Solicitor's Home

penses and salaries of the officers and employees might be paid out of the funds already appropriated for the various offices and bureaus and functions involved, by proration among the different appropriations so as to charge each appropriation with the value of the services rendered to the bureau for which such appropriation is made.⁹

    It is my opinion, accordingly, that the Secretary is authorized to transfer, consolidate or regroup the oil and gas functions of the Department, with the exception of the General Land Office function relating to oil placer mining claims initiated prior to the act of February 25, 1920.¹⁰ This latter function, of course, could be transferred by the President pursuant to Title I, section 1, of the First War Powers Act.¹¹

                                                                                                                                                      FOWLER HARPER,

Re:

Availability of moneys appropriated by Congress to compensate the Pueblos of Picuris and Pojoaque for lands and water rights lost to them under the provisions of the act of June 7, 1924 (43 Stat. 636), to purchase lands for lease to the Ramah Navajos.

(1) That under the acts of June 7, 1924 (43 Stat. 639), and May 31, 1933 (48 Stat. 108), as supplemented by sundry appropriation acts, the compensation funds of the Pueblos of Picuris and Pojoaque may, except where appropriated for the purchase of specified tracts of land, be expended to reacquire lands formerly owned by the Pueblos or to acquire other lands the type and location of which are committed to the discretion and judgment of the governing authorities of the Pueblos and the Secretary of the Interior.

(2) That, subject to administrative determination that the lands to be purchased are in fact being acquired for the benefit of the Pueblos of Picuris and Pojoaque, no legal objection exists to the use of the compensation funds of the two Pueblos in making these purchases.

(3) That since the act of May 25, 1918 (40 Stat. 561, 570), which prohibits additions to, or the creation of, Indian reservations in New Mexico, was intended to prevent executive action unsupported by Congressional authority, the prohibition is without application to land acquisitions undertaken under specific Congressional authority.

    The Superintendent for the United Pueblos Agency, New Mexico, has raised the question of whether the so-called compensation funds of the Pueblos of Pojoaque and Picuris are available for the purchase of lands in what is referred to as the Ramah Navajo area near Ramah, New Mexico. Under date of May 13, 1943, the governing authorities of the Picuris Pueblo requested that $75,000 of it moneys be used for the purchase of "land in the Ramah-Navajo Area, said land to be leased to the Ramah Navajo." A similar request was made by the governing authorities of the Pojoaque Pueblo under date of April 7, 1943. Pursuant to these requests several options have already received the approval of the Department but none of the purchases has been completed.

    The funds to be used in making the proposed purchases accrued from appropriations made by the Congress to compensate the Pueblos in New Mexico for lands and water rights lost to them pursuant to the provisions of the act of June 7,

___________
  ⁹ See Solicitor's opinion of April 22, 1933, and 5 Comp. Gen. 1036.

  ¹⁰ Section 7 of the Strategic Materials Act of June 7, 1939 (53 Stat. 812; 50 U.S.C. sec. 98f), authorizes and directs "the Secretary of the Interior, through the Director of the Bureau of Mines and the Director of the Geological Survey . . . to make scientific, technologic, and economic investigations concerning the extent and mode of occurrence, the development, mining, preparation, treatment, and utilization of ores and other mineral substances" in certain described circumstances. This act has not been considered in this memorandum for the reason that, according to information received by me, neither the Bureau of Mines nor the Geological Survey is now performing functions with respect to oil pursuant to its authorization. Since the act specifically names the Bureau of Mines and the Geological Survey and is subsequent to the Executive order redistribution of functions of the Bureau of Mines, I believe it is somewhat doubtful that the Secretary could transfer the functions away from the named bureaus.

  ¹¹ Act of December 18, 1941, (55 Stat. 838; 50 U.S.C. (app.) 601).
 

1924 (43 Stat. 636).¹ That act created the Pueblos Lands Board and made it the duty of the board to determine the lands to which the Indian title had not been extinguished and the lands valid title to which had vested in non-Indian claimants under the act. Section 6 imposed upon the United States liability, and made it the duty of the board to award compensation to the Pueblos, for losses suffered by them through the failure of the United States seasonably to prosecute actions for the recovery of the Indians' lands.

    Appropriations of the sums requested to meet the awards of the board were made from time to time. The appropriation for the Pueblo Pojoaque amounting to $56,524.21 was made by the act of April 22, 1932 (47 Stat. 91, 96). By the act of May 9, 1938 (52 Stat. 291, 299), the amount so appropriated was specifically made available for "the purchase of additional land and water rights, the development of water for irrigation and domestic purposes, the purchase of equipment for industrial advancement, and for such other purposes, except per capita payments, as may be recommended by the governing officials of the Pojoaque Pueblo and be approved by the Commissioner of Indian Affairs."²

    The appropriation to meet the board's compensation awards to the Picuris Pueblo aggregate $62,758.59. ³ Of this sum $7,684.50 was made available by the act of March 4, 1929 (45 Stat. 1562, 1569), for the purchase of 118,567 acres of land, and the sum of $52,574.09 was made available by the act of February 17, 1933 (47 Stat. 820, 825), for the "purchase of additional land and water rights" and for other purposes.

    The awards of the Pueblos Lands Board were found to be inadequate and Congress by the act of May 31, 1933 (48 Stat. 108) authorized the appropriation of additional compensation moneys, such appropriations to be made in three equal annual installments beginning with the fiscal year 1937. These appropriations were made by the acts of June 22, 1936 (49 Stat. 1757, 1764), August 9, 1937 (50 Stat. 564, 571, 572), and May 9, 1938 (52 Stat. 291, 299). The sums so appropriated for the Picuris and Pojoaque Pueblos total, respectively, $66,574.40 and $68,562.61. The appropriation acts provided in each case that the moneys appropriated may be expended "as authorized by the act of May 31, 1933, for the purchase of lands and water rights" and for certain other purposes. Section 1 of the act of May 31, 1933, authorized the Secretary of the Interior to expend the moneys subject to approval of the governing authorities of the pueblo "for the purchase of lands and water rights to replace those which have been divested from said pueblo under the Act of June 7, 1924." Section 5 provides that with exceptions not material here the moneys authorized to be appropriated shall be disbursed and expended by the Secretary "in accordance with and under the terms and conditions of the Act approved June 7, 1924."

    Sections 8 and 19 of the act of 1924 read:

    "Sec. 8. It shall be the further duty of the board to investigate, ascertain, and report to the Secretary of the Interior the area and the value of the lands and improvements appurtenant thereto of non-Indian claimants within or adjacent to Pueblo Indian settlements or towns in New Mexico, title to which in such non-Indian claimants is valid and indefeasible, said report to include a finding as to the benefit to the Indians in anywise of the removal of such non-Indian claimants by purchase of their lands and improvements and the transfer of the same to the Indians, and the Secretary of the Interior shall report to Congress the facts with his recommendations in the premises.

    "Sec. 19. That all sums of money which may hereafter be appropriated by the Congress of the United States for the purpose of paying in whole or in part any liability found or decreed under this Act from the United States to any pueblo or to any of the Indians of any pueblo, shall be paid over to the Bureau of Indian Affairs, which Bureau, under the direction of the Secretary of the Interior, shall use such moneys at such times and in such amounts as may seem wise and proper for the purpose of the purchase of lands and water rights to replace those which have been lost to said pueblo or to said Indians, or for purchase or construction of reservoirs, irrigation works, or the making of other permanent improvements upon, or for the benefit of lands held by said pueblo or said Indians."

____________
  ¹ For a statement of the conditions leading up to the passage of the act of 1924, see Solicitor's opinion of August 7, 1929 (52 L.D. 694).

  ² The availability for like purposes of the unexpected balance of the funds so appropriated was continued until expended by the act of May 10, 1939 (53 Stat. 685, 694).

  ³ See acts of March 4, 1929 (45 Stat. 1562, 1569), and April 22, 1932 (47 Stat. 91, 96).
 

lost or divested under the act of 1924. The lands here in question, I am informed, are located more than one hundred miles away from the pueblo settlements, but I find no obstacle in that fact to the acquisition here proposed. Where, as was done in a number of instances, appropriations were made to carry out the recommendations made by the board in pursuance of section 8 of the act of 1924, the moneys so appropriated clearly may not be used for the purchase of lands other than those specifically indicated. The item in the act of March 4, 1929, supra, appropriating $7,684.50 of Picuris funds for the purchase of 118.567 acres of land falls within this category.⁴ Accordingly, that particular appropriation is not available for the proposed purchase. No such condition attaches to the expenditure of the remainder of the Picuris funds nor to any of the Pojoaque funds. The specific authorizations referred to above contain no limitation with respect to the location or type of lands to be purchased. The use of the words "to replace" obviously was not intended to have such a restricted meaning. As defined by lexicographers the word "replace" means "to take the place of" or "to supply an equivalent for." The object thus seems to have been to make the moneys available either to reacquire the lost lands or to acquire other lands in their stead, the type and location of which are necessarily committed to the discretion and judgment of the Pueblo authorities and the Secretary of the Interior. ⁵

    The requests of the Pueblos of Picuris and Pojoaque that their funds be expended in the purchase of these lands contemplate that the lands are to be leased to the Ramah Navajos. Since there is no authority for the use of Pueblo compensation funds except for the benefit of the Pueblos concerned, I assume that it has been administratively determined that these lands are in fact being acquired for the benefit of the Pueblos of Picuris and Pojoaque. Upon this assumption, my conclusion is that there is no legal objection to the use of the compensation funds of the two Pueblos in making the purchases.

    The provision in the act of May 25, 1918 (40 Stat. 561, 570), prohibiting the addition to or the creation of Indian reservations in the State of New Mexico "except by Act of Congress" has not been overlooked in reaching the foregoing conclusion. I deem it to be perfectly clear that this prohibition was designed to prevent executive action unsupported by Congressional authority and not executive action which, as in the present case, has been specifically authorized by the Congress.

                                                                                                                                                      FOWLER HARPER,

Re:

Powers of Tribal Council of Eastern Band of Cherokee Indians to establish a new tribal membership roll in view of the provisions of the acts of June 4, 1924 (43 Stat. 376), an March 4, 1931 (46 Stat. 1518).

(1) The membership roll prepared under the act of June 4, 1924, was made final and conclusive for all purposes by the terms of the act.

(2) Under the amendatory act of March 4, 1931, all persons whose names appear on the roll prepared under the act of 1924 and who are now living must be recognized legally as members of the tribe unless it can be shown that they have voluntarily renounced their tribal membership.

(3) The only effect of the act of March 4, 1931, was to permit changes in this roll by additions of new-borns and deletions of deceased members subject to the limitation as to degree of blood established by the act.

(4) The Tribal Council derives no additional powers over tribal membership by virtue of the act of the State of North Carolina of March 8, 1895.

(5) In the absence of further legislation the Tribal Council can establish a roll for all current tribal purposes only by organizing under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), but the mere fact that the Eastern Band of Cherokee Indians has voted to accept the Indian Reorganization Act is not a sufficient basis for this authority.

(6) The Tribal Council may, however, strike from the existing membership roll any member who is found to have

  ⁵ This interpretation in fact accords with that placed on the act by the Committee on Public Lands and Surveys. Referring in particular to secs. 8 and 19 of the act of 1924 the Committee said: "It thus appears that the two sections in substance together provide for a substantial effort to restore to the Indians the lands and water rights which they have lost, or equivalents therefor, . . ." Senate Report No. 492, 68th Cong., 1st sess.
 

severed his tribal relations, and taken up the habits of civilized life but such adjudications would not be conclusive, and would not deprive such member of the right to share in tribal property.

(7) The Tribal Council may by ordinances also condition the benefits and privileges of tribal membership upon residence on the reservation but such ordinances would have to be applicable to all members of the tribe irrespective of their degree of Indian blood.

    There is returned to you herewith for further consideration your letter of October 27, 1943, to the Superintendent of the Cherokee Agency, discussing the power of the Eastern Band of Cherokee Indians to establish a new tribal membership roll.

    This letter is occasioned by Resolution No. B-2 adopted by the Tribal Council of the Eastern Band of Cherokee Indians on February 6 or 7, 1940. This resolution in effect requested that the Department sponsor legislation to purge the tribal membership roll prepared under the act of June 4, 1924 (43 Stat. 376), of all persons who have less than 1/16 degree of Indian blood. This appears to be the second resolution on the question of tribal membership adopted by the Tribal Council. On November 20, 1940, it adopted Resolution No. 70 requesting the enactment of legislation to make it possible to admit into membership children born since June 4, 1924. The record shows that the tribe has long been dissatisfied with the roll prepared under the act of June 4, 1924.

    No action to effectuate the wishes of the tribe has, however, been taken as yet pursuant to either resolution. You now in effect propose to advise the Tribal Council that no legislation is necessary to purge the tribal roll of persons of less than 1/16 degree of Indian blood, and that it may without any qualifications prepare a new roll for "current tribal purposes."

    This legal position is, however, not in harmony with the act of March 4, 1931 (46 Stat. 1518), which amended the act of June 4, 1924, and is also based upon an unjustified extension of the opinion of this office dated May 17, 1941. Under the act of June 4, 1924, the Eastern Cherokee roll was made final and conclusive for all purposes, and therefore falls within the third category of tribal membership statutes discussed in this opinion. If the act had remained unaltered, there could have been no question but that the roll could not be altered or disregarded by the Tribal Council. The act of March 4, 1931, did not repeal the act of June 4, 1924, but only sought to modify it in certain respects. You seem virtually to take the position, however, that the effect of the amendatory act was to terminate the validity of the membership roll, and to convert it solely into an unalterable tribal document of interest for historical purposes but of no practical import. Such an interpretation finds no support in either the language of the act, or its legislative history, which shows that the tribe had long objected to the basis upon which the roll had
been prepared under the 1924 act, and that it was the purpose of the 1931 act itself to settle the basis upon which membership should be determined in the future. Thus the departmental letter of December 4, 1930 (Senate Rep. No. 1479, p. 3) stated: "If enacted this proposed amendment would provide a membership roll of these Indians which would be authentic and would settle the enrollment problem at least, thereby determining the tribal rights of a large number of claimants and contestees who have for the past 23 years been urging that their cases be finally adjudicated." Congress itself having determined the basis of membership under the 1924 and 1931 acts, the tribal power is necessarily limited by the provisions of these statutes. There is certainly no support in either principle or authority, for the argument that statutes of the State of North Carolina can undo the effects of acts of Congress. Section 3 of the act of June 4, 1924, expressly declared indeed that in the preparation of the roll directed by the act the North Carolina statutes "shall be disregarded."

The amendatory act of 1931 very closely provides that the roll prepared pursuant to the act of 1924 shall be a final roll only for the purpose of showing the membership of the band as it existed on June 4, 1924. In other words, that roll constitutes the legal membership of the band as it existed on that date and is subject to change only by Congress, and not by the Tribal Council or by administrative officials. The roll prepared under the act of 1924 is not, however, final for any other purpose. Accordingly, membership in the tribe would thereafter be subject to change by addition of new-borns and deletions of deceased members. The proviso takes cognizance of this by specifically prohibiting recognition thereafter of any person of less than 1/16 degree of Cherokee Indian blood. The limitation of such persons to the rights acquired by inheritance contemplates property rights which were vested in the deceased member at the time of his death. There is no such thing in Indian law as inheritance of tribal membership. In the absence of Congressional legislation, tribal membership is usually acquired by birth into, affiliation with, and recognition by the tribe. The tribal
 

authorities themselves of course are invested with primary authority to determine questions of membership.

    Under the amendment of 1931 all persons shown on the roll prepared under the act of 1924 and now living must be recognized as legal members of the tribe, irrespective of their degree of blood and irrespective of their present residence, unless it can be shown that they have severed their tribal relations and this might be established by showing that they have taken up their residence separate and apart from the tribe and have adopted the customs and habits of civilized life. In such a case their own rights to share in distributions of tribal property would not be lost in view of the familiar statutory provisions saving the rights of such persons in so far as sharing in distributions of the tribal property are concerned. (See Handbook of Federal Indian Law, pp. 167-68).

    Thus, the only way in which the result desired by your office may legally be reached without further legislation is for the Eastern Cherokees to organize under the Indian Reorganization Act and prescribe membership rules which would control in all distributions of tribal property save where tribal property has been segregated or individualized so that the existing members may be said to have acquired vested property interests in shares set apart to them. However, the mere fact that the Eastern Band of Cherokee Indians has voted to accept the Indian Reorganization Act does not give the Tribal Council authority to prescribe membership rules to govern present day distributions of tribal income. Section 16 of (the act gives a right to organize and hence impliedly to determine membership but the right must be exercised in order to be effective. The reason for this is that the right to organize is given to "the adult members of the tribe." Unless the membership, as determined under the 1924 and 1931 acts, is given an opportunity to vote on a proposed constitution, it will be deprived of a right given under the statute.

    However, while the tribe may not prepare a membership roll for "all current tribal purposes" the membership roll of the tribe may as already suggested be brought up to date by adding new-born children who possess at least 1/16 degree of Cherokee Indian blood, and by deleting the names of deceased members. The tribe may doubtless also strike from the roll members who have long been absent from the reservation, and who may be presumed to have severed their tribal relations and taken up the habits of civilized life, but this action, as already indicated, would not deprive such members of the right to share in the distributions of tribal property. Such cases would, however, have to be adjusted by the Tribal Council and even then it is doubtful that such adjudications would be conclusive. The tribe can also perhaps ameliorate the existing situation by adopting ordinances which would confine various tribal privileges such as the right to vote or to receive loans to members of the tribe who are residents of the reservation but such ordinances would have to apply to all members of the tribe irrespective of their degree of Indian blood. No member of the tribe on the roll prepared under the act of 1924 can be disfranchised, or disqualified from sharing in tribal benefits or activities merely on the ground that he is of less than 1/16 degree of Indian blood. If these suggestions do not satisfy the Tribal Council, and the tribe declines to organize under the Indian Reorganization Act, you should consider the advisability of further legislation along the lines indicated in the resolution of the Tribal Council.

                                                                                                                                                FELIX S. COHEN,

Memorandum for the Assistant Secretary:

    The attached letter, which Commissioner Collier recommends that you sign, would authorize the Catawba Indian Tribe of South Carolina to organize an adopt a constitution under the act of June 18, 1934. I concur in this recommendation.

    I note, however, that Commissioner Collier's letter of transmittal makes the statement: "The Federal Government has not considered these Indians as Federal wards." I am not entirely clear as to what is intended by this statement. If the Catawba Tribe were not a tribe recognized by the Federal Government, it could not now take advantage of the act of June 18, 1934. I find, however, that the Catawba Indian Tribe has been recognized by the Federal Government, in years past (act of July 29, 1848, 9 Stat. 252, 264; act of July 31, 1854, 10 Stat. 315, 316), and although such recognition is of ancient date the tribal organization has been continuously maintained and there is no serious dispute now as to the existence or membership of this tribe. As you know the Federal Government has only recently entered into an agreement with the State of South Carolina concerning the fulfillment of Governmental responsibilities towards these Indians. On this basis I be-
 

lieve that the Catawba Indians are entitled to vote on the constitution which would be submitted to them by the attached letter of transmittal.

                                                                                                                                                     FOWLER HARPER,

M-33321                                                                                                                                                        April 3, 1944.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Frank Geffe of Wapato, Washington, has filed a claim in the amount of $152.55 against the United States for compensation for damage to fruit trees as the result of a fire from burning weeds along the banks of an irrigation ditch maintained and operated by the Indian Service at Yakima Indian Reservation, Washington. The question whether the claim should be paid under the act of February 20, 1929 (45 Stat. 1252, 25 U.S.C. sec. 388), has been submitted to me for opinion.

    It is my opinion that the claim should be paid.

    The pertinent facts, which appear to be adequately supported by the evidence of record, are set forth in the proposed agreement for compromise dated August 11, 1943, as follows:

    ". . .  in connection with the operation and maintenance of the Wapato Indian Irrigation Project, Washington, by the United States, on the 14th day of April, 1943, an employee of the irrigation project was burning weeds on the bank of a project ditch situated in the N/2 of S/2 of NW/4, Sec. 21, Twp. 11 N., Rng. 19 E., of W. M. Washington; when the fire from the burning weeds got beyond the control of the project employee, due to a sudden change in the direction of the wind, and spread into a row of fruit trees on the premises of the claimant resulting in the burning of five of the fruit trees, three of which were killed and two were burned to the extent that they had to be replaced. The value of the fruit trees killed or damaged and the loss of production in consequence thereof has been agreed upon in the sum of one hundred fifty two and fifty-five hundredths dollars ($152.55). The circumstances were such as to indicate that there was no negligence on the part of Government personnel in conducting the burning operations."

    The Comptroller General has ruled, and his ruling has been supported by the Attorney General, that recovery under this and similar appropriation acts must be for damage directly attributable to the operations of the Government in the survey, construction, operation, or maintenance of irrigation works, due to unavoidable causes in which the element of negligence does not appear. C. J. Mast, unpublished (A. 45268), dated June 30, 1933; Sam Wade, unpublished (A. 47614), dated April 17 and August 5, 1933; and 39 Op. Atty. Gen. 425.

    The evidence would appear to indicate no negligence on the part of the ditchrider in charge of the burning operations and, in all the circumstances, the evidence supports the finding that the damage was due to unavoidable causes. The report of Senior Engineer N. W. Irsfeld, states:

    ". . . Due to the late spring and the prolonged spell of cold and cloudy weather, the work of burning last years growth of weeds off of the ditch banks, was behind schedule and advantage was being taken of every hour of weather that was favorable for this work. The ditchrider waited for a favorable wind before he began burning in this orchard. With the wind in the southwest he could control the fire for the field to the east of the orchard was comparatively free of weeds. After he got the fire started the wind veered to the southeast and the fire was blown westward into a dense growth of grass and weeds that surrounded the orchard trees and before it was brought under control, burned, around seven trees, five of which were so badly scorched as to be completely ruined. Because of the acute labor shortage Mr. Duncan was working alone at the time the fire got out of control, his crew of two men being engaged in shovelling silt out of the ditch at a considerable distance from the scene of the fire. With assistance he could have kept the fire under control."

which have grown along the banks of the ditches and it is common practice to do this by burning. Obviously, there are risks inherent in such operations, but they are such as can hardly be avoided and experience indicates that the assumption of the risks involved is consistent with prudent operation and management. The Government employee waited for a favorable wind before starting fires and could hardly have avoided the consequences which resulted from the sudden shifting of the wind. The claim would appear to be within the scope of the narrow limits prescribed by the Comptroller General and the Attorney General and to be for damages such as were contemplated by the Congress in the passage of the act.

    The extent of the damage is not in dispute and the amount agreed upon appears to have been computed in accordance with the accepted practice for determining the fair market value of growing fruit trees. The claim is supported by a statement, furnished at the request of the Indian Service, signed by L. J. Farley, District Manager of the Yakima Fruit Growers Association, who states:

    "It is my belief that the claimant's procedure of computation is unbiased and the amount claimed for damage is just and reasonable."

                                                                                                                                                      FOWLER HARPER,

Approved: April 8, 1944.
OSCAR L. CHAPMAN, Assistant Secretary.

Re:

Proposed legislation for purchase of land for the Navajo Indians providing that land is subject to State taxes payable out of tribal funds, and the consistency of such legislation with existing laws relating to land purchased for the Navajo Indians.

1. The proposed legislation is not prohibited by any existing treaty or act of Congress, nor does it contravene any existing law.

2. The proposed legislation is contrary to the long established policy of this Department regarding lands held in trust by the United States as exempt from taxation.

3. If the proposed legislation is enacted the payment of taxes, as proposed in bills now pending in Congress, would not be required.

4. The United States, as trustee, would not be liable for payment of State taxes under the proposed legislation.

5. Administrative consideration should be given to the amendment of the proposed legislation to provide for the exemption of the land from taxation or the payment of taxes, provided the consent of the United States is obtained before proceedings are instituted to sell the land for any unpaid taxes.

    Reference is made to your memorandum of March 21, 1944, concerning the estimate of $1,500,000 for the purchase of land for the Navajo Indians in New Mexico and Arizona outside the present boundaries of the Navajo Reservation, providing that such land shall remain subject to taxation by the State and political subdivision in which the land is located. Your memorandum poses three questions for my consideration:

Is the provision for the payment of taxes by the Indians consistent with existing law?

Would the payment of taxes be required under any of the bills pending in Congress for State and municipal tax on lands owned by the Federal Government?

Would the United States, as trustee, be liable for the tax?

    The United States has not by any existing treaty, agreement or act of Congress undertaken to pro-
 

vide the Navajo Tribe of Indians with tax-free lands by purchase with appropriated funds. In the absence of such commitments, it is competent, of course, for the Congress to appropriate public moneys for the purchase of land for the tribe, subject to any conditions it may desire to impose. It may provide that the lands shall be exempt from taxation,¹ or that the lands shall be subject to State taxation.² It may with equal validity authorize the payment of such taxes as may be levied against the land under State authority,³ from funds of the tribe in the United States Treasury. The proposal to subject the purchased lands to State taxation and to authorize the payment of taxes from tribal funds in the United States Treasury would not, therefore, contravene any provision of existing law. Accordingly, the question whether such a proposal should be presented to the Congress becomes a matter for administrative determination.

    I deem it advisable, however, to point out that such a proposal would involve a departure from the policy which this Department has followed in the past. Over a considerable period of years, the Congress, upon recommendation of this Department, has appropriated moneys for the purchase of lands for the Navajo Indians. While none of the appropriation acts contains any express declaration that the purchased lands shall be exempt from taxation, the practice, based in some instances upon the express terms of the appropriation acts,⁴ has been to take title to the purchased lands in the United States in trust for the tribe. Lands so held have been uniformly regarded by the Department, and until recently by the courts, to be exempt from taxation. In United States v. Board of Commissioners of Fremont County, Wyoming, et al., 53 Fed. Supp. 395, the trial court applied principles enunciated by the Supreme Court in Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, and other cases, and ruled that lands purchased for the Shoshone and Arapaho Tribes of Indians, with tribal funds, were subject to State taxation notwithstanding the fact that the title to the lands was conveyed to the United States in trust for the tribes. The correctness of that decision is being tested on appeal and the importance of the principle involved is such as ultimately to require that it be brought before the United States Supreme Court for final determination. In the meantime, it would seem to be prudent to remove the question from the field of controversy by inserting in the appropriation item a provision either expressly exempting the lands from taxation or subjecting the lands to taxation, whichever is deemed to be more expedient.

    A number of bills pending in Congress provide for the payment of taxes by the United States on lands acquired by it.⁵ Some pending bills provide for payment by the United States of money in lieu of taxes.⁶ One of the pending Senate bills ⁷ would authorize the Secretary of the Treasury to pay annually to each State within which are located any lands, title to which is held in trust for the benefit of any Indian, a sum equal to the amount of taxes which would be assessable against such lands if they were in private ownership.

    If the proposed legislation in its present form is enacted by the Congress, in my opinion none of the bills pending in Congress would require payment by the United States of taxes, or money in lieu of taxes, on lands acquired for the Navajo Indians under the authority of the proposed legislation.

    It is firmly established that the United States is not liable for the payment of State taxes on lands owned by it.⁸ No financial burden may be placed upon the United States in the absence of congressional consent.⁹ It would seem to follow that the United States, under no circumstances, even as a fiduciary, could be held liable for State taxes. In my opinion, the proposed legislation in its present form would not cause the United States, as trustee, to be liable for payment of the tax.

    Should the situation arise that tribal funds would be insufficient to pay the State taxes, as proposed, it should be observed that the proposed legislation contains no prohibition against sale of the land for delinquent taxes without the consent of the United States. While the United States would be under no legal obligation, it might be morally obligated to appropriate money for the payment of the State taxes to protect the Indians against loss of the lands. Administrative consideration should be given to amendment of the proposed

___________
    ¹ Board of County Commissioners v. Seber, 318, U.S. 705.\

    ² Cohen, Handbook of Federal Indian Law, p. 257.

    ³ Id. at p. 97.

    ⁴ E.g. Acts of May 29, 1928 (45 Stat. 899); April 22, 1932 (47 Stat. 96); June 14, 1934 (48 Stat. 961), and June 28, 1941 (55 Stat. 312).

    ⁵ E.g. S. 436 (78th Cong., 1st sess.); H.R. 1305 (78th Cong., 1st sess.), Lands acquired for general military purposes: H.R. 2338 (78th Cong., 1st sess.).

    ⁶ E.g. S. 380 (78th Cong., 1st sess.); S. 1521 (78th Cong., 1st sess.); H.R. 2122 (78th Cong., 1st sess.); H.R. 3424 (78th Cong., 1st sess.); H.R. 3161 (78th Cong., 1st sess.).

    ⁷ S. 1521 (78th Cong., 1st sess.).

   ⁸ United States v. Alabama, 313 U.S. 274 (1941).

   ⁹ Penn Dairies Inc. et al. v. Milk Control Commission of Pennsylvania, 318 U.S. 261 (1943); Van Brocklin v. Tennessee, 117 U.S. 151 (1886).
 

legislation to require the consent of the United States to any sale for delinquent taxes.

                                                                                                                                                        FOWLER HARPER,

M-33597                                                                                                                                                       April 5, 1944.

    Section 4 of the act of March 2, 1929 (45 Stat. 1478), is ambiguous insofar as it relates to estates of Osage Indians of more than one-half Indian blood but of less than one-half Osage Indian blood.

    The legislative history of the act of March 2, 1929, supra, reveals that it was the intent of Congress to retain control in the Secretary of the Interior over the funds of members of the Osage tribe of more than one-half Indian blood, regardless of their degree of Osage blood.

    Estates of Osage Indians of more than one-half Indian blood but of less than one-half Osage Indian blood must be held to fall within the first class of estates dealt with in section 4 of the act of March 2, 1929, supra.

Memorandum for the Commissioner of Indian Affairs:

    You have requested to be informed whether the Secretary of the Interior is required to pay to administrators or executors of estates of Osage Indians of more than one-half Indian blood but of less than one-half Osage Indian blood the moneys and funds and other property accrued and accruing to the credit of such decedents or whether payment is discretionary with the Secretary. The question arises in connection with the estate of Andrew Baconrind, a deceased unallotted Osage Indian, who was of more than one-half Indian blood but of less than one-half Osage Indian blood and who died without having received a certificate of competency.

    Section 4 of the act of March 2, 1929 (45 Stat. 1478), which governs the disposition of the property of deceased Osage Indians during the course of the administration of their estates, reads as follows:

    "Upon the death of an Osage Indian of one-half or more Indian blood who does not have a certificate of competency, his or her moneys and funds and other property accrued and accruing to his or her credit and which have heretofore been subject to supervision as provided by law may be paid to the administrator or executor of the estate of such deceased Indian or direct to his heirs or devisees, or may be retained by the Secretary of the Interior in the discretion of the Secretary of the Interior, under regulations to be promulgated by him: Provided, That the Secretary of the Interior shall pay to administrators and executors of, the estate of such deceased Osage Indians a sufficient amount of money out of such estates to pay all lawful indebtedness and costs and expenses of administration when approved by him; and, out of the shares belonging to heirs or devisees, above referred to, he shall pay the costs and expenses of such heirs or devisees, including attorney fees, when approved by him, in the determination of heirs or contest of wills. Upon the death of any Osage Indian of less than one-half of Osage Indian blood or upon the death of an Osage Indian who has a certificate of competency, his moneys and funds and other property accrued and accruing to his credit shall be paid and delivered to the administrator or executor of his estate to be administered upon according to the laws of the State of Oklahoma: Provided, That upon the settlement of such estate any funds or property subject to the control or supervision of the Secretary of the Interior on the date of the approval of this Act, which have been inherited by or devised to any adult or minor heir or devisee of one-half or more Osage Indian blood who does not have a certificate of competency, and which have been paid or delivered by the Secretary of the Interior to the administrator or executor shall be paid or delivered by such administrator or executor to the Secretary of the Interior for the benefit of such Indian and shall be subject to the supervision of the Secretary as provided by law."

    The section deals with two classes of Osage Indians. The particular Osage Indians now under discussion would, under a literal construction of the words used to describe the two classes, fall within both classes. They are "Osage Indian (s) of one-half or more Indian blood" and they are also "Osage Indian(s) of less than one-half Osage Indian blood." Thus the turning over of their funds
 

to administrators or executors would be both mandatory and discretionary. This anomalous situation must be avoided, if possible, by a construction of the section as a whole in such a manner that the estates now under consideration will fall clearly and logically within either one or the other of these two classes.

    In an effort to arrive at the logical meaning of the section and to resolve the ambiguity, I have considered the legislative history of the act of March 2, 1929, supra.

    I am convinced that there was no intention on the part of Congress to draw any distinction between estates of Osage Indians of one-half or more Indian blood and Osage Indians of one-half or more Osage Indian blood. The intention of Congress was to retain control in the Secretary of the Interior over the disposition of the funds of members of the Osage tribe of more than one-half Indian blood, regardless of their degree of Osage blood. Therefore, estates of Osage Indians of more than one-half Indian blood but of less than one-half Osage Indian blood must be held to fall within the first class dealt with in section 4.

    I base my conclusion not so much on what I find in the legislative history of the act directed to section 4 but on the general discussion concerning the bill, and particularly section 3 thereof. I find very little in the legislative history relating specifically to section 4. As originally introduced,¹ section 4 made no reference to estates of less than half-bloods. In reporting on the bill, the Department stated merely that the section "would make little, if any, material change in the present law relating to the handling of Osage inherited funds."²

    However, thereafter extensive hearings on the proposed modification of existing Osage law were held both before the Senate and House Committees on Indian Affairs,³ and the bill was substantially rewritten by the House Committee. Neither in the hearings nor in the discussion which took place on the floor of Congress with respect to sections 3 and 4 do I find that any distinction was made between persons of one-half or more Osage Indian blood and persons of one-half or more Indian blood. The discussion was directed rather to the wisdom of retaining restrictions on the funds of persons who were of more than one-half white blood. Those in charge of the bill during its passage through Congress seem to have been primarily concerned with retaining restrictions on the funds of persons of one-half or more Indian blood and in removing such restrictions on the funds of persons of approximately one-half white blood. Representative Leavitt, Chairman of the House Committee on Indian Affairs, stated that the bill was designed to accomplish two things: "To protect these Indians as long as they need protection and to take steps to fit them into our population and give them training in the handling of their own business, ultimately, when they cease to be of half or more Indian blood."⁴ Chairman Leavitt also stated that "The question of the quantum of Indian blood was written into the bill in the discussion in the Committee and the consideration of the bill itself, but the purpose of the Osage Indians is to have these restrictions remain in force so long as we still have Indians of full blood or more than half-blood not fully able to take care of their own property and who feel they are safer in the hands of the government itself." ⁵ Mr. Sproul of Kansas, another member of the House Committee, stated: "The amendments agreed to before the Committee on Indian Affairs were to the effect that all Indians of less than half-blood should be given their emancipation by the time they arrive at 30 years of age, . . ." and that "this bill is intended to free the Government of further guardianship over the 30-year-old white Indians, those that have a majority of white blood and a very small percentage of Indian blood." ⁶

    Section 3, as it was finally enacted, required the Secretary to pay to each enrolled Indian of less than one-half Osage blood one-fifth part of his proportionate share of accumulated funds within one year and, within ten years, to pay over to such Indians all of the balance remaining to their credit and to issue them certificates of competency. Shortly thereafter a list was made purporting to show the names of those enrolled Osage Indians of less than one-half Indian blood who had not received their certificates of competency. The Superintendent of the Osage Agency states that examination of the names on this list reveals that all of the names likewise appear on the roll of Osage Indians of less than one-half blood, prepared in accordance with section 3 of the act of March 3, 1921 (41 Stat. 1249). Since the 1921 roll of Osage Indians of less than one-half blood contains the names of members of the tribe of less than one-half Osage Indian blood, it is evident that the list did

_____________
    ¹ H.R. 9294, 70th Cong., 1st sess.

   ² Letter to Hon. Scott Leavitt. Chairman, Committee on Indian Affairs, House of Representatives, dated February 4, 1938.

   ³ Hearings before a subcommittee of the Committee on Indian Affairs, House of Representatives on H.R. 9294, 70th Cong. 1st sess.; Hearings before a subcommittee of the Committee on Indian Affairs, United States Senate, on S. 2360, 70th Cong. 2d sess.

   ⁴ 70 Cong. Rec. p. 2497.

   ⁵ 70 Cong. Rec. p. 2940.

   ⁶ 70 Cong. Rec. p. 2953.
 

not include the names of any of those members who may have been more than one-half Indian blood but less than one-half Osage Indian blood. The list prepared in 1929 was used as the basis for making the payments required to be made by section 3 of the 1929 act. The practical construction of section 3 of the act was, therefore, that the section required payment only to enrolled members of the Osage Tribe of less than one-half Indian blood and not to require payment to persons of more than one-half Indian blood but less than one-half Osage Indian blood.

    I understand that several enrolled Indians in this latter category were not issued certificates of competency in 1939. I understand further that when Indians falling within this category have died, their funds have been handled, during the course of administration of their estates, under the first provision of section 4 of the 1929 act.

    Thus, it may be said that the Department has, for a period of 15 years, consistently construed sections 3 and 4 of the 1929 act in a manner which retains control over the funds of members of the Osage tribe of one-half or more Indian blood, regardless of their quantum of Osage Indian blood.

    In my opinion, the Department's practice of considering Indians such as Andrew Baconrind as coming within the first provision of section 4 of the act of March 2, 1929, supra, has been proper and I see no reason why the Secretary should not continue to exercise his discretion in the matter of turning their funds over to administrators or executors.

    However, it seems unfortunate to me that you did not adopt my suggestion that you recommend to the Secretary that he exercise his discretion in this case and turn the money over to the administrator of the Andrew Baconrind estate in view of the fact that none of Andrew Baconrind's probable heirs is a restricted Indian. You state that the Superintendent of the Osage Agency raised the question of whether or not such action in this case would set a precedent which might affect estates in which restricted Indians might be interested. I can see no such danger. Every time the Secretary exercises his discretion as to whether or not he will turn over to an administrator or an executor the funds of a deceased Osage Indian of more than one-half Indian blood that discretion is based on the facts and circumstances of the case in which he is exercising his discretion. Since the facts and circumstances vary with each case, no case becomes a precedent for another.

Memorandum for Assistant Secretary Chapman:

    The attached letter which Commissioner Collier recommends that you sign would authorize the Catawba Indian tribe of South Carolina to organize and adopt a constitution under the act of June 18, 1934. I concur in this recommendation.

    I am somewhat disturbed by a statement in Commissioner Collier's letter of transmittal. He states that "The Federal Government has not considered these Indians as Federal wards." If by this statement the Commissioner implies that the Catawba tribe has not been recognized by the Federal Government, I must disagree. Indeed if such were the case, the tribe could not now take advantage of the act of June 18, 1934. I find, however, that the tribe has received Federal recognition. The problem can be broken down into two questions. In the first place, is there a political organization which can properly be characterized as a tribe in the commonly accepted meaning of that term? In the second place, has there been Federal recognition of tribal existence? The files are full of evidence which is conclusive that a tribal organization has been continuously maintained by these Indians over a long period of time. The Indians have done business as a tribe and the relationship between the tribal organization and its members conforms to the usual tribal pattern. There can be no doubt that the Catawba Indians now exist as a tribe and have had a known tribal existence for almost a century.

    The Congress has recognized the existence of the Catawba Indian Tribe in two enactments, the act of July 29, 1848 (9 Stat. 252, 264), and the act of July 31, 1854 (10 Stat. 315, 316). These acts appropriated funds for the removal of these Indians west of the Mississippi River, apparently for settlement among the Choctaw and Chickasaw tribes in the Indian Territory. The monies thus appropriated were never used. Had the plan been carried out, it might well have been that the Catawba Indians would have lost their identity as a tribe by becoming adopted or amalgamated with other tribes. As it turned out, however, they did not lose their identity and have retained their tribal organization ever since. It is to be observed that the act of July 29, 1848, makes specific reference to the Catawba Tribe of Indians. And al-
 

though the act of July 31, 1854, referred only to the "Catawba Indians," it seems that at that time it was a practice of legislative draftsmen to refer to almost all tribes in such terms, a practice which is occasionally followed to this day.

    I am persuaded, therefore, that the Catawba Indian Tribe exists, as such, and that has received recognition by the Federal Government. The Catawba Indians are therefore entitled to vote on the constitution which would be submitted to them by the attached letter of transmittal.

                                                                                                                                                      FOWLER HARPER,

Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith for your further consideration papers relating to a claim on behalf of C. B. Suzen Timentoe, an Indian of the Colville Reservation, which you forwarded for transmittal to the Attorney General.

    It appears from the attached materials that on March 24, 1942, Mr. Timentoe's seven-year-old milk cow was struck and killed by Train 254 of the Great Northern Railway Company at a point adjacent to the railroad's stock corrals at Malott, Washington. At this point the right-of-way property is fenced along the west boundary line. The railroad is reported to have acquired extra land at this l-ion and installed two tracks thereon to provide facilities for loading livestock at the yards and fruit from the warehouse and packing sheds also located on land owned by the company. There is no fence along the east boundary of the extended property which runs approximately one-half mile before narrowing into the standard right-of-way. Further details of the accident are not set forth.

    Mr. Timentoe presented his claim December 12, 1942, and it was declined by the railroad January 21, 1943. Thereafter, the matter was referred to the Superintendent of the Colville Indian Agency who wrote the District Claim Agent of the Great Northern Railway Company September 18, 1943, that the value of the cow had been reliably fixed at $100, and making demand for payment of such sum. In that letter the Superintendent, after referring to a stipulation executed by the company and implying that the company's liability under it is governed by Federal law, pointed out that "State laws are not applicable to Indian land." In response to this letter, counsel for the railroad construed the stipulation to require the company's liability for damages to be measured by the law of the State of Washington and concluded: "As the animal was killed at station grounds, there is no liability under the state law." Subsequent discussion of this matter has seemingly proceeded on the assumption that counsel had correctly stated the extent of the railroad's liability under the law of Washington.

    On the basis of the facts disclosed, this assumption may not be justified. Under sections 10507-10509 of Remington's devised Statutes of Washington,¹ common law rules of tort liability have been modified only in so far as railroads have been affirmatively required to fence certain portions of their rights-of-way, the failure to fence being made prima facie evidence of the railroad's negligence in actions for killing livestock. These statutes, the court said in Hansen v. Northern Pacific Railway Company, 90 Wash. 516, 517, 156 Pac. 553 (1916), do no more "than make the killing of stock upon an unfenced right of way prima facie evidence of negligence. The object of the statute is twofold; to put the burden of proof upon the railroad company where stock is killed upon its right of way, and to protect those who operate and travel upon trains from the hazard of derailment and other accidents." See also Jolliffe v. Brown, 14 Wash. 156, 161, 44 Pac. 149 (1896), where, in construing an earlier but similar statute, the court said that "Where the fact of the killing has been proven, it shifts the burden of proof as to negligence upon the defendant." ²

    Section 10507 specifically imposes upon every railroad "outside of any corporate city or town, and outside the limits of any sidetrack or switch," the duty of constructing and maintaining in good repair "on each side of said railroad, along the line of said right of way . . . a substantial fence, and at every point where any roadway or other public highway shall cross said railroad, a safe and sufficient crossing must be built and maintained, and on each end of such sidetrack or switch, outside of any incorporated city or town, a sufficient cattleguard . . ." In Benn v. Chicago, Milwaukee & St. Paul Railway Company, 89 Wash. 522, 154 Pac. 1082 (1916), three colts were killed by a train on a "side or passing track" along which the railroad

___________
  ¹ These sections codify the provisions of an act of 1903, amended to include electric railroad companies, in 1907.

  ² This earlier statute was held to have been repealed by implication when the 1903 act was passed. Huffman v. Oregon Railroad & Navigation Company, 57 Wash. 494, 207 Pac. 362 (1910).
 

maintained a station house and loading ground. It was argued that the railroad was liable because this "flag station" was not an incorporated city or town and the railroad was accordingly bound under this section to erect a fence to keep stock off the track. The court, after pointing out the difficulties raised by the statutory language referring to "side tracks or switches," concluded that the words:

    ". . . cannot mean that a cattle guard is required at each end of every switch outside of an incorporated city or town, for 'such' switch is the switch first mentioned in the act and it is, by express words, exempted from the fence features of the law. It follows, if a company is not, required to fence its depot or side tracks or switch, that a cattle guard at the end of each switch would serve no purpose . . . There being no law compelling the company to fence its side tracks, the conclusion follows that the want of cattle guards was not the proximate cause of the injury." (89 Wash. 526.)

    It is, presumably, this decision co which counsel for the railroad refers in stating that the railroad is not liable for an animal killed "on station grounds." But the accompanying files do not indicate whether Malott, Washington, is an incorporated city or town, whether the track upon which the cow was killed was only a "side or passing track," or whether Mr. Timentoe's cow reached the track from the unfenced eastern boundary or from a gate or hole in the fence along the western boundary. All of these facts are pertinent in determining the applicability of the principles announced in the Benn case.

    More importantly, the case deals only with the obligation of a railroad to fence its right-of-way as required by the statute; it by no means holds that railroads are never responsible for tortious acts if they occur "on station grounds." The rule in Washington is quite to the contrary. In Snodgrass v. Spokane & Inland Empire Railroad Company, 87 Wash. 308, 151 Pac. 815 (1915), the owner of horses killed by a train had deeded a right-of-way to the railroad in consideration of which the railroad had undertaken to erect and maintain, for his use, a grade crossing and cattle guards. It was also agreed that the owner could leave the gates open but at his "own risk." The gates were left open, the horses escaped from a field and wandered onto the right-of-way. The railroad contended that while the stipulation did not relieve it from using reasonable care to avoid injury to the horses once it became aware of, them, it did relieve the company of the duty to keep a careful lookout for the horses-as animals rightfully on the track. The court held that even if the effect of the stipulation was to deny to the owner of the horses the benefit of the prima facie case created by the statute, the railroad was still liable. For, the court pointed out, the horses were killed "on station grounds" some distance from the plaintiff's land where, even if they were wrongfully on the tracks, they should have been observed by a reasonably watchful engineer. Since the jury found that the engineer had failed to keep a reasonable lookout and had failed to blow a warning whistle, and since the failure to blow such whistle resulted in an accident which might otherwise have been avoided, its verdict for the plaintiff was affirmed.³ See also Timm v. Northern Pacific R. Co., S W.T. 299, 13 Pac. 415 (1887), where cattle ran between 225 and 275 yards after the engineer sounded his whistle and before they were struck, negligence in failing to stop the train being held a question for the jury; Dickey v. Northern Pacific Railway Company, 19 Wash. 850, 55 Pac. 847 (1898), where it was held that even if the statute created a prima facie case of negligence on the part of the railroad, the question should have been submitted to the jury since negligence was rebutted by evidence that the train was, at the time of the accident, "proceeding at the ordinary and usual rate of speed, that the locomotive and cars were equipped with air brakes and appliances for stopping trains, that it was properly officered by competent and skillful employees who were at their proper stations, that the horses . . . were not, and could not have been, seen in time to permit the train to be stopped and the accident averted; that every effort was made to avoid the collision after the horses were discovered," and where the admissions of the plaintiff himself showed that he negligently placed the horses in a field unprotected from the adjoining right-of-way. Cf. Murray v. Oregon-Washington R. & Navigation Co. 175 Wash. 320, 27 P. (2d) 574 (1933), where the court assumed that the railroad was not required by the statute to fence its right-of-way but held it was a question for the jury whether the railroad willfully and wantonly injured plaintiff by spraying grass along the right-of-

____________
  ³ Cf. also Thayer v. Snohomish Logging Company, 101 Wash. 458, 461, 172 Pac. 552 (1918), where the court said "It was not the intention of the legislature to declare the law of negligence with respect to stock injured other than when injured in some way by railway trains."
 

way with a weed-destroyer which poisoned the plaintiff's cattle, when the company had reason to know that the cattle were accustomed to graze along the right-of-way and had failed to give the plaintiff notice of the danger.

    If, under the facts of the instant case, the statute required the railroad to fence its right-of-way to prevent stock from straying on the track, its failure to do so would, prima facie, establish its negligence in killing Mr. Timentoe's cow. This prima facie case may be either confirmed or rebutted by additional facts surrounding the accident such as are discussed in the decisions referred to. Until these facts have been thoroughly explored, there is no reason to assume that the railroad is not liable for the negligent or wanton destruction of the cow. If your further investigation shows that the company is liable under the law of Washington, it will be possible to avoid the more difficult questions raised by the stipulation executed by the railroad.

    As is recited in the Superintendent's correspondence with the railroad, the right-of-way over the Colville Reservation was acquired by the Great Northern Railway Company pursuant to the provisions of the act of March 2, 1889 (30 Stat. 990). Before the right-of-way was approved by the Department, the company was required to execute a stipulation which in section 3 bound the railroad:

"to pay the United States, through the Commissioner of Indian Affairs at Washington, D.C., on demand, for any and all damages caused by fire or otherwise sustained by the United States or the Indians by reason of the use and occupancy of said right-of-way by the Company, its successors or assigns; and it is agreed that the liability for such damages as well as liability for damage which shall occur on said Indian lands by fires started by the Company on other land, shall in all cases be determined by the laws of the State or the United States, if applicable thereto."

    "While the stipulation is ambiguous, it seems to me that the concluding part, to the effect that the liability shall be determined by the laws of the State or the United States, must control over the general language of the preceding part. In so far as I know, there is no .Federal law fixing the liability of a Railway Company for stock killed on its right of way. Accordingly, it would seem that the State law controls."

    I believe, rather, that if it is ultimately found necessary to rely on the language of the stipulation, the second clause of section 3 must be interpreted not to limit the obligation of the company to pay for all damages of whatever character which may be sustained by the United States or the Indians, but only to damages by fire. You will note that the word "damages" occurs only once in the first clause and is qualified by the words "caused by fire"; the reference after the semicolon to "such damages" seems to relate to the same "damages caused by fire." This interpretation is strengthened by the fact that the liability for damages by fire is then broadened to include liability for damage to the Indian lands caused by fires started by the Company on other lands. The use of the phrase "as well as" would seem to imply a comparison of two types of liability for fire rather than a comparison of liability for fires started on other lands and liability for all damages, whether by fire or "other wise sustained."

    Examination of the files of 1909 tends to confirm this construction. Before the stipulation was executed, Thomas R. Benton, attorney for the Great Northern Railway Company, raised objections to this provision of the stipulation in a letter to the Commissioner of Indian Affairs, dated October 6, 1909, in which he said:

    "Stipulation No. 3 provides that the Company's liability for damage by fires should be determined by the laws of the State or of the United States, if applicable thereto. This stipulation is objectionable in that it appears to make the Commissioner of Indian Affairs the

sole judge of the Company's liability under United States or State laws, and to deny to the Company the right to resort to the Courts to determine such liability where in its judgment the liability is doubtful or does not exist. If it is the intention of the stipulation to require the Company to pay to the Commissioner of Indian Affairs damages for fire only in cases where its liability is admitted by the Company or has been adjudged by the Court, then the stipulation is not objectionable. It should, however, be modified so as to make the intention clear." (Italics supplied.)

    It would seem to be not without significance that in these deliberate references to section 3 of the stipulation counsel points out that the liability for damage by fires is to be determined by applicable law and does not include damages "otherwise sustained" within the scope of his attack. It would also seem that this was the result of more than phraseological accident. In March 1909, Congress amended .the criminal code to prohibit starting and abandoning fires on the public domain (35 Stat. 1098). During the same month, the State of Washington adopted a criminal code making it a misdemeanor to operate or permit to be operated "in dangerous proximity to any brush, grass or other inflammable material, any engine or boiler which is not equipped with la modern spark arrester, in good condition . . ." and making it a misdemeanor to "willfully or negligently set, or fail to carefully guard or extinguish any fire . . ." when timber or property of another is thereby endangered (Laws of 1909, ch. 49, secs. 271, 272). It may well be that additional legislation relating to fires was anticipated; the next year Congress amended the 1909 statute to prohibit the building of fires "upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under authority of the United States, or upon any Indian allotment . . ." and leaving such fires before they were extinguished (36 Stat. 857). In 1911, the State reenacted with certain amendments an earlier statute (Laws of 1905, ch. 164) establishing penalties of from $10 to $50 per day for conduct deemed to create fire hazards, including the operation of spark-emitting locomotives (Laws of 1911, ch. 125, secs. 14 and 15). Whether or not these specific changes in the statutory law were anticipated, apparently the parties recognized that the rules of liability for fire damage were in a somewhat fluid state and they agreed to determine responsibility of the company for such damage by applicable State or Federal law, then in force or subsequently enacted. But there was no intention, it would seem, to so limit the liability for damages otherwise sustained as a result of the operation of trains on the right-of-way.

    The views of the Department on the interpretation of the stipulation are set forth in the memorandum from the Acting Commissioner of Indian Affairs, dated August 26, 1909, to the Secretary, where it is indicated that the language of section 3 was criticized by counsel for another railroad, the Olympic-Peninsula Railway Company, on the ground, among others, "that the liability for damage which may be caused by fire should be governed by the common law or by statutory laws where the latter modifies common law; that to require the company to pay, on demand, to the United States, through the Commissioner of Indian Affairs, for any and all damage caused by fire or otherwise by reason of the use and occupancy of the right of way would be substituting executive finding for the tribunal established by law for determining such liability and would be depriving the company of its legal rights and defenses."⁴ The Acting Commissioner indicated that his office had carefully considered the question and concluded that, "as a matter of protection to the interests of the Indians and the Government," "such a stipulation as is under consideration should be required of every applicant for a right of way for a railroad line." It was further observed:

    ". . . The stipulations were originally called for on the recommendations of the Forest Service and the Reclamation Service, and have been required in all cases of this character recently, and this is the first objection raised. The Office believes that the Department has ample authority under the Act of March 2, 1899, supra, to prescribe such requirements if it be to the best interest of the Indians that this be done.

    "There seems to be no good reason why the railroad company should object to paying the

Indians for all damages caused by fire or otherwise, by reason of the occupancy of the right of way by the company, for if the right of way were not granted the damage could not occur. It is believed that the question of liability may safely be left to the discretion of the representatives of the Department rather than go to the additional expense of establishing such liability by court proceedings."

    If, despite this contemporaneous construction, the courts should hold that the final clause of the stipulation requires that all claims be determined in the light of applicable State or Federal law, I am aware of no Federal statute which governs liability for damage to livestock on rights-of-way carved from former Indian lands. The statute involved in United States v. Oregon Short Line R. Co., 113 F. (2d) 212 (C.C.A. 9th, 1940), does not apply to lands in the Colville Reservation. Moreover, the crucial differences between the language of that statute and the language of section 3 of the stipulation makes the court's decision support for little more than the proposition that a clear intent to impose absolute liability on a railroad as a condition to a grant of a right-of-way will be effectuated by the courts. The lack of a clear indication that absolute liability was here intended can hardly be supplied by an appeal to general principles found in such cases as Minnesota v. United States, 305 U.S. 382.

    While the present claim is small, the issue is not unimportant since it involves the scope of liability under language employed in a number of stipulations with railroad companies. Before the case can be submitted to the Attorney General, a clear and effective theory of liability should be formulated, and a formal demand for the amount of damages sustained should be made by the Commissioner, rather than the Superintendent. I suggest, however, that any further communication to the railroad company first have the approval of this office.

                                                                                                                                                      FOWLER HARPER,

M-33615                                                                                                                                                        May 2, 1944.

Re:

Distribution under the act of December 5, 1942 (56 Stat. 1040), of the share of the proceeds of sale of the Tacoma Hospital site credited to the estate of a deceased Puyallup Indian enrollee.

1. The act of December 5. 1942, supra, requires that the share of a deceased enrollee be paid to his heirs.

2. The proceeds of sale of the Tacoma Hospital site were tribal funds to which no member of the Puyallup Tribe who died prior to enactment of the act of December 5, 1942, supra, had a vested right subject to testamentary disposition. Solicitor's opinion of November 22, 1921 (48 L.D. 479), cited and distinguished.

3. The Puyallup tribal fund was individualized by the act of December 5, 1942, supra, and only those who meet the requirements of the act are entitled to share in the per capita payment authorized by the Department on February 1, 1943.

4. A legatee of a deceased Puyallup enrollee has no greater right than his testator had and is not entitled as a legatee to share in the per capita payment because he fails to meet the requirements of the statute and departmental authority designating the recipients of the fund.

    In an informal memorandum dated September 16, 1943, your Office requested an interpretation of section 2 of the act of December 5, 1942,¹ which provides for the distribution of the proceeds of sale of the Puyallup tribal property commonly known as the Tacoma Hospital site.

    The specific question presented is whether the funds credited to deceased Puyallup enrollees under the act must be paid to their heirs or whether they may be distributed to the legatees named in their wills. The Superintendent of the Tulalip Agency, in a letter dated September 13, 1943, reported that he is withholding distribution

____________
  ¹ 56 Stat. 1040.
 

in two cases awaiting instructions. In one other case he has distributed the funds to the legatee named in the will.

    By the act of August 11, 1939, ² Congress authorized the Secretary of the Interior to acquire from the Puyallup Tribe of Indians, for Indian sanatorium purposes, the tribal property which is the site of the Tacoma Indian Hospital. Section 2 of the act authorized the appropriation of funds to complete the purchase and provided for the distribution of the proceeds of sale in equal shares to the members of the Tribe as determined by its constitution and bylaws approved May 13, 1936. Opposition of the majority of the tribal membership to distribution of the funds under ,the method provided by the 1939 act resulted in enactment of the act of December 5, 1942, supra, section 2 of which reads:

    "That when the corrections authorized in Section 1 hereof shall have been made, the sum of $228,525, authorized to be appropriated by the Act of August 11, 1939 (53 Stat. 1405), for the acquisition of complete title to the Puyallup Indian Tribal School property at Tacoma, Washington, for Indian sanatorium purposes, shall be distributed by the Secretary of the Interior, under such rules and regulations as he may prescribe, to those persons, or their heirs, whose names appear on the said roll approved on May 12, 1930, as herein modified, and section 2 of said Act of August 11, 1939, is hereby amended accordingly."

    ". . . to distribute to members of the Puyallup Tribe of Indians whose names appear on the final roll approved May 12, 1930, and modified by the aforementioned act, share and share alike, the sum of $228,525, representing proceeds from the sale of the Puyallup Tribal School property at Tacoma, Washington. . . . Payment shall be made to adults direct from the roll, and shares of minors may in your discretion be paid either to parents or guardians, or they may be deposited as individual Indian money. Shares of deceased enrollees shall be credited to heirs, if determined, and if not determined, shall be credited to the estate pending formal determination of heirs. Since the per capita share will be more than $250, you are not authorized to determine heirs, but should report such cases for hearings by the Examiner of Inheritance."

    The right go participate in tribal property is generally recognized as an incident of tribal membership. ³ This right, however, is of such nature that it is not descendible,⁴ nor is it transferable by operation of law or voluntary alienation unless made so by act of Congress or applicable tribal law and custom.⁵ As to the nature of tribal property and the rights of individual members therein, it was declared, in the case of Sizemore v. Brady ⁶ that:

    ". . . the Creek lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. The right of each individual to participate in the enjoyment of such property depended upon tribal membership, and when that was terminated by death or otherwise the right was at an end. It was neither alienable nor descendible."

____________
  ² 53 Stat. 1405-1406.

  ³ Cohen, Handbook of Federal Indian Law, Ch. 9, sec. 3; LaRoque v. United States, 239 U.S. 62.

  ⁴ Sizemore v. Brady, 235 U.S. 441; Gritts v. Fisher, 224 U.S. 640; Woodbury v. United States, 170 Fed. 302; Sloan v. United States, 118 Fed. 283, app. dism. 193 U.S. 614.

  ⁵ E.g.. acts of June 28, 1906 (34 Stat. 539), and April 18, 1912 (37 Stat. 86), relating to pro rata shares in the Osage mineral estate. See also Op. of Solicitor, I.D., November 22, 1921 (48 L.D. 479).

  ⁶ 235 U.S. 441.
 

treats it as tribal property and offers no basis for the application of a set of rules contrary to those cited above for determining the property rights of members. The situation here presented is to be distinguished from that obtaining in the case decided by the Solicitor on November 22, 1921,⁷ involving the devise of an "expectancy" which consisted of the right to share in the final division of the remaining unallotted lands of the Crow Reservation. In that case it was held that under the special legislation providing for the allotment of the remaining unallotted lands of the Crow Reser [sic] ceive an allotment was a descendible one subject to the testamentary disposition of the Indian. The opinion says, in part:

    ". . . In other words, the right so to share is a descendible one which, in case of death intestate, inures to the benefit of the heirs. . . . If the expectancy consists of a mere 'float' which ceases at death, then there is nothing for a testator to convey by will. If the right, however, is a descendible one which in case of intestacy inures to the benefit of the heirs, the rule is now otherwise. . . . Big Lark, being entitled to an additional allotment on the Crow Reservation, and those lands, in effect, being held in trust by the United States for her benefit, I am of the opinion that, . . . she had the power to dispose of such additional allotment by will."

    In the individualization of tribal property and creation of vested property rights in the members, Congress exercises a plenary power conferred upon it by the Constitution of the United States. This authority, subject to certain limitations not pertinent here,⁸ includes not only the power to prescribe the time and mode of distribution but also the power to designate the ultimate recipients of the property.⁹ In the case of tribal funds, individualization usually occurs when payment is made or when the share of the individual is credited to him,¹⁰ but in any given case reference must be had to the Congressional act itself to ascertain the plan of distribution.

    In the instance at hand Congress directed that payment be made to those Puyallup Indians whose names appear on the approved roll of 1930, or their heirs. The word "heirs" has been given various definitions, depending on the circumstances surrounding its use. In a broad or loose sense it may refer to the persons succeeding to the property of a decedent, either by inheritance or by purchase under a will. The most common examples of loose construction are found in the interpretation of wills and deeds where the courts often given the word "heirs" its broader meaning in order to effect the intention of the testator or grantor as to the disposition of vested property.¹¹ In these examples of loose construction there is an implicit recognition of the right of a person to make a lawful disposition of his own property. The word "heirs" also has a technical meaning, however, in which it refers to those persons on whom the laws of succession cast the property of an intestate.¹² It is in the field of statutory construction that the word is usually given its more technical meaning, with the result that beneficiaries under a will are not included within the term unless the context of the statute clearly shows an intention to include them.¹³

    It is my opinion that the nature and purpose of the act of December 5, 1942, supra, indicate that the word "heirs" should be strictly construed so as to exclude the legatees of deceased enrollees. By individualizing the tribal property the statute created vested rights where none existed before. It is therefore prospective in nature and negatives the idea that the individual enrollees enjoyed vested property rights prior to the date of its enactment. If it had been intended that the date of attachment of individual rights be retroactive in order

___________
  ⁷ 48 L.D. 479.

  ⁸ Cohen, Handbook of Federal Indian Law, Ch. 5, sec. 5A, discussing Chippewa Indians v. United States, 301 U.S. 358, aff'g., 80 Ct. Cl. 410.

  ⁹ Cohen, Handbook of Federal Indian Law, Ch. 9, sec. 6, and cases cited.

  ¹⁰ Op. of Solicitor, I.D., M. 8370, August 15, 1922; 33 Op. Atty. Gen. 60, November 4, 1921.

  ¹¹ See In re Beck's Estate, 225 Pa. 578, 74 Atl. 607; Words and Phrases, vol. 19, p. 297.

  ¹² See Words and Phrases, vol. 19, p. 200 et seq.; and Hays v. Wyatt, 19 Idaho 544, 115 Pac. 13, 34 L.R.A. (n.s.)
397.

   ¹³ E.g., acts of May 27, 1908 (35 Stat. 312), and January 27, 1933 (47 Stat. 777), which require court approval of the conveyances of full-blood heirs, construed as inapplicable to devisees in McKinny v. Bluford, 197 Pac. 430; Burgess v. Nail, 103 F. (2d) 37, 42; Grisso v. United States, 138 F. (2d) 996; Murray v. Ned, 135 F. (2d) 407, cert. denied November 8, 1943, 88 L. ed. Adv. 49. For other examples of strict construction of the word "heirs" see Higginbothom v. Higginbothom, 17 Ky. 271, 197 S.W. 627, L.R.A. 1918A 1105; and Newton v. Newton, 77 Tex. 508, 14 S.W. 157.
 

to bring the share of a deceased enrollee within the scope of his will it is reasonable to believe that some language appropriate to that end would have been used.¹⁴ Without allowing the Secretary any latitude in fixing the class of ultimate recipients, and without the use of qualifying language the statute directs the Secretary to pay the share of a deceased enrollee to his heirs. This is a mandatory direction to pay to a class.¹⁵ For the reasons stated, I feel that a legatee of a deceased enrollee cannot be considered an "heir" within the meaning of the term as used in this act.

    There are other persuasive reasons aside from those already mentioned for excluding legatees of deceased enrollees from sharing in the Puyallup per capita payment. Due to the very nature of a will or testament it is well settled that a testator cannot make testamentary disposition of property rights or interests unless they belong to him or he has a legal power of disposition at the time of his death.¹⁶ Standing as a corollary to that principle is the rule that a beneficiary under a will is a gratuitous taker and acquires no greater right, as against third persons, than his testator had.¹⁷ Applying those principles to the present case it is evident that a legatee of a deceased enrollee takes nothing. His testator had no property right subject to testamentary disposition. The will is the only source of title the legatee has and the property in question is outside the scope of that instrument. In this connection, the legatee is in a position somewhat similar to that of a legatee seeking to recover under a State statute for the wrongful death of his testator. In each case the property right is a creature of statute, collectible only in accordance with the terms of the statute, and not subject to testamentary disposition by the decedent unless expressly made so by the statute.¹⁸ As I have indicated above, a legatee of a deceased Puyallup enrollee does not meet the requirements of the act of December 5, 1942, supra.

    In authorizing the per capita payment the Secretary prescribed that where the heirs of a deceased enrollee had already been determined by the Department such determination should be adopted for use in distributing the share of the enrollee. As those enrollees whose heirs had not been previously determined by the Department it was prescribed that their shares should be placed to the credit of their estate to await action by the Examiner of Inheritance. The fact that the enrollee died prior to individualization of the tribal property and lefty no title inuring to his heirs at the date of his death offers no obstacle to the authority of Congress to direct its distribution to his heirs.¹⁹

    In his letter of September 13, 1943, the Superintendent of the Tulalip Agency reported that he had already distributed the share of Silas Cross, a deceased Puyallup enrollee, who died testate on June 25, 1936, to the executrix named in his will. This will was approved by the Department on March 26, 1938 (Indian Office file 7310-38). The letter from your Office transmitting the will for considerations recommended that the instrument be approved and that authority be granted for payment to the executrix of funds then held to the credit of the estate and "such other Tribal payments as may accrue to said estate." It is believed that the action taken by the Department in that case was without authority insofar as it might be construed to predetermine the disposition of non-existent property, and it is suggested that recommendations be submitted for clarification of the decision. As the distribution already made of the share of Silas Cross in the per capita payment authorized on February 1, 1943, it appears that such distribution was not in accord with the views I have expressed above. The record shows that Silas Cross was survived by his wife, whom he named as sole beneficiary in his will, and seven children. It may be that the funds paid to the widow were used for the benefit of herself and the children but there is no information before me at the present time on this phase of the matter.

    I am returning the case of Louise Douette, a deceased Puyallup enrollee, for action in accordance with the conclusions reached in this memorandum.

                                                                                                                                                        FOWLER HARPER,

   ¹⁵ Crawford, Statutory Construction, secs. 264 et seq., stating that a statute which creates a new right, privilege or immunity, and regulates the manner of its exercise, should be strictly construed and treated as mandatory; and citing Wheaton v. Peters, 8 Pet (U.S.) 591.

   ¹⁶ See Page on Wills, vol. 1, sec. 197, citing White v. Chellow, 108 Wash. 526, 185 Pac. 619; Stewart v. Todd, 190 Ia. 283, 20 A.L.R. 1272; 173 N.W. 619, 180 N.W. 146; Snyder v. Snider, 202 Ky. 321, 259 S.W. 700; McLaughlin v. McGee, 131 Md. 145, 101 Atl. 682; Clark v. Clark, 319 Mo. 591, 4 S.W. (2d) 807; In re Curtis' Estate, 109 Vt. 44, 192 Atl. 13.

   ¹⁷ Page on Wills, vol. 1, see. 197.

   ¹⁸ In re Lister's Estate, 22 Ariz. 185, 195 Pac. 1113; Sturges v. Sturges, 126 Ky. 80, 12 L.R.A. (n.s.) 1014, 102 S.W. 884.

   ¹⁹ Shulthis v. McDougal, 170 Fed. 529, app. dism. 225 U.S. 561.
 

 The royalty to be paid for limestone removed from the Osage Reservation under leases executed by the Osage Tribal Council and approved by the Department under section 3 of the act of June 28, 1906 (34 Stat. 539), is not to be determined by the royalty schedule approved by the President on July 28, 1926, since that schedule did not include limestone.

The Secretary of the Interior must be presumed to have acted by direction of the President in approving limestone mining leases on the Osage Reservation executed by authority of the Osage Tribal Council and providing for the payment of a specified annual sum rather than a royalty at a specified percentage of the value of the limestone removed.

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    At your suggestion I have reconsidered the legal questions involved in the demands made by the Department on Joseph D. Mitchell for the payment of $21,917.57 as additional royalty under Mr. Mitchell's limestone mining lease with the Osage Tribe of Indians. The amount demanded of Mr. Mitchell represents the difference between the amount Mr. Mitchell has already paid in accordance with the terms of his lease with the tribe and a royalty of 10 percent of the value of the limestone removed from the leased premises.

    Mr. Mitchell, who was the surface owner of the S1/2 SW1/4 Sec. 14, T. 25 N., R. 8 E., Osage County, Oklahoma, formerly a portion of the allotment of Tsa me tsa, Osage Allottee No. 231, entered into a limestone mining lease with the Osage Tribe of Indians on March 4, 1930, "for a period commencing even date herewith and not extending beyond April 8, 1946." The lease was executed on behalf of the tribe by Fred Lookout, Principal Chief, under authority of a resolution of the Osage Tribal Council dated December 22, 1924. The lease provided chat Mr. Mitchell was to pay for the benefit of the tribe, "as royalty, rent, the sum of One Hundred Dollars, ($100.00) when this lease is approved by the Secretary of the Interior and One Hundred Dollars, ($100.00) in advance each year thereafter as long as this lease shall be in force and effect." The lease provided further that the lessee might surrender all or any portion of the tract at any time by paying all amounts then due. As to the portion so surrendered, the lessees was to be relieved of all further obligations and liabilities. The lease was approved by
the Department on March 14, 1930.

    On March 14, 1932, Mr. Mitchell made application to relinquish the SE1/2 SW1/4 Sec. 14. The relinquishment was accepted on April 4, 1932, when the annual payments on the remaining lands subject to the lease were reduced to $50. Mr. Mitchell continued to pay the $50 annually until the above mentioned demands were made upon him.

    The claim against Mr. Mitchell for the additional payment was based on the Department's decision hat the President had, on July 28, 1926, pursuant to section 3 of the act of June 28, 1906 (34 Stat. 539), fixed the rate of royalty on limestone removed from the Osage Reservation at 10 percent of the value thereof and that Mr. Mitchell was liable for the full amount of the royalty notwithstanding the fact that, through an oversight, the royalty fixed by the President had been completely disregarded and a different rate of royalty had bed inserted in Mr. Mitchell's lease. The Department held, in effect, that it was without authority to change the rate of royalty fixed by the President or to waive the claim of the Osage Tribe to the 10 percent royalty. At the request of the Osage Tribe, the Department proposed to cancel Mr. Mitchell's lease if he failed to pay the amount demanded and to refer the claim of the tribe to the Attorney General for such action as he might deem proper.

    It is my opinion that the prior decisions of the Department in this matter are in error and that the claim asserted against Mr. Mitchell is without legal foundation.

    The act of June 28, 1906, supra, provided for the equal division of the lands and funds of the Osage Indians among the individual members of the tribe, according to a roll authorized to be made by that act. After directing the manner in which the lands should be allotted, section 3 of the act provided:

    "Sec. 3. That the oil, gas, coal, or other minerals covered by the lands for the selection and division of which provision is herein made are hereby reserved to the Osage tribe for a period of twenty-five years from and after the eighth day of April, nineteen hundred and six; and leases for all oil, gas, and other minerals, covered by selections and division of land herein provided for, may be made by the Osage tribe of Indians through its tribal coun-

cil, and with the approval of the Secretary of the Interior, and under such rules and regulations as he may prescribe: Provided, That the royalties to be paid to the Osage tribe under any mineral lease so made shall be determined by the President of the United States: And provided further, That no mining of or prospecting for any of said mineral or minerals shall be permitted on the homestead selections herein provided for without the written consent of the Secretary of the Interior: Provided, however, That nothing herein contained shall be construed as affecting any valid existing lease or contract."

    No interest was evidenced in the Osage Reservation for mining purposes other than oil and gas until about 1919 when a number of applications were made for lead and zinc mining leases. In November of that year the Commissioner of Indian Affairs proposed regulations to govern the leasing of the Osage lands for mining purposes other than oil and gas.

    In his letter transmitting the proposed regulations to the Secretary, the Commissioner stated that the Osage Reservation was not considered particularly promising for the production of minerals other than oil and gas. He stated, however, that a number of applications had been received for lead and zinc leases and that he considered it advisable that regulations be promulgated at that time. The Commissioner called attention to the fact that the rates of royalty required by the regulations were subject to the approval of the President in accordance with section 3 of the 1906 act and he stated that before any leases were submitted for departmental consideration the President would be required to approve the rates of royalty provided in the regulations.

    On November 11, 1919, the Department promulgated the proposed regulations. These regulations provided, among other things, that tracts should be offered for lease to the highest responsible bidder at public auction. After setting forth the rates of royalty to be charged for certain specified minerals, the regulations provided for a royalty for substances other than those minerals specifically enumerated in the regulations at a rate of "ten percent of the value at the nearest shipping point of all ores, metals or minerals marketed." The President w not requested at that time to approve the royalty schedule.

    Thereafter on June 3, 1921, the Superintendent of the Osage Agency called attention to the fact that the regulations approved by the Department in 1919, while not specifically mentioning stone or brick, indicated that a royalty of 10 percent of the value thereof would be required. The Superintendent stated that the Osage Tribe as well as those making application for the mining of stone and brick, including rock to be crushed for road building, had indicated that they considered such royalty too high. Inasmuch as the principal damage was to the surface owner, the Superintendent suggested that only a nominal amount should be required to be paid to the tribe. He suggested further that it was not feasible to require leases for such minerals to be made at public auction and that private leases should be permitted. He recommended that the regulations be considered as not applicable to such minerals and that instead applications for leases for mining such minerals, accompanied by a contract with the surface owner for damages caused by extracting such minerals, be submitted to the Superintendent and by him referred to the Osage Council for consideration. He recommended further that the Principal Chief of the tribe be permitted, when authorized by the Council, to submit for consideration by the Department such contracts as the Council might deem proper on behalf of the tribe for mining such minerals. On June 4, 1921, the Commissioner concurred in the suggestions of the Superintendent and recommended that they be adopted in making leases for stone and brick on the Osage Reservation. The recommendation was approved by the Department on June 9, 1921.

    On June 25, 1921, the Osage Tribal Council passed a resolution which, after reciting that all minerals, including stone, had been reserved to the tribe by the act of June 28, 1906, supra, and that the regulations had been so amended that the Council could fix the terms of said leases subject to the approval of the Secretary of the Interior, authorized the Principal Chief to execute stone mining leases after he had found that satisfactory settlement had been made between the proposed stone mining lessee and the allottee or the surface owner of the land described in the proposed lease. The resolution provided that the stone mining lessee should pay as royalty to the Osage Tribe a yearly sum of $200 for each quarter section leased or a proportionate sum if less than a quarter section were leased and that the term of such leases should not run beyond the 8th day of April
 

1946. On December 22, 1924, the Tribal Council passed another resolution similar to that of June 25, 1921. It was under the authority of this second resolution that Mr. Mitchell's lease was executed. That resolution, after reciting that all minerals had been reserved to the tribe by the acts of June 28, 1906, supra, and March 3, 1921 (41 Stat. 1249), that limestone had been classed as a mineral, that leases had previously been entered into between the Principal Chief on behalf of the tribe and sundry persons for the mining of limestone, and after reciting again that the regulations had been so amended that the Council could fix the terms of leases providing for the mining of stone and brick clays subject to the approval of the Secretary of the Interior, authorized the Principal Chief to execute stone mining leases on the same terms and conditions as those set out in the resolution of June 25, 1921.

    Between 1921 and 1926 the Department approved limestone leases providing for the payment of a flat royalty executed under the authority of resolutions enacted by the Osage Tribal Council. When such leases were transmitted for departmental approval, attention was called to the fact that the leases were executed in accordance with the terms and conditions set out in the letter from the Osage Superintendent approved by the Department on June 9, 1921, and by authority of resolutions of the Osage Tribal Council authorizing the Superintendent to execute stone mining leases on the conditions set out therein.¹

    On July 8, 1926, this Department addressed a letter to the President in which attention was called to section 3 of the act of June 28, 1906, supra. In that letter the statement was made:

    "No leases other than oil and gas on which rates of royalty have previously been fixed, have heretofore been executed on the Osage Indian Reservation, Oklahoma. There is now pending before this Department a gold, silver, lead and zinc mining lease, and as the above act requires that the rates of royalty shall be fixed by the President, it is respectfully recommended that the following schedule of rates set out in regulations approved by the Secretary of the Interior be fixed as the minimum rates at which such leases may be made."

    " (d) For substances other than gold, silver, copper, lead, zinc, coal, and asphaltum the lessee shall pay quarterly a royalty of 10 per cent of the value at the nearest shipping point of all ores, metals, or minerals marketed."

    The letter then set forth the royalties for lead and zinc. That letter was approved by the President on July 28, 1926.

    Notwithstanding that action by the Department and the President, the Osage Tribe continued to negotiate private leases for the mining of limestone containing a flat annual rental and the Department continued to approve such leases. The last of such leases to which reference is made in the attached record is that negotiated with the City of Pawhuska and approved by the Department on July 14, 1939.²

    On April 17, 1940, just prior to the time the Department first questioned the validity of Mr. Mitchell's lease, the Assistant Commissioner of Indian Affairs called to the attention of the Secretary the fact that the amendment of June 9,1921, to the regulations of November 11, 1919, had not been included in the codification of Federal regulations. He stated:

    "No minerals of great value other than oil and gas have been found on the Osage Reservation. The only mineral known to occur in commercial quantities is limestone. There are great quantities of this and only a limited market so that there is no competition in obtaining leases leases. The requirement that mineral leases other than oil and gas must be sold at public auction, therefore, is not necessary and causes unnecessary work and delay in the sale of limestone leases.

    "At the present time Osage County desires to obtain a substantial quantity of limestone for use on W.P.A. projects. The county authorities and the Tribal Council have agreed upon the terms to be placed in the lease and there is no need whatever to have the lease sold at public auction. To require such action might defeat the purpose of the lease and result in a considerable loss to the Indians."

___________
  ¹ See letters of October 6, 1923, October 12, 1923, and May 25, 1925, approving rock mining and limestone leases in favor of Dick Easter, Philip Mitchell and R. J. Pleasant, respectively, in file No. 5-1 (part 13), Osage-leases-general.

  ² See letter to the Commissioner of Indian Affairs dated July 20, 1946, from D. Gentry, an employee of the Osage Agency.
 

erals other than oil and gas might be negotiated with the tribal council. Thus the requirement for the offering of leases at public auction and calling for bids with bonuses in addition to the stipulated royalties³ was eliminated from the Code of Federal Regulations.⁴

    The tribal council had, about that time, become convinced that it was not receiving adequate compensation for its interest in the limestone. It had unanimously requested that Mr. Mitchell's lease be cancelled as void for want of the consideration required by law. The council felt that it had no authority to execute limestone leases at a rate of royalty less than that fixed by the President and that the Secretary of the Interior had no authority to approve such leases.

    Therefore, leases were executed by authority of the council carrying a royalty rate of 10 percent of an agreed valuation.⁵

   In view of the fact that for a period of approximately 20 years limestone leases on the Osage Reservation were privately negotiated on terms mutually satisfactory to the lessee, the tribal council and the Department, and similar in terms to Mr. Mitchell's lease, the failure to insert a royalty provision of 10 percent of the value of the limestone removed in Mr. Mitchell's lease can hardly be called an oversight, nor can it be said to be in conflict with the President's order fixing the royalty rates for minerals on the Osage Reservation. Rather, the consistent practice of the Department in approving limestone leases on terms similar to those embodied in Mr. Mitchell's lease points inescapably to the conclusion that after June 9, 1921, there was no intention that the royalty on limestone should be 10 percent of the value thereof. Any contention that limestone was included in what might be called the catch-all paragraph of the regulations is definitely refuted by departmental action of June 9, 1921, which effectively removed limestone from the royalty schedule provided in the regulations.

    Since the Department had removed limestone leases from the sphere of the regulations of November 11, 1919, prior to the time the royalty schedule was submitted to the President, it must be concluded that when it asked the President to approve the royalty rates set out in those regulations, it did not intend that paragraph (d) thereof should include limestone. This is particularly obvious when consideration is given to the statement in the Department's letter that no leases other than oil and gas had been executed on the Osage Reservation in the light of the fact that limestone leases had been approved under the authority of the
Department's interpretation of the regulations of June 9, 1921.

    Section 3 of the act of June 28, 1906, supra, provides: "That the royalties to be paid to the Osage Tribe under any mineral lease so made shall be determined by the President of the United States." Does this mean that in a situation such as here presented, where there has been no competition for the leases and where it has been necessary to negotiate each lease separately in order to safeguard the interests of the surface owner of the land, it was necessary for the President to approve the royalty fixed in each lease? I think not. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties and it must be presumed as a matter of law that the Secretary's action in approving the numerous limestone leases was done by direction of the President.⁶

    In the case of Chippewa Indians of Minnesota v. United States,⁷ the Indians contended, among other things, that an act of Congress providing for the allotment of lands was not applicable to them for the reason that the President had never directed the manner in which they should consent to allotments in accordance with that act, as required by the act itself. The Court dismissed their contention in this respect with the following words:

    "With reference to an additional contention advanced by plaintiffs that the amendatory act of 1891 never became applicable to the Chippewa Indians of Minnesota for the reason that the President never directed the manner in which they should consent, it is sufficient to say that the Secretary of the Interior, acting with reference to a matter appertaining to his especial duty, may be regarded as having spoken and acted for the President in the premises. Wilcox v. Jackson, 13 Pet. 513; Hegler v. Faulkner, 153 U.S. 109, 117; McElrath v. United States, 102 U.S.

  ⁴ 25 C.F.R. 204.2 (1946 Supp.).

  ⁵ Two limestone leases were approved by the Department on June 21, 1946, in favor of the Highway Commissioners of the State of Oklahoma and seven limestone leases were approved on July 5, 1940, in favor of the County Commissioners of Osage County.

   ⁶ Wilcox v. Jackson, 13 Pet. 498, 512, 513 (1839); Maresca v. United States, 277 Fed. 727 (C.C.A. 2d, 1921), cert. denied 257 U.S. (1921); Porter v. Coble, 246 Fed. 244 (C.C.A. 8th, 1917); Weller v. United States, 41 Ct. Cl. 324, 335 (1906); Belt's. Executrix v. United States, 15 Ct. Cl. 92, 107 (1879)

   ⁷ 90 Ct. Cl. 140 (1940).
 

426; Weller v. United States, 41 C. Cls. 324, 335; Belt v. United States, 15 C. Cls. 92, 107."

    One other point remains for discussion. In his request for reconsideration by the Department of his liability under his lease, Mr. Mitchell reiterated his argument that limestone was not a mineral and that it was never the intention of Congress to reserve the limestone on the Osage Reservation to the tribe by section 3 of the act of June 28, 1906, supra. This argument was answered by your memorandum to the Commissioner of Indian Affairs of August 25, 1942, wherein you pointed out that Mr. Mitchell's argument could not be upheld in view of the continuous practice of this Department to the contrary. I know of no reason why your holding in this respect should be disturbed. Aside from the familiar rule that a tenant, such as Mr. Mitchell, is estopped to deny his landlord's title, it is appropriate to point out that this Department has recently submitted to the Department of Justice a claim of the Osage Tribe against the Concho Sand and Gravel Company for limestone removed by that company from another section of the Osage Reservation without a lease from the tribe. The prosecution of the claim against Concho doubtless will lead to a judicial determination of the question of tribal ownership of the limestone deposits.

    I recommend that Mr. Mitchell be advised that upon reconsideration the Department withdraws its former demands upon him. In this connection attention is called to the fact that after the question of the validity of the lease arose, Mr. Mitchell tendered his check for $50 to cover the lease year ending March 14, 1943. On August 25, 1942, you instructed the Commissioner of Indian Affairs to return Mr. Mitchell's check to him. Mr. Mitchell should, therefore, be called upon at this time for rentals in the sum of $150, representing the annual payments due for the years ending March 14, 1943, March 14, 1944, and March 14, 1945.

    Mr. Mitchell appeared before a Subcommittee of the Senate Committee on Indian Affairs when that subcommittee held hearings last August at Pawhuska, Oklahoma. Through his attorney, Mr. Mitchell submitted a brief on the question of the validity of his lease to the Senate Committee on Indian Affairs. I recommend, therefore, that a copy of this memorandum, if approved by you, be forwarded to Hon. Elmer Thomas, Chairman of the Senate Committee on Indian Affairs, for the information of the Committee.

                                                                                                                                                     FOWLER HARPER,

 Approved and returned to the Commissioner
of Indian Affairs for action in accordance
with the recommendations of the Solicitor:

OSCAR L. CHAPMAN, Assistant Secretary.

    The attached letter concerning land transactions involving the four heirs of Daniel Iron Heart, deceased Rosebud Allottee No. 2297, is returned for further consideration.

    The heirs of Daniel Iron Heart propose to convey 160 acres of land to Mr. H. J, Vogt, a non-Indian, for a consideration of $800. The consideration of $800 is to be paid, not to the heirs, but to the Rosebud Tribe to be used by the tribe through the Rosebud Tribal Land Enterprise in purchasing for the sum of $666 a tract of land belonging to Avery and Bessie Webster, the title to which is to be conveyed to the United States in trust for the Rosebud Tribe. The remainder of the consideration of $800 received for the Iron Heart land is to be used with other tribal funds to the credit of the T.L.E. in purchasing other lands. The ultimate consideration to be received by three of the Iron Heart heirs will consist of assignments of tribal land. The fourth heir will receive as consideration a certificate of interest in the T.L.E.

    Section 4 of the act of June 18, 1934 (48 Stat. 984), provides that, "except as herein provided no sale, devise, gift, exchange, or other transfer of restricted Indian lands . . . shall be made or approved." The first proviso to section 4 permits a sale or transfer of restricted lands to the tribe but this proviso is without application here for the reason that the land belonging to the Iron Heart heirs is not being sold or transferred to the tribe but to a non-Indian. The second proviso to section 4 permits voluntary exchanges of lands of equal value in the interest of consolidation of Indian lands or for the benefit of cooperative associations. This provision is likewise without application. If
 

the transaction be regarded as an exchange, it is not within the permission given because the lands involved are not of equal value. Since an exchange involves a reciprocal transfer of property for property as distinguished from a transfer of property for a money consideration, it is clear that the present transaction is not an exchange. Stripped of nonessentials, the proposal presents a cash sale of the Iron Heart land to a non-Indian, the use of the proceeds of the sale to purchase from the tribe assignments in tribal land and a certificate of interest in the T.L.E., and a purchase by the tribe of land belonging to other non-Indians. The first step in this procedure, that is, the sale of the Iron Heart land, not only is not authorized by section 4 of the act of June 18, 1934, supra, but it is expressly forbidden by that section.

    Section 5 of the act of June 18, 1934, authorizes the Secretary of the Interior to acquire lands for Indians by purchase, relinquishment, gift, exchange or assignment. The authority extends to the acquisition of lands within or without Indian reservations, including trust or otherwise restricted lands. The authority conferred by section 5, though broad, is not helpful in the present situation. While the ultimate purpose is to provide land for an Indian tribe, the consideration to be used in making the purchase is to be raised by the sale of individually owned restricted land to a non-Indian, a transaction which is prohibited by section 4.

    The proposal is further objectionable in the case of three of the Iron Heart heirs for the reason that it involves, not an exchange of land for an assignment of tribal land, but a purchase by them of assignments of tribal land with the proceeds of the forbidden sale. While the constitution of the Rosebud Sioux Tribe (section 7 of Article VIII) permits individual members of the tribe to transfer their lands to the tribe and to receive assignments in the same land or other land of equal value, or a proportionate share in a unit of grazing land, the constitution contains no provision for the purchase of such assignments. The fourth heir, it may also be pointed out, is in the position of purchasing with his share of the proceeds of the sale a certificate of interest in the T.L.E. The bylaws of the T.L.E., as approved by the Department on December 15, 1943, authorize the issuance of certificates of interest only in exchange for lands or interests therein transferred to the United States in trust for the tribe. The bylaws contain no provision for the acquisition of membership in the T.L.E. through the sale of certificates of interest for a money consideration.

    There is no legal objection, of course, to the voluntary transfer of the Iron Heart land to the United States in trust for the tribe and the issuance to the Iron Heart heirs of exchange assignments or of certificates of interest in the T.L.E. Such a transaction is authorized by section 4 and 5 of the act of June 18, 1934, supra, by the constitution of the tribe, and by the bylaws of the T.L.E. After such a transfer is made, the tribe probably could arrange to exchange that land for the land now owned by the Websters provided the Websters will equalize the values of the two tracts by placing improvements equal to the difference in value on their presently owned lands or the difference in value may properly be disregarded if it be found upon further investigation that the Webster land, by reason of its location, is of sufficiently greater value to the tribe to warrant such action. Upon obtaining title to the Iron Heart lands through such an exchange, the Websters could no doubt arrange a sale of that land to Mr. Vogt.

    There are also returned to you two other files, Land Ten & Acq. 9473-44 and 9474-44. The land transfers proposed in these files should be reconsidered in the light of the comments made in this memorandum.

                                                                                                                                                      FOWLER HARPER,

Right of an allottee or his heirs to recover taxes under the act of June 11, 1940 (54 Stat. 298, 25 U.S.C. sec. 352c), as amended by the act of February 10, 1942 (56 Stat. 87, 25 U.S.C. sec. 352c).

The claimants in order to recover must establish the fact that they did not by the acts of mortgaging their land accept the fee.

HARPER, Solicitor:

Memorandum for the Commissioner of Indian Affairs:

    There are returned to you for further consideration your letters dated April 14, 19, and 20 to the Superintendent of the Pine Ridge Indian Agency relating to the applications by the probable heirs of John Lee, deceased, Oglala Sioux Allottee No. 53, Lizzie Hill Justice, Oglala Sioux Allottee No.