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901

OPINIONS OF THE SOLICITOR

MAY 20, 1939

  These acts place an obligation upon the Interior Department to provide for the maintenance of order among the Indians, at least within the reservations, if not without, and leave to administrative discretion the direction of the Indian police and the determination of the means necessary to accomplish the end. If it is necessary to the maintenance of order within an Indian reservation for the Indian police to arrest an Indian anywhere within the reservation for violation of the departmental regulations or tribal laws, authority for the action of the Indian police is found in these acts. In this connection it must be remembered that these acts have been passed annually for sixty years in the light of continued administrative practice and must be said to recognize and accept that practice. The past administrative practice has been to enforce the departmental regulations against the Indians everywhere within the reservations, whether by arrest or by the reduction of rations, as in the early days, or by other appropriate means. This practice was implicit in the 1904 Law and Order Regulations and was made more explicit in section 1 of chapter 1 of the 1965 Law and Order Regulations which provided that "For the purpose of the enforcement of these regulations, * * * a 'reservation' shall be taken to include all territory within reservation boundaries * * *."

    It has already been noted in considering question 1 above that the entire Indian reservation has been viewed as an administrative unit, for purposes of enforcing the Law and Order Regulations of the Department or the ordinances of the Indian tribe. This principle, we have noted, was recently expressed in the case of United States v. Dewey County, which described fee patent Indians on fee patent lands as subject to the rules and regulations of the Department for "the government of the reservation." The same considerations which lead to the view that such Indians are subject to regulations for the "government of the reservation" lead to the parallel conclusion that such Indians are subject to arrest where arrest is authorized under statutes providing for "maintaining law and order on Indian reservations." If Indians generally are subject to administrative control anywhere within the reservation, regardless of the status of the land on which they are found, it is reasonable to conclude that they are also subject to arrest anywhere within the reservation, as a necessary means to the exercise of that control.

    In view of the foregoing analysis, I am of the opinion that there is no legal reason to repeal or modify the existing Law and Order Regulations so far as they deal with the matter of arrests by Indian police officers. Specific questions that may arise in various jurisdictions on the basis of the statutes or common law of the various States will be dealt with as they arise, in the light of the foregoing general considerations and such special circumstances as may be involved in the particular case.

IV.

Arrests Outside of a Reservation

    The Interior Department Appropriation Act of May 9, 1938, is similar to a large number of previous appropriation acts, as indicated in connection with the third question, in providing for Indian police to maintain order "on Indian reservations." Such acts restrict the operations of the Indian police to the boundaries of the reservations. One such appropriation act was so construed by the Attorney General in his opinion of August 28, 1886 (18 Ops. Atty. Gen. 440), in which he informed the Interior Department that the Indian police had no ex officio jurisdiction beyond the reservation boundaries in view of the provisions of the appropriation act. Under existing laws and regulations, therefore, the fourth question proposed must be answered in the negative.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


 Approved: May 2, 1939.

OSCAR L. CHAPMAN, Assistant Secretary.

KLAMATH ENROLLMENT APPLICATIONS-
QUESTION OF ENROLLMENT OF CERTAIN INDIANS
BY BIRTH RATHER THAN BY
ADOPTION


May 20, 1939.


 Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith the 17 applications for enrollment with the Klamath Tribe submitted for the approval of the Secretary of the Interior. In each case in which the application was approved by the tribal enrollment committee that committee recommended that the enrollment be by adoption and this recommendation was approved by the Klamath General Council and the Superintendent of the Klamath Agency. The Indian Office, however, has recommended that 10 of these applicants be enrolled from birth rather than by adoption. Enrollment by adoption would mean that the applicants would be considered tribal members
 



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DEPARTMENT OF THE INTERIOR

MAY 20, 1939

from the date of the approval of their adoption by the Klamath General Council whereas enrollment from birth would entitle the applicant to be considered a member from the time of his birth with a right to share in all payments made since that time.

    In spite of the fact that the Department on September 25, 1936, approved a similar change in. the kind of enrollment from that recommended by the General Council, it is my opinion that the Department is not privileged to enroll an applicant by birth who has been accepted by the tribe only for enrollment by adoption. Such action would constitute the creation of membership rights without the consent of the tribe and would be contrary to the ruling made in my memorandum to the Commissioner of Indian Affairs of December 18, 1937, concerning the enrollment of children with the Prairie Band of Potowatomi Indians. In that memorandum I held that the Department may approve or disapprove changes in membership of a tribe made by the tribal authorities but that the Department could not itself create membership rights over the protest or without the sanction of the tribal authorities.

    The applicants in the instant case seek to be enrolled prior to June 1, 1939, in order that they may share in the payment to tribal members authorized by the act of June 1, 1938 (52 Stat. 605). That act provides that no member of the tribe shall receive the payment who shall not be enrolled within one year from the date of the enactment of the act. In view of the limited time I suggest that the Indian Office follow the action of the Klamath Tribe and the Superintendent and recommend the enrollment of the applicants by adoption, without prejudice, however, to the applicants to have their enrollment changed to that of enrollment by birth in place of by adoption if and when the Klamath General Council consents thereto.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.


CONTINUATION OF ALLOTMENT ACTIVITIES
AT FORT PECK RESERVATION-REJECTION
OF IRA IMPLICATIONS

M-30256                                                                                                                                                      May 31, 1939.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have referred to me for an opinion several questions raised by the Indian Office concerning the continuance of allotment activities on the Fort Peck Indian Reservation. The facts bearing upon the questions may be briefly outlined as follows:

    The original allotment of the reservation was undertaken pursuant to the act of May 30, 1908 (35 Stat, 558), which authorized and directed the Commissioner of Indian Affairs to cause allotments to be made under the general allotment laws to all the Indians belonging on the reservation. The surplus lands were to be opened to disposal and a system for the disposition of the entire reservation was provided for in the act. In accordance with this act allotments were made to all the Indians living at a certain date.

    The act of August 1, 1914 (38 Stat. 593), authorized the Secretary to make allotments to children on the reservation who had not received allotments, as long as any of the surplus lands remained undisposed of. Since the questions raised by the Indian Office center around the interpretation of this act of 1914, the relevant provision thereof is quoted:

    "* * * Provided, That the Secretary of the Interior is hereby authorized to make allotments in accordance with the provisions of the Act of May thirtieth, nineteen hundred and eight (Thirty-fifth Statutes, page five hundred and fifty-eight), to children on the Fort Peck Reservation who have not received, but who are entitled to, allotments as long as any of the surplus lands within said reservation remain undisposed of, such allotments to be made under such rules and regulations as the Secretary of the Interior may prescribe."
    For the purpose of carrying out this provision the Secretary of the Interior issued instructions on August 19, 1914, to the Superintendent of the Fort Peck Agency to allot each child in accordance with the 1908 act as long as the surplus lands remained undisposed of. The Superintendent was directed to make official allotment selections, to notify the local land office of the land selected, and to submit regularly a schedule of allotments to the Department with a certification that they had been made in accordance with the governing acts.

    After these instructions were issued, a schedule of allotment selections was annually submitted and approved through the year 1933. On February 15, 1934, the Superintendent submitted thirteen timber selections and was instructed by office letter of April 10, 1934, that the Department did not favor further allotment of the reservation and that the selections should be made a matter of record for future reference. The Superintendent then reported that 140 grazing allotments had been se-
 



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OPINIONS OF THE SOLICITOR

MAY 31, 1939

lected prior to the notification of April 10 of the policy of the Department and he asked advice concerning the right of use and occupancy of these selections and the disposition of rentals therefrom. He was instructed by office letter of June 28, 1934, that the rentals should be treated as tribal proceeds.

    Shortly thereafter the Indians of the Fort Peck Reservation rejected the application of the Indian Reorganization Act (act of June 18, 1934, 48 Stat. 984) and the question arose whether allotment of the surplus lands could and should be discontinued despite the fact that section 1 of the Indian Reorganization Act, prohibiting further allotment of Indian lands, did not apply to the reservation. The determination of the Indian Office, embodied in the letter of June 7, 1935, to the Superintendent, was that further allotment activity on the Fort Peck Reservation would be contrary to the policy of the Department to preserve lands in tribal ownership, particularly as the. lands of this reservation were not susceptible of effective individual use. The Superintendent was instructed to make no further allotment selections and was informed that the unapproved allotment selections would not be
submitted for approval. The Solicitor advised the Indian Office by a memorandum of September 16, 1935, that he was not convinced of the authority of the Secretary of the Interior to deny approval for reasons of land policy to allotment selections already made.

    The persistence of the Indians in seeking the approval of the pending allotment selections and the continuance of allotment of the surplus lands has caused the submission of the present questions for an opinion of the Solicitor. The questions will be answered in the order in which they have been 1 presented.

    1. "If under existing law allotments can be made on the Fort Peck Reservation, is the present authority of law a continuing one under which allotments may be made indefinitely?"
    Under existing law allotments may be made on the Fort Peck Reservation and the authority for making such allotments will continue until further act of Congress or until the surplus lands have been completely disposed of. Since the Indians rejected the application of the Indian Reorganization Act, there is no prohibition on the making of allotments applicable to the reservation. The conclusion is fortified by the act of June 15, 1935 (49 Stat. 378), which provided that all laws affecting any Indian reservation which voted to exclude itself from the application of the Indian Reorganization Act shall be deemed to have been continuously effective as to such reservation notwithstanding the passage of that act. Accordingly, the Secretary has authority under the act of 1914, above quoted, to continue allotments to children on the Fort Peck Reservation.
    2. "May the Secretary of the Interior in his discretion decline to approve allotment selections made under the acts referred to?"
    Where allotment selections have been duly made under authority of the Department and pursuant to its official instructions and in accordance with a course of allotment on the reservation, in my opinion it is probable that a court would hold that the Secretary cannot decline to approve particular selections because of a subsequent change in land policy. His authority to disapprove such selections would be limited to disapproving particular selections not entitled to approval because of error or the ineligibility. of: .the applicant or other such reason. I base my opinion on the fact that when an official allotment selection has been duly made in accordance with the laws and regulations at the time of the selection, in ordinary circumstances the selector acquires a certain. property interest, in the land and a right to the. perfection of his title which courts will protect.

    An Indian eligible for allotment who has not properly selected an allotment under the instructions of the Interior Department has only a floating right to an allotment which is not inheritable and which give him no vested interest in any land. La Roque v. United States, 239 U.S. 62; Woodbury v. United States, 170 Fed. 302, C.C.A. 8th, 1909. After proper selection of an allotment, however, an Indian has been held to have an individual interest in the land with many of the incidents of individual ownership. His interest is inheritable, transferable within limits, and deserving of protection against adverse claims by third persons. United States v. Chase, 245 U.S. 89; Henkel v. United States, 237 U.S. 43; Hy-Yu-Tse-Mil-Kin v. Smith, 194 U.S. 401; Bonifer v. Smith, 166 Fed. 846, C.C.A. 9th. 1909; see 55 I. D. 295, at 303.

    The cases before the Interior Department and before the courts which are of most concern in this problem are the cases dealing with the protection of an allotment selection against adverse action by the Government, either by Congress or by the Executive. The Department has taken the view that acts of Congress limiting allotment rights in "undisposed of" tribal lands do not apply to allotment selections even though they have not been approved. Fort Peck and Uncompahgre Allotments, 53 I. D. 538; Raymond Bear Hill, 52 L. D. 689. In these decisions it was held that the filing and re-
 



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DEPARTMENT OF THE INTERIOR

MAY 31, 1939

cording of an allotment selection segregates the land from other disposal, withdraws the land from the mass of tribal lands, and creates in the Indian an individual property right.

    In the case of the unapproved Fort Belknap allotment selections, 55 I. D. 295, it was held that the Indian Reorganization Act prohibiting the making of allotments, did not apply to unapproved selections made under an allotment act which had contemplated the equal division of the reservation among certain definite persons. The right to the completion of allotments had become vested in the circumstances of that case. A different situation was discussed in the Opinion of the Solicitor dated April 8, 1937, M. 29097, which held that a later act of Congress could constitutionally prohibit the completion of unapproved allotment selections on the Palm Springs Reservation since they were made under an act of Congress which left the making of any allotments entirely within the discretion of the Secretary of the Interior and which was found to intend that no individual interest in the tribal patented land would become vested until a trust patent had issued to the individual. The relevant court case of Chase, Jr. v. United States, 261 Fed. 833, C.C.A. 8th, 1919, upheld a subsequent act of Congress inconsistent with the act authorizing allotments, but it did not appear that the plaintiff had made a correct and final selection at the time the later act was passed or that any selection made had been made with the sanction of the Interior Department. The court merely stated that, assuming the plaintiff had a floating right in the unallotted lands, the right did not attach to a particular tract until it had been definitely located, selected and set apart to the allottee. A determination of when such a setting apart occurred was not made.

    If allotment selections will be protected against restrictive action by Congress, at least where the processes of allotment have not been left completely to the discretion of the Secretary, it seems clear that, a fortiori, such allotment selections will be protected against changes of policy made by the Department. How far this is true may be seen from the cases dealing with the protection of allotment selections from adverse action by the Interior Department.

    A court will not find an Indian selector entitled to a trust patent where his eligibility is in question and must be determined by the Interior Department as that is a matter within its discretion. Lemieux v. United States, 15 F. (2d) 518, C.C.A. 8th, 1926. But a court will protect a selector against mistake of law by the Department in patenting the selection to a third person, and against neglect or misconduct on the part of Government officers. Hy-Yu-Tse-Mil-Kin v. Smith; Bonifer v. Smith, supra. In these cases the court followed the equitable rule that a court will treat as done what ought to have been done. See also Woodbury v. United States, supra, at 306.

    The significant question is, however, how far the courts will protect a selector against a refusal to approve the selection for reasons of policy. There are two cases which hold that the Department exceeds its authority to approve or disapprove an allotment selection where the refusal is based on such reasons. In United States v. Payne, 264 US. 446, the plaintiff had selected timber land under the instructions of an allotting agent, but the Department refused to approve the selection because of a subsequent determination that timber land was too valuable for allotment purposes. The court held that the General Allotment Act under which the allotment was selected did not prevent the allotment of timber land and the United States was bound to discharge its duty of allotment with good faith. In the decision of the case in the lower court (284 Fed. 827, C.C.A. 9th, 1922), the court argued that the discretion of the Interior Department had been exercised when its decision was made that the land should be allotted, and that when the selection had been made the completion of the allotment could not be made dependent upon the character of the land. This case is highly in point, since the refusal to approve the Fort Peck selections is largely based upon an opinion by the Interior Department that the lands are not suitable for allotment but are more valuable for other purposes.

    In the case of Leecy v. United States, 190 Fed. 289, C.C.A. 8th, 1911, the court is even more emphatic in denying to the Secretary of the Interior authority to refrain from completing allotments because of a decision to use the land for other purposes. In that case the land selected by the plaintiff on the White Earth Reservation had been withdrawn by the Interior Department as a sawmill reserve for tribal benefit. The following quotation from the reasoning of the court is pertinent:

    "If * * * the Secretary of the Interior could withdraw lands from allotment, or upon his judgment that lands authorized to be allotted by Congress ought not to be allotted refuse to approve an allotment submitted for action, the very statute under which action is brought [25 U.S.C.A., Sec. 3451 * * * would be practically nullified."
The court added that the argument that the lands should be withheld from allotment should be addressed to Congress.

    However, in the recent case of the unapproved
 



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OPINIONS OF THE SOLICITOR

MAY 31, 1939

allotment selections on the Palm Springs Reservation (St. Marie v. United States, 24 F. Supp. 237, S.D. Cal. 1938), the court reached a contrary conclusion based upon the working of the statute under which the allotment selections were made. The statute authorized the Secretary of the Interior to cause allotments to be made whenever any of the Indians on the Mission Indian Reservations should be so advanced in civilization, in his opinion, as to be capable of owning and managing land in severalty. The court found that a determination of the capacity of the Indians was an essential prerequisite to the making of allotments and could not be compelled because of its discretionary character, and that no determination of the capacity of the Palm Springs Band had been made. Influenced by this feature of the act, the court concluded that the act under which the selections were made showed that it was not the intention of Congress to make the selection a source of vested right and that, on this ground, the case should be distinguished from contrary cases under other acts of Congress, citing the Payne and Leecy cases.

    The allotment selections in the instant case fall, in my opinion, in the category, of those in the Payne and Leecy cases, rather than in the category of those discussed in the Palm Springs case. The foregoing analysis has indicated that a judicial determination of whether or not an allotment selection merits protection against adverse governmental action. involves a weighing of the equities in the light of the intent of Congress and the history of administrative action. In the Palm Springs case the act contemplated that no allotments should bo made until the Secretary of the Interior was satisfied of their advisability. No allotments were in fact made and the Secretary was clearly not satisfied of their advisability. If a court attempted to force the recognition and completion of tentative selections in the field, it would encroach upon executive discretion. In the Payne and Leecy cases, however, whatever discretion had been given to the Executive as to the advisability of allotments had been exercised and a course of allotment had been established. Thereafter, individual allotment selections were approved or disapproved according to their individual merits. In this situation a court could properly prevent, as an abuse of discretion, the failure to approve an individual allotment selection, not because of its own demerits, but because of extraneous policies.

    Thus, in this Fort Peck case, Congress and the Secretary of the Interior had determined 25 years ago that allotments should be made to the children as they were born, and since then individual selections have been approved or disapproved on their own merits. This legislative and administrative action may be said to have established an equitable right in the individual selector to have his selection acted upon according to the same principles.

    Most of the allotment selectors in the cases cited tried their rights to an allotment in the Federal courts pursuant to section 345, Title 25, U.S.C. This forum for the trial of a right to an allotment would be available, I believe, to the Fort Peck selectors. In view of the protection heretofore accorded to allotment selections and the probability that the court would hold that the Interior Department is not privileged to refuse to complete these allotments because of a change in land policy, in my opinion the allotment selections should be completed.

    This decision does not dispose of the question whether the Secretary of the Interior is privileged to discontinue the further initiation of allotments on the Fort Peck Reservation. In my memorandum of September 16, 1935, previously mentioned, I indicated that the Secretary would have discretion to stop such further allotment. My reason was that the 1914 act did not contain words directing the allotment of the reservation such as were often contained in allotment acts, but merely authorized the Secretary to make allotments. In this respect the act was found to be similar to the General Allotment Act which left the determination of when the initiation of allotments should be undertaken on a reservation to the discretion of the Executive and under which the Interior Department has refrained from allotting numerous reservations. I believe my 1935 decision was sound.

    3. "Whether the large area of lands (approximately 85,000 acres) purchased through the Resettlement Administration, the title to which is now in the United States but administration in the Secretary of the Interior for the benefit of the Indians of the Fort Peck Reservation, will also be subject to allotment in the event such lands are later, by appropriate legislation, added to and made a part of the tribal holdings of the Fort Peck Reservation."
    The lands purchased through the Resettlement Administration are private lands within the reservation which had originally been disposed of as surplus lands or which were fee patented allotments. Such lands would not come within the provisions of the 1914 act which authorizes the making of further allotments of "surplus lands" within the reservation which "remain undisposed of." There is no allotment act applying specifically to the Fort Peck Reservation which would authorize the allotment of such newly acquired tribal holdings.
 



906

DEPARTMENT OF THE INTERIOR

MAY 31, 1939

The act of February 14, 1920 (41 Stat. 408, 421), which authorizes the Indians entitled to allotments under existing laws to select lands classified as coal does not authorize allotments in addition to those allotments authorized by the 1914 act, but was intended to permit the selection of coal lands under the authority of the 1914 act. The terms of the General Allotment Act of February 8, 1887 (24 Stat. 388), particularly as extended to lands purchased for Indians by the act of February 14, 1923 (42 Stat. 1246), are broad enough to provide authority for the allotting of any tribal lands within an Indian reservation, but it is doubtful whether this general act would apply to a reservation, such as Fort Peck, where the manner of allotment and disposition of the reservation has been comprehensively provided for in special legislation. Since, however, the resettlement lands will not become tribal lands without act of Congress, all questions as to their availability for allotment should be removed through specific provision on that point in the legislation.

    4. "Whether the undisposed of opened lands of this reservation (embracing around 41,500 acres) would also be subject to allotment if and when restored to tribal ownership."
    This question should probably be answered in the affirmative, since the restored lands would continue to the surplus lands within the reservation remaining undisposed of which may be allotted under the act of 1914. However, since restoration of such lands would require an act of Congress, the question of allotment should be covered in the legislation.
    5. "There is also another question; that is, certain leasing funds have been collected on many of the allotment selections covered by the unapproved schedule referred to above. This money is being held in a special deposit awaiting final disposition of the question whether the allotments will be made or not. If the allotments are granted at this late date, who will be entitled to this land leasing money collected after the selections were made but before the allotments were approved."
    In view of the rule stated in the cases of Hy-Yu-Tse-Mil-Kin v. Smith; Bonifer v. Smith and Woodbury v. United States, supra, that equity will treat as done what ought to have been done, the rentals which have been accruing from the unapproved allotment selections should be placed to the credit of the selectors. This follows from the fact that the selectors would have been privileged to receive these rentals if the allotment selections had been approved in the usual manner in which previous allotment selections of this reservation have been approved.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: May 31, 1939.
OSCAR L. CHAPMAN, Assistant Secretary.

CANADIAN INDIANS PROPOSING EMPLOYMENT
OF ATTORNEY TO PROSECUTE CLAIMS AGAINST
U.S.-QUESTION OF COMMISSIONER'S
APPROVAL

M-30146 Supp.                                                                                                                                             June 1, 1939.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    In my opinion dated February 8 (M. 30146), I expressed the belief that section 81, title 25, United States Code is confined in its scope and operation to Indians who reside in and are subject to the jurisdiction of the United States and has no application to the subjects of a foreign nation. Accordingly, it was held that a contract, by which Indian residents and subjects of the Dominion of Canada propose to employ an attorney to prosecute claims against the United States, is not subject to the approval of the Commissioner of Indian Affairs and the Secretary of the Interior. Counsel for the Canadian Pottawatomie Indians has now submitted a brief supplemented by a letter addressed to me under date of May 20, containing arguments that a contrary conclusion should be reached.

    The primary contention relied upon in the brief is that section 81, title 25, United States Code, is a statute designed "to regularize the process by which claims may be prosecuted against the United States" and, as such, its operation is internal, rather than extraterritorial, in regulating the employment of counsel to prosecute a claim against the United States, notwithstanding the claimants are foreign subjects. That is to say, the argument advanced is that the statute regulates a purely domestic matter, namely, the procedure for presenting a claim against the United States, and its application to foreign subjects who are claimants does not constitute an extraterritorial application of the statute. In support of this argument, counsel relies to some extent on the language of the section
 



907

OPINIONS OF THE SOLICITOR

JUNE 1, 1939

extending its provisions to "Indians not citizens of the United States."

    In letter of May 20, counsel called attention to sections 1 and 2, title 25, United States Code, committing to the Secretary of the Interior and the Commissioner of Indian Affairs the management of all matters arising out of Indian relations and suggests that since the employment of an attorney to prosecute the claims of Canadian Indians against the United States to enforce the payment of obligations arising out of treaties made between the United States and their ancestors is a matter arising out of Indian relations, the contract of employment would be subject to the approval of the Secretary of the Interior and the Commissioner of Indian Affairs.

    After carefully considering the arguments advanced by counsel, I remain of the opinion that the matter of employment of counsel by the Canadian Potowatomis is not one coming within the jurisdiction of this Department.

    I do not question the authority of Congress to prescribe the conditions under which claims against the United States may be prosecuted in the courts of the United States even by citizens of a foreign nation. That Congress has such authority was recognized in my opinion of February 8. None of the statutes relied upon by counsel purport to regulate the prosecution of claims against the United States.

    Section 81, title 25, United States Code, contains restrictions and limitations designed to protect Indian tribes and individual Indians against the making of improvement contracts. The reference in that section to "Indians not citizens of the United States" does not refer to the subjects of a foreign nation, but to Indians residing in the United States who at the time of the enactment were not United States citizens. Elk v. Wilkins, 112 U.S. 94.

    Section 1 of title 25, United States Code, creates the office of Commissioner of Indian Affairs. Section 2 commits to the Commissioner, under the direction of the Secretary agreeably to such regulations as the President may prescribe, the management of all Indian Affairs and of all matters arising out of Indian relations. As pointed out in Rainbow v. Young, 161 Fed. 837, the authority so conferred on the Commissioner was intended to be sufficiently comprehensive to enable him, agreeably to the laws of Congress and to the supervision of the President and the Secretary, to manage all Indian affairs, and all matters arising out of Indian relations, with a just regard, not merely to the rights and welfare of the public, but also to the rights and welfare of the Indians, and to the duty of care and protection owing to them by reason of their state of dependency and tutelage.

    Statutes such as these obviously were enacted not in an attempt to regulate the prosecution of claims against the United States, but in the exercise of the general guardianship powers possessed by the National Government over its Indian wards. These guardianship powers obviously do not extend to the subjects of a foreign nation. The national guardianship extends only to dependent Indian communities within the borders of the United States. United States v. Sandoval, 231 U.S. 28, 46. The theater for the exercise of the guardianship powers is "within the geographical limits of the United States." United States v. Kagama, 118 U.S. 375; 384.

    The fact that the Canadian Potowatomis may be descendants of ancestors at one time subject to the jurisdiction of the United States is not important: Their status is controlled, not by the nationality of their ancestors, but by their own nationality. As the subjects of a foreign nation, they are without the scope of the statutes enacted for the protection of Indians of the United States. Such statutes subject them to no disability. The validity of their contracts made in their own country necessarily must be determined by the laws of that country. In their contractual relations and dealings with others in this country, they occupy the position of other alien subjects, enjoying like rights and privileges. What these rights and privileges may be need not be determined here other than to point out that the protection extended to Indians of the United States by the statutes under consideration is not one of them. If these Canadian Indians are entitled to the protection of such statutes, they are entitled to the protection of all other general statutes enacted by Congress for the protection. of the Indian wards of the United States. Aborigines of all other countries would be entitled to like protection. A construction permitting such a far-reaching result must be rejected as an unreasonable extension of the guardian and ward relationship existing between the United States and the Indians, and as a violation of the principle announced in the case of The Apollon, 9 Wheat. 362, that, however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons upon whom the legislature have authority and jurisdiction.

    I am convinced that my former opinion is correct and should not be disturbed.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: June 1, 1939.
OSCAR L. CHAPMAN, Assistant Secretary.
 



908

DEPARTMENT OF THE INTERIOR

JULY 5, 1939

COLVILLE INDIANS RIGHT TO FISH IN
WATERS OF LAKE OPPOSITE ALLOTMENTS
UNDER LEASE TO STATE

July 5, 1939.
Memorandum for the Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Colville Indian Reservation concerning the right of the State of Washington to prevent fishing by Indians in the waters of Owhi Lake opposite Indian allotments under lease to the State is returned for further consideration.

    The State of Washington, it appears, has for many years taken eastern brook trout from Owhi Lake for the purpose of obtaining spawn for hatching. In return for this privilege the State has placed in the lake and in the streams of the Colville Indian Reservation approximately 10 percent of the fry hatched from these eggs. While no formal agreement covering this arrangement appears to have been entered into between the State and the Indians or the Federal Government, the State does have approved leases on two trust allotments abutting on Owhi Lake and covering about one half mile of shore line. These leases run for a period of two years from November 1, 1937, and stipulate that the leases are made for "fishing and taking of spawn for the propagation of trout, lessee to have use of shore lands and building site only."

    The State has attempted to prohibit all fishing on the spawning beds in front of its leased allotments during the spawning season, and has caused two Indians of the Colville Reservation to be arrested for violation of its game and fish laws. This raises the question of the jurisdiction of the State to enforce its game and fish laws against Indians who fish in the waters of Owhi Lake.

    Much of the discussion in the proposed letter is devoted to the question whether Owhi Lake is navigable or nonnavigable. In the view I take, however, the jurisdiction of the State or the lack of it does not depend upon the navigability of the lake.

    The rule that title to lands underlying navigable waters passes to the State upon its admission into the Union under the constitutional principle of equality among the several States is not without exception. One well established exception is that where the United States before creation of a State has granted rights in or over navigable waters by way of performing international obligations, or effecting the use or improvement of the lands for the purposes of commerce among the States and with foreign nations, "or carrying out other public purposes," such rights are not cut off by the subsequent creation of the State but remain unimpaired, and the rights which otherwise would pass to the State in view of its admission into the Union are restricted or qualified accordingly. Shively v. Bowlby, 152 U.S. 1; Scott v. Lattig, 227 U.S. 229, 242; United States v. Bolt Bank, 270 U.S. 49, 54, 55. It is also well established that Indian reservations created prior to statehood come within this exception where the intent to include within the reservation tide lands or navigable waters is made plain by the order creating the reservation. Alaska Pacific Fisheries v. United States, 248 U.S. 86; Donnelly v. United States, 228 U.S. 243; United States v. Stotts, 49 F. (2d) 619; Taylor v. United States, 44 F. (2d) 531.

    The Colville Reservation was created by Executive order of July 2, 1872. The State of Washington was admitted into the Union November 11, 1889. The Executive order set aside as a .reservation for certain named bands of Indians and such other Indians as the Department of the Interior might see fit to locate thereon the tract of country bounded on the east and south by the Columbia River, on the west by the Okanogan River, and on the north. by the British possessions. That the reservation so created was a legally constituted .reservation was decided in United States v. Pelican, 232 U.S. 442. Owhi Lake is located entirely within the boundaries of the reservation. The Executive order is all-inclusive and contains no language indicating an intent to exclude the lake or other bodies of water within its limits.

    On the question of intent, the decision of the Supreme Court in Donnelly v. United States, supra, is controlling. There a question of Federal jurisdiction turned on the issue of whether the river bed of the Klamath River was part of the Hoopa Valley Indian Reservation. The language of the Executive order creating the reservation differed in no material respects from the language of the Executive order establishing the Colville Indian Reservation. The court said:

    "Does the reservation include the bed of the Klamath River? The descriptive words of the order are 'a tract of country one mile in width on each side of the Klamath River and extending,' etc. It seems to us clear that if the United States was the owner of the river bed, a reasonable construction of this language requires that the river be considered as included within the reservation. Indeed, in view of all the circumstances, it would be absurd to treat the order as intended to include the uplands to the width of one mile on each side of the river, and at the same time to exclude




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OPINIONS OF THE SOLICITOR

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the river. As a matter of history it plainly appears that the Klamath Indians established themselves along the river in order to gain a subsistence by fishing. The reports of the local Indian agents and superintendents to the Commissioners of Indian Affairs abound in references to fishing as their principal subsistence, and the river is described as running in a narrow canyon through a broken country, the Indians as dwelling in small villages close to its banks."

    To the same general effect is United States v. Sturgeon, 27 Fed. Cases, Case. No. 16,413, in which the court gave consideration to the rights of the Indians of the Pyramid Lake Indian Reservation in Nevada in a lake located inside the boundaries of the reservation and held:
    "The president has set apart the reservation for the use of the Pah Utes and other Indians residing thereon. He has done this by authority of law. We know that the lake was included in the reservation, that (it might. be a fishing ground for the Indians. The lines of the reservation have been drawn around it for the purpose of excluding white people from fishing there, except by proper authority. It is plain that nothing of value to the Indians will be left of their reservation if all the whites who choose may resort there to fish. In my judgment, those who thus encroach on the reservation and fishing ground violate the order, setting it apart for the use of the Indians, and consequently do so contrary to law,"
    In the case of United States v. Halt Bank, supra, the court found that the bed of Mud Lake had not been included as a part of the Red Lake Reservation. In that case, however, there was no valid setting apart of the lands and there was nothing to indicate a purpose to withhold the land from the future state. In the present case there was a formal setting apart of the entire territory included within the designated boundaries and a reasonable construction of the language of the Executive order requires that the lake be considered as included within the reservation. Donnelly v. United States, supra.

    Subsequent legislation dealing with the Colville Reservation fails to disclose any intent on the part of Congress to exclude the lake from the reservation. The Indian title to a portion of the reservation not including the lake was extinguished under various acts of Congress. Allotments in severalty on the diminished reservation, which included the lake, were made and the surplus unallotted lands were opened to disposition for the benefit of the Indians under the public land laws by Presidential proclamation. See acts of March 22, 1906 (34 Stat. 80); June 25, 1910 (36 Stat. 863); August 31, 1916 (39 Stat. 672) and Presidential proclamation of May 3, 1916 (39 Stat. 1778). The lands surrounding the lake were not affected by this proclamation. The entire area around the lake according to the record before me was allotted to individual Indians. These allotments were made under the provisions of the General Allotment Act of February 8, 1887 (24 Stat. 388), as amended by the acts of February 28, 1891 (26 Stat. 794) and May 8, 1906 (34 Stat. 182). Under the provisions of these acts the allotted lands were held in trust by the United States and the allottees were declared to be "subject to the exclusive jurisdiction of the United States." Congress was thus careful to preserve the existing title and jurisdiction of the United States and the allotment of the upland cannot; therefore, be regarded as excluding the lake from the reservation or in any way detracting from Federal jurisdiction thereover. See United States v. Stotts, supra.

    In Mason Company v. The Tax Commission, 302 U.S. 186, it was held that the State of Washington had jurisdiction over the lands of the Colville Reservation for the purpose of taxing a contractor's receipts derived from construction work on Grand Coulee Dam under a contract to the United States. That case, which is in accord with the rule that Indian reservations are a part of the State in which located and subject to its laws save as to the Indians and their property, is without application here since no question of jurisdiction over the Indians was involved. Besides, the State of Washington by the enabling act (Remington's Revised Statutes of Washington, page 333) and by Article 26 of its constitution (id., page 506) has disclaimed all title to all lands "held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States."

    In view of the foregoing, it is my opinion that in virtue of the Executive order of July 2, 1872, Owhi Lake, whether navigable or non-navigable, became a part of the Colville Reservation and that there has been no change affecting the title and jurisdiction of the United States thereover to the present day. Accordingly, the Indians of the reservation are not amenable to State law while fishing in the waters of the lake. United States v. Kagama, 118 U.S. 375; In re Blackbird, 109 Fed. 139; Peters v. Malin, 111 Fed. 244; In re Lincoln, 129 Fed. 247;
 



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DEPARTMENT OF THE INTERIOR

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United States v. Hamilton, 235 Fed. 685; State v. Campbell, 53 Minn. 354, 55 N.W. 553.

    The jurisdiction of the United States over the reservation including Owhi Lake cannot, of course, be taken away or impaired by any contract the State may make with an individual Indian. The most that can be said of the leasing contracts entered into by the State and Indian allottees is that they confer on the State the rights and privileges of any other leaseholder. This would enable the State to protect its leasehold against trespass even when committed by Indians, through appropriate action in its own courts, if necessary. Red Hawk v. Joines, 129 Ore. 620, 278 Pac. 572; Smith v. Mosgrove, 51 Ore. 495, 94 Pac. 970. The navigability or non navigability of the lake would be important only in the matter of determining the extent of the State's leasehold. If nonnavigable the title of the allottee and likewise the leasehold title of the State would run to the medial line of the lake. If navigable the title of both would stop with the high water mark.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.


ASSESSMENTS AND LEVIES AGAINST
INDIAN SCHOOL BY SCHOOL DISTRICT-
SECRETARIAL AUTHORITY TO CONTRACT

M-30230                                                                                                                                                        July 6, 1939.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY :

    My opinion has been requested as to the authority of this Department, under section 3 of the act of June 20, 1938 (52 Stat. 778), to enter into a contract with the Middle Rio Grande Conservancy District for the payment of future assessments against the Albuquerque Indian School for operation and maintenance charges, determined on the basis of the appraised benefits to the school buildings and improvements as well as to the school lands.

    Section 3 of the act of June 20, 1938, supra, provides:

    "That the Secretary of the Interior be, and he is hereby, authorized and directed to enter into an agreement with the Middle Rio Grande Conservancy District for the payment of future operation and maintenance costs which shall be levied and assessed against the properties described in section 1, the said agreement to provide that all assessments and levies thereunder shall be on the same equal basis as assessments and levies against other lands similarly situated or assessed in said district."
    This section of the act authorizes an agreement for the payment of future operation and maintenance costs which shall be levied and assessed against the "properties described in section 1." But section 1 merely describes the property thus:
    "One hundred and forty-two and nine one hundredths acres in Bernalillo County, New Mexico, known and described as the Lands of the Albuquerque Indian School of the Department of the Interior, United States of America, the lands so described being owned by the United States and having been materially benefited by the construction works of the said district, * * *."
Since no mention or reference is made to improvements on the land, it might be argued, in the absence of any contrary indication, that Congress intended the agreement to cover only such future assessments as shall have been based upon the benefits to the lands and not to the improvements thereon.

    It will be noted, however, that under section 3, supra, the assessments and levies, for the payment of which the Secretary of the Interior is authorized and directed to contract, are required to be "on the same equal basis as assessments and levies against other lands similarly situated or assessed in said district." Clearly, such a limitation contemplates that the assessments are to be computed on neither a more favorable nor less favorable basis than assessments against other lands similarly situated. It appears from the files that other lands similarly situated in the district, such as the St. Anthony's Orphanage, have for a number of years been assessed by the district for operation and maintenance charges on the basis of the appraised benefits to the improvements as well as to the land. To hold, therefore, that the Secretary of the Interior may only agree to pay assessments against the Albuquerque Indian School which are based upon benefits accruing to the school lands would be entirely inconsistent with the express direction by Congress that the assessments to be paid under the agreement shall be "on the same equal basis" as assessments against similar lands.

    Moreover, under section 2 of the act the sum of $1,539.65 was authorized to be appropriated for repayment to the district "for the equal and pro rata assessment for operation and maintenance
 



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OPINIONS OF THE SOLICITOR

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costs for the years 1934, 1935, 1936, and 1937" against the school lands. Data in the files of the Indian Office disclose that the assessments against the school for the years 1934 to 1937, inclusive, totaling $1,539.65, were calculated by applying to the appraised benefits to both the improvements and lands of the school the rates adopted by the district for those years. It appears that this fact was known to the Indian Office at the time this Department reported favorably on the bill (Senate deport No. 1986, 75th Cong., 3d Sess.) and, although no hearings on the bill were held and no reference to the method of computing the assessments was made during the very brief discussion of the measure in Congress, it may be assumed that at least the sponsors of the bill in Congress were similarly informed. In any event, it is not reasonable to presume that under section 3 of the act Congress intended to preclude the authority to agree to pay future assessments for operation and maintenance charges which would be determined in the same manner as the accrued assessments for the payment of which funds were authorized to be appropriated under section 2 of the act:

    I accordingly conclude that the only restriction upon the authority of the Secretary of the Interior to contract for the payment of assessments against the Albuquerque Indian School for future operation and maintenance charges is that the assessments shall be "on the same equal basis as assessments and levies against other lands similarly situated or assessed in said district." An agreement may be entered into with the Middle Rio Grande Conservancy District to pay future assessments for such charges based upon benefits to the improvements as well as to the lands of the school, so long as assessments against other lands similarly situated in the district are determined upon the same basis.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: July 6, 1939.
OSCAR L. CHAPMAN, Assistant Secretary.

ADMISSION OF INDIANS TO ST. ELIZABETHS
HOSPITAL FOR INSANE-STATUTORY
AUTHORITY AND CONSTITUTIONAL LIMITATIONS


July 27, 1939.


Memorandum for the Assistant Secretary:

    The attached instructions governing admission of Indians to St. Elizabeths Hospital for the Insane would reinstate the practice formerly prevailing of committing Indians to this institution without notice and an opportunity for defense. In a letter addressed by you to the Commissioner of Indian Affairs under date of August 1, 1938, you gave consideration to this practice and decided that it was illegal and should be discontinued. You stated:

    "The present procedure, lacking as it does the essential elements of due process of law, shall no longer be followed. While judicial proceedings are not necessary, an opportunity for hearing and a defense is essential and should be extended in all cases. For the present and until regulations establishing a definite procedure to be followed in the future are adopted I suggest that sanity hearings be conducted under the supervision of the superintendent by at least two qualified physicians selected by him, the hearings to be held after due notice to the Indian and his nearest relatives, with full opportunity afforded them to present such evidence as they may desire bearing upon his sanity. If the hearing results in a finding of insanity, appropriate recommendation may then be made for placing the Indian in Saint Elizabeths Hospital for treatment."
    Your conclusion, that the commitment of Indians to St. Elizabeths Hospital for the Insane without notice and hearing is illegal is supported by the authorities. Authority for the admission of insane Indians to St. Elizabeths is found in the appropriation act for the Interior Department. The item in the appropriation act for the year 1940 (see act of May 10, 1939, p. 27), provides for the admission to St. Elizabeths of "insane beneficiaries of the Bureau of Indian Affairs." In Barry v. Hall, 98 F. (2d) 222, the United States Court of Appeals for the District of Columbia held that a statute differing in no material respects from this was not a lunacy commitment statute; that it assumed insanity had already been determined, and that it merely authorized St. Elizabeths Hospital to receive and care for patients whose insanity had already been determined by competent authority. In that case the confinement in St. Elizabeths of a patient without opportunity for hearing and defense merely by direction of the Secretary of the Treasury was held to be illegal as depriving the patient of his liberty without due process of law. The court said:
    "The appellant's confinement in Saint Elizabeths under the Treasury Department letter until the time of the order of remand on the writ of habeas corpus of January 26, 1937, was illegal. Insanity is not a crime and therefore




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DEPARTMENT OF THE INTERIOR

JULY 27, 1939

the constitutional guaranty of jury trial is not applicable; nevertheless, confinement in a mental hospital is as full and effective a deprivation of personal liberty as is confinement in jail. The Fifth Amendment is applicable in the District of Columbia, Sims v. Rives, 1936, 66 App. D. C. 24, 31, 84 F. 2d 871, 878, and cases cited; and it guarantees that no person shall be deprived of liberty without due process of law. Due process of law does not necessarily mean a judicial proceeding-the proceeding may be adapted to the nature of the case-but it does necessitate an opportunity for a hearing and a defense. * * *"

    The court also quoted with approval the following statement from In re Hellman, 3 Kan. App. 100, 45 P. 726:
    "Independently of statutes, every person is entitled to his day in court, and to the right to be heard before he is condemned. No mere ex parte proceeding can affect either personal or property rights. Were the legislature to attempt to enact a law authorizing judicial proceedings, the object of which was .to affect the person or property of a citizen, without notice or opportunity to be heard, such legislation would, be rejected and repudiated in advance as an intolerable outrage upon the rights of the citizen. It would not only be a serious infringements of natural rights, but would be a flagrant violation of the constitutional guaranty that no person shall be deprived of his liberty or property without due process of law.

    "Notice and opportunity to be heard lie at the foundation of all judicial procedure. They are fundamental principles of justice which cannot be ignored. Without them no citizen would be safe from the machinations of secret tribunals, and the most sane member of the community might be adjudged insane and landed in a madhouse. It will not do to say that it is useless to serve notice upon an insane person; that it would avail nothing because of his inability to take advantage of it. His sanity is the very thing to be tried. At the threshold of the inquiry the court is supposed to have no knowledge of the mental condition, but the presumption of the law is in favor of sanity. Insanity, like crime, does not exist in law until it is established by evidence in a proper proceeding. A trial without notice-a mere ex parte proceeding-has no proper place in a court of justice. It is a nullity, and void as affecting those not parties to it." (3 Kan. App. at pages 103, 104, 45 P. at page 727)

    A determination of insanity by some competent authority is, of course, essential to commitment in any insane institution. However broad the Secretary's power of supervision and control over Indian wards of the United States may be, he is bound by constitutional limitations. The constitutional guarantee that no person shall be deprived of his liberty without due process of law, to the protection of which Indians as well as whites are entitled (Choate v. Trapp, 224 U.S. 665), must be observed. The failure to observe it would, under the foregoing decisions, invalidate the commitment and subject the committed person to release on habeas corpus.

    It is my opinion that the proposed instructions which fail to take into consideration the constitutional rights of these Indians should be returned to the Indian Office without your approval with directions to present and submit at the earliest possible date regulations governing admission in a manner that will meet the formalities of the law.

    I have caused to be prepared and attach hereto a draft of regulations which I believe will meet the formalities of the law and recommend that this draft be referred to the Indian Office for consideration. Pending adoption of suitable regulations, the procedure suggested in your letter of August 1, 1938 should, I think, be followed. In this connection, I call attention to the fact that neither your letter of August 1 nor the procedure set out in the attached draft of regulations requires, that a public hearing be held or that tribal councils or members of the tribe at large be notified and invited to attend.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved and referred to the Indian Office:

(Sgd.) OSCAR L. CHAPMAN, Assistant Secretary.

REGULATIONS GOVERNING THE PLACING
OF INDIANS IN HOSPITALS OR OTHER
INSTITUTIONS FOR THE INSANE

    1. No Indian residing on any Indian reservation under the jurisdiction of the United States shall be placed in any hospital or other institution for the care and treatment of the insane except in pursuance of a sanity hearing and an order for commitment issued as hereinafter provided.

   2. Upon petition of the parent, spouse, brother, sister or child of full age of any Indian alleged to be insane for commitment of said Indian to any State hospital or State institution for the care and treatment of the insane, the Superintendent in charge of the reservation, whenever he finds after
 



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OPINIONS OF THE SOLICITOR

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due investigation that such course is justified, may arrange for such commitment in conformity with the laws of the State pertaining to such cases.

    3. Insane Indians residing on Indian reservations under the jurisdiction of the United States may be committed to St. Elizabeths Hospital for the insane in Washington, D.C. by order of the Secretary of the Interior based on certificates of insanity issued as hereinafter provided.

    4. A certificate of insanity must be made under oath by two reputable physicians appointed to conduct an examination of the Indian alleged to be insane by the Superintendent of the reservation on which the alleged insane Indian resides. The physicians must be graduates of some incorporated medical college, registered according to law, have the qualifications prescribed by law for the practice of medicine or surgery, and shall not be related by blood or marriage to the alleged insane Indian nor to any person applying for a certificate of insanity.

    5. The parent, spouse, brother, sister or child of full age of any Indian alleged to be insane may file with the Superintendent a petition for a commitment, such petition to contain a statement of the facts on which the allegation of insanity is based. Upon the receipt of such a petition or in any other case in which the Superintendent has reason to believe, from personal investigation or otherwise, that an Indian is insane, the Superintendent shall immediately appoint two physicians having qualifications prescribed in paragraph 4 hereof, to conduct an examination of the Indian alleged to be insane at such time and place as the Superintendent may determine. Notice of the time and place of the examination shall be served personally at least 48 hours before the examination on the person alleged to be insane, also upon the parent, spouse, or some other of the next of kin of full age, of the person alleged to be insane, if there be any such known to be residing on the reservation.

    6. The physicians shall make such personal examination of the Indian alleged to be insane as to enable them to form an opinion as to his sanity or insanity and no certificate of insanity shall be made except after such personal examination. The Indian alleged to be insane shall have the right to present witnesses in his own behalf and to submit such other evidence bearing upon his sanity. If upon conclusion of the examination and consideration of all evidence submitted the physicians are of the opinion that the Indian is insane, they shall issue a certificate of insanity. The certificate of insanity must show that it is the opinion of the physicians that the alleged insane Indian is actually insane and shall contain the facts and circumstances upon which. the opinion of the physicians is based and must show that the condition of the Indian examined is such as to require care and treatment in a hospital for the care, custody and treatment of the insane.

    7. All certificates of insanity issued in conformity with these regulations shall, together with a transcript of all evidence taken in the case, be transmitted by the Superintendent through the Commissioner of Indian Affairs to the Secretary of the Interior. If in the opinion of the Secretary of the Interior the Indian named in the certificate is a fit subject for treatment in St. Elizabeths Hospital, the Secretary may issue an order for his commitment to that institution until such Indian recovers his reason and is discharged as cured.

    8. In any case in which an Indian is alleged to be insane or of unsound mind and such Indian has displayed homicidal tendencies or has otherwise demonstrated that if permitted to remain at large or to go unrestrained the rights of persons and of property will be jeopardized or the preservation of the public peace imperilled and the commission of crime rendered probable, the Superintendent shall have authority to take such Indian into custody and detain him in some suitable place pending examination and hearing as hereinbefore provided.
 
 

RELATION OF PUEBLOS TO THEIR MEMBERS,
THE FEDERAL GOVERNMENT, THE STATE,
AND OTHERS

M-29566                                                                                                                                                    August 9, 1939.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion on the subject of the legal status of the Indian pueblos of New Mexico and Arizona, with particular reference to the following questions: (a) the relation of the pueblo to its members; (b) the relation of the pueblo to the Federal Government; (c) the relation of the pueblo to the State; and (d) the relation of the pueblo to third parties, i.e., private parties, not members of the pueblo.

    These questions are discussed in the following cases which will be analyzed in the course of this opinion:

United States v. Joseph, 94 U.S. 614 (later overruled, in effect);
Zia v. United States, 168 U.S. 198;
United States v. Chavez, 175 U.S. 509;
United States v. Sandoval, 231 U.S. 28;
Lane v. Pueblo of Santa Rosa, 249 U.S. 110;




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DEPARTMENT OF THE INTERIOR

AUGUST 9, 1939

United States v. Candelaria, 271 U.S. 432;
United States v. Board of National Missions of Presbyterian Church, 37 F. (2d) 272;
Garcia v. United States, 43 F. (2d) 873;
Pueblo de San Juan v. United States, 47 F. (2d) 446;
Pueblo of Picuris v. Abeyta, 50 F. (2d) 12.


I. THE RELATION OF THE PUEBLO
TO ITS MEMBERS.

    It is well settled by the decisions of the Supreme Court that. the pueblos of New Mexico are Indian tribes entitled to exercise rights of self-government. Although a distinction was drawn in the case of United States v. Joseph, supra, between the pueblos and other Indian tribes, this distinction was later dismissed by the Supreme Court as irrelevant to the legal status of the pueblos.

    In the case of United States v. Joseph, decided in 1876, the pueblos were described in the following terms:

    "The character and history of these people are not obscure, but occupy a well-known page in the story of Mexico, from the conquest of the country by Cortez to the cession of this part of it to the United States by the treaty of Guadaloupe Hidalgo. The subject is tempting and full of interest, but we have only space for a few well-considered sentences of the opinion of the chief justice of the court whose judgment we are reviewing.

    "For Centuries,' he says, 'the pueblo Indians have lived in villages, in fixed communities, each having its own municipal or local government. As far as their history can be traced, they have been a pastoral and agricultural people, raising flocks and cultivating the soil. Since the introduction of the Spanish Catholic missionary into the country, they have adopted mainly not only the Spanish language, but the religion of a Christian church. In every pueblo is erected a church, dedicated to the worship of God, according to the form of the Roman Catholic religion, and in nearly all is to be found a priest of this church, who is recognized as their spiritual guide and adviser. They manufacture nearly all of their blankets, clothing, agricultural and culinary implements, etc. Integrity and virtue among them is fostered and encouraged. They are as intelligent as most nations or people deprived of means or facilities for education. Their names, their customs, their habits, are similar to those of the people in whose midst they reside, or in the midst of whom their pueblos are situated. The criminal records of the courts of the Territory scarcely contain the name of a pueblo Indian. In short, they are a peaceable, industrious, intelligent, honest, and virtuous people. They are Indians only in feature, complexion, and a few of their habits; in all other respects superior to all but a few of the civilized Indian tribes of the country, and the equal of the most civilized thereof. This description of the pueblo Indians, I think, will be deemed by all who know them as faithful and true in all respects. Such was their character at the time of the acquisition of New Mexico by the United States; such is their character now.' " (at pp. 616-617)

    It is clear that the pueblos of the Rio Grande fall within the definition of an Indian tribe given in Montoya v. United States, 180 U.S. 261:
    "By a 'tribe' we understand a body of Indians of the same or, a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory * * *." (at p. 266)
    With respect to the Zuni and Hopi Pueblos, the association of different groups .may give rise to questions as to whether the "tribe" is composed of a village or a number of villages. No attempt is made in this opinion to decide the intricate questions which may be raised by this situation. So far as the pueblos of the Rio Grande are concerned each pueblo has been recognized as coextensive with a specific reservation.

    The case of United States v. Candelaria, supra, distinctly holds that the pueblos of new Mexico are "Indian tribes" within the meaning of the Federal statutes.

    The governmental powers of an Indian tribe over its own members have been analyzed in a separate opinion (Powers of Indian Tribes, 55 Dec. Int. Dept. 14) and need not be restated at this point.

    The general principle governing this branch of law was first stated by Chief Justice Marshall in the case of Worcester v. State of Georgia, 6 Pet. 515, 559:

    "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights. * * * The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently ad-




915

OPINIONS OF THE SOLICITOR

AUGUST 9, 1939

mits their rank among those powers who are capable of making treaties."

Following the case of Worcester v. State of Georgia, the decisions of the Federal courts uniformly maintain that the right of self-government is vested in the tribe and that the ordinary powers exercised by a State, directly or through municipalities, may be exercised by the recognized political authorities of the tribe, save in so far as tribal action may be restrained or annulled by the Congress of the United States.

    The powers of self-government thus reserved to tribal authorities are summarized in the following terms, in the Solicitor's Opinion above referred to:

    "1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide for the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for the salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.

    "2. To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe and to grant or withhold the right of suffrage in all matters save those as to which voting qualifications are specifically defined by the Wheeler-Howard Act (that is, the referendum on the act, and votes on acceptance, modification or revocation of Constitution, by-laws or charter), and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrollment and property rights of members.

    "3. To regulate the domestic relations of its members by prescribing rules and regulations concerning marriage, divorce, legitimacy, adoption, the care of dependents, and the punishment of offenses against the marriage relationship, to appoint guardians for minors and mental incompetents, and to issue marriage licenses and decrees of divorce, adopting such State laws as seem advisable or establishing separate tribal laws.

    "4. To prescribe rules of inheritance with respect to all personal property and all interests in real property other than regular allotments of land.

    "5. To levy dues, fees, or taxes upon the members of the tribe and upon non-members residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.

    "6. To remove or to exclude from the limits of the reservation non-members of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which non-members of the tribe may come upon tribal land or have dealings with tribal members, providing such acts are consistent with Federal laws governing trade with the Indian tribes.

    "7. To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe, out of tribal funds, where legal title to such funds lies in the tribe.

    "8. To administer justice with respect to all disputes and offenses of or among the members of the tribe, other than the ten major crimes reserved to the Federal courts.

    "9. To prescribe the duties and to regulate the conduct of Federal employees, but only in so far as such powers of supervision may be expressly delegated by the Interior Department."

    The relation of the pueblo to its members involves not merely a relation of government but also a relation of land ownership. The decided cases uniformly recognize that legal title to "grant" lands and equitable title to "executive order reservation" lands, within each pueblo, lies in the pueblo itself.

    Thus in the case of United States v. Joseph, supra, the Supreme Court declared:

    "If the pueblo Indians differ from the other inhabitants of New Mexico in holding lands in common, and in a certain patriarchal form of domestic life, they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes of whom we have been speaking.

            *                                *                                *                                *                                *

    "Turning our attention to the tenure by which these communities hold the land on which the settlement of defendant was made, we find that it is wholly different from that of the Indian tribes to whom the act of Congress applies. The United States have not recog-
 



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nized in these latter any other than a passing title with right of use, until by treaty or otherwise that right is extinguished. And the ultimate title has been always held to be in the United States, with no right in the Indians to transfer it, or even their possession, without consent of the government.

            *                                *                                *                                *                                *

    "The pueblo Indians, on the contrary, hold their lands by a right superior to that of the United States. Their title dates back to grants made by the government of Spain before the Mexican revolution,-a title which was fully recognized by the Mexican government, and protected by it in the treaty of Guadaloupe Hidalgo, by which this country and the allegiance of its inhabitants were transferred to the United States." (94 U.S., at pp. 617-618)

    Again, in the case of United States v. Sandoval, supra, the court declared through Mr. Justice Van Devanter:
    "It also is said that such legislation cannot be made to include the lands of Pueblos, because the Indians have a fee simple title. It is true that the Indians of each pueblo do have such a title to all the lands connected therewith, excepting such as are occupied under executive orders, but it is a communal title, no individual owning any separate tract. In other words, the lands are public lands of the pueblo * * *." (231 U.S., at p. 48)
    The case of United States v. Chavez, supra, includes an account of the manner in which lands have been granted to or purchased by Indian pueblos.

    Under the circumstances the pueblo may exercise the ordinary rights of a landowner, with respect to its own members. The designation suggested by Mr. Justice Van Devanter, "public lands of the pueblo", is significant. The individual Indian's rights of possession are similar to those of a licensee having the authority to use the land. With respect to his occupancy of land, he has no rights as against the pueblo. The pueblo may at any time revoke an individual's right of occupancy either because of his removal from the pueblo, or because of his failure to make proper use of the assigned parcel of land, or for any other reason.

    The foregoing analysis does not, however, apply to improvements which an individual may place upon the land assigned to him. In the absence of proof of some contrary custom, it would appear that such improvements are the property of the individual.

    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, affd. 220 U.S. 481;
Dukes v. Goodall, 5 Ind. T. 145, 82 S. W. 702;
In re Narragansett Indians, 20 R.I. 715, 40 Atl. 347.
Terrance v. Gray, 156 N. Y. Supp. 916;
Reservation Gas Co. v. Snyder, 88 Misc. 209, 150 N. Y. Supp. 216.
    In the case of Sizemore v. Brady, supra, the Supreme Court declared:
"lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common." (P. 446.)
    Similarly, in Franklin v. Lynch, supra, the Supreme Court declared:
    "As the tribe could not sell, neither could the individual members, for they had neither an undivided interest in the tribal land nor vendible interest in any particular tract." (P. 271.)
    The nature of tribal or communal property is clearly set forth in Journeycake v. Cherokee Nation and United States, supra, where the Court of Claims declared:
    "The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies his right of property does not descend; if he removes from the community it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property in the land as perfect as that of any other person; and his children after him will enjoy all that he enjoyed, not as heirs but as communal owners * * *." (P. 302.)




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  Similarly, in the case of Hayes v. Barringer (168 Fed. 221), the court declared, in considering the status of Choctaw and Chickasaw tribal lands:

    "* * * At that time these were the lands of the Choctaw and Chickasaw Nations, held by them, as they held all their lands, in trust for the individual members of their tribes, in the sense in which the public property of representative governments is held in trust for its people. But these were public lands, and, while the enrolled members of these tribes undoubtedly had a vested equitable right to their just shares of them against strangers and fellow members of their tribes, they had no separate or individual right to or equity in any of these lands which they could maintain against the legislation of the United States or of the Indian Nations. Stephens v. Cherokee Nation, 174 U.S. 445, 488, 19 Sup. Ct. 722, 43 L. Ed. 1041; Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 Sup. Ct. 115, 47 L. Ed. 183; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 Sup. Ct. 216, 47 L. Ed. 299; Wallace v. Adams, 143 Fed. 716, 74 C.C.A. 540; Ligon v. Johnston (C.C.A.) 164 Fed. 670."
    The extend of any individual's rights in tribal property are subject to such limitations as the tribe may see fit to impose. Thus in Reservation Gas Co. v. Snyder, supra, it was held that an Indian tribe might dispose of minerals on tribal lands which had been assigned to individual Indians for private occupancy, since the individual occupants had never granted any specific mineral rights by the tribe.

    In Terrance v. Gray, supra, it was held that no act of the occupant of assigned tribal land would terminate the control duly exercised by the chiefs of the tribe over the use and disposition of the land.

    The foregoing decisions relate to tribes other than the Pueblos, but the arguments and conclusions therein found are equally applicable to the pueblo lands. Indeed, since a pueblo is recognized as a body corporate, its legal control over lands is even clearer than can be the case with tribes which have no defined legal status. See Lane v. Pueblo of Santa Rosa (249 U.S. 110); United States v. Lucero, 1 N.M.. 422.

    Among the regulations traditionally imposed by the various pueblos upon the use and disposition of tribal land must be listed the common rule that persons abandoning the pueblo forfeit their rights of occupancy. A similar rule has frequently been applied by the United States Government itself in the distribution of tribal lands and funds. Thus, in the case of Sac and Fox Indians of Iowa v. Sac and Fox Indians of Oklahoma and United States, supra, the Court of Claims found that Indians who had voluntarily abandoned a given reservation thereby forfeited all claim to participation in the distribution of tribal funds.

    The distinction drawn between rights to improvements and rights to the land itself conforms not only with the established rules of equity, but also with principles of common fairness which have been adopted by the Interior Department and by various Indian tribes in dealing with assignments of tribal land.

    In Journeycake v. Cherokee Nation and United States, supra, the court draws attention to the distinction between tribal land and individual improvements laid down by the Constitution of the Cherokee Nation (adopted September 6, 1839). Section 2 of that Constitution reads:

    "SEC. 2. The lands of the Cherokee Nation shall remain common property; but the improvements made thereon, and in the possession of the citizens of the Nation, are the exclusive and indefeasible property of the citizens respectively who made or may rightfully be in possession of them: Provided, That the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements in any manner whatever, to the United States, individual States, or to individual citizens thereof; and that whenever any citizen shall remove with his effects out of the limits of this Nation, and become a citizen of any other government, all his rights and privileges as a citizen of this Nation shall cease: Provided, nevertheless, That the national council shall have power to readmit, by law, to all the rights of citizenship, any such person or persons who may, at any time, desire to return to the Nation, on memorializing the National Council for such readmission."
    Available evidence indicates that this distinction between tribal land and individual improvements is consistent with the established customs and practices of the pueblos.

    The following cases support this distinction, with respect to Indian tribal lands:

McGlassen v. State, 130 Pac. 1174;
Rush v. Thompson, 2 Ind. T. 557, 53 S.W. 333.
    Even vested rights in individual improvements, however, may be limited by the laws or customs
 



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of the Indian tribe. In effect, such laws and customs represent conditions upon the grant of individual occupancy rights, to which the individual is deemed to consent upon receiving such rights. Thus, in Myers v. Mathis (2 Ind. T. 3, 46 S. W. 178), the court upheld the validity of a Chickasaw statute of limitations, whereby an individual Indian suffered a loss of his improvements by reason of his absence for a fixed period.

    It is fair to conclude that the right of an individual to remove or otherwise dispose of improvements upon tribal land is a vested right subject only to such limitations as may be imposed by established tribal rules or customs.

II. THE RELATION OF THE PUEBLO
TO THE FEDERAL GOVERNMENT.

    The relationship between the Indian Pueblos and the United States raises four basic questions: (1) To what extent are the pueblos subject to congressional control; (2) To what extent are the pueblos subject to administrative supervision by the Government; (3) May the pueblos resort to legal proceedings against the United States or its officers; (4) Are the pueblos entitled to the protection of the Constitution with .respect to acts done under Federal authority.

    (1) The first of these questions is fully answered in the case of United States v. Sandoval, supra. In that case, it was said:

    "The question to be considered, then, is, whether the status of the Pueblo Indians and their lands is such that Congress competently can prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood.

    "There are as many as twenty Indian pueblos scattered over the State, having an aggregate population of over 8,000. The lands belonging to the several pueblos vary in quantity, but usually embrace about 17,000 acres, held in communal, fee simple ownership under grants from the King of Spain made during the Spanish sovereignty and confirmed by Congress since the acquisition of that territory by the United States. 10 Stat. 308, c. 103, Sec. 8; 11 Stat. 374, c. 5. As respects six of the pueblos, one being the Santa Clara, adjacent public lands have been reserved by executive orders for the use and occupancy of the Indians.

    "The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government. * * * Upon the termination of the Spanish sovereignty they were given enlarged political and civil rights by Mexico, but it remains an open question whether they have become citizens of the United States. See treaty of Guadaloupe Hidalgo, Articles VIII and IX, 9 Stat. 922, 929; United States v. Joseph, 94 U.S. 614, 618; Elk v. Wilkins, 112 U.S. 94. Be this as it may, they have been regarded and treated by the United States as requiring special consideration and protection, like other Indian communities. Thus, public moneys have been expended in presenting them with farming implements and utensils, and in their civilization and instruction; agents and superintendents have been provided to guard their interests; central training schools and day schools at the pueblos have been established and maintained for the education of their children; dams and irrigation works have been constructed to encourage and enable them to cultivate their lands and sustain themselves; public lands, as before indicated, have been reserved for their use and occupancy where their own lands were deemed inadequate; a special attorney has been employed since 1898, at an annual cost of $2,000, to represent them and maintain their rights; and when latterly the Territory undertook to tax their lands and other property, Congress forbade such taxation, saying: "That the lands now held by the various villages or pueblos of Pueblo Indians, or by individual members thereof, within Pueblo reservations or lands, in the Territory of New Mexico, and all personal property furnished said Indians by the United States, or used in cultivating said lands, and any cattle and sheep now possessed or that may hereafter be acquired by said Indians, shall be free and exempt from taxation of any sort whatsoever, including taxes heretofore levied, if any, until Congress shall otherwise provide." 33 Stat. 1048, 1069, c. 1479. An exempting provision was also inserted in Sec. 2 of the Enabling Act. (At pp. 38-40)

            *                                *                                *                                *                                *

    "During the Spanish dominion the Indians of the pueblos were treated as wards requiring special protection, were subjected to restraints and official supervision in the alienation of their property, and were the beneficiaries of a law declaring "that in the places and pueblos of the Indians no wine shall enter, nor shall it be sold to them." Chouteau v. Melony, 16 How. 203, 237, Laws of the Indies, Book 6, title 1, laws 27 and 36, title 2, law 1; Book 5, title 2, law 7; Book 4, title 12, laws 7,9, 16-20; Cedulas and Decrees shown in Hall's




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Mexican Law, Secs. 162-171; After the Mexican succession they were elevated to citizenship and civil rights not before enjoyed, but whether the prior tutelage and restrictions were wholly terminated has been the subject of differing opinions.

    "But it is not necessary to dwell specially upon the legal status of this people under either Spanish or Mexican rule, for whether Indian communities within the limits of the United States may be subjected to its guardianship and protection as dependent wards turns upon other considerations. See Pollard v. Hagan, 3 How. 212, 225. Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State. As was said by this court in United States v. Kagama, 118 U.S. 375, 384: "The power of the General Government. over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." In Tiger v. Western Investment Co., 221 U.S. 286, 315, prior decisions were carefully reviewed and it was further said: "Taking these decisions together, it may be taken as the settled doctrine of this court that Congress, in pursuance of the long-established policy of the Government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. It is for that body, and not for the courts, to determine when the true interests of the Indian require his release from such condition of tutelage."

    "Of course, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts. United States v. Holliday, 3 Wall. 407, 419; United States v. Rickert, 188 U.S. 432, 443, 445; Matter of Heff, 197 U.S. 488, 499; Tiger v. Western Investment Co., supra.

    "As before indicated, by an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the Government have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardian ship over them cannot be said to be arbitrary but must be regarded as both authorized and controlling. * * *" (At pp. 44-47.)

    In view of the foregoing analysis, there can be no doubt that the Pueblos are subject to a general legislative control by Congress, and that Congress may limit, alter or extend the powers of self government now vested in the Pueblos.

    (2) The second question is less simply answered. Administrative control of activities of the Pueblos, particularly activities affecting third parties, has been clearly, defined by court decisions in certain limited fields, but outside these fields there is much room for differences of opinion.

    One of the points on which administrative control is clearly established relates to the disposition of real property. Here the cases hold that the Pueblos have no power to dispose of real property except with the consent of the United States. Such consent may be given expressly by the Secretary of the Interior, or implicitly through a legal action involving pueblo lands. In the latter case the United States must be a party to the action, or else the Pueblos must be represented by an attorney appointed by the United States, if the decree against the Pueblos is to have validity.

    These propositions are set forth in the opinion of the Supreme Court delivered by Mr. Justice Van Devanter in United States v. Candelaria, supra.

    The first question certified to the Supreme Court in that case was:

    "1. Are Pueblo Indians in New Mexico in such status of tutelage as to their lands in that State that the United States, as such guardian, is not barred either by a judgment in a suit involving title to such lands begun in the territorial court and passing to judgment after state hood or by a judgment in a similar action in




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the United States District Court for the District of New Mexico, where, in each of. said actions, the United States was not a party nor was the attorney representing such Indians therein authorized so to do by the United States?" (At p. 438.)

    This question was answered in the following terms:
    "Many provisions have been enacted by Congress-some general and others special-to prevent the Government's Indian wards from im providently disposing of their lands and becoming homeless public charges. One of these provisions, now embodied in section 2116 of the Revised Statutes, declares: '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.' This provision was originally adopted in 1834, c. 161, sec. 12, 4 Stat. 730, and, with others 'regulating trade and intercourse with the Indian tribes,' was extended over 'the Indian tribes' of New Mexico in 1851, c. 14, sec. 7, 9 Stat. 587.

    "While there is no express reference in the provision to Pueblo Indians, we think it must be taken as including them. They are plainly within its spirit and, in our opinion, fairly within its words, 'any tribe of Indians.' Although sedentary, industrious 'and disposed to peace, they are Indians in race, customs and domestic government, always have lived in isolated communities, and are a simple, uninformed people, ill-prepared to cope with the intelligence and greed of other races. It therefore is difficult to believe that Congress in 1851 was not intending to protect them, but only the nomadic and savage Indians then living in New Mexico. A more reasonable view is that the term 'Indian tribe' was used in the acts of 1834 and 1851 in the sense of 'a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.' Montoya v. United States, 180 U.S. 261, 266. In that sense the term easily includes Pueblo Indians.

    "Under the Spanish law Pueblo Indians, although having full title to their lands, were regarded as in a state of tutelage and could alienate their lands only under governmental supervision. See Chouteau v. Molony, 16 How. 203, 237. Text writers have differed about the situation under the Mexican law; but in United States v. Pica, 5 Wall. 536, 540, this Court, speaking through Mr. Justice Field, who was specially informed on the subject, expressly recognized that under the laws of Mexico the government 'extended a special guardianship' over Indian pueblos and that a conveyance of pueblo lands to be effective must be 'under the supervision and with the approval' of designated authorities. And this was the ruling in Sunol v. Hepburn, 1 Cal. 254, 273, et seq. Thus it appears that Congress in imposing a restriction on the alienation of these lands, as we think it did, was but continuing a policy which prior governments had deemed essential to the protection of such Indians.

            *                                *                                *                                *                                *

    "With this explanation of the status of the Pueblo Indians and their lands, and of the relation of the United States to both, we come to answer the questions propounded in the certificate.

    "To the first question we answer that the United States is not barred. Our reasons will be stated. The Indians of the pueblo are wards of the United States and hold their lands subject to the restriction that the same cannot be alienated in any-wise without its consent. A judgment or decree which operates directly or indirectly to transfer the lands from the Indians, where the United States has not authorized or appeared in the suit, infringes that restriction. The United States has an interest in maintaining and enforcing the restriction which cannot be affected by such a judgment or decree. This Court has said in dealing with a like situation: 'It necessarily follows that, as a transfer of the allotted lands contrary to the inhibition of Congress would be a violation of the governmental rights of the United States arising from its obligation to a dependent people, no stipulations, contracts, or judgments rendered in suits to which the Government is a stranger, can affect its interest. The authority of the United States to enforce the restraint lawfully created cannot be impaired by any action without its consent.' Bowling and Miami Improvement Co. v. United States, 233 U.S. 528, 534. And that ruling has been recognized and given effect in other cases. Privett v. United States, 256 U.S. 201, 204; Sunderland v. United States, 266 U.S. 226, 232.

    "But, as it appears that for many years the United States has employed and paid a special attorney to represent the Pueblo Indians and
 
 



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look after their interests, our answer is made with the qualification that, if the decree was rendered in a suit begun and prosecuted by the special attorney so employed and paid, we think the United States is as effectually concluded as if it were a party to the suit. Souffront v. Compagnie des Sucreries, 217 U.S. 475, 486; Lovejoy v. Murray, 3 Wall. 1, 18; Claflin v. Fletcher, 7 Fed. 851, 852; Maloy v. Duden, 86 Fed. 402, 404; James v. Germania Iron Co., 107 Fed. 597, 613." (At pp. 441 to 414.)

    The decision reached in the Candelaria case has been followed in a number of cases arising on appeals from decrees of the Pueblo Lands Board.

    As was said in the case of United States v. Board of National Missions of the Presbyterian Church, supra:

    It is now settled that the Pueblo Indians are wards of the government. United States v. Sandoval, 231 U.S. 28, 34 S. Ct. 1, 58 L. Ed. 107; United States v. Candelaria, 271 U.S. 432, 46 S. Ct. 561, 70 L. Ed. 1023. They are subject to the general rule that 'no stipulations, contracts or judgments rendered in suits to which the government is a stranger, can affect its interest.' * * *" (At p. 274).
    Again, in the case of Garcia v. United States, supra, the court declared:
    "It was settled, by the decision in United States v. Candelaria, 271 U.S. 432, 46 S. Ct. 561, 70 L. Ed. 1023, that the Pueblo Indians are under the guardianship of the United States, and that they are within the Non-Intercourse Act (Act June 30, 1834, 4 Stat. 730; Act Feb. 27, 1851, 9 Stat. 587), and that title, once vested in the Pueblos, could not be divested without the consent of the United States. * * *" (At p. 878)
    A similar opinion is expressed in Pueblo of Picuris v. Abeyta, supra.

    The latter two cases arose under the Pueblo Lands Act of June 7, 1924 (43 Stat. 636) which, in effect, put upon the statute books the rule announced in the Candelaria case. Section 2116 of the Revised Statutes, cited above and relied upon in the Candelaria decision, was followed substantially in section 17 of the Pueblo Lands Act, which reads:

    "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."
    The language of this act is broad enough to cover even an assignment of land from a pueblo to one of its members, if such assignment amounts to a transfer of right, title or interest in real property. Any such assignment, made by the pueblo without the prior approval of the Secretary of the Interior, would be, according to the statute, 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 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)
 



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    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 Lands 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 pueblo 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.

    Under the foregoing authorities, the meaning to be attached to any assignment that may be made by a 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 and protecting the assignee against intruders.

    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 unless approved in advance by the Secretary of the Interior.

    The cases cited at pages 7-10 above show that the relation between an Indian tribe and its members has regularly been viewed as a relation of license and not of leasehold. Although this would be the presumption in a case arising within a pueblo, the presumption might be rebutted by convincing evidence and each case would have to be decided with reference to the special written or unwritten laws and special customs applicable within the pueblo.

    The foregoing authorities establish at least the general: principle that the power of the pueblo to dispose of real property is subject to administrative control by the Executive branch of the Government.

    Apart from such administrative control, those pueblos that have voted to accept the act of June 18, 1934 (48 Stat. 984), are, of course, bound by the prohibitions against the alienation of tribal land which are embodied in section 4 of that act. It should be noted, however, that this prohibition does not extend to exchanges of land of equal value.

    The power of the Executive extends to the bringing of suits on behalf of a pueblo in matters affecting pueblo lands and controlling the conduct of such litigation. The basis of such power is set forth in the passage above quoted from United States v. Candelaria, in which Mr. Justice Van Devanter said: "The suit was brought on the theory that these Indians are wards of the United States and that it therefore has authority and is under a duty to protect them in the ownership and enjoyment of their lands." (271 U.S., at 437). Under section 1 of the Pueblo Lands Act which provides that "the United States of America, in its sovereign capacity as guardian of said pueblo Indians" shall institute certain actions to quiet title of pueblo lands, a number of suits have been brought on behalf of Indian pueblos.

    See for example United States v. Board of National Missions of Presbyterian Church, supra;
 



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Garcia v. United States, supra; Pueblo of Picuris v. Abeyta, supra.

    In the last cited case the question was raised whether the pueblo itself was precluded from appealing an adverse decision sustained in an action instituted by the United States on behalf of the pueblo. The court declared:

    "In compliance with this section, the Attorney General brought this action in the name of the United States as guardian of the Indians of the Pueblo of Picuris. The decision in the court below was adverse to the United States as to a portion of the lands in controversy. The Attorney General declined to appeal from said decision, although urged. to do so by the pueblo. Thereupon the pueblo filed its petition for appeal, alleging that it is a corporation organized under the laws of the state of New Mexico, and a community of Pueblo Indians, and the owner in fee simple, under a grant from the King of Spain, of the lands in controversy. The petition for appeal alleges that the pueblo was advised that it had no right to intervene in said suit, and did not in fact intervene, but that it did co-operate with the Attorney General in the trial of said cause, and that it is the party beneficially interested in the determination thereof. The trial court declined to allow the appeal, the petitioner not being a party to the litigation: the appeal was allowed by a Circuit Judge for the purpose of permitting the matter to be presented to this court. The appellees now move to dismiss the appeal.

            *                                *                                *                                *                                *

    "It thus appears that at any time prior to the filing of the field notes and plats by the Secretary of the Interior in the office of the Surveyor General of New Mexico (Pueblo Lands Act, sec. 13, 43 Stat. 640 [25 USCA sec. 331 note], either the United States or the pueblo may maintain an action involving the title and right to lands of the pueblo; but a decree rendered in a suit brought by the pueblo does not bind the United States, while a decree rendered in a suit brought by the United States does bind the pueblo.

            *                                *                                *                                *                                *

    "The statutory power of the United States to initiate actions for the Pueblo Indians necessarily involves the power to control such litigation. If the private attorneys of the pueblo could dictate the averments of the bill, or would prevail in questions of judgment in the introduction of evidence, there would be no substance to the guardianship of the United States over the Indians. There cannot be a divided authority in the conduct of litigation; divided authority results in hopeless confusion. If the United States has power to dismiss with prejudice prior to trial, as has been held, it certainly has power to decline to appeal after trial, if it believes the decision of the trial court is without error." (At pp. 13 to 14.)

    In view of the foregoing authorities it is clear that the United States is empowered by virtue of its relation to the pueblo and pursuant to special legislation based on that relationship to conduct and control litigation on behalf of the pueblos concerned for the protection of pueblo lands.

    No attempt will be made in this opinion to analyze exhaustively the realm in which the Executive arm of the Federal Government is empowered to supervise acts of the pueblo government. It is enough for the present to point on the one hand to the foregoing cases upholding such supervision in matters affecting the disposition of pueblo lands and litigation with reference to such lands and to note, on the other hand, that pueblo rights of self-government in matters internal to the pueblo have been constantly recognized in all the decided cases. In the Constitution of the Santa Clara Pueblo, approved by the Secretary of the Interior on December 20, 1935, an attempt was made to distinguish between matters over which the pueblo has sovereign power, under existing Federal law, and matters over which the Interior Department has final control. This attempt is embodied in the fifth numbered paragraph of Article IV, section 1 of the Pueblo Constitution. This paragraph, dealing with powers which are not specifically enumerated in section 16 of the act of June 18, 1934, but which are comprehended under the general phrase "all powers vested in any Indian tribe or tribal council by existing law," reads as follows:

    "5. To enact ordinances, not inconsistent with the constitution and bylaws of the pueblo, for the maintenance of law and order within the pueblo and for the punishment of members, and the exclusion of nonmembers violating any such ordinances, for the raising of revenue and the appropriation of available funds for pueblo purposes, for the regulation of trade, inheritance, land-holding, and private dealings in land within the pueblo,




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for the guidance of the officers of the pueblo in all their duties, and generally for the protection of the welfare of the pueblo and for the execution of all other powers vested in the pueblo by existing law: Provided, That any ordinance which affects persons who are not members of the pueblo shall not take effect until it has been approved by the Secretary of the Interior or some officer designated by him."

    (3) A third point in the relation of the pueblo to the Federal Government is raised by the question whether the pueblos may resort to legal proceedings against the United States or its officers. While this question is essentially a question of legal procedure, the substantive rights of the pueblos must depend in a very large degree upon the answer given to this question. The question is distinctly and unmistakably answered in the opinion of the Supreme Court read by Mr. Justice Van Devanter in Lane v. Pueblo of Santa Rosa, supra. In that case the pueblo of Santa Rosa was recognized as entitled to bring suit against the Secretary of the Interior to enjoin that official from offering, listing, or disposing of, as public lands of the United States, certain lands claimed by the Indian pueblo.

    Again, in the case of Pueblo de San Juan v. United States, supra, the right of a pueblo to bring suit against the United States, under the Pueblo Lands Act (43 Stat. 637), was upheld.

    In accordance with the familiar rule a suit against the United States must be based upon legislation through which the United States permits itself to be sued. Suits against officers of the United States based on alleged illegal acts require no such statutory authority.

    (4) A final question which the relation of the pueblo to the Federal Government has raised is the question whether the pueblos are entitled to the protection of the Federal Constitution with respect to acts done under Federal authority.

    The opinion of the Supreme Court in the above-cited case of Lane v. Pueblo of Santa Rosa, answers this question in the following terms:

    "The defendants assert with much earnestness that the Indians of this pueblo are wards of the United States-recognized as such by the legislative and executive departments-and that in consequence the disposal of their lands is not within their own control, but subject to such regulations as Congress may prescribe for their benefit and protection. Assuming, without so deciding, that this is all true, we think it has no real bearing on the point we are considering. Certainly it would not justify the defendants in treating the lands of these Indians-to which, according to the bill, they have a complete and perfect title-as public lands of the United States and disposing of the same under the public land laws. That would not be an exercise of guardianship, but an act of. confiscation. Besides, the Indians are not here seeking to establish any power or capacity in themselves to dispose of the lands, but only to prevent a threatened disposal by administrative officers in disregard of their full ownership. Of their capacity to maintain such a suit we entertain no doubt. The existing wardship is not an obstacle, as is shown by repeated decisions of this court, of which Lone Wolf v. Hitchcock, 187 U.S. 553, is an illustration." (At pp. 113 to 114)
    Again, it was held in the case of Garcia v. United States, supra, that Congress could not constitutionally deprive a pueblo of the right to plead a New Mexico statute of limitations. The court declared:
    "We conclude that such Indian pueblos were entitled to the benefits of the New Mexico statutes of limitation and that the United States, as their guardian, may plead such statutes in their behalf.

    "If this be true, then the Pueblo of Taos, having acquired fee simple title to the Tenorio tract under section 3364, supra, prior to the adoption of the Pueblo Lands Act, could not be deprived of that title by legislative fiat." At p. 878)

    In accordance with the foregoing decisions it is plain that while the Indian pueblos have been considered for certain purposes as wards of the Federal Government they are entitled not only to bring suit against that Government and its officers but to claim as against such Government and officers the protections guaranteed by the Federal Constitution.

III. THE RELATION OF THE PUEBLO
TO THE STATE.

    A third set of problems affecting the legal status of the pueblos revolves around the relation that the pueblos bear to the States in which they are situated.

    As is pointed out in the opinion of Mr. Justice Van Devanter in United States v. Sandoval, supra, the Enabling Act governing the admission of New Mexico into the Union (Sec. 2, Act of June 20,
 



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1910, 36 Stat. 557) specifically provided that New Mexico must recognize "the absolute jurisdiction and control by the Congress of the United States" with respect to lands owned or occupied by the Pueblo Indians.

    The pertinent portions of the Enabling Act provide:

    "Sec. 2. That * * * the said convention shall be, and is hereby, authorized to form a constitution and provide for a state government for said proposed State, all in the manner and under the conditions contained in this Act * * *.

    " 'And said convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State-

    " 'First. That * * * the sale, barter or giving of intoxicating liquors to Indians and the introduction of liquors into Indian country, which term shall also include all lands now owned or occupied by the Pueblo Indians of New Mexico, are forever prohibited.

    " 'Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title * * * to all lands lying within said boundaries owned or held by any Indian or Indian tribes the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States; * * * but nothing herein, or in the ordinance herein provided for shall preclude the said State from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted or acquired as aforesaid or as may be granted or confirmed to any Indian or Indians under any Act of Congress, but said ordinance shall provide that all such lands shall be exempt from taxation by said State so long and to such extent as Congress has prescribed or may hereafter prescribe * * *.

    " 'Eighth. That whenever hereafter any of the lands contained within Indian reservations or allotments in said proposed State shall be allotted, sold, reserved, or otherwise disposed of, they shall be subject for a period of twenty-five years after such allotment, sale, reservation, or other disposal to all the laws of the United States prohibiting the introduction of liquor into the Indian country; and the terms 'Indian' and 'Indian country' shall include the Pueblo Indians of New Mexico and the lands now owned or occupied by them.' " (Vol. 231, p. 37.)

    It appears, therefore, that the Indian pueblos are in general exempt from State jurisdiction and State control.

    Two exceptions may be noted to this general rule. In the first place, Congress may consent to State jurisdiction over Indian country for specified purposes and has in fact done so with respect to certain educational and sanitary laws (U.S.C., Tit. 25, sec. 231). In the second place, the State may exercise jurisdiction over non-Indians within an Indian pueblo in matters that do not affect the Indians or the Federal Government (see 55 I. D. 58). Apart from these exceptions the Indian pueblo is not subject to State jurisdiction at any point.

    It has occasionally been assumed that where a State has no jurisdiction over the land of an Indian pueblo, the pueblo has no standing in the courts of the State. This assumption is entirely erroneous. Despite the lack of State jurisdiction over pueblo lands, the pueblo may, nevertheless, bring suit in State courts, so far as State law permits, and demand, in other respects, recognition as a public corporation; The judgments and ordinances of a pueblo are entitled to the same sort of recognition that State courts give to the acts of another State or nation. The pueblo as a sovereign body is not subject to suit in State courts, except with its own consent. The pueblo is not for that reason a pariah. It is entitled at the very least to all the rights which a foreigner may assert in the courts of a State.

    Thus in the case of United States v. Candelaria, supra, a suit to quiet title brought by the United States as guardian of the Pueblo of Laguna, the issue was raised whether such suit was barred by an earlier decree of a State court. The court formulated and decided this issue in the following terms:

    "In their answer the defendants denied the wardship of the United States and also set up in bar two decrees rendered in prior suits brought against them by the pueblo to quiet the title to the same lands. One suit was described as begun in 1910 in the territorial court and transferred when New Mexico became a State to the succeeding state court, where on final hearing a decree was given for the defendants on the merits. * * * In the replication the United States alleged that it was not a party to either of the prior suits; that it neither authorized the bringing of them nor was represented by the attorney who appeared for the



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