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326

DEPARTMENT OF THE INTERIOR

AUGUST 5, 1932

tober 3, 1917, a deed executed by the principal Chief of a tribe with the approval of the Secretary of the Interior conveying to an individual member of the tribe an allotment to which he is entitled by law, does not require a tax stamp. A deed executed by an allottee to an outside purchaser requires a tax stamp.

    With regard to deeds of unallotted lands to outside purchasers at auction sales, it is understood that the title to these lands is in the tribe or nation and that the proceeds from the sales of the lands inure to the benefit of the tribes. The United States simply acts as guardian for the Indians and as agent in selling the unallotted lands. The deed given by the principal Chief of the tribe to the purchasers is not an instrument issued by the United States in the exercise of a strictly governmental function and requires a tax stamp.
    This Department accepted the above interpretation of the law and advised the Superintendent for the Five Civilized Tribes accordingly, with the instruction that the purchaser should be required to provide the necessary revenue stamps to be affixed to the deeds (See the letter signed by the Assistant Commissioner of Indian Affairs, December 9, 1916, and approved by the First Assistant Secretary of the Interior December 16, 1916; also letter signed by the Assistant Commissioner of Indian Affairs on February 26. 1918, Indian Office file 49876-16, Five Tribes 053).

    The existing restrictions against alienation of the lands belonging to the members of the Five Civilized Tribes otherwise expiring on April 26, 1931, were extended by the act of May 10, 1928 (45 Stat. 495), until 1956. Section 3 of that act subjected the mineral production from all the restricted lands to taxation. Section 4 declared that on and after April 26, 1931, all of the restricted lands exclusive of 160 acres to be selected and designated by each Indian as therein provided, shall be subject to taxation. As to the 160 acres so selected and designated, it was declared that the same was to remain exempt from taxation while title remained in the Indian designated or in any full blood heir or devisee of the land.

    Conveyances affecting the individually owned restricted lands, to which no exemption from taxation attaches, are clearly taxable under the stamp-tax provisions of the Revenue Act. The taxability of conveyances of the tribal lands and the individually owned lands designated as tax exempt is more doubtful. However, the statute contains no provision exempting such conveyances from the tax and the language used is certainly broad enough to include the subject matter. Where this is so, "the intent to exclude must be definitely expressed" (Choateau v. Burnett, 283 U. S. 691, 698). Moreover, the situation with respect to the alienation and taxation of these lands, is not essentially different from that which existed at the time of the rulings of the Commissioner of Internal Revenue mentioned above, and as the provisions of the Revenue Act of 1932 imposing the stamp tax on conveyances is framed in language much the same as that contained in the former Revenue Acts, it is obvious that said rulings apply with equal force to the present law.

    It is my opinion, therefore, that the tax imposed by section 725 of the Bowman Act of 1932 should be paid in the cases under consideration, such payment to be evidenced by the affixing of stamps to the deeds, the necessary stamps to be provided by the purchaser in accordance with the instructions contained in the communications of December 16, 1916, and February 26, 1918, above referred to.

Solicitor.


 Approved:
First Assistant Secretary.

ENROLLMENT FOR PARTICIPATION
IN FUND DISTRIBUTION-
FT. HALL

M-26520                                                                                                                                        August 13, 1932.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to the right of Leonard Stone, a full blood minor Indian, born on the Fort Hall Reservation in Idaho on March 23, 1923, to enrollment for a share in the $400,000 payment distributed to the Fort Hall Indians under the act of March 3, 1927 (44 Stat. 1397), which reads:

    That the Secretary of the Interior be, and he is hereby, authorized to withdraw from the Treasury of the United States $400,000 of the fund created by the Act of May 9, 1924 (Forty third Statutes at Large, page 118), and now on deposit therein to the credit of the Indians of the Fort Hall Reservation, Idaho, as compensation for their land submerged by the American Falls Reservoir, and to distribute said sum among said Indians equally, share and share alike, under such rules and regulations as he may prescribe.



 

327

OPINIONS OF THE SOLICITOR

AUGUST 13, 1932

    Section 1 of the act of May 9, 1924 (43 Stat. 117), granted to the United States the tribal and allotted lands within that section of the Fort Hall Reservation known as Fort Hall Bottoms for reservoir purposes in connection with the Minidoka irrigation project. Section 3 provided:

    That in consideration of the rights granted in section 1 hereof, of both tribal and allotted lands, there shall be deposited in the Treasury of the United States to the credit of the Fort Hall Indians the total sum of $700,000, which sum shall be taken from moneys appropriated for the construction of said reservoir: Provided, That the said sum of $700,000 when so deposited, shall draw, interest at the rate of 4 per centum per annum.
    The amount withdrawn for distribution under the act of March 3, 1927, was part of the fund created by section 2 above and represented, of course, common or community funds of the tribes occupying the Fort Hall Reservation-the Shoshones and the Bannocks.

    Prior to the above enactments the Department on June 30, 1922, approved a final roll of the Fort Hall Indians to close as of April 15, 1921, under the provisions of section 28 of the act of May 25, 1918 (40 Stat. 561, 591), and the act of June 30, 1919 (41 Stat. 3, 9). Distribution of the $400,000 payment authorized by the act of March 3, 1927, supra, was not limited by the Indian Office to the Indians whose names appeared upon the final roll. Instead that office instructed the superintendent at Fort Hall to use such final roll as a basis for a new roll, adding ,thereto the names of children born between April 15, 1921 (the date the final roll closed), and midnight March 31, 1927, and eliminating the names of those who died within that period. Under these instructions, Leonard Stone, the above applicant, would have been clearly entitled to enrollment, he having been born on the reservation within the period mentioned. In fact his sister, Cathalena Stone, born two years later, was enrolled and participated in the payment as well as "innumerable other children born after April 15, 1921." (See in this connection letter dated March 7, 1931, signed by the superintendent of the Fort Hall Reservation, Cl. 381718.) Nevertheless, the application of Leonard, first approved by the Commissioner of Indian Affairs on April 9, 1929, was reconsidered and denied by the Commissioner on May 4, 1929, on the ground that there was no authority to add his name to the final roll approved on June 30, 1922, to close as of April 15, 1921.

    Section 28 of the act of May 25, 1918, supra, provides in part:

    That the Secretary of the Interior be, and he is hereby, authorized, under such rules and regulations as he may prescribe, to withdraw from the United States Treasury and segregate the common, or community funds of any Indian tribe which are, or may hereafter be, held in trust by the United States, and which are susceptible of segregation, so as to credit an equal share to each and every recognized member of the tribe except those whose pro-rata shares have already been withdrawn under existing law, and to deposit the funds so segregated in banks to be selected by him, in the State, or States in which the tribe is located, subject to withdrawal for payment to the individual owners or expenditures for their benefit under the regulations governing the use of other individual Indian moneys. * * * Provided, however, That the funds of any tribe shall not be segregated until the final rolls of said tribe are complete; * * *
    The act of June 30, 1919, reads in part:
    That the Secretary of the Interior is hereby authorized, wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian blood, when approved by the said Secretary are hereby declared to constitute the legal membership of the respective tribes for the purpose of segregating the tribal funds as provided in section 28 of the Indian Appropriation Act approved May 25, 1918 (Fortieth Statutes at Large, pages 591 and 592), and shall be conclusive both as to ages and quantum of Indian blood; * * *.
    The making of a final roll of the Fort Hall Indians under authority of the foregoing acts seems to have been suggested at first in connection with the distribution of a tribal fund carried as the "Shoshone and Bannock fund", originating under the act of July 3, 1882 (22 Stat. 148, 149), by which a right of way across the Fort Hall Reservation was granted to the Utah and Northern Railroad for a consideration of $6000. This fund was augmented, however, by additional revenue derived from the opening of town sites, sales of additional land, etc., until in 1919 the amount was approximately $7241.83. The record relating to the final roll, however, shows very clearly that is was not to be confined to the particular fund mentioned. The council, speaking for the Indians, had passed a
 


 

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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1932

resolution (No. 5), requesting that the tribal rolls be closed as of April 15, 1921, and that only Indians alive and entitled to enrollment on that date "shall be permitted to receive allotments of land with the Fort Hall Indians and participate in the distribution of funds belonging to said tribes." Regarding this resolution, the Commissioner of Indian Affairs by letter dated February 20, 1921, advised the superintendent that the final roll could not be regarded as a land allotment roll, but that the resolution would be approved "in so far as it fixes April 15, 1921, as the date for the closing in the field of the trust fund roll." In presenting the roll to the Department for approval the Commissioner of Indian Affairs stated:

    Pursuant to the provisions of the acts of Congress referred to the Superintendent in charge of the reservation was directed to proceed with the preparation of the roll to close in the field as of April 15, 1921, and to use as a basis there for the last tribal annuity and census rolls, making the necessary additions thereto and omissions therefrom on account of births and deaths up to the date of the closing of the roll in the field. He was also requested, in view of the final closing of the roll, to give the widest possible publicity to the matter in order that the tribe and all persons in interest might know of the action contemplated and its future effect, and be given ample opportunity to have their names and the names of any relatives or members of their families, if entitled, placed upon the roll.
    The foregoing but illustrates the clear understanding of the Indians and the Department that the approved roll was to be final and should control in any distribution of the tribal and community funds thereafter made. The acts of 1918 and 1919 expressly so provide. The provisions of those acts taken together are that the final rolls shall constitute the legal membership of the tribe for the purpose of segregating the tribal or community funds of the tribe. Speaking of these provisions, the Comptroller General in decision dated March 15, 1923 (2 Comp. Gen. 554), stated:
    There appears to be no question but that the final roll once made, and after its approval by the Secretary of the Interior, constitutes the legal membership of the tribe for the segregation of not only the particular tribal fund considered at the time such final roll is made but for all other tribal funds susceptible of and subsequently segregated for distribution.
    See also opinion of the Solicitor for this Department dated April 24, 1923, M. 14233, quoting with approval the following view expressed by the Department as to the finality of the roll of the Flathead Indians approved under the acts of 1918 and 1919:
    It was undoubtedly intended by the act of June 30, 1919, and by the approval of January 22, 1920, that the membership roll of the tribe should be a final roll in fact as well as in name. It is also clear that by subsequently permitting additions to the roll its finality would not only be disturbed but also the pro rata distribution of the tribal funds.
    In the case considered by the Solicitor several children apparently entitled to enrollment had for various reasons been omitted from the roll, and the conclusiveness of the roll is further illustrated by the fact that legislation was necessary to place them upon the roll. (See act of May 31, 1924, 43 Stat. 246).

    It might be urged, of course, that the funds in question were authorized to be withdrawn and distributed by the act of March 3, 1927, and that strictly speaking there was no withdrawal and segregation by the Secretary under Section 25 of the act of May 25, 1918. Be that as it may, this would afford no reasonable ground for holding that the final roll must be disregarded and an entirely new roll compiled embracing only those Indians living upon the date of the act authorizing payment, as the plain effect of such a new roll would be to destroy the finality of the former roll and strip it of the conclusive character which Congress declared that it should have.

    Changes and alterations in final rolls once made and approved, whether involving additions to the rolls or eliminations therefrom, are not to be approached with impunity and ought not to be attempted in the absence of clear legislative authority therefor. I find no such authority in the act of May 9, 1924, or in the act of March 3, 1927, supra. The former act, which created the fund under discussion, created the same for the benefit of the "Fort Hall Indians". The later act authorized the withdrawal and distribution to the "Indians of the Fort Hall Reservation" equally, share and share alike. In the absence of some provision to the contrary, the terms "Fort Hall Indians" and "Indians of the Fort Hall Reservation" must be construed to mean those whose names appear upon the final membership roll approved on June 30, 1922. Disregard of that roll through administrative error or mistake can not, of course, justify the further enrollment of persons born since the closing
 


 

329

OPINIONS OF THE SOLICITOR

SEPTEMBER 3, 1932

of the roll nor the continued participation by such a person now erroneously on the roll in distributions of the tribal or community funds.

    The applicant Leonard Stone having been born since the closing of the final roll, is not in my opinion entitled to enrollment for participation in the moneys distributed under the act of March 3, 1927.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: August 13, 1932.
JOS. M. DIXON, First Assistant Secretary.

CUSTOM MARRIAGE-VALIDITY-ALASKA

54 I.D. 39
M-27185                                                                                                                                     September 3, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the validity of marriage by custom among the natives or Indians of Alaska.

    The subject is a sensitive one, touching closely, as it does, the instincts and customs of a primitive people, and, so far as I have been able to find, has neither been the subject of judicial investigation nor dealt with expressly by legislation, either Federal or Territorial. The Territorial Legislature has, to be sure, enacted laws regulating the subject of marriage among its inhabitants; (See sections 435 and 437, Compiled Laws of Alaska, 1913; Chapter 56, Session Laws of Alaska, 1917, p. 117; Chapter 58, Session Laws of Alaska, 1932, p. 84; Chapter 77, Session Laws of Alaska, 1929, p. 164). Bearing in mind, however, that these are not laws of the United States, but Territorial laws of a general nature making no specific mention of the natives or Indians, it may prove helpful in determining the applicability of such laws to the natives or Indians to first discuss the status of these people and the relation which they bear to the Federal Government,-matters which have been the subject of several opinions by the Solicitor for this Department.

    Solicitor Edwards, in an opinion dated May 18, 1923 (49 L. D. 592), after pointing out that in earlier times the view prevailed that the natives of Alaska did not bear the same relation to the Government in many respects as was borne by the American Indians, said:

    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 71. Annette Islands Packing Company et al., rendered June 15, 1922.

    From this is 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.

    The subject was more exhaustively treated in my recent opinion of February 24, 1932 (M. 26915), wherein it was stated after an extended review of the applicable statutes and court decisions:
    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).



 

330

DEPARTMENT OF THE INTERIOR

SEPTEMBER 3, 1932

    The foregoing opinions were referred to, followed and applied in my opinion of July 26, 1932 (M. 27127), in which it was held that the general laws enacted by Congress conferring jurisdiction upon the Secretary of the Interior in the matter of probating the estates of deceased American Indians, might be applied with respect to the restricted allotments and other restricted property of deceased Alaskan natives. In that opinion it was said, among other things:

    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 view of the foregoing opinions, which appear to be fully supported by the authorities therein cited, it must now be regarded as established that the native tribes of Alaska occupy substantially the same relation to the Federal Government as their American neighbors; that they are a dependent people under the protective care of the United States; that they and their affairs are subject to such legislation as Congress may see fit to enact for their benefit and protection, and that the laws of the United States with respect to the American Indians are applicable generally to the natives of Alaska.

    Regarding the American Indians, it may be said that at the time of the formation of the Federal Government several of the Indian tribes found here were powerful and warlike, and it was found expedient to treat them as possessing some of the attributes of sovereignty and to deal with them as nations by entering into treaties with them. Later, treaties with such Indian tribes were superseded by Federal legislation, by which the remnants of the tribes were subject to general government and located on reservations. Broadly speaking, the policy of the Federal Government in this legislation was to guarantee to the Indian tribes control over their internal and social affairs. United States v. Kagama (118 U. S. 375); United States v. Quiver (241 U. S. 602); United States v. Hamilton (233 Fed. 685). In the case of United States v. Kagama, the court said:

    With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as Nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the union or of the State within whose limits they resided.
    And in United States v. Quiver, supra, it was held that:
    The policy reflected by the legislation of Congress and its administration for many years is that the relations of the Indians among themselves are to be controlled by the customs and laws of the tribe, save when Congress expressly orclearly directs otherwise.
    In line with this national policy of permitting the aborigines to be controlled in their internal and social affairs by their own laws and customs, the courts, both State and Federal, when called upon to consider the validity of marriage and divorce by so-called Indian custom, have almost uniformly upheld them on the theory that the National Government has recognized the autonomy of the Indians in such matters and thus removed them from the realm of State law in this respect. The authorities bearing upon this subject will be found collected in my opinion of April 12, 1930 (53 I. D. 78), dealing generally with the subject of Indian custom, marriage and divorce. No useful purpose will be served by specific reference here to all of these authorities, but it may be pointed out that wardship alone is not sufficient, the courts in practically every instance in which a marriage or divorce contrary to the laws of the land is upheld, making the same dependent upon the fact that at the time of such marriage or divorce the parties retained their tribal relations (see in this connection In re Wo-gin-up's estate, 192 Pac. 267); that there was no Federal statute rendering the tribal customs invalid (Buck v. Branson, 127 Pac. 436); and that such marriages, though possessing some elements in common with common law marriage among the whites, is not in fact a common law marriage, but a marriage as legal as one by ceremony among the whites: (Buck v. Branson, supra).

    Turning again to the natives of Alaska: The third Article of the treaty of March 30, 1867 (15 Stat. 539), by which Russia ceded Alaska to the United States, provided for the protection of the citizenship of the inhabitants of the ceded territory, as follows:

    The inhabitants of the ceded territory, ac-



 

331

OPINIONS OF THE SOLICITOR

SEPTEMBER 3, 1932

cording 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.

    As pointed out in United States v. Berrigan (2 Alaska Reports 442), the above stipulation divided the inhabitants into three general classes: (1) Those Russian subjects who preferred to reserve their natural allegiance were to do so and were permitted to return to Russia within three years; (2) Those Russian subject who preferred to remain in the ceded territory, and were guaranteed that they should 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; and (3) the uncivilized tribes in the territory who were promised that they should "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 effect of the treaty upon this latter class, i.e., the uncivilized tribes, was considered in the case of In re Minook (2 Alaska Reports, 200, 221). Judge Wickersham, speaking for the court said:
    The meaning of this sentence in a treaty between Russia and the United States is clear; it was intended to and does extend all general laws and regulations which the United States may from time to time adopt in regard to the Indian tribes of the United States to and over the Indian tribes of Alaska. Upon its ratification and its further approval by Congress, this treaty and this clause became the supreme law of the land. It gave the Indian tribes of Alaska the same status before the law as those of the United States, and, unless a different intention appears upon the face of the law, extends all acts of Congress, applicable and of a general nature, relating to the Indians of the United States to Alaska.
    As to what tribes were included in the term "un-Civilized tribes," the court ruled that they "were those independent pagan Tribes who acknowledged no allegiance to Russian, and lived the wild life of their savage ancestors."

    In United States v. Berrigan, supra, it was held that the Athapascan stock, including the native bands of the Tanana belonged to the uncivilized tribes mentioned, saying:

    The pleadings and evidence in this case show that the natives for whom the government appears belong to that stock so widely scattered throughout the Yukon and its tributary valleys, and which the science of ethnology classes as belonging to the Athapascan stock. Nor is this stock confined even to the wide ranges of the Yukon; they inhabit the whole interior of Alaska, a region almost as large as the United States east of the Mississippi river, and also nearly the whole of British North America; they crossed the mountain ranges at the head of the Yukon, and inhabited the upper Columbia Lakes. Bands of these hardy rovers were found in Washington, Oregon, and northern California; they passed from the Columbia river basin, probably by the way of the Great Salt Lake county, into New Oregon, and the Navajos and dread Apaches of the Mexican border, belong to this widely distributed family, and speak the common stock language spoken by their northern brothers along the Tanana and Yukon. Throughout their wide southern migration they have everywhere preserved and are characterized by a wild and roving disposition, and of all the native tribes of North America they more nearly than any other are fitly described as "uncivilized native tribes." Roche v. Washington, 19 Ind. 53, 56, 81 Am. Dec. 376. The Tinneh tribes of Alaska were uncivilized native tribes at the date of the treaty with Russia, and the evidence in this case shows that the band for which this suit is brought still occupies that plane of culture.
    In addition to the Athapascan stock occupying the interior of Alaska, the native population of the territory may be classified as the Eskimos, the Aleuts, and the Thlinkets. In southeastern Alaska also are found the Haidas and Tsimpsean Indians. The latter came to Alaska a half century ago with Father Duncan, an English missionary, and founded Metlakatla on Annette Island near Ketchikan. This island was subsequently made an Indian reservation, the only one in Alaska and more than 500 natives live there today. With them, however, we are not particularly concerned as they are perhaps the farthest advanced of any of the native tribes and no longer follow the native custom of marriage and divorce. The Eskimos found along the shores
 


 

332

DEPARTMENT OF THE INTERIOR

SEPTEMBER 3, 1932

of the Arctic Ocean and on the islands of Bering Sea and the Aleutian chain, numbering nearly 20,000, constitute the bulk of the native population. Of these natives, those, who like their Athapascan neighbors of the interior, still live under the primitive conditions in regions remote and difficult of access, influenced by superstition and following the crude customs inherited from their ancestors, should undoubtedly be classed as among the "uncivilized tribes" referred to in the Treaty of 1867.

    As to the marriage customs prevailing among these primitive people, considerable information has been furnished by the librarian and curator of the Territorial Library and Museum, consisting of excerpts and quotations from various writers who have investigated the subject, notably Father Ivan Veniaminov, who, in 1840, became the first Greek Bishop of Alaska, and is regarded as one of the most careful and authentic recorders of the customs of the Alaskan natives. I also have before me a memorandum prepared by Mr. Charles W. Hawkesworth, Acting Chief of the Alaskan Division, Juneau, Alaska, dated July 27, 1932, discussing the customs of these natives past and present. Therefrom it is disclosed that the marriage customs of these people, though varying somewhat in minor details among the different tribes, do not differ materially from the customs of the American Indians; that these customs have long been established and are in vogue today among the uncivilized tribes, save where, under the guiding hands of the Missionaries, the natives have been converted to the Christian faith and their marriages legalized in accordance with the Territorial laws. Having already determined that these people occupy the same general relation to the Federal Government as the American Indians and are to be judged by the same general laws and rules, it follows in the absence of some provisions to the contrary, that the marriages among them by native custom should be accorded the same legal recognition and sanctity which the courts of this country have uniformly extended to similar relations among the American Indians. True the Alaskan natives, with the sole exception of the Metlakatlas, do not reside upon reservations, but in this respect they are no different from the American tribes in earlier times. Congress has declared that they shall not be disturbed in the possession of lands in their use and occupancy and claimed by them (Sec. 8, act of May 17, 1884, 23 S. 26); and whether further protection shall be extended to them by the setting aside of specified reservations for their use is a matter of policy as yet undetermined. Nor is the fact that no treaties have been made with them by the Federal Government of any significance. As was said in Nagle v. United States (191 Fed. 141):

    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 of March 3, 1871, 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.
    The organic act of August 24, 1912 (37 Stat. 512), with limitations not here material, established and vested in the legislature of the Territory of Alaska legislative authority, pursuant to which the laws hereinbefore referred to, regulating marriage among the inhabitants of the Territory, were enacted. Similar laws, however, were in force in the American commonwealths, notwithstanding which, as we have seen, the courts, both State and Federal, have recognized the validity of marriages among the Indians by tribal custom. There would seem to be no good reason why, in the absence of any Federal law upon the subject, an exception should be made in the case of the Alaska natives by holding them to a stricter rule than that which prevails as to the American Indians. The organic act contains no provision invalidating the native customs, nor is such a provision found in any other Federal legislation of which I am aware. In the absence of a definite expression upon the subject by Congress, in whom the paramount authority over these people undoubtedly rests, the correct rule to apply, in my opinion, is that laid by the Supreme Court of the United States in United States v. Quiver, supra, holding that the relations of the Indians among themselves in matters of this kind are to be controlled by the customs of the tribe, save where Congress expressly or clearly directs otherwise.

    In general, therefore, it is my opinion that marriage among those natives constituting the uncivilized tribes, if entered into in accordance with their long-established customs, should be recognized as valid until Congress directs otherwise, irrespective of the Territorial laws which I hold, for reasons stated above, do not apply to such cases. In reaching this conclusion, no attempt is made, of course, to lay down specific rules governing all cases, as the validity of a marriage in any given case must, in the nature of things, be determined according to the facts and circumstances peculiar to that case.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: September 3, 1932.
Jos. M. DIXON, First Assistant Secretary.
 


 

333

OPINIONS OF THE SOLICITOR

SEPTEMBER 23, 1932

SALE OF TIMBER-GEORGETOWN
RESERVATION, WASH.

54 I.D. 71
M-24173                                                                                                                                   September 23, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the disposition to be made of moneys derived from the sale of timber on the Georgetown or Shoalwater reservation in Washington, aggregating $15,150, now carried on Special Deposit in the accounts of the Superintendent in charge of the reservation.

    The Shoalwater or Georgetown reservation in Washington consists of 334.75 acres of land set apart for "Indian purposes" by Executive Order of September 22, 1866. The Indians for whose benefit the reservation was created embraced at that time some 30 or 40 families who made their living by fishing, and the purpose in creating the reservation was to enable them to establish their homes there free from interference from the Whites. Certificates assigning parcels or lots to individual Indians appear to have been issued by Indian Agent Oliver Wood in 1881, which certificates or assignments were subsequently approved by the Indian Office with the understanding that the reservation lands belonged to the tribe in common and that no title passed to the persons named in the certificates. In 1910 Special Allotting Agent Finch B. Archer recommended that the reservation be restored to the public domain, with the exception of a small tract used for cemetery purposes, saying:

    I visited the reservation on September 23 and found four Indian families members of the Georgetown band, residing thereon. Besides their houses, there are several other buildings on the reservation, in a habitable condition, and unoccupied at the time of my visit, but which, I am informed, are occupied by other Georgetown Indians, during the Fall and Winter months.

    The Georgetown Indians number about 150 persons. The actual residence of most of these is at Bay Center, across Willapa Bay, Washington, and nine miles south of the Georgetown reservation. These Indians live among the white people of the village; the children of both races attend the same school. Most of the Indians have purchased lots in the Bay Center cemetery, where they bury their dead. These Indians earn a good livelihood by salmon fishing and oyster culture. Nearly all speak English, pay taxes, and have for years exercised the right of suffrage. They have all, and at their own request, been given allotments of lands on the Quinaielt reservation.

    The above statement-regarding allotments-is also true of all those Indians, and of their living heirs, who may have had any legal interest in the tentative assignments of lands on the Georgetown reservation, as made to them in 1881 by Indian Agent Oliver Wood. This being the case, they are not entitled to additional allotments elsewhere.

    By letter dated October 10, 1910, the Indian Office declined to follow the recommendation of the Allotting Agent that the reservation be restored to the public domain, saying:

    As this reservation is so small in area and the benefit given to prospective homesteaders by restoring it to the public domain so slight, it would appear advisable to allow it to continue as it now stands. This is especially true, as your report indicates that some of the Indians living on the reserve lands have houses there and even though these Indians have been allotted on the Quinaielt reservation, their interests in and right to their homes on the Georgetown or Shoalwater Bay reserve should be protected. This can best be done by allowing the reservation to continue until some other arrangement is made for the disposal of the lands therein or at least the protection of the homes of the Indians located thereon.
    Matters rested thus until 1920 when the Commissioner of the General Land Office, by letter dated March 1 of that year, pointed out that the reservation had not in recent years and probably never had been occupied by the Indians and suggested that steps be taken looking to the opening of the reservation to entry. The matter was investigated and the superintendent in charge of the reservation, by letter dated April 23, 1920, advised the Commissioner of Indian Affairs that several Indian families, all of whom had been allotted on the Quinaielt reservation, were and had been residing on the Georgetown or Shoalwater reservation for a number of years. Because of the presence of these Indian families, the Indian Office again declined to vacate the reservation.

    In August, 1926, the superintendent advised the Commissioner of Indian Affairs that there were three families living upon the reservation, all of the members of which had received allotments on the Quinaielt reservation, with the exception of four
 


 

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DEPARTMENT OF THE INTERIOR

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children, to whom he recommended that the reservation lands be allotted. Three of the children were the issue of a union between Mrs. Fannie Charley McCrory, an Indian woman residing on the Georgetown reservation but allotted at Quinaielt, and a white man, and for that reason the children were regarded by the superintendent as not entitled to allotments at Quinaielt. The matter was accordingly presented to President Coolidge and on April 6, 1927, he granted permission to allot the lands to the four children mentioned and to any other Indians entitled to allotments on the reservation in accordance with the General allotment act of February 8, 1887 (24 Stat. 388), reserving, however, a suitable area for cemetery purposes to be used by the Indians in common. No allotments under this Executive authority have yet been made, and presumably will not be made in view of further developments set forth in the superintendent's letter of January 5, 1932, as follows:

    The Shoalwater Bay reservation is a comparatively small one, consisting of 334.75 acres, and if actual allotments comparable in size to allotments on most reservations were made it would not provide allotments for but a few of the Indians. However, a number of Indians have resided on this reservation for a long time; these Indians now reside there and expect to make their permanent homes there. Many of them are already allotted on the Quinaielt reservation and would not be entitled to an allotment on the Shoalwater reservation.

    These Indians make their living through fishing and crabbing in that immediate vicinity and it is highly advisable that they continue to reside in that locality. There has, for some time, been much bickering among these Indians as to building sites for home purposes on this reservation. Part of the reservation consists of a flat area, lying just above tide water, which would make an ideal location for building homes, and it is believed highly desirable that at least a portion of the Shoalwater reservation be set aside as a village, and building lots (not allotments) be assigned to such persons as are entitled hereto and desire to make their homes there.

    A number of fairly substantial homes have already been built in this particular locality; these persons desire to further improve their places and in order that this desire may be encouraged and made possible it is believed desirable that the village be set aside, surveyed, and lots definitely assigned to these persons. Eight Indian families now reside in this immediate locality. A number of these persons have funds at this office and I would like to see these Indians construct good, substantial homes before their money is exhausted and accordingly urge that this office be authorized to set aside and make a survey of a village site on this reservation, to be used for home purposes.

    The recommendation of the superintendent that a village site be established for the Indians now residing upon the reservation and that building lots be assigned to them has not yet been acted upon. Whatever may be the ultimate decision upon that question, however, it is plain from the facts at hand that there are now no Indians who can be recognized as lawfully entitled to the moneys heretofore derived from sales of time on these lands. The Indians for whom the reservation was originally set aside virtually abandoned the reservation and all of them appear to have elected to take allotments on the Quinaielt reservation.

    Regarding their right to allotment on the Quinaielt reservation, it may be said that the reservation was enlarged by Executive Order of November 4, 1873, issued pursuant to the provisions of the Treaty of July 1, 1855, and January 25, 1856 (12 Stat. 971), with the Quinaielt and Quileute Indians. This Executive Order set aside a large tract of land for the use of the Quinaielt, Quileute, Hoh, Quit, "and other tribes of fish-eating Indians on the Pacific Coast," and by the act of March 4, 1911 (36 Stat. 1345), the Secretary of the Interior was authorized and directed to make allotments on that reservation to the members of the "Hoh, Quileute, Ozette, or other Tribes of Indians in Washington who are affiliated with the Quinaielt and Quileute Tribes in the Treaty of July 1, 1856 and January 25, 1856, and who may elect to take allotments on the Quinaielt reservation rather than on the reservations set aside for these Tribes". Regarding these other reservations, the Supreme Court in Halbert v. United States (283 U. S. 753), said:
    The reference to "other reservations" may be sufficiently explained by stating that some small reservations "executive orders relating to Indian reservations, 1912, pp. 172-175, 195, 200, 205, 206-Shoalwater) had been set aside therefore for particular villages of the Hoh, Quileute, Ozette, Quit, Chehalis and other fish eating tribes, but that these reservations were in no instance large enough to provide



 

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OPINIONS OF THE SOLICITOR

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allotments to more than a small fraction of the Indians therein.

    The court further said:

    When the bill which became the Act of March 4, 1911, was introduced in Congress it contained a direction that allotment be made to "all members of the Hoh, Quileute and Ozette tribes of Indians in Washington who may elect" etc., and said nothing about other tribes; but in the course of its passage this provision was amended so as to read: "to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington who are affiliated with the Quinaielt and Quileute tribes in the treaty (before named) and who may elect", etc. This shows that Congress intended to include tribes not included in the original provision; and it shows further that they were to be tribes having, like the Hoh and Ozette tribes, some affiliation with the Quinaielt and Quileute "in the treaty". Probably "in" was used in the sense of "under" or "through". Strictly speaking there was no affiliation in the treaty. But the treaty did contain a provision under which affiliation might be brought about. It authorized the President to consolidate the Quinaielt and Quileute tribes with other friendly tribes. Under this provision he made the order establishing the enlarged reservation for the use, not only of the Quinaielt and Quileute tribes, but also of the Hoh, Quit and other coastal tribes of fish-eating Indians "in that locality", evidently meaning in that section of the Territory of Washington.
    That was a step towards consolidation. Other steps followed, one being that in 1905 the Indians Bureau began making allotments to members of all these tribes. This work was carried on under the treaty, the executive order and the general allotment law, and it had progressed prior to the act of 1911 to the point where over 750 allotments had been completed, more than half of which were to members of the various fish-eating tribes in that section other than the Quinaielt and Quillehute. It therefore was altogether appropriate at that time to speak of these other tribes as affiliated with the Quinaielt and Quillehute under the treaty.

    The court accordingly held that the Chehalis, Chinook and Cowlitz tribes were among those whose members are entitled to take allotments within the Quinaielt reservation. The court in its discussion having specifically mentioned the Shoalwater reservation as one of these reservations, the Indians of which might elect to take allotments at Quinaielt under the act of 1911, it follows that those Indians also must be regarded as affiliated with the Quinaielt and Quillehute under the Treaty of 1855 and 1856 and therefore entitled to allotments at Quinaielt.

    As stated above, the Georgetown or Shoalwater Indians in fact elected to and did take allotments at Quinaielt and, in the absence of some provision to the contrary, their action in so doing obviously precludes them from receiving or claiming any benefits on the Georgetown or Shoalwater reservation under the well-settled rule that no Indian is entitled to dual privileges or double benefits either as a member of two different tribes or otherwise. (See Mandler v. United States, 52 Fed. (2d) 713; Josephine Valley et al., 19 L. D. 329; Hagstrom v. Martell, 39 L. D. 508; Niels Esperson, 21 L. D. 271). This rule applies with equal force to those individual Indians now residing there who have also been allotted at Quinaielt. The unallotted children born to them there take the status of their parents are entitled to allotments and should be allotted at Quinaielt, personal residence on that reservation not being essential to the rights of these Indians to allotments at that place; (Halbert v. United States, supra). This includes the children of Mrs. Fannie Charley McCrory, who, though born of a union between Mrs. McCrory and a white man, nevertheless take the status of the mother and not that of the father for the reason that it appears from the Superintendent's letter of January 16, 1928, that the mother retained her tribal status and that she and the children are now and have continuously resided on the Georgetown or Shoalwater reservation. The rule applicable to them, as stated in the Halbert case, is that "if the wife retains her tribal membership and the children are born in the tribal environment and there reared by her, with the husband failing to discharge his duties to them, they take the status of the mother."

    The executive order of April 6, 1927, authorizing the allotment of the lands on the Georgetown or Shoalwater reservation, which, as we have seen, was obtained primarily for the benefit of the McCrory children, thus appears to have been obtained under a misconception of the rights of these children to allotments at Quinaielt. This suggests the advisability of administrative action, looking to cancellation of the Executive Order, particularly in view of the plans now proposed by the superintendent to set aside at least part of the reservation as a village site for the Indians now residing there. Regarding this latter proposal, section 10 of the Act of June 25, 1910 (36 Stat. 855), authorizes the Secretary of the Interior, whenever in his opinion it shall be conducive to the best welfare and inter-
 


 

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est of Indians living within any Indian village on any of the Indian reservations in the State of Washington, to issue a patent to each of said Indians for the village or town lot occupied by him, which patent, shall contain restrictions against the alienation of the lots described therein to persons other than members of the tribe, etc. This provision, however, obviously has in mind the protection of the rights of occupants of lots in then existing and established villages, and appears to confer no authority for the establishment of new villages on the reservation lands and the patenting of lots to Indians who may settle there. Legislative authority to do this at Georgetown or Shoalwater thus appears to be necessary, particularly as the Indians now residing or desiring to settle there, who have been allotted elsewhere, can not be regarded as entitled to benefits at Georgetown or Shoalwater under the rule hereinbefore referred to.

    The moneys now on hand accrued under a contract approved by the Department March 13, 1925, providing for the sale to B. F. and E. J. Armstrong of the timber on certain lands within the Georgetown or Shoalwater reservation for $15,150. After paying $6,498.44 of the purchase price, the purchasers became insolvent and the contract was canceled by the Department January 5, 1928. On the same date, a new timber sale contract was approved in favor of the surety on the canceled contract in consideration of the payment of $8,651.56, the balance due from the Armstrongs under the original contract. Section 7 of the act of June 25, 1910 (36 Stat. 855-857) authorizes the sale of timber on unallotted Indian reservation lands and provides that the proceeds from such sales shall be used for the benefit of the Indians of the reservation in such manner as the Secretary of the Interior may direct. Section 27 of the act of May 18, 1916 (39 Stat. 123, 159), however, prohibits the expenditure of Indian tribal funds without specific appropriation by Congress with certain stated exceptions. Section 1 of the act of March 3, 1883 (22 Stat. 590), as amended by acts of May 17, 1926 (44 Stat. 560) and June 13, 1930 (46 Stat. 584), requires that tribal funds arising from Indian reservations be deposited in the Treasury of the United States and that on and after July 1, 1930, such funds be carried on the books of the Treasury Department in separate accounts for the respective tribes. Ordinarily, the moneys here involved which accrued from the sale of timber on unallotted Indian reservation lands would be disposed of as provided in the foregoing acts. As above shown, however, the Georgetown or Shoalwater reservation was virtually abandoned by the Indians for whom it was originally created and there are now no Indians, tribal or individual, shown to have any lawful right or claims to these moneys. Under such circumstances, as the fee title to the reservation lands rests in the United States, the moneys in question should, in my opinion, be covered into the Treasury of the United States as miscellaneous receipts; (See 3617 and 3618, Revised Statutes).

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: September 23, 1932.

Jos. M. DIXON, First Assistant Secretary.

INDIAN-OWNED LAND WITHIN IRRIGATION
PROJECTS

54 I.D. 90
M-27239                                                                                                                                   November 25, 1932.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    There has been submitted to me for opinion the construction that should be placed upon the act of July 1, 1932 (47 Stat. 564). The act is brief, and is quoted in full for ready reference:

    AN ACT To authorize the Secretary of the Interior to adjust reimbursable debts of Indians and tribes of Indians.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior is hereby authorized and directed to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made: Provided, That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished, and any construction assessments heretofore levied against such lands in accordance with the provisions of the Act of February 14, 1920 (41 Stat. L. 409), and uncollected, are hereby canceled: Provided further, That a report shall be made to Congress annually, on the first Monday in December, showing adjustments so made during the



 

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OPINIONS OF THE SOLICITOR

NOVEMBER 25, 1932

preceding fiscal year: Provided further, That any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days.

    As an incident to the construction of the act, the question arises whether the construction charges on certain Indian lands, irrigated from the irrigation works of the Yuma Project, Arizona-California, shall be deferred. This question also involves construction charges on Indian lands on the Newlands Project, Nevada, and the Yakima Project, Washington. The part of the act which requires consideration to determine the effect is contained in the words "Government irrigation project" found in the first proviso of the act wherein it is stated:
    Provided, That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessment shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished.
    It is the contention of the Bureau of Reclamation that the act does not apply to payments due the reclamation fund, but applies only to payments due to the general funds of the Treasury, that is, to money appropriated in the Indian appropriation acts for construction of irrigation works on Indian irrigation projects, while the Office of Indian Affairs contends that the act applies to all construction charges on Indian land, while the land is in Indian ownership.

    It is important to have a definite statement of fact before any attempt is made to construe the statute. Only the facts connected with the Yuma project will be considered, having in mind, however, that the decision will affect other projects similarly situated. The Yuma Project, Arizona-California, has been constructed and is being operated and maintained by the Bureau of Reclamation, pursuant to the act of June 17, 1902 (32 Stat. 388). In the plan of the project the Laguna dam, constructed across the Colorado River about l0 miles north of Yuma, diverts water into the main canal of the project on the west side of the river, and carries water for the irrigation of about 6,000 acres of land, formerly a part of the Yuma Indian Reservation. Most of the Yuma Indians were allotted in this area by assigning to each Indian 10 acres of irrigable land. The main canal crosses the Colorado River in a siphon at Yuma and then proceeds in a southerly course about 30 miles to the International Boundary between the United States and Mexico, making possible the delivery of water to about 50,000 acres of land along the river bottom.

    With the assistance of the Indian Office, 12 Indian homesteads were located on lands south of Yuma susceptible of irrigation from the irrigation works being constructed by the Reclamation Service. Trust patents were issued to the Indian homesteaders about the year 1918. These patents contain the 25-year trust clause provided by the act of July 4, 1884 (23 Stat. 96), which extended the benefits of the homestead laws to Indians, but the patents do not contain a lien for repayment of reclamation charges pursuant to the act of August 9, 1912 (37 Stat. 265). The Department authorized the furnishing of water, temporarily, to these Indian homesteads under a form of water rental. On October 7, 1913, April 20, 1914, and March 21, 1915, the Superintendent of the Fort Yuma Indian School was authorized to sign water right applications on behalf of these Indian homesteaders, which provided for permanent water rights. Public notice was issued April 6, 1917, and the water right applications, in proper form, were executed and filed with the local project manager. These applications were in the same form as that signed by the white water, users on the project.

    In a letter dated March 3, 1919, from the Commissioner of the Office of Indian Affairs to the Director of the Reclamation Service he stated:

    As to payment of the construction charge against these lands it may be said that these are Yuma Indians, and, as indicated to you in office letter of July 8, 1918, we do not desire to discriminate between members of the same tribe. The Yuma Indians on the Reservation in California have heretofore received ten acres of irrigable land pursuant to the Acts of April 21, 1904 (33 Stat. 224) and March 3, 1911 (36 Stat. 1063). These acts, of course, have no relation to the Yuma Indian Homesteads in Arizona, but were referred to in office letter of July 8, 1918, merely for the purpose of showing that the Yuma Indians generally have been accorded ten acres of irrigable land, payment for the irrigation charges against which is to be made from the sale of surplus lands within their Reservation.

    The Yuma homesteads in Arizona. however, embrace forty acres each and practically the entire area of each homestead is irrigable. It is



 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 25, 1932

not desirable to leave small isolated tracts of irrigable land within a reclamation project uncultivated and without a water right. On the other hand I do not see my way clear to have this Office assume the burden of meeting your construction charge for the entire irrigable area of each homestead out of the appropriation available for irrigation work either for the Yuma Indians or elsewhere. This would raise the question of discrimination between members of the same tribe,-ten acres to those on the Reservation in California and forty acres to those few in Arizona who took up homesteads. It was the intention, however, to apply for a water right for each homestead, having the Indian homesteader himself or his white lessee, should the land be leased, meet the reclamation charges on thirty acres out of each tract; this office, in behalf of the Indian, to meet the charge for the water furnished the remaining ten acres. This would accord these few Yuma Indians the same treatment at the hands of the Government as given other members of the same tribe who have received allotments on the reservation proper. The Office understood from the last paragraph of your letter of April 5, 1918, that the course suggested was so understood by and was satisfactory to your Bureau.

    To straighten out the matter of settlement for these charges, it is suggested that your local Project Manager submit to your Office a statement showing the charges arising against these lands, which statement can be presented to this office as a claim in favor of your Bureau for settlement in the usual manner, in so far as it applies to the charges accruing against ten acres of each of these homesteads. Preferably, the statement should show, in tabulated form, the name of the homestead entryman, the ten acres to be furnished with water pursuant to this arrangement, and the amount of the initial payment due thereon, which I understand is five per cent of the total construction charge. Any other data that may be deemed pertinent should be appended. In this connection it may be pointed out that Miguel Escalanti, in addition to his homestead in Arizona, also has an allotment of ten acres of irrigable land on the Yuma Reservation proper, which is already entitled to water. He should not be given, therefore, an additional ten acres in Arizona to be furnished with water either at the expense of the Government or at the expense of the Yuma tribe. The water right for this entire forty, therefore, should be paid for either by the Indian himself or his white lessee. This leaves eleven tracts of ten acres each, the cost of water for which is to be met, for the time being, out of our appropriations. I understand that the construction charge for this unit of the Yuma project has been fixed at $75.00 per acre. Multiplying this by ten gives $750.00 as a total construction charge against the ten acres of each homestead. Again multiplying this by eleven, the number of Indians to be provided for, gives us a total construction charge of $8,250.00. Five per cent of this amount is $412.50, representing the initial payment to be paid your Service for permanent water rights for ten acres on the eleven homesteads listed. The Act of August 13, 1914 (38 Stat. 686), to which you refer, attaches a penalty of five per cent each year, after issuance of public notice, until a water right is applied for. I see no way of waiving this penalty, as it is fixed by statute and, of course, it must be added to the amount due your Service. I assume, however, that your claim, when presented, will cover all charges then due, and it may be advisable to separate thereon the construction charge from any operation and maintenance charges that may be due, as these items may be payable from a different appropriation.

    Since the date of making water right applications for the Indian homesteads, the Indian Office has secured authority to pay into the reclamation fund the construction charges as they fell due under the applications. Under the departmental regulations, in order to secure water for the irrigable Indian homesteads, it was necessary to make the contracts represented by the water right applications. It was also necessary for the Indians, acting through the Indian agent, to make stock subscriptions to the Yuma Valley Water Users Association, a private corporation organized and existing under the laws of the State of Arizona. Subsequent to the issuance of the public notice in 1916, the water users association made a contract to repay to the United States all of the construction charges on the lands irrigated in Arizona, including the Indian homestead lands. The question presented by this statement of facts, and the act of July 1, 1932, supra, is, whether the act defers the construction charges on the Indian homesteads.

    In the application of the law, consideration should be given to the history of the legislation for the irrigation of lands under the reclamation act and acts amendatory thereto and the irrigation of lands on Indian reservations. Under the act of June 17, 1902, supra, a new policy was adopted by
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 25, 1932

Congress in connection with the public lands. This act authorized the Secretary of the Interior to use the funds arising from the sale of public lands, which were to be impounded in the Treasury as the reclamation fund, for the construction of irrigation works to irrigate public lands and incidentally adjacentor interspersed private lands. In order to carry out the act, a bureau was established in the Department, and with the funds accumulated and other funds provided by acts of Congress there was constructed in the 17 western States about 30 irrigation projects, involving an expenditure of over $200,000,000 and nearly 2,000,000 acres of land has been placed under irrigation and cultivation. This legislation, which now comprises a volume, was enacted and built up separate and distinct from the legislation affecting Indian irrigation projects. It was a Government development, and the projects could be called Government irrigation projects. The legislation, regarding the irrigation of Indian lands and interspersed lands owned by white men on Indian reservations, has taken the form, during the last 30 years, of special legislation. Each Indian irrigation project has been constructed pursuant to a special act of Congress and to appropriations made annually thereafter from the general funds of the Treasury, and when payments have been made of the construction charge, the money has been returned to the general funds of the Treasury. It will be observed, therefore, that the reclamation fund is in reality a trust fund, and the money expended from such trust fund is returned by the owners of the lands benefited, to be again expended for additional irrigation development of the reclamation projects, thus constituting a revolving fund which should not be depleted.

    The money appropriated by Congress for the construction of Indian irrigation projects is to be repaid by the owners of the lands benefited, and the principal acts of Congress authorizing such appropriations or making appropriations, have provided that the Secretary of the Interior shall fix the terms of repayment of construction charges on the Indian-owned lands. The legislation shows a tendency of Congress to be more liberal toward the Indian in his return of money to the Treasury than is accorded to the white man on the Federal reclamation projects under the control of the Bureau of Reclamation.

    In endeavoring to determine the construction to be placed upon the words "Government irrigation Project" certain questions arise which aid in determining the intent of Congress: Did Congress intend to defer construction charges due from Indians in possession of irrigable land on a Government reclamation project constructed by the Bureau of Reclamation with money obtained from the reclamation fund? If such purpose is carried out it would mean that Congress amended the reclamation act and thereby intended to deplete the reclamation fund. Is it not more reasonable to presume that Congress referred to a Government irrigation project, constructed, pursuant to acts of Congress making appropriations for the Indian Service, for the primary benefit of an Indian tribe, or Indians on a reservation?

    If it had been presumed that the legislation affected Government reclamation projects, constructed by the Bureau of Reclamation, the legislation would have been referred to that Bureau for report, or it would have been asked to appear before one of the congressional committees when the legislation was under consideration. No one appeared before the committees except employees of the Office of Indian Affairs, and the hearings clearly indicate that the bills proposed were to benefit Indians on Government Indian irrigation projects. As to the construction charges on the 30 acres of excess land in each homestead it is believed that these homesteads are not within the first proviso to the act of July 1, 1932, supra. The proviso bears express reference to and is an amendment of the Indian appropriation act approved February 14, 1920 (41 Stat. 408). It is in pari materia with that act which has reference to Government Indian reclamation projects.

    In connection with this reclamation legislation it appears that only three months earlier, by the act of April 1, 1932 (47 Stat. 75), Congress had covered quite fully the matter of deferment of the payment of construction charges on Government irrigation projects that have been constructed by the Bureau of Reclamation, and it would be an unusual procedure for Congress to make a further deferment on such projects for the benefit of one class of landowners, thus amending the act of April 1, 1932, without expressly so stating. The Honorable Scott Leavitt, who was manager of the legislation in the House, repeatedly referred to the bill which became the act of July 1, 1932, as relating to Indian reclamation and Indian Irrigation projects, and the whole history of the legislation shows such to be the case. This act of July 1, 1932, was the result of combining two bills (H.R. 8898 and H.R. 10886) into one. The part relating to irrigation projects was taken from H.R. 8898, and the House report on that bill stated: "The provisions of this bill apply only to Indian lands on Indian irrigation projects". (Emphasis supplied)

    In connection with the Yuma Indian homesteads, contracts have been made for the payment into the reclamation fund of the construction charges and the obligation of these contracts would be impaired if it was held that the statute applied
 


 

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NOVEMBER 25, 1932

to construction charges payable into the reclamation fund. While Congress is not prohibited by the Constitution, like the States, from enacting laws impairing contracts, it has studiously refrained from enacting legislation impairing them.

    I am of the opinion that the interpretation of the act of July 1, 1932, supra, requires that it shall be applicable only to Indian irrigation projects as understood by the preceding legislation, and does not defer construction charges due or payable to the reclamation fund.

                                                                                                                                                                E. C. FINNEY,

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

TAXABILITY OF ALLOTMENTS-OSAGE

54 I.D. 105
M-27228                                                                                                                                   November 30, 1932.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether lands allotted as homestead to Julia Lookout, a full blood member of the Osage Tribe of Indians, are subject to taxation by the State of Oklahoma. This question arises by reason of the revocation on March 10, 1932, under authority of section 4 of the act of February 27, 1925 (43 Stat. 1008), of the certificate of competency theretofore issued to Julia Lookout by authority of section 2, subdivision 7 of the act of June 28, 1906 (34 Stat. 539). The date of issuance of the certificate of competency was September 27, 1924.

    Under the provisions of the act of June 28, 1906, supra, Julia Lookout received in allotment some 600 acres of land. Out of the land so allotted 160 acres were designated as homestead and the balance, surplus. The certificate of competency issued to her released the surplus lands from restrictions against alienation and empowered the allottee to dispose of same free from Federal supervision. See McCurdy v. U. S., 245 U. S. 263; Solicitor's Opinion of August 13, 1930, 53 I.D. 189.

    The issuance of the certificate had no effect whatever upon the homestead lands, which, notwithstanding the certificate, remained inalienable and nontaxable for a period of 25 years (Paragraph 2, subdivision 7 of the act of 1906). This period expired on June 28, 1931, whereupon the lands became subject to taxation by the State of Oklahoma (Solicitor's Opinion of November 28, 1931, 53 I.D. 564).

    Subsequent revocation of the certificate of competency, the issuance of which in no way affected the homestead lands, obviously would not reimpose the restrictions against alienation and taxation of those lands in the absence of statutory direction to that effect. The act authorizing revocation (Sec. 4 of the act of February 27, 1925, supra) contains no such direction but confines the effect of the revocation to the income flowing to the member from tribal sources with a provision for protection of transactions entered into by reason of the issuance of the certificate.

    The act of March 2, 1929 (45 Stat. 1478), however, contains certain provisions relied upon as protecting the homestead lands of Mrs. Lookout from taxation. These provisions read:

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

            *                                *                                *                                *                                *

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

    In my opinion of November 28, 1931, cited above, I had occasion to consider at length the scope and effect of the foregoing provisions as applied to members of the Osage Tribe having certificates of competency. In that opinion it was
said, inter alia:
    The provision in the act of March 2, 1929, a continuing restrictions and Federal supervision contains nothing relating expressly to the taxation of the homestead allotments of these Indians, and it can not be regarded as having any bearing upon that subject in view of the fact that Congress saw fit to deal specifically in that legislation with the taxation of such homesteads. This it did by enactment of the provision of law last above quoted which continues the exemption from taxation in terms so clear



 

341

OPINIONS OF THE SOLICITOR

DECEMBER 9, 1932

as to remove any doubt of congressional intent in the matter. The benefit of the continued exemption was extended only to Indians of the degree of blood mentioned-one-half or more-"not having a certificate of competency." The irresistible import of this language is that Indians having certificates of competency are excluded from the benefit of the exemption and that their lands in so far as taxation is concerned were to remain in the same status as before.

    Had Mrs. Lookout's certificate of competency been revoked prior to the above enactment of March 2, 1929, then, as a member of the Tribe of one-half or more Indian blood not having a certificate of competency, she would have had the requisite status to entitle her to the benefit of the continued exemption from taxation. But her certificate of competency had not then been revoked. It was still outstanding and in full force and effect. The statute, under its plain language, speaks as of the date of enactment, and as Mrs. Lookout then held a certificate of competency she was not within its terms. Accordingly, the period during which the homestead lands were exempt from taxation was not extended. The period having expired and the lands having become subject to taxation by the State of Oklahoma, revocation of the certificate would not itself, as we have seen, operate to restore or reimpose the tax exemption.

    The decision of the Circuit Court of Appeals, Fourth Circuit, in U.S. v. Wright (53 Fed. 2d. 300) urged as authority for the proposition that these lands are not taxable is not in point. In that case, Congress had not only expressly provided that the lands involved, which belonged to the Eastern Band of Cherokee Indians of North Carolina, should be exempt from taxation, but the title to the lands had been conveyed to the United States. (See act of June 24, 1924, 43 Stat. 376). These important and conclusive elements are absent in the present case. The question here presented is not one involving the power of Congress to exempt these lands from taxation but whether it has exercised that power in the statutes under consideration. An examination of those statutes calls for a negative answer.

    I am of the opinion, therefore, that the lands under consideration are now taxable and have been taxable since the expiration of the 25-year period fixed by subdivision 7 of Section 2 of the act of 1906.

                                                                                                                                                                E. C. FINNEY,

Solicitor.
Approved: November 30, 1932.
Jos. M. DIXON, First Assistant Secretary.

RETIREMENT-SERVICE CREDIT-FIVE TRIBES
SCHOOLS

54 I.D. 109
M-27882                                                                                                                                   December 9, 1932.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to whether service in the schools of the Choctaw and Chickasaw Nations, Indian Territory or Oklahoma, from the autumn of 1896 to the year 1905 would be creditable under the civil service retirement law. Also whether service in the schools of the Five Civilized Tribes following the act of April 26, 1906 (34 Stat. 140), would be creditable. There would seem to be no doubt that such service would be creditable from March 5, 1906, under the act of April 26, 1906, supra, because that act expressly provided in part as follows:

    That the Secretary of the Interior is hereby authorized and directed to assume control and direction of the schools in the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, with the lands and all school property pertaining thereto, March 5, 1906, and to conduct such schools under rules and regulations to be prescribed by him, retaining tribal educational officers, subject to dismissal by the Secretary of the Interior, and the present system so far as practicable.
    See instructions issued under that act dated July 7, 1906, wherein it was provided that the superintendent of schools should nominate suitable persons for all authorized positions subject to the approval of the Secretary.

    Prior to the act of June 28, 1898 (30 Stat. 495), referred to as the Curtis Act, the educational affairs of the Five Civilized Tribes were conducted entirely by the tribal governments. It is therefore quite clear that any service as teacher in those schools prior to the date of that act, at least, would not be subject to credit as service performed for the United States. Between the dates of these two acts there appears to be a twilight zone where it is difficult to ascertain the facts as to the degree of authority exercised by the United States over said schools. Considerable search is indicated by the memoranda submitted, and I have pursued the inquiry still further in the preparation of this opinion. My conclusion from all of the information available is that there was not uniformity in respect to all of the schools in the matter of appointments of teachers.
 


 

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    In a memorandum prepared in the Indian Office it is stated:

    After passage of the Curtis Act the Department assumed supervision of the schools of the Five Civilized Tribes and expenditures were disbursed by a Government disbursing officer. It is, of course, understood that the salaries and school expenses were paid from the tribal funds both before and after the passage of the Curtis Act. * * * It will be noted, however, that in the case of the applicant, the selection and appointment was made by the duly appointed tribal officials, and not by the Federal Government.
    In the instructions of November 4, 1898, issued under the Curtis Act, no provision was made for the appointment of teachers in such schools by the Federal Government. For the purpose of proper supervision of the schools of any tribe or nation it was provided that a supervisor of schools in the Indian Territory should be appointed by the Secretary of the Interior, whose duty it would be to "visit from time to time, examine into and supervise the conduct of schools of such tribe or nation and to report, etc." If any teacher was found incompetent or immoral or whose continuance in the service would for any reason be detrimental, the matter was to be reported to the Secretary for consideration and action.

    In a report by the Superintendent of Schools for Indian Territory dated July 25, 1900, I find indications that the appointing power was exercised by Federal officials to some extent. He stated that early in the year 1899 the Secretary of the Interior ruled that as the Curtis Act provided for the gradual extinction of all tribal offices and of all of their governmental machinery, and in view of his responsibility in respect to the proper use and expenditure of the funds, that thereafter all appointments of employees in the schools maintained by the royalty fund should be made by him or under his direction; that acting under instructions, he attended a meeting of the Choctaw board of education and explained the ruling of the Secretary, to which no objection was then made, and for several months they did not question "our authority to make appointments"; that examinations were held "and about 100 of the best available teachers put in charge of their schools on the first of September"; that in October, however, the Choctaw Council met and denied the right of the Secretary of the Interior to control the schools.

    I infer from the report of the Commissioner of Indian Affairs dated October 1, 1900 (pp. 110, 112, 113), that control of the schools of the Chickasaw, Cherokee and Creek Nations was not taken over by the Department under the Curtis Act; that only supervisory direction was exercised by the Federal Government, leaving the appointment of teachers to the tribal authorities.

    It will be seen that no general rule can be given for crediting such service between the dates of the two acts mentioned, except that the controlling question should be whether or not the appointment was made by the Secretary of the Interior or by his authority. If not so made the employee should be regarded as having been the employee of the particular Tribe or Nation with which the contract of employment was made. More intensive research will probably have to be made to determine the facts in the case of John D. West. The above citations would indicate that such of his service as was rendered in the schools of the Choctaw Nation, or some part of it, may have been under appointment by Federal authority, and therefore subject to credit.

                                                                                                                                                               E. C. FINNEY,

Solicitor.
Approved: December 9, 1932.
Jos. M. DIXON, First Assistant Secretary.

AUTHORITY TO CANCEL PATENT-LIEN

54 I.D. 160
M-27343                                                                                                                                      February 18, 1933.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion upon a question arising under the acts of February 26, 1927 (44 Stat. 1247), and February 21, 1931 (46 Stat. 1205). These acts, which will be respectively referred to hereinafter as the original and supplemental acts, read:

Original Act.

    That the Secretary of the Interior is hereby authorized in his discretion, to cancel any patent in fee simple issued to an Indian allottee or to his heirs before the end of the period of trust described in the original or trust patent issued to such allottee, or before the expiration of any extension of such period of trust by the President, where such patent in fee simple was issued without the consent or an application therefor by the allottee or by his heirs: Provided, That the patentee has not mortgaged or sold any part of the land described in such patent: Provided also, That upon cancellation of such patent in fee simple the land shall have



 

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the same status as though such fee patent had never been issued.

Supplemental act.
    Where patents in fee have been issued for Indian allotments, during the trust period, without application by or consent of the patentees, and such patentees or Indian heirs have sold a part of the land included in the patents, or have mortgaged the lands or any part thereof and such mortgages have been satisfied, such lands remaining undisposed of and without incumbrance by the patentees, or Indian heirs, may be given a trust patent status and the Secretary of the Interior is, on application of the allottee or his or her Indian heirs, hereby authorized, in his discretion, to cancel patents in fee so far as they cover such unsold lands not encumbered by mortgage, and the cause new trust patents to be issued therefor, to the allottees or their Indian heirs of the form and legal effect as provided by the Act of February 8, 1887 (24 Stat. 388), and the amendments thereto, such patents to be effective from the date of the original trust patents, and the land shall be subject to any extensions of the trust made by Executive order on other allotments of members of the same tribe, and such lands shall have the same status as though such fee patents had never been issued. Provided, That this Act shall not apply where any such lands have been sold for unpaid taxes assessed after the date of a mortgage or deed executed by the patentee or his heirs, or sold in execution of a judgment for debt incurred after date of such mortgage or deed, and the period of redemption has expired.
    Pursuant to the foregoing statutes, Rush Roberts, Pawnee Indian allottee No. 29, has applied for cancellation of the patent in fee issued November 30, 1917, by the Secretary of the Interior upon his own initiative and without an application from the allottee. The patent covered 120 acres of land allotted to Mr. Roberts and described as the E1/2 NE1/4 and NW1/4 NE1/4, Sec. 10, T. 22 N., R. 6 E., in Oklahoma. An abstract of title presented with the record shows that subsequent to the issuance of the patent, Mr. Roberts, by an instrument executed Tune 8, 1920, conveyed to one T. 1. Redd an undivided one-half of his one-eighth oil and gas royalty rights in the 120 acre tracts; that Mr. Redd, by instrument executed February 10, 1921, conveyed to Mrs. Jane T. Redd, one-half of the interest so acquired; and that by a judgment of the District Court of Pawnee County, Oklahoma, handed down June 2, 1924, in Case No. 6077, T. J. Redd and Jane T. Redd, v. Rush Roberts and Rose H. Roberts, the plaintiffs were adjudged to be the owners in equal shares of a one-half interest in the oil and gas royalty rights in the land under consideration, subject to certain conditions not here material. Other than these outstanding oil and gas royalty interests, Mr. Roberts, the patentee, appears to still retain the unencumbered fee simple title to the lands.

    Efforts to obtain relinquishments of the rights of T. J. and Jane T. Redd having proven without avail, it has been suggested that the patent in fee be canceled conditionally; that is, such cancellation to be made expressly subject to the rights vested in the Redds under the above conveyances and judgment of the District Court of Pawnee County.

    The question thus presented is whether the acts above mentioned authorize such a conditional cancellation of the fee patent.

    The object of both statutes, of course, was to correct or remedy the administrative error of casting the fee title upon the Indian without his application or consent by authorizing the Secretary to cancel the patent so issued. The authority to cancel, however, is not absolute. Rights acquired in the patented lands by purchase or mortgage could not, of course, be invaded or taken away without due process of law, and Congress was careful to protect such rights from impairment by placing a limitation upon the Secretary's authority. This was done in the original act by withholding the power conferred in all cases where the patentee had "mortgaged or sold any part of the land". Likewise in the supplemental act the authority to cancel extends only to "unsold lands not encumbered by mortgage", with the further limitation that the act should not apply "where any such lands have been sold for unpaid taxes assessed after the date of a mortgage or deed executed by the patentee or his heirs, or sold in execution of a judgment for debt incurred after date of such mortgage or deed, and the period of redemption has expired". The express limitations upon the authority of the Secretary thus do not extend to the instant case in which the title of the patentee is subject only to the interest acquired and now held by T. J. and Jane T. Redd in the oil and gas royalty rights. Nevertheless, it is fairly plain upon principles well stated in an opinion by former Solicitor Patterson (53 I.D. 325) that an unconditional or unqualified cancellation of the patent would not be authorized. In that opinion which discussed at length the scope of the Secretary's authority under the original act, the Solicitor said:

    The limitation upon the power of the Secretary of the Interior to take any action that would deprive parties in interests of any rights
 

 

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of property is imposed by the guaranty of the fifth amendment to the Constitution, and the limiting proviso of the act is but a recognition by Congress of the principle and a declaration that in the administration of the act no proceedings should be taken which would have the appearance of an invasion of the constitutional guaranty against the deprivation of property without due process of law. While the proviso extends only to cases where there has been a sale of all or a part or a mortgage of the land, the effect of the constitutional guaranty is to protect all other valid property rights, such as judgments or other liens, and an attempted cancellation of the patent would not ipso facto destroy these, as the right to still assert them in the courts would be undisturbed unless Congress by the act of February 26, 1927, supra, intended to invest the Secretary of the Interior with judicial power to decide the rights of the holders of outstanding liens, and only then where by due process they are brought into the proceeding and given their day in court. In my opinion Congress did not intend to confer such authority and unless an intention to do so is clearly expressed the Secretary should hesitate to assume it. Such matters are more properly for the courts, and in all cases where applications are made by the holder of the fee simple patent for cancellation of it the applicant should first be required to show that the title, real or apparent, was free of all liens attaching subsequent to its issuance, and where such liens appear, action looking to cancellation should at least be deferred until some court of competent jurisdiction has adjudged them invalid.

    Cancellation of the patent subject to the royalty interests of T. J. and Jane T. Redd seemingly would afford protection to those interests and at the same time afford the Indian the relief contemplated by Congress in so far as it may be done. That such a conditional cancellation of the patent was neither authorized nor contemplated, however, is made plain by the declaration in both the original and supplemental acts that the object of cancellation is to restore the land to "the same status as though such fee patent had never issued". Obviously, this end can not be attained where as here, property rights have been acquired and are outstanding in other parties. Moreover, the supplemental act provides that upon cancellation of the fee patent a new trust patent shall be issued to the allottee or his heirs of the form and legal effect provided by the act of February 8, 1887 (24 Stat. 388), and the amendments thereto. Patents so issued declare in conformity with the statute that the United States will hold the land in trust for the sole use and benefit of the allottee or his heirs, as the case may be, for a definite period, with the solemn promise to convey the fee at the end of that period unless the time be extended by the President-discharged of the trust and "free of all charge or incumbrance whatsoever". So long as the title is burdened by rights or interests subsisting in third parties such as now rest in T. J. and Jane T. Redd, it is obvious that this promise to convey the unencumbered fee title at the end of the trust period can not be fulfilled.

    For the reasons stated, it is my opinion that cancellation of the patent in the form suggested is not authorized.

                                                                                                                                                              E. C. FINNEY,

Solicitor.
Approved: February 18, 1933.
Jos. M. DIXON, First Assistant Secretary.

SAN CARLOS--PRIORITY IN WATER RIGHTS

February 19, 1933.
Memorandum for the Secretary:

    The attached letters (2) prepared for departmental approval by the Assistant Commissioner of Indian Affairs, present the question of what, if any, priority or preference the Indian lands within the San Carlos irrigation project have to the use of the waters stored by the Coolidge Dam constructed under authority of the Act of June 7, 1924 (43 Stat. 475-476).

    Section 1 of the Act of June 7, 1924, reads:

    "That the Secretary of the Interior, through the Indian Service, is hereby authorized to construct a dam across the Canyon of the Gila River near San Carlos, Arizona, as a part of the San Carlos irrigation project, as contemplated in the report of the chief engineer of the Indian irrigation service submitted to the Commissioner of Indian Affairs on November 1, 1915, at a limit of cost of $5,500,000, for the purpose, first, of providing water for the irrigation of lands allotted to Pima Indians on the Gila River Reservation, Arizona, now without an adequate supply of water and, second, for the irrigation of such other lands in public or private ownership, as in the opinion of the said Secretary, can be served with water impounded by said dam without diminishing the water supply necessary for said Indian lands: Provided, That the total cost of the project shall be distributed equally per acre among the

 

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lands in Indian ownership and the lands in public or private ownership that can be served from the waters impounded by said dam."

    Section 2 of the act provides for reimbursement to the Treasury of the construction charges assessed against the Indian lands, and Section 3 provides for the payment of the construction charge against lands in private ownership when water therefor shall be available. Section 4 provides for the execution of a repayment contract by a district organized under State law embracing the lands in public or private ownership irrigable under the project.

    The project as constructed embraces 50,000 acres of lands in Indian ownership and 50,000 acres of lands in public or private ownership. The engineering report referred to in Section 1 of the act and other available records indicate that the storage capacity of the reservoir created by the Coolidge Dam would provide water over a period of years for the irrigation of about 80,000 acres of land, and arrangements have been made to supply the water needed for the remaining 20,000 acres chiefly by pumping the underground supply. The cost of providing the works to supply the water for this latter acreage as well as the cost of constructing the dam is distributed equally on a per acre basis over the entire 100,000 acres in the project.

    On January 15, 1935, the stored water of the project amounted to 91,000 acre-feet and the minimum possible supply available from pumps is estimated to be 69,000 acre-feet, making a total of 160,000 acre-feet available for apportionment over the lands in the project. It is estimated also that 30,000 acres of Indian lands and 50,000 acres of privately owned lands, making a total of 80,000 acres, will be ready for cultivation on March 1 and will therefore need water for irrigation during the coming season. As three or four acre-feet are required for successful irrigation under the conditions existing along the Gila River it is evident that a shortage exists hence, the necessity for determining the question of preference or priority as between the Indian and privately owned lands.

    One of the letters referred to above is addressed to Mr. Rudolph Johnson, vice president and acting chairman of the Gila River Tribal Council and interprets the Act of June 7, 1924, supra, as requiring an equal division of the stored waters between the Indian and non-Indian lands. In accordance with that interpretation, another letter addressed to Mr. C. J. Moody, project engineer, makes an apportionment of 2-acre-feet of available water to the 80,000 acres of land in the project ready for
cultivation.

    The position taken in these communications conforms to the practical interpretation placed upon the statute by the administrative officers charged with its execution. The project has been constructed upon that basis. The agreements with private landowners approved as to form by the Department on March 24, 1926, provide that the Indian and white owned lands in the project "shall be entitled to share equally in all of the stored and pumped waters of said project insofar as that shall be physically feasible," and the repayment contract between the United States and the San Carlos Irrigation and Draining District, dated June 8, 1931, declares that the stored and pumped water of the San Carlos project "shall be deemed a common project water supply in which all lands in the project and under the San Carlos Reservoir shall be entitled to share equally and all such water shall be distributed to the lands of the project as equitably as the physical conditions will permit". Bearing in mind that the private landowners are charged with an equal share of the construction costs and that in coming into the project they gave up their existing water rights in the natural flow of the stream, it is apparent that the principle of equality announced in these agreements constituted the moving consideration inducing their execution by the landowners and the irrigation district.

    If there were any serious doubt about the right of the Indians to priority in the use of the stored water, I should regard the practical construction given the statute by the Department and the action taken thereunder as binding to the extent of precluding reconsideration at this late date, particularly in view of the serious and far-reaching consequences unquestionably to result from a change in the position of the Department. Executive practice and interpretation, however, should not be adhered to when clearly wrong, and as the language of the statute and its legislative history plainly show that Congress did not intend that any part of the stored waters which could be beneficially used by the Indian lands in the project should be made available to lands in private ownership, I feel impelled to recommend that the present communications which have the effect of diverting to the privately owned lands water needed for the Indian lands, be not approved.

    In the letter to Mr. Johnson the Assistant Commissioner of Indian Affairs states that a study of the report dated November 1, 1915 of the chief engineer of the Indian Irrigation Service "indicates that the project was built upon the theory that the stored waters would be shared equally by the Indian and non-Indian lands, the combined area of which was essential for inclusion in order to justify the relatively expensive costs of storage construction." It is argued, therefore, that Congress at the time of the passage of the act had in mind a joint Indian and non-Indian project, the lands of which would be on the same plane insofar as the use of
 


 

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the stored waters is concerned. The opening declaration in the statute does authorize the Secretary of the Interior to construct the dam "as contemplated" in the report mentioned, but the only reasonable inference that can be drawn therefrom is that equal distribution of the stored water would be made to the Indian and privately owned lands only so long as there was sufficient water for the irrigation of all. That water needed by the Indians was not to be diverted to the privately owned lands is made plain by the express declaration that the purpose of Congress was, first, to provide water for the irrigation of lands allotted to the Pina Indians on the Gila River Reservation, now without an adequate supply of water and second, for the irrigation of such other lands in public or private ownership, as in the opinion of the Secretary of the Interior can be served with water impounded by the dam without diminishing the supply necessary for said Indian lands. If this declaration of the purposes of the act means anything at all it means that the Indian lands were to be first served with water and that the furnishing of water to the public and privately owned lands is incidental or of secondary importance. See in this connection Opinions of the Attorney General, dated April 30, 1926, 35 Op. 61. In that opinion the Attorney General held that the Secretary of the Interior might lawfully proceed with the construction of the dam without awaiting fulfillment of the requirements and conditions necessary to be met under Section 4 of the act by the private landowners in the irrigation district. In so holding, the Attorney General stated, among other things:

    "It is clear from the language of section 1 that the primary purpose of the Act is to provide water for the irrigation of lands allotted to the Indians on the Gila River Reservation 'now without an adequate supply' to which primary purpose the irrigation of other lands is secondary. If the commencement of construction must await the pleasure of the owners of lands in private ownership, then the primary purpose of the Act would be delayed and possibly defeated. Such a construction is not consistent with the clearly expressed intent of the statute and tends to defeat it rather than to give it effect."
    The plainly expressed purposes of this statute can be met under an equal division of the stored waters only where such equal division will result in the Indian lands receiving all the water they can beneficially use. If, during periods of shortage, such an equal division must continue, the primary object of providing the Indians with an adequate water supply will have failed and water needed for the Indian lands must be diverted to the privately owned lands in direct contravention of the provision to the effect that the water supply necessary for the Indian lands is not to be diminished by serving lands in public or private ownership.

    Any possible doubt about the intention of Congress in this matter is effectively removed I think, by the legislative history of the enactment. The measure was originally introduced as S.966. Reporting upon that measure the Senate Committee on Indian Affairs, on February 7, 1924, stated (Report 129, 68th Congress, 1st Session):

    "This measure is primarily for the restoration to the Pima Indians of their water rights along the Gila River which have been gradually taken away from them by the white settlers above them appropriating the waters of the river."
    At that time, however, the measure did not contain the language heretofore referred to setting forth the purposes for which the dam was to be constructed. That language was inserted by an amendment recommended by the House Committee on Indian Affairs in its report dated May 1, 1924 (Report 618, 68th Congress, 1st Session). This report recites that the Pima Indians had an adequate water supply for the irrigation of their lands prior to the time that the United States acquired jurisdiction over the Gila Valley; that as wards of the Federal Government the Pima Indians were entitled to have their water supply protected and maintained, but this the Government had failed to do; that the only way to restore the water supply of the Pimas and make them self-supporting, is to construct the San Carlos Dam to impound the flood waters of the Gila River; and that in order to make the San Carlos project a success and secure repayment of the money appropriated for its construction, it is necessary to include approximately an equal area of land now owned by white people. That the non-Indian lands were not to be included in the project with the privilege of sharing in the stored water on an equality with the Indian lands where so to do would diminish the supply needed for the Indian lands, is made plain by the further statement of the Committee that "The amendment proposed by your Committee makes it certainthat the San Carlos irrigation project shall be constructed primarily for the benefit of the Pima Indians and that only such part of the stored water as cannot be beneficially used by the Pimas may be made available to lands in private ownership."

    In view of the foregoing, it is my opinion that equal distribution of the waters impounded by the Coolidge Dam should be made only where there is sufficient water for the irrigation of both the Indian
 


 

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and non-Indian lands ready for cultivation, and that during years of shortage there must be first apportioned to the Indian lands the quantity of water necessary for the irrigation of those lands, leaving the remainder to be distributed as equitably as possible to the remaining lands in the project.

Solicitor.
CALIFORNIA--SAN MIGUEL--ENROLLMENT
April 19, 1933
Memorandum for the Secretary:

    You have referred to me for consideration a letter dated April 10, 1933, from the Attorney General for the State of California, raising the question of your authority to add to the roll of California Indians, prepared pursuant to the act of May 18, 1928 (45 Stat. 602), as amended by the act of April 29, 1930 (46 Stat. 259), the name of Mrs. Leonelle Josephine Carsner, a descendant of the San Miguel Indians of California.

    The act of May 18, 1928, supra, authorized the Attorney General of the State of California to bring suits in the Court of Claims on behalf of the Indians of California for the purpose of recovering damages or losses suffered by the Indians through their failure to secure lands and compensation provided for in 18 certain unratified treaties. For the purpose of determining the persons entitled to participate in the benefit of the act, section 7 provided that the Secretary of the Interior should cause a roll to be made of the persons entitled to enrollment. Section 7 further provided:

    Any person claiming to be entitled to enrollment may within two years after the approval of this Act, make an application in writing to the Secretary of the Interior for enrollment. At any time within three years of the approval of this Act the Secretary shall have the right to alter and revise the roll, at the expiration of which time said roll shall be closed for all purposes and thereafter no additional names shall be added thereto.
   By the act of April 29, 1930, supra, Congress amended section 7 so as to lengthen the periods for the filing of applications by the Indians and revision of the roll by the Secretary of the Interior to 4 and 5 years, respectively. Otherwise, the amendment repeated verbatim the language of the Original section. In virtue of the amendatory legislation as interpreted by the former Solicitor for this Department in an opinion dated July 8, 1930, M-25999, the California Indians were given the right to apply in writing to the Secretary of the Interior for enrollment within 4 years from May 18, 1928, the date of the original enactment, or up to May 18, 1932, and the Secretary was given the right to "alter and revise the roll at any time within five years" from May 18, 1928, or until May 18, 1933, "at the expiration of which time said roll shall be closed for all purposes and thereafter no additional names shall be added thereto".

    The records of the Indian Office show that Mrs. Leonelle Josephine Carsner did not apply for enrollment with the California Indians on or prior to May 18, 1932, as required by the statute, and that her application for enrollment was denied for that reason. See letter of Commissioner of Indian Affairs dated July 6, 1932, and letter dated November 21, 1932, from former Secretary Wilbur to the Attorney General of California. Indian Office File 11626-1929, part 4.

    In his letter of April 10, the Attorney General urges in effect that the right conferred upon the Secretary by the statute to alter and revise the roll at any time prior to May 18, 1933, invests him with authority to add the name of Mrs. Carsner, even though she failed to apply for enrollment within the period prescribed in the statute.

    The provision made for the filing of written applications for enrollment within 4 years from the date of enactment obviously was designed to afford to any person claiming the right to enrollment the privilege of having his case considered and determined by the Secretary. It was not intended, in my opinion, to limit enrollment to the persons so applying. The primary object in directing the roll to be made unquestionably was that such roll when finally made and approved should correctly reflect the number and names of the persons entitled to share in such benefits as might accrue from judgments rendered in suits instituted by the Attorney General for the State of California. Realizing that in the preparation of such a roll, errors both of commission and omission might occur, Congress was careful to preserve in the Secretary the power to alter and revise the roll for a limited time. The broad power so conferred upon the Secretary is amply sufficient, I think, to enable him, within the limit fixed, to place upon the roll the name of any person found by him to be entitled to enrollment, whether or not an application therefor was or was not filed within the 4-year period.

    The provision for the filing of applications with in 4 years is, at the most, merely directory. This is measurably reflected, not only by the use of the permissive word "may" instead of the imperative word "must" or "shall" (see Terre Haute and I. R. Co. v. Indiana, 194 U.S. 579), but by the failure of the statute to provide any penalty for
 


 

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late filing, or to prohibit consideration by the Secretary of an application not filed within the 4-year period. Under such circumstances, the provision under discussion appears clearly to fall within that class of statutory requisitions so aptly described by the Supreme Court of the United States in French v. Edwards(13 Wall. 506). The Court said:

    There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested can not be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated.
    See also Lewis Sutherland on Statutory Construction, Vol. 2, page 1114 et seq.

    In view of the foregoing it is my opinion that applicants such as Mrs. Leonelle Josephine Carsner, who failed to apply for enrollment within the 4 year period, may nevertheless be enrolled at any time prior to the final closing of the roll on May 18, 1933, provided, of course, such applicants are otherwise entitled to enrollment.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
TAX ON ELECTRICITY--MENOMINEE POWER PLANT
May 15, 1933.
Memorandum from the Solicitor:

    Was it the intention of Congress to tax the Indians of the Menominee Tribe under the Internal Revenue Act of June 6, 1932 (47 Stat. 266), for electrical energy generated at Neopit, Wisconsin, on the Menominee Indian Reservation with a power plant constructed by the expenditure of the tribal funds and operated as an adjunct to or in connection with the Menominee Indian Mills. The question of the payment of tax on electrical energy in this instance arises because of the submission by Ralph Fredenberg, Aloysius M. Dodge and James Caldwell, delegates of the Menominee Tribe of Indians who say in a statement dated April 11, 1933, that:

    "The Menominee Indians, residing upon the Menominee Reservation in Wisconsin, seriously question the applicability of the foregoing revenue statute to the electrical energy manufactured and sold from the tribal power plant at Neopit, Wisconsin.

    The Menominee Indians are wards of the United States Government. The electrical energy, consumed by the members of the tribe in their homes, against which this tax is assessed, is manufactured and sold from a plant built and maintained by tribal funds. The electrical current from this plant is sold only upon the Reservation, and the revenue therefrom goes into the tribal funds".

    Section 616 of the Internal Revenue Act, supra, provides in part:
    " (a) There is hereby imposed a tax equivalent to 3 per centum of the amount paid on or after the Fifteenth day after the date of the enactment of this Act, for electrical energy for domestic or commercial consumption furnished after such date and before July 1, 1934, to be paid by the person paying for such electrical energy and to be collected by the vendor".
    It is assumed that in the sale of electrical energy produced by the plant the same plan of metering, billing and collecting is used for the Whites on the Reservation as for the Indians, and that the 3 per cent tax collected is in addition to the bill produced when using the established kilowatt rate for the electricity. All users of electricity on the reservation are purchasers and where the tax is collectible the vendor is required to make the collection of the 3 per cent tax and transmit it to the collector of Internal Revenue. The exemption from taxation in subparagraph (c) of the act does not extend directly to Indians. It is quoted for convenience:
    "No tax shall be imposed under this section upon any payment received for electrical energy furnished to the United States or to any State or Territory, political subdivision thereof, or the District of Columbia. The right to exemption under this subsection shall be evidenced in such manner as the Commissioner with the approval of the Secretary may by regulations prescribed".
    The principal question for determination is whether the Indian as a ward of the Government is exempt from taxation under the Internal Revenue Law referred to because the ward's property is controlled by the guardian, and by implication, that Congress did not intend to extend the tax law to its Indian wards.
 


 

349

OPINIONS OF THE SOLICITOR

MAY 15, 1933

    Prior to 1848 numerous treaties had been effected with the Menominee Tribe of Indians. On October 18, 1848 (9 Stat. 952), a treaty was made with the Menominees in which it is stated in Article 3:

    "In consideration of the foregoing cession the United States agree to give and do hereby give to said Indians for a home to be held as Indians' lands are held, all that country or tract of land ceded to the United States by the Chippewa Indians of the Mississippi and Lake Superior; etc."
    The lands on this reservation have not been allotted under any act of Congress, the property is tribal, and title to the lands remains as stated in the treaty. The Indians on the reservation who use electricity from the tribal plant are wards of the
Government.

    In an opinion by the Comptroller General dated February 27, 1933, relative to the sale of electrical energy (to Government employees) developed by the Menominee Indian Mills, Neopit, Wisconsin, and the computation of Federal tax thereon, he
asserts:

    "As stated in the decision of the Commissioner of Internal Revenue, dated February 7, 1933, where electrical energy is supplied by the Government to its employees for private use and paid for by them on a consumption basis, directly or by pay roll deductions from their salaries, the purchase of such energy is subject to the tax imposed by section 616 of the revenue act".
    The Comptroller General further provides in his opinion a method of stating and settling for the taxes collected. From this it appears that the Whites living on the reservation and using electricity developed by the Menominee Indian Mills plant are required to pay the tax of 3 per cent. This is not inimical to the interest of the Menominee Tribe of Indians since the tax is paid by the consumer and is not an attempt to tax the property of the wards of the Government, and should not deprive the tribe of its usual revenue from the plant.

    Turning our attention now to the necessity of Payment of the tax by the Indian on the reservation who purchases electrical energy from the tribal-owned plant, we must determine whether there is an implied exemption in favor of the Indian.

    In decision of October 28, 1932, the deputy commissioner of internal revenue had under consideration the payment of a stamp tax on a deed for conveyance of restricted Indian lands from one Indian to another Indian. By the transaction the restriction was not removed. Section 725 of the Revenue Act of 1932 provided by subsection 8 that on deeds conveying realty there shall be assessed a tax of 50 cents where the consideration exceeds $100 and does not exceed $500 and increasing the tax for increased consideration named in the deed. The Commissioner states:

    "Any participation in income from property which still remains within the ownership of the tribe as a whole, restricted Indians should not be taxed under the Federal revenue acts on the ground that to such extent it is not the intention of Congress to tax restricted Indians."
    The decision of the Commissioner holds that the taxing stamp should not be affixed to a deed of conveyance of restricted lands from one restricted Indian to another restricted Indian. The decision of the Commissioner on the question of tax on the transfer of lands from one Indian to another appears to me to be almost identical with the case under consideration where the sale is that of electrical energy produced by a plant owned and operated for the benefit of the Menominee Tribe and the electricity is sold to a member of the tribe.

    In the case of Blackbird v. Commissioner of Internal Revenue(38 Fed. (2d) 976), the court was considering the applicability of the income tax under the Revenue Act of 1918 (40 Stat. 1057), and the Revenue Act of 1921 (42 Stat. 227), in connection with the income of Mary Blackbird, a restricted full-blood member of the Osage Tribe of Indians. The principal part of Mary Blackbird's gross income for the two years for which it was claimed she owed income tax, was her share of bonuses and royalties on tribal mineral leases. The court says:

    "She and the other petitioners contend that they are not only not liable for the amounts named under the deficiency orders but that they are not subject to the income tax statute. As to Mary Blackbird, we are disposed to yield our assent to the soundness of the contention. She is a restricted full-blood Osage. Her property is under the supervising control of the United States. She is its ward, and we cannot agree that because the income statute, Act of 1918 (40 Stat. 1057) and Act of 1921 (42 Stat. 227), subjects the net income of every individual to the tax, this is alone sufficient to make the Acts applicable to her. Such holding would be contrary to the almost unbroken policy of Congress in dealing with its Indian wards and their affairs. Whenever they and their interests have been the subject affected by legislation they have been named and their



 

350

DEPARTMENT OF THE INTERIOR

MAY 15, 1933

interests specifically dealt with. Elk v. Wilkins, 112 U. S. 94, 100, 15 S. Ct. 41, 44, 28 L. Ed. 643: 'General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them'. In Choate v. Trapp, 224 U. S. 665, 32 S. Ct. 565, 56 L. Ed. 941, the court, after noting the general rule that exemptions from taxation are to be strictly construed, said at page 675 of 224 U. S. 665, 32 S. Ct. 565, 569:

    "But in the government's dealings with the Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years, and has been applied in tax cases."

    Cases are cited. This is the view taken of the matter by the Attorney general in several opinions. 34 Ops. Attys. Gen. 439; * *  *"

    In the wording of both the electric tax and the documentary tax the law seems to be inclusive but the court and the Commissioners of Internal Revenue have set up an implied inhibition against the collection of the Internal Revenue tax from Indian wards.

    It is my view that the decision of the Comptroller General of February 27, 1933, indicates conclusively that a white person using the electricity from the Menominee plants must pay the 3 per cent tax and that the Indian ward is exempt from payment of the tax because of the conclusions reached by the Commissioner of Internal Revenue in his opinion of October 28, 1932. relative to payment of the stamp tax on deeds and the decision of the court in the case of Blackbird v. Commissioner, supra.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.

TAXABILITY OF ELECTRIC POWER GENERATED ON
MENOMINEE INDIAN RESERVATION

54 I.D. 218

Opinion, June 5, 1933.

INDIANS-STATUS-INTERNAL REVENUE TAXATION.

    The courts and the Commissioner of Internal Revenue have set up an implied inhibition against the collection of the Internal Revenue tax from Indian wards.


INDIANS-APPLICATION OF GENERAL STATUTES-WHEN STATUTES APPLY.

    General acts of Congress do not apply to Indians, unless so expressed as to clearly manifest an intention to include them; and wherever they and their interests have been the subject affected by legislation, they have been named and their interests specifically dealt with.


INDIANS-LANDS TRIBAL AND UNALLOTTED-TAX IMMUNITY-
INTERNAL REVENUE ACT OF JUNE 6, 1932.

    Electrical energy generated on an Indian reservation by a power plant constructed out of tribal funds and operated as an adjunct to or in connection with an Indian commercial activity is not taxable under section 616 of the act of June 6, 1932 (47 Stat. 266), the lands being tribal and unallotted, and the Indians wards of the Government.


INDIANS-TRIBAL PROPERTY OF MENOMINEES-INTERNAL REVENUE TAXATION-LEGISLATIVE INTENT.

    To the extent of participation in income from property which still remains within the ownership of an Indian tribe as a whole, restricted Indians should not be taxed under the Federal revenue acts, since to such extent it appears not the intention of Congress.


INTERNAL REVENUE TAXATION-ELECTRICAL POWER GENERATED
ON INDIAN RESERVATION-NON-INDIANS SUBJECT TO TAX.

    Electrical energy, generated by a power plant constructed out of tribal funds and operated in connection with Indian mills on an Indian reservation, when furnished to non-Indians, is taxable under the Internal Revenue Act of June 6, 1932.


DECISIONS AND OPINIONS CITED AND APPLIED.

    Blackbird v. Commissioner of Internal Revenue (38 Fed. 2d, 976); 34 Op. Atty. Gen. 439; Op. Comp. Gen. of February 27, 1933, cited and applied.


MARGOLD, Solicitor:

    With reference to the request of the Commissioner of Indian Affairs, addressed to you under date of April 29, 1933, for opinion (requested by Ralph Fredenberg, Aloysius M. Dodge, and James Caldwell, delegates of the Menominee Tribe of Indians, under date of April 11, 1933) on the question whether electrical energy generated at Neopit, Wisconsin, on the Menominee Indian Reservation, by a power plant constructed out of tribal funds and operated as an adjunct to or in connection with the Menominee Indian Mills, is taxable under the Internal Revenue Act of June 6, 1932 (47 Stat. 266), my opinion follows:

    The pertinent part of the statute reads:

    (a) There is hereby imposed a tax equivalent to 3 per centum of the amount paid on
 

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