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    The above provision embraces only those mixed bloods "belonging to or connected with the tribe"; in other words, tribal members. The provision amounts to nothing more or less than an invitation to these mixed bloods to separate from the tribe and remain upon the ceded lands, with the promise that their rights to the benefits otherwise accruing to them as members of the tribe should not thereby be impaired. The provision is similar in scope and object to the third provision relied upon, vis., section 6 of the act of February 8, 1887, supra, saving the rights of members who have severed their tribal relations and adopted the habits and customs of civilized life. Provisions such as these are clearly personal to the individual and the rights conferred are neither alienable nor descendible. Oakes v. United States, supra. See also Cherokee Nation v. Hitchcock (187 U.S. 294, 307); Gritts v. Fischer (224 U.S. 640, 642); Sizemore v. Brady (235 U.S. 441, 446); La Roque v. United States (239 U.S. 62, 66). Were this not so, the enactment of June 7, 1897, supra, extending the right to share in the distribution of tribal property to children born of a marriage occurring prior to that time between an Indian woman and a white man, would have been wholly unnecessary.

    This brings us to the act of 1889, and in considering whether that act abolishes or modifies the settled rule of tribal membership, we are met at the outset with the view expressed by Judge Van Devanter, now Associate Justice of the Supreme Court, in Oakes v. United States, supra (page 307), that, "if there be such a provision of law, it must be found elsewhere than in the act of 1889." In that case, Mrs. Oakes, her daughter, and two granddaughters sued to establish their right to have allotted to them in severalty certain specified lands on the White Earth Indian Reservation in Minnesota under the act of Congress here in question. Mrs. Oakes was by birth a member of one of the Minnesota Chippewa bands. She married a white and for a time lived in the Chippewa country. Her daughter, Mrs. Jones, was born there and was enrolled and recognized as a member of her mother's tribe. The mother and daughter left the Chippewa country and moved to St. Paul where the daughter grew to womanhood, was married twice and had two daughters. These daughters were born and reared in St. Paul and never were enrolled or recognized as members of the tribe and were married to white men. After pointing out that the right of individual Indians to share in the tribal property of the Chippewa Indians of Minnesota under the act of 1889 was governed by the rules of tribal membership modified only by the provision contained in the act of February 8, 1887, supra, and prior acts of a similar nature, saving the rights of members who had abandoned their tribal relations and adopted the customs and habits of civilized life, the court concluded 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: * * *"

quent opinion of January 8, 1927, membership under such a rule is not the controlling, nor even a determining factor. "One drop of Chippewa blood of an enrolled member, ipso facto, entitles the possessor to an 'equal share' regardless of membership, tribal affiliations, recognition, residence or any other requirement." The effect of the ruling of 1919 thus would be to consign the tribal membership rule to oblivion. I find no provision in the act of 1889, express or implied, which justifies the conclusion that Congress intended to make such a radical departure from the usual method of distributing tribal property. It must be borne in mind in this connection that Congress was dealing with tribal Indians in a state of dependency and pupilage. They were not yet ready for complete emancipation and would not be ready for that important step until they had undergone a period of training in education and self-support. As pointed out by the Supreme Court in the Kadrie case (page 221), the purpose of the act of 1889 was to accomplish a gradual, rather than an immediate transition from the tribal relation and dependent wardship to full emancipation and individual responsibility. It was evidently the feeling of Congress that this period of evolution would take at least 50 years from the date of completion of allotments, at the end of which period the remainder of the principal fund might be safely distributed to the Indians and their issue then living, the word "issue" being used, I think, in its primary signification importing "children" (see Kimbro v. Harper, 238 Pac. 840), and not in its enlarged sense to include all lineal descendants. As stated in the Solicitor's opinion of January 8, 1927, supra,-

    "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 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. 359, 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."

    For the foregoing reasons, and upon authority of Oakes v. United States, supra, holding that the rule of tribal membership, modified only by the national policy hereinbefore referred to, is applicable to the Chippewa Indians of Minnesota under the act of 1889, it is my opinion that distribution of the interest annuities provided for in that act must be confined to such Indians of Chippewa blood as come within that rule. This excludes the descendants, born away from the tribal environment, of a parent or parents who have abandoned tribal relations, once existing, and have adopted the customs, habits and manners of civilized life unless, of course, the rights of such descendants are saved by the provisions of the act of June 7, 1897, supra.

    In reaching the above conclusion, I am not unmindful of the argument which has been presented from time to time, due to the breaking up of the tribal reservations in Minnesota by cession, allotments in severalty, removal of restrictions, etc., it is no longer practical nor feasible to apply the rule of tribal membership to the Chippewas. If such
 

be the situation, the matter is one for consideration by Congress, it being apparent that administrative officers of the Government are without authority to mold the law to meet such changing conditions and necessities.

    There remain to be considered the applications for enrollment of Mabel Connors Israels and her children, Lillian L. and Paul E. Israels. The Commissioner of Indian Affairs states that a decision upon these applications will determine all other cases of a like nature. The father of Mrs. Israels was William Connors, a mixed blood Chippewa Indian Her mother was a white woman. The daughter, Mrs. Israels, appears to have been born in Wisconsin and to have resided there since birth. She married a white man and the applicants, Lillian L. and Paul E. Israels, are the issue of that marriage. Mr. Connors, the father of Mrs. Israels, was enrolled by the Chippewa Commission, but the evidence taken before the Commission in 1893 shows that he was at that time living in Wisconsin and it does not appear that he removed to Minnesota after his enrollment. His status was thus that of an Indian who had severed his tribal relations and such appears to have been his status at the time Mrs. Israels, the daughter was born. Mrs. Israels while possessing some Chippewa blood, appears, therefore, to have been born of parents having no tribal relations then or since. The same is true of the children of Mrs. Israels, who are the issue of a marriage between her and a white man. The marriage having been contracted subsequent to the passage of the act of June 7, 1897, the rights of the children are not saved by the provisions of that act, which applies in terms only to marriages contracted prior to June 7, 1897. (See in this connection Pape v. United States, 19 Fed. (2d) 219). Nor can the act of June 7, 1897, be invoked in aid of Mrs. Israels. Aside from the fact that she is the issue of a marriage between an Indian man and a white woman,-the act relates in express terms to the issue of a marriage between "a white man and an Indian woman"-the Indian parent must have been recognized by the tribe as a member thereof in 1897, or at the time of death. Mr. Connors does not appear to have been so recognized in 1897, or since, by the Fond du Lac band or tribe of Minnesota Chippewas.

    So far as the present record shows, neither Mrs. Israels nor her children were ever members of the Fond du Lac band or tribe of Minnesota Chippewa Indians. They are now and always have been residents of the State of Wisconsin and as they are not within any exceptional provision permitting other than existing members to share in tribal property, it is my opinion that their application for enrollment with the Chippewa Indians in Minnesota under the act of 1889 should be denied.

                                                                                                                                             NATHAN R. MARGOLD,

    The attached letter awarding grazing privileges on Unit No. 20 of the Crow Indian Reservation to Harry Snyder, Jr. is contrary to the wishes of the Crow Tribe of Indians. Some 23,000 acres of tribal lands are included in the unit and grazing privileges thereon cannot be 1st without the "authority of the Council speaking for" the Indians. See act of February 28, 1891 (26 Stat. 794). The award to Mr. Snyder cannot, therefore, be approved unless the Council, prior to advertisement of the unit, gave unqualified authority to offer grazing privileges on the tribal lands. If such unqualified authority has been given it is suggested that an appropriate reference thereto be incorporated in the letter.

    The interpretation placed by the second paragraph of the letter on the reservation contained in the advertisement of the right to reject any and all bids appears to be too narrow in scope and I suggest that it be eliminated as unnecessary in making the award on this unit.

                                                                                                                                                    CHARLES FAHY.

    The attached letter is returned to you for further consideration. The letter in effect holds that an Indian owning taxable land may convey such land to the United States to be held in trust for the individual Indian. Obviously this is a matter which will affect large numbers of Indians other than the particular applicant referred to in the attached communication.
 

    Authority for such a transaction is to be found, if at all, only in section 5 of the act of June 18, 1934, which provides:

    "The Secretary of the Interior is hereby authorized in his discretion, to acquire through purchase, relinquishment, gift exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians."

            *                                *                                *                                *                                *

    Title to any lands or rights acquired pursuant to this act shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."

    It may be noted that the last paragraph of the attached communication embodies an erroneous interpretation of section 4 of the act of June 18, 1934. The quoted comment is inconsistent with the opinion of the Solicitor dated November 7, 1934 holding that devisees other than heirs at law under wills of restricted Indians covering lands within the scope of the
Wheeler-Howard Act must be members of the tribe having jurisdiction over the lands in question.

    The foregoing refers to your letter dated November 27, addressed to the Superintendent of the Fort Totten Indian Agency. There is also returned your letter of October 29, addressed to the Superintendent of the Fort Berthold Indian Agency, suggesting in a somewhat similar case that land patented in fee to Byron H. Wilde, may be conveyed to the United States in trust for the patentee's wife, under section 5 of the Wheeler-Howard Act, The considerations of policy referred to above apply with equal force to this case.

    I am returning for further consideration your letters of November 28 and December 7 relating to applications for enrollment with the Chippewa Indians of Minnesota.

    The letter of November 28 deals with the applications of Elsie and Peter La Fond, and Chat of December 7 deals with the application of Mrs. Eva D. McNiff. The enrollment of all three applicants is recommended by you on the ground that the rights of the applicants are saved by the provisions of the act of June 7, 1897 (30 Stat. 90) which reads:

    "All children born of a marriage solemnized prior to June 7, 1897, between a white man and an Indian woman by blood and not by adoption, where said Indian woman was on that date, 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."

    All of the applicants appear to have been born away from the tribal environment of parents who had severed their tribal relations. If these are the facts, I am aware of no authority for placing their
 

names on the rolls of the Chippewa Indians in Minnesota. (See Oakes v. United States, 172 Fed. 305.)

                                                                                                                                            NATHAN R. MARGOLD

    The Indian Office seeks herewith the approval of The Secretary to the recommendation to the General Land Office that trust patents be issued on the allotments on the Fort Belknap Reservation, approved by the Department before the Indian Reorganization Act. The approval sought cannot be given in view of the explicit prohibition of the allotment of land in severalty in the first section of the Reorganization Act, in view of the clear holding by this Department that allotments cannot be considered made until trust patents have been issued, in view of the policies and purposes of the Reorganization Act and its administration, and considering the particular problems of this case. The departmental holding, reported in 38 L. D. 559 (1910), is a controlling precedent. The Department there decided that allotments approved under the act of February 8, 1887, but for which patents had not issued before the act of May 8, 1906, were subject in their patenting to the later act since before the first or trust patent issued they were incomplete. Since this administrative construction of what constituted allotment was in practice before the Wheeler-Howard Act, it may be reasonably supposed that the legislators intended such meaning to attach to the language of section 1. Furthermore, the selection, and even the departmental approval of the selection, of an allotment can have no legal effect upon the title to the land. A change in legal relationship occurs only upon the issuance of the trust patent for the allotment, when the allottee acquires an equitable title to the land in question. It is unthinkable that Congress, in flatly prohibiting the allotment of land, intended to allow the one act which has any legal effect in creating an allotment and to forbid merely preliminary steps which may have already occurred. The Indian Office admits that there are many other situations identical to this. Establishing a precedent here, therefore, of granting trust patents would have considerable effect in defeating the purpose of Section 1. What land there is now left available for tribal assets and administration by organized tribes should be preserved and not subjected to the devastating effect of the policies of 1887. This is the clear mandate of Section 1.

    No reason is assigned by the Indian Office why the clear legal effect and purpose of Section 1 should be denied other than the promotion of equity by placing the two-fifths of one percent of Indians of the Fort Belknap Reservation who were unallotted on the same status as their neighbors. But this amount is defeated by the fact that, of this small number of unallotted Indians, only 5 out of 25 are now to be provided with patents. The case of the other 20 is admittedly hopeless, since their selected allotments were never even approved. Furthermore, there is no claim that the use and enjoyment by these 25 Indians of the lands selected has not been recognized and will not continue to be recognized. On the contrary the fact that these lands will be returned to tribal ownership and that the tribe has accepted the Wheeler-Howard Act and will probably organize to control such land and issue occupation permits argues a far more secure and permanent enjoyment of such lands in these 25 Indians than would result should this land be trust patented and thereby made available for fee patenting. If this fact were brought to the understanding of these Indians it is very improbable that the bad feeling feared by denial of trust patents would arise. On the contrary, the granting of trust patents to a small fraction of those now without them might well provoke a more serious protest, as the Indian Office anticipates, according to a memorandum among these files.

    It is suggested, therefore, that instead of the granting of trust patents to these five Indians, a letter be drafted to the Superintendent of the Fort Belknap Reservation, similar to that contained in the files relating to the denial of trust patents to the remaining 20 Indians, pointing out the primary right of the unallotted Indians to the use and occupation of their unpatented allotments and the possibilities for tribal management of the land in question, and directing the conveyance of such information to the Indians concerned.

                                                                                                                                              NATHAN R. MARGOLD

    I am returning for further consideration proposed regulations under the Menominee Enrollment Act of June 15, 1934 (48 Stat. 965).
 

    Section 1, paragraph 2, of the regulations includes among those whose names are automatically to be placed upon the roll authorized by the Act unenrolled children born on the reservation prior to the date of the Act of enrolled parents in affiliation with the tribe, regardless of the degree of blood of such children. The automatic enrollment of such children is not authorized by any provision contained in the Act. Under section 1 of the Act, the only persons whose names can be placed on the roll automatically are those persons whose names are "on the tribal rolls on the date of the enactment of this Act." The Act makes no exception in favor of unenrolled children born prior & the date of the Act, and that none was intended appears plain from other provisions contained in the Act. Section 1, after providing for placing on the roll the names of all persons on the tribal rolls on the date of the Act, directs the Secretary of the Interior to place on the roll "the names of such persons as are entitled to the privilege of enrollment under the provisions of this Act". Section 2 states that "any person whose name is not on the, roll of the Menominee Indian Tribe on the date of the enactment of this Act may at any time hereafter apply to the Secretary of the Interior to have his name placed thereon". That section further prescribes how applications for enrollment may be made and makes express provision for applications on behalf of minors. Section 4 prescribes the requirements necessary to be met by applicants, and declares that "no person whose name does not appear on the tribal roll of the Menominee Tribe on the date of the enactment of this Act shall hereafter be eligible to enrollment" unless he meets such requirements. Section 3 of the Act requires that at the end of each fiscal year the Secretary of the Interior shall compile a list of all persons who have applied for enrollment during the previous fiscal year; that he shall certify such list to the General Council of the Menominee Tribe for investigation and report of its findings; and that the Secretary shall take no action on any application for enrollment until after the expiration of one year from the date the certified list was forwarded to the General Council unless the Council shall have previously reported its findings and recommendations to the Secretary. These provisions make it plain that there is no authority for automatically placing on the roll the name of any unenrolled person. All such persons must make application for enrollment in accordance with section 2. They must meet the requirements of section 4, one of which is that the applicant must possess one-fourth or more of Menominee Blood, and even though they are otherwise qualified their names cannot be added to the roll, until their applications have been considered and acted upon in the manner set forth in section 3.

    Section 4, paragraph 2, of the proposed regulations reads:

However, it will not be necessary for enrolled parents whose legal residence is on the reservation and who maintain tribal relations, to make formal application to the Secretary of the Interior for the enrollment of their children born on the reservation or during the temporary absence of the mother therefrom. Such children, having 1/4 or more Menominee blood derived from an ancestor who did not participate in the 'half-breed payment' may be enrolled at once, upon supplying birth certificates to the Superintendent and after verification by him that they are entitled to tribal membership and rights under the act".

    Section 5 of the statute prohibits the payment of back annuities to any "person whose name shall hereafter be placed on the roll of the Menominee Indian Tribe". Nevertheless section 5 of the regulations proposes to permit certain children born into tribal rights to receive such back annuities. None of such children is now enrolled. They are all persons whose names will be enrolled after the date of the Act and as such their participation in back annuities is plainly prohibited.

    It seems that the provisions herein found to be unauthorized were placed in the regulations to meet the wishes of the Menominee Indians. Provisions so plainly in conflict with the statute, how ever desirable they may be from the viewpoint of the Indians, cannot be made a part of the Secretary's regulations, and the need for such provisions must be met, if at all, by an amendment to the statute.
 

    The attached memorandum of the Assistant Commissioner of Indian Affairs seems to contem-
 

plate purchase of land with subsistence homestead money, subsequent proclamation of that land as a new Indian reservation and then the assignment of particular plots as Indian homesteads with title remaining permanently in the United States. It seems to have been thought that by this device the necessity for selling tracts to homesteaders could be avoided. I disagree with this conclusion.

    It is proposed that the reservation of the land shall be accomplished under the provisions of the Wheeler-Howard Act (48 Stat. 984). However, since the land is to be purchased with subsistence homestead money, the disposition of that land must be controlled by that statute, unless Congress has subsequently provided otherwise. The subsistence homestead statute does not authorize the purchase of land to be set aside as an Indian reservation. And nothing in the subsequently enacted Wheeler-Howard Act purports to make the subsistence homestead appropriation available for the purchase of land which is to be reserved and used under the Wheeler-Howard Act. Indeed, the Wheeler-Howard Act goes no further in making money available for its purposes than to authorize future appropriations.

    Moreover, as has frequently been pointed out, the present subsistence homestead law requires that subsistence homestead funds expended by the Government for the acquisition of homesteads must be repaid into the subsistence homestead revolving fund by the homesteaders. A disposition of land so acquired which would defeat that requirement of the subsistence homestead statute cannot be considered as authorized. Reservation under the Wheeler-Howard Act, therefore, cannot be employed to avoid the required reimbursement.

    Briefly, subsistence homestead money expended to purchase subsistence homestead sites must be repaid by the homesteaders, and neither the Wheeler-Howard Act nor the subsistence home stead legislation permits escape from this consequence by the device of proclaiming land acquired with subsistence homestead funds to be an Indian reservation.

    If the proposed Burns Indian homestead project is feasible in view of the limitations stated in this memorandum, title papers may properly be submitted to the Attorney General for opinion.

                                                                                                                                                NATHAN R. MARGOLD.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, Assistant Secretary.

    I am returning herewith the file relating to the title to lot 2, Sec. 23, T. 48 N., R. 3 W., 4th P. M.

    The conclusion of your letter is that the approval by the President of a Chippewa Indian will executed July 3, 1918, after enactment of the act of June 25, 1910 (36 Stat. 855), as amended by the act of February 14, 1913 (37 Stat. 678), operated to remove restrictions. This conclusion is based upon the theory that the act of June 25, 1910, as amended, did not in any manner curtail power theretofore vested in the President, there having been a departmental interpretation of the treaty of September 20, 1854 (10 Stat. 1109), to the effect that the President was empowered to approve the alienation of land by will, and such approval operated to remove restrictions unless the approval was qualified.

    I am of the opinion that the act of June 25, 1910, as amended, did curtail the power of the President with respect to alienations by will. That act covers the entire subject of Indian wills and provides that:

"No will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior * * * Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restricted period,"

    However, I am of the opinion that the procedure followed in this case was in fact an approval by the Secretary as required by the act of June 25, 1910, as amended. The Secretary's recommendation to the President operated as an approval. I conclude, therefore, that the will in question has been properly approved but that the approval did not operate to remove the restrictions against alienation.

Solicitor.
 

M-27759                                                                                                                                      January 22, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, my opinion has been requested on a question arising out of the following item appearing in the Deficiency Appropriation Act of June 19, 1934 (48 Stat. 1021, 1033):

    "The Creek Nation: The appropriation of $144,106.01 contained in section 4, Title I, of this Act for payment of a judgment rendered by the Court of Claims in favor of the Creek Nation shall be placed to the credit of the Creek Nation on the books of the Treasury Department and such sum is hereby appropriated and, after deducting the attorneys' fees and expenses allowed by the Court of Claims and the estimated expenses of making the roll and the payment herein provided for, shall be paid by the Secretary of the Interior per capita to the members of the Creek Tribe of Indians entitled thereto or their heirs, upon a roll made as of date of December 4, 1933, under the direction of and approved by the Secretary of the Interior."

    The citizenship or membership rolls of the Creek Nation were completed and closed on March 4, 1907 (See section 2 of the act of April 26, 1906, 34 Stat. 137). The rolls were made by a Commission, commonly called the Dawes Commission, and approved by the Secretary of the Interior under authority of the act of June 10, 1896 (29 Stat. 321, 339), the Curtis Act of June 28, 1898 (30 Stat. 495, 502), and certain provisions contained in the Creek Agreement of March 1, 1901 (31 Stat. 861). The Curtis Act (section 21) declares that the rolls so made, when approved by the Secretary of the Interior, shall be final, and that the persons whose names are found thereon shall alone constitute the Tribe they represent. The Creek Agreement of 1901 declares that the rolls so made and approved "shall be the final rolls of citizenship of said tribe, upon which the allotment of all lands and the distribution of all moneys and other property of the tribe shall be made, and to no other persons." Section 17 of the act of April 26, 1906, supra,relating to all the nations comprising the Five Civilized Tribes, of which the Creek Nation is one, provides that when the unallotted lands and other property belonging to the tribes have been sold and the moneys arising from such sales or from any other source whatever have been paid into the United States Treasury to the credit of the tribes, and when all the just charges against the funds of the respective tribes have been deducted, "any remaining funds shall be distributed per capita to the members then living and the heirs of deceased members whose names appear upon the finally approved rolls of the respective tribes, such distribution to be made under rules and regulations to be prescribed by the Secretary of the Interior".

    The legislation just outlined discloses a plain purpose on the part of Congress and the Creek Nation, as well, to make the final approved rolls determinative of the legal membership of the tribe for all purposes including the making of per capita distributions of the tribal funds. However, the proceeds of the Creek judgment of December 4, 1933, constitute tribal property over which Congress has full administrative authority, and hence it is competent for that body, if it sees fit so to do, to disregard the finality of the existing membership rolls and direct that the per capita distribution be made upon a new roll showing the membership of the tribe on the date of the judgment, even though such action may be inconsistent or in conflict with prior legislation or agreements with the tribe. Lone Wolfe v. Hitchcock (187 U.S. 553); Stephens v. Cherokee Nation (174 U.S. 445, 483, 488).

    I see no escape from the conclusion that Congress did intend to disregard the finality of the existing rolls and to have the distribution made to the members of the tribe on December 4, 1933. The direction is that the proceeds of the judgment subject to certain deductions "shall be paid by the Secretary of the Interior per capita to the members of the Creek Tribe of Indians entitled thereto or their heirs upon a roll made as of date of December 4, 1933, under the direction and approved by the Secretary of the Interior." If it had been in
 

tended to require that the payment be made on the basis of the final rolls which, of course, would exclude from participation persons born into membership after the closing of those rolls, it is reasonable to believe that words more appropriate to the occasion would have been used. Why direct that payment be made on a roll compiled as of December 4, 1933, if it were intended that payment be made on the basis of a roll completed and closed in 1907? Participation in the payment clearly is not confined to those persons who were members of the tribe at the time of the closing of the final rolls in 1907. The distribution is to be made to the members of the Tribe entitled thereto on a roll made as of December 4, 1933. This plainly comprehends persons who were at that time members of the Tribe, including persons born into membership after the closing of the final rolls, and, under the well settled rule that tribal membership is terminated by death, only those members who were in being on December 4, 1933, can be enrolled. Enrollment being confined to members living on December 4, 1933, it is plain that the alternative provision made in the statute for payment to the heirs of deceased members has reference, not to the heirs of members who died prior to December 4, 1933, but to the heirs of members who might die subsequent to that date. Congress evidently anticipated that persons entitled to enrollment might in some instances die before payment and accordingly made provisions for the payment of the shares of such deceased persons to their heirs.

    The statute confers no authority upon the Secretary of the Interior to inquire into the validity of the enrollment of any person whose name appears on the final rolls. In the absence of such express authority, those rolls must be regarded as determinative of the legal membership of the Tribe at the time they were completed and closed in 1907, and they will constitute the primary guide for the compilation of the new roll. The new roll will be made first, by placing on the roll all persons whose names are inscribed on the existing rolls and who were alive on December 4, 1933; second, by omitting the names of all enrollees who have died since the 1907 rolls were completed and closed; and, third, by adding the names of those persons born into tribal membership since the closing of the existing rolls and who were living on December 4, 1933.

    The act of June 19, 1934, fails to prescribe any definite rule for determining the citizenship or membership rights of persons born since the closing of the final rolls. In the absence of such a statutory guide, it will be appropriate, I think, to determine citizenship or membership in accordance with the laws and customs of the Creek Nation which the Dawes Commission was required to recognize in making up the final rolls (see act of June 10, 1896, supra), and which the Territorial Courts regarded as binding upon them in passing upon citizenship cases brought before those courts on appeal from decisions of the Dawes Commission. In a decision by the United States Court for the Northern District of the Indian Territory, a copy of which will be found in the Eighth Annual Report of the Commission to the Five Civilized Tribes, 1901, at page 175, the citizenship laws of the Creek Nation are fully discussed, their validity upheld, and the laws found binding upon the court. From that decision it appears that the possession of Creek Indian blood was an essential but not a controlling requirement for admission to membership in the nation. Certain residential requirements also had to be met, and persons failing to meet them were excluded from membership by sections 1 and 2 of a law enacted by the National Council of the Muskogee (Creek) Nation on October 26, 1889. These sections read:

   "Section 1. All persons who were born, or who may be hereafter born, beyond the limits of the Indian Territory, and may have heretofore been entitled to make application for citizenship, on account of Indian blood or tribal adoption, and who have continuously resided beyond or outside of the jurisdictional limits of the Muskogee Nation for the period of twenty-one (21) years, are hereby declared aliens, and not entitled to citizenship in the Muskogee Nation, or to any of the privileges thereof.

   Section2. The minor children and descendants of such persons so debarred from citizenship and declared aliens, are hereby also excluded from citizenship in the Muskogee Nation, and from all privileges therof."

absence of specific statutory directions in the matter, the descendants of those Creek Indians by blood whose names appear on the final rolls will be entitled to enrollment on the new roll made as of December 4, 1933, provided such descendants were alive on that day and were born within the area formerly comprising the Indian Territory. Descendants born outside that area will likewise be entitled to enrollment unless they were continuously absent from the jurisdictional limits of the Creek Nation for at least 21 years, in which event they must be excluded from enrollment. The children and descendants of any person so excluded are likewise ineligible for enrollment.

    The final citizenship rolls of the Creek Nation embrace a considerable number of persons not Creeks by blood. These persons are known as freedmen and are of African descent. It becomes necessary, therefore, to consider the rights of these freedmen and their descendants, born since the closing of the final rolls, to share in the distribution of the Creek judgment of December 4, 1933. Prior to 1861 slavery existed in the Creek Nation, and there were within the limits of such nation many persons of African blood who were held as slaves. During the Civil War the Creeks, like others of the Five Civilized Tribes, threw in their lot with the Southern Confederacy and renounced allegiance to the United States. By a treaty concluded June 14, 1866 (14 Stat. 785), the United States renewed its relations with the Creek Nation and confirmed their rights to their lands. Article II of the treaty admitting the freedmen and their descendants to citizenship in the nation reads:

    "The Creeks hereby covenant and agree that henceforth neither slavery nor involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted in accordance with laws applicable to all members of said tribe, shall ever exist in said nation; and inasmuch as there are among the Creeks many persons of African descent, who have no interest in the soil, it is stipulated that hereafter these persons law fully residing in said Creek country under their laws and usages, or who have been thus residing in said country, and may return with in one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of the said nation to settle within the limits of the jurisdiction of the Creek Nation as citizens (thereof,) shall have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds, and the laws of the said nation shall be equally binding upon and give equal protection to all such persons, and all others, of whatsoever race or color, who may be adopted as citizens or members of said tribe."

    Thus, by treaty, act of Congress and the laws of the Creek Nation, the freedmen have been admitted to membership or citizenship in the Creek Nation, not as members by blood but as members by adoption with all the rights incident to such membership, including the right to share in all distributions of tribal property on an equal footing with blood members. This includes the right to share in the per capita payment provided for by the act of June 19, 1934, unless the provisions of that act expressly exclude them from such participation. The act does not do so. It makes no distinction between the freedmen and the members or citizens by blood. The direction is that the payment be made to the "members of the Creek Tribe of Indians entitled thereto", and this embraces all members of that tribe including the freedmen, who have been admitted, as we have seen, to all the rights and privileges of blood members. The new roll of Creek freedmen will accordingly be made in like manner as that of the Creeks by blood, that is to say, freedmen whose names appear on the final rolls and who were in being on December 4 will first be added to the roll. The names of deceased enrollees will then be stricken and there will be added the descendants of all freedmen enrollees born since the closing of the final rolls, provided such descendants are living on December 4, 1933, and meet the residential requirements of the Creek Law of October 26, 1889, the provisions of which law extend to the freedmen as well as to persons possessing Creek Indian blood.

    The rules herein announced are necessarily general in scope and doubtless will not cover all the
 

cases which will be presented. Such cases cannot, of course, be anticipated for the purpose of attempting an advance opinion but must be considered and decided as they arise, in the light of the facts developed.

                                                                                                                                            NATHAN R. MARGOLD,

M-27816                                                                                                                             January 22, 1935.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    An inquiry of the Commissioner of Indian Affairs concerning the power of Indian Subsistence Homesteads Authority to make loans for the construction of Indian homesteads upon certain land, title to which is now and will remain in the United States, has been referred to me for opinion. Particularly, the inquiry concerns proposed projects at Chilocco, Oklahoma and in Lake County, California.

    The land at Chilocco was reserved by Executive Order of President Arthur, dated July 12, 1884, and in the following language:

    "It is hereby ordered that the following described tracts of country in the Indian Territory * * * be, and the same are hereby, reserved and set apart for the settlement of such friendly Indians belonging within the Indian Territory as have been or who may hereafter be educated at the Chilocco Indian Industrial School in said Territory.

    "That the Secretary of the Interior be, and he is hereby, authorized to expend not to exceed one hundred thousand dollars to purchase for the use of the Indians in California now residing on reservations which do not contain land suitable for cultivation, and for Indians who are not now upon reservations in said State, suitable tracts or parcels of land, water, and water rights in said State of California." (34 Stat. at 333.)

    It is now proposed that tracts thus acquired be divided into individual home plots and that each plot be assigned to the occupancy of an Indian family. Loans will be made to the Indian homesteaders out of the subsistence homestead appropriation in order to aid them in constructing and acquiring houses and other improvements appropriate to subsistence homesteads. The homesteaders will repay these loans and will own the improvements in question. While title to the land will remain in the Government, it is contemplated that houses and other improvements will be transferable under appropriate regulations. Full detail of the plan has not been evolved and the present inquiry seems to extend no further than the question of authority to make loans for and otherwise aid in the construction of homes for Indians which shall be essentially similar to subsistence homesteads in the general community except for the circumstances that title to the land-but not to improvements-is to be retained by the United States.

    Generally, the language of Section 208 of the National Industrial Recovery Act authorizing "making loans for and otherwise aiding in the purchase of subsistence homesteads" seems to contemplate the purchase of the home site by the homesteader. In the case of Indians, however, a different conclusion seems permissible.

    In legal contemplation Indian ownership generally is protected right of use and occupation while the fee remains in the United States. Such was the legal analysis of Indian ownership before specific areas were set aside for Indian use, and such is the continuing situation on unallotted reservations. Even allotment in severalty does not terminate Government control over the disposition of the fee. In short, the peculiar relation of wardship existing between the Indians and the Government has made it the rule rather than the exception that ultimate title to the homestead of the Indians shall be in the Government.
 

    In the case at hand we are concerned with land acquired or reserved by the Government for the definite purpose of Indian settlement. The establishment of Indian homesteads on this land seems consistent both with the purpose of acquisition and the intendment of the subsistence homestead statute. And the purchase of a house and other improvements by the individual Indian seems sufficient to bring such a project within the actual language of Section 208 of the National Industrial Recovery Act.

    It is to be noted that nothing inherent in the conception of a homestead requires that the occupant own the site. It is true that the conception has developed largely around homestead exemption statutes which can have application only upon property rights which are usually alienable. But even in these cases equitable interests and estates for years have been recognized as within the protection of the homestead laws. White v. Danforth,122 Ia., 403, 98 N.W. 136 (1904); Keith v. Albrecht, 89 Minn., 247, 94 N.W. 677 (1903). Certainly, therefore, the idea of homestead is not necessarily associated with any particular tenure. And, in the case at hand the status of the Indian and his relation to the Government furnish adequate basis for a conclusion that legal title to Indian subsistence homesteads may be retained by the Government.

    One limitation upon this conclusion should be clearly understood. While the idea of ownership of land does not necessarily inhere in the homestead conception, the subsistence homestead statute contemplates that the homesteaders shall repay money expended out of that appropriation for the purchase of land and for necessary work of construction and development. Therefore, unless the homestead site is already owned by the United States, as in the instances now under consideration, or is acquired otherwise than by expenditure of subsistence homestead funds the homesteader must repay to the subsistence homestead fund the cost of the land.

    A recent decision of the Attorney General has some bearing upon the matters here in issue. In an opinion dated October 31, the Attorney General advised you that, although collective ownership of subsistence homesteads is generally not proper, an exception may be made where Indian subsistence homesteads are established within an existing Indian reservation or upon land either purchased as a new reservation or added to an existing one under the so-called Wheeler-Howard Act. It was the rationale of that decision that the prohibition in the Wheeler-Howard Act against allotment of such land in severalty and the provision of that statute for acquisition of land and retention of title by the Government for the benefit of Indian groups, prevent the sale of homesteads established upon such land to individual Indians. Yet the Attorney General did not consider these restrictions inconsistent with the establishment of subsistence homesteads upon land thus restricted and reserved. This reasoning seems definitely to support the conclusions I have already stated in this case.

    While the question is not raised directly by the present submission, I deem it proper that I should point out at this time one definite statutory limitation upon the use of the subsistence homestead appropriation. Section 208 of the National Industrial Recovery Act begins with a plain statement that the purpose of appropriation is "to provide for aiding the redistribution of the overbalance of population in industrial centers". It is to accomplish this purpose that money is made available for "aiding in the purchase of subsistence homesteads". It is immediately apparent that a large number of needy and deserving Indians now live in such an environment that their removal to a subsistence homestead colony would not tend to accomplish the above stated purpose. The Indian, like any other person eligible for aid under the subsistence homestead statute, must be a part of that industrial economy which is out of adjustment because of an overbalance of population in industrial centers. Therefore, in the planning of homestead communities for Indians and in the choice of homesteaders careful selection must be made in order that the stated purpose of appropriation may be furthered by each project. Of course this is a limitation upon the selection of homesteaders and not upon the selection of a homestead site. This matter has already been called to the attention of the Commissioner of Indian Affairs in my memorandum to him dated September 24. And see my opinion of November 24 (M-27836).

    With the caveat last stated, it is my conclusion that a house and improvements owned by an Indian family and located on Government land dedicated to Indian settlement may constitute a subsistence homestead, and the acquisition of such a homestead may be facilitated by loans and other aid from Indian Subsistence Homesteads Authority.

                                                                                                                                            NATHAN R. MARGOLD,

Approved: January 22, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.
 

M-27843                                                                                                                                      January 22, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have transmitted to me a memorandum from the Acting Director of Investigations dated September 7, together with the report of Special Agent Lowther, dated August 28, concerning the settlement of the estate of John Bigpond, a full blood Creek Indian. You request my opinion as to whether the estate in question was administered in such a manner as to defraud certain heirs.

   John Bigpond died on January 14, 1929. He left surviving him two daughters, Lallie Campbell and Lallo Mutaloke, and several grandchildren and great grandchildren. One daughter, Millie Tiger, died many years ago, leaving two daughters, Susannah Martin and Melissa Fox, both of whom survived John Bigpond. A son, Johnson Bigpond, died shortly before his father and left surviving him a purported common-law wife, Nannie Fulsome, and a purported legitimated daughter, Acie Bigpond. John Bigpond's estate consisted of his allotment, the SW1/4 Sec. 28, T. 17 N., R. 13 E., situated in Tulsa County, Oklahoma.

    Shortly before his death, John Bigpond executed his last will and testament. The will specifically devised a certain portion of John Bigpond's allotment to Matthew Tiger, the illegitimate son of Melissa Fox, and another portion to Grace Jones, the daughter of Lallie Campbell. Lallie Campbell and Lallo Mutaloke were named as the residuary devisees. The will made no provision either for Susannah Martin or Melissa Fox. The latter is mentioned in the will only as the mother of Matthew Tiger; Susannah is not mentioned at all.

    Such claims as are made for Susannah and Melissa are founded on the contention that they are pretermitted heirs and as such entitled to share in the estate of John Bigpond as though he had died intestate. A brief explanation of this contention is essential to an understanding of the case.

    Section 23of the act of April 26, 1906, provides:

"Every person (of the Five Civilized Tribes) of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and person, and all interest therein: Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States Court for the Indian Territory, or a United States Commissioner."

    "When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate * * *."

    It is by no means clear that Susannah and Melissa were unintentionally disinherited. The will specifically mentions the latter as the mother of Matthew Tiger. This would seem to indicate that the testator had Melissa in mind at the time of the execution of the will. And there is no reason to believe that the testator intended to treat the sisters Susannah and Melissa differently. There is some hearsay evidence, however, that the omission of provisions for these grandchildren was unintentional. Were the intention of the testator in this matter the controlling consideration in the case, the family history concerning the will and the circumstances surrounding its execution would bear further examination. Other facts in the case make it plain, however, that Susannah and Melissa have lost whatever right they might once have had to claim as pretermitted heirs.

    Prior to the distribution of the estate of John
 

Bigpond, Jack Martin consulted Attorney Wilkinson as to the rights of Melissa Fox and his wife Susannah under the will. Attorney Wilkinson was counsel to the executor and the beneficiaries of the will. Wilkinson informed Martin that Susannah and Melissa had few or no rights under the will, but that the residuary devisees were willing to pay them for waivers of any rights they might have in order that they might thus receive some portion of the estate. Susannah and Melissa did in fact sign such waivers and apparently received in consideration $2,500 together. Subsequently the executor's final account was filed and approved and final distribution was made on October 16, 1929. Although they received proper statutory notice, Susannah and Melissa failed to contest the probate of the will and the distribution of the estate. By Oklahoma statute, the probate is conclusive if not contested in one year, save as to infants and persons of unsound mind.

    Special Agent Lowther's report is concerned chiefly with the question of whether the waiver of the right to contest the will constituted a consent to the distribution of the estate according to the terms of the will, it being suggested that such a waiver might not bar those claiming as pretermitted heirs under the statute and not under the will. He raises the further query whether the claims of pretermitted heirs are barred by their failure to contest probate within the statutory period. He might have suggested still another question: "Is the waiver subject to rescission because of a mistake of law induced by the attorney for the estate?" Cf. Ludington v. Patton (111 Wis. 208, 86 N. W. 571). But there are other facts in the case which make any answer to the question unnecessary.

    There is a conclusive defense to any claim which Melissa and Susannah might now make for a share of the real estate. In 1934, Grace Jones and her husband sold to W. F. Parshall and J. L. West the land devised to Grace under the will. A question subsequently arose as to whether the rights of Susannah and Melissa constituted a defect in the title transferred by Grace Jones. In consideration of $1,000 in all. Susannah and Melissa conveyed all their interest by a quitclaim deed to Parshall and West. This deed was approved by the County Court of Creek County, the court having jurisdiction over the settlement of John Bigpond's estate, in accordance with the provision of a Federal statute requiring that court's approval of a conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in restricted lands acquired by inheritance or devise. The beneficiaries of the remaining lands passing under the will of John Bigpond thereafter sought and obtained similar quitclaim deeds from Melissa and Susannah. Each received $500 as consideration from Lallie Campbell and Lallo Mutaloke together, and Susannah received $500 and Melissa $1 from Matthew Tiger. The record of the court hearings on the petition of Susannah and Melissa for approval of these deeds makes it plain that it was their intention to compromise any possible claim they might have had and that their reason, in part at least, was to avoid an unseemly dispute with their blood relations. These compromise agreements were in no sense oppressive. On the basis of a favorable Government valuation, the entire estate of John Bigpond was worth about $60,000, the tract devised to Grace Jones being worth about one half of the total value. The interest of Susannah and Melissa together was no more than one third, assuming that their claims have been fully sustained in court. They received a net sum total of $2,501 for the abandonment of a claim originally of doubtful merit, and, at the time of the compromise agreement, considerably weakened if not extinguished by the previous execution of the waivers for $2,500 and the failure to make any claims for several years subsequent to the distribution of the estate.

    By these quitclaim deeds Susannah and Melissa irrevocably conveyed any interest they might have had in the real estate distributed under the will of John Bigpond. The testator also left several thousand dollars in cash and certain personal property, the combined value of the cash and personal property being about $10,000. The Special Agent's report does not indicate how much of this has been expended in satisfaction of the debts of the estate and in defraying the cost of administration. It clearly appears, however, that the executor, by authority of court order, paid a sum total of $2,800 to Acie Bigpond and Nannie Fulsome in satisfaction of their claims to the allotment of John Bigpond. It is perfectly clear, therefore, that even if the waivers executed in 1929 could now be rescinded, Susannah and Melissa could not possibly recover more than the consideration paid for the execution of the waivers, namely, $2,500.

    Acie Bigpond is the only other party who may have been defrauded in the settlement of John Bigpond's estate. Shortly after the death of John Bigpond, suit was filed in the District Court of Tulsa County on behalf of Acie Bigpond, as plaintiff, against Lallie Campbell and Lallo Mutaloke, the residuary devisees under the will of John Bigpond, W. F. Parshall as executor under the will and Nannie Fulsome the purported common-law wife of Johnson Bigpond, to quiet the plaintiff's
 

title to the allotment of Johnson. Bigpond. The plaintiff claimed to be Johnson's legitimated daughter; the defendants alleged that Johnson died intestate, without wife or issue, that upon his death his estate passed to his father and only heir, John Bigpond, and finally passed to Lallie Campbell and Lallo Mutaloke, the residuary devisees under John Bigponds will. The case was never tried upon the merits. The parties agreed to a compromise, under the terms of which the plaintiff consented to a decree in favor of the defendants, the plaintiff finally receiving $2,500 as consideration. The consent decree and compromise is undoubtedly binding on Acie. The agreement was not unreasonable; the question of Acie's paternity is, to say the least, by no means free from doubt. And it is evident from the filing of a petition in the County Court of Creek County for approval of the stipulation of settlement that the compromise was approved by that court. This certainly satisfied the requirement of Federal law that a conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in restricted land acquired by inheritance be approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee.

    On April 7, 1934, suit was filed in the District Court of Creek County on behalf of Acie Bigpond, alleging that Acie is the legitimated daughter of Johnson Bigpond and claiming a share in the estate of John Bigpond as his pretermitted heir. In view of the pending litigation I think it improper to pass an opinion as to the merits of Acie's claims. It may be noted, however, that in July 1929, Acie signed a waiver of the right to contest probate to John Bigpond's will and that until the filing of this suit, she failed to claim any share in the estate as his pretermitted heir. It may also be noted that the issue of Acie's paternity was involved in the suit brought on her behalf to establish her title to Johnson Bigpond's allotment, and that, by consent of the parties, a decree was entered for the defendants in that case.

    It is concluded that none of the heirs may now claim to have been defrauded in the settlement of John Bigpond's estate, save possibly Acie Bigpond, whose claim is now the subject of suit in the District Court of Creek County.

                                                                                                                                            NATHAN R. MARGOLD,

M-27814                                                                                                                              January 30, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion concerning the status of title to lands within the Choctaw and Chickasaw Nations which were selected for railroad rights of way under the Act of February 28, 1902 (32 Stat. 43). Stated with more particularity the question is whether title to those lands, after relinquishment or abandonment by the railroad, is vested in the Indian tribe or in the owner of the property abutting on the right of way. The inquiry is directed toward two different factual situations: one in which the railroad has not paid damages for the selected right of way and has never made use of it; the other in which the payment of damages was made and the railroad line actually built and used for a period of time.

    It is my opinion that in the first situation, that in which no damages were paid and no use of the property made, the title to the lands comprising the selected right of way is in the Indian tribe; but that in the latter situation, that in which damages were paid and use of the property made, the title is in the owner of the abutting land. I shall discuss these conclusions in the order in which I have stated them .

    On November 11, 1902, the Secretary of the Interior approved maps of definite location filed by the Choctaw and Chickasaw Railroad Company covering certain strips of land in Tps. 1 and 2 S., R. 8 E., I. M., Oklahoma. That action was taken in conformity with the provisions of sections 13 et seq. of the Act of February 28, 1902, supra, one of the purposes of which was to provide a means for the acquisition of rights of way by any railroad through the Indian Territory. Although the statute required payment to the Indians of damages for the property taken by the railroad, no payment was ever made by the Choctaw and Chickasaw Railroad Company or its successors, and no construction was ever undertaken. On September 7, 1933, the Chicago, Rock Island and Pacific Railway Company, successor in interest of the original claimant, filed a relinquishment to the Choctaw and Chickasaw Nations of all claim to the proposed right of way. That relinquishment was accepted by the Department of the Interior
 

on November 1, 1933, it being stated, however, in the letter of acceptance that under section 14 of the Act of April 26, 1906 (34 Stat. 137), the title to the right of way was vested in the owners of the legal subdivisions of which the land is a part and not in the Choctaw and Chickasaw Nations.

    Section 14 of the Act of April 26, 1906, supra, in so far as pertinent, is as follows:

    "That the lands in the Choctaw, Chickasaw, Cherokee, Creek, and Seminole nations reserved from allotment or sale under any Act of Congress for the use or benefit of any person, corporation, or organization shall be conveyed to the person, corporation, or organization entitled thereto: Provided, That if any tract or parcel thus reserved shall before conveyance thereof be abandoned for the use for which it was reserved by the party in whose interest the reservation was made, such tract or parcel shall revert to the tribe and be disposed of as other surplus lands thereof: Provided further, That this section shall not apply to land reserved from allotment therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards or other uses connected with the maintenance and operation of such company's railroad, title to which tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him: but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality."

    The first 12 sections of the Act of 1902 provide specifically for a grant to the Enid and Anadarko Railway Company. The remaining sections set up a method by which any railroad might secure a right of way and supplemental properties in the Indian Territory. It was under these latter provisions that the Choctaw and Chickasaw Railroad Company initiated its claim.

    Section 13 reads as follows:

    "That the right to locate, construct, own, equip, operate, use, and maintain a railway and telegraph and telephone line or lines into, in, or through the Indian Territory, together with the right to take and condemn lands for right of way, depot grounds, terminals, and other railway purposes, in or through any lands held by any Indian tribe or nation, person, individual, or municipality in said Territory, or in or through any lands in said Territory which have been or may hereafter be allotted in severalty to any individual Indian or other person any law or treaty, whether the same have or have not been conveyed to the allottee, with full power of alienation, is hereby granted to any railway company organized under the laws of the United States, or of any State or Territory, which shall comply with this Act."

    "That before any railroad shall be constructed or any lands taken or condemned for any of the purposes set forth in the preceding section, full compensation for such right of way and all land taken and all damage done or to be done by the construction of the railroad, or the taking of any lands for railroad purposes, shall be made to the individual owner, occupant, or allottee of such lands, and to the tribe or nation through or in which the same is situated: * * * ." (Emphasis added.)

Section 15 further provides that, in case of failure to reach an amicable settlement concerning the damage and the compensation therefor, a board of referees shall make an award of damages, subject to review by the United States Court on appeal. The section then provides that

    "When the award of damages is filed with the clerk of the court by the referees, the railway company shall deposit the amount of such award with the clerk of the court, to abide the judgment thereof, and shall then have the right to enter upon and take possession of the property sought to be condemned: * * *." (Emphasis added.)

    It is, consequently, my conclusion that the second proviso of section 14 of the Act of April 26, 1906, does not operate to vest in the abutting owners title to a proposed but abandoned railroad right of way, selected under the general grant contained in the Act of February 28, 1902, if the railroad paid no damages for the lands selected. In such a case the title to these lands which were reserved from allotment is vested in the Indian tribe.

    This conclusion is not to be shaken by a consideration of the fact that section 14 of the 1906 act provides that title to the right of way shall vest in the owner of the legal subdivision of which the land abandoned is a part in the event of failure by the railroad company to make payment or of cessation of use. The payment to which reference is made is clearly that which is to be made by the railroad in order to secure a conversion of its easement into a fee title to the right of way. The abandonment of use to which reference is made is clearly an abandonment of a use theretofore validly acquired. In accordance with the terms of the 1902 act, however, no easement exists to be converted into a fee and no right to use has been validly acquired until damages for the taking of the right of way have been paid. The reference to failure to pay and to abandonment of use in the second proviso of section 14 of the 1906 act is not, expressly or by implication, a modification or elimination of the provisions of the 1902 act, nor does it cause an extension of the application of the 1906 act to a case where the land included in a proposed right of way, although reserved from allotment, was not reserved because of the existence of a right in the nature of an easement.

    The act of 1902 differs from the Act of March 3, 1875 (18 Stat. 482, U.S.C. Tit. 43, Sets. 934 to 939, inclusive) and other special grants to railroads for a right of way over public lands where the effect of the filing and approval of the maps of definite location of the line of railroad vests the legal title in the railroad. Oregon Short Line R. Co. v. Stalker (225 U.S. 142); Rio Grande Western Ry. Co. v. Stringham (239 U.S. 44). Grants of a railroad right of way over public lands are grants of lands that are subject to sale and disposition under general laws and free from prior valid appropriation (Newhall v. Sanger, 92 U.S. 761, 763; Union Pacific Railroad Company v. Harris, 215 U.S. 386), whereas the grant now under consideration authorized the taking and condemnation of lands, title to which was vested in the Indians or their transferees, and prescribed as a prerequisite to the attachment of any rights to the land that the claims for damages by those holding the Indian title should be first satisfied or secured. These prerequisites not having been met, the title remained where it was before the filing of the map of location of the line.

    From the discussion already presented it is obvious in whom is vested title to the abandoned right of way acquired under the general grant contained in the Act of 1906 if the damages were paid and the railroad actually constructed. In such a case right in the nature of an easement exists. Missouri, Kansas and Texas Railway Company (34 L. D. 504). If the railroad company then failed to make payments to convert the easement into a fee as required by the Act of 1906 and the Departmental regulations of June 12, 1908, or abandoned the
 

right of way, the second proviso of section 14 of the 1906 act would operate to vest title "in the owner of the legal subdivision of which the land so abandoned is a part."

                                                                                                                                            NATHAN R. MARGOLD,

    The South Dakota highway compensation tax in question in this case is designed to compensate the State for the expense of highways and is to be regarded as a revenue measure rather than as a regulatory measure as stated in your submitted letter to Mr. Dickens, Superintendent of the Cheyenne River agency. See State v. Coyne (58 S.D. 480); 237 N.W. 733-1931); Prouty v. Coyne (55 Fed. (2d) 289-D. S.D. 1932). These cases held that the high way compensation law (S.D. Sess. Laws, 1931, at 225), which preceded the present law (S.D. Sess. Laws, 1933, at 135) and was substantially similar to it, was a valid revenue measure, at least where placed upon intrastate commerce. Since this is a revenue measure, the question of the applicability of the law to the Indians on the Cheyenne River Reservation is not foreclosed by the arguments presented in the letter to Mr. Dickens. There may be grave legal doubts as to the ability of the State to tax the Indian truckmen if either of the following two fact situations exist:

    1. If the trucks described in the superintendent's letter, which were used by the Indians, were issued by the Government or purchased with restricted funds or with funds from the sale of issued property or secured in exchange for restricted property. Such property can be considered trust property in the control of Congress and beyond the reach of State taxation. See United States v. Pearson (231 Fed. 270-D. SD. 1916); Olney v. McNair (105 Wash. 18; 177 Pac. 641-1919); Three Foretops v. Ross (73 Mont. 6; 235 Pac. 334-1925); or

    2. If the Indian does trucking solely for the Government (whether or not his ownership of the truck can be traced to restricted property) and does not engage in any private trucking. The State cannot place a prohibitive tax upon the operation of a Federal agent.

    Should neither of these situations apply in this case, there would seem to be no way by which these Indians can escape the application of the tax.

M-27903.                                                                                                                                February 5, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY.

    My opinion has been requested on the question of whether the act of June 18, 1934 (48 Stat. 984), commonly known as the Wheeler-Howard Act, is by its terms applicable to those Indian Reservations on which referendum elections have been held in which less than a majority of the eligible voters cast ballots against the application of the act, such ballots, however, constituting a majority of the votes actually cast.

    The Commissioner of Indian Affairs reports that, subject to possible corrections, the record of referendum results up to December 31, 1934, shows that referenda have been held upon 117 reservations; that, of these, 85 have resulted in majority votes in favor of continued application of the Wheeler-Howard Act, 15 have resulted in a vote for rejection by a majority of the total eligible voters, and 17 have resulted in a vote for rejection by a majority of the actual voters, constituting less than a majority of the eligible voters. The Commissioner of Indian Affairs further reports that several reservations of the last class have been notified that the Wheeler-Howard Act will continue to apply to them inasmuch as less than a majority of the adult Indians of the reservation have voted to reject the act. This notification is in accordance
 

with the Solicitor's Opinion (M-27810) approved October 23, 1934, and reaffirmed December 13, 1934.

    You have requested me to reconsider this option and to state in detail the factors considered in connection therewith.

    The question presented turns upon the proper interpretation of the first sentence of section 18 of the Wheeler-Howard Act, which provides:

    "This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application.* * * "

    Unless the punctuation of the phrase in question be entirely disregarded, the word "majority" would appear to refer to the following words, "of the adult Indians," and the succeeding phrase, set off from the rest of the sentence by commas, would appear to be parenthetical and nonrestrictive, indicating simply the manner in which "a majority of the adult Indians * * * shall vote against its application." This reading is confirmed by the elementary grammatical rule that parenthetical or nonrestrictive phrases are enclosed by commas, while restrictive phrases are not so enclosed. The rule is supported not only by all orthodox grammers (see, for instance, Fewsmith-Singer-Flounders, Standard English Grammar, 1905, page 193), but also by ordinary editorial usage (as analyzed in Leonard, Current English Usage, 1932, page 42). Of course, a matter of punctuation would not be entitled to serious consideration if the language of the statute fairly indicated another meaning than that which has been advanced, but punctuation should "be given consideration when there is a claim that the meaning of the statute is doubtful." Fithian v. St. L. 6 S. I;. Ry. Co. (188 Fed. 842, 843). Thus it has been held that the punctuation of a congressional statute is a significant guide in interpretation even where the members of the conference committee which passed upon the final form of the statute declare the punctuation was the result of a clerical error. In re Schilling, 53 Fed. 81. It is for Congress, and not any other body, to make the necessary corrections. The old common law rule that statutory punctuation is to be disregarded in interpretation was "a necessary consequence of the custom of enacting and enrolling laws with no punctuation whatever" and is not today followed by American courts. See State v. Bell, 184 N.C. 701, 115 S. E. 190.

    It is noteworthy that in several other provisions of the Wheeler-Howard Act a majority vote of those eligible to vote, rather than of those actually voting, is required for action under the statute.

    Section 16 provides that the tribal constitution and bylaws must be "ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe."

    Section 17 provides:

    "The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: Provided, That such charter shall not be come operative until ratified at a special election by a majority vote of the adult Indians living on the reservation."

    As a matter of fact the statutory permitting Indians of a given reservation to nullify an Act of Congress is so exceptional that it can scarcely be supposed that Congress would wish to give this power to what might be a very small group of actual voters on a reservation. It is more natural to assume that Congress, having adjudged the provisions of the Wheeler-Howard Act to be beneficial for the Indians of the nation generally, should have required a very definite expression of dissent to render the Act inapplicable to any reservation.

    To consider an actual example, the Commissioner of Indian Affairs reports that on the Walker River Reservation, out of 301 eligible voters only 41 actually voted to reject the act, while 37 voted to continue the act in force, and 223 failed to vote at all. It is quite possible that many Indians refrained from voting because they had been informed that rejection of the act could be accomplished
 

only by a majority of eligible voters. This meant, in effect, that voting in favor of the act had no different effect than refusing to go to the polls.

    It is proper to refer to the legislative history of the phrase if the foregoing considerations, based upon the language of the Act itself, are insufficient to settle the question of correct construction.

    The referendum clause was first proposed by the Chairman of the House Committee on Indian Affairs and was presented to the Committee by the Commissioner of Indian Affairs (Hearings before the Committee on Indian Affairs, H.R. 73d Congress, 1st session, on H.R. 7902, page 189). This provision as originally drafted required a vote by a majority of the adult resident Indians in order to render the Act inapplicable to a given reservation. This provision was subject to some criticism and discussion (Ibid, pages 189 to 193). At the close of this discussion the Commissioner of Indian Affairs agreed that the language of the provision should be modified to give force to an adverse vote by less than a majority of those eligible to vote. This was immediately done, and in the April Committee Print of H.R. 7902, embodying the amendments proposed by the Department of the Interior, the following language appears:

    "The provisions of this Act shall not apply to any reservation wherein a majority of the adult resident Indians voting in an election duly called by the Secretary of the Interior shall vote against the application of these provisions."

    After the close of open hearings on H.R. 7902, the House Committee on Indian Affairs went into executive session and some weeks later brought forward on the floor of the House a bill radically different in form, although embodying most of the original purposes of H.R. 7902, and following the language of H.R. 7902 in large part. The bill, as proposed, contained the clause which now appears as Section 18 of the Act of June 18, 1934. No similar clause appears in the bill as originally passed by Senate (S. 3645). The conference report to the House (H.R. 73d Congress, 2d Session Report No. 2049) contained the following statement:

    "Sec. 18. A corresponding section did not appear in the Senate bill and section 19 of the House bill was agreed upon, changing the time within which election must be held from 6 months to 1 year."

    "A few Indian tribes asked to be exempted from the provisions of the bill. The committee have thought it unwise to force even home rule and appropriations on tribes unwilling to accept them, and for that reason section 19 provides for a popular referendum among the various tribes with 6 months after the passage and approval of the act. The act shall not apply to any reservation wherein a majority of the adult Indians vote against its application."

    In view of the foregoing considerations, it is unnecessary to consider what force should be attached to the contemporaneous construction of the department charged with the duty of administering the Wheeler-Howard Act. If the meaning of this provision remained doubtful, some weight might be given to the fact that administration of Indian affairs on the 17 reservations in question has proceeded upon the assumption that the Wheeler-Howard Act has continued to be in force upon these reservations. But in my opinion, the natural, literal interpretation of the clause in question is clear, and there is nothing in the context of the act or in the legislative history of this clause which casts any doubt upon the validity of this interpretation.

    I am, therefore, of the opinion that the Wheeler-Howard Act continues to apply to those reservations wherein less than a majority of the adult Indians have voted to reject the act. Nothing in this opinion, however, is intended to modify the previous ruling of this Department (see Solicitor's Opinion, approved December 13, 1934, Question 2) that under certain circumstances such a reservation may have a new opportunity to vote upon the rejection of the act.

                                                                                                                                            NATHAN R. MARGOLD,

Memorandum for the Commissioner of Indian Affairs:

    The attached report submitting a draft of a bill covering the leasing of tribal Indian lands for mining purposes is returned for the purpose of bringing to your attention the effect certain provisions of the bill, as drafted, will have on important rights and powers now resting in the Indian tribes under existing law.

    1. Under existing law tribal lands which have been bought by Indian tribes or ceded to such tribes under twenty provisions may be "leased by authority of the council speaking for such Indians for a period not to exceed * * * 10 years for mining purposes in such quantities and upon such terms and conditions as the agent in charge of such reservation may recommend, subject to the approval of the Secretary of the Interior." (Act of February 28, 1891, United States Code, Title 25, Sec. 397). Under this statute the tribe has the initiative. The Secretary has only the power of review, which may be progressively diminished.

    With respect to lands now covered by the Act of February 28, 1891, the proposed bill would deprive the tribal councils of the power to make leases and would turn this power over to the Secretary of the Interior, subject only to the requirement that the tribal council must consent to certain types of action undertaken by the Secretary of the Interior. Thus, the tribal council must consent, under section 1 of the bill, to the actual leasing of the land and, under section 7 of the bill, to the granting of permits for the cutting of the timber. On the other hand, under section 2 of the bill, prospecting permits, carrying with them a preference right to leases, may be issued by the Secretary of the Interior without the consent of the tribe. Under section 3, the Secretary of the Interior may grant lessees options to renew without the consent of the tribe, may accept relinquishments and relieve lessees of the obligations of the lease without the consent of the tribe, and has the exclusive right to decide when leases shall be canceled. Under section 4, the Secretary may, without the consent of the tribe, grant to a lessee the right to use tribal land for various purposes. All powers of examination, investigation and control are vested in the Secretary exclusively. Furthermore, the discretion now vested in the Indian tribe to work out the terms of the lease (subject to departmental review) is superseded in the interest of arbitrary uniformity by specific provisions granting lessees vested rights of renewal and relinquishment.

    In all of the foregoing respects the attached bill contemplates a very serious diminution of the existing rights of those tribes that still have some mineral resources on tribal lands acquired by purchase or treaty provision.

    2. In effect the bill repeats the provisions of the Wheeler-Howard Act which guarantee to an incorporated Indian tribe the power to lease its own land. The proposed bill takes this power away from the incorporated tribe and vests it in the Secretary. No facts are presented in the attached report which show any basis for this sudden change of legislative policy.

    3. The bill, in so far as it authorizes the Secretary of the Interior to dispose of tribal lands and assets without the consent of the tribe, would supersede section 16 of the Wheeler-Howard Act, which granted to organized Indian tribes the power to prevent the leasing or other disposition of tribal lands or assets. No reason for modifying the Wheeler Howard Act in this way is suggested.

    For these reasons, you may desire to reconsider the proposed letter recommending approval of the bill.

                                                                                                                                            NATHAN R. MARGOLD,

Memorandum on Flathead Power Site

    The failure of the Rocky Mountain Power Company to comply with the terms of its license compels consideration of the various courses of action open to the Government with respect to the development of the Flathead Power Site, Project No. 5, Montana.

    The relations of the Government to the present licensee of Project No. 5 are twofold, i.e.. those arising out of the contract and those arising out of sovereignty.

    It is part of the sovereign power of the United States that it may at any time condemn property needed for proper public purposes, through appropriate legislation and action thereunder. This power, so far as it affects the Flathead site, is not created by the contract with the licensee. It may be exercised whether or not the licensee is in default, and whether or not the Government has elected to bring any type of legal action based upon breach of contract against the licensee. If, therefore, the Government desires to use the prop-
 

erty in question for public development of the water power site, as is recommended by the report of the Subcommittee of the Committee of Indian Affairs of the Senate, dated December 16, 1933 (73 Cong., Ed session, Report No. 147), it will be possible to dispossess the licensee through condemnation proceedings. The procedure necessary for this course of action will be outlined below.

    In the second place, the Government is in this case an aggrieved contracting party as well as a sovereign. Under the terms of the license the licensee was bound to complete construction of the power site on August 24, and to make substantial payments to the Government for the benefit of the Flathead Tribe thereafter. The licensee is now in default upon this contract. Like any other aggrieved party to a broken contract, the Government may elect whether to cancel the contract through a suit in equity or to stand on the contract and demand payment of damages. In the former case the licensee will be discharged of its obligations. In the latter case the licensee will be compelled to pay to the Government, for the benefit of the Flathead Tribe, a very substantial sum of money.

    The procedure involved in each of these courses of action is here briefly set forth:

1. Condemnation.

    The right of the Federal Government to condemn land within the jurisdiction of a State has been clearly recognized since the case of Kohl v. United States (91 U.S. 367). See to the same effect United States v. Jones (109 U.S. 813); Cherokee Nation v. Kansas Ry. Co. (135 U.S. 641). Having the right to condemn land for proper purposes, the Federal Government may exercise this right through any agency or instrumentality which may be selected by Congress.

    Under Title II of the National Industrial Recovery Act the President was empowered, through the Administrator of Public Works, "to acquire by purchase, or by exercise of the power of eminent domain, any real or personal property in connection with the construction of" any authorized Public Works project. (48 Stat. 193, 202, chap. 90, section 203 (a) (3).) It is possible that new legislation designed to replace existing Public Works legislation will contain some similar general authorization for the acquisition of property through condemnation proceedings. If such a general authorization is not so provided, special legislation will be required to authorize the condemnation of the Flathead project.

    It is here assumed that legislation authorizing the use of condemnation proceedings for the acquisition of the project in question would be constitutional. This assumption has been challenged in the current TVA litigation. Nevertheless, even if the courts should hold Federal development of water power sites such as that in question to be beyond the proper powers of the Federal Government, it is clear that State development, with Federal cooperation, would justify condemnation proceedings by the State or an authorized State agency.

    The power of condemnation is expressly recognized and reserved by section 14 of the Federal Water Power Act of June 10, 1920 (41 Stat. 1063), which contains the following proviso:

    "Provided, that the right of the United States or any State or municipality to take over, maintain, and operate any project licensed under this act at any time by condemnation proceedings upon payment of just compensation is hereby expressly reserved."

    The institution of condemnation proceedings does not raise any serious probabilities of delay. Congress has provided that the Federal Government may take immediate possession of lands needed for public purposes upon the deposit in court of proper security for the payment of a final award. The act of February 26, 1931 (46 Stat. 1421-1422), provides:

    "That in any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto-

    (1) A statement of the authority under which and the public use for which said lands are taken.

    (2) A description of the lands taken sufficient for the identification thereof.
 
 

    (3) A statement of the estate or interest in said lands taken for said public use.

    (4) A plan showing the lands taken.

    (5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.

    "Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, in interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into the court shall be charged with commissions or poundage."

    It is recognized of course, that the present value of the property condemned is the constitutional measure of damages. United States v. Boston C. C. and N. Y. Canal Co. (271 Fed. 877).

2. Cancellation of License.

    It has already been noted that cancellation of the license is a remedy given to the Government by virtue of its contract with the licensee and by virtue of the licensee's default. Cancellation of the contract is not a necessary prerequisite to condemnation proceedings or public development. If, however, an action for the cancellation of the contract is brought to a successful conclusion in the courts prior to the time of condemnation, and if the property of the licensee is thereafter sold to the Government or removed, it will be unnecessary to bring condemnation proceedings against the present licensee.

    The right of the Government to assist upon a cancellation of the contract grows out of the licensee's default. Under the terms of the license issued by the Federal Power Commission, with the approval of the Secretary of the Interior, on May 23, 1930, the licensee became bound to complete construction on or before May 23, 1934. Article 6 of the contract provides:

    "Subject to the provisions of section 13 of the act, the licensee shall begin the construction of said project works within one year from the date of issuance hereof, shall thereafter, in good faith and with due diligence, prosecute such construction, and shall within three years thereafter complete the installation of three units of not less than 150,000 horsepower aggregate capacity."

    The second of these alterations extended the date set for the completion of construction from May 23, 1934, to August 24, 1934. This modification of the original contract was likewise made by the Federal Power Commission at the request of the licensee. (See order dated May 22, 1934.)

    There can be no question but that the licensee is now in default upon this contractual obligation. The Federal Power Commission may therefore elect to have the license canceled. Article 6 of the license makes section 13 of the Federal Water Power Act applicable in the matter of cancellation. The relevant provision of section 13 of the Act declares:

    " * * * In case the construction of the project works, or of any specified part thereof, have been begun but not completed with the time prescribed in the license, or as extended by the commission, then the Attorney General, upon the request of the commission, shall institute proceedings in equity in the district court of the United States for the district in which any part of the project is situated for the revocation of said license, the sale of the works constructed, and such other equitable relief as the case may demand, as provided for in section 26 hereof."
 
 

    Section 26 of the Act in part provides:

    "That the Attorney General may, on request of the commission or of the Secretary of War, institute proceedings in equity in the district court of the United States in the district in which any project or part thereof is situated for the purpose of revoking for violation of its terms any permit or license issued hereunder, or for the purpose of remedying or correcting by injunction, mandamus, or other process any act of commission or omission in violation of the provisions of this act or any lawful regulation or order promulgated hereunder. The district courts shall have jurisdiction over all of the above-mentioned proceedings and shall have power to issue and execute all necessary process * * *.  In the event a decree revoking a license is entered, the court is empowered to sell the whole or any part of the project or projects under license, to wind up the business of such licensee conducted in connection with such project or projects, to distribute the proceeds to the parties entitled to the same, and to make and enforce such further orders and decrees as equity and justice may require. At such sale or sales the vendee shall take the rights and privileges belonging to the licensee and shall perform the duties of such licensee and assume all outstanding obligations and liabilities of the licensee which the court may deem equitable in the premises; and at such sale or sales the United States may become a purchaser, but it shall not be required to pay a greater amount than it would be required to pay under the provisions of section 14 hereof at the termination of the license."

    "That upon not less than two years' notice in writing from the commission the United States shall have the right upon or after the expiration of any license to take over and thereafter to maintain and operate any project or projects as defined in section 3 hereof, and covered in whole or in part by the license, or the right to take over upon mutual agreement with the licensee all property owned and held by the licensee then valuable and serviceable in the development, transmission, or distribution of power and which is then dependent for its usefulness upon the continuance of the license, together with any lock or locks or other aids to navigation constructed at the expense of the licensee, upon the condition that before taking possession it shall pay the net investment of the licensee in the project or projects taken, not to exceed the fair value of the property taken, plus such reasonable damages, if any, to property of the licensee valuable, serviceable, and dependent as above set forth but not taken as may be caused by the severance therefrom of property taken, and shall assume all contracts entered into by the licensee with the approval of the commission. The net investment of the licensee in the project or projects so taken and the amount of such severance damages, if any shall be determined by agreement between the commission and the licensee, and in case they did not agree, by proceedings in equity instituted by the United States in the district court of the United States in the district within which any such property may be located: Provided, That such net investment shall not include or be affected by the value of any lands, rights of way, or other property of the United States licensed by the commission under this act, by the license, or by good will, going value, or prospective revenue: Provided further, That the values allowed for water rights, rights of way, lands, or interest in lands shall not be in excess of the actual reasonable cost thereof at the time of acquisition by the licensee: Provided, That the right of the United States or any State or municipality to take over, maintain, and operate any project licensed under this act at any time by condemnation proceedings upon payment of just compensation is hereby expressly reserved."

    The licensee claims to have invested approximately $1,800,000 in the project. (Hearings before Federal Power Commission upon request for further extension of time within which to complete the project, May 22, 1933, p. 20.) It is impossible to predict what terms and conditions the courts will impose upon a transfer of the property in
 

question to the Federal Government or some other bidder, in proceedings ancillary to a suit for cancellation.

    Likewise it impossible to predict how much time will be required to carry such a suit in equity to a successful conclusion.

    Finally, upon a forfeiture of the contract the Flathead Tribe will cease to receive its preconstruction royalties of $12,000 per year and lose its right to recover several millions of dollars in royalties, or damages in lieu thereof for breach of contract.

3. Action for Breach of Contract.

    A second mode of redress is open to the Government, and to the Flathead Tribe, by reason of the licensee's breach of contract. The course of action which is in many ways most advantageous to the Government is at the same time the simplest course of action, i.e., the institution of an action at law for damages for breach of contract.

    There can be no question that the defendant has broken its contract and is liable in damages.

    It is equally clear that the Montana Power Company is liable as guarantor for the default of the licensee under the guarantee dated May 23, 1930. It may be noted that both of the changes made in the terms of the original license were made with the consent, and at the request, of the guarantor.

    Conceding that the licensee and the guarantor are liable as for breach of contract, the only serious question is: What is the measure of damages for such breach?

    Authorities are agreed that the measure of damages for the breach of a contract to pay money in installments, where action is brought before the whole amount called for by the terms of the contract is due, is the present value of the contract. The present value of the contract in question to the Flathead Tribe is $7,355,000 less appropriate deductions for interest if the sum is paid in advance of schedule. This sum represents the total of installments due to the tribe during the period of the license (50 years), after the date set for completion of construction. These damages might, of course, be mitigated if the licensee should surrender its license and it should further appear that the Flathead Tribe was in a position to obtain rentals on the same property from another source.

    It is not necessary to consider at the present time whether other damages than those accruing to the Flathead Tribe may be shown in a suit based upon breach of contract. It may be noted that the license confers upon the Flathead Irrigation Project the vested right to receive 15,000 H.P. of electrical power on demand, at a fixed low price. It is possible that this district will be entitled to prove damages in a suit brought by the United States for breach of contract.

    The proposition that the Flathead Tribe is entitled to recover damages for a breach of the entire contract at the present time is supported by the great weight of authority. As is said by the Supreme Court of the United States in Pierce v. Tennessee Coal & R. R. Co., 173 U.S. 1:

    "But the recent tendency of judicial decisions in this country, in actions of contract, as well as in actions of tort, has been towards allowing entire damages to be recovered, once for all, in a single action, and thus avoiding the embarrassment and annoyance of repeated litigation." (At page 11.)

    "The plaintiff was not bound to wait and see if the defendant would change its decision, and take him back into its service; or to resort to successive actions for damages from time to time; or to leave the whole of his damages to be recovered by his personal representative after his death. But he had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain this action, once for all. as for a total breach of the entire contract; and to recover all that he would have received in the future, as well as in the past, if the contract had been kept." (At page 16.)

    A state of facts similar to that here presented is found in Metropolitan Life Insurance Co. v. Day, 145 Ca. 425, 89 S. W. 576. In that case, installment payments by an insurance company were to become