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576

DEPARTMENT OF THE INTERIOR

AUGUST 27, 1935

Indians of Minnesota, Interveners, No. H-76, decided January 14, 1935, not yet reported.

    The question is presented then, whether under the Act of June 18, 1934, all of a tribe except one band may adopt a constitution and receive a charter. Section 19 of the act provides:

    "The term 'tribe' wherever used in this act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on the reservation."
    Language permitting a portion of a tribe to organize under a distinct constitution and charter was stricken from the earlier drafts of the Wheeler Howard bill. Literally construed there would seem to be no authority for the organization of parts of a tribe where such part is neither an organized band nor united by residence on a single reservation. But in the case of the Minnesota Chippewas, a persuasive argument may be advanced that the members of the tribe not affiliated with the Red Lake Band have themselves been recognized as a single tribe or band. Convincing evidence of such recognition is found in the Act of January 14, 1889 (25 Stat. 642). That Act deals with all of the Chippewa Indians in the State of Minnesota and provides for the cession of all their lands except so much of the White Earth Reservation and Red Lake Reservation as is needed to make the allotments provided for in the Act. Only members of the Red Lake Band, however, were to be allotted on the Red Lake Reservation. All other Minnesota Chippewas were to be allotted on the White Earth Reservation, and provision was made for the removal of all but the Red Lake Indians to the White Earth Reservation. One of the chief purposes of the Act, therefore, was the centralization and consolidation on the White Earth Reservation of all the various bands of Chippewa Indians in Minnesota other than the Red Lake Indians. It is true that a great many of the Indians remained on the ceded reservations and took allotments there under the privilege accorded them so to do by the Act; nevertheless they and their brethren who removed to White Earth are still closely united by blood and common. interest in tribal property. Accordingly, it would appear to be proper and consistent with the purposes of the Act of 1889, to organize these bands as one Tribe under the provisions of the Act of June 18, 1934.

    The legal implications of the alternative modes of organization deserve serious consideration before a final decision is made by the Department on this question. Organization of the entire Minnesota Chippewa Tribe would involve the legal problem of safeguarding local autonomy and local land rights, through subordinate district organizations. The general organization would be the only body which the Department would have to consult in making authorized expenditures of Minnesota Chippewa funds. On the other hand, if more than one Minnesota Chippewa organization is established there will be a plurality of corporations having interests in the common funds of the Minnesota Chippewa Tribe. This may well lead to serious legal difficulties. In my opinion the minutes of the meeting at which a tentative constitution for the various Minnesota Chippewa Bands, other than the Red Lake Band, was adopted do not indicate a thorough understanding of these issues. A reasonable solution of this problem can be made only in the light of a careful analysis of the various specific activities, industrial, financial, and social, which are to be undertaken by the Minnesota Chippewa Indians. The fundamental question would seem to be whether these activities require a central coordination. This, of course, is a question on which I am unable to throw light, not having before me an account of the various projects planned for the benefit of the Minnesota Chippewa Indians.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
ATTORNEY CONTRACTS
September 12, 1935.
Memorandum for the Secretary:

    Herewith are letters from Senator Steiwer and Congressman Rogers requesting that all action in the matter of terminating Indian attorney con tracts affected by my opinion of June 4, 1935, be deferred pending action by Congress on H. J. Res.
405.

    The opinion of June 4 deals with a contract originally entered into between the Seminole Nation and John B. Campbell, Esq. The contract provided that it should extend for a period of five years from the date of its approval by the Secretary of the Interior with the proviso that "should the said cause or suit not be then fully determined and settled by the court of last resort and an appropriation not have then been made to satisfy any judgment that may be recovered, if any, the said contract shall remain in force until such appropriation and final settlement". The opinion of June 4 held that this provision purporting to extend the contract beyond the five-year period is in valid as in violation of section 2103, Revised
 


 

577

OPINIONS OF THE SOLICITOR

SEPTEMBER 13, 1935

Statutes of the United States (Sec. 81 Title 25 USC.), declaring that contracts of this nature shall have a fixed limited time to run . . . distinctly stated". It was further held that such violation caused the contract to terminate in any event at he end of the five-year period.

    This ruling applies of course other contracts containing similar provisions and the result is that several Indian tribes are now being represented before the Court of Claims under contracts which have expired. The Cherokee Nation in Oklahoma, for example, has several suits now pending before the Court of Claims which were filed by attorneys under contracts of this nature and Mr. Rogers suggests that under the opinion of June 4 the filing of these suits is nullified. I do not agree with that view. The suits were filed in good faith with the assent of the Indians under authority of an act of Congress and in the belief that the contracts were still in force. A subsequent finding that the contracts had terminated would not in my opinion nullify the filing of the suits nor strike down the right of the attorneys to compensation for services rendered in good faith. "Services not gratuitous and neither mala in se nor mala prohibita rendered under a contract that is invalid or unenforceable may furnish a basis for an implied or constructive contract to pay their reasonable value." Winton v. Amos (255 U.S. 373).

    The Joint Resolution introduced by Mr. Rogers is designed to validate the extension provision contained in these contracts. Congress has the power so to do and I am aware of no objection to such action. The present objection to the extension provision is purely statutory. The provision otherwise is entirely reasonable and so far as I am advised it is satisfactory to the Indians, to the Department and to the attorneys. Legislative action such as proposed thus appears to be free from administrative objection. Legislation is, I think, preferable to the negotiation of new contracts with the Indians because the latter course may result in the substitution of new counsel for attorneys who have already done a tremendous amount of work and have their cases well on the way to judicial determination.

    I therefore recommend that the request of Senator Steiwer and Congressman Rogers be granted except in the cases of the contracts of the Creek and Seminole Nations. General conventions of the Seminole and Creek Nations have been called to meet on September 13 and 17, respectively, for the purpose of selecting a representative committee which, in turn, will select new attorneys. The former Creek contract, aside from the ground stated in the opinion of June 4, has been held by the Department to have terminated by the deaths of Attorneys Van Court and Chamberlain, who were original parties to the contract. The proposed legislation will not, therefore, apply to this contract and the negotiations for new attorneys should go forward. In the Seminole case the former contract was originally made with Mr. John B. Campbell of Hondenville, Oklahoma. While retaining an interest in the contract Mr. Campbell made sundry assignments and some of the assignees subsequently died. The negotiations for a new contract need not be suspended but approval of the new contract should be withheld pending action by Congress on the proposed legislation unless the new contract is made with the surviving parties to the original contract.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
WHETHER ANOTHER ELECTION MAY BE
CALLED BY SECRETARY IF VOTE FALLS
BELOW THIRTY PERCENT--IRA
September 13, 1935.
Memorandum for Commissioner Collier:

    By memorandum of June 28, 1935, you informally requested my opinion of the legal effect of section 1 of the act of June 18, 1935, amending the Wheeler-Howard Act. In that memorandum you stated as your provisional view that "in those cases where the vote may have fallen below 30 percent, new referendums may be called but do not have to be called." I endorse this view as the correct legal interpretation of this section.

    The only effect of section 1 of the amendment is to lower the number of negative votes needed to exclude a reservation from the act, from a majority of the adult Indians of the reservation to a majority of the votes cast at an election at which 30 percent of the eligible population voted. Where less than 30 percent have voted, the act continues to apply to that reservation. The statutory duty of the Secretary to call an election is completely fulfilled if he holds or has held an election by secret ballot within the time required and with the requisite notice.

    However, the amendatory act of June 18 contains nothing to prevent the Secretary from calling another election in this class of cases-that is, where less than 30 percent of the eligible voters participated in the election-and I think he is privileged but not required to do so. In the discretion of the Secretary, therefore, a second election may be called within the time prescribed for holding elections irrespective of whether the majority of votes cast
 


 

578

DEPARTMENT OF THE INTERIOR

FEBRUARY 7, 1935

at the previous election was in favor of or against the act. The consideration that in election held prior to the amendatory act the Indians did not have knowledge of the 30 percent requirement should be given weight in determining whether further elections should be called in those cases in which less than the required number participated.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
CHEROKEE--DISTRIBUTION OF OIL
ROYALTIES
September 20, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration your letter of September 18 regarding the distribution of advance royalties and rentals accruing from an oil and gas lease on the allotment of Tooniye Goback, a deceased full-blood Cherokee Indian, amounting to $860.72.

    You hold that five sixths of the above amount should be disbursed to one J. D. Ward upon the theory that the heirs holding interest to that extent in the allotment had executed a valid deed conveying such interest to him during the year 1909. In so holding you refer to the decision of the Circuit Court of Appeals, Eighth Circuit, in Sunday v. Mallory (237 Fed. 526), and state:

    "The decision in that case was adverse to the Indian claimants and was upheld by the Supreme Court of the United States-see 248 U.S. 545."
    The decision of the Circuit Court of Appeals to which you refer involved the validity of conveyances made by a number of Indian heirs all of whom appear to have been full bloods, with the exception of Andy Sunday who was a Cherokee Indian of seven-eighths blood. The Indian to whom the land had been allotted died in 1903 and it appears that the land passed to his heirs free from restrictions. The act of April 26, 1906 (34 Stat. 137), however, subjected conveyances by full-blood heirs of members of the Five Civilized Tribes to the approval of the Secretary of the Interior. But notwithstanding that provision, the Circuit Court of Appeals ruled that the conveyances were valid without the Secretary's approval, holding in that connection that the act of 1906 did not reimpose restrictions upon lands which had theretofore become unrestricted. By per curiam decision the Supreme Court of the United States, upon authority of Brader v. James (246 U.S. 88), reversed the Circuit Court of Appeals except as to the one-sixth interest conveyed by Andy Sunday, as to which interest the judgment was affirmed. In other words, the decision which you state was adverse to the Indian claimants was in favor of all who were full bloods and adverse only as to Andy Sunday to whom the act of 1906 did not apply because he was of less than the full blood.

    The present record indicates that the heirs who made the conveyances in 1909 in the instant case were full bloods. The restrictions then applicable to them are found in section 9 of the act of May 27, 1908 (35 Stat. 312), which declares that no conveyance of any interest inherited by a full-blood heir in lands allotted to members of the Five Civilized Tribes shall be valid unless approved by the county court having jurisdiction of the settlement of the deceased allottee's estate. Further investigation should be made for the purpose of determining whether the conveyance of 1909 was approved by the county court having jurisdiction of the settlement of the deceased allottee's estate. If so, the moneys under consideration to the extent of the interest conveyed may be paid to Mr. Ward upon the submission by him of satisfactory evidence that he was the owner of the land during the period the advance rentals and royalties became due under the terms of the oil and gas lease. If, on the other hand, the investigation discloses that the conveyance of 1909 was not approved by the proper county court, then the conveyance was and is void and the moneys should be paid to the heirs of the deceased allottee as determined by the County Court of Cherokee County, Oklahoma, on October 5, 1934.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
FIVE TRIBES--LAND PARTITION
September 21, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration your letter of September 9 to Senator Thomas presenting the question of whether a tract of restricted and tax-exempt land inherited by Indians of the Five Civilized Tribes of seven-eighths blood is subject to partition under the provisions of section 2 of the act of June 14, 1918 (40 Stat. 606).

    You take the position that as to heirs of more
 


 

579

OPINIONS OF THE SOLICITOR

OCTOBER 16, 1935

than one half blood the restrictions resting on the lands in the hands of the deceased allottee are preserved by section 1 of the act of January 27, l933 (47 Stat. 777), and that therefore the lands are not subject to partition by the Oklahoma courts.

    Section 2 of the act of June 14, 1918, supra, provides:

    "The lands of full blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the State of Oklahoma, providing for the partition of real estate. Any land allotted in such proceedings to a full blood Indian, or conveyed to him upon his election to take the same at the appraisement, shall remain subject to all restrictions upon alienation and taxation obtaining prior to such partition. In case of sale under any decree, or partition, the conveyance thereunder shall operate to relieve the land described of all restrictions of every character."
    The foregoing provision applied to lands inherited by full-blood heirs and expressly subjects such lands to the laws of Oklahoma with respect to the partition of real estate. There is no express repeal of this provision in the act of January 27, 1933, nor is there any indication in that act that Congress intended to repeal the prior law so as to withdraw these lands from the partition laws of Oklahoma and such a repeal may not be presumed and ought not to be implied unless there is such repugnancy that the two laws may not operate harmoniously. I find no such repugnancy. The act of 1933 continues in full force and effect the restrictions attaching to the lands in the hands of the deceased allottee where the entire interest therein is inherited by restricted Indians, i.e., Indians of the Five Civilized Tribes of one half or more Indian blood. In partition actions affecting any such lands inherited by full bloods the restrictions so continued in force are preserved by the express declaration in the act of 1918 that:
"Any land allotted in such proceedings to a full blood Indian, or conveyed to him upon his election to take the same at the appraisements shall remain subject to all restrictions upon alienation and taxation obtaining prior to such partition."
    The scope of the act of 1918 is confined, however, to lands inherited by full-blood heirs and it has no application to lands inherited by Indians of less than the full blood. The lands in the instant case which were inherited by Indians of seven eighths blood are not, therefore, subject to partition under said act, and as such partition necessarily involves an alienation in violation of the restrictions imposed by section 1 of the act of May 27, 1908 (35 Stat. 312), and continued in force by the act of 1933, the lands cannot be partitioned in the absence of a removal of the restrictions by the Secretary of the Interior. In view of this situation I suggest that you consider the advisability of recommending legislation by Congress repealing the act of 1918, with appropriate provisions subjecting all restricted lands to partition with the approval of the Secretary of the Interior under rules and regulations prescribed by him. In the meantime it is suggested that all cases involving partition of restricted lands inherited by heirs of one half or more and less than the full blood in which notice is served on the Superintendent of the Five Civilized Tribes under the act of April 12, 1926 (44 Stat. 239), be transferred to the Department of Justice with recommendation that the cases be removed to the Federal court. Where partition actions have been filed and notice has not been served on the Superintendent under the act of 1926 the probate attorney should be instructed to bring the cases to the attention of your office so that appropriate action looking to their removal to the Federal court may be taken. In presenting both classes of cases to the Department of Justice it should be explained that it is the position of this Department that such lands are not subject to partition under the act of 1918 and that any attempt to partition the lands prior to a removal of restrictions by the Secretary of the Interior is a violation of the existing Federal restrictions.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
PAPAGO RESERVATION-
MINING CHARGES

M-28183                                                                                                                             October 16, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Section 3 of the Act of June 18, 1934 (48 Stat. 984) provides in part that persons locating mining claims within the Papago Indian Reservation shall pay for the occupancy of such claims certain surface rental charges. My opinion has been requested concerning the applicability of this provision to
 


 

580

DEPARTMENT OF THE INTERIOR

OCTOBER 16, 1935

claims located prior to the enactment of the cited statute.

    The Executive order of February 1, 1917, which established the Papago Reservation, and the Act of February 21, 1931 (46 Stat. 1202) which enlarged the reservation, both provided that the mineral lands within the reservation should be open for exploration, location and patent under the general mining laws of the United States. Thus, these lands were subject to disposition in the same manner as mineral lands upon the unappropriated and unreserved public domain It is clear that the Congress had power to subject the mineral lands of the Papago Reservation to such disposition. See Opinion of Solicitor dated March 7, 1934 (M-27656).

    By order dated October 28, 1932, the Secretary of the Interior temporarily withdrew the reservation from mineral entry. That withdrawal continued in effect until it was expressly revoked by section 3 bf the Act of June 18, 1934. The pertinent portions of section 3 are in the following language:

    "* * * That the order of the Department of the Interior signed, dated, and approved by Honorable Ray Lyman Wilbur, as Secretary of the Interior, on October 28, 1932, temporarily withdrawing lands of the Papago Indian Reservation in Arizona from all forms of mineral entry or claim under the public land mining laws, is hereby revoked and rescinded, and the lands of the said Papago Indian Reservation are hereby restored to exploration and location, under the existing mining laws of the United States, in accordance with the express terms and provisions declared and set forth in the Executive orders establishing said Papago Indian Reservation: Provided further, That damages shall be paid to the Papago Tribe for loss of any improvements on any land located for mining in such a sum as may be determined by the Secretary of the Interior but not to exceed the cost of said improvements: Provided further, That a yearly rental not to exceed five cents per acre shall be paid to the Papago Tribe for loss of the use or occupancy of any land withdrawn by the requirements of mining operations, and payments derived from damages or rentals shall be deposited in the Treasury of the United States to the credit of the Papago Tribe: Provided further, That in the event any person or persons, partnership, corporation, or association, desires a mineral patent, according to the mining laws of the United States, he or they shall first deposit in the Treasury of the United States to the credit of the Papago Tribe the sum of $1.00 per acre in lieu of annual rental, as hereinbefore provided, to compensate for the loss or occupancy of the lands withdrawn by the requirements of mining operations: Provided further, That patentee shall also pay into the Treasury of the United States to the credit of the Papago Tribe damages for the loss of improvements not heretofore paid in such a sum as may be determined by the Secretary of the Interior, but not to exceed the cost thereof; the payment of $1.00 per acre for surface use to be refunded to patentee in the event that patent is not acquired."
    Between February 1, 1917 and October 28, 1932, numerous mining claims were located within the Papago Reservation. Many of them have not been patented. The character of the interest vested in the locators of these unpatented claims prior to June 18, 1934, must be examined before the applicability of the rental provision of the 1934 act to such claims can be determined.

    It is well established that under the mining laws of the United States the perfection of a location vests in the locator a property interest in the located claim and that an exclusive right of possession and enjoyment is an essential feature of that property right. See Rev. Stat., sec. 2322; Wilbur v. Krushnic, 280 U.S. 306 (1930); Cole v. Ralph, 252 U.S. 286 (1920); Gwillim v. DonnelIan, 115 U.S. 45 (1885); Forbes v. Gracey, 94 U.S. 762 (1876). Moreover, the general mining laws give to the locator a right to acquire full legal title to the located claim by procedure defined in those laws. See Revised Statutes, section 2325. One court has aptly said that a locator "is the equitable owner of the mining claim, and while the Government holds the legal title it holds it in trust for him, to issue a patent therefor, if he should elect to obtain one upon his complying with the provision of the law entitling him to such issuance." See VanNess v. Rooney, 160 Cal. 131, 116 Pac. 392 (1911).

    Thus, it seems clear that at the time the locations here in question were perfected the exclusive right of possession and the right to obtain a patent were conferred and defined by the mining laws then in existence. If, thereafter, the right to possess such a located claim or the right to obtain a patent therefor should be burdened by a requirement that rent be paid for surface occupancy or that some sum in lieu of rent be paid for permanent occupancy before a patent shall issue, such
 


 

581

OPINIONS OF THE SOLICITOR

OCTOBER 31, 1935

imposition would necessarily be in derogation of existing property rights.

    Had Congress expressly provided for such interference with preexisting rights, a serious question of constitutional power would arise. The Act of June 18, 1934, should not be given an interpretation of such doubtful constitutionality unless the language of the statute so requires. The statute does not state whether its rental requirements shall apply to claims already located. However, it does provide that "nothing contained herein, except as expressly provided, shall be construed as authority for the Secretary of the Interior, or any other person, to issue or promulgate a rule or regulation in conflict with the Executive order of February 1, 1917 * * * or the Act of February 21, 1931 * * *". It seems a reasonable construction of the quoted provision that Congress intended that the new provisions concerning mining on the Papago Reservation should be strictly construed. Certainly, this provision, considered together with the legal status of existing locations, must serve to defeat any contention that Congress intended or attempted to make any change in the status of existing locations.

    It is my opinion that the requirements of rental for surface use and of payment in lieu of rental as a prerequisite to the issuance of a patent, contained in section 3 of the Act of June 18, 1934, apply only to locations perfected after June 18, 1934.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.
Approved: October 16, 1935.
T. A. WALTERS, First Assistant Secretary.

EDUCATION AND RELIEF-STATE CONTRACT

M-28197                                                                                                                              October 31, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Office of Indian Affairs has requested that there be referred to me for consideration the question of the legal authority of the State of Minnesota to enter into a contract with the United States under the act of April 16, 1934 (48 Stat. 596), which authorizes the Secretary of the Interior "to enter into a contract or contracts with any State or Territory having legal authority so to do, for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians in such State or Territory * * *."

    The Attorney General of the State of Minnesota acting through the Deputy Attorney General has rendered an opinion that by virtue of Chapter 51, Laws of Minnesota, 1935, the Executive Council of the State is authorized to enter into contracts with the Federal Government for the education of the Indians and for such other activities as are included in the act of April 16, 1934, supra.

    Chapter 51, Laws of Minnesota, 1935, the statute to which the Attorney General of Minnesota refers, provides in part as follows:

Section 1. "There is hereby appropriated out of the relief fund hereinafter created the sum of Five Million Dollars ($5,000,000) to be available for the fiscal year commencing at once and ending July 1, 1936, and the further sum of Five Million Dollars ($5,000,000) to be available for the fiscal year ending July 1, 1937, for the purpose of aiding in furnishing necessary direct relief, drought relief, disabled veterans relief, work relief and employment relief to needy, destitute and disabled persons within the State of Minnesota in connection with federal, state and local agencies."

Section 2. "In extending work relief or re-employment for needy, destitute and disabled persons within the State of Minnesota, the Council may undertake projects involving flood control, water supply, water diversion, control or erosion, reforestation and afforestation, and recreation and any other project which will aid in the conservation and development of the natural resources of the State and for the promotion and conservation of the health, safety and general welfare of the people of the State.

            *                                *                                *                                *                                *

Section 3. "Some sums of money are appropriated to and made available to the Executive Council of the State of Minnesota to be disbursed by said Council, from time to time as needed, to the various federal, state and municipal agencies for the purpose of furnishing aid and relief to needy, destitute and disabled persons within the State of Minnesota as herein provided as may to said Executive Council seem just and proper."

    The act of April 16, 1934, supra, contemplates the cooperation of the Federal and State Governments in rendering assistance to, and providing for
 


 

582

DEPARTMENT OF THE INTERIOR

MARCH 14, 1935

the general welfare of, Indians in any State contracting with the United States for this purpose. It appears that the above-quoted statute of the State of Minnesota delegates a broad authority to the Executive Council of the State to furnish aid to, and to provide for the social welfare of, the residents of the State generally and authorizes the Executive Council to cooperate with the Federal Government in performing these functions. In my opinion, the authority thus conferred on the Executive Council is sufficiently extensive to authorize that body acting through its chairman, the Governor of the State, to negotiate a contract with the United States for the purposes expressed in the act of April 16, 1934.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
Approved: October 31, 1935.
T. A. WALTERS, First Assistant Secretary.

FT. BIDWELL--ADOPTION OF CONSTITUTION

November 12, 1935.
Memorandum for the Commissioner of Indian Affairs.

    The papers relating to the calling of a special election "for the purpose of enabling the Fort Bidwell Indians to vote on the adoption of a proposed constitution and bylaws pursuant to section 16 of the Indian Reorganization Act of June 18, 1934
(48 Stat. 984) " are returned herewith.

    The act of June 18, 1934 does not in my opinion, authorize the adoption at this time of a constitution and bylaws by this particular group of Indians. It has been held that section 16 of the act authorizes but two types of tribal organization. First a constitution and bylaws may be adopted by a traditionally recognized Indian tribe, or tribes residing on the same reservation or second, by the adult Indians residing on a reservation as such.

    The lands comprising the Fort Bidwell Reserve were not set aside for the use and occupation of this particular group of Indians, nor, in fact, for any other group. Part of the lands were formerly a military reserve and by joint resolution of January 30, 1897 (29 Stat. 698) the Secretary of the Interior was authorized and empowered to use the same, together with the buildings, water system and improvements "for the purposes of an Indian training school". By Executive order of August 8, 1917 some 320 acres of public domain land were with drawn and "set aside as a part of the Fort Bidwell School Reserve."

    These lands were thus reserved for a specific use by the United States, that is for maintaining and operating an Indian training school. Consequently the Indian families who came there and took up residence on the lands for the purpose of receiving the training which the school afforded acquired no right, title or interest in the lands occupied by them. That the Indian Service itself has not regarded this area as an Indian reservation within the meaning of that term as it is ordinarily understood is shown by letter dated July 17, 1913, from the Commissioner of Indian Affairs to the Secretary of the Interior recommending that a patent in fee issue for a tract of land within the limits of the reserve. The Commissioner said:

"* * * The land out of which the tract and the right of way are taken is not an Indian reservation in the usual acceptarion of the term and is not subject to allotment or to use for any other purpose than an Indian training school. Its status is that of reserved public land, not subject to sale or settlement. As no band or tribe of Indians has any interest in the tract or any part of it, the cost of survey is not chargeable to any Indian appropriation for allotments or survey of land."
    In the absence of a reservation which can properly be regarded as belonging to these Indians, their right to organize depends upon whether they are a traditionally recognized tribe. The record before me does not indicate that this small group of Indians can qualify for this type of tribal organization but even if it could, the propriety of such organization without a landed estate upon which to operate is of such doubtful wisdom that I suggest that an effort be made to obtain legislation specifically setting aside the Fort Bidwell School Reserve as a reservation for the Indians now occupying the same.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
DETERMINATION OF HEIRS BY COURT OF
INDIAN OFFENSES
November 19, 1935.
Memorandum for the Secretary:

    I am glad to add my endorsement to the Revised Law and Order Regulations, submitted here with by the Commissioner of Indian Affairs. With the concurrence of the Acting Commissioner and
 


 

583

OPINIONS OF THE SOLICITOR

DECEMBER 5, 1935

after conference with the head of the Probate Division, I have revised one provision in the proposed draft, i.e., that referring to the determination of heirs by a Court of Indian Offenses. The provision as originally submitted placed jurisdiction over the disposition of personal property, not held in trust by the United States, in the Courts of Indian offenses, on those reservations which have such courts. I believe that this would lead to confusion in cases where a single estate includes both restricted property and unrestricted property, and that in such cases, for the present, final authority over the distribution of the estate should be vested in the Examiners of Inheritance, acting under the direction of the Secretary of the Interior.

    Accordingly the following language has been added as a new paragraph in Chapter 3, section 5 of the regulations submitted:

    "Where the estate of the decedent includes any interest in restricted allotted lands or other property held in trust by the United States, over which the Examiner of Inheritance would have jurisdiction, the Court of Indian Offenses may distribute only such property as does not come under the jurisdiction of the Examiner of Inheritance, and the determination of heirs by the court may be reviewed, on appeal, and the judgment of the court modified or set aside by the said Examiner of Inheritance, with the approval of the Secretary of the Interior, if law and justice so require."
                                                                                                                                            NATHAN R. MARGOLD,
Solicitor.

CREDIT REGULATIONS

December 5, 1935.
Memorandum for the Commissioner of Indian Affairs:

Re: Proposed Credit Regulations.

    I have Riven careful study to the proposed "Rules and Regulations Governing the Use of Funds from the 'Revolving Fund for Loans to Indian Corporations' ", and am returning them herewith for further consideration in accordance with the views expressed hereafter in this memorandum.

    The proposed credit regulations are drafted for promulgation by the Secretary of the Interior under authority vested in him by Congress in section 10 of the Indian Reorganization Act of June 16, 1934 (48 Stat. 986). Said section provides:

    "Sec. 10. There is hereby authorized to be appropriated out of any funds in the Treasury not otherwise appropriated, the sum of $10,000,000 to be established as a revolving fund from which the Secretary of the Interior, under such rules and regulations as he may prescribe, may make loans to Indian chartered corporations for the purposes of promoting the economic development of such tribes, and of their members, and may defray the expenses of administering such loans. Repayment of amounts loaned under this authorization shall be credited to the revolving fund and shall be available for the purposes for which the fund is established. A report shall be made annually to Congress of transactions under this authorization".
    The Interior Department Act of May 9, (Pub. No. 33, 74th Cong.) appropriated $2,500,000 to be immediately available for the purpose of establishing the fund provided for in this section.

    Are the proposed rules and regulations consistent with the intent of Congress in inserting section 10 in the Reorganization Act, and are they within the scope of the authority herein conferred upon the Secretary of the Interior? These are the only questions upon which, from a legal viewpoint, I am called upon to pass.

    The purpose of Congress in enacting section 10 was to establish a permanent source of credit for the Indians available in the form of a revolving fund. From this fund the Secretary of the Interior may make loans to Indian corporations for the purpose of promoting their economic development. Funds under this authorization are available only to such corporate bodies, and are not directly available to individual Indians, or to cooperative associations and other similar groups. To be eligible to receive loans from the revolving fund the Indians belonging to any tribe, or tribes residing as the same reservation, or the residents of any Indian reservation, must first have organized in accordance with sections 16 and 17 of the Reorganization Act. They must have adopted an approved constitution and bylaws, as provided in section 16, and in addition they must have received a charter of incorporation from the Secretary of the Interior pursuant to section 17. This is quite clear in view of the specific provision that loans are to be made "to Indian chartered corporations".

    Money from the revolving credit fund may not be loaned to individual Indians directly. In rela-
 


 

584

DEPARTMENT OF THE INTERIOR

DECEMBER 5, 1935

tion to this fund the Secretary of the Interior can deal only with the tribal corporations representing the interests of all the Indians who are members of the tribes. In this respect the loans contemplated by section 10 are in distinct contrast to those heretofore authorized by Congress. Under reimbursable appropriations loans have been made to the Indians for designated purposes, but in the case of these loans the negotiations and the loan agreements are carried on by the Government with individual Indians. Provision is made in the current appropriation act for the making of such loans and for covering the expenses of administration in connection therewith. The tribal bodies, where such exist, have no responsibility in the administration of such funds.

    The situation in regard to the revolving credit fund established in section 10 is entirely different. The Government can deal only with the tribal authorities, and these are charged with the responsibility for making such loans to their members, or for using the funds in such ways, as will enable them to create a basis for expanding self-sufficiency. In accordance with the purpose expressed in section 16 and 17 of the Reorganization Act, by which a large and increasing responsibility for taking care of their own welfare is placed upon the various tribes, organized for local self-government and economic activity, section 10 contemplates that funds loaned to the tribes will be, in large measure, subject to their disposition, consistent with the terms of said provision.

    It is provided in section 10 that the cost of administering loans to Indian chartered corporations from the revolving loan fund may be defrayed by the Secretary of the Interior from the fund, and in the Appropriation Act of 1935, referred to above, $50,000 is set aside for "necessary expenses of ad ministering such loans". There is no authority for the Secretary to utilize these funds for the expenses of administering loans to individual Indians.

    Under section 10 the Secretary of the Interior may determine the conditions upon which he will make loans to Indian corporations. He may prescribe such rules and regulations as are reasonably appropriate to this purpose. He may require reasonable guarantees by the borrowing corporation that the money loaned to it will be used for specified purposes and handled in specified ways. If the Secretary is to exercise any control over money already loaned to the corporation it must be a control which is authorized by mutual agreement, and is designed to enforce the terms of such agreement. The strictly regulatory power of the Secretary, conferred by section 10, ceases when the loan to the tribe is completed. Thereafter the powers of the Department are limited to enforcement of the terms of the tribal loan agreement. The Indian corporation, upon which responsibility is placed for the repayment of the loan, may properly expect, under the terms of section 10, that moneys will not be disbursed to individual members of the tribe in the discretion of the Interior Department, on behalf of the corporation but that the money will actually be loaned to the corporation to be used or disbursed by the duly elected officers of the corporation in accordance with the terms of a loan agreement and in accordance with the mandates given these officers in tribal constitutions, bylaws and charters.

    The proposed rules and regulations, viewed in the light of the foregoing interpretation of section 10, contain several important defects. These are dealt with in the following paragraphs.

1. In paragraph 4, page 2, of the proposed rules and regulations it is provided that,

    "The Commissioner of Indian Affairs is authorized and directed to administer the 'Revolving Fund for Loans to Indian Corporations' and to execute all contracts between the Government and the Indian chartered corporations".

Such an authorization and direction to the Commissioner of Indian Affairs does not appear to be contemplated by section 10. Said section specifically provides that the duty and the power to administer the revolving loan fund, as well as the authority to prescribe rules and regulations for the making of loans therefrom, shall rest with the Secretary of the Interior. Primary responsibility for the use and handling of the fund is placed upon him. In so for as this involves an exercise of discretion and judgment on his part, such authority cannot be delegated. Runkle v. United States (122 U.S. 543).

    The paragraph above referred to should accordingly be omitted.

    Likewise, throughout the rules and regulations references to final authority in the Commissioner of Indian Affairs to approve loans, or to authorize changes in the conditions which govern such loans, should be so changed as to vest such power in the Secretary of the Interior. In this connection attention is directed to sections 1, 13, 15, 16, 18, 47, 74, 75, 79, 88, 94, 104 and 105.

    2. Attention should be directed to section 5 of Part 1. It is provided in this section that after the Government and the Indians have reached an agreement in regard to a loan, and the conditions thereof. the Superintendent shall make request for allotment and advance

 

585

OPINIONS OF THE SOLICITOR

DECEMBER 5, 1935

of funds and authority for expenditure in accordance with the terms of the loan agreement. It is then provided that,

    "Upon receipt of notice of allotment and authority for expenditure and advice that accountable warrant has been issued by the Treasury Department, the superintendent shall prepare a voucher on Standard Form 1034 in favor if the corporation as agent of the corporation. He will then draw his official check for the amount of the advance and deposit same in his trust fund checking account with the Treasurer. Coincident with this action he shall issue an official receipt taking the amount of the deposit into his Individual Indian Money account under the caption '________________________ Corporation Credit Fund. A copy of the commitment order shall be attached to the first disbursement voucher and identified on subsequent vouchers by number, name and amount."
    This section, as well as other sections throughout the proposed rules and regulations, providing for the handling of applications for loans, commitment orders, vouchers for expenditure, seeks apparently to place upon the superintendent primary responsibility for the handling of the various transactions involved, not only in loans by the Government to an Indian corporation, but also in loans by the corporation to individuals, cooperative associations, and other bodies. The role of the corporation is reduced thereby to that of merely signifying its approval or disapproval of the actions proposed by the Superintendent and the credit agents of the Government.

    Such a procedure appears to be a serious invasion of tribal responsibility and initiative. As has already been pointed out, section 10 does not seek to ignore the tribal bodies, organized for purposes of local self-government and economic cooperation under sections 16 and 17 of the Reorganization Act, but rather to provide these bodies with instruments for the more effective carrying out of their powers and duties. The tribal organizations so formed are to be regarded as independent entities, deriving certain powers from the Act, but exercising many others by virtue of the inherent right of self-government vested in such tribes by existing law. To superimpose upon such tribal bodies an agency to which they have not consented is to nullify in large measure the promises contained in other sections of the Act.

    3. Section 13 provides that each corporation shall appoint a corporation credit committee, consisting of at least five members, appointed by the board of directors, or other executive of the corporation. This committee is to be responsible for passing on all applications for loans. It is then provided that,
    "During such time as the corporation is a borrower from the 'Revolving Fund for Loans to Indian Corporations' members of corporation credit committees and district credit committees may be removed for cause deemed sufficient, at any time, by the Commissioner of Indian Affairs".
    This section constitutes an invasion of a power which has been granted to the tribe entirely with out restrictions in practically all constitutions heretofore approved. The power to appoint and remove subordinate boards and officials is a recognized power of self-government, and in no case has this power been made subject to departmental review of the constitution which has been approved by the Secretary.

    It is not argued that the Secretary of the Interior cannot refuse to negotiate, in matters involving loans from the revolving funds, with a tribe which does not appoint an authorized credit committee. What is argued, however, is that it is entirely improper to provide as a matter of rule and regulation that the Commissioner of Indian Affairs, for any cause deemed sufficient by him, may remove the members of such committee, without the consent of the tribe, or even against its opposition. Such a requirement, apparently using the fact of indebtedness as a basis for assuming political control of matters internal to the tribe gives the Commissioner a power to impose his will upon the corporation, regardless of whether or not the corporation is otherwise adhering to its loan agreement. Under this section, credit committee members might be removed for following a credit policy agreed upon by the tribe and Government, upon the mere decision of the Commissioner that such a policy should be changed. A stable and consistent policy is rendered impossible thereby. Furthermore, since final authority and control would rest in the commissioner, there would be little inducement for able Indians to undertake the work of development a sound credit structure for the tribe. The result of depriving Indian leaders of effective power and responsibility in the disposition of funds for which they are held legally liable will, in my judgment, do more to injure the entire credit program than any harm that might be done by actually dishonest credit committee members.

    I believe, therefore, that this section should be omitted from the proposed rules and regulations in
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 5, 1935

so far as it constitutes an invasion of the acknowledged power of the tribe to appoint and remove such boards, committees and officials as it deems appropriate. If it is thought that tenure of office, either within any tribal committee or within the tribal council to which such committee is responsible, should depend upon the wishes of the Department, unmistakable provision for this control should be included in those articles of tribal constitutions and bylaws that deal with tenure and appointment.

4. In section 16 it is provided that,

    "During the period that the corporation is indebted to the Government its business policies and operation methods shall be subject to the review and recommendations of the Commissioner of Indian Affairs . . Failure . . to follow prescribed changes in the method of operation and business practices as recommended by the Commissioner of Indian Affairs, may cause the loan to become immediately due and payable. If deemed necessary the Commissioner of Indian Affairs may . . assume management of the credit operations of the corporation until such time as the corporation makes proper representations and offers acceptable assurance that it will function in accordance with its obligations".

    Under this section, a corporation is required not merely to conform to the terms of an agreement, the terms of which are clear and specific, but also to "follow prescribed changes in the method of operation and business practices as recommended by the Commissioner of Indian Affairs", on pain, if it does not do so, of having its loan declared "immediately due and payable". And having the management of its credit operations completely taken over by the Commissioner.

    The difficulty with this section is that it binds the corporation to a hazardous and uncertain future in regard to its loan policies and program, without containing any undertaking by the Government that the terms of the original agreement will be observed. The corporation may, at any time, find that policies and plans upon which it has embarked, pursuant to an agreement with the Government for a loan, are no longer thought desirable, and will be forced to accept such changes therein as the Commissioner may dictate. This is hardly consistent with the intent and purpose of section 10.

    It seems to me that the correct interpretation of said section, as has already been noted, contemplates the conclusion of agreements between the Government and Indian corporations governing the handling, disposition and repayment of loans.

    But this is a very different thing from providing in the form of a departmental regulation, that at any time when the Commissioner feels that changes should be made in the business policies and practices of the corporation, regardless of whether or not the Indians are adhering to the terms of their original agreements, he can compel them to accept new terms, and enforce the penalties contained in section 16 for their refusal to do so.

    But there is a further defect in this provision. If the loan agreement is to be regarded as a contract, observance of which by the corporation is a prerequisite to the obtaining and the continued use of funds from the revolving fund, then such contract should be equally binding on the Government. The Secretary of the Interior has no authority, under the power to make rules and regulations contained in section 10 of the Act, to re quire that the Indians shall observe such agreements on pain of drastic penalties, while the Government is free to change its policies in such ways as it deems best, and to force new terms upon the Indians which were not included in the original agreements. Such an illusory agreement is clearly not justified as a matter of law.

    I believe that the rules and regulations should state clearly the minimum terms and conditions which must be inserted in every agreement for a loan from the revolving fund, and further that this agreement should be binding, not only upon the Indians, but also upon the Government. If the Secretary of the Interior and the Indians of a particular tribe agree upon a credit program and upon plans for the economic development of such tribe, and of its members, I do not believe that a subsequent Secretary should have the power at a later date to change the terms of that agreement.

    5. There are various sections throughout the rules and regulations which I believe, are not properly to be regarded as regulations governing the making of loans to chartered corporations, authorized by section 10 of the act of June 18, 1934, but are rather to be justified as instructions to departmental employees, under the general supervisory authority conferred upon the heads of the various governmental departments by Revised Statutes, 161 (U.S. Code, Title 5, Sec. 22). These sections relate principally to administrative details of procedure to be followed by Superintendents and credit agents. Both in Part I, which deals with Loans by the Government to Indians Charted Corporations, and in Parts II-V, covering loans by the corporation to individuals, cooperative associations, tribal
 


 

587

OPINIONS OF THE SOLICITOR

DECEMBER 10, 1935

enterprises, and credit unions, there are sections of this character. Sections, for example, as sections 5, 29, and 35 of Part I, sections 47, 46, and 54 of Part IV, require action on the part of Government agents and officials for which, it seems to me, the tribe cannot be held responsible.

    As a matter of legal form, it would be preferable, I believe, to omit such sections from the proposed rules and regulations and make them part of a set of instructions to be issued to credit agents and other government officials involved in the administration of these funds. Only those provisions which relate to the granting of loans to the corporation and the conditions of disposition and repayment which must be included in corporate loan agreements should be included in the proposed rules and regulations. For this purpose, a general distinction can be observed between those provisions which relate to the use of the funds which may be authorized, as well as the manner of handling them by the corporation itself, and those provisions which call for action by Government officials and credit agents. Such a distinction should, it is believed, be observed in further considering the proposed rules and regulations.

    6. Finally, I believe that a good deal could be accomplished by way of simplifying the proposed rules and regulations. This will be, in large measure, effected if my suggestion No. 5, is carried out. As the proposed rules and regulations are now set forth, it seems to me very doubtful that the Indians will be able to understand them. If, however, the various sections dealing with administrative procedure, which govern the procedures of Government officials and credit agents, are omitted, and the rules and regulations proper are restricted to provisions governing the loan of funds to incorporated tribes and the essential terms which are to be embodied in clear and specific loan agreements much of the difficulty in this connection will be obviated. Inasmuch as the proposed rules and regulations are in the nature of directions to Indian corporations, and are intended to tell them what they must do if they would obtain loans from the revolving fund, I think it important that the said rules and regulations should be so drafted that even the most untutored Indian may understand them. This is essential if the loan agreements are to be faithfully observed, and if the dealings between the Indians and the Government are to be on as fair and equal a basis as the circumstances of the case allow.

    If you think it desirable, I shall be glad to assign one or more members of my staff to assist representatives of your office in redrafting the proposed rules and regulations in accordance with the views expressed in this memorandum.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
REINSTATEMENT OF CANCELED
SALE--PYRAMID LAKE
December 10, 1935.
Memorandum for the Assistant Commissioner of Indian Affairs:

    The attached letter recommending that a sale of Indian lands made to L. E. Carpenter, which sale was canceled on November 9, 1935, be reinstated and that a patent in fee be issued to Mr. Carpenter for a portion of the land, is returned.

    The proposed action appears to be desirable from the viewpoint of both the Indian land owner and the purchaser. Unfortunately, however, the proposed action is not authorized. In a case not distinguishable from this, involving sales of land on the Pyramid Lake Indian Reservation under the act of June 7, 1924 (43 Stat. 596), the Department in letters to Senator McCarran and Congressman Serughan ruled:

    "Upon cancellation of the entries, the lands embraced therein reverted to Indian ownership and became subject to the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The act of June 7, 1924, supra, under which the entries were made, contemplated the conveyance of fee simple title to the entrymen. Reinstatement of the canceled entries would, therefore, result in alienation of the land in contravention of section 4 of the Indian Reorganization Act, which section, with exceptions not here material, forbids all forms of alienation of restricted Indian lands."
    Reinstatement of the sale to Mr. Carpenter must be denied for like reasons. The distinction attempted to be made between the reinstatement of a sale made prior to the act of June 18, 1934, and a new sale made after that enactment in the Corken case to which you refer is unsound because the inhibition against alienation of restricted Indian lands contained in the act is not confined to lands falling within that category on the date of enactment. The inhibition is continuing in nature so that no sale or alienation (other than those expressly permitted) of lands coming into restricted
 


 

588

DEPARTMENT OF THE INTERIOR

DECEMBER 10, 1935

Indian ownership after the date of enactment may be made or approved. The action taken in the Corken case thus appears to have been erroneous. Patent in fee having been issued, however, the matter is beyond administrative recall.

Solicitor.
TIMBER CONTRACTS--COLVILLE RESERVATION

M-28259                                                                                                                                        December 13, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    On November 6, 1924, this Department approved a contract between the Superintendent of the Colville Indian School, Nespelem, Washington, and the Hedlund Lumber & Manufacturing Company of Spokane, Washington, covering the sale of approximately 232,190,000 feet of yellow pine and Douglas fir timber on the Twin Lakes Unit of the Colville Indian Reservation, Washington. The contract provided for the cutting and removal by the lumber company of at least ten million feet of timber prior to March 31, 1927, and not less than twenty million feet of timber each twelve months thereafter. The contract further provided that the total amount of timber was to be cut and removed prior to March 31, 1944.

    In accordance with the terms of the contract the Hedlund Lumber & Manufacturing Company executed a bond in the amount of $40,000 with the Maryland Casualty Company as surety conditioned upon the faithful performance by the lumber company of all the terms of the contract, including the General Timber Sale Regulations, for a period of five years from September 2, 1924, to September 2, 1929. The expiration date of the bond was later extended to September 2, 1934, with the consent of the surety.

    On March 28, 1930, the lumber company was reorganized and at that time the name was changed to the Chinook Lumber & Manufacturing Company.

    As a result of the continued failure of the lumber company to comply with the terms of the contract, the Commissioner of Indian Affairs by letter dated April 1, 1931, notified the company that its contract had been forfeited and that action would be taken against the company and the surety on the bond with a view to recovering damages for the breach of the contract.

    June 5, 1931, the Chinook Lumber & Manufacturing Company was adjudged bankrupt by the District Court of the United States for the Eastern District of Washington.

    The claims of the United States against the bankrupt and the Maryland Casualty Company, assurety, for the breach of the timber contract were presented to the Attorney General of the United States for proper action. The Attorney General has now requested that I be called upon to render an opinion as to the legal measure of damages which should be applied by the court in the existing litigation to determine the extent of the liability of the bankrupt and the surety company.

    Paragraph 56 of the General Timber Sale Regulations, which are a part of the contract, provides as follows:

    "Failure of the purchaser to complete his contract or to log promptly an area damaged by fire, wind, insects, or other causes, or the commission by him of any act for which the officer approving his contract shall declare the contract forfeited, will render the purchaser and his bondsmen liable for the depreciation in the value of the remaining timber on an estimate of value and quantity to be made under the direction of the officer approving this contract."
    Following the forfeiture of the Chinook Lumber & Manufacturing Company's contract, the Superintendent of the Colville Indian Agency, in accordance with section 56 of the General Timber Sale Regulations quoted above, on July 28, 1931, submitted an appraisal of the damages which had accrued as a result of the failure of the lumber company to complete the contract. In the appraisal prepared by the Superintendent, the amount of damages was determined to be $216,918.39. Of this amount, $28,207 represents the loss of 10,898,000 fear of green standing timber killed by a fire which occurred August 5, 1930. The balance of $188,711.25 represents the depreciation in the value of the timber left standing estimated on a basis of the difference between the market value of the remaining timber and the contract price.

    It seems well settled that where the parties to a contract by a provision therein agree to permit the amount of compensation or damages under the contract to be determined by an arbitrator, such a provision is valid and binding on the parties and a determination made pursuant to such a provision will be accepted by the courts in the absence of fraud, failure to exercise an honest judgment, or such gross mistake as implies bad faith. Hamilton v. Liverpool Ins. Co., 136 U.S. 242, 255; City of
 


 

589

OPINIONS OF THE SOLICITOR

DECEMBER 17, 1935

Lexington v. Pratt, 31 F. (2d) 820; Chills Lumber & Manufacturing Co. v. Page, 32 Wash. 50, 73 P. 353. This is the rule even though the arbitrator is one of the parties to the contract or a government officer, where the United States is a party to the contract. Goltra v. Weeks, 271 U.S. 536; United States v. George A. Fuller Co., 14 F. (2d) 813; United States v. Porter, 9 F. (2d) 153.

    In the instant case the acceptability of the appraisal prepared by the Superintendent of the Colville Indian Agency as the measure of damages is further supported by the fact that in preparing the appraisal the Superintendent based his computation on the rule for the measure of damages which has been applied by the courts in similar cases involving a breach of a contract of sale; namely, the difference between contract price and market value at the time of the breach. See Roehm v. Horst, 178 U.S. 1; Weinberg v. Hogan Milling Co., 299 Fed. 458; J. W. Chery Co. v. Consolidated Flour Mills Co., 143 Okla. 99, 287 P. 1019; Stillwell v. Paepcke-L.. L. Co., 73 Ark. 432, 84 S.W. 483; Fail v. McRee, 36 Ala. 61.

    It is my opinion, therefore, that the appraisal of damages prepared by the Superintendent of the Colville Indian Agency pursuant to the terms of the contract, in the absence of a showing of bad faith, is binding on the parties and should be accepted by the court as the measure of damages resulting from the breach of the Twin Lakes Unit timber contract by the Chinook Lumber & Manufacturing Company.

                                                                                                                                                JOHN H. THOMAS,

Acting Solicitor.
Approved: December 13, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.

NAVAJO--DISTRIBUTION OF UNALLOTTED
PROPERTY

December 17, 1935.
Memorandum for the Assistant Secretary:

    The attached probate papers relating to the estate of Yellow Hair, an unallotted Navajo Indian, are referred to you for special consideration in view of the importance of the issues of law and policy raised by the proposed decision.

    The facts are briefly: An unallotted Navajo Indian died leaving personal property to the value of $1,919 in addition to agency accounts amounting to $387.50. The personal property not in the agency was distributed in accordance with tribal custom. The local stockman, Mr. Carl Beck, reports:

    "Judge Segeni Sosnni, of Keams Canyon, was present and took charge of the distribution of this property, and whether or not he was acting in an official capacity, I can not say. However, the property was divided as is the custom with the Navajos, which is very unlike our inheritance laws. They do not regard the direct descendants as being entitled to the property, but instead, as in this case, cousins or some other other relatives on the mother's side of the family who for some reason the deceased should be obligated receives large portions of the property. This is a custom which I would not try to change, in as much as the Indians involved as a rule are satisfied, and it possibly works out just as well as our laws."

The probate division of the Indian Office, however, recommends:

"Since the distribution by the said Indian judge was not authorized by the Department, it is believed that said property so distributed should now be included as a part of the estate, and that the Superintendent should be instructed to recover the property or its equivalent, and distribute same in accordance with the Departmental order determining the heirs of the decedent."

    This recommendation assumes that the inheritance of personal property of an unallotted member of the Navajo Tribe should be governed by the laws of Arizona.

    I believe that this conclusion is unjustified either as a matter of strict law or as a matter of policy. On the legal question I call your attention to the following paragraphs in the opinion of this Department, approved October 25, 1934, on "Powers of Indian Tribes" (M-27781).

    "* * * With respect to all property other than allotments of land made under the General Allotment Act, the inheritance laws and customs of the Indian tribe are still of supreme authority.*

    "The authority of an Indian tribe in the matter of inheritance is clearly recognized by the United States Supreme Court in the case of Jones v. Meeban (175 U.S. l), in which it was held that the

_________
    * The foregoing general analysis is inapplicable to the Five Civilized Tribes. Congress having expressly provided that State probate courts shall have jurisdiction over the estates of allotted Indians of the Five Civilized Tribes leaving restricted heirs. (Act of June 14, 1918, c. 101. sec. 1; 40 Stat. L 606; U.S. Code. Title 2s. sec. 375.)
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 17, 1935

eldest male child of a Chippewa Indian succeeded to his statutory allotment in accordance with tribal law. The court declared:

    'The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only.

    'But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the Government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages and customs of the tribe, and not by the law of the State of Minnesota, nor by any action of the Secretary of the Interior.' (At page 29.)

    "In reaching this conclusion the Supreme Court relied upon the following cases:
United States v. Shanks (15 Minn. 369);
Dole v. Irish (2 Barb. (N. Y.) 639;
Hastings v. Farmer (4 N. Y. 293, 294);
The Kansas Indians (5 Wall. 737);
Waupemanqua v. Aldrich (28 Fed. 489);
Brown v. Steele (23 Kansas 672);
Richardville v. Thorp (28 Fed. 52).
    "In the case of Jones v. Meehan, supra, the tribal authority was exercised through immemorial usage. Other tribes, however, have exercised a similar authority through written laws.

    "In the case of Gray v. Coffman (3 Dill. 393, 10 Fed. Cases No. 5714), the court held that the validity of the will of a member of the Wyandot tribe depended upon its conformity with the written laws of the tribe. The court declared:

    'The Wyandot Indians, before their removal from Ohio had adopted a written constitution and laws, and among others, laws relating to descent and wills. These are in the record, and are shown to have been copied from the laws of Ohio, and adopted by the Wyandot tribe, with certain modifications, to adapt them to their customs and usages. One of these modifications was that only living children should inherit, excluding the children of deceased children, or grandchildren. The Wyandot council, which is several times referred to in the treaty of 1855, was an executive and judicial body, and had power, under the laws and usages of the nation, to receive proof of wills, etc.; and this body continued to act, at least to some extent, after the treaty of 1855.

* * * under the circumstances, the court must give effect to the well established laws, customs, and usages of the Wyandot tribe of Indians in respect to the disposition of property by des cent and will.'

    "In the case of O'Brien v. Bugbee (45 Kan. 1, 26 Pac. 428), it was held that a plaintiff in ejectment could not recover without positive proof that under tribal custom he was lawful heir to the property in question. In the absence of such proof, it was held that title to the land escheated to the tribe, and that the tribe might dispose of the land as it saw fit.

    "Tribal autonomy in the regulation of descent and distribution is recognized in the case of Woodin v. Seeley (141 Misc. 207; 232 N.Y. Supp. 818). In this case, and in the case of Patterson v. Council of Seneca Nation (245 N.Y. 433);157 N.E. 734), the supremacy of tribal law in matters of inheritance and membership rights is defended on the ground:

    'That when Congress does not act no law runs on an Indian reservation save the Indian tribal law and custom.'
    "In the case of Y-Ta-Tah-Wah v. Rebock (105 Fed. 257), the plaintiff, a medicine-man imprisoned by the federal Indian agent and county sheriff for practicing medicine without a license, brought an action of false imprisonment against these officials, and died during the course of the proceedings. The court held that the action might be continued, not by an administrator of the decedent's estate appointed in accordance with state law, but by the heirs of the decedent by Indian custom. The court
declared, per Shims, J:
    'If it were true that, upon the death of a tribal Indian, his property, real and personal, became subject to the laws of the state directing the mode of distribution of estates of decedents, it is apparent that irremediable confusion would be caused thereby in the affairs of the Indians * * *' (At page 262.)
    "In a case involving the right of an illegitimate child to inherit property, the authority of the tribe to pass upon the status of illegitimates was recognized in the following terms:
    The Creek Council, in the exercise of its lawful function of local self-government, saw
 

 

591

OPINIONS OF THE SOLICITOR

DECEMBER 17, 1935

fit to limit the legal rights of an illegitimate child to that of sharing in the estate of his putative father, and not to confer upon such child generally the status of a child born in lawful wedlock.' (Oklahoma Land Company v. Thomas, 34 Okla. 681, 127 Pac. 8).

    "See, to the same effect, Butler v. Wilson (54 Okla. 229, 153 Pac. 823).

  "In the case of Dole v. Irish (2 Barb. 639) it was held that a surrogate of the State of New York has no power to grant letters of administration to control the disposition of personal property belonging to a deceased member of the Seneca tribe. The court declared:

'I am of the opinion that the private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration: and that the letters of administration granted by the surrogate to the plaintiff are void. I am also of the opinion that the distribution of Indian property according to their customs passes a good title, which our courts will not disturb; and therefore that the defendant has a good title to the horse in question, and must have judgment on the special verdict.'
    "In George v. Pierce (148 N. Y. Supp. 230), the distribution of real and personal property of the decedent through the Onondaga custom of the 'dead feast' is recognized as controlling all rights of inheritance.

    "In the case of Mackey v. Coxe (18 How. 100), the Supreme Court held that letters of administration issued by a Cherokee court were entitled to recognition in another jurisdiction, on the ground that the status of an Indian tribe was in fact similar to that of a Federal territory.

    "In the case of Meeker v. Kaelin (173 Fed. 216), the court recognized the validity of tribal custom in determining the descent of real and personal property and indicated that the tribal custom of the Puyallup band prescribed different rules of descent for real and for personal property."

    On the policy question involved I can see no necessity for departmental regulation of inheritance of personal property of Navajo Indians. The recently promulgated departmental regulations relating to the determination of heirs and the approval of wills specifically restrict departmental supervision over the inheritance of personal property to reservations which have been allotted. (Sections 13 and 22.) Likewise, the recently approved law and order regulations provide that Indian judges shall apply tribal custom in the distribution of personal property.

    I therefore recommend that instead of returning this case for the purpose of redistributing in accordance with Arizona law the personal property which has been distributed in accordance with tribal custom, it should be returned so that the entire estate may be distributed in accordance with tribal custom. The Examiner of Inheritance should take testimony as to such customs of inheritance, in their application to the facts of this case, and submit a revised order determining heirs for departmental approval.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 Approved and referred to the Commissioner of Indian Affairs:
 

OSCAR I.. CHAPMAN, Assistant Secretary.

OSAGE--JURISDICTION--CRIMES AND
MISDEMEANORS

December 17, 1935.
Memorandum to the Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Osage Indian Agency regarding the matter of jurisdiction aver crimes and misdemeanors committed within the Indian villages located on lands within the Osage Indian Reservation is returned.

    In the absence of a court of Indian offenses with jurisdiction over crimes and misdemeanors committed by Indians other than those which are expressly made punishable in the Federal courts, no objection is seen to the continued exercise of State jurisdiction in accordance with the practice of some years' standing. I do not think, however, that any encouragement should be given to the exercise by the State of jurisdiction over those crimes made punishable in the Federal courts when committed by or against Indians.

    By section 548, title 18, United States Code, as amended June 28, 1932 (47 Stat. 336), exclusive jurisdiction is conferred on the Federal courts over various enumerated crimes committed by Indians against the person or property of another Indian or other person "within the limits of any Indian reservation." By section 2145, Revised Statutes (section 217, title 25, U.S.C.), the general laws of the
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 17, 1935

United States relating to the punishment of crimes committed in any place within its exclusive jurisdiction are extended, with exceptions not here material, to the "Indian country", and under this section jurisdiction rests in the Federal courts to punish white people for all crimes cognizable under Federal law committed by them against Indians in the Indian country. See United States v. Ramsey (271 U.S. 467); United States v. Chavez (290 U.S. 257). The jurisdiction conferred on the Federal courts by these sections to punish crimes committed by or against Indians did not end with the grant of statehood but continued after admission of the State the same as before. Donnelly v. United States (228 U.S. 243); United States v. Ramsey, supra. The latter case dealt with the crime of murder committed by a white man against an Indian on lands within the Osage Reservation which had been allotted to a member of the tribe. The Supreme Court upheld the jurisdiction of the Federal courts and said:

    "The authority of the United States under Sec. 2145 to punish crimes occurring within the State of Oklahoma, not committed by or against Indians, was ended by the grant of statehood. United States v. McBratney, 104 U.S. 621, 624; Draper v. United States, 164 U.S. 240. But authority in respect of crimes committed by or against Indians continued after the admission of the State as it was before, Donnelly v. United States, 228 U.S. 243, 271, in virtue of the long-settled rule that such Indians are wards of the nation in respect of whom there is devolved upon the Federal Government 'the duty of protection, and with it the power.' United States v. Kagama, 118 U.S. 375, 384. The guardianship of the United States over the Osage Indians has not been abandoned; they are still the wards of the nation, United States v. Osage County, 251 U.S. 128, 133; United States v. Nice, 241 U.S. 591, 398; and it rests with Congress alone to determine when that relationship shall cease."
    The applicability of section 548, title 18, and section 217, title 25, United States Code, to this case depends, of course, upon whether the lands upon which these Indian villages are located may be regarded as within the limits of the Indian reservation and are embraced within the term "Indian country." It is quite plain that the lands fall within both categories. They are tribal lands with in the reservation boundaries and are occupied by individual members of the tribe. So far as I am advised no act of Congress has severed these lands from the reservation. In the absence of such Congressional action they not only remain within the reservation but also qualify as "Indian country" under the rule that "Indian country" remains such until the Indian title is extinguished unless other wise provided by Congress. United States v. Celestine (215 U.S. 278).

    It follows that as to those crimes to which the statutory provision cited above apply, committed by or against Indians within these Indian villages, the Federal and not the State courts have jurisdiction. The last paragraph of the attached letter should be modified accordingly. The first paragraph of the letter cites section 9 of the act of June 28, 1906 (34 Stat. 539), as authority for creation of the Indian villages. This citation should read paragraph 9, section 2, of the act of 1906.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
FT. BERTHOLD--CLAIMS AGAINST U.S.
December 26, 1935.
Memorandum for Mr. Burlew:

    The attached papers which you have referred to me for review relate to a claim of the Indians of the Fort Berthold reservation in North Dakota against the United States in the amount of $400,000. S. 3243, introduced at the last session of Congress proposes to recognize the validity of this claim by authorizing an appropriation for the benefit of the Indians in the amount claimed. A tentative favorable report on the bill was prepared in the Indian Office and referred to the Bureau of the Budget. August 30, the Assistant Director of the Budget advised that the legislation would be in conflict with the financial program of the President, and enclosed copies of a letter dated August 27 from the Acting Attorney General and accompanying memorandum signed by Mr. George F. Stormont purporting to show that the claim of the Indians is entirely without merit. Mr. Stormont's memorandum has received consideration in the Indian Office and that Office has submitted memoranda adhering to the view that a favorable report on S. 3243 should be made.

    The Indians of the Fort Berthold reservation are a confederated Tribe composed of three bands the Arickarees, Gros Ventres and Mandans. They, along with certain other tribes, were parties to the
 


 

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OPINIONS OF THE SOLICITOR

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Fort Laramie treaty of 1851 (2 Kapp. 440; 11 Stat. 749), the provisions of which recognized the right of these Indians to a reservation south of the Missouri River embracing several million acres. Due to an administrative oversight, the treaty was never proclaimed, and while Congress recognized its terms and appropriated the sums mentioned in the treaty to meet the Government's annual obligation under it to the Indians, administrative officials proceeded on the erroneous assumption that the treaty had not been ratified. The result was a flagrant disregard of the rights of the Indians to the reservation created by the treaty of Fort Laramie, large areas being taken therefrom without any compensation to the Indians therefor. For the lands so taken, the Court of Claims in a suit brought by the Indians under the jurisdictional act of February 11, 1920 (41 Stat. 404), awarded the Indians the sum of $4,923,093.47. Against this sum, however, the Court found that the United States was entitled to an offset for the "sums heretofore paid or expended for the benefit of said tribes or any band thereof" of $2,169,168.58 (see Fort Berthold Indians v. United States, 71 Ct. Cl. 308).

    Under date of July 27, 1866, a treaty was entered into on behalf of the United States with the Fort Berthold Indians by Commissioners appointed by the President (2 Kappler 794). By this treaty, the United States proposed. for considerations therein set forth, to pay to the Indians the sum of $20,000 annually for twenty years, or a total of $400,000. At the time this treaty was executed, the payments to the Indians provided for in the treaty of Fort Laramie had been completed, the last appropriation in payment of the obligations of that treaty being carried by the Act of March 3, 1865 (13 Stat. 550). Following the execution of the treaty of July 27, 1866, and continuing until the first appropriation was made to meet the obligations imposed on the United States by a subsequent agreement dated December 14, 1886, and ratified by the Act of March 3, 1891 (26 Stat. 989, 1035), there was expended under annual appropriations and out of general appropriations for the Indian Service, a total sum of $1,680,598.56 for the benefit of these Indians. This entire amount was included in the total offsets allowed by the Court of Claims against the judgment recovered by the Indians in the case above referred to, no credit being given the Indians for any part of the sum of $400,000, S. 3243 has been introduced.

    Much of Mr. Stormont's memorandum is devoted to a showing that the treaty of July 27, 1866, was not ratified, either formally or by action of Congress making appropriations in express recognition of the treaty obligations. Considerations of this nature would, of course, be controlling if the rights of the Indians were to be determined by legal principles alone. But the claim of the Fort Berthold Indians is not being presented to a judicial tribunal. Their prayer for relief is addressed to Congress. The justness of the claim is, therefore, to be determined, not by the application of purely legal principles, but by the application of those principles of justice, reason and fair dealing always to be invoked where, as here, the transaction involved is between a superior nation and an inferior people under its care and protection.

    By the treaty of July 27, 1866, the provisions of which declared that it should be obligatory upon the Indians from its date, and upon the United States when ratified by the President and the Senate, the Indians stipulated to maintain peaceful and friendly relations with citizens of the United States and to commit no depredations against them. They further stipulated to grant to the United States the right to lay out and construct roads, highways, and telegraphs through "their country", and to cede to the United States a tract of land some 40 miles long and 25 miles wide situated northeast of the Missouri River. As pointed out above, the consideration for all this was to be $400,000 payable in annual installments of $20,000. The treaty was one of several negotiated by a Commission appointed by the President and known as the Northwestern Treaty Commission. The report of the Treaty Commission, found at page 168 of the Annual Report of the Commissioner of Indian Affairs for the year 1866 discloses that the conditions in the country occupied by these various Indian tribes were decidedly unsettled with serious disturbances likely to occur due largely to the presence of whites who, attracted by the gold lure, were entering into and passing through the Indian country in steadily increasing numbers. In this situation, the first aim of the Treaty Commissioners was to obtain stipulations on the part of the Indians to maintain friendly relations with the whites and to commit no depredations against them. While stipulations of this nature were contained in some of the earlier treaties such as that of Fort Laramie to which the Indians of the Fort Berthold Reservation were parties, the Commission evidently felt that it would be wise to obtain new stipulations in view of the then existing conditions. The stipulation for peace and against depredations was accordingly placed in the treaty of July 27, 1866, and so far as I have been able to find, the stipulation has been faithfully observed by this particular group of Indians.

    The stipulation for rights of way for roads and telegraph lines and the land cession made by the
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 26, 1935

treaty were likewise regarded of considerable importance, The reasons for obtaining these concessions and their value to the United States is shown by the following statement contained in the report of the Treaty Commission (page 170, Annual Report, Commissioner of Indian Affairs, 1866):

    "Taking these views of the necessity of some development of the Upper Missouri country as the great highway to the increasing mineral settlements of the northwest, and in harmony with the general instructions emanating from your department, we obtained from the Indians-the Arickarees, Mandans, Gros Ventres, Assinaboines, and Crows-not only a right of way through their possessions, but also cessions of lands at such points as seemed to us especially necessary for settlement and cultivation. The cession from the Arickarees, Mandans and Gros Ventres, who inhabit the country about Fort Berthold, cedes the country on the east side of the Missouri River, from old Fort Clark to Snake Creek or river, being about forty miles long and twenty-five miles wide, and including the salient point of the river which is nearest to Devil's Lake, Pembina. Lake Superior, and the upper settlements of the Mississippi.

    "There is a good showing of coal on this land, the quality of which seems very uncertain, but if capable of being made available as fuel, will be of great value to commerce in a country where wood is extremely scare. There is also on this land, as elsewhere along the upper Missouri, considerable timber; far more than grown on the Platte, Upper Arkansas, and other streams west of the 96th meridian. The soil, coal or lignite, and timber, united with the exorbitant prices paid for everything in that region, will probably invite settlements at this natural junction of commercial lines, so as to accommodate them, and ultimately advance the development of the northwest prairies."

    The following statement of the Commissioner of Indian Affairs is also of interest in this connection (Annual Report 1866 at page 14):
    "Proceeding up the Missouri, the commission affected a treaty at Fort Berthold with the Arickarees, Gros Ventres, and Mandans, by which a cession of land of about twenty-five miles by forty was obtained, and a right of way for roads through their lands, in return for which certain annual payments in goods and for beneficial purposes are to be made. These Indians are friendly, and many of them have long been planting corn with success near Fort Berthold."

    "The great amount of travel through the country occupied by these Indians, and those lying above, upon the Missouri and Yellow stone rivers, by persons en route to and from the gold regions of Montana, interfering greatly with the game upon which the Indians depend, has made it imperatively necessary that these routes should be rendered secure to travelers; and, at the same time, justice to the Indians required a liberal compensation for the damages necessarily resulting from this invasion of their hunting ranges. The above treaty and the two which follow are based upon these principles, and look also to the gradual improvement of the Indians, by encouraging them to till the soil, and abandon their precarious mode of living."

    Regarding the land cession made by the treaty, the memorandum of Mr. Stormont states:
    "The cession attempted to be made by the addenda to the treaty was of land to which these Indians had no title. The United States got nothing from the cession and the record in the case does not show that the United States ever attempted to avail itself of it."
    The foregoing statement is not in accord with information available in this Department. The maps of Dakota in Royce's Land Cessions show Mandan villages north and east of the Missouri river, apparently within the area ceded by the treaty. A report to the Secretary of the Interior under date of September 29, 1866 (Vol. 15 Indian Office Report Book p. 498) also shows that the Arickarees and associated tribes had a just claim to lands on the north side of the Missouri river where the Indians had, in fact, "planted and raised large crops for several years." Aside from this the Treaty Commissioners were in better position to know of the Indian claim to these lands than any one else and their recognition of the claim should be regarded as conclusive at this late date. As stated by the Court of Claims in a somewhat similar case (See Omaha Tribe of Indians v. United States, 53 Ct. Cl. 549, 560):
    "Those making the treaty for the United States were well acquainted with the country; they knew what the Omahas claimed; they knew that their possession and occupation of this land was considered with reference to

 

595

OPINIONS OF THE SOLICITOR

DECEMBER 26, 1935

their habits and modes of life; that the Indians had a right to the exclusive enjoyment of it in their own way until they abandoned the land or ceded it to the Government; their right of occupancy was considered as firmly established-this the treaty makers on behalf of the Government recognized when this treaty was made, and the defendants can not now be heard to say that the Indians did not own the land when the treaty was made and had no right to make a cession of it."

    The statement of Mr. Stormont that the United States never attempted to avail itself of the cession is refuted by the records of the General Land Office, an examination of which shows that the lands within the ceded area were disposed of by the Government as public lands free of any Indian claim, and the action of the Court of Claims in off-setting against the judgment of the Indians the entire amount expended for their benefit during the period the treaty would have been in force had it been ratified, deprives the Indians of any compensation whatever for the taking of the land included in the cession.

    Mr. Stormont further states, in substance, that the grant of rights of way for roads, highways and telegraphs made by the treaty of 1866 conveyed nothing to the United States because these Indians had by their prior treaty of Fort Laramie recognized the right of the United States "to establish roads, military and other posts, through their respective territories." This position is hardly tenable. In the first place, the grant made by the treaty of 1866 extends to telegraph lines, a use not provided for in the Fort Laramie treaty. In the second place, the preamble to the treaty of Fort Laramie refers to the Indian parties as residing south of the Missouri river and the lands delimited and recognized by that treaty as belonging to the Indian tribes were located south of the river. Accordingly, a reasonable interpretation of the rights granted the lands dealt with in the treaty. As pointed out above, the Indians of the Fort Berthold reservation claimed lands north and east of the Missouri river. Their rights thereto were not extinguished by the Fort Laramie Treaty. Instead, the treaty provided in Article 5 that the "aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands". The stipulation for rights of way contained in the treaty of 1866, therefore, extended not only to a use not contemplated by the prior treaty of Fort Laramie but to such additional lands as the Indians then claimed or occupied.

    The exact reason for non-ratification of the treaty of 1866 is not clear. But the objections voiced by Senator Sherman to making appropriations for the benefit of the Indians in language making specific reference to the treaty (See Congressional Globe, Vol. 148, pt. 3, page 1797-8) suggests that the change in governmental policy then being agitated and which crystallized a few years later in the enactment of legislation discontinuing the policy of negotiating treaties with the Indian tribes (See Act of March 3, 1871, 16 Stat. 544, 566) may have been the controlling reason for non-ratification. However, this may be, it is clear that the Indians themselves understood the treaty to have been concluded and expected to receive the promised consideration. By letter dated January 26, 1867, the Commissioner of Indian Affairs stated to the Secretary of the Interior that "there is no question that the Indians understand these treaties to be complete and will expect the payments promised by them, and I have no hesitation in recommending that the necessary appropriation be promptly made." The Commissioner further recommended that the appropriation for the Fort Berthold Indians be made in an amount double that called for by the treaty of 1866. This letter of the Commissioner was read into the Congressional Record (See Congressional Globe, Vol. 148, pt. 3. page 1797) and Congress was thus made aware of the existence of the treaty and of the understanding of the Indians that it had been concluded. While Congress deemed it advisable to eliminate from the appropriations made all reference to the unratified treaty, its knowledge of the treaty and the understanding of the Indians that it had been concluded as well as the expectation of the Indians that they would receive the consideration promised them was unquestionably a dominant cause for making the appropriation recommended.

    In any event, it seems clear from the foregoing that the United States was the recipient of all the benefits it expected to receive under the provisions of the unratified treaty of 1866, and that the Indians, notwithstanding their faithful observance of the treaty stipulations and the loss of a valuable tract of land which was appropriated by the Government to its own uses, have received nothing. In these circumstances, the Indians are, I think, justly entitled to the relief proposed by S. 3243, and I have no hesitation in recommending the enactment of that measure. In view, however, of the criticism contained in Mr. Stormont's memorandum of many of the statements made in the report prepared in the Indian Office, I have deemed it advisable to redraft the report. The revised draft is submitted herewith for your consideration and the consideration of the Indian and Budget Bureaus.
 


 

596

DEPARTMENT OF THE INTERIOR

DECEMBER 26, 1935

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 
CHIPPEWA--ENROLLMENT

 
December 26, 1935.

 Memorandum for the Commissioner of Indian Affairs.

    Your letter of October 1 making recommendations in cases involving applications for enrollment with the Red Lake Band of Minnesota Chippewas is returned.

    The applicants in Cases Nos. 1, 6, 11 and Case No. 2, page 6, are descendants of certain persons who received allotments on the ceded portion of the Red Lake Indian Reservation under the special enactment of May 27, 1902 (32 Stat. 245, 261). The purpose of that act was to permit the Indians named therein to retain lands on which they resided and had improved, instead of being compelled to remove to the diminished Red Lake Reservation. The act contained no provision, however, reserving or extending membership rights with the Red Lake Tribe or Band to the Indians named therein and their descendants. Unless, therefore, these people have affiliated with and received recognition by the Red Lake Band of Indians there would appear to be no authority for their enrollment as members of that band. As the record is devoid of any showing of such recognition and affiliation further investigation should be made for the purpose of ascertaining the facts with respect to tribal recognition and affiliation and in this connection it is suggested that the application should be referred to the Red Lake Tribal Council for consideration and action.

Solicitor.
YUMA RESERVATION-TITLE TO LANDS

M-28198                                                                                                                                January 8, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have submitted to me for an opinion two questions propounded by the Commissioner of Indian Affairs in his letter of October 2, 1935. The questions are as follows:

"1. Did the Act of August 15, 1894 (28 Stat. 332), which ratified the agreement with the Indians hereinabove referred to, actually either in law or fact make the non-irrigable lands ceded by the Indians through the provisions of the agreement a part of the public domain so as to extinguish any right, title, or interest therein, legal or equitable, which may have vested in them?

2. Assuming that such legislation did not return the lands to the public domain, or did not extinguish such right, title, or interest, is there any reason why this Office is not entitled to request, for the benefit of the Indians, any or all of the various features set forth in our letter of May 10, 1935 to the Commissioner of the Bureau of Reclamation?"

    The dispute which gives rise to these questions is due to the construction by the Bureau of Reclamation of the All-American Canal from the head works at the Imperial Dam across the Colorado River at a point 12 miles upstream from the City of Yuma, Arizona, thence southwesterly on the California side of the Colorado River to the boundary line between California and Mexico. The All American Canal in its course thus described crosses the length of the disputed Yuma Indian Reservation. The right of way for the canal was assumed by the Indian Office to cross Indian Tribal lands for which compensation should be allowed and paid from the appropriation made for the construction of the All-American Canal. The claims for compensation and for guarantee against future damages from the operation of the canal are set forth in a letter dated May 10, 1935, from the Commissioner of Indian Affairs to the Commissioner of the Bureau of Reclamation. The claims are as follows:
"1. Value of Land

In accordance with the appraisal of October 29, 1934, the value of the lands occupied by the right-of-way through the Fort Yuma Indian Reservation and the cash remuneration due the Yuma Indians therefor is fixed at $2,602.50, on the basis of $1.50 per acre.

2. Damage as a Result of Seepage and Alkali

Provided seepage conditions on the Fort Yuma Reservation are aggravated or intensified by the All-American Canal, the District agrees to prosecute diligently the construction of such intercepting drains, installation of pumping plants including necessary transmission lines, or construction of water affecting the Indian irrigation project. The cost of operation and maintenance of such drainage works, including electrical energy if
 
 


 

597

OPINIONS OF THE SOLICITOR

JANUARY 8, 1936

required, shall be borne by the District. If prior to the effective operation of such drainage works any Indian land is made unproductive by water logging, from alkali or other causes as a result of operation of the said Canal, the Indian or Indians affected shall be compensated for losses suffered during the time such land is unproductive. Damages, either temporary or permanent, to Indian land as a consequence of the operation of the All-American Canal shall be determined and payment made therefor at such time and in such manner as the Secretary shall prescribe. A bond in the amount of $200,000 shall be furnished by the District to insure installation and operation of drainage works and payment of damages.

3. Damages Resulting from Failure of Canal.


 

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DEPARTMENT OF THE INTERIOR

JANUARY 8, 1936

of Reclamation and the Office of Indian Affairs and should contain the same provision for rental per horsepower per year of all generator capacity in addition to the present installed capacity of 1,000 KW."

    After some negotiations between the bureaus, on July 15, 1935, the Commissioner of the Bureau of Reclamation advised the Commissioner of Indian Affairs that the land taken for right of way for the All-American Canal was not susceptible to irrigation, that title to non-irrigable land was vested in the United States by virtue of the act of August 15, 1894 (28 Stat. 332), that the land constituted a part of the public domain, and that, therefore, the Yuma Indians had no interest in the land.

    On July 6, 1883, President Arthur by Executive order set aside a tract of country in the Territory of Arizona described by metes and bounds as beginning at a point in the channel of the Colorado River, opposite the mouth of the Gila River, thence up the channel of the Gila River to the range line between ranges 19 and 20 of the Gila and Salt River meridian, thence north on the range line to the first standard parallel south, thence west on the parallel to the Colorado River, thence down the channel of Colorado River to the place of beginning to be used as a reservation for the Yuma and such other Indians as the Secretary of the Interior may see fit to settle thereon.

    On the following January 9, 1884, by Executive order the President canceled the reservation in Arizona and created a reservation for the same Indians in California. This Executive order reservation on the California side of the river comprises the area which is the subject of this opinion.

    The new reservation is described in the Executive order as beginning at a point in the middle of the Colorado River, due east of the meander corner to Sets. 19 and 30, T. 15 S., R. E., S. B. M., thence west on the line between Sets. 19 and 30 to the range line between Tps. 23 and 24 E., thence continuing west on the section line to a point, which, when surveyed, will be the corner of Sets. 22, 23, 26 and 27 in T. 15 S., R. 21 E., thence south on the line between Sets. 26 and 27 in said Township to the intersection of the international boundary, thence easterly on the international boundary to the middle of the channel of the Colorado River, thence up said River in the middle of the channel to the point of beginning.

    The area of the reservation was not changed until an agreement made December 4, 1893, at Fort Yuma, Arizona, between the Indians and three Commissioners representing the United States. These Commissioners were the representatives of the Office of Indian Affairs and the agreement made with the Indians was supposed to be for their benefit. The first paragraph of Article I of the Agreement is as follows:

    "The said Yuma Indians, upon the conditions hereinafter expressed, do hereby surrender and relinquish to the United States all their right, title, claim ,and interest in and to and over the following-described tract of country in San Diego County, Cal., established by executive order of January ninth, eighteen hundred and eighty-four, which describes its boundaries as follows: * * *" (Describes entire Yuma Reservation established January 9, 1884)
    Article I I of the agreement provides, among other things, that
    "Each and every member of said Yuma Indians shall be entitled to select and locate upon said reservation and all adjoining sections five acres of land, which shall be allotted to such Indian in severalty. * * *"
    (The area in the irrigable allotment was increased to ten acres of irrigable lancl by the act of March 3, 1911 (36 Stat. 1063).)

    Article III of the agreement provides for the allotments by a special agent appointed by the Secretary of the Interior and after all of such allotments have been made and approved "then all of the residue of said reservation which may be subject to irrigation" shall be disposed of by the Secretary of the Interior by sale to white settlers at the appraised value of the land. (Emphasis supplied)

    Article VI of the agreement provides that

    "All lands upon said reservation that can not be irrigated are to be open to settlement under the general land laws of the United States."
    Article VII provides
    "There shall be excepted from the operation of this agreement a tract of land, including the buildings, situate on the hill on the north side of the Colorado River, formerly Fort Yuma, now used as an Indian school, so long as the same shall be used for religious, educational, and hospital purposes for said Indians, and a further grant of land adjacent to the hill is hereby set aside as a farm for said school; the grant for the school site and the school farm
 

 

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OPINIONS OF THE SOLICITOR

JANUARY 8, 1936

not to exceed in all one-half section, or three hundred and twenty acres."

    By the Act of August 15, 1894 (28 Stat. 332), Congress accepted, ratified and confirmed the agreement made with the Indians on December 4, 1893. The act also provided for expenditure of funds to carry out the terms of the agreement. It directed the Secretary of the Interior to allot the lands susceptible to irrigation until each and every Indian had received an allotment and to appraise and sell the remaining irrigable lands to white settlers. The following language of the act refers to the disposition of the non-irrigable lands:
    "That all the lands ceded by said agreement which are not susceptible of irrigation shall become a part of the public domain, and shall be opened to settlement and sale by proclamation of the President of the United States, and be subject to disposal under the provisions of the general land laws."
    Pursuant to the act of June 17, 1902 (32 Stat. 388), the Bureau of Reclamation has constructed the Yuma Irrigation project. The diversion of water from the Colorado River was accomplished by the construction of the Lahuna Dam located about eight miles upstream from the City of Yuma. The main canal carries the water from the California end of the dam to a point near Yuma where it passes under the river in a conduit. The position of the canal in California made it possible to irrigate about 8,000 acres of land in the Yuma Indian Reservation. Approximately half of the area was used for Indian allotments and the remainder sold after appraisal to white settlers. This area, considerably reduced by seepage and other causes, now constituted the Reservation Division of the Yuma project. After investigation and after topographical and subdivision surveys of the reservation were made, an administrative determination fixed and designated the irrigable area and fixed and designated the area not susceptible of irrigation. Each of the Indians on the Yuma Reservation Was allotted as directed by the act of Congress of August 15, 1894, and March 3, 1911, supra, and the remaining irrigable lands were appraised and sold at public sale. However, at no time have the non-irrigable lands been opened to settlement and sale by proclamation of the President as provided in the above-quoted paragraph of the act of August 15, 1894.

    It is reasonably evident, I think, that the non-irrigable lands did not become a part of the public domain at the time of execution and ratification of the agreement with the Indians. Article VI of the agreement merely says that all lands upon said reservation that cannot be irrigated "are to be open to settlement under the general land laws of the United States." The time of opening the lands to settlement is not specified, but some future date was apparently in contemplation, because no classification of the lands into irrigable and non-irrigable had then been made and until there was such a classification the particular lands which were to be subject to settlement under the general land laws could not be identified. The ratifying act is more specific. It provides that the non-irrigable lands "shall become a part of the public domain, and shall be open to settlement and sale by proclamation of the President of the United States, and be subject to disposal under the provisions of the general land laws." The emphatic use of the future tense in this declaration is inconsistent with the view that the lands became a part of the public domain immediately, and bearing in mind that the words "public domain" or "public lands" are habitually used in Federal legislation to describe such lands as are subject to sale or disposal under the general land laws, (Newhall v. Sanger, 92 U.S. 761, 763; 10 L. D. 367) it seems that Congress intended that the non-irrigable lands should become a part of the public domain on the same date that they are made subject to settlement and disposition under said general land laws by presidential proclamation. In this view, the non-irrigable lands will not become a part of the public domain until such proclamation issues.

    The fact that the non-irrigable lands have not yet become part of the public domain is not, however, decisive of the question at hand. The question is one of ownership as between the United States and the Indians and this depends primarily upon the provisions of the agreement of 1893 as ratified by Congress. It is argued by the Indian Office that the non-irrigable lands have been continuously administered as a part of the Indian Reservation since execution and ratification of the agreement; that the lands have been leased for grazing and mining purposes; and that the proceeds from such leases have been covered into the Federal Treasury for the benefit of the Yuma Indians. But this administrative recognition of Indian ownership is not controlling (Harris v. Bell, 254 U.S. 103, 109; Tapp v. Stuart, 9 Fed. Supp. 23), and must give way if in conflict with the plain terms of the agreement and ratifying act. The provisions of the agreement and act received consideration in two cases decided August 2, 1935, in the district court of the United States in and for the Southern District of California. See United States v. Sid Johnson and Mrs. Sid Johnson; United
 


 

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JANUARY 8, 1936

States v. M. C. Walker and Mr. M. C. Walker (unreported). These were ejectment suits brought by the United States against squatters on lands within the reservation which were susceptible of irrigation. While non-irrigable lands were not involved, the decisions interpreted the agreement and act as vesting full title in the United States immediately subject only to the rights specifically reserved in the Indians, which reserved rights, as will hereafter be shown, extend to the irrigable lands only. The inference to be drawn from those decisions in so far as the non-irrigable lands are concerned is that the relinquishment by the Indians became effective immediately rather than at some future date, and this, I think is the correct view.

    Article I of the agreement declares that the "Yuma Indians, upon the conditions hereinafter expressed, do hereby surrender and relinquish to the United States all their right, title, claim and interest in and to" all of the lands within the reservation boundaries. This language imports in clear and precise terms a present relinquishment or cession of all of the interest of the Indians in the reservation land. The relinquishment or cession is made subject to the conditions thereinafter stated, but those conditions in no way qualify the absolute nature of the relinquishment or cession with respect to the nonirrigable lands. The conditions materially affecting the relinquishment or cession have to do only with the irrigable lands, subjecting them to allotments in severalty to the individual Indians and sale for the benefit of the Indians as a whole. As to the irrigable lands, therefore, the cession or relinquishment was not absolute, but in trust for the use and benefit of the Indians. The beneficial ownership of the Indians in the irrigable lands thus continued notwithstanding the relinquishment or cession. See Ash Sheep Company v. United States, 252 U.S. 159. Neither the agreement nor the ratifying act, however, contains any word or clause qualifying or limiting the absolute cession made of the non-irrigable lands by Article I of the agreement. Both recognize that those lands are to become a part of the public domain and be disposed of under the general land laws The words "hereby surrender and relinquish", as applied to the non-irrigable lands, coupled with the declaration that such lands shall become a "part of the public domain" and "be opened to settlement and sale", without the reservation of any interest in the Indians and unaccompanied by any condition in the nature of a trust, express or implied, obviously import an absolute extinguish ment of all the interest of the Indians in and to that class of lands. In such a situation, there is no authority to depart from the plain words of the agreement and act. In United States v. Choctaw Nation,179 U.S. 494, the contention was made that a treaty, the terms of which made an absolute cession, should be interpreted to create a trust for the benefit of the Indians. The Court rejected the contention, saying among other things (page 535):

    "But if the words used in the treaty of 1866, reasonably interpreted, import beyond question an absolute, unconditional cession of the land in question to the United States free from any trust, then the court cannot amend the treaty or refuse to carry out the intent of the parties, as gathered from the words used, merely because one party to it held the relation of an inferior and was politically dependent upon the other, or because in the judgment of the court the Indians may have been, overreached. To hold otherwise would be practically to recognize an authority in the courts not only to reform or correct treaties, but to determine questions of mere policy in the treatment, of the Indians which it is the function alone of the legislative branch of the Government to determine."
    While the irrigable or non-irrigable character of the lands within the reservation had not been determined on the date of the agreement of relinquishment or cession, it is clear that the taking effect of the relinquishment or cession was not postponed until classification of the lands as non-irrigable. In this respect, the situation is closely analogous to that involved in the grants of swamp lands made to the States by the act of September 28, 1850 (9 Stat. 519). That act, like the agreement under consideration, was in the usual terms of a grant in praesenti, and there, as here, the character of the lands was determined at a subsequent date. The courts have uniformly ruled that the States became immediately invested with an inchoate title which became perfect, as of the date of the act, when the land was identified and the patent issued (see United States v. Minnesota, 270 U.S. 181, 203, 205). Applying a like rule here, the relinquishment of the Indians, as and when the non-irrigable character of the land was determined, became fully effective as of the date of the agreement.

    The case of United States v. La Chappelle (81 Fed. 152), which has been called to my attention as supporting the claim of Indian ownership of the non-irrigable lands, is not in point. In that case, an agreement had been entered into between the Secretary of the Interior and Chief Moses, pur-
 


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