| 126 | DEPARTMENT OF THE INTERIOR | NOVEMBER 6, 1924 |
upon enrollmentor recognition by the tribe as a member. The descendents of an enrolledmember by reason of their Chippewa blood may be entitled to share in tribalfunds even though not enrolled as tribal members.
With reference to the act of June 7, 1897, supra, the court heldin the case of Vezina v. United States (245 Fed.,411, 420):
"* * * Under this statute Mrs. Vezina is clearly entitled to be recognizedand treated in all respects as if she had remained upon the reservation.It is true that, if Mrs. Delaney was now living, under our decision inOakesv.UnitedStates, 97 C.C.A. 139, 172 Fed. 305, Mrs. Vezina would not be entitledto be enrolled under this statute. That decision would probably excludethe children of Mrs. Vezina from the right to enrollment and from allotment.As there is no case before us now, except the case of Mrs. Vezina, we donot care to express a more definite opinion upon the question of her children."It was subsequently held in opinion rendered by the Solicitor on December21, 1920, that the children of Mrs. Vezina were entitled to participatein the distribution of tribal funds under the act of January 14, 1889,"not as members of the tribe but as the 'issue' of Elizabeth Vezina;" butthat they were not entitled to be enrolled under said act for the purposeof being allotted tribal lands. Reference was made in that connection toSolicitor's opinion of February 17, 1919, supra.
In construing the act of June 7, 1897, supra, it washeld by the Solicitor in the case of Addie Prickett et al.(50 L.D.,554), applicants for enrollment with the Menominee Tribe of Indians, Wisconsin,as follows:
"The opinion of the Assistant Attorney General of March 14, 1905, supra ,inconstruing the act of June 7, 1897, evidently went too far in holding 'andthe issue of such marriage are recognized by tribal usage as its members,'as said act clearly does not impose any such condition upon the personscoming within its provisions. In this respect the opinion is really broaderthan the instructions in the matter of the New York Indians which it adopts.Under the terms of the act to entitle children born of a marriage betweena white man and an Indian woman to rights and privileges in the mother'stribe it must appear that she is recognized by the tribe as belonging thereto,but no such requirement is laid upon the children themselves. The scopeof the act is properly set out in the case of William Banks, supra."The holding in said case of William Banks (26 L.D., 71) was as follows:
"The object of that act was not to make the persons coming within its provisionsmembers of any tribe of Indians nor to reinstate them where they had withdrawnfrom such membership but to confer upon them simply one of the incidentsof membership, that is, a right to share in the distribution of the propertyof the tribe."The specific question involved in the Solicitor's opinion of February 17,1919, supra,was as to the rights of "children born to persons whosenames appear on the tribal rolls of the Chippewa Indians of Minnesota toshare in the interest accruing upon the fund arising under the act of January14, 1889 (25 Stat., 642)," and after reciting certain provisions of theact it was said in the opinion:
"Thus it appears that Indian blood-membership among the individual Indiansoriginally enrolled as together constituting the tribe that created thetrust and conveyed the surplus lands giving rise to the trust fund, ordescent from those Indians-is made the essential and sole basis of theright to participate in the current interest accruing from the fund inits final distribution."Again, after reference to the trust created, it was said:
"And nowhere in its terms of settlement is either residence with or continuedor 'recognized' membership of the tribe, or birth on the reservation, orUnited States citizenship, or any other qualification mentioned, save onlybeing 'a Chippewa Indian,' i.e., possession, in whole or in part, of theblood of one of the originally enrolled members of that tribe."And after stating that the word "issue" in section 7 of the act of 1889,supra,is used in its enlarged sense, it was said:
"The issue, then, includes all the lineal descendents of the ancestor.But the ancestor must be found to have been of the tribal membership atthe time of the creation of the trust. His 'recognition' by the tribe assuch is merely evidentiary of such membership, and is
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The language employed in said opinion-"membership among the individualIndians originally enrolled," "originally enrolled members of that tribe."A tribal membership at the time of the creation of the trust,"-has heretoforebeen interpreted as referring to enrollment by the Chippewa Commissionappointed under the provisions of the act of January 14, 1889. That thisinterpretation is a correct one is indicated by the statement of factsset forth in the opinion as follows:notthe sole evidence competent to establish the fact. His descendants (whetherchildren or grandchildren) take an interest, not as tribal members, butas of the ancestor's blood; his blood entitling him and them alike, becauseit was tribal blood."
"In the particular case giving rise to a call for this opinion, Sarah Kadrie,neeCogger,was a full-blood Chippewa Indian woman born on the reservation in the year1892-subsequent to the cession and the original enrollment. She was anonly child of her mother, a member of the original enrollment. As such,she is entitled to participate for herself in the annuities; and that isaccorded to her."There is nothing in the act of April 14, 1924. to indicate an intentionthat a narrow or restricted construction is to be placed upon the words"erroneously omitted or stricken from the Chippewa annuity rolls." Themeaning of the words "erroneously stricken" is plain and bearing in mindthe settled rule that legislation affecting Indian affairs is to be liberallyconstrued in favor of the Indians, it may very properly be concluded thatthe words "erroneously omitted" were intended to include errors both ofomission and commission in the matter of enrollment. In other words, theact of April 14, 1924, was apparently intended to include cases of failurewhere action should have been taken but was not, as well as where actionwas taken but resulted in erroneous omission from the rolls. To state theproposition in still another way, do the words "erroneously omitted" insaid act contemplate commission of error by actual refusal to enroll anapplicant or do they also include mere omission for any reason even thoughno formal application is made, on the theory that the person has all alongbeen entitled to enrollment but for some reason his name has not been placedon the rolls, and further that the duty rests to enroll all persons legallyentitled? As above indicated it is believed that the law comprehends boththe instances mentioned.
The facts are as hereinabove set out, that the applicant, Ralph L. Connors,is a descendant of a full-blood Fond du Lac Chippewa; that his father wasa half-blood Fond du Lac Chippewa and his mother a white woman; that saidapplicant was enrolled for annuity payments under the act of 1889 withthe Fond du Lac Band on the ground that his grandmother being a full blood,it was to be assumed that she was entitled to enrollment, although neitherthe grandmother nor applicant's father was ever enrolled with that band.
It was held in the Solicitor's opinion of February 17, 1919,supra, thatthe only requirement of an applicant for enrollment for the purpose ofannuities under the act of January 14, 1889, is to show, possession inwhole or in part of the blood of one of the "originally enrolled"membersof the tribe; that his ancestor must be found to have been of the "tribalmembership" at the time of the creation of the trust under said act. Accordingto this opinion the ancestor must have been an enrolled member.It was also held in the Solicitor's opinion in the Addie Prickett case,supra, thatunder the terms of the act of June 7, 1897, the only requirement laid uponchildren born of a marriage between a white man and an Indian woman toentitle them to annuities is to show that the mother was at one time arecognized member of the tribe.
While the position was taken in Solicitor's opinion of February 17, 1919,that an applicant for annuities under the act of 1889 must show that heis a descendant of an enrolled member of the tribe, yet itwould be unjustifiable distinction to hold that the ancestor who was entitledto enrollment, although never actually enrolled for any reason, was notin an equally favorable position for purposes of the act. The fact is,that in the case of Vezina v. United States, supra, themother of plaintiff, applicant for enrollment, was not herself an enrolledmember; but the court held that Mrs. Vezina was nevertheless entitled tobe enrolled as of her ancestor's blood. And as hereinbefore set forth,the Solicitor for this Department has expressed the view, December 21,1920, reference being made to Solicitor's opinion of February 17, 1919,that the descendants of Mrs. Vezina were entitled to participate in thedistribution of tribal funds arising under section 7 of the act of January14, 1889, "not as members of the tribe but as the 'issue' of ElizabethVezina". It was further held in that connection: "While Elizabeth Vezinawas not enrolled or recognized by the tribe as a member, yet herright tomembership and the benefits flowing therefrom has been established by thecourt."
The name of Ralph L. Connors was placed on the Fond du Lac Chippewa Indianroll May 23, 1922, which for annuity payments under the act of January14, 1889, which was prior to the passage of
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the act of April 14, 1924. Therefore, strictly speaking, he is not a person whosename has been "erroneously omitted or stricken" from the Chippewa annuityrolls. That act further provides, however, for persons "who have been ormay hereafter be found entitled to enrollment for annuity payments authorizedby section 7 of the act of Congress approved January 14, 1889."
Applying the foregoing views and cited decisions to the facts of the casein hand, my opinion is that the applicant, Ralph L. Connors, is entitledto back annuities within the purview of the act of April 14, 1924, notas a member of the tribe, but as the lineal descendant of an ancestor who,though not actually enrolled, was a recognized member of the tribe at thetime of the creation of the trust out of which said annuities arise, andtherefore entitled to enrollment, and on the theory that applicant wasall along entitled to such annuities.
Solicitor
Approved: November6, 1924.OIL ROYALTIESFROM
ALLOTTEDLANDS
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion has been requested in the matter of the authority of this Departmentto exercise control or supervision over some $30,000 now in the hands ofthe Superintendent for the Five Civilized Tribes at Muskogee, the propertyof Lucinda Pittman, a full blood Creek Indian.
The funds in question were derived by way of oil and gas royalties fromlands allotted to Rowie Elizabeth Pittman, deceased, a minor daughter ofLucinda Pittman by her former husband Robert Pittman, a white man and anon citizen or member of the Creek Tribe. Robert Pittman and Lucinda weremarried prior to 1892. Several children, all half bloods, were born asa result of this union, including the said Rowie Elizabeth Pittman. Thelatter died February 10, 1909, at the age of 17 years, intestate, unmarriedand without issue. During her lifetime she had been allotted 160 acresof land in the Creek Nation, of which 40 acres constituted the "homestead",the remainder being commonly referred to as "surplus". She being of butone-half Indian blood all restrictions against alienation of the surpluspart of this allotment were removed by section 1 of the act of May 27,1908 (35 Stat., 312), those against the homestead still continuing. Therestrictions having been removed on 120 acres of those lands prior to thedeath of the allottee a subsequent change in ownership by inheritance orotherwise would not reimpose those restrictions: See the act and sectionjust cited. The homestead of 40 acres, however, presents a different questionand one that is not entirely free from difficulty. Section 9 of the saidact of May 27, 1908, provides in part:
That the death of any allottee of the Five Civilized Tribes shall operateto remove all restrictions upon the alienation of said allottee's land:Provided, Thatno conveyance of any interest of any full-blood Indian heir in such landshall be valid unless approved by the court having jurisdiction of thesettlement of the estate of said deceased allottee: * * * .For a considerable period after the enactment of the above statute theview prevailed rather generally that the death of an allottee of the FiveCivilized Tribes removed all restrictions against alienation even againstthe homesteads of these allottees. In Parker v. Richards, however(250 U.S., 235, reversing 245 Fed., 330), the Supreme Court held that asto such lands inherited by a full blood Indian the restrictions are notremoved until a conveyance thereof has been approved by the proper court,and further, that the rents and royalties derived from such lands are subjectto supervision by the Secretary of the Interior until the restrictionshave been removed. Whether the homestead part of this allotment thereforeremained restricted after the death of the allottee in 1909 depends entirelyon whether her heirs, or any of them, were full blood Indians. Before proceedingto a consideration of this question, however, it may be well to point outthat jurisdiction to determine the heirs of deceased allottees of the FiveCivilized Tribes rests not with the Secretary of the Interior but in thelocal courts: See the acts of April 28, 1904 (33 Stat., 573, section 2), May 27, 1908 (35 Stat., 312, sections 2, 6 and 9), June 25, 1910 (36Stat., 855, sections 1 and 2), and of June 14, 1918 (40 Stat., 606). Thelast act removes any doubt about the fact that the finding of heirs bythe local courts shall be conclusive, subject, of course, to the usualright of appeal.
With reference to the descent of lands in the Creek Nation, however, section6 of the act of June 30, 1902 (32 Stat., 500), provides:
The provisions of the act of Congress approved March 1, 1901 (31 Stat.,L., 861), in so
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The act of March 1, 1901, referred to in the foregoing, is commonly knowas the original Creek agreement, the amendatory act of 1902 being knownas the supplemental agreement. It was under these acts or agreements thatallottees of the Creek Tribe received their lands in severalty. Subsequently,however, by the enabling act of June 16, 1906, under which Oklahoma wasadmitted as a State (34 Stat., 267), the local statutes of descent thenin force in the Territory of Oklahoma were substituted for Chapter 49 ofMansfield's Digest: See Jefferson v. Fink (247U.S., 288).Without discussing the local statutes of descent in extensoit issufficient for our present purpose to point out that under those statutes:"if the decedent leaves no issue, nor husband, nor wife, the estate mustgo to the father". In the instant case, however, the father being whiteand a noncitizen of the Creek Tribe we must consider whether he was capableof or excluded from inheriting under that provision in the supplementalCreek agreement, supra, which declares that only citizensof the Creek Nation, male and female, and their Creek descendants shallinherit lands of the Creek Nation. The Oklahoma enabling act did not retainthis specific provision relating to the Creeks and after admission of thenew State it shortly became a much mooted question whether this provisionin the supplemental Creek agreement should prevail or was to be disregardedin determining the heirs of deceased Creek allottees. The reported decisionsare by no means uniform on this point. For a considerable period afteradmission of the new State its supreme and other courts held to the viewthat the Creek law of descent-meaning the proviso in the supplemental Creekagreement, supra-controlled (Thompson v. Cornelius(155Pac., 602). Later, however, the same courts adopted a different view, holdingthat the local statutes of descent control without regard to the provisionin the supplemental Creek agreement: In re Pigeon's Estate (198Pac., 309). Numerous decisions by the State courts to the same effect,pro and con, could be multiplied without advantage here. This later viewseems to have been recognized at least by the lower Federal Courts:Lockev. McMurry (287 Fed., 276), and Hill v. Rankin(289Fed., 511). This ruling, however, is not in accord with decisions by theSupreme Court of the United States: Washington v. Miller(235 U.S., 422) ; Campbell v. Wadsworth(248U.S., 169-177); see also the concluding paragraph in Jefferson v.Fink(247 U.S., 288-294).faras they provide for descent and distribution according to the laws of theCreek Nation, are hereby repealed and the descent and distribution of landand money provided for by said act shall be in accordance with chapter49 of Mansfield's Digest of the Statutes of Arkansas now in force in IndianTerritory: Provided, That only citizens of the Creek Nation, maleand female, and their Creek descendants shall, inherit lands of the CreekNation: And provided further, That if there be no personof Creek citizenship to take the descent and distribution of said estate,then the inheritance shall go to noncitizen heirs in the order named insaid chapter 49.
With these rulings by our highest court at hand I am unable to see howthe proviso to section 6 of the supplemental Creek agreement is to be disregarded.It is a substantial part of the law under which those Indians were allottedand repeals by implication are not lightly to be inferred. If we excludethe white father from inheriting, which under the rulings of the highercourt must be done, the descent would then be cast on the full blood Indianmother: Skelton v. Dill (235 U.S., 206-208) ; McDougalv. McKay (237 U.S., 373-385); Washington v. MillerandCampbell v. Wadsworth, supra.
By decree of the District Court of El Paso County, Colorado, dated February24, 1911, Robert Pittman and Lucinda were divorced, the former husbandlater marrying a white woman. It is also shown that by quitclaim deed datedMarch 8, 1920, Robert Pittman and his wife Agnes, "for $1 and other valuableconsiderations" conveyed to Lucinda Pittman all of their right, title andinterest in and to the 160 acres here involved. Lucinda Pittman thereforeis now the undisputed owner of this entire allotment but as previouslyobserved the restrictions had been removed from 120 acres of these landsprior to the death of the allottee. Being so removed these lands wouldcome into the hands of the full blood Indian mother, unrestricted, andhence free from further supervision. This would be true, regardless ofwhether she acquired title by "purchase" or by descent. I am of the opinion,however, that under the law these lands came into the hands of LucindaPittman by descent and therefore that as to the homestead of 40 acres,-shebeing a full blood,-the restrictions remained and will remain until dulyremoved in the manner provided by law. Being so restricted the oil andgas royalties derived from the homestead part of the allotment remain subjectto the supervision of the Secretary of the Interior under the ruling inParkerv. Richards, supra.
Solicitor.
Approved: November8, 1924.AssistantSecretary.
| 130 | DEPARTMENT OF THE INTERIOR | NOVEMBER 11, 1924 |
FIVE CIVILIZEDTRIBES-
OIL ROYALTIES
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion has been requested in connection with the availability of upwardsof $125,000 now on deposit with the superintendent of the Five CivilizedTribes at Muskogee, belonging to the estate of Ella Williams, deceased,the particular point at issue being whether these funds are now or canbe made available for use by her heirs.
These moneys were derived by way of oil and gas royalties from the homesteadpart of certain lands allotted to the said Ella Williams as a member ofthe Chickasaw Tribe, she being a member thereof of three-quarter Indianblood. Pursuant to the act of July 1, 1902 (32 Stat., 641), the allotmentto each member of the Choctaw and Chickasaw Tribes was divided into twoparts commonly referred to as "homestead" and "surplus", with varying restrictionsagainst alienation, taxation, etc., as provided for in that act. With thesurplus lands we are not here concerned. Ella Williams died in October,1916, intestate, survived by her husband, George Williams, a noncitizenof the Chickasaw Tribe, and six children of but three-eights Indian blood,five of whom were born before and one after March 4, 1906. Under applicablelaws of descent the husband inherited one-third and each child a one-ninthinterest in this estate, subject, however, to a special right or estate,hereinafter more fully referred to, in the minor daughter, Cecile Williams,who was born since March 4, 1906.
During her lifetime this allottee had executed an oil and gas lease coveringher homestead lands, which lease was duly approved by this Department inMarch, 1913. Thereafter oil was discovered and the funds now on hand representaccumulated royalties since the death of the decedent in 1916. Royaltiesare still being accumulated from the same source at an average monthlyrate of around $900. The heirs, or some of them at least, are reportedto be in needy circ*mstances and hence if relief can be afforded it shouldbe extended. The difficulty in this situation, if any exists, rests mainlyin a proviso to section nine of the act of May 27, 1908 (35 Stat., 312),which reads in part:
"That the death of any allottee of the Five Civilized Tribes shall operateto remove all restrictions upon the alienation of said allottee's land.* * * Provided further, That if any memberof the Five Civilized Tribes of one half or more Indian blood shall dieleaving issue surviving, born since March fourth, nine teen hundred andsix, the homestead of such deceased allottee shall remain inalienable,unless restrictions against alienation are removed therefrom by the Secretaryof the Interior in the manner provided in section one hereof, for the useand support of such issue, during their life or lives, until April twenty-sixth,nineteen hundred and thirty-one."The conditions just set forth obtain here. The Supreme Court of the UnitedStates has had occasion to deal with a substantially similar situationinvolving the homestead of a deceased Creek allottee: (Parker v.Riley,250U.S., 66). That decision held in part (pp. 70-71):
"Under the provision in section nine specially providing for issue bornafter March 4, 1906, Julia was entitled for her support to the exclusiveuse of the entire homestead while she lived, but not beyond April 26, 1931,and those who took the fee took it subject to that right. The rights ofall in the royalties must, as we think, be measured by that standard. Inthis view Julia is entitled to the use of the royalties, that is to say,the interest or income which may be obtained by properly investing them,during the same period, leaving the principal, like the homestead, to goto the heirs in general on the termination of her special right."Analyzing more particularly the proviso to section nine of the act of May27, 1908, supra, it is manifest that the special right or estatein the minor born since March 4, 1906, is to continue until April 26, 1931,"unless restrictions against alienation are removed therefrom by the Secretaryof the Interior in the manner provided in section one" of that act. Fromthe latter we read:In the samecase, however, it was also stated:
"We need not stop to consider whether, strictly speaking, the right thusspecially given to Julia was an estate for life or for years, for it evidentlywas not the purpose to make any nice distinctions along that line. Norneed we consider what effect a removal of the restrictions 'in the mannerprovided in section one' after the death of the allottee would have hadon the relative rights of Julia and the other heirs, for no such removalwas attempted or intended by the Secretary of the Interior."
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A statute, if possible, is to be construed in the light of its obviouspolicy (241 U.S., 432), and, according to a familiar rule, legislationrelating to the Indians is to be construed in their favor. (Id. 59). Isit to be presumed that Congress, by the proviso first hereinabove referredto, intended that the heirs of a deceased Indian, possessed of a comparativelywealthy estate, should be permitted to suffer on account of language usedin a particular part of that proviso which, within itself, clearly indicatesthat the Secretary of the Interior may remove the restrictions? In theexercise of a sound discretion vested in the latter officer by the actof May 27, 1908, and other pertinent statutes relating to the Five CivilizedTribes, the restrictions have been lifted from time to time, in whole orin part, from lands allotted to members of these tribes. No reason is seenwhy the same authority may not be invoked to relieve the situation nowhere."All homesteads of said allottees enrolled as mixed-blood Indians havinghalf or more than half Indian blood, including minors of such degrees ofblood, and all allotted lands of enrolled full bloods, and enrolled mixed-bloodsof three-quarters or more Indian blood, including minors of such degreesof blood, shall not be subject to alienation, contract to sell, power ofattorney, or any other incumbrance prior to April twenty-sixth, nineteenhundred and thirty-one, except that the Secretary of the Interior may removesuch restrictions, wholly or in part, under such rules and regulationsconcerning terms of sale and disposal of the proceeds for the benefit ofthe respective Indians as he may prescribe. The Secretary of the Interiorshall not be prohibited by this act from continuing to remove restrictionsas heretofore, and nothing herein shall be construed to impose restrictionsremoved from land by or under any law prior to the passage of this act."
While not prone to offer suggestions as to administrative procedure, yet,with due regard to the special right or estate in the minor born sinceMarch 4, 1906, I am of the opinion that interest to April 26, 1931, canbe computed at a reasonable rate on the amount of funds now on hand andafter deducting such interest from the amount the remainder can be distributedto the several heirs according to their respective shares in the estate.The "interest" so due the minor and set apart in advance for her benefitshould only be expended, of course, year by year, or, permissibly, monthby month, as and when such interest would otherwise ordinarily accrue.As to supervision by the Secretary of the Interior over oil and gas royaltiesfrom restricted lands allotted to members of the Five Civilized Tribes;seeParker v. Richards, (250 U.S., 235) .
Other administrative methods of overcoming the situation here could bepointed out but I deem it unnecessary to discuss those at this time.
Solicitor.
Approved: November11, 1924.50 L.D. 672November 15, 1924.
INDIAN LANDS--FORTAPACHE LANDS--MINERAL LANDS--COBALT--ASBESTOS--LEASE
The issuance of a lease conferring the right to mine all the metalliferousmineral deposits in a tract of land on the Fort Apache Indian Reservation,Arizona, pursuant to the act of June 30, 1919, as amended by the act ofMarch 3, 1921, precludes the granting of a lease to another for the miningof any one or more of the minerals specified in those acts so long as theoriginal lease is in effect.
EDWARDS,Solicitor:
My opinion has been requested in connection with an alleged discovery ofcobalt by one H. W. Fowler on the Fort Apache Indian Reservation, Arizona,the precise question being whether persons other than the lessees underan existing lease can acquire any mining rights or privileges in theselands.
By section 26 of the act of June 30, 1919 (41 Stat., 3, 31). the Secretaryof the Interior was authorized to lease unallotted lands within Indianreservations in nine of our western States, including Arizona, for thepurpose of mining gold, silver, copper, and other valuable "metalliferousminerals", substantially under such rules and regulations as the Secretaryof the Interior might prescribe. By an amendatory item in the act of March3, 1921 (41 Stat., 1225, 1231), magnesite, gypsum, limestone, and asbestos,were brought within the terms "metalliferous minerals" as used in the earlierstatute. Appropriate regulations governing operations under this legislationwill be found in 47 L.D., 261, and 48 L.D., 263, 266.
Pursuant to the statutes and the regulations referred to on June 29, 1922,this Department approved a mining lease in favor of G. W. Adams and L.R. Jacobson, covering certain lands on the Fort Apache Indian Reservationembraced in claims locally known as "Horseshoe Nos. 1 and 2", containingan aggregate area slightly in excess of 38 acres. This lease was foundedon a prior application alleging a valuable discovery of asbestos but when
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we turn tothe lease itself we read from section one--
The lessor, for and in consideration of the royalties, covenants, stipulations,and conditions hereinafter contained, and hereby agreed to be paid, observedand performed by the lessee, doth hereby demise, grant, lease, and letunto the lessee for the term of 20 years with privilege of renewal forsuccessive periods of 10 years upon such reasonable terms and conditionsas may be prescribed by the lessor, unless otherwise provided by law atthe time of the expiration of such periods, from the date of signing hereofby the lessor, for the purpose of mining all the deposits of metalliferousminerals in or under the following described lands. [Italicssupplied.]Cobalt is a metalliferous mineral and hence comes well within the classof deposits subject to lease under the act of June 30, 1919, supra.The lessees in the lease now here thereby obtained an exclusive right tomine "all the deposits of metalliferous minerals" in or under the landscovered thereby. Any person or persons, therefore, other than the presentlessees, their agents or assigns, attempting to mine deposits of this naturewithin these lands would properly be regarded as trespassers. I am of theopinion that under the situation as it now stands, mining rights adverseto the present lessees cannot be recognized or accorded by this Department.
It would be idle here, of course, to speculate on whether separate leases,with different lessees in each case, one for each of the different varietiesof metalliferous minerals, would have been permissible under the statutereferred to. Apparently such a procedure was not contemplated by the regulationsas originally promulgated and in view of the multiplicity of "metalliferousminerals" the wisdom of considering such a course may seriously be questioned.
Approved:
F. M. GOODWIN,AssistantSecretary.
EXTENT OFTITLE TO LANDS
PATENTEDAS MISSION CLAIMS
50 L.D. 676November 21, 1924.
M-13866
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
Youhaverequested my opinion in connection with the issuance of patents for certainlands on the Crow Creek Indian Reservation, South Dakota, heretofore setapart to the Protestant Episcopal Church for missionary purposes.
By the act of March 2, 1889 (25 Stat. 888), the Great Sioux Reservationwas carved up into a number of small reservations for sundry bands of theSioux Tribe and a large part of their former claimed territory made availablefor homestead settlement and entry. Among the diminished reservations socreated we find the one at Crow Creek, (section 6 of the act referred to).With reference to the entire area, however, from section 18 of the actwe read:
"That if any land in said Great Sioux Reservation is now occupied and usedby any religious society for the purpose of missionary or educational workamong said Indians whether situate outside of or within the lines of anyreservation constituted by this act, or if any such land is so occupiedupon the Santee Sioux Reservation, in Nebraska, the exclusive occupationand use of said land, not exceeding one hundred and sixty acres in anyone tract, is hereby, with the approval of the Secretary of the Interior,granted toany such society so long as the same shall be occupied and used by suchsociety for educational and missionary work among said Indians: and theSecretary of the Interior is hereby authorized and directed to give tosuch religious society patent of such tract of land to the legal effectaforesaid." [Italics supplied.]A provision of like tenor is to be found in the general allotment act ofFebruary 8, 1887 (24 Stat. 388, section 5), except that the latter carriesno specific directions as to the issuance of patents for these so-called"church lands." Long before the enactment of these statutes various religiousorganizations had been zealously laboring among the Indians looking totheir uplift in moral and other respects. Prior to March 2, 1889, the domesticand foreign missionary society of the Protestant Episcopal Church had establisheda number of missions among the Sioux, including three on the Crow CreekReservation at stations locally known as "St. John the Baptist," "All SaintsChurch," and "Christ Church." Substantial improvements, comparatively speaking,were erected and have since been maintained on these sites, in some casesbeing enlarged or rebuilt as the needs of the church might require.
On the extension of our public land system of surveys over the Crow CreekReservation and an allotment in severalty to the Indians there, as providedfor in the act of 1889, the areas occupied and
| 133 | OPINIONS OF THE SOLICITOR | NOVEMBER 21, 1924 |
used for missionarypurposes were adjusted to such system of surveys and set apart to the respectiveorganizations by placing appropriate descriptions of the lands sooccupied and used on the allotment schedules, which schedules were dulyapproved here in 1895. October 23, of that year, a patent was issued forthe three mission sites herein above mentioned, embracing an aggregatearea of 130 acres, in which patent, after reciting a description by legalsubdivisionsof these three missionary sites, the tenendum clause of that patent wasmade to read:
"Now know ye: That the United States of America, in consideration of thepremises and in conformity with the eighteenth section of said Act of Congressapproved March second, Eighteen hundred and Eighty-nine, and the orderaforesaid, hereby agrees to hold in trust for the said 'Domesticand Foreign Missionary Society of the Protestant Episcopal Church of theUnited States of America' the tracts of land above described so long asthe same shall be occupied and used by such society for educational andmissionary work among said Indians." [Italics supplied.]Just why a "trust form" of patent was resorted to is not now entirely clearfor when we turn to the particular section of the statute under which issued we find that the land so used and occupied was, with the approvalof the Secretary of the Interior, to be "granted" to such societies ororganizations as long as used for educational or missionary work amongthe Indians. Further, that a patent of "legal effect aforesaid" was tobe issued to such organizations. The usual form of documentary title evidencinga grant is a patent in fee and in the absence of legislative directionto the contrary very properly such a patent could have been issued to thechurch in this instance with an appropriate reversionary clause in theevent that the lands ceased to be used for the purpose designated.
The church is now here asking for a patent in fee simple but whether withor without a reversionary clause is not definitely shown by the recordnow before me. In presenting the matter to the Department, however, theCommissioner of Indian Affairs invites attention to additional legislationdealing with the same subject-matter, and from the Indian appropriationact of March 3, 1909 (35 Stat. 781, 814), we read:
"That the Secretary of the Interior is hereby authorized and directed toissue a patent in fee simple to the duly authorized missionary board, orother proper authority of any religious organization engaged in missionor school work on any Indian reservation, for such lands thereon as havebeen heretofore set apart to and are now being used and occupiedby such organization for mission or school purposes." [Italics supplied.]On September 21, 1922, however, a like measure was enacted (42 Stat. 994-5),which provides:
"That the Secretary of the Interior is hereby authorized and directed toissue a patent to the duly authorized missionary board, or other properauthority, of any religious organization engaged in mission or school workon any Indian reservation for such lands thereon as have been heretoforeset apart to and are now being actually and beneficially used and occupiedby such organization solely for mission or school purposes, the area sopatented to not exceed one hundred and sixty acres to any one organizationat any station; Provided, that such patent shall providethat when no longer used for mission or school purposes said lands shallrevert to the Indian owners."It will be observed that the proviso in the legislation last referred tois of similar import to the obligation placed upon organizations of thischaracter by section 18 of the act of March 2, 1389, supra. Further,that neither of these conditions or obligations appears in the act of March3, 1909. As supplemental acts relating to the same subject matter may properlybe regarded as a legislature interpretation of prior acts, I am of theopinion that we would not now be justified in issuing an unqualified feepatent to this church organization pursuant to the act of March 3, 1909,in utter disregard of the later legislation in the act of September21, 1922. We now can, of course, in lieu of the outstanding trust patentwhich is with the record in the case, issue a patent in fee with a reversionaryclause in the event that the lands described therein cease to be used formissionary or educational purposes, and this, under authority of the actof September 21, 1922. As previously pointed out, however, this is simplythe character of patent that the church was entitled to in the first instance.
JOHN H. EDWARDS,
Solicitor.
Approved:November 21, 1924.
F. M. GOODWIN,AssistantSecretary.
| 134 | DEPARTMENT OF THE INTERIOR | DECEMBER 1, 1924 |
TITLE TOLAND
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
It appears that a deed executed by C. R. and K. F. Huddleston to the UnitedStates for 10 acres in Sec. 34, T. 10 N., R 10 W., Miss., was acceptedby you on the assurance of the Attorney General that the abstract of titlesubmitted for his consideration showed that the proponents were the ownersof and could convey a good title to the tract.
It now further appears that the same grantors have executed a further conveyanceto the Government of other lands forming a part of the section mentioned,which were also shown by the said abstract of title to belong to them andI have been asked to express my opinion as to whether or not this deedmay be accepted under the opinion already rendered by the Attorney General.
The abstract mentioned is not before me, but you are informed that youmay with propriety accept the deed if it be a fact that the title to theland conveyed by it is the same as the title covered by the abstract underwhich the Attorney General rendered his opinion.
It is suggested, however, that before the deed is accepted, it should besatisfactorily shown that the grantors have not since the compilation ofthe abstract mentioned, incumbered in any the land, and that it is at thistime free from liens for taxes or otherwise.
JOHN H. EDWARDS,
Solicitor.
Approved: December1, 1924.E. C.FINNEY,FirstAssistant Secretary.
QUAPAW TRIBE-HEIRSHIP
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion is requested in connection with the determination of heirs tothe estate of Alexander Mudd, deceased allottee of the Quapaw Tribe ofIndians, Oklahoma.
The heirs in this case were determined July 28, 1914, the estate beingawarded to persons claiming to be heirs on the maternal side. Petitionfor rehearing has been filed in behalf of persons claiming one-half theestate as heirs on the paternal side.
The allotment to Alexander Mudd was made under the provision containedin the Indian appropriation act of March 2, 1895 (28 Stat., 876, 907),ratifying and confirming allotments of land to Quapaw Indian Territory,in pursuance of an act of the Quapau National Council approved March 23,1893. Patent with restrictions against alienation for 25 years was issuedto the allottee September 26, 1896, which time was extended for an additional25 years by the act of March 3, 1921 (41 Stat., 1225, 1248). He died January19, 1898, at the age of 15 years, unmarried and without issue, brothers,or sisters, or children of deceased brothers or sisters. Both of his parentsdied before him and long prior to the allotment of lands on the QuapawReservation. There were no brothers or sisters of his father living whenthe allottee died in 1898 but an uncle and aunt on his mother's side werethen living.
At the time of Alexander Mudd's death the descent of Quapaw estates wascontrolled by chapter 49 of Mansfield's Digest of the Statutes of Arkansas,put in force by section 31, act of Congress of May 2, 1890 (26 Stat., 81,94), in the remaining portion of Indian Territory after said act had erectedtherein the Territory of Oklahoma. Both of these Territories were unitedlyadmitted into the Union November 16, 1907, as the State of Oklahoma.
In a finding of heirship by the District Court of Ottawa County, Oklahoma,on November 24, 1909, the estate of Alexander Mudd was awarded in equalshares to his cousin, Victor Griffin, son of a deceased aunt, and to hisuncle, Joe Buffalo, heirs on the mother's side, with a further findingthat upon the death of Joe Buffalo, the laws of Arkansas still being inforce, his one-half interest went to his six children. The finding of thecourt was apparently based on that provision in Mansfield's Digest readingin part as follows:
"In cases where the intestate shall die with out descendants * * * if theestate be a new acquisition, it shall descend to the father for his lifetimeand then descend in remainder to the collateral kindred of the intestatein the manner provided in this act."The action of the court was adopted by the Department July 28, 1914, andthe allotment of Alexander Mudd was partitioned accordingly. Victor
| 135 | OPINIONS OF THE SOLICITOR | DECEMBER 23, 1924 |
Griffin subsequentlyapplied for permission to sell his interest, the application was approvedand the sale was made, his deed to the purchase being ap proved by theDepartment.
It is contended in the petition for rehearing that the estate of AlexanderMudd was ancestral and upon his death one-half thereof descended to theheirs of the paternal side, in view of decision in the case of Shulthisv. McDougal (170 Fed., 529). The question specifically presentedfor opinion is as to the applicability of said decision to the Quapaw caseof Alexander Mudd.
In the caseofShulthis v. McDougal the court had underconsideration acts of Congress relating to the Five Civilized Tribes ofIndians and the estate involved was that of a member of the Creek Nation.The act of March 1, 1901 (31 Stat., 861, 870), known as the Original CreekAgreement, in providing for the allotment in severalty of the lands ofthe Creeks revived their tribal law of descent and distribution which hadbeen abrogated by prior acts of Congress extending to Indian Territorychapter 49 of Mansfield's Digest. This, however, was temporary as by section6 of the act of June 30, 1902 (32 Stat., 500, 501), known as the SupplementalCreek Agreement, the Arkansas Law of descent with certain qualificationswas reinstated as follows:
"The provisions of the act of Congress, ap proved March 1, 1901 (31 Stat.L. 861). in so far as they provide for descent and distribution accordingto the laws of the Creek Nation, are hereby repealed and the descent anddistribution of land and money provided for by said act shall be in accordancewith chapter 49 of Mansfield's Digest of the Statutes of Arkansas now inforce in Indian Territory: Provided, That only citizens of the CreekNation, male and female, and their Creek descendants shall inherit landsof the Creek Nation: And provided further, That ifthere be no person of Creek citizenship to take the descent and distributionof said estate, then the inheritance shall go to non citizen heirs in theorder named in said chapter 49."There was a similar provision but without the provisos in the act of May27, 1902 (32 Stat., 258). It was under the above act or agreement of June30, 1902, qualifying the Arkansas statutes of descent in respect to theCreek Nation, that members of that tribe were allotted their lands in severalty,and the provisions thereof continued operative until Oklahoma was admittedas a State under the enabling act of June 16, 1906 (34 Stat., 267), whenthe local statutes of descent then in force in the Territory of Oklahomawere substituted for chapter 49 of Mansfield's Digest. Jeffersonv. Fink (247 U.S., 228). While prior decisions of the lower courtsare not entirely uniform on the subject it is now pretty well settled indecisions subsequently rendered by the United States Supreme Court thatthe provisos above quoted in the Supplemental Creek Agreement of June 30,1902, were not affected by the general act of April 28, 1904 (35 Stat.,573), continuing and extending the laws of Arkansas in Indian Territory,nor by the enabling act admitting Oklahoma as a State, theposition being taken that said provisos are a substantial part of the lawunder which the Creek Indians were allotted their lands in severalty. Washingtonv.Miller(235U.S., 422), Jefferson v. Fink (247 U.S., 288,294-5). The said act of April 28, 1904, reads as follows: "All the lawsof Arkansas heretofore put in force in the Indian Territory are herebycontinued and extended in their operation so as to embrace all personsand estates in said Territory, whether Indian, freedman, or otherwise,etc."
It was held in the case of Washington v. Miller, supra,thatthe above act of April 28, 1904, did not operate to repeal the provisosin section 6 of the Supplemental Agreement of June 30, 1902.
The child involved in the case of Shulthis v. McDougal,AndrewJ. Berryhill, was not eligible to enrollment under the provisions of theOriginal Creek Agreement of March 1, 1901, and only became entitled toenrollment under section 7 of the Supplemental Creek Agreementof June 30, 1902. Shulthis v. McDougal (162 Fed.,331, 336). The contention of petitioners for rehearing is that the heirsof Alexander Mudd should have been determined in accordance with the Arkansasstatutes of a descent as applied in the Berryhill case. It is evident,however, that the Arkansas law as modified or qualified by the SupplementalCreek Agreement is not applicable in determining the heirs to the estateof a member of the Quapaw Tribe of Indians whose affairs are subject, ashereinabove shown, to special legislation peculiarly applicable to them.Besides, the facts in the Berryhill case are materially different fromthose in the case of Alexander Mudd thereby giving rise to basis for afinding of heirs according to different laws of descent. He left survivinghim his father, a member of the Creek Tribe, his mother who was a non citizenof the Creek Tribe, and several paternal uncles and aunts. His name wasnot placed on the tribal rolls until after his death nor was his allotmentmade until thereafter. Patent covering his allotment was not issued inhis name but to his heirs.
The original decision in the case of Shulthis v. McDougalwas rendered by the Circuit Court of
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the UnitedStates for the Eastern District of Oklahoma (162 Fed. 331). The court afterdiscussing the distinction between new acquisitions and ancestral estatesconcluded that the allotment of Andrew J. Berryhill was in contemplationof the law a new acquisition, holding (syllabus):
"Under the Arkansas law of descent and distribution an allotment acquiredby a Creek citizen by selection and certificate of allotment or by patentbecame a "new acquisition," and upon the death of such citizen, beforeallotment or after allotment, without issue, or brothers or sisters, leavinga father, such father took a life estate; the fee passing to the unclesand aunts."The case was appealed to the Circuit Court of Appeals, Eighth Circuit (170Fed., 529), where the decree of the lower court was affirmed. The court,after referring to that portion of Mansfield's Digest of the Statutes ofArkansas as to a new acquisition, above quoted, held (syllabus):
"* * * Technically, the Arkansas statute did not apply to the situationsince the land to which the decedent was entitled and which was the commonproperty of the tribe did not, strictly speaking, come to him by grant,inheritance, or purchase, but by a division of lands held in effect bya tendency in common, to an interest in which he was born as a member ofthe tribe entitled to enrollment therein; but that, applying the statuteby analogy, such land was not a "new acquisition" but came to him by theblood of his tribal parent, or, within the meaning of the statute, 'fromhis father.' and that therefore, on his death and the subsequent allotmenthis father took the full title, and not merely a life estate."The case ofShulthis v. McDougal was taken on appealto the United States Supreme Court (225 U.S., 561), but it was there dismissedfor want of jurisdiction. Subsequently that court had before it in McDougalv. McKay (237 U.S., 372), the facts of the Andrew J. Berryhillcase and the question of descent under Mansfield's Digest of the Laws ofArkansas. After quoting extensively from the decision in Shulthisv. McDougal (170 Fed., 529), and from a decision in anothercase by the Supreme Court of Oklahoma wherein the facts are materiallydifferent from those in the Quapaw case of Alexander Mudd in that decedentinvolved in that decision left surviving him father, mother, brothers,sister and her husband, the court decided that the estate of Andrew J.Berryhill was ancestral within the meaning of chapter 49 of Mansfield'sDigest. The court at the same time found that the canons of descent containedin Mansfield's Digest were not precisely applicable to the circ*mstancessurrounding the Berryhill case and expressly stated that in any event itfelt constrained for reasons stated to follow the conclusion reached bythe Circuit Court of Appeals and the Supreme Court of Oklahoma. The courtrefrained from deciding a question raised by the pleadings, evidently becausenot deemed pertinent, namely, that if Andrew J. Berryhill had lived toreceive an allotment "he would have taken the same, not technically merely,but substantially, by the purchase from the United States and the CreekNation, and not by descent from his tribal parents," and that under thesecirc*mstances "he would have taken the allotment as a new acquisition."
It is reasonably clear, therefore, that the findings in the case ofShulthisv. McDougal, involving as they did acts and agreements particularlyapplicable to the Creek Indians, having no application in the matter ofdetermining heirs to estates of the Quapaws except as they may aid generallyin the interpretation of legislation which put in force the Arkansas lawsof descent in the Territory prior to the admission of Oklahoma as a state.Decisions had been rendered in that case by the Circuit Court and the CircuitCourt of Appeals prior to the time the District Court of Ottawa County,Oklahoma, rendered its decision in the Quapaw case of Alexander Mudd. Itis a fair presumption that the latter court was familiar with the Shulthisv. McDougal case and regarded it as inapplicable to the Quapaw situationit had in hand. That the Department may adopt the heirship finding of thatcourt as its own even though said court may have been without jurisdictionin the premises is well settled.
While chapter 49 of Mansfield's Digest of the Statutes of Arkansas relatingto descent extended to the Quapaws and consequently the determination ofheirs to the estate of Alexander Mudd is controlled thereby, neverthelesssuch determination is unaffected by any conclusions reached by the courtsin the Shulthis v. McDougal case based as theyare on acts and agreements which qualified such statutes and related exclusivelyto the Indians of the Creek Nation.
The provisions of Mansfield's Digest relating to descent clearly distinguishbetween an estate coming to a decedent by a parent and a new acquisitionand prescribed different rules of inheritance. The estate of AlexanderMudd did not come to him by his parents but his allotment was regularlymade to him after their deaths as an enrolled member of the tribe in hisown right and in that respect is
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clearly distinguishedfrom the estate involved in the case of Shulthis v.McDougal.
It is my opinion that there is no justification so far as the case of Shulthisv. McDougal is concerned for disturbing the heirship to theestate of Alexander Mudd as already found. Under the decision of the courtas adopted by the Department the estate now stands awarded to the nextof kin.
JOHN H. EDWARDS,
Solicitor.
Approved: December23, 1924.F. M. GOODWIN,AssistantSecretary.
TAXATIONOF RESTRICTED LANDS
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion has been requested with reference to the taxability, under ourFederal income tax laws, of the income derived by members of the Kaw IndianTribe, Oklahoma, from their "restricted lands."
As I see it this question has virtually been determined by outstandingopinions relating to the Indians of other tribes whose lands are in substantiallya similar status to that of the Kaws: See the opinion of the Attorney Generaldated March 15, 1924, relating to allottees of the Five Civilized Tribesin Oklahoma; also my opinion of October 8, 1924 (M. 12946), dealing withrestricted lands of the Quapaw Indians in Oklahoma. In each of these rulingsit was held that the income flowing to individual Indians from their restrictedproperty is not subject to tax under our existing internal revenue laws.In this connection it is not inappropriate to invite attention also tothe opinion by the Attorney General, dated August 14, 1924, wherein heheld that the statutes of limitation of five years within which claimsfor refunds of income taxed erroneously paid must be filed do not applyto restricted Indians. The underlying reasons given in the latter opinionappeal to me as most cogent from a legal as well as other standpoints.
I deem it unnecessary here to present an extensive review of the situationwith respect to the Kaws. Sufficient to say that under the act of July1, 1902 (32 Stat., 636), the "homestead" of 160 acres allotted to eachmember of this tribe was to remain inalienable and "nontaxable" for a periodof 25 years from January 1, 1903; that is until January 1, 1928. Whilethe "surplus lands" allotted to each member, approximating 240 acres, wereto remain inalienable for a period of 10 years only, yet such lands werealso to remain "nontaxable" as long as the title is held by the originalallottee," not exceeding 25 years from the date of patent in each case.As to minors a further declaration is to be found to the effect that thelands allotted to minor members of the tribe shall be inalienable duringminority. As to those matters see section 2 of the act referred to. Noneof the periods mentioned have expired by lapse of time, and by the actof March 4, 1923 (42 Stat., 1561), the restricted period as to minors hasbeen extended for a further period of 25 years from the date of the latteract. So also as to "the homesteads," in the hands of incompetent membersof this tribe, the restricted period is, by the act of May 27, 1924 (43Stat., 176), to be continued for an additional period of 20 years fromJanuary 1, 1928.
The status of lands allotted to the Kaws is substantially on all fourswith that of allottees of the Five Civilized Tribes in that each memberof these tribes received "homestead" and surplus lands," with varying restrictionsas to alienation and taxation against each class of lands. The Kaws, however,if any distinction is to be found, enjoy a stronger exemption from taxation.Hence, the income derived from the restricted lands in the hands of theKaws is not subject to taxation during the period of exemption.
In connection with the question presented my attention has been invitedto a recent ruling by the Treasury Department with respect to the OsageIndians wherein it was said that:
"It would seem, therefore, that if because of the plenary power controlof Congress over Indian Affairs, it may properly subject the Osage property(tribal) to taxation for State and County purposes, the same reasoningrequires it to be held that Congress may also subject such property totaxation for Federal Governmental purposes. If it is deemed proper thatsuch property and its owners should bear a proportion of the cost of Stateand County government, there seems no reason why it can not also be deemedproper that such property and its owners should bear a part of the costof Federal Government. As the Attorney General has said, whether the incomein question should be taxed for Federal purposes is a matter for the determinationof Congress." [Parenthetical data supplied.]About the plenary power of Congress over tribal Indian propertythere can be no doubt and in the
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absence ofsome controlling reason to the contrary Congress undoubtedly has the powerto subject such property to taxation either by the State or Federal Government.The question of taxation of the Osages, however, not being before me fordetermination is one regarding which I here express no opinion.
Solicitor.
Approved: December23, 1924.AssistantSecretary.
STATE RIGHTTO TAX
PATENTSIN FEE
The Honorable,
The Secretaryof the Interior.
DEAR MR.SECRETARY:
My opinion has been requested in connection with the question of taxationby the State of Washington against lands allotted to Indians of the ColvilleReservation where the allottees applied for and received patents in feesimple prior to the expiration of the original trust period.
From the record presented it appears that some 500 allottees on this reservationhave heretofore received patents in fee and that of those who still retaintitle some have voluntarily paid the taxes thereon while others have refusedso to do on the ground that such lands are not taxable by the State untilthe full 25-year period called for by their original trust patents hasexpired.
By the act of July 1, 1892 (27 Stat., 62), Congress provided for allotmentsin severalty to the Indians and the disposal of the surplus unallottedlands within that part of the Colville Indian Reservation commonly referredto as the "north half." By the act of March 22, 1906 (34 Stat., 80), apractically similar disposal was provided for with reference to lands withinthe diminished or south half of this reservation. Both acts, after providingfor an allotment of 80 acres to each Indian, substantially directed theissuance of patents in accordance with the general allotment act of February8, 1887 (24 Stat., 388). This, in turn, (section 5) calls for patents underwhich the United States declared that it would hold the lands so allottedin trust for 25 years for the benefit of the allottee or in case of death,of his heirs, and that at the expiration of said period it would conveythe lands in fee to the allottee or to his heirs as the case might be "freefrom any charge or incumbrance whatsoever." In other words, our familiar25-year trust patent, which, so long as the land remained in that statusoperated as an effective bar against taxation by the State: (143 Fed.,287). As the period of the trust is to be calculated in each instance fromthe date of the primary or trust patent, necessarily this will vary asto individual allottees but for our present purposes it is sufficient tostate that trust patents on the north half of the Colville Reservationwere issued mainly under date of July 31, 1920; those for allotments onthe south half bearing date mainly of April 13, 1917. Hence, the 25-yeartrust period has not expired, by lapse of time, in any instance.
Congress, however, on May 8, 1906 (34 Stat., 182), amended the generalallotment act in several respects, with which we are here concerned tothe extent only of that proviso which reads in part:
"That the Secretary of the Interior may, in his discretion, and he is herebyauthorized, whenever he shall be satisfied that any Indian allottee iscompetent and capable of managing his or her affairs at any time to causeto be issued to such allottee a patent in fee simple and thereafter allrestrictions as to sale, incumbrance, or taxation of saidland shall be removed and said land shall not be liable to the satisfactionof any debt contracted prior to the issuing of such patent." [Italics supplied.]For a considerable period the view prevailed rather generally that inalienabilityand nontaxability as applied to allotted Indian lands were coexistent factors,or, in other words, that as soon as restrictions are removed the landsthen become subject to taxation. Evidently Congress entertained a likeview for in several measures pertaining to such matter that body attempted,as it did in the act of May 8, 1906, supra, to coupletaxability with a removal of the restrictions against alienation: See actof June 21, 1906 (34 Stat., 353), relating to allottees on the White EarthReservation, Minnesota, and the act of May 27, 1908 (35 Stat., 312), relatingto the Five Civilized Tribes in Oklahoma. In 1912, however, the SupremeCourt of the United States, after pointing out that alienability and taxabilityare separate and distinct subjects, laid down the rule, substantially,that while Congress could remove the restrictions against alienation wheneverit saw fit so to do, yet where an Indian has once obtained a vested rightof exemption from taxation for a definite period it is thereafter beyondthe power of Congress, by statute, to deprive the Indian of that rightwithout his consent: Choate v. Trapp (224 U.S.,656-673). To the same effect is
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the decisionby the Eighth Circuit in Morrow v. The United States (243Fed.,854), involving allottees of the White Earth Reservation, Minnesota. Seealso 49 L.D., 348-352, wherein it was pointed out that a removal of restrictions,within itself, does not deprive the Indian of any property right but simplyenlarges his privilege of dealing with the lands allotted to him whichhe could there after retain, incumber, or dispose of, as he might see fit.Enlargement of personal privileges are matters of which one can hardlybe heard to complain, but when we attempt to couple this with an invasionof a vested property right we confront a different situation. If it isbeyond the power of Congress to invade a property right resting in theIndian, surely it is likewise beyond the power of an administrative officer,by the issuance of a patent in fee prior to the expiration of the trustperiod, without the consent of the Indian, to deprive him of a right whichhas once vested. In other words, his lands cannot thus be made subjectto taxation without his consent: Benewah County,Idahov. United States (290 Fed., 628).
We are not here greatly concerned, however, with those comparatively fewcases where patents in fee have issued without the consent of the Indian.For, as indicated in the opening paragraph, the question now here dealsonly with those Indians who applied for and received patents in fee simpleprior to the expiration of the original trust period provided for in theprimary or trust patents issued to them. This brings into view a somewhatdifferent situation, and one with respect to which there can be but littleif any doubt. Where an allottee voluntarily applies for a removal of restrictionsprior to the expiration of the period of exemption originally providedfor, the granting of such application subjects the lands to taxation evenin the hands of the original allottee: See Sweet v. Shock(245U.S., 192-196-7). The application for removal of restrictions or, as inthis case, the issuance of a patent in fee, being wholly voluntary on thepart of the Indian, he takes title subject to the terms, conditions, andlimitations of the statute under which the application is granted. In otherwords, he can not embrace the benefits of a statute and at the same timeescape the responsibilities or liabilities arising thereunder. In so faras allottees on the north half of the Colville Indian Reservation are concernedthe fact that such lands after issuance of a patent in fee became taxableis fortified by that legislative declaration in the act of July 1, 1892,supra,the very act under which they received their lands in severalty, whichdeclares:
"That such allotted lands shall be subject to the laws of eminent domainof the State of Washington, and shall, when conveyed in fee simple to theallottees or their heirs, be subject to taxation as other property in thatState."Aside from the legislative declaration just mentioned, however, I am ofthe opinion that when an Indian allottee applies for and receives a patentin fee simple pursuant to the act of May 8, 1906, supra, even priorto the expiration of the original trust period, such lands then becomesubject to taxation.
In connection with this matter the Commissioner of Indian Affairs invitesattention to section 2 of the act of July 1, 1892, supra, in whichCongress authorized the Secretary of the Interior, in his discretion, touse part of the proceeds derived from the sale of surplus lands withinthe north half of the Colville Indian Reservation to pay such part of thelocal taxes as might properly be chargeable against the lands allottedto these Indians "so long as such allotted lands shall be held in trustand exempt from taxation." Having found that the issuance of a patent infee not only terminates the trust but also subjects the land to taxation,this feature of the situation is not of great materiality here. It maybe observed, however, that by the act of June 7, 1924 (43 Stat., 599),Congress has directed payment to Stevens and Perry Counties, Washington,of some $115,767 in lieu of taxes against lands allotted to Indians onthe Colville Reservation pursuant to section 2 of the act of July 1, 1892,supra, butthis is to be used, of course, only in settlement, ratably, of taxes deniedto the State where the lands so allotted are still "held in trust" andtherefore exempt.
JOHN H. EDWARDS,
Solicitor.
Approved: December24, 1924F. M. GOODWIN,AssistantSecretary
CREEK-DESCENTOF LANDS
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My attention has been invited to a communication from the Superintendentfor the Five Civilized Tribes in connection with the estate of Rowie ElizabethPitman, a deceased allottee of the Creek Indian Tribe, Oklahoma, whichwas the subject of my opinion of November 8, 1924.
The superintendent seems to be laboring under
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the impressionthat the enabling act under which Oklahoma was admitted into the Unionas a State (34 Stat., 276) operated as a repeal of that proviso in section6 of the supplemental Creek agreement embodied in the act of June 30, 1902(32 Stat., 500),- the basic law under which these Indians received theirallotments in severalty-which reads:
"That only citizens of the Creek Nation, male and female, and their Creekdescendants, shall inherit lands of the Creek Nation."When we examine the rulings laid down by our Supreme Court in Skeltonv. Dill (235U.S., 206); Washington v. Miller (Id.,422) ; McDougal v. McKay (237 U.S., 373); andCampbellv. Wadsworth (248 U.S., 169-177), we cannot escape the conclusionthat the proviso quoted from the supplemental Creek agreement is stillin force and effect. This matter was discussed quite fully in my prioropinion, wherein, after pointing out that there is nothing in the enablingact of the State, either expressed or implied, indicating an intent onthe part of Congress to repeal the specific provision in the law or agreementreferred to governing the descent of lands in the Creek Nation, it wasfurther observed that repeals by implication are not lightly to be inferred.In other words, in the absence of an express declaration by Congress tothat effect, we are not warranted, by implication, in imputing to thatbody an intent to repeal an express declaration in an agreement with theseIndians under which their tribal lands were allotted in severalty. Furtherdiscussion of this feature of the matter should be unnecessary, but, largelyfor convenient reference by the superintendent, several paragraphs fromthe syllabus in Washington v. Miller (235 U.S., 422) areset up below:
"Section 6 looked to the future no less than to the present and is intendedto prescribe rules of descent applicable to allotments and there is nothingin that section indicating that it was intended to be less comprehensive;the words "lands of the Creek Nation" as used therein mean lands in theCreek Nation and include such lands after as well as beforeallotment.In the instant case the allottee died while yet a minor, unmarried andwithout issue, leaving her father, Robert Pitman, a white man, her mother,Lucinda Pitman, a full-blood Creek Indian, and several brothers and sistersby the same parents, these children, like the allottee, of course, beingof but one-half Indian blood. Under these circ*mstances and the law, myopinion of November 8th expressed the view that the father being whiteand a noncitizen or member of the Creek tribe, took no share as an heirin the allotment of this decedent. Further, that the homestead part ofthis allotment, the decedent being of one-half Indian blood, wasrestricted at the time of her death and remained restricted in the handsof the full-blood Indian mother and heir, hence, that the oil and gas royaltiesderived therefrom, in the hands of the Superintendent of the Five CivilizedTribes, remained subject to control and supervision by the Secretary ofthe Interior; citing Parker v. Richards (250 U.S.,235). In that connection attention may also be invited to the ruling bythe Eighth Circuit Court of Appeals in United States v. Hinkle(261 Fed., 518)."Repeals by implication are not favored and usually occur only in casesof such irreconcilable conflict between an earlier and later statute thateffect cannot reasonably be given to both.
"Where there are two statutes upon the same subject, the earlier beingspecial and the later general, the presumption is, in the absence of anexpress repeal, or an absolute incompatibility, that the special is toremain in force as an exception to the general.
"There is no incompatibility between a general statute purporting to regulatedescent and distribution of all lands within a Territory and a specialstatute directly regulating descent and distribution of a particular classof Indian lands therein.
"Under Par. 6 of the agreement of June 30, 1902, regulating descent anddistribution of Creek Indian allotments, the non-citizen father does notinherit where there are citizen heirs who can take the inheritance." [Italicssupplied.]
My prior opinion pointed out further that jurisdiction to determine theheirs of deceased allottees of the Five Civilized Tribes rests not in theSecretary of the Interior but in the local courts: hence, that opinionis not to be regarded as a determination of the heirs of the decedent inthis instance, but rather as an expression of the view, amply supportedby the law and decisions referred to, that the royalties derived from therestricted part of this allotment remained restricted in the hands of thefull-blood Indian heir, subject to continued supervision by the Secretaryof the Interior. The concluding paragraphs of the earlier opinion leadto the impression that the full-blood Indian mother was the sole heir ofthe decedent. This impression can best be clarified by inserting the words"in part" after the word "cast" in line 16, page 6, and also in line 14,page 7, after the word "lands." As
| 141 | OPINIONS OF THE SOLICITOR | APRIL 24, 1925 |
so modifiedand understood, my former opinion is adhered to, it being manifestthat the scope of the opinion is simply to the effect that whatever partof the restricted allotment of Elizabeth Rowie Pitman came into the handsof her full-blood Indian mother by descent, remained restricted in thehands of the flubbed Indian heir, and that the royalties therefrom, whilethe lands were so restricted, remain subject to control by the Secretaryof the Interior under the rulings laid down in Parker v. RichardsandUnited States v. Hinkle, supra.
JOHN H. EDWARDS,
Solicitor.
Approved: January23, 1925.F. M. GOODWIN,AssistantSecretary.
FLATHEAD--ENROLLMENT
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion is requested in the matter of the enrollment of Harry Leon Beauchainewith the Flathead Tribe of Indians, Montana.
By section 28 of the act of May 25, 1918 (40 Stat. 561, 591-2) the Secretaryof the Interior was authorized:
"To withdraw from the United States Treasury and segregate the common,or community funds of any Indian tribe which are, or may hereafter be,held in trust by the United States, and which are susceptible of segregation,so as to credit an equal share to each and every recognized member of thetribe except those whose pro rata shares have already been withdrawn underexisting law, * * * Provided, however, That the funds of any tribe shallnot be segregated until the final rolls of said tribe are complete."It is provided in the act of June 30, 1919, (41 Stat. 3, 9) as follows:
That the Secretary of the Interior is hereby authorized wherever in hisdiscretion such action would be for the best interest of the Indians, tocause a final roll to be made of the membership of any Indian tribe; suchrolls shall contain the ages and quantum of Indian blood, when approvedby the said Secretary are hereby declared to constitute the legal membershipof the restrictive tribes for the purpose of segregating the tribal fundsas provided in section 28 of the Indian Appropriation Act approved May25, 1918 (Fortieth Statutes at Large, pages 591 and 592), and shall beconclusive both as to ages and quantum of Indian blood."Under the foregoing legislation and the for the purpose contemplated thereina "final" roll of the Flathead Indians was prepared, and it was approvedJanuary 22, 1920. After this approval the Superintendent reported to theIndian Office that several children apparently entitled to enrollment had,for various reasons, been omitted from the roll. That office referred thematter to the Department, which stated, among other things: "It was undoubtedlyintended by the act of June 30, 1919, and the by approval of January 22,1920, that the membership roll of the tribe should be a final roll in factas well as in name. It is also clear that by subsequently permitting additionsto the roll its finality would not only be disturbed but also the pro ratadistribution of the tribal funds."
The Department subsequently recommended legislation by Congress in thepremises, resulting in the passage of the act of May 31, 1924 (43 Stat.246), which provide for the addition of the names of certain persons tothe final roll of the Flathead Indians as follows:
"That the Secretary of the Interior be, and he is hereby authorized toadd to the final roll of the Indians of the (Jocke) Flathead Indian Reservation,Montana, approved January 22, 1920 under the Act of May 25, 1918 (FortiethStatutes, page 591), and the Act of June 30, 1919 (Forty-first Statutes,page 9), the names of the following persons, descendants of the ConfederatedFlathead Tribes of Indians: * * * Harry Leon Beauchaine * * *."In view of this act the name of Harry Leon Beauchaine was placed on thefinal roll of the tribe, it appearing from the records of the Indian Officeat the time that he was entitled to enrollment. Not only was he enrolledfor a per capita payment from the tribal funds but he was also allotteda tract of land on the Flathead Reserva-"The Secretary of the Interior is also authorized to pay to each of thepersons named a sum equal to that heretofore paid per capita to those whosenames were on the approved roll, such payments to be made from any tribalfunds in the Treasury to the credit of the Flathead Indians."
| 142 | DEPARTMENT OF THE INTERIOR | APRIL 24, 1925 |
tion underthe act of February 25, 1920 (41 Stat. 452), and both trust and restrictedfee patents were issued covering his allotment. He was enrolled as theson of Joseph Beauchaine and his wife, Lillian, the former being enrolledand allotted on the Flathead Reservation and the latter on the Coeur d'AleneReservation, Idaho.
It now appears that Harry Leon Beauchaine is not entitled to any rightswhatever on the Flathead Reservation. He is not the son of Joseph Beauchaine,but of one Roy Kirkpatrick, a white man and the former husband of LillianBeauchaine. He was already enrolled at the Coeur d'Alene Reservation asJohn Kirkpatrick and was so enrolled by his mother. However, upon his enrollmentand allotment on the Flathead Reservation, instructions were issued bythe Indian Office to the Superintendent to drop his name from the Coeurd'Alene rolls.
The act of May 31, 1924, specifies the persons whose names were to be addedto the roll in question as "descendants of the Confederated Flathead Tribesof Indians". The mother of Harry Leon Beauchaine is enrolled on the Coeurd'Alene Reservation and is said to be of Spokane stock. Joseph Beauchaine,enrolled at Flathead, is not the father of Harry, as originally reported;consequently, the latter is not of the blood of either of the tribes onthe Flathead Reservation.
The specific question presented for opinion is as to whether, in view ofthe provisions of the act of May 31, 1924, "the name of Harry Leon Beauchainemay be withheld from the Flathead final roll and payment of his claim forpercapita tribal shares denied; or whether the act last mentionedshould be considered mandatory, directing the enrollment of all personsnamed therein".
The last question need only be answered in connection with the matter ofwithholding per capita payments, as it is academic rather than practicalin so far as enrollment is concerned. Whether it was mandatory upon theDepartment to enroll Beauchaine is not now to be decided, because, mandatoryor permissive, whatever the act may be, the fact is that he was actuallyenrolled. He has been placed upon the final roll and there can be no questionthat there was due authority of law to place him there. But as to withholdinghis share of tribal payments a different question is presented becausethe payment not having been made it is a matter still within the controlof the Department unless the act of May 31, 1924, authorizing such paymentis mandatory.
In the case of Martin Wolfe (49 L.D. 625), the Departmenthad under consideration legislation which "authorized" the Secretary todo certain things and in which it was said: "In its ordinary meaning 'authorized'is permissive in character, not imperative, and has only been held to bemandatory in the construction of public statutes when a certain conditionexists". In that connection the following was quoted from Lewis SutherlandStatutory Construction, construing "permissive" words of almost identicalmeaning with "authority":
"But there may be something in the nature of the thing empowered to bedone, something in the object for which it is to be done, some thing inthe conditions under which it is to be done, something in the title ofthe person or persons for whose benefit the power is to be exercised, whichmay couple the power with a duty, and make it the duty of the person inwhom the power is reposed to exercise that power when called on to do so."So that while the name of Harry Leon Beauchaine was in fact placed uponthe final roll of the Flathead Tribe, it is obvious that if the actualfacts had been known at the time, this would not have been done. In viewof the situation, there can be no question as to the power of the Secretaryto withhold payments to him of the per capita shares of thetribal funds, and under the circ*mstances it becomes his duty to do so.
As hereinbefore stated, Harry Leon Beauchaine was not only enrolled forpercapita payments but was also given an allotment of land on whichtrust and restricted fee patents were issued. It will be necessary to askauthority of Congress to cancel these patents. Under the act of April 23,1904 (33 Stat. 297) the Secretary is authorized to cancel trust patentsin specified instances but not in a case of this kind. He may, however,under the provisions of that act, apply to Congress for authority to cancelthe trust patent in question. By the act of March 3, 1925 (Public No. 349),the Secretary is authorized to cancel restricted fee patents covering allottedlands of the Winnebago Indian Reservation in Nebraska. In view of thislegislation authority may very properly be asked of Congress to cancelthe restricted fee patent issued in the present case. As authority mustbe obtained to cancel these patents, Congress may very well be requestedat the same time for authority to strike the name of Harry Leon Beauchainefrom the final roll of the Indians of the Flathead Reservation.
EDWARD WRIGHT,
ActingSolicitor.
Approved: April24, 1925.JOHN H. EDWARDS,AssistantSecretary.
| 143 | OPINIONS OF THE SOLICITOR | MAY 12, 1925 |
EXTENT OFINDIAN WATER
RIGHTS
The Honorable,
The Secretaryof the Interior.
My DEAR MR.SECRETARY:
The question submitted for my opinion thereon, at the instance of the Commissionerof Indian Affairs, is as to the extent to which the right to use the watersof certain creeks should be asserted for the benefit of the Blackfeet Indians.
It appears that, independent of the State laws, these Indians collectivelyhold the dominant right to the use of so much of the waters of these creeksas would be reasonably necessary to the irrigation of the arid area oftheir lands, and that all the waters thereof not so needed are subjectto appropriation by other persons under the laws of Montana. Appropriationof these waters is now being claimed by the Toole County and the Cut Bankirrigation districts.
For the purpose of effecting an amicable adjustment of the adverse claimsthus arising, Congress passed the act of February 26, 1923 (42 Stat. 1289),which authorized the Secretary of the Interior to enter into an agreementwith the districts "to fix the extent of the prior right of the Indiansresiding, and entitled to reside on the Blackfeet Indian Reservation, collectively,to the waters" mentioned.
The extent to which the Indians are entitled to this water, is, of course,to be controlled by the character and area of those parts of their landson which it could be beneficially used for irrigation, and after the makingand completion of the necessary investigations and estimates it was reportedthat that area, including scattered tracts, embraced 119,550 acres andwould require an annual diversion of 284,300 acre-feet.
After a report of these estimates had received departmental approval, representativesof one of the districts mentioned questioned its correctness on the groundthat the duty of water is placed too high, and for the further reasonthat the Indians are not now capable of profitably irrigating certain landswhich embrace 40,000 acres, because of the character of the lands.
It was stated in the Indian Office letter requesting my opinion that:
"The question, therefore, is whether or not the Act of February 26, 1923,permits of a construction of the nature contended for by the Toole Countyrepresentatives, which is to the effect that only those lands should beincluded in the irrigable area which the Indians may irrigate or whetheror not there should be included, as has been contended by this Bureau,all the lands actually susceptible of irrigation. The Toole County representativestake the position that this 40,000 acres may be feasible of irrigationby a white man but that the Indians are not educated to the point wherethey will irrigate same. The position assumed by the Bureau is that theAct contemplated the fixing for all times the ultimate irrigation needsof the Indians".I fail to find anything in the statute mentioned which furnishes an answerto the question submitted. While that act recognizes the prior right ofthe Indians, it makes no reference whatever to the extent of that right.The prior right of these Indians to the use of this water was not conferredbut merely recognized by that act. That right had its origin in the treatyratified by the act of May 1, 1888 (25 Stat. 113), under which the BlackfeetIndians and Indians on other similar reservations acquired the right tolands themselves. The lands now held by the Indians under that treaty wereformerly a part of a very much larger area which they had the right tooccupy, an area far in excess of their needs, which was reduced by thetreaty mentioned. The act ratifying the treaty provided for the allotmentof lands in the reduced area in severalty to individual Indians in orderto help them, as they declared in the treaty, "to obtain the means to enablethem to become self-supporting as a pastoral and agricultural people, andto educate their children in the paths of civilization".
The courts have twice interpreted that act of 1888 and the treaty in sofar as they concern the rights of the Indians to the use of water, oncein Mintern v. United States (207 U.S. 564), and againin Conrad Investment Company v. United States (161Fed. 829). In each of these cases it was held that inasmuch as the treatywas entered into before the admission of the Territory of Montana intothe Union, Congress had the power to reserve, and did reserve the watersin this and a similar reservation for the use of the Indians for irrigationpurposes, and thus exempted such waters from the operation of the Statelaws later enacted to control the appropriation of waters.
In the Conrad case the court made a declaration which is helpful in thepresent consideration when it said:
"What amount of water will be required for these purposes may not be determinedwith absolute accuracy at this time; but the policy of
| 144 | DEPARTMENT OF THE INTERIOR | MAY 12, 1925 |
It was natural and entirely reasonable that the court should hold thatthe prospective needs of the Indians as well as their present needs shouldcontrol in determining the amount of water to which the Indians were entitled.Congress recognizes the fact that the needs for water by those untutoredaborigines who were then inclined and desired to change themselves into"a pastoral and agricultural people" would grow larger as time went onand they developed and took on greater ability as agriculturalists; andit will not do now to say that they are not entitled to water for the irrigationof the 40,000 acres referred to because they have not yet reached the pointin their development where they can use that water as profitably as a whiteman could use it.thegovernment to reserve whatever water of Birch creek may be reasonably necessary,not only for present uses, but for future requirements, is clearly withinthe terms of the treaties as construed by the Supreme Court in the WintersCase."
If the amount of water to be allowed to these Indians now could be hereafterincreased from time to time as their ability to use it grew larger, theremight be force in the contention that the 40,000 acres should be left outof the present consideration, but both their present and their prospectiveneeds must be protected by the agreement, because it is evident that Congressintended that the agreement should be a final determination of the entirerights of the Indians and that therefore there could
be no futureadjustments notwithstanding the fact that changed conditions may hereaftercall loudly for the use of additional water by the Indians.
In conclusion I am constrained to inform you that in my opinion the amountof water set apart for the Indians should be such as would reasonably enablethem either now or hereafter to reclaim and successfully to cultivate theentire irrigable area of their lands.
C. EDWARD WRIGHT,
ActingSolicitor.
Approved: May12, 1925.JOHN H. EDWARDS,AssistantSecretary.
DISPOSITIONOF ALLOTMENT
FUNDS--OSAGE
The Honorable,
The Secretaryof the Interior.
MY DEAR MR.SECRETARY:
At the suggestion of the Commissioner of Indian Affairs my opinion hasbeen requested as to the disposition to be made of some $4,970.95, theproperty of Mrs. Blanche Stroud, Osage allottee No. 1394, under circ*mstancesarising as follows:
Pursuant to the Osage allotment act of June 28, 1906 (34 Stat. 389), theland and moneys belonging to this tribe were divided equally among thetribal members according to a final roll of the tribe prepared in accordancewith the terms of that act. Such final roll contains the names of some2,229 members, each of whom received in allotment 160 acres of land designatedas a "homestead" and approximately 400 acres commonly referred to as "surplus."Varying restrictions as to alienation, taxation, etc., were imposed againsteach class of land in the hands of these allottees, but under section 3of the act, the oil, gas, coal, and other minerals under the lands so allotteddid not pass to the individual allottees, but were to remain the commonproperty of the tribe for a period of 25 years from April 8, 1906, subjectto lease in the meantime by the tribal council for the benefit of the tribeat large under such rules and regulations as the Secretary of the Interiormight prescribe. This period of communal ownership of the underlying mineraldeposits has since been extended to April 7, 1946, but nothing materialhere turns on that. The rents and royalties derived from tribal leasescovering these mineral deposits, together with the funds from certain othersources, were directed to be distributed per capita, in quarterly installmentsto the enrolled members of this tribe (section 4) and by a provision insection 2, subsection 7, the Secretary of the Interior was authorized toissue to the members of this tribe found to be capable of managing theirown affairs, a "certificate of competency", whereupon all restrictionsas to alienation, taxation, etc., of the lands allotted to such members,except the homestead, were removed. Pursuant to the authority just mentionedon January 17, 1910, a certificate of competency was duly issued to Mrs.Stroud. She being of but one-eighth Indian blood, such restrictions asmay have remained even against her homestead lands were removed by section3 of the act of March 3, 1921 (41 Stat. 1249).
The income flowing to the Osage Tribe from royalties on oil and gas depositsunderlying that reservation increased to such an extent that for a numberof years last past the net income accruing to each member of the tribehas averaged around $10,000 per annum. In this connection it is to be rememberedthat prior to distribution the income from such sources is tribal ratherthan individual, That is, a member on whose allotted lands no oil and gaswells are located receives exactly the same share as the member on whoselands the most pro-
| 145 | OPINIONS OF THE SOLICITOR | DECEMBER 19, 1925 |
ductive wellsmay be located. Under the earlier legislation referred to, this incomewas distributable in quarterly installments to enrolled members of thetribe, the shares due minors being paid to their parents with certain exceptionsnot here material: Work v. Mosier (261 U.S. 352).This led to such gross extravagance that Congress decided to make a changeand by the act of March 3, 1921, supra, directed:
Sec. 4. That from and after the passage of this Act the Secretary of theInterior shall cause to be paid at the end of each fiscal quarter to eachadult member of the Osage Tribe having a certificate of competency hisor her pro rata share, either as a member of the tribe or heir of a deceasedmember, of the interest on trust funds, the bonus received from the saleof leases, and the royalties received during the previous fiscal quarter,and so long as the income is sufficient to pay to the adult members ofsaid tribe not having a certificate of competency $1,000 quarterly. * * *Of like import, in so far as competent members of this tribe are concerned,is the opening sentence of section 1 of the act of February 27, 1925 (43Stat. 1008), which reads:
That the Secretary of the Interior shall cause to be paid at the end ofeach fiscal quarter to each adult member of the Osage Tribe of Indiansin Oklahoma having a certificate of competency, his or her pro rata share,either as a member of the tribe or heir or devisee of a deceased member,of the interest on trust funds, the bonus received from the sale of oilor gas leases, the royalties therefrom, and any other moneys due such Indianreceived during each fiscal quarter, including all moneys received priorto the passage of this Act and remaining unpaid.In both instances, it will be observed the legislative direction with respectto competent members of this tribe is clear and unambiguous; to wit, theSecretary "shall cause to be paid." In the absence of some controllingreason to the contrary therefor, nothing would remain for administrativeofficers of the Government to do but perform the purely ministerial dutydirected by the statute: i.e. to pay or "cause to be paid:" Workv. Lynn (266 U.S. 162). In other words, the matteris not one calling for the exercise of administrative discretion. Underdate of January 9, 1925, however, the Collector of Internal Revenue forthe first district of Texas, within which district Mrs. Stroud for a memberof years past has resided, caused to be served on the Superintendent ofthe Osage Agency, at Pawhuska, Oklahoma, through whose hands disbursem*ntsto members of the Osage tribe are made, a "notice of levy on bank deposits."This was accompanied by a "notice of tax lien under Internal Revenue laws,"covering certain income taxes alleged to be due from Mrs. Stroud for theyears 1920 and 1921, such notices having been filed pursuant to section3186 of the Revised Statutes as amended by the act of March 4, 1913 (37Stat. 1016) , which reads:
If any person liable to pay any tax neglects or refuses to pay the sameafter demand, the amount shall be alien in favor of the United States fromthe time when the assessment list was received by the collector, exceptwhen otherwise provided, until paid, with the interest, penalties, andcosts that may accrue in addition thereto upon all property and rightsto property belonging to such person: Provided, however, Thatsuch lien shall not be valid as against any mortgagee, purchaser, or judgmentcreditor until notice of such lien shall be filed by the collector in theoffice of the clerk of the district court of the district within whichthe property subject to such lien is situated: Provided, further, Wheneverany State by appropriate legislation authorizes the filing of such noticein the office of the registrar or recorder of deeds of the counties ofthat State, or in the State of Louisiana in the parishes thereof, thensuch lien shall not be valid in that State as against any mortgagee, purchaser,or judgment creditor, until such notice shall be filed in the office ofthe registrar or recorder of deeds of the county or counties, or parishor parishes in the State of Louisiana, within which the property subjectto the lien is situated.Copies of notice of such lien appear to have been filed also with the clerkof the Federal Court for the western district of Oklahoma and the clerkof the County Court of Boxer County, Texas, as required by the statute.On bringing this matter to the attention of the Commissioner of IndianAffairs, the Superintendent at Osage was directed to withhold from Mrs.Stroud the sum herein first above mentioned and she is now here, by briefof her attorneys, demanding payment of the funds so withheld. Considerablecontroversy seems to exist between the taxpayer and the collector as tothe taxes in dispute, Mrs. Stroud insisting that all tees due from herhave been paid and that the sum now
| 146 | DEPARTMENT OF THE INTERIOR | DECEMBER 19, 1925 |
demanded representsunpaid taxes assessed against her husband, Sam W. Stroud, a white man anda nonmember of the Osage Tribe. This seems to be borne out in large measureby a letter from the tax collector to the special disbursing agent at theOsage Agency under date of August 17, 1925, wherein it was said:
In reply, you are advised that the tax liability for the years in questionwas assessed from an investigation of the operations of Mr. Stroud in connectionwith the promotion of certain stock in the Stroud Motor Company of SanAntonio, Texas. It developed from this investigation that Mr. Stroud andhis partner, Mr. Geo. McDowell had received large sums of money from thepromotion and sale of this stock for which they had not accounted to thisBureau in their income tax return.Even in those States, however, where the law of community property prevails,the separate estate of the wife is not liable for the debts of her husband:C. J. 115-116. The courts of Texas have so held: Red River NationalBank v. Ferguson (206 S.W. 923), Arnold v. Leonard(273 S.W. 799). Community property, of course, is understoodto mean that property acquired after coverture by the joint efforts ofa husband and wife. Under no construction of that term can it be said thatthe income flowing to Mrs. Stroud as an enrolled member of the Osage Tribeis community property belonging jointly to herself and husband.As husband and wife are permitted to file community returns inTexas, both Mr. and Mrs. Stroud executed delinquent returns and acknowledgedtheir liability. The returns in question showed a like amount of tax dueby both husband and wife. There is still due by the husband Sam W. Stroud, theamount of $1812.95 plus 5 per cent $90.65 and interest at the rate of oneper cent per month from December 16th, 1922. This item was not includedin the claim filed with your Department. [Italics supplied.]
In view of the mandatory provisions of the acts of March 3, 1921, and February27, 1925, supra, with respect to payments to competentmembers of the Osage Tribe, I am of the opinion that the funds here inquestion should be paid to Mrs. Stroud.
JOHN P. MCDOWELL,
ActingSolicitor.
Approved: December19, 1925.JOHN H. EDWARDS,AssistantSecretary.
TAXATION--RESERVATION
The Honorable,
The Secretaryof the Interior.
MY DEAR MR.SECRETARY:
My opinion has been requested as to whether the income of Tom Pavatea,an Indian of the Hopi Tribe, Arizona, and other Indians in a like situation,is subject to an income tax under our Internal Revenue laws.
The amount in question, asserted to be due by the Internal Revenue Bureau,aggregates $367.50, being $294 in taxes for the years 1918, 1919 and 1920,and $73.50 in penalties assessed against this Indian for failure to filereturns for the years mentioned and subsequent years.
The Indians of the Hopi Reservation are unallotted tribal Indians in thefullest sense of that term. They occupy a reservation approximating 2,500,000acres in Northern Arizona, set apart in 1882 for the use and benefit ofthese Indians in common. This reservation lies adjacent to and almost surroundedby the Navajo Reservation, also unallotted, containing in round numberssome 1,200,000 additional acres. The vast domain occupied by these Indiansis largely arid, or at best semiarid, being valuable mainly for grazingpurposes. Extensive areas therein are of but scant value even for thatpurpose. Essentially the Indians of these tribes are herdsmen rather thanagriculturists, the conditions surrounding their habitat of necessity forcingthem to be so. Dependent chiefly on sheep, goats and cattle for a meansof livelihood, the Indians of these two tribes, exceeding some 30,000 innumber, afford possibly the best remaining illustration of the old tribalIndian as yet but lightly touched by the hand of civilized man. Tom Pavateais a full-blood, reported as "never having been away to school", residingat Polacca, in the heart of the Hopi Reservation; uneducated, unable toread or write, and with such a scant knowledge of the English languageas to be almost unable to speak it intelligently. In addition to some interestsin sheep and cattle raised on the reservation he conducts a small tradingpost among his fellow tribesmen at Polacca. His income, here sought tobe taxed, is derived mainly from these sources, augmented in part by astage line conducting tourists over the Hopi Reservation and the adjacentNavajo country. He keeps no books or records of his financial transactions;in fact, personally he is unable so to do.
From the inception of sovereignty by this country the Indians have everbeen treated as wards of
| 147 | OPINIONS OF THE SOLICITOR | JANUARY 20, 1926 |
the Nation,entitled to its protection and support, dependent upon it, duringearlier times at least, for their daily food, and wholly dependent on thelegislative powers of Congress for their political and civil rights.Cherokee Nation v.Georgia (5 Pet. 1); United Statesv. Kagama (118 U.S. 383); United States v. Rickert(188 U.S. 437); United States v. Sandoval (231 U.S. 45).According to a similar rule legislation affecting the Indians is to beconstrued in their favor (215 U.S. 279), and an intention to make a radicaldeparture is not lightly to be inferred (241 U.S. 599). It has even beenheld that legislation of a general nature or of prima facie generalapplication does not extend to the Indians in the absence of some clearintent to include them; 109 U.S. 571; 112 U.S. 99-100; 241 U.S. 605, 606."The Indian has always been the object of special legislation. Never hasit been the practice to legislate for him generally along with the restof the people": (34 Op. Atty. Gen. 444). In Choate
v. Trapp(224 U.S. 665-675), the Supreme Court said:
* * * In the Government's dealings with the Indians the rule is exactlythe contrary. The construction, instead of being strict, is liberal; doubtfulexpressions, instead of being resolved in favor of the United States, areto be resolved in favor of a weak and defenseless people, who are wardsof the nation, and dependent wholly upon its protection and good faith.This rule of construction has been recognized, without exception, for morethan a hundred years and has been applied in tax cases.Even as to income taxpayers other than Indians the same court has alsoheld that doubts must be resolved in favor of the taxpayer rather thanin favor of the Government:Gould v. Gould (245 U.S. 151);United States v. Merriam (263 U.S.
1'79). Fromthe former case we read (p. 153):
In the interpretation of statutes levying taxes it is the established practicenot to extend the provisions by implication beyond clear import of thelanguage used, or to enlarge their operation so as to embrace matters notspecifically pointed out.When we come to examine our Internal Revenue acts of September 8, 1916(39 Stat. 756); February 24, 1919 (40 Stat. 1057); November 3, 1921 (42Stat. 227), and June 2, 1924 (43 Stat. 253), they are wholly silent asto the Indians or the income derived by the Indians from restricted orgovernmentally controlled sources. The hearings onthese bills disclose no reference to the Indians or any understandingthat in framing these statutes Congress had in mind the imposition of atax on these dependent wards of the Nation.
The Attorney General has had occasion recently to consider the applicabilityor rather the non applicability of our Internal Revenue laws to the Indians(34 Op. Atty. Gen. 275; id. 303; id. 439); also an opinion dated November11, 1925, relating to the Kaw Indians in Oklahoma, not yet reported. Ineach of these it was held that the statutes mentioned do not apply to theincomes flowing to restricted Indian allottees from their restricted propertyor from sources controlled for their benefit by the Government. It wasalso held (34 Op. Atty. Gen. 303, 306), that an Indian's claim for refundfor such taxes erroneously paid or collected is not barred by the statutesof limitation or lapse of time within which such claims are required bylaw to be filed. The situation here is possibly best summed up in the AttorneyGeneral's opinion of March 20, 1925, wherein, after citing the InternalRevenue acts referred to, it was said (p. 445):
No specific reference, however, is made in these Acts to Indians and theirproperty. We have seen that none of the treaties or statutes dealing withthe Quapaw Indians contains any provisions subjecting their lands to Stateor Federal taxation. On the contrary by the Quapaw Allotment Act Congress,instead of providing a way to compel the Indians to contribute out of theirproperty to the support of the Federal Government, immediately concerneditself with a provision of law securing to them the continued possessionand enjoyment of their lands by making the same inalienable. In order tomake this restriction against alienation properly effective, it would seemthat inalienability and nontaxability should go hand in hand, at leastuntil Congress clearly provides otherwise. At any rate, I am unable, byimplication, to impute to Congress under the broad language of our InternalRevenue Acts an intent to impose a tax for the benefit of the Federal Governmenton income derived from the restricted property of these wards of the nation;property the management and control of which rests largely in the handsof officers of the Government charged by law with the responsibility andduty of protecting the interests and welfare of these dependent people.In other words, it is not lightly to be assumed that Congress intendedto tax the ward for the benefit of the guardian.We arehere dealing with unallotted tribal In-
| 148 | DEPARTMENT OF THE INTERIOR | JANUARY20, 1926 |
dians residingon a large "reservation" set apart for their use, the legal title to whichrests not in the Indians, either individually or as a tribe, but in theUnited States. Appropriations by Congress have annually been used for manyyears past for the protection, welfare and betterment of these and otherdependent Indians similarly situated. Appropriations by Congress have alsobeen used annually for the education, civilization and support of theseIndians; all looking to their civic advancement.
The income here in question accruing to Tom Pavatea was derived from sourcesalmost entirely, if not exclusively, within the reservation set apart forthe use of the tribe of which he is a member, and for the reasons hereingiven I am of the opinion that such income is not taxable under existingInternal Revenue law.
JOHN P.MCDOWELL,
ActingSolicitor.
Approved: January20, 1926.
JOHN H.EDWARDS,AssistantSecretary.
TITLE TOLANDS
The Honorable,
The Secretaryof the Interior.
MY DEAR MR.SECRETARY:
My opinion has been requested as to the extent or character of title acquiredby the Indians in lands withdrawn for their benefit by Executive Order.
The Solicitor for this Department had occasion to deal somewhat extensivelywith this matter in connection with the applicability of the public-landleasing act of February 25, 1920 (41 Stat. 437), to lands within Indianreservations created by Executive order, and in an opinion dated February12, 1924, it was held that the title to such lands rests in the UnitedStates. It was further therein pointed out, however, that with but fewexceptions this was equally true with respect to unallotted lands in Indianreservations created by treaty or by act of Congress. That is, as to allthree classes of lands, or the lands within all three classes of reservations,-treaty,act of Congress, or Executive order,-the legal title is in exactly thesame place, to wit, the United States. It was there held that the public-landleasing act did not apply to lands within Indian reservations created byExecutive order and on submitting the matter to the Attorney General thoseviews were upheld in an opinion by that officer dated May 27, 1924 (34Op. Atty. Gen. 181). The conclusions so reached are amply fortified bya long line of court decisions, including the Supreme Court of the UnitedStates. From an early date the latter court laid down the rule that underthe doctrine of "discovery" the fee to the lands in this country, in theabsence of an express grant from the sovereign, was not in its aboriginesand that the only right or title existing in them was that of use and occupancy.This doctrine was ably expounded by Chief Justice Marshall of the SupremeCourt in Johnson v. McIntosh (8 Wheat. 543),and was again reiterated by the same court in Beecher v. Wetherby(95 U.S. 517), wherein the court said (pp. 525-6):
But the right which the Indians held was only that of occupancy. The feewas in the United States, subject to that right, and could be transferredby them whenever they chose. The grantee, it is true, would take only thenaked fee, and could not disturb the occupancy of the Indians: that occupancycould only be interfered with or determined by the United States. It isto be presumed that in this matter the United States would be governedby such considerations of justice as would control a Christian people intheir treatment of an ignorant and dependent race. Be that as it may, thepropriety or justice of their action towards the Indians with respect totheir lands is a question of governmental policy, and is not a matter opento discussion in a controversy between third parties, neither of whom derivestitle from the Indians. The right of the United States to dispose of thefee of lands occupied by them has always been recognized by this courtfrom the foundation of the government.In both of the decisions referred to it was further stated:
"theright of the Indians to their occupancy is as sacred as that of the UnitedStates to the fee, but it is only a right of occupancy. The possession,when abandoned by the Indians, attaches itself to the fee without furthergrant."During earlier times, at least, Congress accorded to the Chief Executivea broad discretion about setting apart lands from our public domain forvarious national purposes, including the protection of the Indians (228U.S. 243), and the power so resting in the President was never seriouslyquestioned or curtailed until June 30, 1919, when Congress by act of thatdate (41 Stat. 3-34), provided:
| 149 | OPINIONS OF THE SOLICITOR | MARCH 6,1926 |
That the title to lands within Indian reservations created by Executiveorder rests on substantially the same basis as lands within reservationscreated by treaty or by act of Congress is amply illustrated by that holdingof the Supreme Court in Spaulding v. Chandler(160U.S. 394-402), wherein it was said:That hereafter no public land of the United States shall be withdrawn byExecutive Order, proclamation, or otherwise, for or as an Indian reservationexcept by act of Congress.
It has been settled by repeated adjudications of this court that the feeof the lands in this country in the original occupation of the Indian tribeswas from the time of the formation of this government vested in the UnitedStates. The Indian title as against the United States was merely a titleand right to the perpetual occupancy of the land with the privilege ofusing it in such mode as they saw fit until such right of occupation hadbeen surrendered to the government. When Indian reservations were created,either by treaty or executive order,the Indians held the land bythe same character of title, to wit, the right to possess and occupy thelands for the uses and purposes designated.Even as to Indian treaty reservations, however, the same court in LeoneWolf v. Hitchco*ck (187 U.S. 553-565), held that the plenarypower of Congress over tribal Indian property is such that the provisionsof an existing treaty with the Indians could be abrogated without theirconsent, but that presumably such action would not be had without fullconsiderations of justice, humanity and public policy. It will be seentherefore that it is largely a question of policy for Congress to determineand this gave rise to that further ruling by the same court in Blackfeatherv. United States (190 U.S. 368), wherein it was held that the moralobligations of the government towards the Indians are for Congress aloneto recognize and that the courts can exercise only such jurisdiction overthe subject matter as Congress has or from time to time may see fit toconfer upon them.
Manifestly, from the foregoing, the extent or character of the Indian titlein lands withdrawn for their benefit by Executive order is not easily definedwith particularity. Admittedly, the legal title to such lands is in theUnited States. A reservation so created is not in the nature of a privategrant, but is rather a setting apart of designated lands for a manifestpublic purpose, subject to such further grant or recognition of title asCongress from time to time may see fit to accord.
While this disposes of the strictly legal aspects of the situation generally,yet I am reluctant to dismiss it without inviting attention to the furtherfact that Executive orders withdrawing lands for Indian purposes are byno means uniform. For instance:
THE WHITE HOUSE,
October20, 1910.
Itis hereby ordered that the following-described lands in the State of Arizona,viz., all of sections 1 and 12 in township 1 north, range 4 east of theGila and Salt River meridian be, and the same are hereby, withdrawn fromsettlement, entry, and sale, and set apart as an addition to the Salt RiverIndian Reservation. Provided,That nothing hereinshall affect any existing valid rights of any person to the lands described.THE WHITE HOUSE,
March22, 1911.
It is hereby ordered that Executive order of June 14, 1879, creating areservation for use of the "Pima and Maricopa Indians," be, and the sameis hereby, amended so as to make said reservation available for use ofthe Pima and Maricopa Indians, and such other Indians as the Secretaryof the Interior may see fit to settle thereon.THE WHITE HOUSE,
November14, 1901.
It is hereby ordered that the following-described tract of country in Arizona,viz., commencing at a point where the south line of the Navajo Indian Reservation(addition of January 8, 1900) intersects the Little Colorado River; thencedue south to the fifth standard parallel north; thence east on said standardto the middle of the south line of township 21 north, range 15 east; thencenorth on the line bisecting townships 21, 22, 23, 24, said range 15 east,to the south line of the Moqui Reservation; thence due west to the placeof beginning, be, and the same is hereby, withdrawn from sale and settlementuntil such time as the Indians residing thereon shall have been settledpermanently under the provisions of the homestead laws or the general allotmentact approved February 8, 1887 (24 Stats., 388), and the act amendatorythereof, approved February 28, 1891 (26 Stats., 794).Omitting a description of the lands involved, which is quite lengthy, ExecutiveOrder of February 1, 1917, reads:
| 150 | DEPARTMENTOF THE INTERIOR | MARCH 6, 1926 |
These but illustrate the fact that as to particular reservations, or aparticular tribe or band of Indians, relevant facts and circ*mstances surroundingthe creation of the reservation should not be disregarded in determiningthe character or extent of the Indian title. It may also be mentioned thatby Executive Orders of November 9, 1907, and January 28, 1908, some 3,000,000acres in Arizona and New Mexico were added to the Navajo Reservation. Outof this area some 328,000 acres were allotted in severalty to 2,064 membersof the Navajo Tribe; authority for this latter action being found in section1 of the general allotment act of February 8, 1887 (24 Stat. 388), as amended.The surplus or unallotted lands within this addition to the Navajo Reservation,approximating 2,600,000 acres, have since been restored to the public domainas required by section 25 of the act of May 29, 1908 (35 Stat. 444-457).Needless to add, the unallotted lands were so restored to the public domainwith out compensation to the Indians. This alone amply illustrates thepower of Congress over the subject matter.Executive orders dated June 16, 1911, December 5, 1912, and January 14,1916, withdrawing certain lands in Arizona for the benefit of the PapagoIndians, be, and the same hereby are, revoked, and, exclusive of a tribalright to the minerals therein contained, all surveyed land and all unsurveyedland which, by protraction of the regular system of public-land surveysfrom the township corner at the intersection of the Gila and Salt Rivermeridian with the third standard parallel south, would fall within thetownships and ranges listed below, be, and the same hereby are, withdrawnand set apart as a reservation for the benefit of the Papago Indians inArizona.
*****
The foregoing reservation is hereby created with the understanding thatall mineral lands within the reservation which have been or which may beshown to be such and subject to exploration, location, and entry underthe existing mining laws of the United States and the rules and regulationsof the Secretary of the Interior applying thereto, shall continue to besubject to such exploration, location, and en try notwithstanding the creationof this reservation; and town sites necessary in connection with the developmentof the mineral resources of the reservation may be located within the reservationunder such rules and regulations as the Secretary of the Interior may prescribe,and patented under the provisions of the town-site laws of the United States:Provided,That nothing herein contained shall affect any existinglegal right of any person to any of the lands herein described.
E. O. PATTERSON,
Solicitor.
Approved: March6, 1926.
JOHN H.EDWARDS,AssistantSecretary.
OSAGE--CERTIFICATE
OF COMPETENCY
The Honorable,
The Secretaryof the Interior.
DEAR MR. SECRETARY:
My opinion has been requested with respect to a question arising undersection 4 of the act of February 27, 1925 (43 Stat. 1008) , reading asfollows:
Whenever the Secretary of the Interior shall find that any member of theOsage Tribe of more than one-half Indian blood, to whom has been granteda certificate of competency, is squandering or misusing his or her funds,he may revoke such certificate of competency after notice and hearing inaccordance with such rules and regulations as he may prescribe, and thereafterthe income of such member shall be subject to supervision and investmentas herein provided for members not having certificates of competency tothe same extent as if a certificate of competency had never been granted:Provided,That all just indebtedness of such memberexisting at the time his certificate of competency is revoked shall bepaid by the Secretary of the Interior, or his authorized representative,out of the income of such member, in addition to the quarterly income hereinbeforeprovided for: And provided further, That such revocation or cancellationof any certificate of competency shall not affect the legality of any transactionstheretofore made by reason of the issuance of any certificate of competency.The certificate of competency referred to is that instrument authorizedto be issued by the Secretary of the Interior pursuant to section 2 ofthe act of June 28, 1906 (34 Stat. 339), to any member of
