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51

OPINIONS OF THE SOLICITOR

JUNE 9, 1922

of said band duly appointed by a general council of the Bad River Band of Chippewa Indians called for that purpose.

    It was held that so far as the roll of unallotted members of the band of Indians there in question was required to be made and completed "within 90 days after the approval of this act," the language was merely directory and time was not of the essence of the act to be performed. The Solicitor further stated in that connection:
    It is well settled by departmental and court decisions that until fee patent has issued on an Indian allotment, the Secretary of the Interior retains jurisdiction and has authority to investigate and determine as to the legality and validity of such allotment. This undoubtedly is the proper rule, as when the time comes for making allotments and distributing moneys to the Indians of this particular band, if it should appear that any person was improperly enrolled, it would hardly be seriously con tended that the Secretary is powerless to interfere, but must perpetuate and make effective the mistake by awarding land and money to one known not to be entitled thereto.
    An opinion of the Assistant Attorney General for this Department (12 L.D., 169), involved a case where after approval of allotment lists prepared in pursuance of an act of Congress which directed the Secretary of the Interior "within 90 days from and after the passage of this act" to make allotments of land to certain Indian tribes "upon lists to be furnished him by the chiefs of said tribes, duly approved by them, and subject to the approval of the Secretary of the Interior," a member of one of the tribes applied for allotment alleging that her name had been inadvertently omitted from such lists. It was held in said opinion that "the inadvertent omission of a member of the tribe from the allotment list approved by the Secretary, may be corrected on due proof of the foot;" that if the applicant's allegation were true "it is such a mistake, or omission, as in my opinion the Secretary has a right and ought to correct by causing an allotment to be made to her."

    It was held in the case of David Laughton (18 L.D., 283), that "the Department has the authority to correct rolls of Indian allottees whenever it is clearly shown that a mistake has been made.

    The case of Lowe v. Fisher (223 U.S., 95), involved Indian legislation which directed lists to be Prepared of those found by a commission to be entitled to enrollment; and it provided that "the " lists thus prepared, when approved by the Secretary of the Interior, shall constitute a part and parcel of the final roll of citizens of the *     *     * tribe, upon which allotment of land and distribution of their property shall be made;" and further that "where there shall have been submitted to and approved by the Secretary of the Interior lists embracing the names of all those lawfully entitled to enrollment, the roll shall be deemed complete." It was contended in that case that a roll made complete by legislation excludes the idea of correction by an Executive officer. But the court held that the Secretary of the Interior may correct rolls and decide questions of right and title as long as the legal title is in the United States and his jurisdiction involving the right to correct mistakes continues until a date which Congress has fixed as final.

    As to the Secretary's power and authority in the premises the same principle applies whether a correction of rolls for mistake or inadvertence involves the adding to or striking names from the rolls. In my opinion of March 29, 1922, regarding the Stockbridge-Munsee roll, it was said:

    It is equally well settled that the Secretary has the power to correct errors in tribal rolls. If a mistake is made the Secretary has equal power in striking persons from the rolls as he had originally in placing their names thereon. The presence of the name of a person on the list who is not entitled to enrollment is no more conclusive as to his rights than the absence from such list of the name of a person who is entitled. The Assistant Attorney General for this Department, on January 29, 1896 (12 Op. Asst. Atty. Gen., 38, 47) , held, in respect to enrollment under the act of March 3, 1893, supra:

    While the provisions of the act of March 2, 1895, above quoted, do not require a revision of the enrollment heretofore made under the provisions of the act of 1893, yet I see no reason why the Secretary may not, in the exercise of his supervisory power over such matters, cause any errors in the rolls to be corrected, and to this end he may order a new enrollment to be made.

    The Supreme Court in the case of Lane v. Mickadiet (241 U.S., 201), had occasion to construe the words "final and conclusive," employed in the act of June 25, 1910 (36 Stat., 855), authorizing the Secretary of the Interior to ascertain the heirs of deceased Indians and providing that "his decision thereon shall be final and conclusive." It was contended that under that provision the heirs of a deceased allottee being once determined, the Secre-
 


 

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tary was without power to reopen and reconsider the finding. But the court held:

    The words "final and conclusive" describing the power given to the Secretary must be taken as conferring and not as limiting or destroying that authority. In other words they must be treated as absolutely excluding the right to review in the courts, as had hitherto been the case under the act of 1887, the question of fact as to who were the heirs of an allottee, thereby causing that question to become one within the final and conclusive competency of the administrative authority. As it is obvious that the right to review on proper charges of newly discovered evidence or fraud a previous administrative order while the property to which it related was under administrative control, was of the very essence of administrative authority (Michigan Land & Lumber Company v. Rust, 168 U.S. 589), it must follow that the construction upheld would not only deprive the Secretary of the final and conclusive authority which the statute in its context contemplated he should have, but would indeed render the administrative power conferred wholly inadequate for the purpose intended by the statute. And it must be further apparent that the in adequacy of authority which the proposition if accepted would bring about could not be supplied, since it would come to pass that although the property was yet in the control of the United States to carry out the trust, there would be an absence of all power both in the administrative and judicial tribunals to correct an order once rendered, however complete might be the proof of the fraud which had procured it.

    See also United States v. Wildcat (244 U.S., 111), Duncan Townsite Co. v. Lane (245 U.S., 308), Johnson v. Payne (253 U.S., 209).

    The foregoing is sufficient to show the general rule as to the power of the Secretary of the Interior to correct mistakes that may be made in the administration of the laws relating to Indians. There is nothing in the act of March 3, 1891, supra, relating to Indians of the Fort Belknap Reservation that so distinguishes it as to render inapplicable the principles and decisions above referred to. While power exists in the Secretary of the Interior to make changes in rolls especially where as in this instance the actual allotment of the reservation has not as yet been made yet he would not be justified under the provisions of the particular act in question in reopening indiscriminately the roll prepared by the commission appointed for the purpose. Any change in said roll should be confined to individual cases clearly shown to require this action and it is not intended by this opinion to pass on the merits of any particular case or cases. So far as possible changes should only be made upon the recommendation of the commission which is cognizant of the facts and charged by law with the duty and responsibility of preparing the roll in the first instance.

                                                                                                                                                  EDWIN S. BOOTH,

Solicitor.
Approved: ---------------------------

--------------------, Assistant Secretary.

FLATHEAD TIMBER LANDS

49 L.D. 166                                                                                                                                                  June 29, 1922.

FLATHEAD LANDS-INDIAN LANDS-MINERAL LANDS

TIMBER LANDS

    Lands within the Flathead Indian reservation, Montana, classified as timber lands pursuant to the act of April 23, 1904, are specifically excepted by section 8 of that act from disposition under the mineral land laws, and nothing contained in other parts of the act or in any of the acts of Congress subsequently enacted, relating to the disposition of lands within that reservation, may be interpreted as importing a contrary intention.
BOOTH, Solicitor:

    My opinion is requested on the question as to whether lands classified as timber lands on the Flathead Indian Reservation, Montana, are subject to mineral entry, in view of provisions contained in the act of April 23, 1904 (33 Stat., 302). The pertinent provisions are found in sections 8 and 10, which read as follows:

    "Sec. 8. That when said commission shall have completed the classification and appraisement of all of said lands and the same shall have been approved by the Secretary of the Interior, the land shall be disposed of under the general provisions of the homestead, mineral, and town-site laws of the United States, except such of said lands as shall have been classified as timber lands, and excepting sections sixteen and thirty-six of each township, which are hereby granted to the State of Montana for school purposes. * * *

                            *                            *                        *                            *                            *

    Sec. 10. That only mineral entry may be made on such of said lands as said commission shall designate and classify as mineral under the general provisions of the mining laws of



 

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OPINIONS OF THE SOLICITOR

JUNE 29, 1922

the United States, and mineral entry may also be made on any of said lands whether designated by said commission as mineral lands or otherwise, such classification by said commission being only prima facie evidence of the mineral or nonmineral character of the same: Provided, That no such mineral locations shall be permitted upon any lands allotted in severalty to an Indian."

    It will be noted that the act in section 8 thereof excepts lands classified as timber from disposal under the mining laws, while the language used in section 10, in the absence of any other provisions respecting timber lands, would seem to authorize mineral entry of any lands affected by the act, except lands allotted in severalty to an Indian. An interpretation of the above provisions of the act of 1904, may be found in sections 6 and 11 of the same act, and also in the subsequent acts of March 3, 1909 (35 Stat., 781, 796), and February 25, 1920 (41 Stat., 452). The said act of 1904 after directing that the Commission in making classification of the lands embraced in the Flathead Indian Reservation, should divide the same into the following classes:
    Sec. 5. *     *     * First, agricultural land of the first class: second, agricultural land of the second class; third, timber lands, the same to be lands more valuable for their timber than for any other purpose; fourth, mineral lands; and, fifth, grazing lands.
    Further provided as follows:
    Sec. 6. That said commission shall in their report of lands of the third class determine as nearly as possible the amount of standing saw timber on legal subdivisions thereof and fix a minimum price for the value thereof. *     *     * Mineral lands shall not be appraised as to value.

    Sec. 11. That all of said lands returned and classified by said commission as timber lands shall be sold and disposed of by the Secretary of the Interior under sealed bids to the highest bidder for cash or at public auction, as the Secretary of the Interior may determine, under such rules and regulations as he may prescribe.

    It is provided in section 11 of the act of March 3, 1909, supra:
    Sec. 11. That all merchantable timber on said lands returned and classified by said commission as timber lands shall be sold and disposed of by the Secretary of the Interior, for cash, under sealed bids or at public auction, as the Secretary of the Interior may determine, and under such regulations as he may prescribe: Provided, That after the sale and removal of the timber such of said lands as are valuable for agricultural purposes shall be sold and disposed of by the Secretary of the Interior in such manner and under such regulations as he may prescribe.
    The act of 1909 was on May 18, 1916 (39 Stat., 123, 139), amended to provide that lands thereunder classified as timber lands which in the opinion of the Secretary of the Interior, were suitable for agricultural or horticultural purposes might be opened to homestead entry upon payment at the time of entry of the full value of the timber standing thereon.

    The act of February 25, 1920, supra, authorized allotments to be made on the Flathead Reservation to all unallotted living children enrolled with the tribe or entitled to enrollment with the provisos:

    That such allotments be made from any unallotted or unsold lands within the original limits of the Flathead Indian Reservation, including the area now classified and reserved as timber lands *     *     * and patents issued for allotments hereunder for any lands from which such timber has not been cut and marketed, shall contain a clause reserving to the United States the right to cut and market, for the tribal benefit, as now authorized by law, the merchantable timber on lands so allotted: Provided further, That when the merchantable timber has been cut from any lands allotted hereunder, the title to such timber as remains on such lands will thereupon pass to the respective allottees, and the Secretary of the Interior is hereby directed to withhold from sale or entry all lands unsold and unentered within the said reservation at the date of the passage of this Act until allotments hereunder have been completed.
    The above provisions are in entire accord with the provision in section 8 of the act of April 23, 1904, which excepts lands classified as timber lands from disposal under the mining laws, showing that it could not have been contemplated by Congress in section 10 of said act to subject timber lands to mineral entry, and this for the reason that provision was subsequently made for the disposal of such timber lands other than under the mining laws.

    In view of the foregoing, my opinion is that the
 


 

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specific provision in section 8 of the act of April 23, 1904, which excepts timber land on the Flathead Indian Reservation from mineral entry is not affected by the general provisions contained in section 10 of the same act, as the latter provisions clearly refer to lands other than those classified as timber lands and for whose disposal Congress subsequently provided in strict accordance with the original legislation.

Approved: October 5, 1922.
E. C. FINNEY, First Assistant Secretary.
 

MINING CLAIMS WITHIN INDIAN RESERVATIONS

49 L.D. 420                                                                                                                                                      July 7, 1922.1

INDIAN LANDS-MINING CLAIM-PREFERENCE RIGHT-

FORFEITURE-ADVERSE CLAIM-STATUTES

    While the first proviso to section 26 of the act of June 30, 1919, declares that all rights under a mining claim within an Indian reservation shall be forfeited if the preference right accorded thereby to the locator is not exercised within one year from the date of location, yet such forfeiture does not, in the absence of an intervening adverse claim, preclude the locator from relocating the same ground, but in such event his rights under the act will commence with the date of the new location, and will be subject to compliance with all the terms, conditions, and regulations governing the original location.
BOOTH, Solicitor:

    My opinion is requested as to the validity of new locations made on ground covered by prior locations to which the locators have forfeited their rights under that provision in section 26 of the act of June 30, 1919 (41 Stat., 3, 31), which reads:

  Provided, That the locators of all such mining claims, or their heirs, successors, or assigns, shall have a preference right to apply to the Secretary of the Interior for a lease, under the terms and conditions of this section, within one year after the date of the location of any mining claim, and any such locator who shall fail to apply for a lease within one year from the date of location shall forfeit all rights to such mining claim. [Italics supplied.]
    Under the foregoing, original locators who failed to apply for a lease within one year forfeit all rights to the claims located by them. In the absence of intervening rights, however, no reason is seen why new locations covering the same ground may


 

not be accepted from the same parties. Under such circumstances their rights will date from the new locations rather than from the old, as under the latter all rights are clearly forfeited, and applicants for leases under the new locations must conform to all the terms, conditions, and regulations that governed the original locations.

Approved: July 10, 1922.
F. M. GOODWIN, Assistant Secretary.
 
 

MINING CLAIMS IN THE FORT APACHE INDIAN
RESERVATION.

49 L.D. 421                                                                                                                                                  July 10, 1922.1

INDIAN LANDS-FORT APACHE LANDS-ARIZONA-MINING CLAIM

-LEASE

    Valid discovery of a mineral deposit, being one of the essential elements of a mining claim, is also a prerequisite to the granting of a lease based on a mining claim pursuant to section 26 of the act of June 30, 1919, as amended by the act of March 3, 1921, which relates to the leasing of specified deposits of minerals in unallotted lands within Indian reservations in certain States that were withheld from disposition under the mining laws of the United States.


INDIAN LANDS-FORT APACHE LANDS-ARIZONA-MINING CLAIM

-LEASE-NOTICE-WAIVER-PREFERENCE RIGHT

    The requirement in section 26 of the act of June 30, 1919, that a copy of the location notice must be filed as specified therein within 60 days after location of a mining claim for mineral deposits in an Indian reservation, cannot be waived, and if the locator fails to comply strictly therewith he forfeits all right to be preferred in the award of a lease thereunder.
BOOTH, Solicitor:

    On June 22, 1922, my opinion was requested with respect to the validity of certain conflicting lode locations for asbestos deposits within the Fort Apache Indian Reservation, Arizona. Applications for leases for the claims have been filed by E. D. and Ernest A. Reidhead jointly and by E. E. Swan pursuant to section 26 of the act of June 30, 1919 (41 Stat., 3, 31), as amended March 3, 1921 (41 Stat., 1225, 1231). The questions involved relate to priority and discovery in connection with the locations sought.

    The first mentioned statute authorized the Secretary of the Interior to lease under general regulations unallotted lands within Indian reservations in Arizona and eight other western States for the purpose of mining for deposits of gold, silver, copper, and other metalliferous minerals. The Secretary was to declare what lands were to be subject to exploration-

__________

    1 See opinions of July 10, 1922, and January 30, 1923 (49 L.D., 421 and 424).
   
1See opinions of July 7, 1922, and January 30, 1925 (49 L.D., 420 and 424).
 


 

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    And after such declaration mining claims may be located by such citizens in the same manner as mining claims are located under the mining laws of the United States: Provided, That the locators of all such mining claims, or their heirs, successors, or assigns, shall have a preference right to apply to the Secretary of the Interior for a lease, under the terms and conditions of this section, within one year after the date of the location of any mining claim, and any such locator who shall fail to apply for a lease within one year from the date of location shall forfeit all rights to such mining claim: Provided further, That duplicate copies of the location notice shall be filed within sixty days with the superintendent in charge of the reservation on which the mining claim is located, and that application for a lease under this section may be filed with such superintendent for transmission through official channels to the Secretary of the Interior.

    The act of March 3, 1921, made the following amendment:

    That whenever the term "metalliferous" is used in said section 26 of the above-entitled Act, it shall be defined and construed by the Secretary of the Interior to include magnesite, gypsum, limestone, and asbestos.
    The regulations of September 16, 1919 (47 L.D., 261, 263), under the act of 1919, in part read:
    3. Should valuable metalliferous minerals be found the section contemplates the location of mining claims in the same manner as mining claims are located under the mining laws of the United States. Should the locator fail to file a duplicate copy of the location notice with the officer in charge of the land within 60 days or fail within one year thereafter to make application through the officer in charge to the Secretary of the Interior for a lease of the land he will thereby forfeit all preference right to a lease. Any locator who fails to comply with the United States mining laws and the regulations of the General Land Office prescribed thereunder as to the location of mining claims will also forfeit all preference right to a lease.
    The regulations contemplate that a discovery of mineral shall be made as the basis for the location of a mining claim. As amended on March 3, 1921 (48 L.D., 263), section 4 of the regulations states that discovery of ore by prospect drilling or boring methods will be equivalent to discovery by shaft sinking.

    From the papers submitted it appears that on December 16, 1920, E. D. and Ernest Reidhead located the Ring Cone Nos. 1 and 2 lode claims upon an out-cropping of asbestos. Being advised that asbestos locations would not receive consideration at the hands of the Government, they did not within 60 days after location file with the superintendent copies of their location notices. When informed of the amendment of March 3, 1921, they did file copies of their location notices on March 29, 1921. Their application for lease of the above claims was filed on December 9, 1921.

    On March 8, 1921, E. E. Swan located the Casey Jones and the Casey Jones Nos. 1 to 9 lode claims and on April 11, 1921, the Casey Jones Nos. 10 to 18 claims. Copies of location notices were filed with the superintendent on April 20, 1921. Swan's application for lease of the Casey Jones group of claims was filed at the agency office on March 4, 1922.

    The record indicates that the Reidheads and John C. Earl on April 15, 1921, made locations of the Ring Cone Nos. 1 to 5 claims and on April 19, 1921, filed location notices with the superintendent of the Ring Cone claims Nos. 1 to 3. These claims, however, are not the ones described in the application for lease. Also on June 1, 1921, E. E. Swan, by John Carter, agent, made amended locations of the Casey Jones and Casey Jones Nos. 1 to 17 claims for correction of errors in descriptions. Amended notices were filed with the superintendent on June 2, 1921.

    As the claims involved are all unsurveyed it is not possible to determine with certainty the area in conflict between the two applications. From rough diagrams submitted by both parties it would appear that the original Ring Cone Nos. 1 and 2 claims are in large part in conflict with the southwestern portion of the Casey Jones group. A hearing was had on May 1, 1922, after due notice, with respect to conflicting claims. The superintendent in his report states that from the evidence the Ring Cone Nos. 1 and 2 claims were located in good faith by the claimants. However, he reports that at that time under his instructions he could not have accepted filings on asbestos claims or recognized locations for asbestos.

    The applicants for the Ring Cone claims have asked that the requirement with respect to filing of notice within 60 days after location be waived.

    The requirement referred to is statutory and not one fixed by regulations. In the face of the intervening adverse Casey Jones claims the Department would not be justified in undertaking to pass over the plain statutory provisions or in recognizing as
 


 

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JULY 10, 1922


valid and superior the Ring Cone claims. It does not appear that the Reidheads tendered or offered for filing their notices within the 60-day period named in the statute. The regulations (47 L.D., 261, 263), supra, declare that failure to file notice within the 60-day period forfeits all preference right to a lease. It must be concluded that the Reidheads have not shown a proper basis upon which to rest their application for a lease of the Ring Cone Nos. 1 and 2 claims, and that their application should be denied and disapproved.

    This disposition renders it unnecessary to consider or discuss the status of an asbestos location made prior to the approval of the amendatory legislation of March 3, 1921.

    The record submitted shows that upon some of the Casey Jones claims in the northern half of the group it is conceded that asbestos or the serpentine formation carrying it has not been found and that there is no mineral in sight or disclosed. In short, no discovery has been made upon certain of the claims. In the southeastern portion of the group there is a conflict with the Horseshoe Nos. 1 and 2 claims which appear to have been heretofore approved for lease. With the exclusion of the area of these claims from the Casey Jones group still other claims will probably be without discovery or disclosure of asbestos or other mineral upon claimed ground.

    The statute contemplates (1) exploration for the discovery of the deposits mentioned; (2) location of mining claims in the same manner as under the mining laws; and (3) the leasing of such claims. An annual expenditure of not less than $100 in development work for each mining claim located or leased is also required in addition to the rents and royalties. Under the general mining laws and regulations a discovery of mineral is essential to the validity of a mining claim and must take place before annual expenditure is in order. Under this leasing act a mining claim in order to afford a basis for a lease must rest on an adequate discovery of a mineral deposit. By the act those unallotted lands theretofore withdrawn from entry and withheld from disposition under the mining laws were made subject to lease with respect to the deposits specified. Discovery stamps the land as mineral in character and as containing one or more of the deposits named in the statute. Discovery follows and is a result of exploration. The discoverer's reward consists of his right to locate a mining claim and within one year thereafter apply for a lease. The discovery and disclosure of the mineral deposit is essential.

    Those claims of the Casey Jones group which are without a discovery can not be properly included in a lease, and as to said locations the application for lease should be denied and disapproved.

Approved:

F. M. GOODWIN, Assistant Secretary.

JURISDICTION OF STATE

PROBATE COURTS

M-7996                                                                                                                                                 August 2, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In response to your request I have the honor to submit my views on the question submitted by the Commissioner of Indian Affairs, which question is as follows:

    "B, a restricted member of the Five Civilized Tribes of Indians, in his own behalf, makes application to the Department of the Interior for permission to purchase a home suitable to his needs and station of life, the same to be paid for out of restricted funds belonging to him, in the hands of the Department.

    B, prior to such application, has been duly adjudged incompetent and a guardian of his person and estate has been appointed by the County (Probate) Court of the State of Oklahoma. Said guardian refuses to join in the application for the purchase of a home and said court refuses to make an order authorizing the guardian to make such purchase.

    Question: May the Department of the Interior act on the application of B, independently of the Probate Court and the guardian, or is the Department limited in its control of such restricted funds by such orders as said Probate Court may choose to make with reference thereto?"

    This question involves the extent of the jurisdiction conferred upon the Probate Courts of the State of Oklahoma by the Federal Government in the administration of the affairs of a restricted Indian, a member of the Five Civilized Tribes. The precise question presented has not been passed upon by any court of last report. In a determination of the line of demarcation between Federal control and control by the Probate Courts of Oklahoma it is pertinent to briefly review the law as regards the Indians generally as well as the con-
 


 

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AUGUST 2, 1922

struction of the law in relation to the Five Civilized Tribes.

    During the entire national existence and under constitutional authority the Indians have been treated as wards of the Nation and the United States is the guardian of all restricted Indians. The power of Congress to regulate the affairs and to provide for the supervision of these wards of the Nation is not debatable.

    Revised Statutes (Sec. 441) provide that-

    "The Secretary of the Interior is charged with the supervision of public business relating to the following subjects: * * *; 3rd, the Indians."
    Further Sec. 463 Revised Statutes provides-
    "The Commissioner of Indian Affairs shall under the direction of the Secretary of the Interior and agreeably to such regulations as the President may prescribe have the management of all Indian affairs and all matters arising out of the Indian relations."
    From the very inception of the Government the power of Congress to control and administer the affairs of restricted Indians, has been recognized. Supervision and control of these wards of the Government is necessary and the Secretary of the Interior is charged by law with the duty of acting as the custodian of the property of the Indian and the conservator of his rights.

    West v. Hitchcock, 205 U.S., 85.

    The Supreme Court of the United States in repeated instances has announced the now-settled doctrine that Congress in pursuance of the long established policy of the Government, has a right to determine for itself when the guardianship which has been maintained over the Indians shall cease. It is for that body and not the courts to determine when the true interests of the Indian require his release from such condition of tutelage.

    The Supreme Court in Tiger v. Western Investment Company (221 U.S., 316) says:

    "Congress has at all times and now has the right to pass legislation in the interest of the Indian as a dependent people * * * when the act of 1906 was passed the Congress had not released control over the alienation of lands of full-blood Indians, * * * that it rests with Congress to determine when its guardianship shall cease and while it continues it has the right to vary its restrictions * * * in the promotion of what it deems the best interests of the Indian."
    In Rainbow v. Young (161 Fed. Rep., 835), Mr. Justice Van Devanter said:
    "In short they are regarded as being in some respects still in a state of dependency and tutelage which entitled them to the care and protection of the national Government, and when they shall be let out of that state is for Congress alone to determine."
    In United States v. Kogawa (118 U.S., 384), it is said:
    "Congress has been loathe to entrust Indian affairs to the control of the States to which they owe no allegiance * * * and receive no protection from them."

    See also United States v. Celestine (215 U.S., 289).

    Except as conditions peculiar to the Five Civilized Tribes required, Congress, in dealing with them, pursued the same policy of protection that has at all times obtained with reference to Indians of other tribes. The treaties of these several tribes made provision for the allotment and distribution of their lands in severalty and recognized the in ability of the Indian to protect himself from his own weakness and incapacity by placing upon such lands a restriction against their alienation for a period of five years and twenty-one years on their surplus and homestead allotments, respectively.

    In 1904 Congress presumably feeling that protection to those adult members of these Tribes who were not of Indian blood might not be longer necessary, removed the restrictions against the alienation of the surplus allotments of that class of citizens (33 Stat., 189). In 1906 Congress apparently realizing that sufficient protection and safe-guards had not been placed around the full-blood members of these Tribes, as demonstrated by the experimental legislation of 1904, extended the restrictions on the entire allotments of such citizens for a period of twenty-five years (34 Stat., 137).

    This act was the subject of attack by members of the Tribe affected and sustained by the United States Supreme Court in Tiger v. Western Investment Company, supra, wherein the court held in substance that the restriction thus imposed was within the power of Congress and was to be accepted as an expression of its views concerning the necessity of further extending the restrictions and of protecting that class of Indian citizens who most needed protection.

    In all legislation affecting these Tribes the general policy of protecting and safeguarding the In-
 


 

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dian is apparent and when considered as a whole, is consistent and harmonious with that policy as it has been applied to other tribes.

    In view of this defined policy of the Government in the treatment of the Indians, Congress in the passage of the enabling act for the proposed State of Oklahoma, June 16, 1906 (34 Stat., 267) cautiously inserted a proviso to Section 1 which reads:

    "That nothing contained in the said Constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this act had never been passed."
    Congress in this act reserved its paramount authority to legislate on the subject and negatived any purpose to repeal by implication the existing laws and regulations of the Federal Government as to the control and supervision of the Indians, which under the Constitution rests with the Congress of the United States.
  Ex parte Webb, 225 U.S., 683.
  U.S. v. Holliday, 3 Wall, 407.
    The Constitutional Convention of the proposed State of Oklahoma by Ordinance irrevocable accepted the terms and conditions of the enabling act.

    The Supreme Court of Oklahoma in construing the proviso of the enabling act, the Ordinance of the Constitutional Convention, says:

    "The people of the State acting through their representatives and delegates were required to and did by ordinance irrevocable accept the terms and conditions of said act. It is unnecessary to comment upon the extent or limitation of the authority over the lands and property of such Indians that is by said enabling act reserved to the United States Government; for whatever be the extent of that authority or its limitations, we think it cannot be questioned that said authority reserved is sufficient to retain in the Government of the United States jurisdiction over the restricted lands of said Indians to determine and provide how and in what manner such restrictions shall be removed; and that until such restrictions are removed, the lands of said Indian minor allottees are not within the jurisdiction of the probate courts of the State with power in said courts to order the sale thereof for any purpose. Since the power to remove such restriction is wholly within Congress, it may say upon what terms and conditions they will be removed, and under the supervision of what court or officer the sale of same shall be made."
  Jefferson v. Winkler, 110 Pac., p. 758.

    It becomes pertinent to determine whether Congress has released to the State of Oklahoma any of the powers reserved by the provisions of the enabling act (supra). The act of May 27, 1908 (35 Stat., 312), is the only legislative expression from which we may determine what steps, if any, Congress has taken looking to a surrender of such reserved power so far as the Five Civilized Tribes are concerned.

    The act of May 27, 1908, supra, in its title indicates the purpose-

    "the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes and for other purposes."
    In Sections 1 and 9 is provided the future status of lands allotted to allottees of the Five Civilized Tribes "as regards restrictions on alienation or incumbrance."
    Sec. 1. "All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said allottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degree of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Inte-



 

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rior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act. *     *     *"

    Sec. 9. "That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee. *     *     *"

    These Sections define and classify the restricted and unrestricted Indians and provide for the gradual emancipation of the Indians mentioned from governmental supervision by unconditional removal of restrictions on alienation of all or part of their allotted lands. These provisions leave no doubt as to the authority and power of the Secretary of the Interior as to Indians of the restricted class and his lack of jurisdiction as to those of the unrestricted class.

    Section 6 reads as follows:

    "That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma. The Secretary of the Interior is hereby empowered, under rules and regulations to be prescribed by him, to appoint such local representatives within the State of Oklahoma who shall be citizens of that State or now domiciled therein as he may deem necessary to inquire into and investigate the conduct of guardians or curators having in charge the estates of such minors, and whenever such representative or representatives of the Secretary of the Interior shall be of opinion that the estate of any minor is not being properly cared for by the guardian or curator, or that the same is in any manner being dissipated or wasted or being permitted to deteriorate in value by reason of the negligence or carelessness or incompetency of the guardian or curator, said representative or representatives of the Secretary of the Interior shall have power and it shall be their duty to report said matter in full to the proper probate court and take the necessary steps to have such matter fully investigated, and go to the further extent of prosecuting any necessary remedy, either civil or criminal, or both, to preserve the property and protect the interests of said minor allottees; and it shall be the further duty of such representative or representatives to make full and complete reports to the Secretary of the Interior. All such reports, either to the Secretary of the Interior or to the proper probate court, shall become public records and subject to the inspection and examination of the public, and the necessary court fees shall be allowed against the estates of said minors. The probate court may, in their discretion, appoint any such representative of the Secretary of the Interior as guardian or curator for such minors, without fee or charge.
    And such representatives of the Secretary of the Interior are further authorized, and it is made their duty, to counsel and advise all allottees, adult or minor, having restricted lands of all of their legal rights with reference to their restricted lands, without charge, and to advise them in the preparation of all leases authorized by law to be made, and at the request of any allottee having restricted land he shall, without charge, except the necessary court and recording fees and expenses if any, in the name of the allottee take such steps as may be necessary including the bringing of any suit or suits and the prosecution and appeal thereof, to cancel and annul any deed, conveyance, mortgage, lease, contract to sell, power of attorney, or any other encumbrance of any kind or character, made or attempted to be made or executed in violation of this act or any other act of Congress in acquiring and retaining possession of their restricted lands."

    This Section confers certain jurisdiction upon Probate Courts of the State of Oklahoma. It makes no specific distinction between restricted and unrestricted "minor allottees."

    This provision does not specifically confer jurisdiction on the probate courts of the State over adult incompetent Indians of said Tribes, and it is only by implication in connection with the provisions of Section 2 that such jurisdiction is found.

    Section 2 of the act reads as follows:

    Sec. 2. "That all lands other than homesteads allotted to members of the Five Civilized Tribes from which restrictions have not been removed may be leased by the allottee if an adult, or by guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years, without the privilege of renewal: Provided, That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases



 

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of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise: And provided further, That the jurisdiction of the probate courts of the State of Oklahoma over lands of minors and incompetents shall be subject to the foregoing provisions, and the term minor or minors, as used in this act, shall include all males under the age of twenty-one years and all females under the age of eighteen years."

    It will be noted that the last proviso of this Section refers to the lands of minors and incompetents and makes the jurisdiction of the probate courts in so far as it affects the lands of minors and incompetents subject to the prior provisions of Section 2. It is thus that Congress has "otherwise specifically provided by law" that the jurisdiction of the probate courts conferred by Section 6 shall be limited to the extent indicated.

    It will likewise be noted that Section 2 of the act declares that-

    "leases for restricted lands for oil, gas or other mining purposes *     *     * may be made with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior and not otherwise."
    It is true that the Secretary of the Interior has no real actual contractual power to make the lease and that "that right rests solely in the guardian." Yet the oil, gas or other mining lease has no validity until approved by the Secretary of the Interior, who can withhold his approval, making ineffective the approval of the guardian, if he deem best for the interests of the Indian. When the lease is approved by the Secretary of the Interior, then he (the Secretary of the Interior), through such agencies as he may designate, has authority and does supervise all operations under the lease even though he does not actually execute it. And it is only in the event of the removal of the restrictions on alienation that the supervision of the Secretary of the Interior is relinquished.

    Sections 6 and 2, in so far as the jurisdiction of the probate courts is concerned, must be construed together. In the case of Truskett v. Closker (supra), Justice McKenna said:

    "These Sections are circumstantial and contain the elements of decision. Section 2 defines minors, male and female, and provides for the disposition of their property under, as stated, rules and regulations provided by the Secretary of the Interior, and declares the jurisdiction of the probate courts of the State shall be subject to its provisions. And Section 6 declares to what courts the property of minors so defined shall be subject. Explicitly such property is made 'subject to the jurisdiction of the probate courts of the State of Oklahoma. The qualification 'except as otherwise specifically provided by law' means, as said by the Circuit Court of Appeals, Federal law, not State law."
    In the case of Barbe v. Hood (228 Fed., 658), the court says:
    "It is manifest the definition of minority in Section 2 and the provisions of Section 6 respecting guardians committing jurisdiction to the local probate courts and for the continued oversight of the Secretary of the Interior, and his representatives, show that Congress did not intend wholly to relinquish its care for such Indians or their allotments. It is also clear that the intent of the act of Congress must prevail over local statutes wherever inconsistent or conflicting. The phrase 'except as otherwise specifically provide by law' in Section 6 means Federal law, not State law."
    Section 5 of the act provides that any attempted alienation of "lands prior to the removal of restrictions therefrom" and also "any lease of any such restricted lands made in violation of Federal law, shall be absolutely null and void." The provisions of this section are additional restrictions in harmony with the general purpose of the act to retain in the Government control over the lands and moneys of the restricted Indian and by its terms as to that class of property the guardian appointed by the Probate Court of the State of Oklahoma is limited by the paramount authority of the Secretary of the Interior, who is charged by law with the duty and endowed with the power to protect and safeguard the interest of the Indian of the restricted class, a duty and power which can not be consistently subservient in the slightest degree to the control of the probate court or subject to revision or review by it.

    The act of May 27, 1908, was a general act, designed and intended to be a comprehensive scheme whereby provision was attempted to be made for the conditions then existing and which would result from the operation of its provisions. The effect and purpose of the act upon the lands and property of allottees is to divide them with respect to the restrictions upon alienation into two classes; those upon which restrictions are removed and those upon which restrictions are continued until
 


 

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1931. Viewed in this light, it is not difficult to understand why it was deemed necessary to confer jurisdiction upon some specifically designated agency, to do for the minor Indian that which he was considered incapable of doing for himself. The previous legislation and the provisions of this act necessarily operated to release certain property from the jurisdiction of the Secretary of the Interior and to leave its control and management to minor allottees and incompetents unless provision was made for their protection. To have thrust into the world a large number of minor children and incompetents without provision for their protection would have been contrary to the policy of the Government as to Indians, and at least of doubtful propriety.

    With full knowledge of existing and probable conditions Congress deemed it proper to leave no doubt as to where and to whom these minor children and incompetents must look for protection. While the necessity existed for making provision for this class of citizens it does not necessarily follow that Congress intended to confer upon the probate courts of Oklahoma, the designated agency, a superior jurisdiction with reference to that class of citizens over whom the Secretary of the Interior was by the act to retain supervision and control.

    The provisions of the act of 1908 (supra) construed in relation to each other, and in the light of existing conditions, leave no doubt that (the Interior Department has the same free and untrammeled control of Indians of the restricted class which it had theretofore exercised, subject only to the exercise of such jurisdiction by the probate court as the legal incapacity of the Indians made necessary such as the execution of instruments by guardians on behalf of minors and incompetents, the control of such property as might come to the minor by inheritance free from restrictions, the management of such money or personal property as might be released by the Secretary of the Interior for the care and maintenance of the minor or incompetent, or the control or disposition of such property as the minor or incompetent might be possessed which was never under the jurisdiction of the Interior Department. As to the unrestricted class of Indians and unrestricted property of Indians the act confers jurisdiction upon the probate courts.

    An analysis of the provisions of the act, considered as a whole, leaves no room for doubt of this construction. Section 1 provides that as to restricted lands they shall not be subject to alienation, contract of sale, power of attorney, or any other encumbrance prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions wholly or in part under such rules and regulations concerning the terms of sale or disposal of proceeds for the benefit of the respective Indians as he may prescribe. A clear intent to preserve in the Secretary complete power in such matters, is here manifest. Under this reservation of power, if the Secretary of the Interior removes restrictions on the sale of land belonging to an adult incompetent restricted Indian, to pass title the sale must be made through the Probate Court. There can be no doubt, under the terms of the act, that in the order of removal of restrictions the Secretary of the Interior has power to impose a condition with reference to the "disposal of proceeds" of the sale as would leave the guardian and the court without any control over the same.

    The Secretary can not compel the court to make the order of sale, but the Secretary can say that if the sale be made the "proceeds" shall be disposed of in a certain manner and there is no limitation on his power in this respect. Can it be said that Congress intended to give to or retain in the Secretary a different degree of power in a case of the kind outlined than in any other case where restricted funds come under his control. No reason for such a distinction ever existed and none should be presumed.

    Section 2 of the act provides that leases of restricted lands for oil and gas and other mining purposes extending beyond the period therein specified may be made with the approval of the Secretary of the Interior under rules and regulations prescribed by him and not otherwise. The Secretary of the Interior in the exercise of the power conferred upon him by this Section 1, may make such rules and regulations as he may deem proper for the collection of rents, royalties, or other payments, accruing under any lease of a restricted Indian allotment approved by him and for the disposal of the proceeds" thereof.

    The nearest approach to an expression of an opinion as to the purpose and effect of the act of 1908, as it relates to the question under discussion is found in the opinion of the Supreme Court in the case of Parker v. Richards (250 U.S., 240). In this case the court had under consideration the regulations governing the leasing of lands, etc., of the Five Civilized Tribes under the provisions of Section 2 of the act of 1908.

    Justice Van Devanter speaking for the court said:

    "The questions to be considered are whether the land covered by the lease is land from which restrictions on alienation have been removed and whether the supervisory authority of the Secretary of the Interior over the collection, care and disbursement of the royalties has terminated *     *     *.
    "One of the regulations prescribed by the
 


 

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Secretary deals with the payment of lessors, their guardians, heirs, etc., of moneys collected as royalties by his representatives and specially authorizes the latter, as before indicated, to withhold such payment in whole or in part for such time as may be in accord with the best interests of the lessor or his heirs. It is under this regulation that the royalties already collected are being retained."

    Discussing the question whether the supervisory authority of the Secretary of the Interior over the collection, care and disbursement of royalties terminated, the learned Justice continues:
    "Under the act of 1908, as already shown, leases or restricted lands for oil and gas mining may be made with the approval of the Secretary of the Interior, under regulations prescribed by him, 'and not otherwise. 'The present lease was made and approved under that provision. The land was then restricted and the restrictions have not since been removed. Thus the event which the regulations and the lease declare shall terminate the supervision by the Secretary of the Interior of the collection, care and disbursement of the royalties has not occurred. Nor has the occasion for some supervision disappeared. The heir is a full-blood Indian as was the allottee, and is regarded by the act as in need of protection, as was the allottee. In the absence of some provision to the contrary the supervision naturally falls to the Secretary of the Interior. *      *     * There is nothing to the contrary in the leasing provision or in any other of which we are aware. True, it is possible under the proviso in Section 9 for the heir, if the court approves, to sell and convey his interest in the land. But that has not been done, and it well may be that the heir will remain the owner until the restrictions expire in regular course-April 26, 1931. There is nothing in the proviso indicating that it is intended in the meantime to take from the Secretary or to commit to the court the supervision of matters pertaining to the lease or the royalties. A purpose to do that doubtless would be plainly expressed."
    And the court concluded:
    "In this situation we think the authority of the Secretary of the Interior to supervise the collection, care and disbursement of the royalties, has not terminated.

    Criticism is made of some of the regulations, but all that are material here seem to be well within the limits of the Secretary's authority, and the acts of his representatives in respect of the lease and the royalties, so far as questioned here, seem to be well within the regulations."

    In the case of the United States v. Hinkle (261 Fed., 518, 520), the court said, among other things, in discussing the power of the Secretary of the Interior over royalties arising from restricted lands.

    "We are of the opinion, however, that under sections 19 and 20 of the act of April 26, 1906, c. 1876 (34 Stat., 137), and section 2 of the act of May 27, 1908, c. 199 (35 Stat., 312), and the regulations of the Secretary of the Interior promulgated July 7, 1906, June 11, 1907, and April 20, 1908, the exclusive custody and control of mineral rents and profits derived from restricted lands of full-blood tribal Indian citizens of the Five Civilized Tribes is vested in the Secretary of the Interior, subject only to such rules and regulations as he may prescribe, as an independent trust fund, separate and distinct from the trust estate in the land itself, and that the rules and regulations referred to show that the Secretary has elected to administer this trust and to retain the custody and control of such funds until such time or times as the payment thereof is considered best for the benefit of said lessor, or his or her heirs' *     *     * ."
    "Just when the United States shall cease to sustain the relation of guardian to this full blood Indian seems, under the decisions, a matter for Congress to decide * * * The rules and regulations of the Secretary of the Interior as to the collection, control and custody of mineral rents and profits, made within the power granted by the act of April 25, 1906 and May 27, 1908, supra, have the force and effect of law upon the subject and persons dealing directly with a tribal Indian in violation thereof cannot retain the fruits of such unlawful agreement."

    Solicitor Mahaffie in an opinion under date of March 11, 1921, said:
    "The duty of  thus protecting the interest of this full-blood Indian heir falls upon you and I am of the opinion that royalties accruing from these lands are payable to such person as you may designate."
    In matters of this kind, however, in so far as restricted Indians' property is concerned, the local courts act as Federal rather than State agencies.
 


 

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OPINIONS OF THE SOLICITOR

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    Parker v. Richards, 250U.S., 235.
    In re Jessie's Heirs, 259 Fed., 695.

    The jurisdiction of the State (Probate) Courts over the person or property of minor allottees and incompetents must come from a grant of Congress, otherwise they have no jurisdiction. In the same act that conferred jurisdiction upon the Probate
Courts, Congress provided for the retention of the jurisdiction of the Secretary of the Interior over restricted Indians and their property, and the power thus reserved by the act is superior to and greater than the power conferred on the courts. The jurisdiction conferred on the courts is "subject to the foregoing provisions" (of Section 2) "under the rules and regulations of the Secretary of the Interior and not otherwise."

    Whenever doubt has arisen as to the authority of the Secretary of the Interior over restricted Indian lands and funds, the courts have resolved the doubt in favor of the power of the Secretary, to act independently of the courts. The power of the Secretary is absolute and unabridged unless by express provision or clear implication an intent is evident to take from the Secretary his previous authority. According to a familiar rule legislation affecting the Indians is to be construed in their interest and a purpose to make a radical departure is not lightly to be inferred.

    United States v. Nice, 241 U.S., 597.

    There exists no conflict of authority between the Secretary of the Interior and the Probate Courts under the provisions of the act of 1908. The jurisdiction conferred by the act on the Probate Courts and that retained under the law by the Secretary of the Interior is neither a divided one nor is it in any sense concurrent. Each are authorized to act in certain specified instances but the jurisdiction of the Probate Courts is further limited as to leases for "oil, gas or other mining purposes" to such
"rules and regulations" as the Secretary may provide.

    The lands of the allottees being subject to the jurisdiction of the Secretary of the Interior, the proceeds therefrom are likewise under the same ,jurisdiction. The statute provides the land may be leased for "oil, gas or other minerals with the approval of the Secretary of the Interior." It thus Permits a change in the trust property which may result in the receipt of rents and royalties there from. No citation of authority is needed to sustain the doctrine that into whatever form trust Property may be converted, it continues to be impressed with the trust, as said by Judge Gilbert--

    "We construe the act as expressing the intention of Congress, not to end the trust but to permit a change of the form of the trust property. The property being held in trust by the United States for a period which had not yet expired and which period was subject to further extension by the President, the intention to terminate the trust must be found to be clearly expressed in order to warrant us in holding that the trust does not follow the property in its changed form."
    National Bank v. Anderson (147 Fed., 90).

    It is doubtless true the Secretary of the Interior has the right to either continue or relinquish his trust relation to the money received from rents and royalties of Indian restricted lands and that the authority of the Secretary does not continue after the moneys are paid over to the allottee of his duly authorized guardian. When the Secretary so acts he puts an end to the trust and terminates his jurisdiction thereof. Such is not the case in the question under consideration. We are not here dealing with funds from which the restrictions have been removed, and until they are so removed the jurisdiction of the Secretary is a continuing one and his authority is beyond the need of acquiescence in or concurrence by the Probate Court. It is absolute and needs no confirmation.

    He may as in his discretion seems best pay the moneys to the allottee, his duly authorized guardian, or he may disburse it for and on behalf of and in the interest of the incompetent ward.

    The voluntary application of a restricted Indian allottee, expressing a desire to be permitted to own and possess his own home, is a worthy and laudable ambition. It expresses his desire and evidences the fact that he has adopted the habits of civilized life, and in the state of tutelage in which he is held he is in advanced state of preparation to exercise the privilege and bear the burdens of one "suijuris." To deny him this reasonable and wholesome re quest would be contrary to the national policy to wards restricted Indians, intended and calculated to advance and promote them in the exercise of the rights, privileges and immunities of citizenship. It should commend itself to the favorable consideration of the guardian of such a restricted incompetent Indian, and doubtless is well within the discretion of the Secretary of the Interior to grant.

    For these reasons I am of the opinion that the Secretary of the Interior may act independently of the Probate Court and the guardian of the incompetent restricted allottee, and that you are not limited or restricted in the control and disbursement of restricted funds of individual Indians of the Five Civilized Tribes, by the orders of such court or by its failure or refusal to act, nor is the consent of the guardian necessary thereto.
 


 

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    To hold otherwise is to reach the absurd conclusion that the Secretary of the Interior in the exercise of his jurisdiction over the restricted Indian allottees, members of the Five Civilized Tribes, is subject to the control of the probate courts of the State of Oklahoma. Such a situation was never intended by Congress, is not justified by analysis of the law or supported by any authoritative decisions of the courts.

Solicitor.

OIL AND GAS ROYALTIES--
ASSIGNMENT

M-8370                                                                                                              August 15, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You may request my opinion with reference to the right of members of the Osage Tribe of Indians, Oklahoma, to assign oil and gas royalties accruing to them as members of that tribe.

    This question arises in connection with an attempted assignment, dated February 22, 1918, by one B. A. De Noya, Osage allottee No. 1154, a son of L. I,. De Noya, deceased allottee No. 1149, which assignment purported to transfer:

    "All of the right, title and interest, of said B. A. DeNoya, in and to the property, both real and personal of the estate of L. L. DeNoya, deceased, whether discovered, collected, or otherwise to Wm. Bawbell of Pawhuska,Oklahoma, with full possession thereof, and authority to collect, recover, receive and receipt for same, as fully as I might, including herein, all assets whatsoever of said estate accrued, or to accrue to me as one of said heirs, and all rights and benefits to be derived therefrom."
    The Osage Allotment Act of June 28, 1906 (34 Stat., 539), provided for an equal division of the lands and moneys belonging to this tribe among the tribal members as shown on a final roll to be prepared in accordance with the terms of that act. Each member received in allotment approximately600 acres of tribal land, of which 160 acres constituted the "homestead" and the remainder was designated as "surplus lands." The oil, gas, coal, and other mineral deposits, however, underlying the allotted lands were reserved for the benefit ofthe tribe at large. Certain restrictions against alienation, taxability, etc., were imposed against each class of land, and the Secretary of the Interior wasauthorized, in his discretion, to issue to adult members of this tribe capable of managing their own affairs a "certificate of competency," whereupon all restrictions were removed except as to the homestead lands. (Sec. 7, par. 2 of the act.) December 30, 1909, a certificate of competency was issued to B. A. De Noya and, he being of but one-eighth Indian blood, such restrictions as remained even against his homestead lands were removed by section 3 of the Act of March 3, 1921 (41 Stat., 1249). Other provisions of the earlier act being of greater import here, are reproduced below:
    "Sec. 3. That the oil, gas, coal or other minerals covered by the lands for the selection and division of which provision is herein made are hereby reserved to the Osage tribe for a period of twenty-five years from and after the eighth day of April, nineteen hundred and six; and leases for all oil, gas, and other minerals, covered by selections and divisions of land herein provided for, may be made by the Osage tribe of Indians through its tribal council, and with the approval of the Secretary of the Interior, and under such rules and regulations as he may prescribe: Provided, That the royalties to be paid to the Osage tribe under any mineral lease so made shall be determined by the President of the United States: *     *     *

    Sec. 4. That all funds belonging to the Osage tribe, and all moneys due, and all moneys that may become due, or may hereafter be found to be due the said Osage tribe of Indians, shall be held in trust by the United States for the period of twenty-five years from and after the first day of January, nineteen hundred and seven, except as herein provided:

    First. That all funds of the Osage tribe of Indians, and all the moneys now due or that may hereafter be found to be due to the said Osage tribe of Indians, and all moneys thatmay be received from the sale of their lands in Kansas under existing laws, and all moneys found to be due to said Osage tribe of Indians on claims against the United States, after all proper expenses are paid, shall be segregated as soon after January first, nineteen hundred and seven, as is practicable and placed to the credit of the individual members of the said Osage tribe on a basis of a pro rata division among the members of said tribe, as shown by the authorized roll of membership as herein provided for, or to their heirs as hereinafter provided, said credit draw interest as now au-
 


 

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OPINIONS OF THE SOLICITOR

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thorized by law; and the interest that may accrue thereon shall be paid quarterly to the members entitled thereto, except in the case of minors, in which case the interest shall be paid quarterly to the parents until said minor arrives at the age of twenty-one years: *     *     *

    Second. That the royalty received from oil, gas, coal, and other mineral leases upon the lands for which selection and division are herein provided, and all moneys received from the sale of town lots, together with the buildings thereon, and all moneys received from the sale of the three reservations of one hundred and sixty acres each theretofore reserved for dwelling purposes, and all moneys received from grazing lands, shall be placed in the Treasury of the United States to the credit of the members of the Osage tribe of Indians as other moneys of said tribe are to be deposited under the provisions of this act, and the same shall be distributed to the individual members of said Osage tribe according to the roll provided for herein, in the manner and at the same time that payments are made of interest on other moneys held in trust for the Osages by the United States, except as herein provided."

    Provision is also made in this act for deducting from the royalties received from oil and gas sufficient sums for the support of schools among theOsages, and for meeting the expenses of the agency maintained for their benefit, but nothing turns on those provisions here save that they show that the funds derived from this source do not become the property of the individual allottees until actually paid over to them or placed to their individual credit.

    In a supplemental act relating to the Osages-April 18, 1912 (37 Stat., 86)-we find a provision which reads:

    "That no land or moneys inherited from Osage allottees shall be subject to, or be taken or sold to secure the payment of any indebtedness incurred by such heir prior to the time such lands and moneys are turned over to such heirs." [Italic supplied.]
    While on the subject of legislation, attention may be invited to further provisions of the act of March 3, 1921, supra.
    "That all that part of the Act of June 28, 1906 (Thirty-fourth Statutes at Large, page 539), entitled 'An Act for the division of the lands and funds of the Osage Indians in Oklahoma. and for other purposes,' which reserves to the Osage Tribe the oil, gas, coal, or other minerals covered by the lands for the selection and division of which provision is made in that Act is hereby amended so that the oil, gas, coal, or other minerals covered by said lands are reserved to the Osage Tribe for the period ending April 7, 1946. *     *     *

    Sec. 4. That from and after the passage of this Act the Secretary of the Interior shall cause to be paid, at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a. certificate of competency $1,000 quarterly except *     *     * [Italic supplied.]

    When we come to consider the nature and extent of the interest acquired by individual allottees of the Osage Tribe in and to the oil, gas, coal, and other mineral deposits underlying the lands allotted to them, it is manifest from the legislation quoted herein that such deposits did not and have not become the property of such individual allottees, but those deposits remain the common property of the tribe, subject to lease by the tribal council, for the benefit of the tribe at large, under such rules and regulations as the Secretary of the Interior may prescribe. True, individual members did obtain a prospective right to share in the periodical distributions of royalties received from leasing the deposits mentioned, after certain authorized deductions therefrom had first been made. In the absence of specific legislation by Congress, which has not been had, prospective rights of this nature, even in the hands of those members of the tribe who have received "certificates of competency" or the restrictions against alienation of whose lands have otherwise been removed, are not assignable. To the contrary, Congress has specifically directed the manner in which the funds derived from this source shall be disposed of, viz, by payment to competent adults of the entire shares due them, either in their own right "or as heirs of deceased members," and by payments in behalf of incompetents and minors subject to further provisions of the act of March 3, 1921, supra, which, being immaterial here, have been omitted. Payment of these funds in any other manner, or to persons other than as authorized by these statutes, is not warranted. This is measurably reflected by
 


 

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that provision in section 7 of the act of April 18, 1912, supra, which directs that the shares due competent heirs of deceased Osage allottees "shall be paid to them without the intervention of an administrator."

    Again, and speaking generally, funds in the hands of administrative officers of the Government, whether for the benefit of Indians or otherwise, are not subject to attachment, levy, sale, execution, assignment, etc., in the absence of express legislation by Congress to that effect.

    I find no difficulty, therefore, in holding that members of the Osage Tribe, including those to whom certificates of competency have been issued or whose restrictions have otherwise been removed, are without power to assign their right to share in the oil and gas royalties and other funds accruing to them as members of that tribe, and, that such funds as and when due, can be paid only to such of these allottees or other heirs as may be competent; the shares due incompetent members to be further administered for their benefit, as specifically provided for in the act of March 3, 1921.

                                                                                                                                                        EDMUND BOOTH,

Solicitor.
Approved: ________________________
E. C. FINNEY, First Assistant Secretary.
 
OSAGE--RESTRICTED PROPERTY--RIGHTS

D-46929.                                                                                                                           September 30, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    February 11, 1920, this Department approved the last will and testament of Louis LaSarge, deceased allottee No. 1421 of the Osage Indian Tribe, wherein certain property accruing to him as a member of that tribe was devised, one-third absolutely to his wife, Letitia LaSarge, and two-thirds to Willian Bunnell trustee, in trust for Robert Louis LaSarge, a minor son of the decedent, some six years of age. You now request my opinion on the following question presented by the Commissioner of Indian Affairs:

    "Whether the testamentary trustee under the will involved is entitled to the present possession in trust of the entire two-thirds interest devised in trust to him and free from all restrictions?'
    With the devise to the widow, a white woman, we are not now concerned, but the devise to the trustee, as found in paragraph 4 of the will in question, being of greater import here, is reproduced verbatim:
    "Fourth: I hereby give, devise and bequeath the full two-thirds of all the said rest, residue and remainder of the property of which I may die seized and possessed both real and personal wheresoever situated being principally as above mentioned in Paragraph Three hereof to William Bunnell of Arkansas City, Cowley County, Kansas, in trust for the uses and purposes herein mentioned to have and to hold, possess, manage and control and operate the same with full power in my said Trustee or successors of him to obtain, receive and hold, possess and manage all the incomes, rents, interest and profits derived from the management, operation and control thereof with full power in my said trustee or the successors of him to rent, lease, manage, handle, invest and loan and reinvest and reloan said property without the authority or order of any Court and with full power to invest or reinvest said moneys coming into his hands as said Trustee in the best manner as he may deem to the best interest of the Estate and trust hereby created and with full power to pay all taxes, interest, insurance and keep up repairs on all property that may come into his hands as such, hereby relieving the Trustee from any liability in any errors in judgment in the management and control of any investments thereof so long as he acts in good faith and I further direct that said trustee as soon after my decease as can conveniently be done apply to the proper Court to have a bond fixed as such Trustee of said Estate and Trust and that for his services thereabouts or his successors in trust be allowed such sum of money from time to time as to the Court fixing said bond shall seem meet and proper and that during the minority of my Son Robert Louis LeSarge of Menteca, California said Trustee out of said trustee property and funds and particularly the profit and income therefrom pay out and use for said son such sum or moneys from time to time as are necessary and proper for said child's maintenance and education and comforts suitable to one in his station of life, considering the amount of the estate or other facts and circumstances ordinarily to be given consideration in determining such maintenance, education and comforts and luxuries and that upon my said son reaching his majority, the trustee



 

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to deliver over to my said son all of said estate and trust property real and personal and all incomes, profits and incomes thereof less the necessary expenses incurred and necessary for such compensation as may by the court be allowed, and said estate and trust property real and personal thereupon be delivered and vested in my said son Robert Louis LaSarge to have and to hold the same to him absolutely and forever."

    A reference to paragraph 3 of the will discloses that the rest and residue of the decedent's property consisted mainly of his allotment of 654 acres as a member of the Osage Tribe and all other property and assets accruing to him as a member of that tribe including oil and gas royalties, bonus, and funds due or to become due from the United States. Prior to April 18, 1912, the Osage Indians were without power to dispose of their restricted property by will, but section 8 of the act of that date (37 Stat., 86), provides:
    "That any adult member of the Osage Tribe of Indians not mentally incompetent may dispose of any or all of his estate, real, personal, or mixed including trust funds, from which restrictions as to alienation have not been removed, by will, in accordance with the laws of the State of Oklahoma: Provided,That no such will shall be admitted to probate or have any validity unless approved before or after the death of the testator by the Secretary of the Interior."
    The Supreme Court of the United States, in dealing with a case involving leases covering Osage allotted Indian land, had occasion to consider the scope of the above provision and in La Motte v. United States (254U.S., 570-78), it is said:
    "The defendants insist that under the approved wills the lands passed to the devisees freed from the restrictions. If so, the leases did not require the Secretary's approval. Both courts held that the lands continued to be restricted. The question is not free from difficulty, but we think it must be ruled the other way, Strictly speaking a devisee takes under the will as an instrument of conveyance, and not by descent as an heir."
    After reproducing section 8 of the act of 1912 as above, the court further said:
    "This provision is broadly written, is in terms applicable to restricted lands and funds, and enables the Indian to dispose of all or any part of his estate by will, in accordance with the state law, if his will be approved by the Secretary. True, it does not say that a disposal by an approved will shall put an end to existing restrictions, but that is an admissible, if not the necessary, conclusion from its words. After its enactment the Secretary of the Interior construed it as having that meaning, and it was administered accordingly in that department up to the time of this suit. And that Congress intended it should have that meaning is at least inferable from a general act of the next session respecting wills by Indian allottees and their approval by the Secretary (c. 55, 37 State. 678); for that act, while providing that 'the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period,' expressly excepted the Osages from its reach. These matters apparently were not brought to the attention of the courts below. We regard them as of sufficient weight to put the question at rest."
    Had the matter remained thus there would be no doubt about the right of the trustee to the custody and control of certain funds aggregating some $3,700, now in the hands of the Government, be longing to Robert Louis LaSarge, the minor referred to. These funds were derived mainly from royalties on oil and gas and bonus paid for the sale of leases covering allotted Osage Indian land and by the act of March 3, 1921 (41 Stat., 1249), Congress made further provision with respect to funds of this character, accruing to the Indians of the Osage Tribe. In section 4 of that act we find:
    "That from and after the passage of this Act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members under twenty one years of age personally in charge $500 quarterly out of the income of said minors all



 

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of said quarterly payments to legal guardians and adults, not having certificates of competency to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma State, county or school bonds, or place the same on time deposits at interest in banks in the State of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe." [Italic supplied.]

    Attorneys representing the trustee in the instant case urge that there is a fundamental difference between a trustee and a guardian in that with the former the legal title is usually vested in the trustee, while with the latter the legal title remains in the
ward, and, hence, as the act of March 3, 1921, specifically mentions parents, natural guardian, and legal guardians, but makes no mention of trustees, then the latter are to be excluded under the maxim expressio unis est exclusio alterius. It is also contended that as Robert Louis LaSarge is not "an enrolled member of the Osage Tribe," the act of March 3, 1921, does not apply to him.

    It is admitted there is a broad distinction between a trustee and a guardian as those terms are commonly understood and applied, although it does not necessarily follow that the legal title to the property involved is always in the trustee and even as to trustees holding legal title their power over the subject matter is not unlimited, being confined to the terms of the instrument creating the trust and subject to supervision, where need be, of the proper court of equity. These distinctions, however, are largely technical and frequently superficial; for, whether custodians of the property of another be termed trustees, guardians, or otherwise, the duty remains the same to supervise and manage the estate for the benefit of the ward or the cestui que trust as the case may be. For all practical purposes, therefore, we may lay aside for the time being at least technical distinctions of this character.

    When we analyze the provisions of the act of March 3, 1921, supra, no doubt exists about the intent of Congress with respect to the income from certain sources accruing to the minor and incompetent adult members of the Osage Tribe. Paraphrasing the language used in that act and omitting data not immediately here relevant, it is apparent that from and after the approval of that act the income due such members, whether in their own right or as heirs of deceased members, from the interest on trust funds, the bonus received from the sale of leases, and royalties received during the previous fiscal quarter, is to be paid $1,000 quarterly to adults and $500 quarterly in behalf of minors, to the parents or natural guardians or legal guardians actually having such minor members under 21 years of age personally in charge; further, that the remainder of the shares due such members after paying all taxes is to be invested in certain classes of securities mentioned in that act, or deposited at interest in bank to their credit; all under such rules and regulations as the Secretary of the Interior may prescribe.

    If any doubt remains about such intent we need but turn to the printed hearings on that measure when it was pending before Congress. See House Report No. 1278, 66th Congress, 3d Session. Therefrom it will be seen that the annual income accruing to the Indians of this Tribe was then approximately $10,000 (during the past year it was around $12,000); under prior legislation this income was payable quarterly, the shares due minors being paid to their parents if living. This income was largely spent in riotous living and generally wasted. Congress decided to adopt a different policy and by the act of March 3, 1921, directed that a quarterly allowance of $1,000 be paid to the incompetent adults and $500 per quarter in behalf of minors. The remainder of the income due each of such members to be conserved and invested for their benefit in the manner provided for in that act. A broad authority is placed in the Secretary of the Interior to pay the quarterly allowance in behalf of minors to the parents or to the natural guardians or the legal guardians actually having such minor members personally in charge; but no such authority or discretion rests as to the remainder which is to be conserved and invested for the future benefit of such members.

    About the power of Congress over the subject matter there can be no dispute. It may even reimpose restrictions where they have once expired (Brader v. James, 246 U.S., 88-89). To hold that "trustees" in behalf of Osage Indian minors, however appointed, as distinguished from "guardians" do not come within the act of March 3, 1921, would, to a large extent, defeat the evident purpose and intent of that act. As to the shares due minors, therefore, I am of the opinion that the duty plainly rests with the Secretary of the Interior to distribute to the custodian of such minors $500 per quarter and to invest the remainder for the benefit of such minors in the manner as provided for by law. Whether such custodians be the parents, natural guardians, trustees or otherwise, the rule remains the same.

    As to the second contention-membership in the Osage Tribe-I had occasion in my opinion of January 4, 1922 (M. 4017), to advert at some
 


 

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NOVEMBER 1, 1922

length to this matter. Therein it was pointed out that the act of June 28, 1906 (34 Stat., 539) directed the preparation of a final roll of the Osage Indians among whom the tribal lands and funds were to be divided per capita. By the terms of that act children born after July 1, 1907, were to be excluded from participating in such distribution in their own right. The oil, gas and other minerals underlying the Osage Lands, from which most of the tremendous wealth accruing to this tribe is derived, was to remain the common property of the tribe, the income from which was to be distributed quarterly per capita to the enrolled members, the shares due deceased members to be paid to their heirs. Such communal ownership was to continue until April 8, 1931, whereupon the corpus of such property was to then become individualized. By the act of March 3, 1921, supra, however, this date of individualization was postponed to April 8, 1946, and provision was also made as previously herein indicated, for a different disposition of the income derived from such property, particularly as to minors and incompetents. As time passes naturally the enrolled members of this tribe will die, whereupon more and more this valuable property right will come, by inheritance or otherwise, into the hands of those whose names do not appear on the final roll, in many cases minors of tender age and not infrequently full-blood Indians. The administration of this vast estate rests largely with the Secretary of the Interior and under existing law supervision is continued until April 1946. Minor Osage Indians born since July 1, 1907, whose names do not appear on the final roll, are just as much entitled under the law to the protecting hand of the Government as those whose names do perchance appear on such roll. This is reflected in no small measure by that provision in section 6 of the act of April 18, 1912, supra, which directs that the shares due minor heirs, "including such minor Indian heirs as may not be tribal members," shall be paid into the Treasury of the United States and placed to the credit of the Indians upon the same conditions as attach to the segregated shares of the Osage national fund.

    In the closing paragraph of my prior opinion regarding this matter it was said:

    "I am of the opinion therefore that the payments due incompetent Indians of this tribe under the Act of March 3, 1921, whether adults or minors, either with or without legal guardians, and whether their names appear on the final roll or not, are subject to distribution and investment, under supervision of the Superintendent, pursuant to such rules and regulations as the Secretary of the Interior may prescribe, and that the legal guardians appointed by the courts of the State, where such action has been had, are bound by the requirements of the Federal statute in this respect."
    I have since seen no occasion to alter the fore going view and hence am of the opinion that the restricted funds due Robert Louis LaSarge as an Osage Indian are subject to disposal as provided for in the act of March 3, 1921, supra, and that the trustee named in the will referred to is not entitled to the control and custody of the funds accruing to such minor, other than the quarterly allowance of $500 which may be paid either to said trustee as the guardian of said minor, or to the parent or natural guardian as the Secretary of the Interior may deem best.

                                                                                                                                                          EDWIN BOOTH,

Solicitor.
Approved: October 2, 1922.
F. M. GOODWIN, Assistant Secretary.

OSAGE COUNTY-LIQUOR SALES

M-8860                                                                                                                November 1, 1922.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the recommendation of the Commissioner of Indian Affairs, the Attorney General is to be requested to decide whether certain liquids kept for sale by druggists in the Osage country are intoxicating liquors within the meaning of the law forbidding the possession of such in Indian country; and an opinion of the Solicitor for this Department is required, pursuant to the practice, to accompany the submission of the question. In the absence of the Solicitor, the duty devolves upon me by direction of the Acting Secretary.

    The question arises in this manner: By act of June 30, 1919 (41 Stat., 4), Congress provided:

    "That on and after July 1, 1919, possession by persons of intoxicating liquors in the Indian country or where the introduction is or was prohibited by authority of the Federal statute, shall be an offense and punished in accordance with the provisions of the acts of July 23, 1892, 27 Stats., p. 260, and January 30, 1897, 29 Stats., p. 506."



 

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    The act of March 2, 1917 (39 Stat., 983), provides:

    "That all of Osage County, Oklahoma, shall hereafter be deemed to be Indian country within the meaning of the acts of Congress making it unlawful to introduce liquors in the Indian country."
    Druggists in Osage County have in their possession, and offer for sale, spirits of nitre, beef, iron and wine, and lyko. It is said that these liquids are purchased by the Indians and that intoxication not uncommonly results. The Superintendent of the Osage Nation apparently desires prosecution of these druggists under the first-named statute, based on mere possession of these or similar articles. A former United States attorney for that district was of opinion that the term "intoxicating liquor" embraces these medicinal compounds. The present United States attorney entertains the opinion that they are not per se, but that if druggists are actually selling these liquids in quantity indicating that they are to be used for beverage purposes (it being assumed that they are capable of producing intoxication by reason of high alcoholic content), such offenders may be prosecuted under another law, to wit, the act of January 30, 1897 (29 Stat., 506), which makes it unlawful to
    "sell, give away, dispose of, exchange or barter any malt, spirituous or vinous liquors, including beer, ale and wine, or any other ardent or intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compounds, composition or any article whatsoever, under any name, label, or brand which produces intoxication to an Indian, etc."
    It is not useful to resort exhaustively to decisions of courts in arriving at a conclusion because the courts have differed. For instance, an Arkansas court holds that a combination of numerous drugs and chemicals preserved in a dilution of alcoholic spirits containing one-third alcohol, is a compound or preparation of "intoxicating liquor" (Gostorf v. State,39Ark. 450); while other courts have held that bay rum, although containing sufficient alcohol to intoxicate, is not an intoxicating liquor (In re Intoxicating Liquor Cases, 25 Kans. 751); nor cologne (Id). A Kansas court sustained a verdict that Jamaica ginger is an intoxicating liquor (State v. Miller, 92 Kans., 994), but a Mississippi court held, in Bertrand v. State (73 Miss., 51), that:
    "In the prosecution of a druggist for the sale of essence of ginger, an instruction that if the jury believed from the evidence that he sold essence of ginger and that it, when diluted with water and drunk to excess, would produce intoxication, they should convict, wholly ignoring his motive in the sale, and whether, when he sold it, it was medicine, known and recognized as such, and incapable in its then state of being used as a beverage, was error. A standard medicine prepared according to a standard formula laid down in the United States Dispensatory, and used by physicians throughout the United States as a medicine in their practice, and which without dilution cannot be used as an intoxicant, is not an intoxicating liquor in itself, and its sale as a medicine is not a sale of intoxicating liquor, though it may be so diluted with water that it may be drunk in quantities sufficient to become an intoxicant."
    In Arbuthnot v. State. (56 Tex. Cr. R., 517), the Texas Court of Criminal Appeals held:
    "The mere fact that liquor sold was popularly known as a medicine and its formula prescribed in the United States Dispensary or like standard authority, would not prevent it from being an intoxicating liquor nor would the fact that the distinctive character and effects of intoxicating liquors had been eliminated, and its use as a beverage rendered undesirable by other ingredients render it any the less an intoxicating liquor within the statute."
    But a Georgia court in Roberts v. State (4 Ga., App., 207), held:
    "Medicinal, toilet and culinary preparations recognized as such by standard authority (such as the United States Dispensatory) not intended to be used as intoxicating beverages, and not reasonably capable of being so used, such as paregoric, essence of lemon, essence of ginger, bay rum, cologne, wood alcohol and the like, are not embraced within the terms 'alcoholic and spirituous liquors' although such articles are liquid, contain alcohol, and may produce intoxication."
    In the Intoxicating Liquor Cases, supra, the court said:
    "Whatever is generally and popularly known as 'intoxicating liquor,' such as wine, beer, gin, etc., is within the prohibition of the statute, and may be so declared as a matter of law by the court; and whatever, on the other hand, is



 

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generally and popularly known as medicine, or an article for the toilet or culinary purposes, duly recognized or described in the United States Dispensary or like standard authority, may be declared as a matter of law not to be within the statute."

    Without going quite as far, I am of opinion that such articles as are under consideration may not be declared as a matter of law to be within the statute.

    Beef, iron and wine is a standard preparation of recognized medicinal value. It contains, of course, sherry wine, and its stimulating qualities constitute one of the principal therapeutic agents for the accomplishment of that for which the compound is commonly prescribed. Sweet spirits of nitre is a solution of ethyl nitrite in alcohol. It likewise for years has been a standard medicine. The alcoholic content is large-something over 91%; but the ether element is also comparatively high so as to render the compound as it is sold over the counter incapable of use for beverage purposes to the extent of intoxication without producing dire results, even death. As a matter of fact it appears in this record that the ethyl nitrite is eliminated when the purchaser desires to use it to produce intoxication. This is done by the application of heat. Lyko is a trade name for some proprietary medicine manufactured in Kansas City. I have been unable to ascertain its composition or alleged medicinal properties, by inquiry at the Public Health Service or other sources of information; and as to it I can express no opinion other than to suggest that if analysis should disclose that it is in reality a poor grade of liquor masquerading as a patent medicine it may fall within the condemnation to which the court subjected Hostetter's Bitters and other cordials and drugs in United States v. Stafford (20 Fed., 720). But as to the others I am clearly of opinion that it should not be said as a matter of law that they are intoxicating liquors so as to make their mere possession a crime. They have a legitimate sphere of usefulness and any well equipped pharmacy must carry them in stock for proper use. Indeed, as to spirits of nitre, it may be pointed out that the article which the druggist keeps is one thing and the article which the consumer drinks is actually another; that is he purchases one article purely medicinal in its composition and by manipulation converts it into another article, an intoxicating beverage. If it be unlawful to possess material that may be converted into a beverage whose use is condemned, one could not safely possess in the Indian country many of the common articles of daily need. This would be especially true in the case of drug stores. It is probably safely within the facts to say that no less than 80% of the articles on a druggist's shelves for medicinal, culinary or cosmetic purposes contains enough alcohol by volume to render them potentially intoxicants. If, however, a druggist, knowing these potentialities, sells such articles to an individual in such quantities as reasonably to indicate that the purchase is made for an ulterior purpose, i.e., to use these articles as intoxicating liquors, the law is amply sufficient to meet such a situation. I have in mind the act of 1897.

    In short, I am of opinion that the present United States Attorney for the Eastern District of Oklahoma has the right conception of the law applicable to such facts as this record presents.

                                                                                                                                    C. EDWARD WRIGHT,

Acting for the Solicitor.
Approved: November 1, 1922.

E. C. FINNEY, First Assistant Secretary.

TAXABILITY AND ALIENABILITY--ALLOTTED
LANDS

49 L.D. 348                                                                                                         November 13, 1922.

INDIAN LANDS-CHEROKEE LANDS-ALIENATION-ALLOTMENT

    Restrictions against alienation on land allotted to Indians are more in the nature of personal disabilities imposed on the allottee than covenants running with the land: a matter of personal privilege which Congress may enlarge or restrict as and when it sees fit.

INDIAN LANDS-CHEROKEE LANDS-ALIENATION-ALLOTMENT

    In the absence of specific legislation by Congress to the contrary, lands allotted in severalty to Indians are nontaxable prior to the removal of restrictions against alienation, even though the statutory period of.exemption originally provided for may have expired.

INDIAN LANDS-CHEROKEE LANDS-ALIENATION-ALLOTMENT VESTED RIGHTS

    While Congress may lengthen or shorten the period of restrictions against alienation as and when it may see fit so to do, yet the exemption from taxation for the prescribed period is a definite and fixed property right, which having once vested in the allottee, Congress can not thereafter alter or take away.

INDIAN LANDS-FIVE CIVILIZED TRIBES-ALIENATION ALLOTMENT-INDIAN HOMESTEAD ACT OF MAY 27, 1908

    While sections 1 and 4 of the act of May 27, 1908, which provided for the allotment of lands to the Five Civilized Tribes, removed all restrictions from all lands, including homesteads, allotted to intermarried whites, freedmen and mixed-bloods having less than one-half Indian blood, and directed that all lands from which the restrictions shall have been removed should be subject to taxation, yet the homesteads held by the original allottees. are not subject to taxation prior to the expiration of the statutory period of exemption, and by the proviso to section 9 of the act the restrictions are continued during that period as long as the title to such lands remains in the hands of the full-blood Indian heirs of such allottees.
 


 

72

DEPARTMENT OF THE INTERIOR

NOVEMBER 13, 1922

Booth,  Solicitor:

    On the recommendation of the Commissioner of Indian Affairs you have referred to me for consideration a communication in the nature of a petition and brief from one R. J. Scott, a Cherokee Indian residing at 508 1/2 North 11th Street, Muskogee, Oklahoma, involving mainly the question of taxability and alienability of lands allotted to members of the Cherokee Tribe. The Indian Office requests advice as to what action, if any, should be taken in the matter.

    The issues here involved turn primarily on several lengthy statutes, the pertinent provisions of which will shortly be considered as briefly as possible; but before doing so, it may be well to first dispose of one suggestion by Mr. Scott wherein he urges the Secretary of the Interior, under section 65 of the act of July 1, 1902 (32 Stat., 716, 725), to--

issue a restraining order to enjoin and perpetually restrain the State and County officials of the State of Oklahoma from assessing or collecting any taxes on any allotted lands either homesteads or the surplus lands, and to quiet title to all tax deeds to all land that has been sold for State and County taxes, and against all other encumbrances, made either voluntarily or involuntarily, while the title remained in the original allottee.
    But the section of the statute referred to vests no such authority or powers in the Secretary of this Department. That section reads simply:
    Sec. 65. All things necessary to carry into effect the provisions of this act, not otherwise herein specifically provided for, shall be done under the authority and direction of the Secretary of the Interior.
    Nor have such comprehensive powers as those referred to by Mr. Scott been conferred on the Secretary of the Interior elsewhere in the act of July 1, 1902, or in any other statute, whether relating to the Indians or otherwise. The relief sought, therefore, if to be had at all, must come through the courts, but whether with or without the aid of the Department of Justice rests in the sound discretion of the administrative officers in charge.

    As to the merits of the issue, the lands belonging to the Cherokee Tribe have been allotted in severalty, pursuant to an agreement with these Indians, as found in the act of July 1, 1902, supra. Under it each member received an allotment of land equal in value to 110 acres of the average allottable land in the Cherokee Nation. (Sec. 11.) That act further provides:

    Sec. 13. Each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to forty acres of the average allottable lands of the Cherokee Nation, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. Separate certificate shall issue for said homestead. During the time said homestead is held by the allottee the same shall be nontaxable and shall not be liable for any debt contracted by the owner thereof while so held by him.
    Sec. 14. Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of this Act.

    Sec. 15. All lands allotted to the members of said tribe, except such land as is set aside to each for a homestead as herein provided, shall be alienable in five years after issuance of patent.

    The remainder of each individual allotment, over and above the homestead, is commonly referred to as surplus, or surplus lands. By invoking that provision in section 13, supra,, which directs that during the time the homestead is held by the allottee it shall be nontaxable and not liable for any debt contracted by the allottee, and the one from section 14 which declares that "lands allotted to citizens shall not in any manner or at any time be encumbered, taken or sold," etc., Mr. Scott now urges that all lands, both homestead and surplus, are exempt from taxation, alienation or encumbrance.

    We are not justified, however, in thus selecting isolated clauses from the act in utter disregard of other clauses of equal weight and import, so as to thereby reach a conclusion at variance with the plain intendment of the law. The statute must be construed as a whole (48 U.S., 611, 622) and in the light of its obvious policy (241 U.S., 432). Viewed thus, the intent of the above legislation becomes plain. The homestead remains inalienable and nontaxable during the lifetime of the allottee, not exceeding, however, twenty-one years from the date of allotment. The surplus is likewise inalienable and nontaxable for a period of five years from the date of patent in each case. Inalienable, as
 


 

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therein used, of course, prohibits both voluntary and involuntary alienation and hence these lands while restricted are not subject to levy, sale or execution for debts, whether for taxes or otherwise. Before even the five-year restricted period as to the surplus lands expired, however, Congress made further provision with respect to the Five Civilized Tribes, and in section 19 of the act of April 26, 1906 (34 Stat., 137, 144), we find:

    "Sec. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty five years from and after the passage and approval of this Act, unless such restriction shall, prior to the expiration of said period, be re moved by Act of Congress; * * * That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee." [Italics supplied.]
    It will be observed of course that the foregoing applies only to full-bloods. The situation remained thus, legislatively, but a comparatively short time only when the act of May 27, 1908 (35 Stat., 312), came into being, and from which we read--
    "That from and after sixty days from the date of this Act the status of the lands allotted heretofore or hereafter to allottees. of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites,. as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said allottees enrolled as mixed blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. All homesteads of said allottees. enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nine teen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this Act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this Act."
    Two brief provisions found in other sections of the same act will encompass the legislation germane to the subject matter here:
  "Sec. 6. *     *     *  Provided, That no restricted lands of living minors shall be sold or encumbered, except by leases authorized by law, by order of the court or otherwise.

  *     *     *     *     *     *     *     *     *    *

    "Sec. 9.*     *     * That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee."

    These later statutes, had since the original agreement with the Cherokees under which their lands were allotted in severalty, manifestly a clear intent on the part of Congress in so far as it rested in the power of that body so to do, to make alienability and taxability coexistent factors, and for a long time the view prevailed, rather generally, that these two factors always went hand in hand, that is, removal of restrictions against alienation also removed the exemption from taxation. The latter condition, however, does not always follow even though Congress may have specifically so directed. See Choate v. Trapp (224 U.S., 665, 673), wherein the Supreme Court said:
    "But the exemption [from taxation] and non alienability were two separate and distinct subjects. One conferred a right and the other imposed a limitation. The defendant's argument also ignores the fact that, in this case, though the land could be sold after five years it might remain nontaxable for 16 years longer, if the Indian retained title during that length of time. Restrictions on alienation were removed by lapse of time. He could sell part after one year, a part after three years and all except homestead after five years. The period of exemption was not co-incident with this five-year limitation. On the contrary the privilege of
 

 

74

DEPARTMENT OF THE INTERIOR

NOVEMBER 13, 1922

non-taxability might last for 21 years, thus recognizing that the two subjects related to different periods and that neither was dependent on the other. The right to remove the restriction was in pursuance of the power under which Congress could legislate as to the status of the ward and lengthen or shorten the period of disability. But the provision that the land should be non-taxable was a property right, which Congress undoubtedly had the power to grant. That rightfully vested in the Indians and was binding upon Oklahoma."

    To the same effect are the decisions by the same court in Gleason v. Wood and in English v. Richardson (224 U.S., 679 and 680). These all relate to the Five Civilized Tribes, and the same view has also been upheld as to lands allotted to Indians of other tribes. See Morrow v. United States (243 Fed., 854, 858), wherein it was said, "There is no question that the Government may, in its dealings with the Indians, create property rights which, once vested, even it can not alter." This gives us a clearer understanding of the true situation. When deduced to its final analysis, it means simply that restrictions against alienation on land allotted to Indians are more in the nature of personal disabilities imposed on the Indians rather than covenants running with the land; a matter of personal privilege so to speak; one which Congress may enlarge or restrict as and when it sees fit so to do. Tiger v. Western Investment Company (221 U.S., 226), and Choate v. Trapp, supra. Congress can impose restrictions even after they have once expired. Brader v. James (246 U.S., 88), But with these we are not here concerned.

    Removal of the restrictions, in itself, does not deprive the Indians of any right of property in his land. He is not compelled thereby to incumber or alienate his allotment, as action of this kind simply enlarges his personal privileges and enables him to deal with his property as he may feel disposed. Of such action he can not be heard to complain. But when we attempt to couple removal of restrictions with the right of the State to tax, we may or may not thereby invade a property right vested in the Indian at the time he received his allotment. Herein lies the true criterion of the right of the State to tax. Speaking generally, if the statutory period of exemption has expired when the restrictions are removed, then the right to tax arises. If such period has not expired, then the lands are not taxable while in the hands of the original allottee, and sometimes even in the hands of his. heirs. Further, until the restrictions are removed the lands are not taxable even though the statutory period of exemption originally provided for may have expired. Otherwise, involuntary alienation would soon deprive the Indian of his property in spite of the restrictions.

    With these things in mind we return to the present situation with respect to the Cherokees. The tribal patents or deeds for the lands allotted in severalty bear varying dates of issue. Without at least the dates of these patents in individual cases it is impossible of course to state definitely just when the statutory period of disability as to alienation or taxation begins. The five year period as to the surplus of each allotment has long since expired. Upon removal of the restrictions, therefore, as to such lands, they then became taxable. As to homesteads in the hands of original allottees, these are still nontaxable during the twenty-one years from the date of allotment even though the restrictions may have since been removed. Whether the restrictions have been removed or not depends largely on the degree of Indian blood in each case, and to some extent also on the age of the allottee; that is, whether an adult or a minor. Thus, as to full-bloods, by section 19 of the act of April 26, 1906, supra, Congress continued the restrictions on all of their allotted lands both homestead and surplus for twenty-five years from the date of that act; that is, until April 26, 1931. The act of May 27, 1908, supra, reiterates this as to full-bloods and also imposes a like restriction as to enrolled mixed bloods of three-quarters or more of Indian blood, including minors. The proviso to section 6 of the latter act, supra, carries out this intent with respect to minors.

    Section 1 of the act of May 27, 1908, supra, removed all restrictions from all lands .including homesteads allotted to intermarried whites, freed men, and mixed-bloods having less than one-half Indian blood, and section 4 of the same act directs that all land from which the restrictions have been removed shall be subject to taxation, yet, from the doctrine as laid down by the Supreme Court in the Trapp case, the homesteads while held by the original allottees are not subject to taxation until the statutory period of exemption has expired. Again, while section 9 of the act of May 27, 1908, declares that the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions against alienation of said allottee's land, yet the proviso immediately following that declaration continues the restrictions in the hands of full blood Indian heirs, thereby rendering such lands exempt from taxation. Parker v. Richards (250 U.S., 235, 239).

    Manifestly it would be useless here to attempt to point out all the instances in which lands allotted to members of this tribe are taxable or nontaxable, as the case may be. Such can best be determined
 


 

75

OPINIONS OF THE SOLICITOR

NOVEMBER 29, 1922

from the facts connected with each particular case as and when presented. Sufficient general fundamental principles have been pointed out, however, to enable the law to be applied to each individual case, thus rendering it comparatively easy to determine whether the particular lands involved are taxable or not. If concrete cases in which it is believed that the State is unlawfully taxing lands allotted to these people are brought to the attention of the Indian Office, even though the restrictions against alienation have been removed, then that Bureau should consider the advisability of recommending that the Department of Justice aid such allottees in the protection of their rights.

    For his information in connection with this matter, a copy of this communication will be forwarded to Mr. Scott at Muskogee.

Approved: _______________________
F. M. GOODWIN, Assistant Secretary.

DISBURSEMENT OF TRIBAL FUNDS

M-8971                                                                                                                 November 29, 1922.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    On recommendation of the Commissioner of Indian Affairs my opinion is requested in the matter of the disbursement of certain individual and tribal funds, held in the office of the Superintendent of the Five Civilized Tribes, to the heirs of the following Choctaw and Chickasaw Indians: Maggie B.Jones, John S. Adams, George F. McGahey, Boon Holford, and John A. Cunningham.

    The superintendent has made heirship findings in each of the above cases, showing who are entitled to the funds in question, based on the presumption that the Indians are dead, and requests approval of said findings; also that the Cashier and Special Disbursing Agent of his office be authorized to disburse the funds accordingly.

    It appears that the Indians named disappeared from their homes and vicinity and for more than seven years have not been seen or heard of by members of their families or otherwise. Various reasons are advanced for presuming them to be dead.

    The Indian Office concludes that there is no direct or positive evidence ,that the Indians are dead, which, taken in connection with numerous decisions cited, and in view of the provisions of the act of June 14, 1918 (40 Stat., 606), leaves that office in doubt as to authorizing the disbursement of the funds in question to the heirs, especially as to the individual funds held to the credit of said Indians. The precise question submitted is "as to whether the individual Indian funds held by the superintendent to the credit of or for the benefit of Maggie B. Jones, John S. Adams, George F. McGahey, Boon Holford, and John A. Cunningham, and the undistributed per capita shares of tribal funds due in said cases should be distributed and paid out to the heirs as found by the office of the Superintendent of the Five Civilized Tribes, and upon the presumption of the death of the above named Indians, or whether said funds should be withheld until the matters of death and heirship are determined by the probate courts of Oklahoma, or the fact of the deaths of said persons are affirmatively established by judicial decree."

    Careful analysis of the decisions cited by the Indian Office shows that they do not necessarily control the present situation. In the leading case cited, that of Scott v. McNeal (154 U.S. 34), it subsequently transpired that the Indian who was presumed to be dead after he had been absent and not heard from for seven years was in fact alive. Under the facts of that case the question directly at issue was as to how the rights of a person were affected by proceedings on the presumption of his death when he was in fact alive, the holding being that such proceedings were void. The Indian Office states that there is no direct or positive evidence that the Indians named in the present instance are dead. It is clear that if there were such evidence there would be no occasion for invoking the rule as to presumption of death. On the other hand, and which is more to the point so far as the decision in the Scott v. McNeal case is concerned, there is no evidence of any kind that the Indians in the instant cases are alive, and which might serve to cast doubt upon the proposition of invoking the rule as to presumption of death arising from absence.

    The case of Willie Hawkins, Creek Freedman, cited by the Indian Office, is more to the point. There the question was put up to the Comptroller of the Treasury for advice as to whether "payment of the equalization funds to the credit of the account of Willie Hawkins may be made to his heirs," the evidence showing that he had been absent from home and had not been seen or heard of for nearly eight years. There was also submitted with the evidence and finding of heirs in that case the finding and decree of the District Court for McIntosh County, Oklahoma, that Willie Hawkins was dead, which finding was upon the evidence that he had been absent and not heard from for more than seven years. The Comptroller, after setting forth the facts, advised that the funds involved might be distributed and paid to the heirs as found. Just

 


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