Home

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.

 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 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
 

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,

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

    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,

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
 

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,

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

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
 

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."

    "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."

"* * * 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: * * *."

    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
 

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,

    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,

    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".
 

    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."

    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,

    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
 

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."

                                                                                                                                            NATHAN R. MARGOLD,

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,

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."

    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
 

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."

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 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
 
 

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.

    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
 

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.

    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, * * *."

    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.
 

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.)

    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
 

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,

    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,

    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
 

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."

    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,

    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?

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."

    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,

    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
 

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,

 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 ma