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476

DEPARTMENT OF THE INTERIOR

OCTOBER 25, 1934

sumed to legislate and over which the State governments have not the authority to legislate.

    The attempts of the Interior Department to administer a rough-and-ready sort of justice through Courts of Indian Offenses, or directly through superintendents, cannot be held to have impaired tribal authority in the field of law and order. These agencies have been characterized, in the only reported case squarely upholding their legality, as "mere educational and disciplinary instrumentalities by which the Government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian." (United States v. Clapox, 35 Fed. 575; and cf. Ex parte Bi-a-lil-le, 12 Ariz. 150, 100 Pac. 450; United States v. Van Wert, 195 Fed. 974.) Perhaps a more satisfactory defense of their legality is the doctrine put forward by a recent writer that the Courts of Indian Offenses "derive their authority from the tribe, rather than from Washington."35

    Whichever of these explanations be offered for the existence of the Courts of Indian Offenses, their establishment cannot be held to have destroyed or limited the powers vested by existing law in the Indian tribes over the province of law and order and the administration of civil and criminal justice.

THE POWER OF AN INDIAN TRIBE TO SUPERVISE
GOVERNMENT EMPLOYEES

    Although the power to supervise regular Government employees is certainly not an inherent power of Indian tribal sovereignty, it is a power which is specifically granted to the Indian tribes by statute, subject to the discretion of the Secretary of the Interior. U.S. Code, title 25, section 48, provides:

Right of tribes to direct employment of persons engaged for them. Where any of the tribes are, in the opinion of the Secretary of the Interior, competent to direct the employment of their blacksmiths, mechanics, teachers, farmers, or other persons engaged for them, the direction of such persons may be given to the proper authority of the tribe. (R. S. sec. 2072.)
    Under the terms of this statute it is clearly with in the discretionary authority of the Secretary of the Interior to grant to the proper authorities of an Indian tribe all powers of supervision and control over local employees which may now be exercised by the Secretary, e.g., the power to specify the duties, within a general range set by the nature of the employment, which the employee is to perform, the power to prescribe standards for appointment, promotion, and continuance in office, the power to compel reports, from time to time, of work accomplished or begun.

    It will be noted that the statute in question is not restricted to the cases in which a Federal employee is paid out of tribal funds. Senators are responsible to their constituents regardless of the source of their salaries, and heretofore most Indian Service employees have been responsible only to the Federal Government, though their salaries might be paid from the funds of the tribe.

    In directing the employment of Indian Service employees, an Indian tribe may impose upon such employees the duty of enforcing the laws and ordinances of the tribe, and the authority of Federal employees so acting has been repeatedly confirmed by the courts. See Morris v. Hitchcock (194 U.S. 384); Buster v. Wright (135 Fed. 947, app. dism. 203 U.S. 599); Maxey v. Wright (3 Ind. T. 243, 54 S. W. 807, aff'd 105 Fed. 1003); Zevely v. Weimer (5 Ind. T. 646, 82 S. W. 941); 23 Op.
Atty. Gen. 528.

    The section in question has not, apparently, been extensively used by the Interior Department, and that Department, under a previous administration, has recommended its repeal. Congress has not seen fit, however, to repeal the statute, and the recommendation of a previous Secretary of the Interior has no particular weight in construing the meaning of the statute.

CONCLUSIONS

    I conclude that under Section 16 of the Wheeler Howard Act (48 Stat. 984) the "powers vested in any Indian tribe or tribal council by existing law," are those powers of local self-government which have never been terminated by law or waived by treaty, and that chief among these powers are the following:

    1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.

    2. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe, and to grant or withhold the right of suffrage in all matters save

__________
    35 W. G. Rice, Jr., "The Position of the American Indian in the Law of the United States," 16 Jour. Comp. Leg. (3d
Ser.), Part 1, pp. 78, 93 (1934).
 


 

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those as to which voting qualifications are specifically defined by the Wheeler-Howard Act (that is, the referendum on the act, and votes on acceptance, modification, or revocation of constitution, bylaws, or charter), and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrollment and property rights of members.

    3. To regulate the domestic relations of its members by prescribing rules and regulations concerning marriage, divorce, legitimacy, adoption, the care of dependents, and the punishment of offenses against the marriage relationship, to appoint guardians for minors and mental incompetents, and to issue marriage licenses and decrees of divorce, adopting such State laws as seem advisable or establishing separate tribal laws.

    4. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land.

    5. To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.

    6. To remove or to exclude from the limits of the reservation nonmembers of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal laws governing trade with the Indian tribes.

    7. To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe out of tribal funds where legal title to such funds lies in the tribe.

    8. To administer justice with respect to all disputes and offenses of or among the members of the tribe, other than the ten major crimes reserved to the Federal courts.

    9. To prescribe the duties and to regulate the conduct of Federal employees, but only insofar as such powers of supervision may be expressly delegated by the Interior Department.

    It must be noted that these conclusions are advanced on the basis of general legislation and judicial decisions of general import and are subject to modification with respect to particular tribes in the light of particular powers granted, or particular restrictions imposed, by special treaties or by special legislation. With this qualification the conclusions advanced are intended to apply to all Indian tribes recognized now or hereafter by the legislative or the executive branch of the Federal Government.

Approved:
OSCAR L. CHAPMAN, Assistant Secretary.

CHICKASAW--LEASE APPROVAL PROCEDURE

October 25, 1934.
Memorandum to the Commissioner of Indian Affairs.

    Attached is a copy of a letter from B. S. Haraway, Esquire, of Ada, Oklahoma, in which he requested my opinion as to the validity of the procedure taken in connection with the approval of a certain lease of full-blood Indian lands under the provisions of the act of January 27, 1933 (47 Stat. 777).

    Mr. Haraway submitted an abstract of title and a transcript of court proceedings and certain other letters. Copies of the letters are attached, and certain facts which were shown by the abstract and the transcript of court proceedings are briefly stated in this memorandum.

    Certain full-blood Chickasaw Indians, Bob Thomas and Joshua Thomas, adults, and Woodrow Wilson Thomas and Milburn Thomas, minors, inherited land from a full-blood Chickasaw Indian, Lizzie Monroe. The latter died on April 5, 1918. On January 8, 1934, Bob and Joshua Thomas executed an oil and gas lease to W. P. Chism, covering their interest in the property. Under the act of January 27, 1933, requiring conveyances of interests in land inherited by full-blood Indians to be approved by the county courts, Bob and Joshua Thomas filed a petition seeking the approval of this lease. A date was set for the hearing, and notices were posted and published. After a hearing, the court approved the lease as to part of the land, but awarded a lease on the remaining portion to Mr. Simon Westheimer. The Westheimer lease has been executed by the Thomases. The award was made to Westheimer because he appeared at the hearing and made an offer to pay a price for the lease on this portion of the land, that was substantially better than the price Chism had agreed to pay by the terms of his lease, which was then before the court for approval.

    The record indicates that the Simpson-Fell Oil Company is now the owner of the Westheimer lease. Apparently, the Shell Petroleum Company wishes to purchase this lease, but wants to be as-
 


 

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sured that the court had authority to award it to Westheimer and that proper procedural steps were taken in that action.

    I have refused to render a formal opinion, but have indicated that the Department is not disposed to question the authority of the court to award a lease to a higher bidder. A copy of my letter to Mr. Haraway is attached. I took that position principally because of the fact that if the Department formally passes on this transaction, it may be called upon to pass on all conveyances of interest in land owned by full-blood Indians heirs, which have been approved by the Oklahoma county courts under the act of January 27, 1933, supra.

    A brief review of the act of January 27, 1933, suggests, however, that the department should know what procedure is not being followed by the United States tribal attorneys under this act. The statute presents some new problems as to the authority of the court and as to the procedure that is to be followed by that court in approving these conveyances. The act provides:

    "That it shall be the duty of the attorneys provided for under the Act of May 27, 1908 (35 Stat. L. 312), to appear and represent any restricted member of the Five Civilized Tribes before the county courts of any county in the State of Oklahoma, or before any appellate court thereof, in any matter in which said restricted Indians may have an interest, and no conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June of 1914, and said attorneys shall have the right to appeal from the decision of any county court approving the sale of any interest in land, to the district court of the district of which the county is a part."
    Heretofore, the Department has taken the position that it was not disposed to question leases or conveyances of lands inherited by full-blood Indians, accepting the rule laid down in the case of United States v. Gypsy Oil Company (10 Fed. (2d) 487), where it was held that the want of approval of such a lease by the Secretary of the Interior was immaterial to its validity. Under the new act, it appears that conveyances of these interests in land are only valid if approved in the manner prescribed in the statute. It would seem to follow that if, in a given instance, the correct procedure were not followed, the validity of the lease might be questioned in a collateral proceeding. For this reason, the Department should know what procedure is being followed, and it may be interested in making some uniform regulations with respect to this procedure.

    I suggest that you instruct the superintendent of the Five Civilized Tribes to make an investigation of this matter and submit a report to you. When such report is received by you, if any problems are presented which call for my further consideration, you can then make a formal request for an opinion on those points.

Solicitor.

IRA INTERPRETATION REGARDING DEVISEE
QUESTIONS-TRIBAL ORGANIZATION AND
JURISDICTION-DEFINITION OF TRIBE
AS POLITICAL ENTITY

M-27796                                                                                                                             November 7, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question of whether, under the provisions of the Wheeler Howard Act (act of June 18, 1934, Public No. 383, 73d Congress), devisees other than heirs at law under wills of restricted Indians must be confined to the Indians of the same reservation without regard to original tribal blood or affiliation.

    Section 4 of the Wheeler-Howard Act prohibits all transfers of restricted Indian lands except such as are specifically sanctioned by the terms of the section. The only such provision relevant to the present question declares that:

"restricted Indian lands may * * * be sold, devised or otherwise transferred to the Indian tribe in which the lands * * * are located * * * to a successor corporation; and in all instances such lands * * * shall descend or be devised * * * to any member of such tribe or of such corporation or any heirs of such member."
The phrase "any member of such tribe or of such corporation" clearly refers to the earlier phrase "to the Indian tribe in which the lands * * * are located * * * or to a successor corporation." It is upon the ambiguity of this phrase that the question proposed turns.

    Strictly speaking, this phrase involves a misuse of language. Indian lands cannot properly be said to be located in a tribe. A tribe is not a geographical but a political entity. What may be located in
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 7, 1934

the tribe is a certain legal authority or jurisdiction with respect to the lands in question. I think it fair to infer, in the light of the general scheme of Indian community control which the Wheeler Howard Act contemplates, that the phrase "the Indian tribe in which the lands are located" was used to designate that tribe which has some sort of jurisdiction over the lands in question.

   It is contemplated that this matter will eventually be dealt with in the constitutions and bylaws of the various tribes, authorized by section 16 of the Wheeler-Howard Act. If a given tribe, so organized, is granted jurisdiction over an entire reservation, then any lands of the reservation may be devised to any member of the tribe, as such tribe may be defined by its own constitution, approved by the Secretary of the Interior. If, on the other hand, two organized tribes exercise authority within a single reservation, then the constitution of the two tribes will presumably define the lands over which each political entity may exercise control, and devises of such land must conform to this separation. Finally, if a given tribe, organized as a unit, exercises authority over lands in more than one reservation, then any such lands may be devised to any of the members of the tribe, regardless of their reservational affiliations.

    The question of how Indian tribes should be organized, under section 16 of the Wheeler-Howard Act, is an administrative question.

    Section 19 of the Wheeler-Howard Act provides:

    "The term 'tribe' wherever used in this act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation."
    It is clearly the purport of this definition that any one of these groupings may be recognized as entitled to tribal status.

    In my opinion the Wheeler-Howard Act permits the organization as a tribe of any of the following groups:

(a) A band or tribe which has only a partial interest in the lands of a single reservation;

(b) A band or tribe which has rights coextensive with a single reservation;

(c) A group of Indians residing on a single reservation, who may be recognized as a "tribe" for purposes of the Wheeler-Howard Act regardless of former affiliations;

(d) A tribe whose members are scattered over two or more reservations in which they have property rights as members of such tribe.

    In many reservations a choice must be made among the foregoing possibilities. This choice, according to section 18 of the Wheeler-Howard Act, will be made by the vote of the Indians, subject to the approval of the Secretary of the Interior.

    The foregoing considerations do not throw any light on the situation prior to tribal organization under section 16. Prior to such organization the question of what tribal organization has any jurisdiction over restricted allotted lands of individual Indians is a matter of some uncertainty.

    I am of the opinion that the most significant criterion of jurisdiction, where no constitution, has been adopted, is the historical test to what band, tribe, or group of tribes did the land in question belong at the time when it was allotted? As a general rule, the owner of restricted land will have the right to devise such land to any members of that band, tribe, or group of tribes.

    Thus, if the land of a given reservation was owned at the time of its allotment by a single tribe, any member of that tribe will be a qualified devisee of any allotment of such land. If the land was owned jointly by a group of tribes, any member of any of these tribes will be a qualified devisee of any allotment. If the land of the reservation was owned by a single band of some larger tribe or nation, then only members of that band will be qualified devisees. If the land was owned jointly by a group of bands, any member of any such band will be a qualified devisee. If part of the reservation was owned by one group of Indians and part of the reservation was owned by another group of Indians, land within each part of the reservation may be devised to members of the proper group.

    The general rule above propounded may prove inadequate where tribes have been divided up or consolidated after the allotment of some or all of the tribal lands, e.g., where certain land was owned by tribe A until allotment and was then allotted to Band X of Tribe A, or vice versa, or where land was owned by Tribe A when allotment began and later came under the tribal ownership of some smaller band of Tribe A or of some larger nation or confederacy, or where a tribe that existed at the time of allotment has ceased to exist or become merged with other tribes. Questions of jurisdiction that may arise in these peculiar circumstances will be considered on their merits when they are presented.

    It should be noted that the tribal affiliation of the testator is immaterial. Restricted land formerly occupied by Tribe A may have passed by inheritance or otherwise to a member of Tribe B. In accordance with the principles land down above, such land can be devised only to members of Tribe A. This is required by the language of section 4
 


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 7, 1934

and is in conformity with the purpose of consolidating Indian Lands.

    Furthermore, the residence of the devisee is immaterial. All that need be shown is his continuing membership in the tribe which has jurisdiction over the lands in question.

    I am of the opinion that your basic question is to be answered by an unqualified negative. Restricted lands may be devised to Indians who are members of a tribe having recognized jurisdiction over the lands in question. This may be done even though such members do not reside upon (or have any other official connection with) the reservation in which such land is included.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.
Approved: November 7, 1934.
OSCAR L. CHAPMAN, Assistant Secretary.

SHOSHONE--OIL LEASE--OPERATIONS

November 12, 1934.
Memorandum for the Commissioner of Indian Affairs.

    I am returning your letter of October 27 regarding the application of the Hudson Oil Company for an order nunc pro tunc entered as of February 21, 1928, authorizing the discontinuance of the operation of the .producing wells on two oil and gas leases (Nos. 850M and 2461M) covering lands allotted to Shoshone Indians, the discontinuance or suspension of operations to continue until the Secretary of the Interior shall require that the lessee resume operations, or until the lessee shall voluntarily resume operations.

    You recommend approval of the application subject to the payment of rentals from February 1, 1928.

    Lease No. 850M was approved September 18, 1916, for a term of ten years from the date of approval and as much longer thereafter as oil or gas shall be found in paying quantities. Lease No. 2461M was approved on November 10, 1923, for a like period. Neither lease contains any provision for extension of the fixed or primary period of ten years by mere money payment and hence the payment of rentals alone cannot operate to extend that period. United States v. Brown, 15 Fed. 2d. 565. The ten-year period on lease No. 850M expired in 1926 and on lease No. 2461M the period expired in 1933. If the leases have continued in force since then it is by reason of the provision, "and as much longer thereafter as oil or gas shall be found in paying quantities." This provision is a familiar one in oil and gas leases and is uniformly construed to mean not only that oil or gas must be discovered but that one or the other must be actually produced in paying quantities, otherwise the lease expires by its own limitations. Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984; Detlor et al. v. Holland, 57 Ohio St. 492, N. E. 690; Gas Co. v. Tiffin, 59 Ohio St. 420, 54 N. E. 77; Cassel v. Crothers,193 Pa. 359, 44 Atl. 446; Anthis v. Sullivan Oil & Gas Co. (Okla.) 203 Pac. 187; Collins v. Mt. Pleasant Oil & Gas Co. (Kans.) 118 Pac. 54; United States v. Brown, supra, Union Gas & Oil Co. v. Adkins, 278 Fed. 854, 856. Lease No. 850M was producing oil at the end of the ten-year period but production ceased in 1928, whereupon the lease terminated. Lease No. 2461M produced some oil during the ten-year period but no oil was being produced and marketed therefrom at the end of the period in 1933, nor since. This lease then terminated by its own limitations.

    Section 11 of the regulations approved July 7, 1925, invoked by you as conferring authority upon the Secretary of the Interior to approve the application of the Hudson Oil Company, is without application. That section of the regulations was not in existence at the time of the execution and approval of the leases under consideration. The exercise by the Secretary of the Interior of the authority conferred by that regulation would amount to a change in the length of the term of the leases and section 8 of both leases expressly declares that no regulation prescribed by the Secretary of the Interior after the date of approval of the lease shall have that effect.

    Both leases were made and approved under authority of the act of March 3, 1909 (35 Stat. 781, 783). Under the provisions of that act the authority of the Secretary of the Interior is confined to approval or disapproval of a lease made by an allottee. He cannot initiate or make a lease. See Mott v. United States (283 U.S. 747, 751). In that case the court, speaking with respect to the powers of the Secretary under a similarly worded statute said:

    "But while the Secretary is authorized to prevent improvident alienation or leasing by restricted Creek allottees, he is not authorized to alien or lease in their stead and right. This is plainly the effect of the statutory provisions which we quote in the margin. If an allottee chooses to alien or lease, the Secretary, if not satisfied that the transaction will be of benefit



 

481

OPINIONS OF THE SOLICITOR

NOVEMBER 12, 1934

to the Indian, can prevent it by not approving it. But, if the allottee chooses not to alien or lease, the Secretary cannot do so for him, even though it appears that the Indian would be benefited."

    The existing leases having expired, the approval of the application of the Hudson Oil Company would amount to the giving of new leases to that company, not by the allottees but by the Secretary of the Interior. In my opinion this is beyond the scope of the Secretary's authority.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.

 
OSAGE--EXCHANGE OF STOCK

 
November 14, 1934.

 Memorandum to the Commissioner of Indian Affairs.

    Your letter of November 2 to the Superintendent of the Osage Indian Agency regarding an exchange of Class "A" stock in the Home Savings and Loan Association, registered in the name of Roscoe and Berbene Murphy, Osage minors, for Class "O" stock is returned.

    No objection is seen to the proposed exchange, the purpose of which is to make the semi-annual dividends available for the payment of school tuition and other incidental expenses of the minor shareholders. However, the necessity for obtaining the consent of the mother of the children is not apparent. While the stock was originally purchased at the request of the mother from her restricted surplus funds, it was purchased for and registered in the name of the minor children who are now the absolute owners thereof. The records fail to show that the mother reserved the right to control disposition of the stock and it is now held as restricted property of the minors under the jurisdiction and control of the Secretary of the Interior. As such, the power to authorize the proposed exchange appears to rest in the Secretary of the Interior rather than in the mother. It may be proper under ordinary circumstances to consult the parents of minors in matters of this kind but where, as here, the party to be consulted is shown to have been divorced from the father of the children, is addicted to the use of intoxicants, has remarried and has practically deserted the children, such action would appear to be both unnecessary and inappropriate.

    It  is suggested that the letter be revised to eliminate the statement requiring that the consent of the mother be obtained.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 
RED LAKE--TRADER'S LICENSE

 
November 20, 1934.

 Memorandum to the Commissioner of Indian Affairs:

    Your letter of November 5, advising the Superintendent of the Red Lake Indian Agency that a trader's license may be issued to Mrs. Mary Jane Jones, a one-half blood Red Lake Indian, without giving a bond as required by section 4 of the act of July 26, 1866 (14 Stat. 280) is returned.

    Section 4 of the act of July 26, 1866, reads:

    "Any loyal person, a citizen of the United States, of good moral character, shall be permitted to trade with any Indian tribe upon giving bond to the United States in the penal sum of not less than five nor more than ten thousand dollars, with at least two good sureties, to be approved by the superintendent of the district within which such person proposes to trade, or by the United States district judge or district attorney for the district in which the obligor resides, renewable each year, conditioned that such person will faithfully observe all laws and regulations made for the government of trade and intercourse with the Indian tribes, and in no respect violate the same."
    Subsequent legislation dealing with traders on Indian reservations, as found in the acts of August 15, 1876 (19 Stat. 200); July 31, 1882 (22 Stat. 179); March 3, 1901 (31 Stat. 1066); March 3, 1903 (32 Stat. 1009) contains no express repeal of the prior law requiring traders to give bond and no such conflict or inconsistency appears as would call for a repeal by implication. The provision in the act of 1866 requiring that a bond be given applies to "any person, a citizen of the United States of good moral character." Citizen Indians, if loyal, and of good moral character, plainly comes within this language and cannot be excluded without adding to the statute, which administrative officers are without authority to do.

    While Mrs. Jones cannot, in my opinion, be relieved from giving bond, it is permissible under the statute to reduce the amount of the bond to
 


 

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DEPARTMENT OF THE INTERIOR

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$5,000. Personal sureties may of course, be accepted on such a bond.
 

Solicitor.

 
SIOUX--WHEELER-HOWARD ACT--
LAND OUTSIDE RESERVATION

 
November 20, 1934.

 Memorandum for the Commissioner of Indian Affairs.

    Your letter of November 9, recommending approval of a deed executed September 20, 1928, by George S. Redwing a Sioux Indian, conveying to Andrew Henderson seven acres of land for a consideration of $900 is returned.

    In recommending approval of the deed you state:

"This land being outside the geographic boundaries of any existing Indian reservation comes within Section 8 of the Wheeler-Howard Act of June 18, 1934 (Public 383, 73d Congress, 2d Session), and therefore is not subject to the other provisions of said act preventing sales of restricted Indian lands."
    Section 8 of the Wheeler-Howard Act relates to Indian allotments or homesteads on the public domain outside of the geographic boundaries of any Indian reservation. The land here involved, however, is not a public domain homestead or allotment. It was originally privately owned land and was purchased by the Indian, Redwing, with trust funds and was conveyed to him by deed containing restrictions against alienation. It is therefore restricted Indian land and as such it is subject to section 4 of the Wheeler-Howard Act, which reads:
"Except as herein provided, no sale, devise, gift exchange or other transfer of restricted Indian lands or of shares in the assets of any Indian tribe or corporation organized hereunder, shall be made or approved: Provided, however, That such lands or interests may, with the approval of the Secretary of the Interior, be sold, devised, or otherwise transferred to the Indian tribe in which the lands or shares are located or from which the shares were derived or to a successor corporation; and in all instances such lands or interests shall descend or be devised, in accordance with the then existing laws of the State, or Federal laws where applicable, in which said lands are located or in which the subject matter of the corporation is located, to any member of such tribes or of such corporation or any heirs of such member: Provided, further, that the Secretary of the Interior may authorize voluntary exchanges of lands of equal value and the voluntary exchange of shares of equal value whenever such exchange, in his judgment, is expedient and beneficial for or compatible with the proper consolidation of Indian lands for the benefit of cooperative organizations."
    The general language of the foregoing provision not only prohibits alienation by the Indian owner of his restricted lands, but prevents the Secretary of the Interior from approving any such alienation. The inhibition against alienation or approval of an alienation operates on all "restricted Indian lands" other than those excluded by sections 8 and 13. Geographic location of the land is immaterial so that the inhibition applies whether the lands are located inside or outside of an existing Indian reservation.

    Some difficulty arises out of the language used in the first proviso permitting conveyances of such restricted lands to "the Indian tribe in which the lands are located," such language indicating a possible intent on the part of Congress to confine the operation of section 4 to those restricted lands over which the Indian tribe has some jurisdiction. Such an interpretation, however, would exclude from the general inhibition against alienation practically all restricted Indian lands located outside of an existing Indian reservation, and a purpose to do that doubtless would have been plainly expressed. In the absence of such an express exclusion, the better view is, I think, that the provision to section 4 was not intended as a qualification or limitation of the term "restricted Indian lands" appearing in the general language prohibiting alienation. The purpose of the proviso was rather to relax the general inhibition against alienation to the extent of sanctioning conveyances to any Indian tribe of that class of restricted lands which properly may be characterized as located in or subject to the jurisdiction of that particular tribe. Under this view, restricted lands, inside or outside an existing reservation, cannot be conveyed, nor can a conveyance thereof be approved, unless the transaction comes within the provisos to section 4 or is authorized by some other provision of the
Wheeler-Howard Act.

    The Secretary of the Interior is therefore without authority to approve the deed of September 20, 1928. However, nothing contained in the Wheeler-Howard Act prevents a removal of restrictions by the Secretary of the Interior under the authority
 


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 28, 1934

conferred on him by the condition contained in the deed conveying the land to the Indian. If, in your opinion, the circumstances so warrant it is suggested that consideration be given to the removal of restrictions from the land, such removal of restrictions to become effective upon the execution by the Indian of a deed running to the grantee named in the deed of September 20, 1928. Such a deed, executed after the issuance of the order removing restrictions would doubtless solve the difficulties confronting the parties.

Solicitor.

WHEELER-HOWARD ACT--ELECTIONS


November 22, 1934.


 Memorandum to the Commissioner of Indian Affairs:

    I am returning without my approval the attached draft of an order authorizing the Commissioner of Indian Affairs to give 30 days' notice of the elections required by section 18 of the Wheeler Howard Act.

    While the matter is not free from doubt, a substantial argument can be made to the effect that it is the Secretary who must give notice of the time of election, and that this duty cannot be delegated. It seems to me that there are no such compelling reasons of policy as to justify our jeopardizing the election with all the consequent disturbance of property rights. Consequently, in order to avoid raising any doubts, I recommend that the time of the election be fixed as heretofore by call of the Secretary.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
DISBURSEMENT OF OSAGE FUNDS

M-27833                                                                                                                             November 28, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Charles Mashunkashey, deceased Osage Allottee No. 464, was involved in extensive litigation during his lifetime, some portions of which are still pending. In part or all of that litigation he was, and his estate is, represented by Phil W. Davis, Jr., an attorney at Tulsa, Oklahoma. During the course of his activities, and during the lifetime of Charles Mashunkashey, Mr. Davis incurred certain expenses in connection with the litigation. You have asked whether, in my opinion, the disbursing officer at the Osage Agency may reimburse Mr. Davis for those expenses by a direct payment to him of funds held at the agency and constituting a part of the estate of Charles Mashunkashey. It appears that the other possible method of reimbursement, payment by the legal representative of the deceased allottee or by his heirs, is burdened with legal difficulties and delay under the applicable laws of Oklahoma.

    It is my opinion that the desired payment can be made only in one limited factual situation concerning the existence of which I have insufficient information.

    By the act of April 18, 1912 (37 Stat. 86), the property of deceased Osage allottees is made subject to the jurisdiction of the county courts of the State of Oklahoma, which are empowered to control and supervise the executors and administrators of the estates of the deceased allottees. If a payment of the funds due Mr. Davis is to be made direct, and without the approval of the county court obtained in connection with proper proceedings before that court, some congressional sanction for such action in, or superior to, the act of April 16, 1912, supra, must be found. That sanction does not exist, unless it be found in a subsequent act of March 2, 1929 (45 Stat. 1478), which, among other things not pertinent here, amended section 2 of the act of February 27, 1925 (43 Stat. 1011), to read as follows:

    "Upon the death of an Osage Indian of one half or more Indian blood who does not have a certificate of competency, his or her moneys and funds and other property accrued and accruing to his or her credit and which have heretofore been subject to supervision as provided by law may be paid to the administrator or executor of the estate of such deceased Indian or direct to his heirs or devisees, or may be retained by the Secretary of the Interior in the discretion of the Secretary of the Interior, under regulations to be promulgated by him: Provided, That the Secretary of the Interior shall pay to the administrators and executors of the estates of such deceased Osage Indians a sufficient amount of money out of such estates to pay all lawful indebtedness and costs and expenses of administration when approved by him; and, out of the shares belonging to heirs or devisees, above referred to, he shall pay the costs and expenses of such heirs
 

 

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or devisees, including attorney fees, when approved by him, in the determination of heirs or contest of wills."

    Charles Mashunkashey was an Osage of the full blood and did not have a certificate of competency. Under the terms of the statute, quoted above, it is clear that the restricted funds, belonging to the Mashunkashey estate and held at the Osage Agency, may be (1) retained by the Secretary of the Interior, (2) paid to the administrator or (3) paid directly to the heirs. There is no authority for the direct payment of debts from the funds of the estate by the Secretary or any of his subordinates. Debts to be paid from the funds of the estate must be made through the medium of the administrator or the properly determined heirs.

   There is, however, the possibility that some payment may be made directly to Mr. Davis under the last clause of the quoted portion of the act of March 2, 1929, supra: i.e.

* * * out of the shares belonging to heirs or devisees, above referred to, he shall pay the costs and expenses of such heirs or devisees, including attorney fees, when approved by him, in the determination of heirs or contest of wills.
    From the facts before me it appears that a part of the legal services rendered to Charles Mashunkashey by Mr. Davis involved the attempted establishment of Mashunkashey as an heir of one John Cannon. If further facts should show that John Cannon was an incompetent Osage Indian of one half or more Indian blood, and that, through the professional services of Mr. Davis, Mashunkashey has been established as an heir of John Cannon, then any of the expenses incurred by Mr. Davis in rendering those particular services might be paid directly by the Secretary of the Interior out of any funds of the estate of John Cannon to which Mashunkashey's right had been established and which are held by the Secretary or his subordinates. Such a holding, of course, substitutes John Cannon in place of Charles Mashunkashey as the deceased Osage whose estate is being considered under the statute, and considers Mashunkashey only as an heir to the estate of John Cannon.

    The fact that Mashunkashey himself is now dead does not, in my opinion, force another conclusion. We are not dealing with the payment of funds from Mashunkashey's account, but with the payment of funds from the account of John Cannon. Those funds can be disbursed by the Secretary of the Interior or his subordinates only under the authority of the act of March 2, 1929. The claim of Mashunkashey, or his estate, to those funds can only be made operative when combined with the Secretary's statutory authority to disburse. Yet the very statute which authorizes the disbursement in satisfaction of the claim contains a proviso to the effect that those funds shall be paid, in proper amount, to defray the expenses of establishing the very claim in connection with which disbursement is authorized. It is immaterial that the claim is held by the estate of a deceased Osage Indian whose account is also subject to disbursement only under the provisions of the statute. The statute deals only with disbursement of funds actually in an account and not with the treatment of claims which, if paid, would add funds to an account such as that of the estate of Charles Mashunkashey.

    It is, consequently, my opinion that a direct payment from funds contained in the account of John Cannon, to Mr. Davis, unsupervised by the courts of Oklahoma, can be made if the facts are found to bring the case within the statutory clause which I have just discussed, and that a direct and unsupervised payment can be made in no other circumstances.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
Approved: November 28, 1934.
T. A. WALTERS, First Assistant Secretary.

WHEELER-HOWARD ACT-INTERPRETATION

M-27810                                                                                                                                December 13, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on 12 questions of construction dealing with various sections of the act of June 18, 1934 (Public No. 383-73d Congress), commonly known as the Wheeler-Howard Act.

    These questions are answered in the order of their statement.

    The first three questions proposed have already been answered in an opinion approved on October 23, 1934. Upon reconsideration, the original opinion, with respect to the second question proposed, is found inadequate, although the conclusion reached therein appears to be correct. The original opinion has been corrected in this respect and, as so corrected, is reissued as part of this opinion.
 


 

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Question 1.

    I am of the opinion that the interpretation placed upon section 18 by the Indian Service is correct, i.e., that a rejection of the act on any reservation becomes effective only if a majority of all eligible Indians on that reservation cast their ballots against the application of the act. This interpretation is necessary in view of the language and punctuation of the clause, "Wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." The phrase "voting at a special election, etc." set off from the rest of the sentence by commas, cannot fairly be construed as a qualification of the term "adult Indians."

Question 2.

    It follows that the act continues to apply to a reservation on which less than a majority of the total number of eligible voters cast their ballots, even if the opponents of the act should have a clear majority of the votes actually cast. However, if the Secretary of the Interior should find that the number of ballots cast at such an election was too small to represent fairly the views of those entitled to vote, it would, in my judgment, be within the proper scope of his authority to call a second election and to declare the act inapplicable if at this election an actual majority of the total number of eligible voters should vote against the application of the act.

    Section 18 of the act provides simply that the act shall not apply to a reservation wherein a majority of the adult Indians shall vote against the application of the act. If, therefore, the Secretary should call an election within the time and in the manner prescribed by section 18, and such election should result in an adverse vote by a majority of the qualified voters, the act would, by its express terms, cease to apply to that reservation.

    Does any provision of the act declare that such a majority vote would be invalid and inoperative if an earlier election had been held resulting in a different vote? I think not. Section 18 does not call for a regular election for the purpose of adopting or rejecting the act. It simply provides that a majority of the Indians of any reservation may, within one year, reject the act. It nowhere provides that they shall have only one chance to reject the act. The act nowhere affirmatively provides that it shall irrevocably apply to a reservation when once an election has been held in which less than a majority of the qualified voters voted against the application of the act. According to the terms of the act, only a majority vote for rejection is legally operative. Any other vote has no effect whatsoever upon the application of the act.

    I do not think any implication can be fairly drawn from the terms of the act or from the circumstances attending its passage which would have the effect of invalidating an actual adverse vote of a majority of qualified Indians. The whole purpose of section 18 is to assure every group of Indians the fullest possible opportunity to continue the status quo ante if it disapproves of the purposes of the act. If one looks to the context of the phrase in question, it is reasonable to conclude that, since the Secretary is vested with certain discretionary powers in determining the manner and time of holding referendum elections and the persons entitled to vote therein, it must also lie within his discretion to determine whether the Indians of a given reservation have had a fair opportunity to register a vote which would be legally conclusive. Certainly, the Secretary would have the right to declare an election invalid of it appeared that there had been irregularities in balloting. Equally reasonable would be a determination that failure to register an absolute majority vote against the application of the act was the result of special circumstances which prevented a number of Indians from attending the polls, or that such failure was the result of improper influences or of a misinterpretation by the Indians concerned of the phrases which make any failure to vote equivalent to an affirmative vote in favor of the act.

    If for any of the suggested reasons, or for any other reasons, it should appear that the Indians of a given reservation ought to be given a new opportunity to exclude themselves by majority vote from the provisions of the act, the Secretary of the Interior would, in my opinion, be justified in calling a new election in the manner and within the period prescribed by section 18. If in such an election a majority of the Indians entitled to vote should vote against the act, I am of the opinion that the act would cease to apply to such reservation.

Question 3.

    The question of who is entitled to vote at the referendum elections called for by section 18 of the act turns upon the interpretation placed upon the sentence: "This act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." The reference is to Indians in the reservation. The question arises: Does the word "in" refer to simple physical presence within certain physical boundaries or does it involve a reference to the personal or political status of the Indians concerned? To maintain the former view, i.e., that the word "wherein" refers to mere location in space, would at once exclude from the privilege of voting all
 


 

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DEPARTMENT OF THE INTERIOR

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those Indians not actually present on the reservation at the time of the referendum, and on the other hand would grant the suffrage to all Indians who might be on the reservation at the time of the referendum, even to Indians coming upon the reservation expressly and specifically for the purpose of voting. To maintain such an interpretation would clearly lead to undesirable consequences, but it is not entirely clear what other interpretation ought to be given to the phrase in question.

    In my opinion a proper interpretation of this phrase requires an analysis of the general scheme of reform contemplated by the Wheeler-Howard Act and of the place of section 18 in that scheme. The Wheeler-Howard Act modifies the status of Indian restricted property on those reservations where the act may apply. Likewise it purports to change the personal status of Indians on the reservation and looks to the termination of a system of bureaucratic superintendence over personal affairs and to the creation of a system of local self-government. In these essential respects, as the hearings before the Committee on Indian Affairs in the House of Representatives (73d Congress-2d Session) on H. R. 7902, indicate, the Wheeler-Howard Act marks a distinct break with past traditions of the Indian Service. Many Indians have been fearful in the face of this change. In order to allay their fears section 18 was introduced, making the application of the act optional with each Indian reservation.

    As was said by the Chairman of the House Committee on Indian Affairs (Congressional Record, June 15, 1934, page 12056):

    "A few Indian tribes asked to be exempted from the provisions of the bill. The committee have thought it unwise to force even home rule and appropriations on tribes unwilling to accept them, and for that reason section 19 provides for a proper referendum among the various tribes within six months after the passage and approval of the act. The act shall not apply to any reservation wherein a majority of the adult Indians vote against its application."
    In the light of the foregoing considerations, the construction of section 18, in order to carry out the intent of Congress, should be such as to grant the right to vote in this referendum to those Indians and only those Indians who may be seriously affected by the application of the Wheeler-Howard Act to a given reservation. This means that physical presence is not a proper criterion of voting rights, and that those who are entitled to vote are those who in some sense "belong" on the reservation, i.e., those who have some rights in the property or tribal affairs of the reservation. Only such individuals are directly interested in the application of the act to the reservation. In my judgment the statutory reference to Indians "in" the reservation is properly to be construed as comprising in its scope those Indians who reside on the reservation and at the same time have some legal interest in the affairs of the reservation.

    In each case, then, two qualifications must be met: First, the qualification of residence; second, that of legal interest.

    Residence is commonly interpreted to mean not simply physical presence but the maintenance of a home. Thus, students, Indians working away from the reservation, and others who are temporarily absent, but who intend at a future time to return to a home on the reservation, will be entitled to vote by absentee ballot. Mere enrollment, however, does not establish residence.

    On the other hand, Indians temporarily within the boundaries of the reservation, who have maintained a residence elsewhere, cannot be considered residents of the reservation and will not be entitled to vote in the referendum for that reservation.

    The second qualification of voting which we have noted is that of legal interest in the affairs of the reservation. Such interest may be shown in various ways. Clearly those who own restricted property within the reservation have such an interest in the affairs of the reservation as to entitle them to vote on the question of whether basic changes should be made in the present system of property holding. There are other legal interests as important as interests of property. Those Indians who are entitled to participation in tribal elections or other tribal affairs on a given reservation, clearly have a legal interest within the protection of section 18. Finally, those Indians who receive definite benefits of any sort, e. g. rations, from the representatives of the Interior Department stationed on a given reservation, have a legitimate interest in the continuance or modification of the established system. See Waldron v. United States (143 Fed. 413).

    It is obvious that the foregoing general principles will not dispose of many special cases involving change of residence, intermarriage, adoption, abandonment of tribal relations, etc. Authority to pass upon such cases, within the general principles outlined above, is properly vested in the Commissioner of Indian Affairs by virtue of United States Code, Title 25, Section 2, and other related statutory provisions. The statutory authority and discretion of the Commissioner and the Secretary of the Interior in such matters is affirmed in United States v. Boyd (83 Fed. 547); United States v.
 


 

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OPINIONS OF THE SOLICITOR

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Holloday (3 Wall. 407). It would be proper, however, to refer all questions relating to the acquisition or abandonment of tribal membership to the recognized authorities of the tribe concerned. See 26 L. D. 71; Waldron v. United States, supra.

Question 4.

    I am of the opinion that the Indian Service is not entirely correct "in assuming that section 16 limits the voters entitled to cast their ballots on the ratification of a constitution to the resident members of the tribe or tribes occupying a reservation and that it also excludes from voting resident Indians enrolled on other reservations and resident Indians without tribal affiliation even though of one-half degree of Indian blood."

    Section 16 of the Wheeler-Howard Act provides:

    "Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe. * * *"
    The meaning of this provision is clarified by section 19, which provides:
    "* * * The term 'tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. * * *"
    It is clear that the act contemplates two distinct and alternative types of tribal organization. In the first place, it authorizes the members of a tribe (or of a group of tribes located upon the same reservation) to organize as a tribe without regard to any requirements of residence. In the second place, this section authorizes the residents of a single reservation (who may be considered a tribe for purposes of this act, under section 19) to organize without regard to past tribal affiliations.

    In the former situation, tribal affiliation is essential, and residence is immaterial in the determination of voting rights.

    In the latter situation, residence is a necessary condition of the right to vote, and tribal affiliation is not necessary. Tribal affiliation may still be one indication of the right to reside on a given reservation; but other proofs of such right are possible, e. g., the holding of restricted property upon the reservation, or the regular receipt of agency services. I am of the opinion that when the residents of a reservation are organized under section 16, the qualifications for voting upon the constitution of such organization will be identical with the qualifications for voting upon the referendum under section 18.

    It may be noted that whether the organization is effected by a recognized tribe or by the residents of the reservation, first recognized as a tribe under the Wheeler-Howard Act, the constitution so adopted may prescribe such qualifications of membership or suffrage and such procedures for adoption or abandonment of tribal relations, as seem proper to the Indians concerned and the Secretary of the Interior.

    The notice of election issued by the Secretary of the Interior for the adoption of a constitution should specify whether the constitution is to be adopted by a single tribe or by the Indians residing on a single reservation, as the case may be.

Question 5.

    With respect to the question of what Indians are to be considered members of a given tribe for purposes of section 16, I am of the opinion that the Indian Service is incorrect in assuming "that tribal membership can be determined only by one of the official rolls, but that the listing of an Indian on the annual unofficial Census Roll is not prima facie evidence of the right to vote."

    Section 16 of the Wheeler-Howard Act authorizes the Secretary of the Interior to prescribe rules for the conduct of special elections for the adoption of Indian constitutions. I am of the opinion that this section confers a broad authority upon the Secretary of the Interior to pass upon the qualifications of voters and that this authority is not limited by past enrollments. The Wheeler-Howard Act does not make enrollment a test of tribal membership. Any weight to be given to an enrollment statute must depend upon the terms of the statute itself. Unless such statute specifically defines tribal membership for purposes of tribal organization, as well as for purposes of participation in tribal property, it is not binding upon the Secretary of the Interior in the determination of eligible voters under section 16.

    In the absence of any statutory provision to the contrary, the descendants of enrolled members of a tribe who are not themselves enrolled but who are recognized as members of the tribe, in accordance with tribal custom and usage, have the right to vote on the adoption of a tribal constitution. Similarly, recognized members of the tribe who were, through accident or mistake, omitted from the tribal rolls have the same right to vote(a right which does not carry with it any claims to tribal property) as other members. And conversely, per-
 


 

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sons who have been enrolled as tribal members will have no right to vote upon the adoption of a tribal constitution if they have definitely abandoned their tribal membership. This, of course, will not jeopardize the individual property rights of such Indians. These rights are guaranteed by statute (see, for instance; U.S. Code, Title 43, Section 189; Title 25, Section 184), and are not dependent upon an actual continuance of tribal membership.

    I am of the opinion that it is within the proper authority of the Secretary of the Interior, under the provisions of section 16, to provide that any tribal roll, statutory or administrative, shall constitute prima facie evidence of the right to vote in an election called for under this section, and that it is within his authority either to pass upon, directly, or to refer to tribal councils, Indian courts, or administrative officers of the Interior Department, any claim to membership of persons not so listed, as well as any challenges to the tribal membership of persons who are so listed. The judicial decisions and departmental rulings upholding the power of an Indian tribe to determine the methods of acquiring or abandoning tribal membership, in accordance with custom and usage, or written tribal ordinance or resolution, have been collected and reviewed in the recent opinion of this Department on "The Powers of an Indian Tribe," approved October 25, 1934 (M. 27781).

Question 6.

    Concerning the adoption of a tribal corporate charter under section 17, the Indian Service has in my judgment been correct "in assuming that, inasmuch as the charter is issued to the tribe, only resident adult members of the tribe, whether their membership be obtained by descent or by adoption, are entitled to vote on the ratification of the charter."

    Section 17 provides:

    "The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: Provided, That such charter shall not become operative until ratified at a special election by a majority vote of the adult Indians living on the reservation. * * *"
    Section 17 must be construed in the light of the preceding section. Its effect is to permit the same groups which may organize and adopt constitutions under section 16, to become corporate bodies. In analyzing section 16 it has been seen that two types of organization are possible: (1) Organization of a traditionally recognized tribe: and (2) organization of the residents of a reservation as such. The same alternative is involved in the language of section 17. Under section 17, where the Indians resident on a given reservation, as above defined, organize and adopt a constitution, the same Indians may accept a corporate charter. In this connection the phrase "petition by at least one-third of the adult Indians" clearly refers to a petition by one third of the adult Indians entitled to vote on the referendum or constitution. The later requirement "that such charter shall not become operative until ratified at a special election by a majority vote of the adult Indians living on the reservation," can only mean that a majority of the same group must ratify the charter.

    Where, however, a traditionally recognized tribe desires to organize and to become incorporated, its membership being distinct from the body of residents upon any given reservation, some difficulty is found in the proper interpretation of the phrases "one-third of the adult Indians," and "a majority vote of the adult Indians living on the reservation."

    The phrase "one-third of the adult Indians" must refer to the membership of the tribe seeking incorporation. Does the phrase "a majority vote of the adult Indians living on the reservation," likewise refer to the members of such tribe, or does it include other Indians living on the reservation and exclude members of the tribe who do not live on the reservation?

    On its face, the requirement of "a majority vote of the adult Indians living on the reservation" would seem to be independent of any requirement of tribal affiliation. Upon analysis, however, it will be seen that this construction leads to an absurd result which Congress could not have intended. Where a tribe seeking incorporation includes only a fraction of the Indians residing on a given reservation, the interpretation in question would give the remainder of the Indians on that reservation the power to determine, against the will of a majority of the tribe concerned, whether or not the tribe should receive a corporate charter. True, the petition for such charter must have been signed by one-third of the adult Indians of the tribe, yet an opposition amounting to two-thirds of the tribe might be overcome by the vote of Indians living on the same reservation but not directly interested in the manner of organization of the tribe seeking a charter. Such a possibility involves so grave an infringement of the principles of majority rule that an interpretation leading to this result ought not to be adopted if any more reasonable interpretation is possible. Certainly, there is no indication in any part of the statute itself, or in any of the proceedings leading to its adoption that such a result was contemplated by Congress.

    To avoid this result it is necessary to hold that "a majority vote of the adult Indians living on the
 


 

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OPINIONS OF THE SOLICITOR

DECEMBER 13, 1934

reservation," refers only to those Indians concerned in the adoption of a charter; i.e., to those Indians who are members of the tribe which has petitioned for a charter. In my opinion such a construction is justified, in the light of the close connection between section 16 and section 17, and in the light of the fact that tribal membership is prescribed as a qualification for voting upon the acceptance of a tribal constitution, under section 16 and petitioning for a tribal charter, under section 17.

    On the other hand, the phrase "living on the reservation" cannot be dismissed as meaningless. It must be seen as an additional qualification for voting in the ratification of a tribal charter. Only those members of the tribe who have maintained a residence upon the reservation will be entitled to vote in the election for the ratification of a tribal charter.

Question 7.

    The question is raised whether or not the Indian Service is correct "in assuming that the Indians, enrolled or unaffiliated, who accept land on newly organized reservations by this acceptance also accept the act and that no special election will be required to decide on acceptance or rejection."

    I am of the opinion that this assumption is correct. Section 7 of the act provides:

    "The Secretary of the Interior is hereby authorized to proclaim new Indian reservations on lands acquired pursuant to any authority conferred by this act. * * *"
    Section 18 provides:
    "This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice."
    It would be unreasonable to construe section 18 as applicable to new reservations. Such reservations might be established after June 18, 1935, or so shortly before that date as to make a timely referendum impossible. Furthermore, since entrance upon such new reservations is voluntary, the underlying reason for the referendum fails.

    I am of the opinion, therefore, that the Wheeler-Howard Act will apply to such new reservations.

Question 8.

    The question is raised whether or not the Indian Service is correct "in assuming that a group or distinct tribe of Indians now occupying a definite geographical area within one of the present reservations may, without the consent of the majority of the adults living on the entire reservation, be permitted to form a tribal organization of its own and to become incorporated, if it so desires, for such property matters as relate only to that particular group."

    In my opinion, this assumption is correct.

    Section 16 provides that:

    "Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize * * * "
    The right to organize is not restricted to the collective group of tribes, where more than one tribe is located on a single reservation. Thus, any one of several such tribes, or bands (since a band is a "tribe" within the definition of section 19), may organize under section 16, on its own behalf, without securing the consent of other Indians residing on the same reservation.

    Having organized, such tribe or band may secure a charter of incorporation as noted in the answer to question 6. Only members of that tribe will be entitled to sign a petition for such corporate charter and to vote upon the ratification of such petition.

Question 9.

    I am of the opinion that the Indian Service is correct "in assuming that a tribe organized under section 16 may exercise the power of eminent domain in the acquisition of land as against its members, but not in the case of land owned in fee by
nonmembers."

    The power of eminent domain is one of the usual powers of sovereignty. It is, as the United States Supreme Court held in Cincinnati v. Louisville and Nash. R.R. Co. (223 U.S. 390, 404) , "one of the powers vital to the public welfare of every
self-governing community."

    No Federal statutes terminating the exercise of this power by an Indian tribe are known. Therefore, under the doctrines advanced in the recent opinion of this Department on "Powers of Indian Tribes" (M-27781, approved October 25, 1934), the power of eminent domain is one of those powers which are vested in an Indian tribe within the meaning of Section 16 of the Wheeler-Howard act.

    Since this power was not created by or under the Constitution of the United States but in fact antedated the formation of the Union and subsists as a valid power aside from any special Federal authorization, it is not controlled by the Fifth Amendment. Such was the holding of the Supreme Court in Talton v. Mayes (163 U.S. 376), with respect to the power of an Indian tribe to imprison a member.
 


 

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As the Fifth Amendment does not guarantee to the tribal Indian any rights of personal liberty as against his own tribal Government (there is no question but that it protects him against acts of Congress or other Federal agencies), no more can it
protect his property rights.

    This does not mean that the tribal Indian is without safeguards against oppressive acts of tribal authorities. Such safeguards, however, must be derived from legislation or treaty provisions or from the constitution of the Indian tribe itself and not from the bill of rights of the Federal Constitution.

    If the Indians of a given tribe wish to abolish or narrowly restrict the exercise of condemnation powers by their tribal Government they may do so. If they choose to grant the tribal Government broad and liberal powers in this respect, they may do so. So far as members of the tribe are concerned, the tribal constitution, on this subject, will be supreme, -unless some act of Congress has had the effect of limiting tribal condemnation powers.

    With respect to unallotted tribal lands, certainly, no such legislative limitation can be found. Possessory interests in such lands are transferred among individual Indians, in accordance with tribal customs or departmental rules, and no reason can be found to prevent an Indian tribe from resuming possession when the public welfare so requires.

    With respect to allotted land owned by a member of the tribe and subject to restrictions upon alienation, the only question is: Do such restrictions prevent involuntary transfer of the land to the Indian tribe? It is clear that the mere fact of allotment does not lessen the jurisdiction of the tribe over the person and property of its members. (United States v. Nice, 241 U.S. 591; Perrin v. United States, 232 U.S. 478.)

    What is the effect of the specific restriction against alienation?

    Section 348, Title 25, United States Code, provides: "and if any conveyance shall be made of the lands set apart and allotted as herein provided * * * before the expiration of the time above mentioned, such conveyance * * * shall be absolutely null and
void."

    This section if still in force would undoubtedly prevent the condemnation of restricted land by an Indian tribe, since transfer by condemnation is clearly one type of "conveyance," Section 348, however, is superseded by section 4 of the Wheeler-Howard Act, which provides, inter alia,

    "* * * such lands or interests may, with the approval of the Secretary of the Interior, be sold, devised, or otherwise transferred to the Indian tribe. * * *"
    Here, certainly, is no prohibition against transfer of title to the tribe through eminent domain proceedings. It is clear that the phrase "otherwise transferred," includes involuntary as well as voluntary transfer and covers condemnation. (See 25 Stat. L. 357; Hanson Co. v. United States, 261 U.S. 581, 587; United States v. Graham and Irvine, 250 Fed. 499.)

    The effect of this provision, taken together with the remainder of section 4, is simply to qualify the tribal right of eminent domain with respect to restricted property by requiring the approval of the Secretary for the exercise of this power.

    The fact that title to allotments may be held by the United States in trust for the individual Indian raises no obstacle to condemnation proceedings. Such lands may be condemned under State Laws "in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee." (U.S. Code, Tit. 25, Sec. 357; see United States v. Ft. Smith and W. R. Co., 195 U.S. 211, 214; and Okla. K. and M. I. Ry. Co. v. Bowling, 249 Fed. 392.) If the location of legal title in the United States is no obstacle to condemnation under State laws it is certainly no obstacle to condemnation under tribal laws.

    It is proper to add that since the tribal power of condemnation is based, in the first instance, upon tribal jurisdiction over the members of the tribe, it ceases to exist where an Indian abandons his tribal membership; and as was said in the opinion of this Department on "Powers of Indian Tribes," (M-27781, approved October 25, 1934, at page 36), "any member of any Indian tribe is at full liberty to terminate his tribal relationship whenever he so chooses." (Citing United States ex rel. Standing Bear v. Crook, 5 Dill. 453; 25 Fed. Cases No. 14891.)

    Threatened oppression in the form of condemnation, taxation, or other incidents of social control may be avoided by the termination of the landowner's tribal status. But if he remains to share in the benefits of tribal life he must bear its burdens.

    The restricted land of the Indian who has severed his tribal affiliation is not subject to tribal condemnation proceedings under tribal law.

    Indians who have received fee patents have thereby become "subject to the laws * * * of the State or Territory in which they may reside." (U.S. Code, Tit. 25, Sec. 349.)

    Accordingly, patented land may be condemned, as it may be taxed, on exactly the same basis as the lands of non-Indians. An Indian tribe will have whatever rights of condemnation the laws of the State may give to it. In many States land may be condemned for specified purposes, by "persons," by "corporations," by "settlements," by "municipal
 


 

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corporations" and by other types of organization. An Indian tribe may qualify under various of these categories, particularly if it is chartered as a Federal municipal corporation under section 1'7 of the Wheeler-Howard Act. It may be noted that section 17 specifically confirms the power "to purchase, take by gift or bequest, or otherwise * * * property of every description." Even without such a charter an Indian tribe may be recognized as a corporate entity. (See Lane v. Pueblo of Santa Rosa, 249 U.S.
110; and see 14 Corpus Juris 97 and cases cited.)

    Land held in fee, therefore, whether owned by Indians or by non-Indians, may be condemned by an Indian tribe only in accordance with State law, through proceedings brought in State courts. Since the laws of the different States vary considerably with respect to the entities which can invoke condemnation proceedings and the purposes for which these proceedings may be used, no opinion is here expressed on the scope of tribal condemnation powers under State laws.

Question 10.

    The question is raised: "Can land on the local tax rolls be relieved of the burden of local taxation when it is acquired by an organized tribe or tribal corporation, title being taken by the tribe or tribal corporation?"

    The Indian tribes have long been recognized as vested with governmental powers, subject to limitations imposed by Federal statutes. The powers of an Indian tribe cannot be restricted or controlled by the governments of the several States. The tribe is, therefore, so far as its original absolute sovereignty has been limited, an instrumentality and agency of the Federal Government. (See the recent opinion of this Department, "Powers of Indian Tribes," approved October 25, 1934-M. 27781.)

    Various statutes authorize the delegation of new powers of government to the Indian tribes. (See opinion cited above.) The most recent of such statutes is the Wheeler-Howard Act, which sets up as one of its primary objectives, the purpose "to grant certain rights of home rule to Indians." This Act Contemplates the devolution to the duly organized Indian tribes of many powers over property and personal conduct which are now exercised by officials of the Interior Department. The granting of a Federal corporate charter to an Indian tribe confirms the character of such a tribe as a Federal instrumentality and agency. An Indian tribe, whether incorporated or unincorporated, is entitled to the same degree of exemption from State taxation as may be claimed by any other Federal instrumentality.

    It is, however, distinctly laid down in the case of M'Culloch v. Maryland (4 Wheat. 316), and the rule has been followed consistently in subsequent cases, that the property of a Federal instrumentality may be taxed if the tax does not hinder the operations of the instrumentality. (See Railroad Company v. Peniston, 18 Wall. 5, 36-37; Gromer v. Standard Dredging Company, 224 U.S. 362, 371; Goudy v. Meath, 203 U.S. 146).

    The question of how far State taxation may hinder a Federal instrumentality in the exercise of its peculiar functions is not to be decided by any simple rule of thumb. In general, the expressed intent of Congress will be controlling, but in the absence of such expressed intent it will depend upon the circumstances of the particular case whether the tax in question can be regarded as an interference with activities authorized by the Federal Government.

    In general, it may be assumed that lands which the Federal Government permits Indian tribes to acquire and own are deemed by the Federal Government to be essential to the economic well-being of the Indians concerned. If the wards of the Federal Government are unable to maintain a decent standard of living for themselves, the burdens of the Federal Government in the way of hospitalization, distribution of rations, etc., are considerably increased. It is known that, with but few exceptions, the Indian tribes are in such dire straits economically that any State taxation of their property must aggravate their economic distress and increase the burdens of the Federal Government.

    It is easy to conceive of a situation in which a self-supporting and prosperous tribal corporation might be properly subjected to State and property taxes. (See McCurdy v. United States, 246 U.S. 263.) But where it appears that a general property tax imposed on the lands of a tribal corporation would directly increase the burdens of the Federal Government, a State law imposing such a tax would appear to be unconstitutional.

    With respect to reservation lands purchased by an incorporated tribe the case against taxation is especially clear.

    The Wheeler-Howard Act specifically provides, in section 17, that:

    "Such charter may convey to the incorporated tribe the power to purchase * * * and dispose of property of every description * * * but no authority shall be granted to sell, mortgage, or lease for a period exceeding ten years any of the land included in the limits of the reservation."
    "Land included in the limits of the reservation" cannot be sold or mortgaged by the incorporated tribe-not even if the Secretary of the Interior should consent to such alienation. The prohibition
 


 

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is absolute. In the light of this prohibition it can not reasonably be held that Congress intended to permit the loss of such reservation lands through tax sales. And if tax sales are prohibited, taxes must likewise be prohibited. (The New York Indians, 5 Wall. 761, 768, 769.)

    The case is not radically different from that of The Kansas Indians (5 Wall. 737), in which it appeared that lands of the Miami Indians had been exempted from "levy, sale, execution, and forfeiture." The Supreme Court held that this guarantee, by itself, rendered State taxation of the Miami lands unconstitutional, declaring:

    "There is, however, one provision in the Miami treaty-being in addition to the securities furnished the Shawnees and Weas-which, of itself, preserves the Miami lands from taxation. This particular provision exempts the lands from 'levy, sale, execution, and forfeiture.' It is argued, that these words refer to a levy and sale under judicial proceedings, but such a construction would be an exceedingly narrow one, whereas enlarged rules of construction are adopted in reference to Indian treaties. In speaking of these rules, Chief Justice Marshall says: 'The language used in treaties with the Indians shall never be construed to their prejudice, if words be made use of which are susceptible of a more extended meaning than their plain import as connected with the tenor of their treaty.' (6 Peters, 582.)

    Applying this principle to the case in hand, is it not evident that the words 'levy, sale and forfeiture' are susceptible of a meaning, which would extend them to the ordinary proceedings for the collection of taxes? Taxes must be first levied, and they cannot be realized without the power of sale and forfeiture, in case of non-payment. The position, it seems to us, is too plain for argument. The object of the treaty was to hedge the lands around with guards and restrictions, so as to preserve them for the permanent homes of the Indians. In order to accomplish this object, they must be relieved from every species of levy, sale, and forfeiture-from a levy and sale for taxes, as well as the ordinary judicial levy and sale."

    So it may be said, in the case under consideration, that it would be an exceedingly narrow construction of a provision which should receive liberal interpretation to hold that lands within an Indian reservation may not be sold by an incorporated tribe but may be sold on behalf of the tribe at a tax sale.

    In the converse situation, where the power to sell Indian lands was granted by statute to certain Indians, the Supreme Court held that voluntary and involuntary alienation were so closely linked as to indicate the intent of Congress to permit State taxation. The court declared:

    "It requires a technical and narrow construction to hold that involuntary alienation continues to be forbidden while the power of voluntary alienation is granted * * *." (Goudy v. Meath, 203 U.S. 146, 150.)
    I conclude, therefore, that with respect to lands acquired by an incorporated Indian tribe within the limits of a reservation, a State property tax would be unconstitutional.

    Lands purchased by an incorporated Indian tribe, but lying outside of any Indian reservation, are not made inalienable by any provision of the Wheeler-Howard Act. It is difficult to see any reason why such lands should not be taxable by the State if they are freely alienable. However, it is conceivable that a corporate charter or tribal constitution might contain restrictions upon alienation authorized, although not required, by the terms of the Wheeler-Howard Act. So much variation is possible in the terms of such restrictions, and so much variation exists in the economic circumstances and political condition of the various Indian tribes, that it would be improper to venture an advance opinion on the constitutionality of a State property tax under these varying conditions and circumstances.

Question 11.

    The question is raised whether the provisions of section 5, with respect to the taking of "title to any lands or rights acquired pursuant to this act" in the name of the United States and the exemption of such lands from State taxation, are applicable to "lands and rights purchased or otherwise acquired by the tribes or tribal corporations with their own funds pursuant to any sections of the act." The final sentence of section 5 provides:

    "Title to any lands or rights acquired pursuant to this Act shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."
    The question remains: Does the phrase "lands or rights acquired pursuant to this Act" apply to all land which may be acquired by an Indian tribe, incorporated or unincorporated?

    It is clear that the primary application of this phrase is to lands acquired by the Secretary of the Interior, pursuant to the provisions of section 5,
 


 

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for an Indian tribe or for Indian individuals, through purchase, relinquishment, gift, exchange or assignment.

    Likewise, this phrase must be held applicable to restricted lands acquired by an Indian tribe pursuant to section 4. It is only by virtue of this section that an Indian tribe has any right at all to acquire restricted lands, and the acquisition of such lands is clearly "pursuant to this act."

    On the other hand, the acquisition of unrestricted lands by an Indian tribe does not depend upon any provisions of the Wheeler-Howard Act. Aside from any authority granted by this act, an Indian tribe, whether conceived as an unincorporated association or as a municipal or quasi-municipal corporation (see Lane v. Pueblo of Santa Rosa, 249 U.S. 110; United States v. Lucero, 1 N.M. 422), may acquire property, real or personal, pursuant to the laws of the State in which the property is situated. It is true that authority to acquire "property of every description" is mentioned in section 17 of the Wheeler-Howard Act as one of the powers of an incorporated Indian tribe; but such power with respect to unrestricted property is neither created nor limited by section 17, nor by any other section of the Wheeler-Howard Act.

    I am of the opinion, therefore, that the acquisition of such unrestricted property is not within the scope of the phrase "lands or rights acquired pursuant to this act." A serious question is raised with respect to the power of an Indian tribe incorporated under section 17 to acquire restricted property in its own name. On the one hand, it may be argued that since such restricted property can be acquired only by virtue of the provisions of the Wheeler-Howard Act, it falls within the phrase "lands or rights acquired pursuant to this Act." On the other hand, section 17 expressly authorizes the acquisition by the incorporated tribe of property of every description and provides that the charter may grant "the power to purchase restricted Indian lands." This language appears to contemplate that the title is to be held in the name of the corporation and not in the name of the United States. Upon due consideration I have reached the conclusion that the more specific provision of section 17 should prevail over the apparently inconsistent general provision of section 5. Accordingly, an incorporated Indian tribe may acquire either restricted or unrestricted property in its own name, while a tribe not incorporated under section 17 may acquire unrestricted property in its own name but cannot acquire restricted property except with the consent of the Secretary of the Interior and in the name of the United States.

   Unrestricted lands purchased in the name of any tribe, incorporated, and likewise restricted lands acquired directly in the name of an incorporated tribe, are not subject to the provisions of section 5. For this reason, they are not expressly exempted from taxation by the language of section 5. They may, however, be exempted from taxation, as property of a Federal instrumentality, under the circumstances noted in the answer given to Question 10.

Question 12.

The question is asked:

    "Can homestead allotments of Indians on the public domain be purchased either by the tribe or by the United States in trust for either the individual or the tribe, as the case may be, in view of the provisions of Section 8? Can a homestead allotment be exchanged for restricted Indian land?"

Section 8 provides:

    "Nothing contained in this Act shall be construed to relate to Indian holdings of allotments or homesteads upon the public domain outside of the geographic boundaries of any Indian reservation now existing or established hereafter."

It is clear that, under section 8, neither the extension of trust restrictions provided by section 2, nor the restrictions upon alienation enumerated in section 4, nor the authorization given to the Secretary of the Interior to regulate the use of Indian
lands, under section 6, nor the various provisions of the act dealing with Indian reservations and the residents thereof, can be applied to Indian "allotments or homesteads upon the public domain outside of the geographic boundaries of any Indian reservation now existing or established hereafter."

    Does section 8 likewise prohibit the acquisition of such lands by an Indian tribe or by the Secretary of the Interior? An affirmative answer to this question is possible only if such acquisition depends for its validity upon some provision of the Wheeler-Howard Act itself. If such acquisition can be effectuated under existing law, it is not forbidden by section 8.

    Under existing law, as noted in the answer given to question 11, an Indian tribe may purchase or otherwise acquire unrestricted land, in its own name, subject to the laws of the State in which the land is situated. The power to purchase such land is not derived from any provision of the Wheeler-Howard Act. In my opinion no significant distinction can be drawn between the purchase of unrestricted land and the purchase of homestead allotments upon the public domain. Of course, the land cannot be purchased if the owner is unable to convey title, but where the owner of such land, with or without the consent of the Secretary of the Interior, may convey the land to a third party, it can be no obstacle to the conveyance that the
 


 

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third party is an Indian tribe. Nor is there any reason why, after the tribe has acquired such property in its own name, it should not if it so desires yield legal title to the United States under the provisions of section 5.

    A more difficult question would be raised if the Secretary of the Interior should seek to acquire title directly from the owner of a homestead allotment. Authority for such acquisition could not be derived from section 5 of the Wheeler-Howard Act, in view of the language of section 8. I conclude that except where existing law authorizes the use of specified funds for the acquisition of lands for Indians or Indian tribes, the Secretary of the Interior has no authority to acquire such lands from their individual owners.

    Should an owner of such land desire to exchange his homestead allotment for restricted land within an Indian reservation, the transfer to him of such restricted land might be made under a trust deed, and his own transfer might be effected either by outright sale or by a sale with restrictions upon alienation. In my opinion section 8 cannot be construed to prohibit either aspect of this transaction. The transfer of the homestead allotment is made independently of any authority conferred by the Wheeler-Howard Act. The transfer of the restricted reservation land is made under section 4 of the act, without regard to the character of the title of the land received in exchange. Therefore, it would not be affected by section 8, but would be subject to the provisions of section 4 requiring that the exchange be consistent with the consolidation of Indian lands.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 Approved: December 13, 1934.
OSCAR L. CHAPMAN, Assistant Secretary.

FOND DU LAC CHIPPEWAS-ENROLLMENT

M-27381.                                                                                                                            December 13, 1934.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, my opinion has been requested as to the rights of various persons living in the State of Wisconsin and claiming to be Fond du Lac Chippewa Indians, to enrollment with the Chippewa Indians of Minnesota under the provisions of the act of January 14, 1889 (25 Stat. 642).

    The Chippewa or Ojibway Nation was comprised originally of many subordinate bands or tribes occupying the Great Lakes region, some of which came to be permanently located in Canada and others in Michigan, Wisconsin, Minnesota and, perhaps, other States. It was early manifest that the policy then pursued by the Federal Government, looking to the civilization and Christianization of these Indians, could not well be carried out so long as they were permitted to roam over the vast territory occupied and claimed by them. Measures were accordingly taken, through the negotiation of a number of treaties extending over a period of years, to provide for the cession and relinquishment by the Indians of large areas of land in consideration of the payment to them of large sums in annuities and other benefits, including the setting aside of specific reservations for the use of the various bands or tribes. Among the treaties so negotiated is that concluded at LaPointe, Wisconsin, on September 30, 1854, between the United States and the Chippewa of Lake Superior and the Mississippi. Pursuant to the provisions of this treaty, various reservations, including one set aside in the State of Minnesota as a home for the Fond du Lac band of Chippewas, were created. The creation of these reservations represented part consideration for the cession by the Indians of other lands located in the State of Minnesota. All of the possessions of the Chippewas in Wisconsin and Michigan had previously been ceded to the United States by the treaties of July 29, 1837 (7 Stat. 536) and October 4, 1842 (7 Stat. 591). These treaties gave the Indians the privilege, of which many took advantage, of remaining on the ceded lands "until required to remove by the President of the United States." The following order was issued by the President on February 6, 1850:

    "The privileges granted temporarily to the Chippewa Indians of the Mississippi by the fifth article of the Treaty made with them on the 29th of July 1837, 'of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded' by that treaty to the United States; and the right granted to the Chippewa Indians of the Mississippi and Lake Superior, by the second article of the treaty with them of October 4th 1842, of hunting on the territory which they ceded by that treaty, 'with the other usual privileges of occupancy until required to remove by the President of the United States,' are hereby revoked: and all of the said Indians remaining on the
 

 

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lands ceded as aforesaid, are required to remove to their unceded lands."

    The above order terminated the right of the Indians to remain on the ceded lands and required them to remove to their unceded lands which, it is to be observed, were located in the State of Minnesota. Article II of the treaty of 1854 contained the provision that such of the Indians "as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the President." But as the lands ceded by that treaty were located within the State of Minnesota, Article II in no way modified or superseded the Presidential mandate of 1850 terminating the right of the Indians to remain on the lands ceded by the earlier treaties and requiring them to remove to the unceded lands. Regardless of the Presidential mandate, many of the Indians chose to remain in Wisconsin and were living in that State at the time of the enactment of 1889. Many of the persons so remaining in Wisconsin claimed to be members of the Fond du Lac band in Minnesota and the present inquiry is directed to a determination of their right, and the right of their descendants living in Wisconsin, to enrollment with the Chippewa Indians of Minnesota under the provisions of the act of January 14, 1889, supra.

    The act of January 14, 1889, is entitled "An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota." When the act was passed, the Chippewa Indians in Minnesota comprised 11 bands or tribes, occupying 10 distinct reservations in that State inclusive of the Fond du Lac reservation. Collectively, they were regarded as a single tribe and commonly called the Chippewas of Minnesota as distinguished from the Chippewas located elsewhere. See Wilbur v. United States (281 U.S. 206). Section 1 of the act provides for the appointment of a commission to negotiate with "all the different bands or tribes of Chippewa Indians in the State of Minnesota" for the cession and relinquishment of all their reservations in "the State of Minnesota", except so much of the Red Lake Reservation and the White Earth Reservation as in the judgment of the commission shall be necessary "to make and fill the allotments required by this and existing acts," Section I further provides that the cession and relinquishment shall be deemed sufficient as to each of said several reservations, except the Red Lake Reservation, if made and assented to in writing by a designated portion of "the band or tribe of Indians occupying and belonging to such reservations," and sufficient as to the Red Lake Reservation if made and assented to in like manner by a like portion of "all the Chippewa Indians in Minnesota," and that for the purpose of ascertaining whether the proper number of Indians participate in the cession and relinquishment and of making the allotments and payments mentioned in the act, an accurate census of each "tribe or band" shall be made by the commission.

    Section 3 provides that as soon as the census shall be taken and the cession or relinquishment obtained and approved by the President, "all of said Chippewa Indians in the State of Minnesota, except those on the Red Lake Reservation, shall * * * be removed to and take up their residence on the White Earth Reservation," and thereupon allotments in severalty shall be made to the Indians on said Red Lake Reservation and to "all the other of said Indians" on the White Earth Reservation, "in conformity with" the act of February 8, 1887 (24 Stat. 388); that any of the Indians "residing on" any of said reservations may in his discretion take his allotment in severalty on the reservation "where he lives" at the time the removal provided for in the act is effected, instead of "being removed to" and taking up such allotment on the White Earth Reservation.

    Sections 4, 5 and 6, relate to the classification, survey and disposal of the ceded lands.

    Section 7 provides:

    "That all money accruing from the disposal of said lands in conformity with the provisions of this act shall, after deducting all the expenses of making the census, of obtaining the cession and relinquishment, of making the removal and allotments, and of completing the surveys and appraisals, in this act provided, be placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund, which shall draw interest at the rate of five per centum per annum, payable annually for the period of fifty years, after the allotments provided for in this act have been made, and which interest and permanent fund shall be expended for the benefit of said Indians in manner following: One half of said interest shall, during the said period of fifty years, except in the cases hereinafter otherwise provided, be annually paid in cash in equal shares to the heads of families and guardians of orphan minors for their use; and one-fourth of said interest shall, during the same period and with the like exception, be annually paid in cash in equal shares per capita to all other classes of said Indians; and
 

 

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the remaining one-fourth of said interest shall, during the said period of fifty years, under the direction of the Secretary of the Interior, be devoted exclusively to the establishment and maintenance of a system of free schools among said Indians, in their midst and for their benefit; and at the expiration of the said fifty years, the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares: Provided, That Congress may, in its discretion, from time to time, during the said period of fifty years, appropriate, for the purpose of promoting civilization and self-support among the said Indians, a portion of said principal sum, not exceeding five per centum thereof. The United States shall, for the benefit of said Indians, advance to them as such interest as aforesaid the sum of ninety thousand dollars annually, counting from the time when the removal and allotments provided for in this act shall have been made, until such time as said permanent fund, exclusive of the deductions hereinbefore provided for, shall equal or exceed the sum of three million dollars, less any actual interest that may in the meantime accrue from accumulations of said permanent fund; the payments of such interest to be made yearly in advance, and, in the discretion of the Secretary of the Interior, may, as to three-fourths thereof, during the first five years be expended in procuring livestock, teams, farming implements, and seed for such of the Indians to the extent of their shares as are fit and desire to engage in farming, but as to the rest, in cash; and whenever said permanent fund shall exceed the sum of three million dollars the United States shall be fully reimbursed out of such excess, for all the advances of interest made as herein contemplated and other expenses hereunder."

    It will be observed that the fund created by the foregoing section was to be placed at interest in the United States Treasury for a period of fifty years, the interest to be devoted to specified uses and purposes, and that at the end of the fifty year period, the principal fund is to be "divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares." It was early ruled administratively that the clauses providing for annual payments of one-half of the interest "in equal shares to the heads of families and guardians of orphan minors" and of one-fourth of the interest "in equal shares per capita to all other classes of said Indians" meant that three-fourths of the interest should be paid annually to the Indians in equal shares per capita. See H.R. Ex. Doc. 247, 51st Cong., 1st Sess., pp. 5-6, 24; 3 Comp. Dec. 158.

    The cession provided for in the act was obtained from the Indians and was approved by the President March 4, 1890. The census rolls were completed by the commission and transmitted to the Secretary of the Interior. The allotments provided for in the act, with the exception of the Red Lake Reservation, have been made. Other provisions of the act, notably those pertaining to the distribution of the interest accruing on the fund created by section 7, are still in process of administration.

    The primary object of the Indians involved in the present inquiry is to obtain a share in the interest annuities distributable under section 7. In considering their rights, it should be pointed out that the census rolls made by the Chippewa Commission merely determined the membership of the various bands and tribes constituting the Minnesota Chippewas at the time of the making of the rolls. The membership thereafter constantly changed through deaths and births, and as payments were subsequently made, the membership was determined by taking the census rolls as a primary guide, eliminating the names of Indians who had died and adding the names of children entitled to participate but born after the census was taken. Bearing in mind that, the present claimants are for the most part descendants of ancestors who were in being at the time of the enactment of 1889 and claiming the right to enrollment with the Fond du Lac band of Minnesota Chippewas, notwithstanding the fact that they had remained in Wisconsin and declined to remove to Minnesota, the question first to be considered is whether such ancestors were entitled to enrollment as Minnesota Chippewas under the act of 1889. The answer to this question depends upon whether the act limited enrollment to Indians then resident in the State of Minnesota to the exclusion of Indians of Chippewa blood residing elsewhere. This question has been considered on a number of occasions by the law officers of this Department and the uniform conclusion reached is that Indians residing outside of the State of Minnesota at the time of the enactment of the act of 1889 were not entitled to participate in the benefits of the Act. The question was first considered by the Assistant Attorney General for the Interior Department, and in an opinion dated February 18, 1891, it was held:

    "By section one, the commission is directed to negotiate 'with all the different bands or tribes of Chippewa Indians in the State of Minnesota', and to make an accurate census
 
 

 

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'of each tribe or band.' Section three in describing the Indians to be removed to White Earth, says, 'all of said Chippewa Indians in the State of Minnesota'. Section seven declares that the fund obtained from sales shall be placed in the Treasury of the United States, 'to the credit of all the Chippewa Indians in the State of Minnesota.'

    From these repeated expressions, I conclude that Congress legislated in this act only for the Chippewa Indians actually resident in the State of Minnesota and that none other should be enrolled."

    Objections were subsequently made that a great many Chippewas in Wisconsin were erroneously on the census roll prepared by the Chippewa Commission, and were wrongfully participating in the benefits of the act of 1889 which excluded residents of Wisconsin from such benefits. These complaints were investigated by the commission in 1893 and extensive hearings were held with the result that the matter was again presented to the Assistant Attorney General for decision. Among the papers presented to him was certain correspondence with the ex-chairman of the Chippewa Commission, in which he stated:
    "I did not construe the act of 1889 so as to include Indians residing in Wisconsin, but to such as under the treaty of 1854 were temporarily absent and claimed their permanent residence according to Indian custom, on the Fond du Lac Reservation, they never having severed their connection with that tribe."
    The Assistant Attorney General, in an opinion dated May 24, 1895, held that there was no variance between the theory of the ex-chairman of the Chippewa Commission and the opinion of February 18, 1891, stating among other things:
    "A Chippewa Indian whose permanent home, according to the custom of that tribe, was on the Fund du Lac Reservation, who was temporarily absent, and who had not severed his connection with that tribe, has not lost the qualification of an actual resident of the State of Minnesota, within the purview of said act of January 14, 1889, supra, and the decision of Assistant Attorney General Shields.

    That decision, in my opinion, is unquestionably correct. No other construction of said act, under the ordinary meaning of the terms used, could be given, without adding to the language of the act, which this Department has no power to do. If it operates unjustly or inequitably, additional legislation will be necessary to correct the evil.

    It therefore becomes a question of fact for the Commission to determine in each individual case, as to who was an actual resident of the State of Minnesota, under the provisions of the act of January 14, 1889, supra, at the date of its passage."

    The question was again considered as late as 1924 by the Solicitor for this Department in connection with the application of Emma Fregeau Coburn, a Wisconsin Fond du Lac Chippewa. Mrs. Coburn's father was a white man. Her mother, she claimed, was a member of the Fond du Lac band of Chippewas and received annuities and other benefits with said band under the treaty of 1854. Neither Mrs. Coburn nor her parents ever resided in Minnesota but lived in Wisconsin. After an exhaustive examination of the provisions of pertinent treaties and the provisions of the act of 1889, the Solicitor, in an opinion dated February 29, 1924, following the earlier rulings of the Assistant Attorney General, concluded:
    "The foregoing fairly shows the settled construction that has been placed upon the Chippewa act of 1889 and under all the facts and circumstances my opinion is that the Department would not be justified in reopening the matter for the purpose of enrolling the applicant herein as a Minnesota Chippewa, in view of the provisions of said act."
    In a further opinion of June 17, 1924, the Solicitor, adhering to his former views, said among other things:
    "The position was taken in the former opinion that whatever rights Mrs. Coburn may have had either in herself or through her ancestors was lost by ceasing to be a member of the Fund du Lac Band as the act of January 14, 1889, clearly anticipated removal of the Indians of that band from Wisconsin to the reservation set apart for them in Minnesota. Taking the act of 1889 as a whole Congress was clearly legislating therein for the benefit of reservation Indians, not persons located in Wisconsin who might claim possession of some Fond du Lac blood. This was undoubtedly the view taken by the tribe itself and the commission appointed under said act at the time the census of that year was being taken."
    The Assistant Secretary of the Interior having,
 


 

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on April 30, 1925, denied a request for rehearing, the applicant, Mrs. Coburn, filed a petition for mandamus in the Supreme Court of the District of Columbia to direct the Secretary of the Interior to pay accrued annuities under the act of 1889. The District Supreme Court denied the petition and the Court of Appeals affirmed the judgment. (See Coburn v. Work, 18 F. 2d 822.) In affirming the judgment, the court said:

    "The department ruled that the benefits of the act of 1889, the provisions of which we have briefly reviewed in another case just decided (Appeal No. 4521, Work v. U.S. ex rel. Gouin,-App. D. C.- 18 F. 2d 820), were restricted to Minnesota Chippewas, and this was the view of the Circuit Court of Appeals of the Eighth-Judicial Circuit in Oakes v. United States, 172 Fed. 305. That there was a substantial basis for the ruling of the department is apparent. The ruling, therefore, was neither arbitrary nor capricious, and hence not subject to review through mandamus."
    The long continued and uniform construction by this Department of the act of 1889 thus is that its benefits are confined to Minnesota Chippewas as distinguished from those located elsewhere. The statute, in many of its provisions, lends reasonable support to that construction. Residence in Minnesota is expressly made a condition to the taking of allotments. Nothing contained in section 7 creating the permanent fund justifies the conclusion that the beneficiaries thereof were to be determined by a different rule. The fund is expressly created for the "Chippewa Indians in the State of Minnesota", and this expression occurs so repeatedly in the statute as to imply that none but residents of that State were to participate. At any rate, if there were any doubt on the question, the silence of Congress in the face of the long continued practice of the Department must be considered as equivalent to consent to continue the practice until revoked or changed by some subsequent action by Congress. United States v. Midwest Oil Co. (236 U.S. 459, 481): United States v. Jackson (280 U.S. 183, 197).

    In view of the foregoing, it is my opinion that those persons who at the time of the enactment of the act of 1889 were permanent residents of the State of Wisconsin, whether possessing Chippewa Indian blood or not, were not entitled to enrollment as Chippewas of Minnesota, and that the descendants of such persons born in and permanent residents of the State of Wisconsin are likewise excluded from participating in the benefits of the act.

    It appears, however, that the prior enrollment by the Chippewa Commission of those persons objected to on the ground that they were Wisconsin Indians, and who were the subject of the investigation by the Commission in 1893, was not disturbed and that they have participated in the distribution of the annuities provided for by section 7 of the act of 1889. As the evidence taken before the Commission at the hearings in 1893 indicates that many, if not all, of the persons objected to were then in Wisconsin, I assume, in the absence of anything in the record to the contrary, that their enrollment was allowed to stand by an application of the rule of temporary absence laid down in the Assistant Attorney General's opinion of May 24, 1895. While the enrollment of these people and their status as members of the Fond du Lac Band of Minnesota Chippewas at the time of enrollment is not to be questioned at this late date, I am nevertheless of the opinion that such of the enrollees as, notwithstanding their enrollment, failed to remove to Minnesota and continued to reside in Wisconsin are in the position of Indians who have abandoned their tribal relations, and that their rights are to be determined accordingly. Such abandonment would not, of course, affect the right of the enrollee to continue to participate in the distribution of the tribal property (Oakes v. United States, 172 Fed. 305), but the right of his descendants would depend upon whether the test to be applied is that of tribal membership or possession of Chippewa blood. If the test of tribal membership is applied, any claim on the part of the descendants born apart from the tribe of a parent or parents whose tribal relations have been severed must be rejected, unless as the issue of a marriage between an Indian woman and a white man their rights are saved by the act of June 7, 1897 (30 Stat. 62, 90), which reads:

    "That all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right."
    Upon the other hand, if the test be one of blood
 


 

499

OPINIONS OF THE SOLICITOR

DECEMBER 13, 1934

alone, it will be sufficient to establish the right of the claimant to trace his descent to an ancestor who was an enrolled member of the Fond du Lac band of Minnesota Chippewas.

    The question of which of these tests should be applied is one upon which former Solicitors for this Department have sharply differed. The question arose in connection with an application for enrollment of the nine children of Sarah and Mall Kadrie. Four of the children were born in Canada and the others at International Falls and St. Paul, Minnesota. Mr. Kadrie was a Syrian by birth but a naturalized citizen of the United States. Mrs. Kadrie was of mixed Chippewa and white blood and recognized as a member of the White Earth band of Chippewas at the time of her marriage in 1909. She was the daughter of Mary Blair, a full blood Chippewa woman, who was a member of the White Earth band in Minnesota and as such was included in the census rolls and given an allotment on the White Earth Reservation. After her marriage, Mrs. Kadrie abandoned her tribal relations and thereafter resided with her husband among white people-for several years in Canada and Syria, and during later years at International Falls and St. Paul. February 17, 1919, the then Solicitor ruled that Mrs. Kadrie's children were entitled to share in the interest annuities. He was of the opinion that the act of 1889 should be construed and given effect as if it were a conventional deed of trust. With this premise, he concluded that the fund established under section 7 was not a tribal fund, but one held for designated Indian beneficiaries as individuals, and that the individuals comprise, first, all living Indians who were included in the census rolls as members of the tribe, and, second, all living lineal descendants of any Indian so enrolled, regardless of whether the descendant is or ever was a member and even though he was born of parents, neither of whom was a member at the time. He said:

    "* * * But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust. * * * His descendants (whether children or grandchildren) take an interest, not as tribal members, but as of the ancestor's blood; his blood entitling him and them alike, because it was tribal blood.

            *                                *                                *                                *                                *

Sarah Kadrie and her children are "issue" of her mother, a full-blood Chippewa Indian duly enrolled, and as such they will be entitled, at the expiration of the trust period, to share in the distribution of the trust fund; and meanwhile they are equally entitled to share in the annuities arising from that fund. Those rights they have not forfeited either by acquiring foreign citizenship or by abandoning, or failing to acquire, residence on the Indian reservation or with the tribe."

    In opinion dated January 8, 1927, a succeeding Solicitor reconsidered the matter and held that the Kadrie children were not entitled to share in the interest annuities. It was his opinion that the act of 1889 was to be construed and given effect as an exertion by Congress of its authority over the affairs and property of tribal Indians under the guardianship of the United States; that the fund established under section 7 is a tribal fund derived from the sale of tribal lands and is held and being administered as such by the United States; that the tribe has not been dissolved, but is recognized by Congress as still existing; that in this situation the right to share in the interest annuities depends upon existing tribal membership, save in the exceptional instances where Congress has provided otherwise; and that the Kadrie children, all of whom were born of a white father and after their mother had separated from the tribe and was permanently living among white people, were without tribal membership and not within any exceptional provision permitting other than existing members to share in such annuities.

    In conformity with this latter opinion, the names of the Kadrie children, which had been placed on the roll following the opinion of 1919, were removed. A petition for a writ of mandamus, commanding the Secretary of the Interior to restore their names, was then filed in the Supreme Court of the District of Columbia. That court denied the writ, and was reversed by the Court of Appeals (30 Fed. (2d) 929). The latter court was of the opinion that all of the lineal descendants of the Chippewa Indians of the State of Minnesota, recognized as such at the time of the passage of the act of 1889, were entitled to share in the interest annuities. The court based its opinion in part upon the national policy adopted by Congress of preserving the rights to share in tribal property of Indians who had abandoned their tribal relations (see section 6 of the General Allotment Act of February 8, 1887, 24 Stat. 388), and, in part, upon the declaration in section 7 of the act of 1889 that upon the expiration of the fifty year period the fund created by that section "shall be divided and paid to all of said Chippewa Indians and their issue then living."

    The Supreme Court granted certiorari, and upon review of the case reversed the Court of Appeals
 


 

500

DEPARTMENT OF THE INTERIOR

DECEMBER 13, 1934

in a decision delivered by Mr. Justice Van Devanter. (Wilbur v. United States, 281 U.S. 206). The Supreme Court ruled that the questions decided by the Secretary of the Interior were questions involving the exercise of judgment and discretion as to which he could not be controlled by mandamus. The decision thus establishes that the duty of determining to whom payment shall be made of the interest annuities accruing under section 7 of the act of 1889 rests with the Secretary of the Interior, and not with the courts. The language used by the court in reaching that conclusion, however, lends sufficient support to the Solicitor's ruling of 1927 that the test to be applied was that of tribal membership as practically to require the affirmance of that ruling unless shown to be clearly wrong. The court said:

    "The questions mooted before the Secretary and decided by him were whether the fund is a tribal fund, whether the tribe is still existing and whether the distribution of the annuities is to be confined to members of the tribe, with exceptions not including the relators. These are all questions of law the solution of which requires a construction of the act of 1889 and other related acts. A reading of these acts shows that they fall short of plainly requiring that any of the questions be answered in the negative and that in some aspects they give color to the affirmative answers of the Secretary. That the construction of the acts insofar as they have a bearing on the first and third questions is sufficiently uncertain to involve the exercise of judgment and discretion is rather plain. The second question is more easily answered, for not only does the act of 1889 show very plainly that the purpose was to accomplish a gradual rather than an immediate transition from the tribal relation and dependent wardship to full emancipation and individual responsibility, but Congress in many later acts-some near the time of the decision in question-has recognized the continued existence of the tribe. This recognition was respected by the Secretary and is not open to question here. With the tribe still existing the criticism by counsel for the relators of the Secretary's decision in other particulars loses much of its force."
    The rule is well settled that, in the absence of provision to the contrary, the right of individual Indians to share in tribal property, whether lands or funds, depends upon tribal membership. Halbert v. United States (283 U.S. 753, 762); Oakes v. United States, supra. It is apparent that this rule must be applied in the distribution of the interest annuities accruing under Section 7 of the act of 1889 unless a different rule has been prescribed by that act or some other treaty or statutory provision. In this connection, I shall first consider certain treaty and statutory provisions in force prior to the enactment of 1889 which have been urged as establishing such a different rule. The first of these is Article 4 of the treaty of August 2, 1847 (9 Stat. 904), concluded at Fond du Lac of Lake Superior between the United States and the Chippewa Indians of the Mississippi and Lake Superior by their chiefs and headmen. Article 4 reads:
    "It is stipulated that the half or mixed bloods of the Chippewas residing with them shall be considered Chippewa Indians, and shall, as such, be allowed to participate in all annuities which shall hereafter be paid to the Chippewas of the Mississippi and Lake Superior, due them by this treaty, and by the treaties heretofore made and ratified."
    It is quite obvious that the foregoing article does not have the effect contended for. It extends the privilege to certain mixed-blood Chippewas of sharing in specified annuities, implying that up to that time such Indians, even though residing with the band or tribe, were not recognized as members thereof. The privilege extended is confined to annuities due under that and prior treaties and hence the article is without application to annuities accruing under the subsequent act of 1889. Moreover, in extending the privilege, the condition is imposed that the mixed bloods must be "residing with them." This excludes those residing apart from the band or tribe. If any significance attaches to the article at all, it is in favor of and not against the ruling that the right to share in the interest annuities is to be determined by the test of tribal membership.

    The next provision is contained in the act of December 19, 1854 (10 Stat. 598). That act is entitled "An Act to provide for the extinguishment of the title of the Chippewa Indians to the lands owned and claimed by them in the Territory of Minnesota, and State of Wisconsin, and for their Domestication and Civilization." It empowered the President to negotiate treaties with the Indians, with the declaration that such treaties should contain, among other provisions, the following:

    "Third. All the benefits and privileges granted to said Indians shall be extended to and enjoyed by the mixed bloods belonging to or connected with the tribe, and who shall permanently reside on the ceded lands."
 
 

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