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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?

    "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. * * *"

    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
 

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
 

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."

    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,

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
 

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
 

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
 

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,

 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.

(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.

 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
 

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,
 

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,

    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-
 

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,

    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.
 

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,

 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,"
 

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,

 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
 

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."

"* * * 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
 
 

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."

    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.

    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,

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

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 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."

    "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."

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. * * *"

    "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."

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'."

    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),
 

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."

"* * * 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."

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 <