montana. When the conveyance was made by the Indians and accepted by the United States, the Indian title was extinguished and the State game and fish laws became operative.

    By the act of the Legislature dated February 17, 1911, Chapter 33, Laws of Montana, 1911, exclusive jurisdiction was ceded to the United States "over and within all the territory which is now or may hereafter be included in that tract of land in the State of Montana set aside by the act of Congress approved May 11, 1910, for the purposes of a national park and known and designated as "The Glacier National Park." The State reserved the right to serve civil and criminal process and to tax persons and corporations, their franchises and property within the limits of the park.

    By act of Congress approved August 22, 1914 (38 Stat. 699), it was provided:

    That the provisions of the act of the Legislature of the State of Montana, approved February seventeenth, nineteen hundred and eleven, ceding to the United States exclusive jurisdiction over the territory embraced within the Glacier National Park, are hereby accepted, and sole and exclusive jurisdiction is hereby assumed by the United States over such territory, saving, however, to the said State the right to serve civil or criminal process within the limits of the aforesaid park in suits or prosecution for or on account of rights acquired, obligations incurred, or crimes committed in said State but outside of said park, and saving further to the said State the right to tax persons and corporations, their franchises and property, on the lands included in said park. All the laws applicable to places under the sole and



 

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exclusive jurisdiction of the United States shall have force and effect in said park. All fugitives from justice taking refuge in said park shall be subject to the same laws as refugees from justice found in the State of Montana.

    Section 2 provided that the park shall constitute a part of the United States judicial district of Montana, and that the district court of the United States in and for said district shall have jurisdiction of all offenses committed within said boundaries.

    The act further provided (Section 4) that "all hunting or the killing, wounding, or capturing at any time of any bird or wild animal, except dangerous animals when it is necessary to prevent them from destroying human lives or inflicting personal injury, is prohibited within the limits of the park;" also that no fish should be taken "in any other way than by hook and line, and then only at such seasons and in such times and manner as may be directed by the Secretary of the Interior." The Secretary was authorized to make necessary and proper rules and regulations for the management and care of the park and for the protection of the property, especially for the preservation from injury or spoliation of all timber, mineral deposits, etc., and for the protection of animals and birds in the park. Penalty is prescribed for the violation of the law and regulations.

    The game and fish laws of Montana were therefore no longer operative within the area, jurisdiction having been ceded to the United States, and Congress, after accepting the cession, made provision for the protection of game and fish as above noted. Preservation of timber was also made subject to rules and regulations prescribed by the Secretary of the Interior.

    Even as to unoccupied, unreserved lands of the United States in the case of Ward v. Race Horse (163 U. S. 504) it was held that a provision in the treaty taking effect February 24, 1869, between the United States and the Bannock Tribe of Indians occupying as a reservation territory afterward comprised within the limits of the State of Wyoming, that such Indians should have the right to hunt upon the unoccupied lands of the United States so long as game might be found thereon, and so long as peace subsisted, did not, on the admission of Wyoming into the Union as a State, under an act expressly declaring that the State should have all the powers of the other States of the Union, and made no reservation whatever in favor of such Indians, give them the right to exercise such hunting privileges in violation of the laws of the State.

    In the present case such hunting and fishing was expressly subject to the laws of the State of Montana. Likewise upon cession of jurisdiction the privileges were subject to the provisions of the acts of Congress.

    In view of the foregoing, it seems clear that in accordance with the terms of the agreement in question, the restricted privileges to cut timber and to hunt and fish upon the lands conveyed, were terminated when Congress exercised its power to reserve the lands and to dedicate them to a particular public use. Furthermore, the restricted hunting and fishing privileges, by reason of the cession of jurisdiction by the State and the legislation by Congress which superseded the prior game and fish laws of the State, could thereafter be exercised, if at all, only under and in accordance with the provisions of such legislation.

    Answering the question submitted, it is therefore my opinion that the claim made on behalf of the Blackfeet Indians of rights to cut timber and to hunt and fish within the boundaries of Glacier National Park can not be sustained.

                                                                                                                                                                E. C. FINNEY,

Solicitor.


Approved: June 21, 1932.
JOHN H. EDWARDS, Assistant Secretary.

IRRIGATION-NONCONSENTERS-
ENTITLEMENT TO DEFERRED
CHARGES

M-27124                                                                                                                                              July 25, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have submitted to me for opinion the question propounded by the Commissioner of the Bureau of Reclamation whether the so-called non-consenters on the Garland Division of the Shoshone project are entitled to the benefits of section 2 of the act of Congress of April 1, 1932, Public No. 70, 72d Congress.

    The Shoshone Irrigation District, a State quasi-municipal corporation, was formed to include the lands formerly comprising the Garland Division of the Shoshone project, Wyoming. On November 4, 1926, the district entered into a contract with the United States to pay the construction charge of the portion of the project within the limits of the district. The land had previously been covered by water-right applications signed by individual landowners and entrymen and the district contract left
 


 

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OPINIONS OF THE SOLICITOR

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such persons the option to remain under their existing contracts or to modify them to conform to the district contract with the United States, in which case the conforming landowners would be entitled to a longer period within which to pay their construction charge but would be subject to a joint liability, i.e., to a liability which by reason of default of other landowners there might be an increase in the amount of the construction charge to be paid by the individual landowner or entryman. The nonconforming landowners were called nonconsenters because they did not consent to the district contract with the United States but elected to carry out the provisions of their water-right application contract. With the consent of the district and the United States the nonconsenters may now assent to the district contract with the United States and modify their individual contracts accordingly.

    The act of Congress referred to is sometimes called the moratorium act of 1932. It attempts in sections 1 and 2 to divide all water users into two classes, namely, those defined in section 1 which have through districts or water users associations contracted with the United States for repayment of the construction charges and those defined in section 2 in which there are no organizations to contract collectively but where each individual water-right applicant or entryman must accept the act.

    In section 4 of the act the organizations and individuals are referred to in the same sentence in this manner: "At the expiration of the period for which deferment of charges is made under this act all districts, water users associations or other water users organizations and all individuals accepting the provisions hereof shall resume payment of charges" etc. And near the end of this same section it is stated: "In the case of any district, water users associations, or other water users organizations, or individuals under contract for payment of construction charge" etc., while in section 6 we find the same reference to organizations and individuals as follows: "The Secretary of the Interior in his discretion is further authorized to defer the payment to the United States from any water users organization as defined in section 1 hereof and from any individual water-right applicant or entryman of construction charges" etc. These references to the statute clearly indicate an intention on the part of Congress to include all water users within the scope of the act and does not show a plan to exclude any individual landowner or a particular class of landowner. In defining the two large groups, namely, those who have contracted collectively and those who have contracted individually, and for the purpose of excluding individuals under Warren Act contracts, the language in the first three lines of section 2 of the act was adopted.

    There is clearly no intention expressed in the history of the legislation, in the departmental or other correspondence, the hearings before the Committees, or the debates in Congress, to indicate that it wanted to exclude nonconsenting application landowners from the benefits of the act. The act of April 1, 1932, is a relief act and it should be liberally construed.

    It is my opinion that it is a reasonable construction of the law to say that sections 1 and 2 were descriptive of the two large bodies of water users, namely, organizations and individuals, and that nonconsenters on the Garland Division of the Shoshone project, and also nonconsenters on that and other projects, are entitled to the benefits of the moratorium act of April 1, 1932, supra.

                                                                                                                                                               E. C. FINNEY,

                                                                                                                    Solicitor.
Approved: July 25, 1932.
Jos. M. DIXON, First Assistant Secretary.

PINE RIDGE RESERVATION-
TITLE TO LAND

M-27121                                                                                                                                     July 25, 1932.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have presented to me for examination and expression of opinion as to title a deed executed June 3, 1932, by which Paul Standing Soldier, Pine Ridge Sioux Indian allottee No. 1931, and wife, May Standing Soldier, propose to convey to the United States for a consideration of $645 the following described land on the Pine Ridge Indian Reservation in South Dakota:

    "Lot 4, Sec. 30, T. 40 N., R. 37 W., 6th P.M., in South Dakota, containing 43 acres."
    No abstract of title has been furnished, but accompanying the record is a statement signed by Ida N. Sharon, register of deeds of Washabaugh County, the county in which the land is located, to the effect that there is no instrument of any kind
recorded against the land.

    The land involved constitutes a part of an allotment made to the grantor, Paul Standing Soldier, from the tribal lands on the Pine Ridge Indian
 


 

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DEPARTMENT OF THE INTERIOR

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Reservation in South Dakota, and for which a 25 year trust patent dated December 10, 1908, issued under section 11 of the act of Congress approved March 2, 1889 (25 Stat. 888, 891). Under the provisions of the statute and the terms of the trust patent, the allottee was without power to alienate the land before the expiration of 25 years. But by section 7 of the act of March 1, 1907 (34 Stat. 1015, 1018), allottees (to whom trust or other patents containing restrictions against alienation had been issued were given power to convey lands with the approval of the Secretary of the Interior with the declaration that conveyances so made and approved shall convey full title the same as if a fee simple patent had been issued to the allottee. See also section 7, act of May 27, 1902 (32 Stat. 245, 275); act of May 29, 1908 (35 Stat. 444), and the act of June 23, 1910 (36 Stat. 855).

    Under the provisions of the statutes mentioned it appears that the allottee, Paul Standing Soldier, may with your approval convey the lands allotted and patented to him, and I am of the opinion that the within deed when approved by you will convey good title to the United States.

    It should be observed that the consideration for the purchase of the land is to be paid from funds appropriated by the act of February 14, 1931 (46 Stat. 1115, 1130), for the "lease, purchase, repair and improvement of buildings at Indian day and industrial schools, not otherwise provided for including the purchase of necessary land;" further, that the tract being acquired has been used for the entire period of allotment for day school purposes, the necessary school buildings having been erected thereon about the time or shortly before allotment. Section 355, Revised Statutes of the United States (section 255, title 40, U.S.C.A.), prohibits the expenditure of any public money upon any site or land purchased by the United States for the purpose of erecting thereon any public building of any kind whatever until the written opinion of the Attorney General shall be had in favor of the validity of the title. It is unnecessary to decide whether a school building should be regarded as a public building within the meaning of this statute for the reason that the buildings in question appear to have been erected under authority expressly conferred by section 20 of the act of March 2, 1889, supra, which directed the Secretary of the Interior to cause to be erected not less than 30 schoolhouses, and more if found necessary, on the various reservations created for the Sioux as he should think for the best interest of the Indians. Buildings erected under the authority so conferred from funds appropriated by Congress for the purpose obviously do not come within the scope of section 355, Revised Statutes.

    The record indicates that there has been some controversy with the allottee, Paul Standing Soldier, over the use by the Government of his land, settlement of which is to be had by the purchase under consideration. In addition to execution of the within deed, it is suggested that, for the protection of the Government, it would be well to obtain from the allottee a formal release and relinquishment of any and all claims he may have against the Government for the past use of his land.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: July 25, 1932.
Jos. M. DIXON, First Assistant Secretary.

REGULATION OF REINDEER OWNED
BY ALASKA NATIVES

M-27127                                                                                                                                        July 26, 1932.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on certain questions submitted by Governor Parks of Alaska as stated in a communication by Messrs. Trowbridge and Gillman, field representatives, relating to the Alaska Reindeer Service. For convenience the statement is reproduced as follows:

    We have the honor to submit herewith several questions relative to disposition of reindeer estates, which have heretofore been handled by the Reindeer Service and in former years by the Bureau of Education employees. This subject has arisen on several occasions since our arrival and no doubt there will be additional cases encountered.

    Some of these estates consist of reindeer only, but there have been other cases, where the reindeer are only a small part of the property of the estate. In such cases, the estates are probated in the Territorial courts, where no recognition of the reindeer has been taken, and in other cases the courts have made disposition of the reindeer property. An important case now pending is that of the Peter Williams estate at Akiak, where serious difficulty has been encountered by the Department of Justice officials in following the laws pertaining to probate matters. This case has been assigned to us to investigate by the Secretary,



 

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at request of the Bureau of Indian Affairs.

    The following questions are submitted, in order that we may proceed with intelligence when contacting with these probate cases:

    1-Is there any authority of law for employees of the Reindeer Service to settle estates involving property consisting of reindeer and make distribution of reindeer owned by the estate, considering the fact that all natives of Alaska are citizens under the law?

    2-Does Section 23 of the Reindeer regulations authorize distribution of reindeer of estates of natives, considering that said section clearly refers to "herders", and further, that many natives own reindeer who never have been herders, have bought reindeer outright, and own reindeer, which were the result of the natural increase from those given them by the Government, or increase from those they purchased?

    3-If the regulations are supported by law, as to the disposition of reindeer by the Reindeer Service or any other branch of the Interior Department, does such authority cover instances where the estates include other property and which must be probated by the courts of Alaska?

    In our opinion, reindeer are not restricted property of the natives, except as relates to female stock, which he can dispose of only where there is in excess of 100 head. This is the only restriction that we are aware of and this covered by regulation, which is not supported by any Act of Congress.

    In some reindeer organizations, certificates of stock are issued,-one share of stock for each reindeer owned. When an estate is to be settled, the shares of stock in the company is the item to be disposed of by the duly appointed administrator, not the livestock itself. The duty of an official administrator of an estate is to divide the property according to the instructions of the court. In the majority of estates in the reindeer region, the estate consists only of reindeer and the courts have seldom taken action in such cases, except where creditors presented claims against the estate and where the ownership of reindeer were large in numbers.

    Article 3 of the treaty of March 30, 1867 (13 Stat. 539) by which Alaska was ceded to the United States provides:

    The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.
    While the treaty made a distinction between the civilized or settled tribes and the uncivilized tribes (see case of Minook, 2 Alaska Rep. 200), it appears that Congress in extending protection and bestowing benefits for the welfare of the natives has included all the natives in its benefactions. The question of the status of the natives of Alaska was given careful consideration in an opinion by Solicitor Edwards under date of May 18, 1923 (49 L. D. 592), wherein it was recited that for a long time after the cession of the Territory Congress took no particular notice of these natives, and made no particular provision for their support and education, and that under such conditions it was held in the earlier days that these natives did not bear the same relation to the Government, in many respects, as was borne by the American Indians, but that:
    Later, however, Congress began to directly recognize these natives as being, to a very considerable extent at least, under our Government's guardianship and enacted laws which protected them in the possession of the lands they occupied; made provision for the allotment of lands to them in severalty, similar to those made to the American Indians; gave them special hunting, fishing and other particular privileges to enable them to support themselves, and supplied them with reindeer and instructions as to their propagation. Congress has also supplied funds to give these natives medical and hospital treatment and finally made and is still making extensive appropriations to defray the expenses of both their education and their support.

    Not only has Congress in this manner treated these natives as being wards of the Government but they have been repeatedly so recognized by the courts. See Alaska Pacific Fisheries v. United States (248 U. S., 78); United States v. Berrigan et al. (2 Alaska Reports, 442); United States v. Cadzow et al. (5 id., 125), and the unpublished decision of the District Court of Alaska, Division No. 1, in the case of Territory of Alaska v. Annette Islands Packing Company et al., rendered June 15, 1922.

    From this it will be seen that these natives



 

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JULY 26, 1932

are now unquestionably considered and treated as being under the guardianship and protection of the Federal Government, at least to such an extent as to bring them within the spirit, if not within the exact letter, of the laws relative to American Indians.

    In another elaborate opinion by the Solicitor of this Department approved under date of February 24, 1932, it was stated:
    From the foregoing it is clear that no distinction has been or can be made between the Indians and other natives of Alaska so far as the laws and relations of the United States are concerned whether the Eskimos and other natives are of Indian origin or not as they are all wards of the Nation, and their status is in material respects similar to that of the Indians of the United States. It follows that the natives of Alaska, as referred to in the treaty of March 30, 1867, between the United States and Russia, are entitled to the benefits of and are subject to the general laws and regulations governing the Indians of the United States, including the citizenship act of June 2, 1924 (43 Stat. 253).
    It, therefore, appears that former uncertainty as to the legal status of the natives of Alaska has been measurably clarified through various opinions and adjudications, so that, if not Indians in fact, their relation to the Government has come to be regarded as fairly analogous to that of the Indian tribes in the several States of the Union, and that they are to be considered as included in the operation of general laws appertaining to Indians.

    In this connection it is pertinent to consider the provisions of the act of June 25, 1910 (36 Stat. 855) and acts amendatory thereof. Section 1 of that act, as amended by the act of March 3, 1928 (45 Stat. 161), provides that when any Indian to whom an allotment of land has been made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will, as further provided by law, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. Provision is also made for partition or sale of such property. Section 2 of the said act, as amended by the act of February 14, 1913 (37 Stat. 678), provides that any persons of the age of 21 years having any right, title, or interest in any allotment held under trust or restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior, but no such will shall be valid unless and until it shall have been so approved. The approval of the will does not operate to remove the restrictions on alienation, but ,the Secretary of the Interior may in his discretion, upon the death of the testator, remove the restrictions and dispose of the property and pay the moneys to the legatee or legatees in whole or in part from time to time as he may deem advisable, or use the proceeds for their benefit.

    Section 12 of the act provides that where any such allottee, having a restricted allotment, dies without heirs, the Secretary of the Interior shall report the facts to Congress with a recommendation for the cancellation of the patent.

    The act of January 24, 1923 (42 Stat. 1174, 1185) provides that upon a determination of the heirs to any trust or restricted Indian property of the value of $250 or more, or to any allotment, or after approval by the Secretary of any will covering such trust or restricted property, there shall be paid by such heirs, or by the beneficiaries under such will, or from the estate of the decedent, or from the proceeds of sale of the allotment, or from any trust funds belonging to the estate of the decedent, certain graduated fees, which amount shall be accounted for and paid into the Treasury of the United States.

    Elaborate regulations have been promulgated for the administration of these laws in respect to Indians in the States, but so far as observed they have not been applied in respect to trust property of the natives in Alaska. No reason is seen why these laws do not have operation in respect to restricted allotments and other restricted property of natives in Alaska. However, an examination of the regulations under which these laws are administered in the States leads me to believe that they are too elaborate and involved for practical application in the sparsely settled regions and broad expanse of Alaska. Doubtless other regulations simplified to meet conditions in Alaska could be adopted for operation there with greater satisfaction.

    As a broad outline of appropriate procedure, I would suggest that where an estate is being probated in a local court involving a restricted allotment or other restricted or trust property of a native of Alaska, that some properly designated employee of the Department be required to procure a copy of the records made in that connection bearing upon the points in which this Department would be interested in the determination of the heirs and the disposition of the restricted property, to be submitted to the Indian Office with appropriate rec-
 


 

323

OPINIONS OF THE SOLICITOR

JULY 26, 1932

ommendation, whereupon decision can be prepared for action by the Secretary. Ordinarily such a record should afford adequate basis for departmental action. In cases where probate proceeding in a local court is not contemplated, such designated employee should be required to give suitable notice and ample opportunity for a hearing before him on a certain date, whereupon pertinent evidence should be taken, in respect to the heirs and the restricted property, and forwarded to the Indian Office with appropriate recommendation, such evidence and recommendation to be considered by the Indian Office and finally by the Secretary. Experience in the handling of the cases as they arise will indicate such additional details of administration as may be needed in practical operation.

    In more specific response to the questions submitted, I am of opinion, that question 1 must be answered in the negative. If the reindeer are owned by the native in his own right, altogether free from restriction, it is not a case where the Government should take any part in the administration of the estate. But if there be such restricted property then the case should be handled in the manner above outlined or under such regulations as may be adopted. But I do not think an employee of the Reindeer Service could be authorized to settle such estates. That function is lodged in the Secretary of the Interior.

    Question 2 is substantially answered in the answer to question 1. Where the deceased native owned the reindeer without restriction there is no authority for the Department to administer on them, that function being appropriate for a local court.

    Question 3 seems to relate to cases where both restricted and unrestricted property is involved. In such case this Department can deal only with the restricted property, leaving the free property for disposal under local law.

    Regarding the general observations by the said field representatives as to restrictions in the regulations on the sale of reindeer, reference is made to the authority for such regulations in section 39, title 48, U. S. Code which provides:

    All reindeer owned by the United States in Alaska shall as soon as practicable be turned over to missions in or natives of Alaska, to be held and used by them under such conditions as the Secretary of the Interior shall prescribe. The Secretary of the Interior may authorize the sale of surplus male reindeer and make regulations for the same. The proceeds of such sale shall be turned into the Treasury of the United States. The Commissioner of Education is authorized to sell such of the male reindeer belonging to the Government as he may deem advisable and to use the proceeds in the purchase of female reindeer belonging to missions and in the distribution of reindeer to natives in those portions of Alaska in which reindeer have not yet been placed and which are adapted to the reindeer industry.
    In an opinion by the Solicitor of this Department dated September 16, 1931, it was said:
    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 Superintendent 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
 


 

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JULY 26, 1932

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.

    In respect to the instances mentioned where reindeer have been turned over to reindeer organizations and certificates of stock issued thereon-one share of stock for each reindeer owned-I am unable to render any definite opinion on the statement presented as to what effect that would have as regards restricted reindeer so involved. It is conceivable, however, that the Government could claim the right to control the disposition of any such restricted reindeer if the transaction had not been approved by a proper administrative officer. Any such cases should be specially reported for appropriate consideration.

                                                                                                                                                              E. C. FINNEY,

Solicitor.

Approved: July 26, 1932.
Jos. M. DIXON, Acting Secretary.

LAND PURCHASE-PUEBLO INDIANS

M-27145                                                                                                                                   August 4, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, you have requested my views upon certain matters arising in connection with the proposed purchase for the benefit of the Pueblo Indians in New Mexico of certain lands the title to which has been determined under the provisions of the act of June 7, 1924 (43 Stat. 636) to rest in non-Indian claimants.

                            *                                *                                *                                *                                *

    Regarding the taxability of these lands, the third question raised, I am in full accord with the views expressed by the commissioner of Indian Affairs in his letter of March 25, 1932, addressed to Mr. Walter Cochran, special attorney for the Pueblo Indians, that the lands are not taxable by the State of New Mexico after restoration of title to the Indians. The status of the Pueblo Indians and their lands and relation of the United States to both was considered in United States v. Sandoval, 231 U. S. 28. The Court there said:

    Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State. * * * It is for that body (Congress) and not for the courts to determine when the true interests of the Indian require his release from such condition of tutelage".

    Of course, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time, they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress and not by the courts.

    As before indicated, by an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the Government have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary but must be regarded as both authorized and controlling.

    It is thus established that the Pueblo Indian tribes in New Mexico are dependent communities under the protective care of the United States and that they and their lands are subject to the legislation enacted by Congress in the exercise of the
 


 

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AUGUST 5, 1932

Government's guardianship powers. The power of Congress to provide for the restoration by purchase to the Indians of title to lands originally belonging to them is, of course, unquestioned. The measures taken to that end having been taken in the exercise of the Government's guardianship powers over the Indians, it seems clear that the lands so restored can not be regarded other than as instrumentalities employed by the Federal Government for the protection and control of these dependent people. So regarded, the lands from and after restoration of title to the Indians are, in my opinion, not subject to taxation by the State of New Mexico. See United States v. Rickert, 188 U. S. 432.

E. C. FINNEY,

Approved: August 4, 1932.
Jos. M. DIXON, First Assistant Secretary.

FIVE TRIBES-LAND CONVEYANCE-
TAXATION

M-27158                                                                                                                                           August 5, 1932.

SYNOPSIS

    Conveyance of tribal and allotted lands of the Five Tribes to purchasers are taxable under Federal Revenue Act of 1932 (Public No. 154, 72d Cong., Sec. 725).

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether conveyances of unallotted lands belonging to the Five Civilized Tribes in Oklahoma and conveyances of restricted allotted lands belonging to the individual members of said tribes made to purchasers pursuant to sales of such land authorized by Congress, are subject to that provision in the Federal Revenue Act approved June 6, 1932 (Public No. 154, 72d Cong., Sec. 725, Stamp Tax on Conveyances), which reads:

    8. Conveyances: Deed, instrument, or writing, delivered on or after the 15th day after the date of the enactment of the Revenue Act of 1932 and before July 1, 1934 (unless deposited in escrow before April 1, 1932), whereby any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his, her, or their direction, when the consideration or value of the interest or property conveyed, exclusive of the value of any lien or encumbrance remaining thereon at the time of sale, exceeds $100 and does not exceed $500, 50 cents; and for each additional $500 or fractional part thereof, 50 cents. This subdivision shall not apply to any instrument or writing given to secure a debt.
    Article 75, Regulations 71, of the Bureau of Internal Revenue, as revised in July, 1932, states that the act requires that the person who makes, signs, or issues any instrument taxable under the above provision, shall affix and cancel the revenue stamps, and prohibits any person from accepting such instruments unless they are properly stamped. It may be proper to observe, also, that it is doubtful whether any instrument of conveyance not so stamped would be accepted for recordation in the recording office of the county in which the land is located. Section 802 of the act declares that whoever makes, signs, issues or accepts, or causes to be made, signed, issued, or accepted, any instrument, document, or paper of any kind or description whatsoever without the full amount of tax thereon being duly paid is guilty of a misdemeanor and upon conviction thereof shall pay a fine of not more than $100 for each offense.

    The identical question here presented arose under the Revenue Act of October 22, 1914, (38 Stat. 745-762), and October 3, 1917, (40 Stat. 300-323), and was considered and decided by the Commissioner of Internal Revenue. On November 21, 1916, the Commissioner, in a letter addressed to the Honorable Robert L. Owen, after referring to the status of these Indians and their lands and the relation of the United States to both, held that:

    A deed executed by a principal Chief of a tribe conveying unallotted land to an outside purchaser, or a deed executed by an individual Indian conveying, land to an outside purchaser, is a transfer of an interest in realty for a valuable consideration that is taxable under the above act, and revenue stamps should be affixed to deeds of this character in accordance with the rulings made in T. Ds 2115 and 2123, copies enclosed.
    Again, on February 13, 1918, in a letter addressed to the Assistant Secretary of the Interior, the Commissioner of Internal Revenue gave further consideration to the matter and ruled:
    This office holds that under the Act of Oc-

 


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