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701

OPINIONS OF THE SOLICITOR

DECEMBER 2, 1936

disposition the present tribal officials may be making of tribal receipts (on which the facts presented in the attached file clearly require a decision adverse to these officials) but rather the question of whether Indians in possession of certain premises may use reasonable force to defend this possession against intruders. On the latter question, I believe that we cannot give departmental employees the legal assurances they have the right to ask before embarking upon any such drastic course of conduct.

    I suggest, therefore, what I think are alternative remedies for the present situation that are more likely to achieve our purpose. For one thing, you report the pendency of a suit alleging breach of trust in the disposition of funds collected by the present tribal officials. In such a suit a proper preliminary remedy would seem to be the judicial appointment of a receiver pendente lite to collect the fees in question. It seems to me that the plaintiffs in this suit should be advised to seek such a remedy. If they are unwilling to cooperate, the United States should, in my opinion, intervene in the suit and ask this remedy.

    It is not entirely clear from the attached papers whether the tribal officials who are now handling the moneys of the tribe have been properly elected. If they have not been properly elected, of course, they have no right to collect tribal receipts or to exclude strangers from tribal property other than property which they personally and individually occupy. Any attempts by them to do more would warrant punishment in a court of Indian offenses under chapter 5, sections 6 (embezzlement), 7 (fraud), 11 (extortion), or 16 (injury to public property), of the Law and Order Regulations approved by the Secretary of the Interior November 27, 1955. If there is no court of Indian offenses at the Palm Springs Reservation, it would appear possible, under chapter 1, section 1, of the regulations, to assign to a court under the Mission Agency general jurisdiction over this and other reservations. Unless the matter is to be left to action by State or Federal courts it will probably be necessary, sooner or later, to utilize a court of Indian offenses in this situation.

    If for any reason the foregoing suggestions are inadequate, I should be glad to give further consideration to the elaboration of a practical and effective course of action in the unfortunate situation that has developed. If you believe a conference is advisable in the elaboration of such a course please advise me.

                                                                                                                                             NATHAN R. MARGOLD.

                                                                Solicitor.

GROS VENTRE-ENROLLMENT


                                                                                                          December 2, 1936.


 Memorandum for the Assistant Secretary:

    Herewith are two letters prepared for your approval by the Assistant Commissioner of Indian Affairs. These letters hold that the 7 children of Mrs. Emma Larsen are not entitled to participate in the payment authorized to be made to the Gros Ventre Indians by Public Resolution No. 116, 74th Congress, approved June 20, 1936 (49 Stat. 1569).

    The reason given for excluding the children of Mrs. Larsen from the payment authorized by the public resolution is that the children were born prior to the time Mrs. Larsen was given an allotment of land on the Ft. Belknap Reservation. The public resolution does not, in my opinion, require that the children be born after allotment.

    The public resolution, after providing for the enrollment of all Indians alive on the date of approval of the resolution whose names appear on the allotment roll made pursuant to the act of March 3, 1921 (41 Stat. 1355), requires that there be added to the roll:

    "* * * the names of all children of one fourth or more Gros Ventre Indian blood born to all allotted Indians of the Fort Belknap Reservation, regardless of place of residence of such children or their parents: Provided, that all such children so enrolled shall be alive and in being on the date of approval of this resolution: * * *"
    The time of birth of the children under the foregoing language is, I think, immaterial. If the parent is an allotted Indian on the Fort Belknap Reservation then all the children are entitled to enrollment provided they possess the required degree of Indian blood and are in being on the date of approval of the resolution. Under the construction adopted by the Assistant Commissioner a child born prior to allotment would be excluded and one born after allotment to the same parent would be admitted. The reason for making a discrimination of this sort between members of the same family is not readily apparent and the intent so to do ought not to be inferred from language which given its ordinary significance accords to all children of the same parent like treatment and like benefits.

    The suggestion is made in a memorandum presented with the record that only children born after the date of approval of the public resolution are entitled to enrollment. This suggestion must
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 2, 1936

be rejected as wholly untenable. The proviso declares that "all such children so enrolled shall be alive and in being on the date of approval of this resolution." This proviso not only contemplates enrollment of children born prior to the date of the approval of this resolution, but it prevents the enrollment of children born after that date.

    Mrs. Larsen was given an allotment of land under the act of March 3, 1921, supra, and her name appears on the allotment roll. I assume that her children possess the required degree of Indian blood and that they were in being on June 20, 1936, the date of the approval of the public resolution. Upon this assumption I recommend that their enrollment for the purpose of participating in the payment provided by the public resolution be approved.

                                                                                                                                           NATHAN R. MARGOLD,

                                                                Solicitor.


 Approved: December 2, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

MENOMINEE MILL--SECRETARIAL POWER

                                                                                                            December 7, 1936.
Memorandum for the Commissioner of Indian Affairs:

    At Mr. Daiker's request this morning I have given brief consideration to the question raised by the Menominee Indians, whether the tribe will have the right, if a charter is granted it, to employ and dismiss at will all mill employees except the
manager, in view of the 1908 act, as amended.

    I do not believe that any of the provisions of the 1908 act (act of March 28, 1908, 35 Stat. 51), or any of its amendments, would prevent the Secretary of the Interior from issuing a charter of incorporation to the Menominee tribe in terms authorizing the incorporated tribe to manage the Menominee Indian mills and do its own hiring and firing. The issuance of such a charter appears to be authorized by the broad language of section 17 of the act of June 18, 1934, 48 Stat. 984.

    The question of what restrictions are to be placed by express terms of the charter upon the right to employ and dismiss mill employees is an administrative question.

                                                                                                                                            NATHAN R. MARGOLD,

                                                            Solicitor.
STATE AND FEDERAL JURISDICTION OVER
RESTRICTED LAND

M-28568                                                                                                                              December 11, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question of whether State game wardens may enter upon restricted Indian reservation lands in Minnesota to search for game they believe to be in the possession of Indians.

    This question demands consideration of the extent and basis of State jurisdiction upon an Indian reservation. It has been settled law since the famous case of Worcester v. State of Georgia, 6 Pet. 514, that a State has no jurisdiction to arrest a non-Indian within an Indian reservation for violation of a State law inconsistent with Federal laws and treaties affecting Indians. Likewise, it is settled that a State court has no jurisdiction to punish an Indian for acts forbidden by State law when such acts are committed within an Indian reservation. (United States v. Hamilton, 233 Fed. 685; In re Blackbird, 109 Fed. 139; In re Lincoln, 129 Fed. 247; United States v. Quiver, 241 U.S. 602.)

    These limitations on State jurisdiction do not, however, go to the point of denying all State jurisdiction within the boundaries of an Indian reservation. It is well settled that a State has jurisdiction to tax property owned by non-Indians within an Indian reservation. (Thomas v. Gay, 169 U.S. 264, holding that a tax on cattle pastured on Indian lands under Indian leases is not a tax on rentals and is "too remote and indirect to be deemed a tax upon the lands or privileges of the Indians." (p. 273) Accord: Wagoner v. Evans, 170 U.S. 588.) It is also well settled that a State may punish a non-Indian for an offense committed against another non-Indian within an Indian reservation, unless the United States in establishing the State itself has reserved absolute and exclusive jurisdiction over the territory of the reservation. (Draper v. United States, 164 U.S. 240; United States v. McBratney, 104 U.S. 621.)

    The theory underlying all the foregoing decisions appears to be that control over Indian conduct and Indian property on an Indian reservation is reserved to the United States, while for all other purposes the State may exercise a police jurisdiction over the territory of the reservation. Under this theory, the State cannot send its officers upon restricted Indian lands to search for game thought to be possessed by reservation Indians. Such action
 


 

703

OPINIONS OF THE SOLICITOR

DECEMBER 16, 1936

would be interfering with the person and property of Indians upon reservation lands, and could not be legally supported without specific Federal statutory authorization.

    Such specific authorization, in another field, is given by the act of February 15, 1929 (45 Stat. 1185; U.S.C., Tit. 25, Sec. 231), authorizing State officers to enter upon Indian reservation lands "for the purpose of making inspection of health and educational conditions and enforcing sanitation and quarantine regulations or to enforce compulsory school attendance of Indian pupils, as provided by the law of the State, under such rules, regulations, and conditions as the Secretary of the Interior may prescribe." Permission thus given to State officers for limited purposes cannot be extended, without further legislation, over purposes wholly different. The statute is itself a recognition that without specific authority State officers have no power to enter restricted Indian lands for the enforcement of State laws against Indians and their property.

    I am therefore constrained to answer your question in the negative.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: December 11, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

PUEBLO LAND GRANTS-PURCHASE

M-28850                                                                                                                             December 16, 1936.

The Honorable.
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether certain procedure suggested by Mr. William A. Brophy, Special Attorney for the Pueblo Indians in New Mexico, may be followed in making purchases from non-Indian claimants of lands located within the boundaries of the various Pueblo land grants in New Mexico.

    Section 13 of the act of June 7. 1924 (43 Stat. 636), reads in part as follows:

    "That as to all lands within the exterior boundaries of any lands granted or confirmed to the Pueblo Indians of New Mexico, by any authority of the United States of America or any prior sovereignty, or acquired by said Indians as a community by purchase or otherwise and which have not been claimed for said Indians by court proceedings then pending or the findings and report of the board as herein provided, the Secretary of the Interior at any time after two years after the filing of said reports of the board shall file field notes and plat for each pueblo in the office of the surveyor general of New Mexico at Santa Fe, New Mexico, showing the lands to which the Indian title has been extinguished as in said report set out, but excluding therefrom lands claimed by or for the Indians in court proceedings then pending, and copies of said plat and field notes certified by the surveyor general of New Mexico as true and correct copies shall be accepted in any court as competent and conclusive evidence of the extinguishment of all the right, title, and interest of the Indians in and to the lands so described in said plat and field notes and of any claim of the United States in or to the same. And the Secretary of the Interior within thirty days after the Indians' right to bring independent suits under this Act shall have expired, shall cause notice to be published in some newspaper or newspapers of general circulation issued, if any there be, in the county wherein lie such lands claimed by non-Indian claimants, respectively, or wherein some part of such lands are situated, otherwise in some newspaper or newspapers of general circulation published nearest to such lands, once a week for five consecutive weeks, setting forth as nearly as may be the names of such non-Indian claimants of land holdings not claimed by or for the Indians as herein provided, with a description of such several holdings, as shown by a survey of Pueblo Indian lands heretofore made under the direction of the Secretary of the Interior and commonly known as the "Joy Survey", or as may be otherwise shown or defined by authority of the Secretary of the Interior, and requiring that any person or persons claiming such described parcel or parcels of land or any part thereof, adversely to the apparent claimant or claimants so named as aforesaid, or their heirs or assigns, shall, on or before the thirtieth day after the last publication of such notice, file his or their adverse claim in the United States Land Office in the land district wherein such parcel or parcels of land are situate, in the nature of a contest, stating the character and basis of such adverse claim, and notice of such contest shall be served upon the claimant or claimants named in the said notice, in the same manner as in cases of contest of homestead entries. If no
 

 

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DEPARTMENT OF THE INTERIOR

DECEMBER 16, 1936

such contest is initiated as aforesaid, the Secretary of the Interior shall issue to the claimant or claimants, or their heirs or assigns, a patent or other certificate of title for the parcel or parcels of land so described in said notice; but if a contest be filed it shall proceed and be heard and decided as contests of homestead entries are heard and decided under the rules and regulations of the General Land Office pertinent thereto. Upon such contest either party may claim the benefit of the provisions of section 4 of this Act to the same extent as if he were a party to a suit to quiet title brought under the provisions of this Act, and the successful party shall receive a patent or certificate of title for the land as to which he is successful in such proceeding. Any patent or certificate of title issued under the provisions of this Act shall have the effect only of a relinquishment by the United States of America and the said Indians."

    Mr. Brophy, after calling attention to the provisions of the foregoing section, suggests:
    "Inasmuch as no contest can be filed later than the 30th day after the last publication of the notice mentioned, it is my opinion that when that time has expired the Pueblos could purchase and pay for such lands with safety before the patent actually issues. If the abstract would show a certificate from the Cadastral Engineer at Santa Fe or the General Land Office that the advertising has been completed and thirty days after the last publication thereof has expired, it then becomes the ministerial duty of the Secretary of the Interior to issue a patent. It takes a long time for the Land Office to get the patents out after the last publication, and in order to facilitate the acquisition of these various parcels of land I recommend that title be passed under the conditions stated above before patent is issued, provided the vendor agrees to record and surrender the patent, or agrees to withhold the recording fee and authorizes the Land Office to turn the patent over."
    Under Mr. Brophy's suggestion purchases will be made from non-Indian claimants prior to the issuance of the patents or certificates of title provided for in section 13 above. This is not objectionable, however, as express authority to make such purchases prior to the issuance of the patents or certificates of title is contained in the act of May 31, 1933 (48 Stat. 108), section 5 of which reads in part as follows:
"* * * That the Secretary of the Interior be, and he is hereby, authorized, out of the appropriations of the foregoing amounts and out of the funds heretofore appropriated for the same purpose, to purchase any available lands within the several pueblos which in his discretion it is desirable to purchase, without waiting for the issuance of final patents directed to be issued under the provisions of the Act of June 7, 1924, where the right of said pueblos to bring independent suits, under the provisions of the Act of June 7, 1924, has expired: Provided further, That the Secretary of the Interior shall not make any expenditures out of the pueblo funds resulting from the appropriations set forth herein, or prior appropriations for the same purpose, without first obtaining the approval of the governing authorities of the pueblo affected: * * *."
    Under the authority so conferred purchases of these lands may be made at any time after the right of the pueblo to bring independent suits has expired. Under paragraph 2, subdivision (b) of section 4 of the act of June 7, 1924, supra, the right of the pueblo to bring independent suits expires with the filing of plats and field notes in the Office of the Surveyor General of New Mexico, as required by section 13. Under section 13 the plats and field notes must be filed before publication of notice of the claims of the non-Indian claimants, hence the right of the Indians to bring independent suits will have expired in all cases before such notice is published. Accordingly, purchase of the tracts as suggested by Mr. Brophy is within the authority conferred by section 5 of the act of May 31, 1933, supra.

    There is no legal objection, therefore, to purchase of the lands of these non-Indian claimants at the time and in the manner proposed by Mr. Brophy, provided such purchases are made with the approval of the governing authorities of the pueblo, as required by section 5 of the act of May 31, 1933, supra.

    Your attention is called, however, to the various requirements of section 13 of the act of June 7, 1924, supra. These requirements are that plats and field notes must be filed in the Surveyor General's Office and that within 30 days thereafter notice must be published as therein set forth for five consecutive weeks, requiring any adverse claimant to
 


 

705

OPINIONS OF THE SOLICITOR

DECEMBER 21, 1936

file his or her adverse claim in the United States Land Office of the land district in which the lands are located on or before the 30th day after the last publication of such notice. As these requirements are framed in mandatory language the abstract of title should contain a certificate by the appropriate field officer of the General Land Office, showing affirmatively that the requirements of section 13 have been met and that no adverse claim has been filed within the period prescribed by that section.

    Your attention is also called to the fact that the procedure set forth in section 13 of the act of June 7, 1924, supra, with respect to the determination of adverse claims has no application to tracts (such as the Cebolleta grant referred to by Mr. Brophy), the title to which has been determined to rest in a non-Indian claimant by decree of the court in a suit brought by the United States or the Indians. Section 5 of the act of June 7, 1924, supra, declares that the decree in such cases shall have the effect of a deed of quitclaim as against the United States and the Indians. Non-Indian claimants whose title has been determined by such a decree may under section 13 apply for and receive a patent or certificate of title without cost or charge, but nothing contained in that or any other section of the act requires him again to litigate his title either in the courts or before the General Land Office. Purchase from such a non-Indian claimant prior to issuance of patent or certificate of title is also authorized by section 5 of the act of May 31, 1933, supra, and such purchase may be made at any time after the decree of the court has become final. Appropriate reference should, of course, be made in the abstract of title to the decree by which the title of the non-Indian claimant is established.

    Your attention is further called to the fact that some difficulty has been met with in the past in determining from the findings of the court or the Pueblo Lands Board, as the case may be, the particular persons to whom patents or certificates of title should be issued. In order that the Indian pueblos may be fully protected against the purchase of defective titles, I suggest that purchase in any such doubtful case be deferred until the claimants are identified by issuance of the patent or certificate of title.

                                                                                                                                            NATHAN R. MARGOLD,

SoIicitor.
Approved: December 16, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

UPPER RED LAKE--FISHING RIGHTS OF
INDIANS

December 19, 1936.
Memorandum for Mr. Zimmerman, Assistant Commissioner of Indian Affairs:

    Answering your memorandum of December 15, I deem it clear that acquisition by the United States on behalf of the Red Lake Band of Chippewa Indians of privately-owned land abutting on that part of Upper Red Lake now outside the boundaries of the Red Lake Reservation will not divest the State of Minnesota of Control over the waters of the lake nor invest the Indians with an exclusive right of fishing in such waters.

    The Supreme Court of the United States, has already ruled that the title to the bed of Red Lake passed to the State of Minnesota upon its admission into the Union. United States v. Holt Bank, 270 U.S. 49. Under the laws of the State of Minnesota the title of riparian owners stops at the water's edge. Lamprey v. State, 52 Minn. 182, 198, 53 N.W. 1139, 1143. Such riparian owners have a right of access to the lake with the privilege of using the waters thereof for certain purposes, including fishing, but these rights are common to all citizens of the State and their exercise is subject to regulation by the State under its police powers. The Indians upon acquisition of the lands by the United States for their benefit, will have like rights and no more. The State of Minnesota may, of course, cede its jurisdiction and control to the United States, but until it has done so its laws with respect to fishing, etc. in these waters must be observed.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
LANDS BOUGHT WITH RESTRICTED
FUNDS--TAX
December 21, 1936.
Memorandum for Mr. Zimmerman, Assistant Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Turtle Mountain Indian Agency holds that lands located in North Dakota may not be made tax exempt by purchase for an individual Indian with the proceeds derived from the sale of his restricted tax exempt lands located in Montana. While you have signed the letter you state that "A way should be found to beat this particular devil around this offending stump".
 


 

706

DEPARTMENT OF THE INTERIOR

DECEMBER 21, 1936

    The position taken in the letter you have signed appears to be based upon the provisions of the act of March 2, 1931 (46 Stat. 1471) which, as amended by the act of June 30, 1932, (47 Stat. 474) reads:

    "That whenever any nontaxable land of a restricted Indian of the 5 Civilized Tribes or of any other Indian tribe is sold to any State, county or municipality for public improvement purposes, or is acquired, under existing law, by any State, county or municipality by condemnation or other proceedings for such public purposes, or is sold under existing law to any other person or corporation for other purposes, the money received for said land may, in the discretion and with the approval of the Secretary of the Interior, be reinvested in other lands selected by said Indian, and such land so selected and purchased shall be restricted as to alienation, lease, or incumbrance and nontaxable in the same quantity and upon the same terms and conditions as the nontaxable lands from which the reinvested funds were derived, and such restrictions shall appear in the conveyance."
    The act of 1931 applied only to Indians of the Five Civilized Tribes in Oklahoma and the Solicitor for this Department ruled that the act did not authorize the investment of the proceeds from disposals of the lands of those Indians in new non taxable selections located in States other than Oklahoma. The amendment of 1932 extended the benefits of the act to Indians of all other tribes and by administrative ruling the opinion of the Solicitor was held applicable to such other tribes, that is to obtain the benefit of the tax exemption, purchases must be confined to the State in which the disposed of lands were located.

    It is suggested in a memorandum presented with the record that in the absence of additional legislation the only way out would be a reconsideration of the Solicitor's Opinion. Such action, however, even if it resulted in a reversal of the opinion would not be helpful in the present case. The authority to invest in other lands and impress the same with restrictions against alienation and taxation extends only to proceeds from restricted tax exempt lands disposed of to a State, county or municipality, or to a corporation or person. The restricted tax exempt lands here involved were sold to the United States. As the United States cannot be regarded as a person or corporation within the meaning of the act (United States v. Fox, 94 U.S. 315, 321; Davis v. Pringle, 268 U.S. 315), the authority conferred does not extend to the proceeds derived from such sale.

    It is possible that the desired object may be accomplished under the provisions of the act of June 18, 1934 (48 Stat. 984). Section 19 of that act defines the word Indian as used therein to include (1) all persons who are members of any recognized Indian tribe now under Federal jurisdiction, (2) all persons who are descendants of such members who were on June 1, 1934, residing within the present boundaries of any Indian reservation, and (3) all other persons of one half or more Indian blood. If the Indian in the present case falls within either of these classes and is not a member of a tribe which has voted against the act, he would be eligible for a land purchase under section 5 of the act which declares that title to the lands purchased thereunder for an individual Indian shall be taken in the name of the United States in trust for the individual Indian and that such lands shall be exempt from State or local taxation. Where as here the Indian is in need of land, I find nothing in the act which prevents the use of funds held in trust for him by the Government in making the purchase under section 5.

    I noted that this particular Indian was allotted on the public domain in Montana. I assume from this that he is not residing on any Indian reservation and if he is not a recognized member of any Indian tribe and is of one half or more Indian blood, he would come within class 3 above and would be eligible for a land purchase under section 5. If, however, he is a member of the band or tribe of Indians occupying the Turtle Mountain Reservation in North Dakota, he would not be eligible for a land purchase under section 5 because the Indians of that reservation voted against the act.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
IRA--ACQUISITION OF LAND
January 4, 1937.
Memorandum for the Office of Indian Affairs:

    The Office of Indian Affairs has submitted a title for examination covering land in Nevada being purchased under authority granted by the Wheeler-Howard Act (48 Stat. 984). The deed designates the grantee as the United States in trust for the landless Shoshone Indians of Nevada.

    The designation of the beneficiary is insufficient because it does not show whether these Shoshone
 


 

707

OPINIONS OF THE SOLICITOR

JANUARY 4, 1937

Indians fall within the classes as defined in Section 19 of the Act of June 18, 1934, supra. The term "Indian" as used in Section 19 includes all persons of Indian descent who are members of a recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and all other persons of 1/2 or more Indian blood. An examination of the file reveals that the Indians in question are scattered over a wide area in the northeastern quarter of Nevada and apparently are not affiliated with any recognized tribe or band. But they fall within the class defined as to the degree of Indian blood, and insofar as they do, purchases may be made for their benefit. Therefore, I suggest that the titles now being acquired be taken as follows:

    "The United States in trust for such Shoshone Indians of 1/2 or more Indian blood, resident in Nevada, as shall be designated by the Secretary of the Interior."
    Please advise me whether this is satisfactory.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
OSAGE TAX EXEMPTIONS

M-28811                                                                                                                             January 4, 1937.

The Honorable,
The Attorney General.

MY DEAR MR. ATTORNEY GENERAL:

    Transmitted herewith is copy of an opinion by the Solicitor for this Department regarding the applicability of the act of June 20, 1936 (49 Stat. 1552), to individual Indians of the Osage Tribe in Oklahoma.

    I request your opinion upon the questions considered by the Solicitor, and would appreciate your early consideration of this matter.

                                                                                                                                                           HAROLD L. ICKES,

Secretary of the Interior.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to what, if any, application the act of June 20, 1936 (49 Stat. 1552), has to the individual members of the Osage Tribe of Indians in Oklahoma. The act reads:

    "That there is hereby authorized to be appropriated, out of any money in the Treasury of the United States not otherwise appropriated, the sum of $25,000 to be expended under such rules and regulations as the Secretary of the Interior may prescribe, for payment of taxes, including penalties and interest, assessed against individually owned Indian land the title to which is held subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased with the understanding and belief on the part of said Indians that after purchase it would be nontaxable, and for redemption or reacquisition of any such land heretofore or hereafter sold for nonpayment of taxes.

    "Sec. 2. All lands the title to which is now held by an Indian subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased out of trust or restricted funds of said Indian, are hereby declared to be instrumentalities of the Federal Government, and shall be nontaxable until otherwise directed by Congress."

    In explanation of the above statute, it may be said that the right of the State and its legal subdivisions to tax lands purchased with the restricted or trust funds of individual Indians and conveyed to the Indians by deeds prohibiting alienation or encumbrance without the consent or approval of the Secretary of the Interior was the subject of controversy and litigation extending over a considerable period of years. It has now been finally decided that such lands after acquisition by the Indians remain subject to the taxing power of the State. United States v. Gray, 284 Fed. 103, dism'd 263 U.S. 689; United States v. Ranson, 284 Fed. 108, aff'd 263 U.S. 691; United States v. Mummert, 15 F. (2d) 926; McCurdy v. United States, 246 U.S. 263; Work v. Mummert, 29 F. (2d) 393; Shaw v. Oil Corporation, 276 U.S. 575. As a result, many Indians who were financially unable to meet these tax burdens, lost their lands under tax foreclosure sales, and others faced similar losses. The object of the act of June 20, 1936, supra, is to afford a measure of relief to these Indians.

    Two forms of relief are provided and dealt with, respectively, in separate sections of the statute. Section 1 provides for an appropriation of $25,000, which is to be available only in cases where the Secretary of the Interior finds that the lands were
 


 

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DEPARTMENT OF THE INTERIOR

JANUARY 4, 1937

acquired by the Indians with the belief and understanding, that they would be nontaxable, and where such finding is made, the appropriated funds may be used for redeeming or reacquiring lands sold for nonpayment of taxes or in making payment of delinquent taxes, interest and penalties standing as a lien against lands still in Indian ownership. Section 2 makes all lands purchased prior to the date of the enactment and then in restricted Indian ownership instrumentalities of the Federal Government and declare that such lands shall be nontaxable until otherwise provided by Congress. It is to be observed that the limitation imposed by section 1 on the expenditure of the appropriated funds, namely, that such expenditures may be made only where the Secretary of the Interior finds that the Indian for whom the lands were purchased understood and believed that the lands would be nontaxable, is not contained in section 2, which creates the tax exemption. In such a situation, the limitations must be regarded as confined to the section in which it is found and will not be extended to other sections unless plainly so intended. See Lewis Sutherland on Statutory Construction, Vol. 2, Sec. 352. No such intention is apparent on the fact of the statute. Confining the limitation to the section in which it is found does exclude from the benefits of that section certain Indians who will share in the relief granted by section 2. Bearing in mind, however, the difference in the relief afforded by the two sections, this is not an unreasonable distinction. In asking Congress to appropriate funds for the payment of taxes and for redeeming or reacquiring lands sold for nonpayment of taxes, the Indian for whom the land was purchased with the understanding and belief-often induced by representations made by employees of the Federal Government-that the lands would be nontaxable, doubtless, occupies a more favored position than the Indian who had the contrary understanding and belief. But protection from future taxation by creating a tax exemption might with equal propriety be given to both. In any event, the distinction as to the beneficiaries entitled to the relief granted by the two sections of the statute is one which Congress has seen fit to make and it may not be disregarded without adding to the language of the statute, which administrative officers are without the power to do.

    Turning now to the question of the application of the statute to members of the Osage Tribe of Indians in Oklahoma, it will be observed that no mention is made in the statute of any particular tribe of Indians. Section 1 refers to "individually owned lndian land the title to which is held subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased out of trust or restricted funds of an Indian * * *." Section 2 imposes the tax exemption upon "all lands the title to which is now held by an Indian subject to restrictions against alienation", etc. (Italics supplied.) Under this all inclusive language, the tribe to which the individual Indian belongs is immaterial. If, therefore, the Osage Indians are to be excluded, the reason for such exclusion must be found elsewhere than in the act of June 20, 1936. In so far as the relief afforded by section 1 of the act is concerned, no reason is apparent for excluding the Osages. No prior legislation, general or special, prohibits the use of Federal funds for paying taxes on lands purchased by Osage Indians or for redeeming or reacquiring lands that may have been sold for non payment of taxes. The appropriation authorized by section 1 cannot, of course, be used for the benefit of an Osage Indian whose restricted or trust funds were used in purchasing lands with the understanding that same would be taxable. But this is equally true of Indians of other tribes. Relief is denied in such cases, not because the act is in terms inapplicable, but because the Indians are unable to meet one of its requirements.

    When we come to consider the applicability of the tax exemption created by section 2 of the act to the Osages, however, we encounter a somewhat different situation. The taxability of lands of members of the Osage Tribe of Indians has been dealt with specifically and expressly by Congress. Section 1 of the act of March 2, 1929 (45 Stat. 1478), reads:

    "Homestead allotments of Osage Indians not having a certificate of competency shall remain exempt from taxation while the title remains in the original allottee of one-half or more Osage Indian blood and in his unallotted heirs or devisees of one-half or more Osage Indian blood until January 1, 1959: Provided, That the tax exempt land of any such Indian allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres."
    The scope of the proviso prohibiting allottees, their heirs or devisees from holding at any one time more than 160 acres of tax-exempt land, construed in the light of the general language to which it is attached. may well be regarded as confined to lands allotted to members of the Osage Tribe as homesteads. Given this construction, any conflict between that enactment and section 2 of the act of June 20, 1936, which deals a different class of lands, is avoided and the two statutes may operate in
 


 

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entire harmony. There is, however, a more specific provision dealing with the taxability of lands including lands of the identical class involved in the act of June 20, 1936. Section 1 of the act of February 27, 1925 (43 Stat. 1008), authorizes, among other things, the purchase of real estate from the restricted or trust funds of individual members of the Osage Tribe. Such lands, when purchased, are usually conveyed to the Indians by deeds prohibiting alienation or encumbrance without the approval of the Secretary of the Interior. Section 3 of the act of February 27, 1925, further declares that:

    "Property of Osage Indians not having certificates of competency purchased as herein before set forth shall not be subject to the lien of any debt, claim, or judgment except taxes, or be subject to alienation, without the approval of the Secretary of the Interior." (Italics added.)
    The words "Property of Osage Indians * * * purchased as hereinbefore set forth" obviously embrace lands purchased by Osage Indians under authority of section 1 of the act of 1925, and the declaration that such lands shall not be subject to the lien of any debt, claim or judgment "except taxes" carries the implication that such lands shall be subject to taxation. That it was the intent of Congress that these purchased lands should be subject to taxation is clearly shown by the legislative history of the enactment. See Hearings before the Committee on Indian Affairs, House of Representatives, 68th Cong., Sess. I, on H.R. 5726, page 124. We are thus confronted with a special statute under which lands purchased by Osage Indians are subject to taxation and a later general statute which exempts Indian lands from taxation if title is taken and held in a certain manner. In this situation, is the prior special enactment repealed?

    The argument that no repeal has been effected relies, in the first place, upon the old maxim, "repeals by implication are not favored." In determining whether the earlier statute is still in effect, it becomes necessary to ascertain what meaning and what force is given to this maxim by the decided cases.

    The maxim in question, like many other maxim, is stated in many cases, but the judicial statement of it is usually followed by the words "however", "but", or "nevertheless". In fact, of the many Federal cases cited in Corpus Juris and the Federal Digest in support of this rule, there is none in which a later statute logically incompatible with an earlier statute was held not to repeal the earlier statute.

    All this is not to say that the maxim is entirely meaningless. Two situations must be recognized in which the maxim is of positive importance. In the first place, the maxim is invoked, as are other rules of statutory construction, in the resolution of ambiguities that appear on the fact of a statute. In accordance with this maxim, when two interpretations of a statute are possible, one of which will permit earlier legislation to stand and the other of which will nullify the earlier legislation, the former interpretation is favored. Thus, where the later statute refers to "real estate in possession of any person" and establishes a period of limitation inconsistent with the period established by earlier statutes, the phrase "real estate in possession of any person" has been given a narrow construction to exclude railroad lands devoted to public use, as to which the earlier statute of limitation is enforced. Summers v. Atchison, etc. R. Co., 2 F. (2d) 717. This narrow construction is perfectly reasonable, in view of the traditional rule that the sovereign is not comprehended in general statutes without special mention, and in view of the further fact that the word "person" is commonly used to exclude instrumentalities of government.

    As invoked in such a case as the foregoing, the rule in question is a rule for the resolution of ambiguities, and is so recognized by the highest authorities.

    "Repeals by implication are not favored. This means that it is the duty of the court to so construe the acts, if possible, that both shall be operative." (Lewis' Sutherland Statutory Construction, Sec. 247.)

    "Such an interpretation (repeal by implication) is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention." (Maxwell on Interpretation of Stats. (6th ed. London) 296).

    "Repeal will be implied only when necessary, because the last or dominate statute admits of no other reasonable construction." Continental Insurance Co. v. Simpson, 8 F. (26) 439, 442.

    "It is true enough that under well-known rules of statutory construction, repeals by implication are not favored. It is nevertheless just as definitely a rule that where the later statute is clearly and distinctly inconsistent with the earlier condition of the law the last enactment will control." Ex Parte Yoshinobu Magami, 47 F. (2d) 946, 947.

    "* * * It is a familiar doctrine that repeals by implication are not favored. When there
 
 


 

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are two acts on the same subject the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first." United States v. Tynen, 11 Wall. 88, 92.

    "If two inconsistent acts are passed at different times, the last is to be obeyed; and if obedience can not be observed without derogating from the first it is the first which must give way * * * the intention of the framers must prevail, and the only serious problem is as to how that intention is to be ascertained. Of course, if the language of the statute is clear and unambiguous we are to go no further to ascertain its meaning." Lewis v. United States, 50 Ct. Cl. 226, 240, aff'd 244 U.S. 134.

    "* * * it is equally well settled that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it does not do so in terms." Sedgwick on Statutory Construction (2d ed.) 104.

    So construed and applied, the maxim, "Repeals by implication are not favored", has no application to the act of June 20, 1936, for there is no ambiguity whatsoever in the provision that certain lands shall be nontaxable.

    A second application is given, in many cases, to the maxim under consideration. In most cases of so-called repeal by implication it will be noted that there is actually no incompatibility between the earlier and the later statute. Thus where a later statute forbids an act already prohibited by an earlier statute, attaching a new penalty thereto, it is usually held that the later statute impliedly repeals the earlier statute, although actually there is no logical difficulty in holding that both statutes are in force and that prosecutions may be brought under either. Cases of this sort, in which repeals by implication are effected without any showing of inconsistency are: United States v. Tynen, 11 Wall. 88; District of Columbia v. Hutton, 143 U.S. 18; United States v. Yuginovich, 256 U.S. 450; Maresca v. United States, 277 Fed. 727.

    In such cases as the foregoing the argument for repeal is that the legislature could not have intended that two different statutes should govern the same subject. This argument from the assumed intent of the legislature is regularly answered by the maxim, "Repeals by implication are not favored." Logically, there is no implication of repeal in these cases. It is not only logically possible but often practically necessary to have a single subject governed by many different statutes. From the standpoint of logic, the question of whether two inconsistent statutory provisions shall both stand can never arise, since it is logically impossible to give effect to two inconsistent provisions. If one statute is inconsistent with another either the earlier statute is pro tanto repealed or the later statute is pro tanto void. The question of whether both statutes shall be enforced arises only when there is no logical inconsistency between the two statutes, but simply an issue of convenience or legislative intent. Upon that issue the maxim that implied repeals are not favored has a legitimate force.

    On the basis of this maxim courts will frequently permit two statutes to stand where they are not inconsistent and reject the fiction that a legislature must have intended the later statute as a substitute for the earlier. In the case of Chase v. United States, 283 Fed. 887, two separate statutes authorized allotments of different amounts of land to different classes of Indians. It was held, quite properly, that a repeal of the earlier statute had not been effected. It was perfectly possible to give effect to the two statutes. Again in Wood v. United States, 16 Pet. 342, separate statutes prescribing separate penalties for different, but overlapping, offenses are both given effect and the argument for repeal of the earlier statute by implication is rejected. Similarly in Bookbinder v. United States, 287 Fed. 790, it is held that a prohibition statute does not repeal a law against smuggling, since there is no necessary incompatibility between the two laws. In United States v. Ten Thousand Cigars, 28 Fed. Cas. No. 16,451, it is held that a statute permitting certain witnesses to testify under certain conditions does not repeal a statute permitting these and other witnesses to testify regardless of such conditions. Either statute may be invoked to justify the testimony to which it applied. In Continental Insurance Company v. Simpson, 8 F. (2d) 439, the argument for repeal by implication is rejected where the two statutes in question dealt with entirely different subjects, one, the manner of printing insurance policies, the other the method of proving losses. In Ex parte Yoshinobu Magumi, 47 F. (2d) 946, it is held that two statutes, authorizing deportation under different conditions, may both be given effect, and the argument for repeal by implication is therefore rejected. In Franke v. Murray, 248 Fed. 865, one statute made desertion from the military service punishable by a military court, while a later statute made violation of draft laws a misdemeanor. The argument that the later statute by implication repealed the earlier statute, where the same act constituted both desertion and a violation of the draft laws, was rejected. In this case as in all the other cases above mentioned, it is logically possible
 


 

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to give full effect, according to their terms, to both statutes. That, quite clearly, is not the situation which the act of June 20, 1936, presents.

    The scope of the maxim in question is thus summed up by the Supreme Court in two recent cases:

    "It is, of course, settled that repeals by implication are not favored. It is equally well settled that a later statute repeals former ones which are clearly inconsistent with the earlier enactments." United States v. Yuginovich, 256 U.S. 450, 463.

    "It is true that repeals by implication are not favored. The repugnancy between the later act upon the same subject and the former legislation must be such that the first set can not stand and be capable of execution consistently with the terms of the later enactment." Lewis v. United States, 244 U.S. 134, 144.

    I conclude, then, that the maxim, "Repeals by implication are not favored," is primarily a rule for the resolution of ambiguities. Certain of the ambiguities thus resolved appear in the language of the later statute itself, and in these cases the rule is invoked to justify that interpretation of the ambiguous phrase which does least damage to prior law. The interpretation in such cases must at least be a reasonable interpretation. Secondarily, the maxim in question is a limitation upon the legal fiction that a statute is intended to supersede all earlier statutes on the same subject. In no case where the rule is invoked is it held that of two statutes which are logically inconsistent the earlier statute remains in force and the later statute is pro tanto nullified. There is nothing in any of the decided cases inconsistent with the rule that a later statute clearly inconsistent with an earlier statute supersedes the earlier statute.

    The maxim, "Repeals by implication are not favored," takes a more specified and more persuasive form where the second statute is general and the first statute special. The rule is commonly announced that a later general statute will not be construed to repeal an earlier special statute but that the earlier statute will be read as an exception to the later statute.

    The argument from this rule, applied to the statute under consideration is that, being general in its scope, it must yield to the earlier legislation dealing specially with Osage lands.

    It may be questioned whether the rule cited could be applied to the present case. In the first place, we must note that the prior act of February 27, 1925, did not in terms make Osage lands taxable but simply recognized that Osage lands were subject to the same rule of taxation as then applied to other Indian lands. That general rule has now been modified. In the second place, the assumption that the act of February 27, 1925, is special and the act of June 20, 1936, general is true only in a geographical sense. With respect to the type of property, the later act is more specific. It refers to:

    "All lands the title to which is now held by an Indian subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased out of trust or restricted funds of said Indian, * * *."
    The earlier act refers generally to "property of Osage Indians" acquired on their behalf by the Secretary of the Interior, including United States bonds, Oklahoma State bonds, real estate, and livestock. Applying to the instant case the ancient maxim, "Generalia specialibus non derogant." we might infer that the kind of land referred to in the later statute is a special exception to the general tax rule recognized in the earlier statute. We might then give full force to both statutes by holding that the earlier provision on taxes is no longer applicable to the lands covered by the recent statute (just as it never was applicable to United States bonds) but remains applicable to other property, real or personal.

    A more fundamental objection to the argument that the earlier statute, being special, remains in full force appears from an analysis of the decided cases in which this rule is applied. However frequently stated, the rule is not borne out by the actual decisions. In no case is the rule actually applied so as to hold that where the two statutes are clearly inconsistent the earlier statute will remain in force and the later statute will be voided pro tanto. As with the maxim, "Repeals by implication are not favored," this rule is invoked in two situations: (1) to resolve ambiguities, and (2) to negate an argument for implied repeal where there is no logical inconsistency between the two statutes.

    In its first usage the rule is invoked to justify a narrow construction of the later statute which preserves the integrity of the earlier statute. In all such cases, it is important to note, the narrow construction is a reasonable construction of the later statute.

    A strong case cited in support of the rule that a later general statute does not repeal an earlier special statute is Washington v. Miller, 235 U.S.
 


 

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JANUARY 4, 1937

422. In that case a general act of Congress provided that Arkansas laws theretofore applied to non Indians within the Indian territory should be extended to cover Indians and Indian estates. An earlier statute provided that in the descent of Creek lands, Creek Citizens should have a preference among heirs. The Arkansas laws, of course, provided for no such preference. The Supreme Court held that the statutory preference had not been repealed, although it recognized that if the later statute were given a literal interpretation the repeal of the earlier statute would be implied. The court held that a reasonable interpretation could be placed on the later statute under which "no irreconcilable conflict or absolute incompatibility" would arise between the two laws both could be given effective operation. In effect, the court held that "all the laws of Arkansas heretofore put in force in the Indian Territory" meant the laws of Arkansas compatible with Federal legislation. Such a construction can easily be defended since the laws of Arkansas were extended to Indian territory by acts of Congress which were amended by the specific statute establishing preferences in inheritance. Certainly the holding in this case does not by any means prove that where two statutes are necessarily inconsistent the earlier statute can be read as an exception to the later and the later statute protantovoided.

    A similar case is United States v. Nix, 189 U.S. 199. Here a specific statute required the marshal in Indian territory to take prisoners before judicial officers nearest the place where the crime was committed. A later general statute imposed upon all arresting oflicers the duty to bring the prisoner before the "nearest" judicial officer. Literally construed, this referred to the officer nearest to the point of arrest. In view of the earlier specific statute, however, it was held that an officer who conformed to the direction in that statute had not violated the law. In effect, the court simply placed a perfectly reasonable interpretation upon the later statute which avoided inconsistency.

    Again, in United States v. Greathouse, 166 U.S. 601, a statute of limitations was construed as not running against persons under disability until the removal of the disability, thus giving effect to an earlier statute specifically providing for such cases. In United States v. Burnet, 65 F. (2d) 195, a statute construed as not applicable to overpayments made by a government officer in behalf of an alien enemy corporation, thus avoiding inconsistency with a statute passed a few days earlier specifically prohibiting any interest payments with respect to the refund of taxes assessed upon alien enemy properties.

    In Knapp v. Byram, 21 F. (2d) 226, a procedural statute authorizing removal of causes of action was held inapplicable to cases arising under the Federal Employees Liability Act, which provided that plaintiffs might bring action in State courts and that such actions might not be removed. The strongest case that has been found in support of the maxim cited is Loisel v. Mortimer, 277 Fed. 882. In that case special legislation authorized the payment of traveling expenses for the clerks of certain courts out of court fees, at a rate of $10 per day. A later general appropriation bill, appropriating a certain sum for payment of clerical fees, contained a proviso that travel expenses of clerks should not exceed $5 per day. It was held that the appropriation act did not repeal the earlier legislation. The actual decision in this case may perhaps be justified on the ground that the proviso should be construed to cover the use of appropriated funds rather than the use of court fees-and so construed there was no incompatibility between the statutes. But the language of the opinion in this case is very sweeping. The court, relying on Washington v. Miller, supra, declares:

    "* * * even where the words of the general act embrace the special act no repeal will be implied, but the special act will be construed to be an exception to the general act, unless it is absolutely necessary to so construe it in order to give its words any meaning at all." (p. 887.)
Actual decisions do not support this sweeping dictum.

    Other cases commonly cited as supporting the maxim that a later general statute does not overrule an earlier special statute are cases in which there is no logical inconsistency between the two statutes. Such a case is Petri v. Creelman Lumber Co., 199 U.S. 487. In that case it was held that a statute requiring civil suits to be brought in a district in which the defendant resided did not repeal an earlier statute providing that where several defendants were involving, residing in different districts of Illinois, suit might be brought in a district in which any one of the defendants resided. Likewise in the case of Hemmer v. United States, 204 Fed. 898, special legislation authorized certain Indians to take homesteads subject to a 5 year limitation on alienation. Later general legislation authorized Indians to take homesteads under restraints on alienation covering a 25 year period. It was held that the later statute did not repeal the earlier statute by implication. The holding is perfectly sound since there is no logical inconsistency between the two statutes. Again, in the case of Abbate v. United States, 270 Fed. 725, it
 


 

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was held that an Alaska prohibition law was not repealed by the National Prohibition Act. The latter act specifically provided that other laws not inconsistent therewith should not be repealed. There being no inconsistency between the two prohibitions, both could remain in full force. Similarly in Witte v. Shelton, 240 Fed. 265 (cert. den. 240 U.S. 660) the earlier statute forbade any and all delivery within certain States. The court held that there was no inconsistency between the statutes and hence no repeal, declaring "specific legislation upon a particular phase of a single subject is not affected by a subsequent law related to a general subject which neither refers to the earlier law nor is repugnant to nor inconsistent with * * *." (p. 268.)To the same effect is Washington Trust Company v. Dunaway, 169 Fed. 37, in which it is held that a general act covering the recording of mortgages by "residents" does not supersede an earlier special act providing for the method of recording a railroad mortgage by a foreign corporation. See to the same effect Harris v. Bell, 250 Fed. 209,Aff'd. 254 U.S. 103; United States v. Dern, 74 F. (2d) 485; Wash. Ry. & El. Co. v. District of Columbia, 10 F. (2d) 999. Tri-State Motor Corp. v. Standard Co., 276 Fed. 631; Priddy v. Thompson, 204 Fed. 955; Partee v. St. L. & S. F. R. Co., 204 Fed. 970; Christie-Street Comm. Co. v. United States,136 Fed. 326; Third Nat. Bank v. Harrison, 8 Fed. 721. In all these cases there is no inconsistency between the earlier and the later statute and the question is simply whether the legislature is presumed to intend the repeal of an earlier act on the same subject even though the acts are not logically inconsistent.

    Finally, it may be noted that many of the cases commonly cited in support of the proposition that a general statute does not repeal a special statute are cases in which the special statute is the later of the two (Thornton v. Road Imp. Dist., 291 Fed. 518, app. diem. 269 U.S. 592; Bd. of Comrs. v. Aetna Life Ins. Co., 90 Fed. 222), or cases in which the two provisions which seem to conflict are part of the same statute (Rodgers v. United States, 185 U.S. 83).

    If the foregoing analysis is correct none of the reported cases in the Federal courts actually holds that of two inconsistent statutes the earlier statute will prevail if it is "special" and if the later statute is more "general." The farthest that any case cited in support of this rule go is to place upon the later statute a construction that may seem strained in order to avoid a logical inconsistency. On the other hand, there are a number of cases in which the courts recognize a clear inconsistency between the two statutes and in such cases it is universally held that the later statute, even though more general in its terms than the earlier statute, repeals the earlier statute. Thus in the case of Tracy v. Tuffly, 134 U.S. 206, where the earlier statute referred to assignments by limited partnerships, and the later statute referred to assignments generally, it was held that the later statute repealed by implication so much of the earlier statute as was inconsistent. In the case of King v. Cornell,106 U.S. 395, the earlier statute laid down a rule on removal of causes of action by alien defendants. The later statute laid down a general rule on the subject of removal of causes of action. Finding the rules inconsistent, the court held that the later statute, though general, repealed the earlier act. In Anchor Line v. Aldridge, 280 Fed. 870, an earlier statute authorizing the transportation of bonded liquor for certain purposes was held to have been repealed by implication by a later general statute forbidding all transportation of liquor. The court declared in that case, "Repeals by implication are not favored; but where a later statute is plainly inconsistent with a prior statute the later statute necessarily repeals the prior statute." (p. 875.)

    Instances of this sort could be multiplied indefinitely. The fact of the matter is that if all the general statutes now in force could be impeached by discovering earlier laws less general in scope, no one could put credence in the words of any statute. There is no logical distinction between "general" and "special" statutes, but only between the more general and less general of any pair of
statutes. There is no statute which may not turn out to be more general than some earlier statute. Thus every case that falls under any statute might conceivably have been dealt with earlier by more particular legislation.

    To apply generally the maxim, "Generalia specialibus non derogant" would thus be to throw the law into boundless confusion. Exhaustive historical research would be necessary to determine whether any statute should be enforced according to its terms. For these reasons it is impossible to accept at face value certain judicial dicta on this subject which go beyond the decisions in any case and are squarely in conflict with a number of actual holdings.

    It is quite possible that the act of June 20, 1936, as drafted, covers a wider territory than was intended by its sponsors. The remedy for that is legislative amendment rather than repeal by administrative or judicial construction.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
Approved: January 4, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.
 


 

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DEPARTMENT OF THE INTERIOR

JANUARY 11, 1937

IRA--SECTION 5

January 11, 1937.
Memorandum for the Commissioner of Indian Affairs:

    The attached letter to Superintendent Shotwell dealing with the question of when restricted Indian lands may be sold or exchanged is returned herewith for further consideration.

    In my opinion the conclusion of law stated in the fourth and fifth paragraphs of this letter are incorrect as well as inconsistent with your Circular L.A. 3162 on exchanges, sales and gifts of restricted lands.

    That circular specifically covers the concrete situation presented by Superintendent Shotwell, and declares, "The parent may deed the land to the United States in trust for the child or children". This possible course of action, concerning which specific inquiry has been made, is ignored in the proposed letter.

    The more general question is presented by the attached letter of inquiry whether under section 5 of the Indian Reorganization Act the Secretary may acquire land from one Indian for the use of another, the equitable vendee supplying the purchase price. The negative answer is put forward in the proposed letter. This is incorrect, I believe, as a matter of law and definitely inconsistent with the directions contained in the circular referred to above. That circular stated, "Transfers in the form of sales or gifts may be made between Indians under the authority contained in Section 5". It is true that the beneficiary of a section 5 transaction must be an Indian in need of land. I do not think, however, that the fact that an individual Indian has money which he wants to use for land purchase excludes him from help under section 5, as the proposed letter declares. In the cases mentioned by Superintendent Shotwell, where land is wanted for building sites to be used by the individual Indian asking the purchase, there is a prima facie case, I think, to support the use of individual Indian funds for a section 5 purchase. I should be inclined to go further, and say that wherever land is desired by an Indian for his personal use and occupancy, a prima facie case is made out for purchase under section 5 out of individual funds. Whether in such cases title should be taken in trust for the individual or in trust for the tribe with an assignment to the individual is purely a question of policy.

    Where land is acquired under section 5 from an other Indian the question of the Indian vendor's land status should be considered just as important as the question of the Indian vendee's land status. If the vendor by reason of age, disability or absence from the reservation is unable to make use of the land that he desires to sell, and if his prospective heirs are in the same position, there would seem to be no ground of objection to such a sale. If, however, the Indian vendor is himself in need of land, the propriety of approving a sale of any land he may own, even to another Indian, may be seriously questioned. In such circumstances it would seem that he should receive not cash which may be squandered but additional land to be held in a restricted status. In such a situation then the transaction should take the form of an exchange rather than a sale. This question, however, is primarily one of policy.

    To sum up, the transactions permitted under sections 4 and 5 of the Indian Reorganization Act must be considered from the point of view of two parties, the vendor and the equitable vendee. Any Indian who needs land is an eligible vendee. Any Indian who does not need land that he now holds is an eligible vendor, Any Indian who is not an eligible vendor of land that he now holds may nevertheless dispose of such land in exchange for other land of equal value. In all these cases the determination of need is primarily an administrative question.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
TRIBAL LAND--MINING LEASE--POWER OF
COUNCIL
January 12, 1937.
Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith for further consideration a letter addressed to Superintendent Nash of the Sacramento Agency authorizing the Council of the Tuolumne Band of the Tuolumne Rancheria to execute a lease for mining purposes. It is my opinion that the Council does not have authority to execute this lease and moreover that unless further facts are shown which alter the legal situations, the Department itself has no authority to make such a lease.

    Discussing first the authority of the Council, it should be pointed out that the precedent relied on by the Indian Office in this letter in justifying the authority given the Council does not apply to this case. That precedent was my memorandum of May 28, 1936, on the subject of the power of the
 


 

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Council of the Fort Hall Reservation to execute a lease of tribal lands. In that case reliance was placed on the fact that the Council under its constitution was given express authority to make leases and that this power in the Council existed even before the adoption of the constitution by virtue of section 3 of the act of February 28, 1891 (26 Stat. 795). However, the Council of the Tuolumne Band has no power in its constitution to make leases. The only relevant power is the power to veto leases of tribal lands. Moreover, the Council of this band would not have been able before the adoption of the constitution to make such a lease, as the provisions of section 3 of the act of 1889 do not extend to this band. Section 3 of the 1891 act reads as follows:

    "Leases of lands for grazing or mining. Where lands are occupied by Indians who have bought and paid for the same, and which lands are not needed for farming or agricultural purposes, and are not desired for individual allotments, the same may be leased by authority of the council speaking for such Indians, for a period not to exceed five years for grazing, or ten years for mining purposes in such quantities and upon such terms and conditions as the agent in charge of such reservation may recommend, subject to the approval of the Secretary of the Interior."
    The Tuolumne Band does not occupy lands which it has bought and paid for within the mean ing of this section. The phrase "who have bought and paid for the same" has been uniformly interpreted in various decisions to mean lands obtained by the Indians by treaty or otherwise for which they have given some consideration either by the payment of money or by exchange or by the surrender of the possession of other property. Strawberry Valley Cattle Co. v. Chipman, 13 Utah 454, 45 Pac. 348; 25 L.D. 408. See 49 L.D. 139 at 142. These decisions accordingly state that this phrase does not cover reservations created by legislative enactment or by Executive order. The Tuolumne Reservation was purchased under the act of June 21, 1906 (34 Stat. 325, 333) which appropriated not more than $100,000 from the general treasury for the purchase of land for "the Indians in California." It appears that this purchase was a gift by the United States of the use of this land to the Indians and that no consideration was given on their part.

    While section 3 of the 1891 act which is the usual authority for leases on Indian reservations does not apply to this reservation, there is no other statutory authority for the making of leases on this reservation. As this is not an Executive order reservation it does not come within the act of March 3, 1927 (44 Stat. 1347), authorizing leases of unallotted lands within Executive order reservations, nor does it apparently come within the section 26 of the act of June 30, 1919 (41 Stat. 31), authorizing the Secretary of the Interior to lease for mining purposes the unallotted lands within Indian reservations in various States, including California, which have been withdrawn prior to the act from entry under the mining laws. Unless there can be found a law authorizing this lease, the Department has no authority to enter into or approve such a lease. 18 Op. Atty. Gen. 234 and 486. It has been customary for the Secretary under his general authority over Indian affairs to make revocable permits on tribal lands which could not be leased under the statutes in order to preserve the value of the lands and to obtain a revenue from them rather than allowing them to lie idle. However, this administrative custom has no bearing on a case such as this since mining depletes the property rather than preserving its value.

    I therefore suggest that the Council and the Superintendent be informed that a mining lease cannot be executed until legislative authority has been secured or until the tribe becomes incorporated under section 17 of the reorganization act.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
FIVE CIVILIZED TRIBES--LEASES
January 13, 1937.
Memorandum for the Commissioner of Indian Affairs:

    The answers given in the attached letter dated December 21 to certain questions raised by the Superintendent for the Five Civilized Tribes appear to be erroneous and misleading. The questions arise out of the act of February 11, 1936 (49 Stat. 1135), and as framed by the Superintendent are:

    "A. Do farming and grazing leases require approval by this office

(1) Where the allottee died prior to Jan. 27, 1933?

(2) Where any heir is less than half blood and the other heirs are one-half blood or more?

(3) Where the land is not tax exempt?

    "B. Do farming and grazing leases by full-blood
 


 

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DEPARTMENT OF THE INTERIOR

JANUARY 13, 1937

adult heirs require approval by the County Court or by this office?"

    The Act of February 11, 1938, supra, reads:

    "That from and after thirty days from the date of approval of this Act the restricted lands belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, may be leased for periods of not to exceed five years for farming and grazing purposes, under such rules and regulations as the Secretary of the Interior may prescribe and not otherwise. Such leases shall be made by the owner or owners of such lands, if adults, subject to approval by the superintendent or other official in charge of the Five Civilized Tribes Agency, and by such superintendent or other official in charge of said agency in cases of minors and of Indians who are non compos mentis."
    It will be observed that the foregoing act applies to restricted lands belonging to Indians of the Five Civilized Tribes of one half or more Indian blood. Ownership by an Indian of one half or more Indian blood is not sufficient to bring the case within the statute. The lands must also be restricted. Save for the requirement that the Superintendent must approve all leases of restricted lands belonging to Indians of the degree of blood mentioned, the act makes no change in the prior laws dealing with the restrictions on lands of Indians of the Five Civilized Tribes and we must look to those laws for the purpose of ascertaining whether the lands in any particular are or are not restricted.

    The act of January 27, 1933 (47 Stat. 777), will be first considered. That act is confined to the restrictions on restricted and tax exempt lands inherited by restricted Indians: that is, Indians of one half or more Indian blood. That act has no application to lands or interests therein inherited prior to the date of the enactment. Solicitor's Opinion of March 14, 1934 (54 I.D. 382). It is further without application unless (a) the lands are both restricted and tax exempt, and (b) the entire interest is inherited by Indians of one half or more Indian blood. Questions A (1), (2) and (3) all deal with cases to which the act of January 27, 1933, has no application and the question of whether the inherited interests be determined by the laws in force prior to January 27, 1933. Under section 9 of the act of May 27, 1908 (35 Stat. 312), as amended April 12, 1926 (45 Stat. 495), the death of an allottee of the Five Civilized Tribes removed all restrictions against alienation except where the heirs are of the full blood and as to such full blood heirs the reservations are not removed but relaxed to the extent of sanctioning conveyances made with the approval of the proper county court. As the county court in approving such conveyances acts as a Federal agency, the inherited interest of the full blood heir remained restricted. Parker v. Richard (250 U.S. 235.) Accordingly, questions A (1), (2) and (3) may be answered by stating that where the heir is a full blood, a lease of his inherited interest under the act of February 11, 1936, requires the approval of the Superintendent. Interests inherited by heirs of less than the full blood are unrestricted and may be leased without approval.

    Answering question B it may be said that lands inherited by a full blood heir prior to January 27, 1933, or in any case to which the act of January 27, 1933, has no application, are restricted in the sense that a Federal agent, the county court, must approve the conveyance. If the entire interest in a tract of restricted and tax exempt land is inherited by an Indian or Indians of one half or more Indian blood after January 27, 1933, the existing restrictions are preserved by the act of that date. Solicitor's Opinion oE March 14, 1934, supra. It is immaterial whether the approving agency is the county court or the Secretary of the Interior, as in either case the inherited interest is restricted and a farming and grazing lease thereon to be valid must, under the act of February 11, 1936, supra, receive the approval of the Superintendent.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
OKLAHOMA--TAXES--LAND
January 16, 1937.
Memorandum to the Office of Indian Affairs:

    I am returning to you herewith for correction your letter of December 22, 1936, relating to the taxation in Oklahoma of restricted Indian lands.

    Your conclusion that by virtue of the Act of June 20, 1936 (49 Stat. 1542), these restricted Indian lands will not be subject to the 1936 taxes is. in my opinion, correct but I believe that the pertinent statutes bearing on this have not been cited. Moreover, the one cited is misleading, it having been amended by a later act (O.S.L., 1933 Chap. 86).

    In my opinion the pertinent statutes to be cited
 


 

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OPINIONS OF THE SOLICITOR

JANUARY 23, 1937

are section 12613, Oklahoma Statute, 1931, Ann. Supp. 1936 (O.S.L. 1933, Chap. 115, Sec. 5), providing for the preparation of the assessment roll in April of each year, and section 12615, Oklahoma Statute, 1931. Ann. Supp. 1936 (O.S.L. 1933, Chap. 115, Sec. 12), providing for the levy for such taxes between the first Monday in July and the first day of October of each year. Pursuant to these statutes, the levy for 1936 taxes was not completed until after the effective date of the act of June 20, 1936 (49 Stat. 1542), and in accordance with the rule laid down in the case of United States v. Pierce County, et al., 193 Fed. 529 cited in your letter cannot then be completed as to the land in question by reason of the non taxable character of land.

    I suggest that the letter submitted be redrafted incorporating the statutes herein cited. It may also be advisable to call attention to the fact that the state court in the case of Board of Commissioners v. Central Baptist Church, 276 Pac. 726 at 728 has suggested that a different and more liberal rule of construction as to tax exemptions may govern where the property in question is a Federal instrumentality than in the case where the tax exemption is being asserted by a religious or charitable institution.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

IRA-ATTORNEYS' CONTRACT


January 23, 1937.


 Memorandum for the Commissioner of Indian Affairs:

    There is returned for further consideration a proposed letter to Messrs. Hougen and Holten, attorneys, with reference to a proposed contract for legal services to be rendered the Minnesota Chippewa Tribe.

    The Minnesota Chippewa Tribe has organized and adopted a constitution and bylaws pursuant to section 16 of the Indian Reorganization Act of June 18, 1934 (49 Stat. 984). That section declares, among other things, that such an organized tribe shall have the power "to employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior." Your proposed letter raises the question of whether the provision in section 16 just quoted supersedes as to contracts which section 81, title 25, U.S.C., otherwise would be applicable, the specific requirements set forth in said section 81. Section 81 is confined to a certain class of contracts; that is, contracts for services relating to Indian lands, or to any claims growing out of or in reference to annuities, installments or other moneys, claims, demands or thing under the laws or treaties with the United States, or official acts of any official thereof, or in any way connected with or due from the United States. Contracts not calling for the performance of legal services connected with any of the matters or things mentioned in section 81 obviously are controlled by section 16 of the Reorganization Act and may be entered into without regard to the requirements of section 81.

    The Minnesota Chippewa contract provides for the performance of legal services in relation to claims of the tribes against the United States Government. This is the sort of contract to which section 81 applies and the requirements of that section should be observed unless they are superseded by section 16 of the Reorganization Act. To the extent of any conflict or inconsistency, it is clear that section 16 is controlling and supersedes the prior law. Requirements of the prior law not directly inconsistent or conflicting may also be superseded as to the particular kind of contract to which section 16 applies if such was the intent of Congress. A consideration of the general background and purpose of the Indian Reorganization Act leaves no doubt that the purpose of the statutory provision in question was to increase the scope of responsibility and discretion afforded the tribe in its dealings with attorneys. Earlier drafts of legislation contained provisions limiting the fees that might be charged. After considerable discussion before the Senate Committee (Hearings before the Committee on Indian Affairs, United States Senate, 73rd Congress, 2d session, S. 2755 and S. 3645, part 2, pages 244-247), it was decided that the Secretary of the Interior should have the added power to approve or veto the choice of counsel. This discussion would have been futile and the statutory provision would have been meaningless if the intention had been to make those contracts subject to the provisions of section 81, title 25 of the Code.

    I am inclined to the view that in so far as contracts for the employment of legal counsel are concerned, Congress intended to empower the organized tribe to make such contracts, subject only to the limitations imposed by section 16 of the Reorganization Act. The matter is by no means free from difficulty, however, and it may be that the courts when called upon to consider the question, will hold that the two statutes should be treated as one and that the requirements of both in the absence of conflict or inconsistency must be observed. In this situation it is appreciated that at-
 


 

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DEPARTMENT OF THE INTERIOR

JANUARY 23, 1937

torneys may desire for their own protection to have the contract executed in conformity with the requirements of both statutes. Such appears to be the position of the attorneys seeking employment by the Minnesota Chippewa Tribe. Such a position is not unreasonable and I recommend that no objection be raised to approval of this or any other contract so executed.

    The proposed letter to Messrs. Hougen and Holten needs a revision in another respect. The reference to a question submitted to the comptroller general should be changed. A decision on this question has been received from the comptroller general. Under that decision tribal funds in the United States Treasury cannot be used for payment of the compensation and expenses of the attorneys under the proposed contract until a specific appropriation of the funds for that purpose has been made. This should be brought to the attention of the attorneys.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

IRA-ATTORNEYS' CONTRASTS


January 26, 1937.


 Memorandum for the Commissioner of Indian Affairs:

    The attached letter and file, relative to proposed amendments to the jurisdictional act of August 30, 1935, are returned herewith for further consideration.

    The language of the proposed amendment at page 3 provides that no attorneys may represent the Indian tribes involved in this litigation unless contracts with them have been "negotiated and approved as provided by existing law", and further provides that such contracts must be approved by both the Commissioner of Indian Affairs and the Secretary of the Interior.

    As noted in my memorandum of January 23 relative to the proposed contract between the Minnesota Chippewa Tribe and Messrs. Hougen and Holten, I believe that this construction of existing law is erroneous.

    Of the Indians affected by the proposed litigation, at least two bands, i.e., Bad River and Lac du Flambeau, are organized under constitutions which guarantee these tribes the right to employ attorneys provided only the choice of attorneys and the fixing of fees must be approved by the Secretary of the Interior.

    I recognize that the act of August 30, 1935, contained the language here criticized. Since that act, however, the two bands above noted have adopted constitutions which have been approved by the Department. These constitutions specifically grant the power to employ attorneys, subject to the two limitations above noted. I believe, therefore, that any further legislation in this field should recognize the rights thus granted. I suggest therefore that the language of section 3 of the proposed bill down to the first proviso be changed to read as follows:

    "Sec. 3. Upon final determination of such suit, cause, or action, the Court of Claims shall decree such fee and necessary expenses as it shall find reasonable and proper to be paid to the attorney or attorneys employed therein by said tribe or bands of Indians under contracts executed and approved as hereinafter provided, and in no case shall the fee decreed by said Court of Claims be in excess of the amounts stipulated in said contracts. Such contract on behalf of any tribe or band which has organized and adopted a constitution and by laws pursuant to section 16 of the act of June 18, 1934 (48 Stat. 964), shall be executed and approved in conformity with the provisions of the constitution and bylaws of the tribe or band. Contracts on behalf of any unorganized tribe or band shall be executed in conformity with the requirements of section 81, title 25, United States Code. No attorney shall have the right to represent the said Indians or any band thereof in any suit, cause, or action under the provisions of this act until he has been employed under a contract executed and approved as provided herein".
                                                                                                                                            NATHAN R. MARGOLD,
Solicitor.

DECEASED OSAGE ALLOTTEE
INHERITANCE

M-27963                                                                                                                             January 26, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether the interest inherited by John Holloway, an Osage Indian, in lands allotted to Sin-tsa-wah-kon-tah, full blood Osage allottee No. 229, descended to him free from restrictions against alienation, or
 


 

719

OPINIONS OF THE SOLICITOR

JANUARY 26, 1937

whether such interest came to him subject to restrictions against alienation.

    Sin-tsa-wah-kon-tah died February 21, 1909 leaving as his sole heirs at law, his father, Perry King, full blood Osage allottee No. 297, and his mother, E-ne-ke-op-pe, full blood Osage allottee No. 298, each entitled to one half of his estate, Perry King died intestate March 5, 1925, leaving among other heirs, a daughter, Agnes King, who inherited an undivided 1/12 interest in the lands allotted to Sin-tsa-wah-kon-tah. Agnes King died July 9, 1932, leaving surviving as one of her heirs, her husband, John Holloway, who inherited an undivided 1/48 interest in the lands allotted to Sin-tsa-wah-kon-tah.

    April 14, 1934, John Holloway executed a deed by which he attempted to convey to one Orie Johnson, a white person, his undivided interest in the lands allotted to Sin-tsa-wah-kon-tah. An action for partition of the lands was then brought by Mr. Johnson in the District Court of Osage County, Oklahoma. That court found, among other things, that the interest inherited by John Holloway was unrestricted and that by virtue of the deed of April 14, 1934, Mr. Johnson had lawfully succeeded to that interest. See Journal Entry of Judgment dated July 2, 1934. Final decree in partition was handed down November 1, 1934, and partition deed have been presented to the Secretary of the Interior for approval as required by the act of April 18, 1912 (37 Stat. 86). If the interest inherited by John Holloway came to him free from restrictions, the deed of April 14, 1934, is valid, and the partition deeds may be approved; otherwise not.

    The restrictions against alienation imposed on lands of members of the Osage tribe of Indians and their heirs are found in the Osage Allotment Act of June 28, 1906 (34 Stat. 539), and acts amendatory thereof. A general discussion of the provisions of those acts and the decisions applicable thereto is therefore essential to a determination of the question of whether the interest inherited by John Holloway in the lands allotted to Sin-tsa-wah-kon-tah is restricted or unrestricted.

    The act of 1906 directs the preparation of a final roll of the Osage tribe and that the lands and funds belonging to these Indians be divided equally among the enrolled members. All children born after July 1, 1907, were excluded from enrollment. Each enrolled Indian received in allotment 166 acres designated as homestead and some 500 acres designated as surplus. The homestead was declared to be inalienable until otherwise provided by Congress and the surplus lands were made in alienable for a period of 25 years, (subsection 4 of section 2). These restrictions could be removed in their entirety as to the surplus lands and modified as to the homestead lands, in the discretion of the Secretary of the Interior, by the issuance of certificates of competency, (subsection 7 of section 2)

    Subsequent legislation found in section 3 of the Act of March 3, 1921 (41 Stat. 1249) removed all restrictions against alienation of the "allotment selections, both surplus and homestead" of adult Osage Indians of less than one half blood. The removal of restrictions so provided for is confined to allotment selections. It is limited to that particular object and is not an attempt to remove restrictions of every kind or nature. Osage County Motor Company v. United States (33 F. 2d 21, 22). Inherited lands, which obviously are not the allotment selections of the heirs are not affected by said section.

    With respect to inherited lands, the act of 1906 contained no provisions which in terms preserved or removed the restrictions upon the death of a deceased allottee, but the courts have ruled that where the heirs were of Indian blood, the restrictions ran with the land and bound the heirs to the same extent as the allottee (United States v. Aaron, 183 Fed. 247; affirmed Aaron v. United States, 204 Fed. 943; Kenny v. Miles, 250 U.S. 58). This ruling was modified somewhat by section 60 of the act of April 18, 1912 (37 Stat. 86), which authorized the partition of restricted lands of deceased allottees, subject to the approval of the Secretary of the Interior, with the declaration that "When the heirs of such deceased allottees have certificates of competency or are not members of the tribe, the restrictions on alienation are hereby removed." Further changes in the restrictions applicable to inherited lands were made by section 3 of the act of February 27, 1925 (43 Stat. 1008), which reads:

"Lands devised to members of the Osage Tribe of one-half or more Indian blood or who do not have certificates of competency, under wills approved by the Secretary of the Interior, and lands inherited by such Indians, shall be in alienable unless such lands be conveyed with the approval of the Secretary of the Interior. * * *"
    The foregoing provision, it will be observed, continues the restrictions against alienation of lands inherited by or devised to the two classes of members of the Osage Tribe. The first class includes heirs or devisees of one-half or more Indian blood and where such an heir possesses the required degree of Indian blood, it is immaterial whether he has a certificate of competency. The second class embraces heirs or devisees who do not have certificates of competency, and in this class the de-
 


 

720

DEPARTMENT OF THE INTERIOR

JANUARY 26, 1937

gree of blood of the heir or devisee is immaterial.

    Section 1 of the act of March 2, 1929 (45 Stat. 1478) extends the restrictions on lands of members of the Osage Tribe and their heirs until January 1, 1959. Section 5 declares:

"The restrictions concerning lands and funds of allotted Osage Indians, as provided in this Act and all prior acts now in force, shall apply to unallotted Osage Indians born since July 1, 1907, or after the passage of this Act, and to their heirs of Osage Indian blood, * * *".
    Section 5 above needs some explanation. As hereinbefore pointed out, children born after July 1, 1907, were excluded from enrollment and allotment under the Allotment Act of 1906. As time passed, enrolled members died and their lands frequently passed to these unallotted children, whose names did not, of course, appear on the final membership roll. The question of whether these unallotted Indians were bound by the restrictions applicable to allotted Indians was the subject of controversy over a period of years. June 4, 1921, the Solicitor for the Department, ruled that such unallotted Indians were not members of the Tribe and that they were not entitled to the benefit of the restrictions imposed for the protection of allotted members. January 4, 1922, and again on September 30, 1922, the then Solicitor reached a different conclusion and ruled that unallotted Osage Indians were entitled to the same protection under the law as those whose names appear on the final rolls. Section 5 above obviously was enacted to remove any doubt as to the status of these unallotted Indians by extending to them the restrictions imposed of competency. The restrictions imposed upon inherited lands by sec. 3, of the act of February 27, 1925, supra, are made applicable to Indians such as they by the act of March 2, 1929, supra. Had they inherited their interests in the lands of Sin-tsa-wah-kon-tah after the enactment of 1929, it is clear that such interests would have been restricted in their hands and that no valid conveyance thereof could be made without the approval of the Secretary of the Interior. Agnes King, however, inherited her interest in the lands prior to enactment of the act of 1929, and under the law then in force such interest passed to her free from restrictions (section 6 of the act of April 18, 1912, supra; United States v. La Motte, supra). She died after the enactment of the act of 1929 without having conveyed her interest, and the question therefore arises whether that act reimposed the restrictions.

    The act of March 2, 1929, supra, extends the restrictions to all unallotted Indians born since July 1, 1907, or after the date of that enactment. This language shows a clear intent on the part of Congress to extend to all such Indians born within the period mentioned the benefit of the protective restrictions. It recognizes that the restrictions were not theretofore in force and makes them effective from and after the date of the act. None of these Indians having received allotments in their own right, the restrictions so extended to them are those imposed upon inherited lands by section 3 of the act of 1925, supra, which section prohibits the alienation of such lands without the approval of the Secretary of the Interior, these restrictions are not unlike those, the scope of which was considered by the Supreme Court of the United States in Bruder v. James (246 U.S. 88). There Congress, by an act passed in 1906, authorized adult heirs of deceased members of the Five Civilized Tribes to convey lands inherited by them subject to the condition that all such conveyances by full blood heirs should be approved by the Secretary of the Interior. A full blood heir had inherited land prior to 1906 free from restrictions. The court ruled that the act of 1906 reimposed the restrictions and upheld the constitutionality of the legislation. The court said, and its remarks apply with equal force here:

"The argument that the language in the last sentence of section 22 (this sentence required approval by the Secretary of the Interior of conveyances by full blood heirs) must be taken to mean that Congress had no intention to deal with restrictions under former acts, certainly not with those which had expired, is answered by the consideration that Congress was dealing with the Tribal Indians, still under its control and subject to national guardianship. In the terms of this act Congress made no exception as to rights of alienation which had arisen under former legislation, and it undertook as we held in the Tiger Case, to pass a new and comprehensive act declaring conveyances, of the class herein under consideration, to be valid only when approved by the Secretary of the Interior."
    In United States v. Howard (8 Fed. Supp. 617), the United States Court for the Northern District of Oklahoma held that section 3 of the act of February 27, 1925, reimposed restrictions on lands that had theretofore become unrestricted. Said section 3 as extended to unallotted Osage Indians by the Act of March 2, 1929, supra, must, of course, be given like effect. Nothing in the decision of the Tenth Circuit Court of Appeals in United States v. La Motte, supra, is to the contrary. The convey-
 


 

721

OPINIONS OF THE SOLICITOR

FEBRUARY 3, 1937

ance there held valid was made prior to March 2, 1929, and before the restrictions extended by the act of that date became effective. Of the act of March 2, 1929; the court said:

"* * * The Act approved March 2, 1929 (45 Stat. 1478) imposed restrictions upon heirs not members of the tribe, but it became effective long after the transactions involved here took place. Its only effect therefore is to constitute a legislative interpretation that such restrictions did not exist theretofore."
    From the foregoing statement it may reasonably be implied that had the conveyance before the court been made after March 2, 1929, its validity would not have been upheld.

    It is my opinion, therefore, that the act of March 2, 1929, supra, reimposed the restrictions theretofore removed from the interest inherited by Agnes King in the lands allotted to Sin-tsa-wah-kon-tah and that from and after the date of that enactment she was without power to alienate such interest without the approval of the Secretary of the Interior. Upon her death in 1932, the undivided 1/48 interest here in question passed to John Holloway burdened with like restrictions he being an Osage Indian of 1/l6 blood without a certificate of competency. It follows that the deed of April 14, 1934, by which Mr. Holloway attempted to convey his interest in these lands, which deed has not been approved by the Secretary of the Interior, is void.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


 Approved: January 26, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

IRA--EXCHANGE OF LAND

February 3, 1937.
Memorandum for the Commissioner of Indian Affairs:

    The attached letter relating to proposed transfers of land under the Winnebago jurisdiction is returned herewith for further consideration.

    The letter purports to authorize a transfer of land between Indians in satisfaction of a debt owed by the transfer or to the transferee. No facts are stated showing whether the Indian receiving the land is in need of land or whether the Indian transferring the land has more land than he can use. Section 5 of the act of June 18, 1934, is invoked as authority for the transaction.

    The present record does not show that the proposed transaction is within the scope or purpose of the section cited. That section authorizes a land acquisition program for the benefit of Indians. It specifies various methods by which the Secretary of the Interior may acquire land for Indian tribes and individuals. The stated purpose of the section is to provide land for Indians, and there should be a showing that the Indian or tribe for whom the land is being acquired is in need of same. Investments or purely commercial transactions are not permitted. Land Circular No. 3162, prepared in your Office and approved by the Assistant Secretary on June 30, 1936, provides as follows:

"* * * transfers between Indians will be permitted only in unusual cases. If an Indian is leaving the reservation with no likelihood of ever returning, or is now permanently located away from the reservation, so that his land will never be of any use to him personally, it would, undoubtedly, be well to permit him to sell or give the land to the tribe to be assigned to a designated person or directly to such designated person who will reside on the reservation and make use of it. A sale or gift might also be justified where an Indian has more land than he can possibly use."
    Bearing in mind the inhibitions of section 4, the foregoing quotation, although perhaps not as detailed and comprehensive a statement as might be made, is in accord with what I conceive to be the purpose of section 5.

    The proposed letter does not bring the facts of the instant case within any of the special categories above noted. It does not indicate that the transaction proposed will in any way improve the land status of Indians. I therefore recommend that the letter be revised to indicate that transfers between Indians may be made only in the special circumstances above noted, and in line with the general policy of the administration restricting the alienation of Indian lands.

    Various memoranda in the attached file indicate some confusion on the question of what exchanges of land are permitted under sections 4 and 5 of the act of June 18, 1934. Permit me therefore to offer the following summary statements as a guide in the disposition of future cases:

    Section 4, as I read it, authorizes exchanges of land of equal value. The parties to the exchange may be two individual Indians, an Indian and a white man, an Indian and an Indian tribe, or a white man and an Indian tribe. The requirement
 


 

722

DEPARTMENT OF THE INTERIOR

FEBRUARY 3, 1937

of equality of value is substantially complied with if the difference is so small that both parties are ready to disregard it. It is arguable that an exchange transaction involving a small cash payment to boot falls within the scope of section 4. I would suggest that 5 percent of the value of the land might be regarded as a safe margin within which the maxim, de minimis non curat lex, may operate. Where tracts of land are substantially unequal in value, an exchange transaction under section 4 is not authorized. However, where two parties wish to exchange tracts of land and are willing to put improvements on the less valuable tract to make it equal in value to the other tract, no objection can be raised to an exchange. The validity of this proposition is not affected by the question of which party makes the improvements, or whether the improved land goes to an Indian or a white man. In this situation no Indian loses any land, in point of value. The transaction is therefore consistent with the whole purpose of the Reorganization Act. In these cases the report from the field should show that the lands are of equal value and that the exchange is at least compatible with the proper consolidation of Indian lands.

    Section 5 of the act, in my opinion, so far as it authorizes land exchanges has an entirely different purpose from section 4. Under section 5 the two tracts of land may be either equal or unequal in value, but if they are unequal in value it must be the Indians rather than the whites involved in the transaction who emerge from the transaction with an increased land value. Thus, an Indian may not convey $2000 worth of land to a white man where the white man transfers to the Secretary for the Indian's use a tract of land worth only $500 and a cash payment to boot of $1500. On the other hand, an Indian may transfer the lesser tract to a white man and make an additional payment of $1500 in exchange for a transfer of the more valuable tract to the Secretary for the benefit of the Indian. The difference between the two cases is not technical or abstruse. In the one case the Indian is selling land; in the other case land is being bought for the Indian's benefit, The former is forbidden and the latter is authorized by the terms of the act. This distinction, based on the major purpose of the act, should eliminate some of the confusions that appear in certain memoranda on this subject in the attached file.

    Where exchanges under section 5 affect only Indians it seems to me that the same principles should be applied. Ordinary commercial transactions in land between Indians are not within the purpose of section 5. It seems to me that a transaction under which an Indian surrenders land does not come within the true purpose of section 5 unless some special circumstances such as are mentioned in the land circular referred to above (page 1 of this memorandum) are shown. I would suggest, therefore, that any recommendation for approval of a sale or surrender of Indian land under section 5 should be based upon a finding supported by facts that the result of the transaction will be to bring more land into effective Indian use.

    Familiar cases in which such exchanges may advantageously be made are cases involving the exchange of inherited interests, and cases involving the transfer of a more valuable tract of land by a nonresident Indian in exchange for a less valuable tract and a money payment by a resident Indian able to use the newly acquired land.

    Without attempting to analyze every possible transaction, I believe that such cases as the attached will be dealt with more expeditiously in the future if it is borne in mind that section 5 contemplates a land acquisition program looking to general improvement in the land status of the Indians and that section 4 contemplates private transactions which do not interfere with that program.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

FIVE CIVILIZED TRIBES--TRUST
AGREEMENT


February 5, 1937.


 Memorandum for the Assistant Secretary:

    Transmitted herewith are various papers relating to a trust estate proposed to be created out of the restricted property of Hanna Anderson Daniels, an Indian of the Five Civilized Tribes in Oklahoma, with the Commerce Trust Company of Kansas City, Missouri, as trustee. Authority for the creation of such trusts is found in the act of January 27, 1933 (47 Stat. 777).

    The trust estate will consist of a mineral estate in certain described lands and cash and securities in the amount of some $470,000. A trust agreement and form of mineral grant have been furnished. These papers have been submitted to me by Assistant Commissioner Zimmerman with the recommendation that they be approved as to form, if found satisfactory. Certain provisions contained in these forms are objectionable from a legal viewpoint. Other provisions present questions of policy While it is not within my purview to decide these questions of policy they are of such importance from the viewpoint of precedent and otherwise
 


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 5, 1937

that I am constrained to present my view thereon for your consideration and decision.

    The trust agreement, in addition to releasing to a private trustee for administration property and securities worth several hundred thousand dollars, goes still further and provides for the direct payment to Hanna Anderson, grantor, and her husband Mose, of the entire income accruing to them under the trust agreement without any departmental supervision whatsoever. This is a radical departure from the approved departmental forms which, in recognition of the dependency of these restricted Indians require that the income accruing to them under these trust agreements be paid to the Secretary of the Interior or his authorized representative. For this wholesome provision there is substituted in the present agreement, a provision to the effect that if either of these Indians shall ever be "legally and finally adjudged an incompetent person", the income accruing to him or to her under the trust shall be paid to the Secretary of the Interior or his authorized representative. As a protective safeguard this provision appears to be worth little or nothing. Adjudication of incompetency, where the prize is control through a local guardianship of valuable Indian estates, has not been difficult in the past, but where, as would be the case under the proposed agreement, the estate will be returned to the Secretary of the Interior, the inducement for declaring the Indian incompetent is lacking the contingency provided for will not likely arise however much the Indian may have been imposed upon by artful and designing persons. Heretofore the trust device has been used to protect Indian estates against the vicissitudes of probate proceedings in the Oklahoma county courts. In the present case it is being used as a means of freeing Indian property from departmental control. The net effect of the present agreement, if executed and approved, would be to give the grantor an annual income of some $30,000 over which this Department would have no control and with respect to which the Department would be unable to extend to the Indians any protection no matter how great the need. In this situation, needless to say, a substantial portion of the income will not inure to the benefit of the grantor or her husband. Approval of such an instrument would, in my opinion, be a distinct backward step in the management of Indian affairs in Oklahoma. Adherence to the present practice, which I cannot too strongly recommend, will enable the Department to release supervision to the extent of the full income where it appears proper so to do, or to retain supervision or resume supervision as the occasion demands.

    The mineral grant and trust agreement both authorize the trustee to engage in development of the mineral estate and the production of minerals therefrom. Both instruments are silent as to the fund to be charged with the expense of such development and operation. Aside from the fact that it is seriously questionable whether the trustee is legally authorized to engage in such a business, I assume that the expense will be treated as one incurred in the administration of the trust and, accordingly, chargeable against the trust estate. Conservation and protection of Indian assets are the fundamental objects behind the creation of these Indian trusts. The hazards and speculative elements involved in mineral development, particularly the development of oil and gas, are so inconsistent with these objects that the Department should not in my judgment permit such an enterprise to be associated with any trust which it may approve.

    Paragraph 8, page 12 of the trust agreement is worded so as to make the trust estate liable for the costs of the very substantial bond which the trustee is required to furnish. The statute directs the Secretary of the Interior to require a corporate surety bond equal to the value of the trust estate or the deposit of securities of the United States Government equal to such amount. Bearing in mind that the purpose of this requirement is to protect the Indian against mismanagement of the trust estate by the trustee, .it seems to me that it becomes the duty of the trustee to furnish the required security at its own expense and that it would be highly improper to charge such expense against the trust estate. The answer may be made that the trust company cannot afford to furnish this kind of bond unless reimbursed therefor, but I do not think that this constitutes any adequate reason why the beneficiary should stand the cost.

    The following suggestions of a legal nature also occur to me:

    (1) The word "accrued" on page 1 of the mineral grant should be changed to "accruing"; otherwise the grant will transfer the grantor's entire balance to the trustee company in addition to the amount specifically set forth in the trust agreement.

    (2) Provision is made for approval of the mineral grant by the Secretary of the Interior. The form for approval by the county court also refers to the fact that the Secretary of the Interior has approved the grant. As the land involved was inherited by the grantor prior to enactment of the act of January 27, 1933, supra, the grant will be valid when approved by the county court, the Secretary's approval not being essential under section 9 of the act of May 27, 1908 (35 Stat. 312), as amended. The provisions referring to or pro-
 


 

724

DEPARTMENT OF THE INTERIOR

FEBRUARY 5, 1937

viding for departmental approval may therefore be omitted.

    (3) Paragraph C (2d) , page 8, fails to take into consideration the possibility that Mose Daniels may predecease the grantor. The paragraph should be amended to cover this contingency.

    (4) The provision on page 2 of the trust agreement amounts to a conveyance in trust of the mineral estate whereas there is equally a conveyance in trust under the mineral grant. In other words, under the present set-up there are two instruments conveying the same property to the same person. It seems to me that the artistic and lawyer-like way of accomplishing the desired result would be to convey the property by separate deed, subject to the terms of the trust agreement, and then to provide in the trust agreement that this property, when conveyed, shall be subject to the same conditions as the cash and Government bonds, except as otherwise provided. It seems to me that the trust agreement should be changed so as to negative the possibility that it will be construed as a second conveyance.

    (5) Paragraph 11, page 15, dealing with the fees to be collected by the trustee may not be seriously objectionable but I doubt if the provisions of the paragraph are stated with clarity sufficient to avoid misunderstanding in the future. For one thing, it is not clear whether the trustee expects to receive a final distribution fee based upon the mineral rights as a part of the corpus of the trust. In view of the substantial payments otherwise provided for the paragraph may well be reworded to preclude such a payment.
 

Solicitor.


 Approved and referred to the Commissioner of Indian Affairs for appropriate action.
Assistant Secretary.

STATUS OF ST. CROIX CHIPPEWAS

February 8, 1937.
Memorandum to the Commissioner of Indian Affairs:

    The Solicitor's Office has been requested to determine the status of the St. Croix Chippewa Indians in Wisconsin for the purpose of determining their eligibility to organize under the Reorganization Act and of determining the beneficiary to be designated in the Trust Title of various camp site areas being purchased for these Indians from reorganization act funds.

    This group of Indians numbers about 500 and are scattered in at least five counties in Wisconsin, frequently in clusters of 5 to 25 families. They have no reservation and those who have not established homes in white communities live as squatters on land to which they have no ownership rights. These Indians are commonly referred to by the Indian Office and by themselves as the "St. Croix Band of Lake Superior Chippewa Indians."

    The question whether or not these Indians are a separate band of Indians or absentee members of one of the other bands of Lake Superior Chippewa Indians has already been finally decided by the Department and by Congress. The act of August 1, 1914 (38 Stat. 582, 606), directed the Secretary of the Interior to determine the status and tribal rights of these Indians and what benefits they would have received if they had removed to one of the reservations in Wisconsin and to make a roll of the Indians entitled to benefits. Pursuant to this act Mr. Wooster was detailed to make this study. He submitted a report on December 1, 1914, which found that these Indians were absentee members of the Lac Courte Oreille Band and that out of some 800 possible members of this group of Indians only 95 were entitled to be enrolled for the purpose of receiving compensation in lieu of the allotments which they might have obtained. He based his finding of fact upon extensive testimony indicating that the Lac Courte Oreille Indians admitted that the chief of the St. Croix Indians and his followers were members tribe and belonged on the Lac Courte Oreille Reservation. A further indication was that this chief of the St. Croix Indians signed the treaty of September 30, 1854 (10 Stat. 1109), as a Lac Courte Oreille Indian. Mr. Wooster based his legal conclusion that only 95 persons were entitled to enrollment for compensatory benefits on the ruling of the Oakes case (172 Fed. 305), and the Kadrie case (281 U.S. 206), which cases are to the effect that absentee members of a tribe who have severed their tribal relations are still entitled to tribal rights but that their children born away from the tribe are not so entitled. Among the pertinent facts shown in his report are the high degree of intermarriage with white people, and of departure from Indian culture and their scattered condition. A second report was submitted by him on January 13, 1915, in which he submitted a roll of these 95 selected persons which show them to be members of the Lac Courte Oreille and certain other tribes and suggested that these persons be compensated by Congress with the approximate value of an allotment.
 


 

725

OPINIONS OF THE SOLICITOR

FEBRUARY 13, 1937

    These reports were submitted by the Department of the Interior to Congress on December 7, 1914 (H.D. No. 1253 63d Cong., 3d Sess.) and on March 3, 1915 (H.D. No. 1663 63d Cong., 3d Sess.). Copies of these reports are attached for your information. Expressly referring to these reports Congress has passed statutes providing funds for distribution among the enrolled Indians or for land purchases for them for their relief and compensation. See act of February 14, 1920 (41 Stat. 432, 433); and the act of March 3, 1921 (41 Stat. 1246). These acts did not refer to these Indians as a band but designated them as "St. Croix Chippewa Indians" and were designed expressly to benefit those Indians found to be members of the Lac Courte Oreille Band and other tribes.

    In view of the foregoing only one conclusion is possible and that is that the St. Croix Indians cannot now be recognized as a band. Congress has closed the question after a departmental investigation and finding. It is noted that the Interior Department appropriation act for the fiscal year 1937 (act of June 22, 1936, 49 Stat. 1757, 1729), in making available the unexpended balances of appropriations for the St. Croix Indians made under the act of February 14, 1920 above referred to, speaks of the "care of aged and indigent Indians of the band." I do not think the use of the word "band" here is sufficient to reverse the former deliberate finding, especially as the previous appropriations now revived were only for the Indians enrolled by Mr. Wooster.

    Accordingly, benefits under the Indian Reorganization Act must be limited to those Indians who are in fact of one half Indian blood or more. In providing land for these Indians it is not necessary to restrict beneficial rights to those Indians who were placed on the roll by Mr. Wooster, as that roll represents an entirely different class of persons from those who can receive benefits under the Indian Reorganization Act, namely, those Indians of the half blood or more. However, Mr. Wooster's roil may be of assistance in determining the degree of blood as this roll does indicate the quantum of blood of the Indians placed upon it.

    My conclusion is different from that reached in the case of the Mole Lake Indians who are also commonly considered a "lost band" in Wisconsin who received no reservation under the 1854 treaty. However, the St. Croix situation is not similar to that of the Mole Lake Indians as the question of the status of the Mole Lake Indians was never definitely decided by the Department or by Congress and as the facts in the two cases are quite different. The Mole Lake Indians live in one principal Indian community which is looked upon as :heir band home, whereas the St. Croix Indians live in numerous white villages and towns throughout Wisconsin. Moreover, the St. Croix Indians are highly assimilated into the white population, whereas, the Mole Lake Indians are principally full bloods and near full bloods who have kept distinct from the white population. The testimony available in connection with the Mole Lake Indians shows that the other bands recognize them as a separate band, whereas in the case of the St. Croix Indians the Lac Courte Oreille Indians admitted the St. Croix Indians to be members of the Lac Courte Oreille Band. While the St. Croix Indians have inhabited certain areas on the St. Croix River for numerous generations and might have been recognized as a separate band at the time of the 1854 treaty, they now present no characteristics entitling them to recognition as a band, particularly as there exists no form of band organization, as there does in the Mole Lake group. The difference between these two groups is also found in the report of the anthropologist who investigated these Indians in 1936. He states, "The St. Croix are a completely disorganized and deculturated group. The only cohesion they have as a social entity is based solely on the possession of a common language and a common racial type. Even these are disappearing, * * *".

    In view of the conclusion which I reached I suggest that the procedure for extending benefits to these Indians under the Reorganization Act be as follows: the title to the land purchases being made in certain of the larger Indian groupings should be taken for the St. Croix Chippewa Indians of the half blood or more who may be designated by the Secretary of the Interior until such time as they organize under section 16 of the Reorganization Act and then for the benefit of such organization. After the land purchase is completed the Indians who come to reside upon this land would then be entitled to organize as Indians residing on a reservation. No other organization of these Indians is now possible.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
ELIGIBILITY FOR GRAZING PRIVILEGES

56 I.D. 79

M-28869                                                                                                                              February 13, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on certain questions dealing with the eligibility of Indians and
 


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