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876

DEPARTMENT OF THE INTERIOR

FEBRUARY 17, 1939

validity of the tax as a regulation measure and not a revenue measure was apparently not then considered.

    There remain the questions (a) whether an intermarried nonmember doing business on the reservation can be held to be a person not entitled reside on restricted land if he fails to pay a legitimate tax, and (b) whether a tax on a nonmember doing business is legitimate if it is not related to the doing of business as, for example, a poll tax or a tax on property not connected with the business.

    In response to question (a) I would say that if such a nonmember is residing on tribal land, he could be removed therefrom under section 1(i) of Article IV of the Rosebud Constitution as the tribal council has full power to determine the conditions upon which members and nonmembers shall reside on tribal land. In my opinion of October 25, 1934 (55 I. D. 14, 45-50), I held that a tribe may tax nonmembers who accept privileges of trade and residence and may determine the conditions upon which persons shall be permitted to enter its domain, reside therein, and do business, whether the lands of the reservation are owned by the tribe or not, provided its action is "consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority."

    An intermarried nonmember residing on the restricted land of himself or his spouse should probably be considered within the exception rather than the rule in the foregoing holding of the power of the tribe to tax or condition: the residence of a nonmember, as he has a lawful right to reside on the land independent of tribal consent. Therefore, if the tribe should adopt an ordinance laying a legitimate tax on all nonmembers doing business within the reservation, I doubt whether the tax could be legally enforced against intermarried non-members residing on their own or their spouses' land by removal from such land but some other means of enforcement against such nonmembers should be found, such as closing down the business or outlawing it and penalizing members trading with it. In the case of Buster v. Wright, 135 Fed. 947 (C.C.A. 8th, 1905), app. dism. 203 U.S. 599, it was held that the business of white traders refusing to pay the tribal tax could be closed where under Federal law they could not be removed from their land within the reservation.

    In response to question (b) a tax upon a non-member doing business within the reservation is legitimate, in my opinion, even though the tax is unrelated to the doing of the business, since the nonmember doing business is among the class of persons subject to tribal taxation. The tribal constitution in providing for the levying of "taxes or license fees" upon nonmembers doing business within the reservation seems to contemplate the imposition of general types of taxes as well as the fees connected with the licensing of the business.

    While you raise no specific question concerning any of the other provisions of the proposed ordinance, I have reviewed this ordinance and find no legal objection to any of the remaining provisions. I might add that the so-called "tax" on Government employees, although not actually a tax because not a compulsory levy, might better not be designated a tax and not be included in a tax ordinance in order to avoid a possible misunderstanding among the Indians, employees or outsiders, namely, that a tribe may legally tax Government employees.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


TIMBER CONTRACTS--MINIMUM STUMPAGE RATE

February 17, 1939.


 Memorandum for the Assistant Secretary:

    In the attached letter dated November 7, relating to the assignment of the Antelope Valley Unit, Klamath Reservation timber contract dated June 20, 1923, from the Algona Lumber Company to the Kesterson Lumber Company, the Assistant Commissioner of Indian Affairs requests advice as to the minimum stumpage rate applicable to two individual allotment timber contracts which specify a rate of $4.35 per thousand feet for yellow pine whereas the basic rate specified in the general contract is $3.75 per thousand feet for this class of timber.

    In my opinion, the minimum rate of the allotment contracts must be considered to be $3.75 per thousand feet, B.W., for yellow pine, the same as the minimum rate for the general contract.

    Following and advertisement for bids, which included the timber on allotted lands as well as that on unallotted lands, the general contract was entered into and approved by the Secretary of the Interior on September 13, 1923. It provides for basic prices of $3.75 per thousand feet of yellow pine, $1.50 per thousand feet of Douglas fir and incense cedar and $3.75 per thousand feet of all other species of timber. The contract further provides three year periods beginning April 1, 1928, and authorizes price reductions to the basic prices in certain circumstances. The general contract, while defining an area which includes both un-
 



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allotted and allotted lands, covers timber only on unallotted lands and "authorizes the Purchaser to enter into separate contracts with Indians holding trust-patented allotments within the limits of the area above defined * * * for the purchase of their timber, subject to Indian Service regulations and according to the terms of this general contract and the General Timber Sale Regulations approved April 10, 1920."

    The individual allotment contracts with which we are concerned were executed June 29, 1928, and cover allotted lands within the Antelope Valley Unit. They provide for the sale of the merchantable timber on the respective allotments at the rate of $4.35 per thousand feet for yellow pine, $1.74 per thousand feet for Douglas fir and incense cedar and $0.87 per thousand feet for all other species "subject to the same regulations and provisions for periodic increase in price as the general contract approved September 13th, 1923." The prices thus specified are the same as the rates in effect in connection with the general contract at the time the allotment contracts were executed. It is further provided that timber "will be considered merchantable as provided in the attached regulations and in accordance with the terms of the general contract for this unit approved September 13th, 1923."

    Thus, it may be seen that the individual allotment contracts are not independent agreements but are related and subject to the provisions of the general contract. They are made so specifically by the provisions of both the allotment contracts and the general contract. Accordingly, the allotment contracts must be interpreted in the light of the provisions of the general contract to arrive at the actual intent of the parties. If this is done the conclusion is inescapable that the price provisions of the general contract were intended to control the allotment contracts inasmuch as all the contracts were executed as a part of a single transaction based on one advertisement and the proposals responsive to it. The specification of the rate of $4.35 per thousand feet for yellow pine in the two allotment contracts being considered is due to the fortuitous circumstance that this rate was prevailing in connection with the general contract at the date the allotment contracts were executed and, as such, should not be considered as establishing a basic rate for those contracts different from that of the general contract and the other allotment contracts.

    Indeed, any other view would result in holding the two allotment contracts unauthorized as not having been made in accordance with the terms of the general contract and, therefore, not made after due advertisement as required by section 15 of the Regulations and Instructions for Officers in Charge of Forests on Indian Reservations, approved February 5, 1918.

    In the letter of the Assistant Commissioner it is pointed out that in the general contract the lumber company agreed to enter into individual allotment contracts within two months after the date of approval of the general contract and that the two allotment contracts under consideration were not entered into until approximately five years after that date. I am unable to see that this circumstance has any bearing on the determination of the question presented. It involves a contractual provision which must be considered to have been waived inasmuch as the contracts have been recognized and accepted by the Department since their execution.

    It is my opinion, therefore, that the two individual allotment contracts containing the specified rate of $4.35 per thousand feet for yellow pine must be held to have the same basic stumpage rate for that type of timber as the general contract and the other allotment contracts, namely, $3.75 per thousand feet.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


ISSUANCE OF DEEDS TO ALASKAN
NATIVES

 

February 17, 1939.


Memorandum to the Assistant Secretary:

    The Indian Office in a letter to the Secretary of the Interior dated May 19 reported that the law and regulations governing the issuance of deeds to natives in Alaska by the town-site trustee had not been working as satisfactorily as might be desired from the point of view of protecting the interest of the natives in the lands they occupy. The difficulty reported was that the town-site trustees seemed to be exercising considerable discretion as to whether or not restricted deeds should be issued to the natives. It was suggested in that letter that the regulations be revised to omit any reference to certificates of citizenship and, secondly, to prohibit trustees from issuing other than restricted deeds to natives. The Indian Office then asked to be advised as to the authority of the trustee to issue unrestricted deeds to natives, the authority of the Department to authorize the trustee to issue such deeds and the legal steps to be pursued to remedy the situation if the issuance of unrestricted deeds was found to be improper. This letter of the Indian Office passed through the General Land Office without objection and was ap-
 



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proved by you on May 30 and referred to this office for consideration of the legal problems involved.

    In view of the necessity for revising the regulations on this subject promptly for purposes of codification, the General Land Office proceeded to revise the regulations governing the issuance of deeds to natives in town sites in Alaska in accordance with the suggestions advanced by the Indian Office. This revision was concurred in by the Indian Office, and the regulations were subsequently approved by you. In connection with their consideration by the Department, this office advised you in a memorandum dated June 18, 1938, that the revision was legally sound as the reference in the existing regulations to certificates of citizenship had no legal significance in view of the Indian citizenship act of June 2, 1924 (43 Stat. 253), and as there was no statutory authority for issuing unrestricted deeds to natives by the town-site trustee in his discretion or at the instance of the Secretary of the Interior.

    The questions of immediate concern raised by the Indian Office letter of May 19 were therefore satisfactorily disposed of. The remaining questions may be formulated as follows:

    1. Were the unrestricted deeds issued under the regulations of the Department to natives possessing certificates of citizenship improperly issued?

    2. Were the unrestricted deeds issued by the town-site trustee in his discretion to natives not possessing certificates of citizenship improperly issued?

    3. What remedies should be pursued by the Department to correct the situation if improper issuance of deeds occurred?

    Response to these questions requires a review not only of the statutes involved but of the previous attitude and decisions of this Department. The right of occupancy of the natives of Alaska in their lands was recognized and protected in the act of May 17, 1884 (23 Stat. 26), which provided that Indians or other persons in Alaska should not be disturbed in the possession of any lands actually in their use or occupation or claimed by them, but that the manner of acquiring title to such lands was reserved for future legislation. The act of March 3, 1891 (26 Stat. 1101) provided that pub lic lands might be entered for town-site purposes by a trustee, appointed by the Secretary of the Interior, who would thereupon convey title to the town lots to the inhabitants. These provisions did not refer to the natives. The first statute providing specifically for the conveyance to natives of title to the lands they occupied in towns and villages was the act of May 25, 1926 (44 Stat. 630; 48 U.S.C. secs. 355a, b, c, d). Section 1 provided for the issuance of restricted deeds to natives in existing town sites, and section 3 provided for the survey of native villages and the issuance of restricted deeds to the native occupants of these villages. Section 2 is not important in the consideration of this question. Section 4 authorized the Secretary of the Interior to prescribe appropriate regulations for the administration of the act. Because of the importance of the language in sections 1 and 3 these sections are set forth in full:
    "That where, upon the survey of a town site pursuant to section 11 of the Act of March 3, 1891 (Twenty-sixth Statutes, page 1095), and the regulations of the Department of the Interior under said Act, a tract claimed and occupied by an Indian or Eskimo of full or mixed blood, native of Alaska, has been or may be set apart to such Indian or Eskimo, the town site trustee is authorized to issue to him a deed therefor which shall provide that the title conveyed is inalienable except upon approval of the Secretary of the Interior: Provided, That nothing herein contained shall subject such tract to taxation, to levy and sale in satisfaction of the debts, contracts, or liabilities of the patentee, or to any claims of adverse occupancy or law of .prescription: Provided further, That the approval by the Secretary of the Interior of the sale by an Indian or Eskimo of a tract deeded to him under this Act shall vest in the purchaser a complete and unrestricted title from the date of such approval.

                *                                *                                *                                *                                *

    "Sec. 3. That whenever he shall find non-mineral public lands in Alaska to be claimed and occupied by Indians or Eskimos of full or mixed blood, natives of Alaska, as a town or village, the Secretary of the Interior is authorized to have such lands surveyed into lots, blocks, streets, and alleys, and to issue a patent therefor to a trustee who shall convey to the individual Indian or Eskimo the land so claimed and occupied, exclusive of that embraced in streets or alleys: Provided, That any patent or deed to be issued under this section shall be subject to all the provisions, limitations, and restrictions of section 1 of this Act with respect to Indian and Eskimo claims to land occupied by them within the limits of town sites established or to be established under said Act of March 3, 1891."
 



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OPINIONS OF THE SOLICITOR

FEBRUARY 17, 1939

    The first regulations issued under the 1891 town-site law construed the act as permitting the conveyance of title to the Indian occupants of the town sites (sec. 26, 12 L.D. 583). However, there was doubt whether this act should be applied to native occupants of the town sites and in a decision relating to the Indian possessions in the town site of Wrangell (37 L.D. 334 (1908)), it was definitely determined that the 1891 act was not such "further legislation" providing for the conveyance of title to Indians as was contemplated by the 1884 act. The Department was led to this determination by consideration of the fact that the 1891 act did not provide any restrictions upon the deeds which might be issued to the natives. It was thought that the conveyance of title to natives without any restrictions on alienation could not have been intended by Congress which had in other acts indicated an intent to protect the natives in the possession of the lands they occupied. As a result of this decision the regulations were revised to provide that if the town sites included lands possessed by native occupants such possessions should not be assessed nor conveyed but should be set apart by the trustee and designated as Indian possessions (37 L.D. 337, December 29, 1908).

    The 1908 regulations of the Department were amended in 1918 by Circular No. 580 (January 8, 1918, 46 L.D. 455), providing that Indian or native Alaskan occupants who had acquired certificates of citizenship under the territorial act of 1915, should be treated in the same manner as white citizens but that the lands possessed by other Indians or natives should not be assessed nor conveyed but set apart to them as Indian possessions. This provision was based upon the fact of the passage of the territorial act of 1915, and meant that natives with certificates of citizenship should be given fee title to their lands. This amendment of the regulations had remained until the 1938 revision. (See 50 L.D. 27, 46; Regulations of the General Land Office, 1930, at 266, 267). The territorial Act of 1915 (Alaska Session Laws, 1915, ch. 24, p. 52), provided a procedure whereby natives might prove the fact of their abandonment of tribal relations and adoption of the habits of civilized life under section 6 of the General Allotment Act (act of Feb. 8, 1887, 24 Stat. 388, 390), and thereby have the fact of their citizenship under that act established by a certificate of citizenship.

    After the passage of the 1926 act providing specifically for the conveyance of town-site lands to natives by restricted deed, regulations were promulgated under that act providing that the act applied only to natives who had not secured certificates of citizenship under the territorial law (51 L.D. 501; Circular No. 1082, July 20, 1926). These regulations under the 1926 act did, however, provide that ail deeds issued under that act should contain the restrictions on alienation, levy and sale and encumbrance designated in that act. It now appears that in the administration of the town-site laws and regulations the town-site trustee has been exercising discretion as to whether natives should receive restricted or unrestricted deeds though not possessing certificates of citizenship, based on his determination of whether or not the particular native has abandoned his tribal relations and adopted the habits of civilized life. From a review of the letters submitted by the Indian Office, it appears that this exercise of discretion by the trustee has resulted from the understanding of the General Land Office that natives leading a civilized life should be treated in ail respects as white citizens.

    Against this background of the relevant laws and regulations, the questions formulated may be answered in the following manner:

    1. If the legality of the 1918 amendment to the departmental regulations under the town-site law were presented to me as an original question at this time, I would question the justification for authorizing the issuance of an unrestricted deed to a native on the basis of his possession of a certificate of citizenship under territorial law. However, the validity of the regulations and of the deeds issued thereunder need not now be questioned, for the following reasons.

    The determination of the persons eligible to receive deeds under the 1891 town-site law was a matter left by that statute to the regulations of the Department. (See 12 L.D. 583, 595). The 1918 regulations did not conflict with any statute or court decision and it is improbable that any court would challenge their propriety at this date. In Johnson v. Pacific Coast S. S. Co., 2 Alaska 224 (1904), the court held that the 1891 act did not apply to native possessions because the natives were not citizens, and title to public lands could be acquired only by citizens, and because Congress probably intended to protect native possessions against loss. According to the legal theory of that time, drawn from the terms of the 1867 Treaty with Russia (15 Stat. 539) and section 6 of the General Allotment Act, Alaska natives who abandoned their tribal relations and led civilized lives were considered citizens, with the same rights and privileges as white citizens, and not wards of the Government, at least in the absence of guardianship legislation by Congress. See Nagle v. United States, 191 Fed. 141 (1911); In re Minook, 2 Alaska 200 (1904); United States v. Berrigan, 2 Alaska 442 (1905). Cf. as to the Indians in the United States,
 



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Matter of Heff, 197 U.S. 488 (1905).) The 1918 regulations of the Department reflected this theory. Later, with the extension of citizenship to all native born Indians (including Eskimos) and the increase of statutory restrictions on alienation of Indian property, the fact that the citizenship of the Indians did not affect their wardship became established and Alaska natives generally were recognized as wards of the Government, 49 L.D. 592; 52 L.D. 597; 53 I.D. 593; 54 I.D. 39. The territorial law providing for certificates of citizenship was repealed in 1933.

    Although the basis for authorizing the issuance of unrestricted deeds to natives possessing certificates of citizenship was removed by the 1924 general Indian citizenship act, the validity of any such deeds thereafter issued need not be questioned since the regulations of the Department providing for such deeds were impliedly recognized and ratified by Congress in the 1926 native town-site act. That act provided for the issuance of restricted deeds to tracts of land claimed and occupied by natives which had been set apart under the 1891 act and the regulations of the Department. Since the departmental regulations under the 1891 act provided for setting apart only of the lands claimed by natives not possessing certificates of citizenship, the 1926 act must be taken as a recognition of the issuance of unrestricted deeds to natives possessing certificates of citizenship. The 1926 act, in referring to tracts which have been or may be set apart under the regulations of the Department, was prospective as well as retrospective in recognizing the issuance of unrestricted deeds to natives whose lands were not set apart under the departmental regulations. It appears that the section of the regulations governing the issuance of unrestricted deeds to natives with certificates of citizenship was quoted and explained to Congress by the Interior Department in the Department's report upon the 1926 act, which report was incorporated in the reports of the Senate and House Committees on Indian Affairs (Senate Report No. 793, House Report No. 450, 69th Cong., 1st sess.), In accordance with this understanding of Congress and the Department, the departmental regulations under the 1926 act interpreted that act as endorsing and supplementing the departmental regulations under the 1891 act.

    2. Any unrestricted deeds which may have been issued by the town-site trustee to any native not possessing a certificate of citizenship were issued without authority in law or regulation, and any such deeds issued after the passage of the 1926 act were issued in direct violation of law. The effect and consequence of such action by the town-site trustee will be analyzed in connection (a) with deeds issued before the 1926 statute and (b) with deeds issued subsequent thereto.

    (a) It appears from the record that the town-site trustee believed, possibly on the basis of communications from the General Land Office, that he was authorized to convey title to any native leading a civilized life on the theory that such a native was a citizen. This was a mistake of law, for, while the Department might have authorized such conveyance by regulation, its regulations limited conveyance to native citizens with certificates of citizenship, and the trustee was bound by the regulations. Although the trustee exceeded his authority if any conveyances to natives without such certificates were in fact made, it does not follow that this Department should necessarily initiate action to attempt to correct the situation after the lapse of more than twelve years.

    In the first place, a patent for public lands, valid on its face and issued by the proper government agency, vests a legal title in the recipient although the patent might be voidable for mistake of law or fact in a court of equity. King v. McAndrews, 111 Fed. 860 (C.C.A. 8th, 1901). But equity is loath to disturb property rights after a long number of years where no statute has been violated. In the highly relevant case of LaClair v. United States, 184 Fed. 128 (C.C. Wash. 1910), the United States sought cancellation of certain patents to Indians on the ground that the Indians were not tribal members entitled to patents as their adoption as members of the tribe concerned was not approved as required by the Department. The court refused to cancel the patents, even if the departmental requirements of eligibility had not been fulfilled, saying that where the patents were issued with full knowledge of the facts property rights will not be disturbed after a long number of years because of mistakes or changes in interpretation of law by the Department.

    This reasoning is persuasive here. The Department repeatedly changed its interpretation of the application of the 1891 act to the natives. If the natives who received patents for their town-site possessions were in fact citizens, their possession of a territorial certificate in evidence of that citizenship would seem to be no more essential a departmental requirement for eligibility for a patent than the departmental requirement of approval of adoption into a tribe. Moreover, the absence of the evidence of citizenship was not a grave violation of departmental policy or regulation since such policy and regulation were based on the theory that natives who were citizens were entitled to obtain title to their possessions. Where nonessential requirements of departmental regulations have not been fulfilled in the issuance of patents, and no statute has been violated, and the interests of the Government have not suffered, the Department has refrained from initiating action to disturb the
 



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patents. 1L. D. 377; 5 L. D. 131; 8 L. D. 165; 34 L . D. 298; 37 L. D. 670; 40 I. D. 623.

    (b) Unrestricted deeds issued after the passage of the 1926 act to natives not possessing certificates of citizenship are on a different footing as such deeds were issued in violation of the terms of the 1926 statute. The Department should, therefore, take whatever steps it can to correct the situation.

    3. In determining the remedies available, the first consideration is the effect of the issuance of an unrestricted deed in a case where a statute requires a restricted deed. The applicable rule is that the courts will treat the deed or patent as if it contained the restrictions required by statute, even where to do so would defeat the interests of a bona fide purchaser. This principle has been applied in a suit by the United States against the purchaser to nullify the conveyance by the Indian (United States v. Hemmer, 241 U.S. 379; United States v. Joyce,  240 Fed. 610 (C.C.A. 8th, 1917)), and in a suit between the purchaser and the Indian or other purchasers from the Indian to determine the title (Taylor v. Brown, 40 N. W. 525, affd. 147 U.S. 640; Felix v. Yaksum, 137 Pac. 1037), and in a suit to enjoin taxation of the land in the hands of the Indian (Frazee v. Spokane City, 69 Pac. 779)

    The foregoing types of suits indicate the methods available to establish the restricted character of lands conveyed to natives by unrestricted deed in violation of the requirements of the 1926 act. It is recommended that these types of action be followed
in preference to attempting suits by the United States to cancel the unrestricted deeds issued by the trustee, at least where they were issued several years ago, in order to avoid the doubtful question whether the United States would be barred by the statute limiting suits by the United States to cancel any patent to suits brought within 6 years from the date of issuance of the patent (Act of March 3, 1891, 26 Stat. 1093, 43 U. S. C., Sec. 1166). In United States v. Joyce, supra, the court indicated that this statute of limitations might be a bar to an action by the United States to annul the unrestricted patent issued to the Indian but did not apply to the suit before the court seeking, in effect, the construction of the unrestricted patent as a restricted one. Furthermore, in LaClair v. United States, supra, it was so indicated that this statute might be a bar to a suit to annul a conveyance to an Indian, as distinguished from a suit to protect his interests in the land.

    However, before recommendation is made on specific legal steps to be initiated by the Department, it is important for this office and the Department to obtain precise information as to the issuance of unrestricted deeds by the town-site trustee since the 1926 act to natives not possessing certificates of citizenship, as to the present ownership of the land, in such cases, and as to the circumstances surrounding any alienation of the land from the ownership of the native or his heirs. This information is important in order to determine the most practical procedure. Moreover, it might be found where the circumstances surrounding cases of alienation of the land showed an alienation of which the Department would approve that the most desirable remedy would be approval by the Department of the alienation, pursuant to its authority in the 1926 act. Where no alienation has occurred, the native may be willing to relinquish his unrestricted deed to the trustee in exchange for a deed reciting the protective terms of the 1926 act.

    In summary, it is my opinion that the Department need initiate remedial action only in the case of unrestricted deeds issued by the town-site trustee since the passage of the 1926 town-site act to natives in Alaska not possessing certificates of citizenship, and that such remedies are available as the setting aside or approval of any conveyances made by the natives, or suit to prevent taxation of the land, or voluntary reconveyance of the land to the trustee and reissuance of the deed, with appropriate restrictions. To permit a determination of proper procedure, a report should be rendered by the General Land Office as to the facts surrounding the issuance of any such deeds, including the number, date and place, and as to the facts of alienation and present ownership.

                                                                                                                                   FREDERIC L. KIRGIS,

Acting Solicitor.


TAX EXEMPTION OF PURCHASED
RESTRICTED LAND

 

February 20, 1939.


Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith for further consideration the letter to the Superintendent of the Flathead Agency concerning the question whether and in what manner lands purchased by a Flathead Indian on a restricted deed form can be made nontaxable. The deed contains a statement that the land is conveyed under section 5 of the act of June 18, 1934, and is therefore exempt from State taxation, but the deed was made directly to the Indian and not to the United States in trust for the Indian as required by section 5 so that section 5 is inapplicable.

    An earlier draft of this letter was the subject of a memorandum to you from the Assistant Secretary, dated November 10, in which Secretary Chapman asked for a statement of the views of the Indian
 



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Office on the policy question presented. That question was the propriety of advising an Indian to avoid payment of taxes by transferring legal title to his land to the United States, particularly where the property is urban property and not a part of a tribal land consolidation program. The letter now presented for approval does not contain a clear statement of policy by the Indian Office but rather states the question and transfers it to the Superintendent for his decision. Strong justification, I believe, should be shown before the Department offers assistance in this case in view of the determination previously reached by the Department to refuse to accept any deed transferring land to the United States in trust for the grantor. (See section 6 of Circular No. L. A. 3162 of June 26, 1936). The particular procedure suggested in the letter, while it does not propose a direct transfer by the grantor of his land to the United States, does amount to the same thing through providing for accomplishing the same end by indirection, namely, conveyance of the land to the United States through an intermediary.

    In any case, the procedure suggested is open to legal objection in that it involves a conveyance of restricted property contrary to the terms of section 4 of the Indian Reorganization Act which provides that restricted lands shall not be transferred except to the tribe. The suggestions, therefore, contained in the letter should be abandoned.

    I should like to propose an alternative procedure for your consideration, and that is the application of the act of May 19, 1937 (50 Stat. 188), section 412 (a) of Title 25 of the United States Code, which provides that homesteads purchased prior to the date of the act shall be nontaxable provided the title to the homestead is subject to restrictions against alienation and the Indian owner selects as his homestead not more than a certain amount of agricultural or city property. Since the land in this case was bought as a home for the Indian before the date of this act, it appears that the Indian could take advantage of the provisions of this act by selecting the land as his homestead. 


Acting Solicitor.


PAPAGO ORDINANCE ON CATTLE
SALE

 

February 23, 1939.


Memorandum to the Commissioner of Indian Affairs:

    The Council of' the Papago Tribe adopted on November 5, 1938, a resolution authorizing the Superintendent of the Sells Agency, Arizona, to sell the increase from a tribal herd located at San Vicente Ranch, the proceeds to be deposited in a special individual Indian money account and to be available for the exclusive purpose of defraying the costs of administering the local revolving cattle program. The resolution appears to be an exercise of constitutional power contained in section 3 (a), Article V, of the Papago Constitution and is, therefore, reviewable by the Secretary of the Interior. The right of review, however, must be exercised within 90 days of the date of adoption of the resolution, in accordance with section 6, Article V. This period had virtually expired when the attached proposed letter which would have vetoed the resolution reached my office, and at the present time the right of review no longer exists. The resolution is, therefore, effective as of the date of its approval by the Superintendent of the Sells Agency.

    I agree with the general position taken in the proposed letter, and I suggest that the Indians should be informed of the views expressed therein as matters to be considered in their future activities. The portions of the letter which declare the veto of the resolution should, of course, be deleted. The papers are returned herewith.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


ESTATE OF MARY BIG ELK

 

March 11, 1939.


Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith the letter to the Superintendent of the Winnebago Agency discussing the heirship case of Mary Big Elk, as I have certain points to suggest for inclusion in that letter. The letter to Superintendent Parker deals with certain objections from Mr. Frank Beaver, Chairman of the Winnebago Tribal Council concerning action in the Department on the Mary Big Elk case.

    In this case Mary Big Elk, a Wisconsin Winnebago, attempted to devise lands on the Nebraska Winnebago Reservation to her granddaughter, Lena Big Elk, also a Wisconsin Winnebago. Since the granddaughter was neither an heir at law nor a member of the tribe having jurisdiction of the land, the Department proposed to disapprove the will unless the tribal council of the Nebraska Winnebago Tribe recognized the granddaughter as a member of the tribe under the provisions of the tribal constitution. The question of membership
 



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MARCH 11, 1939

was presented to the tribe and the tribe refused to recognize or adopt Lena Big Elk as a member.

    Mr. Beaver questions the interpretation by the Department of section 4 of the Indian Reorganization Act. His position is, in brief, that the words "such lands or interests shall * * * be devised * * * to any member of such tribe or such corporation, or any heir of such member" mean that the restrictions of section 4 apply only to members of the tribe having jurisdiction of the land. Accordingly, Mary Big Elk, as a nonmember of the tribe, was free to devise her land to her granddaughter. Mr. Beaver makes the further argument that an application of section 4 to a nonmember of the tribe having jurisdiction of the land would be an impairment of the vested rights of an allottee, outside the powers of the legislature.

    This last point made by Mr. Beaver is not discussed in the proposed letter. I believe it should be answered since it is an echo of the grave objections to the Indian Reorganization Act which the Indians in this area expressed. Mr. Beaver should be in formed that no person has a vested right to will his property as he pleases; that the right to make a will is not a natural, inherent or vested right, but is a privilege subject to the control and regulation of the legislature (United States v. Perkins, 163 U.S. 625; 28 R.C.L. 68; 68 C., J. 404). In fact the right of inheritance itself is not a natural or vested right but is a privilege granted and controlled by the legislature (Magoun v. Illinois Trust Bank, 170 U.S. 283; 18 C. J. 804). These principles are especially true in the case of the devise of restricted Indian lands, as the privilege of willing such lands is created by act of Congress.

    Mr. Beaver's interpretation of the words of section 4, above quoted, is an ingenious one. The proposed answer quoting from the Solicitor's opinion of November 7, 1934 (M. 27796), does meet Mr. Beaver's point by indicating the Department's position. However, in this connection reference might be made to the Solicitor's opinion of August 17, 1934 (54 1. 13. 584), which interpreted the words "any heir of such member" to mean "any heir of the testator" because of the legislative history and intent of the provisions and its necessary meaning when the section is considered as a whole.

    A further point raised by Mr. Beaver deserves to be answered. The following statement appears at page 1 of Mr. Beaver's letter: "We believe the Indian Reorganization Act applies to those Indian tribes who, under Section 18 of the Act, by a majority vote accepted the application of the Act." The argument that proceeds from this premise is that a nonmember Indian landowner should not be limited by any provision of the act. In answer to this argument it should be pointed out that while it is true that the provisions for tribal constitutions apply to tribes as such, other provisions of the act, such as section 4 limiting the devise of Indian lands, apply to all restricted Indian property on those reservations which accepted the act. If a Nebraska Winnebago Indian has land on the Sisseton Reservation, that land is not subject to the restrictions of section 4. Likewise, if a Sisseton Indian has land on the Nebraska Winnebago Reservation, the land is subject to section 4. It is from this reason that when the original elections were held on the various reservations to determine whether or not the Reorganization Act would apply, the right to vote was not restricted to members of any particular tribe. A Solicitor's opinion of December 13, 1934, held:

    "The Wheeler-Howard Act modifies the status of Indian restricted property on those reservations where the Act may apply. * * * Clearly those who own restricted property within the reservation have such an interest in the affairs of the reservation as to entitle them to vote on the question of whether basic changes should be made in the present system of property holding."
    In view of these considerations there is no force in the argument that section 4 does not or should not apply to nonmembers of the Nebraska Winnebago Tribe who have land on the Nebraska Winnebago Reservation.

    I further suggest that the extended quotation of the membership provisions of the tribal constitution be omitted as an unnecessary burden to the content of the letter.

                                                                                                                                FREDERIC L. KIRGIS,

Acting Solicitor.


INDIAN PREFERENCE IN BLACKFEET
OIL AND GAS LEASES

March 16, 1939.


Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith a letter to the Superintendent of the Blackfeet Agency concerning a proposed oil and gas lease between the Blackfeet Tribe and J. J. Galbreath, a Blackfeet Indian.

    The letter states that the application of Mr. Galbreath for an oil and gas lease should not be given favorable consideration. The reasons given for this conclusion are that the provisions in Article VII,
 



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section 3 of the Blackfeet Constitution, giving preference to members and associations of members in the leasing of tribal land, should not be held to apply to oil and gas leases and that if leases are granted to individuals without the usual public sale and payment of a bonus the individual will be in a position lo reap a harvest at the expense of the tribe. The letter adds that the member lessee would be able to sell or assign the lease to a nonmember operator and thereby himself obtain the bonus which the tribe should have obtained. It is then stated that if any individual members of the tribe are in a position actually to develop an oil and gas lease they can obtain the lease at public sale.

    I question the interpretation of the constitution made in this letter and the conclusions which follow therefrom. In the Indian Office letter of January 29, 1938, to the Chairman of the Blackfeet Tribal Council, approved by the Department on March 25, 1938, a contrary interpretation of the preference provisions in the tribal constitution was made. That letter discussed the advantages of the formation of an oil producers' cooperative by members of the Blackfeet tribe. Among other advantages
the following is listed:

"Such a cooperative would be entitled to lease tribal lands at reasonable fees without competing with non-Indian bidders under Article VII, section 3 of the Blackfeet constitution. In considering this point, however, it should be borne in mind that such leasing might possibly deprive the tribe of considerable money which would otherwise be received by it as bonuses for leases if advertised and sold at public auction; in other words, the association, composed of a part of the tribe only, might gain an important advantage at the expense of the tribe as a whole by not having to compete with others for lease of tribal lands. This would be an advantage to the association but a disadvantage to the tribe * * *."
The Department thus recognized that the preference provisions of the constitution did apply to oil and gas leases to members or associations of members of the tribe, although the tribe might not obtain the bonus obtainable through sale at public auction.

    The interpretation of the constitution provision made by the Department in 1938 is, in my opinion, the correct one. The term "lease" is universally used throughout the statutes and regulations governing the use of tribal land to include oil and gas leases. The charter of the Blackfeet Tribe in section 5 (b) 2 uses the term "lease" in a general sense and then refers specifically to oil and gas leases, thus indicating that the organization documents use the term "lease" to cover all types of leases.

    Since the preference provisions of the constitution must be held to apply to oil and gas leases to members and associations of members of the tribe, the question becomes one of how the tribe may secure a reasonable fee and otherwise protect its interests. Both the constitution and the charter place the original determination of this question upon the tribal council, which is authorized to make such leases, subject to the approval of the Secretary of the Interior. The tribe might require bidding upon oil and gas leases in order to estimate a reasonable bonus and nevertheless give preference to its own members in the securing of the lease. The Secretary of the Interior, before approving the lease, may require a showing by the tribal council as to the reasonableness of the consideration for the lease. The danger to which your office refers of having such a preferential lease assigned to a non-member may be avoided by a tribal or departmental requirement that such preferential leases shall not be assignable to nonmembers. Such a requirement would be reasonable to protect the tribe and prevent leases to members being used as a subterfuge. Moreover, in order for a member to be entitled to demand preference over nonmembers, he must, according to the provisions of the tribal constitution, be "able and willing" to use the land for the purposes of the lease, which, in the case of oil mining leases, would mean that he must be financially able to develop and operate the oil land leased.

    I suggest that the letter to the Superintendent be revised to advise him of the Department's interpretation of the leasing provisions of the constitution and of the considerations which should be taken into account by the tribal council in determining how the tribal lands shall be leased under the constitution and charter to members of the tribe.

                                                                                                                                FREDERIC L. KIRGIS,

Acting Solicitor.


ACQUISITION OF PUYALLUP TRIBAL
SCHOOL PROPERTY

 

March 25, 1939.


Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith the proposed report on H.R. 2653, a bill to authorize acquisition by the United States of complete title to the Puyallup tribal school property, as I should like to ask your
 



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consideration of two questions which have occurred to me in connection with section 2 of the proposed legislation. That section provides that the purchase price of over $220,000 shall be distributed in equal shares to the 340 members of the Puyallup Indian Tribe whose names appear on the tribal roll approved May 12, 1930. There is no reference to this provision in the proposed report, aside from the statement in paragraph 4, on page 2, that if the property were purchased by the Government it would practically close out the tribal property affairs of these Indians.

    My first question is whether the provision for the per capita distribution of a large capital asset of a tribe is consistent with the Department's principle that tribal assets shall be conserved and used for productive purposes. If this were a case of complete tribal disintegration, there might be grounds for an exception to this principle. However, your attention is called to the fact that the Puyallup Tribe is organized under a constitution approved May 13, 1936, providing for a continuing membership, a governing body and management of tribal assets and affairs. If the tribe becomes incorporated, it may undertake to handle credit funds for productive purposes.

    My second question is whether a distribution of this capital asset, assuming that such a distribution is required, should be made to the Indians whose names appear on the roll of May 12, 1930, rather than to the present membership of the tribe under
the tribal constitution. While the tribal roll, closed in 1929 and approved in 1930, was prepared as a "final" roll under the act of June 30, 1919 (41 Stat. 9), its purpose, I understand, was to provide a basis for distribution of tribal funds then existing. Since it is now 10 years old, it does not reflect the actual membership of the tribe and might require extensive administration of estates if it were used.

    I understand that this legislation was reported on over a number of years and it may be that the present report was not considered in the light of the changed circumstance arising from the organization and reconstruction of the tribe.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


IRRIGATION PROJECTS-CONSTRUCTION COSTS

M-30133                                                                                                                                                    April 13, 1939.

Synopsis of Solicitor's Opinion

Re:

Whether the act of July 1, 1932 (47 Stat. 564), deferring the collection of construction costs against Indian-owned lands within Indian irrigation projects until the Indian title thereto shall have been extinguished, is applicable to lands within Indian irrigation projects which were formerly owned by non-Indians and covered by repayment contracts and which were purchased for the Indians pursuant to the act of July 18, 1934.
Held:
That such lands come within the purview of the act of July 1, 1932, and are not subject to construction cost assessments so long as they remain in Indian ownership; that the collection of the unpaid portion of the construction costs chargeable against such lands should be held in abeyance until the lands are transferred to white owners, at which time assessments may again be levied against the lands.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested with respect to certain questions, submitted by the Office of Indian Affairs, arising in connection with its land purchase program pursuant to the acts of June 18, 1934 (48 Stat. 984), June 20, 1936 (49 Stat. 1568), and June 25, 1938 (52 Stat. 1130).

    Under the authority of those acts, the Indian Office is engaged in an extensive program for the acquisition, with gratuity and tribal funds, of additional lands for the Indians. Included in the lands purchased are lands within Indian irrigation projects formerly owned by non-Indians and covered by contracts for the repayment to the United States of project construction costs. It has been the practice of the Indian Office to deduct from the purchase price for such non-Indian lands all construction charges accrued at the time of completing the purchase. The question arises, however, as to whether the unpaid portion of the construction charges on those lands come within the purview of the act of July 1, 1932 (47 Stat. 564), which provides:

    "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior is hereby authorized and directed 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




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all the circumstances under which such charges were made: Provided, That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished, and any construction assessments heretofore levied against such lands in accordance with the provisions of the Act of February 14, 1920 (41 Stat. L., 409), and uncollected, are hereby cancelled: Provided further, That a report shall be made to Congress annually, on the first Monday in December, showing adjustments so made during the preceding fiscal year: Provided further, that any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days."

    The question is stated thus:
    "We are in doubt as to whether it will be consistent with the act of July 1, 1932, supra, to assume that non-Indian lands under irrigation projects covered by repayment contracts for the full amount of the construction costs, when purchased by this Service for the Indian tribe, shall take the status of Indian lands under the provisions of that act and thereby be released from further assessment for construction costs while they continue in Indian ownership, or whether it was the intention of Congress that the provisions of the act should be applicable only to lands in Indian ownership at the date of that act and not applicable indefinitely to all non-Indian lands which may be acquired for the tribe at any time in the future."
    For the purposes of this inquiry, it is only necessary to consider the first proviso of the act of July 1, 1932, which reads:
  "Provided, That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished, and any construction assessments heretofore levied against such lands in accordance with the provisions of the act of February 14, 1920 (41 Stat. L. 409), and uncollected, are hereby cancelled: * * *."
It will be seen that the language of this proviso is broad and general. It provides for the deferment of collection of construction costs against "any Indian owned lands" until the Indian title thereto shall have been extinguished. While there is no mention in express terms of lands which might subsequently be acquired by or for Indians, neither are such lands expressly excepted. It would accordingly seem that in the absence of any clear indication of a contrary intention on the part of Congress, the language of the proviso should be given its full and natural import so as to apply to all lands in Indian ownership, irrespective of the date on which such lands were acquired. See In re David Bell Scarves, Inc., 52 F. (2d) 755, 756; Van Weiss v. Commissioner of Internal Revenue, 69 F. (2d) 439, 441, cert. den. 292 U.S. 655.

    There is nothing either in the act itself or in the debates or hearings with respect thereto which compels the conclusion that Congress intended to limit the scope of the provision to lands in Indian ownership at the time of the enactment of the act. On the contrary, it is evident from the terms of the proviso, and from the legislative history thereof, that it was designed as remedial legislation, the effectiveness of which for the purpose intended to be accomplished would be partially impaired by implying such a limitation.

    The act of July 1, 1932, is a consolidation of the substance of two separate bills (H. R. 10884 and H. R. 8898, 72d Cong., 1st sess.), which were introduced in and passed the House of Representatives. The first two clauses of the proviso here being considered were contained, in substantially their present form, in the latter bill which was identical with a bill (H. R. 5282) introduced in the House during the preceding session of Congress. The third clause of the proviso was added for purposes of clarification and the two bills were combined following hearings thereon before the Senate Committee on Indian Affairs.

    The report of the House Committee on Indian Affairs with reference to H. R. 8898 (H. Rept. 943, 72d Cong. 1st sess.), contains the report of this committee on H. R. 5282 (H. Rept. 996, 71st Cong. 2d sess.) In this latter report are included two memoranda of the Commissioner of Indian Affairs, which were transmitted with the favorable report of the Secretary of the Interior on the measure, setting forth the need for such legislation.

    From the memorandum of the Commissioner, dated January 15, 1930, it appears that assessments for construction charges, levied against Indian lands pursuant to the act of February 14, 1920, had ac-
 



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OPINIONS OF THE SOLICITOR

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cumulated and were accumulating against such lands due to the financial inability of the Indians to pay such charges. It further appears that the existence of such accrued charges was operating to discourage the Indians from cultivating their lands on the erroneous belief that by not irrigating the lands the construction charges would be avoided and was hindering the sale of Indian allotments for the benefit of old or indigent Indians or for the benefit of the heirs and resulting in a lesser price being received for such lands.

    It was this situation which the legislation was intended to remedy. The Commissioner of Indian Affairs believed that the bill would keep the Indians upon the soil and encourage them to cultivate and obtain the beneficial use of irrigable lands and at the same time would also benefit the Indians by tending to increase the price obtainable for allotments subsequently sold. That this was the purpose of the legislation is also made plain in the discussion in the House with respect to the bill (Cong. Rec., Vol. 75, p. 8144 et seq.) and in the hearing be fore the Senate Committee on Indian Affairs, dated May 25 and 26, 1932. But while the existence of accrued construction charges created the justification and need for the legislation, it was recognized clearly in the debates and the hearings on the bill that the situation was one which would continue to recur unless the cause were removed. It was accordingly deemed necessary and intended not only to wipe out past assessments against Indian lands but also to preclude future assessments for construction charges against Indian-owned lands so long as they remain in Indian ownership.

    There is no specific indication in the debates or hearings on the bill that future acquired Indian lands within an Indian irrigation project were intended to be included within the scope of the legislation. But to exclude such lands from the operation of the act would make them subject to assessment for construction charges and thus defeat the apparent policy and purpose of Congress to prevent the recurrence in the future of the conditions which gave rise to the measure. And it is a generally accepted rule of construction that, unless precluded by its language, an act should be given effect consistent with the legislative purpose. See Piper v. Willcutts, 64 F. (2d) 813, 814; Fire Companies Building Corporation v. Commissioner of Internal Revenue, 54 F. (2d) 488, 489; Industrial Research Corporation v. General Motors Corporation, 29 F. (2d) 623, 626; Rodenbough v. United States, 25 F. (2d) 13, 15.

    Moreover, commencing with the act of January 26, 1933 (47 Stat. 776), Congress enacted a series of moratoria acts deferring the payment of construction charges on Indian irrigation projects under rules and regulations prescribed by the Secretary of the Interior. In a letter from the Commissioner of Indian Affairs to Supervising Engineers, dated July 21, 1933, and approved by the First Assistant Secretary on July 14, 1933, in which rules and regulations pursuant to the moratoria acts of January 26, 1933, supra, and March 3, 1933 (47 Stat. 1427), were promulgated, the following statement appears:

    "The foregoing regulations do not apply to Indian-owned lands under these projects, such lands not being subject to construction assessments as long as the title thereto remains in the Indians. See the act of July 1, 1932 (47 Stat. L. 564) ."
And a letter, dated May 2, 1934, from the Secretary of the Interior to the Chairmen of the House and Senate Committees on Indian Affairs also discloses a clear understanding that the moratoria acts granted relief to "non-Indian owners of land."

    No regulations other than those above referred to were ever issued under the moratoria acts affecting Indian irrigation projects. And in none of the discussions in Congress relating to those acts, including the acts of June 13, 1935 (49 Stat. 337), and April 14, 1936 (49 Stat. 1206), which were enacted subsequent to the issuance of such regulations and after additional lands were authorized to be acquired for the Indians by the act of June 18, 1934, supra, is there any indication that the moratoria acts were intended to have broader compass than that ascribed to them by this Department. It is accordingly reasonable to assume that the contemporaneous construction by the Secretary of the Interior, limiting the application of the moratoria acts to non-Indian lands, received the tacit approval of Congress.

    If, therefore, the moratoria acts were not intended to apply to lands within Indian irrigation projects purchased for the Indians since the enactment of the act of July 1, 1932, supra, then it must follow either that such lands were intended to continue to be burdened with construction cost assessments, although all other lands within such projects and all lands within United States reclamation projects were relieved of such charges during the depression years, or that such lands came within the operation of the act of July 1, 1932, which defers assessments for such charges until the Indian title thereto is extinguished. It is my opinion that the first alternative is unreasonable. I must accordingly conclude that the moratoria acts were not made applicable to lands within Indian irrigation projects acquired for the Indians under the authority of the act of July 18, 1934, because it was the understanding of Congress that relief with respect
 



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DEPARTMENT OF THE INTERIOR

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to construction cost assessments against such lands was granted under the provisions of the act of July 1, 1932.

    There is further evidence of the sense of Congress in regard to the act of July 1, 1932. The reports of both the Senate and House Committees on Indian Affairs on S.1318 (act of June 22, 1936, 49 Stat. 1803) state (S. Rept. 1715 and H. Rept. 2369, 74th Cong. 2d sess.):

"On July 1, 1932, an act was approved (47 Stat. 564), authorizing the Secretary of the Interior to adjust or eliminate reimbursable charges accrued upon lands within reclamation projects on Indian reservations when owned by Indians. No authority was granted by that act to the Secretary to adjust similar charges on lands owned by non-Indians. The Committee feels that the owners of both lands should be dealt with on the same basis, and the measure here recommended is designed to accomplish that purpose."
    Inasmuch as these reports were made and the act of July 22, 1936, was passed at the time when additional lands were being purchased for the Indians, and in view of the clearly expressed purpose of Congress to deal with all lands within Indian irrigation projects on the same basis with reference to the adjustment and elimination of irrigation charges, it would seem that unless Congress had understood the act of July 1, 1932, to be applicable to Indian lands within Indian irrigation projects acquired after that date, the act of June 22, 1936, supra, would also have embraced those lands and would not have been confined to non-Indian lands.

    For the foregoing reasons, I am of the opinion that non-Indian lands within Indian irrigation projects subsequently purchased for an Indian tribe come within the scope of the act of July 1, 1932, and are not subject to construction cost assessments so long as they continue to be so owned. It is my view that it is neither necessary nor proper to eliminate or to recommend to Congress the elimination of any construction costs which are equitable and just charges against such lands. The collection of the unpaid portion of such construction costs should be held in abeyance until the lands are transferred to white owners, at which time assessments may again be levied against those lands.

    I also concur in the opinion expressed in the penultimate paragraph of the letter of submittal that "with respect to now owned Indian land which was in Indian ownership at the time of the passage of the act of July 1, 1932, * * * there are no accrued construction assessments to be taken into consideration in purchasing such allotments of irrigable lands for the tribe, and that since the title after the purchase will be in Indian ownership, no assessments may be levied as long as that status continues."

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: April 13, 1939.
OSCAR L. CHAPMAN, Assistant Secretary.

Memorandum for the Commissioner of Indian Affairs:

    You have requested my opinion on the question of whether an assignment made by the Pueblo of Santa Clara to a member thereof is governed by section 17 of the act of June 7, 1924, which provides:

    "No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior."
    Under the foregoing language, it must be held that if an assignment in the Santa Clara Pueblo amounts to a transfer of right, title or interest in real property, any purported assignment, whether to an Indian or to a non-Indian, made by the Pueblo without the prior approval of the Secretary of the Interior is without validity in law or equity. On the other hand, if an assignment does not convey an interest in the land itself, it does not fall within the scope of the statute cited. It becomes important therefore to distinguish between those transactions which convey an interest in real property and those transactions which, while relating to the use of real property, do not create an interest therein.

    This distinction has been considered by the courts in a great variety of cases, which seek to distinguish an interest in land from a mere license. A recent
 



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decision in the Circuit Court of Appeals for the Eighth Circuit holds:

    "A mere permission to use land, dominion over it remaining in the owner and no interest or exclusive possession of it being given, is but a license. (Citing authorities) " (Tips v. United States, 70 F. (2d) 525, 526.)
The essential characteristic of a license to use real property, as distinguished from an interest in real property, is that in the former case the licensee has no vested right as against the licenser or third parties. He has only a privilege, which the licenser may terminate.

    As Justice Holmes pointed out, in Marrone v. Washington Jockey Club, 227 U.S. 633, "A contract binds the person of the maker but does not create an interest in the property that it may concern, unless it also operates as a conveyance. * * * But if it did not create such an interest, that is to say, a right in rem valid against the landowner and third persons, the holder had no right to enforce specific performance by self-help. His only right was to sue upon the contract for the breach." (at page 636.)

    Put in its simplest terms, the rule is that a landowner does not transfer an interest in his land by allowing another to use the land. Thus, for instance, a member of the landowner's family, inasmuch as he is "a bare licensee of the owner, who has no legal interest in. the land," cannot derive from his legal privilege to use the land a right against the landowner or against third parties. Elliott v. Town of Mason, 81 Atl. 701 (N.H. 1911). See also Keystone Lumber Co. v. Kolman, 69 N. W. 165 (Wis. 1896).

    The distinction established by the cases between a license and an interest in land is entirely consistent with the purpose of the Pueblo Land Act of June 7, 1924.

    A reading of the legislative history of that act shows that it was designed to stop the loss of pueblo lands by stopping transactions from which a claim against the pueblo might ultimately be derived. Thus if a pueblo, under the guise of making assignments, should in effect grant a life estate or even a leasehold interest to an individual member of the pueblo, there would be a transaction upon which a claim adverse to the public might be founded either by the individual or by a third party to whom he might convey his rights. On the other hand, the action or inaction of the pueblo authorities in permitting a pueblo member to use a designated area of pueblo land would not of itself create any interest in land adverse to the title of the pueblo itself, any more than the decision of a family council to allot certain rooms or buildings to certain members of the family would constitute a transfer of an interest in land.

    In between these two extremes difficult "twilight zone" cases may appear. In these cases, the courts have looked to the intention of the parties to determine whether the transaction was intended to create a right against the landowner and against third parties. If it was so intended, the transaction must be regarded as a conveyance of an interest in real property. If not, a mere license relationship is established.

    Even the language of leasing will not suffice to create a lease relationship if the transaction leaves complete power over the land in the hands of the landowner. Thus, in the case of Tips v. United States, 70 F. (2d) 525, the court found that an instrument which used the terms "landlord", "tenant", "lease", etc. was nevertheless a mere license, because the so-called lessor, the War Department, had no power to lease the property or to grant more than a revocable permit to use the property.

    Applying the foregoing principles to the case of assignments made under the Constitution of the Santa Clara Pueblo, we find that the Constitution refers to "Individual rights of possession," and provides that the assignee may "rent to a pueblo member, or, with the approval of the council, to an alien, all lands under his possession, for a term not to exceed two years." (Art. VII, sec. 2.)

    Standing by itself, this language points strongly to the conclusion that an assignment conveys an interest in land,-but no more strongly than the language in the Tips case.

    Moreover, we must recall the salutary warning in Ex parte Tiger, 2 Ind. T. 41, 47 S.W. 304:

    "If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausibility in this reasoning. But they are strangers to the common law. They derive their jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew. With them, "to indict" is to file a written accusation charging a person with a crime."
    Equally relevant is the language of the court in McCurtain v. Grady, 1 Ind. T. 107, 38 S.W. 65:
    "The Choctaw constitution was not drawn by geologists or for geologists, or in the interests of science, or with scientific accuracy. It was framed by plain people, who have agreed among themselves what meaning should be attached to it, and the courts should give effect




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to that interpretation which its framers intended it should have."

    The only conclusion possible on the facts thus far presented to me is the general conclusion that the meaning to be attached to any assignment that may be made in the future by the Santa Clara Pueblo will depend upon the wishes of the Indians themselves. If they mean to create a bare license to use and enjoy tribal property, there is no statute under which the Secretary of the Interior can prevent the Indian assignee from using such property or prevent the pueblo from peaceably tolerating such use. There is no provision of the Constitution of the pueblo that prevents the Council from making an assignment of this nature. On the contrary the uniform decision of the courts has been that "lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common." (Sizemore v. Brady, 235 U.S. 441, 446.) The Solicitor has heretofore held:
    "The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create any vested rights in the occupant as against the tribe is supported by a long line of court decisions:

  "Sizemore v. Brady, 235 U.S. 441; Franklin v. Lynch, 233 U.S. 269; Gritts v. Fisher, 224 U.S. 640; Journeycake v. Cherokee Nation and United States, 28 Ct. Cls. 281; Sac and Fox Indians of Iowa v. Sac and Fox Indians of Oklahoma and the United States, 45 Ct. Cls. 287, aff'd 220 U.S. 481; Hayes v. Barringer, 168 Fed. 221; Dukes v. Goodall, 5 Ind. T. 145, 82 S. W. 702; In re Narragansett Indians, 20 R. I. 715; Terrance v. Gray, 156 N. Y. Supp. 916; Reservation Gas Co. v. Snyder, 88 Misc. 209; 150 N. Y. Supp. 216; Application of Parker, 237 N. Y. Supp. 135; McCurtain v. Grady, 1 Ind. T. 107, 38 S. W. 65; Whitmire, trustee, v. Cherokee Nation, 30 Ct. Cls. 138; Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178." (55 I.D. 14, 51.)

    Each of the foregoing cases must stand on its own bottom, as dealing with the particular tribe involved in the suit, but this line of cases creates at least a strong presumption that occupancy of tribal land by tribal members does not involve the conveyance of any interest in the land itself. This presumption is further strengthened by the fact that as an administrative matter Pueblo Indians have made, transferred, and exchanged many occupancy assignments since the enactment of the Pueblo Lands Act of 1924, just as other tribes have made similar assignments since the enactment of the almost identical provision in section 12 of the act of June 30, 1834 (4 Stat. 730; R. S. 2116) *, which goes back to the first decades of the Republic, and the Interior Department has permitted such transactions without ever insisting that all such assignments must have the prior approval of the Secretary of the Interior. Indeed, the Department has approved a host of constitutions and charters specifically exempting assignments from the need of departmental review or approval, and the Santa Clara Constitution explicitly provides that an ordinance affecting "private dealings in land within the pueblo" shall be subject to Secretarial approval only if it "affects persons who are not members of the pueblo." (Art. IV, sec. 1 (5).)

    Under this test, a license that merely establishes in the licensee a privilege to use a certain area of tribal land under specified conditions and subject to the paramount power of the licenser to terminate the license, would not create rights or duties towards persons not members of the pueblo and would not be subject to Secretarial approval, The test provided by the constitution of the pueblo is thus entirely consistent with the long-established practice of the Department, with the purposes of the Pueblo Lands Act, and with the reported decisions on the distinction between a license and an interest in land.

    At the present time no facts have been presented to me showing whether assignments that may be made in the Santa Clara Pueblo in the future will convey to the assignee any rights against the pueblo or against third parties. The Constitution itself provides that "Title to all lands of the pueblo, whether assigned to the use of individuals or withheld for the common use of the members of the pueblo, shall forever remain in the pueblo itself and not in the individual members thereof." (Art. VII, sec. 1.) The Constitution also provides that upon the granting of an assignment, "The grantee shall thereafter have full possession of said land, unless the council shall, in accordance with the constitution, bylaws, and ordinances of the pueblo, dispossess him of the same." (Art. VII, sec. 3.) Neither of these constitutional provisions is sufficient to define

__________

    * "SEC. 12. And be it further enacted, That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution. And if any person, not employed under the authority of the United States, shall attempt to negotiate such treaty or convention, directly or indirectly, to treat with any such nation or tribe of Indians, for the title or purchase of any lands by them held or claimed, such person shall forfeit and pay one thousand dollars: * * *"
 



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the incidents of assignment so as to establish conclusively that an assignment hereafter made will or will not be a conveyance of an interest in land. Apparently no bylaws or ordinances have been adopted on this question, and reliable evidence of the unwritten custom of the pueblo is not before me.

    It would be entirely improper for me to attempt to apply the general principles, above set forth, to an imaginary assignment that may be made to an imaginary Indian under an imaginary ordinance that has not yet been passed. When an actual assignment is made or proposed and the bylaws, ordinances, unwritten customs or expressed intentions of the parties which bear upon the issues above presented are laid before me, I shall be glad to render an opinion on the question of whether such assignment involves a conveyance of an interest in land and is therefore invalid without prior Secretarial approval.

    The foregoing discussion however should make clear the right of the pueblo to grant a mere license for the use of lands to the members of the pueblo. It should be equally clear, under the principles above set forth, that the pueblo lacks power to grant more than a mere license and that any oral transaction or written instrument purporting to grant an interest in land valid against the pueblo itself or against third parties would be void at law and in equity.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


LICENSING POWER OF STATE OVER
CALIFORNIA RANCHERIA DOG OWNERS

M-28958                                                                                                                                                      April 26, 1939.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested regarding the jurisdiction of the State of California in connection with the compelling of Indians residing on areas, known as rancherias, within the State to take out licenses for dogs owned by them.

    In my opinion the State of California is without jurisdiction to enforce such a requirement.

    The areas with which we are concerned are tracts of land of from 25 to 75 acres located within Sonoma County of the State of California, owned by the United States and purchased for the use of landless Indians in California with funds appropriated by Congress. See acts of June 21, 1906 (34 Stat. 325, 333), and April 8, 1908 (35 Stat. 70, 76). These areas have been assigned to and are now occupied by certain designate bands of Indians. They are, for all practical purposes, small reservations. Since the decision of the Supreme Court of the United States in the case of United States v. McGowan, 302 U.S. 535, moreover, there can be no question but what the specified areas are "Indian country." The conduct and activities of Indians within "Indian country" are not subject to the laws of the several States, the jurisdiction of the Federal Government in this respect being exclusive and plenary. United States v. Kagama, 118 U.S. 375; Solicitor's Opinion of October 25, 1934, 55 I.D. 14, 57-58.

    It is my opinion, therefore, that the State of California, and its political subdivisions, are without jurisdiction to compel Indians residing on rancherias within the State to obtain licenses for dogs owned by them and confined on the reservations.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: April 26, 1939.
OSCAR L. CHAPMAN, Assistant Secretary.

LAW AND ORDER--DUAL SOVEREIGNTY--
POWERS OF INDIAN TRIBES AND U.S.

 

April 27, 1939.


Memorandum for the Commissioner of Indian Affairs:

    The following questions have been put to me in connection with the law enforcement activities of Indian courts, including both the Courts of Indian Offenses under the Departmental regulations and the tribal courts under tribal codes, and of Indian police officers:

    (1) May an Indian Court exercise jurisdiction over acts committed by Indians on unrestricted lands within an Indian reservation, where the Indians concerned are properly before the court?

    (2) May an Indian court exercise jurisdiction over acts committed by Indians on lands outside of an Indian reservation, where the Indians concerned are properly before the court?

    (3) May an Indian police officer make arrests on unrestricted lands within an Indian reservation?

    (4) May an Indian police officer make arrests outside of an Indian reservation?
 



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I.

Jurisdiction over Acts Committed on
Unrestricted Lands

    Questions of court "jurisdiction" frequently turn out upon analysis to be a confused mixture of questions dealing with international law, constitutional law, statutory construction and common law principles. It is important, therefore, that we define the question that concerns us as clearly and realistically as possible. In asking whether an Indian court has "jurisdiction" over acts committed in certain areas we are concerned to ascertain whether such a court commits a wrongful act, that is to say, an act which is punishable, actionable, or enjoinable in a State or Federal court, if it orders the trial and punishment of an Indian who is before the court, on the basis of an act which that Indian has performed in the area designated.

    A question of jurisdiction arises when an Indian who is before an Indian court claims that the judges of such court are acting without proper authority and that such action, therefore, constitutes assault, false imprisonment, trespass, or some similar offense under State or Federal law. It is, therefore, necessary in passing upon such a jurisdictional question to inquire into the basis of authority upon which an Indian court acts. This is a subject which has been dealt with elsewhere at some length. The view point of this Department, as expressed in an opinion on "Powers of Indian Tribes", approved October 25, 1934 (55 I.D. 14), is to the following effect:

    "The attempts of the Interior Department to administer a rough-and-ready sort of justice through Courts of Indian Offenses, or directly through superintendents, cannot be held to have impaired tribal authority in the field of law and order. These agencies have been characterized, in the only reported case squarely upholding their legality, as 'mere educational and disciplinary instrumentalities by which the Government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian.' (United States v. Clapox, 35 Fed. 575; and cf. Ex parte Bi-a-lil-le, 12 Ariz. 150, 100 Pac. 450; United States v. Van Wert, 195 Fed. 974.) Perhaps a more satisfactory defense of their legality is the doctrine put forward by a recent writer that the Courts of Indian Offenses 'derive their authority from the tribe, rather than from Washington.' (W. G. Rice, Jr., "The Position of the American Indian in the Law of the United States," 16 Jour. Comp. Leg. (3d Ser.), Part 1, pp. 78, 93 (1934).

    "Whichever of these explanations be offered for the existence of the Courts of Indian Offenses, their establishment cannot be held to have destroyed or limited the powers vested by existing law in the Indian tribes over the province of law and order and the administration of civil and criminal justice." (at page 64)

    Recognition by the Supreme Court of the dual role of the tribe and of the Interior Department in providing disciplinary action over Indians not provided for by Federal criminal statutes is contained in the holding in United Stales v. Quiver, 241 U.S. 602, and the following quotation therefrom (page 605):
    "We have now referred to all the statutes. There is none dealing with bigamy, polygamy, incest, adultery or fornication, which in terms refers to Indians, these matters always having been left to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative officers."
    The authority of the Interior Department to establish Courts of Indians Offenses as an administrative means of educating and civilizing the Indians was analyzed with some thoroughness and upheld in the Solicitor's memorandum of February 28, 1935. This memorandum pointed out the number of cases in which the authority for promulgating law and order regulations by the Department is taken for granted by the courts. Bad Elk v. United States, 177 U.S. 529; United States v. Mullen, 71 Fed. 682 (D.C. Neb. 1895). See also United States v. Taylor, 33 F. (2d) 608, 612. The authority of the Department was found by the Solicitor to rest principally on the statutes placing supervision of the Indians in the Secretary of the Interior coupled with the long line of appropriation acts, through sixty years, appropriating funds for the pay of Indian judges and Indian police to maintain order on Indian reservations.

    The authority of the Indian tribes to control the conduct of members of the tribe through tribal courts and other disciplinary agencies has likewise been demonstrated, particularly in the Solicitor's opinion of October 25, 1934, above referred to (55 I.D. at 56-64). and has been unmistakably upheld in Ex parte Crow Dog, 109 U.S. 556, and United States v. Quiver, supra.

    Whether the Indian Court is an administrative Court of Indian Offenses or a tribal court, it appears that each has sufficient authority to include in its jurisdiction the trial and punishment of offenses by Indians which were committed on unrestricted land.
 



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    If, on the one hand, Courts of Indian Offenses be considered, as suggested in the Clapox case, to be not regular judicial bodies but "mere educational and disciplinary instrumentalities," the propriety of educational and disciplinary action which such "courts" undertake will depend upon the relationship between the court and the person disciplined. On this view the location of the offense to which the discipline is directed becomes unimportant. An Indian Service hospital treats a diseased Indian regardless of where the disease was acquired. An Indian Service teacher may control the conduct of his pupils and administer discipline on a railroad car traveling through Texas, as well as on restricted Indian land. (See Peck v. A. T. & S. F. Ry. Co., 91 S.W. 323.) An Indian will be regarded as married or divorced, a member of a given tribe, an eligible candidate for a certain position or office, regardless of where the acts leading to such a personal status may have taken place. So, if action of a Court of Indian Offenses is regarded as "educational and disciplinary" rather than strictly judicial, such action is not restricted in its horizon to a given territory. The Indian who assaults his fellow tribesman on fee patented land within the reservation is subject to disciplinary action by the Court of Indian Offenses in the same measure as if the offense had been committed on restricted Indian land. Perhaps the closest analogy for this "educational and disciplinary" theory of the functions of a Court of Indian Offenses is to be found in the common law of domestic relations. The common law still confers a disciplinary power upon parents with respect to their children. To a certain extent guardians generally may exercise such power over their wards. In none of these cases is the exercise of such authority limited by any consideration of the locality of the misconduct. (See Townsend v. Kendall, 4 Minn. 412, 77 Amer. Dec. 534.)

    In United States v. Earl, 17 Fed. 75, it was held that an Indian ward off the reservation nevertheless was in the charge of an Indian agent within the meaning of a statute forbidding the sale of liquor to such Indians. In Peters v. Malin, 111 Fed. 244, the court stated that wherever Indians are maintaining their tribal relations, the control and management of their affairs is in the Federal Government irrespective of the title to the land upon which they might, for the time being, be located. In that case the State law of guardianship was held not to apply to tribal Indians either at an industrial school off the reservation or on a reservation the title to which was in the Governor of Iowa. Moreover, the State criminal law was held not to apply to the removal of a child from a reservation and his detention from a Government school, indicating that these acts outside the reservation were of concern only to the Federal Government because of the personal relationship between the Government and its wards. "The relation of dependency existing between tribal Indians and the national government does not grow out of the ownership of the land either by the Indians or the government." (page 250.)

    This principle has been followed in administrative practice since the beginning. The Superintendents and the Courts of Indian Offenses have not in the past refrained from using corrective measures for violations of the regulations because the violations occurred on nontrust land. It may be doubted whether the Indian courts have ever made a practice of inquiries into the title of the land where the violation occurred. Nor have the departmental regulations required such inquiry and restraint. The 1904 law and order regulations of the Indian Office (sections 584-591, Regulations of the Indian Office, 1904) gave the Courts of Indian Offenses original jurisdiction over Indian offenses, including participating in the Sun Dance, contracting a plural marriage, preventing the attendance of children at school, and other misdemeanors committed by Indians "belonging to the reservation", without any limitation as to where the offense might be committed. It was not intended that Indians could dance the Sun Dance and practice polygamy with impunity simply because they did so on nontrust land. Such a distinction would have defeated the educational purpose of the regulations. On the contrary, the 1904 regulations went so far as to authorize police surveillance of the Indians leaving the reservation and to contemplate their arrest and punishment for infraction of the rules outside the reservation (sections 585-589).

    However, whatever may be the disciplinary authority of the Secretary of the Interior over the conduct of Indian wards outside an Indian reservation, the Indian reservation itself has been considered an area peculiarly set apart as a domain within which the Federal Government exercises guardianship over the Indians. This guardianship is extended to ail the Indians within the reservation, regardless of their residence or temporary location on unrestricted land. In the early days after the allotment act there was a tendency to withdraw protection from citizen and fee-patented Indians. This tendency was later reversed and Federal guardianship over tribal members has been recognized in spite of citizenship, possession of fee patents or residence on unrestricted land. A recent and far-reaching recognition of administrative supervision over ail Indians within the boundaries of the reservation is found in the case of United
 



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States v. Dewey County, 14 F. (2d) 784 (D.C., S.D. 1926); Aff'd Dewey County v. United States, 26 F. (2d) 435 (C.C.A. 8th, 1928). The following quotations which uphold the authority of the Department to make rules and regulations governing all the Indians on the reservation, particularly fee patent Indians residing on fee patented lands, are set forth because of their peculiar applicability to the question involved:

    "In the light of the plain determination of the question of the right, the power, and the duty of Congress to terminate this relation of guardian and ward, the [fee patent] Indians named in the complaint must be held to be wards of the government, unless there is legislation of Congress plainly indicating the intent and purpose to terminate the relation. Defendant urges consideration of the Act of June 25, 1910 (36 Stat. 855) * * *.

    "This, in my judgment, is far short of a congressional declaration that the relationship of guardian and ward shall, by the issuance of the [fee] patent, cease. It is simply a step recognizing some progress by the Indian as being competent to handle the particular piece of land, and the act grants to him only the power to manage and dispose of the particular land. There is neither language plainly expressing, nor from which it may be reasonably inferred, that there is any intent or purpose that they should be taken out of the tribe of Indians, that their tribal relations should cease, and they should have no further interest in the tribal lands or in the moneys to be paid for such lands; that they should, from that time forward, not be subject to the agent provided for the band of Indians to which they belong, nor to the rules and regulations promulgated by the Indian Department as to the government of the reservation and all of the Indians thereon, the education of their children, and the policy that the agent is required to work out with and for the members of the tribes. * * *

    "In the absence of further declaration on the part of Congress that the guardianship of the government shall terminate as to these Indians, it seems clear that it must be so held as to those Indians to whom [fee] patents have been issued, who are found by this record to be members of the Cheyenne band of Sioux Indians; that they all had their allotments; that they all resided on their [fee patent] allotments or near them within the original limits of the Cheyenne River reservation, and some of them within the diminished portions thereof; that all of said Indians, at all times mentioned in the complaint, appeared on the rolls at the Cheyenne River agency; that they are entitled to participate and partake of tribal funds and of the rents and profits of all tribal lands, together with the fact that the government maintains an agency and agent in charge of said tribe of Indians, including these particular Indians named in the complaint, are still wards of the government; that the government is still the guardian of all of these Indians, with control of their property, except in so far as that control of their property is released by the legislation above referred to, and the Indians are thereby granted the power to manage and control the particular piece of land involved in the fee-simple patent." (Italics supplied.)

    The foregoing authorities make it clear that if Indian courts are viewed as administrative agencies of the Interior Department, their authority is not limited to offenses committed on restricted land.

    If, on the other hand, the Indian courts are viewed as tribal courts, deriving their power from the unextinguished fragments of tribal sovereignty, it must be recognized that this sovereignty is primarily a personal rather than a territorial sovereignty. The tribal court has no jurisdiction over non-Indians unless they consent to such jurisdiction. Its jurisdiction is solely a jurisdiction over persons. We must therefore be aware of reading into the measure of this jurisdiction the common law principle of the territoriality of criminal law. As was said in the case of Ex parte Tiger, 47 S.W. 304, 2 Ind. 41,

    "If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausibility in this reasoning. But they are strangers to the common law. They derive their jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew."
    We must recognize that the general common law doctrine of the territoriality of criminal law has validity in practice only in so far as it is embodied in our criminal statutes. It is not a principle of logic or eternal reason. There are numerous well recognized exceptions to this doctrine.

    There are, in the first place, certain offenses for which citizens of the United States are punishable in United States courts, no matter where the offenses are committed (e.g., 18 U.S.C., Secs. 1, 5).
 



895

OPINIONS OF THE SOLICITOR

APRIL 27, 1939

The power of the Federal Government to govern the conduct of our citizens abroad by subjecting them, when they return to this jurisdiction, to trial and punishment for offenses committed abroad, has never been successfully challenged. (See The Appollon, 9 Wheat, 362, at 370.) If this power has been exercised, in fact, only in exceptional cases, that is because as a matter of policy it is generally believed that the power to punish for extra-territorial offenses should be invoked only under special circumstances.

    A second departure from the general rule of territoriality is presented by the jurisdiction vested in Congress over Indian affairs. It is well settled that this Congressional jurisdiction does not apply simply to the "Indian country" but applies to offenses no matter where committed:

"The question is not one of power in the national government, for, as has been shown, Congress may provide for the punishment of this crime wherever committed in the United States. Its jurisdiction is co-extensive with the subject-matter,-the intercourse between the white man and the tribal Indian,-and is not limited to place or other circumstances." (United States v. Barnhart, 22 Fed. 288.)
Again, it is a matter of policy, and not of law, to say how far Congress should extend its laws over Indians "off the reservation." The Indian liquor laws are the outstanding instance of a jurisdiction not limited to offenses committed within the reservation. (25 U.S.C. Sec. 241.)

    A third recognized departure from the territorial principle is found in the application of Federal laws to our citizens in certain Eastern countries. Americans committing offenses in uncivilized countries, for instance, are triable before United States consuls (22 U.S. Code, Sec. 180), and Americans committing offenses in China are triable in the United States Court for China (Biddle v. United States, 156 Fed. 759) over which the Circuit Court of Appeals for the Ninth Circuit exercises appellate jurisdiction (22 U.S. Code, Secs. 191-202).

    A fourth important limitation upon the doctrine of territoriality is the rule that in civil cases a court which has jurisdiction over the parties may consider all the elements of the case regardless of geographical considerations.

    If, then, an Indian court is to be considered a judicial organ of Indian tribal sovereignty, we must recognize that this sovereignty is not a strictly territorial sovereignty, but primarily a personal sovereignty. We may therefore approach the problem of defining the scope of this sovereignty without begging the question by assuming in advance that the sovereignty is limited to any particular kind of land. The recognized exceptions to the usual rule of territoriality are closer to the situation here presented than the rule itself.

    In defining the powers of an Indian tribe we look to Federal laws and treaties not for the basis of sovereignty but for the limitations on tribal powers. United States v. Quiver, 241 U.S. 602; Talton v. Mayes, 163 U.S. 376; Ex parte Crow Dog, 109 U.S. 556; Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734.

    As was said in the opinion of this Department on Powers of Indian Tribes, 55 I.D. 14, at page 19:

    "Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. The powers of sovereignty have been limited from time to time by special treaties and laws designed to take from the Indian tribes control of matters which, in the judgment of Congress, these tribes could no longer be safely permitted to handle. The statutes of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or its positive content. What is not expressly limited remains within the domain of tribal sovereignty, and therefore properly falls within the statutory category, 'powers vested in any Indian tribe or tribal council by existing law.' "
    In the absence of Federal law to the contrary, it is for the tribe to decide as a matter of its own public policy whether members of the tribe who may properly appear before the judicial agency of the tribe, shall be triable and punishable for acts committed on unrestricted land. The answer given to this question in the Law and Order Regulations approved by the Secretary of the Interior November 27, 1935, and approved by numerous tribal councils before and after that date, is unmistakable. Section 1 of Chapter 1 reads:
    "A Court of Indian Offenses shall have jurisdiction over all offenses enumerated in Chap-




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DEPARTMENT OF THE INTERIOR

APRIL 27, 1939

ter 5, when committed by an Indian, within the reservation or reservations for which the Court is established.

    "With respect to any of the offenses enumerated in Chapter 5 over which Federal or State courts may have lawful jurisdiction, the jurisdiction of the Court of Indian Offenses shall be concurrent and not exclusive. It shall be the duty of the said Court of Indian Offenses to order delivery to the proper authorities of the State or Federal Government or of any other tribe or reservation, for prosecution, any offender, there to be dealt with according to law or regulations authorized by law, where such authorities consent to exercise jurisdiction lawfully vested in them over the said offender.

    "For the purpose of the enforcement of these regulations, an Indian shall be deemed to be any person of Indian descent who is a member of any recognized Indian tribe now under Federal jurisdiction, and a 'reservation' shall be taken to include all territory within reservation boundaries, including fee patented lands, roads, waters, bridges, and lands used for agency purposes."

    The question remains, then, whether this statement of authority is in conflict with any Federal law.

    That the original sovereignty of an Indian tribe extended to the punishment of a member by the proper tribal officers for depredations or other forms of misconduct committed outside the territory of the tribe cannot be challenged. Certainly we can not read into the laws and customs of the Indian tribes a principle of territoriality of jurisdiction with which they were totally unfamiliar, and which no country has adopted as an absolute rule. That Indian tribes friendly to the United States acted to punish their members for depredations committed against whites outside of the Indian country is a matter of historical record. Will anyone claim that such punishment was unconstitutional? The fact is that the United States, over a long period, encouraged the Indian tribes to help in controlling the conduct of their members outside of the Indian country, and in order to encourage such control made the tribe responsible for such individual offenses.

    The analysis of Federal laws applicable to the situation under consideration indicates that the right of Indian tribal authorities to punish errant members of the tribe for offenses, no matter where committed, has not only never been denied but has been positively recognized. The act of June 30, 1834 (4 Stat. 731), which is still in many respects the basis of Indian administration, placed upon the Indian "nation or tribe" the responsibility of securing redress for depredations committed by individual members of the nation or tribe outside of, as well as within, the Indian country. The section in question, as amended by the act of February 28, 1859 (11 Stat. 401), appears today as section 229 of title 25 of the United States Code, reading as follows:

   "Sec. 229. Injuries to property by Indians. If any Indian, belonging to any tribe in amity with the United States, shall, within the Indian country, take or destroy the property of any person lawfully within such country, or shall pass from Indian country into any State or Territory inhabited by citizens of the United States, and there take, steal, or destroy, any horse, or other property belonging to any citizen or inhabitant of the United States, such citizen or inhabitant, his representative, attorney, or agent, may make application to the proper superintendent, agent, or subagent, who, upon being furnished with the necessary documents and proofs, shall under the direction of the President, make application to the nation or tribe to which such Indian shall belong, for satisfaction; and if such nation or tribe shall neglect or refuse to make satisfaction, in a reasonable time not exceeding twelve months, such superintendent, agent, or sub-agent shall make return of his doings to the Commissioner of Indian Affairs, that such further steps may be taken as shall be proper, in the opinion of the President, to obtain satisfaction for the injury. (R.S. Sec. 2156)."
    This provision placing responsibility upon the tribal authorities for the wrongs of individual Indians committed outside of the reservation clearly contemplates that the tribal authorities will deal in proper fashion with such individual Indians. While the occasion that gave rise to this legislation may have disappeared, the judicial basis of tribal action which the legislation assumed has never been challenged.

    Provisions similar to that above quoted are found in many treaties with Indian tribes. (See, for instance, Treaty with the Kiowas, etc., May 26, 1837 (7 Stat. 533), Secs. 3, 5; Treaty with the Comanches, etc., July 27, 1853 (10 Stat. 1013, Art. 5; Treaty with the Rogue River Indians, September 10, 1853 (10 Stat. 1018), Art. 6; Treaty with the Blackfeet, October 17, 1855 (11 Stat. 657) , Art. 11.)

    Federal laws affecting the personal status of Indians have no direct bearing upon our present problem. The General Allotment Law of Febru-
 



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OPINIONS OF THE SOLICITOR

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ary 8, 1887 (24 Stat. 390), as amended by the act of May 8, 1906 (34 Stat. 182), provides:

    "At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section 348, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside * * *" (25 U.S.C. sec. 349).
Because of this provision fee patent allottees have been held to be subject to the laws of the State wherever they may be within the reservation. Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th, 1921); State v. Monroe, 83 Mont. 556, 274 Pac. 840 (1929). However, this fact does not mean that so long as the fee patent Indians live within the outer boundaries of the reservation and maintain tribal relations they are not also subject to the rules and regulations of the Department and to the tribal ordinances governing tribal members. That they are so subject is stated in the recent case of United States v. Dewey County, from which extensive quotations to this effect are given above.

    Moreover, the allotment act certainly did not make a fee patented allotment a place of sanctuary on which even an unallotted member of the tribe may commit offenses without the risk of future punishment by his tribe. Fee patented lands are undoubtedly subject to State jurisdiction, but in the words of the Supreme Court, there is "no denial of the personal jurisdiction of the United States" (United States v. Celestine, 215 U.S. 278, 291), and neither is there any denial of the personal jurisdiction of the tribe. It is for the Federal Government itself to decide whether it shall retain jurisdiction over certain offenses by Indians, e.g., liquor offenses on fee patented land, and relinquish to the State jurisdiction over certain other offenses. Likewise, it is for the Indian tribe itself, subject only to limitation by Congress, to decide whether it shall retain jurisdiction over certain offenses committed by members of the tribe on such land.

    The fact that Federal courts have refrained from taking jurisdiction of Indian offenses on fee patented lands does not negative the jurisdiction of the Indian courts. Since the fallacy of identifying the jurisdiction of the one with the other is a ready one, an analysis of the fundamental distinctions between them is desirable.

    The Federal District Courts have been authorized by Congress to exercise jurisdiction over specific crimes committed by Indians or white people against Indians in the "Indian country" and in "Indian reservations." The Federal courts have no jurisdiction other than that granted by Federal statute. On the other hand, the Indian tribes retain all their original jurisdiction over their members except as may be limited by Federal statutes. Likewise, the authority of the Department to exercise administrative supervision over Indians is not based upon a statutory specification of crimes and criminal jurisdiction but, as previously indicated, upon a statutory duty of guardianship and Congressional authorization to maintain order on Indian reservations. See United States v. Quiver, 241 U.S. 602, at 605.

    The Federal court exercises an absolute and exclusive jurisdiction over Indians when their crimes fall within the circumstances covered by the statutes. There is no statutory authority for concurrent jurisdiction of State and Federal courts when an Indian or Indian land becomes subject to State jurisdiction. If the Federal courts have jurisdiction, the State courts do not, and vice versa. However, there is no prohibition on a determination by the Interior Department to exercise corrective measures over Indians within the reservation when the State has jurisdiction but refuses to handle the case or upon a similar determination by the tribe that members uncorrected by State action shall be subject to correction by the tribal court.

    Furthermore, the Federal courts are exercising judicial power as courts established by Congress pursuant to the United States Constitution, whereas the Department through the Court of Indian Offenses is not exercising judicial power but administrative guardianship powers and the tribe is exercising tribal powers over the persons of its members. The establishment of an Indian court and the extent of its jurisdiction is, therefore, in both cases an administrative policy question. No court is established where there is little restricted land. Courts are established, however, where there is much restricted land within a reservation. The Federal courts are obligated to take jurisdiction of crimes coming within the Federal statutes upon restricted lands regardless of administrative need. It would not be argued that there is any obligation on the part of the Department to provide corrective measures on such restricted lands if it is not advisable or necessary. In other words, it has often been recognized that the jurisdiction of the Federal courts and of the Indian courts does not coincide, since they derive their authority from different powers and function for different purposes.

    I have reviewed the Federal laws which might be viewed as restricting or limiting the power of an Indian court to try and to punish an Indian for an offense committed on unrestricted land
 



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within a reservation. I find no Federal law imposing any such limitation.

    Is there any provision of the Federal Constitution that precludes such exercise of jurisdiction? Would such an exercise of authority, in an area where the State may exercise a concurrent jurisdiction, constitute "double jeopardy" and violate the Fifth Amendment to the Federal Constitution?

    Even if it could be maintained, in the face of the decision in Talton v. Mayes, 163 U.S. 376, that constitutional limitations under the "due process" clause are applicable to an Indian court, there is no force in the argument that the exercise of jurisdiction by such a court in these cases would subject the offender to "double jeopardy." The fact that an offense committed outside of restricted Indian lands may be subject to punishment in State courts does not make it unconstitutional for the court of another sovereignty to punish the same person for the same act. The decided cases clearly establish the principle that an individual who in a single act offends against the laws of several jurisdictions may be constitutionally punished by the agencies of each jurisdiction.

    In the cases of Moore v. Illinois, 14 How. 13, the Supreme Court, per Justice Grier, declared:

    "* * * Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony. That either or both may {if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. The State of Ohio, (5 How. 432) that a State may punish the offense of uttering or passing false coin, as a cheat or fraud practiced on its citizens; and, in the case of the United States v. Marigold, (9 How. 560) that Congress, in the proper exercise of its authority, may punish the same act as an offense against the United States." (at page 20)
    Again in the case ot United States v. Lanza, 260 U.S. 377, the Supreme Court, per Taft, C. J., declared:
    "The defendants insist that two punishments for the same act, one under the National Prohibition Act and the other under a state law, constitute double jeopardy under the Fifth Amendment; and in support of this position it is argued that both laws derive their force from the same authority,-the second section of the Amendment, -and therefore that in principle it is as if both punishments were in prosecutions by the United States in its courts." (at pages 379 and 380)

    "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to act prohibited by the Amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other." (at page 382)

    In view of these decisions of the United States Supreme Court it is clear that the fact an act is punishable in State courts is no bar to punishment in an Indian court. There remains, of course, a question of public policy to be considered in asserting jurisdiction over acts which are subject to another jurisdiction. This question is met by a specific provision in the Law and Order Regulations above set forth, under which cases in which Indian tribal jurisdiction is concurrent with State jurisdiction are to be turned over to State authorities, if such authorities are willing to exercise jurisdiction. This is undoubtedly a reasonable provision in view of the fact that the State may be in many cases, unwilling to exercise even an admitted jurisdiction over Indians with respect to acts committed on unrestricted Indian lands within a reservation.

    It should further be noted that the Law and Order Regulations do not purport to cover offenses committed outside of Indian reservations. There is therefore no immediate occasion to consider the legal and administrative problems that would be raised by any such exercise of jurisdiction. It is enough for our present purposes to note that the exercise of jurisdiction by an Indian court, under
 



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the departmental law and order or tribal codes, does not diminish the jurisdiction of State courts, does not subject the offender to "double jeopardy," and is not prohibited by any known Federal statute.

    There remains the final question whether the action of an Indian court in trying and punishing an Indian for an offense committed within the jurisdiction of the State courts may violate any State law. While it is impossible to decide an issue of this sort in the abstract with entire certainty, it is enough to say that I know of no State legislation which would interfere with such exercise of jurisdiction by an Indian court, and since the matter is one that concerns the relations between an Indian and his tribe it would appear to be a matter on which State legislation would be ineffective. Worcester v. State of Georgia, 6 Pet. 514; United States v. Quiver, 241 U.S. 602; United States v. Hamilton, 233 Fed. 685; In Re Blackbird, 109 Fed. 139; In re Lincoln, 129 Fed. 247; and see Opinion M. 28568, approved December 11, 1936, on the right of State game wardens to make searches on an Indian reservation.

    In view of the foregoing authorities, I am of the opinion that an Indian court which orders the trial and punishment of an Indian before the court, on the basis of acts committed on unrestricted lands within an Indian reservation, does not offend
against any State or Federal law. The first question proposed is therefore to be answered in the affirmative.

II.

Jurisdiction over Acts Committed Outside
of Indian Reservation

    In view of the fact that the existing Law and Order Regulations and tribal codes restrict the jurisdiction of Indian courts to acts committed within an Indian reservation, and in view of the fact that no amendments to extend such jurisdiction over lands outside of Indian reservations are before the Department, the question of the legality of such jurisdiction need not be answered at this time.

III.

Arrests on Unrestricted Lands

    The legality of an arrest made by an Indian police officer on unrestricted lands within an Indian reservation will ordinarily be tested by an action for false imprisonment brought in the courts of the State. It will help us to avoid some of the confusions that have grown up around the term "jurisdiction" if we fix our attention upon the concrete question of the liability of an Indian Police officer for an arrest of an Indian who is subject to the jurisdiction of an Indian court, where such an arrest takes place on unrestricted land within the boundaries of the reservation.

    The question may then first be considered as one of State law.

    There is no dispute as to the general rule that when the peace officer of one sovereignty is outside the territory of that sovereignty, he is only a private citizen and can make arrests only as a private citizen and only for violation of the laws obtaining in that territory. Any other arrest or detention by such an officer will amount to false imprisonment. To this general principle, however, there are many exceptions established by statute or by common law.

    There are, in the first place, certain personal relationships which justify arrest or detention without regard to locality. The most notable example of such a relationship is that under which military and naval authorities are empowered to arrest, detain or discipline soldiers and sailors wherever they may be. Likewise, the commander of a ship may exercise similar powers over the crew, and in case of extreme necessity, over passengers as well. A similar rule has been applied to railroad conductors in relation to passengers. (See Peck v. A. T. & S. F. Railway Company, 91 S.W. 323.) Similarly, a patent may exercise custody over a child, school authorities may detain pupils, custodians of institutions may impose confinement upon those committed to their care, and generally speaking, a guardian may assert custody over his ward, without thereby becoming liable in damages or punishable in the criminal courts. In all these cases the custody is justified by the relationship between the parties, which is not limited to a particular locality. Thus, in the case of Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534, it was held that a guardian appointed in Ohio who followed his ward into Minnesota and there took custody of the ward was not liable in an action for false imprisonment. The court declared:

    "The power once conferred follows the person of the ward. It would lead to great inconvenience if it should be held that a guardian could not exercise his authority or be recognized outside of the State or locality of his appointment. Such a ruling would embarrass the guardian in investing the funds of his ward in securities of other States, and render it necessary that he should be reappointed in every State or country through which he should pass with his ward in traveling, if an emergency should arise in which it became necessary to assert his authority. * * * we think the better rule is, upon principle and authority, to recognize the foreign appointment of a guardian as creating that relation between the parties in
 


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this State, subject, of course, to the laws of this State, as to any exercise of power by virtue of such relation either as to the person or property of the ward."

    A second exception to the general rule that arrest or detention must be justified by the law of the locality has been established by statute in borderline cases where a strict application of the rule of territoriality would interfere with practical law enforcement. Thus, in the case of Helm v. Commonwealth, 81 S. W. 270, 271 (Ky.), the court declared:
    "The rule is admitted that ordinarily an officer's authority is limited to the district which elected him, but this is a matter within the legislative control, and his authority may by the Legislature be made coextensive with his county, although he is elected by one of its subdivisions."
See to the same effect State v. Seery, 95 Iowa 652, 64 N. W. 631.

    These examples are cited simply to show that the question of whether agents of another jurisdiction may make arrests within the jurisdiction of a given State is something which that State can decide for itself. There is no constitutional obstacle to prevent a State from allowing agents of another sovereignty to detain or arrest persons who have a peculiar relationship to that sovereignty.

    If the question is thus considered one of local law within the State in which the reservation is situated, no categoric answer to the question that is put to me can be made for all States. It may be helpful, however, to suggest certain general considerations upon the basis of which the detention or arrest of an Indian by an Indian police officer on land which is not restricted may be justified where the laws of the State are silent or ambiguous on the point.

    In the first place, it should be recognized that the general rule that a police officer has authority only within the territory of the sovereignty that he serves is not completely applicable to a police officer of an Indian reservation, for the reason that his authority is primarily a personal rather than a territorial authority. This personal relationship does not depend for its existence upon the tenure of the land upon which the arrest is made. Peters v. Malin, supra.

    In the second place, it should be pointed out that in an action for false imprisonment the existence of a personal relationship justifying custody is a defense. The authorities which set forth the bases of such a relationship cover, in principle, the "ward Indian" in his relationship to his tribe and to the United States. On this point, the decision in Townsend v. Kendall cited above, is extremely persuasive.

    In the third place, we recognize that the inconveniences which have led courts and legislatures to recognize exceptions to the rule of territoriality exist in a significant degree on a checkerboarded Indian reservation. If the power to make an arrest were controlled by questions of land tenure, we should have what has been called "government in spots." In the case of State v. Lott, 21 Idaho 646, the court declared:

    "If, on the other hand, the State has jurisdiction everywhere except on an Indian allotment, it would be 'government in spots' only, and the civil and police officers of the State would have to go armed with the latest revised maps and plats from the General Land Office in order to know where and when they could exercise the authority of the State in bringing offenders against its laws to justice."
    In view of the serious inconvenience that would be created by any such limitation upon the power to make arrests on a checkerboarded reservation, it should require an unmistakable statute or a clear judicial decision to justify the position that an Indian police officer has no authority over a "ward Indian" on unrestricted land within the reservation.

    Aside from the fact that under State law an Indian policeman may be privileged to arrest a tribal member on unrestricted land within the reservation for violation of departmental regulations and tribal ordinances, such an arrest may be said to be positively sanctioned by Federal law.

    Since the Indian Department Appropriation Act of May 27, 1878 (20 Stat. 63, 86), Congress has annually appropriated funds for the pay of Indian police to be employed in "maintaining order." For more than twenty years, in the period approximately from 1890 to 1910, the purpose of the employment of the police was described as follows: "to be employed in maintaining order and prohibiting illegal traffic in liquor on the several Indian reservations and within the Territory of Alaska, in the discretion of the Secretary of the Interior." For approximately the next twenty years their function was described simply as "maintaining order" with no specification of locality. The appropriation act of May 9, 1938 (Public No. 497, 75th Congress, 3d session) appropriates a fund for "maintaining law and order on Indian reservations" including the pay of judges of Indian courts and Indian police.
 


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