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OPINIONS OF THE SOLICITOR

APRIL 12, 1940

the other hand, should be at once returned by the Superintendent to the Tribal Council in order that the Council may have an opportunity to reconsider it in the light of the Superintendent's views and, if the majority votes to do so, refer it over his veto to the Secretary of the Interior. The expeditious handling of vetoed ordinances or resolutions by both the Superintendent and the Tribal Council is necessary if the Department is to have adequate opportunity to pass and act upon them within the 90-day period established by section 2, Article VI, of the tribe's constitution, in such cases..

    An ordinance or. resolution may not always, however, be submitted to the Superintendent by the Tribal Council within the 10-day review period allowed him for positive action thereon or in sufficient time for him to give it adequate consideration, or he may be in doubt as to certain of its provisions and unwilling to give either formal nor disapproval to it, with the result in
each case that he does not act at all within the 10-day period. In each of these cases the same consequence results. The Superintendent's failure to the 10-day period must be considered as disapproval of the ordinance or resolution. This is true even when the Superintendent, acting after the 10-day period has expired, approves the ordinance or resolution. The Tribal Council must, at the expiration of 10 days from the date of enactment of any ordinances or resolutions vetoed or not approved within that time, take them again under consideration and vote whether or not it wishes to submit them to the Secretary of the Interior. Unless they do so, such ordinances or resolutions are not properly before the Department for action.

    That is the situation in the present case. The ordinance was passed on November 7, 1989, but was not submitted to the Superintendent until morethan 30 days had elapsed thereafter. On November 18, 1939, the Superintendent not having acted on it before that date, it had the status of a vetoed ordinance. In order to obtain departmental approval in spite of this the Tribal Council should have reconsidered it at once and voted to refer it to the Department for approval. This was not done, and the ordinance, therefore, is not properly before the Department for action.

    As your letter points out, this situation has arisen in all probability as a result of misunderstanding on the part of the Tribal Council as to the requirements of section 2, Article VI . It is to be regretted that the ordinance cannot now be given formal approval. The Tribal Council, however, may be advised that consideration has been given to the terms of the ordinance and that if the ordinance is re-enacted it will receive early favorable action from the Department.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


OSAGE--TAXABILITY OF LANDS--
FEDERAL STATUTES

 

April 12, 1940.


Syllabus

Re:

Application of Frank Pettus, an unallotted restricted Osage Indian, for a tax exemption certificate on lands acquired by him through partition proceedings where his restricted funds were used to acquire a greater portion of the lands involved than he was entitled to.
Held:
Where restricted funds of Osage Indians have been used subsequent to May 19, 1937, for the acquisition of property the property thus acquired is not exempt from taxation pursuant to the provisions of the act of June 20, 1936 (49 Stat. 1542), as amended by the act of May 19, 1937 (50 Stat. 188).
Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration the application for a tax exemption certificate signed by Frank Pettus, an unallotted restricted Osage Indian. This applicaiton covers the NE1/4 sec. 21, T. 25 N., R. 10 E., in Osage County, Oklahoma. You recommend approval of this certificate designating property exemption from taxation, which certificate is made pursuant to section 2 of the act of June 20, 1936 (49 Stat. 1542), as amended by the act of May 19, 1937 (50 Stat. 188). The certificate recites that the land involved was purchased prior to May 19, 1937, out of the applicant's restricted funds.

    The record discloses that the land in question was allotted under the act of June 28, 1906 (34 Stat. 539), and that as a result of partition proceedings in the District Court of Osage County, Oklahoma, Frank Pettus elected to take more than his share of the property proposed to be partitioned and that by reason of this election he was required to pay $3,599.74 to the other owners of undivided interests in the property. The sheriff of Osage County was directed to execute and deliver to Frank Pettus a deed duly conveying certain property, including the tract here involved, upon
 



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the payment of the above sum. On June 25, 1937, the deed was approved by the Department and the Superintendent of the Osage Indian Agency was authorized to pay into court from the account of Frank Pettus the amount necessary to equalize his interest in the estate.

    The superintendent, in submitting this certificate for approval, states:

    "* * * A payment of $3,599.74 restricted funds was used by Frank Pettus to equalize the value of his interest in the land involved in the partition proceedings. Inasmuch as the appraised value of this 159.14 acres comes within the $3,599.74 expended representing the investment of trust or restricted funds, and in the light of the opinion rendered by the Solicitor for the Department in this connection it is recommended that this application for homestead tax exemption be approved."
    The opinion referred to (M. 29867) deals with the interpretation of section 2 of theact of June 20, 1936, supra, as amended by the act of May19, 1937, supra. Section 2, as amended, provides:
    "All homesteads, heretofore purchased out of the trust or restricted funds of individual Indians, are hereby dedared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress: Provided, That the title to such homesteads shall be held subject to restrictions against alienation or encumbrance except with the approval of the Secretary of the Interior: And Provided Further, That the Indian owner or owners shall select, with the approval of the Secretary of the Interior either the agricultural and grazing lands, not exceeding a total of one hundred and sixty acres, or the village, town, or city property, not exceeding in cost $5,000, to be designated as a homestead."
    The first question considered by that opinion was:
    "(1) May tracts of taxable Osage allotted land, title to which has passed to an Osage Indian as result of partition proceedings, be selected as tax exempt, (a) in the event no actual money consideration has passed-the only consideration being the interest of the Indian in other lands involved in the partition proceedings, (b) in the event some money consideration, less than the value of the land has passed?"
    In answering this question it was held:
    "The Osage allotted lands covered by this question were made taxable by the legislation under which the lands were allotted to the Indians (act of June 28, 1906, 34 Stat. 539, amended by the act of April 18, 1912, 37 Stat. 86). Such lands, therefore, have always been in Indian ownership and have always been taxable and been understood to be taxable. In my opinion Congress did not intend to render nontaxable those lands specifically made taxable by the allotment act. While it may be said that when these lands are partitioned among a number of owners having fractional interests in the land, these owners acquire their title by 'purchase' (United States v. Hale, 51 F. (2d) 629, C.C.A. 10th, 1931), it cannot be said that the lands are purchased with trust or restricted funds nor do they otherwise come within the purposes of the legislation here discussed. The Indians were not mislead as to the tax exemption of the lands and they did not invest in the lands tax exempt funds or other tax exempt property. If those Osage Indians with fractional interests were permitted to obtain the benefit of the 1936 and 1937 acts merely through the partition of the lands they would enjoy an unfair advantage over the other Osage Indians who have sole ownership of those allotted taxable lands. Accordingly, question (1) (a) should be answered in the negative.

    "However, part (b) of this question may be answered in the affirmative where trust or restricted funds have been used for the purchase from the other owners of land in excess of the land to which the Indian was entitled by virtue of his fractional interest. In such case the additional land would represent an investment of trust or restricted funds and its protection from taxation would come within the purpose of the 1937 act. The Indian could in these instances designate as tax exempt a portion of the land acquired by him through partition proceedings which represented the investment of trust or restricted funds."

    In the opinion quoted only situations coming within. the scope of section 2 of the act were considered. In the present case since the expenditure of restricted funds for the purchase of the land in question was not made until after the passage of the 1937 amendment, the purchase does not come within the scope of this remedial legislation and the land in question cannot for that reason be certified as exempt from taxation.
 



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    The opinion above referred to is not to be considered as extending to purchases of land made with restricted funds subsequent to the act of May 19, 1937, supra.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


APPLICATION TO FLATHEAD TRIBAL LANDS
OF THE ACT OF AUG. 30, 1890 (26 STAT. 391)

 

April 12, 1940.


Memorundum for the Commissioner of Indian Affairs:

    I am returning herewith the letter to Kenneth R. L. Simmons; District Counsel of the Irrigation Service, which discusses the application to the tribal lands of the Flathead Indian Reservation of the act of August 30, 1890 (26 Stat. 391, 43 U.S.C.A., sec. 945). This letter was prepared in response to the letter from Mr. Simmons of September 19, 1939, in which he stated that the superintendent of the reservation had raised the question in connection with the construction of the South Side Jocko Canal whether the United States has a right-of-way across the tribal lands of the reservation for the construction of irrigation ditches and canals by virtue of the 1890 act. Mr. Simmons indicates that in his opinion if the United States constructs the canal without first obtaining the consent of the tribal council it must rely on the 1890 act, but he doubts that the act applies to tribal lands.

    The proposed reply to Mr. Simmons consists of an extensive discussion of the application of the 1890 act to trust and other patents issued on lands of Indian reservations, but there is little discussion of the precise question raised by Mr. Simmons which, it is stated on page 5 of the letter, has not heretofore been raised. The conclusion reached is that the act does give a right-of-way in favor of the United States over the tribal lands of the reservation. With this conclusion and the interpretation of the cases cited in the letter, I am unable to agree.

    That part of the act of August 30, 1890, which appears as section 945 of Title 43 of the United States Code, reads as follows:

    "In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States or on entries or claims validated by the Act of August 30, 1890, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States."
    The lands in question are part of the Flathead Reservation which was created by the treaty of July 16, 1855 (12 Stat. 975), and are part of the tribal lands remaining after the allotment of the reservation under the general allotment act of February 8, 1887 (24 Stat. 388), and the act of April 23, 1904 (33 Stat. 302). By the 1904 act the lands remaining after allotment not reserved for special purposes were ceded to the United States in trust for their disposition for the benefit of the Indians. All the lands remaining undisposed of were restored to tribal ownership by the order of February 13, 1936, issued under section 3 of the Indian Reorganization Act, and no part of the tribal lands is now subject to allotment or disposition under any land laws.

    In analyzing the application of this act to these lands, I shall deal first with the decisions discussed in your letter.

    In the case of Clement Ironshield (40 L.D. 28), the question was whether there should be inserted a reservation of a right-of-way under the 1890 act in a patent to be issued to the purchaser of an Indian allotment. The Department held that the reservation should be inserted in the patent on the argument that Congress had power to condition the disposal of Indian lands and that, to accomplish the purpose of providing for necessary irrigation, it should be assumed Congress intended the act to apply to any type of disposition of lands for which a patent of the United States was to issue. The significant part of the argument for the purposes of the present question are the statements that the question whether any lands had been in a reservation status prior to the passage of the 1890 act was immaterial since the case was one of actual disposition of the lands, by patent, subsequent to the 1890 act, and that "where there was no claim by reason of settlement, occupancy, or otherwise prior to the passage of the act, and where the disposition occurred thereafter" there was no room for distinction based on whether the land was "taken up" under an allotment, sale, homestead, or other form of disposition. In view of the reasoning of the Department, apparent in these statements, the case is authority contrary to, and not in favor of, the conclusion reached by your office in this case where there is in fact a claim of occupancy prior to the passage of the act and no disposition is involved Subsequent to the passage of the act.

    In the case of United States v. Van Horn (197
 



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Fed. 611, D.C. Col. 1912), certain patentees from the United States whose patents contained a right-of-way reservation under the 1890 act challenged the right of the Reclamation Service to use rights-of-way on the ground that the lands had been part of the Ute Indian Reservation. The court rejected the contention on the ground that the lands were public lands at the time of the patents and Congress could dispose of public lands as it saw fit. In the discussion of the case your letter fails to mention, the crucial point that before the passage of the 1890 act the lands in question had been ceded by the Indians to the United States by an agreement providing that the lands should be "held and deemed to be public lands of the United States and subject to disposal under the land laws." Moreover, in quoting from the opinion of the case, the letter omits by asterisks the important clauses "when the reservation was vacated" and "when the occupation of the Indians ceased," then the lands could be disposed of as public lands. This case is also, in my opinion, authority contrary to, rather than in favor of, the conclusion reached in the letter, since the court based its conclusion on the fact the lands were no longer Indian lands.

    Similarly, Beecher v. Wetherby (95 U.S. 517), is not authority for disregarding the occupancy rights of the Indians, but, on the contrary, is a leading case recognizing such rights until they are properly terminated by Congress. The Supreme Court there held that the State acquired she sections 16 and 36 of the Menominee Indian Reservation subject to the occupancy rights of the Indians and that when these rights had been relinquished by agreement with the Indians and the Indians had removed from the lands the State acquired full title.

    The cases of Greene v. Willhite (160 Fed. 757, C.C. Idaho 1906), and Ide v. United States (263 U.S. 497), are cited in the letter to indicate that the 1890 act may apply to lands before they are disposed of since these cases indicated that the act would apply whether or not the construction of the canals and ditches took place before or after the patenting. In both cases patents to public lands had been granted to private persons with the reservations provided for in the 1890 act and the question was whether the reservations applied to construction undertaken after the issuance of the patents as well as to construction already on the land. It is obvious that the United States is privileged to construct canals on its own public lands without the necessity for any right-of-way statute. The 1890 act, in the opinion of the courts, was intended to permit such construction after the public lands had passed into private ownership. These cases provide no support for the argument that the act applies to lands owned by a tribe prior to the 1890 act and which are not lands subject to disposition by patent to private persons.

    From my review of the cases on the subject I find no case indicating that the act may be applied to such lands, nor has my attention been called to any administrative practice applying the act to such lands. On, its face the act applies only to lands subject to disposition under the public land laws In my opinion the act should not be so construed as to apply to the tribal lands in question, since to do so would, in the first place, be contrary to the established dealings between the Federal Government and the Indians and, in the second place, would expose the United States to a claim for just compensation for the taking of property.

    When the United States reserves rights-of-way over Indian lands or authorizes rights-of-way to be acquired by private companies, the customary practice has been to provide for obtaining the consent of the Indians or for the payment of compensation. The dealings with the Flathead Indians are particularly illustrative of this practice. In the treaty of July 16, 1855 (12 Stat. 975), establishing the Flathead Reservation, it was agreed that, if necessary for the public convenience, roads might be run, through the reservation,. In the treaty of October 17, 1855 (11 Stat., 657), the Indian tribes concerned, including the Flathead Tribe, consented that the United States might construct roads of every description and establish telegraph lines and military posts through their reservations. These treaties make it apparent that only the rights-of-way granted under the treaties were possessed by the United States. In the agreement with the Blackfeet Indians providing for the allotment of their reservation (act of June 10, 1896, 29 Stat. 356), there is the express agreement that whenever, in the opinion of the President, the public interest requires a construction of canals and irrigating ditches through the reservation a right-of-way shall be and is hereby granted for such purposes, the compensation to be fixed by the Secretary of the Interior and expended for the benefit of the Indians. This agreement, ratified after the passage of the 1890 act, is fair indication that the 1890 act was not considered as providing for such rights-of-way and that such rights-of-way should be acquired with the consent of the Indians and with the payment of adequate compensation. The regulations of the Interior Department, adopted under the various acts authorizing the Secretary of the Interior to grant rights-of-way through Indian reservations for various purposes, provide for the presentation of applications to the Indians and for the payment of compensation.

    The application of the 1890 act to lands owned by an Indian tribe prior to its passage would, in
 



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my opinion, constitute a taking of Indian property by the United States and would render the United States liable to a claim for just compensation under the United States Constitution. Shoshone Tribe v. United States (299 U.S. 476); Klamath Tribe v. United States (304 U.S. 119). Since the act does not require such a construction nor even indicate it to be the proper one, in my opinion the act should not be so construed as to expose the United States to liability.

    I suggest that the letter to Mr. Simmons be revised in the light of this memorandum to inform him that the 1890 act does not give the United States a right-of-way across the tribal lands of the Flathead Reservation.

                                                                                                                                          FREDERIC L. KIRGIS,

Acting Solicitor.


OWNERSHIP OF ABANDONED RIGHT-OF-WAY
OF THE FORT SMITH AND WESTERN RAILROAD
IN QUINTON

 

April 15, 1940.


Hon. Wilburn Cartwright
House of Representatives.

MY DEAR MR. CARTWRIGHT:

    In response to your letter of March 23, enclosing a letter from W. H. Jones, Box 304, Quinton, Oklahoma, inquiring concerning the ownership of the abandoned right of way of the Fort Smith & Western Railroad in Quinton, I attach a copy of the Act of March 3, 1899, 30 Stat. 1368. This act authorizes said railroad to construct and operate a railway through the Choctaw and Creek Nations, in the Indian Territory. you will note that Section 2 concludes as follows:

"* * * and when any portion thereof shall cease to be so used, such portion shall revert to the Choctaw Nation or Creek Nation."
    This provision has been superseded by Section 14 of the Act of April 26, 1906, 34 Stat. 137, 142, which provides for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory. The pertinent provision of Section 14 reads as follows:
    "That the lands in the Choctaw, Chickasaw, Cherokee, Creek, and Seminole nations reserved from allotment or sale under any Act of Congress for the use or benefit of any person, corporation, or organization shall be conveyed to the person, corporation, or organization entitled thereto: Provided, That if any tract or parcel thus reserved shall before conveyance thereof be abandoned for the use for which it was reserved by the party in whose interest the reservation was made, such tract or parcel shall revert to the tribe and be disposed of as other surplus lands thereof: Provided further, That this section shall not apply to land reserved from allotment because of the right of any railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards or other uses connected with the maintenance and operation of such company's railroad, title to which tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him; but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality."
    This provision is applicable to the land in question because railroad rights of way were reserved from allotment under the Act of July 1, 1902, 32 Stat. 641, 645, section 26 (b). In a decision on November 8, 1939, the Circuit Court of Appeals for the Tenth Circuit is the case of United States v. Magnolia Petroleum Company, et al., construed section 14 of the Act of 1906 as follows:
    "And it further provides that where land reserved from allotment for railroad purposes is situated within a municipality, title thereto shall on abandonment vest in such municipality. In the first instance the land is to revert to the tribe, but in the second it is to vest in the owner of the legal subdivision out of which it was carved, and in the third it is to vest in the municipality. These distinctive provisions cannot be regarded as a mere coincidence. They make clear a legislative intent that in the first instance title shall repose in the tribe but not in the other two. The statute is plainly a grant of land reserved from allotment for right of way or other railroad purpose to the owner of the legal subdivision out of which it was




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taken where the company has a right in the nature of an easement but fails to acquire legal title by payment within the permitted time or ceases to use the land for the purpose for which it was reserved. The purpose was to avoid the plain evils which would arise only from the retention in the tribe as remote dedicator of a strip or other small tract reserved for right of way or other railroad use. That is the rationale of the section, and it is in harmony with the legislative purpose of the entire-act to bring to final conclusion the affairs of the tribes. To say that on failure of a railroad company to make payment of a narrow strip reserved for a right of way or on its abandonment for such purpose, title rests in the tribe, would be inconsistent with the purpose and intent of the statute as a whole, would be out of harmony with the manifest purpose of section 14 and would be at variance with the rule against retention of title in remote dedicators. It would be an interpretation not warranted by the language or history of the section."

    Consequently, if the land abandoned by the railroad lies within a municipality, the title vests in the municipality; otherwise, it vests in the owner of the legal subdivision out of which it was carved.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


SERVICE IN INDIAN CORPORATION BY
INDIAN OFFICE EMPLOYEE

M-36655                                                                                                                                                     April 24, 1940.

Synopsis of
Solicitor's Opinion

Re:

Legality of the proposed service by Osage Agency employees as directors of a corporation in which restricted Osage Indians own stock and holding that such service does not come within the purpose and meaning of the statute prohibiting persons employed in Indian affairs from having "any interest or concern in any trade with the Indians, except for, and on account of, the United States."
Held:
The proposed service is legal since the activity involved does not come within the purpose and meaning of the statute prohibiting persons employed in Indian affairs from having an interest or concern in any trade with the Indians.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    I have been asked to determine whether an Indian Office employee who is acting under authority and instructions issued by the Secretary of the Interior for the protection of Indian interests is prohibited by the provisions of section 68, Title 25 of the United States Code, from serving as a director of a corporation in which Indians own stock.

    The statute in question reads as follows:

    "No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office." (25 U.S.C., sec. 68; R.S. 2078).
This statute was amended by the act of June 19, 1939, Public No. 132, 76th Cong., 1st sess., but the amendment is not pertinent to the present question.

    The occasion for considering the effect of this section arises from the desire of the Indian Office to have two employees of the Osage Agency serve as directors of a corporation which it is proposed be formed to take title to and manage the First National Bank Building of Pawhuska, Oklahoma. At present this property is being managed by a trustee for certain Osage Indians and white persons who acquired title through a foreclosure suit by the bondholders of the First National Bank, a corporation. Sixty-seven percent of the stock be owned by Osage Indians, 59 percent restricted and eight percent unrestricted.

    The purpose of the company, as set forth in the proposed articles of incorporation, is:

"* * * to buy, acquire, sell and deal in real estate subject to the laws of the State of Oklahoma, and in connection therewith and incident thereto:

" (a) To acquire, buy, sell, and hold personal property.

" (b) To acquire, purchase, hold, improve and convey such real estate as shall be necessary and proper for carrying on the business of such corporation and to transact any and all busi-




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ness of such corporation and to transact any and all business connected therewith.

" (c) To acquire, buy, sell and hold oil and gas leases.

" (d) To purchase, hold and transfer shares of stock in other corporations of this and other states and nations, save and except stocks as may be prohibited from acquiring under the laws of the State of Oklahoma; and to do all things whatsoever that it might or could do by virtue of the laws of the State of Oklahoma."

    The proposed bylaws provide that "The control of this Corporation shall be vested in a board of directors composed of five (5) members" and that "The directors shall have general control of the property and business of the corporation." Each director is to "hold at least one share of stock" to comply with the Oklahoma statute which provides that "Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the bylaws of the corporation." (Oklahoma Statutes Annotated, 1937 ed., Title 18, sec. 104.) The par value of a share of stock is to be $10; the total capitalization $30,000. With regard to compensation of directors, the bylaws state:
    "Section VI. A director, as such, shall not receive any stated salary for his service, but by resolution of the board, a fixed sum, and expense of attendance, if any, may be allowed for attendance at each regular or special meeting of the board; Provided: That nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor."
    The Indian Office proposes that the agency employees serve as directors of the corporation as part of their official duties and that they receive no additional compensation from the Government and no compensation or expenses from the corporation.

    The questions for decision are (1) will ownership of stock by an employee of the Indian agency or service as a director of this proposed corporation constitute an "interest or concern in any trade with the Indians"; and, if so, (2) is the action proposed removed from the prohibition of the act because it is "for, and on account of, the United States."

    The courts, in applying section 68 of Title 25 of the Code, have with one exception had before them cases involving a direct transaction between a Government employee and an Indian in a bargain and sale relationship. United States v. Hutto, 256 U.S. 524 (1921); Ewert v. Bluejacket, 259 U.S. 129 (1922); Bluejacket v. Ewert, 265 Fed. 823, C.C.A. Okla. (1920); Kendall v. Ewert, 259 U.S. 139 (1922); United States v. Douglas, 190 Fed. 482, C.C.A. 8th (1911). In these cases it is emphasized that the statute seeks to insure integrity of conduct and an impartial attitude toward the Indians on the part of the persons employed in Indian affairs. The element of personal gain is found in each of the above decisions, particularly in the Hutto case, supra, where the farm agent conspired with others to induce the Indians to sell their lands and to purchase various articles and to borrow and lend money, in all of which activities he had an interest.

    The opinions of the Attorney General, under dates of July 12, 1937, February 28, 1938 and February 15, 1940, have also dealt with situations wherein the employee had a personal interest in some transaction of purchase or sale with Indians. The opinion of July 12, 1937, held to be invalid a proposed regulation of this Department which would have allowed Government employees to own stock in and to buy from, but not sell to, an Indian cooperative. The ruling stated that such transactions were contrary to the spirit and purpose of section 68. To allow activities which such interpretation made impossible, Congress passed the act of June 19, 1939 (Public No. 132, 76th Cong., 1st sess.) which permitted the purchase of products, services and commodities from Indian individuals or organizations.

    The facts before me do not show that rentals of space or the sale of the building will be made to any Indian. The holding by the Supreme Court in Ewert v. Bluejacket, supra, that the purchase of Indian land is "trade" within the meaning of section 68 does not, therefore, apply. After the corporation has been formed and the Indians have exchanged their interest in the building for shares of stock, the designated agency employees will buy from some white person the minimum amount of stock, one share, necessary for qualification as a director.

    It is not contemplated that any rental or sale is to be made to Indians, but if such were the case I doubt that the possession of one of the 3,000 shares would constitute a sufficient interest in the business of the corporation to be prohibited by the statute. Such a transaction would be one between the Indian and the corporation, not the stockholders or one stockholder. Are we to conclude that because Indians patronize chain stores an agency employee cannot own stock in the chain? One three-thousandth of the stock carries with it but an infinitesimal interest in the business of the corporation. Is even that small an interest to prevent the employee from investing his funds in the stock of banks, mail order houses, oil companies,
 



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hotels, or even motion picture companies-merely because Indians are or may be among the many customers of such businesses?

    Is mere ownership of stock in a corporation in which shares are also owned by Indians an "interest or concern in any trade with the Indians" within the meaning of section 68? If we are to conclude that such is the case, the employees in Oklahoma may be faced with a situation where they can invest their personal funds in only those companies that have no Indian stockholders.

    The legislative history of section 68 of Title 25 of the Code shows that it was first enacted in 1806 to insure that the agents sent by the Government to purchase goods from the Indians would transact business solely upon the Government's account and not for their personal gain. The statute was put in its present form by the act of June 30, 1834 (4 Stat. 738), and was reenacted as section 2078 of the Revised Statutes without material change. To prevent agency employees from buying stock in corporations that may do some business with Indians or that may have Indian stockholders is to apply the restrictions of the 1834 act to conditions which could not have been foreseen by the drafters of the legislation. The changed circumstances under which business operates today require that we apply the language of the statute and the intent which governed Congress in its enactment in the light of the new conditions. An ultra-strict application of the statute brings within its scope situations which the act was never meant to cover. To avoid results absurd in the light of present day conditions, the law must be interpreted with an eye to the evil it seeks to remedy. At some point a line must be drawn, and wherever that line is drawn, it is my conclusion that a situation like the present one must fall beyond the inhibition of the statute. Here there is no trade with the Indians, no substantial interest in the business of the corporation, and no influencing of the Indians for the personal gain of the agency employee.

    The legality of the ownership by an agency employee of a share of stock in the First National Building Company of Pawhuska has been questioned only because Oklahoma statutes require such ownership as a prerequisite to service as a director of the corporation. The Office of Indian Affairs desires to give protection to Indian interests by having two employees of the Osage Agency serve as directors in behalf of the 59 percent of the stockholders who are restricted Indians. Ownership of stock by those employees is to be kept at a minimum. The very purpose of the service as directors negatives the element of personal interest on the part of the employees. The responsibilities which are given them as directors are little if any different-and more satisfactory-than if they voted the proxies of the restricted Indians. While the possibility of a conflict between Indian interests and those of white stockholders may be mentioned, the interests of all the stockholders in the success of the corporation are the same. It is a usual practice for groups of stockholders to elect as directors those persons on whom they rely to protect their interests, but in no event can the directors or even a majority of the stockholders infringe the legal rights of the minority shareholders.

    In view of my conclusion above that the activities of the corporation do not appear to be "trade" with the Indians, and that ownership of stock or service as a director is not an "interest or concern in any trade with the Indians," it is unnecessary to rely upon the exception to the prohibition which is extended by the statute to acts "for, and on account of, the United States." It is noted, however, that the decisions of the courts and the opinions of the Attorney General with regard to section 68 have dealt only with transactions for the personal benefit of the employee. No instance appears where the words "for, and on account of, the United States" have been considered. Even if the prohibition of the statute is applied with extreme strictness, it appears that the action proposed can, in any event; come within the exception provided. The Osage employees are to become directors only after the Secretary has authorized them to do so to protect the interests of the Indians. Such authorization can be preceded by a formal finding by the Secretary that service by agency employees as directors is "for, and on account of, the United States" in its responsibility for the protection of the Indian wards. The authorization can include, as here, a restriction on the participation permitted. One share of stock is to be purchased-and it from a white stockholder-and such purchase is to be made only because ownership of stock is a prerequisite to qualification as a director. The agency employees will receive no additional compensation from any source for these services which they will render as part of their official duties.

    The first part of this opinion indicates that I do not believe the ownership by an agency employee of one share of stock in the proposed corporation would constitute a personal "interest or concern in any trade with the Indians" over and above the interest "for, and on account of, the United States." However, I see no legal objection to removing even this possible impediment to service of agency employees as directors by having each of them qualify as "holders of stock" by taking the legal title to one share of stock and holding it in trust for a restricted Indian. The Oklahoma courts have not passed on the question of whether a director must
 



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OPINIONS OF THE SOLICITOR

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have the beneficial interest in the stock, but the leading cases on this question in other jurisdictions have interpreted statutory requirements similar to the Oklahoma one to allow a trustee to qualify as a director. People v. Lihme, 269 Ill. 351; 109 N.E.
1051; Ann. Cases 1916 E, p. 959; Kardo Co. v. Adams, 231 Fed 950 (6th C.C.A., Ohio, 1916).

    It is my opinion that .the action proposed is not prohibited by section 68 of Title 25 of the Code. In view, however, of the penal nature of the statute and the holding in Ewert v. Bluejacket, supra, that an error by the Department in construing the section could not confer rights on a Government employee which are inconsistent with the prohibition contained in the section, I suggest that the matter be presented to the Attorney General for his view thereon.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


APPLICATION OF THE LAWS AND REGULATIONS
GOVERNING TRADE WITH THE INDIANS
LICENSED BY THE TRIBE

April 29, 1940.
Memorandum for the Commissioner of Indian Affairs:

    I am returning the attached letter to the Superintendent of the Colorado River Agency concerning the application of the laws and regulations governing trade with the Indians to Indians licensed by the tribe.

    The letter holds that Indians are subject to these laws and regulations in the same manner as other persons. This holding should be modified to exclude therefrom Indians of the full blood. Sections 261 and 262 of title 25, United States Code, giving the Commissioner of Indian Affairs authority to regulate trade with Indians, and requiring any persons desiring to trade with the Indians on any Indian reservation to do so under the regulations of the Commissioner, are general in scope and would include the Indians themselves. However, section 264 of title 25 excludes from the enforcement provisions Indians of the full blood. Section 264 is the only statute which provides a method of enforcement of the laws governing trade with the Indians. Since the laws and regulations are unenforceable against Indians of the full blood, such Indians cannot be said to be required to operate under the regulations. Congress has evidently left to the tribe the regulation of traders who are Indians, restricting the term "Indian" for this purpose to persons with full Indian blood. The tribe itself could require the full blood Indian traders to abide by the Federal laws and regulations.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


REACQUISITION OF HEIRSHIP LANDS BY
TRIBE-STATUTES GOVERNING TRANSFER

M-30767                                                                                                                                                    June 12, 1940.

Memorandum forthe Assistant Secretary.

    In a letter to the Secretary of the Interior of May 6, referred by you to this office, the Indian Office has asked that this office reconsider a suggestion made in a memorandum to the Commissioner of Indian Affairs of February 8 concerning procedure in the reacquisition of heirship lands for the benefit of the tribe. My suggestion was that the land to be reacquired be appraised by arbitrators selected by the tribe and the heirs as the parties in interest, rather than by the Department, in order that the Department might avoid being placed in the position of making both the appraisal and the purchase. The Indian Office now reports that the suggestion is not advisable and asserts that the specialists who are employed by the Department to make appraisals in all transactions coming under Government supervision should act in the case of the transfer of heirship lands.

    My suggestion was put forward not as a legal requirement but as a proposal for avoiding possible criticism of the Department. A further purpose was to propose a means by which the tribe and the heirs, through the arbitrators representing them, might arrive at a price which would be satisfactory to all though not as high as that which might be indicated through a formal appraisement. It is probable that certain tribes may be reluctant to expend any considerable sums on heirship lands and the heirs, for their part, would be glad to receive fair compensation for lands not useful to them and with a limited market. While I urge consideration of this method, I have no objection to the method proposed by the Indian Office. However, I do suggest the desirability of having the tribes concerned endorse that method of appraisal. They could do so by resolution at the time they approve the purchase project. As for the heirs, they will have opportunity to object to the method or the result of the appraisal when notice is given them of the proposed sale. A failure to object would indicate satisfaction with the method and the result.

    The Indian Office also reports that the require-
 



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DEPARTMENT OF THE INTERIOR

JUNE 12, 1940

ment of tribal consent to the purchases, referred to in my memorandum of February 8, accords with their procedure and will be carried out. However, the Indian Office letter implies that the requirement is to be met through obtaining tribal consent to the project plan covering the entire purchase area. Consent to the plan as a whole would not fulfill the requirement discussed in my memorandum. It was there indicated that tribal consent should be given not only to the purchase of the particular land but to the terms of the particular purchase. The expenditure involved, whether from gratuity or tribal funds, should meet with the approval of the tribe. I now repeat that the order transferring the beneficial title from the heirs to the tribe should recite that the tribe has accepted or consented to the particular purchase being made.

    I have certain further recommendations concerning the form of the proposed order transferring title.

    1. In the fourth Whereas clause of the order there is extensive quotation from the act of May 8, 1906, 34 Stat. 182, as a source of authority for the transfer. If quotation is made from any act it should be from section 1 of the act of June 25, 1910, 36 Stat. 855, 25 U.S.C.A. sec. 372, and not from the 1906 act. The provisions of the 1906 act quoted are obsolete as they were superseded by section 1 of the act of May 29, 1908, 35 Stat. 444, 25 U.S.C.A. sec. 404 (see Historical Note to sec. 349 of tit. 25 of the Code). However, the 1908 act is not authority for the proposed transfer as that act requires the consent of the owners. Authority for the transfer must be found in the 1910 act, which authorizes sales in this type of situation in the discretion of the Secretary of the Interior.

    2. The 1910 act provides that if the Secretary of the Interior decides the heirs are competent to manage their own affairs he shall issue a patent in fee but that if he shall decide one or more of the heirs to be incompetent he may, in his discretion, cause such lands to be sold. In view of these provisions a finding that one or more of the heirs is incompetent is an essential prerequisite to causing the lands to be sold. Therefore, I suggest that the order recite that the Secretary has found that one or more of the heirs is incompetent to manage his affairs.

    3. In the last Whereas clause the words "that amount" in the ninth line should be omitted as they do not fit in the sentence.

    4. The proposed order makes no reference to tribal consent nor to the notice and opportunity to object which the Indian Office proposes to accord to the heirs. I suggest that a final Whereas clause be incorporated referring to a resolution of the tribe accepting the purchase and reciting that notice has been given to the heirs and that no sufficient cause has been shown by them why such transfer should not be made. In this last connection I note that the Indian Office proposes to accord such notice and opportunity to object only to the adult heirs who are "conveniently located." Any such location limitation seems to me open to objection as being arbitrary and too indefinite for good administration. The proposed notice and opportunity to object should, in my opinion, be extended to all adult heirs whose whereabouts are known.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.


Approved and returned to the Indian Office: June 13, 1940.
OSCAR L. CHAPMAN, Assistant Secretary.

RE CLAIMS OF THE FARM SECURITY ADMIN.
AGAINST THE ESTATES OF DECEASED INDIAN
BORROWERS

 

June 20, 1940.


HON. MARTIN G. WHITE, Solicitor
Department of Agriculture.

MY DEAR MR. WHITE:

    This is in further answer to your inquiry of May 16, relative to claims of the Farm Security Administration against the estates of deceased Indian borrowers, and particularly against the estate of First Elk Yellow Hawk, deceased Fort Peck allottee No. 1082.

    The record shows that the claim of the Farm Security Administration is in the sum of $28.82 for feed loans to John Yellowhawk Sr., and First Elk Yellowhawk. The Examiner of Inheritance recommended that this account be prorated between the parties who signed for the loan and that one-half or $14.41 be allowed against this estate. This recommendation was approved by this Department. As your claim has been paid in the full amount allowed, it does not appear that the question of preference arises here. The balance of the claim is a charge against John Yellowhawk Sr., the living Indian.

    Claims of your administration should be filed, as was done in the instant case, with the Superintendent of the Agency in which the lands of decedent
 



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OPINIONS OF THE SOLICITOR

JUNE 28, 1940

are located. They are referred to this Office for Departmental action by the Examiner of Inheritance who conducts the probate hearing.

    The Secretary of the Interior is authorized to probate Indian estates under the Acts of June 25, 1910 (36 Stat. 855) and February 14, 1913 (37 Stat. 678). No specific authority is indicated in these acts relative to the allowance or disallowance of claims against the estate. As an incident to the power granted, however, ever since the passage of the acts mentioned, the Secretary of the Interior has passed on claims based on indebtedness incurred by the decedent during his lifetime, and on expense of last illness and funeral charges. While the allotted lands of the Indian are not subject to the liens of indebtedness incurred while the title is held in trust for the Indian (Section 354 Title 25, U.S. Code), the right of the Secretary administratively to allow and settle indebtedness against the Indian decedent has never been seriously questioned.

    The priority accorded claims of the United States by virtue of 31 U.S.C. 191, does not apply to the estates of deceased Indians. No administrator or executor is appointed in these Indian estates, and claims against them are not such liens as may be enforced through the sale of the restricted lands involved. Allowed claims are paid from the accruals to the land or from such cash as may be available at the time of death of the decedent.

    Priority is however given to claims of the United States against estates of deceased Indians, administratively. There are some qualifications which are covered by Departmental Regulations.

    Individual Indian Money Regulations provide that the Superintendent may expend from the accounts of adult and minor Indians, living or dead, up to $500 for medical and hospital attention. (25 C.F.R. 221.7).

    Due to the fact that medical attention is generally furnished through Governmental Agencies, the amounts paid under this section are negligible.

    The Regulations provide that the Superintendent may disburse up to $250 for funeral expenses of a deceased Indian. This may be done prior to the probate of the estate, if funds are available (25 C.F.R. 221.9).

    Except when the expenditures above mentioned affect the order of priority this Department allows claims administratively as follows:

1. The Probate Fee (25 U.S.C. 377; 25 C.F.R. 81.40)

2. Funeral bills and expense of last illness in reasonable amount (25 C.F.R. 221.9 and 81.46)

3. Claims of the United States

4. General creditors. (25 C.F.R. 81.44, 81.46)

Should a case arise in which you feel you have not been given proper priority or, if in the management of your loans you have objection to the prorating of the claims as between joint obligors, a letter to the Commissioner of Indian Affairs, stating full particulars, will bring explanation, rehearing or such action as may be proper. It may be that an expression of your views may bring about a uniform practice in connection with your loans that will be mutually satisfactory.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


MESCALERO RESERVATION--EXCLUSION CLAIM
BY THE UNITED STATES OF CERTAIN LANDS
BY EXECUTIVE ORDER

 

June 28, 1940.


Memorandum to the Commissioner of Indian Affairs:

    The attached proposed report to the Mescalero Tribal Business Committee concerning the merits of an alleged claim owing to the Apache Tribe of the Mescalero Reservation, New Mexico, by the United States for the exclusion of certain lands from the reservation by the Executive orders of May 19, 1882, and March 24, 1883, is returned herewith for further consideration.

    The report concludes that the tribe has no just cause for complaint on the ground that the reservation today is approximately 291 square miles larger in area than the reservation originally set apart for the Mescalero Indians in the Executive order of May 29, 1873, and that the Indians agreed to the exchanges of reservation lands for public lands in New Mexico effected in the Executive orders of May 19, 1882, and March 24, 1883. These orders reduced the tribe's territory 96,000 acres or 150 square miles below the largest area reserved for the Indians by the Executive order of October 20, 1875. In my opinion, there is no sufficient basis for this conclusion.

    A point is made at the outset of the report that the United States never undertook by treaty to recognize lands used and occupied by the Mescalero Apache Indians as an Indian reservation. This is true, but the Treaty of Santa Fe, signed on July 1, 1852, by representatives of the United States and the Apache Nation, provided in article 9 that

    "Relying confidently upon the justice and the liberality of the aforesaid government, and anxious to remove every possible cause that might disturb their peace and quiet, it is agreed




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DEPARTMENT OF THE INTERIOR

JUNE 28, 1940

by the aforesaid Apaches that the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians." (Kappler, Laws and Treaties, Vol. II (Treaties), p. 599.)

The treaty did not bind the Apache Nation to cede any lands to the United States nor did it bind the United States to recognize any specific area as the territory of said nation or its constituent tribes. Article 9, however, did obligate the United States to establish and adjust their boundaries. This agreement was a part of the consideration offered for the peace and friendship of the Indians. The same article recites the Indians' reliance upon the "justice and liberality" of the Government of the United States in carrying out its obligations.

    Probably one of the principal reasons why no designated area was recognized as the territory of the Apaches in the treaty of July 1, 1852, was the fact that these Indians were banded together in nomadic tribes with no set abode. They roamed the territory between the lands of the Comanche on the east, the Colorado River on the west, and the lands of the Ute, Navajo and Paiute Indians on the north, and they were accustomed to cross and recross the present boundary between the United States and Mexico. In fixing a place of residence for these Indians, arbitrary regions had, as a practical matter, to be established, conforming as far as possible with the general Apache domain but based on no exact claims by the Indians. Some of the Apache tribes were placed on the Kiowa and Comanche Reservation in Oklahoma, while others, such as the Mescalero and the San Carlos and the Fort Apache were given reservations by Executive order in New Mexico and Arizona.

    The setting aside of a reservation for the Mescalero Apache Indians by the Executive order of May 29, 1873, as enlarged and clarified by two subsequent orders of February 2, 1874, and October 20, 1875, is to be regarded as a recognition by the United States of rights acquired by long use and occupancy of the area and as confirmation of such rights so far as the lands set aside were concerned. Such action was contemplated and authorized by article 9 of the treaty of July 1, 1852. The power of the President to establish Indian reservations by Executive order in all respects similar to those established by treaty provision or act of Congress is recognized in many cases (34 Op. Atty. Gen. 181, 187; United States v. Midwest Oil Company, 236 U.S. 459; Mason v. United States, 260 U.S. 545; Solicitor's opinion (M. 30318), approved December 15, 1939, upholding the right of the Chemehuevi Indians to compensation for the flooding of lands set aside for them by Executive order). The order's effect was to endow the Mescalero Apache Indians with vested rights in the reserved lands of which they could not be deprived without their consent or the payment of just compensation therefor (Ute Indians v. United States, 45 C. Cls.. 440; Fort Berthold Indians v. United States, 71 C. Cls. 308; United States v. Klamath and Modoc Tribes of Indians, 304 U.S. 119). The fact that their reservation was established by Executive order, instead of by treaty or act of Congress, is not important in this connection.

    It was said by Attorney General Stone in the opinion referred to:

    "Whether the President might legally abolish, in whole or in part, Indian reservations once created by him, has been seriously questioned (12 L.D. 205; 13 L.D. 628) and not without strong reason; for the Indian rights attach when the lands are thus set aside * * * Nevertheless, the President has in fact, and in a number of instances, changed the boundaries of Executive order Indian reservations by excluding lands therefrom, and the question of his authority to do so has not apparently come before the courts." (34 Op. Atty. Gen. 181, 186-7.)
In the present instance, the orders of May 29, 1873, February 2, 1874, and October 20, 1875, not only confirmed Indian rights of use and occupancy (34 Op. Atty. Gen. 181, 187), but were issued in pursuance of obligations toward the Apache Indians undertaken by the United States in the treaty of July 1, 1852, in which the Government agreed "at its earliest convenience" to "designate, settle, and adjust their territorial boundaries." Certainly, it can be said that a moral obligation rested upon the United States not to diminish the area set aside under the foregoing conditions without the Indians' consent. Whether a legal disability to do so also existed is a matter which the Court of Claims might well be asked to decide.

    It does not appear from any of the papers accompanying the report that the Indians ever received compensation for the lost lands. While a few additional tracts were added to the reservation by the Executive order of May 19, 1882, these were far exceeded in amount by the eliminated area and did not compare in value with this territory, containing, as it did, valuable mineral deposits. Nor does it appear that the Indians ever gave their consent to the reduction. The report cites an Indian Office letter of July 6, 1881, to the field agent
 



963

OPINIONS OF THE SOLICITOR

JUNE 28, 1940

charged with investigating the possibility of reducing the reservation area, which contained a direction to him to ascertain whether the Indians were agreeable to parting with the lands in question, but his action thereon, as well as the Indians' response, is not clearly shown. In a letter from the Commissioner of Indian Affairs to the Secretary of the Interior, dated January 30, 1882, recommending issuance of an order reducing the reservation, it was pointed out that the agent was "of opinion that the Indians will now interpose no objections to such reductions." This can hardly be regarded as proof of Indian consent to the reduction. In fact, it clearly implied that such consent had not yet been given. Similarly other statements outlined in the report as supporting the alleged fact of Indian consent do not actually demonstrate such fact, particularly in view of the agent's assertion, quoted on page 6, that

"* * * a visit to Washington for consultation with their 'Great Father', in accordance with promises heretofore made to them by two of the Indian Inspectors, and their late Agent, would be necessary, before their consent could be obtained to such a reduction."
The record fails to show that such a visit took place or that the Indians' consent was secured in some other way.

    Assertions contained in the letter dated May 17, 1882, from the Commissioner of Indian Affairs to the Secretary of the Interior, suggesting minor modifications in the proposed reduction order, are likewise insufficient to show Indian consent. The letter says that "the Indians are well satisfied with the proposal," but this statement is not supported by reference to any specific actions by the Indians to this effect. Such general statements by officials of the Government are not sufficient to sustain a definite holding chat the alleged claim is without merit. It may be that the facts were as alleged in the report, and that the records referred to therein as missing would show them to be so. If such records can be found they should be located. If they cannot, and if no other evidence than that submitted with the report is available to show actual consent to the reduction by the Indians, I am unable to say that the claim of the Mescalero Indians is without foundation.

    In a resolution adopted on April 15, 1939, the Mescalero Tribal Business Committee requested you to send a competent lawyer to the Mescalero Reservation to investigate the claim, or, if that should not be possible, to authorize employment of an attorney by the tribe to do so. Even if the first of these alternatives is rejected, which is primarily an administrative matter, I see no objection to the second. The tribe is free to employ attorneys, subject to approval of the choice thereof and their fees by the Secretary of the Interior, under authority vested in the Tribal Business Committee by section 1 (h) , Article V, of the Apache Constitution. Such action is for the Committee itself to take, not the Department. It should be so advised.

    If the Department renders a final report holding the alleged claim to be unfounded the Indians could fall back on this possibility. Before they are so advised, however, I suggest that further study be given to the actual merits of the claim, with particular emphasis upon the discovery of whether or not there is any definite record showing that the Indians consented to the reduction of their reservation and in what manner such consent was given. If the records fail to show such action by the Indians, I invite your consideration of the advisability of the Department's sponsoring legislation to confer jurisdiction on the Court of Claims to determine the merits of the alleged claim.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


AUTHORITY OF COUNTY COURTS IN OKLAHOMA TO
APPROVE CONVEYANCE OF CERTAIN
RESTRICTED LANDS

 

June 28, 1940.


HON. S. N. CUNNINGHAM,
Judge, County Court of Creek County,
Sapulpa, Oklahoma.

MY DEAR MR. CUNNINGHAM:

    Reference is made to your letter of May 18 requesting the views of this office as to the effect which the act of January 27, 1933 (47 Stat. 777), had upon the authority of the county courts of Oklahoma to approve the conveyance of certain restricted lands owned by the full-blood Indians of the Five Civilized Tribes.

    The specific questions which you asked in your letter to me are concerned with the authority of the county court to approve conveyances of restricted and tax-exempt land, the entire interest in which is owned by full-blood Indians and was acquired by them from the original allottee. You do not in either of the instances which you mention state at what date the ownership passed from the original allottee. Under the provisions of the act of January 27, 1933, and other pertinent acts, as interpreted in my opinion of March 14, 1934 (54 I.D.
 



964

DEPARTMENT OF THE INTERIOR

JUNE 28, 1940

382), the county court is authorized to approve a conveyance by the full-blood owners if they acquired title to the land before January 27, 1933, but if title was acquired from the original allottee subsequent to that date to lands falling within the class provided for in the 1933 act, the Secretary of the Interior and not the county court must approve the conveyance.

    Your attention is called to the reasoning of the Federal and State courts in the cases of Glenn v. Lewis, 105 F. (2d) 398 (C.C.A. 10th, 1939); United States v. Bond, 108 F. (2d) 504 (C.C.A. 10th, 1939); Ledbetter v. Faure, No. 4672 Equity, United States District Court for the Eastern District of Oklahoma; and Green v. Campbell, 100 P. (2d) 997 (Okla. 1940). The conclusions in those cases appear to be based upon the same reasoning as that found in my opinion of March 14, 1934. However, the recent decision of Judge Rice on May 24 in the case of United States v. Easley, No. 4694 Equity, United States District Court for the Eastern District of Oklahoma, appears to hold that the county court has authority to approve the conveyance by full-blood Indians of restricted and tax-exempt land, even though the entire interest is owned by restricted Five Tribe Indians and was acquired by them after January 27, 1933. The Department of Justice is at present considering the desirability of taking an appeal and it is probable that the Circuit Court of Appeals will be asked to rule upon the lower court's determination of the 1933 act.

    Thank you for giving me the opportunity to present the views of the Department in this matter for your consideration.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


WHETHER OR NOT LANDS PURCHASED BY THE
U.S. FOR INDIAN SCHOOLS AND HOSPITALS
CONSTITUTE AN "INDIAN RESERVATION"
"INDIAN COUNTRY"

 

July 9, 1940.


Memorandum for the Commissioner of Indian Affairs:

    The attached letter to the Attorney General states that it is the opinion of this Department that the lands of the Phoenix Indian school in Arizona constitute an "Indian reservation" or "Indian country" within the meaning of the Federal statutes providing for .the jurisdiction of Federal courts over crimes within Indian reservations and within the Indian country. The conclusion in this letter is consistent with that expressed in the letter from this Department to the Attorney General of February 6, 1940, discussing the application of these terms to the lands of the Sioux Sanatorium at Rapid City, South Dakota. However, I have now reconsidered the entire question and reached the opinion that lands purchased by the United States for Indian schools and hospitals are not Indian country nor an Indian reservation unless an Indian tribe or group has occupancy rights on the land.

    There is no judicial statement on the precise question whether lands belonging to the United States devoted to institutions for Indian welfare come within the meaning of these criminal statutes. A review of the cases defining the terms "Indian country" and "Indian reservation" indicates that to come within these terms the lands must be subject to Indian occupancy rights. The original definition of Indian country in the act of June 30, 1834 (4 Stat. 729), defines the term as covering lands to which the Indian title had not been extinguished. This concept of Indian country was first broadened to cover reservations established by Executive order for the use and occupancy of Indians, where the lands had not previously been occupied by Indians (Donnelly v. United States, 228 U.S. 243). In the Sandoval decision (United States v. Sandoval, 231 U.S. 28), it was held that Pueblo lands constituted Indian country, as they were occupied by "distinctly Indian communities", although there was no title in the United States. The cases of United States v. Pelican, 232 U.S. 442, and United States v. Ramsey, 271 U.S. 467, extended the concept of Indian country to lands held by individual Indians through trust allotments or restricted fee patents.

    The final important enunciation on this subject is the McGowan case (United States v. McGowan, 302 U.S. 535), upon which the conclusion in the proposed letter to the Attorney General rests. That case concerned lands purchased by the Federal Government for Indian occupancy pursuant to appropriation acts providing for the purchase of land for "home and farm sites" for Indians and "of land and water rights for the Washoe Tribe of Indians", and of land for additions to the Reno Indian colony. Only one of these appropriation provisions specified that the land was to be held under an express trust for the designated Indian group, and the court treated the land as belonging to the United States. Throughout the opinion there is recognition of the fact that the land was purchased for Indian occupancy and use and that the purchase was made to fulfill the obligation of the Government to provide for "dependent Indian communities". The insistence upon the fact that the lands were held for Indian occupancy makes this case unsatisfactory
 



965

OPINIONS OF THE SOLICITOR

JULY 10, 1940

support for any conclusion that lands not subject to Indian occupancy may nevertheless be classified as Indian country, and the approval of the court of the description of an Indian reservation as lands "set apart for the use of the Indians as such, under the superintendence of the Government" tends to refute the application of the term to lands set apart for the use of a Government institution.

    A legal situation similar to that presented by the Reno Indian colony has occurred in the case of some of the abandoned military reservations which were turned over to this Department for Indian school purposes under the act of July 31, 1882 (22 Stat. 181, 25 U.S.C.A. sec. 276), and which have been accepted as Indian reservations. In these instances title to the land was held by the United States without any formal trust designation, but the land was occupied by Indians whose occupancy rights came to be recognized by Congress and by the Department. Examples are the Fort Bidwell and Fort Mohave reservations, in dealing with which Congress expressly referred to the rights of the Indians in the reservations. (See act of January 27, 1913, 37 Stat. 652, and act of June 25, 1910, 36 Stat. 855, 858.) Another example is the Fort Totten Reservation which was recognized in the act of April 27, 1904 (33 Stat. 319) as part of the Devil's Lake Indian Reservation and belonging to the Indians residing on the reservation. In the case of LaDuke v. Melin, 45 N.D. 349, 177 N.W. 673, the court reviewed the history of this military reservation devoted to Indian school purposes and acknowledged the fact that it might be considered an "Indian reservation."

    These examples demonstrate that lands held by the United States without a declaration of trust and used for school or other institutional purposes may be considered Indian reservations where Indian communities have occupancy rights in the land. They point the distinction between this type of land and lands held exclusively by the United States for institutional purposes where there are no Indian residents nor Indian occupancy rights. The latter class of lands are best illustrated by the non reservation schools and hospitals which the Department has itself not classified as Indian reservations. (Cf. Handbook of October 15, 1929, "General Data concerning Indian Reservations.")

    Another way of demonstrating this conclusion is by reference to the General proposition that Indian country is country where not only Federal laws but also Indian laws and customs apply. It is appoint that Indian laws apply only in areas occupied by Indian groups and communities and not to lands held for Federal institutions in Pierre, Phoenix, or any other non-Indian community.

    In brief, my conclusion is that lands held by the United States and purchased for the purpose of establishing Federal institutions for Indian welfare are not Indian country nor Indian reservations unless an Indian tribe or group has occupancy rights in the land. Such lands may be "reservations of the United States" as, for example, that term is used in right of way statutes (Memo. Solicitor, I.D., July 1, 1938), but they would not be "Indian reservations."

    In view of this conclusion I suggest that the letter be redrafted to state that the lands of the Phoenix Indian school are not considered to be Indian country nor an Indian reservation, and that this Department must modify its opinion submitted to the Attorney General concerning the Sioux Sanatorium, in so far as that opinion relied upon the McGowan case.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


LOWER BRULE SIOUX-AUTHORITY TO BORROW
FUNDS FOR DEVELOPMENT AND OPERATION
OF A POWER PLANT

M-30849                                                                                                                                                       July 10, 1940.

Synopsis of
Solicitor's Opinion

Re:

(1) The authority of the Lower Brule Sioux Tribe of South Dakota under its constitution and charter to borrow funds from the Reconstruction Finance Corporation for the development and operation of a power plant on the Missouri River.

(2) The authority required for the construction of a canal and dam incident to the establishment of the power plant, and the procedure to be followed to obtain the necessary authority.

Held:
(1) The Lower Brule Sioux Tribe of South Dakota has ample authority under its constitution and charter to establish a power plant as a tribal enterprise and to finance it by a loan from the Reconstruction Finance Corporation, with the approval of the Secretary of the Interior of the terms of the financing arrangements.

(2) Authority for the construction of a canal and dam in the Missouri River must be obtained from the Federal Power Commission under the Federal Power Act and may be obtained through application for a license therefor under the terms of that act. The right of eminent domain would be




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DEPARTMENT OF THE INTERIOR

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available to the tribe, under the terms of the Federal Power Act, to obtain necessary rights in the lands of the Lower Brule or Crow Creek Reservation.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on certain legal questions presented by the Indian Office in connection with the proposal now before it for the development and operation by the Lower Brule Sioux Tribe of the Lower Brule Reservation in South Dakota of an electric power plant on the Missouri River. The enterprise would be undertaken through a loan obtained from the Reconstruction Finance Corporation. The plan is that the electric power would be used for the development of manganese ore deposits, which are found both on and off the reservation; for the irrigation of agricultural lands; and possibly for sale to municipalities in the vicinity. The development of the manganese ore deposits is being considered in connection with its usefulness to the national defense. It is proposed that the treatment of the ore be undertaken by a lessee on a royalty basis.

    The Indian Office has asked to be advised on the following two legal points:

    (1) Whether or not there is any legal objection to the tribe's borrowing money from the Reconstruction Finance Corporation for the operation of a power plant as a tribal enterprise;

    (2) What authority would be required for the construction of a canal across a narrow neck of the reservation and of a diversion or storage dam, and the procedure which should be followed to obtain such authority.

    (1) The establishment and operation of an electric power plant by the Lower Brule Sioux Tribe; through the borrowing of funds from the Reconstruction Finance Corporation, is well within the authority of the tribe under its constitution and charter. The only limitation would be that, in view of the probable sums involved and the provisions of the charter, the financing of the enterprise would be subject to the approval of the Secretary of the Interior.

    The constitution, in section 1 (f) of Article VI, authorizes the council of the tribe to manage economic affairs and enterprises in accordance with the terms of the charter. The relevant provisions of the charter are section 5 (c), which authorizes the tribe to engage in any business that will further the economic well-being of the members off ity[sic] for the construction of canals and dams in to borrow money from the Indian Credit Fund or from any other governmental agency, with a limitation on the amount which may be borrowed outside the Indian Credit Fund without the express approval of the Secretary of the Interior; section 5 (f), which authorizes the tribe to make and perform contracts with any corporation and with the United States, with the limitation that a contract involving payment in excess of $2,000 in any one year, outside of a contract for the use of the revolving loan fund, shall be subject to the approval of the Secretary of the Interior; and section 5 (g), which authorizes the tribe to pledge or assign chattels or income, without limitation as to duration in so far as such pledges or assignments are made to the Federal Government, with the approval of the Secretary of the Interior. The tribe would therefore appear to be free to enter into a contract with the Reconstruction Finance Corporation upon such terms as the Department may approve, with the exception, of course, that no lands of the tribe may be offered as security.

    (2) As the Missouri River at the point in question is a navigable river, and as the project involves lands of a reservation of the United States, authority for the construction of canals and dams in connection with power development must be obtained from the Federal Power Commission under the Federal Power Act. (Act of June 10, 1920 (41 Stat. 1077), as amended by the act of August 26, 1935 (49 Stat. 847), 16 U.S.C.A., chapter 12.) Under section 797 of Title 16 of the United States Code, the Federal Power Commission has authority to issue licenses to any corporation organized under the law of the United States,

"* * * for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories) ; * * *"
To obtain such a license the Lower Brule Sioux Tribe should make application to the Commission, setting forth the information required by section 802 of title 16. If, however, such information is not
 



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OPINIONS OF THE SOLICITOR

JULY 29, 1940

readily available, the tribe may apply for a preliminary permit under section 797 (f). In connection with the application for a license, it will be necessary to determine what, if any, requirements of the laws of the State, referred to in section 802, are applicable to this project.

    The operations of the facilities established in the river and of the power plant will be subject to regulation by the Federal Power Commission and by the executive departments given authority over specific aspects of such operations pursuant to the terms of the Federal Power Act.

    Since the construction of a dam, particularly a storage dam, will involve the use of property on the Crow Creek bank of the Missouri River, negotiations will have to be opened to obtain the necessary rights from the landowners on that bank, as well as on the Lower Brule side. Consideration might be given to the making of an agreement between the Lower Brule Tribe and the Crow Creek Tribe for the operation of the project on the Crow Creek Reservation.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: July 10, 1940.
OSCAR L. CHAPMAN, Assistant Secretary.

TAX LIENS--PASSAGE OF LEGAL TITLE--
OKLAHOMA

 

July 29, 1940.


Memorandum for the Commissioner of Indian Affairs:

    Reference is made to your letter of November 17, 1939, requesting a discussion of tax liens in connection with the acquisition of land from Robert F. Boston. This memorandum will also attempt to reply to the questions raised in the letter of Rex H. Barnes to you, dated June 6, 1940.

    While the Solicitor's opinion, dated November 10, 1938, required the payment of all outstanding taxes, only such taxes as were due and exigible at the time of passing the title should have been paid. The statutes of the various States may provide that taxes shall become a lien as of a given statutory date. However, until all steps have been taken to establish a valid tax, including the assessment and levy, the tax lien does not accrue although it may have attached at the inception of the tax process or the statutory date. No only is it necessary to determine when taxes become liens but it should be determined whether the taxes are determinable or payable at the time of the passing of title. United States v. Pierce County, (D.C.) 193 ed. 529; United States v. City of Buffalo, (C.C.) 54 F. (2d) 471.

    Now, the troublesome question arises: When does title pass? According to the option, the approval of the title by the Secretary of the Interior is a condition precedent to the payment of the consideration for the land and in view of this provision in the opinion, deeds delivered to officers of the Government are delivered only for the purpose of an examination of the title and that the Government does not become bound to pay the consideration until the title is approved by the Secretary of the Interior. See Ryan v. United States, 136 U.S. 68 (1890). Although the facts are not precisely in point it does hold that when the Attorney General is required, under R.S. 355, to render an opinion in favor of the validity of title, title does not pass until such opinion is rendered.

    Where such a condition precedent exists equitable title to land cannot pass upon the execution of a contract of purchase and sale. Southern Forest Land v. Amitz County, 176 Miss. 130, 168 So. 282 (1936). It is, therefore, apparent that title cannot be regarded as passing even when a deed is delivered and recorded prior to the rendition of an opinion by the Solicitor. The parties must be regarded as intending the delivery to be made merely for the purposes of examination of the deed in connection with title approval and not for the purpose of transferring title. To infer the contrary would be to assume that a vendor would be willing to transfer title to the United States knowing that he could not receive payment of the price if the Solicitor failed to approve the title and that no legal means exist whereby title could be transferred to him without a special act of Congress in the event of its disapproval.

    The following rules result from the above:

    1. Equitable title does not pass when a contract is executed or an option accepted prior to the approval of the title by the Solicitor.

    2. Neither equitable nor legal title passes when a deed is delivered and recorded prior to the opinion of the Solicitor.

    3. Title passes when the Solicitor's opinion is rendered, deed has been delivered and recorded and the consideration paid.

    A troublesome problem is presented with respect to acquisitions heretofore closed, such as the case now under discussion, on the theory that title passed for tax purposes at the time of the recordation of the deed. In view of the practical consideration that in most instances taxing authorities will
 



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DEPARTMENT OF THE INTERIOR

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make no attempt to enforce tax liens imposed on property after the deed has been recorded, it has been decided to waive the objection of non-payment of taxes imposed after the recordation of the deed.

    The deed in the instant case was recorded on June 3, 1938, which was prior to the time the taxes became due or exigible, to wit, July 1, although a lien on January 1. The tax for 1938 may, therefore, remain unpaid as a matter of policy for the reasons hereinbefore set forth.

    I do not concur with the holding of the county officials of McIntosh County that lands purchased under the Oklahoma Indian Welfare Act of June 26, 1936, do not become nontaxable upon conveyance to the United States. The act, U.S.C., tit. 25, sec. 501, provides:

"* * * while the title thereto is held by the United States said lands shall be free from any and all taxes * * *."
It has been determined by the Oklahoma Supreme Court that general tax laws are suspended from operation on Indian lands so long as such lands are exempt from taxation by laws of Congress or by treaty. The question decided in United States v. Board of Com'rs of Osage County, 26 Fed. Supp. 271, seems to have been the direct question involved in this case except that it involved a similar statute. Said the court at page 275:
"* * * As no levy of ad valorem taxation is made in Oklahoma until July first, and as the property involved in those cases was exempt from taxation prior to * * * Oklahoma was powerless to legally levy ad valorem taxes upon the property involved * * *."
    In conclusion Congress has expressly provided, as pointed out above, that land acquired by the United States in trust for Indians shall be non-taxable and as to the validity of such act of Congress see United States v. Wright, 53 F. (2d) 300, cert. den. 285 U.S. 539, and United States v. Board of Osage County, supra.

    Since the county officials have refused to issue an order to cancel the tax assessment no useful purpose will be served at this time by taking any further action against the county. Should the county commence legal proceedings the Government will, in that event, be able to defend its position.

                                                                                                                                        FREDERIC L. KIRGIS,
Acting Solicitor.


NATIONAL HOUSING ACT--
ELIGIBILITY OF INDIAN TRIBES

M-30807                                                                                                                                                    August 6, 1940.

Synopsis of
Solicitor's Opinion

Re:

Eligibility of Indian tribes to obtain loans and grants under the National Housing Act of September 1, 1937, for low-rent housing and slum clearance projects.
Held:
An Indian tribe is a governmental entity or public body capable of undertaking tribal housing projects, and where a tribe is incorporated under the Indian Reorganization Act it is clearly authorized to engage in the low-rent housing and slum clearance projects contemplated by the National Housing Act, and, therefore, such a tribe comes within the terms of that act as a public housing agency eligible to obtain the assistance and benefits of that act.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Indian Office, in consultation with the United States Housing Authority, is giving consideration to the possibility that Indian tribes may take advantage of the benefits afforded by the National. Housing Act (act of September 1, 1937, 50 Stat. 888, 42 U.S.C.A. ch. 8). This act establishes a housing authority with power to make loans and grants on certain conditions to public housing agencies for the erection of low-rent housing and for slum clearance. The legal question whether Indian tribes come within the terms of the act has been referred to me for opinion.

    The crucial question, in my opinion, is whether an Indian tribe is covered by the definition of a "public housing agency" in section 2 (11) of the act. If an Indian tribe does come within this definition, there remains only the administrative question whether a particular tribe can meet the conditions required for assistance in housing enterprises. The fact that the act does not mention Indians or Indian tribes is not material in the consideration of a law such as this which provides benefits to all who come within the definitions and standards established by the act. It has previously been recognized by this office and by the administrative agencies concerned that Federal general welfare and relief acts are available to the Indians, although not mentioned therein, since
 



969

OPINIONS OF THE SOLICITOR

AUGUST 6, 1940

these laws apply to all eligible persons without regard to race or status, whether of wardship or otherwise. (See Memorandum of the Solicitor of the Interior Department, April 22, 1936, concerning the eligibility of Indians for benefits under the Social Security Act.)

    The United States Housing Authority has suggested in certain correspondence that the act is not applicable to Indian tribes as they do not come within the definition of a "State" in section 2(12) of the act. This provision defines the term "State" as including "the States of the Union, the District of Columbia, and the Territories, dependencies and possessions of the United States." This definition is, in my opinion, a description of the geographical area within which the National Housing Act applies and is not a description of the body or agency to which loans and grants may be made. Geographically, Indian reservations are, of course, within the States. However, it may be said parenthetically that if it were necessary to bring an Indian tribe within this definition of a State it would be possible to support the assertion that Indian tribes may be characterized as dependencies of the United States. A dependency has been described as a dependent nation, State or country, controlled in all its foreign relations by the superior government upon which it is dependent, usually as a result of treaties between the two, and incorporated into the dominion of the superior government, while nevertheless retaining local self-government. (See United States v. Nancy, 27 Fed. Cas. 69; 18 C. J. 493.) This description of a dependency fits with peculiar perfection the historic position of an Indian tribe held since the early decisions of Cherokee Nation v. Georgia, 5 Pet. 1, and Worcester v. Georgia, 6 Pet. 515, and reaffirmed in numerous Supreme Court cases, including Kagama v. United States, 118 U.S. 735, Choctaw Nation v. United States, 119 U.S. 1, and United States v. Sandoval, 231 U.S. 45. These cases recognize an Indian tribe as a "domestic dependent nation" dependent upon the United States for protection, controlled by the United States in its relations with outsiders and brought within the dominion of the United States by treaties, but nevertheless retaining the right of local self-government.

    I place my opinion that Indian tribes come within the provisions of the National Housing Act on the broad definition of the term "public housing agency." Section 2 (II), setting forth this definition is as follows:

    "The term 'public housing agency' means any State, county, municipality, or other governmental entity or public body (excluding the Authority), which is authorized to engage in the development or administration of low rent housing or slum clearance."
In the first place it should be noted that a public housing agency does not need to be an agency or entity of a State government. This is apparent on the face of the definition and, if for no other reason, from the specific reference to the Authority, which is an agency of the Federal Government. The definition embraces any governmental entity within the geographical area covered by the National Housing Act.

    An Indian tribe is both a governmental entity and a public body. This is a fundamental statement in Indian law. After the passage of the Indian Reorganization Act (act of June 18, 1934, 48 Stat. 984), this office made an exhaustive analysis of the status of an Indian tribe as a governmental entity and of its powers of local self-government over Indians on Indian reservations. (Solicitor's opinion, October 25, 1934, 55 I.D., 14.) The following quotations from the statements and citations within that opinion illustrate the findings:

    "The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government. (55 I.D. at 22)

            *                                *                                *                                *                                *

    "The doctrine of tribal sovereignty is well summarized in the following passage in the case of In Re Sah Quah (31 Fed. 327):
    " 'From the organization of the government to the present time, the various Indian tribes of the United States have been, treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner




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DEPARTMENT OF THE INTERIOR

AUGUST 6, 1940

of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs, subject, however, to such restraints as were from time to time deemed necessary for their own protection, and for the protection of the whites adjacent to them. Cherokee Nat. v. Georgia, 5 Pet. 1, 16, 17; Jackson v. Goodell, 20 Johns, 193. (At p. 329.)' (55 I.D. at 26)

            *                                *                                *                                *                                *

    "The acknowledgement of tribal sovereignty or autonomy by the courts of the United States has not been a matter of lip service to a venerable but outmoded theory. The doctrine has been followed through the most recent cases, and from time to time carried to new implications. Moreover, it has been administered by the courts in a spirit of whole-hearted sympathy and respect. The painstaking analysis by the Supreme Court of tribal laws and constitutional provisions in the Cherokee Inter-marriage Cases (203 U.S. 706) is typical, and exhibits a degree of respect proper to the laws of a sovereign state. * * * (55 I.D. at 26)

                      *                                *                                *                                *                                *

    "Neither the allotting of land in severalty nor the granting of citizenship has destroyed the tribal relationship upon which local autonomy rests. Only through the laws or treaties of the United States, or administrative acts authorized thereunder, can tribal existence be terminated. As was said in the case of United States v. Boylan (265 Fed. 165) with reference to certain New York Indians over whom State courts had attempted to exercise jurisdiction:

                      *                                *                                *                                *                                *

" ' * * * The right of self-government has never been taken from them. * * *

    At all times the rights which belong to self-government have been recognized as vested in these Indians. * * * (At p. 173.) ' (55 I.D. 29.)

            *                                *                                *                                *                                *

    "And in the case of Raymond v. Raymond, supra [83 Fed. 721], the court declared:
    " 'The Cherokee Nation * * * is a distinct political society, capable of managing its own affairs and governing itself. It may enact its own laws, though they may not be in conflict with the constitution of the United States. It may maintain its own judicial tribunals, and their judgments and decrees upon the rights of the persons and property of members of the Cherokee Nation as against each other are entitled to all the faith and credit accorded to the judgments and decrees of territorial courts. (At page 722.) '
  "See, also, Nofire v. United States (164 U.S. 657); Mehlin v. Ice (56 Fed. 12)." (55 I.D. 56.)

    The governmental powers of Indian tribes have been incorporated in the 100 or so constitutions adopted by Indian tribes under section 16 of the Indian Reorganization Act. Since the Blackfeet Tribe has been considered by the Indian Office and the United States Housing Authority as the most likely applicant for the benefits of the act, the powers of that tribe under its tribal constitution are used as illustration. That constitution, which was adopted "for the government, protection, and common welfare of the said tribe and members thereof," places in the council of the tribe the tribal powers, among others, of managing the tribal
land, safeguarding the peace and safety of residents of the reservation, establishing a judicial system, regulating property, requisitioning community labor for public purposes, and levying assessments for public purposes.

    While an Indian tribe is a governmental entity so long as it retains its character as a tribe, even though it may not be organized in the manner provided .by the Indian Reorganization Act, its character as a governmental entity is conclusively established and takes practical form when the tribe is organized under a constitution under section 16 of that act and incorporated as a Federal corporation under section 17.

    Since an Indian tribe is a governmental entity, it may likewise be described as a "public body." That term may refer to a public agency with less governmental power than that of a governmental entity. It undoubtedly contemplates such public corporations as are established for the purpose of carrying on particular public enterprises and which are endowed with limited governmental powers. An Indian tribe fulfills the concept of a public body as a local government similar to a municipality or, when the tribe is incorporated, as a public corporation carrying on public enterprises. The charter of every tribe incorporates such tribe as a "body politic and corporate of the United States of America."
 



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OPINIONS OF THE SOLICITOR

AUGUST 17, 1940

    The remaining question is whether an Indian tribe is a governmental entity or public body "authorized to engage in the development or administration of low-rent housing or slum clearance." The management of tribal property and the carrying on of tribal business enterprises are governmental powers which have been recognized by Congress and by this Department as within the authority of an Indian tribe. This recognition has already included the undertaking by the tribes of housing enterprises under the supervision of this Department. Since 1935 Indian tribes have been recognized agencies for the carrying out of rehabilitation projects upon the Indian reservations, and, under grants from rehabilitation funds appropriated to the Indian Office, they have under taken housing projects for the benefit of their members.

    However, only those tribes which are incorporated under the Indian Reorganization Act may be said with assurance to have express authority, both from their membership and from Congress, to engage in the low-rent and slum clearance projects contemplated by the National Housing Act. Incorporated tribes have specific authority in their charters to engage in any business that will further the economic well-being of the members of the tribe, to make and perform contracts with any person, association, or corporation, to sue and be sued, to borrow funds from any governmental agency, and to pledge tribal assets (excluding tribal lands) for the purpose of obtaining such a loan, certain of such powers being subject, according to the extent of their exercise, to the approval of the Secretary of the Interior. A tribe which has not been incorporated cannot be said to have authority, without Congressional sanction, to enter into the undertakings probably required for engaging in low-rent and slum clearance projects, particularly the authority to sue and be sued and to make contracts involving interests in tribal lands and the proceeds therefrom. It would, therefore, be a serious question whether the United States Housing Authority would find, as an administrative matter, that such a tribe was an agency to which it could properly loan housing funds.

    In summary, therefore, it is my opinion that an Indian tribe is a governmental entity or public body capable of undertaking tribal housing projects, and that where a tribe is incorporated under the Indian Reorganization Act it is clearly authorized to engage in the low-rent housing and slum clearance projects contemplated by the National Housing Act, and, therefore, such a tribe comes within the terms of that act as a public housing agency eligible to obtain the assistance and benefits of that act.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: August 6, 1940.
OSCAR L. CHAPMAN,
Assistant Secretary.

INTERIOR DEPT. APPROPRIATIONS ACT
OF 1941-SECTION 5-PROHIBITION
OF THE USE OF FUNDS FOR ALICE HOWARD

 

August 17, 1940.


Memorandum for the First Assistant Secretary:

    You have requested my advice as to whether section 5 of the Interior Department Appropriation Act of 1941 prohibits the use of funds appropriated by that act to compensate Mrs. Alice Howard, an Indian employee of the Office of Indian Affairs, at Standing Rock Indian Agency, Fort Yates, North Dakota. The facts submitted for my consideration are the following:

    "She was born at Regina, Saskatchewan, Canada, July 22, 1888. Her mother, whose name was Emma Loves The War, apparently fled to Canada from the Black Hills probably with the Indian uprising when certain bands of Sioux did go across to Canada. Her father was a French Canadian, with whom her mother lived but was never married, and he died before the child was one year old. The mother then returned to the United States, and to the Cheyenne Agency, where she married a Sioux Indian whose name was O. Okuteasica (Hard To Shoot At). Mrs. Howard was enrolled and allotted at Cheyenne Agency under the name of Beading With Porcupine. In July, 1910, she married Jerome Iron Necklace, who was a Standing Rock Sioux, and he died in 1927. Two years later, in September, Mrs. Howard married James Howard, who is also a Standing Rock Sioux allottee."
    It is my opinion that Mrs. Howard is a citizen of the United States under the terms of the act of August 9, 1888 (25 Stat. 392).

    Section 2 of the act of August 9. 1888, reads as follows:

    "Every Indian woman, member of any such tribe of Indians [Indian tribe in the United




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DEPARTMENT OF THE INTERIOR

AUGUST 27, 1940

States, see sec. 11, who may be married after August 9, 1888, to any citizen of the United States, is declared to become by such marriage a citizen of the United States, with all the rights, privileges, and immunities of any such citizen, being a married woman."

The facts given do not show whether Jerome Iron Necklace, the first husband of Mrs. Howard, was a citizen in 1910, at the time of his marriage to Mrs. Howard. I have ascertained, however, that Jerome Iron Necklace received a trust patent on October 3, 1907, under the act of March 2, 1889 (25 Stat. 888), as amended, and that a patent in fee, Patent No. 610830, was issued to him on December 6, 1917, for all of the lands previously allotted to him. The act of February 8, 1887 (24 Stat. 388), conferred citizenship on Indians born within the territorial limits of the United States receiving allotments and trust patents under the provisions of that act or of any other law or treaty. By amendment of May 8, 1906 (34 Stat. 182), the act of February 8, 1887 was amended to confer citizenship on Indians born within the territorial limits of the United States only upon the issuance of a patent in fee simple. Presuming, as I do, that Jerome Iron Necklace was born in the United States, it would appear that although Jerome Iron Necklace did not acquire citizenship by virtue of his acquisition in 1907 of a trust patent, since at that time the amendment of May 8, 1906 had taken effect, he became a citizen (if he was not one then already) in 1917, upon acquiring a patent in fee simple. It follows that Mrs. Howard (who was a member of an American Indian tribe and an Indian for naturalization purposes, although her father may have been white, see Morrison v. California, 291 U.S. 82, 86) became a citizen under the act of August 9, 1888, when her husband became a citizen in 1917. In my opinion, it is of no consequence that the husband may not have been a citizen at the time of the marriage in 1910, for the expression in the act of August 9, 1888, "who may be married after August 9, 1888, to any citizen of the United States" refers not to the time when the ceremony was completed but rather to the state of marriage. Kelley v.Owen, 7 Wall. 496; 14 Ops. Atty. Gen. 403. And it is unnecessary to determine whether the act of September 22, 1922 (42 Stat. 1021), preventing women from acquiring citizenship by reason of their marriage to citizens, repealed the act of August 9, 1888, since Jerome Iron Necklace acquired citizenship before September 22, 1922, at a time when the act of August 9, 1888, was undoubtedly in effect.

    I recommend, in view of the foregoing considerations, that Mrs. Howard be recognized as a citizen, provided that she can show that Jerome Iron Necklace was born within the territorial limits of the United States. If this cannot be shown, it does not necessarily follow that Mrs. Howard is not a citizen since it is possible that she may have acquired citizenship through her mother, Emma Loves The War, or through her step-father, Okuteasica, while she was still a minor. I will not at the present time inquire into these possibilities but will do so if the occasion should arise.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


INTERIOR APPROPRIATIONS ACT OF 1941,
SECTION-PROHIBITION OF FUNDS FOR
THE USE OF HARRY RITCHIE

 

August 27, 1940.


Memorandum for the First Assistant Secretary:

    You have requested my advice as to whether section 5 of the Interior Department Appropriation Act, 1941, prohibits the use of funds thereby appropriated, to compensate Harry W. Ritchie, an en rolled Indian member of the Wisconsin Potawatomi and, an employee of the Office of Indian Affairs at the Great Lakes Indian Agency, Ashland, Wisconsin.

    The following facts have been submitted for my consideration. O-Cheep-e wais, the great-grandfather of Mr. Ritchie, was one of the signatories of the Treaty of Chicago, entered into in 1833 by the United States and the United Nation of Chippewa, Ottawa and Potawatomi Indians. Neither the great-grandfather nor his son, Mr. Ritchie's grandfather, appears to have wished to be moved to Missouri in accordance with the terms of the treaty. They therefore proceeded up the shores of Lake Michigan, Georgia Bay and Lake Huron and settled in Ontario, Canada, where they were taken in by friendly Indians. Mr. Ritchie's father was born in Ontario in 1861 and Mr. Ritchie himself was likewise born in Ontario in 1904. Between 1904 and 1913 negotiations were entered into between the United States and the descendants of the Wisconsin Potawatomi Indians who, like the ancestors of Mr. Ritchie, had refused to move to Missouri and had gone instead to Canada. In 1915 the final roll of the Wisconsin Potawatomis was made and in that year Mr. Ritchie, his two brothers and father (all of whom had apparently been previously invited to come to, and had actually removed to, the United States), were enrolled as members of the tribe. Mr. Ritchie's
 



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OPINIONS OF THE SOLICITOR

AUGUST 27, 1940

father seems to have worked as Indian interpreter for the Government from 1912 until 1931, when he was retired, and to have considered himself at all times to have the same status as other American Indians. In 1936 Mr. Ritchie declared his intention to become a citizen, but two years later, upon applying for his final citizenship papers, found that he could not be naturalized because he belonged to a race ineligible for citizenship. Mr. Ritchie states that he has lived, apparently continuously and for nearly 30 years, in the United States.

    While the conclusion reached entails considerable hardship and perhaps a certain degree of injustice, I am of the opinion that Mr. Ritchie is not a citizen of the United States, that he was not a person in the service of the United States on June 18, 1940, who being eligible for citizenship had theretofore filed a declaration of intention to become a citizen, that he does not owe allegiances to the United States, and that he therefore cannot be compensated out of the Interior Department appropriation of 194041. I qualify my conclusion by stating that a contrary result might be reached if it could be shown that Mr. Ritchie's mother was living on June 2, 1924, and that she was an Indian woman born within the territorial limits of the United States.

    The Indian naturalization statutes of 1887 and 1906 (24 Stat. 388, 34 Stat. 182) conferred citizenship upon Indians born within the territorial limits of the United States who received trust patents or fee patents of allotted lands; and the act of June 2, 1924 (43 Stat. 253), naturalized all Indians born within the territorial limits of the United States. Though the great-grandfather and grandfather of Mr. Ritchie were born in the United States, lands were never allotted to them nor were they ever enrolled with any American Indian tribe. Hence neither could have claimed any citizenship rights under the acts of 1887 and 1906. Despite the fact that it is barely conceivable that the grandfather might have been living in 1924, his acquisition of citizenship under the 1924 law would not have had the effect of conferring citizenship upon the father (and hence upon Mr. Ritchie, who must have been a minor, 20 years of age, in 1924) for the reason that the father, having been born in 1861, was of age in 1924. See act of April 14, 1802 (2 Stat. 155, Rev. Stat. 2172), act of March 2, 1907 (34 Stat. 1229), Dorsey v. Brigham, 177 Ill. 250, 52 N.E. 303; Berry v. Hull, 6 N. Mex. 643, 30 Pac. 936; United States ex rel. Fracassi v. Karnuth, 19 Fed. Supp. 581. Furthermore, the statutes of 1887, 1906 and 1924 cannot have had direct application to the father of Mr. Ritchie or to Mr. Ritchie himself, since both were born outside of the territorial limits of the United States.

    Again, even if Mr. Ritchie's mother were a white American citizen, she would have lost her citizenship at the time of her marriage and expatriation, and could not have regained it during the pendency of the marital status or even between September 22, 1922 (the date of the approval of the Cable Act (48 Stat. 1020) enabling married women to become naturalized) and 1925 (the year in which Mr. Ritchie attained his majority) since the Cable Act prohibited the naturalization, during the pendency of the marital status, of women married to aliens ineligible for citizenship. It is true, however, that if the mother were an Indian woman, born in the United States, her naturalization in 1924, while Mr. Ritchie was still a minor, might have had the effect of naturalizing Mr. Ritchie under the provisions of section 5 of the act of March 2, 1907, supra. See United States ex rel. Guest v. Perkins, 17 Fed. Supp. 177. But see In re Citizenship Status of Minor Children Where Mother Alone Becomes Citizen Through Naturalization, 25 F. (2d) 210.

    As stated, the Indian naturalization statutes of 1887, 1906 and 1924 (24 Stat. 388, 34 Stat. 183, 43 Stat. 253) cannot have had direct or indirect application to Mr. Ritchie (save in the event that his mother may happen to have been an Indian woman born in the United States and living on June 2, 1924). Moreover, Mr. Ritchie, not being a white person or an alien of African nativity or descent, was at no time and is not now eligible under the general naturalization laws to become a citizen (see act of February 18, 1875 (18 Stat. 318, Rev. Stat. sec. 2169), as amended; Morrison v. California, 291 U.S. 82, 95; In re Camille, 6 Fed. 256; Burton v. Alaska, 1 Alaska 111); and therefore it is clear, even without the express provision of section 5 of the Appropriation Act to the effect that declarants must be eligible for citizenship, that Mr. Ritchie's declaration in 1936 cannot have had the legal effect of making him a declarant for any purpose. See act of February 18, 1875, supra.

    It is clear also that Mr. Ritchie does not owe allegiance to the United States merely because of his membership in the Wisconsin Potawatomie. He was born in Ontario, Canada, and he became at birth a British subject. So it has been declared by the Ontario courts with respect to Indians born in Ontario. See Regina v. White, 5 Ontario Practice 315. Acquisition of membership in the Wisconsin Potawatomi did not have the effect of terminating his allegiance to the British Crown (cf. Raymond v. Raymond, 83 Fed. 721), nor of creating a new and additional allegiance to the United States. It is true that the treaties with the Potawatomi Nation of November 15, 1861 (12 Stat. 1191), and of February 27, 1867 (15 Stat. 531), left the way open for adult male members of that nation who were allottees and heads of families (apparently whether they
 



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DEPARTMENT OF THE INTERIOR

AUGUST 27, 1940

were born in the United States or not) to take an oath of allegiance to the United States and to become citizens; but these treaties, assuming them to be still in effect, relate only to those of the Potowatomi who emigrated to Missouri or Kansas and had lands allotted to them in what was then known as the "Indian country." The Wisconsin Potowatomi never had lands allotted to them as they did not emigrate to Missouri after the signing of the Treaty of Chicago in 1833. Hence neither Mr. Ritchie nor any of his ancestors could have claimed or can now claim any citizenship rights under the said treaties.

    In view of the foregoing considerations, I reaffirm my opinion that, unless it can be shown that Mr. Ritchie's mother was an Indian woman born in the United States and living on June 2, 1924, his compensation cannot legally be paid out of funds appropriated by the Interior Department Appropriation Act, 1941.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


CONVEYANCE OF INHERITED TRUST LAND TO
A TRIBE NOT UNDER THE INDIAN
REORGANIZATION ACT

 

August 27, 1940.


Syllabus

    An Indian heir cannot convey trust land under the act of February 14, 1931 (46 Stat. 1106) to the United States in trust for a tribe not under the Indian Reorganization Act in payment for a rehabilitation grant, as such a conveyance is not a donation within the meaning of the 1931 act, but he can convey his interest directly to the tribe under the act of March 1, 1907 (34 Stat. 1018), using a restricted deed form.

Memorandum for the Commissioner of Indian Affairs:

    The Indian Office letter of July 26 submitted for the approval of the Assistant Secretary a deed conveying inherited allotted land to the United States in trust for the Crow Creek Tribe, pointing to the act of February 14, 1931 (46 Stat. 1106, 25 U.S.C., sec. 451), as authority, since that tribe is not under the Indian Reorganization Act. I am returning the deed as I do not agree that the 1931 act is authority for this conveyance.

    The 1931 act authorizes the Secretary of the Interior to accept contributions or donations of property for the benefit of Federal Indian schools, hospitals, or other institutions conducted for the benefit of Indians, or for the advancement of the Indian race. This transaction cannot properly be considered a donation or otherwise within the terms of the act. The conveyance is being made in payment for rehabilitation money advanced by the tribe for repairing the grantor's home. The situation is similar to that discussed in the memorandum from this office of May 21, 1940, concerning the proposed conveyance under authority of the 1931 act of trust lands to be held in trust for the grantor. It was there said that

"the transfer cannot be classed as a contribution or donation since those words contemplate gratuitous transfers and in this case the transfer is merely a legal device to benefit the transferor. Even if such a transfer were a donation, it could not properly be described as a donation for the benefit of an Indian school or other institution or for the advancement of the Indian race."
In this situation the transfer is likewise a device for the benefit of the transferor and not a gift for the objects specified in the act.

    I am aware of the fact that, with the approval of this office, the Department on June 17, 1940, approved the deed of John Middletent and his wife conveying inherited allotted land to the United States in trust for the Crow Creek Tribe in payment of rehabilitation funds, asserting the authority of the 1931 act. The deed of Edward Little Eagle and his wife to the United States for the Crow Creek Tribe, approved January 26, 1940, is apparently a similar transaction. There may be others. All such deeds made under the asserted authority of the 1931 act were mistakenly approved as they were neither donations nor made for a purpose specified in the statute. It will therefore be necessary for all such deeds to be recalled and cancelled, and action should be initiated by your office to this end.

    The result desired in this and the related cases can, however, be accomplished by the execution of restricted deeds conveying the land directly to the tribe under the authority of the act of March 1, 1907 (34 Stat. 1018, 25 U.S.C., sec. 405). That act authorizes any noncompetent Indian owning an inherited interest in allotted lands to sell or convey such interest on such terms and under such rules as the Secretary may prescribe, the proceeds to be used for the grantor under the supervision of the Commissioner of Indian Affairs. The use of the rehabilitation funds given for the land meets this latter condition. While the act provides that any
 



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OPINIONS OF THE SOLICITOR

SEPTEMBER 4, 1940

conveyance thereunder shall convey full title to the purchaser, where a sale is made by the heirs to the tribe, a restricted deed may be used conveying only the interest of the heirs, the legal title remaining in the United States. (See 25 C.F.R. 241.11 and Solicitor's memorandum of August 14, 1937, concerning the sale of heirship lands by the Secretary of the Interior to a tribe.)

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


Approved:

Assistant Secretary.

ENFORCEMENT OF FLORIDA DEER REMOVAL AND
QUARANTINE LAW ON SEMINOLE INDIAN
RESERVATION

M-30920                                                                                                                                               September 4, 1940.

Synopsis of
Solicitor's Opinion

Re:

Right of the State of Florida to enforce Chapter 19860, Laws of Florida, Special Acts, 1939, within the Seminole Indian Reservation in Hendry County.
Held:
The State of Florida is without power to enforce Chapter 19860, Laws of Florida, Special Acts, 1939, within the Seminole Indian Reservation in Hendry County, without the authorization of Congress, but in so far as the Florida law is a quarantine measure, it may be enforced within the reservation, under the Congressional authorization in the act of February 15, 1929 (45 Stat. 1185), upon such conditions as the Secretary of the Interior may prescribe.
The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the right of the State of Florida to enforce Chapter 19860, Laws of Florida, Special Acts, 1939, within the Seminole Indian Reservation in Hendry County.

    The purpose of the Florida law is to effect the removal from the county of the wild deer on the theory that the deer are tick-infested and propagate a cattle fever. To this end the State law provides a comprehensive scheme. The State Live Stock Sanitary Board is directed to prescribe quarantine districts and to remove from such districts by slaughter or otherwise such portion of the deer as may be necessary. The Board is granted police power and authorized to enter all premises, public or private, to carry out the act. The State Commission of Game and Fresh Water Fish is authorized to police the quarantine districts to enforce the provisions of the game laws protecting other animals than wild deer, and persons desiring to hunt in the quarantined area are to be permitted to purchase regular hunting licenses. The violation of any provisions of the act or the regulations adopted thereunder is made a misdemeanor. The State law, as thus outlined, may be described as both a quarantine and a game law adopted under the police power of the State and enforced by criminal sanctions.

    The question presented should be answered in two parts: (a) the application of such a law to Indian reservations generally, and (b) the effect, if any, of the status of the Hendry County reservation on the application of the law.

    The answer to part (a) must start with the fundamental proposition that without Congressional sanction State laws have no force on Indian reservations in matters affecting Indians (Worcester v. Georgia, 6 Pet. 515; United States v. Kagama, 118 U.S. 375). The other side of this proposition is that State laws do apply on Indian reservations in so far as they do not affect the Indians (Thomas v. Gay, 169 U.S. 264). In my opinion of December 11, 1936 (56 I.D. 38), after citing these propositions, I concluded that the State could not send officers on an Indian reservation to search for game thought to be possessed by Indians as this would be an interference with the person and property of Indians and could not be supported without Federal statutory authority.

    There are numerous cases which hold that the State cannot enforce game laws against the Indians on Indian reservations (In re Blackbird, 109 Fed. 139, D.C. Wis., 1901; In re Lincoln, 129 Fed. 247, N.D. Calif., 1904; United States v. Hamilton, 233 Fed. 685, W.D.N.Y., 1915; see State v. Johnson, 249 N.W. 284, 288, Wis., 17933). In so far as the present law is a game law, it could not be enforced against the Indians on Indian reservations. The State officials claim, however, that the deer belong to the State; that the law in question is directed only against the presence of the deer and not against conduct of the Indians; and that the removal of the deer would not interfere with the Indians or Indian property, or with Federal functions on the reservation.

    It is true, as a general statement, that the game within the borders of a State belongs, in so far as it is capable of ownership, to the State in its sovereign capacity for the benefit of the people of the
 


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