Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.851-875

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OPINIONS OF THE SOLICITOR

SEPTEMBER 8, 1938

partment should lay down requirements before the tribe may take action in this field.

2. The Indian courts under the departmental regulations and most tribal codes are not now handling the disposition of restricted properly, real or personal. The Department has exercised jurisdiction over the inheritance of such property, and with reasonable legal justification since the Department is responsible as guardian for such property. Therefore, while the tribe has the legal right to provide, for the distribution of restricted personal property, until it takes formal action to do so, I agree that the Department may continue the distribution of such property and request formal tribal action before discontinuing such distribution.

3. Where there are no Indian courts at present, the Department may proceed with the distribution of real and personal property as provided for in the probate regulations until such time as the tribe takes formal action directed toward handling this matter through its own agency.

Attached hereto are copies of a letter received by me from Fern Miner, a Cheyenne River Sioux Indian, of White Horse, South Dakota, relating to her inability to obtain support for her illegitimate child, and of my reply to her. In accordance with a statement in my letter, I am referring the matter to you in order that the matter may be taken up with the Superintendent, particularly with reference to Miss Miner's alleged inability to enlist the aid of the local agency.

In referring the matter to you I might offer a few comments on the case. It is possible that some of the difficulty Miss Miner has run into is due to the fact that, while it was an Indian Court, operating under the departmental Law and Order Regulations, approved November 27, 1935, which issued the order in her case, the Cheyenne River Sioux Tribal Council, in a series of ordinances numbered 5-11, passed on October 6, 1937, adopted a tribal law and order code and authorized the setting up of a tribal court. This action, however, would not invalidate existing judgments of the former court nor does it impair the authority of the Department to enforce such existing judgments by requiring the Indian defendant to make the payments provided for from restricted funds under the control of the Department. Accordingly it is suggested that the Superintendent be instructed to make payments in accordance with the judgment from any restricted funds the Indian defendant may have to his credit at the agency.

It may, of course, develop that the Indian is without funds. In that event I suggest that consideration be given to such other remedies as may be available for the enforcement of the father's obligation to contribute to the support of his child either under departmental authority or pursuant to the law and order code adopted by the tribe under its constitution and bylaws.

The attached letters to Senator Thomas and Hargrove Hudson concerning the development for oil and gas mining purposes of lands allotted to Elmore Pratt, a deceased Citizen Potawatomi Indian are returned for further consideration.

Mr. Hudson holds a departmental oil and gas lease on an undivided one half interest in the land, which interest was inherited by Sadie Alice Pratt, a restricted Indian. The remaining one half interest was inherited by Amanda Pratt, a white woman, who has made sundry conveyances of mineral interests. Mr. Hudson has heretofore suggested that a fee patent be issued to Amanda Pratt for her interest in the land. The above letters demand as a condition precedent to issuance of the fee patent that the Departmental lease on the restricted one half interest be modified so as to include the remaining interest in the land and to provide for supervision over the entire acreage by the Department. The object is desirable but the demand is without legal justification.

The interest inherited by Amanda Pratt, she being a white woman passed to her free from restrictions. Departmental jurisdiction then terminated and Mrs. Pratt became invested with unrestricted

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 13, 1938

control, with full power of disposal. Levindale Lead Co. v. Coleman, 241 U.S. 432; Mixon v. Littleton, 265 Fed. 603; Unkle v. Wills, 281 Fed. 29, 35. Such unrestricted control and power of disposal is unaffected by the fact that the legal title may remain in the United States until fee simple patent issues. The unrestricted power of control and disposal depends in no way upon issuance of patent. It may be exercised before patent issues and in such event the patent, when issued, inures to the benefit of the grantee. Mixon v. Littleton, supra. Nonissuance of the patent, therefore, constitutes no valid ground for reassumption of departmental jurisdiction nor may it be properly used as a basis for a demand that the parties submit to departmental jurisdiction. Any proposal so to do savors strongly of an abortive effort to reimpose by administrative action restrictions which have lawfully terminated.

In view of the foregoing and of the fact that the duty of the Department to issue to Mrs. Pratt a fee patent for her unrestricted interest in the land is purely ministerial and may be required by mandamus, I suggest that steps looking to the issuance of the patent be taken and that the parties be so advised.

The attached proposed letter to Superintendent H. A. Andrews, of the Quapaw Agency, Oklahoma, is returned herewith for such revision as will make clear that the Department holds that State sales taxes are properly chargeable only on purchases made by individual Indians, but not on those made by Indian tribes and other Indian corporate bodies, whether or not organized under the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967).

Superintendent Andrews' letter of June 23, 1938, as a matter of fact, does not raise any question concerning the applicability of the State sales tax to purchases by Indian corporations. It is concerned with purchases made by Indians from funds loaned to them from the revolving credit fund by a tribal corporation or by the United States directly. Concerning such purchases, while there may be technical grounds for holding that, if they are made in the form of purchase orders, and if title to the articles is taken in the name of the United States, the State sales tax is not strictly chargeable, I believe that the Department should interpose no objection to the imposition and payment of the tax. When funds are made available to an individual Indian, and he is making purchases in the open market, I see no real reason why he should not be on the same footing with every other purchaser of goods in the State.

A contrary holding would create a tremendous bookkeeping problem for the agency officials. It would require a record of all Indian purchases, however small, and would be burdensome not only on the agency personnel but also on the Indians. The administrative difficulties, if there were no other reason, would seem to me sufficient grounds for holding that individual Indians must pay the sales tax, as other purchasers do, regardless of the source of the funds used in making their purchases, and regardless of the manner in which the title to the articles is held.

The proposed letter fails to make any distinction between purchases by individual Indians and purchases by tribal corporations. The last paragraph would hold that "State sales taxes are properly chargeable on purchases from the corporation's credit funds." This statement is not correct since purchases by a tribal corporation are exempt from State taxation. If the letter was intended to apply only to purchases by individual Indians using funds advanced to them as loans from corporation credit funds, the language should be clarified.

I am returning herewith the attached proposed letter to Superintendent O. C. Upchurch of the Tulalip Agency, Washington, holding that the State sales tax is properly chargeable on purchases made from trust funds for the rebuilding and operation of the community fish traps on the Swinomish Indian Reservation.

From all that appears in the correspondence on this case, the purchases here involved were made by the Swinomish Indian Tribal Community, orga-

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OPINIONS OF THE SOLICITOR

OCTOBER 4, 1938

nized under a constitution and bylaws, approved on January 27, 1936, and a charter, ratified July 25, 1936, pursuant to sections 16 and 17 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The cast does not seem to involve purchases by individual Indians, although the letter from the Washington Tax Commission, signed by D. H. Webster, Counsel, to the Tulalip Indian Agency, apparently relates only to such purchases.

I believe Mr. Webster is correct in regards to purchases by individual Indians, even when they are made from trust funds, as I have pointed out in a memorandum to you of even date, but this does not justify the holding of the letter which seems to extend the principle to purchases by a tribal organization. Such an organization is a Federal instrumentality and, as such, is exempt from Federal and State taxation. (See Solicitor's Opinions of December 13, 1934, M. 27810, and June 30, 1937, M. 29156) Section 2 of the charter of the Swinomish Indian Tribal Community specifically refers to the tribe as a Federal instrumentality with this idea in mind.

In letters to Superintendent J. C. Cavill, of the Great Lakes Agency, and to Mr. W. J. Schroeder, Division Manager, Deep Rock Oil Corporation, Milwaukee, Wisconsin, approved on June 21, 1938, by Assistant Secretary Chapman, the Department held that the Lac du Flambeau Tribe was for the foregoing reasons exempt from Federal and State gasoline taxes on fuel purchased with rehabilitation funds granted to the tribe for use in connection with a tribal sawmill. Likewise, on August 1,
1938, the Department telegraphed Superintendent E. R. Fryer, of the Navajo Agency, Arizona, that supplies purchased with rehabilitation tribal trust funds carried as individual Indian money were exempt from Federal, State and local taxes.

In view of these prior holdings by the Department, and the rulings of this office, referred to above, holding that Indian tribes are Federal instrumentalities not subject to Federal and State taxation, I believe it would be unfortunate if the proposed letter were sent out. If it were limited to the particular problem discussed by the Washington Tax Commission, I would have no objection to it, but since it seems to include not only purchases by individual Indians but purchases by Indian tribes as well, I believe it should be rewritten to make clear just exactly what taxes are to be regarded as properly chargeable against in

The matter of the extension of the Blue Ridge Parkway across the Eastern Cherokee Reservation in North Carolina has for some time had the consideration of the National Park Service, the Indian Service and representatives of the State of North Carolina. Proposals heretofore made for the extension of the parkway across the reservation have been predicated upon obtaining the consent of the Eastern Band of Cherokee Indians. Such consent having so far been withheld, a new proposal involving a change in the location of the parkway and its construction without the consent of the Indians has been submitted for your approval..

The new proposal contemplates a grant to the State of North Carolina of the fee simple title to or a right of way easement over a strip of the reservation lands varying in width from 800 to 1200 feet. Subject to certain privileges to be retained by the Indians the State proposes to pay as compensation for the lands taken a lump sum of $40,000 or $30 per acre, whichever sum is the larger. The right of way when acquired by the State is to be reconveyed to the United States.

At a conference had with you on September 1, in which representatives of the State Highway and Public Works Commission of North Carolina, the National Park Service and the Indian Service participated, you indicated a willingness to make the proposed grant to the State of North Carolina provided the necessary legal authority therefore exists. The question of your authority to make the grant has therefore been referred to me for an opinion. In the event the authority be found lacking my opinion has been requested on the further question of whether the parkway right of way may be acquired by condemnation under the applicable laws of the State of North Carolina.

The Eastern Band of Cherokee Indians originally was a part of the Cherokee Nation. When that Nation removed to Oklahoma the Indians comprising the Eastern Cherokee Band chose to remain in North Carolina. Lands were acquired there by and for them independent of the Federal Government. They became incorporated under the laws of the State of North Carolina. While some doubt as to the status of this group of Indians existed in earlier

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DEPARTMENT OF THE INTERIOR

OCTOBER 4, 1938

times, it is now established that they are wards of the United States and subject to its guardianship powers to the same extent as other Indians tribes. See United States v. Wright 53 F (2d) 301; United States v. Colvard, 89 F (2d) 312. Under authority of the act of June 4, 1924 (43 Stat. 376), the lands of these Indians were conveyed to the United States in trust. In considering your authority with respect to those lands it is well to bear in mind that the power of Congress thereover is absolute. Cherokee Nation v. Georgia, 5 Pet. 1; Cherokee Nation v. Hitchcock, 187 U.S. 294; Lone Wolf v. Hitchcock,
187 U.S. 563. As Secretary of the Interior you have only such authority over the lands of these Indians as has been confided in you by Congress. Any action taken by you in contravention of the laws enacted by Congress would of course be ultra vires and void.

Turning to the applicable statutes, mention may first be made of the act of June 4, 1924, supra. Looking to the final disposition of the affairs of the Eastern Band of Cherokee Indians that act provided for a final membership roll and the allotment of the lands in severalty to the Indians whose names appeared on that roll: Section 5 provided that reservations from. allotments might be made in the discretion of the Secretary of the Interior of lands for various purposes including rights of way. Section 5 further provided that the land so reserved and not needed for allotments might be sold upon such terms and conditions as the Secretary might prescribe. No reservations under authority of this section have been made and none may now be made for the purpose of sale because (1) Congress by the act of March 4, 1931 (46 Stat. 1518), deferred the making of allotments in severalty until it otherwise directed, and, as the power to reserve and sell could be exercised only in carrying out the allotment scheme, such power appears likewise to have been deferred by the act of March 2, 1931; (2) the Eastern Band of Cherokee Indians Reorganization Act of June 18, 1934 (48 Stat. 984). That act not only evinces the purpose through its numerous sections of retaining lands in tribal ownership but with exceptions not here material it expressly prohibits the alienation of restricted lands whether individually or tribally owned. See particularly sections 4 and 17 of the act. These statutory provisions make it plain that no authority exists for the conveyance in fee to the State of North Carolina of the proposed parkway right of way.

With respect to the grant of a right of way in the nature of an easement to the State of North Carolina it is suggested in the submission that the act of March 3, 1901 (31 Stat. 1058, 1084), confers the necessary authority. Section 4 of that act reads:

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OPINIONS OF THE SOLICITOR

OCTOBER 4, 1938

It has been suggested that the act is without application because the location now proposed for the parkway differs from that under consideration by Congress when the Act of August 19, 1937, became law. The suggestion is without merit. The Act mentions no particular location for the parkway. It does mention the Blue Ridge Parkway and its provisions are plainly applicable thereto irrespective of the location of the parkway so long as it mosses the Eastern Cherokee Reservation.

The record shows that, notwithstanding the requirement of section 2 of the act that a favorable vote on the parkway be had at an election to bc arranged and supervised by the Tribal Council within 60 days after the passage of the act, no such election was ever held. While the act does not in terms say what the effect of the failure to hold an election would be, the general intent of Congress is clear. Your authority to make the grant was made to depend upon a favorable vote. Without such a favorable vote the authority is withheld and does not exist. Section 2 of the act declares that the results of the election shall be final. Had an election been held and had the vote thereat been adverse, such adverse vote would have constituted a final disposition of the matter, precluding favorable action by you without further legislation by Congress even though the consent of the Indians had been given at a later date. No less finality can be ascribed to nonaction by the tribe due to a failure to hold an election without disregarding and hence nullifying the statutory requirement that the election be called within 60 days after the date of the act. This, administrative officers of the Government are without authority to do.

It is important to notice that the act of August 19, 1937, was enacted after full consideration by Congress and its committees of the arguments advanced for and against the projection of the Blue Ridge Parkway into the Eastern Cherokee Reservation. Upon such full consideration Congress saw fit to withhold the authority until, along with other conditions, the consent of the Eastern Band of Cherokee Indians had first been given and required that such consent be given within a limited time. The conditions not having been met there is now no authority under which this particular right of way may be granted with or without the consent of the Indians. Accordingly, the matter is one for further consideration by Congress.

The question of whether the desired right of way may be acquired by condemnation under the laws of the State of North Carolina may be briefly disposed of. Congress has not yet enacted legislation authorizing the condemnation of lands held in trust by the United States for an Indian tribe. Without such legislation condemnation proceedings affecting the land may not be maintained by the State in either the State or Federal courts. The reason for this is aptly stated in the United States v. Minnesota, 95 F. (2d) 468. The court said:

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DEPARTMENT OF THE INTERIOR

OCTOBER 15, 1938

I believe the matter dealt with in the attached proposed letter to Senator Lynn J. Frazier of North Dakota requires further consideration and I am, therefore, returning it with a suggestion for a somewhat different method of handling it.

The letter itself gives the impression that the Department can sustain two propositions which I believe not to be well founded. On the one hand, the assertion is made that since Mr. Deegan is a member of the tribe by virtue of his inclusion on the April 1, 1935, census list, which was used as the basis of tribal membership in section 1, Article II of the Fort Berthold Constitution, he must continue to be subject to the orders of the local Indian court, and to tribal ordinances as well, just as the other members of the tribe are subject to them. This is, of course, correct. Mr. Deegan, however, is a Canadian Indian, and it may well be that he
might desire to terminate his membership at some future time. It is quite clear that he has a perfect right to do so. Likewise, he could be dropped from membership by action of the Tribal Council through the operation of appropriate ordinances enacted, subject to review by the Secretary of the Interior, pursuant to section 2, Article II of the Fort Berthold Constitution. These possibilities, it seems to me, should be part of any reply which may be made to a complaint as Mr. Deegan has made. It is true that he is subject to the local Indian court and the tribal ordinances as long as he is a member. It is further true that he would be subject to them as long as he resides on the reservation. Whether he retains or is allowed to retain his membership makes a difference, however, in answering the additional question of his liability or immunity to being removed from the reservation for obstructive refusal to submit to proper orders of the local court and local law, which is the second problem raised by the letter.

Mr. Deegan cannot be removed from the reservation as long as he remains a member of the tribe. An order to him to leave, with or without his family, issued to him at the present time by either the tribal authorities or the Superintendent would be without authority, and the warning which was apparently given to Mr. Deegan could not, therefore, be carried out. If, however, Mr. Deegan voluntarily, surrendered his membership or it were terminated by action of the Tribal Council, and he thereafter persisted in his recalcitrant attitude, he could be removed by the Council acting under appropriate ordinances enacted under section 3 (d), Article VI, of the Fort Berthold Constitution. This power is, however, exclusive. The agency officials do not any longer have such power, nor does any agency of the Government such as the local Indian court. The act of May 21, 1934 (48 Stat. 787), repealed sections 2147-2149 of the Revised Statutes under which this power was once vested in the local agents of the Government.

Neither of these points, it seems to me, are made sufficiently clear in the proposed letter. In addition, it seems to me that a simpler way to handle the matter would be by means of three letters, one to Senator Frazier, one to Mr. Deegan, and the third to Superintendent Beyer, each dealing specifically with the problems raised in their particular correspondence. I am transmitting with this memorandum, therefore, three suggested drafts for such letters. They are offered for such use as you may wish to make of them.

Acting Solicitor.

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OPINIONS OF THE SOLICITOR

OCTOBER 19, 1938

You referred to this office for consideration a letter from the Superintendent of the Umatilla Indian Agency dated August 9, 1938, raising certain questions concerning workmen's compensation in connection with the Burns Community Rehabilitation Project. The Superintendent transmitted a letter from the State Workmen's Compensation Commission holding that the State Law did not apply to any W.P.A. or other Federal projects and assuming that the project at Burns was a Federal project similar to a W.P.A. project. In view of this decision, the Superintendent asked whether the workmen's compensation policy being evolved in the Indian Office for rehabilitation projects was available and if not, whether precautions should be taken against suit in case of serious accident "by notifying the workmen, or having them sign a waiver for such benefits, prior to going on the job." It is understood that the Indian Office plans for obtaining workmen's compensation protection for tribal rehabilitation projects have not yet been completed.

Although the State Workmen's Compensation Commission has determined that the State law does not apply to this enterprise, certain legal propositions bearing upon the application of the State law should be pointed out.

The Act of Congress of June 25, 1936 (49 Stat. 1938), provides that the State Workmen's Compensation authorities shall have power to apply such laws to lands owned by the United States within the State and to Federal projects. Because of the importance of the wording of this law, it is set forth in full as follows:

It would therefore appear that the State workmen's compensation law can apply to this rehabilitation enterprise unless there is federal law relating to Indians which would prevent it. In the Solicitor's memorandum of October 20, 1936, it was held that the Wisconsin workmen's compensation law did not apply to the Menominee Indian mills on the Menominee Indian Reservation, since (1) State laws did not apply to Indian tribes on Indian reservations, and since (2) the acts of Congress governing the Menominee Mills enterprise were complete in their control and did not permit of supplementary legislation by the State. In the case of the Burns Community Project, the enterprise is not carried on within a reservation and the Burns Community of Paiute Indians is probably not, strictly speaking, an

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DEPARTMENT OF THE INTERIOR

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Indian tribe, although it was treated as such for the purposes of Rehabilitation Agreement, Furthermore, the enterprise is not being carried on under acts of Congress which exercise the exclusive control of Congress over Indian affairs, but under a rehabilitation program, deriving its authority from the emergency relief acts dealing with a general situation.

If, therefore, the State law is itself so drafted as to be capable of application, the law may well apply to the Burns Community Project. The Oregon workmen's compensation law applies to all persons engaged as employers in any hazardous occupation. (Oregon Code 1930, Supp. 1935, Sec. 49-1810). The term "person" is defined to include partnerships, associations and corporations, and the term "employer" is defined to mean any person, including a receiver, administrator, executor or trustee, who shall contract for and secure the right to direct and control services of any person. Hazardous occupations are defined to include the construction and repair of buildings. (Secs. 49-1815, 49-1816 (b), 49-1817). There is no express exception of Federal or tribal enterprises. On its face, the statute appears to be applicable since the rehabilitation project involves the construction and repair of buildings and since the Burns Community may be considered as an association within the definition of the term "person". Either the Indian trustees of the Burns Community rehabilitation trust fund or the Superintendent who, under the trust agreement, has the direction and control of employment, might be considered the employer under the terms of the State law.

In view of the foregoing, it is suggested that the question again be referred to the State Workmen's Compensation Commission in the light of the 1936 act of Congress and the other matters set forth in this memorandum. In any case, the Commission should be given an opportunity to reconsider a conclusion based on an understanding that the Burns Community project is a W.P.A. project, or even a Federal Project. While this office has held that an Indian tribe operating under a Rehabilitation Trust Agreement is a Federal instrumentality (Opinion M. 29156, June 30, 1937), a tribal rehabilitation project has been held not to be a Federal project by the United States Employment Compensation Commission.

If the Commission reiterates its determination that the law does not apply to this project, the best precaution against suit which can be advised is the exercise by the responsible persons in charge of this project of extreme diligence to prevent negligent or unduly hazardous conditions or activity. I would not advise attempting to obtain from the workmen a waiver of any rights which they may have to recover for injuries sustained by reason of the negligence of the employer. Such contracts have been generally held to be contrary to public policy, both under the common law and under statutes. While the validity of such a waiver appears not to have been litigated in Oregon, the impropriety of such contracts makes it undesirable for this Department to approve their use.

You have asked for a concise statement of the law applicable to the leasing of land in the Palm Springs Reservation, for the guidance of your representatives, Mr. Woehlke and Mr. Shipe, of your local superintendent, Mr. Dady, and of the Indians concerned. I believe that the following basic principles of law will meet most of the questions that are now in issue. If further questions remain, or arise in the future, I shall be glad to supplement these general views with a consideration of specific problems that remain unsolved.

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OPINIONS OF THE SOLICITOR

OCTOBER 25, 1938

I am returning for your further consideration the attached papers which cover (1) a proposed letter to the authorities of the Rocky Boy's Tribe, and (2) a proposed letter to the authorities of the Blackfeet Tribe, both letters referring to the applicability of law and order codes to Indians who are not members of the tribe.

The letter to the Rocky Boy's Tribe contains a statement that "non-wards and others not members of the Chippewa Cree Tribe are subject to the laws of Montana." This statement is, in my opinion, erroneous for the reason that Indians who are members of other recognized tribes are not subject to the laws of Montana, at least with respect to activities on the Rocky Boy's Reservation which do not affect non-Indians. While such outsider Indians were subject to the departmental law and order regulations, where those regulations have been superseded by a tribal law and order code that is limited in its applicability to members of the particular tribe, a gap in law enforcement has been created. The proposed letter to the Blackfeet Tribe prepared in this office is an attempt to close this gap. Possibly other methods of dealing with this problem may be preferable. Your covering memorandum of October 11, however, does not deal with the Blackfeet situation at all and appears to proceed on the basis of the erroneous legal view expressed in the attached letter to the tribal authorities of the Rocky Boy's Reservation, that the laws of Montana apply on the Rocky Boy's Reservation to Indians who are members of other tribes.

I suggest that if the procedure suggested for the Blackfeet Reservation is deemed sound, from the standpoint of policy, and if there is a serious prob-

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lem on the Rocky Boy's Reservation by reason of the presence of nonmember Indians who are members of other tribes, the same procedure proposed for Blackfeet might be adopted at Rocky Boy's. In any event, the letter dealing with the Rocky Boy's situation should be corrected and a decision should be reached on the Blackfeet situation as well.

Pursuant to a request by the Commissioner of Indian Affairs in his letter of October 26, 1938, I have been asked to render an opinion on the question of whether certain lands have been acquired by the United States under authority of Title II of the National Industrial Recovery Act of June 16, 1933 (48 Stat. 200), the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat. 115), and section 55 of Title I of the act of August 24, 1935 (49 Stat. 750, 781), and which are being administered for the use and benefit of Indians under certain Indian Demonstration Projects, can be considered as base property for the issuance of grazing licenses or permits under the provisions of the Taylor Grazing Act.

It appears that the question submitted is essentially the same as that discussed in the Acting Solicitor's opinion of March 25, 1937, wherein it was stated that lands which have been purchased by the Federal Government and placed under the administration of the Office of Indian Affairs and the Resettlement Administration are such as may be properly considered as base property for the issuance of grazing licenses and permits. In view of that statement, it would appear that there is no necessity for a discussion of the question presented.

I may mention, however, that, under the provisions of the Federal Range Code, revised to August 31, 1938, which governs the issuance of grazing licenses and permits, lands in some of the Indian Demonstration Projects that are listed in an attachment to the Commissioner's letter, could not constitute base property. The Commissioner lists lands in Florida, Idaho, Michigan, Minnesota, Montana, North Dakota, New Mexico, Oklahoma, Oregon, South Dakota and Wisconsin.

In Now Mexico only waters which are owned or controlled by an applicant, and which service a part of the Federal range, constitute base property. The ownership or control of land alone does not qualify an applicant for a grazing license or permit in that State.

The Federal Range Code provides, in substance, that lands must be in or near a grazing district in order to constitute base property and, as there are no grazing districts in or near the States of Florida, Michigan, Minnesota, Oklahoma, or Wisconsin, lands in those States could not be considered as property upon which a license or permit could be based. Lands in North Dakota or South Dakota might conceivably be close enough to a grazing district in the adjoining State of Montana to entitle the owner or occupant of these lands to a license or permit to graze in that district.

Grazing licenses or permits could be issued in connection with the lands in Idaho, Montana or Oregon, provided such lands were within or near a grazing district and the other requirements of the Federal Range Code were satisfied.

The attached heirship case of An da kew, or Carrie Alberts, a Lac du Flambeau Chippewa Indian who died on January 16, 1938 deals with an estate valued at only $75. The only property involved seems to be the house of the decedent which is located on tribal lands of the Lac du Flambeau Reservation.

The Lac du Flambeau Band of Lake Superior Chippewa Indians is an organized tribe, having an approved constitution and bylaws, pursuant to section 16 of the act of June 18, 1934, (48 Stat. 984). Under its constitution the tribal council has power to "regulate the use and disposition of tribal property" (section 1 (a), Article VI), and to make as-

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NOVEMBER 28, 1938

signments of tribal lands to members of the tribe in accordance with Article VII (section 1 (g), Article VI). Section 7, Article VII deals specifically with the type of property involved in the instant heirship case. It provides that any improvements of any character upon assigned land may be bequeathed to and inherited by members of the tribe "or otherwise disposed of under such regulations as the Tribal Council shall provide."

Whether the house involved in the present case is located on land which had been assigned to the decedent is not clear from the record. The facts indicate that she had no assignment. Since, however, the building is located on tribal land, and there are applicable provisions of the constitution and by-laws to govern the disposition of such property upon the death of the holder, I believe the matter should be presented to the tribal council for consideration in the light of the record and for appropriate disposition of the property. As a structure on tribal land the house is within the control of the tribe rather than the Department.

In a letter to you dated October 10 the Indian Office requested that I render an opinion as to the applicability of the act of June 25, 1938 (Pub. No. 718, 75th Cong.), entitled "An Act to provide for the establishment of fair labor standards in employments in and affecting interstate commerce, and for other purposes", known as the Wages and Hours Act, to the Menominee Indian Mills on the Menominee Indian Reservation in Wisconsin and to the Red Lake Indian Mills on the Red Lake Indian Reservation in Minnesota. In the event that I should determine that this act did not apply to these lumber industries advice was requested whether there would be any legal objection to the adoption of a policy governing the activities of these mills which incorporated the general purpose of this act.

The relevant provisions of the Wages and Hours Act which should be pointed out at the outset are as follows: In section 2 Congress declares as a matter of policy that the existence in industries engaged in commerce or in the production of goods for commerce, of detrimental labor conditions causes the channels of commerce to be used to perpetuate such labor conditions among the workers of the several States and constitutes an unfair method of competition in commerce and leads to labor disputes obstructing the free flow of goods in commerce. Among the definitions set forth in section 3, the word "person" is defined to mean "an individual, partnership, association, corporation, business trust, legal representative or any organized group of persons". The word "commerce" is defined to mean "trade, commerce, transportation, transmission or communication among the several States or from any State to any place outside thereof". The word "employer" is defined to include "any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State * * *." The act provides for the setting up of an industry committee for each industry to recommend minimum wages and maximum hours for that industry, requires every employer to pay to each of his employees engaged in commerce or in the production of goods for commerce a certain minimum wage, and prohibits employment of any such employee for more than a certain maximum number of hours per week. It is made unlawful for any person to transport, ship or sell in commerce any goods in the production of which an employee was employed in violation of the minimum wage and maximum hour provisions upon pain of fine or imprisonment. An employer violating the act is likewise made liable to the employee affected for twice the amount of unpaid minimum wages or unpaid overtime compensation.

In order to reach a conclusion as to the application of this act to the Menominee and Red Lake Indian Lumber Mills consideration should be given to the following points:

1. These Indian mills are quite clearly engaged in the production of goods for commerce within the meaning of the act. Large shares of the products of each of the mills is shipped to points outside the State. It is reported that in 1936 at least half of the products were so shipped by each of the mills. Such interstate shipment of the products of the mills would bring these mills within the holding of the Supreme Court in the case of Santa Cruz Company v. National Labor Relations Board, 303 U.S. 453 (1938), that a canning company processing fruits and vegetables raised in the State and shipping approximately 37 percent of its finished products outside the State was engaged in an occupation substantially "affecting commerce" within the meaning of the National Labor Relations Act and was con-

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NOVEMBER 28, 1938

sequently subject to the jurisdiction of the National Labor Relations Board. While the Court stated that the precise percentage of interstate shipment was not decisive and that the question was whether the industry bore a close and substantial relation to interstate commerce in view of all the facts involved, the activities of these lumber mills would seem to be well within the ruling of the Court not only in view of the large proportion of its interstate shipment but in view of the substantial relation to interstate commerce borne by the lumber industry as a whole. If weight is given to the intent of Congress as manifested in its declaration of policy in the Wages and Hours Act, it would appear that the Menominee and Red Lake Lumber Mills come within this intent since detrimental labor conditions in these mills would affect the non-Indian lumber mills with which the Indian mills compete and thereby tend to perpetuate such conditions and constitute an unfair method of competition in commerce.

2. It appears from the foregoing that the act of Congress on its face applies to these Indian mills unless there is contained within the act some exemption which would exclude them. The Indian Office refers to the exemption of the United States contained in the definition of the, term "employer" in section 3 (d) of the act. In my opinion, however, reliance cannot be placed on this exemption in view of the long history of administrative decisions dealing with the relationship of the Menominee Indian Mills to the United States, which decisions would have indirect application to the Red Lake Indian Mills as well.

In a 1909 opinion by the Attorney General (27 Ops. Atty. Gen. 139) that officer held that the Federal employees' 8-hour law did not apply to the Menominee Indian Mills since the mills were a private enterprise conducted for the benefit of a particular tribe and not for the general benefit of the Nation. In 1933 this reasoning was again applied, in a letter from the Comptroller General to the Secretary of the Interior, November 16, 1933, to exempt the employees of the Menominee Indian Mills from the Federal Economy Act providing for a 15 percent reduction of pay of Federal employees. This decision of the Comptroller General was based upon an extensive statement of fact presented by the Secretary of the Interior in his letter to the Comptroller General of November 1, 1933, in which he stated that all expenses in connection with the lumber mills were borne entirely from Menominee tribal funds, that the business had been handled in the same manner as similar enterprises financed by private parties or operated by commercial concerns, and that the wages of the employees were adjusted from time to time to conform to those paid in private industry. Both of these rulings provided a basis for the determination by the United States Employees' Compensation Commission on September 18, 1936, that the employees of the Menominee Indian Mills could not be considered employees of the United States within the meaning of the Federal Employees' Compensation Act.

The acts of Congress relating to the Menominee Mills appear to contemplate a tribal enterprise financed exclusively from tribal funds and operated locally except for certain supervision exercised by the Secretary of the Interior. The acts of Congress governing the Red Lake Indian Mills contemplate a similar type of enterprise except that the operation of the mills is apparently under closer control by the Secretary of the Interior. These facts lead me to conclude that neither the Menominee nor the Red Lake Mills as "employers" can be considered within the exception provided for the United States as an employer. Aside from the exemption of the United States as an employer, I find no other provision of the act which expressly or by implication could be considered to exclude these Indian lumber mills.

In this connection attention is called to my opinion of June 30, 1937, holding that rehabilitation projects carried on by loans or grants to Indian tribes were exempt from the taxes laid by the Social Security Act upon employers in connection with the Federal Old Age Benefit System and the Federal Unemployment Insurance Plan. That opinion was based upon the particular wording of the Social Security Act which provided that the term "employment" should not include service performed in the employ of the United States Government or of an instrumentality of the United States (Secs. 811 (b) and 907 (5) of the act of August 14, 1935, 49 Stat. 620). Indian tribes carrying on rehabilitation projects were held in that opinion to be instrumentalities of the United States not only because of their character as Indian tribes but because they were being used as means for carrying out the relief program of the United States. Since the Wages and Hours Act does not exempt instrumentalities of the United States, the reasoning of that opinion does not apply.

3. There remains the question whether the familiar proposition that general acts of Congress do not apply to the Indians serves to exempt these lumber mills from the Wages and Hours Act. This principle has recently been discarded in a number of instances. In the case of Superintendent of the Five Civilized Tribes v. Commissioner of Internal Revenue, 295 U.S. 418 (1935), it was held that this

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NOVEMBER 28, 1938

principle did not operate to prevent Federal taxation of income from an investment of Indian funds derived from an allotment. The Supreme Court reasoned that the income of "every individual" and that the income of Indians should not be excluded by implication unless the taxation of such income would be in conflict with some agreement with the Indians or act of Congress governing Indian affairs. This reasoning would appear to cover the present case since the act of Congress is intended to embrace every industry engaged in the production of goods for commerce and since the application of the act would not to my knowledge be in conflict with any previous act of Congress. On the contrary, the previous acts of Congress which provide that these mills shall be operated from the proceeds of the mills and that no appropriation by Congress is necessary to cover the operation of the mills indicate that there are not pre-existing legislative restrictions governing the payment of wages or the designation of working hours to conflict with the requirements of the Wages and Hours Act.

In my memorandum of April 22, 1936, holding that the benefits of the Social Security Act were available to the Indians it was stated that the proposition that general acts of Congress do not apply to Indians is properly limited to situations where the statute if applied would affect the Indians adversely. The protection of this principle has previously been applied principally in cases involving the application of taxes to the Indians (see Blackbird v. Commissioner, 38 F. (2d) 976, C.C.A. 10th (1930) now overruled by the 1935 Supreme Court case, supra) and has less relevance to a statute such as the Wages and Hours Act regulating conditions of labor rather than imposing taxation. In short, therefore, I believe that. the principle of Indian exemption from general Federal laws cannot be relied upon in this instance.

4. Considerable light on the present question is shed by the experience of the Menominee Mills under the National Industrial Recovery Act. That act had a purpose similar in part to the Wages and Hours Act in that it sought to raise wages and shorten hours in industries affecting interstate commerce, to brand as an unfair method of competition the shipment of goods produced under unfair labor conditions and to set up an organization in each industry producing goods in interstate commerce to formulate a code governing labor conditions for that industry. Unless the Menominee Indian Mills participated in the lumber code under the National Industrial Recovery Act it was realized that the interstate market for its products would be jeopardized and that the availability of workers in the industry would be greatly restricted.

Accordingly, in the letter of the Secretary of the Interior to the Comptroller General of November 1, 1933, previously referred to, a second question was raised in addition to the question involving the application of the Federal Economy Act to the employees of the Menominee Mills, namely, whether the scale of wages then in effect could be increased to conform to the wage scale established in the Code of Fair Competition for the Lumber and Timber Products Industries. The Comptroller General for the reasons that led him to find that the employees of the mills were not employees of the United States gave an affirmative answer to the second question. As a result of this determination the Menominee Indian Mills and the Red Lake Indian Mills fully participated under the lumber code, paying fees to the code authority, obtaining a production quota from that authority, following the price determinations made by the authority and the regulations dealing with wages and hours. While there was no formal determination that the National Industrial Recovery Act governed these Indian lumber mills, it was recognized that these lumber mills could voluntarily participate under the act upon the assumption that it did apply to
them.

My conclusion upon consideration of the foregoing points is that the Wages and Hours Act appears to apply to the Menominee and the Red Lake Lumber Mills and that in any event there is no legal objection to their pursuing a policy of acting in conformity with the provisions of that act or with any decision of the lumber industry committee which may be established pursuant to that act. It must be recognized that no definitive answer to the question of the application of this act can be made at this time in the absence of interpretation of many of the provisions of the act by the Wages and Hours Administration and since the question is not one for this Department to settle but for the Wages and Hours Administration and for the courts in the last analysis. I would advise, however, that in view of the advantages following from participation in the lumber industry committee, and in order to obtain security against the imposition of the penalties provided in the act, it would be desirable as a legal matter to conform to the wages and hours requirements established by the act, at least until cause for exemption is found by the Wages and Hours Administration.

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DEPARTMENT OF THE INTERIOR

DECEMBER 7, 1938

At Mr. Daiker's request this morning I have given brief consideration to the question raised by the Menominee Indians whether the tribe will have the right, if a charter is granted it, to employ and dismiss at will all mill employees except the manager, in view of the 1908 act, as amended.

I do not believe that any of the provisions of the 1908 act (act of March 28, 1908, Stat. 51), or any of its amendments, would prevent the Secretary of the Interior from issuing a charter of incorporation to the Menominee Tribe in terms authorizing the incorporated tribe to manage the Menominee Indian mills and do its own hiring and firing. The issuance of such a charter appears to be authorized by the broad language of section 17 of the act of June 18, 1934, 48 Stat. 984.

The question of what restrictions are to be placed by express terms of the charter upon the right to employ and dismiss mill employees is an administrative question.

A serious question exists in my mind whether there is any proper legal basis for the organization of the Miami and Peoria Tribes of Oklahoma, proposed constitutions for which are attached hereto. Section 3 of the Oklahoma Indian Welfare Act (49 Stat. 1967) gives the right to organize to "any recognized tribe or band of Indians residing in Oklahoma". Can it be said that these two tribes are "recognized" tribes in the sense in which the term is used in the act?

The facts stated in the correspondence contained in the files accompanying the two proposed constitutions do not lead me to believe that they are. Neither group has any restricted land, either in tribal or allotted status. They have engaged in few, if any, organized activities in recent, years. Very few of the Indians involved have even one-half degree of Indian blood. They are widely scattered, with the majority of the membership of each group living apart from the original reservation areas. It is not enough that the ethnographic history of the two groups shows them in the past to have been distinct and well-recognized tribes or bands. A particular tribe or band may well pass out of existence as such in the course of time. The word "recognized" as used in the Oklahoma Indian Welfare Act involves more than past existence as a tribe and its historical recognition as such. There must be a currently existing group distinct and functioning as a group in certain respects and recognition of such activity must have been shown by specific actions of the Indian Office, the Department, or by Congress.

I suggest, therefore, that further consideration of these two proposed constitutions and by-laws be held in abeyance pending the receipt of information from the field concerning any tribal activities which either group has in the recent past conducted as a group, any actions by the Department or by Congress recognizing the separate tribal existence of the group, and such other material as may be relevant to the legal basis for their organization, including plans for their future activities.

The question was raised in your memorandum of September 10 whether section 11 of Title I of the Emergency Relief Appropriation Act of 1938 prevents instructing the Superintendents that preference for employment of Indians should be exercised in the prosecution of the rehabilitation projects conducted with funds made available by that act. The funds for these projects were made available to the Secretary of Agriculture and transferred by him to the Commissioner of Indian Affairs pursuant to the President's letter No. 2179 dated July 7, 1938, which approved projects to "provide relief for Indian tribes for persons in need." The schedule of projects thereby approved consisted of allotments to various Indian agencies.

Section 11 of the Emergency Relief Appropriation Act of 1938 (act of June 21, 1938, Public No.

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122) provides that certain aliens shall not be given employment on any project prosecuted under the appropriation.

From another point of view provisions for Indian preference may be justified by analysis of the wording of the preference provision in section 11 of the 1938 act. This provision gives first preference in employment to veterans "who are in need" and second preference to other citizens, including Indians, "who are in need." The restricting clause, "who are in need," may reasonably be construed as requiring a person seeking preference in employment on a particular project to be in need of employment on such project. White veterans and other white citizens may be said as a general rule not to be in need of employment on projects set up by the Indian Office on Indian reservations, whereas Indian veterans and other Indian citizens are in need of such employment, since the need of white persons for employment is generally cared for by various agencies and projects while the need of Indians for employment can be adequately met only through the Indian agencies and Indian projects. In other words, the rule may be enunciated that wherever white persons have available to them employment on projects not as readily available to the Indians, because of administrative and practical reasons, they are not entitled to employment on Indian projects, except after the need of the Indians has been met, as they are not persons in need of such employment.

The attached letter, recommending approval by the Department of an application by the Wisconsin Conservation Department for a permit to use one acre of tribal land belonging to the Forest County Potawatomi Community as a ranger station site, is returned herewith for further consideration.

The Forest County Potawatomi Community is an organized tribe with power to manage and dispose of its property, as set forth in various provisions of its constitution and charter (section 1 (c), Article V. Constitution; section 5 (b), Charter). Under these provisions it has ample authority to permit the use of a tract of tribal land for the purpose desired by the Wisconsin Conservation Department, and pursuant to this authority may delegate to the Superintendent or any other official who will act for it in the matter, the duty of preparing and executing the necessary papers. Its resolution of October 15, was clearly framed with this idea in mind. The resolution directed the Superintendent to act as agent for the tribe in carrying out the details of the issuance of the permit.

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DEPARTMENT OF THE INTERIOR

DECEMBER 22, 1938

to the Department any part of its power to manage and dispose of the tribal property. Under section 5 (b) of the Charter the Department has a supervisory power over tribal actions dealing with the lands of the Community which may properly be exercised when executed permits or leases are submitted to it for approval, in accordance with subsection (3), but it has no authority to issue permits or leases itself. Whatever power the Superintendent has to act in the matter is derived from the council resolution of October 15, and not from any general governmental authority such as that referred to in the proposed letter.

It should be noted that in section 5 (b) of the Charter the term "permit" is restricted by subsection (3) to one-year permits which may be issued by the council to members of the Community without departmental review. Any other disposition of Community lands such as the Wisconsin Conservation Department clearly wishes would have to take the form of a lease. Furthermore, any such lease would have to be in conformity with the applicable provisions of subsection (3). It would, of course, be subject to approval by the Department.

It is my suggestion that the application of the Wisconsin Conservation Department should be returned to the Superintendent for action in conformity with the council resolution and the views expressed herein.

Pursuant to the suggestion contained in your memorandum of September 29 I have consulted with Mr. Curry on certain questions that have arisen with respect to the various chattel mortgage forms and related or supplementary forms which you have submitted for approval. As a result of such discussions certain amendments of the forms submitted were considered necessary and have been made in this office. For your information a brief explanation of each of the changes thus made is presented.

1. The forms as originally submitted were based upon the assumption that State law governs transactions between an individual Indian and an incorporated tribe. This assumption is not correct, at least so far as transactions occurring within an Indian reservation are concerned. The primary law applicable to the commercial relations of members of Indian tribes whether among themselves or with the tribes is the law of the tribe itself. This may take the form either of ordinance or of unwritten custom. As was said in 55 I.D. 14, at pp. 54-56::

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OPINIONS OF THE SOLICITOR

DECEMBER 22, 1938

tom it appears that State courts once having acquired proper jurisdiction of a case will assume that the Indian law is identical with the law of the State (See W. G. Rice, Jr., op. cit.). In view of the foregoing considerations the attached forms have been amended as follows:

(a) The words "within the . . . . . . . . . . . . . .Reservation" have been added to each specific description of the residence of a mortgagor, the residence of a mortgagee, the place of payment of the mortgage, and the place at which the mortgaged property is located.

(b) Wherever reference was made to "State or Federal law" the words "State or Federal" have been stricken out as an undue limitation upon the law applicable.

(a) Paragraph (1) of part 1 of the Arizona chattel mortgage form had provided for the payment of interest only on the dates specified for the repayment of the principal. This was contrary to the interest provisions in all the other chattel mortgage forms, the standard promissory note form and the credit regulations, which called for the payment of interest annually from the date the money was advanced, as shown on the note. Paragraph (1) was changed to conform with the uniform provision.

The Arizona interest provision had been thought to be necessitated by a statute which required that there be set out in the mortgage "the sum to be secured, the rate of interest to be paid, when and where payable * * *." A provision that the interest shall be payable annually from the date the funds are advanced as shown on the promissory note is, in my opinion a sufficient compliance with the statutory requirement that the mortgage specify "when" the interest is payable, particularly where such a provision is necessitated by the fact that the sum secured by the mortgage is to be advanced at indefinite times. The Arizona court has shown a willingness to construe the requirements of this statute liberally where an honest and substantial compliance with the statute has been made by the parties. Garner v.Arizona Egyptian Cotton Co., 22 Ariz. 318, 197 Pac. 231 (1921). In that case the place of payment was not expressly set forth in the mortgage but the court held that the place of payment could be indicated that an omission to state the rate of interest might not be considered a serious defect. Furthermore, the court referred to the case of Northwestern Bank v. Freeman, 171 U.S. 620, in which it was stated that a purchaser is presumed to know not only the facts shown by the records but "every other fact which an examination suggested by the records would have shown." A purchaser from an Indian mortgagor interested in determining the precise date upon which interest is payable could determine that fact on the basis of the information given in a mortgage which contained the standard provision.

(b) A provision that the mortgage is given to secure "the performance of the terms of the above described loan agreement" has been inserted in part I of the chattel mortgage forms for use in Arizona, California, New Mexico and Oregon. As a result of these insertions all the mortgage forms now contain this provision.

(c) In the California and Nevada chattel mortgage forms a provision was added at the end of paragraph (2) of part I to the effect that the maximum amount specified to cover future advances and expenses is not intended to include sums necessarily advanced or expended by the mortgagee for the maintenance or preservation of the property covered by the mortgage. This exception was considered to be permitted by the statutes of the two States and useful in determining the amount to be specified in this paragraph.

(d) In the California form the designation of the mortgages as "by occupation an Indian chartered corporation" was changed to omit the phrase "by occupation" as inappropriate and not required by the California statutes.

(e) In the case of the Minnesota chattel mortgage form, the receipt for copy was placed as part VII within the body of the mortgage, in view of the construction by the courts of a statute of South Dakota similar to the statute in Minnesota providing that a receipt for copy shall be "contained" in the mortgage.

(f) In the North Dakota chattel mortgage form, paragraph (2) part II, the broad designation of the chattels mortgaged, namely, "all livestock, farm equipment, machinery, tools and other farm personal property now owned or which may be hereafter acquired," was restricted by omission

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DEPARTMENT OF THE INTERIOR

DECEMBER 22, 1938

of "farm equipment" and "other farm personal property" in view of the North Dakota statute (Session Laws of North Dakota, 1937, p. 304) which provides that any chattel mortgage containing a description such as "all other property owned by the mortgagor, or words of like effect" shall be void as to such property.

You have requested my opinion as to whether a contract, by which Indian residents and subjects of the Dominion of Canada propose to employ an attorney to prosecute claims against the United States, is subject to your approval and that of the Commissioner of Indian Affairs under section 81, title 25, United States Code.

This question must be answered in the negative. Section 81, title 25, United States Code, cannot be given extraterritorial operation. As stated by the United States Supreme Court in the case of The Apollon, 9 Wheat. 361:

In connection with bills now pending before Congress proposing to confer jurisdiction on the Court of Claims to consider and adjudicate the claims of Canadian Indians against the United States, you further request a statement of my views "as to suitable provisions which we might recommend to the Congress for inclusion in the proposed, legislation to govern the question of recognition of the attorneys to represent these Indians in the Court of Claims."

The United States may not be sued without its consent and as its consent is purely voluntary it may prescribe the terms and conditions upon which it consents to be sued and the manner in which the suit may be conducted. Beers v. State of Arkansas, 20 How. 527, 529; In re Ayers, 123 U.S. 443, 505; Ball v. Halsell, 161 U.S. 73. While Congress may thus regulate and control the conditions upon which claims against the United States may be prosecuted, where, as here, the claims in question are being asserted by the subjects of a foreign nation, principles of international comity suggest that the laws of the foreign nation be respected and applied. If, therefore, the jurisdiction bills referred to meet with your approval in other respects, it would be entirely proper in my judgment to suggest that the suits be tiled by attorneys selected and employed in conformity with Canadian law and that the attorneys be required to file with their petitions such proof of selection and employment as the Court of Claims may require. Any question concerning the rights of counsel to represent these Indians would then become a matter for judicial determination.

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OPINIONS OF THE SOLICITOR

FEBRUARY 10, 1939

In April and May of last year modifications were made in the regulations governing the leasing of Indian lands for mining purposes, which established a policy of cooperation with the Securities and Exchange Commission in protecting the public and the lessors against fraudulent enterprises. In accordance with this purpose, substantially the following language was added to the "Regulations Governing the Leasing of Restricted Lands Belonging to Members of the Five Civilized Tribes of Indians in Oklahoma, for Mining Purposes," approved on April 27, 1938, the "Regulations to Govern the Leasing of lands in the Crow Indian Reservation, Montana, for Mining Purposes", approved on the same date, and the "Regulations Governing the Leasing of Tribal Lands, for Mining Purposes", approved on May 31, 1938:

These amendments in the Indian mineral leasing regulations involve a legal determination that consideration of past frauds, as developed by the S.E.C. record, of a corporate lease applicant is legally proper in passing upon the approval of a lease and a decision of policy that this Department should consider such circumstances.

The foregoing decisions are equally applicable to applications for oil and gas leases on public lands within the jurisdiction of this Department. I should like to suggest, therefore, that you prepare, in consultation with the Geological Survey, an amendment in the existing regulations governing such leases, which will achieve the objective of the amendments in the Indian mineral leasing regulations noted above and will thus result in a unified departmental policy on this subject.

I have noted your memorandum of August 2, 1938, in which you comment upon the Acting Solicitor's memorandum of April 23 and a letter dated April 18 from the General Counsel for the Securities and Exchange Commission. Neither the Acting Solicitor nor the General Counsel proposed that the information in question be included "in each application for an oil and gas lease" as your memorandum assumes. Therefore any argument against the proposal based on the amount of additional work involved cannot be sustained.

I am unable to agree with the further argument in your memorandum of July 19 that "information furnished by an applicant for lease would serve no useful purpose unless verified in each instance by the Securities and Exchange Commission." We do, in fact, require applicants for leases to make many statements and we do generally assume, quite correctly I think, that such statements provide at least a basis for tentative action or for further scrutiny. Not all lessees are willing to make written misrepresentations as to matters of record which are easily checked. If a prospective applicant for a lease has a record of prior fraud, we ought to know that when we pass upon his application. The argument as to the necessity of investigating every representation, with consequent delays and embarrassments for innocent parties, assumes that the Department is bound to link into the accuracy of every statement which any body makes in any document filed with the Department. That, of course, is not true. Statements made by corporate applicants will be checked or verified only when there is some good reason to do so. When investigation is desirable, the statements of the applicant will be a useful starting point for the investigation. Since the Securities and Exchange

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DEPARTMENT OF THE INTERIOR

FEBRUARY 10, 1939

Commission has very kindly offered to supply all necessary information, the only work which this Department will be expected to undertake will be the task of submitting a request for a report, wherever circumstances so warrant, to the Securities and Exchange Commission.

If it is believed that applications for leases should not be held up in any case pending such investigations, the lease form might be modified so as to provide specifically that the lease may be cancelled by the Secretary, if statements made in the application for the lease are found to be untrue. Such cancellation would ordinarily be justified, even without specific language, under common law doctrines of fraud.

In view of these considerations, I suggest that consideration be given to the drafting of appropriate amendments of the existing leasing regulations.

I am returning herewith the letter to Superintendent Dickens, of the Cheyenne River Agency, concerning the jurisdiction of the tribal court to grant a divorce to a member of the tribe married to a white man. The question presented is whether a tribal member, married to a white man under State law, may obtain a divorce in the tribal court after the husband's desertion of her and the marital home on the reservation. A tribal divorce rather than a State divorce is desired because of the lack of funds of the wife, the whereabouts of the husband being unknown.

The reply prepared by the Indian Office is that no objection is seen to the filing of an action for divorce in the Cheyenne River Sioux Tribal Court. However, this answer to the question raised is not appropriate in view of the provisions of the Tribal Law and Order Code. Section XVIII of Chapter III, on Domestic Relations, defines the jurisdiction of the tribal court over divorce. It provides that marriage may be dissolved only

However, it is my opinion that, if the tribal council desires, these provisions may be enlarged to take care of such a situation as that now presented. In the first place, the accepted principles of the law of divorce and the jurisdiction of courts to grant divorces would seem to permit such enlargement. A divorce action has been frequently described as an action in rem in which the res is the marital status of the parties. It is necessary for a court to have jurisdiction of the res in order to grant a divorce, although it need not have jurisdiction of both the parties. It is well established that a State court has the necessary jurisdiction of the marital status where the plaintiff is a resident of the State and the State is the location of the marital domicile, even though the State has no jurisdiction of the defendant spouse who is not a resident or a citizen of the State and can be reached only by constructive notice. Atherton v. Atherton, 181 U.S. 155; Haddock v. Haddock, 201 U.S. .562; Delaney v. Delaney, 13 Pac. (2d) 719 (Cal. 1932), 86 A.L.R. 1321.

The foregoing principles are based upon the interest of the State in the marital status of its residents, and this interest is considered sufficiently great to permit a State to act upon the marital status of a resident in certain cases even though the other party was never within the jurisdiction of the State. As said by one court:

Reliance need not be placed entirely upon application of these general principles of jurisdic-

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FEBRUARY 17, 1939

tion, however, in order to sustain the jurisdiction of a tribal court to divorce tribal members from white spouses, since a number of cases have already recognized as valid marriages and divorces under tribal law between tribal members and white persons. Wall v. Williamson, 8 Ala. 48; Wall v. Williams, 11 Ala. 826; Morgan v. McGhee, 5 Humph. (Tenn.) 14; Johnson v. Johnson's Administrator, 30 Mo. 72, 77 Am. Dec. 598; La Riviere v. La Riviere, 77 Mo. 512; Cyr v. Walker, 29 Okla. 281, 116 Pac. 931; 35 L.R.A. (n.s.) 795; 14 R.C.L. 122. The foregoing cases determine that a white person who established a residence among an Indian tribe in its territory will be considered married to or divorced from a tribal member according to the law of the tribe. In the leading case of Cyr. v. Walker, supra, an adopted member of the tribe divorced his white wife on the reservation under tribal law and the validity of this divorce was recognized even though the parties had been married under State law. In all of these cases the divorce was an Indian custom divorce through separation by mutual consent or by abandonment by one of the parties. The principle, however, i would not be affected because an Indian tribe may now require formal tribal court action in place of the earlier Indian custom.

The Cyr case would seem to go so far as to recognize a tribal divorce by a tribal member against a white person who did not consent to the divorce. However, it is not necessary to decide at this time whether such a principle would now be accepted so that a tribal member could obtain a divorce in a tribal court against a white spouse who objected to the jurisdiction of the court. All that need be decided at this time is that under the accepted divorce law a tribal member may obtain a tribal divorce from a white spouse who has consented to the jurisdiction of the tribal court or who has abandoned his tribal spouse and his marital domicile on the reservation. It might be pointed out that an unjustified abandonment is itself an implied consent to a divorce action by the abandoned spouse in the court of the latter's domicile. (See Delaney v. Delaney, supra, at 723).

Accordingly I suggest that the letter to Superintendent Dickens be revised to state that under Section XVIII of Chapter III of the Law and Order Code the tribal court now grant a divorce in the case presented but that it would be proper for the tribal council to consider the enlargement of the jurisdiction of the tribal court to permit action in such cases. If the tribal council so desires to enlarge the jurisdiction of the court, one method might be through revision of subparagraph 2 of Section XVIII of Chapter III to omit the words "any recognized Indian tribe consenting to the jurisdiction of said court in writing" and to substitute the words "or where one party is a non-member of the tribe who consents to the jurisdiction of the court or who has deserted his spouse and abandoned his home on the reservation." If some such change is made, the tribal council should also consider including in Section XXV of Chapter III provisions for constructive notice to the absent party.

The transaction involved in the attached papers concerns an attempted transfer of a tract of allotted land on the Makah Indian Reservation, Washington, by its Indian, owner to the United States in trust for the, Makah Indian Tribe, with the express stipulation that such land is to be assigned by the Tribal Council to another member of .the tribe who, it appears, is employed in the Forestry Division of the Indian Service. An effort by Harry Williams, the Indian owner, to deed the land directly to Ernest R. Soeneke, the same grantee, was rejected by your office on July 28 on the ground that Mr. Soeneke is a Government employee and, therefore, prohibited from taking the land by section 68, title 25, United States Code. The instant transaction seeks to evade this statutory provision.

It is my opinion that it cannot be thus evaded. Section 68, title 25, United States Code, reads:

Mr. Soeneke is an Indian but he is also an employee of the Government employed in Indian

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DEPARTMENT OF THE INTERIOR

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Affairs. By the statute he is not allowed to obtain any such interest as that which he would receive under the proposed transaction. If he should obtain such an interest, with or without departmental approval, he would be subject to the penalty of the statute, and the transaction would be void (Ewert v. Bluejacket, supra).

While the transaction purports to be a mere transfer of title to a portion of an allotment to the tribe, and such a transfer without more would be entirely proper under section 5 of the act of June 18, 1934 (48 Stat. 984) and the applicable provisions of the tribe's constitution and charter, Mr. Soeneke's interest in the transaction appears on the very face of the deed in the stipulation that the land is to be assigned to him. The Superintendent's letter of August 9 also brings out the fact that $30 is to be paid by Mr. Soeneke as consideration for the transfer of title and the assignment. Under these circumstances, Mr. Soeneke's personal interest in the transaction is clear, and the deed cannot be approved.

Even if his interest did not appear in the deed itself, and there was a mere transfer of title to the tribe by Mr. Williams, the validity of' such a transaction would not authorize a subsequent independent assignment of a life interest in the land to Mr. Soeneke under the assignment provisions of the tribe's constitution. There is nothing in the act of June 18, 1934 (48 Stat. 984) which is in conflict with section 68, title 25, United States Code. Both are designed to protect and advance the interest of the Indians, and the later act neither supersedes nor repeals the earlier statute. Under section 68, title 25, United States Code, it is the acquisition of the interest in land by a person employed in Indian affairs which is prohibited. It makes no difference whether the interest is acquired from an individual Indian or a tribe.

I believe, therefore, that the deed cannot be approved, and the Superintendent should be apprised of the views expressed herein.

Attached hereto are letters to the chairman of the Rocky Boy's Business Committee and of the Blackfeet Tribal Business Council concerning methods of control by the tribes over the conduct of Indians on the reservations not members of the tribes. These letters have passed through the Indian Office and this office and are ready for your signature. However, the Indian Office in its memorandum to me of December 15 raises certain questions in connection with these letters which that office would evidently like to have answered at this time. Accordingly I am answering these questions in this memorandum for your consideration and approval in order to avoid the further delay in returning the letters unnecessarily to the Indian Office.

1. The first question is whether any authority other than the State of Montana has law and order jurisdiction over the Indians not members of any Indian tribe who drift from one reservation to another in that State. In my opinion these Indians are subject only to the jurisdiction of the State and the tribe can control the conduct of these Indians only through the method of removing them from the reservation. This opinion was expressed in my memorandum to the Indian Office of August 26, 1938, in which I stated that the Indian court had no jurisdiction over nonward Indians. This opinion was also implicit in my memorandum of October 25, 1938, in which I pointed out that the tribal court could be delegated jurisdiction over Indians not members of the Rocky Boy's Tribe but members of other recognized Indian tribes. The proposed letters are consistent with this opinion and require no revision. However, for the purpose of clarification I have added at the end of the suggested departmental order delegating jurisdiction to the Blackfeet Tribe the words, "who are members of any recognized tribe now under Federal
jurisdiction."

2. The second question is whether the Department would obtain jurisdiction over the unaffiliated Indians who might be recognized as Indians under section 19 of the Indian Reorganization Act even though they did not come upon a new reservation and organize as residents thereof. This question correctly assumes that when persons recognized as Indians under the Indian Reorganization Act organize as residents of a reservation they become subject to the law and order jurisdiction of the Department since they are then members of a recognized Indian tribe. However, the problem is whether persons recognized as Indians under section 19 of the Indian Reorganization Act who are not organized upon a reservation and not tribal members would nevertheless be subject to the jurisdiction of the Department, and through the Department the jurisdiction of the tribe, on the various reservations where they may be found.

In my memorandum of August 26 I indicated that persons recognized as Indians under the Reorganization Act, and being within Indian reservations,

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would be subject to the jurisdiction of the Interior Department, which jurisdiction could be delegated to the tribe in a manner similar to the proposed delegation of jurisdiction over Indians who were members of other recognized tribes. I believe this is the correct conclusion since the Interior Department has broad jurisdiction over all recognized Indians on Indian reservations. However, at the present time the law and order regulations of the Department do not exercise this jurisdiction since the jurisdiction of Indian courts under these regulations is limited to Indians who are members of recognized tribes. Therefore, any order delegating departmental authority over recognized Indians on reservations but not members of any recognized tribe must be phrased differently from the proposed Blackfeet order discussed in the attached letters which is intended to delegate only the authority of the Department exercised in the law and order regulations. I believe, however, that no change should be made in the present letters to provide for this further possible delegation since it should be handled as a separate matter and since very few persons will be recognized as Indians under section 19 of the Indian Reorganization Act within, the near future.

3. The Indian Office suggests that if the tribes cannot obtain jurisdiction over unaffiliated Indians through the proposed order they should be cautioned against extending any power delegated in the proposed order beyond its proper scope. Since the attached letters merely submit the order to the tribes for their consideration, I believe the suggestion of the Indian Office can appropriately be met at such time as the order of delegation may be issued by the Department.

4. The last question raised is who is entitled to exercise jurisdiction in law and order matters on lands purchased under section 5 of the Indian Reorganization Act but not yet proclaimed a reservation nor added to an existing reservation This question is not raised as a matter involved in the attached letters but as a relevant matter upon which the Indian Office seeks advice. The question cannot be answered with assurance at this time since there is no applicable court decision upon which reliance can be placed. However, there is some indication of a proper answer to the question in the Reno Indian Colony case (United States v. McGowan, 302 U.S. 535) which held that lands purchased for an Indian community which had been treated by the Government in the same manner as a reservation although never formally declared a reservation were Indian country to which the Federal Indian Liquor laws applied. Following the principles of this case, I believe it is possible to say that lands purchased under the Indian Reorganization Act are purchased for the purpose of being Indian reservations, that Congress intended them to have that status, and that the formal declaration of the lands as a reservation, under section 7 of the act, is more in the nature of a recognition of their status than a change in status. If this is true, the Department would have law and order jurisdiction over Indians on such purchased lands pending the formal declaration of their reservation status. However, since this problem of jurisdiction cannot be definitely settled by this Department, the occasions giving rise to the problem should be avoided in so far as possible by prompt declaration of purchased lands as reservations.

The Rosebud. Tribal Council prepared a tentative draft of an ordinance laying certain taxes upon members and nonmembers of the tribe. This ordinance they informally presented to the Indian Office in order that they might be advised as to the propriety of the proposed taxes, and your office then referred it to me, by memorandum dated October 20, 1938, for consideration of the legal questions involved. You presented the legal questions in two groups-those involving the penalty provisions of the ordinance and those involved in the taxation of nonmembers.

Before discussing the legality of the particular taxes proposed it may be advisable to state certain fundamental principles which should be kept in mind in consideration of the validity of tribal taxes. It has been a deep-rooted principle that the determination of the kinds of taxes and the modes in which they shall be collected is the exclusive prerogative of the legislature, because of the urgent necessities of government, and the courts have generally not interfered with the determination made by the legislature unless it is directly contrary to the provisions of the governing constitution (Cooley, The Law of Taxation, 4th Edition, Sec. 1326). If this principle is applied to tribal taxation the determination of the type of tax and the method of its enforcement would be recognized as a policy or political question for the tribal council to determine, restrained only by the provisions of the tribal constitution.

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The question may arise whether the tribal council is bound also by the United States Constitution. If it were so bound, the only provision at all relevant would be the due process clause of the fifth amendment and this could hardly be well invoked in view of the broad discretion recognized in the political body laying the taxes, and since, in any case, none of the tribal taxes proposed would in my opinion offend against that amendment. However, this need not now be decided as the United States Constitution cannot be said to be applicable to the actions of the tribal council, at least in the field of taxation for revenue or for regulation, in view of the case of Talton v. Mayes, 165 U.S. 376. There it was held that the fifth amendment of the Federal Constitution did not restrict the legislation of the Cherokee Nation defining the kind of grand jury to be used in criminal proceedings. The argument in that case that the legislative powers of the Cherokee Nation were not created by the Federal Government, although recognized by it, applies as well to the taxation ordinances which an organized tribe may adopt under its constitution. (See also 55 I. D. 14, 22-24.) Accordingly, the questions you present will be answered in the light of the provisions of the Rosebud Tribal Constitution.

In referring to the provisions of the Rosebud Constitution you have cited. section 1 (h) of Article IV, providing for taxation, as follows:

The proposed ordinance would levy a poll tax upon the adult members of the tribe to be met by a money payment or the performance of reservation labor (Article I, sections 2 and 7). In order to enforce this tax the ordinance provides that a person refusing to pay the tax

I find no objection to the provisions of the tribal ordinance making it a misdemeanor to refuse to pay a poll or a license tax. In fact, in so far as the requirement of a vehicle license is an exercise of the police power of the tribe, making the failure to obtain a license a misdemeanor is particularly appropriate. (Cooley, Secs. 1800, 1812.) It is customary in many States at this time for the legislature to provide for arrest and imprisonment as a method of enforcing license or occupation taxes and that operation without the required license shall be unlawful (Cooley, Secs. 1349, 1717). While arrest and imprisonment as a method of enforcing

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other taxes has generally disappeared, it was a general practice under early State law as a means of enforcing taxes which were personal charges (Cooley, Sec. 1349) . In view of this historic practice I think that an ordinance making a refusal to pay a tax a misdemeanor cannot be said to be improper. Moreover, the alternative penalties following conviction for the misdemeanor of the performance of reservation labor or the attachment of property have a distinct advantage over the penalty of imprisonment in that they are productive of the tribal assets the taxation sought to produce. Furthermore, it should be noted that these penalties are imposed only after a conviction through a judicial proceeding, which assures the taxpayer of greater protection than he generally enjoys under State or Federal taxation where the customary penalty is the seizure of property through summary proceedings (Cooley, Secs. 1323 and 1326).

Since the distraint and sale of property through summary action by enforcement officers without preliminary judicial proceedings is the common method of enforcing taxation, I find no objection to the provision of Article I, section 8, of the proposed ordinance in so far as it deals with the attachment and sale of unrestricted property as a penalty imposed by the court after judicial proceedings. Nor do I think this provision requires elaboration, particularly as the present Rosebud Code of Offenses now contemplates the attachment and sale of property in the execution of sentences.

The penalty of removal from the reservation in the case of nonmembers, to which you refer in connection with your questions on penal action, will be discussed in connection with the status of non-members.

For the sake of clarification, the taxes proposed to be laid on nonmembers may be briefly outlined as follows:

1. A poll tax on all white or Indian nonmembers "intermarried into the Rosebud Sioux Tribe and who make their homes on Indian allotments or on tribal lands" to be enforced by the removal of a delinquent nonmember as a person not legally entitled to reside on restricted land (Article II, Sec. 1).

2. A poll tax on employees of the Government and of private commercial enterprises on the reservation to be voluntary in character and not subject to compulsory collection (Article II, Secs. 2 and 3).

3. A permit tax upon nonmembers who have permission to establish private residences on agency or tribal land, to be enforced by removal of delinquent nonmembers from the lands.

4. A dog tax on all dogs owned by nonmembers as well as members to be enforced through confiscation of the dogs for whom no tax is paid.

In view of these taxes you state that some definition of the nonmembers subject to taxation under the constitutional provision providing for taxation of "nonmembers doing business within the reservation" will be necessary and you raise the questions whether a nonmember married into the tribe would, on failure to pay a tax, lose his status as a person legally entitled to reside on the reservation and whether a tax may be laid on personal property not related to the doing of business.

It is assumed that the reason for the restriction of the taxing power to taxation of nonmembers doing business within the reservation was that a ready means of enforcement of such taxation was available through the prevention of the continuance of the business by removal from the reservation or otherwise. A practical means of enforcement is particularly necessary since nonmembers are not subject as involuntary defendants to the jurisdiction of the tribal court. It is believed that the specification of nonmembers doing business within the reservation was intended to refer to a particular type of nonmember and, that the tribal council should provide definition and interpretation of the class of nonmembers intended to be covered. The tribal council has not yet attempted to do this and in laying a poll tax upon all nonmembers who are intermarried into the tribe and make their homes on Indian allotments or tribal lands the tribal council would apparently exceed its powers under the constitution. Intermarried nonmembers making their homes on the reservation are in all probability a class of nonmembers which cannot be accurately designated as doing business on the reservation. The nonmembers intended by the constitution to be subject to taxation are rather the type of nonmembers referred to in section 3 of Article II, as those engaged in private commercial enterprise on the reservation.

Nevertheless, a tax on dogs might be levied on all nonmember owners of dogs even though the non-member owners are not nonmembers doing business within the reservation. This follows from the fact that a dog tax is generally considered to be a police regulation (Cooley, Sec. 1805). If considered as a police regulation the tax proposed by the tribal council would be legitimate under section 1 (m) of Article VI of the tribal constitution authorizing the tribal council to regulate property upon the reservation in the interests of the general welfare, subject to review by the Secretary of the Interior where any such regulation affects nonmembers. I am aware that the Department in a letter to the Oglala Sioux Tribal Council of March 10, 1937, disapproved a dog tax because applicable to white owners but the