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351

OPINIONS OF THE SOLICITOR

JUNE 5, 1933

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. (Sec. 616, Act of June 6, 1932, supra.)

    The question divides itself into two parts:

    1. Are the Indians to whom the electrical energy is furnished by the plant exempt from the tax?

    2. Are non-Indians to whom such energy is furnished exempt from the tax?

    (1) 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, * * *
    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 power plant are wards of the Government.

    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:

    The Blackbird case should be taken to stand for the proposition that to the extent of restricted allotted lands, and of 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 interests specifically dealt with. Elk v. Wilkins, 112 U.S. 94, 100, 5 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., 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;
 


 

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

    Upon the foregoing considerations it is my opinion that Indian wards are exempt from payment of the tax in question.

    (2) 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.

Approved:
OSCAR L. CHAPMAN, Assistant Secretary.

INVESTMENT OF OSAGE FUNDS

54 I.D. 260

M-27369                                                                                                                              July 22, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs you have requested my opinion as to whether the investment of the surplus funds of those members of the Osage Tribe of Indians who are residents of the State of Oklahoma in United States Government bonds is authorized under that provision in section 1 of the act of February 27, 1925 (43 Stat. 1008), reading:

    "The Secretary of the Interior shall invest the remainder, after paying the taxes of such members, in United States bonds, Oklahoma State bonds, real estate, first mortgage real estate loans not to exceed 50 per centum of the appraised value of such real estate, and where the member is a resident of Oklahoma such investment shall be in Loans on Oklahoma real estate, stock in Oklahoma building and loan associations, livestock, or deposit the same in banks in Oklahoma, or expend the same for the benefit of such member, such expenditures, investments, and deposits to be made under such restrictions, rules, and regulations as he may prescribe: Provided, That the Secretary of the Interior shall not make any investment for an adult member without first securing the approval of such member of such investment." [Italics supplied]
    In presenting this matter it is stated:
    "It will be observed that as to the members of this tribe who are resident in Oklahoma the classes of securities in which such 'remainder', commonly referred to as surplus funds or accumulated funds, 'shall' be invested, does not include United States Government bonds. An earlier statute dealing with the same subject matter,-Act of March 3, 1921 (41 Stat. 1249), Sec. 4,-contained no such inhibition, but did permit the investment of such surplus moneys belonging to resident members of this tribe in Oklahoma in United States Government bonds, along with the other state or local securities therein enumerated.

 

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JULY 22, 1933

    The later enactment, however, of 1925, in so far as resident members are concerned, having in express terms confined investment of these funds to certain designated securities, it has heretofore been held, administratively at least, that we are, therefore, inhibited from investing such surplus funds belonging to such resident members in United States Government bonds. This has proved to be a serious disadvantage to these Indians, due largely to the instability under present conditions of the class of securities offered by investment locally in a community in which they reside and the further fact that the interest paid or earned while leaving such funds on deposit in local banks has not been very large; around 3 or 3 1/2 per cent."

    The question presented turns primarily upon the effect of the qualifying words "and where the member is a resident of Oklahoma such investment shall be in loans on Oklahoma real estate * * *." The general language of the statute immediately preceding these words is that the "Secretary of the Interior shall invest the remainder * * * in United States bonds, Oklahoma State bonds, real estate, first mortgage real estate loans not to exceed 50 per cent of the appraised value of such real estate". This language standing alone obviously embraces both resident and nonresident members. The administrative view referred to, however, construes the qualifying words as confining the application of the general language to members who are non-residents of Oklahoma, and as establishing a separate and limited class of investments for the resident members, namely, loans on Oklahoma real estate, stock in Oklahoma building and loan associations and livestock. It is to be observed that under such construction, investments for nonresidents may be made in Oklahoma State bonds, but the funds of residents of that State could not be invested in such securities; the funds of nonresidents could be invested in real estate in Oklahoma or elsewhere, but the funds of residents could not be invested in real estate anywhere, not even in their own State; the funds of residents might be invested in livestock, but the funds of nonresidents could not be used for that purpose however much they might desire to engage in the livestock business; and the funds of nonresident members might be invested in United States Government bonds, but this unquestionably safe and sound form of investment would be denied to the resident member. A construction leading to such obviously unjust and absurd consequences can hardly be regarded as representing the purpose and intent of Congress, and should be rejected under the well-settled rule that all laws are to be given a sensible construction and that a literal application of a statute which would lead to absurd consequences should be avoided whenever a reasonable application can be given to it consistent with the legislative purpose. United States v. Katz (271 U. S. 354, 357).

    The provision in the prior act of March 3, 1921 (41 Stat. 1249), of which the provision under discussion is amendatory, limited investments to United States bonds and Oklahoma State, county or school bonds, and made no provision for expenditures for the benefit of the members no matter how great the need. The obvious purpose of the amendatory provision was to liberalize the prior law so as to permit greater latitude in investments and vest in the Secretary broad general authority in the matter of expenditures of the funds of these Indians. The more sensible view, in line with this general purpose and one reasonably supported by the language of the statute, is that the words "and where the member is a resident of Oklahoma such investment shall be in loans on Oklahoma real estate", were intended to and should be confined to the particular class of investment there mentioned, viz. loans on real estate. The restriction or limitation so placed upon resident members follows immediately that part of the general language authorizing the investment in first mortgage real estate loans and the use in the qualifying clause of the singular term "such investment" rather plainly indicates that the limitation was to be confined to that particular class of investment. In other words, the qualifying clause appears to have been inserted in the parenthetical manner so as to require that all investments of the funds of members resident of Oklahoma in first mortgage real estate loans be limited to loans on real estate located in that State, leaving as part of the general language of the statute, applying alike to all members of the tribe, both resident and nonresident, the provisions preceding and following that clause. Under this view, which is undoubtedly the correct one, ample authority exists for the investment of the funds in question, whether belonging to resident or nonresident members, in United States Government bonds.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
Approved: July 22, 1933.
HAROLD L. ICKES, Secretary.
 


 

354

DEPARTMENT OF THE INTERIOR

JULY 26, 1933

CRIMINAL JURISDICTION-
WHITES IN INDIAN COUNTRY

M-27487                                                                                                                                              July 26, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    The Commissioner of Indian Affairs and the Director of Investigations have asked my opinion as to the jurisdiction of the authorities of the Klamath Indian Reservation in Oregon and of the Federal courts over gambling and similar offenses within the incorporated town of Chiloquin on the Klamath Reservation. In this connection, they have submitted to me a letter from Wade Crawford, Acting Superintendent of the Klamath Indian Reservation, which addresses itself especially to the question of the legal ability of the reservation officials to prevent white residents of the town from engaging Indians, including minors, in gambling.

    In determining the extent of Federal jurisdiction, the first question to be decided is whether or not the town of Chiloquin is in "Indian country." The facts necessary to a decision on this question are not covered in Mr. Crawford's letter. I am in formed by the Indian Bureau that some of the land in the town is owned in fee by whites. As to such land the United States has no title and, therefore, no jurisdiction so far as criminal offenses are concerned (State v. Big Sheep, 1926-75 Mont. 219; 243 Pac. 1067), unless criminal jurisdiction has been retained by treaty or act of Congress. There is no such treaty or statute relating to this reservation. A part of the land in the town is held by Indians under trust or restricted allotments. Such land is within Indian country for the purpose of Federal criminal jurisdiction. United States v. Ramsey (1926-271 U. S. 467).

    So far as Indian country is concerned, Congress has the power to punish all crimes committed therein whether by whites or Indians. United States v. Rogers (1846-4 How. 567, 572). And Congress can punish crimes by whites on Indians in Indian country within, as well as without, the limits of a State. United States v. Kagama (1886-118 U. S. 375); In re Wilson (1891-140 U. S. 575). The mere fact that Indian country is included within a subdivision of a State would not affect the jurisdiction of the United States. Thus, in Donnelly v. United States (1913-228 U. S. 243) it was held that the creation of a school district by a State on land in an Indian Reservation could not affect the criminal jurisdiction of Congress over such land. It is clear that the United States has paramount jurisdiction over Indian country, and that accordingly no action on the part of the State could affect or diminish such jurisdiction.

    Congress has, however, allowed its extensive jurisdiction in criminal matters to remain largely unexercised, aside from certain enumerated offenses, including extensive provisions relating to the sale of intoxicants to Indians, but not including gambling or similar activities, the only criminal jurisdiction conferred by Congress is under section 217 of 25 U. S. C. A., which makes the general criminal laws of the United States which are applicable within the territory in the exclusive jurisdiction of the United States (not including the District of Columbia), applicable as well in all Indian country. I have failed to discover any statute relating to gambling or similar activities. The United States and Federal officials, in the absence of such an enactment, would have no jurisdiction over such offenses.

    The only hope of remedying the situation described by Mr. Crawford is under the general powers of the President and the Commissioner of Indian Affairs. These powers are conferred by sections 2 and 9 of the 25 U. S. C. A. which read as follows:

    "Sec. 2. The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations."

    "Sec. 9. The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs."

Under almost identical provisions, in United States v. Clapox (1888-35 Fed. 575, D. C. Ore.) the President was held authorized to establish courts of Indian affairs and to define "Indian offenses" and the punishment therefor. These Indian offenses, of course, related only to offenses by Indians. The President would not in my opinion have power to define offenses and prescribe punishment of whites in Indian territory. Whites would be tried not before an Indian court, but in the Federal District courts, and therefore would be subject to the ordinary rules governing such courts. As a partial solution of the problem (other than keeping a vigilant watch for liquor law violations) I can only suggest a procedure such as that dealt with in the case of Rainbow v. Young (1908-161 Fed. 835, C.C.A. 8th). In this case it appeared that
 


 

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Indian police acting under instructions of the Superintendent of an Indian agency, who in turn was acting under the directions of the Commissioner of Indian Affairs, had ejected a collector from a reservation on days when payments were being made to Indians, only reasonable force being used. Judge Van Devanter, now of the United States Supreme Court, sustained the power of the Indian authorities to remove from a reservation anyone whose presence thereon was, in the judgment of the Secretary of the Interior, detrimental to the peace and welfare of the Indians. He said (at pages 838-839):

    "In our opinion the very general language of the statutes makes it quite plain that the authority conferred upon the Commissioner of Indian Affairs was intended to be sufficiently comprehensive to enable him, agreeably to the laws of Congress and to the supervision of the president and the Secretary of the Interior, to manage all Indian affairs, and all matters arising out of Indian relations, with a just regard, not merely to the rights and welfare of the public, but also to the rights and welfare of the Indians, and to the duty of care and protection owing to them by reason of their state of dependency and tutelage. And, while there is no specific provision relating to the exclusion of collectors from Indian agencies at times when payments are being made to the Indians, it does not follow that the commissioner is without authority to exclude them; for by section 2149 (Revised Statutes) he is both authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation "any person" whose presence therein may, in his judgment, be detrimental to the peace and welfare of the Indians. This applies alike to all persons whose presence may be thus detrimental, and commits the decision of that question to the commissioner. Of course, it is necessary to the adequate protection of the Indians and to the orderly conduct of reservation affairs that some such authority should be vested in someone, and it is in keeping with other legislation relating to the Indians that it should be vested in the commissioner. United States ex rel. West v. Hitchcock, 205 U.S. 80, 27 Sup. Ct. 423, 51 L. Ed. 718. There is no provision for a re-examination by the courts of the question of fact so committed to him for decision and, considering the nature of the question, the Plenary power of Congress in the matter, and the obvious difficulties in the way of such a re-examination, we think it is intended that there shall be none. United States ex rel. West v. Hitchcock, supra; Stanclift v. Fox, 81 C. C. A. 623, 152 Fed. 697.

    It follows that the commissioner's direction to the superintendent and the latter's verbal order to the agency policemen were given in the exercise of a lawful authority, and therefore that what was done by the policemen was done in the lawful discharge of a duty placed upon them in pursuance of a law of the United States."

  Seealso Maxey v. Wright (1960-Ct. of App. of Ind. Territory, 54 S. W. 807, affirmed 105 Fed. 1003).

    The statute under which the Secretary and the Indian officials acted in the Rainbow case is still in force (25 U. S. C. A., section 222). It reads as follows:

    "The Commissioner of Indian Affairs is authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such person." (R. S. Sec. 2149).
    Thus the reservation officials, if directed by the Secretary and the Commissioner of Indian Affairs, would have authority at any time that an undesirable entered "Indian country," including any allotment, to eject him by the use of reasonable force if necessary. If any person who has been ejected should return, he would render himself liable to the $1,000 penalty prescribed for such offenses by section 221, 25 U. S. C. A. The power of removal under this section has been held to cover not only collectors, but even an alderman of an incorporated town in a Territory. The alderman in that case was not a State official, since the reservation was not then included within a State, but the decision would be equally applicable if he were. Ex Parte Carter (1903-76 S. W. 102; 4 I. T. 539). The question of whether the presence of any person in Indian country is detrimental to the welfare of Indians is one for the Commissioner of Indian Affairs and the Secretary of the Interior, and the courts will not review their decision. United States v. Sturgeon (1879-Fed. Cas. No. 16, 413,D. C. Nev.). See United States v. Mullin (1895-71 Fed. 682, 684, D. C. Neb.) . It seems to me
 


 

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JULY 26, 1933

not unlikely, although I do not know the precise situation in Chiloquin, that it would be possible to exercise some degree of control through the medium of ejections and the prosecution of ejected parties for returning. Other than by this means Congress has not authorized the Indian authorities to act on the matters brought up by Mr. Crawford.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
Approved: July 26, 1933.
T. A. WALTERS, First Assistant Secretary.

PAYMENT OF TUITION-SECTARIAN
SCHOOLS

M-27514                                                                                                                                     August 1, 1933.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to the legality of contracts entered into on behalf of the Government for the education of Indian children in sectarian schools.

    Over a long period of years antedating the year 1905 and extending through the fiscal year 1933, annual contracts for the education of Indian children in Mission schools of various denominations have been entered into. In earlier times these contracts were financed from funds belonging to the Indian tribes and also from gratuitous appropriations of the public funds. In 1894, however, opposition developed against appropriating public moneys for sectarian education and in the Indian appropriation act for that year under the heading "Support of Schools", the property of discontinuing contract schools and to make such recommendations as he might deem proper. The Secretary suggested and Congress adopted measures providing for a gradual reduction and final elimination of the aid to sectarian schools. This was accomplished by certain limitations contained in the Indian appropriation acts for 1895, 1896, 1897, 1898, and 1899, the latter act containing the declaration "This being the final appropriation for sectarian schools". In addition to this there was inserted in the act of June 10, 1896 (29 Stat. 321, 345), and again in the act of June 7, 1897 (30 Stat. 62, 79), the following:

    "And it is hereby declared to be the settled policy of the Government to hereafter make no appropriation whatever for education in any sectarian school".
    From and after 1899 and up to the present time it appears that the payments due under contracts with sectarian schools have been made from moneys recognized as belonging to the Indian tribes, designated as "Indian trust funds" or "treaty funds". The contracts in each instance are based upon petitions signed by individual members of the tribe and the payments made thereunder represent the pro rata proportion of the tribal or treaty funds to which the Indians making the petition are entitled. From a memorandum prepared by the Chief Finance Officer of the Indian Office, it appears that during the fiscal year 1933 mission contracts were in force providing for the education of Chippewa, Arapahoe, Menominee, Cheyenne, Choctaw, and Sioux Indian children, and that the tuition payments under these contracts aggregated for that year $244,743. Some of the mission contracts for the fiscal year 1934 have already been approved and others are pending approval.

    The question of the validity of a contract alike in all respects to those under consideration was squarely presented to and decided by the Supreme Court of the United States in Quick Bear v. Leupp (210 U. S. 50). The contract there considered was made between the Commissioner of Indian Affairs on behalf of the United States and the Bureau of Catholic Indian Missions for the care, education and maintenance of 250 Indian pupils at the St. Francis Mission, Rosebud Reservation, South Dakota, at $108 per capita per annum, amounting to $27,000. The contract was approved by the Secretary of the Interior and was entered into pursuant to a petition duly signed by 212 members of the Sioux Tribe of Indian at the Rosebud Agency, South Dakota. The payments under the contract were to be made from what is known as the "Sioux treaty fund", and the "Sioux trust fund". The Sioux treaty fund arose out of the Sioux Treaty of 1868 (15 Stat. 635), by Article 7 of which the United States agreed that for a period of "not less than 20 years" they would provide for every 30 children of the Sioux Tribe a house and a teacher competent to teach the elementary branches of an English education. By article 5 of the agreement ratified by the act of February 28, 1877 (19 Stat. 254, 256), the United States further agreed to furnish the Sioux "Schools and instructions in mechanical and agricultural arts as provided for by the treaty of 1868." By section 17 of the act of March 2, 1889 (25 Stat. 888, 894), that article of the treaty of 1868 which provided for schools and for education was continued in force "for 20 years after the time this act shall take effect". These
 


 

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AUGUST 1, 1933

treaty obligations were met by annual appropriations from the Federal Treasury, and the funds so appropriated represent what is known as the "Sioux Treaty Fund." The Sioux trust fund was created by the act of 1889, supra, by which Congress provided, among other things, that in consideration of the relinquishment of the Indian title to lands in Dakota and for other reasons,

    "There shall be set apart, out of any money in the Treasury not otherwise appropriated, the sum of three million of dollars, which said sum shall be deposited in the Treasury of the United States to the credit of the Sioux Nation of Indians as a permanent fund, the interest of which at five per cent per annum shall be appropriated under the direction of the Secretary of the Interior to the use of the Indians, etc."
    In addition to the two funds mentioned, gratuitous appropriations from the public funds for the purpose of Indian education, including the payment of tuition under contracts with mission schools, had, as stated above, been made by Congress. These gratuitous appropriations appeared in the appropriation acts under the heading "support of schools". The appropriation of the "treaty fund" was made under the heading "Fulfilling treaty stipulations and support of Indian tribes". The "Trust fund", the income from which was subject to expenditure for the use of the Indians, including education, without specific appropriation, did not appear in the appropriation act at all.

    The validity of the contract with the Board of Catholic Indian Missions was attacked on the ground that all contracts for sectarian education were forbidden by the declaration of policy contained in the acts of 1896 and 1897 that the Government "shall make no appropriation whatever for education in any sectarian school". But the court ruled that the declaration of policy applied only to the use of public moneys gratuitously appropriated for such purpose, and not to moneys belonging to the Indian themselves. The court said:

    "These appropriations rested on different grounds from the gratuitous appropriations of public moneys under the heading "Support of Schools". The two subjects were separatively treated in each act, and, naturally, as they are essentially different in character. One is the gratuitous appropriation of public moneys for the purpose of Indian education, but the "Treaty Fund" is not public money in this sense. It is the Indians' money, or at least is dealt with the Government as if it belonged to them, as morally it does. It differs from the Trust Fund in this: The "Trust Fund" has been set aside for the Indians and the income expended for their benefit, which expenditure required no annual appropriation. The whole amount due the Indians for certain land cessions was appropriated in one lump sum by the act of 1889, 25 Stat. 888, chap. 405. This "Trust Fund" is held for the Indians and not distributed per capita, being held as property in common. The money is distributed in accordance with the discretion of the Secretary of the Interior, but really belongs to the Indians. The President declared it to be the moral right of the Indians to have this "Trust Fund" applied to the education of the Indians in the schools of their choice, and the same view was entertained by the Supreme Court of the District of Columbia and the Court of Appeals of the District. But the "Treaty Fund", has exactly the same characteristics. They are moneys belonging really to the Indians. They are the price of land ceded by the Indians to the Government. The only difference is that in the "Treaty Fund" the debt to the Indians created and secured by the treaty is paid by annual appropriations. They are not gratuitous appropriations of public moneys, but the payment, as we repeat, of a treaty debt in installments. We perceive no justification for applying the proviso or declaration of policy to the payment of treaty obligations, the two things being distinct and different in nature and having no relation to each other, except that both are technically appropriations".
    It is established beyond question by the foregoing decision that contracts for the education of Indian children in sectarian schools, payable out of Indian "trust" or "treaty" funds and made at the request of the Indian owners of the funds are valid under the law as it existed on the date of that decision-May 18, 1908. You call attention, however, to subsequent legislation contained in the Indian appropriation act for the fiscal year 1918, approved March 2, 1917 (39 Stat. 969, 988), which it has been suggested may be regarded as prohibiting the making of any further sectarian contracts whether the moneys due thereunder are payable from gratuity appropriations or from Indian trust or treaty funds. The item referred to in its entirety reads:
    "For acquiring, constructing, or enlargement and equipment of school buildings on the fol-
 

 

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DEPARTMENT OF THE INTERIOR

AUGUST 1, 1933

lowing reservations: Crow Creek, Pine Ridge, Rosebud, Standing Rock Yankton, Sisseton, Lower Brule, and Cheyenne River, $300,000, of which sum not to exceed $50,000 shall be used for the construction and equipment of new school buildings at Fort Yates, North Dakota. And it is hereby declared to be the settled policy of the Government to hereafter make no appropriation whatever out of the Treasury of the United States for education of Indian children in any sectarian school".

    The records of the Indian Office show that the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, entered into contracts with the various mission organizations for the fiscal year succeeding that in which the above declaration of policy is found and that such annual contracts have continued to be made without interruption each year thereafter up to and including the present time. This continuous, practical construction of the statute and the proceedings thereunder by the officers charged with its execution should control and be followed unless manifestly wrong. Surgett v. Lapice (8 How. 48).

    It is to be observed that the declaration of policy contained in the above act, like the similar declarations in the earlier acts of 1896 and 1897, is again embodied in a paragraph making a gratuitous appropriation of the public funds, the appropriations in fulfillment of treaty obligations made by the same act appearing in separate paragraphs. Speaking of the significance of this sort of arrangement, the Court of Appeals in the Quick Bear case (30 App. D.C. 151, 161), said:

    "This difference in the nature and character of the funds was sufficient not only to cause Congress to provide for them separately, although ultimately they were to be expended to the same end, education, but also to entitle them separately, differently, and distinctly. This consideration is significant, and its significance must be recognized; it establishes that Congress regarded treaty obligations as distinct from school gratuities. If this be accurate, then it is likely that a restriction attached to the disposition of the gratuity, found only in juxtaposition with the very words creating the gratuity, was intended to apply only to the gratuity."
    If it had been the intention of Congress by this later enactment to broaden its declaration of policy to include within its scope Indian trust and treaty funds, doubtless an appropriate provision to that effect would have been inserted. The failure so to do, when viewed in the light of that part of the decision of the Supreme Court in the Quick Bear case, holding that to prohibit the Indians from receiving religious education at their own cost, would be "to prevent the free exercise of religion" among them, reasonably warrants the assumption that Congress did not intend such a result. The court said:
    "But we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the Government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof. The Court of Appeals well said:

    'The "Treaty" and "Trust" moneys are the only moneys that the Indians can lay claim to as matter of right; the only sums on which they are entitled to rely as theirs for education; and while these moneys are not delivered to them in hand, yet the money must not only be provided, but be expended, for their benefit and in part for their education; it seems inconceivable that Congress should have intended to prohibit them from receiving religious education at their own cost if they so desired it; such an intent would be one "to prohibit the free exercise of religion" amongst the Indians, and such would be the effect of the construction for which the complainants contend".'

    The enactment of 1917 contains nothing to show any intention upon the part of Congress to change the existing law upon this subject as announced in the Quick Bear decision. With the exception of slight, but immaterial changes in the wording, the language employed is of identical import with that contained in the acts of 1896 and 1897. Accordingly, there is but reiteration of the declaration of policy contained in the earlier acts. It is a well-settled rule of statutory construction that the language of a statute must receive the construction judicially given like language of an earlier statute relating to the same subject. Logan v. United States (144 U. S. 263, 301); Mason v. Pearson (9 How. 248). Thus in Heckt v. Malley (265 U. S. 144), it was held that Congress, in adopting in one statute the language of a former one which has been construed by the Supreme Court of the United States will be assumed to have adopted the construction and made it a part of the statute. In conformity with this rule, the construction placed upon the earlier statutes by the Supreme Court in Quick Bear v. Leupp, supra, must be regarded as having been adopted by Congress as a part of the
 


 

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OPINIONS OF THE SOLICITOR

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enactment of 1917 so that the latter enactment is likewise confined to gratuitous appropriations of public moneys and has no application to Indian "trust" or "treaty" funds.

    There remains for consideration the suggestion contained in the memorandum of the Chief Finance Officer of the Indian Office that the appropriations in fulfillment of treaty obligations with the Sioux and the Northern Cheyennes and Arapahoes are, in fact, gratuity appropriations, urging in that connection that all treaty and agreement provisions with such tribes have expired. In so far as the present inquiry is concerned, it is sufficient answer to this suggestion to point out that Congress has recognized the treaty obligations as continuing by declaring in each and every appropriation act that the appropriation is made in accordance with the particular treaty provision. These items, as taken from the appropriation act for the fiscal year 1933 and appearing in identical language in the appropriation act for the fiscal year 1934, are as follows:

    "For support and maintenance of day and industrial schools among the Sioux Indians, including the erection and repairs of school buildings, in accordance with the provisions of Article 5 of the agreement made and entered into September 26, 1876, and ratified February 28, 1877 (19 Stat, p. 254)". See 47 Stat. 107.

    "Fulfilling treaties with Indians: For the purpose of discharging obligations of the United States under treaties and agreements with various tribes and bands of Indians as follows: "

    "Northern Cheyennes and Arapahoes, Montana (Article 7, treaty of May 10, 1868, and agreement of February 28, 1877), $75,000;

    "Sioux of different tribes, including Santee Sioux of Nebraska, North Dakota, and South Dakota (Articles 8 and 13, Treaty of April 29, 1868, 15 Stat. p. 635, and act of February 28, 1877, 19 Stat. p. 254), $445,000". (See 47 Stat. 110).

    The justification presented to Congress for the first item above as submitted by Mr. Dodd, Chief Finance Officer of the Indian Office (see Hearings before Subcommittee of House Committee on Appropriations, Interior Appropriation Bill for 1933, pages 504-505), points out in an itemized statement the purposes for which the funds to be appropriated would be expended. This statement shows that of the amount to be appropriated, the sum of $35,000 would be used in payment of tuition. The item "Tuition" was explained by Mr. Dodd as follows:
    "More than 800 Sioux pupils are enrolled in mission or other contract schools, tuition being paid at rates varying from $125 to $135 per pupil. Without the advantages offered by contract schools, many of the Sioux children would be denied an education as Government schools, both boarding and day, are operated to full capacity and sufficient public school facilities are not available. This type of school also receives tuition payments from tribal funds of the several branches of the Sioux. Accruals to many such funds have almost ceased and balance have become depleted to such an extent that it is necessary to ask for an increase in this appropriation to provide for the education of these children".
    It is appropriate to add the following discussion between Mr. Hastings, a member of the Committee, and Mr. Dodd:
    "Mr. Hastings: You are asking for $406,500, an increase of $6,500. That is a treaty item?

    Mr. Dodd: That is a treaty item.

    Mr. Hastings: That was the treaty of September 26, 1876, ratified February 28, 1877".

    A similar jurisdiction was presented by Mr. Dodd in connection with the item for the Northern Cheyennes and Arapahoes. After referring to the applicable treaty provisions, Mr. Dodd stated: (pages 576-577 of the Hearings before the Sub-committee).
    "This fund is also used for miscellaneous administrative purposes and in payment of tuition for Indian children enrolled in the contract mission schools. The amount required for such contracts is approximately $21,250 and involves the education of approximately 170 pupils. The usual contract rate is $125 per child".
    Regarding the third item for the Sioux of different tribes, Mr. Dodd again referred to the applicable treaty provisions and, after pointing out that the appropriation would be used, among other things, for the payment of tuition for Indian children enrolled in mission contract schools, stated (p. 578 of Hearings):
    "The payment of tuition for pupils enrolled in contract schools requires an outlay of from $70,000 to $75,000. The capacity of Govern-
 

 

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DEPARTMENT OF THE INTERIOR

AUGUST 2, 1933

ment boarding and day schools in and adjacent to the Sioux Country is not sufficient to accommodate all Indian pupils eligible for school attendance. For many years contracts have been made with mission schools so that additional educational facilities would be available. With the shrinkage in recent years of tribal funds available for educational purposes, it has been necessary to increase this appropriation in order to continue these contracts. During 1932 mission contracts in effect covering pupils of Standing Rock, Pine Ridge, and Rosebud Reservations, will be paid wholly or in part from this appropriation".

    Like representations were made to Congress in connection with the same items as they appear in the appropriation act for the fiscal year 1934. (See pages 857, 945 and 957 of Hearings before Sub-committee of House Committee on Appropriations, Interior Appropriation Bill, 1934).

    The obligations imposed upon the United States by the provisions of the treaties with the above tribes have thus been expressly recognized by Congress as continuing to this day. Congress has therefore characterized the funds so appropriated as "Treaty Funds" and as such they appear to be available for expenditure in the payment of tuition for Indian children enrolled in sectarian schools upon petition of the Indians interested in the funds. Quick Bear v. Leupp, supra. In any event, the facts as to the use of the funds for sectarian education have been regularly laid before Congress and, with the knowledge thus obtained, it has repeated the appropriation each year.

    This can be accounted for, of course, only upon the theory that in the opinion of Congress the Commissioner of Indian Affairs and the Secretary of the Interior in contracting for the education of Indian children in these sectarian schools were but exercising powers which it intended they should have and exercise.

Acting Solicitor.

 Approved :
Secretary of the Interior.

FIVE TRIBES--REMOVAL OF
RESTRICTIONS

August 2, 1933.
Mr. William Keel,
Stratford, Oklahoma.

MY DEAR MR. KEEL:

    Receipt is acknowledged of your letter of July 21, in which you request assistance in the matter of recovering certain land allotted to you as a member of the Five Civilized Tribes in Oklahoma.

    Your contention appears to be that an order issued by the Secretary of the Interior on April 15, 1921, removing the restrictions from your land is invalid as in violation of section 5 of the act of May 27, 1908 (35 Stat. 312), and that it is the duty of the Government under section 6 of the said act to take action in the matter of restoring the title to you. The latter section relates to the jurisdiction of the Oklahoma Probate Courts over minor members of the Five Civilized Tribes, with provision for investigating the conduct of guardians and curators in probate matters and has no application to the recovery of lands from which the restrictions have been lawfully removed. Section 5 of the act declaring void any attempted alienation or incumbrance of lands allotted to members of the Five Civilized Tribes applies in express terms only to restricted lands and does not affect the validity of such transactions after the restrictions are removed.

    Section 1 of the act of May 27, 1908, supra, empowers the Secretary of the Interior to remove the restrictions from lands of members of the Five Civilized Tribes "wholly or in part" under such rules and regulations as he may prescribe. It appears from the records of the Indian Office that in conformity with this provision and upon your application followed by an investigation showing to the satisfaction of the Secretary of the Interior that you were qualified to handle your allotted lands free from governmental supervision, the Secretary issued the order of April 15, 1921. It further appears that in Keel v. Pioneer Mortgage Company (278 Pac. 1114) the Supreme Court of Oklahoma upheld the validity of the order removing the restrictions, saying, among other things:

    "Plaintiffs in error in their brief assert, 'The entire case of the defendants in error rests upon the validity of the order removing the restriction upon the lands of William Keel, and urge the lack of power of the Congress of United States to remove such restriction. This proposition has been so many times decided by this court and the Supreme Court of the United States adversely to the contention of the Plaintiff in error, the appeal in this case is manifestly frivolous and without merit. In the case of Buckner et al. v. Jenkins et al., 122 Okl. 105, 251 P. 81, the identical question presented in this case is exhaustively discussed and numerous authorities quoted and cited wherein the question of authority of Congress to remove the restrictions on alienation of lands such as is involved in this case has been determined against the contention of the
 

 

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OPINIONS OF THE SOLICITOR

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plaintiff in error. We deem it unnecessary to enter into a further discussion of this question or to cite additional authorities thereon. * * *"

    The order of April 15, 1921, the legality of which does not appear to be open to question, not only removed the restrictions from your land but also terminated departmental jurisdiction thereover, so that all questions relating to the title are for determination in the courts, particularly those of the State in which the land is located. See in this connection Larkin v. Paugh (276 U.S. 431, 439).

    Regretting that there are no legal remedies which this Department may invoke to aid you in recovering your lands, I am

Acting Solicitor.
SALE OF TIMBER-CONTRACTS

M-27499                                                                                                                                     August 8, 1933.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Pursuant to your request of July 20, I have carefully examined, in the light of the act of March 4, 1933, the modifications attempted to have been made, since the date of that act, in contracts relative to the sale of timber on unallotted and allotted Indian lands. Such contracts of sale had been made under the authority of, and had been governed by, the act of June 25, 1910 (36 Stat. L. 855-857), which provides as follows:

    "Sec. 7. That the mature living and dead and down timber on unallotted lands of any Indian reservation may be sold under regulations to be prescribed by the Secretary of the Interior, and the proceeds from such sales shall be used for the benefit of the Indians of the reservation in such manner as he may direct: Provided, That this section shall not apply to the States of Minnesota and Wisconsin."

    "Sec. 8. That the timber on any Indian allotment held under a trust or other patent containing restrictions on alienations, may be sold by the allottee with the consent of the Secretary of the Interior and the proceeds thereof shall be paid to the allottee or disposed of for his benefit under regulations to be prescribed by the Secretary of the Interior."

    The act of March 4, 1933 (Pub. No. 435, 72nd Cong.) provides:
    "That the Secretary of the Interior, with the consent of the Indians involved, expressed through a regularly called general council, and of the purchasers, is hereby authorized and directed to modify the terms of now existing and uncompleted contracts of sale of Indian tribal timber; * * *."

    "Sec. 2. The Secretary of the Interior may modify existing contracts between individual Indian allottees or their heirs and purchasers of their timber, under the terms and requirements of section 1 of this Act, with the consent of the allottee or his heirs."

    In your request for my opinion you state that the modifications of existing timber contracts allowed by the Department subsequent to March 4, 1953, include the following:
    "On March 6, 1933, the contract of the George E. Breece Lumber Company on the Elk-Silver Creek Timber Unit of the Mescalero Apache Reservation was modified to the effect of granting relief from cutting for the year beginning April 1, 1933."

    "On March 11, 1933, an extension of payment beyond the contract-period was allowed to the Deer Park Lumber Company within the Chamokane Logging Unit on the Spokane Reservation."

    "On March 13, 1933, the contract of the Sacramento Tie Company on the Nogal-Tularosa Canyons Timber Unit of the Mescalero Reservation was modified to grant an extension of time to April 1, 1935."

    "On May 8, 1933, the contract of the M. R. Smith Lumber & Shingle Company, on the Port Grenville Unit of the Taholah Agency, was modified through the acceptance of a cutting for the year ending March 31, 1933, reduced from 25,000,000 ft. to 17,366,320 ft., and any deficiency of cutting in prior years was also waived."

    "On May 23, 1933, contract with the Lutcher & Moore Lumber Company for the Defiance Plateau Timber Unit on the Southern Navajo Reservation was modified to grant an extension of time of one year additional on the cut of 50,000,000 ft. prior to April 1, 1937; and further to remit an advance payment of $25,000 on uncut stumpage prior to March 1, 1933."

    "On June 7, 1933, the contract of the Biles-Coleman Lumber Company on the Moses Mountain Unit of the Coleville Reservation was modified, and it was provided that during the three-year period beginning April 1, 1933,
 


 

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DEPARTMENT OF THE INTERIOR

AUGUST 8, 1933

the minimum rates of three dollars per M ft. for pine and one dollar per M ft. for other species were continued."

    "On June 16, 1933, contract of the Biles Coleman Lumber Company on the Omak Creek Unit of the Colville Agency was modified to permit continued cutting at the rate of three dollars per M ft. for pine and $1.10 per M ft. for other species."

    "On June 29, 1933, the contract with the Aloha Lumber Company on the Upper Wreck Creek Unit of the Tahola Agency was modified to permit a deduction of the required timber-cut, for the year ended March 31, 1933, from 3,000,000 ft. to 177,500 ft."

    "On July 7, 1933, contract with the Washington Pulp & Paper Company for the Wa-ach Timber Unit at the Neah Bay Agency was modified for the period April 1, 1933, to March 31, 1934, to allow a reduction of price to $2.00 per M ft. for spruce and cedar and $1.00 for hemlock and other species."

    The question is: Are the above-enumerated modifications of legal effect?

    The requirement of consent of the Indian or Indians affected had not been present prior to March 4, 1933, as to timber contracts entered into under the act of June 25, 1910, quoted above. That act (section 7) permitted the timber to be sold "under regulations to be prescribed by the Secretary of the Interior," in case the timber was on unallotted lands of any Indian reservation; and, in case the timber was on an Indian allotment held under a trust or other patent containing restrictions on alienation, the act (section 8) permitted sale "by the allottee with the consent of the Secretary of the Interior."

    Under the act of 1910, and the regulations prescribed thereunder by the Secretary of the Interior, certain changes were made prior to March 4, 1933, in the contracts hereinabove enumerated, such as: (1) Reduction in the amount of timber to be cut in any one year under the terms of the contract (section 46 of the General Timber Sale Regulations of April 10, 1920); (2) Periodic increase of stumpage prices (contract covering timber on the Moses Mountain Unit of the Colville Reservation); and (3) Reduction of stumpage prices (ibid). In other words, prior to March 4, 1933, modifications and changes were made in various sales contracts without the consent of the Indians. As to the validity of those changes no question is now involved. The contracts had, on March 4, 1933, certain terms. They were in a certain status, including in that status the modifications theretofore made, and including provisions permitting certain changes. Then came the act of March 4, 1933. In the interest of clarity the pertinent terms of its first paragraph are here repeated:

    "That the Secretary of the Interior, with the consent of the Indians involved, expressed through a regularly called general council, and of the purchasers, is hereby authorized and directed to modify the terms of now existing and uncompleted contracts of sale of Indian tribal timber: * * *."
    What was added to the existing law by this enactment? It is clear that two possible things were added: (1) The power to modify, with the consent of the Indians and of the purchasers, inelastic terms of the contracts, where no provision for change is included in the contracts or Regulations: and (2) the requirement of the consent of the Indians to modifications permitted under the contracts or incorporated Regulations. Was it merely one or the other of these possible things which was added to the existing law, or was it both? There appears to be no basis for distinguishing between the two in considering the scope and applicability of the act. Had Congress intended to exclude one of those effects from the operation of the act, it would have been a simple matter expressly to limit the effect. This was not done. The act is broad in scope, giving to the Secretary the power to alter the terms of the contracts provided the consent of the Indians and the purchaser be obtained. The language of the act applies equally to modification of terms of contracts where the contract or Regulations theretofore permitted such modification and those made where the contract or Regulations contain no such permission. Any type of modification of a term of the contract can be made, but the consent of the Indians is a condition thereto.

    The phrase "terms of * * * contracts" used in the act can only be interpreted as including the stipulated amounts of timber to be cut, stumpage prices to be paid, advance payments to be made, etc. If it does not contemplate such provisions it is stripped of all meaning. Consequently any alteration made in such a provision since March 4, 1933, falls within the purview of the act of that date. As discussed above, that which is within the operation of the act is any change or modification of the terms as they existed on March 4, 1933.

    Consequently, I am of the opinion that a modifi-
 


 

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OPINIONS OF THE SOLICITOR

AUGUST 23, 1933

cation made subsequent to March 4, 1933, even though it be a modification which prior to that date would have come within the terms of the contract or Regulations permitting modifications, falls within the scope of the act of March 4, 1933, and that the consent of the Indians is necessary to the legal validity of such modification.

    The same reasoning applies to the second section of the act, relating to, "existing contracts between individual Indian allottees or their heirs and purchasers of their timber." Here again, the Secretary may now modify "existing contracts" only "with the consent of the allottee or his heirs." Both as to reservation timber and timber on individual allotments, the Indians, in general council as to reservation timber, and individually as to timber on allotted lands, must consent to any modification of the terms existing of March 4, 1933.

    This conclusion is reached by an interpretation of the words of the act itself. It is made even more certain by the history of the act as traced through hearings before the House of Representatives Committee on Indian Affairs and through the debates as set out in the Congressional Record. These show unmistakably that the Klamath Indian tribal spokesman (on whose insistence, in the first instance, the then-pending bill was amended to require tribal consent for modifications of contract) intended and, understood that all modifications of the terms or effects of then existing contracts would be controlled by the language of the amendments; and no other witness, or member of the committee, questioned his construction or supplied any other construction.

    However, the most pertinent of the various passages in the records supporting this conclusion is that in the Senate debate of February 25, 1933 (Cong. Rec. Vol. 76, No. 67, page 5156), in which Senator King objected to the discretion in modification theretofore exercised by the Secretary of the Interior under contracts. He is reassured by Senator Frazier that such will no longer be the case because the consent of the Indians to any modification is required by the act under discussion. The clause cited as so providing is incorporated in the act under consideration.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.


Approved: August 8, 1933.
HAROLD L. ICKES, Secretary of the Interior.

MARKETABILITY OF TITLE-
PUEBLO OF NAMBE

M-27500                                                                                                                                       August 23, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have presented to me for examination and expression of opinion as to marketability of title, an abstract of title in support of a deed executed May 31, 1933, by Epimenio Romero, et ux, conveying to the Pueblo of Nambe for a consideration of $819.31, a tract of land in Santa Fe County, New Mexico, described in the deed as follows:

    "Exception No. 170, surveyed as Private Claim No. 9, Parcel No. 3, within the Pueblo of Nambe, of Sections 10 & 11 in Township 12 North of Range 9 east of the New Mexico Meridian, New Mexico, containing 23,409 acres, according to the approved Plat of Survey of said land on file in the General Land Office."
    The above land is being acquired under authority of an item appearing in the Interior Department Appropriation Act approved February 17, 1933 (Public No. 361, 72d Congress).

    The abstract of title is prepared by Frank B. Ortiz, county clerk and ex officio recorder of Santa Fe County, State of New Mexico, and is certified down to June 3, 1933. The abstract shows that pursuant to the provisions of the act of June 7, 1924 (43 Stat. 636), the United States issued to one Romulo Lujan a patent dated September 1, 1931, having the effect of a relinquishment by the United States and the Indians of the Pueblo of Nambe. The abstract further shows that Romulo Lujan died intestate, leaving surviving as his heirs at law six sons, who by mesne conveyances apparently sufficient, have transferred all their right, title, and interest in and to the land under consideration to Epimenio Romero, the grantor in the within deed. It further appears that in a suit instituted by Mr. Romero to quiet title, the District Court for the first judicial district within and for the county of Santa Fe, State of New Mexico, on May 29, 1933, ordered, adjudged, and decreed that:

    "The title of the plaintiff in and to the real estate in finding No. 5 herein described be, and the same hereby is, forever quieted and established and set at rest as against the adverse claims of the defendants herein, and each
 

 

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DEPARTMENT OF THE INTERIOR

AUGUST 23, 1933

of them, and said defendants, and each of them, are barred and forever estopped from having or claiming any right or title to or interest or lien upon the premises hereinabove described adverse to the plaintiff, and that plaintiff's title thereto is forever quieted and set at rest.

    Section 141-715 of the New Mexico statutes Annotated-1929, provides that no action at law or suit in equity for the collection of taxes or for the foreclosure of tax liens shall be instituted or brought by the State, any of its subdivisions, officers or agents, or by any person, firm, or corporation unless such act or suit shall have been brought within ten years from and after the date of delinquency of such taxes. In view of this provision the certificate relating to taxes is confined to the years 1922 to 1932, inclusive, and shows that all taxes for these years have been paid.

    The taxes for the year 1933 should be paid by the grantor and the abstract should be brought down to date, showing that nothing has transpired since the date of the present certificate which in any way affects the title. Subject to compliance with these requirements, no reason is seen why the within deed, which appears to be properly executed and completed, should not be accepted as conveying good title to the United States.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

 Approved: August 23, 1933.
T. A. WALTERS, First Assistant Secretary.

OSAGE ALLOTMENTS--SECRETARIAL
AUTHORITY IN APPROVAL OF WILLS


 
August 25, 1933.
Memorandum for the First Assistant Secretary:

    You have requested my opinion as to whether the Secretary of the Interior has any discretion in the matter of approving or disapproving wills of Osage Indians made under authority of Section 8 of the act of April 18, 1912 (37 Stat. 86, 88), reading:

    "That any adult member of the Osage Tribe of Indians not mentally incompetent may dispose of any or all of his estate, real, personal or mixed, including trust funds, from which restrictions as to alienation have not been removed, by will, in accordance with the laws of the State of Oklahoma: Provided, That no such will shall be admitted to probate or have any validity unless approved before or after the death of the testator by the Secretary of the Interior."
    The foregoing provision enables the Indian to dispose of all or any part of his property in accordance with the State law, if the will be approved by the Secretary of the Interior. In determining whether a statute of this kind, which makes the validity of an act of the Indian in disposing of his property subject to the approval of the Secretary of the Interior, vests discretionary authority in the Secretary, we are not without guidance in judicial decisions. In La Motte v. United States (256 Fed. 5), the Circuit Court of Appeals had under consideration among other things, the power of the Secretary under a statute giving the members of the Osage Tribe of Indians the right to lease their allotted lands upon the condition that such leases "shall be subject only to the approval of the Secretary of the Interior." The court said:
    "We read the requirement that such leases 'shall be subject only to the approval of the Secretary of the Interior' to mean that they are valid only when approved by him. The Secretary acts in such matters as the protector of the Indians' welfare. He can withhold such approval for any reason that seems to him meritorious."
    The Supreme Court of the United States in the same case (254 U.S. 570, 577) said:
    "Without doubt the regulations prescribed operate to restrain the Indian from leasing in his own way and on his own terms, but this is not a valid objection. If there were no regulations, the disapproval of a lease satisfactory to him would work a like restraint. Manifestly some restraint is intended, for the leasing provision does not permit the Indian to lease as he pleases, but only with the Secretary's approval."
    In Anicker v. Gunsburg (246 U. S. 110, 119), the Court had under consideration the power of the Secretary of the Interior under Section 2 of the act of May 27, 1908 (35 Stat. 312) providing that leases of restricted lands of members of the Five Civilized Tribes in Oklahoma, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise. The Court said:
 


 

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OPINIONS OF THE SOLICITOR

AUGUST 25, 1933

    "The statute is plain in its provisions-that no lease, of the character here in question, can be valid without the approval of the Secretary. Such approval rests in the exercise of his discretion; unquestionably this authority was given to him for the protection of Indians against their own improvidence and the designs of those who would obtain their property for inadequate compensation. It is also true that the law does not vest arbitrary authority in the Secretary of the Interior. But it does give him power to consider the advantages and disadvantages of the lease presented for his action, and to grant or withhold approval as his judgment may dictate."

    The Court further said (page 120):
    "We find nothing in this record to indicate that the Secretary of the Interior has exceeded the authority which the law vests in him. The fact that he has given reasons in the discussion of the case, which might not in all respects meet with approval, does not deprive him of authority to exercise the discretionary power with which by statute he is invested."
    The case of Nimrod v. Jandron (24 Fed. 2d, 613), involved the question of the power of the Secretary of the Interior to reconsider his prior action in having approved an Indian will made under authority of Sec. 2 of the act of June 25, 1910 (36 Stat. 855-56), as amended by the act of February 14, 1913 (37 Stat. 678), providing that no will so executed shall be valid unless approved by the Secretary of the Interior. Upholding the Secretary's authority so to do, the Court said:
    "We think, considering the scope of the jurisdiction conferred upon the Secretary over the restricted estates of Indians, that a liberal rule of interpretation should be adopted for the proper administration of such estates."
    The Supreme Court of Idaho in Snyder v. Raymond (285 Pac. 478) said:
    "Act of Congress, February 14, 1913 (25 U. S. C. A. 373), clearly evinces the purpose of the sovereign not to part with its title to any trust lands by reason of any will whatsoever until it is assured that the rights of its wards have been protected. Section 26 of the Department of the Interior's Regulations relating to the Determination of Heirs and Approval of Wills, approved June 19, 1923, especially provides for a hearing, notice thereof to all persons interested, including the presumptive legal heirs, and a full determination of the rights of the parties, after ample opportunity to the heirs to object to the will and its approval. Herein both wills were rejected by the Commissioner of Indian Affairs."
    In Wah-hrah-lum-pah v. To-wah-e-he (188 Pac. 106), the Supreme Court of Oklahoma said:
    "Under the Osage Allotment Act, herein before referred to, To-wah-e-he could not alienate the lands, or dispose of either the lands or the funds by will, without the approval of the Secretary of the Interior, which it is admitted was not secured. If the unapproved contract with To-wah-e-he could be enforced, it is clear that a way would be opened whereby every member of the Osage Tribe of Indians could effectively dispose of his restricted lands and trust funds by this means. This would enable them to do indirectly what they are not permitted to do directly without the approval of the Secretary of the Interior. The act of Congress is not only for the benefit of the allottee, but also for the benefit of his heirs. * * *"
    The Supreme Court in Davis v. Williford (271 U. S. 484) had under consideration Section 23 of the act of April 26, 1906 (34 Stat. 137, 145) providing that no will of a full blood Indian devising real estate and disinheriting his parent, spouse or children, should be valid "unless acknowledged before and approved by a judge of a United States Court * * * or a United States Commissioner." The Court said:
    "It is clear that it was intended by this proviso to prevent a full-blood Indian from being overreached and imposed upon, and induced for an inadequate consideration or by trickery, to deprive his heir of their inheritance; and that, to this end, a will devising his land to other persons should not be valid unless acknowledged before and approved by a judicial or quasi-judicial officer of the United States. To make certain of this, the officer was not to approve the will unless the testator appeared before him in person and acknowledged its due execution, and, upon the examination of the testator, the will appeared to be of such a character and based upon such consideration as to warrant its approval. Plainly, it was not intended that such acknowledgment and approval should be a perfunctory matter.* * *"
 

 

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DEPARTMENT OF THE INTERIOR

AUGUST 25, 1933

    The above language, though used in reference to a statute materially differing from the statute under consideration, nevertheless strongly indicates that the requirement for approval of the will by any Federal Agent is intended as a protective measure calling for the exercise of judgment and discretion.

    In the case of In re Wah-shah-she-me-tsa-he's Estate (239Pac. 177), the Supreme Court of Oklahoma, referring to a will made by an Osage Indian under the provision of law under consideration, stated:

    "It must, we think, be conceded that it is not incumbent upon the Secretary of the Interior to approve the will of an Osage Indian, although the will was in strict accordance with the laws of the State. In other words, before a will of such Indian can be held to be valid, it must be approved by the Secretary of the Interior."
    The rule to be deduced from the foregoing authorities is that where Congress has given the Indian the right to dispose of his restricted property whether by lease, deed, or will, subject to the approval of the Secretary of the Interior, the authority conferred upon the Secretary is one to be exercised in his discretion. That it was the purpose of Congress to vest discretion in the Secretary in the matter of approving or disapproving the will of an Osage Indian under Section 8 of the act of April 18, 1912, supra, seems clearly to be established by the Congressional debates which it is competent to consider in matters of this kind. See Work v. Braflet, (276 U. S. 560). I quote the following from the Congressional Record, Volume 48, Part 5, page 4263:
    "Mr. Cooper. I would like to ask if that would permit an adult Osage Indian under guardianship to make a will? It says 'any member of the Osage Tribe of Indians.

    "Mr. Burke of South Dakota. The intention is to allow any Indian to do so subject to the approval of the Secretary of the Interior. I do not imagine that the Secretary would permit such an Indian as you mention to make a will, at least he would not approve such a will."

    And at page 4264:
    "Mr. Burke. For instance, an Indian who has four children, two of whom were born before the allotments were made and who are allotted land, and he has two born thereafter that have no land. The Indian father has his allotment, and upon his death, under the law, his estate would be distributed in accordance with the law of descent in the State in which the Indian resides. That parent, as the gentleman might do, desires to give this land which he has to the two children who are without land, and therefore he ought to have the right to elect to give his allotment to the two children and not leave any part of it to the other two. And, as I said a while ago, somebody ought to supervise his acts, and therefore we say that it shall be subject to the approval of the Secretary of the Interior."
    Further, on page 4265:
    "Mr. Ferris. Mr. Chairman, supposing the will made by the incompetent Indian under this provision is an inequitable will which does not accomplish what we all hope in each case it will accomplish.

    "Mr. Norris. Yes. "Mr. Ferris: The Secretary will disapprove it, and he then has the right to take the estate, and the estate descends under the usual law of descent.

    "Mr. Norris. In that case suppose he does disapprove it; then it is just the same as if he had made no will, is it not?

    "Mr. Ferris. Precisely."

    Again on page 4266:
    "Mr. Cooper. He is helpless, he is blind, and during his lifetime section 5 strictly limits the disposition which can be made of his trust funds and other property; but just as soon as he comes to die we allow his will to do with trust funds and property as he pleases. This helpless Indian makes a will and disposes of it-."

    "Mr. Ferris. In the discretion of the Secretary of the Interior."

    I am of the opinion, in view of the foregoing, that the Secretary of the Interior, in passing upon the will of an Osage Indian made under the provisions of the act of April 18, 1912, supra, is not confined merely to the question of the factum of the will, that is, whether the will has been executed and attested in the manner and form required by law, and whether the testator was competent to make the will at the time he made it, and whether he was free from the disabilities which operate to defeat the will. In addition thereto, he may, I think, in the exercise of the discretion which the statute vests in him, inquire into all of the circumstances attending the execution of the will,
 


 

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including the considerations which may have induced the testator in any particular case to disinherit his heirs, and grant or withhold his approval as his judgment may dictate. The Department has recently so construed the statute. In a letter approved by the First Assistant Secretary, January 12, 1932 (File 62599-31), it was said:

    "The proviso to that part of the Act of April 18, 1912, above quoted, was intended to lodge some power of discretion other than a mere legal one in the Secretary of the Interior in the matter of approving or disapproving Osage Indian wills, and in practice the Act has heretofore been so construed. Taking the will act in connection with other related Osage legislation, there seems to be little or no doubt that such was the intention of Congress. Otherwise, it may fairly be assumed that Congress would have conferred sole jurisdiction upon the probate courts of the State as in the case of the Five Civilized Tribes."
    The discretionary authority of the Secretary is not, however, unlimited. His action must be neither arbitrary nor capricious but should be carefully and reasonably exercised to avoid, in particular, abuses of discretion operating as a substitution of his will for that of a testator whose mental capacity has been clearly established.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
VALIDITY OF PAPERS CONNECTED
WITH PURCHASE OF LAND BY U.S. FOR BENEFIT OF INDIANS

M-27541                                                                                                                               September 12, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In a letter dated August 30, 1933, the Commissioner of Indian Affairs submitted for your consideration and you have referred to me for opinion the question of the validity of papers connected with purchase by the United States from J. A. Jones of San Diego, California, of the lands hereinafter described for the use and benefit of Elvira (Frances) Romero and Alice (Hensley) Anderson, restricted Indians of El Capitan Grande Reservation, California.

    J. A. Jones, joined by his wife Martha M. Jones, on June 20, 1933, executed a warranty deed, conveying to Elvira (Frances Romero), a restricted Indian, the west 60 feet of lots 4 and 5 in Block 71 of City Heights in the city of San Diego, county of San Diego, State of California, according to amended map thereof No. 1007, filed in the office of the county recorder of said San Diego County October 3, 1906, reserving therefrom an easement and right of way over and across the south 11 feet of said west 60 feet of said lots 4 and 5 for the purpose of ingress to and egress from the east 80 feet of said lots 4 and 5 in Block 71 of City Heights. The consideration named in the deed is $1,850, to be paid by the United States from money held in trust by it for the benefit of the grantee. The deed recites, among other things, that the grantee is an Indian of El Capitan Grande Reservation, State of California, who had a part interest in certain reservation lands sold to the city of San Diego, California, for municipal purposes and the grantee desires to purchase with her share the land above described, and that such land shall be restricted as to alienation, lease, or encumbrance and non taxable in the same quantity and upon the same terms and conditions as the nontaxable lands from which the reinvested funds were derived.

    The deed is executed in proper form and there is submitted with it by the the grantor a proposed policy of title insurance to be issued by the Southern Title and Trust Company, a corporation of San Diego, California. The amount of the policy is to be $1,850, which is equal to the consideration to be paid for the land.

    The certificate of title provides in paragraph 4 of schedule "B" as follows: (excepting)

    "Easements, taxes or encumbrances created or levied by any improvement, Irrigation, Public Utility, Sanitary or other District, unless the amount of the easement or tax has become fixed and is due and payable and shown as a lien at the date hereof by the records in the offices of the Tax Collector, Auditor or Treasurer of the City of San Diego, or the County of San Diego."
    There should be filed with the papers a certificate signed by the supervising engineer of the Indian Service or his assistant, that the land to be acquired is not included in any Improvement Irrigation Public Utility, Sanitary, or other District. Before recording the deed the employee representing the United States should examine the records to determine if any change has been made in the title to the property. The policy of title insurance should be issued after the deed is recorded and if there has been no change in title the records would show title in Elvira (Frances) Romero subject to the restriction set forth in the instrument of conveyance. The taxes, now a lien
 


 

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against the land must be paid by the grantor before the transaction is closed.

    On June 19, 1933, J. A. Jones and Martha M. Jones, husband and wife, executed a warranty deed to Alice (Hensley) Anderson a restricted Indian of El Capitan Grande Reservation for:

    "The East Eighty (80) feet of Lots Four (4) and Five (5) in Block Seventy-one (71) of City Heights, in the City of San Diego, County of San Diego, State of California, according to amended map thereof No. 1007 filed in the office of the County Recorder of said San Diego County, October 3, 1906; together with an easement and right of way over and across the South Eleven (11) feet of the West Sixty (60) feet of said Lots Four (4) and Five (5) in Block Seventy-one (71) of City Heights, for the purpose of ingress and egress;"
    The provisions of this deed relative to alienation, taxes, etc., are identical with the provisions of the deed making conveyance to Elvira (Frances) Romero. The deed submitted with the papers is correct in form and execution and can be recorded. The grantors proposed to furnish a policy of title insurance in the amount of $1,950, which is the amount of the consideration named in the deed conveying the land. The policy is to be issued by the Southern Title and Trust Company, a corporation of San Diego, California.

    Schedule "B" of the policy is identical in form with the one above described for the conveyance to Elvira (Frances) Romero, and the same action must be taken by the supervising engineer of the Indian Service to show the conditions relative to the organizations described. The deed to Alice (Hensley) Anderson can be accepted and recorded after which a policy of insurance will be furnished by the grantee as proposed. Title will then be shown to be vested in Alice (Hensley) Anderson after payment of taxes by the grantor subject to the restrictions set forth in the instrument of conveyance. Documentary stamps in the amount of $2.00 must be affixed to each deed by the grantor and canceled by him.

    The voucher for the two tracts of land in the sum of $3,800, has been made and signed by John A. Jones. After the things above enumerated have been accomplished upon proper certification, the voucher may be paid and the transaction closed.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
Approved: September 12, 1933.
T. A. WALTERS, First Assistant Secretary.

INHERITANCE-RIGHT TO BENEFITS

54 I.D. 297

M-27540                                                                                                                             September 21, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested an opinion upon the question of what laws govern in the determination of heirs of a loyal Shawnee Indian who apparently had been adopted as a member of the Cherokee Nation.

    The facts in the case are briefly as follows:

    Mary, or Sally, Rogers, No. 113 of the Loyal Shawnee Indian Tribe, died intestate in 1883, in the country of the Cherokee Nation, and it appears that she had been adopted as a member of that nation. She was without issue but left Henry F. Rogers as her surviving husband, who died in 1901.
    In the act of December 22, 1927 (45 Stat. 1, 18) appropriation was made to pay the Civil War claims of the Indians of the Shawnee Tribe and for the Disposition of the estate of Sally Rogers the Department determined her heirs on March 1, 1932, in accordance with the laws of the State of Kansas. On February 2, 1933, the Department approved a recommendation by the Commissioner of Indian Affairs that the case be not reopened. A petition for rehearing is now pending.

    Under treaties with the Cherokee Nation these Indians had the right to pass and administer their own laws until October 1, 1898. See 9 Stat. 871, 14 Stat. 799, 26 Stat. 81 and 30 Stat. 495. The Cherokee Nation had their own statutes of descent.

    By section 31 of the act of May 2, 1890 (26 Stat. 81), the laws of Arkansas were extended to the Indian Territory so far as not locally inapplicable. In the act of June 28, 1898 (30 Stat. 495), it was provided that on October 1, 1898 the tribal courts should be abolished and all cases pending therein should be transferred to the United States courts. It was held in the case of Nivens v. Nivens (64 S. W. 604, 76 id. 114) that as the courts of the Cherokee Nation had been abolished by law and the laws of Arkansas relative to descent and distributions had been extended over the Indian Territory, the distribution of Cherokee estates must be had under the Arkansas statute.

    In the case of Jones v. Meehan (175 U. S. 1) it held that when a member of an Indian tribe, whose
 


 

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tribal organization was still recognized by the Government, died the right of inheritance in his property was controlled by the laws, usages and customs of the tribe and not by any State law or by any action of the Secretary of the Interior.

    The Indian Office and the Department have heretofore taken the view that the estate involved came to Sally Rogers as a Shawnee Indian, and that as the Shawnees had no rule for the descent of property and as the death occurred in the Indian Territory prior to its organization in 1890 the law of Kansas should be applied. This was based upon the provision in section 5 of the act of February 8, 1887 (24 Stat. 388), that "the laws of the State of Kansas regulating the descent and partition of real estate shall, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act."

    No real property is here involved. It appears that Sally Rogers and her husband were adopted and became members of the Cherokee Nation. As Cherokees the laws of the Cherokee Nation applied to them, and even though Sally Rogers had an approved claim against the Government, which originated while she was a Shawnee, her status as a Cherokee at the time of her death would not be affected.

    I am of the opinion that inasmuch as Sally Rogers and her husband were adopted as members of the Cherokee Nation, her estate passed in accordance with the laws of that nation, and the heirs of the husband, Henry F. Rogers, must be determined according to the laws of Arkansas in force at the time of his death.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

 Approved: September 21, 1933.
T. A. WALTERS, First Assistant Secretary.

POWER OF ATTORNEY--REVOCABILITY


 
October 2, 1933.
Memorandum to the Secretary:

    I have been requested to give my opinion regarding the revocability of the power of attorney signed by Dixie Joe Keeler on June 7, 1933.

    The file in this case is extremely complex. Consequently I shall only outline the pertinent facts. On June 8, 1925, Dixie Keeler received his certificate of competency. On December 30, 1930, he executed a power of Attorney appointing his wife Bertha Keeler, his attorney in fact, to collect the headright payments due him and to retain one half thereof toward the settlement of the indebtedness due to his stepson, Mrs. Keeler's natural son, and to pay the other one-half of such funds to him, Dixie Keeler. Subsequently attempt was made to revoke that power of attorney. On April 26, 1933, the Comptroller General, by letter addressed to you, held that that power of attorney was revocable. The basis of that decision lay in the fact that the Osage Indian headrights are not assignable and do not constitute assets which may be administered by a trustee in bankruptcy, and that if there is nothing to assign no interest can pass to the agent in fact under the power of attorney as necessary to constitute that power inrrevocable.

    On June 7, 1933, Dixie Keeler executed another power of attorney designating the National Bank of Commerce of San Antonio as agent to collect his headright funds, to pay one-half thereof to him, and to retain one-half thereof in trust for said stepson. At the same time Dixie Keeler and his wife Bertha Keeler executed a separation agreement in which they arranged a permanent disposition of all property and financial matters between them. That separation agreement was found upon consideration of the power of attorney executed at the same time and the terms of said agreement are made dependent upon the execution of the functions assigned to the agent in fact by the power of attorney. It is the revocability of this latter power of attorney which is now in question.

    It is well settled that a trustee's interest in property held by him in trust is sufficient to constitute the interest which must combine with a power of attorney in order to make said power irrevocable. Durbrow v. Eppens (65 N.J. Law Page 10; 46 Atl. 582; State ex rel. Kansas City Theological Seminary v. Ellison (216 S.W. 967-Supreme Court of Missouri, no State report citation found); Reilly et al. v. Phillips et al. (4 South Dakota 604, 57 N.W. 780). However, the mere fact that there may be a power coupled with an interest here is not conclusive as to the revocability of said power in the light of the Comptroller General's decision respecting the former power of attorney executed by Dixie Keeler. There is the further query regarding the revocability of the power in the light of the objection that the Osage Indian headrights are nonassignable.

    It is my opinion that the nonassignability of the headrights does not preclude the possibility that the power of attorney executed by the person who had been assaulted to the same third person constituting him agent to compromise the claim for damages as the result of the assault and battery and to collect the funds agreed upon in the compromise. Subsequently there was an attempted
 


 

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revocation of the power of attorney. It is well settled that a cause of action for assault and battery, in the absence of statute to the contrary, is non-assignable. But in this case the court expressly declared that it was unnecessary to determine whether or not the assignment of such a cause of action was valid under New Hampshire statute, saying that irrespective of that consideration the agent had a power "coupled with an equitable interest, at least, in the subject matter" sufficient to constitute the power irrevocable.

    In Supreme Assembly of Royal Society of Good Fellows v. Campbell et al. (17 R.I. 402, 22 Atl. 307) Campbell, then deceased, held an insurance policy under which the sum of $1,000 was due. The identity of the beneficiary under the policy was not known. However, all of Campbell's heirs, believing that one of them was the beneficiary, entered into an agreement and executed a power of attorney to A authorizing him to receive the sum due under the policy and to disburse it in equal parts to all the heirs regardless of the fact that only one of them was named beneficiary in the policy. On discovery of the identity of the beneficiary named that individual attempted to revoke the power of attorney. The issurer intervened in suit against the administrator, who was also the agent designated, for the purpose of determining to whom the payments should be made. The court upheld the power of attorney declaring it to be irrevocable despite the fact that nothing but an expectancy existed at the time the power was entered into. Some emphasis was given to the fact that a valid agreement existed regarding the collection of this fund between persons other than the agent. That same situation exists with respect to the instant power of attorney executed by Dixie Keeler.

    In Mulloney v. Black (244 Mass. 391, 138 N.E. 584), an agreement was entered into under which future profits of a corporation were to be divided in a certain way. A power of attorney was employed to authorize the treasurer of the corporation to make payments in accordance with the agreement. The court held that the power of attorney was irrevocable despite the fact that it contemplated funds as yet unearned by the corporation. Here again the existence of the agreement was given some weight in the opinion.

    In Wood et al. v. Kerkeslager et al. (225 Penna. 296, 74 Atl. 174), an agreement was entered into between two parties whereby a fund to become due to the one party as a result of condemnation of his property by the city was set over and assigned to the other party. A power of attorney was also entered into authorizing the designated agent to collect the funds from the city and to pay them over in accordance with the agreement. The court held that the power of attorney was irrevocable placing considerable emphasis upon the form of the transaction involving an agreement between two parties other than the agent.

    Particularly pertinent is the case of Buffalo Land and Exploration Company v. Strong et al. (91 Minn. 84, 97 N.W. 575-affirmed by Missouri decision 203, U.S. 582, 27 Supreme Court 780, 51 L. Ed. 327), In that case powers of attorney had been executed by a Sioux half-breed, one of which authorized the location of certain scrip allotted to him for land in Minnesota, the other of which authorized the sale of the land after location made. The statute provided that such scrip was non-assignable. However, the court held that the power of attorney to sell was one coupled with an interest and was irrevocable.

    In view of these authorities it is my opinion that the power of attorney executed by Keeler on June 7, 1933, is irrevocable despite the fact that the interest in the Osage headrights held by Keeler is nonassignable.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.

 
21ST AMENDMENT-LIQUORS

 
October 13, 1933.
Memorandum for the Secretary:

    You have asked me for a brief opinion concerning the effect of the possible adoption of a Twenty-first Amendment to the Constitution upon the laws regulating the manufacture and use of intoxicating liquors in lands subject to the jurisdiction of the Department of the Interior. Accordingly, this will include the Indian country, national parks, Alaska, Hawaii, Porto Rico and the Virgin Islands. In dealing with all these Territories it may be basically assumed that, since the United States has exclusive jurisdiction and control of them, and exercises all the sovereign and reserved powers of State governments, Congress has power to prohibit or regulate the manufacture and disposition of intoxicating liquors, subject always to such other provisions of the Constitution as operate to restrict the powers of both Federal and State governments. Oklahoma, K & M. I. Ry. Co. v. Bowling (249 Fed. 592.)

1. Indian Country

    Control of liquor traffic in Indian lands and with Indians started with the act of July 9, 1832. The statute in force at the time of the adoption
 


 

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OPINIONS OF THE SOLICITOR

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of the Eighteenth Amendment to the Constitution provided that:

    "Intoxicating liquors; sale to Indians or introducing into Indian country. No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years, and by fine of not more than $300 for each offense.

    Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essense, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall be punished by imprisonment for not less than sixty days, and a fine of not less than $100 for the first offense and not less than $200 for each offense thereafter: Provided, however, That the person convicted shall be committed until fine and costs are paid. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the War Department or any officer duly authorized thereunto by the War Department. (R. S. sec. 2139; Feb. 27, 1877, c. 69, Sec. 1, 19 Stat. 244; July 23, 1892, c. 234, 27 Stat. 260; Jan. 30, 1897, c 109 Sec. 1, 29 Stat. 506). (25 U. S. C. A., Sec. 241).

    With specific reference to the former Indian Territory, it is provided by the act of March 1, 1895, that:
    "Punishment for sale, etc., of liquors in former Indian Territory. Any person, whether an Indian or otherwise, who shall, in the former Indian Territory, manufacture, sell, give away, or in any manner, or by any means furnish to anyone, either for himself or other, any vinous, malt or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or shall carry, or in any manner have carried, into said Territory any such liquors or drinks, who shall be interested in such manufacture, sale, giving away, furnishing to anyone, or carrying into said Territory any of such liquors or drinks, shall, upon conviction thereof, be punished by fine not exceeding $500 and by imprisonment for not less than one month or more than five years. (March 1, 1895, c. 145, Sec. 8, 28 Stat. 697)." (25 U. S. C. A. Section 241 a).
    These statutes have been held not repealed by either the Eighteenth Amendment or the National Prohibition Act. Kennedy v. United States (265 U. S. 344); Blan v. United States (7 Fed. (2d) 887); Sharp v. United States (16 Fed. (2d) 876); Swafford v. United States (25 Fed. (2d) 581). There can be no doubt that they will remain in effect if and when the Eighteenth Amendment is repealed by the Twenty-first Amendment, and that they will constitute the legislation in force in the Indian country with respect to intoxicating liquors. Whether they merely prohibit intoxicating liquors, or cover all beverages of any alcoholic content, has already been the subject of a solicitor's Opinion dated April 24, 1933, in which it was decided that only liquors intoxicating in fact are prohibited. But see United States Cohn (52 S. W. 38). That question will, therefore, not be dealt with in this opinion.

2. National Parks

    The following national parks are under the sole and exclusive jurisdiction of the United States:

Yellowstone National Park (act of May 7. 1894, 28 Stat. 73, 16 U. S. C. A., Sec. 24).

Sequoia, Yosemite and General Grant National Parks (act of June 2, 1920, 41 Stat. 731, 16 U. S. C. A., Sec. 57).

Crater Lake National Park (act of August 21, 1916, 39 Stat. 521, 16 U. S. C. A., Sec. 124).

Platt National Park (act of June 16, 1906, 34 Stat. 272, 16 U. S. C. A., Sec. 153).

Glacier National Park (act of August 22, 1914, 38 Stat. 699, 16 U. S. C. A., Sec. 163).

Hot Springs National Park (act of September 18, 1922, 42 Stat. 847, 16 U. S. C. A., Sec. 372).

See also Underhill v. State (237 Pac. 628).

The statutes establishing other parks, including
 


 

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Mesa Verde, Wind Cave, Rocky Mountain, Lassen Volcanic, Abraham Lincoln, Grand Canyon, Lafayette, Mt. Zion, Mt. McKinley, Hawaii and Utah National Parks merely withdraw public lands from entry and dedicate them for use as national parks. Such parks are clearly subject to the liquor laws of the States in which they are located. 36 Ops. Atty. Gen. 527; see Surplus Trading Co. v. Cook (281 U. S. 647, 650).

    In the case of the projected Morristown National Park, it is expressly provided that the State of New Jersey shall retain criminal and civil jurisdiction over the area. (Act of March 2, 1933, 47 Stat.-; 16 U. S. C. A., Sec. 409 (f). New Jersey liquor laws will, accordingly, be in force in this park.

    In the case of Platt National Park, the statute expressly provides that "until otherwise provided by Congress the laws of the United States relating to the introduction, possession, sale, and giving away of liquors or intoxicants of any kind within the Indian country or Indian reservations shall be applicable to the lands * * *." (16 U. S. C. A., Sec. 151.)

    Congress having as yet made no other provision, Platt National Park continues to be subject to the Indian liquor laws.

    With respect to the other parks under the exclusive jurisdiction of the Federal Government, there are statutory provisions identical with or similar to the following, which refer specifically to the Yellowstone National Park:

    "Same; jurisdiction over park; fugitives from justice. The Yellowstone National Park, as its boundaries now are defined, or as they may be hereafter defined or extended, shall be under the sole and exclusive jurisdiction of the United States. All the laws applicable to places under the sole and exclusive jurisdiction of the United States, shall have force and effect in said park. Nothing in this section shall be construed to forbid the service in the park of any civil or criminal process of any court having jurisdiction in the States of Idaho, Montana, and Wyoming. All fugitives from justice taking refuge in said park shall be subject to the same laws as refugees from justice found in the State of Wyoming. (May 7, 1894, c. 72, Sec. 1, 28 Stat. 73)."

    "Same, criminal laws applicable. If any offense shall be committed in said Yellowstone National Park, which offense is not prohibited or the punishment is not specially provided for by any law of the United States or by any regulation of the Secretary of the Interior, the offender shall be subject to the same punishment as the laws of the State of Wyoming in force at the time of the commission of the offense may provide for a like offense in the said State; and no subsequent repeal of any such law of the State of Wyoming shall affect any prosecution for said offense committed within said park. (May 7, 1894, c. 72, Sec. 3, 28 Stat. 73)." (16 U. S. A., Sec. 25).

    This language is in many respects ambiguous and does not appear to have been subjected to any relevant judicial construction. A thoroughgoing analysis would necessitate more exhaustive treatment than has been requested. The probable effect of the adoption of the Twenty-first Amendment will be that, in the absence of controlling Federal legislation, the liquor traffic in the parks will be subject to the criminal laws of the States in which the parks are located. While it is not fully clear, apparently Federal legislation need not be statutory, but may consist of regulations promulgated by the Secretary of the Interior.

3. Alaska

    At the time of the adoption of the Eighteenth Amendment, the following act was in force in Alaska:

    "Manufacture or sale of intoxicating liquor prohibited; penalty. It shall be unlawful for any person, house, association, firm, company, club, or corporation, his, or its or their agents, officers, clerks or servants, to manufacture, sell, give, or otherwise dispose of any intoxicating liquor or alcohol of any kind in the Territory of Alaska, or to have in his or its possession or to transport any intoxicating liquor or alcohol in the Territory of Alaska unless the same was procured and is so possessed and transported as hereinafter provided.

    Whenever the term "liquor," "intoxicating liquor," or "intoxicating liquors," is used in this subchapter it shall be deemed to include whiskey, brandy, rum. gin, wine, ale, porter, beer, cordials, hard or fermented cider, alcoholic bitters, ethyl alcohol and all malt liquors, including all alcoholic compounds, classed by the United States Internal Revenue Bureau as "compound liquors." But the provisions of this subchapter shall not apply to methyl or wood alcohol.

    Any person or persons, or any house, company, association, club, or corporation, his, its, or their agents, officers, clerks, or servants, who shall, directly or indirectly violate the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $1,000 or shall be
 


 

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imprisoned for a period of not more than one year, or by both such fine and imprisonment. (February 14, 1917, C. 53, Sec. 1, 39 Stat. 903)." (48 U. S. C. A., Sec 261.)

    This act was not repealed by either the Eighteenth Amendment or the National Prohibition Act, and remained in force, inasmuch as there was no inconsistency between the so-called Alaska Bone Dry Act and the National Act. Peterson v. United States (297 Fed. 1000); Koppitz v. United States (272 Fed. 96); Abbate v. United States (270 Fed. 735). There is no doubt that the Alaska act will remain in effect after the adoption of the Twenty first Amendment. By the act of March 22, 1933, the Alaska Act does not apply to beers, wines, etc., containing not more than 3.2 per cent of alcohol by weight.

4. Hawaii

    Liquor traffic is prohibited in Hawaii by the Act of May 23, 1918, 40 Stat. 560, 48 U. S. C. A., Sec. 520.

    "Prohibition of intoxicating liquors. It shall BE UNLAWFUL in the Territory of Hawaii to sell, give away, manufacture, transport, import, or export intoxicating liquors, except for mechanical, scientific sacramental, or medicinal purposes, for which purposes the sale, gift transport, import and export of the same shall be under such rules and regulations as the governor of the Territory may prescribe, and any person violating the provisions hereof shall be fined in a sum not exceeding $500 or imprisoned for a period of not longer than one year or both."
    This act has not been judicially construed, but it seems clear that, as in the case of the Alaska and Indian liquor laws, it was not repealed by either the Eighteenth Amendment or the National Prohibition Act, and that it will remain in effect if the Twenty-first Amendment is adopted. The act of March 22, 1933, makes the Hawaii statute in operative as to beers and wines containing less than 3.2 per cent of alcohol by weight.

5. Porto Rico

    Special prohibition for Porto Rico is embodied in one paragraph of the Bill of Rights:

    " It shall be unlawful to import, manufacture, sell or give away, or to expose for sale or gift any intoxicating drink or drug, except the legislature may authorize and regulate importation, manufacture, and sale of said liquors and drugs for medicinal, sacramental, industrial, and scientific uses only. The penalty for violations of this provision with reference to intoxicants shall be a fine of not less than $25 for the first offense, and for second and subsequent offenses a fine of not less than $50 and imprisonment for not less than one month or more than one year." (48 U. S. C. A., Sec. 737).
    The National Prohibition Act is also in force in Porto Rico. Ramos v. United States (12 Fed. (2d) 761). But by the act of March 22, 1933, neither the National Act nor the prohibitory section of the Porto Rican Bill of Rights apply to liquors containing less than 3.2 per cent of alcohol by weight. It appears that the adoption of the Twenty first Amendment will have the same effect as in Alaska and Hawaii. Accordingly, the special laws will remain in force, subject only to the amendment effected by the act of March 22, 1933.

6. Virgin Islands

    The Eighteen Amendment is in effect in the Virgin Islands. (32 Ops. Atty. Gen. 258, 422). Since the amendment of November 23, 1921 (42 Stat. 223, 27 U. S. C. A., Sec. 2), the National Prohibition Act has also applied to the Virgin Islands. Since the act of March 22, 1933, the National Prohibition Act does not forbid liquor containing less than 3.2 per cent of alcohol by weight. But the act of 1933 is not a prohibitory act. Accordingly, if and when the Twenty-first Amendment is adopted, there will be Federal prohibitory legislation in the Virgin Islands. The local councils of St. Thomas and St. Croix adopted local prohibitory ordinances. I am informed by the Acting Governor of the Virgin Islands that he has recently approved a repeal of the ordinance in St. Thomas, and that he believes similar action has been taken by the council in St. Croix.

Solicitor.

TRUSTS FOR FIVE CIVILIZED
TRIBES-RESTRICTIONS ON
LIFE INSURANCE POLICIES

54 I.D. 310

M-27596                                                                                                                                October 14, 1933.

Solicitor's Opinion

As to whether the provisions of the act of January 27, 1933 (47 Stat. 777), relating to the creation of trusts out of the restricted funds or other property belonging to Indians of the Five Civilized Tribes in Oklahoma, apply to life insurance policies.



 

374

DEPARTMENT OF THE INTERIOR

OCTOBER 14, 1933

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Assistant Commissioner of Indian Affairs, my opinion has been requested as to whether the provisions of the act of January 27, 1933 (47 Stat. 777), relating to the creation of trusts out of the restricted funds or other property belonging to Indians of the Five Civilized Tribes in Oklahoma, apply to life insurance policies.

    Numerous applications have been received from various insurance companies involving not only ordinary life insurance but also single premium and annuity contracts, and it appears that the Superintendent for the Five Civilized Tribes has taken the position that it is necessary for such companies to meet the requirements of the act of January 27, 1933, supra, and the regulations prescribed thereunder, governing the creation of trust estates.

    Section 1 of the act of January 27, 1933, supra, deals with the restrictions applicable to the Indians of the Five Civilized Tribes, and sections 2 to 7 inclusive deal with the creation of trusts. Section 2 is the authorizing section and so far as material reads:

    "The Secretary of the Interior be, and he is hereby, authorized to permit in his discretion and subject to his approval, any Indian of the Five Civilized Tribes, over the age of twenty-one years, having restricted funds or other property subject to the supervision of the Secretary of the Interior, to create and establish, out of the restricted funds or other property, trusts for the benefits of such Indian, his heirs, or other beneficiaries designated by him, such trusts to be created by contracts or agreements by and between the Indian and incorporated trust companies or such banks as may be authorized by law to act as fiduciaries or trustees: * * *."
    It is significant to note that the statute makes no mention of insurance or insurance companies and it is evident that Congress did not have in mind this class of business; otherwise, the authority granted would not have been confined as it is, to the creation of "trusts" to be administered by "incorporated trust companies or such banks as may be authorized by law to act as fiduciaries or trustees: The insurance company in the ordinary life insurance policy, whether the premiums there under are payable in single or periodic installments, is not a trustee for the policy holder. So far from becoming a trust fund, the premiums paid belong absolutely to the insurance company in consideration of which the company binds itself to pay a given sum according to the terms of the policy to the persons in whose favor the policy is granted. No trust is created, the relation between the parties being that of debtor and creditor with their respective rights governed by the provisions of the policy, and this is true even though the policy be of the tentine type under which the policy holder participates in an equitable apportionment of the surplus and profits of the insurance company. Everson v. Equitable Assurance Society (68 Fed. 258, affirmed 71 Fed. 570); Equitable Life Assurance Society v. Brown (213 U.S. 25); Equitable Life Assurance Society v. Weil (103 Miss. 186, 60 So. 133); Townsend v. Equitable Life Assurance Society (263 Ill. 432, 105 N.E. 325). So also of an annuity contract which has been defined as an obligation to pay the annuitant a certain sum of money at stated times during life or a specified number of years in consideration of a gross sum paid for such obligation. Chisholm v. Shields (66 N.E. 93, 94); Town of Hartland v. Damon's Estate (156 Atl. 518, 523). Such a contract possesses none of the elements of a trust. (In re Collins 39 N.E. 629; In re Tom's Estate, 147 N.Y.S. 550, 554; Reid v. Brown, 106 N.Y.S. 27).

    I find no difficulty in holding that the act of January 27, 1933, in so far as it relates to the creation of trusts out of the restricted property of Indians of the Five Civilized Tribes, is without application to life insurance policies or annuity contracts. It does not follow, however, that the Secretary of the Interior is without authority to permit these Indians to purchase annuities or life insurance from their restricted funds. Section 1 of the act of January 27, 1933, places such funds under the jurisdiction and control of the Secretary of the Interior until April 26, 1956, "subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds * * * belong, under such rules and regulations as said Secretary may prescribe." Broad discretionary power is thus conferred upon the Secretary in the matter of the expenditure of the funds belonging to these Indians, and this obviously extends to and includes the authority to permit any such Indian to purchase life insurance or an annuity whenever the Secretary find that it is for his benefit so to do. The authority of the Secretary is, of course, discretionary, and he may grant or withhold his consent. The right to withhold consent includes the right to impose conditions. Sunderland v. United States (266 U.S. 226); United States v. Brown (8 Fed. 2d. 564). Accordingly, if consent be given in any case,
 


 

375

OPINIONS OF THE SOLICITOR

OCTOBER 16, 1933

the Secretary may impose such conditions as he may deem advisable for the protection of the interests of the Indian.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

Approved: October 14, 1933
OSCAR B. CHAPMAN, Assistant Secretary.

CONDEMNATION--VALUE OF TAX
EXEMPTION

October 16, 1933.

Memorandum for the
Commissioner of Indian Affairs:

    In a memorandum dated October 4, 1933, you request a reply to a legal question which you state in the following language:

    "Where Indian land is appraised for condemnation purposes or otherwise, should not an item be added to the base value, which item would represent the value of tax exemption and, where the condition exists, the value of the exemption from water charges?"
    In accordance with appropriations made by Congress and with authority vested in the Secretary of the Interior, a contract has been made with the Middle Rio Grande Conservancy District with offices at Albuquerque, New Mexico. The district, organized under the laws of the State of New Mexico, includes within its boundaries lands of the Sandia Pueblo grant and other similar grants occupied by Indians.

    Before the formation of the Conservancy District the Pueblo lands had been irrigated by diversions from the Rio Grande, and irrigation systems had been constructed by the Indians for the delivery of water to such lands as they desired to irrigate. The plan of the Conservancy District included drainage as well as irrigation. It requires right of way for drainage ditches and also irrigation canals across certain lands of the Pueblo which comprises the Sandia Pueblo grant.

    In accordance with the terms of the contract between United States and the Conservancy District, a board was appointed for the purpose of appraising the lands taken by the district for right-of-way purposes. All of the lands taken are exempt from both Federal and State taxes. Part of the land taken and perhaps all of it is entitled to irrigation water without payment of operation and maintenance charges. This latter feature arises from the terms of the contract between the United States and the Conservancy District.

    A water right in New Mexico and in all of the territory west of the 100th parallel is property. Town of Sterling v. Pawnee Ditch Company (94 Pac. 339; 42 Colo. 421). The rights of a landowner under water-right contracts are property which can not be taken by an irrigation district without payment of just compensation. Nampa & Meridian Irrigation District v. Briggs (147 Pac. 75; 27 Idaho 84).

    In the instant case we are interested in the value of the land taken for right of way, the damages to the land not taken, and also in the water right which is appurtenant to the entire tract. The lands are in New Mexico and therefore the New Mexico statute will govern as to appurtenancy of the water right. Section 5655 provides, among other things:

    "Beneficial use shall be the basis, the measure and the limit of the right to the use of water, and all waters appropriated for irrigation purposes, except as otherwise provided by written contract between the owner of the land and the owner of any ditch, * * * shall be appurtenant to specified lands owned by the person, firm or corporation having the right to use the water so long as the water can be beneficially used thereon * * *."
    Section 5703 provides:
    "All water used in this State for irrigation purposes, except as otherwise provided in this article, shall be considered appurtenant to the land upon which it is used, and the right to use the same upon said land shall never be severed from the land without the consent of the owner of the land:"
    The State law makes a water right appurtenant to the land and therefore it becomes real estate. If it has value it must be considered in determining the value of the right of way taken for the public use.

    Turning our attention to the question of what items shall be taken into consideration, we find that any element of value must be considered by the appraisers. The measure and elements of compensation for property taken depend largely upon the nature and extent of the right taken, as well as upon the resulting injury to the owner of the property affected. The compensation to be paid should be determined with reference to the particular use to which the lands are to be put and the particular method to be adopted in the taking and use thereof. Where only a part of a tract is


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