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526

DEPARTMENT OF THE INTERIOR

FEBRUARY 7, 1935

due periodically after the execution of a contract by the insurance company, which contract the insurance company wrongfully failed to execute at the appointed time. As in the instant case, the particular contractual liability to pay money, was dependent upon another act of the promisor which the promisor failed to perform. The court held:

    "The beneficiary in the instant case could not recover at law for the various monthly installments by separate suit for the reason that the insurer's liability for the monthly installments was to be fixed by a contract, which it refused to execute. We, therefore, think that, where the insurer breached the policy contract by refusing to execute the supplementary contract, it became liable to the plaintiff in the damages. The measure of damages is the loss sustained, which is the present value of the supplementary contract. This value is ascertained by reducing the future payments to their present worth at the date of breach, at the legal rate of interest * * * and interest on this sum from the date of breach at the legal rate of interest."
    In accord with the foregoing cases are: Scientific American Compiling Department v. Gillespie, 4 Ala. App. 590, 587 So. 756; Williston on contracts, section 1410 and authorities cited.

    Ordinarily the question whether failure to pay a single installment in a contract requiring installment payments amounts to a breach of the entire contract, entitling the injured party to sue for the loss of future installments, is a question for the jury. William Wharton, Jr. & Co. v. Winch, 140 N. Y. 287, 35 N. E. 589. It is submitted, however, that in the instant case the breach is not a breach of one installment, which, if occurring after the completion of construction, might be held to give rise to an action only for that installment, but as a matter of fact is a breach of the obligation to complete construction which is a condition precedent to all installments. It is believed, therefore, that as a matter of law the licensee has breached the entire contract and is liable for the entire damages thereby caused, including all installment payments to become due in the future.

    Even if the question of whether one or more suits must be brought to recover the sums in question could be regarded as not entirely settled by past decisions, it would be better policy to bring an action immediately for the total amount. Failure to bring suit for the entire damages may have the effect of precluding a second action when further installments become due. Bakas v. Hollingshead, 184 N. Y. 211, 3 L. R. A. (S.N.) 1042. On the other hand, if suit for the entire damages is brought, and the court permits the assessment of damages only to cover royalties that would have accrued at the time of suit of of judgment, the right to future damages will be confirmed. The licensee's liability to periodic payments would have the same practical significance as liability for a lump payment.

    The foregoing analysis assumes throughout that the Flathead power site license is in truth a license and not a lease. This assumption is amply borne out by the authorities. See Tiffany, Landlord and Tenant, sections 7, 169 (b).

    Finally, it may be noted that an action at law for damages arising from breach of contract involves only the question of whether or not the licensee and its guarantor are in default, and if they are, what the measure of damages may be. It does not confer upon the court any power to prescribe terms for the sale by the licensee of its improvements and property. The licensee remains in possession of its easement and improvements. It may, however, be dispossessed, as has already ben indicated, by condemnation proceedings, before or after the conclusion of the action for damages.

    It is likely that a condemnation award in favor of the licensee for the taking of the licensee's easement, when the licensee is in default, would involve a sum less than the damage award against the licensee and its guarantor for breach of contract. This possibility should lead the licensee and its guarantor to offer to surrender their present license and improvements upon the power site in exchange for a waiver of damages. In the event of such a waiver, the Flathead Tribe could than be granted some adequate reparation under the new public development program, if that program is adopted. The program of public development, then, would not be subject to a large initial burden based upon the claims of the defaulting licensee. On the other hand, if public development is not undertaken, the duty to pay damages might force the licensee to return to the task of construction.

                                                                                                                                            NATHAN R. MARGOLD
                                                                                                                                                                             Solicitor.

JICARILLA--TIMBER

February 8, 1935.
Memorandum to the Commissioner of Indian Affairs:

    Your letter December 24, 1934, to the Superintendent of the Jicarilla Indian Agency regarding the title to timber on lands allotted to Indians of the Jicarilla Reservation under the act of March 4, 1907 (34 Stat. 1413), is returned.

    You assume that the act of March 4, 1907, re-
 


 

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OPINIONS OF THE SOLICITOR

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serves the timber from allotment and raise the question of whether tribal ownership of the timber terminated 25 years from the date of the trust patents for the allotted lands, and ask that the matter be presented to the Indians for the purpose of ascertaining whether they are willing for the timber "to remain as tribal property by securing necessary legislation through an amendment to the act of March 4, 1907, if it be decided that that act reserved the timber for a definite 25-year period from the date of the issuance of the original patent for the allotments". Presentation of this matter to the Indians prior to the decision on the question you raise is, I think, premature.

    Section 1 of the act reads:

    "That the Secretary of the Interior be, and he is hereby authorized to cancel the allotments made to the members of the Jicarilla tribe of Indians in New Mexico, provided all the members of said tribe relinquish all their individual right, title, and interest in the allotted lands to the United States, or he may cancel any of said allotments upon the relinquishment thereof by the allottee or his heirs; and each Indian taking advantage of the foregoing provisions and each unallotted member of the tribe shall be allotted not exceeding ten acres of agricultural land and not exceeding six hundred and forty acres of other land, the areas to be in the discretion of the Secretary of the Interior, and he shall cause patents to issue therefor in accordance with the fifth section of the Act of February eighth, eighteen hundred and eighty-seven (Twenty-fourth Statutes at large, page three hundred and eighty eight): Provided, That in making such allotments values shall be considered so to make the allotments uniform in value as near as practicable. That the Secretary of the Interior may dispose of all merchantable timber on allotments herein authorized during the term these are held in trust and on the surplus lands for twenty-five years, the proceeds therefor to be expended under his direction for purposes beneficial to the individual allottees hereunder and their heirs, or for families, as he may deem best, and no part of such proceeds shall be expended for community or common benefits other than irrigation, but shall be equitably apportioned as near as may be among the Indians entitled."
    Your assumption that the act preserves the timber from allotment appears to be erroneous. In my opinion the timber was not reserved to the tribe but the beneficial ownership thereof passed to the allottees with the land. The rights of the allottees to the timber is not absolute, however, but is qualified by the direction that the proceeds from the timber sales shall be expended under the direction of the Secretary of the Interior "for purposes beneficial to the individual allottees hereunder and their heirs, or for families, as he may deem best, and no part of such proceeds shall be expended for community or common benefits other than irrigation, but shall be equitably apportioned as near as may be among the Indians entitled." This direction governing disposition of the proceeds from timber sales does not constitute a reservation to the tribe of the timber standing on the allotments. Use of the proceeds in the manner prescribed does differ from that ordinarily attaching to individual ownership but there is nothing to prevent Congress from varying the usual rule provided the individual owners agree thereto and such agreement must be deemed to have been given by the allottees when they relinquished their old allotments and accepted new allotments under the provisions of the act of 1907. In support of the conclusion that a reservation to the tribe of the timber was not intended it may be pointed out that the act contains no such reservation in express terms. The original bill (H.R. 23650, 59th Congress, 2d Session) did provide that the "merchantable timber on any allotments authorized by this act is hereby excepted from allotment to be disposed of as hereinafter provided." But this provision was stricken from the bill by a Senate amendment. See Congressional Record, Vol. 41, page 4110. Had Congress, intended to reserve the timber from allotment the provision contained in the bill for that purpose clearly would not have been stricken. Subsequent legislation amending the act of 1907 lends further support to the conclusion that the tribe as such has no interest in the timber on the allotted lands. This legislation as found in the act of May 25, 1918 (40 Stat. 561. 577), authorizes the Secretary of the Interior to expend the proceeds from the sale of timber "with the consent of the allottees whose property is appropriated," for certain specified purposes and "for other community or individual purposes beneficial to the Indians belonging to and having rights as members of such tribe of Indians." By this amendatory legislation Congress not only recognized beneficial ownership of the allottees to the timber standing on their allotted lands but respected that ownership by making the proposed expenditures subject to the condition that the consent of the allottees be first obtained.

    As to the duration of the period during which the proceeds from timber sales are to be expended as provided in the act of 1907, it is to be observed
 


 

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that the authority to sell timber relates both to the allotted lands and the surplus or unallotted lands; that the proceeds from sales of both classes of timber are to be expended in the same way; and that the exercise by the Secretary of the Interior of the authority to sell and the authority to expend is limited to a stated period. This period as to the allotted lands is co-extensive with the period during which those lands "are held in trust" and as to the surplus or unallotted lands the period is fixed at 25-years." These periods are not modified or repealed by the amendatory act of May 25, 1918, supra. As to the surplus or unallotted lands the 25-year period expired in 1932, but the period as to the allotted lands continues so long as the lands are held in trust, and this obviously includes any extension of the original trust period whether accomplished by section 2 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), or by Executive order in the event the Indians of the Jicarilla Reservation vote to reject the provisions of the Indian Reorganization Act.

    Legislation such as that suggested in your letter of December 24, therefore appears to be unnecessary.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.
IRRIGATION CHARGES-PUEBLO LANDS

M-27512                                                                                                                              February 20, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    By the act of March 13, 1928 (45 Stat. 312), the Secretary of the Interior is authorized to enter into a contract with the Middle Rio Grande Conservancy District providing for conservation, irrigation, drainage and flood control for certain Pueblo Indian lands. On December 14, 1928, a contract was executed as an exercise of the authority granted by the statute. I am now asking to interpret that contract and the statute on which it is founded in so far as they relate to the payment of operation, maintenance and betterment charges for the benefited Indian lands.

    It appears that, at the time of the enactment of the statute and the execution of the contract, the Indian lands might be divided roughly into three groups: (1) those already served by irrigation works: (2) those subirrigated by a natural water table in many instances so high that the land could be put to no useful purpose in the absence of drainage and subsequent artificial irrigation;
and, (3) those having no water available to them.

    The act of March 13, 1928 (supra), specifically provided terms on which the Secretary might contract concerning the payment of construction costs, but contained no such provisions concerning operation, maintenance and betterment charges. It also contained provisions saving to the Indians their water rights appurtenant to the approximately 8,346 acres already under irrigation. To those latter provisions was added the only reference contained in the statute to operation, maintenance and betterment charges. It is prescribed that:

    " * * * such irrigated area of approximately 8,346 acres shall not be subject by the district or otherwise to any pro rata share of the cost of future operation and maintenance or betterment work performed by the district."
    The only pertinent provision of the contract is contained in Article 21, which reads as follows:
    "It is mutually understood and agreed that the said 8,346 acres of cultivated Pueblo Indian lands shall not be subject by the District or otherwise to any pro rata share of the cost of future operation and maintenance or betterment work performed by the District, provided that said District shall properly perform at its expense any of such work on main canals and laterals as may be determined upon by the said Secretary and his decision in the matter shall be final, it being the intent of the parties hereto that the operation and maintenance of the laterals and internal works and the actual placing of the water on the lands of the Indians of this area shall be performed by the Indians themselves. The said newly reclaimed Pueblo Indian lands approximating 15,261 acres, shall bear for said acreage only their proportionate share of the cost of operation and maintenance and betterment work that may be performed by the District under proper approved action of the District, it being mutually understood and agreed that such area shall not bear any greater per acre cost of any such operation, maintenance or betterment work than lands of the District."
    With these facts as a background, four specific questions have been propounded:
    1. Are the Indian lands which were formerly subirrigated from natural sources exempted from the payment of operation, maintenance and betterment charges for water to be placed

 

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upon them artificially through the canals constructed by the District?

    2. Are the Indians obligated to pay the operation, maintenance and betterment charges made againstlands not exempted from those charges, or,

    3. Is the United States obligated to pay those charges?

    4. If the Indians are obligated to pay the charges are they to be assessed against the Pueblo or the individual Indian who has the use of the particular land benefited?

1

    In effect the answer to the first question was determined, erroneously I believe, by the Department in its letter of April 18, 1932, to H. C. Neuffer, Supervising Engineer in the area in which the Middle Rio Grande Conservancy District is located. In that letter Mr. Neuffer was requested to submit a report showing those lands which were to be designated as free from operation, maintenance and betterment charges, and those lands which were not. He was also instructed to include in the first category lands subirrigated from natural sources, including uncultivated areas.

    After a careful consideration of the statute and the contract it is my conclusion that the instructions contained in that letter to Mr. Neuffer were, in part, incorrect. Lands naturally subirrigated which could not be cultivated are, in my opinion, subject to charge for operation and maintenance and for betterment work.

    The plan to drain the subirrigated land which, by reason of climatic conditions, would require subsequent irrigation of the same land in order to produce crops was decided upon by Congress. The act of March 13, 1928, provides, in part:

    "That the Secretary of the Interior is hereby authorized to enter into an agreement with the Middle Rio Grande Conservancy District, a political subdivision of the State of New Mexico, providing for conservation, irrigation, drainage, and flood control for the Pueblo Indian lands situated within the exterior boundaries of the said Middle Rio Grande Conservancy District, as provided for by plans prepared for this purpose in pursuance to an Act of February 14, 1927 (Forty-fourth Statutes at large, page 1098)."
The Plans to which Congress made reference are incorporated in House Document No. 141, 70th Congress, 1st Session. It is made clear from those plans that a substantial part of the work to be done is that of drainage and subsequent irrigation of sodden and unproductive areas.

    From that same report (see particularly the second table appearing on page 21) it is apparent that those subirrigated areas which were not subject to cultivation were excluded from the "approximately 8,346 acres" which are not subject to operation, maintenance and betterment charges under those terms of the statute and the contract which I have already quoted and designated as the only provisions specifically mentioning the charges in question. That approximated figure was obtained from that table and specifically includes only cultivated land; it does not include subirrigated land not capable of cultivation. That latter class of land, then, is not, under the terms of the statute or of the contract, to be free from charges for operation, maintenance or betterment.

    It is not material that the statute refers to the 8,346 acres as "irrigated", whereas the contract refers to them as "cultivated". It is the same figure and, in each usage, it has only one significance: it is a designation of the area, irrigated and cultivated, described in the plans for the project in accordance with which the Secretary was specifically authorized by Congress to act. Only the cultivated area, estimated at 8,346 acres, to which reference was made in those plans, may receive water free of charge from the Middle Rio Grande Conservancy District.

    Those figures are, of course, an approximation and permit of variation because of inaccuracy of surveys or estimates. There is, however, no justification for stretching them by adding some 4,000 acres of subirrigated and uncultivated pasture land which were not included in the original estimate on which Congress and the Secretary acted. Those lands are, in my opinion, of a category not included within that estimate.

2

    Concerning those lands which are not specifically excepted by the statute and the contract from the payment of operation, maintenance and betterment charges, it is my opinion that the Indians are not obligated to pay those charges.

    In this connection it must be borne in mind that no agreement has been made with the Pueblos (towns) or the individual Indians concerning the irrigation of their lands. The only agreement is between the United States and the Conservancy District. Congress, however, might authorize the Secretary to contract on behalf of the Indians concerning that matter.

    As I have already indicated, the only provision
 


 

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made by Congress concerning operation, maintenance and betterment charges is that approximately 8,346 acres of irrigated lands shall be free from those charges. That provision creates the obvious implication that payment of those charges on other Pueblo owned land (newly reclaimed land) may be required before water is delivered. It does not, however, by any direct implication authorize the Secretary of the Interior to contract for the payment of such charges by either the Indians or the United States. Nor does it authorize the Secretary to contract in such a manner as to charge the Indian land itself with a lien for those payments. Although the Secretary of the Interior is authorized to contract for the construction of works which would render water available to all the land, he is not authorized to contract for the payment of charges accruing because of the actual delivery of water to the land.

    That conclusion is fortified by the fact that there is a complete absence in the statute of any language indicating the manner in which an authority to contract for payment of those charges should be exercised. The complexity of that problem is fully as great as is the complexity of the problem which arose concerning construction costs, with which the statute deals in detail. In such circumstances there is no basis for showing an inference of authority to contract for the payment of operation, maintenance and betterment charges.

    Without specific authority, express or necessarily implied, the Secretary of the Interior is without power to create a charge against the Indians or their lands just as fully as he is, in the absence of specific authority, without power to create an obligation against the United States. Has he, in the contract of December 14, 1928, purported to exercise that ungranted power? In my opinion he has not.

    The reference to operation, maintenance and betterment charges on newly reclaimed lands contained in Article 21 of the contract, heretofore quoted, merely acts to create a limitation on the amount of those charges to be borne by the land. The language of that article (the only pertinent one) does not imply a promise to pay; it merely prescribes that, if charges are to be made, the lands "shall bear * * * only their proportionate share of the cost of operation and maintenance and betterment." That construction of the contract is supported by the presumption that an administrative official will not exceed his authority-which, in this case, I believe did not include the power to contract for the payment of those charges.

    There remains to be worked out a method of using the facilities provided by the contract. Whether operation and maintenance for newly reclaimed lands shall be paid by the United States, by the Pueblos, or by the Indians in the Pueblos who use those lands, must be determined by subsequent negotiations and the enactment of appropriate legislation. The Conservancy District cannot be compelled to deliver water to the newly reclaimed Pueblo lands unless operation and maintenance costs are paid by some one. Some provision must be made for the payment of those charges if the expensive facilities are to be utilized in the future.

    In view of my conclusion it may be well to make certain observations concerning the rights of Indians to the delivery of water by the Conservancy District. When operation and maintenance charges are paid to the Conservancy District for a specified area of newly reclaimed land, the District must deliver water for that land even though other lands similarly situated do not take and pay for water. In other words, the right of land to receive water attaches to each acre severally and not to the total area of newly reclaimed land. It is also true that the right of the approximately 8,346 acres to receive water is not dependent upon the newly reclaimed land taking water and paying operation and maintenance costs, the obligation of the District to deliver water to that area being separate and distinct from the obligation to deliver water to the newly reclaimed land.

3

    The third question concerns the obligation of the United States to pay operation, maintenance and betterment charges for the newly reclaimed lands. The analysis of the statute and the contract which I have made in answer to the second question, dictates the answer to this inquiry. Neither the statute nor the contract creates any promise, direct or implied to pay those charges; nor is there created a charge or lien on the land for them. There is, then, no obligation on the part of the United States to pay.

4

    The answer to Question 2 renders unnecessary any comment on Question 4. If the Indians are not obligated to pay the charges, there is no question whether that obligation falls upon the Pueblo or the individual Indian.

                                                                                                                                            NATHAN R. MARGOLD.

    Solicitor.
Approved: February 20, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.
 


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 27, 1935

STATE HIGHWAY TAX
APPLICABILITY TO CHEYENNE
RIVER RESERVATION


February 27, 1935.


 Memorandum to the Assistant Commissioner of Indian Affairs.

    The legality of the imposition of the highway compensation tax by South Dakota on the Indian truckmen doing trucking on the Cheyenne River Reservation is doubtful if certain facts exist which are not brought out by the letter in this file from the Superintendent to the Indian Office. If the Indian truckmen are doing trucking solely for the Government as regular employees, or in furtherance of the general plan of the Government to assist the Indians in earning a livelihood, it is probable that the State could not impose such a tax, as a State tax much less a prohibitive one as shown here, upon Federal instrumentality. However, if the Indians engaged in private trucking, as well, the tax cannot be escaped.

    I would suggest, therefore, that a letter be sent to Superintendent Dickens asking complete information on the character of the trucking done by the Indians.
 

Solicitor.
CONTRACT WITH WASHINGTON STATE PROVIDING
FOR EDUCATION OF INDIAN CHILDREN OUT OF
APPROPRIATED FUNDS


February 27, 1935.


 Memorandum for the Secretary:

    Presented herewith is a letter dated February 20 from the Commissioner of Indian Affairs, submitting for your signature a contract with the State of Washington, acting through the State Superintendent of Public Instruction, providing for the education in the State schools of all the Indian children of that State during the fiscal year 1935. The contract provides for the payment to the State of Washington out of funds appropriated by Congress of $100,963 less any disbursements which may have been made by the Indian Superintendents for purposes the contract is intended to cover.

    This contract has not heretofore received consideration in my office but appears to have been considered and tentatively approved by you on November 22. It was returned to the Commissioner of Indian Affairs on November 28 because of certain irregularities (see Mr. Burlew's memorandum of that date), resubmitted on January 4 by the Commissioner and again returned by you on January 8.

    The contract recites that it is entered into on behalf of the State of Washington by the State Superintendent of Education. It is signed, however, by Mr. N. D. Showalter, State Superintendent of Public Instruction. This disparity would not in itself be fatal, but a more serious defect arises from the failure of the record to contain anything to show the legal authority of the State of Washington to enter into a contract of this nature. Under the act of April 16, 1934 (48 Stat. 596), your authority to contract with States for the education of Indian children, with provision for the expenditure thereunder of moneys appropriated by Congress for Indian education, is confined to contracts with States "having the legal authority so to do." All contracts made under this statute should, in my opinion, be accompanied by an affirmative showing of the necessary legal authority of the State to make the contract as well as the authority of the officer to execute the contract on behalf of the State. I have been unable to find any express provision in the Washington laws authorizing the State to contract with the Federal Government in a matter of this kind: and, in view of the limitations upon the powers of public officers to bind the sovereign by contract, I suggest that signing of the contract under consideration be withheld until the Superintendent of Public Instruction has furnished citations to statutory provisions authorizing the execution of the contract or, in the absence of such statutory provisions, an opinion by the Attorney General of the State, holding that such contract is authorized under the State laws.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
SECRETARY'S POWER TO REGULATE
CONDUCT OF INDIANS

February 28, 1935.

Power to make regulations in general

    The Secretary of the Interior derives his authority to make rules and regulations dealing with Indian Affairs from several Acts of Congress. Section 161 of the Revised Statutes (5 U.S.C.A. Sec. 22) gives him general regulation-making power for all matters within this Department:

    "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his depart-

 

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ment, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."

Section 465 of the Revised Statutes (25 U.S.C.A. Sec. 9) deals specifically with Indian Affairs:
    "The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs."
Although this section speaks in terms of the President, it is a primary principle that the President acts through the heads of the Departments and that the official acts of the Secretaries are his acts (see Wolsey v. Chapman, 101 U.S. 755, 769 (1879) and their regulations are attributable to him (Maxwell v. United States, 49 Ct. Cls. 262). Furthermore this section taken with Sections 441, and 2058 of the Revised Statutes (5 U.S.C.A. Sec. 485, 25 U.S.C.A. Sets. 2 and 31) leave no doubt that acting for the President, the Secretary of the Interior and the Commissioner of Indian Affairs with the Secretary's approval may make regulations governing Indian Affairs and Indian conduct. See United States v. Clapox, 35 Fed. 573, 577 (D. C. Ore. 1888); Adams v. Freeman, 50 Pac. 135, 138 (Okl. 1897). Sections 441, 463 and 2058 are as follows:
"The Secretary of the Interior is charged with the supervision of public business relating to the following subjects:

*                            *                            *                            *                            *                            *

Second. The Indians. * * * (R.S. Sec. 441.)

    "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations. (R. S. Sec. 463.)"

    "Each Indian agent shall, within his agency, manage and superintend the intercourse with the Indians, agreeably to laws; and execute and perform such regulations and duties, not inconsistent with law, as may be prescribed by the President, the Secretary of the Interior, the Commissioner of Indian Affairs, or the Superintendent of Indian Affairs. (R. S. Sec. 2058.) "

    This regulation-making power of the Secretary, and of the Commissioner under the approval of the Secretary, over Indian Affairs has been repeatedly upheld by the courts although it has not been questioned in many cases. Regulations affecting the prosecution of liquor cases were the foundation of an indictment for bribery although such regulations were unwritten and merely usages or "common law" in the Indian Office. United States v. Birdsall, 233 U.S. 223 (1914). The subjects of regulations already approved by the courts embrace the whole domain of management of Indian Affairs; for example, regulations providing for the exclusion from the reservation of certain persons at certain times (Rainbow v. Young, 101 Fed. 835 (C.C.A. 8th 1908); Adams v. Freeman, 50 Pac. 135 (Okl. 1897); requiring departmental approval for adoption into a tribe (West v. Hitchcock, 205 U.S. 80 (1907)); prescribing the manner of presenting claims (Bridgeman v. United States, 140 Fed. 577 (C.C.A. 9th 1905)) and the condition of an agent's bond (United States Fidelity and Guaranty Co. v. United States (150 Fed. 550 (C.C.A. 9th 1907)); regulating the leasing (Parker v. Richards, 250 U.S. 235 (1919)), sale (United States v. Thurston County Neb., 143 Fed. 287 (C.C.A. 8th 1906)), and disposition by will of restricted land (Blunset v. Cardin, 261 Fed. 309 (C.C.A. 8th 1919) (aff'd 256 U.S. 319 (1921)); and establishing a court of Indian offenses and defining Indian offenses to come before it (United States v. Clapox, 35 Fed. 575 (D. C. Ore. 1888)).

    In all of the foregoing cases, except the last, the regulations of the Interior Department had been made pursuant to some statute dealing more or less specifically with the subject matter of the regulations. In some of these cases, notably United States v. Birdsall and West v. Hitchcock, both Supreme Court cases, the statute did not mention regulations by the Department or the power or duty to make them. The power to make regulations to fill in the gaps in such statutes and make them workable was taken for granted. But in the Clapox case no specific statute was shown giving the Secretary power to preserve peace and order upon the reservations or to make regulations therefor or to set up Indian courts as an instrumentality to that end. However, the court found sufficient authority for such regulations in the general regulation making power vested in the President, Secretary, and Commissioner by Sections 465, 441 and 463 of the Revised Statutes given above. (See 35 Fed. at 577.)

II  Power to make regulations governing the
conduct of Indians.

    It is true that there is not any specific statute expressly directing or authorizing the Secretary to govern the conduct of Indians on the reservations
 


 

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or to promote law and order thereon in any way at all. Because of this it is argued that the actions of the Secretary directed to that end are open to challenge and that the Clapox case, although a square holding in favor of the Secretary, is not a broad enough defense. A more thorough legal analysis is therefore appropriate in view of the fact that the practical method evolved by the various Secretaries and Commissioners to control law and order on the reservations provokes more than one legal question.

  1. The regulations made.

    In 1883 Commissioner Price under the approval and direction of the Secretary, issued regulations calling for the establishment on each reservation of a "court of Indian offenses" to be composed of three Indians selected by the agent (with the approval of the Commissioner) because of their prestige in the tribe and understanding of Indian ways. The court was to have jurisdiction of offenses defined in the departmental regulations, of civil suits between the Indians on the reservation, of liquor traffic by Indians and of all questions presented to it for consideration by the agent. The punishment might be the withholding of rations, a fine or hard labor, imprisonment, or the making of compensation to the injured party. The decisions of the court were to be subject to the approval of the agent with appeal to the Indian Office. The Indian offenses listed in the regulations were, briefly, participation in the "sun-dance" and other similar dances, polygamy, the practice of medicine men, theft or destruction of property, the purchase of girls for cohabitation purposes, and "misdemeanors committed by Indians belonging to the reservation." These regulations were included as Section 486 in the Regulations of the Indian Office 1884 and were reissued in the same form in the Regulations of the Indian Office 1894 (Section 580) and 1904 (Section 584). To date the set-up of the court has not been changed, though from the first it became apparent that the court would not be able to be established on all reservations because of various local conditions; it was established on the majority. The definition of offenses, however, became gradually out of date. Dances were no longer looked upon as evil per se, the arts of medicine men had dwindled and new problems not covered had arisen. There were repeated efforts in the Department to revise the regulations, particularly strongly pressed in 1911 and 1926. But the revision never reached fruition in proclamation. However the regulations were slightly modified and supplemented in practice through the issuance by the Indian Office of Circulars and Orders instructing all the superintendents on problems of law and order and through the correspondence with particular superintendents concerning specific cases. Circulars and Orders do not have the standing of regulations as they are not issued as rules of law nor with the signature of the Secretary. Representative Circulars are: No. 1665, April 26, 1921, restricting the prohibition of dancing to those dances only which have demoralizing or degrading characteristics; No. 2046, August 25, 1924, forbidding unnecessary arms display in arresting Indians; Nos. 2176, 2235, January 14, 1926, and June 21, 1926, requiring records of cases before the courts of Indian offenses to have certain fullness and form. At various times circulars asking information and extensive questionnaires were sent to the reservations dealing with the definition of offenses and the working of the courts, and looking toward revision and unification of the regulations and practices.

    Because this revision and standardization of the law and order regulations never occurred, it is almost impossible to tell exactly what at present is the body of instructions under which the superintendents, Indian police and judges are operating and it is difficult, therefore, to ascertain precisely the legality of their actions. In so far as those officers are acting under regulations, their authority to do so can be fairly easily made out; the legal position is more confused when reliance for authority can be placed only upon the informal instructions from the Indian Office.

    2. Legal analysis.

    In analyzing further the power of the Secretary to make regulations governing law and order on the reservations, we find (a) only the Clapox case directly on the point, (b) a good many cases indicating acceptance by the courts of such a power, (c) no case denying in any way such a power, (d) a great many statutes sanctioning its exercise, and (e) principles of administrative law to support it. These criteria are discussed in order:

        (b). The Clapox case.

    In the Clapox case, the Indian defendants were accused of violating a Federal statute against rescue of persons committed for crimes against the United States by rescuing an Indian committed to a reservation jail by Indian police to await trial before the court of Indian offenses for the offense of adultery. The United States district court over ruled the demurrer to the information which had questioned the authority of the Secretary to define offenses or to set up such organizations. The ruling of the court was therefore a direct holding of such authority in the Secretary. The court experienced no doubt on the subject. It described the courts of Indian offenses as "mere educational and disciplin-
 


 

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ary instrumentalities by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian" and not as courts which Congress must ordain and establish (see 35 Fed. at 577). In this case there was also a treaty with certain bands, including that of which the defendant was a member, obligating the bands to "observe all laws, rules, and regulations which may be prescribed by the United States for the government of the Indians." Such observation is expected from all Indian tribes whether by virtue of their treaty engagements or their position as dependencies and wards of the nation, and in any particular case such a treaty provision is not requisite in order to enable the President to make rules or regulations as his authority to do so still derives and can derive only from Congressional sanction.

     (b). Other cases supporting the power.

    Other cases dealing with action by the Department in keeping order on the reservation involve the legality of arrests of Indians made by Indian policemen or agents. In those cases where the arrests were held illegal the illegality was founded on the fact that the victim had not violated any regulation of the Department governing his conduct. The courts assume that there might legally have been a regulation governing the subject and that its violation would then have justified the arrest. John Bad Elk v. United States, 177 U.S. 529 (1900). (Here the arrest by the Indian policeman was unjustified also because made without a warrant and no regulation of the Department authorized arrests without warrants of an Indian not charged even with the commission of a misdemeanor.) Albert Wiley v. Keokuk, 6 Kan. 94 (1870); Deragon v. Sero, 137 Wis. 276, 118 N. W. 839 (1908). But in each of these cases orders of the Indian agent had been defied by the Indians arrested. The courts, however, examined these orders and found them to be unauthorized by any instructions or regulations from the Department and, in Deragon v. Sero, unreasonable.

    Yet, where the Indian policemen had served, at the order of the Indian agent, a writ issued by such agent, which order and writ followed instructions from the Interior Department and carried out the regulations of the Department dealing with removal of intruders from the reservation, such writ was held a legal writ, and the Indian policemen authorized persons to serve it, and the defendants who had resisted such service by assault were held properly indicted by the United States. United States v. Mullin, 71 Fed. 682 (D. C. Neb. 1895). The regulations principally in question here, those to protect the Indian in the enjoyment of his land were specifically authorized by statute but the court so approved the regulations of the Department (not specifically authorized by any statute) which set up the Indian police to enforce the orders and regulations of the Department and to "keep the peace" upon the reservation. See 71 Fed. at 687.

    If the courts indicate a willingness to uphold ar rests made by reservation police for the violation of a reasonable and authorized order of the superintendent, the argument is an a fortiori one when a regulation of the Department has been violated. Regulations have great dignity in the law and are accorded the force and effect of statutes. Caha v. United States, 152 U.S. 211 (1894); United States v. Thurston County, Neb., supra at 291; Bridgeman v. United States, supra at 583; Cf. Wilkins v. United States, 96 Fed. 837 (C.C.A. Sd 1899).

        (c). No case denies the power.

    There are two other cases dealing with the legality of the arrest of Indians which arose on habeas corpus and which have been occasionally presented as indicating that the Department had no authority to make regulations governing the conduct of Indians. But both, like the previous cases, expressly stated that no regulation of the Department was violated or before the court. These are United States v. Crook, 5 Dillon 453 (Circ. Ct. Nebr. 1879) and Ex parte Bi-a-lil-le, 12 Ariz. 150, 100 Pac. 450 (1909). The habeas corpus was granted in each case because the military forces of the government, at the request of the Secretary of the Interior, had taken a group of Indians into custody and were holding them indefinitely with out bringing them before any civil authority for trial or hearing. The initial right of the military to remove Indian intruders or bandits from the reservation when found necessary by the Secretary of the Interior was not questioned. The Arizona court said that in the absence of "a regulation defining what conduct of Indians shall be reprehensible" and "subjecting them to correction", executive punishment was unwarranted, and carefully refrained from deciding whether summary punishment as well as removal might have been permissible if pursuant to a "rule or regulation." Ex parte Bi-a-lil-le, supra, at 451.

        (d). Congressional sanction.

    The privilege of Indian police therefore to make arrests pursuant to regulations and valid orders has never been denied. On the contrary, it has been sanctioned even by Congress. The Indian police were first organized in the Indian Appropriation Act of May 27, 1878; and in every appropriation act since that time. Congress has made appropriations to maintain them. This in
 


 

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itself is recognition of the fact that arrests are being made in the interests of keeping order on the reservation under departmental instructions and an endorsement thereof. Moreover, Congress has specifically provided for the eventuality of such arrests and incarceration in an agency jail:

    "Whenever an Indian shall be incarcerated in an agency jail, or any other place of confinement, on an Indian reservation, or at an Indian school, a report or record of the offense or case shall be immediately submitted to the superintendent of the reservation or such official or officials as he may designate, and such report shall be made a part of the records of the agency office." (Aug. 1, 1914, c. 222, Sec. 1, 38 Stat. 586, 25 U.S.C.A. Sec. 200.)
As the Indian police are intimately associated with the courts of Indian offenses, wherever such courts exist, holding the accused and executing the judgments of the courts, this statute referred as well to procedure before such courts. The Indian Office immediately interpreted it as so applying and required a formal record to be kept of all proceedings before the court of Indian offenses. Circulars No. 890, 2176, 2235, August 5, 1914, January 14, 1926, June 21, 1926.

    The power of arrest has thus been sanctioned by Congress, but the companion and far less rigorous power, the power to try, has also been sanctioned by Congress. Every year since 1888 with only one or two omissions, Congress has appropriated from $8,000 to $15,000 "for pay of Indian judges", or, originally, "Judges of Indian courts", referring to the courts of Indian offenses. The first year the courts of Indian offenses were established the Commissioner had found that there must be appropriations to pay the judges if the courts were to live. (See Annual Report of the Commissioner of Indian Affairs, 1883, at XIV.) The appropriations have, therefore, made possible their continued operation.

    It cannot be said, then, that the regulations establishing a court of Indian offenses and defining offenses which regulations have been in operation for more than fifty years and for the operation of which Congress has made appropriations every year are not within the power of the Secretary as granted by Congress. Turning to related subjects, the fact of appropriation has been taken to indicate authorization of the liquor suppression activity of the Indian Office. See United States v. Birdsall, supra, at 233; Cf. Maddux v. United States, supra, at 198. More recognition by an act of Congress (not even an appropriation) of a special practice of the Land Office based on regulations of the Interior Department has been taken as authorization of the regulations otherwise authorized only by the general statutes already quoted in Part I of this memorandum (Caha v. United States, supra).

        (e). Principles of administrative law.

    Even if no appropriations had been made Congressional approval of the regulations would be assumed from certain doctrines of administrative law. A long-continued acquiescence by Congress in the exercise of a certain power by a Department is strongly persuasive of the existence of such power. United States v. Midwest Oil Co., 236 U.S. 459 (1915). The court in endorsing the action of the Secretary of the Interior and the President in withdrawing lands from settlement, a practice 80 years old, although no act had ever authorized such action by the Executive, said "in determining * * * the existence of a power, weight shall be given to the usage itself even where the practice is the subject of investigation" (at 473). "* * * the long continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of a recognized administrative power in the Executive * * * " (at 474). Justice Holmes in supporting a regulation of the Interior Department rested entirely on Revised Statutes, Sections 441 and 463 (supra, Part I) considered the "long established practice" of the Department as showing those sections to be broad enough "to warrant a regulation obviously made for the welfare of the rather helpless people concerned." West v. Hitchcock, supra, at 85. Justice Stone, when Attorney General, (applied this doctrine to a regulation of a Department not authorized or made pursuant to any specific statute and upheld the regulation under Section 161 of the Revised Statutes, supra, page 1. 34 Op. Atty. Gen. 320 (1924). Thus, the tacit approval of Congress for a number of years is sufficient to authorize otherwise unauthorized regulations. Garlinger v. United States, 30 Ct. Cl. 473 (1895); Maddux v. United States, 20 Ct. Cl. 198 (1885).

    Furthermore, the regulation of the conduct of Indians upon the reservations in order to assure order and promote civilization is clearly within the purposes for which supervision over Indian affairs by the Secretary and the Commissioner was given. In the absence of action by any State, tribal or other Federal agency such regulation becomes a duty. The Supreme Court recognized this obligation in the Department to handle crimes by Indians which Federal statutes did not reach in United States v. Quiver, 241 U.S. 602 (1916), concluding (at 605),
 


 

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"these matters (crimes by Indians) always having been left to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative Officers." Commissioner Price originated the court of Indian offenses in order to combat "heathenish" customs. (See Annual Report 1883 at XIV.) No one could maintain this purpose was ultra vires. But he also recognized that in a field where no Federal nor State courts had jurisdiction-crimes involving only Indians-a reservation court would relieve the reservation agent of the burden that had long rested on him alone of suppressing crime. (See Annual Report 1884 at IX-XI.) Previously to the establishment of the Indian police and the courts of Indian offenses with the concomitant privilege of the Indians to be tried by their own courts, Indian conduct on the reservation I was handled exclusively, tribal action excepted by the Federal military and white agents. An improvement of such an arrangement was almost obligatory on the department. Reasonable latitude in the exercise of discretion by the head of a Department is necessary and statutory authority for everything done by him need not be shown when clearly an effectuation of his duties. See United States v. Macdaniel, 7 Peters 1, 14 (1835), 34 Op. Atty. Gen. 320, 326 (1924).

    These same principles enunciated in this legal analysis would of course permit of revision in the regulations and improvements to meet changing conditions, for it is not the particular way in which discretion is exercised which is subject to inquiry but the power of the Department to act in the particular field of preserving order among the Indians on the reservation. Cf. West v. Hitchcock, supra, at 85.

3. Authority for the regulations in the powers of the tribes.

    However, the courts of Indian offenses do not rely for their legality solely upon the authority of the Secretary to create them. They are manifestations of the inherent power of the tribes to govern their own members. It has been the persistent program of Congress to leave crimes involving only Indians within the control of the tribes, R. S. 2146, Feb. 18, 1875, 18 Stat. 318, 25 U.S.C.A. Sec. 217), and the authority of the tribes to arrest, try and punish their own members has been beyond cavil. Ex Parte crow Dog, 109 U.S. 556 (1883); United states v. Quiver, 241 U.S. 602 (1916); Raymond v. Raymond, 83 Fed. 721 (C.C.A. 8th 1897); 17 Op. Atty. Gen. 566 (1883). In United States v. Quiver, supra, the Supreme Court closed the Federal courts to offenses involving only Indians not explicitly made Federal crimes by Congress, declaring that: "At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws." (At 603, 604.) In Morris v. Hitchcock, 21 App. D. C. 565, 590 (1903) this was said even more broadly. "The right of Indian tribes to regulate their own domestic concerns was uniformly recognized by the United States in all their treaties, dealings with, and legislation respecting the Indians." In Raymond v. Raymond, supra,the court asserted (at page 722): "The Cherokee Nation * * * may maintain its own judicial tribunals, and their judgments and decrees upon the rights of the persons and property of members of the Cherokee Nation as against each other are entitled to all the faith and credit accorded to the judgments and decrees of territorial courts." The theory that the courts of Indian offenses derive their authority from the tribe and not from Washington was advanced recently by W. G. Rice, Jr. "The Position of the American Indian in the Law of the United States", 16 Jour. Comp. Leg. (3d Ser.), Part 1, p. 78, 93 (1934).

    But as tribal activities were weakened by the other policies of the Federal Government, it became necessary for the Federal Government to stimulate tribal judicial action by the appointment of tribal dignitaries as judges where no tribal courts existed any longer. It was a recognition by the Interior Department and by Congress that Indian offenses, perhaps more than one other Indian problem, must be handled by the Indian tribes but that such was no longer possible without the active cooperation of the Indian Office. Where the tribal courts of the Five Civilized Tribes were abolished by the Curtis Act, the Indian Office under its general power of supervision of Indian Affairs was deemed authorized, and in fact obligated, to assist in executing the tribal laws and required to carry a larger burden of administration. See Morris v. Hitchcock, supra, at 598. The chief reason why the definition of Indian offenses in the Regulations contained two broad provisions, namely, 584 (9) "misdemeanors committed by Indians" and 584 (3) all matters brought before the courts by superintendents, was to allow for enforcement by the tribal courts of the laws, customs and ethics of the tribe and for the handling of individual problems of the tribes. These laws and problems differed too greatly among the tribes to allow for precise definition of offenses or the handling of Indian conduct except through tribal agencies.
 


 

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OPINIONS OF THE SOLICITOR

MARCH 9, 1935

    From the cases studied, from the statutes placing the management of Indian Affairs in the Interior Department and sanctioning its exercise of discretion through regulations to produce law and order upon the reservations, and from the long continued persistence of the Government, legislative and executive, in leaving these problems of right behavior primarily to tribal and local administrative action under the direction of the Department. I conclude that the Secretary of the Interior has the authority to make rules and regulations governing the conduct of Indians on the reservations.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
OFFICERS OF TRIBE AS U.S. OFFICERS
March 9, 1935.
Memorandum to Commissioner Collier:

    You have asked for advice upon the question whether certain members of the business committee of the Klamath, Modac and Yahooskin bands of Snake Indians of the Klamath Reservation, Oregon, namely, Jesse Lee Kirk, Ben Mitchell and Boyd Jackson, are amenable to successful prosecution for their actions in accepting employment by certain lumber companies who have approved timber contracts on the reservation.

    Mr. Flickinger, Assistant Chief Counsel in the Bureau of Indian Affairs, has prepared a memorandum on this subject in which he reviews the facts contained in the record and the applicable statutes in considerable detail. With his memorandum I am in substantial agreement, and it is not the purpose herein to go over again the ground covered by it.

    Mr. Flickinger concludes that the question whether an officer of an Indian tribe, or a member of an official committee of a tribe, such as the business committee of the Klamath Indians, may be brought within the terms of the Federal statutes relating to bribery "is not entirely free from doubt." A reading of these provisions discloses the requirement that the offense of accepting a bribe as contained therein must involve some officer or agent of the United States, or some person acting for or on behalf of the United States, in an official capacity, under or by virtue of the authority of some department or office of the Government. See sections 202, 203 and 207, Title 18, U.S.C. The question involved is whether there is any such situation in this case.

    It seems quite clear there is not. Even if it were assumed that Indian tribes were agencies of the Federal Government, and that their officers and members of committees were Federal officers or agents, or acting for or on behalf of the United States, it is doubtful whether the statutes above referred to would apply. See Mr. Flickinger's memorandum, and note especially United States v. Van Wert, 195 Fed. 974; McCrath v. United States, 275 Fed. 294. It has been held that it is not sufficient that a superintendent and tribal attorney for the Osage Indians, the latter appointed by the tribe, were paid out of money held by the Secretary of the Interior, to render them employees of the United States who could interplead as representatives of the United States in probate court proceedings. Logan v. United States, 58 Fed. (2d) 697.

    Be that as it may, the assumption that an Indian tribe, and thus its officers and committees, are agents of the United States is clearly untenable. Such officers and committees are neither officers of the United States nor persons acting for or on behalf of the United States, in an official capacity, under or by authority of a department or office of the Government. It has been decided too many times to require extended discussion or citation of authorities that such is not the case. See Cherokee Nation v. Georgia, 5 Pet. 1; In re Sah Quah, 31 Fed. 327; Talton v. Mayes, 163 U.S. 376; and other casescited in "Powers of Indian Tribes," Solicitor's Opinion, M-27781. October 25, 1934, at pp. 5-23. As was said in Talton v. Hayes, in deciding whether a law of the Cherokee providing for institution of criminal proceedings by a grand jury of five persons was a violation of the Fifth Amendment to the Constitution of the United States,

    "The case in this regard therefore depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this court have long since answered the former question in the negative. * * *"
Moreover,
    "The existence of the right in Congress to

 

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regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States. * * *"

It was held that the Cherokee law was not a matter within the protection of the Fifth Amendment. See also Ex parte Crow Dog, 109 U.S. 556.

    The Indian tribes have long been recognized as possessing certain inherent powers of self-government, particularly in the sphere of the administration of justice within their respective territories. (See Powers of Indian Tribes, at pp. 69-84.) These powers do not exist by virtue of any delegation of authority from Congress. Talton v. Mayes, supra. They are inherent powers of sovereignty, formerly enjoyed by the Indian tribes with full force and effect, although now limited by the paramount power of Congress to regulate their exercise. The fact that Congress can regulate them in no way makes the powers Federal in character, nor the officers or committees which exercise them Federal agencies. These Indians were officers of the tribe, and members of its business committee. They were answerable to the tribe for their actions, but to the tribe alone. For it was from the tribe alone that they derived such authority as they possessed.

    The fact that they held their offices under a constitution establishing the business committee of the Klamath Indians does not alter the above conclusion. Aside from the fact that this constitution, so far as appears, was never approved by the Commissioner of Indian Affairs, though approved by the superintendent of the reservation and the tribal officers, such a constitution would not confer upon the business committee the status of a Federal body or agency. It would constitute merely recognition by the Federal Government of the right of the Klamath Indians to establish a form of procedure for handling the business of the tribe. See Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N. E. 734. The New York Court of Appeals held that the powers of the Seneca Council and the Seneca Peacemakers' Court were derived from the sovereignty of the Seneca Nation. Speaking of Article 4 of the Indian law, as enacted by the New York Legislature, the court said,

    "This article purports to set up a government for the Seneca Nation, consisting of three departments, exactly as provided in the Indian Constitution. It must be held, however, that the Indian Nation itself created these departments and the system of government set up by its Constitution, the force of which had been expressly acknowledged by the New York Legislature. It purported to set up a Peacemakers' Court. The purpose of jurisdiction of that court, however, was the Indian Constitution, not the Indian Law."
So, the mere fact that these officers derive their powers from an approved Constitution would not render them Federal officers. Their authority is not conferred by the approval. It derives from the inherent powers of the tribe.

    Nor is this conclusion altered by the fact that the Commissioner of Indian Affairs enjoys certain powers under this Constitution, including, by Article 17, the power to recall, for reasonable cause, and upon proper investigation, any member or officer of the business committee. Such a regulatory measure does not change the character of the committee or of the members thereof. Talton v. Mayes, supra.

    To hold otherwise would imply a right on the part of the Federal Government to invade tribal sovereignty at will. The power of Congress to do this has never been questioned. Cherokee Nation v. Kansas Railway Co., 135 U.S. 641. But until Congress has acted upon any subject, the powers of the tribes in regard to that matter remain as they were, in full force. As yet Congress has not made bribery, when committed by an Indian, or by the officer of an Indian tribe, on an Indian reservation, an offense under Federal law. See title 18, section 548. U.S.C. Until Congress does so legislate, bribery, therefore, remains a matter for the tribe to deal with. In this case, where the charge is leveled against officers of the Klamath Indians, it seems quite evident that the proper body to deal with it are the Indians themselves, whose interests are the ones adversely affected by their actions.

    The suggestion has been made that the case might be submitted to the Department of Justice for its consideration and action consistent with the law and the facts. In the light of the foregoing it seems to be quite clear that these Indians, while undoubtedly having been guilty of conduct that was wholly reprehensible in view of their positions, have done nothing for which successful prosecution could be maintained by the Federal Government. It may be unfortunate that nothing can be done under existing statutes, but this is not the only examples of such a situation in our law.

                                                                                                                                               NATHAN R. MARGOLD,

Solicitor.

 


 

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MARCH 11, 1935

RIGHT-OF-WAY APPLICATION

March 11, 1935.
Memorandum for the Commissioner of Indian Affairs:

    The attached papers relative to an application for a right of way across the Pojuaque Pueblo are returned to you for further consideration.

    It appears that the matter of consent and compensation for the grant of tribal lands was taken up by the superintendent and the petitioner directly with the Governor of the Pojuaque Pueblo. This procedure would appear to be out of harmony with the custom of the pueblo and with the regulations of the Department.

    According to the custom of the pueblo, a grant of lands cannot be made by the governor, but only by the governor and council, or by an assembly of the entire pueblo. The case of Pueblo of Santa Rosa v. Fall(273 U.S. 315,-discussed at page 24 of Solicitor's Opinion, Powers of Indian Tribes, approved October 25, 1934) recognized that in matters affecting pueblo lands the will of the pueblo is expressed only through its council.

    Of course, under existing law, the Secretary of the Interior has the right to make grants of pueblo land without consulting either the governor or the council of the pueblo. However, the Regulations of the Department concerning Rights of Way over Indian Lands require that the matter be presented "to the tribe in general council assembled."

    The relevant provision of the Regulations (section 79) declares:

    "Where tribal lands are involved, all railroad and other right-of-way applications of more than ordinary importance should be presented to the tribe in general council assembled. A record of the proceedings should be kept and a duly authenticated copy of such minutes should be attached to the schedule."
    It does not appear that this procedure has been followed in the instant case.
Solicitor.
PUEBLO AWARDS TO NON-INDIAN CLAIMANTS
March 14, 1935.
Memorandum to the Commissioner of Indian Affairs.

    I am returning for further consideration proposed reports to Congress and a letter dated March 6, regarding awards to non-Indian claimants for lossof lands and improvements under the act of May 31, 1933 (48 Stat. 108, 109).

    A large number of the claims recommended for allowance to have been rejected by the Pueblo Lands Board. While the Act of May 31, 1933, authorizes the Secretary of the Interior to report back to Congress any errors in awards already made based upon the "present fair market value of the lands involved and any errors in the omission of legitimate claimants for award", the act does not change the basis fixed by the prior Act of June 7, 1924 (43 Stat. 636), for determining the liability of the United States. The right of claimants, whose claims of title failed, for compensation for "lands improvements and water rights" is controlled by Section 7 of the Act of 1924. Under that section, the claimant, to be entitled to compensation, must have, in person or through his predecessors in title, prior to January 6, 1912, in good faith and for a valuable consideration, purchased and entered upon the land under a claim of right based on deed or document purporting to convey title to the land claimed or upon a grant or license from the governing body of the pueblo to the land. No claimant who is unable to meet the requirements of this section is entitled to any compensation for loss of lands or water rights, but such claimant may be entitled to compensation for loss of improvements only under Section 15 of the act, which reads:

    "That when any claimant, other than the United States for said Indians not covered by the report provided for in section 7 of this Act, fails to sustain his claim to any parcel of land within any Pueblo Indian grant, purchase, or donation under the provisions of this Act, but has held and occupied any such parcel in good faith, claiming the same as his own, and the same has been improved, the value of the improvements upon the said parcel of land shall be found by the court and reported by the Secretary of the Interior to Congress, with his recommendations in the premises."
    I would like to know whether, in making your recommendations, the requirements of Sections 7 and 15 of the Act of 1924 were taken into consideration. If not, it is suggested that a reexamination of the claims be made with a view to eliminating any awards for losses of lands and water rights where the claim of title originated subsequent to January 6, 1912, or where the purchase or entry was not made in good faith or for a valuable consideration (Section 7), and confining the
 


 

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award in any such case to loss of improvements if the claimant held and occupied the land in good faith, claiming the same as his own (Section 15). Claims of any person who is unable to meet the requirements of Sections 7 and 15 should, of course, be rejected.

    Among the claims allowed in the proposed reports is that of Floriano Armigo in the amount of $290.02. The land involved in this claim is described as B. C. 65, P. I, in the Cochiti Pueblo grant. The record shows that Armigo purchased this tract in 1932, more than eight years after the passage of the Act of June 7, 1924 (43 Stat. 636). I find no provision in the Act of 1924 or in the Act of 1933 authorizing the making of an award to one who purchased one of these tracts after 1924. The Act of 1924 was designed to set at rest titles then well known to be in dispute; and in view of the wide publicity given the provisions of the statute,a purchase made thereafter would appear to lack the element of good faith deemed by Congress to be essential in determining the right to compensation. The fact that the prior claimants may have occupied and claimed the land in good faith is immaterial. They had no title to the land, and their right was merely one to compensation. Such a claim is not made assignable by the Acts of 1924 and 1933, and any attempt to make any assignment is void because in violation of Section 3477, Revised Statutes of the United States, prohibiting the assignment of claims against the Government. For these reasons Mr. Armigo's claim should, I think, be rejected.

Solicitor.
CHEYENNE RIVER AND STANDING
ROCK--EXCHANGE
March 22, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration two letters dated February 9 and one dated February 26 recommending approval of exchanges of individual Indian allotments for unallotted lands on the Cheyenne River and Standing Rock Reservations in South Dakota.

    Section 1 of the act of June 18, 1934 (48 Stat. 984), declares that no land of any Indian reservation created or set apart by treaty or agreement with the Indians, act of Congress, Executive order, purchase or otherwise, shall be allotted in severalty to any Indian. It may be argued with some force that an exchange of a tract of tribal land for an individual allotment of equal value does not come within the class of transactions which this section of the act was designed to prevent. In such a case, the tribal land is not depleted. There is no new allotment as such-merely a change of an existing allotment. However this may be, the authority to make an exchange of this sort appears to be conferred by section 4 of this act which, so far as material, reads:

    "Except as herein provided, no * * * exchange * * * of restricted Indian lands or shares in the assets of any Indian tribe or corporation organized hereunder, shall be made or approved: * * * Provided * * * That the Secretary of the Interior may authorize voluntary exchanges of lands of equal value and the voluntary exchange of shares of equal value whenever such exchange, in his judgment, is expedient and beneficial for or compatible with the proper consolidation of Indian lands and for the benefit of cooperative organizations."
    The exchanges authorized to be made under the foregoing section do not appear to be confined to lands in individual ownership. The main clause refers to "restricted Indian lands" and the proviso refers to "voluntary exchanges of lands of equal value." The terms so used are broad and when given their natural meaning they embrace both tribal and individually owned lands. As I view the section, therefore, it operates to prevent the exchange of a tract of unallotted land for a tract in individual ownership unless the lands are of equal value the exchange is voluntary and is not inconsistent with the proper consolidation of Indian lands. These requirements being met I see no reason why the exchange may not be consummated and I reach this conclusion with more satisfaction because it is in accord with the well settled rule that statutes of this kind must be liberally construed in favor of the Indians.

    In the three cases returned herewith the tribal council has expressed its approval of the exchanges and it does not appear that such an exchange is inconsistent with the proper consolidation of Indian lands. However, no satisfactory showing that the lands involved are of equal value has been submitted and I suggest that the Superintendent be called upon to furnish separate appraisements of each tract involved in the proposed exchanges and if the lands are found to be of equal value the cases may then be resubmitted for approval.

Solicitor.

 

541

OPINIONS OF THE SOLICITOR

MARCH 29, 1935

SAN CARLOS APACHE--
CONSTITUTION

March 29, 1935.
Memorandum for the Commissioner of Indian Affairs.

    I desire to offer for your consideration the following suggestions with regard to the proposed draft of a constitution for the Indians of the San Carlos Apache Tribe.

    1. The section on membership provides that "all children of members shall be entitled to membership if such children shall have resided on the San Carlos Reservation at least six months." Your letter to the Quechan Tribal Council of the Fort Yuma Indian Reservation pointed out that a similar provision in the Quechan constitution probably went beyond the intention of the framers in making the membership even of the children of resident Indians dependent upon the residence of the children themselves. In accordance with the suggestion for revision contained in that letter it is recommended that the letter to the San Carlos Tribe should be amended to include the following statement:

    "Article 2, section 2 of the proposed constitution (page 2) contains this statement: "Secondly, all children of members shall be en titled to membership if such children shall have resided on the San Carlos Reservation at least six months.' I suggest that this should be amended to read: 'Secondly, all children of resident members shall be entitled to membership; and all children of nonresident members shall be entitled to membership when such children shall have resided on the San Carlos Reservation at least six months.' I believe that this change will be in conformity with the intentions of the tribal council, as I do not believe that it was intended to postpone the acquisition of membership rights by those children who are born of resident Indian parents."
    2. Article 4, section 7 (page 5) may be subject to the misconstruction that it attempts to give the tribal council power to permit expenditure from the tribal funds which, under existing law, can only be authorized by Congress. Of course, what is intended is that the council may approve or disapprove expenditures which have been authorized in conformity with law by the Secretary of the Interior. It is suggested, therefore, that the following recommendation be included in the letter accompanying the San Carlos constitution.
    "Article 4, section (page 5) contains the statement that, 'The council shall have power to permit expenditures from the tribal fund, authorized by the Secretary of the Interior, for any project beneficial to the community.' This language is somewhat ambiguous. What is intended, of course, is that whenever the Secretary, acting under the annual appropriation act or some other Federal law, authorizes a certain expenditure, the tribal council shall have final power to approve or disapprove such expenditure. I think, therefore, that the sentence quoted should be changed to read: 'the council shall have the power to approve or disapprove expenditures, etc.' "
    3. The list of tribal powers contained in Article 4 of the proposed San Carlos constitution is far more meager than the list of powers contained in either the Fort Yuma or the Gila River constitutions. The increased scope of departmental review is no doubt to be accounted for by the backward condition of the Indians concerned, and the absence of condemnation powers is probably harmless in view of the fact that all land on the reservation is tribal land. The absence of any revenue powers is probably not a serious handicap in view of the large tribal fund which may be made available for the needs of the tribal government either in the regular appropriation bill or by means of the proposed Tribal Funds Bill. I do believe, however, that a miscellaneous group of powers, necessary even for a government of very limited scope, and granted under the Fort Yuma and Gila River constitutions in clauses dealing with the police power and the general welfare, should be included in this San Carlos constitution as well. I suggest the addition of the following paragraph in the letter to the San Carlos Tribe.
    "It is noted that the powers of the council established under Article 4 of the constitution do not include any power to make ordinances for the purpose of regulating the conduct of members of the tribe and protecting the public peace, safety, morals and welfare. Under the constitution as now drafted each of these matters would have to be dealt with through bylaws, requiring a general referendum and an absolute majority of the eligible voters in order to insure their enactment. I therefore suggest the addition after the present section 13 in Article 4 (page 6) the following new sec-
 

 

542

DEPARTMENT OF THE INTERIOR

MARCH 29, 1935

                                                                                          

tion 14 (renumbering the present sections 14, 15 and 16):

'Section 14. General Welfare.

    'The council shall have power to regulate the conduct of members of the tribe and to protect the public peace, safety, morals and welfare of the reservation through the promulgation and enforcement of ordinances, subject to review by the Secretary of the Interior, to effectuate these purposes.' "

    4. In accordance with the suggestion made in your letter to the Indians of the Fort Yuma Reservation I would suggest that the reference in Article 4, section 14 (page 6) to the grant of future powers should be slightly rephrased. The following addition might be made to the letter accompanying the San Carlos constitution.
    "In Article 4, section 14, authorizing the council to receive further grants of power, the statement that such powers may be delegated 'by any other official or agency of Government' is likely to provoke misunderstanding. It would be well to rewrite this phrase as follows: 'by any other qualified official or agency of government.' Such a change would make it clear that this section does not give any new powers to any officials or agencies but merely permits the council to accept from other officials or agencies such additional powers as they may be qualified to delegate to the council."
    5. Article 4, section 16 (page 7), dealing with review by the Secretary and permitting the delegation of such power to subordinate officials, fails to provide any definite procedure for the exercise of review. This, I think, is a serious defect. I suggest as a possible substitute for the present section the following provision:
    "Any resolution or ordinance which, by the terms of this Constitution, is subject to review by the Secretary of the Interior, shall be presented to the Superintendent of the Reservation, who shall, within ten days thereafter, approve or disapprove the same.

    "If the Superintendent shall approve any ordinance or resolution, it shall thereupon become effective, but the Superintendent shall transmit a copy of the same, bearing his endorsement, to the Secretary of the Interior, who may, within 90 days from the date of enactment, rescind the said ordinance or resolution for any cause, by notifying the Tribal Council of such rescission.

    "If the Superintendent shall refuse to approve any resolution or ordinance submitted to him, within ten days after its enactment, he shall advise the Tribal Council of his reasons therefor. If these reasons appear to the Tribal Council insufficient, it may, by a majority vote, refer the ordinance or resolution to the Secretary of the Interior, who may, within 90 days from the date of its enactment, approve the same in writing, whereupon the said ordinance or resolution shall become effective."

    If the foregoing provision, or some similar provision, meets the administrative needs of the Indian Office, the letter to the San Carlos Tribe should be revised so as to include the following statement:
    "Many of the powers to be exercised by the tribal council are made subject to review by the Secretary of the Interior, and Article 4, section 16, provides that the Secretary of the Interior may delegate his power of review to subordinate officials. However, there is no provision in the constitution which specifies how this review is to be exercised, and I think it would help to clarify the relation between the tribal council, the superintendent and the Secretary of the Interior if there were added in place of the present Article 4, section 16, the following provision." (Follow provision above set forth.)
    6. Article 7, section 2 (page 9) prescribes a procedure for recall in extremely ambiguous terms. It is not clear from the language of this section whether a single council member can require that any fellow member shall submit to a recall election, or whether such an election can be ordered only by a majority vote of the council. The following recommendation might well be included in the letter accompanying the draft constitution.
    "Article 7, section 2 (page 9) which deals with removal from office, provides that the council may by unanimous vote recall from office any member who fails in the performance of his duty, and goes on to provide, 'if the council does not reach a unanimous vote it shall be acted upon by the vote of the proper district.' Does this mean that even if the council vote should be five to one against recall such election would be necessary, I do not
 

 

543

OPINIONS OF THE SOLICITOR

MARCH 30, 1935

think that such was the intention of those who drafted this constitution, but in any case the language should be clarified. I would suggest that the following sentence be substituted for the sentence quoted: 'The council may by unanimous vote (the member accused not voting), after affording the accused member a fair opportunity to be heard in his own defense, remove such member; or the council may, by a majority vote, after affording a similar opportunity to be heard in his own defense, require such member to stand for reelection in a special election of the district or section which he represents.' "

    7. In view of factional difficulties on the San Carlos Reservation and the fears of discrimination that have been expressed, particularly by the Mohave Indians, I would suggest that the letter to the tribe might recommend the inclusion in the constitution of a skeleton bill of rights. The following statement might be included in the letter to the tribe:
    "It is customary to include in a constitution a statement of the rights of the people which the tribal government must respect. The following statement or some other statement which more accurately expresses the wishes of the tribe might well be included as a separate article in the constitution after the present Article 4: 'All members of the San Carlos Apache Tribe and of the sections thereof shall be accorded equal political rights and equal opportunities to participate in the economic resources and activities of the tribe, and no person shall be denied freedom of conscience, speech, association or assembly or the right to petition for the redress of grievances."'
    8. Finally, I would suggest that there be added in the letter to the San Carlos Tribe the following statement patterned after a similar statement contained in the letter to the Fort Yuma Reservation:
    "The arrangement of the various sections and articles should be slightly changed so as to conform to a standard order established for all tribal constitutions. This rearrangement will not affect the meaning of the various articles. It can be done when the contents of the articles have been definitely settled."
Solicitor.
                                                                                                                                            NATHAN R. MARGOLD,

GILA RIVER--CONSTITUTION

March 30, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I desire to offer for your consideration the following suggestions with regard to the proposed draft of a constitution for the Gila River Indian Reservation.

    I think the failure of this constitution to provide any definite procedure for the exercise of departmental review is, as I noted in my memorandum to you on the San Carlos Constitution a serious defect. It appears from the attached report of the Tribal Organization Committee that this was not one of the matters upon which agreement was reached by the Indians concerned and that it was expected that the Department would propose a procedure for review that would meet administrative necessities. It would therefore, seem advisable to modify the attached draft constitution by including a clause that would be finally acceptable to the Indian Office. My own recommendation is that there should be substituted for the present article 4, section 3, either the following clause, which is similar to that suggested for the San Carlos Constitution, or some other clause that is equally definite:

"Any resolution or ordinance which, by the terms of this Constitution, is subject to review by the Secretary of the Interior, shall be presented to the Superintendent of the Reservation, who shall, within ten days thereafter, approve or disapprove the same.

"If the Superintendent shall approve any ordinance or resolution, it shall thereupon be come effective, but the Superintendent shall transmit a copy of the same, bearing his endorsement, to the Secretary of the Interior, who may, within 90 days from the date of enactment, rescind the said ordinance or resolution for any cause, by notifying the Tribal Council of such rescission.

"If the Superintendent shall refuse to approve any resolution or ordinance submitted to him, within ten days after its enactment, he shall advise the Tribal Council of his reasons therefor. If these reasons appear to the Tribal Council insufficient, it may, by a Majority vote, refer the ordinance or resolution to the Secretary of the Interior, who may, within 90 days,
 
 


 

544

DEPARTMENT OF THE INTERIOR

MARCH 30, 1935

from the date of its enactment, approve the same in writing, whereupon the said ordinance or resolution shall become effective."

    Article I of the proposed constitution might well be broken into two separate articles, viz., "Article I. Territory", and "Article II. Membership", as suggested in the Outline of Tribal Constitution and Bylaws approved March 9, 1935. Aside from this, the form of this proposed constitution seems entirely acceptable. Undoubtedly, this change, together with the other verbal changes suggested below, might appropriately be made in the text of the draft constitution directly.

    Article IV, section 2 (f) might properly be amended by substituting for the phrase, "exclude nonmembers from the territory of the community", the following phrase, patterned in part after that used in the Fort Yuma Constitution, "exclude from the territory of the Community any non members whose persons may be injurious to the peace, health or welfare of the Community."

    Article VII might be clarified by substituting for the phrase, "any proposed ordinance", the phrase, "any enacted or proposed ordinance." Undoubtedly it was not intended to omit from the scope of the referendum provision ordinances actually enacted, but the language used might be so construed.

    Your attention is called to the fact that the power granted by Article VIII, section 3, to lease or, as your accompanying letter recommends, issue permits for, tribal land and to deposit the rentals or fees received in the community treasury is, strictly speaking, a power which can be exercised only after the information of the organized tribe. I assume that incorporation will follow promptly upon organization, and therefore, refrain from criticizing the language used.

    For your convenience, the suggested changes in the draft constitution have been embodied in the attached pages, which may be substituted for the original pages of like number, if these suggestions meet with your approval.

    I should like to offer the further suggestion that in your letter to the Gila River Reservation, Paragraph 11 (page 3), in which you criticize Article 11, section 1, of the bylaws, should be amended so as to suggest that restrictions upon voting in the council should be based only upon financial interest. Otherwise, membership in unpopular political or social organizations might conceivably be invoked to deprive minority council members of a voice. I recommend, therefore, that there be added at the end of this paragraph, after the word "affiliation" the words, "with any organization or individual having a pecuniary interest in the matter at issue."

    For your convenience, a revised page, including this change, is attached hereto.

Solicitor.
TAXABLE PROPERTY--ASSIGNMENT TO U.S. IN TRUST
April 4, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I am entirely in agreement with the opinion expressed in your memorandum of April 2, 1935, that it would be within the letter and spirit of the Act of June 18, 1934 (48 Stat. 984), to accept from an Indian owning taxable property title to the same "with the understanding that it will be held in trust and assigned to her and her heirs for so long as they may care to occupy and use same" wherever there is a reasonable probability that such acquisition will serve the purpose of land consolidation.

    It does not seem to me, however, that the letter prepared for Superintendent Gray conforms to this statement of policy. Rather, that letter suggests that the Indian applicant is to receive a trust or restricted legal title to the land which she now owns. In other words, there would be simply an imposition of restrictions upon land now owned by an Indian, without effectuating any other changes in the tenure by which the land is held. It was to this latter procedure that my memorandum of December 18, 1934, to which your memorandum of April 2, 1935, is an answer, was specifically directed.

    As suggested in my earlier memorandum, I doubt that it can be fairly said that we are "providing land for Indians", within the meaning of Section 5 of the Act of June 18, 1934, when we take legal title to Indian owned land and issue to the original Indian owner a restricted title to the same land.

    This legal question does not arise if it is the intention of the Indian Office to acquire title in these cases in trust for a given Indian tribe and to issue to the original Indian owner an assignment conveying exclusive rights of use and occupancy. In this case I think it could fairly be said that the land was acquired for the benefit of the tribe concerned. If the assignee or her legal heirs or devisees should at any time cease to use and occupy the lands, it would revert to the tribe for reassignment to other members of the tribe. Land less Indians would thus be benefited by this trans-
 


 

545

OPINIONS OF THE SOLICITOR

APRIL 9, 1935

action, and although the extent of benefit is small this is immaterial since no actual outlay for compensation is involved in the transaction. The question of whether assignments should be controlled by the Secretary of the Interior directly, or by the tribe itself, or by the Secretary until the adoption of a tribal constitution, and thereafter by the tribe, in accordance with such constitution, is primarily a question of policy for the Indian Office to determine. Whatever instrument of assignment may be used for the contemplated transaction should contain specific provisions on this matter as well as on rights of leasing, transfer and inheritance.

    If I am correct in my understanding of the plan contemplated by your memorandum of April 2, 1935, I would suggest that the attached letter for Superintendent Gray be revised so as to state clearly the nature of the interest which the assignee of the land will receive. The last paragraph of the letter assumes that the present owner will receive an allotment rather than an assignment, and should, therefore, be deleted.

Solicitor.
TRUST PERIOD-EXTENSION-MISSION INDIANS

M-27939                                                                                                                                          April 9, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether an order issued on January 7, 1935, by the President of the United States is effective to extend the period of trust on certain lands held for the use and benefit of the Pala Band of Mission Indians in California. The order reads:

    "By virtue of and pursuant to the authority vested in me by the act of March 2, 1917, ch. 146, 39 Stat. 969, 976, amending section 3 of the act of January 12, 1891, ch. 65, 26 Stat. 712, it is ordered that the period of trust on lands held for the use and benefit of the Pala Band of Mission Indians of California, upon which the period of trust expires during the calendar year 1935, be, and it is hereby, extended for a period of ten years from the date on which any such trust would otherwise expire."
    The legal title to the lands affected by the foregoing Executive order is held by the United States under a patent issued under authority of section 3 of the Act of January 12, 1891 (26 Stat. 712). Section 3 reads:
    "That the commissioners, upon the completion of their duties, shall report the result to the Secretary of the Interior who, if no valid objection exists, shall cause a patent to issue for each of the reservations selected by the commission and approved by him in favor of each band or village of Indians occupying any such reservation, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus patented, subject to the provisions of section four of this act, for a period of twenty five years, in trust for the sole use and benefit of the band or village to which it is issued, and that at the expiration of said period the United States will convey the same or the remaining portion not previously patented in severalty by patent to said band or village, discharged of said trust, and free of all charge or incumbrance whatsoever: * * * "
    The act of March 2, 1917 (39 Stat. 969, 976) cited in the Executive order of January 7, 1935, confers authority on the President to extend the trust period in the following language:
    "That section three of the Act of January twelfth eighteen hundred and ninety one (Twenty sixth Statutes at Large, page seven hundred and twelve,) entitled (an Act for the relief of Mission Indians in the State of California) be, and the same is hereby, amended so as to authorize the President, in his discretion and whenever he shall deem it for the interests of the Indians affected thereby, to extend the trust period for such time as may be advisable on the lands held in trust for the use and benefit of the Mission Bands or villages of Indians in California: * * * "
    The trust period provided for in section 3 above is twenty-five years. The patent having issued under date of January 6, 1910 the trust expired on January 5, 1935, two days before the Executive order purporting to extend the trust was issued. The question, therefore, is whether the authority of the President to extend the trust must be exercised within the original trust period or whether he may act with like effect at a later date.

    It is to be observed that under section 3 of the act of 1891 the United States undertakes that at the end of the 25 year trust period it will convey the land to the Indians discharged of the trust and free from all charges or encumbrances whatsoever.
 


 

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DEPARTMENT OF THE INTERIOR

APRIL 9, 1935

The trust on the Pala Indian lands admittedly expired on January 5, 1935. Until conveyance of the fee, however, no vested right is obtained by the Indians which would support a constitutional objection to the enlargement of the period of trust, and there can, therefore, be no question as to the power of Congress to enlarge or revive the trust or to delegate its power in that respect to the President. See United States v. Jackson, 280 U.S. 183; Brader v. James, 246 U.S. 88, Conceding that the power delegated to the President by the amendatory act of 1917 enables him to prolong or extend the trust at any time during the original 25 year period, that act falls short, in my opinion, of conferring upon him the necessary authority to act with like effect at a later date.

    The power conferred upon the President is to extend the existing period of trust fixed by the statute and the patent at a 25 years. The word "extend" is relative in its application, referring to something already begun, and hence implies an enlargement or continuation of the existing status. Accordingly, it is usually held that where authority is granted by statute for the extension of a period of time during which an act is to be performed, the authority must be exercised before the original period terminates. Thus in Schlosser Lumber Co. v. Gillespie, 6 S.W. (2d) 328, the Supreme Court of Tennessee held that the authority conferred upon the court to extend the time for filing a petition for certiorari could not be exercised after the original period allowed thereof had expired. The court said:

    "It will be noted that this court or any of the judges thereof are given authority upon application to extend such time (45 days) for filing petition for certiorari. To extend means to stretch out or to draw out or to enlarge a thing. It implies some thing in existence. Extend is a transitive verb, requiring an object. The object of the extension in the statute is the 45 days. The 45 days having elapsed, there is nothing to extend; no period to prolong.

    "To grant time in which to file petition for certiorari after the expiration of the original term is a power not given to this court."

    To the same effect is the well-considered case of Coffey v. Harris, 197 Pac. 649, in which numerous other cases are cited in support of the rule that the order granting the extension must be made before the right to do the act has lapsed.

    In Reynolds v. United States, 252 Fed 65, the Circuit Court of Appeals, 8th Circuit, expressed a like view with respect to the authority of the President to extend the trust period on an allotment made to an individual Indian under the general allotment act of February 8, 1887 (24 Stat. 388). There, as here, the statute provided for a trust period of the 25 years, with authority in the President to extend the period at his discretion. The allotment was approved by the Secretary of the Interior September 16, 1891, and the allotment certificate or trust patent was issued on February 6, 1892. On November 24, 1916, the President issued an order extending the trust for ten years. The court found that the trust period should be calculated from the date of approval of the allotment rather than from the date of the trust patent and ruled that as the trust had expired prior to the issuance of the Executive order, the order was in effective to extend the trust. The decision of the Circuit Court of Appeals was reversed by the Supreme Court on the ground that the period of trust ran from the date of the trust patent and not from the date of the approval of the allotment and as this brought the President's order within the original 25 year period, the Supreme Court found it unnecessary to consider the authority of the President to act after that period had expired. United States v. Reynolds, 250 U.S. 104. On that point however, Judge Youmans, speaking for the Circuit Court of Appeals, said:

    "In our judgment the trust period expired September 16, 1916, before the issuance of the executive order of November 24th of the same year. The President had no power to revive the expired period nor to create another period. Congress created a trust period, and authorized the President to extend it in his discretion. Congress, however, did not authorize the President in his discretion to create a new trust period. The power to extend a trust period already created is one thing. The power to create a new trust period is an entirely different thing."
    In an opinion dated April 27, 1922, (48 L. D. 643), the Solicitor for this Department ruled that the President was without authority to extend the trust period on an Indian allotment after it had once expired. In that opinion an amendatory act providing for extensions to be made by the President "prior to the expiration of the trust period" was referred to and treated as a legislative interpretation of the prior enactment on the same subject, the Solicitor pointing out, however, that action by the President after expiration of the time "would virtually amount to a reimposition of the restrictions against alienation, or the creation of a new trust, rather than an extension of the former period."
 


 

547

OPINIONS OF THE SOLICITOR

APRIL 27, 1935

    In view of the foregoing, it is my conclusion that the power to extend conferred upon the President by the act of March 2, 1917, cannot reasonably be construed to empower him to act after the trust period has expired. The power conferred is to extend an existing trust-not to revive an expired trust or create a new one. The trust period on the Pala Indian lands, therefore, expired on January 5, and the trust was not restored by the Executive order of January 7, December 18, 1934, the Indians of the Pala Band voted to reject the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). Section 2 of that act which otherwise would have extended the trust on their lands is therefore without application. The power again to impress the lands with the trust now rests with Congress and I recommend that immediate consideration be given to the preparation and submission of a bill to Congress having for its purpose the restoration of the lands of the Pala Indians to a trust status.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

Approved: April 9, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.

NAVAJO TIMBER SALE CONTRACT

M-27998                                                                                                                             April 27, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the written request of the Assistant Commissioner of Indian Affairs you have referred to me for my opinion the following questions respecting the timber sale contract covering the Defiance Plateau Logging Unit on the Navajo Indian Reservation:

    "(a) Has the contract been breached, in view of the circumstances and facts presented herein and as set forth in the letter of December 7, 1933, approved by the Department January 4, 1934?

    "(b) Has the contract with the Lutcher & Moore Lumber Company been canceled?"

    Considering the questions inversely, it is my opinion that the contract has not been canceled and that the contract has been breached.

    Before setting forth the reasons for my opinion, reference should be made to the facts and circumstances of this contract matter.
 
    The original purchaser under this timber sale contract, the McCaffey Company, assigned the contract to the Lutcher & Moore Lumber Company, a Texas corporation, on August 9, 1929, and the assignment was approved on August 20, 1929. The Lutcher & Moore Lumber Company will herein after be referred to as the purchaser. The contract obligated the purchaser to cut and remove, unless relieved by the Commissioner of Indian Affairs, at least 25,000,000 feet of timber prior to March 31, 1932 and not less than 25,000,000 feet each year thereafter until the contract was completed. Acting pursuant to the contract provision for relief from cutting requirements and pursuant to Regulation No. 46 of the General Timber Sale Regulations of 1920, which are expressly made a part of the contract, the Commissioner of Indian Affairs extended the time for removal of the first 25,000,000 feet from March 31, 1932, to March 31, 1933, upon certain conditions to which the purchaser agreed in a supplemental agreement, approved May 27, 1931. One of these conditions was that the purchaser should pay to the Superintendent of the Southern Navajo Indian Agency for and on behalf of the Navajo Tribe of Indians $62,500 in three installments, namely, $12,500 prior to March 31, 1931, $25,000 on or before March 31, 1932, and $25,000 on or before March 31, 1933. The first installment was paid on March 30, 1931.

    By the Commissioner's letter of February 18, 1932, approved February 20, 1932, the $25,000 installment payable on or before March 31, 1932, was waived, with express exclusion from the waiver of the condition that a $25,000 installment be paid on or before March 31, 1933. By the same letter there was waived the requirement of a minimum cut of 25,000,000 feet annually "to the extent of requiring an annual cut of only 10,000,000 feet during the five years beginning April 1, 1932."

    The purchaser failed to cut any timber by March 31, 1933, and failed to pay on or before that date the $25,000 installment. By letter of May 23, 1933, approved May 25, 1933, the Commissioner stated to the purchaser:

    "As you have been unable to cut any of the 10,000,000 feet which was required to be cut during the year ending March 31, 1933. you are hereby relieved of such requirement with the understanding that you will cut the necessary 50,000,000 feet prior to April 1, 1937. In view of the existing economic conditions you will also be relieved from making the payment of $25,000 due on or before March 31, 1933."
    By a telegram of July 8, 1933. the Commissioner advised the purchaser:
 


 

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DEPARTMENT OF THE INTERIOR

APRIL 27, 1935

    "The department regards with favor the proposal to revoke the waiver extending time for your timber operations STOP It is very likely that such action will be taken immediately STOP This information is forwarded so that you may act accordingly."

And, by a letter of August 30, 1933, approved September 2, 1933, the Commissioner advised the purchaser that "the relief granted you in Office letter 'Forestry 3260-28-12101-33,' dated May 23, 1933, is hereby revoked because the granting of this relief is deemed invalid by the Department of the Interior." This relief had been held to be invalid, in view of the act of March 4, 1933 (47 Stat. 1568), by the Solicitor's Opinion of August 8, 1933 (M-27499), signed by the Acting Solicitor, because the Indians involved had not consented to said relief.

    In response to an informal request of the Commissioner of Indian Affairs, I submitted to him on October 23, 1933, a memorandum opinion on the legal status of this timber sale contract. In this memorandum I stated that the contract had been breached as of April 1, 1933, by the purchaser's failure to make the $25,000 installment payment required on or before March 31, 1933, and by its failure to comply with the requirement of cutting and removing 10,000,000 feet of timber by said date. I stated further that the waiver of May 23, 1933, did not affect the breach, because the waiver was illegal and void in view of the act of March 4, 1933, as construed in the Solicitor's Opinion of August 8, 1933, and, independent of this first reason, because the waiver had been revoked on August 30, 1933. I concluded that the contract could be canceled by proceeding in accordance with the General Timber Sale Regulations, No. 52.

    In reliance upon my memorandum the Commissioner at the Navajo Tribal Council of October 30, 1933, advised the tribe that his waiver of May 23, 1933, was "without force-is null and void-never had any effect, and can be disregarded because it was contrary to that Act of Congress of last March * * *." He further advised the tribe that the purchaser was in default on its contract and had been since April 1, 1933, and that if the tribe desired to terminate the contractual arrangements with the purchaser permanently, "all that would be necessary would be the serving of written notice." At the Council the Commissioner again had occasion to state that, "The contract practically is already dead and all that is necessary is to say so in writing." The Council voted in favor of cancellation and in favor of requesting the Secretary of the Interior and the Commissioner of Indian Affairs to proceed with the collection of the $25,000 due from purchaser on March 31, 1933, and also whatever damages which may have accrued to the tribe in the breach of the contract. (Minutes of the Navajo Tribal Council held at Tuba City, Arizona, October 30, 1933, pp. 6, 10, 14.)

    On December 7, 1933, the Commissioner, by letter to the Secretary of the Interior, recommended "that the timber contract held by the Lutcher & Moore Lumber Company for the Defiance Plateau Timber Unit be declared forfeited and a demand made upon the Fidelity and Deposit Company of Maryland for the penalty of the bond in the sum of $50,000." This letter was approved on January 4, 1934, by the Assistant Secretary. Neither the Indian Office nor the Department, however, has taken any action to said letter.

    In the Solicitor's Opinion of March 30, 1934 (M-27681), I concluded that modifications in the terms of Indian timber sale contracts made pursuant to contract provisions therefor and without the consent of the Indians were valid, notwithstanding the required conditions of the act of March 4, 1933 (47 Stat. 1568). In said opinion the Solicitor's Opinion of August 8, 1933 (M-27499), in so far as it was inconsistent with the subsequent opinion, was expressly overruled.

    It is in view of the foregoing facts and circumstances that the questions presented for my opinion must be answered.

I.

    The contract has not been canceled.

    No action of cancellation by the method provided for in the contract has been taken. Regulation No. 52 of the General Timber Sale Regulations of 1920, which are expressly made a part of the timber sale contract, provides that:

    " * * * Persistent failure to comply with any one of the requirements of the contract or regulations after written notice addressed to the purchaser by the superintendent or the officer in charge will be ground for revocation by the officer approving the contract of all rights of the purchaser under this and other contracts and the forfeiture of his bond and of all moneys paid, and the purchaser will be liable for all damage resulting from his breach of contract."
    Neither the superintendent nor the officer in charge, nor any other official of the Indian office or the Department, has ever given notice to the purchaser, pursuant to this regulation, that it has persistently failed to comply with the contract requirements and that its contract is, therefore, subject to cancellation.
 


 

549

OPINIONS OF THE SOLICITOR

APRIL 27, 1935

    Furthermore, there is nothing in the file to indicate that the purchaser received any notice of the Commissioner's letter of December 7, 1933, recommending that the contract be declared forfeited and a demand made upon the surety company for the penal sum of the bond. Also, the Assistant Commissioner's letter of November 17, 1934, requesting this opinion, states that no action has been taken pursuant to the letter of December 7, 1933. Although a letter of September 28, 1934, from Fidelity and Deposit Company of Maryland, surety on the purchaser's bonds, states: "It is our understanding through Lutcher & Moore that their contract has now been canceled," the correspondence in the files, including letters of the purchaser to the United States Senators from Texas and Arizona and to the Indian Office, indicates an assumption by the purchaser that its contract has not been canceled.

    In view of the fact that no formal action of cancellation has been taken in compliance with the cancellation procedure established by the contract, and in view of the fact that the Indian Office has not by any method attempted cancellation, it must of necessity be concluded that cancellation of the contract has not been effected. In all probability cancellation could be effected only by the method established by the contract and the regulations made a part thereof. But it need not be determined here whether the contract method is exclusive, for there has been no attempt to cancel by either the contract or other method.

II.

    The contract has been breached.

    This conclusion, which I stated in my memorandum opinion of October 23, 1933, on the legal status of this contract, has not been changed by the Solicitor's Opinion of March 30, 1934 (M-27681), in which I overruled in part the Solicitor's Opinion of August 8, 1933 (M-27499).

    Under the Solicitor's Opinion of March 30, 1934, modifications in the terms of Indian timber sale contracts made without the consent of the Indians involved are valid if made pursuant to contract provisions therefor. It follows that the relief granted the purchaser by the Commissioner's letter of May 23, 1933, was valid, for it was granted pursuant to the provisions of the contract and No. 46 of the General Timber Sale Regulations which are a Part of the contract.

    It does not follow, however, that the relief validly granted on May 23, 1933, remained effective, for it was revoked by the Commissioner's letter of August 30, 1933, approved on September 2, 1933. Although the Commissioner wrote to the purchaser that the relief was revoked "because the granting of this relief is deemed invalid by the Department of the Interior," the revocation was nevertheless effective.

    The revocation was not in violation of any contract right of the purchaser, for the relief was not the result of the exercise of any option that the purchaser held under the contract, nor was it granted for any consideration flowing from the purchaser.

    Furthermore, revocation was not precluded by any equitable estoppel in favor of the purchaser, for the purchaser did not alter its position in reliance on the relief so as to build an estoppel against revocation. The Commissioner's memorandum of January 23, 1935, states that the purchaser took no action between May 23, 1933, and the time of revocation in cutting or preparing to cut timber. The statements of Mr. F. H. Farwell, Vice President of the purchaser corporation, made at the Navajo Tribal Council on October 30, 1933, and the correspondence from the purchaser in the file confirms the Commissioner's memorandum on this matter of fact. The file clearly shows that the economic depression generally and the depressed lumber market in particular caused the purchaser to refrain from commencing operations under the contract and that the purchaser deliberately held operations in abeyance awaiting market conditions which would make operations profitable to it. It was for these reasons that the purchaser refrained from commencing operations by March 31, 1933, between March 31, 1933, and May 23, 1933, and during the summer of that year. In these circumstances it is clear that there was no alteration in the position of the purchaser in reliance on the relief granted on May 23, 1933. The situation on August 30, 1933. and at the time when the purchaser received notice of the revocation, was, therefore, such that the Commissioner could effectively revoke the relief granted on May 23.

    As I stated in my memorandum opinion of October 23, 1933, with regard to the law controlling revocation of a waiver of a breach of contract:

    "In many court decisions there is general language to the effect that a waiver of a breach of contract, once made, can not be revoked. Examination of these many decisions, however, reveals that in each of them the party favored by the waiver had acted in reliance upon it, had continued performance of the contract, so as to build an estoppel against revocation. That the Purchaser would have to act in reli-
 
 

 

550

DEPARTMENT OF THE INTERIOR

APRIL 27, 1935

ance on the waiver before he could rely upon it is indicated in the case of Watkins v. Neff (1927; 288 Pa. 314, 136 Atl. 221), in which the court held that where a default is waived the one in default may tender performance and enforce the contract obligations; but that if he fails to tender performance or to perform he can not rely upon the waiver. Section 297 of the Restatement of the Law of Contracts states the rule applicable here, as follows: 'Such a waiver, unless it is a binding promise within the rules for the formation of contracts, can be retracted at any time before the other party has materially changed his position in reliance thereon, but not afterwards.'

and illustrates the rule thusly:
    'A contracts to buy and B contracts to sell goods to be delivered by September 1. The goods are not delivered by that day. On September 2 A writes B that he will accept the goods if delivered by September 15. On September 8 A writes B that he has changed his mind and will not accept the goods. A is bound to take the goods on September 15 if B materially changes his position after receiving the letter of September 2, and before receiving that of September 8. Otherwise A is not bound to take them."`
    Whether the Commissioner would have revoked the relief granted on May 23, 1933, had he known on August 30, 1933, that the relief had been validly granted, is immaterial to a determination of the legal status of the contract, for he did revoke; and he could revoke for no reason at all or for any reason, even an incorrect one. The conclusion of my memorandum opinion of October 23, 1933, that the contract was breached as of April 1, 1933, stands, in view of the revocation of the relief granted, notwithstanding the changed construction of the act of March 4, 1933, made in my opinion of March 30, 1934.

    Whether, in view of the incorrect premise of the reason assigned for the revocation of August 30, 1933, relief from the contract requirements which have been breached should now be granted is a matter for administrative determination.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.

Approved: April 27, 1935.
HAROLD L. ICKES, Secretary of the Interior.

ROYALTY PAYMENT ON GASOLINE-
OSAGE RESERVATION

M-27902                                                                                                                                 April 30, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to whether royalty should be paid on gasoline manufactured from casing-head gas produced from property held under an Osage oil lease by the lessee and used as fuel for a tractor in carrying on drilling operations on the leased premises. A ruling on the point has been asked by W. H. McBride, Inc., holder of three leases on the Osage Reservation.

    An interpretation of several sections of the leases and of the departmental regulations is called for. Those which have been brought in question are as follows:

    Section 2 of the lease:

    "The lessee agrees to pay or cause to be paid to the superintendent of the Osage Indian Agency at Pawhuska, Oklahoma, for the lessor, as royalty, the sum of 16 2/3 per cent of the gross proceeds from sales after deducting the oil used for fuel in operating the lease * * * "'
    Section 12 of the lease:
    "All casing-head gas shall belong to the oil lessee and when used for the manufacture of gasoline shall be metered and be subject to a royalty of 16 2/3 per cent based on the market value of the gasoline contents, and all such gas not utilized by the oil lessee on his leased premises or for operating other adjoining leases within the Osage Reservation, shall belong to the gas lessee, subject to the prescribed royalty of 16 2/3 per cent."
    Section 16 of the lease:
    "This lease is subject to the regulations now or hereafter prescribed by the Secretary of the Interior, relative to such leases, all of which are made a part of this lease: Provided, That no regulations made after the approval of this lease shall operate to affect the term of lease, rate of royalty, rental or acreage, unless agreed to by both parties."
    Section 10 of the regulations approved July 12, 1932:
 


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