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776

DEPARTMENT OF THE INTERIOR

AUGUST 7, 1937

agreement of the nation itself or by the superior power of the republic it is taken from it. Neither the authority nor the power of the United States to license its citizens to trade in the Creek Nation, with or without the consent of that tribe, is in issue in this case, because the complainants have no such licenses. The plenary power and lawful authority of the government of the United States by license, by treaty, or by act of Congress to take from the Creek Nation every vestige of its original or acquired governmental authority and power may be admitted, and for the purposes of this decision are here conceded. The fact remains nevertheless that every original attribute of the government of the Creek Nation still exists intact which has not been destroyed or limited by act of Congress or by the contracts of the Creek tribe itself.

    The foregoing language with respect to the Creek tribe is equally applicable to any other tribe in the absence of expressed legislation or treaty provisions restricting the right of an Indian tribe to exclude outsiders from the land which it occupies.

    In the case of Maxey v. Wright (3 Ind. T. 243. Affirmed 105 Fed. 1003), the court declared:

    " * * * in the absence of express contradictory provisions by treaty, or by statute of the United States, the Nation (and not a citizen) is to declare who shall come within the boundaries of its occupancy, and under what conditions." (at page 36.)
    It has been held in an opinion of the Attorney General that,
    "So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent." (1 Op. Atty. Gen. 465, 466).
    The authority of an Indian tribe to remove outsiders from its reservation is based upon two grounds. In the first place, the tribe has the same right which any owner or possessor of land has, the right of protecting its possession, using reasonable force when necessary to do so. In the second place, the tribes, as indicated in the opinions above cited, has certain elementary governmental rights, one of which is the right to exclude from its territory nonmembers whose actions are considered injurious to the interests of the tribe. The legal authorities on both of these points are exhaustively considered in the opinion of the Solicitor (M. 27781) approved on October 25, 1934, at pages 5 l-68.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
CLAIM FOR DAMAGES TO TRIBAL LAND
BY OCCUPANT--USUFRUCTUARY RIGHTS
DISCUSSION
August 11, 1937.
Memorandum for the Commissioner of Indian Affairs:

  Attention: Assistant Commissioner Zimmerman.

    The attached letter to Superintendent Dady relative to damages for injury to land on the Soboba Reservation is returned for further consideration. The position taken by Superintendent Dady and approved in the proposed letter, that injury to tribal land creates a claim for damages on the part of the occupant of such land exclusively, is in conflict with the principle embodied in a long line of decisions, cited and discussed at pages 60 to 64 of the opinion on "Powers of Indian Tribes" (M-27781), approved October 25, 1934. All the decided cases take the view that the occupant of tribal land has no vendible interest therein but merely a usufructuary right, and that control over the land remains in the tribe save as such control has been limited by certain statutes affecting the sale and leasing of tribal land.

    Incidentally, the position taken in the attached letter is entirely inconsistent with the position taken by Superintendent Dady and concurred in by the Indian Office in the Palm Springs situation where the claim of the individual to rental accruing from tribal land has been denied. The claim of an individual to damages for a permanent injury to tribal land is much weaker, in my opinion, than a claim for rentals. The collection of rentals does not affect the interest that other members of the tribe may subsequently hold in the land affected. Permanent injury to the land does affect the interest that may be held in the future by members of the tribe other than the present occupant.

    I think that it is within the competency of the tribe to consent, if it so chooses, to the payment of part or all of the offered damages to the present occupant of the land. In the absence of such consent I do not believe that the Department has authority to grant a waiver of tribal claims for dam-
 



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OPINIONS OF THE SOLICITOR

AUGUST 13, 1937

ages, which is what the attached letter purports to do.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
SUFFRAGE--DISCRIMINATION AGAINST
INDIANS
August 13, 1937.
Memorandum for the Secretary:

    In accordance with the memorandum signed by you on July 29, 1936, a survey has been made by the Indian Office and by this office of the extent of discrimination against Indians in the exercise of the franchise. The results of this study are contained in the attached "Analysis of Indian Voting Rights in the Various States". The summary in this analysis shows that voting rights are denied to Indians in seven States, namely, Arizona, Colorado, Idaho, New Mexico, North Carolina, Utah and Washington.

    In Idaho, New Mexico and Washington the State constitutions contain specific provisions denying the vote to "Indians not taxed." These provisions are, in my opinion, violative of the guarantees contained in the 15th Amendment. It is my recommendation that test cases be instituted in cooperation with the Indians concerned and with such aid as the Department of Justice may feel free to offer, in one or more of these three States for the purpose of challenging the constitutionality of these provisions.

    In the State of Colorado it appears that Indians are denied voting rights, under an opinion of the State Attorney General, on the assumption that they are not citizens. A communication from this Department to the State Attorney General indicating the inaccuracy of this assumption might help in vindicating Indian franchise rights. It is my recommendation that such a communication be sent.

    Similarly in the State of Utah, Indians residing on reservations are denied voting rights, under an opinion of the State Attorney General, on the assumption that they are not residents of Utah. The inaccuracy of this assumption likewise might properly be brought to the attention of the appropriate State officers.

    Discrimination in the States of Arizona and North Carolina is somewhat more subtle, and for the present I withhold any specific recommendations on procedures to be followed in these two States, awaiting the outcome of our efforts in the other five discriminating States.

    While proceeding with the foregoing steps, I would suggest that a request for a formal Solicitor's opinion on the question of the constitutionality of provisions denying voting rights to Indians should be submitted by the Commissioner. A Solicitor's opinion prepared in answer to such request may prove useful in the course of litigation.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
Attachment.

ANALYSIS OF INDIAN VOTING RIGHTS
IN THE VARlOUS STATES

Arizona

    Superintendent Fryer of the Navajo Agency reports that reservation Indians in Arizona are denied the franchise under a provision of the State constitution (Article VII, section 2), which denies the franchise to "persons under guardianship." There is transmitted a transcript of the case of Porter v. Hall, 271 Pac. 411, holding that Pima Indians subject to Federal jurisdiction are not entitled to vote.

    The denial of the franchise to reservation Indians is confirmed by letters from Superintendent Gensler of the Colorado River Agency, Superintendent Donner of the Fort Apache Agency, and Superintendent Robinson of the Pima Agency.

    Superintendent Hutton of the Hopi Agency reports: "One of the judges informed me personally a few days ago that as far as they could find out that the Indians could vote if they so desired." No evidence is presented for this conclusion.

    Superintendent Farrow of the Paiute Agency, Cedar City, Utah, reports that Indians are largely prevented from voting in Arizona by a constitutional requirement that electors must be able to read the constitution of the State of Arizona.

California

    Superintendent Gensler of the Colorado River Agency reports that the Indians of California are accorded full voting rights. A similar report is made by Superintendent Nash of the Sacramento Agency.

    Superintendent Dady reports that Indians in southern California have never been denied the right of voting in State and local elections and transmits an opinion of the State Attorney General, dated November 18, 1936, upholding the rights of Indians to vote, together with similar opinions from various district attorneys.
 



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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1937

Colorado

    The Attorney General in a letter to Superintendent Wattson of the Consolidated Ute Agency, dated November 24, 1936. reports, "It is our opinion that until Congress enfranchises the Indian, he will not have the right to vote." The opinion assumes that Indians are not citizens. In a further letter, dated January 28, 1937, the Attorney General of the State expresses his willingness to consider any brief or memorandum of authorities that may be submitted by the Indian Office.

Florida

    Superintendent Scott of the Seminole Agency reports that Indians in Florida are entitled to vote on the same basis as whites. He points out that the Indians do not in practice pay poll taxes since they "do not consider the voting privileges of sufficient importance to induce them to pay this poll tax." Superintendent Scott transmits an opinion of the State Attorney General, dated March 13, 1934, upholding the voting rights of Florida Indians.

Idaho

    Superintendent Gross of the Fort Hall Agency reports that the franchise is denied to Indians of Idaho under section 3, article VI of the Idaho constitution which provides: "No person is permitted to vote, serve as a juror, or hold any civil office who is under guardianship, * * * nor Indians not taxed, who have not severed their tribal relations and adopted the habits of civilization, either vote, serve as jurors, or hold any civil office." Superintendent Gross reports that steps are being taken to amend the State constitution in this respect. Attention is called to a letter signed by Acting Secretary of the Interior, Charles West, under date of February 27, 1936, to Hon. C. Ben Ross, Governor of Idaho, File Reference: Miscl. 67810-35 FHD. Opinions of the State Attorney General and the County Attorney at Blackfoot are transmitted. The State Attorney General holds that any disqualification of Indians would be in violation of the Fifteenth Amendment. The County Attorney refuses to abide by this ruling.

    Superintendent McNeilly of the Western Shoshone Agency reports: "In the State of Idaho, however, while we have had a few Indians voting in past years, the State constitution forbids the right of franchise to the Indians who live on the reservation and who have not severed their tribal relation. I would recommend, therefore, that action be taken, looking toward an amendment to the constitution of the State of Idaho which would permit Indians living on the reservation and still under their tribal laws and maintaining their tribal interests, the right to vote on the same basis as the other citizens of the State."

    Superintendent Wilson of the Coeur d'Alene Indian Agency reports that the Coeur d'Alene, Kootenai, and Nez Perce Indians are not denied the right to vote and that the question of whether Indians are ineligible by reason of being under guardianship has apparently never been raised.

Iowa

    Superintendent Nelson of the Sac & Fox Sanatorium reports that there is no discrimination against voters in Iowa.

Kansas

    Superintendent Bruce of the Potawatomie Agency reports that Indians of Kansas vote on the same terms as whites.

Michigan

     Superintendent Christy of the Tomah Indian School reports that Indians are accorded full franchise rights in Michigan.
 
 

Minnesota

    Senior Clerk J. V. King of the Consolidated Chippewa Agency reports that no cases have been discovered in which Indians have been denied thefranchise.

    A similar report is made by Superintendent Balmer of the Pipestone Indian School, and by Superintendent Bitney of the Red Lake Agency. Superintendent Bitney adds the qualification that in elections on bond issues and similar referenda the Indians of the Red Lake Reservation, not being taxpayers, are not eligible to vote.

Mississippi

    Superintendent Rector of the Choctaw Agency reports: "So far as I can ascertain there is no discrimination against Indians in the matter of voting although there are only one or two who keep their poll taxes paid and comply with the law in regard to voting. The Indians in Mississippi can, of course, be prevented from voting by insisting on educational qualifications; the same as is done in the case of Negroes, but an Indian who can read and write, pays his poll taxes and is registered is entitled to vote."
 



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OPINIONS OF THE SOLICITOR

AUGUST 13, 1937

Montana

    Superintendent Yellowtail of the Crow Agency reports that Montana Indians have full voting rights.

    A similar report is made by Superintendent Shotwell of the Flathead Agency, and by Superintendent Woolridge of the Rocky Boy's Agency.

Nebraska

    Complete recognition of Indian voting rights is reported by Superintendent Parker of the Winnebago Agency. A letter from the Attorney General of the State, dated November 20, 1936, states that "such Indians as are entitled to claim citizenship of the United States would be entitled to vote within this State, provided they have the additional qualifications as to age and residence. There are certain Federal laws relative to the United States citizenship of Indians and when these laws have been complied with, it is our understanding that Indians are entitled to vote in Nebraska. State ex rel. Crawford v. Nebraska, 37 Neb. 299, 55 N.W. 1086." A further communication from Assistant Attorney General Stubbs, dated November 27, 1936, cites the additional case of State v. Frazier, 28 Neb. 438, 44 N.W. 471.

    Superintendent Bruce of the Potawatomi Agency, Mayetta, Kansas, confirms the report that Indians in Nebraska have full voting rights.

Nevada

    Superintendent Bowler of Carson Agency reports: "So far as we have been able to discover there is no discrimination whatever either in law or in practice against Indians within this jurisdiction in the matter of exercising their elective
franchise."

    "There are no discriminatory laws denying the franchise to Indians. In Nevada the Attorney General has repeatedly ruled that Nevada Indians have full rights to vote in any election."

    Superintendent McNeilly of the Western Shoshone Agency confirms the report that Nevada Indians are permitted to vote without discrimination.

New Mexico

    Superintendent Fryer of the Navajo Agency reports that the Navajos in New Mexico are not permitted to vote in any elections. He further reports that the two trial courts in the State have rendered conflicting opinions on the constitutionality of the provision of Article VIII, section 1 of the State constitution denying the franchise to "Indians not taxed."

    Superintendent Stover of the Jicarilla Agency writes: "I find no indication of the Indians of this jurisdiction being refused the elective franchise and of any desire on their part to use it." Superintendent Stover transmits a communication from the Attorney General of New Mexico, dated November 14, 1936, calling attention to the provisions of the State constitution and State election law denying the franchise to "Indians not taxed."

    A similar communication is reported by Superintendent M&ray of the Mescalero Agency.

    The special attorney for the Pueblo Indians, Mr. Brophy, states: "Pueblo Indians residing upon their respective reservations who are wards of the United States and who do not pay real property taxes are denied the right of elective franchise in New Mexico, even though such persons otherwise are qualified to vote." Mr. Brophy cites the relevant provisions of the New Mexico constitution and election law and refers to a statement by Merriam in the volume on Indian Administration suggesting that this discrimination is in violation of the Federal Constitution. Mr. Brophy further points out that there is no case, Attorney General's opinion, or opinion of a county attorney covering this question. His letter points out that Indians pay sales taxes in New Mexico on purchases made off the reservation.

New York

    Superintendent Harrison of the New York Agency reports that there is no discrimination against Indian voters in the State of New York.

North Carolina

    Superintendent Foght reports that while there is no legislative discrimination against Indians, in practice Indians are excluded from the franchise under color of a provision of the State election law declaring: "A person desiring to register must be able to read and write any section of the Constitution in the English language and must show to the satisfaction of the registrar his ability to read and write any such section when he applies for registration and before he is entitled to be registered." Commenting upon this provision Superintendent Foght states: "We have had Indian graduates of Carlisle, Haskell and other schools in instances much better educated than the registrar himself, turned down because they did not read or write to his satisfaction."
 



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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1937

North Dakota

    Superintendent Lippert of the Standing Rock Agency, Superintendent Beyer, Superintendent Gray of the Fort Totten Agency and Superintendent Balmer of the Turtle Mountain Agency, all report that there is no discrimination against Indians in North Dakota with respect to voting rights.

Oklahoma

    Superintendent Ellis of the Osage Agency reports that Indian voting rights in Oklahoma are fully recognized. A letter to this effect by the Osage Tribal Attorney is transmitted.

    A similar report is made by Superintendent McGowan of the Kiowa Agency and Assistant Superintendent McMillan of the Five Civilized Tribes Agency.

Oregon

    Superintendent Elliott of the Warm Springs Agency reports that the right of Indians to vote is not questioned.

    This is confirmed in a communication from Superintendent Crawford of the Klamath Agency.

South Dakota

    Superintendent Hyde of the Crow Creek Agency reports that no discriminatory laws denying the franchise to Indians prevail in his jurisdiction.

    This is confirmed by reports from Superintendent Roberts of Pine Ridge Agency and Superintendent Dickens of Cheyenne River Agency.

Utah

    The Attorney General of Utah in a letter transmitted to Superintendent Wright of the Uintah & Ouray Agency, dated January 23, 1937, holds that Indians residing on an Indian reservation within the State are not residents of Utah and cannot vote, but that Indians residing away from a reservation are entitled to the franchise. An earlier communication of the Attorney General of Utah, dated July 8, 1935, to Superintendent Cross of the Fort Hall Agency, holds, after examining the relevant authorities, that Indians have the right to vote in Utah. This opinion does not consider the question of residence.

    Superintendent Farrow of the Paiute Agency states that he has been told that there are no discriminative rules against Indians, but transmits a memorandum from the legal authorities of Iron County to the effect that Indians are not citizens.

Washington

    Superintendent Meyer of the Coleville Agency submits an opinion of the State Attorney General, dated June 15, 1916, holding that a provision of the State constitution denying the franchise to "Indians not taxed" is in conflict with the Fifteenth Amendment of the United States Constitution and is therefore invalid unless construed to refer only to noncitizens. There is transmitted a further opinion of the State Attorney General, dated April 1, 1936, stating: "We are of the opinion, taking into consideration the Fifteenth Amendment and the act of .June 2, 1924, that it is doubtful whether the provisions of Article VI of the State constitution with respect to Indians are now in effect. But whether or not these provisions are in effect we are further of the opinion that the payment of sales taxes and gasoline tax is a sufficient qualification on the part of an Indian offering to vote to comply with the provisions of Article VI as amended. If an Indian can show that he has paid such taxes to the State, and possesses the other qualifications required in Article VI as amended, including registration if that is required, such Indian voter should be by no means disqualified as an elector."

    Superintendent Meyer himself reports: "In so far as I know none of the Indians of the Coleville and Spokane Reservations who could meet the literary test have been denied the right to vote."

    Superintendent Johnson of the Yakima Agency reports that he has been "unable to find any case in which the Yakima Indians have been denied the privilege of voting. As a general rule very few of our Indians vote. This is due primarily to the belief, especially among the older people, that voting may in some way subject them to taxation." Superintendent Johnson transmits a copy of the opinion of the State Attorney General, rendered June 15, 1916, which is referred to above.

    Superintendent Nicholson of the Taholah Agency reports that Indians have been accorded full voting rights for many years except that officials of Jefferson County in March 1936 denied the franchise to certain Indians of the Quinaielt Reservation. An extensive correspondence is transmitted including a communication from the Attorney General, dated February 26, 1936, and an opinion dated April 1, 1936, upholding the right of Indians to vote upon proof of payment of sales or gasoline taxes. There is also transmitted a copy of a letter by the Prosecuting Attorney of Jefferson County, dated August 18, 1936, refusing to follow the opinion of the State Attorney General.
 



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OPINIONS OF THE SOLICITOR

AUGUST 13, 1937

Wisconsin

    It is reported by Superintendent Cavill of the Great Lakes Agency that no discrimination exists against Indians in the exercise of the franchise. A similar report is made by Superintendent Fredenberg of the Kashena Agency. Superintendent Christy of the Tomah Indian School reports that there is no discrimination against Indians in Wisconsin with respect to voting rights. He transmits the following communication from the Office of the Attorney General of Wisconsin: "Your letter of November 10 to the Attorney General has been handed to me for reply and in answer thereto will say that there is no discrimination against Indians in the exercise of their elective franchise in this State either by legislation or by practice in the various counties. All of them who are eligible for several years past have been diligently urged to vote by candidates in all counties. (Sgd.) W. J. Kershaw."

SUMMARY

    The reports indicate entire absence of discrimination in the following 16 States:

California, Florida, Iowa, Kansas, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, North Dakota, Oklahoma, Oregon, South Dakota, Wisconsin.
The reports indicate that discrimination against Indians in the exercise of the franchise is found in the following 7 States:
Arizona, Colorado, Idaho, New Mexico, North Carolina, Utah, Washington.
    Of these 7 States the franchise is denied to Indians in 3 States, namely, Idaho, New Mexico, and Washington, by virtue of specific provisions of the State constitution denying the vote to "Indians not taxed."

    In the State of Arizona the franchise is denied Indians on the ground that they are "under guardianship" within the meaning of the provision of the State constitution denying the right to vote to Persons under guardianship.

    In the State of Colorado Indians are denied voting rights, under an opinion of the State Attorney General, on the theory that they are not citizens.

    In the State of Utah Indians residing on reservations are denied voting rights, under an opinion of the State Attorney General, on the ground that they are not residents of Utah.

    In the State of North Carolina there is general discrimination against Indian voters by voting officials who make use of a State constitutional provision restricting the franchise to persons who can show "to the satisfaction of the registrar" their ability to read and write any section of the constitution.

INHERITED LANDS--REMOVAL OF RESTRICTIONS

August 13, 1937.
Memorandum to the Assistant Secretary:

    I am transmitting without signature the attached draft of Indian mining regulations approved by the Assistant Commissioner of Indian Affairs and the Director of the Geological Survey. The following points, in my opinion, require some revision:

    1. The provision in section 4 that "the Superintendent shall execute leases on behalf of incompetent and minor allottees" overlooks the fact that a great many tribal constitutions, approved by this Department, provide that the tribal council may appoint guardians for minors and mental incompetents. Where action is taken under this power and the ordinances or resolutions of the tribal council are ratified by the Department, it would appear that the superintendent should no longer execute leases on behalf of incompetents and minor allottees for whom guardians have been properly designated but that such guardians should act in this capacity. It is understood, of course, that the superintendent will have the same power to approve or reject a lease made by a guardian as he has with respect to a lease made by an adult Indian. The superintendent, however, should not have power to lease a minor's allotment over the protest of the minor`s guardian. Such power cannot be justified by the terms of the statute (act of March 3, 1909; 35 Stat. 783), which provides that the allottee shall make the lease, nor can it be justified by the theory that the superintendent acts as a guardian for the child if another guardian has been duly appointed.

    Aside from this objection to the substance of the present regulation, it may be noted that the use of the term "incompetent" in this section is unfortunate. If it is intended to cover Indians who are non compos mentis, that phrase should be used. If on the other hand, it is intended to cover Indians who have not received fee patents or certificates of competency the section could not be supported under existing law, since that law declares that leases shall be made by allottees and at the
 



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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1937

time of enactment of the statute the great majority of allottees affected by the law had not received patents in fee or certificates of competency. The right of leasing which the statute confers upon allottees cannot, therefore, be restricted to allottees who have received certificates of competency ot patents in fee.

    2. Provisions made in section 5 and following sections with respect to allotted lands fail to take account of the fact that many tribal constitutions approved by the Department provide for the transfer of lands from an "allotment" status to an "assignment" status. It is believed, therefore, that the present regulations should be expanded to include mineral leases made by individual assignees on assigned land. In this connection consideration should be given to such constitutional provisions as the following, taken from the Constitution of the Rosebud Sioux Tribe, approved December 20, 1935: "A member receiving an 'exchange assignment' shall receive the right to lease such assigned lands or interests under the same terms as governing the leasing of allotments." (Article 8, section 8)

    A number of constitutions provide that in leasing exchange assignments preference should be given to Indian cooperative associations or to individual members of the tribe. Where such provisions exist the rule established in section 3 of the proposed regulations, that leases will be offered in every instance to "the highest responsible bidder," will require modification as a matter of law. It is suggested that this provision may require qualification in other cases as well if it is considered that the policy of granting preference to Indian cooperative associations and to individual Indians should be carried out in the leasing of allotments as well as in the leasing of assignments.

    3. The provision in section 8 of the regulations that leases may be made over the objection of heirs holding a minority interest raises serious legal questions. Related questions in connection with grazing and agricultural leases have been considered in this office. It is therefore suggested that any instructions issued under section 8 should be considered in this office.

    4. In view of the policy established by the constitutions of several organized tribes that Indian cooperatives and individuals shall have preference in the issuance of leases, it is suggested that section 12 of the proposed regulations should be modified to provide for proper exceptions in such cases.

    5. Sections 25 and 26 of the proposed regulations contemplate that leases may be affected by Federal and State authorities, but fail to note that leases may also be affected by tribal authorities. Various tribal constitutions provide (a) for the regulation and protection of .natural resources on the reservation, (b) for the regulation of trade and commerce on the reservation, (c) for the imposition of license fees on non-Indians doing business within the reservation, and (d) for the regulation of the use and disposition of property on the reservation. Lessees will presumably be subject to tribal ordinances in these fields regardless of what the departmental regulations say on the subject, but for the sake of accuracy and in order to give fair notice to lessees sections 25 and 26 should be modified so as to refer to powers which may be exercised by the governing bodies of the organized tribes in this field.

    It will be noted that nearly all of the foregoing criticisms relate to organized tribes. It would be possible to approve the present regulations, subject to changes suggested in section 4, if they were limited to tribes not organized under the act of June 18, 1934. If, however, it is thought that a single set of regulations should apply both to organized and to unorganized tribes, changes should be made in these regulations along the lines above noted.

                                                                                                                                                        F. S. COHEN,

Acting Solicitor.
SUGGESTED SUBSTANTIVE AND WORDING
CHANGES IN REVISED REGULATIONS ON
LEASING ALLOTTED LANDS FOR MINING
PURPOSES
August 14, 1937.
Memorandum /or the Commissioner of Indian Affairs:

    The revised "regulations governing the leasing of restricted allotted Indian lands for mining purposes" submitted by your office on June 10 were passed by this office without objection and signed by Assistant Secretary Chapman on August 5. There are however, a number of points in connection with these regulations which, while not serious enough to justify disapproval of the regulations, should be carefully considered in your office. If you decide that all or any of these criticisms are well taken, you may wish to submit amendments to the regulations at this time so that corrections may be made in the regulations before they are mimeographed and distributed.

    1. Section 4 of the regulations refers to minor and "incompetent" Indians. The word "incompetent" has been used in various senses and if, as I believe, the word is here used in the sense of Indians non compos mentis, I would suggest that the
 



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OPINIONS OF THE SOLICITOR

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term should be clarified by adding in parenthesis that legal phrase or some simpler phrase such as "by reason of mental incapacity".

    2. Section 4-in providing that "the Superintendent shall execute leases on behalf of incompetent and minor allottees" apparently overlooks the fact that a great many tribal constitutions, approved by this Department, provide that the tribal council may appoint guardians for minors and mental incompetents. Where action is taken under this power and the ordinances or resolutions of the tribal council are ratified by the Department, it would appear that the Superintendent should no longer execute leases on behalf of incompetents and minor allottees for whom guardians have been properly designated but that such guardians should act in this capacity. It is understood, of course, that the Superintendent will have the same power to approve or reject a lease made by a guardian as he has with respect to a lease made by an adult Indian. The Superintendent, however, should not have power to lease a minor's allotment over the protest of the minor's guardian.

    3. Provisions made in section 5 and following sections with respect to allotted lands do not cover the leasing of "assignments". I suggest that either in the present regulations or in a supplement thereto which should receive early consideration, some statement should be included as to the manner of handling mineral leases of assigned lands. This is something about which Indians have a normal curiosity and it will be of assistance in your endeavor to bring about exchanges of allotted and heirship lands for "exchange assignments" if there are specific regulations covering the execution of mineral leases on such assigned lands. It will be noted that most constitutions provide that in leasing exchange assignments preference should be given to Indian cooperative associations or individual Indians. If this same policy is to be applied to allotted lands, the provision in section 3 of the regulations that leases will be offered to "the highest responsible bidder" will require modification. On the other hand, you may desire as a matter of policy to make a distinction in this respect between allotted and assigned lands.

    4. If such a policy of encouraging Indian cooperatives in tribal use of reservation resources is adopted, you may wish to qualify section 12 of the proposed regulations establishing fixed limits on the amount of land which any single lessee may hold, so as to permit the tribe as a whole or some associations set up for a specific purpose, to manage larger areas of land than those specified.

    5. Sections 25 and 26 of the regulations contemplate that leases may be affected by regulations of Federal and State authorities but fail to note that leases may also be affected by regulatory measures taken by tribal authorities. Various tribal constitutions provide (a) for regulation and protection of natural resources on the reservation, (b) for the regulation of trade and commerce on the reservation, (c) for the imposition of license fees on non-Indians doing business within the reservation, and (d) for the regulation of use and disposition of property on the reservation. In some cases these powers are subject to departmental review, in other cases they are not so subject. While the failure of these regulations to mention such powers will not affect tribal rights in the matter, it does seem that the lessee who is being warned of State and Federal police power should also be warned of tribal police power.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
SALES--HEIRSHIP LANDS
August 14, 1937.
Memorandum for the Commissioner of Indian Affairs:

    At your suggestion I have given some consideration to the question whether restricted Indian land in heirship status may be sold to Indian tribes or to individual Indians by the Secretary of the Interior.

    The statute governing sales of restricted heirship lands by the Secretary of the Interior (U.S.C., Tit. 25, Sec. 372), reads as follows:

    "SEC. 372. Ascertainment of heirs of deceased allottees; settlement of estates; sale of lands; deposit of Indian moneys.

    "When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent, he may, in his discretion, cause such lands to be
 
 



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sold: Provided, That if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor. All sales of lands allotted to Indians authorized by any other Act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of 10 per centum of the purchase price at the time of the sale. Should the purchaser fail to comply with the terms of sale prescribed by the Secretary of the Interior, the amount so paid shall be forfeited; in case the balance of the purchase price is to be paid on such deferred payments, all payments made, together with all interest paid on such deferred installments, shall be so forfeited for failure to comply with the terms of the sale. All forfeitures shall inure to the benefit of the allottee or his heirs. Upon payment of the purchase price in full the Secretary of the Interior shall cause to be issued to the purchaser patent in fee for such land: Provided, That the proceeds of the sale of inherited lands shall be paid to such heir or heirs as may be competent and held in trust subject to use and expenditure during the trust period for such heir or heirs as may be incompetent as their respective interests shall appear: * * *."

A similar provision covering lands disposed of by will is found in United States Code, title 25, section 373, which contains the provision:
    "That the approval of the will and the death of the testator shall not operate to terminate the trust or restricted period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit."
    The foregoing provisions both with respect to intestate succession and with respect to testamentary succession are found in the act of June 25, 1919 (36 Stat. 855, as amended).

    The words of the statute are clear. The statute authorizes the Secretary of the Interior to sell decedent's estates for the benefit of the heirs. It does not require the consent of the heirs themselves or any number of them to validate the transaction. The sale is to be upon such terms as the Secretary may fix except in such particulars expressly fixed by the statute as the requirement of a deposit of 10 percent of the purchase price at the time of the sale. There is no statutory requirement that the sale be at auction or that the land be sold to the highest bidder. There is no statutory limitation of the period during which payments may be extended. There is no statutory prohibition against granting preference to Indian tribes, to interested heirs, or to other Indians who may be desirous of purchasing the land in question. All these matters the statute leaves to the discretion of the Secretary of the Interior.

    It is entirely proper that this discretion should be exercised in accordance with the public policy that Indian lands shall, so far as possible, be preserved in Indian ownership. That. policy was administratively established in Order No. 420 of the Secretary of the Interior dated August 14, 1933, which prohibited all sales of restricted Indian lands unless exceptional circumstances were shown. The policy was given congressional sanction in the act of June 18, 1934. One of the purposes specified in the title of that act is "to conserve and develop Indian lands and resources." Section 1 of the act prohibited further allotments. Section 2 extended indefinitely existing trust periods and periods of restriction upon alienation. Sections 4 and 5 of the act prohibited sales of Indian land except to Indian tribes or to the United States for the benefit of Indian tribes or individuals. In view of this established public policy it would be entirely permissible for the Secretary of the Interior, acting under the authority of United States Code, title 25, sections 372 and 373, to provide by appropriate regulations for the sale of heirship lands to Indian tribes or to the United States in trust for Indian tribes or individuals, on reservations where the act of June 18, 1934, is in force, and on reservations where that act is not in force, to provide for sales of heirship lands directly to Indian tribes or to individual Indians. In making such sales it would be a useless formality to ask for bids from non-Indians if it has been determined that the land is not to be sold to non-Indians.

    There is, to be sure, an implication in the statute that the sale by the Secretary shall be a bona fide sale and not a gift. Therefore a transaction involving a purely nominal consideration would be invalid. If. however, the consideration bears a reason able relation to the current or prospective income value of the property to the heirs and if reasonable care is taken to secure for the heirs the highest
 



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OPINIONS OF THE SOLICITOR

AUGUST 14, 1937

selling price which can be fairly obtained within the limited market in which sales are permitted, I can see no valid basis of objection to the transaction.

    In fixing the fair selling price of heirship lands, it would be proper to use the method of arbitration instead of relying upon bids or formal land appraisals to fix this price. The method of arbitration affords protection to the buyer and the seller, and the fiduciary relation of the Secretary extends equally to both parties to the transaction.

    It will be noted that section 372 of United States Code, title 25, requires that upon completion of the payment of the purchase price a patent in fee shall issue to the purchaser. Does this requirement make impossible sales to individual Indians, to Indian tribes, or to the Secretary of the interior in trust for such tribes or individuals?

    So far as direct sales to Indian tribes are concerned, there is nothing to prevent the issuance of a patent in fee to an Indian tribe. The issuance of patents to an Indian tribe is provided for by the following statutes: Act of January 12, 1891 (26 Stat. 712), providing for patents to Mission Bands; treaty with Cherokees, December 29, 1835 (7 Stat. 478), granting land to Cherokee Nation.

    After issuance of such patent, however, an organized tribe might, under section 5 of the act of June 18, 1934, surrender legal title to the land, if it so chose, to the United States, retaining equitable ownership of the land. A tribe not within the provisions of that act could not surrender such legal title.

    With respect to the sale of land to individual Indians, the requirement of section 372, that a fee patent be issued to the purchaser of the land upon the payment of the purchase price in full, raises serious questions.

    In the first place, it may be asked whether on reservations not subject to the act of June 18, 1934, a fee patent must be issued if the purchaser is an Indian who, in the judgment of the Secretary of the Interior, should be protected against loss of land by means of a trust patent or restrictions on alienation. I am forced to answer this question in the affirmative since the language of the statute is clear and there is no room for considerations of policy in construction. The same question arises in the case of sale of land to an Indian cooperative group. Under the controlling statute a fee patent for such land must be issued to the group, when payments for the land have been fully completed.

    In those cases where land is sold to an individual Indian or cooperative or to a tribe not under the act of June 18, 1934, the issuance of a fee patent will raise the question of taxation. It is well settled that land thus acquired by individual Indians would be taxable, and it is possible that the same rule would apply to cooperatives and tribes. (See Solicitor's Opinion of December 13, 1934 (M. 27810), question 10).

    It should be noted, however, that the question of taxation does not arise until a fee patent has been issued, that a fee patent cannot issue until the last installment of the purchase price has been paid, and that there is nothing to prevent the Secretary from agreeing to terms of the sale which postpone the final installment to a distant date. Meanwhile legislation may be sought to permit tribes purchasing land in this manner to receive a trust patent exempt from taxation.

    The necessity for issuance of a fee patent which arises when heirship land is sold by the Secretary of the Interior does not arise where the conveyance of land is made by all the interested heirs. Such conveyance, made on a restricted deed form, conveys only the same interest as is held by the heirs.

    The question of issuing fee patents to Indian purchasers of land does not arise on reservations subject to the act of June 18, 1934, since on such reservations direct sales to individual Indians are prohibited. A related question, however, arises with respect to sales of land to the United States in trust for a tribe or individual Indian, under the provisions of section 5 of the said act, which authorizes the Secretary of the Interior

"to acquire through purchase, relinquishment, gift exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians."
    The statute in question specifically provides, with respect to the tenure of lands so acquired:
    "Title to any lands or rights acquired pursuant to this act shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."
    In the light of these provisions it may be asked whether the requirement of section 372 that a fee patent issued to the purchaser of heirship lands remains in force, on reservations subject to the act of June 18, 1934. If it is in force then either the Secretary of the Interior must issue a fee patent to the United States or, if this is impossible, he must refrain from acquiring heirship land under the
 



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DEPARTMENT OF THE INTERIOR

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provisions of section 372. If the latter view is taken one of the principal objects of section 5 of the act of June 18, 1934, would be defeated. If the former view is taken a legal absurdity is presented. In the face of this dilemma it appears to be a reasonable view that the requirement of section 372, that a patent in fee be issued to the purchaser, is inapplicable where the United States is itself the purchaser, and that in this case section 5 of the act of June 18, 1934, supersedes and amends the relevant provisions of section 372. This view is in accord with the familiar rule that a limiting statute does not run against the sovereign.

    It is my opinion, therefore, that the Secretary of the Interior, on reservations subject to the act of June 18, 1934, may acquire heirship land on behalf of individual Indians or Indian tribes, on the same terms as a private individual might acquire such lands under section 372, and that title to such lands is to be held by the United States in trust for the Indian or Indian tribe for which the land is purchased.

    In accordance with the foregoing analysis you are advised that existing departmental regulations and orders affecting the sale of heirship lands may be amended to provide for the following transactions, under existing law:

    1. On all reservations heirship lands may be sold by the Secretary of the Interior to an Indian tribe. Such sale may be made with or without the consent of the interested heirs. It is necessary that reasonable compensation be paid by the tribe for the land thus sold. Such reasonable compensation may be based upon the actual income-producing prospects and record of the land, due consideration being given to the expenses of leasing created by heirship status in so far as these expenses would be deducted from the sums paid to the lessors. Except for the requirement that 10 percent of the purchase price be paid in advance, the terms of payment are within the discretion of the Secretary of the Interior.

    2. On reservations within the act of June 18, 1934, sales of heirship land may be made to the United States in trust for the tribe or for individual Indians. With respect to the terms and manner of sale and the basis of valuation, the comments noted in the preceding paragraph appeal equally applicable.

    3. On reservations not within the act of June 18, 1934, heirship lands may be sold directly to individual Indians or to an Indian cooperative or tribe. It is within the discretion of the Secretary of the Interior to make such sales with or without the consent of the heirs, without calling for bids or after bids have been called for. Patents in fee must issue to the purchaser upon final completion of payments for the land, unless all the heirs join in making a conveyance of the trust title. If bids are called for it would be proper to limit the bidders either to Indians or to Indians of a particular tribe or to Indians interested in the particular estate or to any other reasonably defined class of Indians, provided that in any case a fair price, in the light of all circumstances, is obtained for the land that is sold. With respect to the terms and manner of sale, and the basis of valuation, the comments noted in the first paragraph of this summary appear equally applicable.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor
LAND PURCHASE CASES-CONTRACT
ENTERED INTO WITH ENCUMBRANCES
EXCEEDING PURCHASE PRICE-CONTRACT
ALTERATION LEGALITY


August 17, 1937.


 Memorandum to Mr. Zimmerman, Assistant Commissioner of Indian Affairs:

    Attached are two cases concerning the purchase of lands from restricted Indians, Cora Wood and Mabel Merrick Hamilton, L-A75228-36. In each case, contracts were entered into for the purchase of land for a stated sum, this sum being much below the appraised value of the land. It is fairly clear from the correspondence in each case that the amount stated in the contract was intended to be just large enough to pay off all encumbrances. On examination of the title in each case, it was found that the encumbrances exceeded the purchase price. Therefore I pointed out in the Hamilton case that a new contract should be secured that would permit the payments of a sum sufficient to cover these encumbrances. I required, however, that the matter be presented to the Comptroller General with a full statement of the facts with a request for a decision as to the right of the Secretary to make payment on the basis of the new contract. Solicitor's Opinion M. 29051, April 30, 1937. Letters submitting the cases to the Acting Comptroller General have been prepared, but you have requested me informally to reconsider the problem and, if possible, to permit the payment on the basis of the new contract without submitting the matter to the Acting Comptroller General.

    I have re-examined the facts in each case and the rulings of the Comptroller General, but I remain of the opinion that payment should be made only after the case has been presented to the General Ac-
 



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OPINIONS OF THE SOLICITOR

AUGUST 25, 1937

counting Office. The Comptroller General has repeatedly held that contracts once entered into cannot be altered by the contracting officer to the detriment of the United States. 5 C. G. 605 and 781. Payment in the attacked cases on the basis of the law contracts is in effect an alteration of an existing contract to the detriment of the United States. I regard the fact that these contracts are entered into without competitive bidding as being an immaterial distinction between the cases now before us and those in which the Comptroller General has ruled that contracts cannot be altered by officers of the United States. As I construe the opinions of the Comptroller General, they apply to every sort of contract entered into by the United States.

    The Comptroller General has held, however, that, subject to a determination of the matter by him (27 C.D. 109, C.G. 605, 11 C.G. 605), contracts may be altered by supplemental agreements if it is clear that the original contract was entered into on the basis of a mutual mistake (27 C.D. 109, 5 C.G. 605). Cf. decision of the Comptroller General, A. 88033 dated August 7, 1937. The attached cases, particularly the Hamilton case, appear to fall within the latter rule, for from all the correspondence it was made to appear before the contracts were entered into that the amount of the contract was intended by both parties to be enough only to meet the encumbrances against the land.

    I have redrafted the letters to the Acting Comptroller General in order to set out more clearly therein the matters which I believe bring the present cases within the rule of the decisions cited in the last paragraph. I have also emphasized the fact that the vendors are restricted Indians, that the land purchases will have to be abandoned if the contracts cannot be altered, and that the land in that event may be lost to the Indians entirely. Considering all these facts, I am of the opinion that the Acting Comptroller General will react favorably. I repeat, however, that the questions presented are primarily for his decision and should be presented to him.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor
CHOCTAW--CHICKASAW--RIGHT-OF-WAY


August 25, 1937.


 Memorandum for Assistant Secretary Chapman:

    At the suggestion of the Assistant Commissioner of Indian Affairs made at the request of W. G. Stigler, Choctaw National Attorney, William A. Durant, Principal Chief of the Choctaw Nation and Douglas H. Johnston, Governor of the Chickasaw Nation, you have asked me to give further consideration to a question decided in a memorandum opinion dated May 15 by the Acting Solicitor.

    The opinion of May 15 held that the title to certain lands included within a railroad right of way grant made through lands of the Seminole Nation to the Choctaw, Oklahoma and Gulf Railway Company under the act of February 18, 1888, 25 Stat. 35, had by operation of section 14 of the act of April 26, 1906, 34 Stat. 137, 142, passed to the owners of the legal subdivisions, subject, of course, to the Railway Company's existing easement, and that there is now no authority for the sale on behalf of the Seminole Nation of the lands included in the right of way grant.

    Lands formerly belonging to the Choctaw and Chickasaw Nations are traversed by similar right of way grants and it is the contention of the above mentioned representatives of the two Nations that title to the right of way lands remains in the Nations until the use thereof for railroad purposes has been abandoned and that until such abandonment the Secretary of the Interior has authority under section 14 of the act of 1906 to sell the lands on behalf of the Nations to the railroad companies owning the easements.

    In support of their contentions, the representatives of the Choctaw and Chickasaw Nations have failed to present any arguments not fully considered by the Acting Solicitor in the Seminole case. Moreover, a reexamination of the question discloses that his conclusions are supported by the language of section 14 of the act of 1906, the legislative history of that enactment, and the regulations prescribed by the Department under section 14, all of which evince a plain purpose on the part of Congress to divest the tribal title either by sale to the railroad company within a limited time, or, in the absence of such sale, by the transfer of title to the legal subdivision owners.

    While no legal basis appears to exist for disturbing the conclusions of the Acting Solicitor, your attention is called to the fact that on July 28, you approved the recommendation of the Commissioner of Indian Affairs that certain right of way lands to which the Choctaw and Chickasaw Nations claimed title, largely on the ground that section 14 of the act of 1906 is unconstitutional and void, be offered for sale where it appeared that prospective buyers had submitted or were interested in submitting bids with full knowledge of the condition of title to the lands. In passing the Commissioner's recommendation along to you in that case, the Acting Solicitor, without concurring in the Commissioner's recommendation, stated:

    "The record shows, however, that certain parties, regardless of the controversy over the


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DEPARTMENT OF THE INTERIOR

AUGUST 25, 1937

title, are willing to purchase whatever interests the Choctaw and Chickasaw Nations have in these lands. The superintendent, by letter dated April 9, 1937, reports that the bidder on tracts Nos. 115, 116 and 120 is willing to complete the purchase at the prices offered by him and by telegram dated July 7 the superintendent advised that the Phillips Petroleum Company has requested that tract No. 117 be offered for sale with a statement that it will submit a bid regardless of the condition of title. In this situation and as the representatives of the two Nations appear to be convinced that their claim of title is well founded, it may be that the Department should not deprive them of the opportunity to dispose of their claimed interests where, as appears to be the case here, this may be done for a substantial consideration. Administratively, therefore, you may conclude that the sales of the tracts in question should be authorized. Should you conclude to do this I would suggest that full information concerning the condition of title be given all bidders; that such title as the Nations may have been conveyed by quitclaim deed; and that all bidders be informed that no assurance of Federal assistance in the defense of their title against attack by adverse claimants can be given. It is further suggested that a better price perhaps could be obtained if the sales be had with the understanding that the consideration paid will be impounded pending determination of title, subject to refund, should the courts finally determine that the Choctaw and Chickasaw Nations have no right, title or interest in the tracts sold."

    Like action may, of course, be taken in the Seminole and other similar cases if deemed administratively advisable.

                                                                                                                        FREDERICK BERNAYS WIENER,

Acting Solicitor.
TRIBAL LANDS--LEASES


September 11, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    The Indian Office letter to the Superintendent of the Uintah and Ouray Agency authorizing exploratory leases of tribal and allotted land to be made on forms transmitted therewith and according to existing regulations is returned for the following reason.

    The prescribed form for the lease of tribal lands has been drafted by your office for execution by the Superintendent. However, section 3 of Article VIII of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation provides that tribal lands may be leased by the Tribal Business Committee with the approval of the Secretary of the Interior. Under this provision the lease of the tribal lands should be made and signed by the Tribal Business Committee. The lease form accompanying the letter to the Superintendent should therefore be corrected to provide that the lease is being made by the Tribal Business Committee under authority of section 3 of Article VIII of the Constitution of the Ute Indian Tribe and to provide for the signature of the Committee.

    The fact that such a provision as is in the Ute Constitution requires that the governing body of the tribe actually execute the lease rather than authorizing the Superintendent to make the lease, has been brought to your attention in connection with similar instances in which lease forms and information are being transmitted to Superintendents. You are referred in particular to my memoranda of May 28, 1936, in connection with leasing of tribal land on the Fort Hall Reservation, and of July 12, 1937, in connection with leasing of tribal land on the Fort Belknap Reservation.

Solicitor.
TRIBAL LAND--RIGHTS TO HOUSE


October 20, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    I am returning for revision of the third paragraph your letter to Superintendent Boyd of the Fort Belknap Agency concerning the sale of a log house on tribal land to a white woman, to be purchased with the restricted funds of her children. The third paragraph impliedly authorizes the sale if the consent of the tribal council is obtained.

    Normally a building is part of the realty upon which it is placed. In the Indian Office letter of February 27, 1937, to Mr. George Eastman of the Flandreau Santee Sioux Tribe, it was stated that buildings which are permanently attached to the soil are part of the real estate and therefore could not be sold in view of the prohibition in the Reorganization Act against the sale of tribal land. However, since the building appears to be a small log house, it may possibly not come within this rule, as it may be removable without injury to itself or to the land and not have been intended to be a perma-
 



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OPINIONS OF THE SOLICITOR

DECEMBER 11, 1937

nent fixture on the land. It has been held that if personal property is attached to the land but remains removable without injury and without loss in value of the fixture, and if it was not intended to be a permanent improvement upon the land, it may be considered personal property and disposed of as such (In re Lexington Motors Company of New York, 294 Fed. 233; Rzeppa v. Seymour, 230 Mich. 439, 203 N.W. 62; Curtiss v. Hoyt, 19 Conn. 154). Whether this building can be sold would, therefore, depend upon further facts being submitted by the Superintendent as to its removability and permanence. If the house is determined to be saleable but it is not to be removed, it would be preferable in order to avoid disputes as to title, for the house not to be sold but rather to be leased or assigned together with such tribal land as the family wishes to use. Such an arrangement can of course be made if the house is found to be part of the realty.

    It is stated that there is some question as to the ownership of the building. If the building was placed on the land by a third person with his own funds, and if the building is of a temporary and removable character, it could be sold, but if it is desired to remove it, the consent of the tribal council should be obtained since the land belongs to the tribe, unless the house were placed on the land with the understanding of the person so placing it and the tribe that it was removable at any time. If the house is of such a nature that it has become part of the realty, it would in law be the property of the tribe and could not be sold, as explained above. The person placing the house on the tribal land would in such a case have only an interest enforceable in equity in the value of the house and could not convey title (Rzeppa v. Seymour, supra.)

                                                                                                                                                NATHAN R. MARGOLD,

Solicitor
RESTRICTED PROPERTY--TAXATION


November 29, 1937.


 Memorandum for Mr. Herrick, Assistant to the Commissioner of Indian Affairs:

    The attached letter to the Superintendent for the Five Civilized Tribes concerning certain property owned by John Bearpaw, a Cherokee Indian, is returned.

    The statement in the second paragraph of the letter to the effect that the Stilwell, Oklahoma property is now subject to taxation is in error. The record submitted shows that this property was purchased with restricted or trust funds and that it was conveyed to Bearpaw prior to June 20, 1936, by a deed containing restrictions against alienation. Lands of this character were withdrawn from State taxation as a Federal instrumentality by the act of June 20, 1936 (49 Stat. 1542), where purchased prior to the date of that enactment. This tax exemption is not withdrawn by the amendment of May 19, 1937 (50 Stat. 188). Under that amendment the Stilwell property is subject to selection by Mr. Bearpaw as a homestead and such homestead is declared to be an instrumentality of the Federal Government and, as such, nontaxable until otherwise provided by Congress.

    No good reason is seen for withholding approval of the deed which Mr. Bearpaw has executed conveying the Stilwell property to W. R. Rhoads for a consideration of $450. Mr. Bearpaw desires to dispose of this property and use the proceeds in purchasing land outside the city limits. Inasmuch as the land purchased with the proceeds from sale of the Stilwell property may be made exempt from taxation by conveyance to the United States in trust for Mr. Bearpaw as authorized by the act of June 26, 1936 (49 Stat. 1967), or by conveyance to Mr. Bearpaw with restrictions against both alienation and taxation as authorized by the act of June 30, 1932 (47 Stat. 474). I suggest that the deed be approved so that Mr. Bearpaw may proceed without further delay in the purchase ot the property upon which he wishes to establish his home. He should be advised that he may choose either of the two types of conveyances just mentioned and the difference between them should be explained, namely, that where the United States is named as grantee in trust the land cannot be alienated with out further legislation by Congress, whereas, under the other type of conveyance the land may be alienated with the approval of the Secretary of the Interior.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor
TRIBAL LEASES--APPROVAL OF SUPERINTENDENT


December 11, 1937.


 Memorandum to the Assistant Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Pine Ridge Reservation submitted for the approval of the Assistant Secretary of the Interior
 



790

DEPARTMENT OF THE INTERIOR

DECEMBER 11, 1937

would authorize the superintendent to approve tribal grazing leases without submitting them to the Department for approval. Such authorization would be a departure from existing law and regulations requiring the approval of the Secretary of the Interior for tribal leases and is not, in my Opinion, permissible.

    The basic law authorizing these leases is section 397 of title 25 which permits grazing leases to be made by the tribal council, "subject to the approval of the Secretary of the Interior." The departmental leasing regulations of May 9, 1929, the modification of these regulations by the Department on November 6, 1930, and the Grazing Regulations of 1935, all recognize the necessity of Secretarial approval of tribal leases.

    the constitution of the Oglala Sioux Tribe, in providing for Secretarial approval of tribal leases, was intended to represent existing law since under section 16 of the Reorganization Act the powers to be contained in the constitution were those possessed by the tribe under existing law. It is to be noted that the Oglala Sioux Tribe has not adopted a charter. A charter usually provides that tribal leases may be approved by the Secretary "or his duly authorized representative" and such a provision is justified under section 17 of the Reorganization Act which would permit the inclusion in a charter of a provision permitting a tribe to make leases without any supervision.

    The power of approval placed in a designated administrative officer by statute is a discretionary or "judicial" function and cannot be delegated, as can administrative or ministerial functions, without statutory authorization. As one instance, this principle is recognized in the cases which sanction the exercise by the Assistant Secretary of the Interior of the power of approval vested in the Secretary solely because of statutory authorization. Turner v. Seep, 167 Fed. 646; Robertson v. United States, 285 Fed. 911.

    Since the land sought to be leased in this case consists of numerous small and scattered tracts it might be possible to provide for their use for grazing purposes by permits subject only to the approval of the superintendent and of the Regional Forester under the 1935 Grazing Regulations. Such a distinction between a lease and a permit has generally been considered justifiable in view of the fact that a permit is revocable at any time in the discretion of the Commissioner but a lease grants an interest in the land for a term of years.

    The use of permits in this connection is complicated by the fact that the Oglala constitution provides that grazing permits may be issued by the tribal council with the approval of the Secretary of the Interior. However, since the constitution is intended, as previously stated, to reflect existing law on such disposition of tribal land, I would have no objection if the tribal council wished to interpret this provision concerning grazing permits as authorizing the issuance of grazing permits with the approval of the superintendent, as authorized by the regulations of the Secretary of the Interior.

                                                                                                                                           NATHAN R. MARGOLD,

Solicitor.
HOPI--FAMILY RELATIONS


December 14, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    The Hopi Tribal Council on October 5 passed a resolution accepting and adopting sections 1 and, 2 of Chapter 3 on Domestic Relations, of the Law and Order Regulations approved by the Secretary of the Interior on November 27, 1935. This resolution was approved by the Superintendent on October 6. The Indian Office has prepared for the, approval of the Assistant Secretary a letter to the chairman of the Hopi Tribal Council stating that this ordinance was adopted pursuant to Article VI, section 1 (g) of the Hopi Constitution, became elective on approval of the Superintendent, and that no reason is found requiring its rescission by the Secretary.

    In the consideration of this resolution in the Indian Office the provisions of Article III of the Hopi Constitution seem to have been overlooked. In section 2 (b) of this article the regulation of family relations is reserved to the self-governing villages which compose the Hopi Tribe. The reservation to the villages of the control of local matters is a cardinal feature of the Hopi Constitution. Mr. Oliver LaFarge who drafted this constitution with the Indians, in reporting at various times to the Commissioner of Indian Affairs, explained that Article III was intended to protect the entity of the individual villages and to reserve to them the powers which they then had. The Hopi tribal organization was to be a union of self-governing villages to provide a mechanism for handling certain inter-village affairs. Accordingly, the enumerated powers of the Tribal Council were to be as close to the legal minimum as possible. However, the intent of the framers of the constitution need not be relied upon as Article III is a clear reservation of the control of family relations to the villages, even though Article VI, section 1 (g), would permit
 



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OPINIONS OF THE SOLICITOR

DECEMBER 20, 1937

the Tribal Council to make general ordinances to protect tribal peace and welfare.

    Accordingly, I believe this resolution of the Hopi Tribal Council must be rescinded as not in conformity with the constitution. The resolution would accept as applicable to the Hopi Tribe the provision in the Law and Order Regulations that the Tribal Council shall have authority to determine whether Indian custom marriage and divorce shall be recognized in the future as lawful and what shall constitute such marriage and divorce. Such determination and definition would be a principal function of the regulation of family relations. It is suggested that the Tribal Council be advised of this constitutional impediment to their action in this field, but that they be invited to inform this office of any special problems on the reservation which they intended to cope with in this resolution, so that we may be able to advise them further in this connection. It appears that no information was submitted with this resolution which would explain its adoption.

    It is also suggested that in the letter to the Tribal Council to be signed by the Assistant Secretary rescinding this ordinance it be stated that the definition of the term Tribal Council in section 19 of Chapter I of the Law and Order Regulations for the Navajo and Hopi jurisdictions (which, incidentally, supplant the general law and order regulations referred to in the Tribal Council's resolution) shall be construed to include the governing body of the village wherever in the Hopi Constitution the village rather than the entire tribe possesses tribal powers involved in the Law and Order Regulations. A formal amendment of these regulations is not considered necessary as they may properly be construed in the light of the provisions of the constitution, and to the extent that the villages both before and after the adoption of the constitution had and have self-governing powers they may be considered "tribes" within the meaning of the term in section 19, Chapter 1, of the regulations.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

LOAN--CROP MORTGAGES


December 18, 1937.


 Memorandum to Mr. Daiker, Assistant to the Commissioner of Indian Affairs:

    In your memorandum of November 9 you state that the credit agent for the Pacific Northwest has suggested that the Flathead Tribe take from its borrowers an agreement to execute crop mortgages each year the loan is in effect, and you ask whether such an agreement would be enforceable and proper. The reason for the use of such an agreement is stated to be that the laws of Montana provide that in the case of crop mortgages the lien of the mortgage shall attach only to crops next maturing after the execution of the mortgage.

    An agreement to execute crop mortgages would be valid between the parties thereto, but even if filed would not be a protection against creditors and subsequent purchasers. However, such an agreement would be useful in that, if made part of the loan agreement between the borrower and the tribe, the failure to execute the crop mortgages as agreed would constitute a default in the carrying out of the loan agreement and the tribe could thereupon resort to any of the remedies provided for in the loan agreement.

    If this procedure is adopted, it is believed advisable that it be followed in connection with mortgages of crops on both restricted and unrestricted land for the following reasons: While crops growing on restricted land may be considered restricted property which cannot be sold or mortgaged with out the consent of the Government (United States v. First National Bank, 282 Fed. 330-D.C. Wash. 1922), it is probable that State law would be used in questions of the interpretation and enforcement of crop mortgages either in Federal or State courts in view of the absence of any Federal or tribal law on the content and effect of mortgages.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

INHERITANCE OF PERSONALTY--TRIBAL
LAW

December 20, 1937.


 Memorandum for the Commissioner of Indian Affairs:

Attention: Probate Division.

    The attached proposed letter to the Examiner of Inheritance at Phoenix, Arizona, authorizing him to reopen a case already heard by the tribal court of the Mescalero Tribe is returned for further consideration. The proposed letter fails to specify whether the Examiner of Inheritance shall apply State law or tribal custom in probating the estate of Fred Godeley. The resolution of July 10, 1937, adopted by the Business Committee of the Mescalero Apache Tribe is not included in this file, but
 



792

DEPARTMENT OF THE INTERIOR

DECEMBER 18, 1937

from the account of the resolution given in the various memoranda it does not appear that this question has been considered by that Committee.

    It does appear from the letter of the local superintendent, dated August 31, that he takes the view that New Mexico law is applicable to the inheritance of personal property owned by Indians on the Mescalero Reservation. The error of this view should be pointed out in the letter to the Examiner of Inheritance.

    There is no objection to applying State law to these matters if the tribal business committee, after being apprised of its right to establish its own ordinances or to perpetuate its established customs of inheritance, should decide, after considering all alternatives, that it prefers to have these cases governed entirely by State laws. Unless that is done the Examiner of Inheritance should be instructed to investigate the established tribal customs with respect to descent of personal property and to make his findings in the instant case in accordance with such customs. Furthermore, in view of the temporary character of the present arrangement for the handling of these estates by the Examiner of Inheritance, you may want to suggest the establishment of some regular relationship between this officer and the tribal court, which is designated by the resolution cited as his heir apparent.

    I make no claim to a special knowledge of Apache law, but I am informed that the established custom of the Apaches does not coincide with the State law prescribing descent of the entire estate to the widow in the situation which the instant case presents.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.

MEMBERSHIP--TRIBAL POWER


December 18, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith for further action the proposed letter to Superintendent Bruce of the Potowatomi agency in Kansas authorizing the enrollment with the Prairie Band of Potowatomi Indians of children born to a woman enrolled with that Band who is now residing in Wisconsin. The Business Committee of the Prairie Band went on record against the enrollment of these children on the ground that the mother had abandoned her tribal relations at the time of their birth and was married to a white man and living away from the reservation. The letter does not contain any reason or rule governing this situation which would explain to the Business Committee and the field personnel the action being taken by the Department or which could be used by them in passing on other cases. Undoubtedly, many similar cases will arise as the situation involves the relationship of the Kansas and Wisconsin Potowatomis in Wisconsin with the Prairie Band in Kansas, and it appears there is considerable confusion as to the proper course.

    The facts as shown by the claimant and the held personnel are as follows: The mother, although married to a white man, is residing and was residing at the time the children concerned were born among the Wisconsin and Kansas Potowatomis on land bought for the Wisconsin Potowatomis in Wisconsin. There is evidence that she attempted to make her home on the Potowatomi Reservation in Kansas in 1932. Before that time she was residing with her mother in Wisconsin, who was a Kansas Potowatomi enrolled with the Prairie Band, married to a Wisconsin Potowatomi. In Wisconsin there are about 200 Potowatomis enrolled with the Prairie Band of Potowatomi in Kansas, but who have returned to the original home of the Potowatomis in Wisconsin because of preference or intermarriage with the Wisconsin Potowatomi Indians. The several hundred Wisconsin Potowatomis in Wisconsin are those Potowatomis who never removed to Kansas and for whom land was purchased in Wisconsin by the Government in 1913. All these Indians reside together in various Indian settlements and communities. Because of the continuous intercommunication between the Kansas Potowatomis in Kansas and Wisconsin, it would appear that a Kansas Potowatomi Indian residing with the Potowatomi in Wisconsin and living in an Indian community has not abandoned his tribal relations, unless all the Kansas Potowatomis in Wisconsin are considered as having abandoned their tribal relations, which has not been shown.

    The rule governing enrollment of children born to an Indian married to a white person is enunciated in the Oakes case (172 Fed. 305), and in the Solicitor's Opinions of January 8, 1927, and December 13, 1934, is that such children are not entitled to enrollment if the Indian parent has abandoned his tribal relations at the time of their birth. The principal test of abandonment is whether or not the Indian is living in a community of the tribe. In the Oakes case, the children born while the mother remained in a tribal community were held entitled to enrollment.

    It is believed that these facts and this rule should be placed before the Business Committee of the : Prairie Band with a statement that unless the Business Committee can show contrary facts the children concerned would seem to be eligible for en-
 



793

OPINIONS OF THE SOLICITOR

DECEMBER 28, 1937

rollment under this rule. It might also be pointed out that the children of all the Kansas Potowatomis in Wisconsin should be treated in the same way, and that rules governing their right to enrollment can be worked out to the satisfaction of the Prairie Band. To this end it should be determined by the Band whether residence of a Kansas Potowatomi among the Potowatomis in Wisconsin constitutes abandonment of tribal relations with the Kansas band. However, if the Prairie Band still refuses, in the light of this information, to accept the children into membership, the Department is without power to enroll the children of its own accord, and the Business Committee should be so informed. While the Department may approve or disapprove adoptions into the tribe and expulsions therefrom made by the tribal authorities, no case holds that the Department, in the absence of express statutory authorization, may grant a person tribal membership over the protest of the tribal authorities. Such action would be contrary to the rules enunciated in the cases and to the position taken by the Department in the drafting of tribal constitutions.

    Information might be added on the meaning of residence on the reservation as there are indications that the field personnel believes the phrase would allow for enrollment of children born on the reservation whose mother returned there for the occasion and exclude children born off the reservation whose parents normally reside thereon. This is an erroneous interpretation in both instances. The actual place of birth of the child is immaterial, but the permanent home of the parents is the deciding factor.

                                                                                                                                       NATHAN R. MARGOLD,

Solicitor.

DESCENT OF UNRESTRICTED PROPERTY--STATE
LAW


December 28, 1937.


 Memorandum for the Commissioner of Indian Affairs:

    There is returned herewith for your further consideration a proposed letter to the Attorney General relative to the case of Antonio Trujillo, Administrator, etc. v. Prince, No. 4342 in the Supreme Court of New Mexico. The statement made in the last paragraph of the proposed letter that this Department has consistently recognized the application of State laws of descent and distribution to unrestricted property of Indians is not correct.

    The position of the Department is expressed in the following quotation from a memorandum of Acting Solicitor Kirgis to Mr. Melzner dated April 21, 1937:

    "Inasmuch as the law and order regulations are not applicable to the Pueblo of Zia, there is no authority for the Department to interfere with or supervise the inheritance of unrestricted property in this Pueblo. As indicated in the passages cited by you from an opinion of this Department, such matters rest entirely within the jurisdiction of the Pueblo concerned."
    This position is not in conflict with the decision in Kendall v. Ewert, 259 U.S. 139, cited in the letter to the Attorney General. In that case the question of tribal law did not arise inasmuch as such laws had been superseded by the act of April 28, 1904, extending the laws of Arkansas to the Indian Territory. Moreover, the decision in Kendall v. Ewert involved property which apparently was not actually located upon any Indian reservation. It is clear that the laws and customs of an Indian tribe have no extra-territorial application.

    The instant case presents a situation in which the property involved, a chose of action, is not located on an Indian reservation. The position of the Department with relation to this case should be not that State laws are always applicable to unrestricted property but that State laws are applicable to the sort of property here involved, which has never been within the jurisdiction of the tribe.

    This position is not only better supported by the authorities in point but also tactically advantageous. If the present appeal is lost, on the ground that a State administrator has no authority, we should be in a position to bring a new action upon the basis of a tribal appointment of an administrator who might subsequently obtain letters of administration in the same manner as an administrator appointed in another State.

    I suggest that the proposed letter to the Attorney General be revised in accordance with these views.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

GRAZING RIGHTS





M-29560                                                                                                                                              December 28, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Leandro Ruiz and Lucy M. Ruiz. his wife, have tendered for acceptance the following instruments: warranty deed covering 320 acres of land, assign-
 



794

DEPARTMENT OF THE INTERIOR

DECEMBER 28, 1937

ment of water rights and canal right of way easement, bargain and sale deed conveying water rights appurtenant to and used in connection with the so-called Menager Dam project, bill of sale conveying all personal property located upon public lands of the United States and/or lands leased from the State of Arizona, order directing the cancellation of two State grazing leases. These conveyances are made to the United States in trust for the Indians of the Papago Indians Reservation. The appraised value of the land and other rights covered by the foregoing conveyances is $40,016.37. Special authority to purchase this property at its appraised value is contained in the act of July 28, 1927 (Public No. 217, 75th Congress), which act authorizes the expenditure of the purchase price out of any available funds heretofore or hereafter appropriated pursuant to authority contained in section 5 of the act of June 18, 1934 (48 Stat. 984.)

    The aforementioned conveyances, abstracts of title, and related papers have been submitted to me for an opinion as to the sufficiency of the title to be conveyed.

    Title to the land, water rights and canal right of way easement, and reservoir site, as shown by the abstracts certified on August 11, and October 26, 1937, respectively, is vested in Leandro Ruiz and Lucy M. Ruiz, his wife, subject to the following objections and defects.

    There is encountered at the outset a question as to whether the act which authorizes the Secretary to purchase "all privately owned lands, water rights, and reservoir site reserves within Ts. 18 and 19 S., Rs. 2 and 3 W., together with all grazing privileges and including improvements upon public lands appurtenant to the so-called Menager Dam property, at the appraised value of $40,016.37" authorizes the Secretary to pay the vendors for "grazing privileges" in the public domain which are owned, not by the vendors, but rather by the United States as an incident of its ownership of the public domain. The property offered by the vendors comprises 320 acres of land, with water rights and a reservoir site (these being all privately owned lands described in section 1 of the act as shown by a report from the General Land Office, and all the privately owned property described in section 2 of the act as shown by the file) , appraised at $17,700, and "grazing privileges" appraised at $22,316.37, this figure being on the basis of 40 cents per acre for 55,790.94 acres. But the privileges so appraised, with the exceptions of leasehold rights in 1,080 acres of State land, which leaseholds are to be cancelled, are found to be based only on the vendor's customary use of the public domain surrounding his land and his reservoir site.

   It is my opinion that, in spite of the fact that the "grazing privileges" are owned by the United States, Congress intended to authorize payment of the appraised value thereof to the vendors. This conclusion finds its support in the fact that the act refers to grazing privileges upon public lands, and Congress must be presumed to have known that since the area described in the act was not in a grazing district or a timber reserve, the only possible sort of grazing privilege involved was that of customary usage by sufferance as defined in Buford v. Houtze, 133 U.S. 347. See also Lamoreaux v. Kinney, 41 Fed. (2d) 30. Further in support of this conclusion it is noted that the act authorizes payment for improvement on the public domain title to which is also in the United States. Since, however, the problem presented involves the payment of a considerable sum of money and is not wholly free from doubt, I am of the opinion that when the additional title requirements hereinafter made have been met all the papers should be referred to the Comptroller General for his opinion on this question and for direct settlement.

    The additional title requirements are stated be low.

    First, taxes for 1937 now due (section 3101, Revised Code of Arizona, 1928,) must be paid, and it must appear as of the date the deed to the United States is recorded that there are no taxes due or exigible affecting the property.

    Secondly, the title record must be completed by the customary departmental report on possessory rights, this covers all the property described in the vendors' deeds down to the date of their recordation.

    Thirdly, the two State leases above mentioned covering 1,080 acres must be properly cancelled to permit the exchange of these lands as authorized by the act.

    Further, in lieu of the one deed and several assignments submitted by the vendors, there should be executed one warranty deed to describe and warrant title to the land, the reservoir site (properly identified by reference to the official plat thereof), and the specific water filings and rights claimed by the vendors, and the deed should contain general clauses covering all water rights appurtenant to the land or the reservoir site and covering all right, title and interest of the vendors in all the property described in section 2 of the act of Congress. The deed should also recite the actual consideration being paid. The bill of sale submitted covering improvements on the public domain is in acceptable form.

    Finally, when all the foregoing requirements have been met, the corrected deed must have revenue stamps affixed and cancelled, and it must be recorded. The abstracts of title must then be re-certified as of the date of this recording, and if it appears therefrom that an unencumbered fee
 



795

OPINIONS OF THE SOLICITOR

DECEMBER 28, 1937

simple record title is vested in the United States, the deed and the bill of sale will be accepted and all the papers transmitted to the Comptroller General for direct settlement.

    The deed and other instruments, together with the abstract of title and other related papers, are returned herewith for further action in accordance with this opinion.

                                                                                                                                    Respectfully,
                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


 Approved December 28, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

TRUST LAND--CROP MORTGAGES


January 5, 1938.


 Memorandum for the Commissioner of Indian Affairs:

    In the proposed Bulletin No. 60 addressed to credit agents concerning the filing of crop mortgages it is stated that crops growing on Indian trust land are considered part of the realty and that after the crops are harvested and severed from the land they are still trust property. I believe the proposition that crops growing on Indian trust land may be considered trust property has strong support in the case of United States v. First National Bank, 282 Fed. 330 (D.C. Wash. 1922). However, the proposition that crops remain trust property after severance from the land and harvesting is sufficiently doubtful not to permit, in my opinion, of a definite assurance to this effect at this time.

    In the First National Bank case, the Federal court held void a mortgage on crops growing or to be grown during the year upon a trust allotment, which mortgage was given to secure the payment of a promissory note on an automobile. The bank foreclosed the mortgage in the State court and the U.S. successfully enjoined the sale of the property under execution issued by the State Court. In discussing the validity of the lien the Washington Federal court repudiated the ruling of the Washington State court in the case of Rider v. LaClair, 138 Pac. 3. that a mortgage of crops growing on an allotment was valid since growing crops were considered a chattel under State law, even though it was doubtful whether the mortgagee could enter upon the allotment without the consent of the Government to foreclose the mortgage. The Federal court held that a mortgage on growing crops was a contract affecting the realty and was therefore prohibited by section 5 of the Allotment Act which prohibited any contract touching an allotment during the period of trust. In discussing the validity of the lien the court used the following language:

    "The crops growing upon an Indian allotment are a part of the land and are held in trust by the government the same as the allotment itself, at least until the crops are severed from the land. The use and occupancy of these lands by the Indians, together with the crops grown thereon, are a part of the means which the government has employed to carry out its policy of protection, and I am satisfied that a mortgage of any of these means by the Indian, without the consent of the government, is necessarily null and void. If the lien is valid, it carries with it all the incidents of a valid lien including the right to appoint a receiver to take charge of and garner the crops, if necessary, and the right to send an officer upon the allotment armed with process to seize and sell the crops without the consent and even over the protest of the government and its agents. That this cannot be done does not, in my opinion, admit of question." (At p. 332.)
    In repudiating the opinion in Rider v. LaClair the Federal court disposed of the leading case holding that an Indian could mortgage the crops growing on his allotment without the consent of the Government. However, there has been no such clear ruling as regards the mortgaging of crops which have been severed from the land. The 1st. National Bank case leaves this question open. It is a familiar proposition that Indians can freely contract except where prohibited by statute and the restricting statutes deal only with contracts affecting restricted lands and personal property issued by the Government. In re Stinger's Estate, 201 Pac. 693; Postack v. Lee, 149 Pac. 155: 22 Cye. 115. A sale or mortgage of crops severed from the land cannot readily be said to affect the realty and to come within the restrictions on the privilege of Indians to contract. While the mortgagee or purchaser of harvested crops might not be able to enter the allotment to obtain possession of such crops without the consent of the Government, this same difficulty would confront the purchaser or mortgagee of any unrestricted property of an Indian so long as it remained upon trust land. Although the statements quoted from the National Bank case indicate that a valid lien must be accompanied by a right of entry without the consent of the Government, I believe these statements must be limited to the facts before the court and that they cannot be said to prevent the sale or mortgage of unrestricted Indian property or its removal by the Indian from
 



796

DEPARTMENT OF THE INTERIOR

DECEMBER 28, 1937

the trust allotment without the consent of the Government.

    In view of the foregoing I would suggest that the circular be modified to provide that a mortgage of crops which have been harvested should be filed in the county office in order to insure ample protection to the Indian tribe and the Government. At the same time the proposition concerning crops growing on Indian land could be strengthened by a citation of the National Bank case. The opinion of the Federal court in Montana which accompanied the proposed bulletin is compelling on the proposition that leases of trust allotment can be sufficiently filed in the agency office but has no important bearing upon the question of the trust character of growing or harvested crops. The decision dealt rather with the principle of the law of landlord and tenant that a landlord's lien upon the crops of which a crop purchaser has actual or constructive notice is superior to a subsequent chattel mortgage of such crops.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
DEVISEE UNDER IRA--TRIBAL
MEMBERSHIP

 
January 8, 1938.

 Memorandum for Mr. Melzner, Acting Commissioner of Indian Affairs:

    The probate case of Mary Big Elk, attached. raises the question whether it is legally possible for a non-heir devisee actually carrying on tribal relations with the tribe having jurisdiction of the land revised, but enrolled with another tribe, to take the devise under section 4 of the Indian Reorganization Act. The facts and problems in the instant case are as follows:

    The testatrix, a Wisconsin Winnebago enrollee, died on January 11, 1937, leaving a will dated January 20, 1934, devising her property to her son, and only heir Henry Big Elk, except for certain specific devises to that son's daughter, Lena Big Elk. Mary Big Elk, who lived for a long time among the Nebraska Winnebagoes, had special reasons for leaving the property to her granddaughter. The property left to Lena Big Elk consists of interests in allotments under the jurisdiction of the Winnebago Tribe of Nebraska. Lena Big Elk was enrolled with the Winnebago Tribe of Wisconsin but has lived for more than 30 years with the Winnebago Tribe of Nebraska, has married one of its members and enrolled her children with the tribe. In response to the question asked at the probate hearing, to what tribe does Lena Big Elk belong, Frank Beaver, long chairman of the Nebraska Winnebago Tribal Council and an authority on tribal membership, answered as follows:

    "She is enrolled with the Wisconsin Winnebagoes but has apparently abandoned her ties with that tribe, as since 1907 she has resided here on the Nebraska Winnebago Reservation, has long been married to a Nebraska Winnebago and all her children, four I think, are enrolled not with the Wisconsin Winnebagoes but with the Nebraska Winnebago Tribe. From that it would appear that her natural heirs are in fact Nebraska Winnebagoes so that any property she takes will eventually be vested in the regularly enrolled members who are in fact also residents of the Nebraska Winnebago Reservation in Nebraska. I would recognize as far as heirship matters are concerned that she is a member of the Nebraska Winnebago Tribe, by right of residence, marriage and enrollment of her children with that tribe."
    The Nebraska Winnebagoes and the Wisconsin Winnebagoes were until recent history one tribe and there is much intermarriage among the members and cross ownership of property. It is reported to have been usual at the time the granddaughter was enrolled with the Wisconsin Winnebagoes for Winnebago Indians to make the gesture of enrolling their children with the Wisconsin group, whenever possible, in order to obtain certain Federal benefits available at that time, regardless of actual tribal affiliation or residence. For this reason there are new numbers of Wisconsin enrollees living among the Nebraska Winnebagoes, virtually as tribal members.

    The straightening out of this situation was one of the purposes of the membership provisions of the constitution of the Winnebago Tribe of Nebraska approved April 3, 1936. Section (1a) defines the membership of the tribe as follows:

    "All persons of Indian blood whose names appear or are entitled to appear, on the official census roll of the Winnebago Tribe of Nebraska as of April 1, 1934; provided that within five years from the adoption and approval of the constitution and bylaws, additions and eliminations may be made in said roll by the tribal council subject to the approval of the Secretary of the Interior."
    If the name of Lena Big Elk should be on this roll, which is unlikely since there was no testimony to that effect, she would already be legally a mem-
 



797

OPINIONS OF THE SOLICITOR

JANUARY 14, 1938

ber of the tribe through operation of this section. Assuming that her name is not on the 1934 census, this section may provide a means of preventing an unnatural result in this case through the addition of her name to that roll. The tribal council may be willing to recognize the granddaughter as entitled to be enrolled on the 1934 census roll, if she relinquished, as of that date, her rights through enrollment with the Wisconsin Winnebagoes, because of her abandonment of tribal relations with the Wisconsin Indians and marriage, residence and affiliation with the Nebraska Indians. It is legally possible for an Indian to have membership rights in two tribes as much through affiliation with a second tribe from that in which enrolled, as through birth to parents of different tribes, the more usual situation. The tribal membership of the mother of Lena Big Elk is not shown in the record, but if her mother had been a Nebraska Winnebago, Lena Big Elk would also be entitled to enrollment with the Nebraska Indians on that ground, provided she relinguished her rights through enrollment with the Wisconsin group. Section 326 of the 1904 Indian Office regulations provides for an Indian holding equal rights in two tribes to elect with which to be enrolled and to relinquish his interests in the other.

    Such relinquishment of rights with the Wisconsin Winnebagoes and enrollment on the 1934 roll of the Nebraska Winnebagoes would be simply a recognition of rights existing at the date of the death of the testator. It is not necessary for me to decide at this time whether an Indian devisee without claim to membership in the tribe having jurisdiction of the land devised at the date of the death of the testator could acquire a right to take the devise by subsequent adoption into the tribe having such jurisdiction. On the facts presented it is sufficient to determine that an Indian who is shown to be a "de facto" member of the jurisdictional tribe at the date of death of the testator can perfect his status as a "de jure" member by proper formal legal action after the testator's death. In this case the constitution of the Winnebago Tribe happens to contain a particularly useful provision to accomplish this result. but no implication is intended that this procedure is the only possible one.

    It is suggested that the foregoing situation be outlined to the tribal council of the Nebraska Winnebago Tribe, and that they be asked whether they consider Lena Big Elk as having been entitled to be enrolled on the 1934 census roll as a member of the tribe, if she had relinguished her interests with the Wisconsin Winnebagoes. In this connection, the tribal membership of the mother of Lena Big Elk should be determined. If the tribal council recognizes that Lena Big Elk is entitled to enrollment and proceeds to add her name to that roll, and if Lena Big Elk relinquishes any rights and benefits with the Wisconsin Winnebagoes from and after such enrollment as of 1934, and such addition and relinquishment is approved by the Secretary of the Interior, it is believed that the will of Mary Big Elk can then be approved.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
ASSIGNMENT OF LANDS-CHOCTAWS OF
MISSISSIPPI

 


M-29620                                                                                                                                                  January 14, 1938.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have presented for my consideration the question as to whether certain land and improvements thereon purchased for and resold to certain Choctaw Indians in Mississippi can be repossessed or reacquired so that the title thereto can be taken in trust in a manner to permit assignments of its use to such individual Indians as the Secretary may select.

    The land and improvements in question were acquired pursuant to appropriations beginning with the act of May 25, 1918 (40 Stat. 561, 573). There were in the following years six such appropriation items, each time the authority being phrased as follows:

"Sec. 9. For the relief of distress among the full-blood Choctaw Indians of Mississippi, * * *; for the purchase of lands, including improvements thereon, not exceeding eighty acres for any one family, for the use and occupancy of said Indians, to be expended under conditions to be prescribed by the Secretary of the Interior for its repayment to the United States, under such rules and regulations as he may direct, * * *;"
Pursuant to the authority in these appropriation acts the lands purchased were resold under contracts providing for the forfeiture of rights and a termination of the agreements in the event of default by the vendees. It appears that all the contracts are now in default.

    The problem of repossession of the lands and cancellation of the obligations of the individual Indians is not difficult. Clearly, under the authority given to the Secretary to resell under such rules
 



798

DEPARTMENT OF THE INTERIOR

JANUARY 14, 1938

and regulations as he may direct, he was empowered to provide for forfeitures of the vendees' rights in the event of default. Such cancellations would, of course, wipe out the obligations of the vendees making it unnecessary to invoke the authority of the act of July 1, 1932 (47 Stat. 564). But such cancellations will leave the title in the United States subject only to the authority of the Secretary again to resell the lands.

    The problem is, therefore, whether a different disposition of the titles can be effected by an adjustment under the act of July 1, 1932, supra, or through the authority given to the Secretary under section 5 of the act of June 18, 1934 (48 Stat. 984), taken in connection with the authority given under the act of July 1, 1932.

    As I construe the authority under the latter act, it is limited to the adjustment or elimination of reimbursable charges. The act authorizes the Secretary "to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made:" This authority does not extend to a disposition of titles to lands or the creation of trusts in lands that may be owned by the United States in connection with such charges. But by construing the power to adjust or eliminate charges in connection with the power to acquire interests in land under the act of June 18, 1934, supra, a procedure, although cumbersome, can be evolved that will permit of the desired result. Thus, by eliminating the unpaid balances of outstanding contracts without declaring forfeitures thereof the result will be that the United States will have the legal titles to the lands and the individual Indians will have the beneficial or equitable titles thereto. These equitable titles are ones that the Secretary may acquire from the Indians by relinquishment, gift, or assignment within the terms of section 5 of the act of June 18, 1934. These interests, under the provisions of section 5 of this act, may be held in trust for such Indians as the Secretary may designate, in accordance with the present practice in acquiring land for the Choctaw Indians in Mississippi.

    If this procedure is adopted it will require a report to Congress of the proposed action, and in advance of such report, each vendee should be required to agree in writing to relinquish his rights under the existing contracts on the approval by Congress of the proposed adjustments. But in connection with such a procedure, it should be borne in mind that the Secretary's broad discretionary power is to be exercised only in those cases where an adjustment or elimination of the charges is just and equitable in consideration of the circumstances under which the charges were made. It may well be doubted whether the present cases call for the exercise of such discretion, and whether Congress will regard them as proper cases.

    There is, of course, the possibility of cancelling the contracts and asking Congress for authority to hold the land in trust in the desired manner. This may prove to be the preferable method.

    You ask to be advised also concerning agreements covering improvements, but since this matter is being given further administrative study I shall withhold my opinion until this has been completed and the report made. If it then appears desirable to have an opinion, I suggest that copies of the agreements covering improvements be submitted and that further information be given concerning the title to the lands where said improvements are located.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: January 14, 1938.
OSCAR L. CHAPMAN, Assistant Secretary.

ATTORNEY'S CONTRACT--ORGANIZED TRIBE

January 18, 1938.
Memorandum for the Assistant Commissioner of Indian Affairs:

    I am returning herewith for further consideration a proposed letter to the Superintendent of the Taholah Agency submitting a model attorney's contract for the use of Makah Indian Tribe.

    Section 10 of the proposed contract provides that no compensation shall be paid under the contract until appropriations therefore are made by Congress. This clause is apparently inserted in an attempt to follow the opinion of the Comptroller General dated December 2, 1936. Apparently that opinion is being interpreted in your office as forbidding payment of attorneys out of funds in the treasury office of an organized tribe. No such limitation appears in the constitution of the tribe and I can see no legal ground for any such limitation.

    At the time the Comptroller General's opinion of December 2, 1936, was brought to my attention, I pointed out that the opinion confused instead of clarifying the matter at issue because of the failure to distinguish between funds in the United States Treasury and funds in the treasury of an organized tribe. The failure to make this distinction was inherent in the formulation of the ques-
 



799

OPINIONS OF THE SOLICITOR

JANUARY 26, 1938

tion, which was never reviewed in this office. The question as formulated assumed that there was no distinction between funds held in the treasury of an Indian tribe and funds held in the United States Treasury, and the answer to the question rendered by the Acting Comptroller General followed this assumption. The error of the assumption is made clearly evident in the more recent opinion of the Comptroller General dated June 30, 1937, holding that income payable under leases executed by an organized tribe need not be deposited in the U.S. Treasury or in any Government depository. In view of the foregoing, I suggest that section 10 be revised so as to show that payment may be made either out of funds in the tribal treasury or as a result of Congressional appropriation.

    I further suggest that since the Secretary's power with respect to attorneys' contracts made by an organized tribe is limited to approval of the choice of attorneys and the fixing of fees, the covering letter to the superintendent should indicate that any other provisions of the proposed contract are alterable at the pleasure of the tribe.

    The provision for approval of the contract in its entirety by the Secretary of the Interior is not warranted by the terms of the Indian Reorganization Act of June 18, 1934, nor is it in accordance with Article VI section 1 (b) of the tribal constitution. I suggest, therefore, that the approval clause be redrafted in accordance with the governing statutory and constitutional provisions.

    It is further suggested that the form of the contract would be improved by substituting the word "tribe" for "party of the first part" and the word "attorney" for "party of the second part" throughout the contract.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
RIGHT OF FRANCHISE-STATE LAW

M-29596                                                                                                                                                  January 26, 1938.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question whether the State can constitutionally deny the franchise to Indians.

    My attention has been called to the following provisions of State statutes and State constitutions which contain such denials of the right to vote.

    "Sec. 3. Disqualification of certain persons. * * * No person is permitted to vote, serve as a juror, or hold an civil office who is under guardianship, idiotic or insane, or who has, at any place, been convicted of treason, felony, embezzlement of the public funds, bartering or selling, or offering to barter or sell his vote, or purchasing or offering to purchase the vote of another, or other infamous crime, and who has not been restored to the rights of citizenship, * * * nor shall Chinese, or persons of Mongolian descent born in the United States, nor Indians, not taxed, who have not severed their tribal relations and adopted the habits of civilization, either vote, serve as jurors, or hold any civil office", (Constitution of Idaho, Article 6, Section 3). Emphasis supplied in this and later citations).

    Sec. 1. Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons, persons convicted of a felonious or infamous crime unless restored to political rights, and Indians not taxed, shall be qualified to vote at all elections for public officers. * * *"

    (Constitution of N. Mexico, article VII, elective franchise.)

    "Qualifications of electors. Every citizen of the United States who is over the age of 21 years and has resided in the state twelve months, in the county 90 days and in the precinct in which he offers to vote 30 days, next preceding the election, except idiots, insane persons, persons convicted of a felonious or infamous crime unless restored to political rights and Indians not taxed, shall be qualified to vote at all elections for public officers, and upon constitutional amendments".

    (New Mexico Statutes 1929, 41-210, L '27, Ch. 210. Sec. 210).

    "Sec. 92. Rights of Indians, Disabilities. Indians resident within this state have the same rights and duties as other persons, except that while maintaining tribal relations:

    1. They cannot vote or hold office; and

    2. They cannot grant, lease or incumber Indian lands, except in the cases provided by
 
 



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DEPARTMENT OF THE INTERIOR

JANUARY 26, 1938

special laws". (Compiled laws of S. Dak. 1929, Sec. 92.).

    "Sec. 1. Qualifications of electors, - All male persons of the age of 21 years or over, possessing the following qualifications, shall be entitled to vote at all elections: They shall be citizens of the United States; they shall have lived in the state one year, and in the county 90 days, and in the city, town, ward or precinct 30 days immediately preceding the election at which they offer to vote; they shall be able to read and speak the English language: Provided, that Indians not taxed shall never be allowed the elective franchise; and further provided, that this amendment shall not effect the right of franchise of any person who is now a qualified elector of this state * * *"

    (Constitution of Washington, Article VI, Elections and Elective Rights.)

    In certain other States laws which do not in terms discriminate against Indians are said to be construed and applied in such a manner as to effectuate such discrimination. The present opinion will consider those statutes which expressly and admittedly disfranchise Indians, rather than statutes which may accomplish a similar result through indirection. It may be noted, however, that the courts have clearly recognized that wherever express statutory discrimination against a class is unconstitutional similar discrimination by indirection, e.g., denial of the franchise through the "Grandfather Clause" is equally unconstitutional. Guinn v. U.S. 238. U.S. 347, Myers v. Anderson, 238 U.S. 368, Nixon v. Herndon, 273 U.S. 536.

    The fifteenth amendment to the Constitution of the United States provides:

    "Sec. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    "Sec. 2. The Congress shall have the power to enforce this article by appropriate legislation."

    The United States Supreme Court in numerous cases has given effect to this amendment:

    As was said by that Court in United States v. Reese, 92 U.S. 217, 218,

    "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude. This, under the express provisions of the second section of the amendment, Congress may enforce by 'appropriate legislation.' "
    Effect was given to this doctrine in the leading case of Neal v. Delaware, 103 U.S. 370, 389, in which the Supreme Court ruled that a provision of the Delaware constitution restricting the right of suffrage to the white race had been invalidating by the passage of the Fifteen Amendment. The court declared:
    "Beyond question the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitution, or render inoperative, that provision which restricts the right of suffrage to the white race."
    Similarly in the case of Guinn v. United States, the Supreme Court held unconstitutional a "Grandfather Clause" in the constitution of Oklahoma. While recognizing that qualifications of voters are primarily a matter for State determination, the Supreme Court declared:
    " (b) But it is equally beyond the possibility of question that the Amendment in express terms restricts the power of the United States or the States to abridge or deny, the right of a citizen of the United States to vote on account of race, color or previous condition of servitude. The restriction is coincident with the power and prevents its exertion in disregard to the command of Amendment. But while this is true, it is true also that the Amendment does not charge, modify, or deprive the States of their full power as to suffrage except of course as to the subject with which the Amendment deals and to the extent that obedience to its command is necessary. Thus the authority over suffrage which the States possess are coordinate and one may not destroy the other without bringing about the destruction of both.

    " (c) While in the true sense, therefore, the Amendment gives no right of suffrage, it was long ago recognized that in operation its prohibition might measurably have that effect; that .is to say, that as the command of the
 
 


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