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free schools among said Indians, in their midst and for their benefit; and at the expiration of the said fifty years, the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares.

    By a provision in the act of May 18, 1916 (39 Stat. 123, 137), the Secretary of the Interior was authorized "to advance to any individual Chippewa Indian in the State of Minnesota, entitled to participate in the permanent fund of the Chippewa Indians of Minnesota, one-fourth of the amount which would now be coming to said Indian under a pro rata distribution of said permanent fund".

    In the Oakes case after referring to various provisions of the act of 1889 in the following language: "that the cession and relinquishment shall be deemed sufficient as to each reservation, other than the Red Lake reservation if made and assented to in writing by a designated portion of the 'band or tribe of Indians occupying and belonging to' such reservation * * *"; "that, for the purpose of determining whether the requisite number of Indians participate in the cession and relinquishment and of making the allotments and payments mentioned in the act, an accurate census of 'each tribe or band' shall be made"; "that as soon as the census shall be taken * * * allotments in severalty shall be made * * * from the unceded part of the White Earth reservation, such allotments to be made 'in conformity with' the general allotment act of February 8, 1887 (24 Stat. 388, c. 119) "; "that any of said Indians 'residing on' any of said ceded reservations may, in his discretion, take his allotment on such reservation"; "and that all money accruing from the disposal of the ceded lands, after deducting expenses, shall be placed in the Treasury of the United States to the credit of 'all the Chippewa Indians of Minnesota' and be used for their benefit or paid out to them in the manner and at the times stated in the act"-the court held:

    Originally, the test of the right of individual Indians to share in tribal lands, like the Chippewa reservations in Minnesota, was existing membership in the tribe, and this was true of all tribal property. The question therefore arises: Is there any provision of law which broadens this original rule in a manner which is helpful to the appellants or any of them? If not, their effort to obtain allotments from tribal lands must fail, because it is a necessary conclusion from the facts before recited that Mrs. Oakes and Mrs. Jones, although once members of the Mississippi Chippewa tribe, long since ceased to be such, and that Mrs. Andrews and Mrs. Bent, although possessing some Mississippi Chippewa blood, never were members of the tribe; and, if there be such a provision of law, it must be found elsewhere than in the act of 1889, for that act does not in itself alter the original rule in a manner which is helpful to any of the appellants, but contains provisions which, in the absence of some provision of law to the contrary, probably would require that the allotments mentioned therein be confined to tribal Indians.

    * * * And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of
 

such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.

    Following the above references, the court in the Oakes case held:

    These acts disclose a settled and persistent purpose on the part of Congress so to broaden the original rule respecting the right to share in tribal property as to place individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, upon the same footing, in that regard, as though they had maintained their tribal relations. Not only this, but these acts, omitting that of 1865, are general and continuing in their nature and therefore are as applicable to the Chippewas in Minnesota as to other Indians, unless the act of 1889 discloses, either expressly or by necessary implication, that Congress intended otherwise. In our opinion that act does not thus disclose such an intention.

    We conclude that Mrs. Oakes and Mrs. Jones, who formerly were members of the tribe, are within the saving provisions of the acts of March 3, 1875, and February 8, 1887, and so are entitled to share in the allotment and distribution of the tribal property, the same as though they had maintained their tribal relations, but that Mrs. Andrews and Mrs. Bent, who never were members of the tribe, cannot derive any benefit from any of the acts mentioned; and we reach this conclusion with great satisfaction, because it is in accord with rulings of the Secretary of the Interior in cases which are not distinguishable from this. William Banks, 26 Land Dec. Dept. Int. 71; Minnie H. Sparks, 36 Land Dec. Int. 234.

    That all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior Act of Congress shall be construed as to debar such child of such right.

    In 1919 following and pursuant to an opinion rendered by the Solicitor of this Department on February 17, 1919, in which is known as the Kadrie case, Mrs. Andrews applied for tribal annuity payments under section 7 of the act of January 14, 1889, supra. Her application was denied by your office on the ground that in view of the decision in the Oakes case did not come within the saving provisions of the acts of 1875 and 1887, never having been a member of the tribe and therefore was not entitled to the rights claimed by her under the Solicitor's opinion of 1919.

    The act under which Mrs. Andrews is now applying for back annuity payments, that of April 14, 1924 (43 Stat. 95), reads as follows:

    That the Secretary of the Interior be, and he is hereby, authorized to pay, out of any moneys belonging to the Chippewa Indians of Minnesota, such amounts as he may find due any persons of Chippewa blood whose names may have been erroneously omitted or stricken from the Chippewa annuity rolls, or who may have been or may hereafter be found entitled to enrollment for annuity payments authorized by section 7 of the Act of Congress approved January 14, 1889 (Twenty-fifth Statutes at Large, page 642).

tofore placed upon said act of 1889. The report on the bill which subsequently became the act of April 14, 1924, shows that the primary purpose of its enactment was to remove any doubt as to authority under existing law to pay claims for back annuities from the permanent Chippewa trust fund created by the act of 1889, there being no other available funds belonging to the Indians from which such claims could be paid.

    It is true the Oakes case was primarily concerned with allotments of tribal lands. But after all an allotment is only a share in the tribal property. The acts of 1875 and 1887 make no distinction between real and personal property. There is no question that membership in the tribe is necessary to sustain a claim to share in Indian tribal property, was formerly the general rule and obtained in respect of Chippewa lands and money. Tribal membership is equally necessary to entitle an Indian to share in the funds derived from the sale of the tribal lands. This general rule has been modified by statute as pointed out in the Oakes case so as to include those former members who have abandoned tribal relations once existing, but whose rights to share in tribal property are protected by the acts mentioned. No inference, however, can be drawn from wording of the act of January 14, 1889, that any of the funds arising thereunder were to be given to any person who was never a member of any band or tribe of Chippewa Indians in Minnesota. The act of 1889 provides that allotments thereunder shall be made in conformity with the general allotment act of 1887, which expressly recognizes the right to individual Indians who have abandoned their tribal relations to share in "tribal or other property." Reference is made in the Oakes case to both the acts of 1875 and 1887. The former act declared as herein before stated, that an Indian who has abandoned his tribal relations shall be entitled to his distributive share of "all annuities, tribal funds, lands and other property, the same as though he had maintained his tribal relations," and the latter, that an Indian by taking up his residence separate and apart from his tribe and adopting the habits of civilized life does not thereby impair his right to "tribal or other property." These acts contemplate an Indian who is a member of the tribe and therefore has something, some status, to abandon. No legislation has been passed since the act of 1889, to change the above situation. The acts of 1904, 1916 and 1924, merely pertain to the manner in which allotments are to be made and the funds of the tribe paid to the persons found entitled thereto. So that, as stated, in determining rights to tribal property recourse necessarily must be had to the act of 1889.

    In the Oakes case the court referred with approval to the case of Minnie H. Sparks (36 L. D. 234). She was originally a duly enrolled and recognized member of the Chippewa tribe, but her name was dropped from the rolls for nonresidence. The Department after referring to the act of April 28, 1904, supra, held that while residence upon the White Earth reservation is a condition precedent to the right to an allotment of land on that reservation, an Indian does not forfeit his right to annuity payments under section 7 of that act by removing from the reservation and adopting the habits of civilized life. The fact is that Mrs. Sparks lived on the reservation until the death of her mother. Her name was restored to the rolls for annuity payments, on the ground that she had at one time lived on the reservation and was a recognized member of the tribe. The position was taken in the Oakes case that the act of 1889 did not expressly nor by necessary implication displace the saving provisions of the act of 1887, nor render those provisions less applicable to the Chippewas in Minnesota than to other Indians.

    While as hereinbefore stated, the Oakes case was primarily concerned with allotment rights, yet in its discussion the court made no distinction between allotments of land and money payments. The court did refer to acts providing for the distribution of "annuities," "Tribal funds, "tribal or other property," and employed such terms as "deprived thereby of annuities," "right to share in tribal property, " "making the allotments and payments mentioned in the act," "share in the allotment and distribution of the tribal property, the same as though they had maintained their tribal relations"-all strongly indicating that the court did not regard any distinction existed between tribal, real and personal property, the right to each being dependent upon tribal membership.

    It may be repeated here that the great-grandmother of Mrs. Andrews, Margaret Beaulieu, died in 1877, and that neither Mrs. Oakes nor Mrs. Jones, her grandmother and mother, respectively, were recognized members of the Chippewa tribe of Indians in Minnesota at the date of the passage of the act of January 14, 1889, having long prior thereto abandoned their tribal relations; that Mrs. Andrews was never a member of the tribe; that the effect of general legislation (acts of March 3, 1875, and February 8, 1887) is that where an Indian abandons tribal relations to adopt the habits of civilized life, he does not forfeit his share in tribal property, which terms include lands and personal property; that the act of June 7, 1897, confers property rights on the children of an Indian woman who marries a white man and abandons her tribe; that such a woman would have rights under the
 

acts of 1875 and 1887, but said acts do not extend rights to the children; that under the act of 1897, the children get the same rights a mother would have under the acts of 1875 and 1887, provided the mother was recognized by the tribe either at the time the act was passed or at the time of her death; and that as the mother of Mrs. Andrews, Mrs. Jones, was living at the time of the passage of the act of 1897 and was not then recognized by the tribe as a member, Mrs. Andrews took nothing
under that act.

    The foregoing was the situation in respect to rights under the provisions of the act of January 14, 1889, at the time the Solicitor's opinion of February 17, 1919, in the Kadrie case was rendered. Up to that time the well-established rules, principles and decisions above set forth uniformly governed in determining the qualifications essential to entitle Minnesota Chippewas to share in tribal property. At that time the act of April 14, 1924, had not been passed. There was no attempt in said opinion of 1919 expressly to overrule the existing practice in administering the act of 1889, but it did in effect accomplish that purpose in respect to annuity payments under section 7 of that act. There was an attempt to distinguish that case as follows: "The Oakes case, while embracing statements arguendo adverse to the construction here given the statute, is not, in its conclusion upon the precise subject involved opposed to the view herein expressed touching the scope of distribution of the trust fund and its interest yield." In view of the similarity of facts in the two cases and the conclusions actually reached by the court in them Oakes case, direct issue may very properly be taken as to the correctness of the above statement. The fact is that the names of children having a similar status to those denied by the Oakes decision were stricken from the tribal rolls, because of that decision, and their names were restored only because of the opinion in the Kadrie case.

    The precise question submitted in the Kadrie case "for an opinion on the legal points involved" was "as to the rights of certain children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interests accruing upon the fund arising under the act of January 14, 1889 (25 Stat. 642)".

    The facts in the Kadrie case are as follows: Sarah Kadrie, formerly Cogger, was born on the White Earth reservation in 1892 and was recognized as a Chippewa by blood, the degree being stated in some papers as three-eighths and in others as one-eighth. She is referred to in the Solicitor's opinion of February 17, 1919, as being a full-blood Chippewa Indian. She was enrolled at the White Earth Agency, was married to Mall Kadrie who had no Chippewa or other Indian blood, and to this union four children were born, all in Canada. The father of these children was born in Syria, and there is nothing to show that he ever acquired citizenship in the United States. The superintendent at White Earth Agency reported that this family had resided in Canada, except for a period in 1914 and 1915, when it was in Turkey. It appears that three of the children were at one time on the rolls at White Earth Agency and some interest payments were made to the mother in their behalf, but in 1917 their names were stricken from the rolls by direction of your office, reference being made to and following the decision in the Oakes case. It may be said here that as Mrs. Kadrie was married after the act of June 7, 1897, supra, that act did not affect her children as they were not born of a marriage solemnized before its enactment, although said act is referred to in the Solicitor's opinion of February 17, 1919, as though it had some controlling application in the Kadrie case.

    It was contended in behalf of the claimants in the Kadrie case that a specific trust was created by the act of January 14, 1889, and that all children born within the 50-year trust period to persons enrolled and allotted under said act are beneficiaries under the trust, the case of Minnesota v. Hitchcock (185 U.S. 373), being cited in support of the contention. It was said in the Solicitor's Opinion of February 17, 1919, that "the trust touching the funds has as its beneficiaries, not the Indians as a tribe, (the settlers) but the Indians as individuals". The scope of that opinion with reference to the trust fund in question is shown by the following statements in that opinion, all of which statements it will be observed are not entirely consistent with each other:

    "Thus it appears that Indian blood-membership among the individual Indians originally enrolled as together constituting the tribe that created the trust and conveyed the surplus lands giving rise to the trust fund, or descent from those Indians-is made the essential and sole basis of the right to participate in the current interest accruing from the fund and its final distribution. * * * But so the trust is settled and nowhere in its terms of settlement is either residence with or continued or 'recognized' membership of the tribe, or birth on the reservation, or United States citizenship, or any other qualification mentioned, save only being 'a Chippewa Indian', i.e., possession, in whole or in part, of the blood of one of the originally enrolled members of that tribe.

    In the direction for final distribution to 'all
 

the said Chippewa Indians and their issue then living' the word 'issue' is used in its enlarged, not its restricted sense. That is, it includes all ancestors, lineal descendants in the second and subsequent generations as well as in the first generation. * * * The issue then, includes all the lineal descendants of the ancestor. But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust. 'His recognition' by the tribe as such is merely evidentiary of such membership, and is not the sole evidence competent to establish the fact. His descendants (whether children or grandchildren) take an interest not as tribal members but as the ancestors blood; his blood entitling him and them alike, because it was tribal blood.
* * * But the basis of distribution should at all events be solely the possession of blood of tribal members at date of the creation of the trust irrespective of residence or citizenship."

    It is admitted that, as regards tribal property subject to the control of the United States as guardian of Indians, Congress may make such changes in the management and disposition as it deems necessary to promote their welfare. The United States is now exercising, under the claim that the property is tribal, the powers of a guardian and of a trustee in possession. Morrison's contention is that, by virtue of the Act of 1889 and the agreements made thereunder, the ceded lands ceased to be tribal property and the rights of the Indians in the lands and in the fund to be formed became fixed as individual property. The Court of Appeals held this contention to be unfounded. We have no occasion to determine whether it erred in so ruling. The claim of the United States is, at least, a substantial one.

    The court did not define the beneficiaries further than as "the Indians". This was evidently intended to describe those who ceded the lands from the sale of which the trust funds were to be derived. The Commission appointed under the act of 1889 was to negotiate "with all the different bands or tribes of Chippewa Indians in the State of Minnesota", for the except the White Earth and Red Lake reservations, such cession to be deemed sufficient as to each of said reservations except Red Lake, if assented to in writing by two-thirds of the male adults of "the band or tribe of Indians occupying and belonging to such reservations," and as to Red Lake if made by two-thirds of the male adults of all the Chippewa Indians in Minnesota. To ascertain whether a proper number of Indians gave their assent, the Commission was to make an accurate census of "each tribe or band." In all this the band or tribe was the central idea. The individual to be entitled to join in the cession or to be included in the census must have been a member of the tribe or band of Chippewa Indians in Minnesota.

    At the time the opinion in the Kadrie case was rendered it was asserted on behalf of the claimants that the Indians understood when they agreed to the act of 1889 that all children born thereafter were to share in the interest payments and that "the principal when divided was to be divided among the living original enrolled and allotted Indians under said act and 'their issue' then living
 

irrespective of where born." However, nothing was submitted to support the assertion as to the understanding of the Indians, and it is not sustained by the wording of the act. The report of the negotiations (H.R. Doc. 247, 51st Cong. 1st Sess.), which resulted in the acceptance by the Indians of the act of January 14, 1889, affords no support to the assertion. Even if the Indians did so understand the act, it does not necessarily and absolutely follow that their understanding must control, if contrary to the wording and intendment of the act. The rule to govern in matters of this kind is familiar and has often been stated by the courts. In Minnesota v. Hitchcock, supra, speaking of the cession made under the act of 1889, it was said:

    Can it be said that the Indians, making the cession, for a moment supposed that the lands ceded were not to be used for the purpose named, and if the language carries upon its face one obvious meaning, and would naturally be so understood by the Indians, that construction within all the rules respecting Indian treaties must be enforced.

    In La Roque v. United States (239 U.S. 62), the court refused to accept the contention that the Indians understood under this act of 1889 the right to select and receive allotments would not be terminated by death but would pass to the heirs. The understanding of the Indians if established would control, if the language used carried upon its face that obvious meaning, or if in accord with the sense which the words used would naturally be understood by the Indians as opposed to the technical meaning thereof. No inference can be drawn from the wording of the act of January 14, 1889, that any of the funds arising thereunder were to be given to any person who was never a member of any band or tribe of Chippewa Indians in Minnesota.

    In the decision of a case dated March 29, 1918, typical of the position taken by the Department prior to the Solicitor's opinion of February 17, 1919, in the Kadrie case, it was held:

    The act, when read as an entirety, relates clearly to Indians of the several Chippewa reservations who are properly enrolled members of the various tribes and bands and entitled to receive benefits therewith: and the provision for a division of the permanent fund therein provided and its payment 'to all of said Chippewa Indians and their issue then living', at the expiration of fifty years, relates exclusively to all properly enrolled Indians at the time of the passage of the said Act and such of their descendants as may be born to them as members of their tribe and properly enrolled as such.

    This conclusion is borne out by the many rulings of the Department under which certain children of mixed blood parents have been denied enrollment with the tribe to which their mothers belong, and other children born among the tribe have been granted such rights-such decision or rulings having been based primarily on the case of Julia B. Oakes et al., v. United States (172 Fed. Rep. 30).

    A careful reading of the Oakes case shows clearly that the Court had under consideration the said act of January 14, 1889, and held that the issue of mothers once enrolled with the Chippewa of the White Earth Reservation, where such issue was born apart from the reservation, were not entitled to tribal benefits.

tribal rights are not so vested or inherent that they may not be forfeited or abandoned. In other words, the Kadrie opinion is not limited to the children of parents who once had tribal relations and abandoned the same, but permits descendants in general, including the children of those who never were members of the tribe, to participate in annuities and final distribution of the principal fund. Besides, there is nothing in the act of 1889 necessarily calling for the construction of the word "issue"-that is, that it was used in its enlarged not its restricted sense-placed upon it in the Solicitor's opinion of February 17, 1919. Webster's definitions of the word are "progeny"; a child or children"; "offspring". "In law, sometimes, in a general sense, all persons descended from a common ancestor; all lineal descendants; also any one of such persons".

    In the connection in which the term "issue" appears in the act of 1889 it does not necessarily have to be construed as having been used in its enlarged or unlimited sense. There is abundant authority to the effect that in its primary sense the word means "children" or direct issue, and when not qualified it also includes grandchildren. It is only in its secondary meaning that the word has been held to include the issue of issue in an indefinite descending line (23 Cyc. 59, 363), and notes.

    Judged by the construction theretofore put upon the legislation as pointed out herein, and as there is nothing conclusively showing that Congress actually used the word in its enlarged sense or intended by the act of 1924 to disturb former practice and decisions, the word was undoubtedly used in the act of 1889 in its restricted sense. In that sense the word means qualified issue. When so construed no reasonable inference can be drawn from the act of 1889 that any of the funds arising thereunder were to be paid to any person who was never a member of any tribe or band of Chippewa Indians in Minnesota or entitled to such membership.

    As to the character of Indian tribal property the court of claims in Journeycake v. Cherokee Nation, (24 Ct. of C. 281, 302), after stating as a fact that all Indian Lands were communal property says: "The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies, his right of property does not descend; if he removes from the community, it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property in the land as perfect as that of any other person; and his children after him would enjoy all that he enjoyed, not as heirs but as communal owners * * *.

    Upon appeal the decree of the Courts of Claims was affirmed by the Supreme Court (Cherokee Nation v. Journeycake, 155 U.S. 196). This court did not discuss the incidents of communal property, but did speak of the lands as being the common property of the Cherokee Nation, in which all members and citizens are alike interested and alike entitled to share in the profits and proceeds there of.

    The only way to arrive at a conclusion as to what Congress really intended as to the fund in question is to consider the other provisions of the act of 1889 and the construction placed upon the same and similar acts for the disposal of tribal property. The opinion of 1919 construes the provisions of section 7 independently of such consideration. The opinion declined to determine whether or not annuity payments or the final distribution of the permanent fund should be made per capita or per stirpes. The law clearly contemplates that interest payments and final distribution shall be made per capita. This is significant, when analyzed, in indicating that it could not have been the intention for the law to have such a far-reaching effect as that given it by said opinion.

    The crux of the issue here turns primarily on the language in section 7 of the act of 1889: "To all of said Chippewa Indians and their issue then living (at the end of the 50 year period) in cash in equal shares." Equal shares, of course, present no difficulty. The difficulty, if any, rests in the words "all of said Chippewa Indians and their issue then living." Does this mean the Indians originally enrolled by the Chippewa Commission and the issue of such Indians who may be living at the expiration of the period stated? It has been so contended and the Solicitor's opinion of February 17, 1919, holds, in effect, that a modicum of Chippewa blood of an ancestor whose name appears on the original Chippewa rolls is all sufficient to entitle such a claimant to an equal share in the common Chippewa funds. Under such a ruling membership in the tribe is not a controlling or even a determining factor. One drop of Chippewa blood of an enrolled ancestor, ipso facto, entitles the possessor to an "equal share" regardless of membership, tribal affiliation, recognition, residence, or any other requirement. In my view Congress did not intend any such result but that by the act of 1889 Congress simply contemplated a distribution of lands (allotment) to the members of this tribe then living and a like distribution of the tribal funds at the expiration of the 50 year period to the members of the tribe then living. In either event membership in the tribe must of necessity be the determining factor. Recent acts of Congress (42 Stat. 221; 43 Stat. 798), authorize per capita payments from the principal fund to the credit of the Chippewa Indians in Minnesota arising under section 7 of the act of January 14, 1889 "to each enrolled member of the
 

tribe under such rules and regulations as the Secretary of the Interior may prescribe." This should dispose of any question but that these funds are still "tribal" and that membership in the tribe is an essential requirement to participation therein.

    In view of the foregoing my opinion is that the application of Mrs. Andrews should be denied, and that the Solicitor's opinion of February 17, 1919, in so far as it conflicts with prior rules, practice, and decisions in the matter of determining rights and claims to share in the common property of the Chippewa tribe of Indians in the State of Minnesota, should no longer be followed.

                                                                                                                                                      E. O. PATTERSON,

M-20888                                                                                                                                   January 14, 1927.

The Honorable,
The Secretary of the Interior

MY DEAR MR. SECRETARY:

    My opinion is requested in the matter of reopening the findings of the Department in heirship cases, the particular estate involved being that of Good Woman Milk, or Mary Milk, deceased Rosebud Sioux Indian, North Dakota.

    The precise question presented is "whether a decision of more than eleven years' standing should be disturbed, especially in view of the repudication of the petitioner and the transferring of a portion of the estate by the heirs, as found in the original
decision."

    The act of June 25, 1910 (36 Stat. 855), entitled "An Act to provide for determining the heirs of deceased Indians," reads in part as follows:

    "That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive."

    However, there is one phase of the situation about which there ought not to be any question as to the advisability of establishing a definite rule of limitation. That is, where, after determination of heirs, the estate has been sold or entirely distributed among the heirs, or to the extent that there no longer remains sufficient property to the credit of the estate to satisfy whatever claim or claims might arise by reason of a modification of the original finding of heirs, application or petition for reopening such finding ought not to be entertained under any circumstances. This is also a condition as to which previous injury ought to be made before the allowance of any application or petition to reopen.

                                                                                                                                                      E. O. PATTERSON,

M-20888                                                                                                                                     December 21, 1926.

NOTE:

    While I have no question as to the authority of the Secretary to say that he will after a fixed time, treat and consider a finding of heirship final and conclusive for all purposes, I am equally certain that the formulating of a hard and fast rule of limitation to fit all cases, may present considerable difficulty, except in many cases that may arise.
 

    For instance: If a minor or incompetent, while under such disability, is or should be a party to the proceedings but for some reason is not taken into account, and such disability is not removed until after the time fixed for giving absolute finality to a finding has elapsed, should not some provision be made to protect such interests so long as the property to which they relate remains under the Secretary's jurisdiction?

    Or in a case of fraud, clearly shown, but not discovered until the limitation imposed has expired, but where a petition is filed promptly on discovery of it, and the power still remains with the Secretary to relieve without doing violence to any other
interests, should it not be done?

    The reason for refusing to reopen a case under any circumstances after the property has passed out of the jurisdiction of the Secretary is based upon the rule that further consideration by him would be a useless act as he could not correct the error, and is fully justified.

    These things are suggested because if it is intended to formulate a positive rule of limitation, they should be considered, otherwise the benefits to be gained may be outweighed by the injury that results.

    It is settled that the decision of the Secretary in this matter can not be questioned in the courts so long as it rests upon any ground not clearly disclosing an arbitrary disregard of the law, and it seems to me the difficulty, if such it is, can be met in each instance as it arises, by declining to reopen any particular case where it appears that the greatest good will be thus accomplished and by merely assigning as a reason therefor that upon the evidence offered and considered no sufficient reason appears for disturbing the finding made.

                                                                                                                                                      E. O. PATTERSON,

     I am of the opinion that no fixed rule should be made but that individual cases should be settled on separate merits of each case.

M-10068                                                                                                                                  January 16, 1927.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested informally, through the Commissioner of Indian Affairs, with reference to certain questions which arise in connection with the application of The Big Bend Transit Company, a corporation organized under the laws of the State of Washington, for the right to use the waters of the Spokane River where it forms the southern boundary of the Spokane Indian Reservation, and to acquire by grant lands on such reservation necessary for overflow rights and for the erection of a power plant and other structures incident to the beneficial use of said waters, pursuant to the act of Congress of March 3, 1905 (33 Stat. 1006), and to acquire certain lands within the abandoned Fort Spokane Military Reservation, pursuant to the act of May 18, 1916 (39 Stat. 155). The questions submitted can be understood best after a preliminary statement of the facts upon which they are predicated.

    Section 1 of the act of March 3, 1905, supra, reads as follows:

    "That the right to the use of the waters of the Spokane River where the said river forms the southern boundary of the Spokane Indian Reservation may, with the consent of the Secretary of the Interior, be acquired by any citizen, association, or corporation of the United States by appropriation under and pursuant to the laws of the State of Washington."

    Section 3 provides that the compensation to be paid for the land by the applicant shall be determined in the manner prescribed by section 3 of the act of March 2, 1899 (30 Stat. 99), with reference to the acquisition of rights of way by railroad companies through Indian reservations, while section 5 provides that the Secretary of the Interior shall make all needful rules and regulations, not in consistent with the act itself, for the proper execution and carrying into effect of its provisions.

    On July 27, 1909, The Big Bend Transit Company, hereinafter called The Transit Company, having acquired the right to use the waters of the Spokane River by appropriation under and pursuant to the laws of the State of Washington, made application to the Secretary of the Interior for a grant of certain lands adjoining the Spokane River
 

and within the Spokane Indian Reservation, under the said act of March 3, 1905. The project as outlined by the Company provided for power development based upon a 60-foot dam, to be located at a point known as the "Narrows," where the river Sows between, or approximately between, Secs. 19 and 20, T.28 N., R.36 E., W. M. After a field examination, the Director of the Geological Survey objected to the limited height of the dam, and there after the height between low-water elevation and
high-water elevation was fixed at 95 feet.

    In accordance with this adjustment The Transit Company filed an amended application based upon a survey made by an engineer in its employ, and submitted a map of the land it wished to acquire in the Spokane Indian Reservation, including also land in the abandoned Fort Spokane Military Reservation which it wished to acquire under the said act of May 18, 1916. The lands in these reservations are situated upon opposite sides of the Spokane River.

    The amended application was approved on April 13 and August 17, 1916, by notations upon the map submitted in connection with it, and thereafter, on October 9, 1916, 6.39 acres within the abandoned Fort Spokane Military Reservation were patented to The Transit Company. A request for patent to the land within the Spokane Indian Reservation was denied, however, by a departmental decision dated May 10, 1923, wherein it was held that the act of March 3, 1905, was a right of way act which conferred a limited fee only. The Secretary stated that the act contained no authority for the issuance of a patent, and that the title and right acquired by an applicant thereunder was defined and depicted by the map filed and approved in accordance with its provisions.

    During October, 1923, pursuant to departmental instructions of June 30, 1923, and a request from the Commissioner of Indian Affairs, an official survey was made of The Transit Company's right of way in the Spokane Indian Reservation, and in the abandoned Fort Spokane Military Reservation. The survey was based upon the Company's map which had been approved on April 13, 1916, and August 17, 1916, as before stated. The official survey established that The Transit Company's survey as embodied in its approved map was so grossly inaccurate as to require an amended map, and a recommendation to that effect by the General Land Office was approved by the Department on August 24, l924. The official survey was approved on July 15, 1926, and is designated as the survey made by C. W. Pecora, Group 95, State of Washington.

    After the approval of the official survey The Transit Company presented a petition for corrective grants and patents. This petition sets forth that after the Company had given bond the Secretary of the Interior approved its amended application for a grant of lands adjoining the Spokane River, and that on April 13 and August 17, 1916, respectively, he approved the map showing the lands applied for in the Spokane Indian Reservation and those applied for in the abandoned Fort Spokane Military Reservation, with the intention that the approval of the map should operate as a grant of designated lands on the north side of the river and within the Indian reservation; that thereafter a patent was issued for the lands shown by the map to be situated within the abandoned Fort Spokane Military Reservation; that thereafter the official survey, afterwards approved on July 15, 1926, was made; that a large portion of the land shown by this survey to be within The Transit Company's right of way already has been purchased and paid for by it; that the additional land embraced in the right of way comprises land which it is necessary to include in the grant to The Transit Company by reason of the increased power development; and that The Transit Company has complied with all of the requirements of the laws of the State of Washington with reference to the acquisition of water rights.

    By reason of the premises the petitioner prays that upon filing a proper bond a patent may be issued to its conveying the title intended to be conveyed by the act of March 3, 1905, to all the land within the Spokane Indian Reservation contiguous to the Spokane River boundary of the reservation, as shown by the official survey approved July 15, 1926, the maps of which are made a part of the application. The land in question is then described in what purports to be the terms of the survey, and it is stated that the total of such land above the meander line of the river is approximately 821.72 acres, and that the petitioner has already purchased and paid for approximately 324.82 acres of the same, leaving a balance of 446.90 acres to be acquired.

    The petitioner also prays that a patent issue to it under the act of May 18, 1916, for the land located within the abandoned Fort Spokane Military Reservation, which is necessary to its object and which is particularly described in what purport to be the terms of the official survey. This land aggregates approximately 8.57 acres, of which the petitioner has purchased and paid for approximately 7.31 acres, leaving approximately 1.26 additional acres to be acquired. It appears from a pencil notation, however, that the correct aggregate is 8.07 and not 8.57 acres.

    In view of the situation outlined above the Com-
 

missioner of Indian Affairs has submitted the following questions for my consideration:

    1. Have the acts of March 3, 1905, and May 18, 1916, supra, as applied to this case, been superseded by the Federal Water Power Act of June 10, 1920 (41 Stat. 1063), to the extent that their terms are inconsistent with the provisions of that act?

    2. What measure of damages should be applied in determining the amount due to the Indians by reason of the appropriation of the lands in question for the purposes of The Big Bend Transit Company's power project; should the damages sustained on that account be limited to the value of the lands in question for agricultural purposes, or should the damages be increased by reason of the potential value of the lands for power purposes?

    1. The Federal Water Power Act referred to in the first question submitted above embodies a comprehensive scheme for the development of water power and the use of the public lands of the United States in relation thereto, under the supervision and control of a commission which it creates, and under licenses to be granted by the commission. Section 23 of the act provides in part as follows:

    "That the provisions of this act shall not be construed as affecting any permit or valid existing right of way heretofore granted, or as confirming or otherwise affecting any claim, or as affecting any authority heretofore given pursuant to law, but any person, association, corporation, State, or municipality, holding or possessing such permit, right of way, or authority may apply for a license hereunder, and upon such application the commission may issue to any such applicant a license in accordance with the provisions of this act, and in such case the provisions of this act shall apply to such applicant as a licensee hereunder."

    The interest of a grantee in a right of way vests upon the approval of the map illustrating its location. In the case at hand The Transit Company's map was approved on April 13, 1916, as to the Spokane Indian Reservation, and on August 17, 1916, as to the abandoned Fort Spokane Military Reservation. In my opinion The Transit Company had a "permit or valid existing right of way," at June 10, 1920, which was not and is not affected by the Federal Water Power Act, inasmuch it clearly appears that it was the intention of the Government and of The Transit Company that the right of way should include all the land below the 95 foot contour above low water elevation; that the approved map erroneously represented the limits of the right of way; and that this is a proceeding to correct that error and to ascertain what, if any, additional compensation should be required of the company because of the increased area of the tract appropriated and intended to be conveyed.

    2. With respect to the second question submitted it appears that both the value of the land embraced within The Transit Company's right of way, as delineated on its map heretofore approved, and the amount of the damages to be sustained by the Indians because of the appropriation and flooding of lands within their reservation, have been ascertained and paid, and that patent has issued for the portion of the right of way lying within the abandoned Fort Spokane Indian Reservation. These values and damages were ascertained in accordance with the method prescribed by law, and the value of certain of the allotted lands was fixed by orders of court in proceedings instituted for that purpose.

    Under such conditions it is clear that the values fixed by the orders of court are res adjudicata and not open to further adjustment, and, in my opinion, the determination of values and damages with respect to the lands which were not involved in the court proceedings should be considered as equally final. The papers submitted for my consideration disclose no fraud, and there appears to be no reason why the action of the Land Department in fixing values and damages should be held less final
and effective than the orders of the court.

    As regards the additional area which is to be included in The Transit Company's right of way through amendment, in order to accord with the original intent of the parties in interest, it is my opinion that every element of value which attaches to the land, whether it be a value for agricultural or for power purposes, is a proper subject for inquiry and should receive consideration in determining the additional amounts to be paid by The Transit Company.

                                                                                                                                                      E. O. PATTERSON,

M-21849                                                                                                                                  March 19, 1927.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested with respect to a question arising out of a deposit of Indian moneys in the De Smet National Bank of De Smet, South Dakota.

    May 21, 1926, the superintendent of the Pine Ridge Indian Agency, South Dakota, had on deposit with the De Smet National Bank $38,000 of Indian moneys. The bank had given a bond to the United States with E. M. Robinson, Ed Whalen, Thos. Meara, Ed Ellison, William H. Warren, F. P. Hardy, and C. L. Dawley as sureties to secure payment of the deposit. The bank was insolvent and on that day suspended business. Thereupon demand was made upon each of the sureties for payment of the deposit with accrued interest. The sureties do not deny liability but as it appears that enforcement of the claim against them will seriously cripple some of them financially they have urged that the United States file a claim for preference under section 3466, Revised Statutes of the United States. Proof of claim has been filed with the receiver but he has advised that he does not consider such deposits as preferred claims and will admit it only as an ordinary claim. That the same view is entertained by the Comptroller of the Currency is shown by letter addressed by him to the Commissioner of Indian Affairs under date of July 10, 1914, advising that under the decision of the Supreme Court of the United States in Cook County National Bank v. United States (107 U.S. 445), the claims of the United States against insolvent national banks have no priority over those of other creditors.

    Notwithstanding all this, however, the sureties insist that a claim for preference be filed and that the necessary proceedings to enforce priority be instituted, contending that the decision in Cook County National Bank v. United States, supra, has been superseded or overruled by the recent decision of the Supreme Court in Bramwell v. United States Fidelity Company (269 U.S. 483), holding that the United States was entitled to priority of payment out of the assets of the First State Bank of Klamath Falls, Oregon.

    Under these circumstances my opinion has been requested as to whether the United States has priority and as to the advisability of instituting appropriate proceedings to enforce it.

    The right of the United States to priority over other creditors against the assets of a national bank under section 3466, Revised Statutes, was considered and directly ruled on in the case of Cook National Bank v. United States, supra. In holding that the United States was not entitled to priority the court, referring to the National Banking Act said:

    We consider that act as constituting by itself a complete system for the establishment and government of national banks, * * * Everything essential to the formation of the banks, the issue, security, and redemption of their notes, the winding up of the institutions, and the distribution of their effects, are fully provided for, as in a separate code by itself, neither limited nor enlarged by other statutory provisions with respect to the settlement of demands against involvements or their estates.

                *                            *                                *                            *                            *

    This section provides for the distribution of the entire assets of the bank, giving no preference to any claim except for moneys to reimburse the United States for advances in redeeming the notes. When this reimbursement is fully provided for, the balance of the assets, as the proceeds are received, is subject to a ratable dividend on all claims proved to the satisfaction of the receiver, or adjudicated by a court of competent jurisdiction. Any sum remaining after the payment of all these claims is to be handed over to the stockholders in proportion to their respective shares. These provisions could not be carried out if the United States were entitled to priority in the payment of a demand not arising from advances to redeem the circulating notes. The balance, after reimbursement of the advances, could not be disturbed, as directed, by a ratable dividend to all holders of claims; that is, to all creditors.

    These provisions must be deemed, therefore, to withdraw national banks, which have failed, from the class of insolvent persons out of whose estates demands of the United States are to be paid in preference to the claims of other creditors. The law of 1797, re-enacted in the Revised Statutes, giving priority to the demands of the United States against insolvents, can not be applied to demands against those institutions.

    Nearly twenty-five years ago (in September, 1871) the Secretary of the Treasury submitted to the Attorney General of the United States the question of whether the ratable division provided for in the act of Congress deprived the United States, as a creditor of an insolvent national bank, of the power to avail of the preference given by the statute, which provides that the United States shall be preferred out of the effects of an insolvent debtor. (Act of March 3, 1797, c. 20, Sec. 5, 1 Stat. 515.) The opinion of the Attorney General was that the ratable distribution required, when read in connection with other sections of the national bank law, deprived the United States of all preference, except that given for the payment of the notes issued by such banks. 13 Opinions, 528.

    This construction has been the rule administered by the Comptrollers of the Currency in the liquidation of national banks, from that date, and was directly sustained in Cook County National Bank v. United States, ubi supra, * * *. Thus, although for many years in the administration of the act, under a construction given by the Attorney General of the United States, sanctioned by the decisions of this court, the ratable distribution provided by the act of Congress has been deemed so important as to repeal, in so far as it prevented ratable distribution, the general preference given the United States by its own statute, the contention now advanced maintains that this ratable distribution is of so little consequence that it can be overthrown and rendered nothing worth, by the provisions of a general insolvent statute of the State of New York. In other words, that the statute of the State of New York operating upon the national bank laws is more efficacious than would be a statute of the United States.

    Nor is it in an answer to say that the ratio decidendi of the ruling in Cook County National Bank v. United States was the fact that the statute provided that the United States should take security for the debts to become due them by a national bank. In the case presented by the Secretary of the Treasury to the Attorney General for consideration the security in favor of the United States was inadequate, and therefore the question which arose was the right of the United States to collect an unsecured claim in disregard of the rule of ratable division. And such was the state of facts contemplated by the opinion of this court in the Cook County case. This makes it evident that the controlling thought which gave rise to the interpretation sanctioned by this court was the fact that to have allowed the preference in favor of the United States ordained by one of its statutes would have destroyed the rule of ratable distribution established as a protection to and for the benefit of all the creditors of a national bank.

    In view of these authorities, it must be, in my opinion, considered as settled law that national banks which have failed are not in the class of persons out of whose estates demands of the United States are to be paid in preference to other creditors under section 3466 of the Revised Statutes. The case of Bramwell v. United States Fidelity Company, supra, relied upon by the sureties, is clearly distinguishable. The case related to the priority of the United States against the assets of a State bank not a national bank. No consideration of the national banking act nor any other act of Congress indicating any change of purpose as to debts due from State banks to the United States was involved. The distinction between national and State banks on the question of priority was pointed out in United States v. Adams (9 Fed. 2d 628), wherein the court, referring to the decision in the Cook County case said:

    It was held that section 3466 did not apply in the liquidation of an insolvent national bank because of the terms of the banking act which was the later enactment. In other respects, section 3466 is in effect and in the liquidation of a State bank it is applicable.

claim to prior payment over other creditors, particularly where, as here, it is manifest that such a claim can not successfully be maintained.

                                                                                                                                                      E. O. PATTERSON,

Approved: March 19, 1927.
JOHN H. EDWARDS, Assistant Secretary.

M-21642                                                                                                                                    March 26, 1927.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested with respect to the question arising out of the following circumstances:

    February 4, 1926, the Osage County Motor Company sold to Roosevelt Pappin, a 9/64 blood Osage Indian not having a certificate of competency, a Lincoln automobile for $5,768.45. Five notes aggregating this amount were executed by Roosevelt to secure the payment of which he gave mortgages on lands allotted to him as a member of the Osage tribe, and also certain town lots in Pawhuska, Oklahoma. Payments aggregating $1,418.75 appeal to have been made, leaving a balance due of $4,349.70. Claim for payment of this amount from funds in the custody and control of the Secretary of the Interior belonging to Roosevelt has been filed by the Liberty National Bank, assignee of the Osage County Motor Company, with the statement that unless payment is made it will be necessary to foreclose the mortgages and have the mortgaged premises sold to satisfy the indebtedness.

    The entire transaction involving the sale of the automobile, including the execution of the notes and mortgages, was entered into and concluded without the sanction or approval of the Secretary of the Interior and the question presented is whether, in the event the Secretary now declines to give his approval by causing payment of the claim to be made from funds in his custody, the mortgages are valid and enforceable.

    Section 6 of the act of February 27, 1925 (43 Stat. 1008), declares:

    No contract for debt hereafter made with a member of the Osage tribe of Indians not having a certificate of competency, shall have any validity, unless approved by the Secretary of the Interior.

    When the earlier act was passed, however, the only restriction upon the right of a member of the tribe to make a contract for debt was that contained in section 7 of the act of April 18, 1912 (37 Stat. 85), reading in part as follows:

    That the lands allotted to members of the Osage tribe shall not in any manner whatsoever be encumbered, taken, or sold to secure or satisfy any debts or obligation contracted or incurred prior to the issuance of a certificate nor shall the lands or funds of Osage tribal members be subject to any claim against the same arising prior to grant of a certificate of competency. That no lands or moneys inherited from Osage allottees shall be subject to or be taken or sold to secure the payment of any indebtedness incurred by such heir prior
 

to the time such lands and moneys are turned over to such heirs.

    That all just existing individual obligations of adults not having certificates of competency outstanding upon the passage of this Act, when approved by the Superintendent of the Osage Agency, shall be paid out of the money of such individual as the same may be placed to his credit in addition to the quarterly allowance provided for herein.

    The contention made on behalf of the claimant that the restriction does not apply to members of the tribe of less than one-half blood is, in my opinion, untenable. The act contains no limitation as to degree of blood and had Congress intended to exclude such Indians from the operation of the law, it is fair to assume that appropriate provisions to accomplish that result would have been inserted. Nor is there any limitation as to the class of property affected, that is, whether restricted or unrestricted, and it is clear that none was intended. To limit the operation of the law to the restricted property of the members of the tribe would add nothing to the existing law for, as we have seen, such property was already protected by section 7 of the act of April 18, 1912, supra. Manifestly something further was intended and that was to declare invalid any contract for debt whatever the purpose made without the approval of the Secretary of the Interior with a member of the tribe not having a certificate of competency.

    The power of Congress to impose such a restriction is unquestioned. It is settled law that that body not only has power to modify existing restrictions or substitute new restrictions (221 U.S. 286), but while the Indian is still a ward of the Nation to reimpose restrictions on property already freed (246 U.S. 88; 246 U.S. 263). While the legal effect of a contract made in violation of the statutory restriction under consideration has not as yet been judicially determined, such restriction is analogous to the restrictions which Congress in its legislation dealing with the Indians has imposed upon the power of the Indian to alienate or encumber his property and hence the decision of the courts upon the effect of conveyances, encumbrances, etc., in violation of the later restrictions are applicable. It has been settled by repeated decisions of the Courts that such transactions being in contravention of the expressed governmental policy are absolutely null and void (224 U.S. 413; 224 U.S. 458; 227 U.S. 613; 231 U.S. 341; 246 U.S. 227; 249 U.S. 308: 250 U.S. 104; 17 Fed. 2d 116). The transaction being void against public policy, the good faith and motives of one dealing with the Indian in violation of the restriction is immaterial (8 Fed. 2d 564).

    This brings us to a consideration of the question of the validity and enforceability of the mortgages. The mortgaged town lots apparently were acquired by Roosevelt Pappin after the lands had in regular course become unrestricted. It is also urged on behalf of the claimant that as Roosevelt is of less than one-half Indian blood, the restrictions were removed from the lands allotted to him as a member of the Osage tribe by section 3 of the act of March 3, 1921 (41 Stat. 1249), lifting all restrictions against alienation of the allotment selections, both homestead and surplus, of all adult Osages of less than one-half Indian blood. The status of the lands, however, is not in my opinion controlling for two reasons: First, as we have seen, the provision in section 6 of the act of 1925 invalidating contracts for debt made with members of the Osage tribe not having certificates of competency unless approved by the Secretary of the Interior, is not limited in its scope to restricted property but is in terms applicable to all contracts for
 

debt whatever the purpose and, second, as will shortly appear, the validity and enforceability of the mortgages depend not upon the power of the Indian to alienate his property, but upon the validity of the debt to secure the payment of which the mortgages were given.

    The early common law view that by the making of a mortgage the legal title to the land was transferred to the mortgagee, has through the application of equitable principles, largely been replaced by the more modern doctrine prevailing in many States under which a mortgage is regarded not as creating an estate in land but merely as a lien or security for the payment of a debt. This view prevails in Oklahoma. See 9 Okla. 438; 15 Okla. 564; 17 Okla 324; 25 Okla. 199; 67 Okla. 315. Being a lien or security for the debt, the mortgage is a mere incident to the debt (108 U.S. 143, 147), and the existence of the debt is indispensable to the existence of the mortgage (222 SW. 263; Sec. 68, Vol. 19, R.C.L., page 294). In the work last referred to it is stated:

    Since a conveyance cannot be a mortgage unless given to secure the performance of an obligation, the existence of an obligation to be secured is an essential element without which the mortgage instrument is but a shadow without substance. Accordingly, where the obligation secured fails, the mortgage is likewise commonly considered necessarily to be a nullity.

    This transfer also transferred, by operation of law, the ownership of the mortgage which was collateral to the note. Such a mortgage has no separate existence.

    It is the debt which given the mortgage vitality as a charge of the land and generally where there is no debt or obligation there is no subsisting mortgage.

    This leads us to the consideration of the relation a mortgage bears to the debt or obligation it is intended to secure. It is, though in form a conveyance of real estate, in substance a security for the payment of money. As the debt goes to the personal representatives, so the estate constituting the pledge goes with it, and is available according to the original intent as an actual security. The mortgaged estate, until foreclosure, is a pledge only; the relation of debtor and creditor exists, the equity of redemption remains, and the mortgage is extinguished by the payment of the debt. Wearse v. Peirce, 24 Pick. 141; Clark v. Beach, 6 Conn. 142, 159; Norwich v. Hubbard, 22 id. 587. The obligation of the debtor to respond on his note in his person and property is the same as if no security had been given; the rights of the creditor upon the note cannot be curtailed by the fact that there is no security, nor can the obligations of the debtor be varied or enlarged thereby. Rogers v. Ward, 8 Allen, 387, 389. But a very different rule prevails when seeking remedies on the mortgage. In an action to foreclose the mortgage, conditional judgment can only be entered for the amount due on the debt. If there is no mortgage debt due, there can be no judgment. Gen. State., ch. 140, sec. 5; Holbrook v. Bliss, 9 Allen, 69, 77; Wearse v. Peirce, supra.

    It necessarily follows, therefore, that not only the amount due must be inquired into, but whether there is a valid and existing debt to which the mortgage stands as security.

    The rule necessarily to be deduced from these authorities is that a mortgage is effective and enforceable as a lien only if and when it secures a valid claim.

    I conclude, therefore, that the contract for debt made by the Osage County Motor Company with Roosevelt Pappin, unless approved by the Secretary of the Interior, is absolutely null and void, a
 

circumstance which, in my opinion, likewise renders the mortgages invalid and unenforceable.

                                                                                                                                                      E. O. PATTERSON,

M-22121                                                                                                                                   April 12, 1927.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion in connection with the alleged unlawful sale and removal of timber from lands allotted to restricted members of the Choctaw Indian Tribe, Oklahoma, the Choctaws being one of the Five Civilized Tribes.

    In so far as Federal law is concerned, the answer to this question is to be found largely in certain specific legislation by Congress dealing with the Five Civilized Tribes, but before discussing these measures it may be well to advert briefly to the situation obtaining elsewhere as applied to the Indians generally. Under legal principles long since familiar, standing timber forms part of the realty and its removal for commercial purposes is waste, if committed by one having the right of possession only, and trespass if committed by outsiders. Ordinarily, therefore, if alienation of the land is inhibited it carries with it also inability to dispose of the standing timber on such lands in the absence of appropriate legislation to the contrary. This is particularly true in those classes of cases where, as quite frequently occurs, the timber is of more value than the land. As observed by the court in Starr v. Campbell (208 U.S. 527, 534)-a case where the timber was reported to be worth $15,000 while the land was worth only $1,000-"the restraint upon alienation would be reduced to small consequence if it be confined to 1/16 of the value and 15/16 left to the unrestrained or unqualified disposition of the Indian." On the other hand, the Indian has usually been left free to cut and remove timber for purely domestic use, such as firewood, fencing, etc., either from his own allotment or from tribal lands. This may even be extended to the use of timber for building purposes to supply his own immediate needs, including, of course, his family. Further, as to his own allotment, if arable and more valuable for agricultural than for timber purposes, he may remove the timber or even sell it where the primary purpose is to clear the land for cultivation (United States v. Cook,19 Wall. 591, and United States v. Paine Lumber Company, 206 U.S. 467). Holdings of the latter affect but amplify the long standing policy of the Federal Government to encourage the Indians in industrial pursuits, particularly the cultivation of their own
allotments.

    From a comparatively early date, Congress provided certain specific penalties for the unlawful cutting of timber on Indian lands, confined to tribal lands in the beginning but later extended to allotted lands as well: See the act of June 4, 1888 (25 Stat. 166), and section 50 of the act of March 3, 1909 (35 Stat. 1088, 1098) the latter statute being commonly known as The Criminal Code. Neither of these, in express terms, refer to the Five Civilized Tribes, but section 50 of The Criminal Code was amended by section 6 of the act of June 25, 1910 (36 Stat. 857). This provides a fine of $500, or imprisonment for not more than one year, or both, for the unlawful cutting or destruction of timber on Indian lands, tribal or allotted. In section 33 of the latter act, however, we find:

    That the provisions of this act shall not apply to the Osage Indians, nor to the Five Civilized Tribes, in Oklahoma, except as provided in section 32.

    Coming now to a consideration of the legislation dealing specifically with the Five Civilized Tribes, section 16 of the act of June 28, 1898 (30 Stat. 495, 501), after declaring it to be unlawful for any person to claim, demand, or receive for his own use any royalty on oil, coal, asphalt, timber, lumber, or any other kind of property whatsoever belonging to any one of said tribes, further provides:

   Provided, That where any citizen shall be in possession of only such amount of agricultural or grazing lands as would be his just and reasonable share of the lands of his nation or tribe and that to which his wife and minor children are entitled, he may continue to use the same or receive the rents thereon until allotment has been made to him:

   Provided further, That nothing herein contained shall impair the rights of any member of a tribe to dispose of any timber contained on his, her, or their allotment.

word was used to a large extent to identify members of the Five Civilized Tribes who were commonly referred to as citizens.

    By the act of June 6, 1900 (31 Stat. 660), Congress authorized the Secretary of the Interior to prescribe rules and regulations governing the sale or removal of timber from lands belonging to either of the Five Civilized Tribes and imposed certain penalties for the unlawful removal of timber contrary to such regulations. As the proceeds from such sales were to be applied to the benefit of the respective tribes, evidently this was regarded as applying to tribal lands only, as distinguished from allotted lands, particularly in view of the earlier legislation in the act of 1898 with reference to the right of individual members to remove timber from their own allotments. Any doubt that may have existed as to this point, however, was effectually removed by the amendatory act of January 21, 1903 (32 Stat. 774), which practically reenacted the legislation found in the act of June 6, 1900, in substantially the same form, but with a further provision which reads:

   Provided, however, That nothing herein contained shall be construed to prevent allottees from disposing of timber and stone on their allotments, as provided in section sixteen of an act entitled 'An act for the protection of the people of the Indian Territory, and for other purposes,' approved June twenty eighth, eighteen hundred and ninety-eight, from and after the allotment by the Commission to the Five Civilized Tribes.

    The matter now here was the subject of an opinion by the Assistant Attorney General for this Department, under date of August 8, 1903, wherein, after referring to the legislation dealing specifically with the Five Civilized Tribes, it was held that the provisions inhibiting alienation of the land are not necessarily in conflict with those provisions permitting the allottees to dispose of the timber from their lands. In other words, that these two provisions of the law could be read together so as to give full effect to both. Undoubtedly this is true, for in the exercise of its plenary power over the Indians and their property Congress, of course, may inhibit, or restrict alienation to such extent as it may see fit. Hence, where that body restricts alienation of the land but at the same time by express legislation accords to the allottees a right to sell or dispose of the timber on their allotments, there is no doubt about the power of Congress so to do. Where, therefore, as here the intent of Congress in the matter has been so plainly expressed, it is not seen how such right can now be denied to these Indians.

    Reported decisions of the Federal courts are devoid of rulings with respect to this particular question as applied to allottees of the Five Civilized Tribes. This in itself may be indicative of the fact that such right exists, as otherwise doubtless the practice would have been checked long ago. The courts of the State have not been entirely silent in the matter. In Mitchell-Crittenden Tie Co. v. Crawford (160 Pac. 917),-a case dealing with the sale of timber by an allottee of the Cherokee Tribe,-the Supreme Court of the State, after referring to the above-mentioned opinion of the Assistant Attorney General, said:

    It appears that this construction was adopted and has since been continuously acted upon by the departmental officers in the exercise of their superintending control of the affairs of the Five Civilized Tribes.

                     *                              *                              *                              *                              *

    It is a matter of common knowledge of which the courts may properly take notice that members of the Five Civilized Tribes since receiving their allotments have in numerous instances, with the apparent sanction of the officers of the Department of the Interior, disposed of the growing timber thereon to persons who, relying in good faith upon the foregoing departmental construction of the controlling congressional legislation, have invested vast sums in the purchase of such timber and in the construction and maintenance of mills, railroads, tramways, and other equipment necessary and incident to the cutting and manufacture of such timber into lumber and other commodities. In the absence of clear and explicit inhibitions against such transactions we are not disposed to place an interpretation upon such acts at variance with that of the Interior Department and thereby strike at the heart of one of the great industries of the state. We therefore conclude that the allottee had the capacity to execute the conveyance in question.

    Seealso the case of Choctaw Lumber Company v. McKeever (249 Pac. 712).

    By section 19 of the act of April 26, 1906, and section 1 of the act of May 27, 1908 (35 Stat. 312), Congress materially altered the situation with respect to alienation, etc. of lands allotted to members of the Five Civilized Tribes but both of these statutes are wholly silent as to the timber on such lands or the right of the Indian to sell such timber. Section 1 of the latter act does contain a declaration to the effect that nothing therein shall be construed to impose restrictions removed from land by or under any law prior to the passage of that act. It would seem to follow, therefore, that if these Indians had the right prior to May 27, 1908, to dispose of the timber on their allotments, that such right still continues. After carefully considering the entire matter, in view of the express legislation by Congress, I am of the opinion that allottees of the Five Civilized Tribes have the right to dispose of the timber on their allotments.

    In bringing this matter to the attention of the Department, the Commissioner of Indian Affairs presents correspondence from the field, indicating that in some instances at least purchasers of timber from these Indians agree to buy a certain quantity of timber, or the timber of a certain class, and then proceed to strip the entire allotment of all timber. Manifestly this is a fraud upon the Indian for even admitting his right to sell, if he agrees to sell one tree only and the purchaser takes 40, that constitutes trespass pro tanto, to the extent of the 39 trees unlawfully removed.

                                                                                                                                                      E. O.PATTERSON,

M-23421                                                                                                                                    September 21, 1927.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    Upon recommendation of the Commissioner of Indian Affairs my opinion is requested as to the validity of certain farming and grazing leases on the Crow Indian Reservation in Montana.

    The act of June 4, 1920 (41 Stat. 751), which authorizes the allotment of lands of the Crow Tribe, provided in section 12 thereof for the division of the Crow Indians into two classes, competents and incompetents.

    The act of May 26, 1926 (44 Stat. 658), amendatory of certain sections of the Crow act of June 4, 1920, provides in section 1 thereof: "That any allottee classified as competent may lease his or her allotment or any part thereof and the allotments of minor children for farming and grazing purposes;" with the further provision that "no lease shall be made for a period longer than five years."

    The act of June 25, 1910 (36 Stat. 855), which is a general law, provides in section 4: "That any Indian allotment held under a trust patent may be leased by the allottee for a period not to exceed five years, subject to and in conformity with such rules and regulations as the Secretary of the Interior may prescribe. * * *"

    The act of March 3, 1921 (41 Stat. 1225, 1232) which also is a general law, provides: "That the restricted allotment of any Indian may be leased for farming and grazing purposes by the allottee or his heirs, subject only to the approval of the superintendent or other officer in charge of the reservation where the land is located, under such rules and regulations as the Secretary of the Interior may prescribe * * *"

    It appears that after the passage of the Crow act of May 26, 1926, competent allottees of the Crow Reservation took advantage of its provisions by making new leases of both their own and their minor children's allotments, to be effective in 1928, upon expiration of existing leases made in 1923 under the general law, which had two years to run.

    The said act of May 26, 1926, was amended by the act of March 3, 1927 (44 Stat. 1365-6), by inserting after the sentence "no lease shall be made for a period longer than five years," the following:

    That no lease of grazing lands now in force or hereafter made shall be renewed, or any of the lands embraced within the same be released, prior to one year before the termination of such lease: And provided further, That no lease of farming lands now in force or here after made shall be renewed, or any of the lands embraced within the same be released, prior to eighteen months before the termination of such lease.

and the leases as thereby securing an equitable right at least that ought not to be disturbed. The act of 1927 was evidently passed to meet this situation.

   Thecase of United States v. Noble (237 U.S. 74), which involved the question of "overlapping leases" and holds that Indian leases can not be made to begin in future, has been referred to in this connection as to leases made under the provisions of the act of May 26, 1926. In view, however, of the subsequent act of March 3, 1927, that case is not strictly applicable or controlling for the reason that Congress, by necessary inference at least took the position that as to leases already made under existing law, which permitted the same to be made without supervision, they should stand, but as to leases made thereafter a different rule would apply.

    My opinion is that as to leases made under the act of 1926, they must be regarded as valid. It may be added, however, that whether valid or not, the question is one ultimately to be decided by the courts as the Secretary of the Interior, even though the leases be void, is powerless in the premises in view of the provisions of the said act of 1926 authorizing the Indians to lease their allotments without departmental approval.

                                                                                                                                                      E. O. PATTERSON,

M-23117                                                                                                                                   October 6, 1927.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested as to whether reimbursement of the annual appropriations made by Congress to meet expenses of the Quapaw Indian Agency in Oklahoma for the fiscal years 1927 and 1928 may be made by a percentage deduction from royalties derived from mining leases on restricted lands of individual Indians in that jurisdiction.

    The appropriation acts for the years mentioned (acts of May 10, 1926, 44 Stat. 474, and June 12, 1927, 44 Stat. 953),  contain the following items:

    For expenses incident to the administration of the restricted or trust property of Indians under the Quapaw Indian Agency, $15,000, reimbursable to the United States, as provided in the Act of February 14, 1920 (Forty-first Statutes at Large, page 415).

    That hereafter in the sale of all Indian allotments, or in leases, or assignment of leases, covering tribal or allotted lands for mineral, farming, grazing, business or other purposes, or in the sale of timber thereon, the Secretary of the Interior be, and he is hereby, authorized and directed, under such regulations as he may prescribe, to charge a reasonable fee for the work incident to the sale, leasing, or assigning of such lands, or in the sale of the timber, or in the administration of Indian Forests, to be paid by vendees, lessees, or assignees, or from the proceeds of sales, the amounts collected to be covered into the Treasury as miscellaneous receipts.

been to support these Indian agencies from what is known as "gratuity" appropriations or from tribal funds, in which latter case, the cost, of course, falls equally upon the shoulders of the individual members of the tribe. The Supreme Court in United States v. Nice (241 U.S. 591), has said that "legislation affecting the Indians is to be construed in their interests and a purpose to make a radical departure is not lightly to be inferred." Resort to the method proposed should not therefore be had unless the intent of Congress so to do is clear, and here such intent is by no means manifest.

    As indicated by the clause "reimbursable to the United States as provided in the act of February 14, 1920," the specific appropriations for the Quapaw Agency are to be repaid by funds collected in the manner provided for in the act cited. That act, it will be observed, is one of general application and affords a means of collecting money to pay, in part at least, for the work done in the administration of the restricted property of the various Indians throughout the country. The method devised was the charge of a fee for the work incident to the sale, leasing or assignment of Indian lands, or in the sale of timber, or in the administration of Indian forests. The fee was to be a reasonable one, based upon the work done in the particular transaction. The charge was to be borne by vendees, lessees or assignees, as the case might be, or, if the Secretary of the Interior saw fit so to do, he might, by deducting the fee from the moneys received from the sales contemplated by the statute, cause the same to be paid by the individual Indian or Indians interested in the sales. But in the latter event, it is quite clear that Congress intended that there should be no discrimination and no individual Indian or group of Indians should be made to pay for work done for other Indians.

    I conclude, therefore, that the proposed method of reimbursing the appropriations in question, which would impose upon such Indians as derive income from royalties on mining leases the inequitable burden of supporting the governmental agency maintained for the benefit of all the Indians whose affairs are there administered, is unwarranted in the absence of a clear direction by Congress that reimbursement be made in that manner.

                                                                                                                                                      E. D. PATTERSON,

M-23422                                                                                                                                   October 17, 1927.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    In connection with a proposed contract between the Seminole Tribe of Indians and Thomas B. Latham, an attorney at law of McAlester, Oklahoma, you have requested my opinion as to the respective rights of the Seminole Indians as a tribe and of individual allottees of that tribe, in and to the royalties from oil, gas, coal, or other minerals, underlying lands allotted in severalty to the members of this tribe.

    The agreement with the Seminole Tribe dated December 16, 1897, ratified by the act of Congress of July 1, 1898 (30 Stat. 567), provided that the lands of the tribe should be divided into three classes, according to appraisements based upon fixed values of $5.00, $2.50, and $1.25 per acre, respectively, and for a division among the members of the tribe so that each would receive an equal amount, in value, of such lands based upon such classification.

    The agreement referred to also contains this further provision:

    Should there be discovered on any allotment any coal, mineral, coal oil, or natural gas, and the same should be operated so as to produce royalty, one-half of such royalty shall be paid to such allottee and the remaining half to the tribal treasury until extinguishment of tribal government, and the latter shall be used for the purpose of equalizing the value of allotments; and if the same be insufficient therefor, any other funds belonging to the tribe, upon extinguishment of tribal government, may be used for such purpose, so that each allotment may be made equal in value as aforesaid.

    Sec. 11. That all royalties arising on and after July first, nineteen hundred and eight, from mineral leases of allotted Seminole lands heretofore or hereafter made which are sub-

ject to the supervision of the Secretary of the Interior, shall be paid to the United States Indian agent, Union Agency, for the benefit of the Indian lessor or his proper representative to whom such royalties shall thereafter belong; and no such lease shall be made after said date except with the allottee or owner of the land; Provided, That the interest of the Seminole Nation in leases or royalties arising thereunder on all allotted lands shall cease on June thirtieth, nineteen hundred and eight.

    When the tribal government shall cease to exist the principal chief last elected by said tribe, shall execute under his hand and the seal of the Nation, and deliver to each allottee, a deed conveying to him all the right, title, and interest of said Nation and the members thereof in and to the lands so allotted to him, and the Secretary of the Interior shall approve such deed, and the same shall thereupon operate as relinquishment of the right, title, and interest of the United States in and to the land embraced in said conveyance, and as a guarantee by the United States of the title of said lands to the allottee; and the acceptance of such deed by the allottee shall be a relinquishment of his title to and interest in all other lands belonging to the tribe, except such as may have been excepted from allotment and held in common for other purposes.

    Provided, that the principal chief of the Seminole Nation is hereby authorized to execute the deeds to allottees in the Seminole Nation prior to the time when the Seminole agreement shall cease to exist.

    The purpose of this legislation, had no action been taken under it which of itself would disclose the understanding of the interested parties, is reasonably clear from the language used. Arbitrary amounts were fixed as the basis for equalizing the value of lands apportioned to the several members of the tribe entitled to participate in the division. To insure an equal apportionment which might not be possible when made by a division of the land, provision was made for the payment in money to those whose lands were not equal in value to the standard fixed. This money was to be paid in any event, but if royalties should be received on mineral leases before the delivery of the deeds required to be executed by the principal chief, one-half was required to be paid to the tribe to be used in equalizing the value of the allotments, but if no royalties were received or the amount received was insufficient for that purpose, any other money of the tribe was to be used therefor. The basis of adjustment was the value fixed by the appraisement, and was not contingent upon the value of minerals, oil, gas. (United States v. Hayes, 20 Fed. 2d. 873).

    While the original agreement provided for the execution and delivery of the deeds mentioned at the time the tribal government ceased, such deed when executed and delivered was by the terms of the agreement clearly expressed. It was to operate as a conveyance of all the right, title and interest of the Nation, and members thereof in and to the land conveyed, and a relinquishment of all interest of the United States and should become a "guarantee by the United States" of the title, and its acceptance by the allottee would operate as a relinquishment of his title to and interest in all lands belonging to the tribe, except such as were not then or thereafter allotted. The clear effect of the acceptance of such a deed was to extinguish all right, interest, or claim of the grantee in all the lands except those which upon final distribution of the tribal property were held by the Nation in common. The allottee upon acceptance of his deed had no further claim to equalization. Congress, when by the act of March 3, 1903, supra, it limited the existence of tribal government and directed the execution and delivery of deeds to allottees, made no provision for any reservation to the tribe or Nation of any interest in the oil or mineral in the land to be conveyed and intended nothing less than an absolute conveyance of the entire estate free of any tribal interest. The declaration in the act of May 27, 1908, supra, that from and after July 1, 1908, all royalties paid should be held for the benefit of the allottee, conforms to the language purpose, and intent expressed in previous legislation and amounts to a finding that no part of such royalties would thereafter be required to effect the equalization originally contemplated. This was in accordance with the facts as such equalization has been fully completed on the basis of the appraisements made. The deeds may not have been executed and delivered prior to July 1, 1908, but this has since been done in accordance
 

with the agreement and the statute, and the parties in executing and accepting them have acted upon the belief that such deeds extinguished all interest of the Nation in the lands conveyed and all claims of the grantee in any lands of the Nation except those held in common. By the same token the United States guaranteed to the grantee the unqualified interest in the land conveyed, and for the Government to now encourage an attack upon this title would amount to a breach of good faith, for such action could not be upheld by a fair construction of the terms of the agreement or the acts of Congress directing the manner in which it should be carried out. In my opinion the claim sought to be asserted in the proposed suit is without merit.

    However, even if doubt existed as to the correctness of the above conclusion, the authority of Congress over the Indians and over their tribal property, including the power of that body by subsequent legislation to abrogate the provisions of a preexisting treaty, is now too well settled to admit of further argument or doubt. Thus, in Thomas v. Gay (169 U.S. 264-270), it was said:

    It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. Foster v. Neilson, 2 Pet. 253, 314; Taylor v. Morton, 2 Curtis, 454.

    Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the Government. Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulation entered into on its behalf. But, as with treaties made with foreign nations, Chinese Exclusion Case, 130 U.S. 581, 600, the legislative power might past laws in conflict with treaties made with the Indians. * * *

    It has been suggested, however, with apparent confidence, that as to the Seminoles a different rule obtains in that prior to allotment in severalty the lands in the Seminole Nation were owned by the tribe, in fee. This also has long since been settled by the Supreme Court, as an examination of the citations given below will show where the court, in disposing of a similar question with respect to the Pueblo Indians in New Mexico, who also owned their lands in fee, used the following language:-United States v. Sandoval (231 U.S. 28-48):

    It also is said that such legislation cannot be made to include the lands of the Pueblos, be cause the Indians have a fee simple title. It is true that the Indians of each pueblo do have such a title to all the lands connected there with, excepting such as are occupied under Executive Orders, but it is a communal title, no individual owning any separate tract. In other words, the lands are public lands of the pueblo, and so the situation is essentially the same as it was with the Five Civilized Tribes, whose lands, although owned in fee under patents from the United States, were adjudged subject to the legislation of Congress enacted in the exercise of the Government's guardianship over those tribes and their affairs. Stephens v. Cherokee Nation, 174 U.S. 445, 488; Cherokee Nation v. Hitchcock, supra; Heckmun v. United States, 224 U.S. 413; Gritts v. Fisher, id. 640.

    This disposition of the matter involved upon an issue which goes to the merits, renders unnecessary any discussion of the other questions submitted.
 

    The contract proposed should not, in my opinion be approved.

                                                                                                                                                        E. O. PATTERSON,

Approved: October 17, 1927.
JOHN H. EDWARDS, Assistant Secretary.

M-22708                                                                                                                                     February 24, 1928.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the request of the Commissioner of Indian Affairs, my opinion is asked on a question arising under the act of February 26, 1927 (44 Stat. 1257, part 2), which provides:

    That the Secretary of the Interior is hereby authorized, in his discretion, to cancel any patent in fee simple issued to an Indian allottee or to his heirs before the end of the period of trust described in the original or trust patent issued to such allottee, or before the expiration of any extension of such period of trust by the President, where such patent in fee simple was issued without the consent or an application therefor by the allottee or by his heirs: Provided, That the patentee has not mortgaged or sold any part of the land described in such patent: Provided also, That upon cancellation of such patent in fee simple the land shall have the same status as though such fee patent had never been issued.

    Where an Indian has mortgaged land covered by an unapplied for patent in fee issued during the trust period, and such mortgage has been paid and satisfaction recorded and no part of the land sold, may the Secretary of the Interior cancel such patent under authority of the Act of February 26, 1927 (45 Stat. L. 1247), which authorizes cancellation

    "Provided that the patentee has not mortgaged or sold any part of the land described in such patent."

    There is nothing on record against this land. The mortgage which was of record was satisfied.

    I am of the opinion that upon the record furnished with the concrete case, you would not be warranted in attempting to cancel this particular patent. The patent has been outstanding for nearly ten years and has been of record in the county where the land lies for nearly as long. It does not appear when the mortgage was given, nor the length of time the debt secured remained unpaid. The information furnished by the Register of Deeds relates only to liens filed and appearing of record in that office. Judgment liens are not there reported. The lien of unpaid taxes would not be disclosed by any of the records there. Certainly the giving of a mortgage on the land was an acceptance of the fee title essential to its validity and to give it effect as security, and was an acceptance of the patent, from that time at least. Acceptance depends upon consent and mortgagor who makes use of a title to secure a benefit, such as a loan, will not be heard to deny the giving of the consent upon which the validity of the mortgage given to secure the loan depends. It follows that from the time of the giving of the mortgage the presumption of consent to the issuance and acceptance of the fee simple patent is conclusive. The title in the patentee becoming then unrestricted, his interest in the land would, in my opinion be subject to any liens created by way of judgments or levy taxes, and such liens could not be defeated by an attempted cancellation of the patent. The object of the cancellation of the patent is to restore the land to "the same status as though such fee patent had never been issued." Obviously this end can not be attained if valid liens have attached which remain unsatisfied and until the record before him is sufficient to show that the title is free of all liens, the Secretary of the Interior would not be warranted in attempting to cancel the patent in the case presented as a concrete one.

    Prior to the passage of the act of February 26, 1927 (supra) fee simple patents had been issued, to Indians, without an application made therefor by
 

the patentee and without his consent. In some cases the Indian had refused to accept delivery of the patent and in others delivery had been accepted under conditions showing that consent to its issuance had not in fact been given, and the courts had held that unless the patent had been issued at the request of the Indian or if issued without such request, consent to the action had been given, it was of no effect, so far as changing the status of the land was concerned and the Indian owner still held it under the terms and conditions guaranteed by his trust patent. United States vs. Benewah County (290 Fed. 628). But such unauthorized fee patents evidenced the passing of the full legal title and amounted to a cloud which, under the circumstances, it was proper to have for the protection of the interest of the Indian, and as well as those who might rely upon the validity of the apparent title. It was the purpose of the act to conform the apparent to the actual status of such lands by authorizing cancellation of the unauthorized fee patent. The language of that part of the act authorizing cancellation reads as follows:

    When such patent was issued without the consent or application therefor by the allottee or by his heirs.

    The act places a limitation on the authority given by the act, by withholding the power conferred in all cases where the patentee has "mortgaged or sold any part of the land." While this limitation is not intended to give validity to patents not legally issued, it does prevent any consideration of such question by the Secretary of the Interior and very properly leaves jurisdiction in such cases in the courts. Manifestly no other course could have been taken where a purchaser or mortgagee of the land was a party in interest, unless the Secretary of the Interior was vested with the authority of a court to adjudicate their claims. Such persons are indispensable parties to any proceeding looking to the cancellation of the source of the title upon which their interests depend. An attempted cancellation of the patent without an opportunity to participate in the proceedings would accomplish nothing so far as they were concerned, and Congress by the plain language used has withheld from the Secretary of the Interior the right to bring them into any proceeding where their rights are associated with the fee simple patent, however erroneous may have been the act of issuing it. The limitation upon the power of the Secretary of the Interior to take any action that would deprive parties in interest of any rights of property is imposed by the guaranty of the fifth amendment to the constitution, and the limiting proviso of the act is but a recognition by Congress of the principle and a declaration that in the administration of the act, no proceedings should be taken which would have the appearance of an invasion of the constitutional guaranty against the deprivation of property without due process of law. While the proviso extends only to cases where there has been a sale of all or a part or a mortgage of the land, the effect of the constitutional guaranty is to protect all other valid rights such as judgments or other liens and an attempted cancellation of the patent would not ipso facto destroy these, as the right to still assert them in the courts would be undisturbed unless Congress by the act of February 26, 1927 (supra), intended to invest the Secretary of the Interior with judicial power to decide the rights of the holders of outstanding liens, and only then where by due process they are brought into the proceeding and given their day in court. In my opinion Congress did not intend to confer such authority and unless an intention to do so is clearly expressed, the Secretary should hesitate to assume it. Such matters are more properly for the courts and in all cases where applications are made by the holder of the fee simple patent for cancellation of it, the applicant should first be required to show that the title, real or apparent, was free of all liens attaching subsequent to its issuance, and where such liens appear, action looking to cancellation should at least be deferred until some court of competent jurisdiction has adjudged them invalid. Where the showing made to the Secretary is sufficient to convince him that the record liens are void or voidable, he would be warranted in causing proper action to be taken in the name of the United States as guardian of the Indian, to have them removed. If in such suits the invalidity