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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."

    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.

    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-
 

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."

    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
 

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,

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."

    "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."

    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

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?

    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)."

    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.

    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
 

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.

    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.

    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.

 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.
 

 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,

February 28, 1935.

    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-

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."

    "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."

"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.) "

    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.)

    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
 

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-
 

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
 

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.)

    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),
 

"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.
 

    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,

    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. * * *"

    "The existence of the right in Congress to

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. * * *"

    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."

    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,

    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."

    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."

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.

    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."

    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.

    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."

    "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.' "

    "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-
 

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.' "

    "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."

    "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."

    "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.)

    "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
 

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.' "

    "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."'

    "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."

    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,