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DEPARTMENT OF THE INTERIOR

SEPTEMBER 4, 1940

State and that, by virtue of such ownership, the State may regulate the taking and use of the game (Lacoste v. Department of Conservation, 263 U.S. 545). It does not necessarily follow, however, that the game in an Indian reservation is likewise owned by the State. In fact, the contrary was found to be true in Mason v. Sams, 5 F. (2d) 255 (W.D. Wash., 1925). The court there decided that the fish in the streams of the Quinaielt Reservation did not belong to the State nor to the United States but to the Indians of the reservation. While this reservation was set apart for the use of the Indians under a treaty, under the principles discussed in part (b) of this opinion the decision of the court may be argued to have equal application to a reservation set apart for Indians by other methods, including that of purchase.

    The ultimate ownership of the game is a question, however, which need not be decided for the purposes of this opinion as, in my judgment, a State statute providing for removal of game from an Indian reservation is an interference with the rights of the Indians and of the Federal Government and may not be effectuated without Congressional authorization. This is a different principle from that involved in the enforcement of State game laws against Indians on a reservation, which is primarily a matter of criminal jurisdiction. It is the principle of protecting the interests of the Indians and of the Federal Government on a reservation from interference.

    The right of occupancy of a reservation includes the exclusive right to hum and fish thereon (United States v. Winans, 198 U.S. 371; Alaska Pacific Fisheries v. United States, 248 U.S. 78; United States v. Sturgeon, 27 Fed. Cas. No. 16413, D.C. Nev., 1879; Mason v. Sams, supra). These cases and various others recognize that Indians are generally hunters and fishermen and often depend for a livelihood on wild game, and that the United States has an interest in setting apart for them lands which may be used for hunting and fishing to the exclusion of all outside interference. The protection and the guarantee by the United States of hunting and fishing rights has been typically one of the cardinal provisions of treaties with the Indians. Illustration is found in the early treaties with the Seminoles (August 7, 1790, 7 Stat. 35; September 18, 1823, 7 Stat. 224). The statute forbidding hunting by outsiders in the territory of tribes with which the United States has treaties (Rev. Stat., sec. 2137, 25 U.S.C.A., sec. 216) is further demonstration of the interest of the United States in protecting Indian hunting on Indian reservations.

    In recognition of this principle the Sturgeon case, supra, held that white persons could not fish on the Pyramid Lake Indian Reservation, which was set apart for the Indians by Executive order, on the reasoning that anything which deprives the Indians of the use of the reservation set apart for them is contrary to law. In the Alaska Pacific Fisheries case, supra, it was similarly held that outsiders had no right to fish within the area found to be part of the Annette Islands Indian Reservation set apart for the Indians by statute.

    This protection extends equally against State interference as against interference by private persons. This Department in the Solicitor's opinion of May 14, 1928 (M. 24358), denied any right in the State of Washington to control the use of boats on the navigable waters within the Quinaielt Indian Reservation as such control would be an interference with the use of the waters by the Indians for fishing. In the opinion of June 30, 1936 (M. 28107), the Department held that the State of Minnesota had no right to interfere with the exclusive right of the Red Lake Indians to fish in the lakes within the Red Lake Reservation, although the State owned the submerged lands. In a recent case, United States v. 4450.72 Acres of Land, 27 Fed. Supp. 167 (DC. Minn., 1939), the interest of the United States in protecting the livelihood of the Chippewa Indians by creating a reservation around a wild rice lake was held paramount over the interest of the State in establishing a hunting reserve in the same area. There the court found that wild rice was a source of livelihood of the Indians, not only as food but as an article of commerce, and was peculiarly under Federal protection under the power of the Federal Government over commerce with Indian tribes. The court emphasized that a State cannot restrict the Federal Government in carrying out its efforts to prevent the Indians from becoming indigent and pauperized.

    These arguments have particular applicability to the immediate question. Hunting is recognized to be the chief means of livelihood of the Seminole Indians in Florida, both as a source of food and as a means of commerce with the surrounding population (see, for example, Survey of the Seminole Indians of Florida, S. Doc. 314, 71st Cong., 3d sess.). Moreover, the chief utility and benefit of the Indian reservation in Hendry County has been demonstrated oto be as a hunting reserve for the Indians. Much of the reservation, being within the Everglades area, is subject to overflow, making it unfit, except in small portions, for farming or for livestock enterprises. Recent reports reveal that the entire program of the Government centers around the use and development of the reservation as a protected hunting area, since the reservation is unfit for other economic use (letters of the Superintendent of the Seminole Indian Agency to the Commissioner of Indian Affairs, November 10, 1939,
 



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and December 14, 1939). The removal by a State of a major asset of an Indian reservation would be a flagrant example of the type of interference with the interests of the Indians and of the Federal Government on an Indian reservation which is beyond the power of the State without Congressional sanction.

    Part (b) of the question presented remains for consideration, namely, whether the Hendry County Indian reservation is excepted from the foregoing principles because of its status. The reservation consists of lands purchased under appropriation acts providing funds "for procuring permanent homes for the Seminoles of Florida." These acts are the acts of August 15, 1894 (29 Stat. 303); March 2, 1894 (23 Stat. 892); June 10, 1896 (29 Stat. 337); June 7, 1897 (30 Stat. 78); March 1, 1899 (30 Stat. 966); and June 6, 1900 (31 Stat. 302). The area purchased under these appropriations was filled in and expanded by recent purchases under the Indian Reorganization Act (act of June 18, 1934, 48 Stat. 984). In all the purchases title was taken by the United States in trust for the Seminole Indians of Florida. The lands purchased under the Indian Reorganization Act, which purchases are not entirely completed, have not yet been formally declared a reservation under section 7 of that act.

    In my opinion it is clear, since the decision in the case of United States v. McGowan, 302 U.S. 535, that the principle forbidding State interference with the interests of the Indians and of the Federal Government on Indian reservations applies with equal force to lands acquired for the Indians by purchase as to lands set apart for their use by any other method. The question in that case was the application to the Reno Indian Colony of the Indian liquor laws which by their terms apply to the "Indian country." The Reno Indian Colony was acquired by the United States by purchase under appropriations for procuring farm and home sites for the non-reservation Indians of Nevada and for the Washoe Tribe. The lower Federal courts held that the Indian liquor laws did not apply within this Colony since the lands were not lands in the immemorial possession of the Indians, or lands set apart from the public domain, or lands purchased from the State with a grant from the State to the Federal Government of exclusive jurisdiction, and also since the lands had not been designated an Indian reservation.

    The Supreme Court swept aside distinctions based on the manner of acquisition of the land and on its previous character, saying that what must be regarded as Indian country must be considered in relation to the changes which have taken place, that the protection of the United States is extended over all dependent Indian communities within its borders, that the fundamental consideration of both Congress and the Department of the Interior in establishing this Colony was the protection of a dependent people, that the Indians in this Colony were afforded the same protection as that given Indians in other settlements known as reservations, that it is immaterial whether Congress designates a settlement as a reservation or a colony, that land may be an Indian reservation simply because it is set apart for the use of the Indians under the superimendence of the Government, as occurred in the case of the Reno Indian Colony, and that, while the State may retain sovereignty over the territory its laws cannot conflict with Federal enactments passed to protect and guard its Indian wards.

    This decision was foundation for my memorandum to the Assistant Secretary of February 17, 1939, advising that lands purchased under the Indian Reorganization Act but not yet proclaimed a reservation may nevertheless be treated as a reservation and that section 7 of that act contemplated a formal declaration of status rather than a change in status of the lands. The fact that the newly purchased lands in the Hendry County reservation have not been declared a reservation would not seem to be significant or place them in a different category from any other lands of the reservation. All the lands have been set apart for the use of the Indians, under the superintendence of the Government.

    No distinction as to the protection of the right of the Indians to enjoy the natural resources of an Indian reservation can be made at the present time on the basis of the manner of the acquisition of the reservation. In the Sturgeon case the land was set apart by Executive order; in the Alaska Pacific Fisheries case the land was set apart by statute; in the recent Wild Rice case the land was to be acquired by purchase and by condemnation of State owned and private lands; the McGowan case permits no distinction in Federal protection of dependent Indian communities on purchased land, and acknowledges no greater interference by the State over purchased lands than over any other type of Indian lands. In this regard it follows the famous dictum in Surplus Trading Co. v. Cook, 281 U.S. 647, 650, to the effect that State laws may apply on lands owned by the United States and set apart for public purposes, but they may not embarrass the United States in its use of the lands.

    On the basis of these considerations I conclude that Chapter 19860 of the Laws of Florida, Special Acts of 1939, cannot be enforced within the Hendry County Indian reservation without the sanction of the Federal Government.
 



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    There is a Federal statute which, by its language and the fact of its passage, confirms the principles of this decision and opens the door to enforcement of State sanitation and quarantine measures on Indian reservations in the discretion of administrative officers. This statute is the act of February 15, 1929 (45 Stat. 1185, 25 U.S.C.A., sec. 231), which reads as follows:

  "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior shall permit the agents and employees of any State to enter upon Indian tribal lands, reservations, or allotments therein for the purpose of making inspection of health and educational conditions and enforcing sanitation and quarantine regulations or to enforce compulsory school attendance of Indian pupils, as provided by the law of the State, under such rules, regulations, and conditions as the Secretary of the Interior may prescribe."
    The law of Florida, except for its provisions for the enforcement of the State game laws, comes within the provisions of this statute as a sanitation and quarantine law, and, therefore, the Secretary of the Interior may permit the enforcement of the sanitation and quarantine provisions of the law on such conditions as he may prescribe.

    The Federal statute gives the Secretary of the Interior discretion as to whether the sanitation and quarantine laws of a State shall be enforced within an Indian reservation and, if so, the extent and manner of the enforcement. It is true that the statute provides that the Secretary "shall permit" the agents of the State to enter Indian lands. However, under applicable rules of statutory construction, the word "shall" should be construed as "may" in this instance. The word "shall" is normally construed as directory and not mandatory where the statute relates to the performance of a public duty and does not affect any private right and where such construction effectuates the intent of the statute when read as a whole. Among the numerous authorities to this effect, the following cases particularly express and apply this rule: West Wisconsin Railway Co. v. Foley, 94 U.S. 100; Railroad Company v. Hecht, 95 U.S. 168; Richbourg Motor Company v. United States, 281 U.S. 528; People v. San Bernardino High School District, 62 Cal. App. 67, 216 Pac. 959; Apgar v. Wilkinson, 95 Fla. 457, 116 So. 78; Tosti v. Sbano, 170 Misc. 828, 11 N.Y.S. (2d) 321. The Federal statute relates solely to the performance of the public duty resting upon the Secretary of the Interior to protect Indians on Indian reservations; it does not affect any private right, and the provision for action by the Secretary of the Interior under such regulations and conditions as he may prescribe shows the intent of the statute to vest the Secretary with discretion in acting under it.

    Moreover, this construction is the established interpretation of the statute by this Department. The regulations governing hospital and medical care of Indians, 25 C.F.R., subch. K, contain the following section on the enforcement of State health laws which were adopted under the authority of the statute in question:

  "84.78 Enforcement of State health laws. State health authorities are authorized to enter upon Indian tribal lands, reservations or allotments within the respective States for the purpose of making inspection of health conditions looking to the enforcement, except as herein after provided, of sanitation and quarantine regulations of the particular State in like manner as such regulations are enforced in the surrounding territory. In connection with and prior to such proposed enforcement, the physician in charge of each reservation shall schedule the State sanitation and quarantine regulations which ought to be enforced upon the reservation, together with a statement of any limitations and conditions which should govern the application of such State regulations. Tribal authorities and individual Indians shall be afforded ample opportunity to submit protests or recommendations with respect to specific State regulations thus proposed for extension to the reservation. It shall be the duty of the Superintendent to transmit to the Secretary of the Interior through the Commissioner of Indian Affairs, the schedule of State regulations thus posted, together with any protests or criticisms made by the Indians with respect thereto. Such State regulations as are approved by the Secretary of the Interior shall thereafter be in force upon the reservation subject to such conditions as the Secretary may prescribe. No State law shall be applied within the jurisdiction of any organized tribe which is in conflict with any ordinance or resolution of the tribe." (Italics supplied.)
    This regulation embodies the principle that the determination of whether and in what manner a State health law shall be enforced upon an Indian reservation depends upon the suitability of the law on the reservation, its effect on the Indians, and the attitude of the Indians toward its enforcement. These factors are essential for the Department to
 



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consider in order properly to exercise its authority under the Federal statute.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: September 4, 1940.

OSCAR L. CHAPMAN,
Assistant Secretary.

BUREAU OF RECLAMATION-PAYMENT FOR
IMPROVEMENTS ON COLVILLE RESERVATION

M-30793                                                                                                                                             September 7, 1940.

Synopsis of
Solicitor's Opinion

Re:

Payment by the Bureau of Reclamation for improvements placed by School District No. 30, State of Washington, on land within the Colville Indian Reservation about to be flooded for Columbia River reservoir purposes.
Held:
1. The land on which the improvements stand is tribal property.

2. Title to the improvements remains in the school district notwithstanding the fact that such improvements are located on tribal property. This is so because of an implied agreement on the part of the Commissioner of Indian Affairs that title should remain in the school district.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Town of Inchelium, Washington, is to be flooded by the Bureau of Reclamation in connection with the construction of the Columbia River Reservoir, Columbia Basin project, Washington. It is my understanding that you have already approved the appraisals. for certain school buildings within the town which will likewise be flooded. These buildings were erected by School District No. 30 of the State of Washington on the Colville Reservation in circumstances to be set out hereinafter.

    Certain members of the Colville Indian Business Council (Inchelium District) and others are protesting against the contemplated payment of the appraised value of the buildings to the school district. These protestants claim that title to the original buildings and those later constructed is vested in the tribe and that the payment should be made to the tribe. They allege that the land on which the buildings were erected was tribal land and therefore any buildings erected thereon became tribal property.

    You have requested my opinion as to where title to these buildings lies.

    The Colville Reservation was established by Executive Order dated July 2, 1872. By act of Congress approved July 1, 1892 (27 Stat. 62), entitled "An Act to Provide for the Opening of a Part of the Colville Reservation in the State of Washington, and for other purposes," it was provided:

    "That subject to the reservations and allotment of lands in severalty to the individual members of the Indians of the Colville Reservation in the State of Washington herein provided for, all the following described tract or portion of said Colville Reservation * * * the same being a portion of the Colville Indian Reservation created by Executive Order dated July 2, 1872, be, and is hereby vacated and restored to the public domain, notwithstanding any Executive Order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians, and the same shall be open to settlement and entry by the proclamation of the President of the United States and shall be disposed of under the general laws applicable to the disposal of public lands in the State of Washington."
    After providing, among other things, that each Indian then residing upon the portion of the Colville Indian Reservation thereby vacated and restored to the public domain should be entitled to select 80 acres of land, which should be allotted to each Indian in severalty, section 8 of the act provided:
    "That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of the said Colville Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy."
    By the act of March 22, 1906 (34 Stat. 80), Congress authorized the sale and disposition of surplus or unallotted lands within the diminished Colville Reservation. Therein it provided that lands not allotted or reserved for Indian school, agency, or other purposes should be classified, appraised, and opened for settlement, and that the proceeds of such sales should be deposited in the Treasury of
 



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the United States to the credit of the Colville and confederated tribes of Indians belonging and having tribal rights on the Colville Reservation and should be expended for their benefit, among other things, in the education of said Indians. Section 7 of this act provided that:

    "Any of said lands necessary for agency, school, and religious purposes, and any lands now occupied by the agency buildings * * * on said lands are hereby reserved from the operation of this Act: Provided, That all such reserved lands shall not exceed in the aggregate three sections and must be selected in legal subdivisions conformable to the public surveys, such selection to be made by the Indian agent of the Colville Agency, under the direction of the Secretary of the Interior and subject to his approval."
    Section 7 of the 1906 act was amended by the act of August 31, 1916 (39 Stat. 672), to read in part as follows:
    "That the Secretary of the Interior may reserve from allotment or other disposition and set apart such lands of the Colville Reservation as in his judgment may be necessary, said lands not to exceed four sections in all, for school, agency, * * * or administrative purposes, said land to remain reserved so long as needed for such respective purposes."
    Having set out the pertinent facts relating to the establishment and development of the Colville Reservation, I shall now set out the circumstances in which the buildings in question were placed on land, title to which was not in such school district.

    In 1917, Day School No. 6, which had previously been conducted by the Indian Service at Inchelium, was abolished and the pupils of the school were taken over by the public school at Inchelium. The Council Hall at Inchelium was loaned to the Public School District No. 30 for this purpose temporarily. In 1920, School District No. 30 requested a donation of not more than five acres of land for school house and school ground purposes. On January 14, 1921, the superintendent of the reservation was informed by the Acting Assistant Commissioner of Indian Affairs:

    "You are now advised that there is no authority of law under which these tracts could be sold unless they contain abandoned day or boarding school plants or abandoned agency buildings. In such cases the buildings may be sold at public sale to the highest bidder, and also not to exceed 160 acres of land on which such plant or buildings may stand, under authority of the Act of February 14, 1920 (41 Stat. L. 432).

    "In view, however, of the statements contained in the petition submitted it is not believed that the school authorities are in a position to purchase any lands for school purposes at this time, and as an alternative proposition it is suggested that legislation might be obtained to authorize the issuance of fee patents to the school authorities for such lands as they may require, such legislation to contain a provision that Indian children be received in the schools to be maintained thereon on equal terms with white children.

    "There is enclosed copy of a draft of suggested legislation recently presented to Congress in connection with the issuance of a patent for land in the Browning town site on the Blackfeet Reservation, Montana. You are requested to advise the school authorities of the purport of this letter and submit such further report and recommendations as conditions may require.

            *                                *                                *                                *                                *

    "Should you recommend that legislation be obtained as suggested, you will also furnish a definite description of the lands desired and a justification in support of your recommendation."

    On November 16, 1921, the superintendent forwarded another petition by the school district that the Indian Office grant to said school district the north 500 feet of lot 5 in sec. 5, T. 32 N., R. 37 E., W.M., for a public school house site. On December 9, 1921, the Commissioner of Indian Affairs advised the superintendent:
    "I will consider taking the necessary action to obtain authority for the transfer of title to this land. In the meantime you may allow the public school authorities the use of this school house site."
    On March 9, 1922, a draft of a bill authorizing the Secretary of the Interior to transfer and convey to School District No. 30 the north 500 feet of lot 5 in sec. 5, T. 32 N., R. 37 E., W.M., was submitted to the Chairmen of the Committees on Indian Affairs of the House of Representatives and the United States Senate. This bill, while introduced in the Senate (S. 3287), was not passed by the Congress and the record does not show that any further at-
 



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tempt was made to secure its passage at any subsequent time.

    On July 31, 1923, the superintendent reported that Day School No. 6 at Inchelium had been burned. He stated that the buildings were used during the past year by the district as a public school and that the district carried insurance on them in the amount of $3,800. Continuing, he said:

    "An adjustment of this insurance policy will enable the district to replace the buildings with as good or better structures than those destroyed. This action on the part of the District will be an additional reason for urging the transfer of the property to them for school purposes. Authority is requested to drop these buildings from our property account."
    On September 6, 1923, the Assistant Commissioner of the Office of Indian Affairs requested the superintendent to inform him by what authority these buildings (Day School No. 6) were used as a public school by the district. Continuing, he said:
    "The Office notes that the adjustment of the insurance policy which amounts to $3,800 will enable the district to replace the buildings with as good or better structures than those destroyed. It is assumed that the ownership of the buildings to be erected will revert to the United States."
    Replying to this letter on September 14, 1923, the superintendent reported that he had given permission for the use of the buildings by the school district. On October 1, 1923, the Assistant Commissioner wrote to the superintendent as follows:
    "You are requested to ascertain definitely from the public school authorities whether they intend to replace the buildings destroyed and upon receipt of this information, together with other essential facts, you will be further advised."
Then, on October 16, 1923, the superintendent replied:
    "The trustees of School District No. 30, Ferty County, Wash., who last year used the Day School buildings at No. 6 will be compelled to replace the buildings in order to care for the children of the district. It has not been decided whether it is advisable to build on the same site, that is on Government land or to build in two other places more conveniently located with regard to the school population. The majority of the children are of Indian blood and if there are other sites which will be better for the distribution of school facilities I see no reason why we should desire that the buildings be placed on Government grounds. We have turned over the school program to the district and were allowing the District to use our idle buildings to save the expense of buildings. Our buildings burned after they were vacated by the district and the district is so far as I can see under no obligation to rebuild them for the Government. It is under obligation to replace the facilities for the children and definitely declares it will do so. The buildings were insured by the district in order to protect themselves against any liability to the Government in the event of loss while in use by the District. No such loss occurred and no liability was incurred. The insurance policy however was continuing in effect and had the effect of securing to the children of the District the continued school facilities which the taxation of the District could not furnish.

            *                                *                                *                                *                                *

    "The Trustees would rebuild the school on the site of No. 6 if the Government should demand it. I would not demand it for the reasons stated above. First, there is no liability of the District to the Government demanding it. Second, the children of the district will be better served by building two schools in the centers of school population.

    "It seems to me that the logical thing for us to do is to drop the buildings from our property and let the Trustees build what they please where it will be for the best service to the children of the District according to the judgment of the people of the District as represented by their Trustees and the County Superintendent."

    On November 5, 1923, the Assistant Commissioner of Indian Affairs addressed the following letter to the superintendent:
    "It appears from your letter that it is the intention of the district authorities to provide school facilities for the Indian children of the district, either by erecting a school building on the site of the one destroyed or by erecting two schools in centers of school population.

    "It is believed that your suggestion to leave this matter of selection of sites to the judgment of the Trustees is a good one, and the Office will interpose no objection to the construction




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of the new school or schools at other places than the site of Day School No. 6, provided the buildings are located where they will be easily accessible to the Indian pupils who will attend the schools."

    The record reveals no further action on the matter until on February 3, 1927, when a later superintendent reported that the money collected from the insurance on Day School No. 6 had been utilized in erecting a new school on land included in the subagency grounds at Inchelium. On February 11, 1927, authority was given to the superintendent to drop the property designated as Day School No. 6 from his property account. The superintendent was informed that his statement that the site on which the school now stood had not been set aside or deeded for school purposes would be made the subject of a later communication.

    It would appear that the matter was not given any further consideration until the question of the payment by the Reclamation Service for the property to be flooded arose.

    Turning now to the contention that the buildings are located on tribal property and that, therefore, any payment for the buildings belongs to the tribe, I find that the buildings are located on the north 500 feet of lot 5 of sec. 5, T. 32 N., R. 37 E.. W.M. These lands are within what is known as the diminished portion of the reservation, that is, within that portion of the reservation which was not restored to the public domain by the 1892 act. They are within the Inchelium subagency reservation which was included in schedule of allotments and reserves approved February 5, 1916, under authority of the act of March 22, 1906, supra.

    Notwithstanding the express disclaimer by the Congress in section 8 of the act of July 1, 1892, supra, of any recognition of title or ownership in said Indians to any part of the Colville Reservation, the Congress, by later enactments (especially the act of March 22, 1906, supra), recognized that the Indians did have tribal rights in the lands within the diminished portion of the reservation. See United States v. Pelican, 232 U.S. 442, 445, wherein the Supreme Court stated:

    "There can be no doubt that the Colville Reservation, set apart by executive order on July 2, 1872 (Exec. Ord. Ind. Reserv. (ed. 1912), 194, 195; 1 Kappler, 915, 916) and repeatedly recognized by acts of Congress, was a legally constituted reservation. In re Wilson, 140 U.S. 575, 577."
The land in question, being within the diminished portion of the reservation is, therefore, tribal property.

    Conceding that the land thus used by the school district is tribal property, the next question to be considered is whether the tribe may claim any title to the buildings which were erected thereon.

    The Indians base their claim upon the naked right of ownership of the land.

    As a fundamental proposition of law it may be stated that when one places improvements on the land of another such improvements become the property of the owner of the land. This statement is subject to the qualification that improvements may remain the property of the person placing them on another's property and the right to remove the buildings may likewise be retained by the party placing them on the land if such is the intention of the parties.

    In the case of Fisher et al. v. Johnson et al., 106 Iowa 181, 76 N.W. 658, it was said:

    "* * * Where the erections are made by one having no estate in the land, and hence no interest in enhancing its value, by the permission or license of the owner, an agreement that the structures shall remain the property of the person making them will be implied, in the absence of any other facts or circumstances tending to show a different intention."
    In Merchants' National Bank of Crookston v. Stanton et al., 55 Minn. 211, 56 N.W. 821, it was held:
    "Prima facie, all buildings belong to the owner of the land on which they stand as part of the realty. It is only by virtue of some agreement with the owner of the land that buildings can be held by another party as personal property. If erected wrongfully or without such agreement, they become the property of the owner of the soil. But it is entirely competent for the parties to agree that they shall remain the personal property of him who erects them, and such an agreement may be either express or implied from the circumstances under which the buildings are erected."
    Again, in the case of Hamlin v. Parsons and Wife, 12 Minn. 108, 90 Am. Dec. 284:
    "Ordinarily, a building is a part of the realty to which it is attached, but an exception to this rule is admitted where there is an agreement, express or implied, between the owner of the real estate and the proprietor of materials and buildings that when annexed to the realty they shall not become part of it, but shall still re-




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main the property of the person annexing them."

    Where a person having no estate in the land, and hence no interest in enhancing its value, erects a building with the permission or license of the owner, it has been held that an agreement that the structure shall remain the personal property of the person placing it there will be implied, in the absence of any other facts or circumstances tending to show a different intention. King, Trustee v. Morris, 76 N.J. Law. 810, 68 Atl. 162; Fisher et al. v. Johnson et al., 106 Iowa 181, 76 N.W. 658; Alberson v. Elk Creek Gold Mining Co., 39 Or. 552, 65 Pac. 978. See also Ballard on Real Property, Vol. 7, sec. 375; Tiffany, Vol. 2. sec. 612, p. 585; Corpus Juris, Vol. 31, sec. 5 on Improvements: and Ruling Case Law, Vol. 14, sec. 4 on Improvements.

    There are two recent decisions on this point to which I should like to call particular attention. In the case of School District No. 11, Laramie County v. Donahue, 97 P. (2d) 663, a State school district had erected a school building on defendant's land so located as to afford convenient school attendance to defendant's children. There was no formal agreement between the parties and the circumstances indicating any intention they may have had regarding the building were more obscure than in the case under discussion. The court ruled that the building remained personal property and belonged to the school district. The court said, among other things:

"* * * it is evident that the School District, being a mere temporary tenant or licensee, so far as the location of the building is concerned on the land where it was placed, it had an implied right to remove such building at any time it saw fit to do so."
    In Inland Finance Co. v. Standard Salmon Packers, 7 Alaska 131, the court had under consideration the ownership of a dock which had been built on tide lands. The party erecting the dock held a permit from the United States which gave the permittee the right to remove the buildings and other structures, but it was contended that the dock was located outside of the permit area. The court said:
    "If the dock is without the tract of land included in the Forest Service permit, and in or upon the tide lands and water of Tenakee Inlet, it was placed there by the Standard Salmon Packers, Inc., as a part of the adjoining plant for the purpose of canning and exporting salmon, under an implied license from the United States, holding the land in trust for the future state. The dock would be in the nature of a trade fixture, erected for the purpose of carrying on the business of canning salmon, and the United States at any time, through its proper executive officers, might cause the structures to be removed; but, having impliedly consented to the erection of the dock and the buildings thereon for the purpose stated, an agreement that such structures might be removed by the person erecting the same is implied. * * *"
See also Kay County Gas Co. v. Bryant, 276 Pac. 218, in which one who erected improvements such as a power house, pump house, warehouse and cottages on Indian land under a permit issued by the Interior Department retained title to the improvements.

    Consent to occupancy may be inferred from actual possession with the knowledge of the owner, in the absence of objection. Fisher et al. v. Johnson et al., 106 Iowa 181, 76 N.W. 658.

    It is obvious that at the time the buildings in question were placed on the land the school district was not a trespasser. That it occupied the land in the first instance with the consent of the Commissioner is shown by the Commissioner's letter of December 9, 1921, wherein he authorized the Superintendent to allow the school district to use the land. When informed by the Superintendent that it had not yet been decided by the school district whether to build on the site of the burned buildings (tribal land), or elsewhere, the Commissioner acquiesced in the suggestion that the selection of the site be left to the judgment of the trustees. They elected to build on the tribal land. This was not only within the permission given, but the district continued without objection to use, occupy and improve the property over a long period of years.

    There is nothing in the record to sustain a finding that the district intended to enhance the value of the lands for the benefit of the Indians or the Government. The Commissioner did assume in 1923 that title to the buildings to be erected in place of those destroyed would revert to the United States. What the Commissioner had in mind apparently was that upon abandonment or cessation of use of the property by the district for school purpose, the title would then, and not before, vest in the United States. In the meantime, the title to the buildings would, of course, remain in the district. The record contains no evidence of acquiescence or confirmation of this assumption by the district. In fact, this assumption was made prior to the time the Commissioner acquiesced in the erection of buildings on tribal land for the purpose of providing school facilities to replace those destroyed by fire and at a time when the Commissioner was not fully
 



984

DEPARTMENT OF THE INTERIOR

SEPTEMBER 7, 1940

informed in the matter. When the Commissioner acquiesced in the construction of new school facilities on tribal land, no assertion regarding ,title to any buildings to be erected was made. Other factors, such as the failure at any time to carry the buildings in the property accounts of the Superintendent and the efforts to obtain legislation authorizing the conveyance of title to the site of the buildings to the district, indicate the general understanding of the parties that the buildings should belong to the party whose funds were used in erecting them.

    While the record of the entire transaction, vague as it is, supports rather than detracts from the view that the understanding of the parties was that the buildings should remain the property of the school district, it is unnecessary to make a definite finding on that point. In any event, it cannot be said that there was any agreement, oral or otherwise, that the buildings should become the property of the owner of the soil. Without such an agreement or other circumstance showing a different intention, the authorities cited above fully support the view that the buildings remain the property of the person erecting them where such action is taken with the permission or license of the owner of the land.

    The authority to grant such permission seems to be clear.

    As pointed out above, the Congress expressly authorized the setting apart of lands for school, agency, and other purposes, and the lands were so set apart by the Secretary of the Interior acting under the authority of the 1906 act. The lands were used for a purpose contemplated by that act. Whether or not such lands were to be used by the Federal Government itself for educational purposes or by the Federal Government in cooperation with a State agency for the same purposes seems to me to be immaterial.

    Section 2, title 25, United States Code, provides:

    "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and all matters arising out of Indian relations."
    In my opinion, the express statutory authority contained in the act of Congress approved March 22, 1906, supra, as amended by the act approved August 31, 1916, supra, coupled width the general authority given in section 2, title 25, United States Code, was sufficient to enable the Commissioner of Indian Affairs to permit the school district to use the reserved lands for the purpose of building and operating a school at which Indian children would be privileged to obtain educational training.

    There is one other factor in this case which should be mentioned. That is the fact that some of the improvements which were placed on this land were constructed with money obtained by the school district by reason of an insurance policy which the district carried on Day School No. 6, which was Government property. It is my opinion that title to any of the buildings erected with this money is likewise in the school district. It is clear that the fire which caused the destruction of the Government property occurred during the summer months when the school district was not using the property, and that it was caused through no fault of the school district. Since the school district had no title to the Government property but only the right to use the same, the money which it received from the insurance company must represent reimbursement for the loss of the use of the building rather than the loss of the building itself. The Indian Office, through the usual policy of not insuring Government property, was compelled to bear the loss of the building at the time it burned. The Commissioner authorized the dropping of the burned building from the property account of the agency without any attempt to substitute therefore any of the buildings subsequently placed on the land with the money the school district received by reason of this insurance.

    Therefore, it is my opinion that the tribe has no valid claim to any part of the payment to be made by the Bureau of Reclamation by reason of the flooding of the school buildings. Title to the buildings is in the school district.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: September 7, 1940.

OSCAR L. CHAPMAN, Assistant Secretary.

TRUST ALLOTMENTS--AUTHORITY OF
SECRETARY TO PARTITION

September 9, 1940.
Syllabus

Re:

Authority of the Secretary of the Interior to partition trust allotments of deceased Indians.
Held
1. Under secs. 372 and 378, Title 25, U.S.C., the Secretary's authority to partition is predicated on finding that land is capable of partition to advantage of heirs.




985

OPINIONS OF THE SOLICITOR

SEPTEMBER 20, 1940

2. The Secretary may proceed with partition without consent of heirs where he finds one or more Indian heirs incompetent to manage their own affairs.

3. Notice and opportunity to be heard should be given to all claiming interest in allotment before action is taken by Secretary on petition by some of the heirs for partition of the land.

Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration a letter dated August 1, 1940, addressed to the Superintendent of the Shawnee Agency regarding the proposed partition of land allotted to Alex Gibson, deceased absentee Shawnee allottee No. 438. I also attach a letter dated August 27, 1940, from the Department of Justice enclosing copies of a memorandum dated December 31, 1936, relative to the case entitled United States v. Willard Johnston, No. 1823 Equity, then pending in the United States District Court for the Western District of Oklahoma.

    Your particular attention is directed to that part of the attached memorandum, beginning with the third paragraph on page 8 thereof, which discusses the authority of the Secretary of the Interior to partition trust allotments of deceased Indians. You will note that under the provisions of sections 372 and 378 of Title 25, United States Code, the Secretary's authority to partition is predicated upon a finding by him that the lands which the partition would affect are capable of partition to the advantage of the heirs. Under the interpretation of these statutes by the Attorney General, the Secretary may proceed with the partition without consent of the heirs where he has found that one or more of the Indian heirs are incompetent to manage their own affairs.

    Your attention is directed also to the suggestion made in the memorandum that notice and opportunity to be heard should be given to all those claiming an interest in the inherited allotment be fore any action is taken by the Secretary on any petition by sons of the heirs for the partition of the land.

    As the Secretary must act in strict compliance with the directions of the statutes in order to give validity to the partition proceedings, I suggest that the Superintendent be instructed to submit data upon which the Secretary may base his findings as to whether or not the lands in question are capable of being partitioned to the advantage of the heirs, and as to the competency or incompetency of the heirs. The Superintendent should also be instructed to serve notice on the administrator of the estate of Willard Johnston that a petition for partition of the allotment of Alex Gibson has been made by the other heirs to the allotment and that he will be given a reasonable time within which to be heard as to whether or not such petition should be granted.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


SECRETARIAL AUTHORITY TO ISSUE LAW AND
ORDER REGULATIONS--STATUTES AND DECISIONS

 

September 20, 1940.


MR. LAWRENCE E. LINDLEY,
General Secretary, Indian Rights Association,
301 South 17th Street,
Philadelphia, Pennsylvania.

MY DEAR MR. LINDLEY:

    In your letter of August 30 to Mr. Felix Cohen you asked him to outline the legal authority of the Secretary of the Interior to issue the law and order regulations approved on November 27, 1935. I am replying to this letter in Mr. Cohen's stead as the communication is one of interest to this office.

    In an extensive Solicitor's memorandum dated February 28, 1935, there was analyzed the authority of the Secretary of the Interior to issue law and order regulations generally, including the original departmental law and order regulations promulgated in 1884 and 1904, as well as the proposed 1935 revision. The following statement is a brief survey of the findings made in this memorandum.

    The authority of the Department to promulgate law and order regulations was found to rest, in the first instance, on the statutory power of the Department to make regulations dealing with Indian affairs (Rev. Stat. sec. 161, 5 U.S.C.A. sec. 22; Rev. Stat. sec. 441, 5 U.S.C.A. sec. 485; Rev. Stat. sec. 463, 25 U.S.C.A. sec. 2; Rev. Stat. sec. 465, 25 U.S.C.A. sec. 9; Rev. Stat. sec. 2058, 25 U.S.C.A. sec. 31).

    The exercise of the authority to make regulations governing the conduct of Indians was shown to be directly upheld in the case of United States v. Clapox, 35 Fed. 575 (D.C. Ore. 1883), which described the courts of Indian offenses established under the regulations as "mere educational and disciplinary instrumentalities by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian."
 



986

DEPARTMENT OF THE INTERIOR

SEPTEMBER 20, 1940

Other cases were discussed which supported the authority of the Department to make law and order regulations by indicating that if such regulations had existed in the case before the court the outcome of the case would have been affected. John Bad Elk v. United States, 177 U.S. 529; United States v. Crook, 5 Dillon 453, 25 Fed. Gas. No. 14891 (C.C. Neb. 1879); Ex parte By-a-lil-le, 12 Ariz. 150, 100 Pac. 450; Albert Wiley v. Keokuk, 6 Kans. 94; Deragon v. Sero, 137 Wis. 276, 118 N.W. 839. Additional support was contained in such cases as United States v. Mullin, 71 Fed. 682 (D.C. Neb. 1895) which recognized the authority of Indian policemen to carry out the regulations of the Department on Indian reservations, and supporting dictum by the Supreme Court was quoted from the case of United States v. Quiver, 241 U.S. 602, which recognized that crimes by Indians had always been left by Congress "to the tribal customs and laws and to such preventive and corrective measures as reasonably could be taken by the administrative officers." Moreover, no case was found denying the authority of the Department in this regard.

    While the issuance of departmental regulations governing the conduct of Indians was thus found to be sanctioned by the courts, greatest reliance was placed on the sanction and authorization given such regulations by Congress. The Indian police were first organized under the Indian appropriation act of May 27, 1878 (20 Stat. 63, 86), which provided for Indian police to be employed in "maintaining order," and in every appropriation act since that time Congress supplied appropriations for them. Likewise, after the establishment in 1883 by the Department of courts of Indian offenses Congress regularly appropriated funds for the pay of judges of these courts. Moreover, Congress recognized the functioning of the Indian police and the Indian courts in the act of August 1, 1914 (38 Stat. 586, 25 U.S.C.A. sec. 200), which provided that whenever an Indian shall be incarcerated in the agency jail or any other place of confinement on an Indian reservation a record of the offense shall be submitted to the Superintendent and made a part of the records of the agency office. After the passage of this act the Indian Office immediately required a formal record to be kept of all proceedings before the courts of Indian offenses (Circular No. 890, August 5, 1914).

    As a matter of judicial decision, the fact of appropriation to carry out an administrative activity is recognized to provide authorization for the continuance of such activity (United States v. Birdsall, 233 U.S. 223). Furthermore, even if no appropriations had been made, as a principle of administrative law, a court would assume congressional approval from a long-continued acquiescence by Congress in the exercise of a power by the Department (United States v. Midwest Oil Co., 236 U.S. 459). At the time of the 1935 revision of the law and order regulations, such regulations had existed in some form for more than 50 years.

    Authority for the law and order regulations was found, in addition, in the power of the Indian tribes to preserve internal order and to regulate the conduct of their members. Ex parte Crow Dog, 109 U.S. 556; United States v. Quiver, 241 U.S. 603. As the tribal organizations were weakened by various policies of the Federal Government, it became necessary for the Indian Office to stimulate tribal judicial action by the appointment of tribal dignitaries as judges and to carry a greater burden of the administration of tribal law. The Indian courts were recognized from the beginning as having authority, as tribal agencies, to apply tribal law wherever Federal law and regulations did not exist.

    I trust that the foregoing outline of the legal authority of the Department in the matter of law and order regulations is adequate for your purposes.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
CITIZENSHIP STATUS OF AN INDIAN BORN IN
METLAKATLA, CANADA, ON MARCH 10, 1906
 

September 27, 1940.
GEORGE W. FOLTA, ESQ.,
Counsel at Large, Department of the Interior,
Juneau, Alaska

MY DEAR MR. FOLTA:

    Reference is made to your opinion of September 7, 1940, No. 13, dealing with the citizenship status of Laurence Faber, an Indian who was born in Metlakatla, Canada, on March 10, 1906.

    It appears from the facts set forth in your opinion that Josiah Booth, the father of the Indian in question, was born in Seattle, Washington, on December 23, 1874, to Canadian Indian parents. You stated it to be your opinion that Laurence Faber did not become a citizen under Revised Statutes, section 1993, for the reason that his father, Josiah Booth, was not a citizen in 1906, the year of Laurence's birth. You also stated that although Josiah Booth may have become a citizen in 1934 under the Metlakatla citizenship statute (48 Stat. 667), his son did not become a citizen at that time since the derivative citizen statute of 1907 (34 Stat. 1229) affects the status of minors only and does not confer citizenship upon persons who have attained
 



987

OPINIONS OF THE SOLICITOR

OCTOBER 7, 1940

their majority at the time of the naturalization of the parent. You further stated that under the Indian naturalization statute of 1924 (43 Stat. 253) Laurence Faber did not become a citizen since that statute confined its operation to "all Indians born within the territorial limits of the United States."

    I agree with all of the foregoing conclusions reached by you. Nevertheless, I believe that your ultimate conclusion as to the citizenship of Laurence Faber is mistaken. Since he was born in the United States, the act of 1924, not the act of 1934, conferred citizenship on Josiah Booth, the father of Laurence Faber. The act of 1934 did not, of course, have reference to Indians who were already citizens. In 1924 Laurence Faber was a minor 18 years of age. Presuming as I must from the facts set forth by you that he was permanently residing in Alaska, either on June 2, 1924, the day when Josiah Booth became naturalized, or else that he began to reside permanently in Alaska at some time subsequent to June 2, 1924, but prior to March 10, 1927, the day when he attained his majority (Compiled Laws of Alaska, 1933, sec. 1161), it must be concluded that Laurence Faber is a citizen under the terms of the 1907 statute.

    Unless you disagree with the conclusion I have reached, in which event I shall be pleased to consider any comments you may care to make, I suggest that you advise the interested parties as soon as possible that Laurence Faber is a citizen of the United
States.

    For your information I enclose two memoranda of recent date concerning the citizenship status of certain Indians born in Canada.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.
SECRETARIAL AUTHORITY REGARDING
RESCISSION OF ONLY A PORTION OF

PRIOR APPROVED RESOLUTION


September 28, 1940.


Memorandum for the Commissioner of Indian Affairs:

    There is returned herewith for your further consideration a proposed letter to the Chairman of the Papago Tribal Council approving in part and rescinding in part Resolution No. 117 of that council.

    Article V, section 6, of the constitution of the Papago Tribe provides that the Superintendent and the Secretary of the Interior have power to approve or rescind a resolution. No power is conferred to approve part of a resolution and rescind another part. It is my opinion, therefore, that the Department has no more right to rescind a portion of a tribal enactment than has the President with respect to Congressional legislation or State governors with respect to State legislation generally.

    Whether Resolution No. 117 which has already been approved by the Superintendent of the reservation should be rescinded in toto is primarily a question of policy. If the expenditure of the Rehabilitation trust funds proposed by the tribe represents a deviation from an already agreed program, that fact should be pointed out in justification for the Department rescinding the resolution on the ground that it considers that the funds are not properly being used for the relief of needy Indians, assuming you determine rescission to be necessary. If the tribal funds involved were not held under trust for definite purposes, a rescission of a resolution covering the use of tribal funds because the Department considered the funds could better be used elsewhere would make negligible the difference between Government and tribal funds.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.
LEGAL PROCEDURES REGARDING STERILIZATION


October 7, 1940.


 Memorandum for the Commissioner of Indian Affairs:

    In connection with the attached letter to Superintendent Fredenberg concerning the sterilization of Indians, I have a suggestion for your consideration relating to the first method proposed in the letter.

    The first method would authorize a sterilization operation with the consent of the Indian concerned, or, if he is a minor or is mentally incompetent, with the consent of his parents or guardian. However, in view of the gravity of the operation and the fact that the operation may be only secondarily for the benefit of the individual and primarily for the benefit of society, I believe the first method proposed in the letter should be limited to cases where the consent of the Indian himself is obtained. If he is a minor or is mentally incompetent, then the consent of his parents or guardian could be obtained in addition to, rather than in substitution for, his consent. I do not contend that this consent is a universal requirement in sterilization laws where operations without compulsory process are concerned. I note, for example, that the Montana law would permit an operation solely with the con-
 



988

DEPARTMENT OF THE INTERIOR

OCTOBER 7, 1940

sent of the guardian or next of kin of a feeble minded person. (Mont. Rev. Code, 1935, sec. 1444.6.) However, the Oregon law, which is the relevant law in this case, does provide for consent of both the individual concerned and his guardian or next of kin if he is feeble-minded or insane. (Ore. Code, 1930, sec. 68-1406.)

    If you concur in this point of view, I suggest that the paragraph numbered (1) on the first page of the letter be revised to read as follows:

    "If the consent of the Indian concerned is obtained, as provided in section 84.43 of title 25 of the Code of Federal Regulations, the operation may be performed in accordance with the same procedures as are followed for operations on Indians for other purposes. In view of the character and gravity of a sterilization operation, if the Indian concerned is a minor or is mentally incompetent, the consent of a parent or guardian alone, as provided in section 84.43, will not be considered sufficient, but the consent of the parent, guardian, or next of kin, as may be most appropriate, shall be obtained as well as the consent of the Indian concerned. The procedures which may be followed in the event such consent is not obtained are discussed in the next paragraph. In addition to the required consent, the recommendation of Dr. Jens of the Indian Service should be obtained for any sterilization operation and a full and complete history of the case should be submitted to this office for advance approval."
                                                                                                                                    NATHAN R. MARGOLD,
Acting Solicitor.
KIOWA INDIAN HOSPITAL-ALCOHOL FOR
MEDICINAL PURPOSES-POWER OF OKLAHOMA
TO REQUIRE PERMIT

M-30984                                                                                                                                                  October 9, 1940.

Syllabus

Re:

Whether the State of Oklahoma may forbid importation of alcohol for medical use at the Kiowa Indian Hospital or require the hospital to secure a permit, pay fees therefor and comply with State regulations in order to import alcohol for medical use at that hospital.
Held:
The State of Oklahoma is without authority to require the Kiowa Indian Hospital to secure a permit, pay fees therefor and comply with State regulations, in order to import alcohol for medical use at that hospital; nor may the State of Oklahoma forbid such importation.
Memorandum to the Purchasing Office.

    This is in reply to the request of August 29 by Acting Purchasing Officer Wood for advice as to whether the State of Oklahoma may legally require the Kiowa Indian Hospital, Lawton, Oklahoma, to secure a permit, pay specified fees therefor and comply with certain regulations, as specified in the State act of March 2, 1939, Okla. Sess. Laws, 1939, ch. 16, House Bill No. 264, 37 Okla. States. Ann., secs. 41-48, prior to importing alcohol for medicinal use at that hospital.

    Under the Constitution, the United States is vested with plenary powers in the administration of Indian affairs. United States v. McGowan, 302 U.S. 535, 538 (1938) ; Perrin v. United States, 232 U.S. 478, 486 (1914); Gritts v. Fisher, 224 U.S. 640, 642 (1912); United States v. Thomas, 151 U.S. 577, 585 (1894). The Kiowa Indian Hospital is a Federal institution administered directly by the Office of Indian Affairs of this Department and is clearly an integral portion of the Federal Government. The alcohol to be used for medical purposes at that hospital by the Office of Indian Affairs is paid for by appropriations authorizing and directing the purchase of necessary supplies for the various Indian hospitals, including the Kiowa Indian Hospital, for the conservation of health among Indians. (1941 Interior Department Appropriation Act, Pub. No. 640, 76th Cong., 3d sess., pp. 23-25, slip copy.) Estimates for the purchase of alcohol for medical use at these hospitals have been included in the detailed estimates of the hospital needs submitted to Congress and the appropriations were enacted with direct reference to these estimates. Congress has therefor in effect authorized and directed the use of alcohol for medical purposes at that hospital. Ohio v. Thomas, 173 U.S. 276, 282 (1899). Clearly, in complying with this duty, the Office of Indian Affairs is, in the purchase of supplies necessary for the proper management of this hospital, engaged in the internal administration of a Federal institution. It is well settled that every governmental agency lawfully employed by the United States in the exercise of its lawful and constitutional governmental authority is necessarily exempt from State taxation, regulation or interference.

Ohio v. Thomas, 173 U.S. 276 (1899);
Johnson v. Maryland, 254 U.S. 51 (1920);



 

989

OPINIONS OF THE SOLICITOR

OCTOBER 9, 1940

Easton v. Iowa, 188 U.S. 220 (1903);
McCullough v. Maryland, 17 U.S; (6 Wheat.) 316 (1819);
Federal Land Bank v. Crosland, 261 U.S. 374 (1923);
Clallam County v. United States, 263 U.S. 341 (1923);
Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738 (1824);
Tennessee v. Davis, 100 U.S. 257 (1879);
Van Brocklin v. Tennessee, 117 U.S. 151, 155 (1886).

Directly pertinent is the case of Ohio v. Thomas, 173 U.S. 276, 283 (1899), involving the power of the State to regulate the use of oleomargarine at a Federal institution, in which the Supreme Court declared:
    "Whatever jurisdiction the State may have over the place or ground where the institution is located, it can have none to interfere with the provision made by Congress for furnishing food to the inmates of the home, nor has it power to prohibit or regulate the furnishing of any article of food which is approved by the officers of the home, by the board of managers and by Congress. Under such circumstances the police power of the State has no application.

    "We mean by this statement to say that Federal officers who are discharging their duties in a State and who are engaged as this appellee was engaged in superintending the internal government and management of a Federal institution, under the lawful direction of its board of managers and with the approval of Congress, are not subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal authority."

    It is therefore important to consider whether this conclusion is rendered untenable by virtue of the power conferred on the States by the Twenty-first Amendment to the United States Constitution. Section 2 of that Amendment provides as follows:
    "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
The power thus conferred upon the States is phrased in broad terms and must be interpreted in conjunction with other applicable provisions of the Constitution. To be sure, the Supreme Court has held that the ratification of the Twenty-first Amendment served to increase the power of the States by modifying various provisions of the Constitution, namely, the Commerce Clause and the Equal Protection Clause.
Joseph S. Finch & Co. v. McKitrick, 305 U.S. 395 (1939);
Indianapolis Brewing Co. v. Liquor Control Commission, 305 U.S. 391 (1939);
State Board of Equalization v. Youngs Market Co., 299 U.S. 59, 62, 63 (1936);
Mahoney v. Joseph Triner Corp., 304 U.S. 401 (1938).
But it is obvious that modification of these constitutional provisions results from the Twenty-first Amendment only to the extent that those provisions previously forbade the regulation by the State of commerce in liquor by private persons or corporations across the borders of the State. Despite its apparent broad language, the Twenty-first Amendment was not, in my opinion, designed to circumvent the power of the Federal Government in performing the legal and constitutional functions vested in it by the Constitution of the United States. Although the Twenty-first Amendment may have increased the power of the State to deal with the general problems relating to the importation of liquor, it did not increase State power to control the functioning of the Federal Government. As pointed out, the alcohol is delivered to and used in the Kiowa Indian Hospital, a Federal agency, and is paid for with Federal funds. In such circumstances the Twenty-first Amendment is not applicable and the State of Oklahoma is without power to regulate alcoholic liquor. See Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 538 (1938). Consequently, the liquor and tax laws of the State of Oklahoma can have no valid effect upon the hospital. To hold otherwise would result in depriving the Federal Government of all authority over its own functions in all matters wherein liquor would be involved. Such result was not intended by the Twenty-first Amendment. See United States v. McGowan, 302 U.S. 535, 539 (1938).

    For these reasons, I am of the opinion that the State of Oklahoma is without authority either to require the Kiowa Indian Hospital to secure a liquor permit, pay fees therefor or comply with State regulations thereon, or to prevent that hospital from importing alcohol for medical use.

                                                                                                                                             NATHAN R. MARGOLD,

Solicitor.
 



990

DEPARTMENT OF THE INTERIOR

NOVEMBER 7, 1940

METHOD OF DETERMINING "INDIANS
NOT TAXED"

M-31039                                                                                                                                              November 7, 1940.

Synopsis of
Solicitor's Opinion

Re:

The method of determining who are "Indians not taxed" within the meaning of of Article 1, section 2, clause 3 of the Constitution and section 2 of the Fourteenth Amendment.
Held:
1. "Indians not taxed" are Indians not subject to taxation.

2. Since all Indians are today subject to Federal taxation, there are no more "Indians not taxed" within the meaning of that phrase as it is used in the Constitution and Fourteenth Amendment.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to the method of determining who are "Indians not taxed" within the meaning of the Constitution and the Fourteenth Amendment thereto. Article I, section 2, clause 3 of the Constitution provides that:

    "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. * * *"
    The expression, excluding Indians not taxed, is found in the Fourteenth Amendment, where it deals with the same subject under the new conditions produced by the emancipation of the slaves. It appears therein as follows:
    "Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. * * *"
    The meaning of this phrase as it was used in the Constitution must be deduced largely from our knowledge concerning the purpose of the clause and the relationship which the Indian tribes bore to the Federal Government at the time of the adoption of the Constitution. In the debates of the Federal convention of 1787 we find no discussion which would throw any direct light upon the meaning of the phrase nor do we, upon examination of the writings of Madison and the other participants in the convention, find other than the merest reference to the existence of such a phrase. On the other hand, the problems of apportionment of representatives and direct taxes were the cause of great debate and extensive writings. In view of this, it is only reasonable to assume that the delegates to the convention were so clearly cognizant of the meaning of the phrase "Indians not taxed" as to render any consideration of it unnecessary.

    In the debates over the apportionment of representatives in the lower house two principal methods were urged with great vigor. One would have apportioned the representation of the States according to the relative property of each, thus making
property the basis of representation. This commended itself to some persons, because it would introduce a salutary check into the legislature in regard to taxation, by securing in some measure, an equalization of the public burdens by the voice of those who were called to give more towards the common contribution. Story on the Constitution (5th ed., p, 465); 4 Elliot's Debates (Yate's Minutes), 68, 69; Journal of Convention, 11th June, 111; Id. 5th July, 158; Id. 11th July, 169. It reflected a favorite theory of the American people that taxation ought to go hand in hand with representation. But, since an apportionment based upon property did not commend itself for a variety of reasons to the convention, it was dropped in favor of an apportionment, based on numbers, which secured at the same time against unequal and oppressive direct taxation. This was accomplished by providing that direct taxes, as representation, should be apportioned on a basis of numbers. The theory underlying this method of apportionment was that the number of people in each State should be the standard for regulating the proportion of those who are to represent the people of each State. The Federalist, No. 54.

    The apparent intention of the convention was that representation in the lower branch of the Congress be apportioned according to the number of people who constituted the community of people of the United States. This community included non-citizens, among whom were aliens, persons bound to service, Indians subject to the laws of the Government and slaves, as well as citizens. Since all were within the United States and were subject to the laws of the Government of the United States, all were considered as entitled to be represented in that Government. Indians, mem-
 



991

OPINIONS OF THE SOLICITOR

NOVEMBER 7, 1940

bers of sovereign and separate communities or tribes were outside of the community of people of the United States even though they might be located within the geographical boundaries of a State. Their status was well described by Chancellor Kent when in 1823 he said:

    "Though born within our territorial limits, the Indians are considered as born under the dominion of their tribes. They are not our subjects, born within the purview of the law, because they are not born in obedience to us. They belong, by birth, to their own tribes, and these tribes are placed under our protection and dependent upon us; but still we recognize them as national communities. In this situation we stood in relation to each other, at the commencement of our revolution. The American congress held a treaty with the six nations, in August, 1775, in the name and on behalf of the United Colonies, and a convention of neutrality was made between them. 'This is a family quarrel between us and old England,' said the agents, in the name of the colonies; 'you Indians are not concerned in it. We desire you to remain at home, and not join either side.' Again, in 1776, congress tendered protection and friendship to the Indians, and resolved, that no Indians should be employed as soldiers in the armies of the United States, before the tribe, to which they belonged, should, in a national council, have consented thereunto, nor then, without the express approbation of congress. What acts of. government could more clearly and strongly designate these Indians as totally detached from our bodies politic, and as separate and independent communities." Goodell v. Jackson, 20 Johns. 693, 711.
    To describe these Indians who were not a part of the community of people of the United States the phrase "Indians not taxed" was chosen. The reasons for the choice of the particular phrase are easily surmised. It reflected, first, the prevalent notion that taxation and representation should go hand in hand. It reflected secondly the fact that in a less complex system of government taxation is the principal criterion of governmental authority. No more significant attribute of the condition of the Indian living in his separate and independent community could have been chosen. Being outside the control of either State or Federal Government, he was an "Indian not taxed;" and since he did not bear the financial burden of the Government, he was not entitled to representation therein. United States v. Kagama, 118 U.S. 375, 878.

    The condition of these Indians as a people separate from the community of people of the United States had not changed by the time of the adoption of the Fourteenth Amendment. Their exemption from the application of State laws had been affirmed by the Supreme Court on more than one occasion. Worcester v. Georgia, 6 Pet. 515; The Kansas Indians, 5 Wall. 737. In treaty and statute their character as a separate, independent people had been observed by the Federal Government. As said by Chief Justice Marshall:

    "From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States." Worcester v. Georgia, 6 Pet. 515, 556.
    At the same session of the Congress which approved the Fourteenth Amendment and which submitted it to the States for adoption, the Civil Rights Bill of 1866 was passed. Act of April 9, 1866 (14 Stat. 27). It provided that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

    In the bill as originally reported from the Judiciary Committee there were no words excluding "Indians not taxed" from the citizenship proposed to be granted. Attention being called to this fact, the friends of the measure disclaimed any purpose to make citizens of those who were in tribal relations with government of their own. In order to meet that objection, while conforming to the wishes of those desiring to invest with citizenship all Indians permanently separated from their tribes, and who, by reason of their residence away from their tribes, constituted a part of the people under the jurisdiction of the United States, Mr. Trumbull, who reported the bill, modified it by inserting the words "excluding Indians not taxed." What was intended by that modification appears from the following language used by him in debate:

    "* * * Of course we cannot declare the wild Indians who do not recognize the Govern-




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ment of the United States at all, who are not subject to our laws, with whom we make treaties, who have their own regulations, whom we do not pretend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens. They must be excepted. The Constitution of the United States excludes them from the enumeration of the population of the United States, when it says that Indians not taxed are to be excluded. It has occurred to me that perhaps an amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding Indians not taxed, and not subject to any foreign Power, shall be deemed citizens of the United States." (Cong. Globe, 1st sess., 39th Cong., p. 527.)

    The understanding of the Congress as to the meaning of the phrase as it appeared in the Constitution was expressed by Mr. Trumbull: "It is a constitutional term used by the men who made the Constitution itself to designate * * * a class of persons who were not a part of our population." (Ibid., p. 572.)

    It is not surprising then to find the following statement in a report of the Judiciary Committee to the Senate of the United States on the 14th of December, 1870, in obedience to an instruction to inquire as to the effect of the Fourteenth Amendment upon the treaties which the United States had with various Indian tribes of the country:

    "During the war slavery had been abolished, and the former slaves had become citizens of the United States; consequently, in determining the basis of representation in the fourteenth amendment, the clause 'three-fifths of all other persons' is wholly omitted; but the clause 'excluding the Indians not taxed' is retained.

  "The inference is irresistible that the amendment was intended to recognize the change in the status of the former slave which had been effected during the war, while it recognizes no change in the status of the Indians. They were excluded by the original constitution, and in the same terms are excluded by the amendment from the constituent body, the people." (Italics supplied.)

    The exclusion of the Indians from the constituent body, the people, was reflected too in their exclusion from the operation of both State and Federal tax laws. As at the time of the adoption of the Constitution these Indians were not subject to taxation, so too were they not subject to taxation at the time of the adoption of the Fourteenth Amendment. This attribute of their status remained the same and it was retained as descriptive of a status which likewise had remained the same.

    Though the States may have desired to tax the Indians within their borders and though they did, on more than one occasion, attempt it, they were effectively precluded from doing so by decisions of the Supreme Court. The Kansas Indians, 5 Wall. 737; The New York Indians, 5 Wall. 761. The effect of these decisions and of other decisions which enunciated the doctrine that Indian affairs are subject to the control of the Federal Government rather than that of the States (Worcester v. Georgia, 6 Pet. 515), has been to exclude Indians while in their separate communities or on reservations from the application of State laws except as the Federal Government may confer upon the States power over certain subjects.

    Until recent years the Federal Government, though it possessed the power to tax the Indians, never exercised it. On the contrary, it had always evidenced throughout its negotiations with them an intention to exempt them from taxation. Surveying the treaties made with the Indians, one finds both guarantees of total exemption (Treaty of September 29, 1817, with the Wyandots and others, 7 Stat. 160) and guarantees that the Indians should be forever undisturbed in the peaceful possession of their domain (Treaty of May 6, 1828, with the Cherokee Nation, 7 Stat. 311). This expressed intention is particularly significant in view of the fact that contemporaneously with the making of these treaties the Federal Government was establishing a comprehensive system of internal revenue applicable to all people resident in the United States.

    As early as 1798 the Federal Government had imposed a direct tax upon real estate and slaves. Act of July 14, 1798 (1 Stat. 597). In the summer of 1813 a direct tax was again assessed on real estate and slaves and Congress laid duties on carriages, a duty on refined sugar, a license tax upon distillers of spirituous liquors, stamp duties, an auction tax, and license tax upon retailers of wines and spirituous liquors. (Dewey, Financial History of the United States, page 139.) By 1862 so many internal revenue taxes were being laid by the Federal Government chat one writer concisely described the revenue measure of that year as follows:

    "Wherever you find an article, a product, a trade, a profession, or a source of income, tax it." (Wells Practical Economics, New York, 1885.)




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In 1861 the first Federal income tax was authorized to be levied "upon the annual income of every person residing in the United States, * * * derived * * * from any * * * source whatever." Act of August 5, 1861 (12 Stat. 292, 309). The tax was increased in 1862 and in 1865, decreased in 1867 and finally abolished in 1872. (Dewey, Financial History of the United States, page 305.)

    What is of special significance is that in no instance were any of these numerous taxes applied to Indians living in their separate tribal communities, even though, as in the case of the income tax, it was by its provisions intended to apply to "every person residing in the United States." The reason for the non-application of such a tax to Indians was the same as the reason for the non-application of all laws of general application to Indians. They were considered a people separate from the community of people of the United States and thus it was not to be inferred, in the absence of clear and unambiguous language to the contrary, that Congress intended to subject them to a law which by its terms applied to every person residing in the United States. Elk v. Wilkins, 112 U.S. 94. The extent of Indian exemption from taxation and the reasons therefore are expressed in an opinion of the Attorney General rendered in 1870:

    "The questions which seem to me to be proper for my consideration at this time, upon the case and facts as stated, are contained in the third and fourth questions so propounded by the Commissioner. These two questions may very well be condensed into the following: Whether cotton raised in the Choctaw nation, by an Indian of that nation, can be taxed in any collection district of the United States outside of the Choctaw country whilst in transitu and in the hands of the original owner, or in any collection district in which it may be sold by the original owner?

    "Our internal revenue system has not in any instance or for any purpose been extended over the Indian country.

    "Collection districts have been extended over all the States of the Union and over all the organized Territories. But as to Indian territory held under treaty between the separate tribes and the United States, whether that Indian territory is situated within the limits of a State of this Union or an organized Territory of the Union, or, as is the case with the Choctaw territory, lying outside of any State or any organized Territory of the United States, there is no instance in which it has been laid out into districts for the collection of internal revenue.

            *                                *                                *                                *                                *

    "I am clearly satisfied that the omission in the various internal revenue laws to provide for the organization of collection districts over the Indian territory was not fortuitous or accidental, and that it was the settled purpose of Congress not to subject the persons or the productions of Indians, existing under their regular tribal associations, to liability for any tax imposed by the acts. If the provisions as to the specific article of cotton apply to Indian territory, I see no reason why all the other forms of tax provided for in these acts are not equally applicable to Indian territory.

    "We must consequently, make them subject to taxation in reference to stamps, income, and descents in succession, as well as for other purposes.

    "The intent of Congress not to include them in any sort of taxation I think is clear enough from the language of the acts themselves. But all other considerations which apply to them equally forbid this idea of federal taxation. Their rights are defined by treaties. They have some of the characteristics of independent sovereignties.

    "They are in a state of tutelage and protection under the United States. The general laws of the United States, in which they are not mentioned, are never understood to apply to them. Even when these Indians and their territory are situated within the bounds of a State of the Union, they are not subject to State taxation.

    "In recent cases before the Supreme Court of the United States, at its December term, 1866, speaking of the condition of Indian tribes under treaty with the United States, the court used this language: 'The object of the treaty was to hedge the lands around with guards and restrictions, so as to preserve them for the permanent homes of the Indians.

    " 'In order to accomplish this objective, they must be relieved from every species of levy, sale, and forfeiture: from a levy and sale for taxes, as well as the ordinary judicial levy and sale.'

    "Again the court said, in reference to the tribal association of the Shawnees, that 'they are a "people distinct from others," capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by Government of the Union. If under the
 



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control of Congress, from necessity there can be no divided authority. If they have outlived many things, they have not outlived the protection afforded by the Constitution, treaties, and laws of Congress. It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, "but until they are clothed with the rights and bound by all the duties of citizens" they enjoy the privilege of total immunity from State taxation.' And again 'As long as the United States recognizes their national character, they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of State law.'

    "Such is the well established policy of the United States with regard to the total exemption of the Indian tribes from State taxation. The tenor of all the treaties shows that the idea of subjecting them to taxation by the General Government was never entertained, and certainly hitherto it has never been attempted.

    "I am therefore clearly of opinion, that the particular cotton in question was not liable to taxation under our internal revenue laws, either while in Indian country or in transit through any collection district of the United States, or in the collection district where it may have been found or may have been sold." (12 Op. Atty. Gen. 209-210, 213-215.)

    The Supreme Court in a decision rendered subsequent to the quoted opinion of the Attorney General entertained a contrary opinion concerning the application of a Federal excise tax to tobacco owned by an Indian in the Cherokee Nation. The Cherokee Tobacco, 11 Wall. 616. The value of the case as authority has, however, been seriously questioned by the Supreme Court in a later decision (United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491), wherein a unanimous court emphasized the fact that the decision in The Cherokee Tobacco was a four-to-two decision with three members of the court not hearing argument.

    Between the date of the Fourteenth Amendment and the present, the Indian's status has undergone a marked change. This change is itself no more than a reflection of a changed attitude on the part of Congress and the Court. This attitude has found expression, first, in legislation which expressly subjected Indians to particular laws of general application, secondly, in the law granting them citizenship and, therefore, the same civil and political rights as other citizens, and, thirdly, in the recent recognition on the part of the Supreme Court that Indians are included within the application of a Federal revenue law which by its terms applies to every person in the United States.

    Of these three expressions of a changing attitude the first is perhaps best exemplified by two statutes, one passed in 1885, the other in 1887. Under the 1885 statute it was made a Federal crime for one Indian to murder another Indian on an Indian reservation (act of March 3, 1885, 23 Stat. 385, 18 U.S.C.A. 548). This law also prohibited manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. In later years notorious cases of robbery, incest, and assault with a dangerous weapon resulted in the piecemeal addition of these three offenses to the Federal Code of Indian Crimes (act of March 4, 1909, 35 Stat. 1151; act of June 28, 1932, 47 Stat. 336). The 1887 statute, known as the General Allotment Act, provided, among other things, that when tribal lands have been individualized the individual parcels shall be inherited in accordance with the laws of the State (act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. 331, et seq.).

   The citizenship act of 1924 gave fuller and more decisive expression to the rapidly changing attitude toward these once alien people. All Indians born in the United States are by that act declared to be citizens of the United States and of the State in which they reside. As citizens they are entitled to the rights of suffrage guaranteed by the Fifteenth Amendment and they are likewise entitled to hold public office, to sue, to make contracts. and to enjoy all the civil liberties guaranteed to their fellow citizens. Brown, The Indian Problem and the Law, 1930, 39 Yale L.J. 307, 314, and cases cited.

    A final significant change in attitude, which has a particular bearing upon the question now in issue, was effectuated by the Supreme Court in a decision rendered in 1935. Superintendent v. Commissioner, 295 U.S. 418. Until that year Attorneys General and courts had concluded as the Attorney General did in 1870 that Federal revenue laws did not apply to those Indians who were under the protection of the Federal Government (34 Op. Atty. Gen. 275 (1924); 34 Op. Atty. Gen. 302
(1924); 34 Op. Atty. Gen. 439 (1925); 35 Op. Atty. Gen. 1 (1925); Blackbird v. Commissioner, 38 F. (2d) 976 (1930)). By its recent decision the Supreme Court has so far modified that time-honored principle as to permit the application of the general Federal income tax law to the income of individual Indians. That the decision represents a fundamental change in attitude is illustrated by the fact that the income tax laws of 1928 applied by its terms as did the income tax law of 1861 to the "income of every person residing
 



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in the United States" and to income "from what ever source derived." In 1861, however, Indians were not considered part of the people of the United States, whereas, in 1935, according to the Supreme Court, they were.

    If the fact that all Indians are today subject to Federal taxation satisfies the criterion established by the phrase "Indians not taxed," then all are certainly entitled to be counted in the apportionment of representatives. Whether this criterion has been satisfied depends upon the determination of two questions which may be formulated as follows:

1. Does the phrase "Indians not taxed" mean Indians not actually paying taxes or Indians not subject to taxation?

2. Does the phrase "Indians not taxed" refer to a particular taxing authority?

    These two questions will be treated in order.
I.    Does the phrase "Indians not taxed" mean Indians not actually paying taxes or Indians not subject to taxation?
    If the phrase means Indians not actually paying taxes it indicates an intention on the part of the Federal convention to consider propertied Indians as entitled to become a part of the community of people of the United States and non-propertied Indians as not entitled to become a part of that community.

    The fallacy of such a construction cannot be more clearly demonstrated than by analogy to the Indians who resided within the States and were subject to the laws of the Government at the time of the adoption of the Constitution. They are the so-called Indians taxed as differentiated from "Indians not taxed." If the phrase meant Indians not paying taxes, only those Indians within a State who actually paid taxes would have been counted for apportionment purposes. In other words, only the wealthy or propertied Indians would have been counted. There is, however, no indication that these Indians were regarded differently than their fellow whites in so far as apportionment was concerned. The whites were counted regardless of whether they paid taxes as were also the Indians. The distinction between these two groups and the "Indians not taxed" group was that the former were subject to the tax laws of the Government whereas the latter were not.

    This seems clearly to have been the understanding of the Bureau of the Census. In a "Report on Indians Taxed and Indians Not Taxed in the United States at the Eleventh Census: 1890," I find the following statement:

    "Indians taxed and Indians not taxed are terms that can not be rigidly interpreted, as Indian citizens, like white citizens, frequently have nothing to tax. Indians subject to tax and Indians not subject to tax might more closely express the distinction. * * *

            *                                *                                *                                *                                *

    "It is to be constantly borne in mind that Indians living scattered among whites were counted in the general census, while Indians on reservations, under the care of the government, the Six Nations of New York and the Five Civilized Tribes of the Indian territory, were not counted in .the general census but in a special Indian census."

    As recently as the census of 1930 the Bureau of the Census again reiterated its understanding of the phrase "Indians not taxed" as meaning "Indians not subject to taxation."

    This interpretation of the phrase is not only the reasonable one but is, in addition, the only interpretation which can be practically administered. If the phrase were taken to mean Indians actually paying taxes, the census enumerator would be faced with a problem of determining at what point between census periods the payment of a tax entitled an Indian to be counted. For example, suppose a particular Indian had paid a tax in 1932 but had paid no other taxes between 1932 and 1940. Suppose in fact he had paid the tax in 1932 and then returned to his reservation and remained there continuously from 1932 until the census enumeration of 1940. Or, suppose that though a tax had been levied upon the property of this Indian he was not obliged to pay the tax until 10 days after the date of the enumeration. These hypothetical questions are but a few of the many which would arise to plague the census enumerator in the event the phrase were construed to mean Indians actually paying taxes. In order to administer the phrase as thus interpreted it would be necessary in view of the many problems that would arise to read into the phrase a great variety of implications. This might be countenanced only if such an interpretation reflected the object of the Constitution but here the object is not in doubt. It is reflected in the circumstances which prevailed at the time of the adoption of the Constitution. It has been administratively interpreted in the light of those circumstances and it has been so understood by subsequent legislators.
 



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    In the debate in Congress on the Civil Rights Bill, the objection was made that the amendment to the bill "excluding Indians not taxed" from citizenship would require an Indian to have property upon which a tax was levied before he could become a citizen. To this objection Mr. Trumbull, author of the amendment, replied.

    "* * * The Senator from Missouri understands it to be a property qualification to become a citizen. Not at all. It is a constitutional term used by the men who made the Constitution itself to designate * * * a class of persons who were not a part of our population.

    "* * * It is not intended as a property qualification. That is not the meaning of it. The Senator wants to know why, if an Indian cannot be a citizen without being taxed, should a white man or a negro be a citizen without being taxed. If the negro or white man belonged .to a foreign Government he would not be a citizen; we do not propose that he should be; and that is all that the words 'Indians not taxed,' in that connection, mean." (Cong. Globe, 39th Cong., 1st sess.; p. 572.)

    Significantly I find the following paragraph in President Johnson's message to Congress vetoing the Civil Rights Bill:
    "By the first section of the bill, all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to Taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattos, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship. * * *" (Italics supplied.) (Cong. Globe, 1st sess., 39th Cong., p. 1679).
To him, as to Justice Harlan in the case of Elk v. Wilkins, 112 U.S. 94, "Indians not taxed" meant Indians not subject to taxation.

    In view of the foregoing, I am clearly of the opinion that "Indians not taxed" means Indians not subject to taxation.

II    Does the phrase "Indians not taxed" refer to a particular taxing authority?
    It has been suggested that the phrase "Indians not taxed" refers only to taxation by the States. I find that neither reason nor decision supports this conclusion.

    The suggested construction serves to restrict the meaning of the phrase. As such it violates a cardinal principle of constitutional construction that words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted. Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601, 618. The restriction might be countenanced only if it were in consonance with the object of the Constitution. Gibbons v. Ogden, 9 Wheat. I. It is not. As we have seen, "Indians not taxed," was a phrase used to describe individuals who were outside the community of people of the United States and hence not entitled to be counted in the apportionment of representatives, The object was not to exclude a particular group from representation but to include all who could reasonably be denominated members of this community of people. Thus, express provision was made for the inclusion of subject Indians, as well as of slaves and persons bound to service for a term of years. If the phrase is restricted to taxation by the State it means that unless a reservation Indian subjects, himself to the tax laws of the State, either by settling or by purchasing property within its jurisdiction, he cannot be regarded as a member of the community of people of the United States, even though he is a citizen and as such entitled to the same civil and political status as other citizens.

    The restricted interpretation can be founded only upon the argument that the State has the exclusive right to determine who within its borders shall be counted among its numbers for apportionment purposes. The argument, however, is fallacious. It confuses a Federal rule for the determination of the aggregate number of representatives with a State right to prescribe the qualifications of those who would vote for the representatives. As observed by the Federalist:

    "It is a fundamental principle of the proposed constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the State itself may designate." (Italics supplied.) The Federalist, No. 54.
    The power to recognize a person as a member of the community of people of the United States resides in the Federal Government as well as in the States. In fact, it resides, in the most important
 



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instance, exclusively within the power of the Federal Government. I refer to the admission and naturalization of aliens. The Federal Government may admit aliens and may provide for their becoming citizens of the United States as well as of the States wherein they reside. Thus, by Federal action alone, an individual may be recognized as a member of the community of people of the United States, and as an inhabitant of a State entitled to be counted among its numbers for apportionment purposes. Where, as in this case, the Constitution of the United States directs that all people comprising the community of people of the United States shall be counted for the purpose of apportioning representatives, and where, as here, the criterion for determining whether a person is a member of the community of people of the United States is made to depend on whether he is or is not subject to taxation, and where it has been shown that the Federal Government has the power to admit a person to the community of the people of the United States and of the State, it is only reasonable to assume in the absence of a contrary constitutional provision or legislative intent, that the phrase "Indians not taxed" refers to the exercise of Federal as well State power.

    In the Constitution, provision is made for the establishment of a system of internal revenue by the Federal Government. Had there been any expression or intention on the part of the Federal Government to subject Indians to taxation at that time or had there been any indication that Indians were within the scope of the taxing jurisdiction of the Federal Government; we should have cause to believe that only State taxation was referred to by the phrase "Indians not taxed." For if the phrase referred to Federal taxation as well as State taxation, and if at the time of the adoption of the Constitution, Indians were subject to Federal taxation, the phrase would be meaningless as there would have been no "Indians not taxed." But, as I have pointed out earlier, the exact contrary was the case. The treaties made by the Federal Government with the Indian tribes guaranteed them the peaceful and uninterrupted possession of their domain. Many of the treaties guaranteed total exemption from taxation. And, though the Federal Government passed both direct and indirect taxes, they were not considered as having any application to Indians living in their tribal communities.

    In view of the foregoing I can only conclude that the phrase "Indians not taxed" refers to Federal as well as to State taxation. The question which has been propounded to me may then be formulated as follows: What Indians are not subject to taxation?

    Since all Indians are today subject to taxation by the Federal Government (Superintendent v. Commissioner, 295 U.S. 418), there are no longer Indians not subject to taxation. The criterion for their recognition as members of the community of people of the United States has been satisfied and they are all entitled to be counted in the apportionment of representatives. That some may still be not subject to State taxes does not alter the conclusion. The position of such Indians is analogous in this regard to that of members of the United States army who while stationed at a military reservation within a State are counted inhabitants of the State for apportionment purposes, notwithstanding the fact that they are not subject to the tax laws of the State. I perceive no reason in either the Constitution or the apportionment process for assuming that Indians should be regarded differently.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


 Approved: November 7, 1940.
W. C. MENDENHALL,
Acting Assistant Secretary.

METHOD OF DETERMINING "INDIANS
NOT TAXED"

M-31039 (Supp.)                                                                                                                                 November 22, 1940.

    Since the publication of my opinion dated November 7, 1940, concerning the method of determining who are "Indians not taxed" within the meaning of that constitutional phrase, questions have been raised which involve a further consideration of whether the phrase "Indians not taxed" refers to a particular taxing authority.

    It is contended that only those Indians may be counted in the apportioning of representatives who are subject to State taxation. In support of this contention various arguments are adduced. They may be formulated as follows:

1. That certain language used in the propositions submitted to the Federal convention relative to representation and taxation demonstrates an intention to restrict the phrase to State taxation.

2. That the Federal Government when apportioning a direct tax may do so only on the basis of those individuals who are taxable by the State.

3. That the fact that heretofore Indians have been counted only when they were no longer under the protection of the Federal Government indicates a consistent administrative and legislative interpretation of the phrase to the
 



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end that Indians are to be counted only upon becoming subject to State taxation.

    These contentions will be treated in order.
    I. That certain language used in the propositions submitted to the Federal convention relative to representation and taxation demonstrates an intention to restrict the phrase to State taxation.
    During the course of the debate over the apportionment of representatives the method which was ultimately incorporated into the Constitution found expression in various ways. One such expression was as follows:
    "Resolved that the right of suffrage in the first branch of the national legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation; namely, in proportion to the whole number of white and other free citizens, and inhabitants of every age, sex and conditions, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each state."
    Because of the presence of the words in each state, it is argued that it was intended that the phrase "Indians not taxed" refer to State taxation alone. But such an interpretation can be derived only by misreading the foregoing quotation. The comma which precedes the words in each state must be accorded a purpose. Its obvious purpose is to divorce the phrase in each state from Indians, so as to render it applicable to the other persons described in the clause. The purpose of the words in each state is to locate the various individuals described in the clause upon whose numbers representation was to be apportioned. Without the presence of the words in each state, we have a clause only which apportions representation but makes no mention of that to which representation is apportioned. The purpose of these words is further borne out by the wording of the Constitution itself. The clause respecting representation there appears as follows:
    "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, * * *."
Clearly, the constitutional clause is but a rephrasing of the earlier clause, the representation "being apportioned among the several States" rather than "in proportion to" the people "in each state." The meaning of the clause as originally introduced remained. The manner in which it was phrased alone changed.
    II. That the Federal Government when apportioning a direct tax may do so only on the basis of those individuals who are taxable by the State.
    It is argued in this connection (a) that direct taxes are apportioned among the several States, (b) that the several States are obliged to pay the sum apportioned to them and then to collect the sum from their inhabitants, (c) that the States cannot tax the Indians who are under the protection of. the Federal Government, (d) that it is, therefore, manifestly not the intention of the Constitution that Indians under the protection of the Federal Government be counted among the numbers on the basis of which direct taxes as well as representation are apportioned.

    This argument presumes that the Constitution granted no greater power to the Federal Government respecting direct taxation than it possessed under the Confederacy respecting taxation generally. Under the Confederation the Federal Government was limited in its sources of revenue to requisitions upon the States. These requisitions were apportioned among the several States according to the ascertained value of the land with the buildings and improvements thereon in each. The requisition was, as the term might imply, not a levy by the Federal Government on the inhabitants of the State. If the State paid the requisition it reimbursed itself by taxing its citizens. The tax which the citizens paid was a State and not a Federal tax. The payment of the requisition was dependent upon the will of the individual State. No means existed whereby the Federal Government could enforce payment by the State and it possessed no recourse against the inhabitants of the State. The result of this system has been described as follows:

    "For twelve years prior to the assembling of the constitutional convention, Congress had been attempting to wage war and to provide for the ordinary expenses of a league of states without possessing the power to levy or collect taxes. Public expenses had been apportioned among the members of the Confederation, and each had been expected to provide for the payment of its quota of the common charges. The failure of the states to comply




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NOVEMBER 22, 1940

with the requisitions made by Congress reduced the United States to bankruptcy and demonstrated the need of a central government that should possess the power of taxation." (Bullock, "The Origin, Purpose and Effect of the Direct Tax Clause of the Federal Constitution," 15 Political Science Quarterly 217.)

    This need was answered in the Constitution. Under it the Federal Government acquired the power to tax all individuals and property wherever situated. The limitations placed upon it with respect to taxation were not limitations as to the subjects of taxation but were limitations solely with respect to the purpose of taxation and the manner of levying it. Respecting the levying of the direct tax, it was limited only by the requirement that the tax be apportioned among the several States on the basis of population. The Federal Government did not continue limited to requisitions upon the States in the matter of direct taxes. As a matter of fact, an amendment proposed to the constitutional convention which would have limited the Federal Government to a requisition upon the States as a condition precedent to a levy upon the inhabitants of the States was decisively defeated.

    The manner in which the Federal Government levied direct taxes under the Constitution was dictated by its earlier failure under the Confederacy in the matter of requisitions upon the several States. (Report of Oliver Wolcott, Jr., to the House of Representatives, December 14, 1796, concerning the levying of direct taxes.) In each case of an apportioned direct tax, the Federal Government first evaluated all lands and dwelling houses in the United States and enumerated all slaves. It then apportioned the total tax to the several States according to their numbers. This done, it proceeded to assess (a) upon the lands and dwelling houses a tax based upon a percentage of their value, and (b) upon the slaves a flat sum. The total assessment in each State was deducted from the amount apportioned to the State and the remainder, if any, reassessed against the lands within each State according to the prescribed valuation and at such percentum as would be sufficient to produce the said remainder. In other words, under the Constitution the Federal Government both levied a direct tax upon the inhabitants of the State and collected the tax itself.

    Thus, it will be seen, that the requirement of apportionment relates solely to the question of assessment. In assessing the individuals within a State de requirement of apportionment serves to prevent the total assessment within one State from being
disproportionate to the total assessment in another State. Once assessed, the tax is levied on the individual inhabitant and not on the State which, as a matter of fact, the Federal Government has no power to tax directly.

    The power of the Federal Government to tax the Indians is undoubted. Since it possesses that power and since today Indians have been declared subject to taxation by the Federal Government there would appear to be no reason for excluding them from the basis on which a Federal direct tax must be apportioned. True, some Indians have been accorded a qualified exemption by Federal or State statute from certain types of taxation. This exemption, however, does not preclude the Federal Government from levying a direct tax upon them. There is no apportioned direct tax levied by the Federal Government today. If, in the future, Congress should levy such a tax, it will lie within its discretion as to whether certain Indians should be exempted. Absent an express exemption from the tax, it would not appear after an analysis of the decision of the Supreme Court in the case of Superintendent v. Commissioner, 295 U.S. 418, that any Indians would be exempt from the application of the tax: If, however, Congress should expressly exempt Indians, some of whose property was qualifiedly exempted by existing State law from certain types of taxation, their status would be no different than that of certain white persons who might be exempted because they too possessed a qualified exemption from State law on particular types of property. There were at the time of the adoption of the Constitution individuals in Vermont, Massachusetts, Rhode Island, Connecticut and Virginia who possessed a qualified exemption from State taxation and whose exemption was observed by the Federal Government in levying a direct tax. Ibid. Such exemption, however, did not serve to exclude them from the enumeration upon the basis of which direct taxation and representation was apportioned.

    III. That the fact that heretofore Indians have been counted only when they were no longer under the protection of the Federal Government indicates a consistent administrative and legislative interpretation of the phrase to the end that Indians are to be counted only upon becoming subject to State taxation.
    Preceding census enumerations have proceeded on the theory that Indians under the protection of the Federal Government were not subject to taxation but that when they left the protection of the Federal Government they became subject to
 



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NOVEMBER 22, 1940

taxation and were therefore entitled to be counted. Since, under this theory, they became subject to State and Federal taxation simultaneously, it is impossible to infer that they were counted solely because they became subject to State taxation. A decision of the Supreme Court in 1935 has negatived the notion that Indians while under the protection of the Federal Government are not subject to taxation by the Federal Government. Superintendent v. Commissioner, 295 U.S. 418. The notion having been dispelled, the practice which was based upon it must likewise be dispelled. Since today Indians under the protection of the Federal Government are subject to taxation by the Federal Government they should be counted in the enumeration of individuals upon which apportionment of representatives and direct taxes is based.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


LAW AND ORDER-JURISDICTION-
APPLICABILITY OF FEDERAL STATUTE-
TRIBAL SOVEREIGNTY

M-31038                                                                                                                                              November 23, 1940.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Commissioner of Indian Affairs has requested this office to prepare an opinion as to the bearing, if any, upon law and order among Indians of the act approved October 9, 1940 "To confer jurisdiction upon certain United States commissioners to try petty offenses committed on Federal reservations" (Public No. 817, 76th Cong., 3d sess., H.R. 1999). The Commissioner reports that it was the informal opinion of this office while the act was pending in Congress that if the act were passed it would be without effect except in matters already within the jurisdiction of the Federal district courts. He calls attention, however, to the discussion of the bill on the floor of the House indicating that some members of that body did think that the bill would include matters internal to Indian tribes not now subject to the jurisdiction of the Federal courts. A formal opinion of the Solicitor is desired which can be distributed to the field officers concerned with law enforcement among Indians.

    Section 1 of the bill, which contains most of the provisions which are significant to this question, provides that:

    "* * * any United States commissioner specially designated for that purpose by the court by which he was appointed shall have jurisdiction to try and, if found guilty, to sentence persons charged with petty offenses against the law, or rules and regulations made in pursuance of laws, committed in any place over which the Congress has exclusive power to legislate or over which the United States has concurrent jurisdiction, and within the judicial district for which such commissioner was appointed. The probation laws shall be applicable to persons so tried before United States commissioners. For the purposes of this Act the term 'petty offense' shall be defined as in section 335 of the Criminal Code (U.S.C., title 18, sec. 541). If any person charged with such petty offense shall so elect, however, he shall be tried in the. district court of the United States which has jurisdiction over the offense. The commissioner before whom the defendant is arraigned shall apprise the defendant of his right to make such election and shall not proceed to try the case unless the defendant after being so apprised, signs a written consent to be tried before the commissioner."
    Section 2 provides that an appeal shall lie from cases of conviction by the United States Commissioners to the district court of the United States for the district in which the offense was committed. The section also directs the Supreme Court to provide rules of procedure and practice for the trial of cases before the Commissioners and for appeals to the district courts.

    Section 3 provides the standard of compensation to the Commissioners for services rendered under the act.

    Section 4 directs that the act shall not be construed as repealing or limiting the existing jurisdiction of United States Commissioners, particularly Commissioners for the national parks and Commissioners in Alaska.

    Section 5 excludes from application of the act the District of Columbia.

    This act, in my opinion, provides an alternative procedure for the prosecution of petty offenses which are now within the jurisdiction of the Federal district courts. It accomplishes this by empowering the United States Commissioners to try and sentence persons charged with the commission of petty offenses on Federal reservations, provided that the defendant does not elect to be tried by the Federal district court which has jurisdiction over the offense. The act does not create any new Federal offenses nor make any substantive change in Federal law.
 


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