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FEBRUARY 13, 1937

particularly the Pueblo Indians and the Pueblos themselves to receive grazing privileges within the grazing districts established under the so-called Taylor Grazing Act (Act of June 28, 1934, 1269), as amended by the Act of June 26, (49 Stat. 1976). These questions are posed in the letter to you of December 2, 1936, of the Acting Director of the Division of Grazing and are set forth as follows:

    1. Is an Indian who has severed all tribal relations entitled to the same consideration for grazing privileges as other citizens of the United States possessing the qualifications prescribed by the Taylor Grazing Act?

    2. Is an Indian who maintains tribal connections but who may reside upon an allotment outside of a reservation entitled to receive equal consideration?

    3. Is an Indian maintaining tribal relations and residing within a reservation entitled to grazing privileges within an established grazing district?

    4. If entitled to such privileges in any case, should the matter be taken up with him individually or with the proper official of the Indian Service having jurisdiction?

The Acting Director also requests an opinion on the following two questions raised by the Superintendent of the United Pueblos Indian Agency:

    1. Is an Indian Pueblo otherwise qualified under the Taylor Grazing Act entitled to the benefits of the Act?

    2. Are individual Indians of a particular Pueblo who can meet the requirements of the Taylor Act entitled to its benefits?

    The answer to these questions depends upon the provisions of the Taylor Grazing Act defining the persons to whom the Secretary of the Interior is authorized to grant the privilege of grazing livestock on the grazing districts. These provisions are found in section 3 and, in so far as they are applicable to these questions, read as follows:
    "That the Secretary of the Interior is hereby authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees in each case to be fixed or determined from time to time: Provided, That grazing permits shall be issued only to citizens of the United States or to those who have filed the necessary declarations of intention to become such, as required by the naturalization laws and to groups, associations, or corporations authorized to conduct business under the laws of the State in which the grazing district is located. Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of lands, water or water rights owned, occupied, or leased by them. * * *"
    Under these provisions in order to be qualified to apply for grazing privileges the applicant must be a stock owner entitled to participate in the use of the range under the Rules and Regulations of the Secretary of the Interior and must be either a citizen or prospective citizen of the United States or a "group, association, or corporation authorized to conduct business under the laws of the State." The Rules and Regulations of the Secretary of the Interior, approved March 12, 1936, and amended January 28, 1937, for the issuance of privileges under this act, provide that an application for a grazing license is qualified if he owns livestock and is either (1) a citizen or prospective citizen of the United States, or (2) a "group, association, or corporation authorized to conduct business under the laws of the State in which the grazing district is located."

    However, both the act and the regulations make a distinction between persons who are qualified applicants and persons who are entitled to preference in the issuance of grazing privileges. This distinction is based upon the fact that the grazing districts are inadequate to provide forage for the stock of all applicants. The act provides that preference shall be given to those "within or near a district" who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights. The amended Regulations recite these preferred classifications and provide definitions to assist in their application. The most relevant to the question at hand is the definition of bona fide occupancy as actual and exclusive occupancy during the grazing period under a possessory right. When the range is insufficient for all in the preferred class, those who have dependent commensurate property which had been used for a specified period in connection with the public range will receive first consideration in the granting of privileges. "Dependent commensurate property" is defined in the Regulations to be such property as is dependent on the
 


 

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public range to maintain its proper use and sufficient to provide proper protection, according to local custom, for the number of livestock during the period for which the public range is inadequate.

    As the first three questions presented by the Division of Grazing and the second question raised by the United Pueblos Indian Agency all deal with the right of individual Indians to participate in grazing privileges, I am answering these four questions together. In my opinion all four questions should be answered in the affirmative. Under section 3 of the act and the Regulations of the Secretary all Indians who are livestock owners and who are citizens of the United States are qualified applicants for grazing privileges. Since the passage of the act of June 2, 1924 (43 Stat. 253), all Indians born within the United States are citizens of the United States. Such Indians are citizens whether or not they have severed their tribal relations and whether or not they are residing within or without an Indian reservation. It has been repeatedly determined in the courts that citizenship is not incompatible with Federal wardship or the maintenance of tribal relations. Williams v. Johnson, 239 U.S. 414; United States v. Ramsey, 271 U.S. 461. From the way in which the questions submitted by the Division of Grazing are framed it appears that the hesitancy of the local officers of the grazing districts to grant privileges to Indians may have been based upon an assumption that Indians maintaining tribal relations or having allotments within a reservation were not citizens of the United States.

    The possession of an allotment by an Indian would be significant only in showing him a landowner or occupant and entitled to preference. However, it is not necessary that an Indian own an allotment in order to be entitled to preference. An Indian who owns any interest in land, such as an inherited interest or an occupancy right in tribal land, giving him the right of possession, or has ownership of water rights under proper authority would undoubtedly, under the regulations, come within the definition of a qualified applicant entitled to preference. The location of the allotment or other land interest of an Indian within or without an Indian reservation is material only in connection with his opportunity to obtain first consideration under the Regulations in the issuance of grazing licenses to preferred applicants. For example, if an Indian is a stock owner and has an allotment within or near a grazing district and such allotment is dependent commensurate property which had been used in connection with the public domain for grazing purposes for the required time, such Indian would be entitled to first consideration.

    From the information submitted in the letter, dated October 26, 1936, of the Superintendent of the United Pueblos Indian Agency to the Commissioner of Indian Affairs, it appears that the Indians of the Santa Ana Pueblo have used for grazing purposes from time immemorial the public domain between the Old Santa Ana Pueblo Grant and the Ranchitos Grant now part of a grazing district. It would appear therefore from these facts that these Santa Ana Indians are not only qualified preferred applicants for grazing privileges but would probably be entitled to first consideration in the obtaining of licenses under the Regulations as they are evidently stock owners, citizens, and occupants of land which is dependent on the public domain and has been used in that connection for the requisite time. The same possibility of obtaining licenses would apply to Indians of other pueblos or reservations who have been accustomed over a long number of years to use the public domain adjacent to their reservation for grazing purposes. Besides the Indians of the Santa Ana Pueblo, I am informed by the Indian Office, that this custom is common with the Indians of the Navajo, Consolidated Ute and Uncompaghre Reservations. The use by the Indians residing on reservations of the adjacent public domain for grazing purposes is entirely legitimate. There are no statutes or regulations prohibiting it and the practice is as permissible as the usage of adjacent public domain for grazing purposes by other landholders.

    My answer to these four questions is based upon a reading of the plain language of section 3 of the act and of the departmental regulations. Since the act and the regulations make all individuals who are stock owners and citizens qualified applicants, it is obvious that there is intended no discrimination because of race or status of guardianship or other purely personal conditions. There is no indication whatsoever in the legislative history of the act or in the hearings before the Senate and House Committees on Public Lands that any discrimination on such grounds was intended.

    In reply to the fourth question of the Division of Grazing as to whether the matter of grazing privileges should be taken up with the Indian individually or with the proper official of the Indian Service, it should be pointed out that an Indian, although a tribal member and a ward of the Government, is capable of making contracts and that these contracts require supervision only in so far as they may deal with the disposition of property held in trust by the United States. In re Stringer's Estate, 61 Mont. 173, 201 Pac. 693. An
 


 

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Indian would, therefore, be capable of applying for such privileges and entering into the necessary contractual obligations without the intervention of the agency officials. However, as a matter of practical administration it may be found advisable to consult the agency officials, especially if a large number of Indians desire grazing privileges, and to negotiate their grant through the agency.

    The final question relates to the eligibility of a Pueblo as such to receive grazing privileges. Under the above-quoted section 3 of the act and the Regulations of the Department, a Pueblo would be a qualified applicant for a permit if it itself was a stock owner, since a Pueblo falls within the second requisite for being a qualified applicant, namely, "a group, association, or corporation authorized to conduct business under the laws of the State." A Pueblo is a corporation under the laws of New Mexico and as a corporation of New Mexico is authorized to carry on its business and affairs in accordance with State law. The fact that a Pueblo is a corporation under the laws of New Mexico has received most decisive statement in the Supreme Court in the cases of Lane v. The Pueblo of Santa Rosa, 249 U.S. 110; United States v. Candelaria, 271 U.S. 432; and Pueblo of Santa Rosa v. Lane, 49 App. D.C. 411. The law of New Mexico on this subject appears in section 2784 of the 1915 compilation of Statutes of New Mexico, and reads as follows:

    "The inhabitants within the State of New Mexico, known by the name of the Pueblo Indians, and living in towns or villages built on lands granted to such Indians by the laws of Spain and Mexico, and conceding to such inhabitants certain lands and privileges, to be used for the common benefit, are severally hereby created and constituted bodies politic and corporate, and shall be known in the law by the name of the Pueblo de ------- (naming it), and by that name they and their successors shall have perpetual succession, sue and be sued, plead and be impleaded, bring and defend in any court of law or equity, all such actions, pleas and matters whatsoever, proper to recover, protect, reclaim, demand or assert the right of such inhabitants, or any individual thereof, to any lands, tenements or hereditaments, possessed, occupied or claimed contrary to law, by any person whatsoever, and to bring and defend all such actions, and to resist any encroachment, claim or trespass made upon such lands, tenements or hereditaments, belonging to said inhabitants, or to any individual."
While the chief functions of the Pueblo are the carrying on of its own government and internal affairs, it pursues many business activities with nonmembers of the Pueblo. It may purchase, sell, rent and otherwise dispose of real and personal property and privileges, except that the land of the Pueblo and property held in trust by the United States could not be sold without the consent of the United States. Cf. Pueblo of Santa Rosa v. Fall, 273 U.S. 315; United States v. Candelaria, 271 U.S. 432. The fact that some of the transactions between the Pueblo and nonmembers of the Pueblo are under the laws and supervision of the Federal Government does not negative the fact that other transactions not covered by such laws or supervision, would be carried on in accordance with State law. Therefore, I am of the opinion that the first question submitted by the Superintendent of the United Pueblos Indian Agency should be answered in the affirmative.

    In summary, it is my opinion that Indians who are stock owners and citizens are qualified applicants to receive grazing privileges and that an Indian Pueblo which is itself a stock owner in its community or corporate capacity is likewise a qualified applicant for grazing privileges. The actual obtaining of such privileges is, however, dependent upon whether the Indian applicants fulfill the requirements in the Regulations for obtaining the necessary preference. But the determination of such preference depends on the finding of certain prescribed facts and should not be affected by the status of the applicants as Indians or residents of a reservation or Indian corporations.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
Approved: February 13, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

SOIL CONSERVATION ACT

February 17, 1937.
Memorandum for the Administrator:

DEAR MR. TOLLEY:

    This is in response to the memorandum of January 12, 1937, from Mr. George E. Farrell, Director, Western Division, to me, requesting an opinion with reference to the eligibility of Indian lands, under the range and crop provisions of the 1937 Agricultural Conservation Program formulated pursuant to Section 8 of the Soil Conservation
 


 

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and Domestic Allotment Act, for participation in that program.

    Indian lands devoted to the growing of crops involve different types and incidents of operation from Indian lands devoted to the grazing of livestock, and separate consideration will be given to the range and crop provisions of the program. Likewise, separate consideration will be given to the three types of Indian lands classified according to ownership, which are: (1) lands owned in fee by individual Indians without restrictions; (2) tribal lands; and (3) allotted lands. There is a negligible quantity of lands owned by the United States and reserved for use in Indian administration which are sometimes called Indian lands, but neither individual Indians nor Indian tribes have any legal or equitable ownership in such lands; hence, they really are not Indian lands and need not be considered herein.

    I. Crop Provisions of the 1937 Agricultural Conservation Program.

    In Western Region Bulletin No. 101 for each State in the Western Region, an "owner" is defined to be "a person who owns land which is not rented to another for cash, for a fixed commodity payment, or for the crop from a fixed acreage; or who rent a land from another for cash, for a fixed commodity payment, or for the crop from a fixed acreage; or who is purchasing land on the installments for cash, for a fixed commodity payment, or for the crop from a fixed acreage, or for a share of the crop".

    1. Lands owned in fee by individual Indians without restrictions are subject to taxation and sale and are in every sense private property. Accordingly, such lands are eligible to participate in the program to the same extent as any other privately owned lands.

    2. Tribal lands are the undivided community-owned lands of the Indian tribe, the government of which is usually centered in the tribal council. The legal fee to tribal lands may be (a) in the Indian tribe without restrictions as to alienation or encumbrance, (b) in the tribe but subject to restrictions as to alienation or encumbrance or (c) in the United States Government in trust for the Indian tribe. In each of these cases, the equitable title and beneficial interest are in the Indian tribe which has complete control and the use and occupation for purposes of crop production, subject to supervisory control of the Secretary of Interior to prevent waste or other injury to the free-hold.

    Inasmuch as the equitable title and beneficial interest are in the Indian tribe in all the foregoing classes of tribal lands, it is our belief that members of the tribe farming such lands are entitled to participate in the program. In our opinion, it cannot be held that Congress intended by means of Section 2 (a) of the Soil Conservation and Domestic Allotment Act to exclude from the operation of all provisions of the act except section 1, lands such as these over which the United States Government has merely a limited supervision and in which the equitable, and in some cases the legal title and the beneficial interest are in the Indian tribe.

    Farming leases on tribal lands are authorized by the Act of August 15, 1894, (28 Stat. 305, 25 U.S.C.A. 402), which provides that "the surplus lands of any tribe may be leased for farming purposes by the council of such tribe under the same rules and regulations and for the same term of years as is now allowed in the case of leases for grazing purposes." Pursuant thereto, a form of lease (5-371a) has been prescribed by the Secretary of the Interior for use in such cases.

    Although the ultimate legal fee in tribal lands may be held by the United States in trust for the Indians, the land after it has been leased is outside the control of the United States Government and the Department of the Interior, at least for all purposes except to prevent waste or any other injury to the freehold, the lease conveying to the lessee an estate or interest in the land for the period of the lease. The lessee is a person who rents for cash or for a fixed commodity payment, is within the definition of owner and, in our opinion, may qualify for participation in the program.

    3. Allotted lands are of two classes: (1) Lands in which patents conveying the legal fee have been granted to individual Indians, subject to restraints on alienation and encumbrance; and (2) Lands allotted to individual Indians for their own use and occupation, but in which the legal fee remains in the United States Government. Farming operations on such lands are carried out by the allottee or by someone who has leased the land from such allottee under supervision of the Secretary of the Interior.

    As in the case of tribal lands, it is believed that allotted lands are not excluded from participation in the program because of the fact that the bare legal title may be vested in the United States.

    The allottee who operates the land allotted to him is an owner within the definition thereof, having full control, use and occupation of the land for the purpose of producing crops thereon, subject only to control of the Department of Interior to prevent injury to the freehold, and since there appears to be nothing in the laws, or regulations thereunder, giving the Secretary of the Interior supervisory jurisdiction over such lands which
 


 

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would prohibit an Indian allottee from participating in the program, such lands operated by Indian allottees may, in our opinion, qualify for participation in the program.

    Under the provisions of 25 U.S.C.A. 393, 403, allotted lands may be leased for farming and grazing purposes, with the approval of the Superintendent or other officer in charge of the reservation, under rules and regulations prescribed by the Secretary of the Interior. A form of lease (5-180) has been prescribed by the Secretary of the Interior for use in leasing such lands.

    The lessee of such lands as a person who rents for cash or for a fixed commodity payment is an owner as defined in the program. Furthermore, the land after it has been leased is outside the control of the United States for all purposes except to prevent waste or other injury to the freehold, and the lessee has an estate and interest in the land for the period of the lease. Such lands, therefore, in our opinion, may qualify for participation in the program.

    In summary, lands owned in fee by individual Indians without restrictions, and tribal and allotted lands, whether farmed by members of the tribe and allottees respectively or by lessees thereof, may qualify under the crop provisions for participation in the 1937 Agricultural Conservation Program.

    II. Range Provisions of the 1937 Agricultural Conservation Program.

    In Western Region Bulletin No. 101 for each state in the Western Region, "range land" is defined to be "any land, other than that owned or controlled by the United States Government, or any agency thereof, in which a ranch operator has such a legal estate or interest as to give him control thereof, which produces forage for range livestock without cultivation or general irrigation, 10 acres or more of which are required to graze one animal unit", and "ranch operator" is defined to be "a person who as owner, cash tenant, or share-tenant, operates, or a person who acts in similar capacity in the operation of, a ranching unit". Since only such land as satisfies the definition of "range land" may qualify for participation in the program and only such operators as come within the definition of "ranch operator" may apply for and receive payments for range-building practices under the program, it is necessary that the operators upon Indian lands devoted to the grazing of livestock satisfy the requirements of these definitions both as to their own status of operation and as to the ownership status of the land upon which they operate.

    In my opinion of June 27, 1936, to you, with reference to the eligibility of lands of various types of ownership, including Indian lands, for participation in a range program under the Soil Conservation and Domestic Allotment Act, I quoted from the acts given the Secretary of the Interior the authority to regulate the grazing of livestock upon tribal and allotted lands and certain provisions of the regulations adopted by said Secretary pursuant to such acts, and accordingly, will not cite such acts and regulations herein.

    1. Lands owned in fee by individual Indians without restrictions are in every sense private property and are eligible for participation in the program to the same extent as any other privately owned lands.

    2. Tribal lands devoted to the grazing of livestock may be utilized by members of the tribe, permittees with respect to grazing on the land, or lessees of such lands.

    A member of the tribe carries on grazing operations on tribal lands ordinarily in conjunction with other members of the tribe, the livestock of all such members being intermingled over the extent of the grazing land. The beneficial use and occupation of and full control over such lands for the purposes of livestock production are vested in the tribe, subject to a limited supervisory control by the Department of Interior, and the tribe may be considered to be a "range operator" as defined in the program. As stated hereinabove, the fact that the United States Government may hold the legal fee to tribal lands in trust for the Indians is not sufficient ownership to exclude such lands from participation in the program. Tribal lands upon which members of the tribe carry on grazing operations, since such operators have full control over and complete use and occupation of such lands, come within the definition of "range land", and are eligible for participation in the program.

    The permit (Form 5-512) prescribed by the Secretary of the Interior by which grazing privileges upon tribal lands may be granted expressly states that "this instrument is not a lease and is not to be taken or construed as granting any lease-hold interest in or to the land described herein, but that it is a mere permit, terminable and revocable in the discretion of the approving officer." The permittee, therefore, in our opinion, has no such legal estate or interest in the land so as to give him control thereof. Furthermore, the operator having only a personal privilege to graze livestock on the land is neither an owner, cash tenant, share tenant, nor a person who acts in similar capacity: he is not within the definition of "ranch operator."

    Leases on tribal lands for grazing purposes are authorized by the act of February 28, 1891 (26
 


 

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Stat. 795, U.S.C.A. 397), which provides that "where lands are occupied by Indians who have bought and paid for the same, and which 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 * * * 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 words "bought and paid for" have been construed to be not a limitation to only such lands as have been actually paid for in cash, or to those which have been patented, and the title to which has been actually parted with by the United States; but they include all lands which have been purchased by the Indians, either by the payment of money, or by exchange, or by surrender of possession of other property. Strawberry Valley Cattle Co. v. Chipman (1896), 45 Pac. (Utah) 348. A form of lease (5471) for use in such cases has been prescribed by the Secretary of the Interior.

    Whether the fee is or is not held by the United States Government in trust for the Indians, the land after it has been leased is outside the control of the Government or the Department of the Interior, except to prevent waste or other injury to the freehold, including the right to limit the numbers of livestock grazed on such lands by the lessee to the grazing capacity thereof, the lease conveying an estate or interest in the land for the period of the lease. The lessee, renting for cash, is a ranch operator by definition, and he has such estate or interest in the land upon which he operates as to give him control thereof.

    3. Allotted Indian lands may be utilized for grazing purposes, by the allottees themselves, persons operating under permits, and persons operating under leases.

    As has been stated hereinbefore, the fact that the bare legal title may be held by the United States is not sufficient ownership to exclude from participation in the program allotted lands upon which an allottee carries out grazing operations. Having the beneficial use and occupation and full control of the land for the purpose of grazing livestock subject to supervision by the Department of the Interior to prevent injury to the freehold, he is a "ranch operator" by definition and has such interest or estate in the land as gives him control thereof so that the land is "range land" by definition.

    Grazing privileges on allotted lands are frequently granted through the medium of permits. Permittees with respect to such lands acquire no estate or interest in the land itself; they obtain Only the personal privilege of grazing their livestock on the lands. Thus, they are not "ranch operators".

    The acquisition of grazing rights on allotted lands by lease is authorized by the act of March 3, 1921 (41 Stat. 1232, 25 U.S.C.A. 393). A form of lease has been prescribed by the Secretary of the Interior for use in such cases.

    Such a lease conveys an estate or interest in the land itself and the lessee has full control and the complete use and occupation of the land for the period of his lease except that he may not overgraze or otherwise commit waste on such lands. Hence, as one who rents for cash, he is a "ranch operator" and the land upon which he operates is "range land".

    In summary, lands owned in fee by Indians, tribal lands upon which members of the tribe or lessees of the tribe operate, and allotted lands upon which the allottee or lessee thereof operates are eligible under the range provisions for participation in the 1937 Agricultural Conservation Program; persons carrying on grazing operations upon tribal and allotted lands by virtue solely of permits are not eligible for participation in the program.

                                                                                                                                                    MASTIN G. WHITE,

Solicitor.

OKLAHOMA--DEEDS, AND GUARDIANSHIP
SALES


March 4, 1937.


 Memorandum for the Assistant Commissioner of Indian Affairs:

    The attached circular relating to the administration of section 2 of the act of June 26, 1936 (49 Stat. 1967), contains on page 2 the classification of those cases in which deeds and guardianship sales require the approval of the Oklahoma county courts and those in which the approval of the Secretary of the Interior is necessary. As such classification appears to be inadequate in some respects and erroneous in others, I suggest the following as a substitute:

    1. Conveyances or guardianship sales requiring the approval of the county courts of the State of Oklahoma:
(a) Sales or conveyances of interests inherited by full blood heirs prior to January 27, 1933, in restricted lands of deceased allottees irrespective of whether such lands were taxable or nontaxable.

 

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(b) Sales or conveyances of interests inherited by full blood heirs after January 27, 1933, in restricted taxable lands of deceased allottees.

(c) Sales or conveyances of interests inherited by full blood heirs after January 27, 1933, in restricted tax-exempt lands of deceased allottees where the remaining heir or heirs are non-Indians or are of less than one half Indian blood.

(d) Partition of lands in Classes 1 (a), (b), and (c).

    2. Conveyances or guardianship sales requiring the approval of the Secretary of the Interior:
(a) Sales or conveyances of interests inherited in restricted tax-exempt land after January 27, 1933, by Indians of one half or more Indian blood provided the entire interest in the land is inherited by such Indians.

(b) Partition of lands in Class 2 (a).

(c) Sales or conveyances of all restricted lands of living allottees.

                                                                                                                                            NATHAN R. MARGOLD,
Solicitor.

STATUS OF WISCONSIN WINNEBAGO

March 6, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    The Solicitor's Office has been asked to determine the status of the Wisconsin Winnebago Indians for the purpose of carrying forward the proposed organization of these Indians and land purchases for them under the Reorganization Act. Specifically, the question is whether these Indians can be considered a tribe or band for organization and land purchase purposes and, if so, whether they are denied these privileges in view of the fact that they are holders of homestead allotments.

    The Wisconsin Winnebagoes, together with the Winnebagoes in Nebraska, now organized as the Winnebago Tribe of Nebraska, were originally a single tribe known as the Winnebago Tribe. After this tribe had been settled on a reservation in Dakota in 1863, about 1,000 returned to their original home country in Wisconsin and the remainder were moved to their present reservation in Nebraska. The Wisconsin Indians have no reservation but the whole group of Indians took up homesteads on the public domain under the act of March 3, 1875 (18 Stat. 420). The land on which they were allotted, scattered in more or less consolidated groups in 16 counties, has proved to be the most unproductive land in Wisconsin from an agricultural viewpoint and the Indians are badly in need of land which can be used to advantage. The homesteads are held under trust patents and are nontaxable, but the nontaxable trust status expires in 1941. There are now about 1,400 Indians in this group.

    I shall consider their tribal status first. The act of 1875, which provided for Indians obtaining homestead allotments on the public domain, extended this privilege to any Indian 21 years of age or the head of a family who had abandoned his tribal relations. It appears that the Wisconsin Winnebagoes had difficulty in obtaining these homesteads because of their poverty and that for this reason the act of January 18, 1881 (21 Stat. 315), providing for use of tribal funds, was passed. The purpose of this act was set forth in the recitals of the act, which state, "Whereas a large number of Winnebago Indians of Wisconsin have selected and settled in good faith upon homestead claims [under the act of 18751 * * * and all said Indians having signified their desire and purpose to abandon their tribal relations and adopt the habits and customs of civilized people, and avail themselves of the benefits of the aforesaid act. but in many instances were unable to do so on account of their extreme poverty; * * *." This recital would indicate that these Indians were entering upon the process of abandoning their tribal relations but that the process had not been completed at the date of the act. If this recital were the only evidence of the opinion of Congress of the status of these Indians, I would be forced to conclude that these Indians could not now be considered a tribe; that is, a group of Indians maintaining tribal relations and organization. However, the remainder of the act of 1881 and later acts of Congress show that the abandonment of tribal relations was never fully accomplished and that the Wisconsin Winnebagoes were not only considered a band or tribe themselves but were recognized as still members of the Winnebago Tribe proper.

    Section 1 of the 1881 act directed the Secretary of the Interior to cause a census to be taken "of the tribe of Winnebago Indians, now residing in Nebraska and Wisconsin." The census was to be made upon separate lists, "the first to include all of said tribe now residing * * * at the tribal reservation in Nebraska, and the second to embrace all of said tribe now residing in the State of Wisconsin." Section 2 directed the Secretary to proportion the tribal annuities and to expend such
 


 

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sum as may "be found necessary to equalize the payments between the two bands." The language of section 3 is even more significant. It provides, "that in the future disposition of the annuities of the Winnebago Tribe of Indians, a pro rata division, according to the number of each band as shown by said census, shall be made between the portion of said tribe in Nebraska and that portion in Wisconsin; and the moneys belonging to each shall be annually distributed to the members of said bands respectively * * *."

    The settlement of the division of funds between the two branches of the tribe caused a number of acts of Congress. The act of March 3, 1909 (35 Stat. 798), required the Secretary of the Interior to make an enrollment of all Winnebago Indians other than those enrolled in Nebraska, and to proportion the share of annuities belonging to the Winnebago Indians in Wisconsin. This act is not conclusive as to the tribal status of the Wisconsin Indians except to refer to both groups together as the "Winnebago Tribe of Indians." The act of January 20, 1910 (36 Stat, 873), directed the Secretary of the Treasury to pay the interest on the sum in the Treasury for the Winnebago Tribe of Indians to "the members of the Winnebago Tribe of Indians in Nebraska and Wisconsin." The act of July 1, 1912 (37 Stat. 187), directed the Secretary of the Interior to make a new census of "the two branches of the tribe" and to make a new division of tribal funds.

    Following the directions in these statutes the Interior Department has made rolls of these two groups of Indians, which have been designated as band or tribal rolls, and the tribal fund set apart for the Wisconsin branch has been designated as Winnebago funds of the "Wisconsin Band."

    The most recent indication of the fact that these Indians are still considered as a tribe or band by Congress and the Department is found in the jurisdictional act of December 17, 1928 (45 Stat. 1027). This act authorizes the Court of Claims to adjudicate all claims which the "Winnebago Tribe of Indians or any band thereof" may have against the United States. It appears conclusively in the report on this bill, made by the Department to Congress on February 2, 1928, that the "Winnebago Tribe of Indians" referred both to the band in Nebraska and the band in Wisconsin. A number of attorney's contracts have been executed and approved by the Department for the purpose of trying these claims. All these contracts name the Indians as the "Winnebago Tribe of Indians resident in Nebraska" and Wisconsin" or some variation thereof, and, where the contract was entered into by the tribe, it was executed by committeemen representing the "Winnebago Tribe of Indians resident in Nebraska and committeemen representing the "Winnebago Tribe of Indians resident in Wisconsin."

    In the carrying out of the tribal statutes, as well as the jurisdictional act, it has been repeatedly necessary for the Wisconsin Winnebagoes to take action as a band. The Indian Office records show numerous occasions on which a general council meeting of the Wisconsin Winnebagoes occurred and appropriate action taken as a band or representatives of the band appointed. Representatives of the band have also been received in that capacity by the Indian Office. The most recent example of such a council meeting was that held on June 14, 1935, concerning organization under the Reorganization act. At this meeting representatives from the different communities were elected to serve as a committee on organization. The affidavits in the Organization Division files, submitted by several of these representatives and by previous officers and committeemen of the band, testify to this band action.

    From the foregoing facts I have concluded that these Indians can be considered either as an organized band or tribe for the purposes of organization and land purchase. They can be designated as the "Winnebago Tribe of Wisconsin," or "Winnebago Band of Wisconsin" or by other variations of the name. While the Nebraska branch is organized as the "Winnebago Tribe of Nebraska," the Wisconsin branch has been more usually referred to as a band. Therefore, the designation, "Winnebago Band of Wisconsin," might be preferable.

    It is my further opinion that these Indians are not denied the benefit of organization or land purchase because of the fact that they are not reservation Indians but possess homestead allotments. Section 8 of the Reorganization act provides that nothing contained in the act shall be construed to relate to Indian holdings of allotments or homesteads upon the public domain outside of any Indian reservation. This section applies to those provisions of the act which would affect the allotments and homesteads themselves and not to those provisions which extend privileges to persons who are Indians and who are members of a tribe. For example, the extension of trust restrictions in section 2 of the act, and the limitations upon alienating restricted land, in section 4, and the authority of the Secretary to regulate Indian lands, in section 6, would not apply to homesteads. However, Indian education and appointment of Indians in the Indian Service, and the organization of Indians under constitutions are not affected by the homestead provision in section 8. However, in view of the fact that these Indians have no reservation,
 


 

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DEPARTMENT OF THE INTERIOR

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they cannot obtain a charter, under the present provisions of section 17 of the Reorganization act, until a reservation has been acquired for them.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

MINING CLAIMS--TRIBAL APPROVAL
OF LEASES UNDER IRA

March 9, 1937.
Memorandum for the Assistant Secretary:

    The Commissioner of Indian Affairs has submitted the attached letter dated December 4, 1936, concerning Mrs. Harriet W. Foster for your approval. Mrs. Foster has applied for a mining lease of unallotted lands within the Pyramid Lake Indian Reservation to the extent of 19 lode mining claims, pursuant to the provisions of section 26 of the act of June 30, 1919, 41 Stat. 31; amended by act of March 3, 1921, 41 Stat. 1231; amended by act of December 16, 1926, 44 Stat. 922; 25 U.S.C.
399.

    In the absence of discovery of ore, there is no basis for location and no lease may be allowed. Solicitor's Opinion, 49 L.D. 421, 422; section 3, regulations, 47 L.D. 261, 263. There has been no discovery of ore on 17 of Mrs. Foster's claims. I therefore agree with the Commissioner's conclusion that as to them her application should be disapproved.

    Ore has been discovered on two claims, the Guanomi and the Guanomi Annex. But I do not agree with the Commissioner's conclusion that the application may be approved to the extent of allowing a lease of these two claims, without the consent of the tribe.

    Section 26 of the act of June 30, 1919, provides that the Secretary of the Interior may lease for mining purposes certain unallotted Indian lands to persons who have located claims thereon, provided copies of the location notice are filed with the superintendent of the reservation within 60 days, and application for a lease is made within a year from the date of location. Until location of a claim, a prospector acquires no right to a lease; thereafter he may obtain a lease providing he complies with the provisions of the statute.

    On June 18, 1934, the Indian Reorganization Act became effective. By its provisions, tribes on reservations were given the right and the power (a) to decide whether its provisions should apply to them, (b) to organize thereunder and adopt a constitution, and (c) thereafter, to prevent the lease of their respective tribal lands or interests therein without their consent. Act of June 18, 1934, 48 Stat. 984, sections 16, 18; 25 U.S.C. 476, 478.

    When the Reorganization Act was passed on June 18, 1934, the applicant was merely a prospector. She had located none of the claims. She had then acquired no rights under the 1919 statute. All her claims were located in August of 1934. The copies of the location notices filed by her on August 10, 1934, so state. She filed her application for a lease on July 31, 1935. No lease has yet been granted. In the meantime, on December 15, 1934, the Pyramid Lake Indians decided not to exclude themselves from the provisions of the Reorganization Act. And they organized, and adopted a constitution approved by the Department on January 15. 1936. That constitution, among other things, places the power to lease tribal lands in the tribal council, subject to the approval of the Secretary of the Interior. On November 26, 1936, the council decided that a lease to Mrs. Foster should not be approved. That decision prevents the grant of a lease until and unless the council reverses its decision and gives its consent to a lease.

    It is true that when the locations were made the tribe had not yet decided whether to exclude itself from the provisions of the Reorganization Act, it had not organized, and had not adopted a constitution. It may therefore be said that it then was not capable of exercising the power to disapprove leases. But this is not material. The existence of power is essential only when it is exercised. When the tribe, through its council, determined to disapprove the application for a lease, the tribal constitution had been adopted and approved by the Secretary and at that time the tribe was capable of exercising the power of disapproval.

    May that power be exercised to prevent the grant of a lease to Mrs. Foster? It may perhaps be argued that the power may. not be exerted so as to affect the rights of one who located claims prior to the effective date of the Reorganization Act. But when Mrs. Foster located her claims that act was in force. The legal effect of her locations must therefore be determined by the 1919 statute and so much of the Reorganization Act as relates to the subject matter of the 1919 statute. By the later act, of the provisions of which Mrs. Foster was charged with knowledge, tribes were in effect given the right to assume and exercise a power to block the lease of their lands without their consent. Under the 1919 statute, the conditions precedent to the grant of a lease were the filing of a copy of the location notice within 50 days and application for a lease within a year after location. By virtue of the provisions of the Reorganization Act, another condi-
 


 

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OPINIONS OF THE SOLICITOR

MARCH 15, 1937

tion precedent was added, that is, that a lease could not be granted without tribal consent, if before it was granted, the tribe had adopted a constitution and it had been approved by the Secretary. Before Mrs. Foster's application was disposed of, the tribal constitution had been adopted and approved. Thereafter the Secretary could not and cannot grant a lease unless the tribal council consents thereto, as provided in that constitution and in section 16 of the Reorganization Act.

    I am therefore convinced that as a matter of law the application for a lease of the Guanomi and Guanomi Annex claims may not be granted without the consent of the tribal council.

    However, if the tribe persists in withholding its approval of a lease of the Guanomi and Guanomi Annex claims or insists on unjustifiably onerous terms, the result will be inequitable to the applicant. It seems that she and her husband invested more than $35,000 in the claims. And the report of the Geological Survey fixes the value of work performed and equipment installed at $7,500. Apparently, the money was spent, the work performed and the equipment installed before the enactment of the Reorganization Act. If no lease is granted she will, not only lose a substantial investment but it may be assumed that the Indians will benefit from the discovery by her husband, their investment and the work performed.

    It is my suggestion that the Commissioner submit the matter to the tribal council for reconsideration of their decision of disapproval, and that he call their attention to the equities favorable to the allowance of a lease of the Guanomi and Guanomi Annex claims on terms which will be fair both to the tribe and Mrs. Foster.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
Approved: March 9, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

ST. CROIX INDIANS--ENROLLEES OF
DR. WOOSTER

March 15, 1937.
Memorandum to the Commissioner of Indian Affairs:

Supplement To My Memorandum
on the St. Croix Indians.

    In my memorandum of February 8 concerning the legal status of the St. Croix Indians I reached the conclusion that these Indians could not be recognized as a band and that land purchased for these Indians would have to be made for those of one half or more Indian blood. The question has arisen in the office (Indian) whether the 95 St. Croix Indians who were enrolled by Dr. Wooster in 1914 as being entitled to compensation in lieu of allotments can be considered as members of the tribes with which Dr. Wooster indicated their affiliation and, therefore entitled to benefits under the Reorganization Act regardless of their degree of blood.

    The Secretary of the Interior was required under the act of August 1, 1914 (38 Stat. 606), to determine the tribal rights of the St. Croix Chippewa Indians and "what tribal rights, if any, they have with any band or tribe of Chippewa Indians residing in either Minnesota or Wisconsin; what benefits in land and money they would have received had they removed to a reservation * * *". Dr. Wooster, having been delegated to investigate these questions, prepared a tentative roll of the Indians known as St. Croix Indians, including some 1117 names. From these he selected only 95 for final enrollment as those St. Croix Indians entitled to benefits given to members of Chippewa tribes on reservations. In making this selection he followed the ruling of the Oakes case (172 Fed. 305), which held that Indians who were once recognized members of a tribe were still entitled to tribal benefits even though they had abandoned their tribal relations, because of certain acts of Congress preserving their interest in tribal property. Since this principle was the one followed by Dr. Wooster in making the enrollment, it cannot be said that the persons enrolled were recognized by virtue of such enrollment as being at that time recognized members of the tribes in which they were entitled to benefits. Any or all of these Indians may have been Indians who had abandoned their tribal relations.

    In looking through the documents surrounding this investigation and enrollment I find no positive evidence as to whether or not any or all of these 95 Indians were at the time of enrollment recognized members of the tribes with which they were entitled to benefits. In the tentative roll of 1117 names there is a column indicating the tribal connection of each enrollee. However, this information may be purely descriptive without having any significance as showing present membership in the tribe indicated. Furthermore, this tentative roll shows which of the Indians were at that time enrolled on other reservations and those Indians who were so enrolled were omitted from the final roll of 95 names. This would indicate that those Indians who were recognized members of the other tribes were not included in the final enrollment.
 


 

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DEPARTMENT OF THE INTERIOR

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In the final roll there is also included an indication of the tribe with which the enrollee was connected but more again this indication can have no legal significance in connection with the question whether such enrollees were at the time of the enrollment members or former members of the tribe indicated.

    In Dr. Wooster's report of December 1, 1914, he describes the St. Croix Indians as having "adopted the habits and customs of civilized life" and enumerates other facts which indicate abandonment of tribal relations. However, in his report of January 13, he speaks of the 95 enrolled Indians as "belonging to" the Fond du Lac or Lac Courte Oreille Bands and the Secretary's report of March 3 also refers to the tribe or band to which these Indians "belong." Beyond the use of this ambiguous word there is no indication of any recognition of present membership of the enrollees in these tribes.

    In view of the foregoing, I do not consider that the enrollment of these 95 St. Croix Chippewas in itself showed them to be members of any Indian tribes. Further evidence in connection with particular cases would have to be shown. But in any event, even if any or all of these enrollees were members of Indian tribes at the time of enrollment, it would be necessary for them to show that they are members of recognized Indian tribes at the time land is purchased under the Reorganization Act, in order to be entitled to share in its enjoyment, regardless of their degree of Indian blood. In showing membership in an Indian tribe at the time of such purchase the 95 enrolled Indians stand on no different footing from the others on the tentative roll of St. Croix Indians made by Dr. Wooster which included 1117 names. Any of these Indians who can show membership in a recognized Indian tribe could participate in the benefits of land purchase regardless of their degree of blood. However, when a tribal organization is formed of these Indians sharing in the benefits of land purchase.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
SALISH AND KOOTENAI--LAW AND
ORDER


March 17, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    This is to inform you that the letter to the Tribal Council of the Confederated Salish and Kootenai Tribes, prepared in the Indian Office, concerning law and order ordinances adopted by the council December 22, was altered in certain respects in this office. As the changes were not of a serious nature and concerned only points of law, and as the letter needed to be signed by March 21, in order to be effective, since the 90 day period for review by the Secretary expired on that day, the corrected letter was not returned for routing through the Indian Office. Consultation on the revision was had, however, with representatives of that office. I am herewith notifying you of the changes made and the reasons therefor and attaching two extra carbons of the revised letter for your files and the corrected copy of the original letter for your comparison.

    1. The ordinance lettered B which was originally listed among those ordinances approved by the Secretary, provide that the definition of the word "Indian" for the purposes of the enforcement of the ordinances, would be "any person of Indian descent who is a member of any recognized Indian tribe now under Federal jurisdiction." This definition is too broad as the Tribal Council has authority, under the constitution, to enact ordinances governing the conduct of members of the Confederated Tribes only. Accordingly it was necessary to place Ordinance B among the ordinances disapproved by the Secretary. It is suggested that further consideration be given the possibilities of enlarging jurisdiction limited by tribal constitution, as in the cases of this kind to members of the tribe where such enlargement may be desirable through constitutional amendment or possibly delegation of departmental authority.

    2. On the first and last pages of the original letter it was stated that the Secretary was taking no final action on certain of the ordinances submitted pending their modification by the Tribal Council. Evidently this language was framed at a time when it was believed possible to have the tribal Council modify these ordinances before the expiration of the 90 day review period. However, since the 90 day period has practically expired and the Secretary has no authority over the ordinances after such time, it was not considered proper to imply that the Secretary was withholding his action until a later date. Accordingly this language was modified to state that the Secretary was not disapproving the ordinances involved but because of certain minor errors observed in them, he suggested the reenactment of the ordinances and their resubmission.

    3. In connection with Ordinance M, it had been originally suggested that the words "without leaving a will" be added in the eighth paragraph after the words "when any member of the tribe dies,"
 


 

737

OPINIONS OF THE SOLICITOR

APRIL 8, 1937

in order to make it clear that this paragraph applied only to Indians dying intestate. This suggestion has been omitted since the 8th paragraph should in fact apply to Indians who might die testate as well as intestate since there may always be some property not covered by the will for the distribution of which the determination of heirs is necessary. This paragraph conflicts in no way with the later paragraph providing for probate of a will. Moreover since the 8th paragraph is an exact copy of the corresponding paragraph in the law and order regulations of the Department, it is not considered appropriate to suggest its correction unless there is a real error involved.

    In place of this suggestion in Ordinance M, it was pointed out that no review .was necessary of the first seven paragraphs which dealt with domestic relations, in view of section 1(q) of Article VI of the constitution giving the council authority to regulate such relations, but that the regulation of inheritance was reviewable, in view of section 1(p) of Article VI. Certain suggestions were made for the improvement of the draftsmanship of the ordinance.

    4. The original letter stated that one paragraph of Ordinance S was in conflict with one paragraph of Ordinance T. In the revised letter the reason for a possible conflict between the two was stated.

    5. As the phrase "Court of Indian Offenses" had been inadvertently used in the third as well as in the 8th paragraph of Ordinance T, attention is called in the letter to this additional error.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
ESTATE OF JACKSON BARNES--CLAIMANTS


April 8, 1937.


 Memorandum for the Secretary:

    Transmitted herewith for your consideration is an agreement entered into by and between certain claimants to the estate of Jackson Barnett, deceased full-blood Creek Indian, which estate is involved in litigation now pending before the United States District Court for the Eastern District of Oklahoma.

    The claimants to this estate number nearly 500 persons, divided into some 50 separate groups. Three of these groups, designated as groups Nos. 1, 2 and 3, are parties to the above mentioned agreement. Group No. 1 consists of 14 Indians claiming to be grandchildren of Siah Barnett who, the Acting Superintendent for the Five Civilized Tribes reports, is shown on the final rolls as the father of Jackson Barnett. Groups Nos. 2 and 3 are composed of more than 20 Indians claiming to be related in some degree to Thlesothle, who is alleged to have been the mother of Jackson Barnett. It is represented that all of the Indians comprising the three groups are of the full blood.

    Under the provisions of the agreement, the three groups will unite in common defense against all other claimants, the expenses of such common defense to be prorated among the three groups. The agreement further provides that each group will present its respective claim at its own expense and that irrespective of which group is successful the estate will be divided as follows: Group No. 1, one half; group No. 2, one fourth; group No. 3, one fourth. The agreement provides in terms of a present grant for the necessary conveyances to carry it into execution.

    Jackson Barnett was a full-blood Creek Indian. He died seized of valuable oil-producing property and a large amount of cash and securities. All of this property was restricted during his lifetime. His death did not terminate the restrictions unless his heirs at law are non-Indians or are persons of less than one-half Indian blood. Act of May 27, 1908, 35 Stat. 312, as amended January 27, 1933 (47 Stat. 777). All of the parties to the above agreement claim to be full-blood Indians of the Five Civilized Tribes. Under the acts cited, any interest inherited by them in this estate would therefore be restricted in their hands and no alienation thereof would be valid unless approved by the Secretary of the Interior. Your approval is there fore essential to the validity of the proposed agreement.

    Subsequent to the filing of this agreement with the Department the following protests against its approval have been received on behalf of persons not parties to the agreement:

    1. Protest by Underwood, Canterbury, Pinson and Lupardus, representing a group of Negroes, the grandchildren of Andrew Sullivan, who protestants claim was the father of Jackson Barnett. These protestants first requested a hearing but later advised that they would be unable to present their protest in person.

    2. Protest by John J. Harrison, filed through Congressman Will Rogers of Oklahoma. This protestant represents Joe H. Tiger and Annie Ponds, Creek Indians claiming to be the nephew and niece, respectively, of Jackson Barnett.

    3. Protest by Eck E. Brook and Charles S. Carl, representing Charles Barnett et al.

    4. Protest filed by C. L. McGuire representing Bennie Barnett Valenta or Scott, who claims that he is the son and sole heir of Thlesothle Barnett
 


 

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DEPARTMENT OF THE INTERIOR

APRIL 8, 1937

Scott, deceased; that Thlesothle was Jackson Barnett's sister and that he, Bennie Barnett Scott, is a nephew and sole heir of Jackson Barnett.

    5. By letter addressed to the Secretary of the Interior under date of February 23, 1937, Congressman Lyle H. Boren of Oklahoma requested an opportunity to appear in conference for the purpose of representing the interests in his district affected by the proposed agreement. While Congressman Boren's letter does not expressly so state, it is assumed that he wishes to present the views of parties opposed to the agreement. By letter dated February 26, the Personal Assistant to the Secretary advised Congressman Boren that he would be afforded an opportunity to appear in conference on the subject prior to the final action by the Department on the agreement.

    The legal objection presented by the protests may be summarized by the statement that an agreement of this nature is void as against public policy. None of the protestants have cited any authorities on this point. The proponents of the agreement, on the other hand, have furnished a long list of authorities tending to establish the validity of the agreement. While an independent examination of the cases touching the question discloses a substantial conflict, the weight of authority in the West, including Oklahoma where the present contract was drawn, supports the agreement. See Tiger v. Lorier, 123 Okla. 260, 256 Pac. 727; Spangenberg v. Spangenberg, 126 Pac. 379; Cavanaugh v. Cavanaugh, 128 Wash. 688, 224 Pac. 28; Sango v.
Parks, 44 Okla. 223, 143 Pac. 1158; Banks v. Hall, 14 Pac. 236; Collins v. Collins, 275 Pac. 571; Rio v. Walton, 182 Pac. 640; Fritschi v. Fritschi, 249 Pac. 42; Pabst v. Pabst, 288 Pac. 593. Moreover, the Attorney General has considered the question and in his letter of December 14, 1936, advises:

    "It has been suggested that the contract may be against public policy, but it is not entirely clear that this is true. The United States Attorney in charge of the litigation has stated his approval of the contract and has also discussed the matter with the United States District Judge. The latter has indicated his view that the contract 'probably would not be against public policy'. Considering all of the circumstances, and since the arrangement proposed is not a secret one and is subject to approval by several courts, it would appear that you are under no compulsion to withhold your approval of said agreement because of a mere doubt. The parties are entitled to a presumption of legality and ought to be accorded their day in court upon this issue, if raised by any interested party."
    The question of whether the agreement should or should not be approved thus becomes one for administrative determination. The Acting Superintendent for the Five Civilized Tribes and the United States Attorney in charge of the litigation on behalf of the United States have unqualifiedly recommended approval of the agreement. In support of his recommendation the United States Attorney states that such approval will not only not embarrass or prejudice the United States in the conduct of the litigation but on the contrary will materially assist the Government and the full-blood Indians signatory to the agreement. The United States Attorney further states, among other things:
"* * * During the past eighteen months some 6,000 pages of depositions have been taken. From the information adduced in these depositions and from other information available to me, I am of the opinion that the three groups named in the contract are the proper heirs of Jackson Barnett and should inherit his estate. It appears that Siah Barnett was the father of Jackson Barnett, and his descendants are represented by Group No. 1. There is no question as to who was the mother of Jackson Barnett; she was Thlesothle. Groups No. 2 and 3 are composed of the descendants of Thlesothle and are referred to as the maternal claimants. There is a controversy among some of these claimants as to which case are the nearest of kin of Jackson Barnett, but as descendants of the mother it seems to me that it would be only equitable and just that they should all come in and share, regardless of whether they are cousins or nephews.

    "Again, there is contention between Groups 2 and 3 on the one hand, and Group No. 1 on the other, as to the legitimacy of Jackson Barnett and as to the validity of the marriage between Siah Barnett and Thlesothle. The evidence shows that Siah Barnett took Jackson Barnett into his home and recognized him as a child, and these claimants are the descendants of Siah Barnett and they should not be cut out by the legal technicality of the validity of a marriage nearly a hundred years ago in this unsettled country. It seems to me that it is good policy to divide this large estate among as many full-blood Indians as possible, provided, of course, they are blood kin of Jackson Barnett and entitled to inherit.

    "Thus far in the conduct of this case I have taken no positive stand for or against any individual claimants. I have taken the position
 
 


 

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OPINIONS OF THE SOLICITOR

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that the Government is a stakeholder and ready to pay out the money to those whom the Court may find to be entitled thereto. It was my desire to have the case developed from step to step, to give every claimant a full and free opportunity to present the evidence in support of his claim, and to see that justice was done. This largely because, at the inception of the case, I did not know and no one knew who were the heirs of Jackson Barnett. However, the case has advanced to the point where I believe this office would be justified and that it is my duty to take the position that the groups mentioned in this agreement are the proper heirs of Jackson Barnett. With this in view, it is my opinion that the approval of this agreement not only would not embarrass the United States but would materially assist in properly presenting the claims of these full blood Indians."

    If, in view of the foregoing, you believe that the agreement should be approved your attention is called to certain requirements that should be met before approval is given. Two of these requirements are suggested by the Attorney General in the following language.

    1. "Paragraph 7 on page 9 of the agreement, among other things, provides that after execution thereof by the parties thereto, the same shall be:

approved by the various county courts in which guardianship proceedings of minors and incompetents who are parties hereto are pending, it shall be presented to the County Court of Muskogee County Oklahoma for approval, and, if approved by said Court, it shall then be presented by the parties hereto or their attorneys to the Honorable Secretary of the Interior for his approval.
    "It appears that the contract in question is signed on behalf of certain Indians by persons purporting to act as their guardians. The record does not disclose that all such persons were authorized to execute said agreement by order of the court having jurisdiction of the person and estate of the Indian wards, nor does it appear that in accordance with the provisions of said paragraph 7 of said contract that the County Court of Muskogee County, Oklahoma, and other county courts in which guardianship proceedings of minors and incompetent parties to said contract are pending, have approved the same."

    2. "Should any Indian signatory thereto, not under guardianship, be incapable, by reason of mental infirmity, of comprehending or understanding the nature, import or effect of the contract, then said agreement would be void as to him, and you would have no authority to approve the same insofar as it affected his interests. Mott v. United States, 283 U.S. 747."

    To meet the above suggestions the agreement should be presented to and approved by the proper county courts and when resubmitted should be accompanied by a satisfactory showing that all adult Indians parties thereto, not under guardianship, are not subject to any legal disability or mental infirmity such as would incapacitate them from entering into such an agreement.

    The Attorney General further suggests that your final approval should be given "without prejudice to the rights of any claimant and subject to the condition that all the evidence available to the parties to the agreement shall be fully and fairly presented to the court." In addition to this I offer the further suggestion that final approval, if given, be made subject to the further condition that such approval shall not be construed as qualifying, removing or impairing in any way whatsoever the existing restrictions and jurisdiction of the Secretary of the Interior over any property belonging to the estate of Jackson Barnett, deceased.

                                                                                                                                        FREDERIC B. KIRGIS,

Acting Solicitor.
POWER OF CONGRESS TO ENACT LEGISLATION

56 I.D. 102

M-29097                                                                                                                          April 8, 1937.
 

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, my opinion has been requested as to the constitutional power of Congress to enact legislation such as proposed by S. 1424, introduced February 8, 1937, which reads:

    "That the proviso in the Act of March 2, 1917, appearing on page 976 of volume 39 of the United States Statutes at Large, authorizing and directing the Secretary of the Interior to cause allotments in severalty to be made to the Indians belonging to and having tribal rights on the Mission Indian reservations in the State of California be, and the same is hereby, repealed and, until otherwise provided

 

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DEPARTMENT OF THE INTERIOR

APRIL 8, 1937

by Congress, the Secretary of the Interior is hereby directed not to perfect or complete any allotments heretofore listed or scheduled to any of said Indians which have not been approved by the Secretary of the Interior prior to the passage of this Act."

    The particular questions presented are (1) did the individual members of the bands or villages of Mission Indians acquire vested rights by enactment of the legislation sought to be repealed so that Congress could not thereafter recall or impair such rights without violating the due process clause of the Fifth Amendment to the Federal Constitution, and (2) if not, has the legislation sought to be repealed been carried into effect to the extent of creating individual property rights beyond the
power of Congress to divest or impair?

    The various Mission Indian reservations in California were created pursuant to the provisions of the act of January 12, 1891 (26 Stat. 712). Under section 3 of that act the respective bands or villages received patents declaring that the United States would hold the legal title to the reservation lands in trust for twenty-five years, and that at the end of that period the fee to the remaining land not "previously patented in severalty" would be conveyed to the bands or villages, discharged from the trust and free from charges or encumbrances. Sections 4 and 5 of the act deal with the allotting and patenting of allotments in severalty and provide:

    "Sec. 4. That whenever any of the Indians residing upon any reservation patented under the provisions of this act shall, in the opinion of the Secretary of the Interior, be so advanced in civilization as to be capable of owning and managing land in severalty, the Secretary of the Interior may cause allotments to be made to such Indians, out of the land of such reservation, in quantity as follows: To each head of a family not more than six hundred and forty acres nor less than one hundred and sixty acres of pasture or grazing land, and in addition thereto not exceeding twenty acres, as he shall deem for the best interest of the allottee, of arable land in some suitable locality: to each single person over twenty-one years of age not less than eighty nor more than six hundred and forty acres of pasture or grazing land and not exceeding ten acres of such arable land."

    Sec. 5. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior he shall cause patents to issue therefor in the name of the allottees, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State of California, and that at the expiration of said period the United States will convey the same by patent to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, That these patents, when issued, shall override the patent authorized to be issued to the band or village as aforesaid, and shall separate the individual allotment from the lands held in common, which proviso shall be incorporated in each of the village patents."

    By the act of March 2, 1917 (39 Stat. 969, 976). Congress amended section 3 of the act of 1891 so as to authorize the President to extend the trust period on the lands held in trust for the use and benefit of the Mission bands or villages of Indians with the following proviso:
    "That the Secretary of the Interior be, and he is hereby, authorized and directed to cause allotments to be made to the Indians belonging to and having tribal rights on the Mission Indian reservations in the State of California, in areas as provided in section seventeen of the Act of June twenty-fifth, nineteen hundred and ten (Thirty-sixth Statutes at Large, page eight hundred and fifty-nine), instead of as provides in section four of the Act of January twelfth, eighteen hundred and ninety-one (Twenty-sixth Statutes at Large, page seven hundred and thirteen) : Provided, That this act shall not affect any allotments heretofore patented to these Indians."
    The foregoing statutory provisions fall far short of creating any present right of any kind in individual members of the Mission Bands. Section 4 of the act of 1891 entrusts the problem of allotments in severalty of the reservation lands to the discretion and judgment of the Secretary of the Interior. To him is committed the function of determining when and to what Indians allotments are to be made. This discretion and this function are not
 


 

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taken away by the amendment of 1917. By that amendment, the Secretary of the Interior is authorized and directed to cause allotments to be made in areas as specified in section 17 of the act of June 25, 1910, instead of the areas specified in section 4 of the act of 1891. In other words, the amendment changes the quantities of land to be allotted, and the mandatory direction, if it may be properly called that, extends to the area to be allotted leaving undisturbed the discretionary authority vested in the Secretary by section 4 of the act of 1891 to make allotments. This interpretation is in accord with established rules of statutory construction in that it avoids a repeal by implication and harmonizes the two enactments and gives full effect to both.

    That legislation of this character is subject to change, modification or repeal at the will of Congress is no longer open to question. In Gritts v. Fisher (224 U.S. 640), an agreement with the Cherokee Tribe made in 1902 limited the distribution of the lands and properties of that tribe to members living on September 1, 1902. In 1906, Congress passed an act permitting children born after September 1, 1902, and living on March 4, 1906, to participate in the allotment and distribution. The validity of the later act was challenged because it enlarged the number of participants and thereby reduced the distributive share of the members entitled under the 1902 agreement and it was contended that those members had become invested under the 1902 agreement with an absolute right to receive all the lands and funds. It was further contended that this right could not be impaired by subsequent legislation. Rejecting these contentions the Supreme Court said (page 648):

"* * * No doubt such was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly born members of the tribe to the allotment and distribution. The difficulty with the appellants' contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress and can have no greater effect.' Cherokee Intermarriage Cases, 203 U.S. 76, 93. It was but an exertion of the administrative control of the Government over the tribal property of tribal Indians, and was subject to change by Congress at any time be fore it was carried into effect and while the tribal relations continued. * * *"
    In Sizemore v. Brady, 235 U.S. 41, the original Creek allotment agreement of 1901 provided that the lands and moneys to which deceased members of the tribe would be entitled, if living, should descend to their heirs according to the laws of descent and distribution of the Creek Nation and that such lands and moneys should be allotted and distributed to them accordingly. This provision was repealed and the laws of Arkansas substituted by later legislation. Holding that the later legislation was a valid exercise by Congress of its powers over the tribal property of tribal Indians, the Court said:
    "On the part of the maternal cousins it is contended that the provisions in the original agreement relating to the allotment and distribution of the tribal lands and funds were in the nature of a grant in praesenti and invested every living member of the tribe and the heirs, designated in the tribal laws, of every member who had died after April 1, 1899, with an absolute right to an allotment of lands and a distributive share of the funds, and that Congress could not recall or impair this right without violating the due process of law clause of the Fifth Amendment to the Constitution. To this we cannot assent. There was nothing in the agreement indicative of a purpose to make a grant in praesenti. On the contrary, it contemplated that various preliminary acts were to precede any investiture of individual rights. The lands and funds to which it related were tribal property and only as it was carried into effect were individual claims to be fastened upon them. Unless and until that was done Congress possessed plenary power to deal with them as tribal property. It could revoke the agreement and abandon the purpose to distribute them in severalty, or adopt another mode of distribution, or pursue any other course which to it seemed better for the Indians. And without doubt it could confine the allotment and distribution to living members of the tribe or make any provision deemed more reasonable than the first for passing to the relatives of deceased members the lands and money to which the latter would be entitled, if living. In short, the power of Congress was not exhausted or restrained by the adoption of the original agreement, but remained the same thereafter as before, save that rights created by carrying the agreement into effect could not be divested or impaired. Choate v. Trapp, 224 U.S. 665, 671."
    To the same effect is Chase, Jr. v. United States, 261 Fed. 833, affirmed 256 U.S. 1. In that case, it was held that an act passed by Congress in 1912, authorizing the survey, appraisal and sale by the Secretary of the Interior of all of the unallotted
 


 

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lands of the Omaha Reservation, was inconsistent with and therefore repealed prior allotment laws enacted in execution of treaty stipulations. It was further held that such repeal operated to cut off the right to allotment of an. individual Indian, otherwise entitled thereto, whose allotment selection the Secretary of the Interior had declined to approve. It was contended by the Indian claimant that he had a vested right to allotments under the treaties and allotment acts, but the Circuit Court of Appeals, Eighth Circuit, held that he "never obtained a vested interest in the unallotted lands of the Omaha Tribe under any law, and Congress had plenary power to at any time change the mode of disposition of these unallotted lands." Affirming this holding, the Supreme Court said:

    "The contention is one that has often been made in this court and rejected as often as made. Gritts v. Fisher, 224 U.S. 640; Choate v. Trapp, 224 U.S. 665; Cherokee Nation v. Hitchcock, 187 U.S. 294. In those cases the relation of the individual Indian to the tribal property is explained and also the power of Congress over that property and the tribes. In the recent case of United States v. Chase, 245 U.S. 89, we had occasion to consider the Reservation here involved and the effect of Article IV of the treaty of 1865 relied on by the appellant, and decided that its purpose was to do no 'more than to individualize the existing tribal right of occupancy' and that it left 'the fee in the United States' and left 'the United States and the tribe free to take such measures for the ultimate and permanent disposal of the lands, including the fee, as might become essential or appropriate in view of changing conditions, the welfare of the Indians and the public interests'."
    I have hereinbefore expressed the view that the authorization for allotments contained in the act of 1891, as amended by the act of 1917, is permissive or discretionary rather than mandatory. Inasmuch, however, as the provisions of the statute considered in Sizemore v. Brady, supra, and portions of those involved in Chase, Jr., v. United States, supra, were framed in mandatory language, it appears to be immaterial from the viewpoint of Congressional power of modification or repeal whether the act of 1891 as amended be regarded as permissive or mandatory.

    The patents issued to the Mission Indian bands or villages under the act of 1891 conveyed to the bands or villages rights of use and occupancy to the reservation lands, the legal title remaining in the United States. Whatever title the Indians have in virtue of these patents is in the village or band, and not in the individual members. Cherokee Nation v. Hitchcock, 187 U.S. 294, 307. The foregoing decisions clearly established that acts of Congress looking to the allotment in severalty of such lands do not, of their own force, create any vested right in any individual Indian. Until such acts of Congress have been carried into effect to the extent of creating vested property rights in the individual Indians, the reservation lands remain in tribal ownership subject to the undisputed power of Congress to deal with them as such. The first question is accordingly answered in the negative.

    The Commissioner of Indian Affairs states that subsequent to the approval of the act of 1917, amending the act of 1891, an allotting agent was placed in the field and allotments in severalty were made on several of the Mission Indian reservations, which allotments were duly approved and patents issued to the allottees as provided in section 5 of the act of 1891. In no other cases have allotments proceeded to the point of receiving approval by the Secretary of the Interior. On one of the reservations, according to the Commissioner, considerable time and effort was spent in an endeavor to complete allotment of the reservation lands. Selections were made by many but not all of the Indians and at least two allotment schedules were prepared. Neither schedule was approved and the allotment plans were finally abandoned for various reasons not the least of which was opposition among the Indians themselves to the allotment of the reservation lands.

    As to those allotments which have been perfected and completed by the issuance of trust patents, it is clear that the allottees have become invested with the equitable title and the beneficial use of all that would pass under a final or fee simple patent. Oklahoma v. Texas, 258 U.S. 574, 597. It is clear also that the equitable title so acquired by these patentees cannot be impaired by subsequent legislation (Choate v. Trapp, 224 U.S. 665, 677). S. 1424 does not propose so to do.

    The bill does propose to prohibit the Secretary of the Interior from perfecting or completing allotments "heretofore listed or scheduled to any of said Indians which have not been approved by the Secretary of the Interior prior to the passage of this Act." If the lands so selected and listed or scheduled thereupon become the individual property of the selectors and the tribal title thereupon became extinguished, the proposed legislation, if enacted, doubtless would be invalid as an unwarranted invasion of private property rights. But I am aware of no decision, departmental or court, which accords such weight to an unapproved allotment selection. In my opinion of July 17, 1935 (M. 28086),
 


 

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it was held that certain approved and unapproved allotment selections on the Fort Belknap Reservation in Montana might proceed to patent notwithstanding the declaration in section 1 of the act of June 18, 1934 (48 Stat. 984), that thereafter no land of any Indian reservation should be allotted in severalty to any Indian. That opinion, however, rested primarily on the premise that the inhibition against further allotments was not intended to prevent the completion of allotments, mandatorily provided for in the Fort Belknap allotment act, for the benefit of the remaining few unallotted Indians whose right to allotment under the allotment act became fixed long prior to the passage of the prohibitory legislation. Neither that opinion nor any of the numerous decisions cited therein is authority for the proposition that an unapproved allotment selection confers an absolute property right in the selector to the extent of precluding Congress from forbidding that mode of disposition of tribal property. That an unapproved allotment selection does not have such a far-reaching effect is established by the case of Chase, Jr. v. United States, supra. Chase, Jr., who was a member of the Omaha Tribe of Indians, selected and claimed an allotment of 80 acres of land on the Omaha Reservation. The Secretary of the Interior having declined to approve his selection, suit was brought to obtain a decree for allotment under the act of February 6, 1901 (31 Stat. 760). The United States moved to dismiss the bill and the trial court sustained the motion. On appeal, the Circuit Court of Appeals, Eighth Circuit, reversed the trial court and held, among other things, that the plaintiff was entitled under the then existing law to an allotment of 40 acres. The case was accordingly remanded to the trial court with instructions to permit the defendant to answer. 238 Fed. 889. The case was then retried on its merits and a decree of dismissal entered for the reason that Congress in the meantime had repealed the laws under which the plaintiff was entitled to an allotment. The decree was affirmed on appeal by the Circuit Court of Appeals and by the United States Supreme Court, both courts holding that Chase, Jr. had not obtained a vested right in the selected lands and that Congress had plenary power at any time to change the mode of disposition of the unallotted lands. In the course of its decision, the Circuit Court of Appeals stated:

    "If we should concede that Chase, Jr., had a floating right in the unallotted lands, that right did not attach to a particular tract of land To the same effect is Clay v. United States, 282 until such tract of land had been definitely located, selected, and set apart to the allottee."
Fed. 268. That was a suit for allotment brought by the heir of two Omaha Indians whose selections in allotment had not been approved and the application of the heir in their right had been denied because of the death of the claimants before the allotments were completed. Rejecting the claim of the heir, the court said:
"* * * The United States denied the right of appellant to an allotment, for the reason that the persons entitled thereto, the mother and daughter, had died before any allotments were made. Woodbuy v. U.S.,170 Fed. 302, 95 C.C.A. 498; La Roque v. U.S., 239 U.S. 62, 36 Sup. Ct. 22, 60 L. Ed. 147. These cases support the proposition that, until the allotments were made, the right thereto was a mere float, and from its nature would not descend to heirs. Whether those cases are conclusive as to the rights of appellant in this case need not be determined, as we are clearly of the opinion that the Act of May 11, 1912 (37 Stat. 111), as construed by the Supreme Court in the case of Hiram Chase, Jr. v. U.S., 256 U.S. 1, 41 Sup. Ct. 417, 65 L. Ed. 801 (April 11, 1921), cut off all right of appellant to an allotment under the act of 1893."
    Mere selection thus is not enough to establish a vested property right in the individual Indian. The land in addition must be set apart to the allottee, and this is usually accomplished by the issuance of a trust patent for the land after the allotment selection has been approved by the Secretary of the Interior. Whether any step in the allotment process short of actual issuance of the trust patent is sufficient to divest the tribal title and vest the same in the allottee is open to serious question in view of the decision of the United States Supreme Court in United States v. Reynolds, 250 U.S. 104, in which it is indicated that even approval by the Secretary of the Interior is not absolute or final. The question in any event, in so far as the Mission Indians are concerned, is removed from controversy by the express provisions of the act of 1891. Section 3 of that act, in providing for the issuance of a final fee patent to the band or village, excludes only lands "previously patented in severalty." thereby recognizing that the tribal title is not extinguished until a trust patent has issued to an individual allottee. In section 5, dealing with the issuance of trust patents to individual Indians, it is provided that such patents "when issued, shall override the patent authorized to be issued to the band or village as aforesaid, and shall separate the individual allotment from the lands held in common," again recognizing tribal ownership until the individual trust
 


 

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patent issues. Finally, in section 8, dealing with grants of rights of way for various purposes, it is provided that contracts therefor may be made, subject to the approval of the Secretary of the Interior, with the band or village prior to issuance of individual trust patents, but with the individual allottee after a trust patent has issued to him as provided in section 5. This is a clear and definite recognition that no property rights vest in the individual allottee until the trust patent actually issues. From these repeated declarations, I conclude that the lands of these Mission Indian bands or villages remain in communal ownership until trust patents have issued to individual allottees and that until that time, it is competent for Congress to abandon the purpose to distribute such lands in severalty, or adopt another mode of distribution, or pursue such other course as to it seems better for the Indians. Sizemore v. Brady, supra. The second question is answered accordingly.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: April 8, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

RESERVATION OF WATERS-ALASKA

56 I.D. 110

M-28978                                                                                                                              April 19, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion on the questions raised by the Indian Office as to whether section 2 of the act of May 1, 1936 (49 Stat. 1250), extending the provisions of the Indian Reorganization Act to Alaska, authorizes the Secretary of the Interior to reserve for the natives of Alaska, in order to protect their fishing rights, (a) waters in connection with reservations of land made under that section, and (b) waters where there are no lands being reserved in connection therewith; and if so, whether waters may be withdrawn extending as far from the shore as the territorial limits of Alaska. Section 2 of the act follows:

    "SEC. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17. 1884 (23 Stat. 26), or by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days' notice: Provided, however, That in each instance the total vote cast shall not be less than 30 per centum of those entitled to vote: Provided further, That nothing herein contained shall affect any valid existing claim, location, or entry under the laws of the United States, whether for homestead, mineral, right-of-way, or other purpose whatsoever, or shall affect the rights of any such owner, claimant, locator, or entryman to the full use and enjoyment of the land so occupied."
    In answering the questions raised I am assisted by the attitude and opinions of the Circuit Court of Appeals of the Ninth Circuit and of the Supreme Court in the Alaska Pacific Fisheries case (270 Fed. 274 and 248 U.S. 78), which involved the analogous question of whether the waters adjacent to the Annette Islands Indian Reservation in Alaska were or could be included in that reservation. The reservation had been created by section 15 of the act of March 3. 1891 (26 Stat. 1101), providing for the reservation of "a body of lands known as Annette Islands" for the use of the Metlakhatla Indians. In 1916 the President by proclamation stated that it was necessary to withdraw the waters adjacent to the islands for the purpose of developing an Indian fishing industry, and reserved the waters within 3,000 feet of the shore at mean low tide. There was no express statutory authority for an extension of the reservation by Executive action.

    In the Alaska Pacific Fisheries case the United States sought to enjoin an outsider from placing nets in the waters within the 3.000-foot limit. The Circuit Court of Appeals affirmed the granting of an injunction on the ground that the President, under his general authority, could reserve parts of the public domain, including territorial waters in Alaska, for Indian use, and that his reservation of the waters adjacent to the Annette Islands for fishing purposes was a reasonable and practical effec-
 


 

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tuation of the purposes of the act creating the reservation since the Indians depended on fishing in these waters for their sustenance. However, since this decision was rendered the acts of June 30, 1919 (41 Stat. 34), and March 3, 1927 (44 Stat. 1347), have been passed prohibiting the withdrawal of public lands of the United States for Indian reservations or the enlargement of existing reservations except by act of Congress. These acts would appear to apply to Alaska. But without expressly deciding their application, since the question has not been previously determined and is not in issue here, it is doubtful, in view of these statutes, whether reliance can be placed upon the rationale of the Circuit Court decision, that the Executive Department may supplement an act of Congress by withdrawing necessary land or water to add to an existing reservation. Accordingly, unless the authority for the withdrawal by the Secretary of the Interior of adjacent waters can be found in section
2 of the Alaska Reorganization Act, it is believed that the Secretary cannot make such withdrawals. The question is then purely one of statutory construction.

    The Supreme Court in upholding the granting of an injunction in the Alaska Pacific Fisheries case, looked at the problem as one of interpretation of the statute creating the reservation. It set forth as follows the method of approach which should be used in determining such a question of statutory interpretation:

    "As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated, to have in mind the circumstances in which the reservation was created-the power of Congress in the premises, the location and character of the islands, the situation and needs of the Indians and the object to be attained."
    The court held that the power of Congress to reserve the adjacent waters was undoubted, since such waters were the property of the United States and subject to its dominion and sovereignty. It found that the purpose of creating the reservation was to assist the Indians in their effort to become self sustaining and advance in civilized life, and that the facts showed that the Indians were primarily fishermen and could not sustain themselves from the use of the upland alone but that the use of the adjacent fishing grounds was equally essential. The court believed that Congress intended to conform its action to the situation and needs of the Indians and therefore held that the legislation reserving the "body of lands known as Annette Islands" included in the reservation the adjacent waters. The court also restated the principle that statutes passed for the benefit of Indian tribes should be liberally construed in their favor.

    If this method and ruling is applied to the instant question it would follow that section 2 of the 1936 Alaska Act may likewise be construed as intending to allow the reservation of fishing rights essential to the reservations created under that act. It is the same power of Congress that is being exercised. The purposes of this act are identical with those which surrounded the act reserving the Annette Islands Reservation and are hereby plainly expressed in the statute. The act recites the title of the Indian Reorganization Act (48 Stat. 984), June 18, 1934, which states as its purposes "to conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organization, to establish a credit system for Indians * * *." It is well known, as is recited in the opinions of the Supreme Court and the Circuit Court of Appeals concerning the Metlakhatla Indians, that the natives of Alaska are not naturally agricultural and depend chiefly on fishing and hunting for their livelihood. The fish of the Alaska coast region is one of their major resources and therefore appropriate to be conserved under the Reorganization Act in connection with their reservations. Moreover, a large number of the organizations developed under the Reorganization Act, particularly in southeast Alaska, will be fisheries and fish canneries. It will be these fish enterprises, similar to the successful enterprise developed by the Indians of the Annette Islands, which will be major users of the credit system established under the Reorganization Act. The Alaska Reorganization Act provides that the Indians may be organized, not as bands or tribes, but as groups having "a common bond of occupation." One of the most usual bonds of occupation is that of fishing and it is certain that many of the communities organized under the Reorganization Act will be fishing communities. The economic purpose of this legislation extending the Reorganization Act to Alaska was made clear in the report by the Interior Department to Congress on this act when it was introduced. The report stated that since the original Indian Reorganization Act did not extend the right of incorporation and enjoyment of credit privileges to Alaska, the Alaska Act was designed to remedy this omission. From these facts it is evident that the purpose of the Alaska Act would be seriously frustrated if the reservations designated under it could not embrace the major resource of many of the Indian organizations.

    The express language of section 2 of the Alaska
 


 

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Act is not materially more confining in its application than that which was used in the act reserving the Annette Islands Reservation. Instead of the words "body of lands" the words are used, "any area of land" and "additional public lands adjacent thereto * * * or any other public lands which are actually occupied by Indians or Eskimos." The term "public lands" is synonymous with the term "public domain," and the tidewaters of the territories of the United States and the lands under them have been classified as part of the public domain since they belong exclusively to the United States Government and are subject to its disposition. Shirley v. Bowlby, 152 U.S. 1; Alaska Pacific Fisheries v. United States, 248 U.S. at 87; 240 Fed. at 281, 282. It has been said that the United States holds these tidewaters and submerged lands in trust for the benefit of the whole people and that these waters and lands have never been disposed of under general laws. It is believed that neither of these propositions is violated by the proposed interpretation of section 2 of the Alaska Reorganization Act. The Circuit Court of Appeals in the Alaska Pacific Fisheries case stated that the reservation of the adjacent waters for the use of the Indians of the Annette Islands Reservation was not in conflict with the trust obligation of the United States since such action protected the food supply of a whole tribe of Indians who might otherwise become a public charge. And section 2 of the Alaska Reorganization Act is not a general law providing for the disposition of tidewaters but a limited law providing only for the designation of the particular kind of reservations which come within the classifications listed in section 2.

    The reservations to be designated under section 2 must fall within one of the following three classes: first, areas which have already been reserved under the legislation specified or by Executive order. The specification in this class of the legislation which created the Annette Islands Reservation is further evidence of the fact that Congress intended adjacent waters to be included in the reservations designated, since if the Secretary is to exercise his authority under section 2 to declare the Annette Islands an Indian reservation, it would be obligatory upon him to include the adjacent waters already recognized as part of the reservation. The second category consists of existing reservations, "together with additional public lands adjacent thereto, within the Territory of Alaska." In view of the rulings of the Supreme Court previously discussed, this language may be said to permit the Secretary to declare territorial waters adjacent to existing reservations to be part of the reservations. The third category consists of other public lands not connected with existing reservations but occupied by Indians or Eskimos. This permits entirely new reservations. If the language in this category were not modified elsewhere in the act, it might be reasonable to hold, in reply to question (b) of the Indian Office, that fishing waters used by the natives but not connected with any reservation might be reserved under this section. However, I believe that the act read as a whole indicates that the principal part of every reservation designated under section 2 must be land upon which the natives are actually residing. The first proviso in section 2 requires that the designation be approved by a majority vote of the native residents of the proposed reservation. This proviso could not be fulfilled if a reservation were declared which consisted only of fishing waters. Moreover, the phrase, "actually occupied" implies residence rather than mere use.

    It is therefore my opinion that the waters not connected with any reservation of the uplands cannot be independently reserved under section 2 of the Alaska Act but that waters adjacent to any lands already reserved or being reserved can be reserved for the natives occupying the rest of the reservation. My answer to part (a) of the first question is therefore in the affirmative and to part (b) in the negative.

    My answer to the second question, namely, whether waters may be withdrawn extending as far from the shore as the territorial limits of Alaska, must likewise be answered in the negative on the facts now available. The test applied by the Supreme Court in recognizing the waters adjacent to the Annette Islands as part of the Annette Islands Reservation was that these waters were an essential part of the reservation intended for Indian use and that these waters were generally considered part of the islands. I am of the opinion that section 2 of the Alaska Act does not authorize any further withdrawal than that which can be justified under the test formulated by the Supreme Court, that is, so much of the waters adjacent to any reservation as are essential for effective use of the reservation and extending only so far as can be reasonably considered an integral part of the reservation. It appears that for all practical purposes the extent of water designated by the President in connection with the Annette Islands Reservation, namely, 3,000 feet from the shore at mean low tide, should be used as the standard and even as the maximum unless it is shown that the natives have been using and actually need a further area. An extension of the area of Indian reservations to great lengths in the territorial waters of Alaska would seriously conflict with the authority of the Secretary of Commerce, given in various acts of Congress, to regulate fishing in the territorial waters, and with the policy of Congress expressed
 


 

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in those acts of providing equal fishing opportunities to all citizens.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: April 19, 1937.

OSCAR L. CHAPMAN, Assistant Secretary.

STATUS OF NAHMA AND BEAVER INDIANS

May 1, 1937.
Memorandum to the Commissioner of Indian Affairs.

    The Organization Division requested an examination in this office of the status of the Nahma and Beaver Island Indians in Michigan, with a view to determining their opportunities for organization under the Indian Reorganization Act. In the memorandum presented by the Organization Division the following information on these groups is given:

    "1. The Nahma Indians are located at Nahma, Michigan in Delta County Upper Peninsula). I am advised that they are members of the Ottawa Tribe but are today inter-married with the Chippewa Tribe. The exact number is not known, but there are about 90 children from one group attending school.

    "2. The Beaver Island Indians are located on Beaver, North Fox, South Fox, Hog and High Islands in Lake Michigan within the territorial jurisdiction of the State of Michigan. They are descendants of the Chippewa Tribe and number between 200 and 300 persons. Mr. Cavill visited these islands in 1918 and compiled an appraisal and estimate of some 30 allotments."

Aside from this information there appears to be very little material available in the Interior Department bearing upon their band status. The Indian Office Mails and Files Division reported that they have no files on these groups. A search of the files on the Ottawa and Chippewa Indians generally for the last 20 years reveals no material on these Indians. The only evidence on the status of these Indians is the last treaty made with the Ottawa and Chippewa Indians, that of July 31, 1855 (11 Stat. 621), and the interpretations put upon it by the Department.

    The treaty of 1855 provided that various sections of land in Michigan should be set aside for a number of different bands. The third paragraph reads as follows:

    "For the Beaver Island Band-High Island, and Garden Island, in Lake Michigan, being fractional townships 38 and 39 north, range 11 west-40 north, range 10 west, and in part 39 north, range 9 and 10 west."
The fourth paragraph provides as follows:
    "For the Cross Village, Middle Village, L'Arbrechroche and Bear Creek bands, and of such Bay du Noc and Beaver Island Indians as may prefer to live with them, townships 34 to 39, inclusive, north, range 5 west-townships 34 to 38, inclusive, north, range 6 west-townships 34, 36, and 37 north, range 7 west, and all that part of township 34 north, range 8 west, lying north of Pine River."
There is no mention of the Nahma Indians as such but it may be that the reference to the "Bay du Noc" Indians refers to the Nahma Indians since the Town of Nahma is situated on the Big Bay due Not. In any case the Bay du Not Indians are not referred to as a band. This treaty was signed by five-groups of bands, namely, the Sault Ste. Marie Bands, Grand River Bands, Grand Traverse Bands, Little Traverse Bands, and Mackinac Bands. These five groups were composed of numerous subbands, each with a chief and his following. Possibly, the Nahma and Beaver Island Indians were such subbands. But neither in the signature to the treaty nor in the band rolls made for the payment of treaty annuities are these subbands designated by name.

    Article V of the 1855 treaty provides that the tribal organization of the Ottawa and Chippewa Indians "is hereby dissolved" and that future negotiations in reference to any matters contained in the treaty should be carried on only with those Indians locally interested. This article has been consistently interpreted by the Interior Department, for as far back as the available files go, as providing for the dissolution of all tribal relations, including band relations, and the Interior Department has refused to recognize any of the Ottawa and Chippewa groups as bands. A sample of this attitude, which is repeated in innumerable instances of correspondence with Ottawa and Chippewa Indians, in the letter of February 15, 1917, to Mr. Eugene Hamlin concerning his credentials as a representative of Ottawa and Chippewa Indians near Harbor Springs, Michigan:
 


 

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    "Receipt is acknowledged of your letter of February 9, 1917, in which you say that you have been chosen as a delegate by certain of the Ottawa and Chippewa Indians of Michigan, and ask whether or not your credentials will be properly recognized to the end that you may be accorded a hearing when you visit this city.

    "In answer you are advised that the Ottawa and Chippewa tribes of Indians many years ago became citizens of the United States and of the state in which they reside and are now not under the jurisdiction and control of the Government. The Office could not, therefore, save in a merely advisory capacity, interfere in any of your personal matters, nor could it approve your appointment or selection by a number of your people as a delegate. * * *"

    "Of course it is to be understood that you or any of your people who may visit this city do so on their own responsibility and must look to their own resources for their expenses, etc."

    The most recent test of the attitude of the Interior Department on the band status of the Ottawa and Chippewa groups occurred with relation to the Sault Ste. Marie Bands of Chippewa. A thorough investigation of the history of these bands was undertaken in an effort to prove their band status. It was found that a separate treaty was entered into with these bands subsequent to the July 31, 1855 treaty; that they were enrolled as separate bands in the money payment rolls of Ottawas and Chippewas from 1857 to 1867; that they retained their formal band organization down to the present time and continuous correspondence had been carried on between their band representatives and the Indian Office. However, in spite of this evidence tending to show their actual band status the Interior Department refused to accord them legal recognition as a band, in view of the dissolution of the Ottawa and Chippewa Tribe under the 1855 treaty and the cessation of the exercise of guardian over these Indians for nearly half a century.

    If the Sault Ste. Marie Bands were not in a position to be recognized as a band by the Interior Department it is out of the question to establish any existing band status for the Mahna and Beaver Island Indians in view of the paucity of any evidence on the subject and in view of the fact that there is no showing in any treaty that the Nahma Indians were even recognized originally as a band.

    There is no possibility of approaching organization for these Indians through their present land status as there are not existing reservations for these Indians. The land set aside under the third and fourth paragraphs of the 1855 treaty, quoted above, was entirely allotted and fee patented to individual Indians under other provisions of that treaty. The Executive order of August 9, 1855, provided for the withdrawal from sale of a number of sections and townships in Michigan to carry out the 1855 treaty, in which order High Island and Garden Island are named. However, all this land was disposed of by fee patenting in the manner provided by the treaty. No land of these Indians remains in trust status.

    Accordingly I am of the opinion that the Nahma and Beaver Island Indians do not enjoy a status either as recognized bands or as Indians on a reservation entitling them to be organized under the Indian Reorganization Act and .that the only method of providing benefits is through the selection of those Indians among them who are of one half or more Indian blood and the purchase of land for them and their subsequent organization.

                                                                                                                                       FREDERIC L. KIRGIS,

Acting Solicitor.

LEASING OF AGENCY AND SCHOOL RESERVES
BY TRIBAL COUNCIL REGARDLESS OF
CONTEMPLATED AGENCY USE


May 5, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    The proposed letter to Superintendent Roberts concerning the leasing of agency reserves by the Tribal Council, in reply to his letter of February 12, is returned herewith as I am of the opinion that the proposed letter does not provide sufficient in formation on this question, evidently a troublesome one on that reservation, and that the letter does not accurately express the legal position or policy of the Department on this matter.

    The question apparently raised by Superintendent Roberts is whether the Tribal Council can take the initiative in leasing agency and school reserves regardless of their contemplated use by the agency. The use of agency and school reserves is under the direct control of the agency and the council cannot stipulate their use. However, if the agency is not using the reserves for administrative or educational purposes, then, if the reserves are on tribal land, they may be leased by the Tribal Council, subject to departmental approval as provided by the tribal constitution. I am informed by representatives of the Land Division of the Indian Office that this is
 


 

749

OPINIONS OF THE SOLICITOR

MAY 6, 1937

the customary policy as regards this matter. The opinion of that division is expressed in a memorandum to Mr. Daiker dated February 26, 1937, contained in a second file which I am attaching hereto. From this file it appears that a letter dealing with this subject was sent from the Commissioner to Superintendent Roberts, and copies to other Sioux agencies in South Dakota, on March 17. This letter contains the following statement:

    "It is the opinion of the Office that lands set aside by Department order as reserves for the agency and school remain under the control of the superintendent until such time as they are formally restored to the use of the tribe."
It is believed that the requirement that the land be formally restored to the use of the tribe is not correct. The agency and school reserves at Pine Ridge are reserves of tribal land and not reserves owned exclusively by the Government. They were set aside merely by departmental order, except for those reserves on the portion of the reservation opened under the act of May 27, 1910 (36 Stat. 440), which were set aside by the Secretary under authority of that act. The lands in question were "bought and paid for" by the Indians, within the meaning of United States Code, Title 25, section 397. The tribe would therefore have authority to lease the land at any time that the agency no longer desires to use the land for the purposes for which it was reserved. The leasing of agency or school reserves to outsiders is not a use of the land for agency or school purposes, and the Council should participate in its leasing to the same extent as in the leasing of other tribal land. Since under the Pine Ridge constitution the council can itself make the lease rather than merely consenting to a lease made by the agency, the same procedure would apply whenever the opportunity arises of leasing agency or school reserves.

    There seems also to be a question of the privilege of leasing timber reserves by the Tribal Council. I am informed by representatives of the Forestry Division of the Indian Office that leasing of tribal timber reserves is accomplished in the same manner as the leasing of other tribal land. At Pine Ridge, therefore, the Tribal Council would be privileged to lease the timber reserves, with proper approval of the lease. As in the case of the agency and school reserves, the timber reserves on the Pine Ridge Reservation are of tribal land. They were set aside under the general authority of the Secretary except in the case of the opened portion of the reservation, in which case they were set aside under statutory authorization "for the use of the Pine Ridge Indians."

    It is suggested that the letter to Superintendent Roberts in reply to his letter of February 12 be revised to elaborate on the subject of leasing of these reserves in accordance with this outline of the legal situation.

Acting Solicitor.

LIQUOR TRAFFIC-ALASKA

56 I.D. 137

M-29147                                                                                                                                   May 6, 1937.

The Honorable
The Secretary of the Interior

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, my opinion has been requested on certain questions arising in connection with the formulation of legislation for the protection of the Indians and other natives of Alaska from the liquor traffic. The questions are stated and separately answered below.

    1. Does Congress have the authority to enact legislation providing against the sale of liquor to the natives of Alaska?

    The authority of Congress to enact legislation prohibiting the sale of liquor to the natives of Alaska is not in my opinion open to question. The source of the authority is twofold. In the first place, Alaska, although an organized territory (Steamer Coquitlam v. United States, 163 U.S. 346, 352; Nagle v. United States, 191 Fed. 141), is subject to the paramount and plenary authority resting in Congress to enact laws for the government of the territory and its inhabitants (United States v. Kagama, 118 U.S. 375, 379, 380; Talbott v. Silver Bow County, 139 U.S. 438). The territorial legislature, by an act approved May 4, 1933, established the Board of Liquor Control, consisting of the Governor, the Attorney General, the Treasurer, the Auditor, and the Territorial Highway Engineer. To this Board was given the authority to prescribe rules and regulations governing the "manufacture, barter, sale and possession of intoxicating liquors in the Territory of Alaska." See also the act of the territorial legislature approved March 14, 1935, by which the duties of the Board of Liquor Control were enlarged with directions to provide a system for local option elections. By the Act of Congress approved April 13, 1934 (48 Stat. 583), the practical effect of which was to place the Territory of Alaska on like footing with the sev-
 


 

750

DEPARTMENT OF THE INTERIOR

MAY 6, 1937

eral States in the matter of the regulation and control of the liquor traffic after repeal of the Prohibition Amendment, the creation of the territorial Board of Liquor Control was ratified and approved in the following language:

    "That the act of the Territorial Legislature of Alaska entitled 'An act to create the board of liquor control and prescribe its powers and duties,' approved May 4, 1933, contained in the Session Laws of Alaska, 1933, being chapter 109 thereof, at pages 193-194, be, and the same hereby is, ratified and approved, and the board thereby created shall have the powers and the authority conferred upon it by the said act. And any person, firm, or corporation, who shall violate any of the rules or regulations prescribed by the said board governing the manufacture, sale, barter and possession of intoxicating liquors in the Territory of Alaska, or the qualifications of those engaging in the manufacture, sale, barter, and possession of such Liquors in the said Territory, or the payment of license fees and excise taxes therefor, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 2072 of the Compiled Laws of Alaska."
    Under these enactments, the power to regulate and control the liquor traffic in Alaska now rests in the Territorial Board of Liquor Control. Assuming, without so deciding, that the regulative powers so conferred upon the Board extend to all inhabitants of the Territory, Indian and white, this would not preclude Congress from again legislating on the subject. As pointed out in United States v. Kagama, supra, the territorial governments owe all their powers to the statutes of the United States conferring upon them those powers which they exercise, and the powers so conferred are subject "to be withdrawn, modified, or repealed at any time by Congress." Accordingly, it is entirely competent for Congress, should it see fit so to do, to recall the powers now vested in the Territorial Liquor Board, and legislate directly on the subject of liquor control for all of the inhabitants of the Territory, irrespective of race or color.

    In the second place, it has been repeatedly held by the Department and the courts that the Indians and other natives of Alaska are wards of the United States and that they, like the Indians of the United States proper, are subject to such legislation as Congress shall see fit to enact for their benefit and protection. Alaska Pacific Fisheries v. United States, 248 U.S. 78; Territory of Alaska v. Annette Island Packing Co., 289 Fed. 671; Territory of Alaska v. Annette Island Packing Co., 6 Alaska Reports 585, 601, 604; United States v. Berrigan, 2 Alaska Reports 442; United States v. Cadzow, 5 Id. 125; Nagle v. United States, 191 Fed. 141, 142; 49 L.D. 592; 50 L.D. 315; 51 L.D. 155; 52 L.D. 597; 53 I.D. 593; 54 I.D. 15, 39.

    The Indian origin of some of the natives of Alaska has at times been questioned but the point is unimportant from the viewpoint of Congressional power. The treaty of March 30, 1867 (15 Stat. 539), by which the Territory of Alaska was ceded to the United States, makes no distinction based on racial origin but declares in Article III that the "uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to the aboriginal tribes of that country." And in the opinion of the Solicitor for the Department, dated February 24, 1932 (53 I.D. 593), it is aptly stated:

    "Some disposition has been shown to make a distinction between the Indians of Alaska and other natives, particularly the Eskimos. It has been asserted by ethnologists that the Eskimos are not of Indian but more likely are of Manchurian and Chinese origin. After the Indians, the Eskimos of Alaska are probably the most advanced of the natives and for this reason these two races are best known and are more frequently referred to than the other natives such as the Aleuts, Athapascans, Tlinkets, Hydahs and other natives of indigenous race inhabiting the Territory of Alaska. The Eskimos are said to know nothing of their early predecessors. The origin of the natives of Alaska will possibly some day become known, but whether that comes to pass or not the fact is that they are all wards of the Nation and are treated in material respects the same as are the aboriginal tribes of the United States."
    The foregoing decisions refer to numerous instances in which Congress has recognized the natives of Alaska as wards of the United States. To these may be added the recent act of May 1, 1936 (49 Stat. 1250), which finally and definitely recognizes the wardship status of the natives of Alaska by extending to them various provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and by authorizing the Secretary of the Interior to create reservations for them out of the public lands in the Territory of Alaska. While further review of the subject seems unnecessary, it may not be amiss to point out that the situation with respect to the natives of Alaska is similar to that of the various Indian pueblos in New Mexico, who, prior to annexation of the territory occupied by them to the United States, were under Spanish and Mexican dominion. In United States v. San-
 


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