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what weight was given by that officer to the decree of the McIntosh County court is not apparent.

    The purpose and intent of the act of June 4, 1918, supra, which makes conclusive the determination of the question of fact by Oklahoma probate courts as to who are the heirs of deceased members of the Five Civilized Tribes, are not entirely clear, as prior thereto Congress, in sections 2 and 6 of the act of May 27, 1908 (35 Stat., 312), had already conferred probate jurisdiction on such courts. Some light is thrown on the limitations of the act of June 4, 1918, in the case of In re Jessie's Heirs (259 Fed., 694). See also cases of Coleman v. Battiest (162 Pac., 786) and Lewis v. Gillard-Gardner v. Lewis(173 Pac. 1136). However, it is not believed that the provisions of said acts affect ,the present situation, especially as to the disbursement of funds in the hands of the Government. The practice has become well established for the Government to pay out such funds as are involved here, both individual and tribal, and it has proceeded to determine the heirs of deceased Indians for that purpose. No question has been raised as to the authority of the Government in the premises. As to undistributed per capita shares of tribal funds due these Indians there is no question that they are under the exclusive jurisdiction of the Government. It has been held that a member of the Five Civilized Tribes is not at his death seized of an estate of inheritance in undivided tribal property, and that his heirs therefore take direct from the tribe and not by way of inheritance from the decedent. Solicitor's Opinion, October 17, 1914, Seminole Tribe: Mullen v. United States (224 U.S., 448). In practice no distinction has been made between the payment of individual and per capita shares of tribal funds in the hands of the Government for distribution to those found entitled. Both classes of funds are restricted, and in the absence of some specific legislation to the contrary are under the exclusive control of the Government. No reason is seen for disturbing the prevailing practice in the matter of the funds under consideration.

    After all, the question involved herein turns primarily upon the matter of proof or evidence, as in other heirship cases. The generally accepted rule governing such cases is that there is legal presumption of death after seven years' absence. In some jurisdictions even a shorter period has been prescribed by statute. The necessity of such a rule is apparent as in its absence the settlement and distribution of estates would be indefinitely postponed. For a like reason the chance or possibility that it may subsequently develop that the absentee whose death is presumed is in fact alive, can not be permitted to forestall invoking the rule in proper instances. As stated, to justify a legal presumption of death arising from absence for seven or more years is a matter of evidence as in other cases, the only difference being as to the degree and character of such evidence.

    My opinion after examination of the record is that the proof offered is sufficient upon which to base a legal presumption of death in each of the cases named, there being nothing in the record to rebut such proof, and that the request of the Superintendent of the Five Civilized Tribes for approval of heirship findings and authority to disburse the funds in question accordingly should be granted.

                                                                                                                                             EDMUND BOOTH,
                                                                                                                                                                 Solicitor.

Approved: _______________________
Assistant Secretary.
 

M-9094                                                                                                           December 2, 1922.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You request my opinion as to the advisability of discontinuing so-called "continuation certificates" in connection with surety bonds furnished by banks to secure deposits therein of Indian moneys.

    Under the present practice banks seeking such deposits in addition to offering a satisfactory rate of interest must furnish also a suitable bond to guarantee the safety of the funds so placed in their keeping. From the approved form of bond now in use we read:

    "Whereas, It is furthermore understood and agreed by all parties hereto that the obligation and liability of the bounden surety hereunder shall extend and apply to the acts of the principal, or to its default in the conditions of this bond, during the period ---------------- year --- from ,the date of the approval hereof by the Secretary of the Interior, it being further understood and agreed by all the parties hereto that the obligation and liability of the bounden surety hereunder, as well as the principal, shall continue beyond said stipulated period hereinbefore mentioned (whether the acts or defaults of the principal occurred either before or after the termination of said stipulated period), but in case the surety or the Com-
 

missioner of Indian Affairs shall desire to terminate this contract as to future acts or defaults of the principal, either may, subsequent to said stipulated period, give the other notice in writing, to be effective thirty days from receipt thereof, of his intention so to do, and thereafter no new liability shall accrue against the surety:" [Italics supplied.]

    While the above form contemplates that these bonds may be executed for varying designated periods, yet as a matter of fact the bonding companies, owing to fluctuating financial and other conditions, object to stipulated periods greater than one year. Hence our existing bonds almost uniformly provide for a stipulated period of one year within which neither party-the bonding company nor the Commissioner of Indian Affairs, according to the wording of that instrument-can terminate the liability even upon notice. After the stipulated period has expired, however, on giving the required thirty days' notice either party may terminate the bond which will relieve the surety company from any new liability arising after the notice of termination becomes effective. The surety, of course, is liable under the present form of bond for losses incurred not only during the stipulated period but thereafter until the bond is actually terminated on proper notice.

    The "continuation certificates" have been resorted to as a means of renewing the stipulated period for like periods of one year during which neither party can terminate the bond. Annual renewal of such certificates necessitates considerable routine work here, at the banks, and by the bonding companies as well. Discontinuance of those certificates, of course, will obviate such routine work, a thing which the Indian Office is anxious to accomplish but is solicitous as to whether such action will in anywise jeopardize the safety of the Indian funds.

    There is no statute which requires these continuation certificates. The matter, therefore, is one entirely of administrative regulations and agreement between the offices in charge, the banks, and the bonding company. This being true, such certificates may be dispensed with if the administrative officers find it advisable or convenient so to do. Under the present form of bond the surety remains liable after the stipulated period and until proper notice in writing of termination of the bond be comes effective. The funds of the Indians will in no way be placed in jeopardy by discontinuing these certificates provided that on receipt of notice of termination of liability under existing bonds the banks are required to furnish new bonds or the funds be withdrawn and placed elsewhere before the termination of the liability under the old bond.

                                                                                                                                              EDWIN S. BOOTH,
                                                                                                                                                                    Solicitor.

Approved: December 9, 1922.

F. M. GOODWIN, Assistant Secretary.

49 L.D. 370                                                                                                                                        December 15, 1922.

   There is no authority whereunder the Secretary of the Interior can require the purchasers, or their assignees, of lands allotted in severalty to Indians on the Wind River Reservation, Wyoming, to whom patents in fee had previously been issued, to contribute toward defraying the construction costs of the irrigation system upon that reservation.

    Cases of Francis V . Francis (203 U.S., 233), and Burke v. Southern Pacific Railroad Company (234 U.S., 669), cited and applied.

BOOTH, Solicitor:

    You request my opinion with reference to the liability of present owners of irrigable land on the Wind River Reservation, Wyoming, for repayment of irrigation construction costs where the land involved was purchased direct from former Indian allottees, to whom patents in fee had previously been issued. The gist of this matter will the better be appreciated after a brief recourse to certain pertinent legislation and other data. The Wind River Reservation was established originally by treaty dated July 3, 1868, with the Shoshone and Bannock Tribes (15 Stat., 673). Several reductions in the original area were made by subsequent understandings and agreements with the Indians, of no particular import here (18 Stat., 291, and 30 Stat., 62, 93). A still later agreement, however, of April 21, 1904, as amended and ratified by the act of March 3, 1905 (33 Stat., 1016), demands more extended discussion. By its terms the Indians ceded and relinquished to the United States that considerable part of their then reservation lying north and east of the Big Wind River, retaining the right, however, for individual Indians desiring so to do to select allotments within the territory ceded. The United States agreed to act as trustee in the disposal of these lands for the Indians and to pay
 

over or expend the proceeds for their benefit. Article IV of this agreement, in part, being of primary importance here, is reproduced below:

    It is further agreed that of the moneys derived from the sale of said lands the sum of one hundred and fifty thousand dollars, or so much thereof as may be necessary, shall be expended under the direction of the Secretary of the Interior for the construction and extension of an irrigation system within the diminished reservation for the irrigation of the lands of said Indians.

    Subsequent Indian appropriation acts, beginning with that of June 21, 1906 (34 Stat., 325, 384), down to and inclusive of the act of February 14, 1920 (41 Stat., 408, 433), each carried an annual appropriation for continuing the construction of an irrigation system for the benefit of the Indians of the Wind River Reservation, reimbursement of which was to be had out of the proceeds derived from the sales of surplus tribal lands in accordance with the act of March 3, 1905, supra. The aggregate of the advancements so made by Congress for this work exceeds one million dollars. Had the matter rested here no doubt would remain as to the source from which reimbursement of the cost of this work is to be obtained. The difficulty in the situation now at hand arises thus:

    In addition to specific appropriations for sundry irrigation projects on designated Indian reservations, such as the Wind River and others, the Indian appropriation acts for a long time past have also annually carried a "lump sum" appropriation for similar work elsewhere among the Indians with out reference to any particular point of use other than to direct that no part of the latter appropriation should be used on any irrigation system or reclamation project for which a specific appropriation is made or for which public funds are available under any other act of Congress. Illustrative of this see the act of August 24, 1912 (37 Stat., 518). Down to August 1, 1914, these lump sum appropriations were purely gratuitous; no reimbursement being required. The act of the latter date (38 Stat., 582-583) after appropriating some $335,000 for such work among the Indians contains the further provisions quoted below:

    That all moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe: Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made reimbursable out of tribal funds of said Indians, in accordance with the benefits received by each individual Indian so far as practicable from said irrigation project, said cost to be apportioned against such (each) individual Indian under such rules, regulations, and conditions as the Secretary of the Interior may prescribe. [Italics and parenthetical data supplied.]

    Into the history of the latter legislation we need not now go other than to observe the manifest in tent on the part of Congress to shift the burden of the cost of such work from the tribal funds to the shoulders of the individual Indians benefited, under such rules and regulations as the Secretary of the Interior might prescribe. Obviously the most equitable method of assessing costs of this character is on a per acre basis against the lands irrigated through each respective system. Manifestly also there is some conflict between that provision in the general law relating to such projects (which re quires reimbursement from the individual Indians benefited) and those specific appropriations for the Wind River and other designated projects wherein reimbursement is to be from tribal funds. My predecessor had occasion to consider this very conflict with reference to the Indians of the Wind River Reservation and in an opinion (unpublished) under date of May 25, 1920, it was held, in effect, that this reservation or project does come within the purview of the general law, thus altering the method of reimbursement by shifting it to the shoulders of the individual Indians benefited by the construction of such works. Without here questioning the soundness of that view the issue now before me will be approached from a some what different angle.

    The Indians of the Wind River Reservation were granted allotments in severalty pursuant to the general allotment act of February 8, 1887 (24 Stat., 388), and for the allotments so made trust patents were issued in accordance with section 5 of that act with the declaration that:

    The United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of

said trust and free of all charge or incumbrance whatsoever. [Italics supplied.]

    From time to time patents in fee simple have since been issued to individual allottees of this reservation deemed to be capable of managing their own affairs under the general authority so to do conferred on the Secretary of the Interior by the act of May 8, 1906 (34 Stat., 182). These latter patents recite no lien specific or otherwise for repayment of the irrigation charges and in the absence of statutory authority for the insertion of such a lien in patents of this kind it is not well seen how such action could be had. See Francis v. Francis (203 U.S., 233) and Burke v. Southern Pacific Railroad Company (234 U.S., 669, 670). Legislative authority is at hand for the insertion of liens of this kind in patents for irrigable land on a few of our Indian reservations as to which see the acts of March 3, 1911 (36 Stat., 1058, 1063), August 24, 1912 (37 Stat., 518, 522), May 18, 1916 (39 Stat., 123, 140, 154, 156), and June 4, 1920 (41 Stat., 751, 754), but no such statutory authority is found with respect to the Wind River Reservation.

    In the absence of contractual obligations, therefore, between the United States and the purchasers of these allotted Indian lands, which I understand are not extant, I am unable to see how the purchasers of such lands, or their assignees, can be held liable for repayment of the cost of constructing the irrigation system at Wind River. Aside from the acts of Congress specifically relating to this project, all of which, substantially direct reimbursement for the cost of this work out of tribal funds, the only other applicable statute is that provision in the act of August 1, 1914 (38 Stat., 582), which places the obligation to repay against the individual Indians benefited, but not necessarily against the lands allotted to such Indians, by way of a lien or otherwise. I am of the opinion, therefore, that the purchasers or present owners of these lands, other than the Indians themselves can not be held accountable for repayment of a proportionate part of the cost of constructing the irrigation system on the reservation referred to.

Approved:
F.M. GOODWIN, Assistant Secretary.

49 L.D. 376                                                                                                                                        December 28, 1922.

    Section 16 of the act of June 4, 1920, although purporting to be a grant in praesenti of certain lands within the Crow Indian Reservation to the State of Montana for school purposes, is not to be construed as a denial of the right of those Indians in certain specific classes designated by the act to select such lands for allotments.

    The doctrine that congressional legislation pertaining to relations between the Indians and third parties, including the States, is to be construed in favor of the Indians has been so frequently announced by the courts that it has practically become a maxim.

    While a State is not entitled to indemnity under its school and grant because the lands in place are of an inferior quality, yet where its place lands are "hedged in," even by subsequent acts of the Federal Government, so that they be come practically useless for school purposes, the right of the State to select indemnity lands elsewhere arises.

    The term "Indemnity" as used in the statutes granting lands to the States for school purposes implies compensation for losses actually sustained by failure to receive designated sections in place, and not a right to select lands elsewhere because those in place happen to be of inferior quality.

BOOTH , Solicitor:

    November 24, 1922, you approved a schedule of allotments in severalty to some 358 members of the Crow Tribe of Indians in Montana made pursuant to the act of June 4, 1920 (41 Stat., 751), but excepted from such approval, pending further instructions, two allotments involving lands in certain sections 16 within that reservation-"State school lands." Some question having been raised regarding these two allotments you have since requested my opinion as to the respective rights of the Indians and of the State in the premises.

    While the particular schedule referred to contains but two allotments in conflict with the grant to the State yet the information now at hand discloses that there are some 5,000 acres of other land within the Crow Reservation similarly situated and which doubtless will appear on subsequent allotment schedules to be presented here for action. Under these circumstances it is essential that the matter be considered somewhat fully.

    The grant to the State turns primarily on section 16 of the act of June 4, 1920, supra, which reads:

    That there is hereby granted to the State of Montana for common-school purposes sections sixteen and thirty-six, within the territory de scribed herein, or such parts of said sections as may be nonmineral or nontimbered, and for

which the said State has not heretofore received indemnity lands under existing laws; and in case either of said sections or parts thereof is lost to the State by reason of allotment or otherwise, the governor of said State, with the approval of the Secretary of the Interior, is hereby authorized to select other unoccupied, unreserved, nonmineral, nontimbered lands within said reservation, not exceeding two sections in any one township. The United States shall pay the Indians for the lands so granted $5 per acre, and sufficient money is hereby appropriated out of the Treasury of the United States not otherwise appropriated to pay for said school lands granted to the said State: Provided, That the mineral rights in said school lands are hereby reserved for the benefit of the Crow Tribe of Indians as herein authorized: Provided further, That the Crow Indian children shall be permitted to attend the public schools of said State on the same condition as the children of white citizens of said State. [Italics supplied.]

    Standing alone and construed literally the expression "is hereby granted" as used above undoubtedly constitutes a grant in praesenti; one taking effect immediately upon the passage of the act if the lands are then surveyed, and if not surveyed then upon approval of an official survey (33 L.D., 181; 240 U.S., 192). With the latter situation, however, we are not here greatly concerned, as I understand that practically all lands within the diminished Crow Reservation have previously been surveyed, In the absence of some controlling reason to the contrary, therefore, the grant to the State became effective as of the date of that act. No affirmative action on the part of the State is necessary in order to perfect its title to its lands in place such as "an acceptance" of the terms of the act or a formal "selection" of the lands in place granted to it. We turn, therefore, to the remaining provisions of the same statute and to other relevant circumstances. It may be well, however, here to observe that under the compensating clauses of the act, Congress has seen to it that neither the Indians nor the State shall suffer substantial loss by virtue of any of the provisions of that statute, for, where any lands in place are lost to the State, whether by reason of allotment to the Indians or otherwise, then the right to indemnity instantly arises, and for all lands within their reservation ultimately passing to the State under the school land grant the Indians of the Crow Tribe are to receive $5 per acre.

    In an opinion dated December 27, 1921 (48 L.D., 512), I had occasion to discuss somewhat briefly the grant made to the State of Montana by the act of June 4, 1920, supra, but the question there turned mainly on the right of the State to indemnity where the lands in place were mineral or timber and whether indemnity selections by the State could be made within the diminished Indian reservation. In an earlier opinion dated November 22, 1921 (48 L.D., 479) I had occasion also to advert at some length to the matter of allotments to members of the Crow Tribe under the particular statute here in question. Without reviewing either of those opinions in extenso it is sufficient here to point out that in the latter opinion prospective allottees of this tribe under the act of June 4, 1920, for convenient designation, were divided into four classes, A, B, C, and D. respectively. Further, the schedule first herein referred to shows the allottees in class A; that is those who died unallotted after December 31, 1905, but prior to June 4, 1920. Class B consists of those living heads of families as of a certain date who previously failed to receive allotments as such. The remaining classes we need not again mention here, but with this partial classification in mind it is with a better understanding of the true intent of the act when we read from section 1:

    That the Secretary of the Interior be, and he hereby is, authorized and directed to cause to be allotted *     *     * one hundred and sixty acres to the heirs of every enrolled member, entitled to allotment, who died unallotted after December 31, 1905, and before the passage of this Act; next, one hundred and sixty acres to every allotted member living at the date of the pass age of this Act, who may then be the head of a family and has not received allotment as such head of a family; and thereafter to prorate the remaining unallotted allottable lands and allot them so that every enrolled member living on the date of the passage of this Act and entitled to allotment shall receive in the aggregate an equal share *     *     *. [Italics supplied.]

    The foregoing provision not only implies a priority of allottees as among themselves but rather also unconsciously infers that the provisions of the act are to be carried out in a certain logical order. In a measure it furnishes the basis for that observation in 48 L.D., p. 482, wherein it was said:

    After having first satisfied the prior rights of classes A and B by allotting 160 acres to each member whose name appears in those classes, and fulfilling other requirements of the act, such as adjusting the school land grant to the State, reserving the areas needed for adminis-
 

trative purposes, etc., the "unallotted allottable lands" still undisposed of are then to be prorated among the members whose names appear on the remainder of the final rolls-that is, classes C and D. [Italics supplied.]

    Beyond all of that, however, rests still other pertinent considerations. Legislation anterior to June 4, 1920, provided for allotments in given areas to the Indians of the Crow Reservation, notably the act of April 11, 1882 (22 Stat., 42), which authorized an allotment of 160 acres of agricultural or 320 acres of grazing land to each head of a family, and 80 acres of agricultural or 160 acres of grazing land to each single person, including children "born prior to said allotments." Several successive efforts were made to allot the Indians of the Crow Tribe under this and subsequent acts of Congress prior to June 4, 1920. Into the history of all this we need not now go other than to observe that the earlier allotment rolls were "closed" as of December 31, 1905. After that date, of course, children born to members of the tribe were not regarded as entitled to an allotment. To this ruling the Crow Indians objected, contending in brief that the reservation was "their property" and this being so that they should be permitted to select allotments for children born to enrolled members of the tribe so long as any land suitable, for allotment purposes remained within their reservation. Selections of the lands wanted in behalf of such newborn children were made and filed at the local agency, not with out some misgivings, however, on the part of the administrative officers in charge, as it was not then known what additional legislation, if any, might be had, and it was feared that the selections so made might complicate future adjustment of affairs should be needed legislation not be enacted. That issue, however, has since been put at rest by the act of June 4, 1920, supra, in which, in so far as class A allottees are concerned, Congress has but recognized and confirmed allotments that were previously selected for these Indians. In truth and in equity, therefore, it might well be said that the Indians on this particular schedule possess rights antedating the grant to the State.

    We turn, therefore, to still other pertinent facts at hand. The State is not here demanding its lands in place. With respect to the Crow, as with so many of the other Indian reservations within her borders, the State of Montana, speaking generally, has waived all technical rights she may have to any designated lands in place and selected indemnity lands elsewhere. The real question at issue, therefore, is the legal right of the State so to do. An extended memorandum from the General Land Office under date of October 28, 1922, regarding this matter presents this angle of the situation quite forcibly. Therein the case of Michael Dermody (17 L.D., 266) is referred to. That case has been duly considered. There it was held, in brief, that a State may not at will waive its right to lands in place and seek indemnity elsewhere-a holding that is undoubtedly sound. If we once recognize a naked right of election on the part of a State to take either its lands in place or indemnity elsewhere as it might choose, then the matter would simply resolve itself into one of inspection in order for the State to determine whether to retain its base lands or to seek lands of a better quality elsewhere by way of "indemnity." The latter term, within itself, negatives the existence of any such right. Rather it implies compensation for losses actually sustained by failure to receive any lands in place and not a right to select lands elsewhere because those in place happen to be of an inferior quality. Manifestly no such right ever existed in our public land States. On the other hand, a State is not always to be required to retain its base lands in place and this is amply illustrated by the departmental holding in 28 L.D., 57. There certain lands in place had passed to the State of California under the school land grant to it and after official survey of such lands had been made in the field those lands were included within a national forest. The State insisted that it had the right to surrender its base lands and select indemnity elsewhere. At first that contention was denied (19 L.D., 585), but on reconsideration the earlier ruling was vacated, and in the later decision (28 L.D., 57, 61), it was said: "The selection (indemnity), when approved, will operate as a waiver by the State of its right to the tract used as a basis." This ruling was referred to with approval and up held in principle by the Supreme Court of the United States in the case of State of California v. Deseret Water, Oil and Irrigation Company (243 U.S., 415, 421). The true rule, therefore, seems to be that while the State may not be heard to complain because its lands in place are of an inferior quality, yet where its base lands are "hedged in" even by subsequent acts of the Federal Government then the right on the part of the State to select indemnity lands elsewhere arises.

    The situation with respect to other Indian reservations in the State of Montana is not without interest here. By the act of April 23, 1904 (33 Stat., 302), Congress provided for the survey, allotment, classification, appraisement, etc., of the lands within the Flathead Indian Reservation. Section 8 of that act contains a rather positive grant in praesenti to the State of the lands in sections 16 and 36 within that reservation. The Flathead Indians, however, were permitted to and did select numerous allotments in sections 16 and 36, thus compelling
 

the State to seek indemnity elsewhere. This is shown in 38 L.D., 341; particularly pages 343-344. The issue immediately there under consideration, however, was the matter of lieu selections by the State rather than a prior right of the Indians to take in allotment lands within sections 16 and 36 of their reservation. Substantially the same situation existed with respect to the Fort Peck Indian Reservation under the act of May 30, 1908 (35 Stat., 558), section 7 of which granted to the State of Montana sections 16 and 36 within that reservation, with a right of indemnity elsewhere for any lands lost to the State by reason of allotment to the Indians or otherwise. At the time of the passage of that act not a single acre within the Fort Peck Reservation had been allotted to any of the Indians of that tribe. The matter of the right of the Indians to select in allotment lands in sections 16 and 36 came before this Department in the form of instructions to the allotting agent wherein after reviewing the situation at some length that officer was directed under date of March 1, 1910, in part, as follows (unreported):

    As the State of Montana, by the provisions of section 7 of the act of May 30, 1908, supra, is entitled to select land in lieu of that lost to it within sections 16 and 36 in the Fort Peck Reservation, by reason of allotment or other disposition, the Indians on that reservation, if they so desire, may select lands in allotment within sections 16 and 36.

    The act of March 1, 1907 (34 Stat., 1015, 1035), provided for the survey, allotments to the Indians in given areas, classification, appraisement and disposal of the surplus lands within the Blackfeet Indian Reservation, Montana, which act also carried an explicit grant of the lands in sections 16 and 36 within that reservation to the State for school purposes. Provision was also made for indemnity to the State for any lands lost by reason of allotment to the Indians or otherwise. Prior to that act no lands within this reservation had been allotted to these Indians. After the surveys and allotments called for by the act of March 1, 1907, had been completed but before the remaining requirements of that act had been fully administered. Congress, by the act of June 30, 1919 (41 Stat. 3, 16), repealed so much of the act of 1907 as related to the disposal of the unallotted lands within this reservation and authorized the Secretary of the Interior to prorate the remaining unallotted lands among the Indians of the Blackfeet Tribe as shown by a tribal roll therein provided for. The latter act (1919), however, expressly provided that nothing therein contained should be construed to repeal the school land grant to the State of Montana, made by the act of March 1, 1907. That situation came be fore this Department in September, 1920, by way of instructions to the register and receiver at Kalispell, Montana (47 L.D., 568 et seq). Possibly some of the observations made in those instructions were some what wider than originally intended, or at least they are susceptible of a construction broader than the situation at hand actually justified. At any rate I am happy here to observe that since those instructions were issued, on ascertaining that practically every acre within sections 16 and 36 in the Black feet Indian Reservation had been allotted to the Indians, the State very graciously waived any technical right it might have had to designated lands in place and selected lieu lands elsewhere. By "Montana School Indemnity Clear List No. 33" approved February 12, 1921, indemnity lands out side of the reservation were approved to the State in lieu of all school lands within the Blackfeet Reservation. For reasons herein given I see no occasion to question the propriety of the action so had in that instance.

    When we seek the fundamental principle under lying transactions of this kind it is not hard to find. But they illustrate the familiar doctrine so frequently announced by the Supreme Court as to now practically constitute a maxim to the effect that legislation pertaining to the Indians must be construed in their favor. The reservation of lands for each of the Indian Tribes referred to herein was originally established by treaty with the respective tribes. While the naked legal title to such lands did remain in the United States, yet for all intents and purposes it was regarded as the property of the Indians. This Department has ever been tender in its regard of the superior right of the Indians in the premises, and especially as between the Indians and third parties, including the States. Laying aside, therefore, for the time being, the superior power of Congress over the subject matter, when we come to consider the prior rights of the Indians and of third parties, including the States, we instantly recognize the stronger, i.e., the Indians. It would not be difficult, therefore, under eminently proper construction of statutes of this kind, supported at least in principle by the rulings of the highest judicial tribunal in this country, to hold that in matters of this character the rights of the State are subordinate to the rights of the Indians. This is particularly true in view of the indemnity clauses of legislation of this kind under which the State receives indemnity lands elsewhere in quantity equal to the loss."

    In so far as the instant situation is concerned-the one at Crow-officials of the State and employees of this Department handling the work in

the field have amicably adjusted conflicting claims between the State and the Indians in the premises and are in full accord as to the adjustment of the school land grant made to the State by the act of June 4, 1920, supra. I see no occasion here, legally or otherwise, to question the propriety of the adjustment so made.

    I am of the opinion that the two suspended allotments first herein referred to should be approved and the issuance of patents therefor ordered. As to those schedules which have not yet been presented for departmental action, if any lands thereon lie within sections 16 and 36, I see no reason why the allotments so made should not be approved provided the State of Montana has selected indemnity lands elsewhere.
 

Approved:

F. M. GOODWIN, Assistant Secretary.

49 L.D. 396                                                                                                                                              January 2, 1923.

   The act of March 3, 1901, which authorizes condemnation for public purposes pursuant to State or Territorial laws of lands allotted in severalty to Indians did not, either expressly or by implication, repeal any prior act, nor was it repealed by subsequent acts of Congress relating to the acquisition of rights of way across Indian lands; that act and the various Federal rights of way statutes are to be construed conjointly or, if need be, independently of each other.

    In the ordinary sense the terms "public purpose" and "public use" are to be construed interchangeably.

    The term "public purpose," as used in the act of March 3, 1901, is to be construed to mean any purpose which would be deemed a public purpose under the laws of the State or Territory within which the allotted Indian lands are sought to be condemned.

BOOTH, Solicitor:

    At the suggestion of the Commissioner of Indian affairs you request my opinion on several questions involving that provision in the act of March 3, 1901 (31 Stat., 1058, 1084), which reads:

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

    After inviting attention to a number of Federal statutes relating to the acquisition of public and Indian lands, or rights of way thereover for various purposes, some of which acts are hereinafter specifically referred to, the Commissioner of Indian Affairs presents questions which, for the time being, may be consolidated thus:

    (1) What constitutes a "public purpose" within the meaning of the act of March 3, 1901, supra

    (2) Did the act of that date repeal any of the prior acts relating to the acquisition of rights of way across Indian land?

    (3) Was the provision in the act mentioned repealed by any subsequent act of Congress under which Indian lands or rights of way thereover could be acquired for designated purposes?

    The other statutes referred to, in the main, are: Act of March 3, 1891 (26 Stat., 1095, 1101)) sections 18 to 21, inclusive.

    Act of March 3, 1891 (26 Stat., 1095, 1101) sections 18 to 21 inclusive.

    Act of March 2, 1899 (30 Stat., 990).

    Act of February 15, 1901 (31 Stat., 790).

    Act of June 21, 1906 (34 Stat., 325, 330).

    Act of March 3, 1909 (35 Stat., 781).

    Act of May 6, 1910 (36 Stat., 349).

    Act of March 4, 1911 (36 Stat., 1235, 1253-54).

    Act of May 18, 1916 (39 Stat., 123, 157).

    It will not be necessary here to analyze separately or even discuss extensively the provisions of each of these measures; it being sufficient to point out that with the exception of the last-mentioned act they are all of general application, in that they do not relate to any particular reservation or tribe of   Indians. Further, that under these statutes and possibly others, title to or a right of way over Indian lands, either tribal or allotted, may be acquired for various purposes, such as for railroads, station grounds, pipe lines, reservoirs, ditches, flumes, telephone, telegraph, power transmission lines, etc. Applicants under these acts must con form to certain requirements some of which are statutory and others by way of regulation, as in all matters of this kind the applications are subject to approval by the Secretary of the Interior. Compensation to the Indians interested-whether individual allottee or the tribe as a whole-is usually had by way of "damages" assessed prior to final action. For illustrative purposes as to such matters but without particular regard to the latter point see 14 L.D., 265; 20 L.D., 154; 26 L.D., 381; 27 L.D., 421; 30 L.D., 599; 32 L.D., 178; 33 L.D., 389 and 563; 35 L.D., 550; 36 L.D., 135; 39 L.D., 44; 40 L.D., 470; 42 L-D., 562; 44 L.D., 511; and 45 L.D., 563. These by no means constitute even all of the
 

published departmental rulings relating to such matters but they are ample for our present purposes.

    Taking up the specific questions reproduced above, discussing these inversely and considering the last two jointly, it may be said that none of the statutes listed nor any other act of Congress, in express terms, repeals that provision in the act of March 3, 1901, supra. It will also be observed that that provision does not, in terms, repeal any other statute. As repeals by implication are not to be favored (235 U.S., 422) unless these several statutes are so repugnant to the provisions of the act of 1901 referred to, or present such an irreconcilable conflict therewith that effect can not be given to each then it must be held that the provisions of the one act are not repealed by the other. I do not find that the true situation here impels a repeal by implication. Hence, these several measures are to be considered together, or if need be, independently of each other. This clarifies the matter considerably.

    Applicants desiring needed Indian lands, or rights of way thereover, for various public purposes have frequently found that the rights sought could the more readily be acquired by proper negotiation through this Department rather than through the courts. Uniformly this Department has seen to it that the interests of the Indians were fully protected. In some cases the "damages" assessed by way of compensation to the Indian may have appeared somewhat excessive, as ordinarily viewed, but the Indian has always received the benefit of the doubt. In given instances applicants for such rights may have realized this and in some cases even protested against the damages levied but in the end they also realized that the saving in time, court costs, attorneys' fees, etc., frequently more than offset the difference in cost to themselves had they proceeded by condemnation through the courts. The fact remains, however, that allotted Indian lands can still be condemned for public purposes where necessary under the provisions of the act of March 3, 1901, supra. In other words, the remedy resting there is simply an alternative one rather than a concurrent or an exclusive procedure. Even prior to the act of March 3, 1901, this Department held that a State could condemn allotted Indian lands for public purposes. See 19 L.D., 24. Again, the provisions of that act came before this Department in 1905 and in an opinion dated May 11, 1905 (unreported) the then Assistant Attorney General for this Department held that under the provisions of that act and of certain statutes of the State of Utah, lands allotted to the Indians within the Uintah Reservation could be condemned in favor of persons or corporations desiring to acquire rights of way for canals, ditches, etc. In concluding that opinion it was said:

    These quotations from the law of Congress and the laws of the State answer the inquiry and leave no room for discussion or argument. Indian allotments are subject to be condemned for public purposes under the laws of the State or Territory where located, before the issue of final patent, to the same extent as if the allot tee held the fee to the land. The use of the land for right of way for irrigating ditches is declared by the law of Utah to be a public use in support of which the right of eminent domain may be exercised.

    Departmental decisions reported subsequently to the foregoing are not entirely silent in the matter.
Thus, in 35 L.D., 648, it was said (syllabus):

    A decree of condemnation by a court of competent jurisdiction, in proceedings under the act of March 8, 1901, which provides for condemnation for public purposes of lands allotted in severalty to Indians, has the effect to vest title in fee, and the issuance of patent to the Indian allottee for the land covered by the decree is not necessary.

    The ruling had in the latter case is substantially dealt with also in 42 L.D., 4, as the same parties in interest and the same subject matter were involved. The fact that the power company there concerned also submitted to and did receive from Congress by the act of May 5, 1908 (35 Stat., 100) a confirmation of its title to the lands so acquired in no way detracts from the fact that the condemnation proceedings had in the first instance were perfectly legal, sufficient, and proper. The additional legislation by Congress simply "made assurance doubly sure." When analyzed the last mentioned act merely released and confirmed unto the power company the interests of the United States in and to the lands therein described. Those lands having previously been Indian "trust allotments," with the legal title remaining in the United States, doubtless the power company preferred to have of record some authenticated extinguishment of the latter title also.

    After mature consideration of the entire subject matter I am of the opinion that the provisions of the act of March 3, 1901, are still in effect and that allotted Indian lands may still be condemned for public purposes. This brings us to a consideration of the question first presented, as to what constitutes "public purposes."

    No clear-cut general rule concisely defining a
 

public purpose can well be given. Necessarily this must rest to a large extent on the circumstances surrounding each particular transaction. Under the right of eminent domain inherent in every sovereign power, lands or other private property needed for public purposes can be condemned (13 Cyc., 557). This right may also be delegated to others and the legislative body may designate the public purposes to which such property can be applied (Id., 565-566). State statutes in most in stances outline in part at least the purposes for which private property may be condemned, but it would be useless here to attempt to cite or even classify these numerous statutes. Regard must be had, of course, to the particular State in mind and the purposes desired to be accomplished. Again, where statutes sufficiently broad or of a general nature are lacking usually special enactments are resorted to. At times and under given conditions there may be some technical difference between and sufficient legal authority for distinguishing a "public purpose" from a "public use" but ordinarily these two terms are interchangeable. Some text writers even regard them as synonymous. Thus, in Cyc., Vol. 15, page 581, we find:
 

    If the special benefit to be derived from the lands sought to be appropriated is wholly for private persons, the use is a private one, and is not made a public use by the fact that the public has a theoretical right to use it, or that the public will receive an incidental or prospective benefit therefrom. And on the other hand if the use is in fact a public one its character is not changed by the fact that the control of the property sought to be taken will be vested in private persons or private corporations who are actuated solely by motives of private gain, and that the private purposes will be thereby incidentally served. So a use is not rendered a private one by the mere fact that a part or even the whole of the cost of constructing the improvement is paid by individuals, although such individuals are the persons most benefited by the improvement.

    While the foregoing employs the terms "private use" and "public use," yet if we substitute for those terms "private purposes" and "public purposes" the inevitable conclusion reached will be the same.

    In his presentation of this matter the Commissioner of Indian Affairs refers to two particular local issues, one in the State of Oklahoma and the other in Wisconsin. The former refers to powerhouse sites and rights of way for electric transmission lines on and across lands allotted to Indians of the Kickapoo Tribe, although the particular areas desired are not described. It is further stated that the statutes of Oklahoma declare the furnishing of electricity to be a public purpose and that a grant of the power of eminent domain has also been had. This being true, I see no reason why condemnation proceedings, pursuant to the act of March 3, 1901, supra, would not lie as to the lands allotted to the Kickapoos.

    With reference to the Wisconsin matter that involves also the act of May 18, 1916 (39 Stat., 123, 157), supra, which provides in part:

    With the consent of the Indians of the Lac Court Oreilles Tribe, to be obtained in such manner as the Secretary of the Interior may require, flowage rights on the unallotted tribal lands, and with the consent of the allottee or of the heirs, of any deceased allottee and under such rules and regulations as the Secretary of the Interior may prescribe, flowage rights on any allotted lands in the Lac Court Oreilles Reservation, in the State of Wisconsin, may be leased or granted for storage-reservoir purposes. The tribe, as a condition to giving its consent to the granting or leasing of flowage rights on tribal lands, and any allottee or the heirs of any deceased allottee, as a condition to giving his or their consent to the leasing or granting of flowage rights on their respective allotments, may determine, subject to the approval of the Secretary of the Interior, what consideration or rental shall be received for such flowage rights, and in what manner and for what purposes such consideration or rental shall be paid or expended; and the consideration or rental shall be paid or expended under such rules and regulations as the Secretary of the Interior may prescribe. [Italics supplied.]

    The Wisconsin-Minnesota Light and Power Company is now negotiating for the purchase of allotted Indian lands within the Lac Court Oreilles Indian Reservation pursuant to the foregoing statute, it being intimated that if the rights desired are not so acquired the company will be compelled to resort to condemnation proceedings under the earlier statute of March 3, 1901. It will be observed, of course, that the act of May 18, 1916, deals with both tribal and allotted lands while the act of 1901 applies only to "lands allotted in severalty to Indians." Further, that the act of 1916 is discretionary to the extent that the land maybe leased or granted. In other words, with the consent of the parties in interest the object sought to be accomplished can be attained, if desired, by way of leases rather than an outright purchase or by the more arbitrary method of condemnation. Should the Indians here con-
 

cerned, or any one of them, refuse to grant the rights sought across lands allotted in severalty I would then be loath to hold as a matter of law that the power company could not resort to the act of March 3, 1901, and by condemnation acquire the lands needed to serve a manifest public purpose. Frankly, I am of the opinion that such a proceeding could be had as I do not see wherein the provisions of the act of May 18, 1916, operate as a repeal by way of implication or otherwise of the provisions of the act of March 3, 1901, supra.

    As to the tribal lands involved, I find no act of Congress subjecting lands of this character to the operation of State statutes relating to condemnation. Hence, should the Lac Court Oreille Indians, as a tribe, refuse to consent to the use of tribal lands for the purposes indicated in the act of May 18, 1916, then it would seem that the power company must seek relief by way of additional legislation through Congress. This particular angle of the matter not being directly in controversy here is one which I deem it unnecessary to exhaustively consider.

Approved:
F. M. GOODWIN, Assistant Secretary.

49 L.D. 414                                                                                                                                            January 24, 1923.

INDIAN LANDS--ALLOTMENT--ALIENATION--MORTGAGE--
PAYMENT--TRUST FUNDS

    The proceeds derived from sales of lands allotted to Indians with restrictions against incumbrance and alienation are impressed with a trust to the same extent as were the lands before the sale.

INDIAN LANDS--ALIENATION--DESCENT AND DISTRIBUTION--
SECRETARY OF THE INTERIOR--TRUST FUNDS

    Lands purchased with Indian trust funds continue to be impressed with the trust as originally declared, irrespective of whether the purchased property was previously restricted or unrestricted, and the Secretary of the Interior is clothed with full authority to determine the descent thereof to the same extent as he is with respect to the original property from the sale of which the purchase funds were derived.

INDIAN LANDS--TRUST FUNDS--TAXATION

    Property purchased with Indian trust funds, even though unrestricted prior to purchase, is exempt from taxation until the termination of the trust period.

BOOTH, Solicitor:

    There has been referred to me for consideration, on request of the Commissioner of Indian Affairs, a question submitted by the superintendent of Pawnee Indian Agency, Oklahoma, as to the authority of the Department to determine the descent of property purchased with trust funds where such property was previously unrestricted or held in fee.

    The superintendent also raises the question as to whether unrestricted property purchased for an Indian with funds held in trust for him is subject to taxation by the State.

    The practice of the Department heretofore has been to determine the heirs of deceased Indians whose property is of the character of that referred to. That in itself constitutes decision of the Department as to its authority in the premises. One of the recent instances in which the Department assumed jurisdiction to determine the heirs was that of Charlie Wilson, deceased Pawnee Indian, whose property consisted in part of a house and lot in the town of Pawnee, Oklahoma, purchased with funds to the credit of decedent, there being inserted in the deed to such property a condition that it should not be alienated or incumbered without the approval of the Secretary of the Interior. This property was unrestricted at the time of its purchase for the Indian.

    The power to insert in deeds covering property purchased with trust funds a condition that the property shall not be alienated or encumbered without the approval of the Secretary of the Interior; also the authority of the Department to determine the descent of the purchased property; and as to whether or not such property is subject to taxation are all allied subjects.

    It is clearly within the power of the Secretary of the Interior to attach conditions to sales of Indian allotted lands because such power is expressly conferred in acts authorizing such sales; that is, they are to be made subject to his approval and on such terms and conditions and under such regulations as he may prescribe. It was held in the case of United States v. Thurston County, Nebraska, et al. (143 Fed., 287) that the proceeds of sales of allotted lands are held in trust for the same purposes as were the lands; that no change of form of property divests it of the trust; and that the substitute takes the nature of the original and stands charged with the same trust. From this situation arose the practice of inserting in deeds of conveyance covering property purchased for an Indian with trust funds the nonalienation clause referred to, which is merely a continuation over the new property of the trust declared for the old or original property. For sanction of this practice see 13 Ops. A. A. G., 109; Jackson v. Thompson et al. (80 Pac., 454); and Beck v. Flournoy Live-Stock and Real-Estate Co. (65 Fed., 30).

    It thus being established that lands purchased

with trust funds continue under the trust as originally declared and that power exists to insert in deeds covering such lands a condition against alienation and incumbrance, it follows that upon the death of an Indian for whom the property is held in trust his heirs are to be determined by the Department the same as in the case of the original property from the sale of which the purchase funds are derived. Apparently no question is raised as to the authority of the Department to determine the descent of property purchased with trust funds derived from the sale of lands previously held in trust or restricted. The question submitted has reference to lands that were unrestricted prior to purchase. The theory on which the Department and the courts have proceeded in this matter is that property purchased with trust funds becomes impressed with the trust nature of the purchase money. In this view it can make no difference whether the purchased lands are restricted or unrestricted; the authority to determine heirs is coexistent with the continuation of the trust. By the act of June 25, 1910 (36 Stat., 855), Congress conferred exclusive jurisdiction upon the Secretary of the Interior to determine the heirs of deceased Indian allottees, and this power extends not only to property held in trust but also to property on which restricted fee patents have issued, under legislation providing for "determining the heirs of deceased Indian allottees having any right, title, or interest, in any trust or restricted allotment, under regulations prescribed by the Secretary of the Interior." (United States v. Bowling et al, 256 U.S., 484).

    The question as to whether lands or property acquired with the proceeds of the sales of allotted Indian lands are subject to taxation by the State is one fully settled by both departmental and court decisions which cover the purchase on behalf of Indians of both restricted and unrestricted lands. The general rule was long since established by the Supreme Court in the case of McCulloch v. Maryland (4 Wheat., 315, 429) that "all subjects over which the sovereign power of a State extends are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation." See also cases of Van Brocklin v. State of Tennessee (117 U.S., 151) and United States v. Nashville Railway Company (118 U.S., 120).

    As to the purchase of unrestricted property with trust funds it was held in Instructions of January 2, 1914 (43 L.D., 26, 29):

*     *     * The question is whether, in the purchase of unrestricted lands, involving as it does, lands that are taxable, such lands become impressed with the trust nature of the purchase money and are, thereafter, exempt from taxation so long as the trust period continues. The fact that the property was once taxable would seem to constitute no valid distinction. Under the decisions of the courts, funds derived from the sale of trust lands take the character of the lands and stand charged with the same trust. It is not seen why lands purchased with trust funds do not equally take the character of the funds and also stand charged with the same trust. It was said in the case of National Bank of Commerce v. Anderson, 147 Federal Rep., 87:

    "The statute provides that the lands may be sold with the consent of the Secretary. It thus permits a change in form of the trust property from land to money. This change may be effected only with the consent of the trustee represented in the person of the Secretary of the Interior. No citation of authority is needed to sustain the general doctrine that into whatever form trust property be converted, it continues to be impressed with the trust.

            *                            *                            *                              *                               *

    "The property being held in trust by the United States for a period which had not yet expired and which period was subject to further extension by the President, the intention to terminate the trust must be found to be clearly expressed in order to warrant us in holding that trust does not follow the property in its changed form."

    There is no question under the authorities that the power of the Government over trust property continues until the expiration of the trust period regardless of the form of such property, unless an intention has been expressed to relinquish such power.

    The same reasons exist against the alienation of unrestricted land purchased with trust funds without the consent and approval of the Secretary of the Interior as existed in respect to the original allotment, from the sale of which such funds are derived. The land so purchased with trust funds becomes none the less an instrumentality employed by the Government for the benefit of the Indian than where land held in trust is purchased and, hence for the like reason, should be exempt from taxation. The Indian continues in the incompetent class and is entitled to the same protection and supervision. All these conditions are imposed on the theory that they are for the best interests of the Indian wards of the Government, among other things to protect them from the improvident disposition of the lands and funds.

    There are numerous instances in which the courts have ruled that unrestricted property purchased with trust funds are not subject to taxation. Thus in the case of United States v. Nez Perce County, Idaho, et al. (267 Fed. 495), which involved the purchase of property in the town of Fort Lapwai, it was held that the property was not subject to taxation by the State; also in the case of United States v. Yakima County et al. (274 Fed., 115, syllabus):

    Where an Indian allottee of the Yakima tribe in Washington died before the expiration of the trust period, and his land was sold by the Secretary of the Interior under Act May 29, 1908, section 1 (Comp. St. Sec. 4224), which authorizes such sale and the use of the proceeds during the trust period for the benefit of the heirs, and the proceeds were invested in other lands, the conveyances reciting that they could not be disposed of or incumbered without the consent of the Commissioner of Indian Affairs, such substitute lands during the trust period held exempt from taxation.

    A similar ruling was made by the United States District Court, eastern district of Washington, in the case of United States v. Yakima County, December 5, 1922, involving the purchase of lots in the city of Toppenish, Washington. In addition to the cases hereinbefore cited see Page et al. v. Pierce County et al. (64 Pac., 891); United States v. Law (250 Fed., 218); United States v. Chehalis County et al. (217 Fed., 281); United States v. Pearson et al. (231 Fed., 270); United States v. Gray et al. (201 Fed., 291); Ward v. Love County (253 U.S., 17); Choate v. Trapp (224 U.S., 665); and Morrow et al. v. United States (243 Fed., 854).

    In the case of Page v. Pierce County, supra, the court after referring to the case of The New York Indians (5 Wall., 761), said:

    Applying the doctrine announced in the decisions of the Supreme Court of the United States to the case at bar, it would seem reasonably clear that the lands in question can not be taxed by the State so long as the Government has an interest in them "either legal or equitable," or is even charged with the performance of some obligation or duty respecting them.

    Referring specifically to the questions submitted for consideration it would seem clear from the foregoing that the Department has full authority to determine the descent of property purchased with Indian trust funds, whether the property was previously restricted or unrestricted; and that until the trust is terminated such property is exempt from taxation. As was said in the Instructions (43 L.D., 26, 31):

    Congress has conferred upon the Secretary of the Interior authority to prescribe regulations and conditions to govern the sale of Indian allotted lands as well as the expenditure of the proceeds which implies an exclusion of all other authority. The lands and proceeds are held by the Government for a specified period in trust for the Indians, such trust being an agency for the exercise of a Federal power and therefore outside the province of State authority.

Approved:
F. M. GOODWIN, Assistant Secretary.

49 L.D 424                                                                                                                                           January 30, 1923.¹

  Administrative officers, being without authority to alter or amend existing law or to waive the specific requirement of a statute, cannot waive that requirement in section 26 of the act of June 30, 1919, which provides that an applicant for a lease based upon a mining claim on Indian lands shall file application therefor within one year from the date of location.

  Inasmuch as an official survey of a mining claim located within an Indian reservation is not required prior to application for a lease based thereon under the act of June 30, 1919, delay on the part of administrative officers in causing a survey to be made, or in furnishing blank forms of lease, can not be pleaded as a ground for failure on the part of the applicant to comply with the plain requirements of the statute.

BOOTH, Solicitor:

    You request my opinion regarding the validity of a number of conflicting lode mining claims covering deposits of metalliferous minerals in certain lands within that part of the Navajo Indian Reservation, Arizona and New Mexico, lying under the immediate supervision of the San Juan Indian School and Agency.

    The claims in question were filed pursuant to section 26 of the Indian Appropriation Act of

______________

    ¹ * See opinions of July 7, 1922 and July 10, 1922 (49 L.D., 420 and 421).
 

June 30, 1919 (41 Stat., 3, 31), and the regulations promulgated thereunder (47 L.D., 261) as amended (48 L.D., 263 and 266). The act referred to authorizes the Secretary of the Interior to declare what unallotted lands within Indian reservations in certain western States, including Arizona and New Mexico, should be open to exploitation for the deposits of gold, silver, copper, and other metalliferous minerals, and to lease the lands containing deposits of this kind to citizens of the United States or to any association or corporation organized under the laws of any State or Territory, for terms of twenty years, with certain preferential rights of renewal. After providing that mining claims on such lands may be located in the same manner as mining claims are located under the general mining laws of the United States, it was further provided in said act:

    That the locators of all such mining claims, or their heirs, successors, or assigns, shall have a preference right to apply to the Secretary of the Interior for a lease, under the terms and conditions of this section, within one year after the date of the location of any mining claim, and any such locator who shall fail to apply for a lease within one year from the date of location shall forfeit all rights to such mining claim: Provided further, That duplicate copies of the location notice shall be filed within sixty days with the superintendent in charge of the reservation on which the mining claim is located, and that application for a lease under this section may be filed with such superintendent for transmission through official channels to the Secretary of the Interior. [Italics supplied.]

    The regulations approved September 16, 1919, as amended March 3, 1921 (47 L.D., 261, and 49 L.D., 263), provide in part:

    3. Should valuable metalliferous minerals be found the section contemplates the location of mining claims in the same manner as mining claims are located under the mining laws of the United States. Should the locator fail to file a duplicate copy of the location notice with the officer in charge of the land within 60 days or fail within one year thereafter to make application through the officer in charge to the Secretary of the Interior for a lease of the land he will thereby forfeit all preference right to a lease. Any locator who fails to comply with the United States mining laws and the regulations of the General Land Office prescribed thereunder as to the location of mining claims will also forfeit all preference right to a lease.

                    *                            *                            *                            *                            *

    5. *     *     * Locations, if upon surveyed land, must be located in conformity to the legal subdivisions of the survey. If made upon unsurveyed land the locations must be marked in the same manner as lode locations, but shall conform as nearly as practicable to what would be public land surveys and the rectangular subdivisions thereof.

    6. Before a lease will be granted covering a lode mining claim, or a placer claim, on unsurveyed land, it will be necessary for the locator, at his expense, to have the claim surveyed by a United States deputy mineral surveyor. The survey must be made in the form and manner required by and under the laws and regulations governing the survey of claims under the United States mining laws, application for such survey to be made to the United States surveyor general for the State wherein the claim is located: Provided, That where a number of contiguous claims are held in common, the survey may be made of the exterior boundaries of the group and the entire group may be included in one lease. Two copies of the plat and two copies of the field notes must be filed by the locator with his lease.

    It will be noted that the regulations, of course, follow the statute with respect to requiring applicants to serve duplicate copies of the notice of location on the superintendent or other officer in charge of the particular reservation "within 60 days" from the date of location, and to apply for a lease within one year from the date of such location. In other words, the requirements in this respect are statutory rather than by way of regulation.

    The facts at hand in connection with the applications presented are somewhat involved and in so far as shown by the record are not as complete as might be desired. It appears therefrom, however, that during April and May, 1920, W. F. Hunter, Vernon Dalton, Biffle M. Morris, and Joseph H. Harris allege location of the claims known as Canary, North Star, North Star No. 2, and Valley View Nos. 1 to 3 inclusive, although the duplicate copies of notice of location filed with the superintendent of the San Juan School under date of May 4 and May 31, 1920, covering these claims, are all unsigned and undated. Further, that by a signed notice dated November 15, 1920, W. F. Hunter, B. M. Morris, and Vernon Dalton alleged location of the North Star No. 4, although the copy of the location notice in this case was not filed with the
 

superintendent, until February 12, 1921. Amended location certificates bearing dates of July 24, July 26, and July 27, 1920, covering respectively the Canary, North Star, and North Star No. 2 claims were likewise filed with said superintendent on February 12, 1921. Each of these latter certificates were also signed by the said Hunter, Morris, and Dalton. No copy of a notice of location or of an amended certificate of location is found in the record covering the claims known as North Star No. 3 and Valley View No. 4. By three separate quitclaim deeds, all dated January 4, 1921, V. E. Dalton, Biffle M. Morris, and W. F. Hunter released and quitclaimed unto the Carizo Uranium Company, a corporation organized under the laws of the State of New Mexico, all of their rights, title, and interest, among other claims, to those particular locations known as Canary, North Star, North Star Nos. 2, 3, and 4, and Valley View Nos. 1 to 4 inclusive. Thereafter the Carizo Uranium Company appears as the party applicant for a lease covering said claims.

    In a brief filed by said company in support of its application it is alleged that during the winter of 1920-1921 considerable assessment work was done by it and by its predecessors on said claims and the construction of a wagon road to the properties begun; that on March 28, 1921, it applied to one Allison L. Kroeger, United States mineral surveyor, at Durango, Colorado, to have an official survey made of said claims, but that because of the fact that these claims or a part of them at least are in the State of Arizona and a part in New Mexico considerable valuable time was lost in obtaining proper instructions and orders pertaining to such surveys to the deputy mineral surveyor from the offices of the two surveyor generals, one at Phoenix and the other at Santa Fe; that during the progress of the field work it became necessary to relocate and retrace some 17 miles of the boundary line between the two States in order to determine the jurisdiction of the respective surveyor generals; that the approved field notes covering the mineral claims applied for were not mailed out of Phoenix, Arizona, to the Carizo Uranium Company at Farmington, New Mexico, until April 13, 1922; that said approved field notes were not received by said company until April 18, 1922; that on April 26, 1922, application was made to the officer in charge of the San Juan Indian Agency for blank leases to fill out in accordance with the field notes of survey and the regulations of the Department, but that, that officer having no blanks on hand, the same had to be requested from the Commissioner of Indian Affairs at Washington; that the desired blanks were received on May 10, 1922, and that on May 18, 1922, application for lease was duly filed with the officer in charge of the reservation. In urging a consideration of its application on the merits the Carizo Uranium Company further alleges that it has always endeavored in good faith to diligently comply with the statute and the regulations of this Department relating thereto but that unavoidable delays over which it had no control, especially in connection with the prosecution of the survey work in the field and in obtaining proper blank forms on which to submit its application, prevented said company from perfecting its application within the time required by the statute; that it construed sections 3 and 6 of the regulations above reproduced together, under the assumption that an official survey of claims of this character must precede an application for lease thereof.

    The conflicting or adverse claim appears as the Syracuse Lode, located May 6, 1922, by one George O. Williams. A copy of the notice of location covering this claim was duly filed with the superintendent May 8, 1922, and Mr. Williams has also filed application for lease under date of August 14, 1922, which was received at the San Juan Indian School on August 15 of that year. Reference is also made in the correspondence submitted to an application by Mr. Williams covering claims known as the Red Wash Group, consisting of Red Wash No. 1 and Red Wash No. 2, based on locations made in August, 1921, by Nephi Johnson, and by Mr. Johnson assigned to the said Williams on May 8, 1922. No copies of the original notice of location covering the two claims last mentioned are found with the records submitted here. From an examination of the sketch plat covering those claims it does not appear that there is any conflict on the ground with the claims applied for by the Carizo Uranium Company. From the descriptive matter relating to the Red Wash Group it appears that:

    From the monument at the point of discovery and location, a mineral monument erected for the Carizo Uranium Company on their most southerly group of claims sometime in 1920, lies distant about one mile. [Italics supplied.]

    When we test the validity of these various claims by the requirements of the statute I am of the opinion that the following conclusions must be reached:

    1. The application for lease by the Carizo Uranium Company, covering the Canary, North Star, North Star Nos. 2, 3, and 4, and Valley View Nos. 1 to 4 inclusive, must be rejected because such application was not filed within one year from the date of location as required by the act of June 30, 1919. This is entirely aside from the further fact that the record at hand does not show any copy of
 

the notice of location covering the North Star No. 3 and Valley View No. 4 as having been filed with the superintendent in charge, and that the copy of the notice covering North Star No. 4 was not filed on said superintendent until after the 60-day period provided by law had expired. In itself these would be sufficient reasons for rejecting the application in so far as the three claims last mentioned are concerned. Administrative officers being without power to alter or amend existing law the requirements of the statute in this respect can not be waived.

    2. The application by George O. Williams, covering the Syracuse lode claim, comes within the statute and can be accepted provided the applicant furnishes copies of the plat of survey, field notes, bond, and other data called for by the regulations.

    3. The application of George O. Williams, covering the Red Wash Group, must be rejected for the reason that copies of the notice of location covering those claims were not filed with the superintendent within 60 days from the date of location as required by law.

    4. In the absence of adverse intervening rights applicants whose claims have been rejected for failure to comply with the statutes may initiate proceedings de nevo for the same lands by filing new copies of notice of location and otherwise complying with the law. This is in accordance with my prior opinion of July 7, 1922 (49 L.D., 420).

Approved:

F. M. GOODWIN, Assistant Secretary.

M-5386                                                                                                               June 19, 1923.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested in the matter of a proposed reservoir for reclamation purposes covering certain lands known as the "Fort Hall Bottoms," within the Fort Hall Indian Reservation, Idaho.

    The reservation referred to was created, originally, pursuant to the treaty of July 3, 1868 (15 Stat., 673), with the Shoshone and Bannock Tribes. Article XI of that treaty reads:

    "No treaty for the cession of any portion of the reservation herein described which may be held in common shall be of any force or validity as against the said Indians, unless executed and signed by at least a majority of all the adult male Indians occupying or interested in the same; and no cession by the tribe shall be understood or construed in such manner as to deprive without his consent any individual member of the tribe of his right to any tract of land selected by him, as provided in Article VI, of this treaty."

    Subsequently, by agreements with these Indians dated July 18, 1881, and May 27, 1887, ratified respectively by the acts of July 3, 1882 (22 Stat., 148), and September 1, 1888 (25 Stat., 452), the Indians agreed to cede certain strips of land through their reservation desired as rights of way by the Utah and Northern Railroad Company (now the Oregon short line) together with sufficient areas at Pocatello and other points for station ground and town site purposes. By a later agreement ratified by the act of February 23, 1889 (25 Stat., 687), the Indians ceded a large part of their reservation to the United States and provided for allotments in severalty within the diminished reservation. Again, by agreement dated February 5, 1898, ratified by the act of June 6, 1900 (31 Stat., 672), the Indians ceded still another part of their original reserve. These later agreements have no material bearing on the question now here other than to show that in these subsequent appropriations of their domain for public and other purposes the wishes of the Indians were respected and their nominal consent at least obtained.

    Aside from annual appropriations by Congress for the benefit of these Indians, including expenditures authorized for irrigation works, the situation, legislatively speaking, remained thus until April 4, 1910, when Congress by act of that date, 36 Stat. 269-274-5, after appropriating $100,000 for continuing the construction of irrigation works for the benefit of the Indians, authorized the Secretary of the Interior to

"set aside and reserve certain lands in the western part of the Fort Hall Indian Reservation, lying between the Snake River and the Port Neuf River, in ranges thirty-two and thirty-three east of the Boise meridian known as the 'Fort Hall Bottoms,' for the use in common of the Indians for grazing purposes."

    By the subsequent act of March 4, 1911 (36 Stat., 1058-1063), however, the Secretary was further authorized to make allotments in severalty within the Fort Hall Bottoms to those Indians who had occupied and erected valuable improvements therein. Under these more recent legislative author-
 

ities some 340,000 acres have been allowed to Indians of the Fort Hall Reservation and some 37,210 acres, known as the Fort Hall Bottoms, set aside as a grazing reserve for use of the Indians in common. Within the latter area, however, 946.93 acres have been allotted to some 15 Indians.

    It is now proposed to appropriate some 35,000 acres-practically the entire remaining Fort Hall Bottoms-as a reservoir site, known as the American Falls Reservoir, the waters from which will be used partly if not largely in supplying lands in white (private) ownership under the Minikado and Twin Falls Reclamation Projects, Idaho, which projects are now being supplied in part with stored waters, through the Snake River, from a reservoir at Jackson Lake, Wyoming. Substituting American Falls reservoired-water for use on the lands below will release for similar use elsewhere at a higher elevation an equal quantity of water from Jackson Lake. By way of compensating the Indians of the Fort Hall Reservation for their lands so appropriated it is proposed to accord them a fixed, definite water right mainly in the stored waters of Jackson Lake but partly also in the American Falls Reservoir; such value to be determined by appraisement of their lands so taken and offsetting this by an estimated value of the water rights to be given in return therefor. The water so made available to the Indians can be used in the irrigation of their lands now being supplied through the present Fort Hall irrigation system and also for supplying water to a large part of that aggregate area allotted in severalty to individual members of this tribe as grazing lands (160 acres to each of some 1,863 allottees, the entire acreage, however, possibly not coming within the contemplated project).

    I understand that the Indians are opposed to such use of their lands, chiefly because they already have a water supply sufficient for the irrigation of the areas allotted to them as irrigable lands-40 acres to each allottee whose consort is (was) dead and 20 acres to each other member of the tribe-and also because the Fort Hall Bottoms, at times, are subject to overflow or at least are sub-irrigated to such an extent as to afford an excellent crop of native or wild hay which the Indians use to considerable advantage for pasturage purposes and from which they annually cut considerable quantities of hay for winter forage and for sale for local consumption. Numerous large springs scattered through these Bottoms annually yield an average flow of about 600 cubic feet of pure water per second. Considerable game, wild fowl, etc., also abound in the marshes there. This being the early habitat of these Indians, naturally, for sentimental reasons they also are reluctant to part with practically the last remnant of their ancestral tribal domain for an invisible and doubtless to them intangible asset even though the latter may be of substantial intrinsic value.

    The real question at issue, therefore, is whether administrative officers of this Department have sufficient authority under existing laws to thus appropriate the lands of the Indians without their consent or is additional legislation required. Such authority, if it exists at all, is to be found in sundry acts referred to below which in no way relates specifically to the Fort Hall Indian Reservation or to the Fort Hall Indians. The reclamation act of June 17, 1902 (32 Stat., 388), outlines a comprehensive scheme for reclaiming arid lands in certain western States (and Territories therein referred to, including the State of Idaho. Section 7 of that act reads:

    "That where in carrying out the provisions of this act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States, by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney General of the United States upon every application of the Secretary of the Interior, under this act, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the Department of Justice."

    Purchase, of course, implies voluntary consent on the part of the owner to sell, condemnation being the more arbitrary method of acquiring title without such consent. The proposition now here, however, as I see it, contemplates neither of these. Sections 13 and 14 of the act of June 25, 1910 (36 Stat. 855, 858), provide:

    "Section 13. That the Secretary of the Interior, be and he is hereby, authorized, in his discretion, to reserve from location, entry, sale, allotment, or other appropriation any lands within any Indian reservation, valuable for power or reservoir sites, or which may be necessary for use in connection with any irrigation project heretofore or hereafter to be authorized by Congress: Provided, That if no irrigation project shall be authorized prior to the opening of any Indian reservation containing such power or reservoir sites the Secretary of the Interior may, in his discretion, reserve such sites pending future legislation by Congress for their disposition, and he shall report to Congress all reservations made in conformity with this Act.

    "Section 14. That the Secretary of the Interior, after notice and hearing, is hereby authorized to cancel trust patents issued to Indian allottees for allotments within any power or reservoir site and for allotments or such portions of allotments as are located upon or include lands set aside, reserved, or required within any Indian reservation for irrigation purposes under authority of Congress: Provided, That any Indian allottee whose allotment shall be canceled shall be reimbursed for all improvements on his canceled allotment, out of any moneys available for the construction of the irrigation project for which the said power or reservoir site may be set aside: Provided further, That any Indian allottee whose allotment, or part thereof, is so canceled shall be allotted land of equal value within the area subject to irrigation by any such project."

    It will be noted that enactment of the latter statute, of general application in so far as Indian lands are concerned, came within a comparatively few days after the act of April 4, 1910, by which the Secretary of the Interior was expressly authorized to set apart the Fort Hall Bottoms as a grazing reserve for the Indians. Further, that section 13 of the act of June 25, 1910, which deals with tribal rather than individual allotted lands, undoubtedly contemplates that the areas withdrawn from location, entry, sales, allotment, or other appropriation are made subject to additional legislation by Congress, and I find no subsequent legislation specifically dealing with the area so withdrawn at Fort Hall. The temporary withdrawal by your predecessor of the lands within the Fort Hall Bottoms for use in connection with the American Falls Reservoir necessarily was contingent on subsequent legislation by Congress, and that was the under standing of the Indian Bureau at the time of its concurrence in the then contemplated withdrawal for reservoir purposes.

    About the plenary power of Congress over the subject matter there can be no doubt even to the extent of abrogating or ignoring that expressed provision in the early treaty with these Indians to the effect that no cession of their tribal lands should be of any force or validity unless agreed to by them. That power, however, rests exclusively with Congress and is not lodged in any administrative officer of the Government. This, coupled with the further fact that Congress has heretofore indicated the disposal to be made of the lands within the Fort Hall Bottoms leads me to conclude that additional legislation is necessary.

    My attention has been directed to the case of Henkel v. United States (237 U.S., 43), as being applicable or analogous. The situation there, however, turned on an essentially different basis. In that case the area desired for reservoir purposes, or a part of it at least, had been selected in allotment by individual members of the Blackfeet Tribe; but such selections had not been patented or even approved to them. The Government, however, negotiated with the heads of the Henkel family paying them the sum of $7,500 for a relinquishment of all their right, title, and interest in and to the areas so claimed, including the improvements thereon, this being a very liberal allowance in favor of the Indians. Thereafter the Henkels attempted to repudiate the transaction by alleging that no statute of the United States had conferred authority on its officers to thus acquire the lands desired and for the further reason that the "relinquishment" in favor of the Government on behalf of the minor members of the Henkel family has been executed by their parents as natural guardians rather than by a duly appointed legal guardian and therefore such relinquishment was void. The court, however, found in effect that the Government had dealt fairly by the Indians in the matter (page 50) and also upheld the validity of the relinquishment so made in behalf of the minors (page 52).

    In a somewhat similar case involving lands also within the Blackfeet Indian Reservation desired by the Reclamation Service for use in connection with its projects there, the United States District Court for the district of Montana denied authority in the Secretary of the Interior to withhold from allotment the lands needed for reservoir purposes. See the case of David La Breche and George W. Cook v. United States, Equity No. 1069, decided April 2, 1914; unreported (unfortunately for reference purposes at least). Thereafter the lands were formally patented to the claimants and later they were paid some $16,500 for the improvements thereon. Under the subsequent act of April 1, 1920 (41 Stat., 549), the two Indians mentioned were paid an additional consideration exceeding $5,000 for the value of the lands within that reservoir site.

    I do not regard either of these two cases as controlling, however, in that they deal with individual rather than tribal property rights, but for the reasons herein above given I am of the opinion that the power resting in the Secretary of the Interior under section 13 of the act of June 25,1910, supra, is merely to withhold from allotment, sale, or other disposition, pending further legislation by Congress, the lands within any Indian Reservation required for reservoir purposes.

                                                                                                                                                    JOHN H. EDWARDS,

Approved:
Assistant Secretary.
 

M-11094                                                                                                               November 5, 1923.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Reference is made to memorandum of October 13, 1923, by Administrative Assistant Burlew, requesting my opinion as to the legality of projects managers of reclamation projects acquiring ownership of farms on the projects under their supervision.

    Where lands are in private ownership, I know of no statute which would prevent a project manager from acquiring title to same. If it be deemed good policy to forbid such practice as conducive to favoritism in the distribution of water or unfair advantage in other respects, it appears to me that it is within the supervisory power of the Secretary of the Interior to forbid it by appropriate regulation.

    In respect to the question of entering Government lands, there is a provision of law applicable to employees of the General Land Office. This is found in section 452 United States Revised Statutes which provides:

    "The officers, clerks and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office."

    Similar provisions were contained in the early act of April 25, 1812 (2 Stat., 716), which established the General Land Office as a Bureau in the Treasury Department, and the act of July 4, 1836 (5 Stat., 107), which reorganized the General Land Office.

    It has been held that this inhibition applies not only to employees in the General Land Office proper stationed at Washington but also to employees in all branches in that office serving in the field, in local land offices, or in the offices of surveyors general. In 10 L.D., at page 99 it was said:

    "The object of Sec. 452 was evidently to remove from the persons designated the temptation and the power by virtue of the opportunities afforded them by their employment to perpetuate frauds and obtain an undue advantage in securing public lands over the general public by means of their earlier and readier access to the records relating to the disposal of, and containing valuable information as to, such lands. Officers, clerks and employees in the offices of surveyors-general fall clearly within the mischief contemplated by the statute, and the reason of the law applies to them with equally as such force as to those in the central office at Washington. Statutes and regulations of this kind are based upon grounds of sound public policy and their strict enforcement is essential to the good of the public service."

    Opportunities for mischief similar to that intended to be remedied by this legislation may exist to some extent in the Bureau of Reclamation, the Office of Indian Affairs and in the Forest Service, for these offices are all concerned in various ways with the disposal of public lands. However, I am of opinion that the rules of statutory construction would not justify the interpretation that the law mentioned has application to these respective offices.

    I understand that this matter is governed by regulation in the Forest Service. This Department has by regulation of June 29, 1909, forbidden employees of the Indian Service, to enter public lands which are subject to disposal for the benefit of Indians, or which were acquired from Indians. There are also certain regulations by this Department concerning the holding of property by reclamation employees in reclamation projects. The Reclamation Manual (Volume 1 page 45-46) contains the following:

  "Land ownership by employees.-During the time of survey, examination, or preliminary study of a project it is not permissible for an employee of the Reclamation Service to be come directly or indirectly interested in the lands or region under survey.

    After a project has been determined upon and contracts let it is permissible for an employee of the service to purchase land for a home to be occupied by himself and his im mediate family. This permission, however, does not extend to buying and selling as a dealer or speculator, but the intent must be merely to establish a home in good faith. (Regulations, June 24, 1905).

    Speculation in lands or loans or investments in connection with the same, except as herein allowed are strictly prohibited. Employees are in nearly all oases subject to transfer from one project or office to another as the interests of the service may require. Any interest which employees may secure in a project will not be permitted to interfere with a transfer required

by the interests of the service. Any employee acquiring interest in land under a project does so entirely at his own risk, with the under standing that such interest shall not interfere with such transfers as may be found desirable. (Order of September, 1909).

    No superintendent of irrigation, engineer, or other officer or employee in responsible charge of a reclamation project or unit of project will be permitted to acquire any interest in property within that project. This prohibition does not extend to laborers or assistants whose duties are confined to carrying out instructions given by chiefs but only to such men as initiate and put into effect those matters which are left to judgment and discretion. Rights initiated under the order of September, 1909, and prior to the date of this present order will be recognized as being within the scope of the said original order. (Order of April 11, 1912)."

    The order of April 11, 1912, above quoted seems to be sufficiently broad to forbid a project manager from acquiring any interest in land, either public or private, within the project over which he has jurisdiction. Any violation of this order would subject the employee to disciplinary action as an employee, even though it would not perhaps serve to make the transaction illegal, as being in conflict with statutory law.

                                                                                                                                             JOHN H. EDWARDS,

Approved: November 5, 1923.

E. C. FINNEY, First Assistant Secretary.

M-11291.                                                                                                                        November 28, 1923.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested as to the validity of a marriage by Indian custom in the Five Civilized Tribes, Oklahoma; this question being presented in connection with a determination of the heirs of Wallace Capy, a deceased member of the Chickasaw Tribe.

    The exclusive jurisdiction resting in the Secretary of the Interior to determine the heirs of deceased Indian allottees does not extend to the Five Civilized Tribes nor to the Osage Indians in Oklahoma. See the act of May 8, 1906 (34 Stat., 182-3); June 25, 1910 (36 Stat., 855-6); February 14, 1913 (37 Stat., 678-9.)

    Determination of the heirs of deceased members of the Five Civilized Tribes rests with the local courts, as to which see section 2 of the act of April 28, 1904 (33 Stat., 573), sections 2, 6, and 9 of the act of May 27, 1908 (35 Stat., 312), and the act of June 14, 1918 (40 Stat., 606).

    The issue presented not being one even primarily recognizable by this Department, I express no opinion on the question submitted other than to observe that the Supreme Court of the United States has held that a common law marriage and a marriage by Indian custom are equivalent. See Carney v. Chapman (247 U.S., 102-3).

Approved:
Assistant Secretary.

M-11108                                                                                                                  December 4, 1923.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You request my opinion in the matter of the validity of certain mining leases covering the allotments of Ta-mee-heh Quapaw, Quapaw allottee No. 157, the lands involved being described as the NE 1/4 and the NE 1/4 of the SE 1/4, Sec. 36, T. 29 N., R. 22 E., I. M., Oklahoma, 200 acres.

    Before discussing the material instruments affecting these lands as shown by the record, it may be well to revert to the legislation on which these instruments are founded. By an item in the Indian appropriation act of June 10, 1896 (29 Stat., 321-
330), allottees at the Quapaw agency were authorized to lease their restricted lands for a term not exceeding five years for mining purposes. It was also required that all deeds and other instruments in writing pertaining to real estate at the Quapaw agency should be recorded at Miami, Indian Territory, now Oklahoma. This was followed the succeeding year, however, by an item in the Indian appropriation act of June 7, 1897 (30 Stat., 62-72), the material provisions of which read:

    "That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. *     *     * Provided: That whenever it shall be made to

appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased, in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him. All acts and parts of acts inconsistent with this are hereby repealed." [Italics supplied.]

    For reasons not now altogether clear, and unnecessary here to discuss, no effort was made shortly after the passage of the later act to classify allottees at the Quapaw agency as "competent" or "incompetent," and a large number of mining leases have been executed by these Indians and placed of record at Miami; those instruments not being submitted to or approved by this Department.

    The mineral field in this locality has since proven very valuable, especially for lead and zinc. During the early part of 1917, or thereabouts, the manifest need for some supervision over these leases, particularly in behalf of some of the allottees at this agency, became so apparent that under date of April 7, 1917, regulations were promulgated wherein an incompetent member of this tribe was defined as "any Indian who has been declared by the Secretary of the Interior to be incompetent to improve or manage his restricted lands properly or with benefit to himself." Later, on November 12, 1920, those regulations were broadened somewhat so as to include minors and certain order classes of allottees, but nothing material here turns on that because all of the leases hereinafter referred to were executed prior to the last mentioned date. January 22, 1920, the Superintendent at Quapaw recommended that the allottee herein named, Ta-mee-heh Quapaw, be declared incompetent to manage her own affairs, but the order by this Department to that effect was not issued until March 26, 1920. In said order directions were given to the effect that the restricted lands allotted to or inherited by this Indian could be leased only upon such terms and conditions as the Secretary of the Interior might prescribe. That action, of course, could not impair or otherwise invalidate preexisting valid leases.

    The abstract of title and other papers submitted with the record show the following pertinent instruments affecting lands herein described, the figures at the extreme right being the page number of the abstract on which the particular instrument referred to will be found:
 

1. June 11, 1897, lease, Ta-mee-heh Quapaw, et vir Pius, To Tar Creek Oil & Gas Co.; term 10 years; royalty 5% . . . . .. . . . . . . . . a/4
2. May 1, 1899, assignment by Tar Creek Oil & Gas. Co., above lease, among others, to the American Zinc Lead & Smelting Co..... ...................................................................................................................................................................................................................... a/10-11
12. October 10, 1913, sublease, S. C. Fullerton to O. S. Picher; term ending July 1, 1923; royalty 12 1/2%....................................... a-24
13. October 27, 1913, lease, Ta-mee-heh Quapaw to Paul A. Ewert; 10 years; royalty 5% ................................................................. a/22
14. May 28, 1918, cancellation and surrender, S. C. Fullerton to Ta-mee-heh Quapaw, all leases prior to May 25, 1918 (if recorded, not so shown by the abstract) .................................
15. February 10, 1920, lease, Ta-mee-heh Quapaw to S. C. Fullerton; 10 years from date; royalty 71/9% (not recorded) .....................
16. March 26, 1920, order by the Secretary of the Interior declaring Ta-mee-heh Quapaw to be incompetent, pursuant to the act of June 7, 1897, supra ........................................................................................................................................................................................ a/33

    Aside from technical defects that may exist in any of the above instruments, such as errors in description, failure to properly execute, etc., there remains still another material element to be considered. In the case of United States v. Noble (23 U.S., 74) the Supreme Court had occasion to consider the scope of the legislation above referred to. Therein it was held, in brief, that by the act of June 7, 1897, supra, allottees at the Quapaw agency were permitted to lease their restricted lands for mining purposes for terms of ten years and no longer; that leases "in possession" only could be made; not leases "in future" or "in revision"; that is, having granted one lease concededly valid for the full period authorized by the statute an allottee could not, during the continuation of that term, grant another lease of the same lands, or even a lease to take effect at the expiration of an existing lease. This practice which had been indulged in so freely by the Indians and their lessees gave rise to the so-called "overlapping leases" which the court emphatically held to be void. The court did say, however (p. 83) that an agreement for a new lease at a fair rental made shortly before the expiration of an existing lease, would doubtless be sustained in equity. These same principles have been applied and upheld in a recent decision by the same court involving leases for agricultural purposes made by a full-blood allottee of the Cherokee Tribe, Oklahoma., See Bunch v. Cole, No. 33 October term, Supreme Court (decided November 19, 1923).

    Nothing is found in the record now before me tending to impair the first lease dated June 11, 1897, covering the lands here involved. Conceding that lease to have been valid when made, necessarily the subsequent leases numbered 3, 4, 5 and 6, above, were overlapping leases, and therefore void. July 25, 1911, these lands were again free to be leased; hence, the lease of that date (No. 7 above) may well be conceded as the second valid lease covering these premises. This being so, the subsequent lease dated August 25, 1911 (8 above) was an overlapping lease and hence void. The as-
 

signment dated September 30, 1913, based on the latter lease (No. 11 above) falls, of course, with the lease on which it is predicated. Apparently the leases dated August 12, 1912, and July 23, 1913 (9 and 10 above), were designed to extend or continue, the ten-year terms provided for in the Prior lease of July 23, 1911 (No. 7) by the same parties, although an interval of eight days elapsed between the expiration of lease No. 7 and the beginning of  lease  No. 9. Be this as it may, however, clearly leases Nos. 9 and 10 were "in futuro" and therefore void under the rule laid down in the Noble case, supra.

    On October 10, 1913, Mr. S. C. Fullerton, the lessee under the second lease herein conceded to be valid, sublet these lands to one 0. S. Picher, for a term ending July 1, 1923, at an increased royalty of 12 1/2% (No. 12 above). It may be observed at this point that no practical development of the mineral resources underlying these lands appears to have been undertaken until the Eagle-Picher Lead Company, as the successor in interest to  of assignee of O. S. Picher, began operations under this sublease from Mr. Fullerton.

    No difficulty, of course, is encountered indexing the lease dated October 27, 1913, in favor of Paul A. Ewert (No, 13 above) to be void as an overlapping lease. May 28, 1918, Mr. Fullerton entered into an agreement with this allottee by which he attempted to surrender and cancel all outstanding leases prior to May 25, of that year (No. 14 above). This agreement does not appear of record in so far as the abstract of title shows, and the Eagle-Picher Company remained in possession and occupancy of these premises under the sublease from Mr. Fullerton, dated October 10, 1913, the term of which provided for therein did not expire until July 1, 1923. By that sublease Mr. Fullerton had put in beyond his power to cancel and surrender his own lease covering these lands, without the consent of his subleasee. Vested rights so created can not be thus impaired. This principle was somewhat more fully discussed in a prior opinion by me dated July 31, 1923 (M. 10506) wherein a similar situation was before me involving the allotment of Ton-gah-hah Beaver, Quapaw allottee No. 152. The attempted cancellation and surrender being ineffectual, the subsequent lease dated February 20, 1920 (No. 15 above), clearly is an overlapping lease and therefore void. It may also be  pointed out that the lease last mentioned does not appear to have been recorded at Miami, and under other circumstances that fact might have a material bearing on its validity, for the act of June 10, 1896, supra, requires that all instruments of this nature affecting lands at the Quapaw agency should be recorded at Miami.  Having found this lease to be void on other grounds, however, renders it unnecessary to further consider the necessity for recording.

    Payment to and acceptance by an officer or employee of the Government of the rental or consideration agreed to be paid under a void lease or other instrument does not render such instrument valid. Hence, the fact that subsequent to March 26, 1920 (the date on which the allottee herein named was declared by this Department to be incompetent) , the superintendent at the Quapaw agency accepted from Mr. Fullerton royalty at the increased rate agreed to be paid by him under the void lease of February 20, 1920, can not give life or validity to that instrument.

    From the facts at hand, I am of the opinion that there is now no valid outstanding mining lease covering the allotment hereinabove described.

 Approved: Assistant Secretary.
 

M-10526.                                                                                                              December 13, 1923.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    On recommendation of the Commissioner of Indian Affairs my opinion is requested in regard to the enrollment and allotment of Seper Willior, a deceased Creek Indian. The request is based on a petition filed by W. H. Dill et al., purchasers of the land covered by the allotment from the heirs of Seper Willior, for the issuance of patent to said heirs.

    This Indian, who died prior to application for enrollment, was enrolled by the Commission to the Five Civilized Tribes, known as the Dawes Commission, under a provision in the act of March 1, 1901 (31 Stat., 861, 870), approving an agreement with the Creek Nation, which directed said Commission to enroll all citizens who were living on April 1, 1899. The enrollment of Seper Willior was approved by the Secretary of the Interior March 28, 1902, and with said approval became part of he enrollment records of the Commission. An allotment of lands was subsequently made to his heirs under a further provision of said act that if any citizen should die after April 1, 1899, and before receiving an allotment, the lands to which he would have been entitled if living should descend to his
 

heirs according to the laws of descent and distribution of the Creek Nation and be allotted and distributed to them accordingly. The effect of this provision was to vest title in the heirs by operation of law. Skelton v. Bill (235U.S., 206). An allotment certificate was issued to the heirs and on March 12, 1903, a patent or deed running to said heirs was executed by the Principal Chief of the Creek Nation which was approved by the Secretary of the Interior April 25, 1903, as provided in the act of March 1, 1901, and was recorded on the books of the Commission. Apparently relying on the foregoing the lands were sold by the heirs of Seper Willior and title is now claimed to be in the above-mentioned petitioners.

    The patent or deed executed by the Principal Chief of the Creek Nation and approved by the Secretary of the Interior bears the following notation: "Canceled July 25, 1904, P. Porter, Principal Chief". The signature of the Principal Chief is also clipped from the instrument. Attempt is made to explain this notation and mutilation on the theory that as there are two unexecuted deeds the intention was under changed practice to issue two deeds instead of one thus separating the allotted lands into homestead and surplus. The supposition is that with this end in view the Principal Chief made the notation in question and clipped his name from the deed, but no new deeds were ever executed and under instructions the forms were returned to the member of the Commission in charge.

    The right of Seper Willior to enrollment and allotment was subsequently questioned and hearings were had with the final result that the following notation approved by the Department September 20, 1909, was placed opposite his name on the roll of the Creek Nation: "Died prior to April 1, 1899: not entitled to allotment". Upon application of The heirs the matter was re-opened and after extended correspondence and taking of further testimony the Department on November 12, 1912, approved the recommendation of The Indian Office that the above notation be allowed to stand.

    The original petition of W. H. Dill was filed in June, 1917, it being set forth therein that relying on the record the land covered by said allotment was purchased in good faith from the allottee's heirs for a valuable consideration; that the purchaser had been in continuous possession and had placed valuable improvements on the land; and that by the change in the enrollment record due to the notation referred to a seeming cloud was cast on the purchaser's title. It was accordingly requested that a new deed or patent be issued to the heirs. No action was taken on this request further than to call for reports in the premises until attention was again invited to the matter by the Superintendent of the Five Civilized tribes under date of March 19, 1923.

    The questions submitted for opinion are substantially whether the notation on the Creek roll opposite the name of Seper Willior was effective to cancel his enrollment and also the allotment to his heirs and whether the Secretary has authority to issue a new deed or patent to the heirs.

    It is reasonably clear under all the circumstances that the notation in question could not have had the effect of canceling this enrollment made by the Commission to the Five Civilized Tribes and approved by the Department. It doubtless was an indication of the view that Seper Willior was not entitled to enrollment and that the allotment made to his heirs ought for that reason to be canceled but such notation standing alone was ineffective to concel his name from the approved roll. No action has been taken looking to the cancellation of the deed and of course the notation of the Principal Chief

thereon was ineffective, said deed having been approved by the Secretary of the Interior and recorded. Even if cancellation was the purpose in view by the notation on the roll there was no authority at the time for striking the name of Seper Willior therefrom. The act of March 1, 1901, supra, provided:

    "The rolls so made by said Commission, when approved by the Secretary of the Interior, shall be the final rolls of citizenship of said tribe, upon which the allotment of all lands and the distribution of all moneys and other property of the tribe shall be made, and to no other persons".

    In section 2 of the act of April 26, 1906 (34 Stat., 137). the date for the completion of the rolls of the Five Civilized Tribes was fixed for March 4, 1907, the provision reading:

    "That rolls of the tribes affected by this act shall be fully completed on or before the fourth day of March, nineteen hundred and seven, and the Secretary of the Interior shall have no jurisdiction to approve the enrollment of any person after said date".

    The purpose is plainly indicated by this provision and prior legislation that the rolls were to be made to show conclusively the names of those entitled to share in the tribal property and for that purpose should be final. The notation in question was made at a time when under decisions of the courts there was no authority to strike a name from an approved roll except under decree of court. It was held in the case of United States v. Wildcat
 

(244 U.S., 111, 118, 119, 120), after reference to the Creek agreement of 1901 and the Dawes Commission, and where it was insisted that the Indian die prior to April 1, 1899:

    "There was thus constituted a quasi-judicial tribunal whose judgments within the limits of its jurisdiction were only subject to attack for fraud or such mistake of law or fact as would justify the holding that its judgment were voidable. Congress by this legislation evidenced an intention to put an end to controversy by providing a tribunal before which those interested could be heard and the rolls authoritatively made up those who were entitled to participate in the partition of the tribal lands. It was to the interest of all concerned that the beneficiaries of this division should be ascertained. To this end the Commission was established and endowed with authority to hear and determine the matter.

    When the Commission proceeded in good faith to determine the matter and to act upon information before it, not arbitrarily, but ac cording to its best judgment, we think it was the intention of the act that the matter, upon the approval of the Secretary should be finally concluded and the rights of the parties for ever settled, subject to such attacks as could successfully be made upon judgments of this character for fraud or mistake.

    We think the decision of such tribunal, when not impeached for fraud or mistake, conclusive of the question of membership in the tribe, when followed, as was the case here, by the action of the Interior Department confirming the allotments and ordering the patents conveying the lands, which were in fact issued. If decisions of this character may be subject to annulment in the manner in which the Government seeks to attack and set aside this one, many titles supposed to be secure would be divested many years after patents issued, upon showing that the decision was a mistaken one. The rule is that such decisions are presumably based upon proper showing, and that they must stand until overcome by full and convincing proof sufficient within the recognized principles of equity jurisdiction in cases of this character to invalidate them. Maxwell Land Grant Case, 121 U.S. 325, 379, 281; Colorado Coal & Iron Co. v. United States, 123, U.S. 307."

In the Decision in the above case was followed by that of United States v. Atkins (260 U.S., 220, 225-6), wherein it was said:

    "It must be accepted now as finally settled that the enrollment of a member of an Indian tribe by the Dawes Commission, when duly approved, amounts to a judgment in an adversary proceeding determining the existence of the individual and his right to membership subject of course, to impeachment under the well established rules where such judgments are involved".

    The above decisions are in themselves a convincing answer to the questions submitted for opinion. It may be stated further, however that the record taken as a whole is wanting in conclusive proof that Seper Willior did in fact die prior to April, 1899. It appears that suit was filed in this matter and later dismissed indicating that the proof was not sufficient to maintain action of the kind.

    While it is plain that the notation on the roll opposite the name of Seper Willior was ineffective under the order of September 20, 1909, to cancel his enrollment or the allotment made to his heirs the fact is that so long as it is of record it constitutes a cloud on the title of the purchasers. Therefore in the matter of relief it is not sufficient merely to find that such notation was ineffective but the order on which it was based should be annulled and appropriate note thereof made on the roll. It is clearly within the power of the Secretary of the Interior to direct the execution and delivery in the regular way of a new deed or patent to the heirs which should embody a declaration that it is issued to be effective as of the date and in place of the original instrument mutilated by the Principal Chief of the Creek Nation.
 
 

Approved:
Assistant Secretary.

M-11410                                                                                                                            January 28, 1924.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You request my opinion in the matter of issuing patents for certain lands in Montana withdrawn
 

for power-site purposes, which have been allotted in severalty to members of the Flathead Indian Tribe, the particular point at issue being whether the patents should contain a clause reserving to the United States the power possibilities within such
lands. Incidentally this raises also some question as to the status of the surplus lands of the former Flathead Indian Reservation.

    By treaty date July 16, 1855 (12 Stat., 975) the confederated Flathead tribes ceded to the United States the large territory formerly claimed by them. Within this area, however, and as a part of the consideration for that cession, there were set aside and reserved for the exclusive use and occupancy of these Indians that particular tract of land described in Article II of the treaty, embracing in round numbers some 1,500,000 acres. The diminished reservations so established remained practically intact until after the passage of the act of April 23, 1904 (33 Stat., 302), in which Congress outlined a comprehensive scheme for the disposal of the lands within this reserve. After providing for a survey of the reservation the act mentioned authorized allotments in severalty to the Indians, the classification and appraisal of the unallotted lands, and the opening of the latter to settlement and entry by proclamation of the President under our general homestead, mineral and town-site laws, except the land classified as timber and except also sections 16 and 36 in each township (or the equivalent) which were granted to the State for school purposes. The last section of that act (section 16) disclaimed any intent on the part of the United States to purchase any of these lands or to guarantee to find purchasers therefor (except the State school lands), it being the intent simply that the United States would act as trustee for the Indians in the disposal of their lands for their benefit. By subsequent enactments several sections were added to the basic Flathead allotment act of 1904, but with these we are not here greatly concerned other than one found in the act of March 3, 1909 (35 Stat., 781-786), which reads in part:

    "Sec. 22. That the Secretary of the Interior be, and he is hereby, authorized, in his discretion, to reserve from location, entry, sale, or other appropriation all lands within said Flathead Indian Reservation chiefly valuable for power sites or reservoir sites, and he shall report to Congress such reservations."

    May 22, 1909, the allotment, classification and appraisement work within this reservation having been completed, by proclamation of that date the President declared the surplus lands would be opened to settlement and entry on the date and
in the manner therein specified (37 L.D., 698). Subsequently, the date of opening to public entry was postponed to November 1, 1910 (40 L.D., 57) but nothing material here turns on that as, on expiration of the date fixed by the President, the Flathead Indian Reservation, as originally constituted, practically ceased to exist. That action, of course, did not affect the title to the lands allotted to the Indians or to those areas still reserved for administrative or other purposes. Neither did it deprive the Indians of their right to the proceeds from any use or disposal of the unallotted lands within their former reservation. As to the latter, see Ash Sheep Company v. United States (252 U.S., 159).

    By section 1 of the act of June 25, 1910 (36 Stat. 847), the President was authorized to withdraw temporarily from settlement, location, sale or entry any of the "public lands of the United States", and to reserve the same for water-power sites, irrigation, classification, etc., pending further action by Congress. Of similar import is section 13 of another set of the same date (36 Stat. 855-858) which authorizes the Secretary of the Interior to reserve from location, entry, sale, allotment, or other appropriation, pending further action by Congress, any lands within any Indian reservation valuable for power or reservoir sites, or needed in connection with any irrigation project. It is stated in the record now before me that the lands immediately here involved were withdrawn by the President on September 10, 1913, under authority of the act of June 25, 1910 (36 Stat. 847), by inclusion in power-site withdrawal No. 397. It is to be understood therefore that those lands had previously been opened to settlement and entry under the prior proclamation referred to.

    The act of February 25, 1920 (41 Stat. 452), further authorized the Secretary of the Interior to make allotments to certain Indians of the Flathead tribe from any unallotted or unsold lands "within the original limits of the Flathead Indian Reservation," and it is primarily under the latter statute that the allotments here now have been made. However, when we consider the scope of the two acts of June 25, 1910, supra, they manifest a clear intent on the part of Congress to withhold from further disposal any unappropriated lands chiefly valuable for power-site purposes, whether those lands be public lands or tribal Indian lands. Further action by Congress in the matter is to be found mainly in the act of June 10. 1920 (41 Stat. 1063), commonly referred to as the Federal water power act, which affords a complete method for the development and utilization of hydro-electric power within the public lands and reservations of the United States. Whether the lands here involved therefore were originally withdrawn for power-site