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APRIL 30, 1935

    "When oil lessees manufacture casing-head gasoline from casing-head gas produced from their own leases, payment for the royalty interest of the lessor shall be at the rate of 16 2/3 per cent (or the royalty specified in the lease) to be computed on 33 1/3 per cent of the gasoline extracted as provided in paragraph 6, and which shall be subject to change as prescribed in paragraph 9."

    These leases were approved May 17, 1916. Early leases and the regulations governing the leasing of Osage oil lands did not make any provision for casing-head gas or the gasoline manufactured therefrom. The regulations approved July 3, 1916, and the leases made thereunder provided for royalty payments on only crude oil and natural gas. It was not until July 8, 1916, that any provision was included in the regulations for payment of royalty on casing-head gas and gasoline. These leases were approved on regulation lease forms prior to this date. The provisions of the leases, however, and the regulations of the Department existing at the time the leases were approved, or as amended subsequently, are to be construed together, in accordance with section 16 of the leases. See Utilities Production Corp. v. Carter Oil Co., 72 Fed. (2d) 655, 657. The regulations are made part of the lease with certain limitations not relevant here. No question has been raised regarding any change in the rate of royalty, nor in the term of lease, nor in regard to rental or acreage. The sole question presented for determination involves what products shall be subject to the prescribed royalty and, inasmuch as these leases do not prohibit changes in the basis of computing royalty, there is no reason why casing-head gasoline should not be made subject to royalty at the prescribed rate. Section 10 of the regulations approved July 12, 1932, therefore, must be regarded as a proper part of the leases.

    Neither section 2 nor section 12 of the leases are decisive of the question presented here. Though all originate from the same source, oil, casing-head gas and gasoline manufactured therefrom are distinct products. The first two are derived from the ground in their natural state, while gasoline is a manufactured commodity. Provisions in the leases relating to oil and casing-head gas do not, therefore, necessarily apply to casing-head gasoline.

    Section 2 of the leases applies to crude oil, and allows a deduction for operating purposes from the amount subject to royalty charges. It does not, however, create an exemption for casing-head gasoline similarly utilized.

    Section 12 deals with casing-head gas, and provides for royalties to be paid by the oil and gas lessees depending on certain contingencies and subject to certain limitations. When used for the manufacture of gasoline the gas is subject to payment by the oil lessee of royalty based on the market value of the gasoline contents. It is royalty free when used for operating purposes on the leased premises. It is not clear, however, whether royalty is payable on the gas used for manufacture of gasoline at all times, regardless of the use to which the gasoline is put, or whether gasoline used on the premises falls within the exemption applicable to casing-head gas so used.

    Whatever may be the correct construction in this connection, section 10 of the regulations is specific on the point involved. It is necessary to consider section 12 standing by itself, for section 10 clarifies it and eliminates any confusion that might otherwise exist. It provides for royalty payments for the interest of the lessor based on 33 2/3 percent of the gasoline extracted. The section has two effects. On the one hand, it changes the provisions of section 12 relating to the basis of computing royalty when gasoline is manufactured from casing-head gas. The amount of gasoline extracted, rather than the gasoline contents, is made the basis of measurement. On the other hand, there can no longer be any confusion as to whether casing-head gasoline used on the premises should be royalty free within the exemption applied to casing-head gas so utilized. It provides specifically that royalty shall be charged on 33 1/3 percent of any and all gasoline extracted, and that 66 2/3 percent shall be allowed royalty free for operating purposes. Whether the gasoline is produced for use on the premises, or for resale, or any other purpose royalty is payable in accordance with the above proportions.

    The intent of the section clearly is to preserve the interest of the Osage Tribe in a community that was of no great commercial significance at the time these leases were approved, but that has since become of considerable value, both for resale and fuel purposes. As pointed out by the Acting Superintendent of the Osage Reservation in his recommendations on the subject, "it seems unfair to the Osage tribe to ask that they be assessed further operation expense when they have already made a very liberal contribution under the provisions of the regulations for that purpose." The fact that the leases themselves say nothing on the question is without importance. Section 10 clearly and explicitly remedies this defect.

    I am of the opinion, therefore, that royalty should be paid at the rate of 16 2/3 percent computed on 33 1/3 percent of the gasoline extracted from casing-head gas, whether actually used in operating the lease or not, the remaining 66 2/3 percent being




APRIL 30, 1935

royalty free under the terms of section 6 of the regulations.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
Approved: April 30, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.


May 14, 1935.

 Memorandum for the Commissioner of Indian Affairs:

    I am returning without approval your letter of April 22 recommending the enrollment with the Lake Band of Chippewa Indians in Minnesota of Patricia Cameil Peron and Donna Peron, children of Mrs. Leona Lealin Peron, an enrolled mixed blood Indian of the Red Lake Band.

    The enrollment of these children does not appear to be justified by anything contained in the present record. In the first place, they are not recognized by the Red Lake Band of Indians as members, the Indians in general council having in fact declined to approve their enrollment. In the second place, they are the issue of a marriage between an Indian woman and a white man and the marriage having been solemnized after June 7, 1897, they are not entitled to enrollment under the act of that date (30 Stat. 62,90). Finally, it is well established than an Indian woman loses her tribal membership where she marries a white man, separates from the tribe and lives with him among white people. It is also well settled that the children of such a marriage take the status of the father rather than that of the mother unless the mother remains in the tribal environment and retains her tribal membership and the children are born in the tribal environment and there reared by her with the father failing to discharge his duties to them. See Malbert v. United States (283 U.S. 753, 763); Oakes v. United States (172 Fed. 305).

    One of the children was born in Los Angeles, California, after the mother had long been absent from the reservation. See Superintendent's letter of June 22, 1934. The other child was born on the reservation after the mother had returned there. The marriage of Mrs. Peron to a white man, coupled with absence from the reservation and residence among the whites, appears to have put an end to her tribal membership. The child thereafter born to her in California clearly was not born into tribal membership and cannot be enrolled, nor does the child born after her return to the reservation stand in any better position. If, as appears to be the case, the membership of the mother had terminated, her return to the reservation would neither restore her tribal membership nor confer tribal membership rights on her children born there unless the tribe itself recognizes them as members. Such recognition in the present case has so far been withheld.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

M-27996                                                                                                                                     May 14, 1935.

The Honorable,
The Secretary of the Interior.


    My opinion has been requested as to the ownership of the bed of the Arkansas River where it forms the western boundary of the Kaw Indian Reservation in Oklahoma.

    The Kaw tribe of Indians is asserting title to the river bed between the upland and the mid-channel of river and on March 4, 1934, executed an oil and gas lease on the river bed lands to one D. J. Donahoe, Jr. of Ponca City, Oklahoma. The lease is accompanied by an agreement between the tribe and Mr. Donahoe under which the latter undertakes to protect the right and interest of the tribe in the leased lands at his own expense, such expense to include the cost of hiring competent counsel.

    It is appropriate to state at the outset that the lease and agreement which have been submitted for approval of the Secretary of the Interior can not be approved at this time even though the lands involved belong to the lessor tribe. The lease purports to have been executed under section 3 of the act of February 28, 1891 (26 Stat. 795) and was let privately without advertising or public sale. The act of 1891 was amended in 1924 (act of May 29, 1924, 43 Stat. 244) to require that all oil and gas leases on tribal lands subject to lease under the act of 1891 be sold at "public auction." In view of this statutory requirement, there is no authority for approval of the present lease which was not executed pursuant to a public auction sale.

    The lands comprising the Kaw Indian Reservation were part of a large tract purchased by the Osage tribe of Indians from the Cherokee nation pursuant to the act of June 5, 1872 (17 Stat. 228). The description of the entire tract as set forth in




MAY 14, 1935

the act is "bounded on the east by the 96th meridian, on the south and west by the northline of the Creek country and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas." The act provided that the Osage tribe should permit the settlement on the land of the Kansas (Kaw) tribe of Indians-not exceeding 160 acres for each member of that tribe to be paid for out of the proceeds of sales of lands in Kansas belonging to the Kaws. Payment for the entire tract was made to the Cherokees by the Osages. The Osages were then paid by the Kaws for the lands assigned to them and the respective tracts were duly conveyed to the United States in trust for the Osage and Kaw tribes by a deed executed June 14, 1883, under authority of an act of the Cherokee nation. The deed described the land by townships and fractional townships, the latter being located on the left bank of the Arkansas River. In Brewer Oil Company v. United States (260 U.S. 77) the Supreme Court considered the scope of the title acquired by the Osage tribe under the Cherokee deed and held that the deed, interpreted in the light of the language used in the act of 1872, carried title to the river bed land out to the main channel. Under this decision, it is clear that the title of the Kaw tribe acquired under the same deed likewise extended to the main channel of the stream.

    The reservation thus established for the Kaw tribe aggregated 100,137.32 acres and was maintained until July 1, 1902, when Congress by an act of that date (32 Stat. 636) accepted, ratified and confirmed an agreement submitted by the tribe providing for disposition of the reservation by directing that all of the lands with the exception of certain tracts reserved for school, agency, cemetery and town site purposes, be divided among the members of the tribe, giving to each his or her fair share in acres. Specific provision was made for a homestead allotment to each member of 160 acres, the balance to be divided equally in acres among the members "giving to each as nearly as practicable the same number of acres of farming and grazing lands." The agreement was carried into effect by making the allotments provided for, title passing to the allottees by deeds containing prescribed restrictions against alienation. The deeds described the lands according to legal subdivisions established by meander line surveys of the upland and shown on official plats. The deeds for the lands bordering on the stream contained no express inclusion or exclusion of rights in the river bed.

    The question for decision is whether title to the river bed land passed with the allotment of the upland or whether the river bed remained tribal land subject to disposition as such. As the Arkansas River where it forms the western boundary of the Kaw Reservation is a non navigable stream (Brewer Oil Company v. United States, supra,) the answer to this question is determined I think by the Decision of the Supreme Court of the United States in Oklahoma v. Texas (258 U.S. 570) and that of the Circuit Court of Appeals, 8th Circuit in United States v. Hayes (20 Fed. 2d. 873; certiorari denied 270 U.S. 552). In the Oklahoma-Texas case the question was whether allotments made to the Kiowa, Comanche and Apache Indians in Oklahoma of lands on the north bank of the Red River, a non navigable stream, carried title to the river bed in front thereof. There, as here, the tribal reservation extended to the mid-channel of the river. There, as here, the allotments were made according to legal subdivisions established by a survey of the upland, and there, as here, the patents contained no express exclusion or inclusion of the river bed lands. The court found that in executing the allotment acts there was no attempt to dispose of the river bed separately from the upland and held that the conveyances of the riparian tracts conferred a title not merely to the water line but to the middle of the stream. Such was the effect of the conveyances under the Oklahoma law, and in so holding, the court applied the general rule that:

    "Where the United States owns the bed of a non navigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what it intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the State in which the land lies. Where it is disposing of tribal land of Indians under its guardianship the same rules apply."
    In the case of United States v. Hayes, supra, the United States on behalf of the Creek nation asserted title to the bed of the Arkansas and Cimmarron Rivers-both non navigable streams at the places of controversy-as against the upland allottees and their successors in interest. In a lengthy and well considered opinion, the Court of Appeals rejected the claim and held that the title of the




MAY 14, 1935

riparian allottees to the lands conveyed according to meander line surveys extended to the thread of the streams.

    These decisions must be considered as decisive of the question of the title in the present case in the absence of anything to show an intention to reserve to the Kaw tribe the river bed lands. The deeds to the allottees contain nothing to show an intent to reserve the river bed; nor do the provisions of the allotment agreement support the claim of the tribe in this respect. The agreement specifically provides for the allotment of all of the tribal lands except those specifically reserved from allotment and the specific reservations made do not include the river bed lands. It is contended, however, that an intent to reserve the river bed lands may be inferred from the fact that to allow the riparian allottees to have such lands would give to them a greater acreage than that allowed by the allotment agreement, thereby disregarding equality of division in acres which that agreement expressly provided for. This contention cannot be taken seriously but must be rejected for reasons well stated by the Circuit Court of Appeals in denying a similar claim asserted on behalf of the Creek nation in United States v. Hayes, supra. The court said:

    "Viewing the matter as of the time these Agreements were made, as we should, there was no money value in these river bed lands, therefore, there would be no disturbance in the 'value' standard of allotment. There would be an excess in acreage but acreage was not the controlling basis of division of lands-it was acreage of a given standard of value. Moreover, this excess in acreage was of land which had no apparent usefulness-at least none in and of itself. It might well be regarded as of no account. Suppose allotment had been attempted on an acreage basis which included this worthless river bed land as part of the 160 acres allotted, would it not have been opposed as unfair and unauthorized? What Congress designed and what the Agreements contemplated was that each allottee should have 160 acres of land, not 150 acres of land and ten acres of sand covered by the fluctuating waters of a bordering stream. The course of dealing by the United States in the disposal of the public lands is suggestive, if not analogous. 'It has been the practice of the government from its origin, in disposing of the public lands. to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines.' Grand Rapids & Indiana R. Co. v. Butler, 159 U.S. 87, 93, 15 S.Ct. 991, 933 (40 L.Ed. 95)."
    In view of the foregoing I conclude that the conveyances to the allottees of the land bordering on the Arkansas River within the Kaw Indian Reservation carried title to the thread of the stream and that no interest or title was reserved or retained by the Kaw tribe.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.
Approved: May 14, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.


May 21, 1935.

Memorandum for the Secretary:

    May 8, the Assistant Commissioner of Indian Affairs submitted for my consideration the attached contract with the State of Washington which provides for the education in the State schools of all the Indian children of that State during the fiscal year 1935.

    The contract was executed on behalf of the State under date of April 2, 1935, by the Governor of the State and the State Superintendent of Public Instruction. In conformity with the suggestion made in my memorandum of February 27 the contract is accompanied by an opinion of the Assistant Attorney General of the State of Washington, holding that the State is authorized to enter into contracts of this nature. In my opinion this is a sufficient affirmative showing of the legal authority of the State to enter into the contract and, therefore, meets the requirements of the Act of April 16, 1934 (48 Stat. 596).

    The contract provides for the payment to the State of Washington out of funds appropriated by Congress of the sum of $100,963 less any disbursements made during the fiscal year 1935 by the Indian superintendents for the purposes the contract is intended to cover. Under the provisions of the contract this amount is to be paid in three installments, the last installment to be paid at the




MAY 22, 1935

end of the fourth quarter. Due to delay in the execution of the contract none of the installment payments provided for in the contract has been made. However, tuition payments for Indian children have been made during the year by the Indian Service. These amounts must be deducted from the payment due the State under the contract as provided therein. I am informed by the Office of Indian Affairs that in view of the payments so made to date the amount due the State under the contract will be less than the final installment, which is $25,240.75. The State will be required to submit a claim for the balance due under the contract, which claim will be presented to the General Accounting Office for approval and settlement before payment thereof is made. The seal of the State has not been affixed to the contract as is apparently required by the laws of the State of Washington. However, following your execution of the contract it will be transmitted to the State Officials for correction in this respect.

    With this understanding and the further under standing that payment of the balance due the State will be made in the manner described above, I recommend that you sign the attached contract.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

M-27770                                                                                                                                     May 22, 1935.

The Honorable,
The Secretary of the Interior


    You have requested my opinion as to whether Section 1 of the Act of June 18, 1934 (48 Stat. 984), takes away the authority conferred upon the Secretary of the Interior by the Act of May 28, 1934 (48 Stat. 811), to issue patents to individual Indians for lots within the village of Taholah on the Quinaielt Reservation in Washington.

    The Act of May 28, 1934, reads:

   "That the Secretary of the Interior be, and he is hereby, authorized, upon application by any qualified Indian living within the Indian village of Taholah, on the Quinaielt Indian Reservation in the State of Washington, to issue to such Indian a patent for not to exceed two contiguous lots within said village, one of which lots must be occupied by said applicant: Provided, That where pursuant to section 10 of the Act of June 25, 1910 (36 Stat. L,. 858), one lot within said Indian village has heretofore been patented to any Indian living thereon said Secretary of the Interior is hereby authorized to patent to such Indian, or to his or her heirs in case of death, one additional contiguous lot wherever available. All patents issued hereunder shall be of the legal effect prescribed by said section 10 of the Act of June 25, 1910, and all lots so patented to said Indians shall be disposed of as provided for in section 1 of that Act."
    Section 1 of the Act of June 18, 1934, reads:
    "That hereafter no land of any Indian reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase or otherwise, shall be allotted in severalty to any Indian."
    Section 1 of the Act of June 18 needs little interpretation. Its obvious purpose is to preserve in communal ownership all tribal lands of Indian reservations. It accomplishes that purpose by the declaration that no such lands shall be allotted in severalty to any Indian. To that extent, the act is incompatible with and, therefore, supplants all prior laws, both general and special, purporting to authorize allotments in severalty in any form on any reservation to which the act applies, and this, notwithstanding the fact that the act contains no general repeal provision. See United States v. Yuginovich (256 U.S. 450, 463); United States v. Berkeness (275 U.S. 149); United States v. Tiger (19 Fed. (2d) 35, 38). The act extends to and binds all Indian tribes or bands under the jurisdiction of the Federal Government save those expressly excluded by Section 13 and those who, in the exercise of the privilege conferred by Section 18, vote against its application. The Indians of the Quinaielt Reservation are not excluded by Section 13, and on April 15 last they voted to accept the provisions of the Act.

    The lands within the village of Taholah authorized to be patented to individual Indians by the Act of May 28 are tribal lands. Under Section 1 of the Act of June 18 such lands cannot be allotted in severalty to individual Indians. The term "allotted in severalty" is a familiar one in Indian administration and comprehends the setting aside to an individual Indian of a tract of land from the common tribal holding accomplished usually by the issuance of a patent or other instrument of conveyance in such form as to divest the tribal title and substitute therefor an individual title. Such is the effect of




MAY 22, 1935

the patents authorized to be issued by the Act of May 28. That act declares that the patents shall be of the legal effect prescribed by the Act of June 25, 1910 (36 Stat. 858), and that all lots so patented shall be disposed of as provided in Section 1 of that act. Under the sections cited from the Act of 1910 the patented lands become the individual property of the patentees free from any tribal claim. This change from tribal to individual ownership is precisely what Congress by Section 1 of the later and controlling act of June 18 has emphatically declared shall not be done.

    It follows that the issuance of patents to individual Indians for lots in the village of Taholah is not now authorized.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

 Approved: May 22, 1935.

OSCAR L. CHAPMAN, Assistant Secretary.


M-28028                                                                                                                                     May 24, 1935.

The Honorable,
The Secretary of the Interior.


    You have asked me for an opinion as to whether the act of June 6, 1912 (37 Stat. 125), providing for reclassification or reappraisement of the unallotted or otherwise unreserved lands within any Indian reservation opened to settlement and entry, where the existing classification or appraisement is, in the opinion of the Secretary of the Interior, erroneous, is applicable to opened lands of Indian reservations which were covered by entries at the time reappraisements were approved.

    The question has been raised in connection with the Fort Peck Indian Reservation, Montana. The surplus lands of that reservation were opened to homestead and desert-land entry under the provisions of the act of May 30, 1908 (35 Stat. 558), after they had been classified and appraised. The later act of June 6, 1912, supra, reads as follows:

    "That the Secretary of the Interior be, and he is hereby, authorized to cause to be classified or reclassified and appraised or reappraised in such manner as he may deem advisable, the unallotted or otherwise unreserved lands within any Indian reservation opened to settlement and entry but not classified and appraised in the manner provided for in the Act or Acts opening such reservations to settlement and entry, or where the existing classification or appraisement is, in the opinion of the Secretary of the Interior, erroneous."
    Upon individual applications of entrymen of Fort Peck lands reappraisements were made and approved and it is shown that the total loss to the Fort Peck Indians due to reappraisements on entries patented on or before May 31, 1934, has been $79,223.81. Representatives of the Fort Peck Indians have submitted a petition asking that the members of the tribe be reimbursed by the United States for the loss.

    In a memorandum opinion dated May 4, 1927, the Solicitor for this Department in construing the act of June 6, 1912, said:

    "The Secretary represents the United States and the position of the latter is defined by section 12 of the act of May 30, 1908 (35 Stat. 538, 563), thus: 'it being the intention of this act that the United States shall act as trustee to dispose of said lands' etc. While as such trustee the United States declined to assume any obligation to find purchasers, yet it did assume a duty when a purchaser was found to collect the agreed consideration (appraised price at time of entry) and pay it over as directed by the act. Its obligation to the Indian became fixed when an entry was made and the act of 1912, supra, recognized this when it limited the right of reappraisement to 'unallotted and otherwise unreserved' lands. As to unentered lands if it was found the appraised price had been 'erroneously' fixed so high they could not be disposed of, the act of 1912 met the emergency.

                *                                *                                *                                *                                *

    "It is my opinion that if this Tribe ever raises the issue and is given authority to sue, it will recover an amount equal to the aggregate reductions made on entered lands through reappraisements."

    This view, however, was not adopted by the Department, but it was decided to discontinue the consideration of petitions for reappraisement after a fixed date, namely, July 31, 1927. This policy was stated in recommendations by the Commissioner of Indian Affairs, approved by the Assistant Secretary on June 21, 1927, in part as follows:
    "Considering the long period that has passed since the original appraisements were made, and the continued filing of applications for reappraisement, it is the opinion of this Office




MAY 27, 1935

that action should be taken to bring the matter definitely to an end. It is believed that ample authority is vested in the Secretary of the Interior under the act above cited, to set a definite date after which no further applications for reappraisement will be considered. It is also believed that if the action proposed is taken, it will result in settling the condition of unrest and dissatisfaction that now prevails among many of the settlers on the reservation.

    "It is therefore recommended that no further applications for reappraisement involving Fort Peck lands be considered unless filed in the local land office on or before July 31, 1927. It is also recommended that in those cases where action has once been taken on an application for reappraisement, that no appeal or supplemental application for reappraisement be considered."

    The act has been applied in reappraisement of entered lands in other ceded Indian reservations. See case of Stone Denham (46 L.D. 375).

    In an opinion dated December 30, 1931, in the case of Alexander Miller (36 Op. Atty. Gen.) the Attorney General of the United States held that under the said act of 1912 the Secretary of the Interior had the lawful authority on a second reappraisement to raise the price above that of the first reappraisement. That case involved lands that had been entered, and the Attorney General said that the Secretary of the Interior had authority under the said statute to reappraise the lands if the existing appraisal was, in his opinion, erroneous; that the authority to reappraise was not exhausted by an erroneous reappraisal, but continued to exist until the issuance of patent. Numerous decisions were cited in support of that ruling.

    The words "unreserved lands" as used in the act of 1912 in connection with the expression "unallotted or otherwise unreserved lands within any Indian reservation," cannot be taken to mean "unentered lands." It is noted that in sections 3 and 14 of the act of 1908 the Secretary is authorized to reserve lands within the Fort Peck Reservation for certain specified purposes. Reservations are also made somewhat similarly in connection with the opening of other Indian reservations. See 34 Stat. 80; 34 Stat. 325, 336. Congress has been careful to make a distinction between "unappropriated" lands-that is, lands not covered or embraced in any entry, location, selection, or filing which withdraws them from the public domain-and "unreserved" lands-those not included in any kind of reservation or withdrawal.

    In my opinion lands embraced in homestead entries within the Fort Peck Reservation could properly be reappraised by the Secretary of the Interior under the provisions of the act of June 6, 1912, supra. Whether that act deprived the Indians of rights so that they may succeed in litigation or so that Congress should make appropriation to reimburse them for losses the Department is not called upon to decide.

                                                                                                                                                    CHARLES FAHY,

Acting Solicitor.

 Approved: May 24, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.


May 27, 1935.

 Memorandum for the Secretary:

    In reply to the request of the Assistant Commissioner of Indian Affairs on May 17 for comment by the Solicitor upon S. 2778, a bill to extend the criminal code of Montana over all the reservations in that State, I would advise that an adverse report should be prepared on that bill and that in such report the following points might well be included, in addition to the points raised by the Assistant Commissioner in the memorandum addressed to you.

    Objections to the bill fall into two major groups: first, the bill itself is incomplete in that it fails to take into consideration certain matters of vital importance if State control were to be extended to the reservations; and secondly, the extension of State criminal jurisdiction, the object of the bill, is for various reasons inadvisable at this time.

    On the subject of the inadequacy of the bill, it should be pointed out (1) that the State law does not cover all offenses committed on the reservations. The Institute for Government Research in its study of Law and Order on Indian Reservations of the Northwest (which study includes Montana), reported in Part 26 of the Survey of Conditions of the Indians in the United States, June 30, 1932, states (at 14140) that many Indian offenses are such as would be embraced only by municipal or township ordinances and not by State laws; and therefore the Institute recommends the use of a Federal code of minor offenses even if State law should extend to the reservations and the encouragement, where feasible, of the organization of Indian or Indian and white communities or townships which can adopt their own code. The present bill does not take this situation into consideration; it merely extends the criminal jurisdiction of the State without providing ways or means for obtain-




MAY 27, 1935

ing and administering the necessary municipal or local code.

    (2) Related to the first omission is the failure of the bill to take account of the extent to which the Indians under existing law may make and enforce local ordinances and preserve law and order by their own efforts through tribal courts or through reservation courts under the supervision of the Department. Moreover, the Indians of five of the seven reservations in Montana have accepted the Wheeler-Howard Act, and thus indicated a determination to exercise increased control over their reservation problems. But the bill contains no provision which would integrate this existing local authority with State authority or define the limits of each; and the extension of State jurisdiction over the reservations would seriously circumscribe and block any increased effort by the Indians to man age their own problems of social disorder.

    (3) In this connection it will be noted that the bill is a blanket one which would not be affected by the willingness or unwillingness of the Indians on any one reservation to be subjected to the State criminal law and administration. But the recent tendency of legislation lies in the direction of encouraging their understanding of and expression of opinion on legislation affecting their future and making such expression of opinion a determining factor in the application of the legislation. The object of this bill is a matter of the gravest concern to the Indians, particularly where they may intend to adopt Federal constitutions dealing with law and order. The matter is of practical importance, for unless the cooperation and consent of most of the Indians on a reservation is gained, the application to that reservation of State law will meet with little success.

    (4) Furthermore, the reservations differ from each other greatly in the extent of white infiltration, the accessibility to State courts, the amicability and understanding between the whites and the Indians, and the advancement of the Indians. These varying factors make the blanket application of State law to all reservations in one State exceedingly unwise and impractical. This was the chief conclusion of the investigators of law and order on the Northwest reservations (Survey at 14137 et seq.). According to this study all of the reservations, whether now susceptible to State law or not, will require extensive education and training in preparation for the application of State law (see Survey at 14140 et seq.), but this bill makes no provision for such a period or for the personnel to undertake such preparation.

    Turning to the second major class of objections, it may be said unequivocally that the question whether State criminal law should be extended to any reservation at all at this time should be answered in the negative.

    (1) Probably the most important reason why the extension of State criminal jurisdiction to Indian reservations is inadvisable at this time is the fact that it will necessarily cause interference with and limitation of Federal control not only in the law and order field but in all aspects of the Federal guardianship. The activity of State officials upon the reservation in the enforcement of another body of law will handicap the administration of a coherent Federal program and the grant of special authority to the State will divide, and therefore weaken, the responsibility for the development of the Indians.

    (2) A further reason is that the extension of State criminal law is a matter which requires the ascertainment of the relevant facts for each State and reservation-facts which are not fully available at present-and one which must be undertaken gradually in an experimental way. "Merely making Indians subject to State law administered by State courts will not solve the problem" (of law and order). Survey at 14142. It must be an educational process and most State courts do not consider themselves educational institutions. Furthermore, certain peculiar factors must be weighed. In Montana the reservations are in areas where the population is under 10 per square mile and is decreasing (see tables in Survey, at 14168, 14170). This fact may affect the efficiency of the extension of State law. Again, it appears that throughout the Northwest generally the lapses in the markedly good behavior of Indians are not of a violent nature but are due primarily to lack of healthy employment and recreational facilities and will be largely prevented by providing such employment and facilities: a job which the Department is working to accomplish. Law breaking might, on the other hand, be exaggerated and stimulated by enforcement of inappropriate laws and contact with hardened white criminals.

    (3) Moreover, the whole problem of law and order on the reservations is being studied in the Interior Department and a comprehensive program is emerging which will allow for the successful handling of each situation in the most appropriate way. The problem is being tackled from two directions-local control of minor offenses through Indian courts acting under revised regulations or constitutions under the Wheeler-Howard Act, and supervisory action and control of major matters in white men's courts, either Federal or State depending on the needs and wishes of the locality. The program is based upon all the available information and opinion on the subject and is directed toward the same ends which undoubtedly motivated the introduction of S. 2778; namely, the care and pre-




JUNE 4, 1935

vention of crime and the education of the Indians in the laws and mode of life of the States in which they live. Congress should be urged, however, not to enact piecemeal legislation such as the drastic and incomplete bill proposed, but to await the submission of comprehensive proposals.

Acting Solicitor.
June 4, 1935.
Memorandum for the Commissioner of Indian Affairs:

    Your letter of May 22, transmitting for approval a draft of regulations governing the leasing of lands inherited by or devised to Indians of the Five Civilized Tribes of one half or more Indian blood for oil and gas mining purposes, is returned.

    The proposed regulations do not adequately meet the various contingencies arising out of the first proviso to section 1 of the act of January 27, 1933 (47 Stat. 777), which reads:

" * * * That where the entire interest in any tract of restricted and tax exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: * * *"
    In my opinion of March 14, 1934 (54 I.D. 362), it was held that the foregoing provision was not retroactive and applied only to acquisitions after the date of the enactment. Accordingly, the status of lands acquired by inheritance, devise, etc., prior to that enactment is determined by the laws then in force. Under those laws, which it is unnecessary to cite here, the death of an allottee terminated all restrictions if the heirs or devisees were less than the full blood, but if the lands passed to full bloods the restrictions were relaxed to permit conveyances by them with the approval of the county court having jurisdiction of the settlement of the deceased allottee's estate, Accordingly, lands acquired prior to January 27, 1933, by Indians of less than full blood, whether such lands were restricted and tax exempt or restricted and taxable, passed to them free from all restrictions. Such lands, therefore, are subject to sale or lease without the approval of the Secretary of the Interior or the county court, unless, of course, some disability rested upon the owner under the State law. If, however, the heirs or devisees are of the full blood, any conveyance of their interests or an oil and gas lease thereof must not only receive the approval of the county court having jurisdiction of the settlement of the deceased allottee's estate (section 9 of the act of May 27, 1908, 35 Stat. 312, as amended by the act of April 12, 1926, 44 Stat. 239; United States v. Gypsey Oil case, 10 Fed. (2d) 487), but such approval must be given in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June 1914 (section 8, act of January 27, 1933). The rules just stated apply also to lands acquired after January 27, 1933, unless such lands are both restricted and tax exempt and the entire interest therein is acquired by a restricted Indian or restricted Indians.

    The first proviso of section 1 of the act of January 27, 1933, is without application unless the lands involved are both restricted and tax exempt and unless the entire interest therein is acquired by restricted Indians. The language immediately preceding the first proviso shows that the term "restricted Indians" was intended to embrace Indians of the Five Civilized Tribes of one half or more Indian blood. In my opinion of March 14, 1934, it was pointed out that the lands to which the first proviso of the act of 1933 applied fall into two classes, first, restricted allotments of living allottees which have been designated by them as tax exempt under the act of May 10, 1928 (45 Stat. 495), which lands were under the jurisdiction of the Secretary of the Interior and could be leased for oil and gas mining purposes only with his approval and not otherwise under section 2 of the act of May 27, 1908, supra. Second, lands inherited by or devised to full-blood Indians prior to January 27, 1933, and designated by them as tax exempt under the act of 1928, which lands were subject to the restriction that no conveyance by the full blood should be valid unless approved by the county court having jurisdiction of the settlement of the deceased allottee's estate, and which lands could be leased by the full blood for oil and gas mining purposes with the approval of the said court and without the approval of the Secretary of the Interior.

    It was further pointed out in my opinion of March 14 that the first proviso of the act of 1933 was designed to preserve the existing restrictions and not to reimpose restrictions once removed or to change the form of existing restrictions. Accordingly, where the entire interest in lands of the first




JUNE 4, 1935

class is acquired by Indians of the Five Civilized Tribes of one half or more Indian blood, they take the same subject to the same restrictions which rested upon the lands in the lands of the allottee. Such lands, therefore, continue to be subject to lease for oil and gas mining purposes only with the approval of the Secretary of the Interior and not otherwise. The county court having jurisdiction of the settlement of the deceased allottee's estate has no authority to approve a conveyance or lease of such lands. The only jurisdiction which the probate courts may exercise in this class of cases is confined to conveyances and leases made by guardians of minors and incompetents and in such cases the conveyance or lease must be made under order of the proper probate court. See sections 2 and 6 of the act of May 27, 1908, supra.

    Where the entire interest in lands of the second class, that is, tax exempt lands acquired by full blood heirs or devisees prior to January 27, 1933, passes into the hands of Indians of one half or more Indian blood after that date, such Indians take the lands subject to the restriction resting upon the previous owner, namely, they cannot convey without the approval of the county court having jurisdiction of the settlement of the deceased allottee's estate. With such approval they may convey or lease, but such approval as to the interest of any full blood must be given in open court after notice, as provided by section 8 of the act of January 27, 1933.

    Some uncertainty exists as to what is meant by the provision in section 8 of the act of January 27, 1933, declaring that "no conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June of 1914." While this provision is somewhat awkwardly worded, it appears to have been the intent of Congress not only that notice should be given in accordance with the rules mentioned but that the approval by the court should be given in accordance with the procedure prescribed in such rules. By reference to the hearings on this measure (H.R. 8750) before the Subcommittee of the Committee on Indian Affairs, United States Senate, 72d Congress, 2d Session, page 6, it appears that the notice required to be given is notice upon the United States probate attorneys. Such notice is expressly provided for in Rule 10 of the rules adopted by the Oklahoma Supreme Court in June, 1914, and as said Rule 10 deals entirely with the procedure to be followed by the county court in approving conveyances by full-blood heirs, I think that Congress intended to adopt and put in force the provisions of that rule as the governing procedure with respect to all conveyances of interests inherited by full-blood heirs. This would include oil and gas leases which have been held to constitute conveyances of interests in land (United States v. Gypsy Oil Co., supra). Rule 9, dealing with oil and gas leases, does not appear to have application. It relates to leases by minors and incompetents generally, makes no reference to full blood Indians, makes no provision for leases by Indians not under the disability of minority or incompetency, and does not provide for notice to the United States probate attorneys.

    I find it necessary, in view of the foregoing, to redraft the regulations submitted by you. The redraft fixes the procedure to be followed in transactions requiring the consideration and approval of the Secretary of the Interior, but does not attempt to set out the procedure to be followed by the county courts in approving conveyances and leases by full-blood Indians. The Secretary of the Interior cannot, of course, bind such courts by any regulations he may prescribe. The probate attorneys should, however, be instructed to call the attention of the county judges in their districts to what this Department believes to be the correct procedure. Exceptions should be taken to approvals given in any other manner and appeals taken, as provided in section 8 of the act of January 27, 1933, from any adverse ruling thereon.

    The redraft of the proposed regulations is enclosed with the suggestion that, before approval, a copy be transmitted to the Five Tribes Agency for the consideration and comment particularly of Mr. Finley, Chief Supervising Probate Attorney.

    In conclusion may I take the liberty of reminding you that the situation existing with respect to lands inherited by Indians of the Five Civilized Tribes, is in such a complicated and confusing state that in many instances it is practically impossible to ascertain with any degree of certainty the exact status of the lands from the viewpoint of restrictions, taxability and departmental jurisdiction. This situation should not be permitted longer to endure and I cannot too strongly emphasize the need of obtaining clarifying legislation. The legislation sought should be in such form as definitely to fix the status of the lands without the necessity of referring to the several lengthy prior laws with their attendant conflicts and inconsistencies. I have drafted, and submit for your consideration, a short bill which I believe will accomplish the desired result.

                                                                                                                                            NATHAN R. MARGOLD,





JUNE 4, 1935


M-28033                                                                                                                              June 4, 1935.

The Honorable,
The Secretary of the Interior.


    At the suggestion of the Commission of Indian Affairs my opinion has been requested on certain questions arising out of a     contract between the Seminole Nation of Indians in Oklahoma and John B. Campbell, Esq., of Holdenville, Oklahoma.

    The contract was entered into for the purpose of providing legal services needed by the Seminole Nation in prosecuting the suits authorized to be filed by the Nation against the United States by the jurisdictional Act approved May 20, 1924 (43 Stat. 133). Section 2 of the Act provides that the suits should be instituted by petitions "verified by the Attorney or attorneys employed to prosecute such claim or claims under contract with the Seminoles approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and said contract shall be executed in their behalf by a committee chosen by them under the direction and approval of the Commissioner of Indian Affairs and the Secretary of the Interior." The contract was duly executed by a committee selected in conformity with the Act, and was approved by the Commissioner of Indian Affairs on October 16, 1925, and by the Assistant Secretary of the Interior, on October 20, 1925.

    The contract contains the provision that "no assignment of this contract or any interest therein shall be made without the consent previously obtained of the Commissioner of Indian Affairs and the Secretary of the Interior." Under the authority impliedly conferred by this provision, Mr. Campbell, on June 23, 1926, with the approval of the Commissioner of Indian Affairs and the Assistant Secretary of the Interior, assigned an undivided one-half interest in the contract to E. J. Van Court. This assignment was later released by an agreement dated August 20, 1926, which agreement, in addition to releasing the prior assignment, transferred to Van Court and to Chester I. Long of Wichita, Kansas, George E. Chamberlain and Peter Q. Nyce of Washington, D.C. an undivided 65% interest in the contract. This agreement was approved by the Commissioner and the Assistant Secretary.

    Two additional assignments have been presented for approval. By one of these, dated May 10, 1933, Campbell proposes to assign one-half of his remaining interest in the contract to one W. W. Pryor. By the other assignment, dated November 26, 1934, Campbell joined by Van Court and Pryor, proposes to transfer to Paul M. Niebell, of Washington, D.C., an unspecified, undivided interest in the contract with a provision for the substitution of Niebell, in the event of Van Court's death, as attorney of record before the Court of Claims in the suits which have been filed under the jurisdictional Act. Mr. Nyce, one of the assignees under the agreement of August 20, 1926, has not joined in either of the assignments last mentioned nor does it appear that he has assented thereto. Niebell, in presenting the assignments for approval, asks that the prior assignment to Van Court, Long, Chamberlain and Nyce, be canceled and that the original assignment made to Van Court and released by the agreement of August 20, 1926, be revived and permitted to remain in force as written and approved. In support of this request he calls attention to the fact that both Long and Chamberlain have died and alleges a complete failure on the part of Long, Chamberlain and Nyce, to perform the obligations imposed upon them by the assignment agreement.

    A further assignment to one Frank J. Boudinot appears to have been attempted by Campbell and Van Court, again without the assent of Nyce, their surviving associate attorney. This assignment is not with the record but it appears to relate to one of the suits filed under the jurisdictional Act, styled Seminole Nation v. United States, L-89, and to provide for an equal division of the entire fee in that case between Van Court and associates and Boudinot and his associates. Van Court has recently died.

    In view of this somewhat muddled situation the Commissioner of Indian Affairs inquires as to whether the entire contract did not come to an end with the deaths of Long and Chamberlain or, in any event, upon the death of Van Court. If not, the Commissioner inquires further, whether there is any authority for cancellation of the assignment dated August 20, 1926, to Van Court, Long, Chamberlain and Nyce, or to approve the new assignments with the acquiescence of Mr. Nyce.

    While for reasons which will hereafter appear, a decision on the questions raised by the Commissioner is not essential to a determination of the action to be taken in this case, I do not think that the death of either Chamberlain, Long or Van Court would have terminated the contract. In virtue of the assignment, they, together, with Nyce, became jointly employed with Campbell. The relation then existing between the several attorneys, while not a general partnership, may be appropriately styled a limited partnership. See Consaul v. Cummings, 222 U.S. 262. As neither Long, Chamberlain nor Nyce were parties to the original con-




JUNE 4, 1935

tract, it is evident that the Seminoles did not rely or depend upon any peculiar skill or talent they may have possessed. This being so, their deaths or the death of any one of them, leaving surviving members capable of carrying on the unfinished business, would not end the contract. Clifton v. Clark, 36 So. 251, 66 L.R.A. 821; McPherson v. Bacon's Executor, 203 S.W. 744. The death of one or more of the partners would dissolve the partnership and this, together with the nonassent of Nyce, one of the surviving members, would prevent approval of the new assignments to Pryor, Niebell, and Boudinot. (See 47 C.J. Sec. 569, page 1020; Clifton v. Clark, supra.)

    The contract, however, must be held to have terminated on other grounds. The period of the contract as set forth therein is:

    "It is further agreed that this contract shall continue for a period of five years, beginning with the date of its approval by the Secretary of the Interior; provided, fully determined and settled by the Court of last resort and an appropriation not have then been made to satisfy any judgment that may be recovered, if any, the said contract shall remain in force until such appropriation and final settlement."
    The contract, having been approved by the Secretary of the Interior in 1925, the five-year period terminated in 1930. If the contract has continued in force since that time it is by virtue of the proviso above, proposing to extend the period until the litigation has been concluded and an appropriation made to satisfy any judgment rendered. Section 2103, Revised Statutes of the United States which is applicable to agreements of this kind, declares that such agreements "shall have a fixed, limited time to run, which shall be distinctly stated. * * * All contracts or agreements made in violation of this section shall be null and void." The provision in this contract proposing to extend it for as much longer beyond the five-year period as is necessary to conclude the litigation and obtain an appropriation, converted the definite fixed period of the contract to an indefinite and uncertain period. The contract thus became at its inception one of indeterminate duration. It had no "fixed, limited time to run * * * distinctly stated." Such provision is plainly in violation of Section 2103 and if that section is applicable to the Five Civilized Tribes of which the Seminole Nation is one, the contract must be held to have expired at the end of the five-year period if not void from its inception.

    In an opinion dated June 27, 1899, Mr. Vandevanter, then Assistant Attorney General for the Interior Department and now Associate Justice of the United States Supreme Court, held that Section 2103 of the Revised Statutes was applicable to the Five Civilized Tribes. (14 Op. Asst. Atty. Gen. Interior Dept. 372.) That opinion, so far as I am advised, has not since been questioned. The jurisdictional Act of 1924 contains nothing calling for a different conclusion. Consistently with Section 2103, the jurisdictional Act provides for approval of the attorney's contract by the Commissioner of Indian Affairs and the Secretary of the Interior and in addition prescribes the method of execution of the contract on behalf of the Seminoles. There is no indication of any intent to displace the provisions of Section 2103 and as repeals by implication are not favored, the requirements of both enactments where, as here, there is no inconsistency, must be met.

    It follows from what has been said that the Seminole contract with Mr. Campbell came to an end, in any event, at the end of the five-year period, or in 1930. Unfortunately, this leaves the Seminoles without authorizing legal representation in the cases now pending before the Court of Claims. Immediate action should therefore be taken looking to the execution and approval of a new contract. In view of the long period of time which has elapsed since the selection of the original committee and in order to avoid any question of the legality of the new contract on the ground that that committee is now without authority to act, I suggest that the new contract be executed by a new committee chosen by the Seminoles in conformity with the directions contained in the Act of 1924.

                                                                                                                                            NATHAN R. MARGOLD,

Approved: June 4, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.


June 18, 1935.

Memorandum for the Assistant Commissioner of Indian Affairs:

    As requested in your memorandum of June 13, I have reviewed the attached file relating to conflicting claims to lands within the Eastern Cherokee Indian Reservation in North Carolina with a view to determining what further action should be taken.

    It appears that a dispute of some years standing exists as to the location of the boundary line of the Eastern Cherokee Reservation with the result that a considerable number of non-Indians are occupying and claiming title to lands alleged to belong to




JUNE 18, 1935

the Indians. One suit designed to quiet the title of the Indians to a portion of a tract designated as Tract No. 103 was instituted by the United States and the Eastern Band of Cherokee Indians against Ralph Parker (No. 194 Law in the United States District Court for the Western District of North Carolina) and on July 31, 1934, the case was decided adversely to the contention of the Government and the Indians. The Attorney General having declined to take an appeal (see his letter of October 8, 1934), the suggestion is made in a memorandum attached to yours of the 13th that an attorney from my office be detailed to prosecute the appeal. Aside from the fact that no member of my staff would have authority to appear in this case as an attorney of record for the United States without the sanction of the Attorney General, the suggested action is not possible because the time for appeal expired on October 29, 1934, three months after the entry of judgment (Section 230, Title 28, U.S.C.). The judgment does bear a notation signed by the attorneys for the plaintiffs and defendants that the plaintiffs objected and excepted thereto; that they prayed an appeal; that notice of appeal was given in open court and that further notice is waived. But there is nothing to indicate that the court allowed the appeal and none of the steps necessary to perfect an appeal to the Circuit Court of Appeals have been taken. The notation referred to amounted to nothing more than notice of an intention to take an appeal in the future. This is not sufficient to stop the running of the statute or to extend the time. As said by the Circuit Court of Appeals, Fifth Circuit, in Vaughan v. American Insurance Co. (15 Fed. (2d) 526):

    "It is contended by plaintiff in error that he gave notice of appeal in open court at the time the judgment was entered. This is not substantiated by the record, but it is immaterial. It may be conceded that a writ of error may be applied for by motion in open court, but merely giving notice of the intention to take such action in future amounts to nothing. The running of the statute is not stayed, unless there is some action by the court that may be construed as an allowance of the writ. Certainly that was not the case here, as the orders entered clearly indicate that it was contemplated that the writ of error would be subsequently applied for within the delay granted.

    "Extended discussion of the law is unnecessary, as it is well settled that statutes limiting the time in which appeals and writs of error may be brought are mandatory and jurisdictional. The statute begins to run from the date of the judgment, and the time cannot be extended by waiver, by agreement of the parties, nor by order of the court."

  Seealso Ross v. White (32 Fed. (2d) 750).

    The record discloses that lands claimed by the Indians to the value of more than $30,000 are now in the possession of whites or negroes or are being trespassed upon by them. The adverse decision in the Parker case doubtless will be regarded as lending support to some of these claims and may encourage further encroachments upon the Indian rights. In this situation it appears that the Indians have gone on record as favoring the employment of private counsel, the compensation of counsel to be paid from tribal funds, for the purpose of prosecuting the necessary suits to establish the Indian title and remove the trespassers. While I am in thorough sympathy with the desire of the Indians that these cases be vigorously prosecuted and taken to the appellate courts wherever necessary, the employment of private counsel for that purpose does not appear to be feasible. In the first place, there is no statute expressly authorizing the payment of private counsel from tribal funds and the act of May 18, 1916 (39 Stat. 158), prohibits the use of tribal funds for that purpose without such express authorization. See also Comptroller General's decisions of October 20, 1932, A-45091; January 26, 1931, A-34858; and July 1, 1929, A-27779. In the second place, the legal title to the lands has been conveyed to and now rests in the United States (act of June 7, 1924, 43 Stat. 376), hence these conflicting claims may be satisfactorily and finally determined only in suits instituted by the United States. The progress and conduct of litigation waged on behalf of the United States, whether for the direct interest of the Government or of its Indian wards, has been placed by Congress under the exclusive control and jurisdiction of the Attorney General. See Title 5, U.S.C., Sec. 306; United States v. San Jacinto Tin Co. (125 U.S. 273); Conner v. Cornell (32 Fed. (2d) 581) ; Pueblo of Picuris in State of New Mexico v. Abeyta (50 Fed. (2d) 12); Mars v. McDougul (40 Fed. (2d) 247). Private counsel even though employed by the Indians cannot participate in such litigation without the assent of the Attorney General (Pueblo of Picuris v. Abeyta, supra) and then only through a special appointment by the Attorney General (Title 5, U.S.C., Sec. 310).

    In view of the foregoing and the unsatisfactory local situation which appears to exist, and as it is extremely unlikely that the Attorney General would sanction the participation of private counsel in the suits necessary to be instituted for the protection




JUNE 18, 1935

of the Eastern Cherokee Indians, I suggest that the entire situation be laid before the Attorney General with a strong recommendation that an attorney from his office be detailed to investigate these conflicting land title claims and to conduct such litigation as may be necessary to assure a final adjudication of the controversy.


July 17, 1935.

Memorandum to the Commissioner of Indian Affairs.

RE: Fort Peck Allotments.

    The policy of the Indian Office not to approve further allotments on the Fort Peck Reservation, embodied in the proposed letter to Superintendent Hunter submitted to this office, raises various legal questions which should be called to your attention before this letter leaves the Department.

    In the first place, in this situation the Wheeler-Howard Act is entirely immaterial, since the reservation voted to exclude itself from the provisions of that act. The first sentence of section 4 of the act (Pub. No. 147, 74th. Cong.) amending the Wheeler-Howard Act reads as follows:

    "Sec. 4. All laws, general and special, and all treaty provisions affecting any Indian reservation which has voted or may vote to exclude itself from the application of the Act of June 18, 1934 (48 Stat. 984), shall be deemed to have been continuously effective as to such reservation, notwithstanding the passage of said Act of June 18, 1934. * * *"
Accordingly, the allotment laws applicable to the Fort Peck Reservation must be considered as effective after as before June 18, 1934. Therefore, whether or not the allotment selections involved in this case were made before, as stated in the proposed letter, or after June 18, 1934, is of no consequence.

    The situation must then be viewed as it existed in February 1934, when the problem was first presented to the Indian Office. The legal questions may be grouped under two primary inquiries: (1) Can the Secretary of the Interior refuse to allow further selections of allotments on the Fort Peck Reservation? (2) Can the Secretary refuse to approve all further allotment selections even though such selections were previously authorized? The answers to both involve analysis of the Fort Peck allotment laws.

    Under the act of May 30, 1908 (35 Stat. 558), the Secretary was authorized and directed to cause a survey of the Fort Peck Reservation. Section 2 of the act provided that upon the completion of the survey "the Commissioner of Indian Affairs shall cause allotments of the same to be made under the provisions of the allotment laws of the United States to all Indians belonging and having tribal rights on said reservation * * *". There followed specifications of the quantity of grazing, timber and irrigable lands permitted for one allotment. The surplus land was to be opened to disposal under the homestead and mineral laws, etc. The Indian Office early decided that only Indians in being up to a certain date were privileged to receive allotments under this act. (See Indian Office File 74675-1909 Fort Peck File No. 313.) The appropriation act of August 1, 1914 (38 Stat. 593), contains a provision of even greater interest here:

"* * * Provided, That the Secretary of the Interior is hereby authorized to make allotments in accordance with the provisions of the Act of May 30. 1908, (Thirty fifth Statutes, page 558, the children on the Fort Peck Reservation who have not received, but who are entitled to, allotments as long as any of the surplus lands within said reservation remain undisposed of, such allotments to be made under such rules and regulations as the Secretary of the Interior may prescribe."
    (1) As it appears that all the allotments under the Act of 1908 are completed, the question is whether the Secretary can refuse to allow any further selections preparatory to allotment under the act of 1914. Although it cannot be said with finality that the 1914 act is permissive, it would appear to be so since it simply uses the word "authorized" whereas the 1908 act and innumerable other acts, allotment acts or others, have carefully added the words "and directed" after the word "authorized," or have used the word "shall" in the sense of command, when a mandatory character was desired. This difference is clearly apparent in the General Allotment Act of 1887 (25 U.S.C.A. Sec. 331) which simply authorizes the President to cause allotments to be made when in his opinion it would be for the




JULY 17, 1935

best interest of the Indians. While there are cases to the effect that "an officer 'authorized' is an officer commanded in a matter of public concern" (see Chase, Jr. v. United States, 256 U.S. 1, 8), each situation must be weighed separately according to the probable purpose and intent of Congress.

    In addition to the lack of directory words in the act of 1914 which, when compared to related acts, may be considered intentional, it may be forcefully argued that for sound reasons of policy it was the intent of Congress to leave a matter of this kind in the discretion of the Secretary. The act was to continue in effect for an indefinite number of years, like the act of 1887, and not like the act of 1908 which contemplated immediate allotments. Within that period changes in circumstances might make it disadvantageous to the Indian wards for the Secretary to continue allotments in any or all cases. The Secretary as guardian, would naturally be vested with authority to allot or refrain from allotting so long as he was acting reasonably and not arbitrarily. The act expressly gives the Secretary power to prescribe regulations for the making of allotments. It is familiar law that allotment acts should be construed in view of their purpose to promote the welfare of the Indian wards. Levindale Zinc Mining Co. v. Coleman (241 U.S. 432, 437). Under provisions of the Red Lake Allotment Act almost identical to those of the 1914 act in question here, the Secretary had refused to allow selections for more than thirty years. When the matter came before the Supreme Court, the court said the question of the legality of the Secretary's action was not properly raised, but did not indicate that it saw anything illegal in the Secretary's refusal. Morrison v. Work (266 U.S. 481). Moreover, the 1914 act does not attempt to bestow any right to select allotments upon particular designated persons as do allotment acts such as the Fort Belknap Act (March 3, 1921, 41 Stat. 1355) which provides that inclusion in a tribal roll shall be conclusive evidence of the right to an allotment. Nor does it provide for allotment pro rata, as does the Fort Belknap Act, which in effect places an equitable interest in all the Indians counted for the pro rata distribution. The reference in the 1914 act to children "entitled to" allotments apparently refers simply to the test set up in the 1908 act to determine what Indians are privileged to receive allotments-namely, "belonging to" the reservation and having "tribal rights" thereon. It does not place an absolute right to selection in any child.

    These considerations indicate not only that the 1914 act is merely permissive, but that the discretion placed in the Secretary extends to the refusal of all further selecting of allotments whenever such refusal may reasonably be found to be more to the economic advantage of the Indians than the allotment of lands in, severalty. The inquiry then becomes one of fact and policy for the Indian Office to settle.

    The question arises whether the act of February 14, 1920 (41 Stat. 408, 421) alters this interpretation. This act reads as follows:

    "The Indians of the Ft. Peck Reservation in Montana entitled to allotments under existing laws may select lands classified as coal and receive patents therefor in accordance with the Act of May 30, 1908 (35th Statutes at Large, page 558), with a reservation, however, to the Ft. Peck Indians of the coal deposits therein and of the right to prospect for, mine, and remove the same."
    To be interpreted correctly, this act cannot be read simply as a discrete statement but must be viewed in relation to the framework of statutes and administrative decisions in which it is an integral part. Section 4, 6 and 7 of the Act of 1908, supra, provided that upon the completion of the allotments contemplated by that act, the surplus lands should be classified into agricultural, grazing, arid, and mineral lands and opened to disposal. After the Act of 1914, supra, the Department took the position that it had no authority to allot Indians upon the surplus lands classified as coal. Instructions July 1, 1915 Indian Office File, Ft. Peck, No. 013. The result was inequitable to the Indians since selections and improvements on the coal area had already been made by a large number of Indians in misapprehension of their rights and since by the act of February 27, 1917 (39 Stat. 944) the surface of these coal lands was opened to agricultural entry by settlers. There is abundant evidence that the 1920 act in question was passed to correct this unfortunate situation by making it clear that in so far as Indians were entitled to allotments they might select them from the coal area. (See Indian Office File Ft. Peck No. 013, passim.)

    It is clear, then, that the purpose of this act was to enlarge the privilege of allotment simply in one way-the character of land available for allotment. The language of the act perfectly fits this purpose. It would be an unwarranted elaboration of this language to say that the words "The Indians . . . may select lands classified as coal" place a vested right to an allotment of coal lands in the Indians whether or not such right is possessed in other types of allotment, and remove the discretion of the




JULY 17, 1935

Secretary to refuse allotments in coal areas although he may refuse allotments elsewhere. Moreover, there is no support for the further argument that, assuming an intent to create vested rights in this act, it is evidence that such was the intent of the 1914 act. The 1920 act is concerned with but a minor detail in the allotment statutory scheme and shows no purpose to alter that scheme as a whole.

    In short, the 1920 act places a privilege in the Indians who are entitled to select allotments to make such selections upon coal lands, but does not affect the discretion of the Secretary to close the door to further allotments of all sorts.

    (2) Even more difficult to answer authoritatively is the question whether the Secretary can refuse to approve allotment selections already made and which had previously been authorized, not on the ground that the selection was incorrect or the applicant unqualified, but solely on the ground that the policy concerning allotments has been changed. It should be noted that all the allotment selections in dispute in this Fort Peck case were selected and recorded previously to notice from the Indian Office of the new policy of disapproving further allotments. According to this file that notice was first given in the office letter to Superintendent Hunter of April 10, 1934, after 13 timber selections and 320 grazing selections had already been made. Furthermore, by office letter of November 13, 1934, the Indian Office refused approval to two allotment selections excluded because of conflicts from a schedule of selections approved in January 1933, although on May 15, 1933, the Indian Office had approved two selections in lieu of selections previously excluded from approval because of conflict.

    However, these selections do not present the important characteristics possessed by the Fort Belknap selections which led this office to decide that the right to approval and patenting was equitably vested in the owners of unapproved allotment selections on the Fort Belknap Reservation. Solicitor's Opinion, M-28086, July 17, 1935. In that case the allotment selections had been made as long as ten years previously and had failed to receive approval through the neglect of the public officers to attend to correction of the clerical errors and to the submission of the selections for approval within a reasonable time. The doctrine was there applied that where a person fails to receive a right through the neglect of public officers, equity will treat as done that which ought to have been done. Moreover, the owners of selections in that case were in a strong equitable position since as enrolled members they were conclusively entitled to a pro rata share of the reservation. Accordingly, the Secretary had little if any discretion to refuse approval. However, as has been pointed out, the Fort Peck children stand in no such equitable position, but as ordinary applicants for allotment.

    In the Solicitor's Opinion before mentioned, it was pointed out (at 15, 16) that the owners of allotment selections have certain rights and interests which will be protected against outside interests and errors by Government agents. United States v. Chase (245 U.S. 89); Hy Ya Tse Mil Kin v. Smith (194 U.S. 401); Smith v. Bonifer (166 Fed: 846, C.C.A. 9th 1909) ; Conway v. United States (149 Fed. 261, C.C. Neb. 1907). But they ordinarily have no vested right to approval or to a patent. In other words, they cannot prevent Congress from annulling their selection (Lemieux v. United States, 15 Fed. (2d) 518, 521 (C.C.A. 8th 1926), nor force the Secretary to grant approval. West v. Hitchcock (205 U.S. 80).

    Decidedly, the conservation of Indian land in tribal ownership when as imperative as in the Ft. Peck situation, if it can be accomplished, would appear to be sufficient justification for the exercise of the discretion of the Secretary to refuse approval to allotment selections. Precedent is not available for guidance here since cases dealing with the discretion of the Secretary to refuse approval to allotments have dealt only with his power as applied to particular applications for allotment and resulting from certain defects in the application. However, in one of these cases, West v. Hitchcock (205 U.S. 80), the stewardship of the Secretary over tribal property was recognized as a source of power to refuse allotments injurious to the tribe. The power would seem at least as great when applied on a large scale as in a single instance. Accordingly, I conclude that the Secretary is privileged to disapprove the Ft. Peck selections upon the grounds of policy.

    While I have concluded that allotments to Indians on the Ft. Peck reservation may be halted by the Secretary upon reasonable considerations of policy, one legal factor of vital significance to any such considerations should be called to your attention. Under the act of 1908, surplus lands are subject to disposal to white men. The act of 1914 does not prevent this disposal; it simply authorizes the giving of shares in this surplus to Indian children so long as the surplus lasts. Therefore, land not allotted to Indian children may be taken up by white men unless some permanent provision is made by the Indian Office for preventing such disposal.






JULY 17, 1935


55 I.D. 295

M-28086                                                                                                                                       July 17, 1935.

The Honorable,
The Secretary of the Interior.


    My opinion has been requested on the question of whether, under the first section of the Wheeler-Howard Act (act of June 18, 1934 (48 Stat. 984), 25 unpatented allotment selections on the Fort Belknap reservation can now be patented.

    The allotments in question comprise five allotment selections which were included in the schedule of 1171 Fort Belknap allotments approved October 3, 1925, and 20 allotment selections originally included in that schedule but withheld from approval. These 25 allotments were selected under the act of March 3, 1921 (41 Stat. 1355), which directed the Secretary of the Interior to prepare a final roll of the Indians of the Fort Belknap Reservation and to allot the lands on the reservation pro rata among the Indians enrolled. This work was completed except for the 25 allotments before described and most of the patents were issued under date of May 24, 1927. It is clear that the failure to complete these allotments was due to no fault of the Indian allottees The records of the Indian Office indicate no reason why four of the five approved selections were not patented and that the fifth was detained because a supplemental plat was necessary for its proper description. They further indicate that the 20 unapproved selections were withheld also because of errors in description and because of conflicts with other selections, making a number of supplemental plats necessary. It will be noted that the failure of consummation due to errors in description occurred after as well as before approval, and that in no case did approval require passing upon the applicant's qualifications or other considerations of a discretionary character.

    The first section of the Wheeler-Howard Act of June 18, 1934, reads as follows:

    "That hereafter no land of any Indian reservation. created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian."
The question presented is whether the words "no land * * * shall be allotted in severalty to any Indian" forbids the approval and patenting of these 25 allotments selected ten years before the passage of this section. The answer is by no means clear, but by reference to other allotment statutes, to cases interpreting those statutes, particularly the words "allot" and "allotment." and to cases discussing the rights of owners of unapproved or unpatented allotment selections, and to administrative action, I have come to the conclusion that the prohibition in section one, correctly interpreted, does not cover the trust patenting of approved selections of the approval of allotment selections equitably vested, as in this case, in the allottees, and furthermore, that a contrary interpretation would raise serious questions of constitutionality.


    The word "allot" and its derivatives, "allottee" and "allotments," have been used in various statutes, decisions, and by the Department of the Interior in both the broader sense referring to the completed process evidenced by trust patents, and in the narrower and primary sense meaning the parcelling out and assigning of so many acres of land to each Indian. However, these words have been regularly employed in the narrower sense in the numerous allotment statutes, in careful distinction to the patenting of the lands "allotted." Thus, the standard act, the General Allotment Act of 1887, in section 1 authorizes the President "to allot the lands * * * in severalty":

    "That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows: * * * "
and prescribes the quantity of land to be "allotted." Section 2 provides, "That all allotments set apart under the provisions of this act shall be selected by the Indians * * *." Section 3 provides, "that all allotments * * * shall be made by special agents * * *." Section 4 deals with Indians making settlement on land not in a reservation and provides that they "shall be entitled upon application




JULY 17, 1935

to the local land office * * * to have the same allotted * * * in quantities and manner as provided in this act for Indians residing upon reservations." Not until section 5 is there reference to patents, and the language indicates that in the mind of the legislature the patent was a second process entered upon after allotment was completed.

    "That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, * * *"
    The language of other allotment acts is even more decisive in describing the process of "allotting" as the parcelling out by agents in the field of surveyed land according to certain proportions to the qualified Indians who select the particular parcel. After this process, the "allotment" is to be approved by the Secretary and if approved patents shall thereupon be issued. See, particularly, acts of March 3, 1895 (23 Stat. 340), and March 2, 1889 (25 Stat. 1012). In fact, no other word has been used to describe this initial process but the word "allot."

    It will be noted that the extent of application of the first section of the Wheeler-Howard Act is identical in fact, and almost so in language, to the first section of the General Allotment Act. The intention of the 73rd Congress to forbid allotment in the field under section 1 of the 1887 act as a preliminary step in the conveyance of title is apparent on the face of the act and is a matter of general understanding. For this reason, the word "allotted" seems peculiarly appropriately restricted to its earlier and primary connotations. However, there are numerous particular acts as those authorizing continuing allotment in the field from surplus lands on various reservations as Indians entitled thereto are born, which are clearly aimed at by the Wheeler-Howard Act. The narrower interpretation would, therefore, fill the first section with a great deal of meaning.

    Many cases interpreting the word "allot" in treaties and statutes providing for allotments distinguish between "allotting" and "patenting" and speak of allotments as completed before the patents are issued. Cf. United States v. Miamies (12 L. D. 168). Because of the variety of allotment laws, a case under one is not necessarily applicable to another but may still be illustrative of the significance given to the word "allot." In Millet v. Bilby (110 Okla. 241, 237 Pac. 859 (1925), the court decided that the word "allot" in the original Creek agreement was not word of grant but of apportionment of that to which the party was entitled. Several cases consider patentees merely evidence of the completed and vested allotment. Wood v. Gleason (258 U.S. 574, 596), or simply "a paper or writing, improperly called a patent" designed to show that at the end of 25 years the Indian allottee or his heirs will receive the fee to the land allotted. See United States v. Rickert (188 U.S. 432, 436).

    The legal theory behind the processes of allotment and patenting can be generalized somewhat as follows: The Indian tribe possesses in common a right of occupancy in the land within the reservation, but not the fee; the allotment process transfers conclusively this right of occupancy in the portion of the land selected by a qualified Indian to him and to his heirs, and the trust patent follows as a device preliminary to transfer of the fee from the United States to the allottee or his heirs after the extended period of preparation. Cf. United States v. Chase (245 U.S. 89).

    The distinction between allotments and patents is well brought out where treaties have provided for allotments or assignments to the allottee and his heirs, but patents are provided for only in later acts (cf. United States v. Chase, supra; Starr v. Long Jim (277 U.S. 613); Friederick v. Ducept (46 L. D. 14); In Re Long Jim (32 L. D. 568; 19 Op. Atty. Gen. 225.), and where acts prevent alienation of "allotments" before the patents are issued. Cf. Stout v. Simpson (124 Pac. 754, 34 Okla. 129 (1912)). Another case interpreted the words in the original section 6 of the 1887 act," * * * every member * * * to whom allotments have been made shall have the benefit of * * * the laws * * * of the State * * *" as including every Indian who was entitled to approval and patenting of his selection even though such approval and patenting had not yet occurred. State v. Morris (37 Neb. 299, 55 N.W. 1086 (1893)).

    It may be concluded from these cases that, as a general rule of interpretation, the courts consider an "allotment" as an assignment of the right of occupancy to an individual Indian; and that under allotment laws providing for patents an "allotment" is made when the allottee becomes entitled to a patent as evidence of the allotment and promise of a fee title; and that, as will be shown more fully later, an allottee may become entitled to a patent even before the approval of his allotment selection wherever the applicable allotment law makes such approval mandatory after the




JULY 17, 1935

showing of certain prescribed conditions, and such conditions have been shown.

    The Fort Belknap allotment act under which the allotments in question were selected was of relatively recent date (March 3, 1921 (41 Stat. 1355) and possibly for that reason is less detailed than the early allotment acts, relying on accepted interpretations to fill in any gaps. It provides in section 1 for a Commission to prepare a final roll of all Indians ascertained to have rights on the reservation, which roll shall be conclusive evidence of the right of any enrollee to an allotment. Section 1 then authorizes and directs the Secretary "to allot pro rata" among the enrollees all the land on the reservation and ends with the ungrammatical clause "which trust patents shall be issued in the name of the allottees." Since there is no noun to which the "which" in this clause may refer, it appears that the word "for" may have been omitted from before the clause. The act does, thus, use the word "allot" to connote apportion and assign, as is indicated also in other sections of the statute.

    However, section 1 of the Fort Belknap Act is notable from two other angles in that it made every enrollee conclusively entitled to an allotment, and directed the pro rata apportionment among the enrollees of the entire reservation (except for specified amounts of land to be reserved for certain tribal, administrative and State uses enumerated in the rest of the act). Both points distinguish this act from the ordinary allotment acts and both have bearing upon the problem in hand. As to the first, after the Secretary has approved the roll prepared by the Commission, there is no further question as to the right of an enrollee to an allotment; thus the scope of the discretion of the Secretary in approving allotment elections is limited to the determination only of whether the particular assignment was accurate, and thus the equitable position of the "allottee" before his selection is approved is greatly enhanced.

    On the second point, a pro rata apportionment of the reservation among designated enrollees rather than usual direction to the Secretary to allot a certain number of acres to such Indians as he may find qualified again enhances the equitable position of the Fort Belknap allottee since not only is he definitely entitled to a certain number of acres, but the number of acres which each Indian on the reservation receives has been determined on the basis of his participation. His right to his share is definitely fixed as of the date of the pro rata distribution.

    Heretofore when acts have been passed which seek to modify allotment rights and privileges, these acts have been generally construed as not intended to apply where allotments had already been selected nor to affect the trust patenting of these selections. So where an Indian had made a homestead entry (treated as analogous to allotment selection) under the act of 1875 and performed the conditions entitling him to a patent, the act of 1884 prescribing a 25 year trust patent instead of a fee patent was held not to apply to him. United States v. Hemmer (241 U.S. 379); United States v. Saunders (96 Fed. 268 (Circ. Ct. Wash. 1899)). Moreover, an Indian has greater rights in an allotment on a reservation than on the public domain. Clark v. Benally (51 L. D. 98). Similarly, where later acts reserved mineral rights for the tribe, this was repeatedly construed as not applying where allotment selections had already been made but had not yet been approved because of clerical errors. Raymond Bear Hill (52 L. D. 689); Mineral Reservations in Trust Patents for Allotments to Fort Peck and Uncompahgre Ute Indians (53 L. D. 538).

    However, where a later act changed the form and conditions of the trust patent itself without modifying or subtracting from the rights in the allotment selections, the later act was held to apply to allotments previously selected and approved but not patented because of errors in descriptions. Klamath Allotments (38 L. D. 559).

    From the foregoing it is apparent that the natural and reasonable interpretation of the first section of the Wheeler-Howard Act is that the act prohibits the further subdivision and assignment of tribal and surplus lands among unallotted Indians under any statute, but that it does not forbid the patenting of approved allotment nor the approval at least of those allotment selections which under the particular allotment act are equitably vested in the allottee.


    Assuming, however, that section 1 of the Wheeler-Howard Act may be interpreted to forbid the patenting of allotments, difficult legal questions promptly arise. (1) Can the Secretary erase allotment selections, invalidate approval given, and restore the land to tribal ownership without express statutory authority, and if not, can the allotment selections remain in a twilight zone of equitable ownership as at present? (2) Can allotments which have been approved be exempted from application of the first section on the ground that approval automatically entitles the allottee to a patent and equity will consider that done which ought to have been done; and if not




JULY 17, 1935

can the act deprive such allottee of a vested right without compensation? (3) Can allotment selections which have not been approved without good reason or because of minor clerical error; and which would have been approved nearly 10 years ago but for the negligence of the Department be considered as if approved (and therefore entitled to patent within the terms of the second question) on the equitable principle that where a person in the prosecution of a right does everything the law requires and fails to attain the right by the misconduct or neglect of public officers, the law will protect him in his right?

    (1) An allotment selection segregates the land and removes it from the tribal domain. Uncompahgre Ute and Fort Peck Allotments, supra; Raymond Bear Hill, supra; Friederick v. Ducept, supra. The Secretary may for good reason refuse to approve an allotment selection but he may not cancel his approval of an allotment except to correct error or to relieve fraud. Cf. Corneleus v. Kessel (128 U.S. 456) (public land entry). It is very doubtful whether the Secretary would be privileged to return allotment selections to tribal ownership simply on the ground that the Wheeler-Howard Act possibly forbids the trust patenting of such selections.

    In this connection it should be pointed out that the Wheeler-Howard Act provides for the return to tribal ownership only of "remaining surplus land * * * heretofore opened or authorized to be opened to sale." This can have no applications to a reservation like Fort Belknap which is without surplus land, nor in fact to any allotment selection approved or unapproved. This is some negative proof that such allotment selections were not intended to revert to tribal ownership. Moreover, the section expressly preserves "valid rights or claims of any persons to any lands so withdrawn existing on the date of withdrawal * * *." With this solicitude for claims of whites to reservation land. it is unthinkable that the legislature intended rights to allotments as near perfection and as couched in equity as these on the Fort Belknap reservation to lapse sub silentio.

    Nor would the failure of allotments to mature into patented land cause them ipso facto to revert to tribal ownership. There is a halfway ground in which allotments evidently can remain indefinitely, at least as long as occupied by the grantees or their heirs. An early act entitled each Colville Indian to 640 acres of land, guaranteed and protected him in possession and ownership, and authorized the Secretary to allow selections, not mentioning patents. The Secretary refused to patent a selection and Congress later passed an act authorizing the patent. Starr v. Long Jim, supras In Re Long Jim, supra. This Fort Belknap case is not the only one in which trust patents have been delayed for many years. Note the facts in the Klamath Allotment case, supra.

    It would appear that if trust patents are not issued on these allotments that a hybrid class of holdings will be perpetuated on the Fort Belknap reservation which will serve to complicate the land reform under the prospective constitution. The unpatented allotments might be closely analogized to the assignments made by the tribe of rights of occupancy in designated sections of land, but administration would remain separate as one assignment is derived from the Federal Government and the other from the tribal government, and certain rights, for example, that if inheritance, would be more securely attached to the Federal assignment. The single practical though very real value of such a position would be the resulting inalienability of the land except to the United States, to the tribe or to a member of the tribe. Henkel v. United States (237 U.S. 43). See United States v. Chase, supra, at 94. However, if such a legal position were taken by the Department, it is highly probable that an allottee could successfully assert his right to a patent in a Federal court (25 U.S.C.A. Sec. 345), for the interpretation of the section in question to forbid patenting of these allotments would present grave questions to the court, not only of the correctness of the interpretation but of the constitutionality of the act as interpreted. The legal considerations relevant to such constitutional questions follow.

    (2) Where the Secretary has approved an allotment, the ministerial duty arises to issue a patent. With approval his discretion is ended except, of course, for such reconsideration of his approval as he may find necessary (24 L. D. 264). Since only the routine matter of issuing a patent remains, the allottee after his allotment is approved is considered as having a vested right to the allotment as against the Government. Raymond Bear Hill (42 L. D. 689 (1929)). (Cf. where a certificate of approval has issued as in the Five Civilized Tribe cases, Ballinger v. Frost (216 U.S. 240); and where right to a homestead is involved, Stark v. Starrs (6, Wall. 402)). And then the allottee may bring mandamus to obtain the patent. See Vachon v. Nichols-Chisolm Lumber Co. (126 Minn. 303, 148 N. W. 288, 290 (1914). Cf. Lane v. Hoglund (244 U.S. 174); Butterworth v. United States (112 U.S. 50); Barney v. Dolph (97 U.S. 652, 656).

    Applying these doctrines to the Fort Belknap situation, it is apparent that the allottees whose allotments were approved have for years had a




JULY 17, 1935

vested right to their allotments and been entitled to their patents which the Secretary was under duty to issue. Accordingly, the courts would probably protect the right of the allottee to the patent against any later act either by treating the right to a patent as equivalent to a patent issued (cf. decisions on the conflicting claims under homestead laws, Barney v. Dolph, supra; Stark v. Starrs, supra; Lytle v. Arkansas (9 How. 314) and therefore beyond the reach of the act; or by refusing to interpret section 1 of the Wheeler-Howard Act as preventing patents, in order to avoid the constitutional question; or by declaring such section unconstitutional as depriving the allottee of a property right without due process of law.

    (3) Where an allotment has not been approved, on the other hand, approval and the issuance of a patent cannot be compelled by mandamus. West v. Hitchcock (205 U.S. 80); United States v. Hitchcock (190 U.S. 316). But is is recognized that an allottee acquires rights in land with some of the incidents of ownership when the allotting agents have set part allotments and he has made his selection. Until that time an Indian eligible for allotment has only a floating right which is personal to himself and dies with him. La Roque v. United States (259 U.S. 62). See Philomme Smith (24 L. D. 323, 327). The owner of an allotment selection, even before its approval, has an inheritable interest (United States v. Chase (245 U.S. 89); Smith v. Bonifer (166 Fed. 846) (C.C.A. 9th 1909))); which will be protected from the outside world (Smith v. Bonifer, supra); and which he can transfer within limits (Henkel v. United States, supra; United States v. Chase, supra); and which is sufficient to confer on him the privileges of State citizenship as granted to all "allottees" by the act of 1887 (State v. Norris, supra). Moreover, where the Government has issued an erroneous patent for the allotment selections, the owner of such selection will be protected in his right against the adverse interests possessing the patent (Hy-Yu-Tse-Mil-Kin v. Smith (194 U.S. 491); Smith v. Bonifer (132 Fed. 889 (C. C. Ore. 1904), 166 Fed. 846 (C.C.A. 9th, 1909), and against the government itself. Conway v. United States (149 Fed. 261 (C. C. Neb. 1907). In these cases the courts lay down the principle that where an Indian has done all that is necessary and that he can do to become entitled to land and fails to attain the right through the neglect of misconduct of public officers, the courts will protect him in such right. Again, where the claimant does all required of him he acquires a right against the Government for the perfection of his title, and the right is to be determined as of the date it should have been perfected. Payne v. New Mexico (255 U.S. 367); Raymond Bear Hill, supra.

    Further, where the right to the allotment has failed to become vested through the neglect of public officers to attach approval to the selection, one court has indicated that the right to the allotment would be considered as already vested so as to be beyond the reach of a later act of Congress. Lemieux v. United States (15 Fed. (2d) 518, 521 (C.C.A. 8th, 1926)). In the Lemieux case the Secretary's approval under the act of 1887 would have had to include determination of the qualifications of the applicants but in the Fort Belknap situation, no question of qualifications arises since previous enrollment on the allotment list is made by statute conclusive evidence of the enrollee's right to allotment. Thus the position of the Fort Belknap allottee compels even. more strongly to the conclusion suggested in the Lemieux case. It has also been suggested that where the Indian possesses all the qualifications entitling him to an allotment, the Secretary has no longer any discretion to refuse approval. See State v. Norris, supra, (53 N. W. at 1089).

    It would appear, therefore, that whether or not a constitutional question would arise if Congress prohibited the perfection of unapproved allotment selections in the ordinary case since the right to the allotment is not yet vested, in the instance of these 20 unapproved Fort Belknap selections two factors militate against the power of Congress. One is the fact that the failure of approval before the act in question was passed is due to the negligence of the Government officers charged with the making of allotments. Equity on these facts would step in and protect the inchoate right as a vested right. The second is the fact that the approval required is not of a discretionary nature. Since the Secretary was under duty to correct the clerical errors, the right to the patent is nearly as strong where the allotment was not approved for such error as where was approved but not patented for the same type of error.

    This consideration of constitutional problems compels me to the conclusion that the natural and reasonable interpretation of the first section of the Wheeler-Howard Act expounded in the earlier part of this opinion should be adopted. It is axiomatic that where a statute is reasonably susceptible of two interpretations, one of which might permit successful assault upon its constitutionality, the other interpretation should be chosen. See United States v. Delaware and Hudson Railroad Company (213 U.S. 366, 407).

    I am of the opinion, therefore, that your question should be answered in the affirmative. The




JULY 17, 1935

first section of the Wheeler-Howard Act does not prevent the patenting, or the approval and patenting of the 25 Fort Belknap allotment selections in question.

                                                                                                                                            NATHAN R. MARGOLD,

OSCAR L. CHAPMAN, Assistant Secretary.


July 22, 1935.
Memorandum for the Commissioner of Indian Affairs:

    I agree with the conclusion reached in your letter of July 16, to the Superintendent of the Tulalip Agency that the deed to N. K. Nelson properly limits the land conveyed thereby to the high water mark. The further conclusion is reached, however, that title to the tide lands surrounding the boundary of the Port Madison Reservation is held by the United States for the benefit of the Indians of the reservation. The latter conclusion is open to serious question. It clearly is not supported by the decision in the United States v. Stotts (49 Fed. (2d) 619), cited in your letter.

    The Executive order creating the reservation involved in the Stotts case expressly fixed the low water mark as the boundary of the reservation and the court held that this was conclusive. Neither the Executive order nor the treaty under which the Port Madison Reservation was established extended the boundary of the reservation to the low mark and the meander line surveys apparently follow the high tide line along the shore. There was, therefore, no express reservation of the tide lands and as a reservation of such lands cannot be established by inference or implication (see Taylor v. United States, 44 Fed. (2d) 531; United States v. Holt Bank, 270 U.S. 49,55) I do not see how the Port Madison Reservation can be held to have extended to the low water mark. The question is immaterial in this case in any event because disposals of the uplands, even though the tide lands were part of the reservation, would not under the rule laid down in United States v. Stotts, supra, extend beyond the high water mark.

                                                                                                                                            NATHAN R. MARGOLD,

July 23, 1935.
Memorandum to the Commissioner of Indian Affairs:

    Your letter of July 11, to the Superintendent of the Pawnee Indian Agency advising that Pawnee Oil and Gas Lease No. 941 will be canceled upon the filing by the administrator of the estate of J. A. Walker, deceased, of an application for the surrender of the lease, is returned.

    Presumably it is your intention to waive delinquencies in payments of advance royalties and annual rentals which the record indicates amount to about $120. Presumably also this action is induced by an apparent defect in the leasehold title, occasioned by the failure of the Superintendent to execute the lease on behalf of Ralph Weeks Allen and Mary Catherine Allen, minor Indian owners of the fee subject to a life estate in Ida Weeks Allen, which life estate appears to have terminated with the death of the life tenant in 1929. The attorney for the estate contends that the lease, although executed for a period expiring October 3, 1935. terminated with the death of the life tenant, she alone having signed the lease.

    Section 4, of the regulations approved July 7, 1925, provides that the officer in charge, in this case the Superintendent, shall execute leases on behalf of incompetent and minor Indians and the legality of leases so executed has been upheld in opinions of the Solicitor for this Department dated August 28, 1916, and August 23. 1920. While the Superintendent did not actually execute the lease in the instant case on behalf of the minors, there is attached to the lease an agreement signed by him in their behalf and by the life tenant which agreement, after making appropriate reference to the lease, provides for a division of the proceeds there from between the life tenant and the minor remaindermen. The execution of this agreement amounted to an adoption and confirmation of the lease making immaterial the original defect in execution: No good reason appears, therefore, for waiving the existing delinquency and any application for the surrender of the lease should be accompanied by a remittance of all amounts due under the terms of the lease.

                                                                                                                                            NATHAN R. MARGOLD,





JULY 24, 1935


July 24, 1935.
Memorandum for the commissioner of Indian Affairs:

    I am returning for further consideration your letter of July 18, advising the Superintendent of the Shawnee Indian Agency in Oklahoma that under the act of June 18, 1934 (48 Stat. 984), purchases of land in Oklahoma may be made only in behalf of individual Indians and not for tribes.

Section 5 of the act of June 18, 1934, expressly authorizes the Secretary of the Interior to purchase lands for tribe as well as individual Indians, and section 7 of the act empowers the Secretary to proclaim new reservations on the lands so acquired or to add such lands to existing reservations. Section 5 applies to the Indians in Oklahoma. Section 7 does not. Purchases of lands on behalf of Oklahoma tribes may, therefore, be made, but new reservations thereon may not be proclaimed, nor may the lands be added to any existing reservation. This may make it inadvisable to purchase lands for any of the tribes located in Oklahoma, but, if so, the decision not to do so should be based on grounds other than legal inhibition.

                                                                                                                                            NATHAN R. MARGOLD,

July 25, 1935.
Memorandum for the Commissioner of Indian Affairs:

    1. It is within the authority of the Interior Department to protect Indian tribal lands against waste. Over-grazing, which threatens the destruction of the soil, is properly considered waste. Whether this doctrine extends to pueblo grant lands held in fee by the pueblos is a question which need not be considered since, in any event, the Department has such powers with respect to Pueblo lands by virtue of the fact that the pueblos have accepted the Wheeler-Howard Act. The Wheeler-Howard Act specifically provides in section 6 of the exercise of such powers of control.

    2. Revised Statutes, section 2127 (U.S. Code, Title 25. Sec. 192) provides:

   "Sale by agents of cattle or horses not required. The agent of each tribe of Indians, lawfully residing in the Indian country, is authorized to sell for the benefit of such Indians any cattle, horses, or other livestock belonging to the Indians and not required for their use and substance, under such regulations as shall be established by the Secretary of the Interior. But no such sale shall be made so as to interfere with the execution of any order lawfully issued by the Secretary of War connected with the movement or subsistence of troops,"
    Under the foregoing statutory provision, surplus stock not required for the actual use and subsistence of the Indians may be taken up and sold by the Department. Consideration of the needs of the range is undoubtedly proper in determining whether such stock shall be taken up and sold. This power is not dependent upon Indian consent and is limited only by the requirement that live stock actually necessary for Indian use and subsistence shall not be taken.

    3. Under the act of July 4, 1887, chapter 180, section 1 (23 Stat. 94; U.S. Code, Title 25, Sec. 195), and Revised Statutes, section 2138 (41 Stat. 1; U.S. Code, Title 25, Sec. 214), the Department has plenary authority to regulate the sale of cattle or their increase where such cattle have been originally purchased by the Government. Specific penalties of six months' imprisonment and $1,000 fine are provided for the violation of Revised Statutes, section 2138, and penalties only slightly less severe for the violation of the act of July 4, 1887. Under these provisions it should be possible to institute a system of registry of stock ownership and to check pretended transfers of title designed to circumvent limitations of grazing on individual members of the tribe.

    4. Where a tribe has taken no action in the matter of allocating to its members grazing rights in the tribal common, the authority of the Department to fix a reasonable maximum which no member of the tribe may exceed in the use of tribal grazing lands has been affirmed by the Courts.

    5. In addition to the foregoing powers relative to Indian grazing, statutory authority to control all leases of tribal grazing lands is conferred by the act of February 28, 1891, chapter 383, section 3 (26 Stat. 795, U.S. Code, Title 25, Sec. 397). Similar authority with respect to allotted lands is conferred by the act of March 3, 1921 (41 Stat. 1232, U.S. Code, Title 25, Sec. 393). Under the latter provision it would be possible to require Indians owning allotments to give reference in leases to fellow tribal members, thus relieving the strain upon tribal grazing lands.

    6. The act of February 15, 1929, chapter 216 (U.S. Code, Title 25, Sec. 231), authorizes the




JULY 25, 1935

Secretary of the Interior to take measures for the enforcement of State sanitary inspection and quarantine laws. Under this provision it would be proper to conduct a thorough check of stock ownership in connection with dipping requirements.

    7. Regulations of any of the foregoing powers are authorized by the general terms of Revised Statutes, section 441 (U.S. Code, Title 5, Sec. 485); Revised Statutes, section 463 (U.. Code, Title 25, Sec. 2); and Revised Statutes, section 465 (U.S. Code, Title 25, Sec. 9), defining the authority of the Secretary of the Interior, the Commissioner of Indian Affairs, and the President of the United States, with respect to Indian affairs.

                                                                                                                                            NATHAN R. MARGOLD,


M-28125                                                                                                                              August 12, 1935.

The Honorable,
The Secretary of the Interior.


    You have requested my opinion on a question raised in a letter dated August 2 from the Commerce Trust Company of Kansas City, Missouri, which company it appears is interested in serving those Indians of the Five Civilized Tribes in Oklahoma who desire to create trust estates out of their restricted property under authority of sections 2, 3, 4, 5, 6 and 7 of the Act of January 27, 1933 (47 Stat. 777).

    The Commerce Trust Company states that it has already entered into a number of trust agreements with restricted Indians of the Five Civilized Tribes and that it desires to obtain additional trust; that, aside from this particular type of business, it has many other business activities in the State of Oklahoma with large investments there; that it feels that it can use a representative in Oklahoma to handle its business interests in the State, and that it proposes for such purposes to place on its regular pay roll as a new employee some person who is qualified to aid and assist in "securing additional Indian trusts". Whether the Commerce Trust Company be disqualified from acting as trustee in an Indian trust procured as a result of the services or influence of such employee is the question presented for opinion, and the answer to that question is to be found in that part of section 2 of the Act of January 27, 1933, supra, declaring-

    "That no trust company or bank shall be trustee in any trust created under this act which has paid or promised to pay to any person other than an officer or employee on the regular payroll thereof any charge, fee, commission, or remuneration for any service, influence in securing or attempting to secure for it the trusteeship in any trust:"
    The obvious purpose of the foregoing provision is to protect the Indians against high pressure salesmanship and solicitation. It does this by expressly and explicitly prohibiting the creation of a trust with any prospective trustee who pays or promises to pay any remuneration whatsoever, to any person for any services or influence in securing or attempting to secure for it a trusteeship under the Act, unless the payment or promise is made to a person who is "an officer or employee on the regular payroll thereof". In my opinion of July 8, 1933 (54 I. D. 237), it was pointed out that the statutory inhibition is directed not to the kind of remuneration paid or promised but to the kind of person to whom the payment or promise is made. It was also pointed out that the clear intent of Congress was to limit the payment or promise to persons "who are already on the regular pay roll of the company" for purposes other than the procural of trusts under the Act." If, therefore, the consideration inducing the Commerce Trust Company to place the proposed new employee on its payroll is the influence or services which such employee may render in obtaining for it the trusteeship in these Indian trusts so that the employment would not be made but for that inducement, then, it is my opinion that such person cannot be regarded as an "employee on the regular payroll" within the meaning of that term as used in the Act, and hence the payment or promise to make payment to such person of any remuneration, large or small, for his services or influence in obtaining for the company the trusteeship in a trust under the Act is the sort of payment or promise which the Act prohibits. On the other hand, if the business of the Trust Company, apart from the procurement of trusts under the Act of 1933, is such that new employees must be added to its payroll, nothing contained in the Act purports to disqualify the company from acting as trustee because of any payment or promise made to such new employees for any services rendered by them after their employment in connection with the procurement of the trust. The exertion of improper influences on the Indian in such a case would, however, be sufficient cause for disapproval of the trust irrespective of any direction in the Act to that effect.

    In its letter of August 2, the Commerce Trust




AUGUST 27, 1935

Company after pointing out that it has already obtained a number of Indian trusts under the Act of January 27, 1933 states:

    "We are desirous of securing additional trusts and in order to secure additional trusts we are of the opinion based upon information received that it will be necessary to place on our regular payroll one or more employees, residents of Oklahoma, whom we feel can aid and assist the Trust Officers of Commerce Trust Company in securing additional restricted Indian trusts."
    It appears from this statement that the procuring of Indian trusts under the Act of 1933 is the dominant if not sole purpose of the proposed employment. Consequently it must be held that the company would be disqualified from acting as trustee not only in the particular trust procured as a result of the services of such an employee but in any other trust created under the Act.

                                                                                                                                                CHARLES FAHY,

Acting Solicitor.
Approved: August 12, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.


August 27, 1935.
Memorandum to the Commissioner of Indian Affairs:

    You have requested my consideration of the question whether the Minnesota Chippewas may organize under a single constitution and charter, within the terms of the Act of June 18, 1934, or whether these Indians must be organized according to reservations or bands.

    There is no question, I think, but that the entire Minnesota Chippewa Tribe may organize under a single constitution and charter. In the Opinion of this Department, dated November 7, 1934, the following statement, directly applicable to the situation of the Chippewas, appears:

    "In my opinion the Wheeler-Howard Act permits the organization as a tribe of any of the following groups:
" (a) A band or tribe of Indians which has only a partial interest in the lands of a single reservation;

" (b) A band or tribe which has rights coextensive with a single reservation;

" (c) A group of Indians residing on a single reservation, who may be recognized as a 'tribe' for purposes of the Wheeler Howard Act regardless of former affiliations;

" (d) A tribe whose members are scattered over two or more reservations in which they have property rights as members of such tribe."

    In the recent case of Wilbur v. United States (281 U.S. 206, 221), the Supreme Court said, of the Minnesota Chippewas, "The questions mooted before the Secretary and decided by him were * * * whether the tribe is still existing * * *. The second question is more easily answered, for not only does the Act of 1889 show very plainly that the purpose was to accomplish a gradual rather than an immediate transition from the tribal relation and dependent wardship to full emancipation and individual responsibility, but Congress in many later acts-some near the time of the decision in question-has recognized the continued existence of the tribe." (Citing statutes.)

    In several decisions of this Department the continued existence of the Minnesota Chippewa Tribe, as a tribe, has been recognized. See Solicitor's Opinion M-27381, approved August 6, 1935; Solicitor's Opinion M-27381, approved December
13, 1934.

    A more difficult question, however, is presented by attached papers. Apparently, it is the desire of the Indians concerned to organize neither as separate bands or reservations nor as an entire tribe, but rather to include in the general organization all the bands of Minnesota Chippewas other than the Red Lake Band. The Red Lake Band of Minnesota Chippewas, having its own reservation which is still unallotted, would probably not wish to enter a general organization including many landless Minnesota Chippewas of other bands.

    It is clear that the Red Lake Band would be entitled to organize under its own constitution and charter as an organized band under section 19 of the Act of June 18, 1934. The Red Lake Chippewas have for some time been organized under their own constitution and tribal council and have participated in the management of their own fishing resources without assistance or interference from the other Minnesota Chippewa Bands. Not only so, but Congress has repeatedly recognized their sole ownership of the reservation occupied by them, and the Court of Claims has recently held that no other Band of Chippewa Indians in the State of Minnesota has any interest whatever in that reservation. See The Chippewa Indians of Minnesota v. United States, the Red Lake Band of