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    Congress, by the Indian Civil Rights Act of 1968, authorized and directed the Secretary of the Interior to "have prepared, to the extent determined by the Secretary . . . to be feasible, an accurate compilation of the official opinions, published and unpublished, of the Solicitor of the Department of the Interior relating to Indian affairs . . .". 25U.S.C. § 1341. These volumes represent an endeavor to carry out that mandate.

    Some of the opinions included here have previously appeared in the series entitled Decisions of the Department of the Interior Relating to Public Lands (cited "L.D.") and its continuation, Decisions of the Department of the Interior (cited "I.D."). Most, however, have never before been published. Thus, an extremely valuable, but largely inaccessible, source for the study of Indian law has become available to the public for the first time.

    The opinions of the chief legal officer of the Department of the Interior, which has primary responsibility for the management of Indian affairs, often have implications reaching far beyond the perimeters of ordinary administrative decisions. They deal not only with matters arising from the day-to-day functioning of the Bureau of Indian Affairs, but also interpret major Indian statutes, determine the status of Indian land and rights in natural resources, define tribal governmental powers and analyze many other subjects of vital import to Indian tribes and Indian people.

    The utility of the opinions in these volumes is not that they have binding effect but that they are often accorded "great weight" by the courts. See United States v. Jackson, 280U.S. 183, 193 (1930) and Udall v. Tallman, 380 U.S. 1 (1965). The extensive index provided in these volumes will hopefully facilitate efforts of practitioners in finding the more important and useful opinions and legal conclusions of administrative officers.

    It should be noted that, while every effort was made to find all existing opinions, inevitably, in a project of this scope, some will have inadvertently been missed. (Seven opinions, located after this compilation was sent to the printer, are included in the Addenda.) Moreover, it was determined at the time the compilation was sent to the printer that the 1968 Act authorized publication only of those opinions signed by the Solicitor or Deputy Solicitor. Therefore, decisions and opinions of other officials, such as Assistant Secretaries and Associate Solicitors, are not included, unless they were expressly approved by the Solicitor.

    It is expected that supplements to this compilation will be published periodically. In the mean time, recent important opinions can be located through the Index-Digest published by the Office of Hearings and Appeals of the Department of the Interior, which indexes all opinions included in the annual volume of Interior Decisions as well as major unpublished opinions.

    This compilation was prepared in the Office of the Solicitor, under the direction of Deputy Solicitors Raymond C. Coulter and David E. Lindgren, by the staff of the Indian Civil Rights Task Force.
 

D.-42071                                                                                                                                          October 8, 1917.

The Secretary of the Interior.

DEAR MR  SECRETARY:

    My opinion is requested on certain matters submitted by the Indian Office in connection with per capita payments to the members of the Stockbridge and Munsee Tribes of Indians, as authorized by the act of May 18, 1916 (39 Stat., 123, 156), which reads as follows:

There is hereby appropriated the sum of $95,000, to be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians, for the payment of the members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the Act of Congress of March third, eighteen hundred and ninety-three, equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said Act, and such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March third, eighteen hundred and ninety-three, entitled, "An Act for the relief of the Stockbridge and Munsee Tribes of Indians of the State of Wisconsin."

    The questions are as to what persons are entitled to share in these funds and also whether the fifteen-dollar fee authorized to be collected in determining the heirs of deceased Indians is chargeable in connection with the distribution of such funds.

    The particular cases in which the above questions are raised involve the estates of Harriette Bennett and George J. Bennett, deceased Stockbridge Indians of the Keshena Reservation in Wisconsin. Harriette died in 1907. She was married twice, her first husband being Joseph Martin, who died in 1874. Three children were born of this marriage. Her second husband was George J. Bennett, who died in 1895. There were no children born of this marriage, but it appears that George had several children by a former marriage. Neither Harriette nor George was ever allotted land so far as the record shows, but under the provisions of the act of May 18, 1916, supra, their heirs are claimants of what would have been the parents' shares in the funds appropriated by said act had they lived. The share of each, Harriette and George, is estimated to be $567.33.

    The Wisconsin statutes provide:

The widow, if any, shall be allowed all her articles of apparel and ornaments and all the wearing apparel and ornaments of the deceased, the household furniture of the deceased not exceeding in value $250, and other personal property to be selected by her not exceeding in value $200. This allowance shall be made when the widow waives the provision made for her in the will of her husband or when none is made for her as well as when he dies intestate.

    In determining the heirs and distributing the estate of Harriette Bennett, the Department, on May 21, 1917, in approving the recommendation of the Indian Office treated her share in the above funds as part of her estate, dividing it equally among the three children born of the marriage with her first husband, Joseph Martin. It was also found that Harriette under the above provisions of the Wisconsin statutes was entitled to $200 of the share of her second husband, George J. Bennett, and this sum was also divided equally among her children by the first marriage.

    The language of the act of May 18, 1916, supra, provides that "such payments shall be made upon the certificate and order of the Commissioner of Indian Affairs upon claims being filed with him, showing to his satisfaction that such claimants, or the ancestors of such claimants, were enrolled under the Act of March 3, 1893." This provides only for payments to claimants living or to claimants whose deceased ancestors were enrolled under the act of March 3, 1893. The usual definition of "ancestor" is one who has preceded another in a direct line of descent. In contemplation of the said act of May 18, 1916, George J. Bennett was not the "ancestor" of either Harriette Bennett or of the children by her first husband. Furthermore, the Wisconsin statutes provide that a selection must be made by the widow of "other personal property" of the deceased husband "not exceeding in value $200." The death of George as well as that of Harriette occurred prior to the passage of said act of May 18, 1916, consequently it was not possible for her to make the required selection so far as the funds in question are concerned. The funds as appropriated are communal in their nature, and at the time of George's death his share had not only not been distributed but was not in existence: hence the provisions of the Wisconsin statutes of allowance and distribution above quoted do not apply in the distribution of his estate, as George, at the time of his
 

death, did not have such an interest in the undivided funds of the tribe as would sustain the right of selection by the widow under said statutes.

    The proper distribution of the personal or individual share of Harriette Bennett is to the children by her first husband in equal parts, and that of the share of George Bennett to his children in equal parts without any deduction from his share on account of his widow, the said Harriette Bennett.

    In determining the heirs of Harriette Bennett on May 21, 1917, a fee of $15 was charged against said heirs under the provisions of the act of May 18, 1916 (39 Stat., 123, 127) The original authority for the collection of this fee was contained in the act of June 30, 1913 (38 Stat., 77, 80), in connection with an appropriation "for the purpose of determining the heirs of deceased Indian allottees pursuant to the act of June 25, 1910 (36 Stat., 855, 856)." The authority was continued in subsequent Indian appropriation acts, and in each instance was in connection with an appropriation for determining the heirs of deceased Indian "allottees." The act of June 30, 1913, provided for the collection of the sum of $15, to cover the cost of determining the heirs to the estate of said deceased allottee."

    The act of June 25, 1910, was for the purpose primarily, at least, of determining the heirs of deceased Indians to whom allotments of land had been made, the act providing "that when any Indian to whom an allotment of land has been made dies before the expiration of the trust period the Secretary of the Interior shall ascertain the legal heirs of such decedent."

    That act involves the determination of heirs to personal or individual property, while the money appropriated by the act of May 18, 1916 (39 Stat., 123, 156), was an additional communal fund authorized to be distributed per capita to those members of the Stockbridee and Munsee Tribes of Indians who were enrolled prior to March 3, 1893. This is in no sense such property as was contemplated by the act of May 18, 1916 (39 Stat., 123, 127), and prior similar acts authorizing the collection of a fifteen-dollar fee in connection with the work of determining the heirs of deceased Indian allottees; consequently there is no authority for requiring the heirs under that act to pay such fee-in fact, the funds involved in the act of May 18, 1916 (39 Stat., 123, 156), are not only tribal in character but under its provisions claimants of the shares of deceased ancestors take direct and not by inheritance.

D-40462                                                                                                                                              October 31, 1917.

The Honorable
The Secretary of the Interior

DEAR MR. SECRETARY:

    My opinion has been requested as to certain questions presented in communications from the Commissioner of Indian Affairs and the Superintendent for the Five Civilized Tribes of Oklahoma.

    1. The first question presented is as to whether a tract of land stated to be one acre in extent desired by school district No. 23 of Creek County, Oklahoma, for school purposes and lying within the homestead selected March 9, 1902, for Annie Scott, a minor full-blood Creek Indian, to wit, the NW. 1/4, Sec. 15, T. 19, R. 9, may be acquired through condemnation proceedings. It appears that the guardian of the Indian has declined to sell.

    The agreement of March 8, 1900, with the Creek Tribe of Indians, which was ratified and confirmed by the act of March 1, 1901 (31 Stat., 861), provided in Section 3 for an allotment as a general rule of 160 acres of land. Section 7 provided that the allotment should not be alienable before the expiration of five years from the ratification of the agreement, except with the approval of the Secretary of the Interior. The section then provided-

Each citizen shall select from his allotment forty acres of land as a homestead, which shall be nontaxable and inalienable and free from any incumbrance whatever for twenty-one years, for which he shall have a separate deed, conditioned as above *     *     *.

    The supplemental Creek agreement ratified by the act of June 30, 1902 (32 Stat., 500), provided in section 16-

Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefore, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear.

    The act of June 30, 1902, was carried into effect by the President's Proclamation of August 8, 1902 (32 Stat. 2021).
 

    The act of March 3, 1901 (31 Stat., 1058, 1084), provides in section 3-

That lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

    The act of May 27, 1908 (35 Stat., 312), provided for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes. It contains the following provisions in section l-

    * * * All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations, concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this Act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this Act. No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty-three inclusive, or an act entitled "An act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes," approved February twenty-eighth, nineteen hundred and two (Thirty-second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma.

    Section 10, act of May 29, 1908 (35 Stat., 444), provides in part-

* * * The Secretary at the Interior also shall have authority to remove the restrictions on the sale of such lands, not to exceed two acres in each case, as allottees of the Five Civilized Tribes, including full-bloods and minors, may desire to sell for school purposes.

    The act of March 3, 1901 (31 Stat., 1084), in brief, authorizes condemnation of lands allotted to Indians for public purposes. This act is general in its operation. Congress, however, has legislated specifically as to the homestead tracts allotted to Creek Indians, especially as to full-blood Indians. The act of May 27, 1908, supra, prohibits the alienation or any incumbrance upon such homestead prior to April 26, 1931, except when the restrictions are removed for the sale and disposal of the proceeds for the benefit of the Indian. Congress then qualified the effect of the restriction of alienation so as not to "prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands," etc. The act of May 27, 1908, prohibits the alienation of the homestead of a full-blood minor Creek Indian and permits the exercise of the right of eminent domain solely for "rights of way for public purposes." The term "rights of way" can not be construed to include land desired for school purposes. Under section 6 of the act of May 27, 1908, the property of a minor allottee is subject to the jurisdiction of the probate court of the State of Oklahoma, but it is provided-

That no restricted lands of living minors shall be sold or encumbered, except by leases authorized by law, by order of the court or otherwise.

    Section 10 of the act of May 29, 1908, supra, provides for a method of conveyance of restricted land of this character for school purposes when the allottee desires to sell.

    The result of the legislation by Congress appears to be that the right of eminent domain as to a homestead of a full-blood minor Creek Indian is confined to the acquirement of rights of way, Congress having specified the particular purpose for which the right of eminent domain may be invoked, thus excluding other purposes from the exercise of that right. Its intention appears to have been to permit the acquisition of lands of this restricted character desired for school purposes by means of the voluntary conveyance of the allottee or the guardian of a minor allottee. The general provisions of the act of March 3, 1901 (31 Stat., 1058), having been superseded by the specific provisions relating to the Creek restricted lands, it accordingly follows that there is no right of eminent domain
 

under the existing law for the purpose of securing a school site upon the homestead of Annie Scott.

    2. A similar question is presented in the case of Nancy Hogtoater, a Cherokee Indian, who apparently has received an allotment or homestead under sections 11 and 13 of the act of July 1, 1902 (32 Stat., 716), and as to which the restrictions of the act of May 27, 1908, supra, apply. It appears that a school district here erected a building upon the land of the Indian without securing her consent or that of the Secretary of the Interior, and without attempting to institute condemnation proceedings. Under the views above expressed in the case of Annie Scott there is no right of eminent domain for school purposes. It may be suggested that the matter may be settled through the sale of the area desired by the school district under the act of May 29, 1908, supra. In the event that the school district declines to compensate the Indian for the area appropriated the proper legal proceedings may be instituted against it.

    3. The question is also presented as to whether the town of Kusa may condemn Creek restricted lands as a right-of-way for a water pipe line. I assume that the town of Kusa is a municipal corporation under the laws of Oklahoma: that the water pipe line is to be used for municipal purposes, and that the Creek lands involved are of the character subject to the restrictions contained in the act of May 27, 1908, supra. This act relative to the right of eminent domain provides as follows--

No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty three inclusive, of an act entitled "An act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes," approved February twenty eighth, nineteen hundred and two (Thirty second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma.

    Section 13 of the act of February 28, 1902, grants the right of way and power of condemnation as to railway, telegraph and telephone lines. The succeeding sections of the act provide the method by which such rights of way can be acquired. The act of May 27, 1908, permits the exercise of the right of eminent domain "in condemning rights of way for public purposes." The term "rights of way" is general and includes all forms and in addition the particular kinds of right of way provided for in the act of February 28, 1902, supra, may still be acquired under the provisions of that act. I am, accordingly, of the opinion that the town of Kusa may exercise the right of eminent domain for this purpose. A similar question was suggested as to the Wichita Pipe Line Company, but since it now appears that the right of way desired by it is not for public use no consideration as to the question of eminent domain is necessary.

    4. The next question presented is as to whether the right of eminent domain may be exercised over restricted lands of the Choctaw and Chickasaw Indians for the purpose of securing a public highway, not following a section line.

    The allotments and homesteads of the Choctaw's and Chickasaw's were made under the act of July 1, 1902 (32 Stat., 641). and under similar provisions as the remainder of the Five Civilized Tribes. The allotments are also subject to the restrictions contained in the act of May 27, 1908, supra. The act of April 26, 1906, (34 Stat., 137), provides in section 24--

That in the Choctaw, Chickasaw, and Seminole nations public highways or roads two rods in width, being one rod on each side of the section line, may be established on all section lines; and all allottees, purchasers, and others shall take title to such land subject to this provision *     *     *

    The question arises as to whether the right of eminent domain may be exercised when the road does not follow the section line as provided in the above act.

    The act of May 27, 1908, permits, as stated above in relation to the town of Kusa, the exercise of the right of eminent domain in securing "rights of way for public purposes." The privilege which one person, or a particular description of persons, may have of passing over the land of another in some particular line is termed a right of way. A right of way may be public or private. Public ways, as applied to ways by land, are usually termed highways or public roads and are such ways as every citizen has a right to use. (See Kripp v. Curtis, 11 Pacific, 879; Poole v. Greer, 65 Atlantic 767.) A public highway, therefore, is a right of way within the meaning of the act of May 27, 1908, and the right of eminent domain may be exercised for that purpose.

    5. The next question presented is as to whether the regulations of this Department concerning public roads over Indian lands and approved June 30, 1914, apply to the Five Civilized Tribes.

    These regulations were adopted under the provisions of section 4 of the act of March 3, 1901 (31 Stat., 1058, 1084)) which provides--
 

    That the Secretary of the Interior is hereby authorized to grant permission upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which have not been conveyed to the allottees with full power of alienation.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

                                                                                                                    December 11, 1918.

The Secretary of the Interior.

SIR:

    My opinion has been requested as to the question arising under the act of February 8, 1918, Public No. 98, providing for the sale of the coal and asphalt deposits in the segregated mineral land in the Choctaw and Chickasaw Nations, Oklahoma, presented in a communication from the Panama Coal Company dated November 23, 1918, to Mr. Gabe E. Parker, Superintendent for the Five Civilized Tribes. The question as stated in the letter of the Superintendent to the Commissioner of Indian Affairs dated December 3, 1918, concerns the application of royalties heretofore paid by the Panama Coal Company in the event that it purchases the coal deposits upon the tract leased. The Superintendent's letter states that the president of that company asks:

    How the Panama Coal Company can be given credit for the royalties paid by it to the Choctaw and Chickasaw tribes on its coal lease, in payment of the purchase price of the coal, and requests to be furnished with the Department's construction of the meaning of the Act of Congress of February 8th, 1918 (Public No. 98, 65th Congress), concerning credits that may be given lessees for royalties paid by them in the purchase of the coal deposits. The records of this office show that there is to the credit of said coal company as advanced royalty $882 and a credit of $5,895.21, as money paid for failure to produce coal, making a total credit to the company of $6,777.21 that can be used in payment of royalties on coal produced. There has been mined by this company under its said lease a total of 170, 898.21 tons of coal, but no coal is reported as having been mined since December 1917, and only 23,758.00 tons have been mined since September 30th, 1911. It also appears that said coal company purchased the surface of the land reserved by it for mining purposes under the Act of February 19th, 1912, which was paid for in full and deed thereto issued and delivered to said company.

    I presume that the advance royalty of $882 referred to is the royalty required to be paid under Sec. 29 of the Act of June 28, 1898 (30 Stat., 495-510) , and that the credit of $5,895.21 of money paid for failure to produce coal is the payment required by the regulations of this Department promulgated December 6, 1907.

    Section 4 of the Act of February 8, 1918, provides in part:

That such deposits of coal or asphalt on the leased lands shall be sold subject to all rights of the lessees and that any person acquiring said deposits of coal or asphalt shall take the same subject to said rights and acquire the same under the express understanding and agreement that the Department of the Interior will cancel and withdraw all rules and regulations and relinquish all authority heretofore exercised over the operation of said mines by reason of the Indian ownership of said prop-

erty and that said properties thereafter shall be operated under and in conformity with such laws as may be applicable thereto, and that advance royalty paid by any lessee and standing to the credit of said lessee shall be credited by said purchaser to the extent of the amount thereof, and that no royalties shall be paid by said lessee to said purchaser until the credit so given shall be exhausted at the rate of 8 cents per ton mine run, and that the royalty to be paid thereafter by said lessee to said purchaser shall be 8 cents per ton mine run of coal, and that any lessee may, at any time after completion of such sale, transfer or dispose of his leasehold interest without any restriction whatever: and that any lessee shall have the preferential right, provided the same is exercised within ninety days after the approval of the completion of the appraisement of the minerals as herein provided, to purchase at the appraised value any or all of the surface of the lands lying within such lease held by him and heretofore reserved by order of the Secretary of the Interior and upon the terms as above provided, and shall also have the preferential right, except as herein otherwise provided, to purchase the coal deposits embraced in any lease held by such lessee by taking same at the highest price offered by any responsible bidder at public auction at not less than appraised value; and if any lessee becomes the purchaser of any coal deposits on any undeveloped lease owned by him, then one-half of the advance royalties paid by any lessee on such lease shall be credited on the purchase price thereof, and any residue of advance royalties theretofore paid by any lessee shall be credited to such lessee on account of any production of coal on any other lease which he may own and operate.

    Assuming both the advance royalty and the payments made by this company for failure to produce coal as required by the regulations of December 6, 1907, constitute "advance royalties" such as might be credited under the above section 4 should the lessee become the purchaser it should be pointed out that the privilege afforded the lessee of accrediting such advance royalties is limited to undeveloped leases. Section 4 gives the lessee a preferential right to purchase the coal deposit embraced in a lease held by him by taking it at the highest price offered by any responsible bidder at public auction and not less than the appraised value. The act is silent as to the purchase of a developed lease by the lessee. In such case if another party purchases
the deposit, the lessee would have the privilege of continuing to mine coal and accrediting the advance royalties to the sums due for the coal mined after the sale. In other words, the purchaser must pay the appraised value or the highest bid offered without any deduction for advance royalties standing against the tract. Where the lease is a developed one the lessee stands in the same position as any other purchaser.

    I have accordingly to advise you that since the report of the Superintendent discloses that the lease of the Panama Coal Company is a developed lease, there is no authority under the act whereby it may accredit one-half of the total credit now standing to it to the purchase price in the event that is should become the purchaser at the sale.

    The Superintendent also in his letter of December 3, 1918, submits this further question as to which you desire my opinion.

    It appears that an error was made in describing tract No. 53-A Sterrie and Rice lease No. 1, as shown on page 65 of the printed descriptive, in that it should be 640 acres appraised at $34,000.00 instead of 40 acres appraised at $2,000.00. The 600 acres omitted from this leased tract is parts of unleased tracts, Nos. 53 and 54, as shown on page 16 of the descriptive list.

    Tract 53 is described in said descriptive list as containing 920 acres, appraised at $46,000.00. The correct description thereof is 520 acres of the appraised value of $25,000.00. Tract 54 is described as containing 508.18 acres appraised at $30,409.80. The correct description thereof is 308.18 acres of the appraised value of $18,490.80. The correct description of said leased tract No. 53-A is 640 acres of the appraised value of $34,000.00. All of the land involved is advertised to be sold at the appraised value, and in my judgment the correct description and appraisement of each tract can be announced at the auction sale and the tracts offered. Please advise if this can be done or whether it will be necessary to withdraw all three tracts from sale.

    I concur in the view of the Superintendent that the correct description and appraisement of each, tract may be announced at the auction sale and the tracts offered and that it is not necessary to withdraw those three tracts from sale.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

M-2655                                                                                                                                                     March 3, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    By letter dated February 24th the Assistant Commissioner of Indian Affairs presented for opinion the question whether a sale of inherited land by a full blood Indian heir thereby removed all control over funds in the hands of this Department derived from the use of such inherited land.

     Ordinarily, a removal of restrictions by the issuance of so-called "certificates of competency" carries with it an implied assumption that the person therein named is capable of protecting his own interests, and needs no further supervision. The advisability of turning over to such persons all funds under the control of the Department need not now be considered, as the question before me at this time rests on a somewhat different foundation. Yarna Richard, a full blood Creek Indian died in 1910, and under section 9 of the act of May 27, 1908 (35 Stat., 312), all restrictions against alienation of the surplus allotment were there upon removed, except, that the inherited interest of any full blood Indian heir therein could be conveyed only with the approval of the proper court. Among such heirs of Yarna Richard we find Jennetta Barnett, nee Richard, also a full blood. Her inherited interest in the surplus allotment of her mother was conveyed to the Prairie Oil & Gas Company by deed approved by the County Court of  McIntosh County, Oklahoma, on October 20, 1920. The Indian and her attorney both now demand the surrender of certain moneys paid to the Superintendent of the Five Civilized Tribes by the Prairie Oil & Gas Company, as her share of the oil and gas productions derived from these premises prior to October 20, 1920.

    Admittedly, all restrictions against alienation of  Jennetta Barnett's interest in this land were removed by the approval of her deed by the court. It does not necessarily follow, however, that such removal of restrictions carried with it further control of all funds in your hands derived from the use of such land. Until approval of the deed was had, these lands remained "restricted," Parker v. Richard (250 U.S., 235). As such they come within the purview of section 2 of the act of 1908, which declares:

That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise. *     *     *

    A further provision in the same section expressly makes the jurisdiction of the probate courts of Oklahoma over the lands of minors and incompetents "subject to the foregoing provision." While in the case now under consideration no oil and gas lease on the usual form was ever submitted to or approved by you, yet the funds now in the hands of the Superintendent for the Five Civilized Tribes were paid by the Prairie Oil & Gas Company under a compromise agreement which was approved by you November 22, 1920; being the exact amount of royalty which would have accrued to this Indian had a regular lease on the usual form covered these premises. Resorting to the familiar maxim "Equity regards as done that which should have been done," these funds can be considered as coming into your hands as if paid in the usual manner under a formal lease. Among the regulations governing leases of this kind, we find a provision under which moneys collected as royal ties may be withheld, or paid in whole or in part, from time to time as may be for the best interests of the lessor or his heirs.

    I am of the opinion, therefore, that removal of the restrictions in the manner indicated does not thereby terminate control of funds in your hands derived from the use of such lands prior to the removal of the restrictions.

                                                                                                                    CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

M-2047                                                                                                                                  March 11, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested on a question raised by the Indian Office which can be stated thus:
 

    Has the Secretary of the Interior authority to prescribe regulations, binding on the probate courts of Oklahoma, governing sales of inherited interests in lands allotted to deceased members of the Five Civilized Tribes where such interests belong 40 minors or incompetents?

    This involves a construction of several provisions of the act of May 27, 1908 (35 Stat., 312), from section 9 of which it will be seen that the death of any allottee of the Five Civilized Tribes operates to remove all restrictions against alienation of said
allottee's land, except that the interests of any full-blood Indian heir therein can be conveyed only with the approval of the court having jurisdiction over the settlement of the estate of the deceased allottee. A further provision in the same section is not material here, dealing as it does with the homesteads of deceased allottees leaving surviving issue born since March 4, 1906; the home homesteads in such cases remaining inalienable until April 26, 1931, unless the restrictions are removed earlier in the manner provided in the act.

    Turning to section 2 we find that the jurisdiction of the probate courts of the State "over lands of minors and incompetents" is expressly made subject to certain other provisions found in the act. These, however, deal with leases and other matters not directly involved in the question now before me. Section 6 of the act reaffirms the jurisdiction in the probate courts of the State over the persons and property of minor allottees and authorizes you to appoint local representatives to investigate the conduct of guardians and curators having control of the estates of such minors.

    In the administration of the estates of deceased allottees of the Five Civilized Tribes, the probate courts of the State act as Federal rather than State agencies. Truskett v. Glosser (236U.S. 223); Parker v. Richard(250 U.S., 235). Further, said courts must look for guidance to the Federal Statutes rather than to the laws of the State. Barbre v. Hood (228 Fed., 658) . Molone et al. v. Warnsley, decided by the Supreme Court of Oklahoma January 25, 1921 (Okla. Ap. Ct. Rep. Vol. XIV, page 131). In the latter case the court used the following language:

    It is now well settled in this jurisdiction that the county courts, in approving conveyances of full-blood Indian heirs, perform the duty of federal agents, and are controlled and regulated by the laws of the Congress, and in determining the validity of the acts of the county court in approving conveyances executed  by Indian heirs we must look solely to the acts of Congress. Having arrived at the conclusion announced herein, it necessarily follows that the state Legislature has no power to enact a statute that affects the validity of conveyances by full-blood Indian heirs this right and power being vested exclusively in the Congress of the United States.

    The same court held in an earlier case,--Haddock et al. v. Johnson et al., decided December 14, 1920, that the failure of the county court to follow Rule 10 of the "rules of procedure in probate matters" adopted by the State Supreme Court, did not invalidate the conveyance of an Indian heir. It follows, of course, that the officers of the State by legislative enactment or otherwise are powerless to defeat the intent of Congress relating to the estates of these Indians, and to ascertain such intent they must look only to the Federal statues relating thereto. I do not find that the jurisdiction cast by Congress on the probate courts of the State in cases of this kind, is limited to the approval of those conveyances only had in accordance with such rules and regulations as you may prescribe. In a recent case before the Supreme Court of the United States, Harris v. Bell (41 Supreme Court Rep., 49), the court used the following language:

    Section 6 of the Act of 1908, and other congressional enactments, explicitly subject the persons and property of Indian minors of the Five Civilized Tribes to the jurisdiction of the probate courts of Oklahoma. In that state the county courts are the probate courts.

    Section 9 of the same act declares: *     *     *

    Of course, the purpose in requiring any approval is to safeguard the interests of the full blood Indian heir. Where he is a minor, he can convey only through a guardian; and no court is in a better situation to appreciate and safeguard his interests than the one wherein the guardianship is pending. Besides, as a general rule, a guardianship carries with it exclusive power to direct the guardianship and to supervise the management and disposal of the ward's property. It is so in Oklahoma. This rule is so widely recognized and so well grounded in reason that a purpose to depart from it ought not to be assumed unless manifested by some very clear or explicit provision. The Act of 1908 contains no manifestation of such a purpose outside the proviso in section 9. That proviso seems broad, but so is the provision in section 6, subjecting the persons and property of minor Indians to local guardianship. As both are in the same act, they evidently were intended to operate harmoniously, and should be construed accordingly.

    I am of the opinion, therefore, that the question presented should be answered in the negative.
 
                                                                                                                     CHARLES J. MAHAFFIE,
                                                                                                                                                        Solicitor.

M-4017                                                                                                     June 4, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    I am in receipt by your reference of a communication from the Indian Office submitting for opinion three questions arising in connection with section 4 of the act of March 3, 1921, Public No. 360, which reads:

    That from and after the passage of this Act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonds received from the sale of  leases, and the royalties received during the previous fiscal quarter, and so long as the in come is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, and to pay for maintenance and education to the parents or natural guardians or legal guardians actually having minor members under twenty one years of age personally in charge $500 quarterly out of the income of said minors all of said quarterly payments to legal guardians and adults, not having certificates of competency to be paid under the supervision of the Superintendent of the Osage Agency, and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma State, county, or school bonds, or place the same on time deposits at interest in banks in the State of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That at the beginning of each fiscal year there shall first be reserved and set aside out of the Osage Tribal funds available for that purpose a sufficient amount of money for the expenditures authorized by Congress out of the Osage funds for that fiscal year: Provided further, That all just existing individual obligations of adults not having certificates of competency outstanding upon the passage of this Act, when ap proved by the Superintendent of the Osage Agency, shall be paid out of the money of such individual as the same may be placed to his credit in addition to the quarterly allowance provided for herein.

The questions presented are:

1. Whether the parents or guardians of minors not enrolled and not allotted shall be paid inherited shares in full or restricted to $500 per quarter.

2. Whether legal guardians of incompetent adults shall be paid the entire income or whether they shall be restricted to $1,000 per quarter, the same as incompetents who have not had legal guardians appointed.

3. Whether legal guardians are bound to invest the funds of their wards in the same classes of securities in which the superintendent is authorized to invest the funds of incompetents who have not had guardians appointed.

    Prior legislation relating to the Osage Indians deals in part with the payment of certain funds to members of this tribe. See section 4, act of June 28, 1906 (34 Stat., 539)) and section 5, act of April 18, 1912 (37 Stat., 586). The funds accruing to these Indians have successively increased until the amount due each member of the tribe now approximates $10,000 annually. Payments heretofore made under prior legislation have largely been wasted in riotous living and otherwise (H.R. No.
1278, 66th Congress, 3rd Session). Congress decided to adopt a different policy and by the act of March 3, 1921, directed that "from and after the passage" of that act, quarterly distribution should be made of certain moneys accruing to members of this tribe substantially as follows: To adult members having certificates of competency, their entire share either as members or as heirs of deceased members: to incompetent adults $1,000 quarterly and to the parents or legal guardians of minors $500 quarterly. Where incompetent adults have legal guardians the entire share due such members is to be paid to their guardians, yet the act further provides that "all of said quarterly payments to legal guardians and adults not having certificates

of competency to be paid under the supervision of the Superintendent of the Osage Agency." [Italic supplied.] Provision is also made for investment of the remainder due incompetent adults and minors in certain classes of security or by deposit in banks in the State of Oklahoma.

    We are not now concerned with payment to competent adults as undoubtedly the shares due such are to be turned over for expenditure without supervision. While the language with reference to payments to incompetents and minors could have been more happily framed, yet an analysis of the entire act leaves the matter reasonably free from difficulty. The word "paid" under a narrow construction is confined to the naked delivery of the amount due to the person entitled. In a broader sense it includes the discharge of an obligation, the settlement of an indebtedness or the rendering of that which is due. When used in connection with other words the matter must be so construed as to give effect to the entire expression. Evidently the statute contemplated more than the mere delivery by the Superintendent of the amount due to legal guardians and to incompetent adults when it directed that all of said quarterly payments should be paid under the supervision of the Superintendent.

    A statute, of course, is to be construed in the light of its obvious policy and the manifest intent here is that incompetent adults including those having legal guardians are to have a quarterly allowance of $1,000 for maintenance and support and that each minor is to be paid $500 quarterly for a like purpose, including education. The remainder of the shares due such members is to be conserved for their future benefit by investment in certain securities designated in the act or deposited in bank to their credit. To hold otherwise would defeat the evident purposes of the act, for, as pointed out by the Superintendent, if the entire share is to be turned over to legal guardians for expenditure without supervision it would be a comparatively easy matter for the remaining in competent members of this tribe to procure appointment of legal guardians and thereby obtain release of all their funds from further supervision after payment to such guardians. The probate courts of the State, and the guardians appointed by those courts, as well as the Superintendent, are equally bound by the laws of Congress relating to these payments and the act of March 3, 1921, is the most recent expression by Congress in the matter.

    Answering the second question first, I am of the opinion that the entire income due adults not having certificates of competency and for whom legal guardians have been appointed should be paid quarterly to such guardians, but that the disposal of such funds, including expenditure of the quarterly allowance and investment of the remainder, is subject to supervision by the Superintendent. Further, that legal guardians are bound by the act of March 3, 1921, and the remainder of these shares can be invested only in those securities designated in the act or else placed on time deposit in bank in the State of Oklahoma. This answers also the third question.

    As to the first question, the act of June 28, 1906, supra, provided for a final roll of the Osage Tribe, excluding children born since July 1, 1907, who did not receive allotments and who, in their own right, do not participate in the distribution of tribal funds. As so constituted, the tribal roll contains some 2,200 names. Many of the original members have since died and in some cases their shares have passed by inheritance into the hands of minors whose names do not appear on the final roll. Not being on the tribal roll, these minors are in the same status as persons who are not members of the tribe, hence their shares should be paid in full to their parents or legal guardians.

M-5379                                                                                                                                                        July 14, 1921.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion is asked upon request of the Commissioner of Indian Affairs "as to the status of an Indian allottee after the expiration of the trust period and before the issuance of a patent in fee."

    The Commissioner refers to two recent decisions in one of which the court held that the trust period of the allotment having expired before the Indian executed a deed for the land he made a valid conveyance notwithstanding the fact that a patent in fee had never been issued to him, while in the other case the court reached a different conclusion. The main question, therefore, is as to the right of an Indian to alienate his land upon expiration of the trust period without departmental approval and before issuance of the final or fee patent provided for by law; in other words whether or not the legal title passes to or becomes vested in the Indian by operation of law immediately upon the expiration of the trust period and there-
 

after the issuance of a patent in fee to him becomes a more ministerial act.

    The act of February 8, 1887 (24 Stat., 388)) in section 5 thereof contains a provision for the issuance of patents upon allotments as follows:

That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue there for in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.

    By virtue of the approval of his allotment an Indian allottee acquires an equitable title in the land but the legal title remains in the United States. The next step in the administration of the law is the issuance of an instrument called a trust patent in which it is declared that the United States does and will hold the land for 25 years in trust for the Indian or his heirs. It has been concluded that the use of the word "patent" to describe this instrument was not a happy choice of language. Thus it was said in the case of United States v. Rickert (188 U.S., 432, 436), referring to section 5 of the act of 1887:

The word "patents," where it is first used in this section, was not happily chosen to express the thought which, it is clear, all parts of the section being considered, Congress intended to express. The "patents" here referred to (al though that word has various meanings) were, as the statute plainly imports, nothing more than instruments or memoranda in writing, designed to show that for a period of twenty five years the United States would hold the land allotted, in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and subsequently, at the expiration of that period--unless the time was extended by the President--convey the fee, discharged of the trust and free of all charge or incumbrance. In other words, the United States retained the legal title, giving the Indian allottee a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the President, he would be entitled to a regular patent conveying the fee. This interpretation of the statute is in harmony with the explicit declaration that any conveyance of the land, or any contract touching the same, while the United States held the title in trust, should be absolutely null and void. So that the United States retained its hold on the land allotted for the period of twenty-five years after the allotment, and as much longer as the President, in his discretion, should determine.

    It is of some significance in this connection that in the act of May 8, 1906 (34 Stat., 182), which amended section 6 of the act of 1887, the following language is used: "that at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee as provided in section 5 of this act (1887)" etc. It is clear that the first or trust patent issued upon an allotment is not and was not intended to be a conveyance of the interest or title of the United States but that the purpose of such patent is to evidence a present trust coupled with a promise to convey in the future. There are instances where owing to the peculiar circumstances the issuance of a patent in fee becomes merely a ministerial act, for instance, as recognizing and confirming a previously exist existing title. The Supreme Court has described a patent as follows (Langdeau v. Hanes, 21 Wall., 521), and (Wright v. Roseberry, 121. U.S. 488, 499):

In the legislation of Congress a patent has a double operation. It is the conveyance by the Government when the Government has any interest to convey but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evidence having the dignity of a record, of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation.

    After the first or trust patent has issued, the United States holds the legal title for the benefit of the Indian allottee who has the equitable title. It
 

is clear that the legal title does not pass to the allottee until the issuance of the patent in fee. At the expiration of the trust period the allottee becomes entitled to a patent in fee but the legal title remains in the United States until the issuance of such patent and the law so provides. Congress might have declared that upon the expiration of the trust period the allottee would become vested of the legal title the same as if fee patent were issued, but this was not done. On the contrary the act of 1887 specifically provides that patent in fee should be issued and the rule in such case is that the legal title remains in the Government until the issuance of the patent. It was held by the Supreme Court in the case of Michigan Land & Lumber Co. v. Rust (168 U.S., 589, 592-3) , as follows:

    Generally speaking, while the legal title re mains in the United States, the grant is in process of administration and the land is subject to the jurisdiction of the land department of the Government. It is true a patent is not al ways necessary for the transfer of the legal title. Sometimes an act of Congress will pass the fee. Strother v. Lucas, 12 Pet. 410, 454; Grignon's Lessee v. Aster, 2 How. 319; Chouteau v. Eckhart, 2How. 344, 372; Glasgow v. Hortiz, 1 Black, 595; Langdeau v. Hanes, 21 Wall 521; Ryan v. Carter, 93U.S. 78. Some times a certification of a list of lands to the grantee is declared to be operative to transfer such title, Rev. Stat. section 2449: Frasher v. O'Connor, 115 U.S. 102; but wherever the granting act specifically provides for the issue of a patent, then the rule is that the legal title remains in the Government until the issue of the patent, Bagnell v. Broderick, 13 Pet. 436, 450: and while so remaining the grant is in process of administration, and the jurisdiction of the land department is not lost.

    The analogy if this character of cases to public land cases is discussed in Lane v. Mickadiet (241
U.S., 201, 207)) as follows:

    "It is undoubted that the fee simple title to the land embraced by the allotment had not passed from the United States and that, as expressly stated in the granting act, the land was held in trust by the United States for the benefit of the allottees to await the expiration of the trust period fixed by law when the duty on the part of the United States of conveying the fee of the land would arise. It is equally undoubted under these conditions that the land was under the control in an administrative sense of the Land Department for the purpose of carrying out the act of Congress. As there is no dispute, and could be none, concerning the general rule that courts have no power to interfere with the performance by the Land Department of the administrative duties devolving upon it, however much they may when the functions of that Department are at an end correct as between proper parties errors of law committed in the administration of the land laws by the Department, it must follow unless it be that this case by some exception is taken out of the general rule that there was no power in the court below to control the action of the Secretary of the Interior and reversal there fore must follow. United States v. Schurz, 102 U.S. 378, 396;Brown v. Hitchcock, 173 U.S. 473; Knight v. Lane, 228U.S. 6."

and on page 209:

    "In other words they must be treated as absolutely excluding the right to review in the courts, as had hitherto been the case under the act of 1887, the question of  fact as to who were the heirs of an allottee. thereby causing that question to become one within the final and conclusive competency of the administrative authority. As it is obvious that the right to review on proper charges of newly discovered evidence or fraud a previous administrative order while the property to which it related was under administrative control, was of the very essence of administrative authority (Michigan Land & Lumber Company v. Rust, 168 U.S. 589), it must follow that the construction upheld would not only deprive the Secretary of the final and conclusive authority which the statute in its context contemplated he should have, but would indeed render the administrative power conferred wholly inadequate for the purpose intended by the statute. And it must be further apparent that the in adequacy of authority which the proposition if accepted would bring about could not be supplied, since it would come to pass that although the property was yet in the control of the United States to carry out the trust, there would be an absence of all power both in the administrative and judicial tribunals to correct an order once rendered, however complete might be the proof of the fraud which had procured it."

    In other words, the period of administrative control ends only with the passing of the legal title. The act of 1887 requires the execution of a patent to convey the fee simple. It is not consistent with
 

the continued existence of administrative control that an allottee may abruptly terminate that control by the simple expedient of executing a conveyance of the land to another.

    Section 2 of the act of June 25, 1910 (36 Stat., 855), authorized an Indian to dispose of his allotment by will "prior to the expiration of the trust period and before the issue of a fee simple patent" only with the approval of the Commissioner and the Secretary. If he may not devise his land "before the issue of a fee simple patent" without the Secretary's approval, it would by analogous reasoning follow he could not dispose of his title by deed, without such approval.

    The Secretary's control extends, like in a public land case, to the time when a conveyance of the legal title is effected and would enable him to refuse such a patent in a proper case--for illustration: by convincing proof it might be established that the holder of the "trust patent" was not the man entitled to the allotment, etc.

    If it be true that the fee title passes to an Indian allottee by operation of law upon expiration of the trust period and the issuance of patent in fee be comes thereafter a mere ministerial act it follows that jurisdiction of the Government over the land comes to an end at the expiration of such period and no further authority exists either for the determination of the heirs of allottees who may die prior to the issuance of a fee patent or for with holding such patents upon evidence showing that the Indian is not entitled to an allotment or that the same was procured through fraud. The Department has taken the position that under the terms of the act of June 25, 1910 (36 Stat., 855), authorizing the Secretary of the Interior to determine the heirs of deceased Indians and providing "that when any Indian to whom. an allotment of land has been made, or may hereafter be
made, dies before the expiration of the trust period and before the issuance of a fee simple patent," the Department's jurisdiction to determine the heirs continues until legal title passes from the United States by the issuance of the final or fee patent.

    The situation upon issuance of a trust patent on an allotment is much like that arising between the United States and an entryman who has made proof of compliance with the law and received a final or patent certificate from the land officers. As to such an entryman it was said in the case of Orchard v. Alexander (157 U.S., 372, 383):

    The Government holds the legal title in trust for him and he may not be dispossessed of his equitable rights without due process of  law. Due process in such case implies notice and hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land Department.

    In Michigan Land & Lumber Co. v. Rust, supra, it was said:

It is, of course, not pretended that when an equitable title has passed the land department has power to arbitrarily destroy that equitable title. It has jurisdiction, however, after proper notice to the party claiming such equitable title, and upon a hearing to determine the question whether or not such title has passed. Cornelius v. Kessel, 128 U.S. 456; Orchard v. Alexander, 157 U.S. 372, 383; Parsons v. Venzke, 164 U.S. 89. In other words, the power of the department to inquire into the extent and validity of the rights claimed against the Government does not cease until the legal title has passed.

     In the case of Brown v. Hitchcock (173 U.S., 473), which reaffirmed the decision in Michigan Land and Lumber Co. v. Rust, supra, it was said: "until the legal title to public land passes from the Government, inquiry as to equitable rights comes within the cognizance of the Land Department.

    In Hawley v. Diller (178 U.S., 476, 488), it was
said:

    The Land Department has authority at any time before a patent is issued to inquire whether the original entry was in conformity with the act of Congress.

    In the case of Parcher v. Gillen (26 L.D., 34). after reference to statutes defining the powers and duties of the Department, it was said among other things:

    A consideration of these decisions interpreting the statutes defining the authority and duties of the officers of the land department, clearly demonstrates that so long as the legal title remains in the government the lands are public within the meaning of those statutes and the laws under which such lands are claimed, or are being acquired, are in process of administration under the supervision and direction of the Secretary of the Interior.

    So long as the legal title remains in the government the Secretary of the Interior, whoever he may be, is charged with the duty of seeing
 

that the land is disposed of only according to law. The issuance of a patent is the final act and decision in that disposition and with it and not before does the supervisory power and duty of the Secretary cease.