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other than pine lands were classified as "agricultural" lands and were to be disposed of under the provisions of homestead law and at a statutory price per acre for the benefit of the Indians to actual settlers only. Pending such sale the United States was to hold the naked fee to the lands in trust for the Indians.

    As to all these lands, the Commissioner, it appears, is concerned for substantial reasons. Both the General Land Office and the Conservation Department of the State of Minnesota are of opinion that most of the lands impressed with the Volstead liens, although originally thought to be agricultural lands, are actually unsuitable for agricultural use and should be withdrawn from homestead entry. This action the Volstead liens, considered as valid rights existing in the State, have been deemed to bar. But it has been pointed out that should the State release the lands from the liens the particular withdrawal appropriate in the circumstances would at once attach and prevent homestead entry, in some cases upon such conditions as appear in applicable provisions of law, in other cases unconditionally.

    As concerns public lands and the withdrawal of February 5, 1935, for example, section 7 of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269), as amended, would control. This, it is argued, would make the Secretary's classification of any public lands sought by any applicant a condition precedent to allowance of any entry under the public land laws. The Commissioner could then deny an application for homestead entry of any lands classified as unsuitable for agriculture.

    As concerns the Indian ceded lands, two reasons are given why they should be withdrawn from homestead entry. 1. They are thought to be unsuitable for agriculture. 2. It is considered to be in the public interest that they should be restored to tribal ownership under section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and it is desired to prevent the initiation of new homestead rights in the lands pending accomplishment of such restoration. As to these lands, therefore, the Commissioner suggests, Minnesota's release of these lands from the Volstead liens would permit the departmental withdrawal orders of September 19 and November 2, 1934 (54 I.D. 559, 563), to attach to the lands and forthwith withdraw them from homestead entry.

    In considering the problems thus arising the Commissioner inquires as to certain statutes enacted by Minnesota during recent years in aid of distressed drainage districts and as to the relation of these laws to the Volstead drained homestead lands embraced in such drainage districts. In particular the Commissioner asks whether any provisions of these laws may be construed as constituting "legislative authorization for certain administrative officers of the state to relearn the lines upon the drainage homestead lands not classified by the State as suitable for disposal." In other words, if the appropriate administrative officers of the State, acting under these statutes, classify any of these drainage homestead lands as not suitable for agriculture and disposal, do these statutes in effect authorize the release of the Volstead liens on such lands?

    Upon examination of the laws to which the Commissioner refers, I find that far from intending to waive or abandon any of the drainage liens on any of the lands subject to the acts these statutes contemplate the complete satisfaction and enforcement of all the liens by the procedure most highly expressive of the sovereignty of the State, namely, forfeiture, the taking of the lands them selves in lieu of the unpaid charges on them. A release or waiver of the liens would amount only to relinquishment of the right to enforce them. It would relieve the owner of the charge on the lands but would in no wise affect his ownership of them. As between the State and the landholder all would be in the same posture as before the levy of the drainage assessment. In these laws however the Minnesota legislature contemplates a complete change in ownership, the transfer to the State of a complete and indefeasible title in the lands by forfeiture under the general tax law of the State, that title "to be held and used or disposed of" by the State as absolute owner. Full State ownership and unrestricted State administration of the lands are the indispensable basis of the legislature's plan for the lands subject to the acts.

    The particular statutes in question are L. 1929, ch. 258; ² L. 1931, ch. 407 ³ and L. 1933, ch. 402.⁴ Of these, (the first created the Red Lake Game Preserve in the counties of Lake of the Woods, Beltrami and Koochiching. The second and third gave general. authorization for the creation, in specified circumstances, of state-owned and state managed conservation areas and wildlife preserves and the establishment in them of various conservation projects capable of producing revenue.

    Although thus dealing with conservation measures, these acts were designed primarily to protect the credit of the State and to relieve certain taxing districts whose drainage bonds were in imminent danger of default because of the long-standing general delinquency of the drainage assessments levied

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    ² Mason's Minnesota Statutes, 1927, v. 3, 1940 Supp. secs. 5620-5620-13; amendments, secs. 5620-131/2 to 5620-131/2j
    ³ Ibid., sea. 6452-l - 645218.
    ⁴ Ibid., sea. 4031-75 - 4031-88.
 

to meet the bonds. Identical preambles ⁶ giving detailed reasons for these laws made clear that this grave financial situation resulted from the unsuitability of the drained lands for the agricultural uses for which they had been ditched but that it could be relieved at least in part by suitable uses of the delinquent lands under State ownership and administration. Each act therefore provided for a financial system whereby the drainage bonds of distressed counties might be met and it also authorized such uses of the delinquent lands as the State might determine to be appropriate and capable of contributing some revenue to the relief funds established.

    The necessary State ownership of the lands thus to be administered was to come about under the general tax laws as amended by L. 1927, ch. 119. ⁶ This provides for absolute forfeiture to the State of lands bid in for the State at the annual delinquent tax sale and remaining unredeemed at the expiration of five years from such sale. Upon the expiration of that period such lands become the absolute property of the State or its assigns, with no right of redemption outstanding. The general tax law also provides for classification of the forfeited lands as agricultural and nonagricultural, and for their appraisal and sale by the State as owner, with distribution of the proceeds to the counties entitled thereto.

    These principles of dealing with tax delinquent lands are utilized by the remedial statutes here considered. When the delinquent lands become the property of the State, the State Department of Conservation classifies them as to their suitability for agriculture or for conservation purposes. Only those receiving an agricultural classification are subject to sale. As owner the State pushes their disposition by recurrent offerings until they are sold. Then an appropriate conveyance in fee is issued to the purchaser or his assignee by the State auditor. This has the force and effect of a patent from the State. In it all minerals and mineral rights are reserved to the State. In addition, some lands are subject .to rental. Further, timber on any of them may be sold if it can be removed without damage to the lands. Lands classified as conservation lands may not be sold but are held and used by the State in various kinds of conservation projects. These may be aforestation, reforestation, fire or flood control, preserves for the propagation of wildlife and native flora, hunting and fishing grounds or projects for other State purposes. By all these uses many long-term  interests of the State are served. But, in addition, from the sale of lands, of timber, of specimens of wildlife and rare plants and from licenses to hunt and fish in the preserve considerable revenue may be derived for contribution to the special funds set up by the State to liquidate the drainage bonds.

    All these administrative acts are performed by the State as owner of the lands. Unless lien-burdened lands become forfeited to the State under the provisions of the general tax law cited the State may take none of these steps. It is clear therefore that, if the unredeemed drainage homestead lands of the United States are forfeited to the State like private lands in similar case, the State in classifying such lands as not suitable for disposal cannot be held to be waiving its liens as the Commissioner of the General Land Office had hoped might be the case. Instead, the State must be found to be asserting its own right of ownership, the right which results from complete lien enforcement through forfeiture. But if the drainage homestead lands are not forfeited to the State, the remedial legislation does not apply to he lands and there is no right in the State to administer the lands in any way.

    There can be no doubt that the Minnesota State government regards the legislation in question as applicable to United States lands when unredeemed for the statutory period. Although there is nothing in the three basic acts to indicate the legislature's intention concerning these lands, as distinguished from lands privately held, chapter 328 of the Laws of 1939 concerning the Red Lake Game Preserve contains evidence ⁷ that the legislature in 1939 regarded the Red Lake Game Preserve Act of 1929 as applying to the drainage homestead lands and considered that the unredeemed Government lands had been forfeited to the State. In opinions of January 13 and 26, 1938, the Minnesota Attorney General held that the Government lands in question had been forfeited to the State and under these acts could be sold by it at "forfeited" sales if classified as agricultural or withheld from sale if classified as nonagricultural.⁸ In current correspondence with the General Land Office about drainage charges on lands now being sought for homestead entry, the county auditor of Lake of the Woods County says that the lands have been forfeited to the State. ^8a In addition, the memorandum of the Division of Land Planning and Conservation of the General Land Office which was

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    ⁵See Appendix I for the text of the preamble to the Red Lake Game Preserve Act of 1929.

    ⁶ Mason's Minnesota Statutes, 1927, v. 1, secs. 2139-2 --  2139-5 (L. 1927, ch. 119, secs. l-6).

    ⁷ See Appendix II.

    ⁸ For brief digests of these opinions see Mason's Minnesota Statutes, 1927, v. 3, 1940 Supp., sec. 5620-13 1/2, footnotes.

    ⁹ For a statement by the auditor of Lake of the Woods County see Appendix III.
 

basic to the Commissioner's request for this opinion seems to assume with the Attorney General that the lands had been forfeited.

    These assumptions, however, I find to be without validity. The delinquent public and Indian lands have not been forfeited to the State; the remedial legislation in question does not apply to these lands and the State has no authority over them save that derived from the Volstead Act of May 20, 1908. It is unnecessary here to labor these points. It is axiomatic that the disposition of the public domain lies within the exclusive jurisdiction of the Congress. The Congress alone has power to declare how the United States may be divested of its title. Nowhere has the Congress declared that the United States may be divested of its title to its public or Indian lands in Minnesota by operation of Minnesota's tax law or any other of its statutes. The Volstead Act in numerous provisions shows affirmatively .that it contemplates no transfer of the Government's title in the drained lands in any manner save by United States patent.

    The Volstead Act, to be sure, is a reference statute and as such adopts Minnesota's drainage laws and its tax law machinery for collection of real estate taxes. But it adopts only such portions of Minnesota law as may be applicable and as may give force and effect to its own provisions. It adopts nothing that will be incompatible therewith.⁹ The act makes explicit provision as to when, how and to whom United States patent to the drained lands shall issue in the event of their sale for delinquent assessments. It therefore does not adopt the incompatible provisions of Minnesota tax law for issuance of Minnesota tax title and tax deeds to these lands. The act contains an unambiguous declaration that nothing in it shall be construed as creating any obligation on the United States to pay any of the drainage charges. Since thereunder the Government is in no sense a debtor for the drainage liens, it would be absurd as well as inconsistent with the declaration to construe the statute as adopting a Minnesota forfeiture law divesting the Government of its title for nonpayment of a nonexistent debt.

    But no such nullification could in fact have been contemplated or effected. The Volstead Act adopts only the Minnesota law existing at the time of the adoption (May 20, 1908). No subsequent legislation whether of amendment or repeal alters that adoption. The Supreme Court rule on this point has been clear for a hundred years and in the interpretation of Federal laws is controlling. ¹⁰

    On May 20, 1908, when the Volstead Act was approved, Minnesota law did not permit forfeiture of unredeemed lands to the State. Hence there was no forfeiture law to be adopted. Nineteen years later Chapter 119 of the Laws of 1927 amended the tax law to provide for absolute forfeiture to the State of lands bid in by it at the annual tax judgment sale and remaining unredeemed at the expiration of five years from such sale. But under the Federal rule this subsequent change, even if compatible with the Volstead Act, could in no wise affect the adoption already made thereby."

    Since therefore no congressional authorization of forfeiture of public or Indian lands to the State is to be read into the Volstead Act, it follows that the remedial conservation legislation above described, based as it is on the principle of forfeiture, has no applicability to the drained homestead lands of the United States and can give the State no authority over them. In so far then as these statutes are concerned, the liens remain unimpaired and can still be enforced but only under the Volstead Act. Further, until issuance of United States patent in accordance with its terms or with those of other applicable public land laws the title to these lands remains in the United States and no act of the Minnesota legislature or expression of opinion by any executive officer of the State can operate to divest it.

    In the course of the examination just made I have inquired further into the larger problem of the General Land Office concerning the relation of the Volstead Act to homestead entry and the legality of withdrawing the drainage homestead lands from such entry. Comprehensive analysis of the Volstead Act and comparison of it with parallel statutes for the reclamation of arid lands have led me to the conclusion that there is no legal barrier whatever to prevent withdrawal of any of

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    ⁹Gillesby v. Board of Commissioners of Canyon County (Idaho 1910), 107 Pac. 71, 74; 1 Lewis' Sutherland Statutory Construction (2d ed.) sec. 6; 2 idem, sec. 465; State v. Board of Commissioners of Marion County (Indiana 1908), 85 N.E. 513, 521; State v. Board of Commissioners of Shawnee County (Kansas 1910), 110 Pac. 92, 94; State v. Tausick (Wash. 1911), 116 Pac. 651, 657; Gadd v. McGuire (Calif. 1924), 231 Pac. 754, 763.

    ¹⁰Kendall v . United States, 12 Pet. (37 U.S.) 522, 624 (1838); In re Heath, 144 U.S. 94 (1892); Postal Telegraph Cable Co. v. Southern Ry. Co., 89 Fed. 190, 194 (1898); Interstate Railway Co. v. Massachusetts, 267 U.S. 79, 84 (1907); Panama Railroad Co. v. Johnson, 264 U.S. 375, 391-2 (1924) ; Engel v. Davenport, 271 U.S. 33, 38 (1926); United States v. McMurtry, 5 F. Supp. 515, 517 (1933); Munoz v. Porto Rico Railway Light and Power Co., 83 F. (2d) 262 (1936); United States v. Mercur Corporation, 83 F. (2d) 178, 180 (1936); Slate v. Hyde (Oregon, 1918), 169 Pac. 757, 762.

    ¹¹Failure to apply this rule seems to have been the reason for a number of erroneous conclusions observed throughout the record.
 

these Volstead lands, either public or Indian, from homestead entry.

    Perusal of the records of the 30 years of the Volstead Act shows a number of Executive orders issued during that period under the authority of the Withdrawal Act of June 25, 1910 (36 Stat. 847). These orders withdrew "unreserved and unappropriated" lands in Minnesota from all forms of disposition, subject to existing valid rights. Practically without exception the General Land Office has held, at times with the support of the Department, that these orders did not withdraw the lien-burdened lands from homestead entry inasmuch as the lands were not unappropriated lands. The drainage liens, it was said, constituted an appropriation of the lands by the State and therefore a valid right barring any withdrawal from homestead entry.

    Implicitly, this ruling assumes (1) that a lien is an appropriation: (2) that the State has authority to make an appropriation of these lands; and (3) that the right created in the State by this appropriation is a right to the continuance of homestead entry. These assumptions overlook several important considerations. In the first place, no lien is or can be an "appropriation." The nature of a lien is wholly incompatible with the idea of appropriation, title or ownership in one who holds a lien. All the authorities are agreed that the term "lien" never imports more than security. In equity it is neither a jus in re nor a jus ad rem. It is not a property in the res itself nor does it constitute a right of action for the res. It constitutes rather a charge upon the res. As such it is a right, as here, to have the res sold or otherwise applied in satisfaction and discharge of a debt or duty, a right incumbering the land and running with it in any change of ownership. No one therefore may have a lien on that of which he is himself proprietor. If he become the proprietor of that on which he has a lien, his lien as lien is extinguished, becoming merged in his general property in the res acquired.¹²

    The Volstead Act conforms with these principles. In permitting the State to impose a lien on these lands, the act intends merely to give the State such security as a lien may be worth, not a right in the lands but a mere security mechanism whereby the State may hope to reimburse itself from some future beneficiary of the drainage for moneys paid out therefor.

    In the second place, neither .the Volstead Act nor the Minnesota tax law adopted by it permits the State to "appropriate" the lien-burdened lands. The Volstead Act requires that whoever obtains, these lands shall have the qualifications which a homestead entryman must have and accordingly be a natural person.^12a The Minnesota tax law as adopted does not permit the State to appropriate lien-burdened lands at any point in its tax enforcement proceedings, either when lands unsold at a tax judgment sale are bid in for it or when they fail of redemption within the statutory period.12b Obviously, then, the lien works no appropriation and the locus of such right as the State may have to bar withdrawal must be sought elsewhere.

    In the third place, the Volstead Act sets up a security system which is entirely independent of homestead entry and its continuance. It enables the State both to dispense with a homestead entryman when necessary and to get along without any at all. The system authorizes the State to collect drainage charges from an entryman if there be one but it also provides for offsetting his delinquencies if he be irresponsible and for effecting his ouster if he fail to redeem his holding from a tax judgment sale for unpaid charges. What is more important from the point of view of the State, the system functions also upon unentered lands, on which of course there is no entryman at all. Unlike the 1916 statute promoting the reclamation of arid lands, ¹³ the Volstead system does not make homestead entry of lands a condition precedent to the State's collection of drainage assessments but provides a Volstead substitute for a homestead entryman.

    This significant part of the system allows drainage assessments against unentered lands to become

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   ¹²19 Amer. & Eng. Enc. Law 2d ed. pp. 6, 11; 2 Bouvier Law Dict., Rawles Third Edition, p. 1978; Story, Eq. Jur. secs. 506, 1215; Pomeroy Eq. Jur. secs. 165, 167; 1233, 1234, especially footnote 5; Words and Phrases, Permanent Edition, v. 25, Lien; see also Mr. Justice Story in Ex parte Foster, 9 Fed. Cases, 508, 513, 514 and leading English cases cited; 10 R.C.L. p. 141, sec. 123; State Bank of Decatur v. Sanders, 170 S.W. 86, 89, 114 Ark. 440; In re Big Blue Mining Co., D.C. Cal., 16 F. Supp. 50, 52: Ingles v. Bringhurst, Pa., 1 Dall. 341, 345, 1 L. Ed. 167; Donohoe v. Stearns, 17 N.W. 381, 31 Minn. 244; Seaboard All-Florida Ry. v. Leavitt, Fla., 141 So. 886, 889; Morrison v. Clarksburg Coal & Coke Co., 43 S.E. 102, 106, 52 W. Va. 331; The Poznan, 9F. (2d) 838.

    ^12a Sec. 2. General Land Office Instructions of February 29, 1912, 40 L.D. 438-9; and Sec. 4 of Instructions of April 24, 1913, 42 L.D. 104-5.

    ^12b See House debate on Volstead Act, Congressional Record. v. 42, pp. 4988-4992, especially p. 4991. See Minnesota Revised Laws 1905. section 928; also General Statutes of Minnesota, 1913, section 2117, footnote 4; Mulvey v. Tozer (1889) 40 Minn. 384; 42 N.W. 387, 388. Rev. Laws 1905, sec. 936; amended by General Laws 1907, c. 430, sec. 1, p. 612 (Gen. Stats. 1913, sec. 2127) ; State ex rel, Shaw v. Scott (1908), 105 Minn. 69, 117 N.W. 417; Minnesota Debenture Co. v. Scott (1908), 106 Minn. 32, 119 N.W. 391; Rupley v. Fraser (1916), 132 Minn. 311, 156 N.W. 350, 352.

    ¹³ The act of August 11, 1916 (39 Stat. 506).
 

liens as soon as recorded and to become enforceable in normal course by the public tax judgment sales or by the private sales, or State assignments, under the State tax law. Then, since the State has no power to give to the tax sale purchaser of United States lands the certificate of tax title in fee which it would issue in the case of lands privately owned; the Volstead system gives to such purchaser as may appear the right to obtain the lands by United States patent instead. Since there is no delinquent entryman to be considered, the purchaser does not have to await the expiration of a redemption period before seeking patent. Nor is he required to live on the land for any statutory period before acquiring it. He may obtain hi patent to unentered land immediately after making his tax lien purchase. He need only offer proof of that purchase and make to the United States the payments due to it under the act. Section 5, act of May 20, 1908 (35 Stat. 169).

    However, the right thus to seek patent is not of indefinite duration. The lien purchaser may be a speculator in tax sales. Not really desirous of acquiring the lands, he may fail to seek patent. In order therefore that the State may have recourse to someone who actually desires the lands, tie act limits the life of the lien purchaser's right to 90 days. If within that period the tax sale purchaser shall not seek United States patent, the act authorizes any qualified person complying with its financial requirements to be subrogated to that purchaser's right to obtain patent. Ibid, section 6.

    Thus by adoption of appropriate parts of the State tax collection law and by express provisions of its own for patent and for subrogation, the Volstead Act enables the State to offer some inducement to the public to buy the drainage liens on unentered public lands and so to attract to the land responsible debtors who will pay not only current drainage charges but future taxes as well.

    It also results under these provisions that such a responsible debtor or ultimate patentee of un entered lands must be one of four persons as follows:

1. A purchaser at a public tax judgment sale, or

2. A subrogee to the rights of such purchaser, if the latter fail to seek patent from the United States within the prescribed period; or

3. A purchaser at a private sale from the State, commonly called a State assignee, of unentered lands bid in for the State at the public tax judgment sale, there having been no actual purchasers at such public sale; or

4. A subrogee to the rights of such State's assignee, if .the assignee fail to seek patent from the United States within the prescribed period.

    Nor does this purchaser have any interest in homestead statutes or any rights under them. His right to patent as above described springs from the Volstead Act alone, from its express terms and from such parts of the State drainage and tax laws as are properly incorporated into the Volstead Act by reference and adoption under the Federal rule. It is a right to acquire unentered public lands in Minnesota by a method which is entirely independent of and different from that under any other public land law contemplating private appropriation of public lands. It is a right to Volstead purchase, Volstead entry, Volstead patent, earned not by homestead residence and improvements but by Volstead purchase of the State's drainage liens.

    This Volstead system just described, although thus serving the individual, is designed primarily of course in the interest of the State. It is intended to bring to unentered lands the responsible landholder without whom the State's inchoate lien must remain a ghost obligation, seen in the law but eluding the grasp.¹⁴ It is expected to find the patentee without whom the State cannot extend its tax structure to the drained lands of the United States and exercise unrestricted tax control over them.

    In giving the State this viable means of security, the Congress necessarily contemplates the operation and completion of the whole process through the operation and completion of each of its procedures, beginning with adoption of a drainage project by the State and culminating in issuance of Volstead patent by the Federal Government. Obviously the State's interest is as much

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  ¹⁴ See Mr. Justice Holmes on unenforceable liens in The Western Maid, 257 U.S. 419, 433; also Clark, C. J., in Nelson v. Atlantic Coast Line Railroad Company Relief Department, 147 N.C. 103, 60 S.E. 724.
 

bound up in .the demand right¹⁵ of its tax sale purchaser or his subrogee to the issuance of United States patent as in its own privilege right to conduct a drainage operation, impose a lien or hold a tax sale unhindered by the United States Government. Indeed United States tolerance of the State's performance of the acts mentioned would be of little worth if in the end the United States were to refuse to issue patent to the State's tax sale purchaser. Denial of patent would dishonor the State's tax sale, impair contract obligations to the tax sale purchaser and defeat consummation of the State's security.

    Implicitly therefore the act gives to the State a right to this complete operation of the system in all its parts. To the Government it assigns an equivalent duty to refrain from interference with the State's exercise of its privilege rights and to issued Volstead patent when the demand right of the State is asserted through application for patent by a qualified tax sale purchaser. The act there fore gives to the State as well as to its tax sale purchaser a right to United States disposition of the lands under the Volstead act by Volstead patent when the statutory conditions are met.

    Rights to a particular form of disposition of public lands except the lands to which they attach from withdrawal from that form of disposition. They do not bar withdrawal of the lands from any other form of disposition under the public land laws. It has been demonstrated that the rights of the State of Minnesota and its lien purchaser under the Volstead Act are not rights to homestead entry. It has been shown that these rights are to Volstead disposition of the lands and to that alone. These rights will therefore except the lands to which they are asserted from withdrawal from Volstead disposition. They will not bar withdrawal of the lands from homestead entry or any other form of disposition under the public land laws.

    It may be considered established therefore that nothing in the Volstead Act prevents unentered public or Indian ceded lands which have been sold for drainage charges or merely assessed therefore from being withdrawn from homestead entry. It remains only to determine whether any obstacle elsewhere existing prevents the attachment of the withdrawal of February 5, 1935, to public lands or the withdrawals of September and November 1934 to Indian Lands.

    In the case of the public lands concerned there seems to be nothing to prevent immediate attachment of the Executive order of February 5, 1935 (No. 6964), other than such prior withdrawals as may have attached and not yet been revoked. If the tract books disclose any such,¹⁶ made subject to existing valid rights, they may properly be considered as having withdrawn the public lands from every form of disposition, including homestead entry, except that of Volstead patent unless the withdrawal was effected before initiation of the State's right by adoption of a drainage project on the lands concerned. Upon the revocation of any such withdrawal, that of February 5, 1935, is to be regarded as at once attaching and as having similar effect.

    In the case of the Indian ceded lands the departmental orders of September 19 and November 2, 1934 (54 I.D. 559-564) were intended to with draw from disposition of any kind all undisposed of ceded lands that had been opened or authorized to be opened to any form of disposition under the public land laws or that were subject to mineral entry and disposition under the mining laws, pending appropriate consideration of the question of their permanent restoration to tribal ownership. The withdrawals were designed to prevent the initiation of new claims which might obstruct or prevent the restoration but were to be subject to existing valid rights. Hence if lawful these withdrawals would bar homestead entry but not Volstead patent.

    It appears¹⁷ that in 1934 the only ceded lands in Minnesota which had been opened and which remained undisposed of were lands ceded under the authority of the Nelson Act of January 14, 1889 (25 Stat. 642). That cession followed the pattern of "relinquishment in trust"¹⁸ under which the Government holds the naked fee in trust, the ceded lands being subject to sale by the Government for the benefit of the Indians but only in the manner and for the purposes provided for in the act.

    Concerning the Nelson Act the courts have held that the ceded lands remained Indian lands appropriated to the purposes of an express trust and

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    ¹⁵See "A Restatement of Hohfeld" by Max Radin, 51 Harvard Law Review, pp. 1141-1164.

    ¹⁶ The Executive order of December 3, 1928 (No. 5003), appears to be still in effect. This withdrew the public lands in certain townships in the counties of Koochiching and Lake of the Woods from settlement, entry or other disposition, subject to prior valid rights legally initiated and maintained, in order to effectuate the provisions of the act of May 22, 1926 (44 Stat. 617), for carrying into effect the convention between the Governments of the United States and Great Britain concluded February 24, 1925, for regulation of the level of the Lake of the Woods.

  ¹⁷ See tables of opened lands and acts under which they were opened in the 1934 withdrawal orders, 54 I.D. pp. 561 and 364.

  ¹⁸ Handbook of Federal Indian Law, ch. 15. sec. 21, Status of Surplus and Ceded Lands, p. 334.
 

therefore were not to be disposed of except in the manner specified in the act. Minnesota v. Hitchcock, 185 U.S. 373, 398-9 (1901); White v. Wright et al, 83 Minn. 222 (1901), 86 N.W. 91; Cathcart v. Minnesota and Manitoba Railroad Co., 133 Minn. 14 (1916), 157 N.W. 719; Ash Sheep Co. v. United States (1920), 252 U.S. 159. Accordingly, the Executive of and by its own general powers would be without authority to withdraw these lands from the disposition authorized by the act¹⁹ or purposes inconsistent therewith. Hence unless the proposed restoration to tribal ownership could be reconciled with the express purposes of the Nelson Act the departmental orders would have to fall as regards these Chippewa lands.

    The question of consistency however need not be discussed here, for in considering the restoration of these lands to tribal ownership the Department is acting under an express authorization²⁰ by the Congress and the Congress has been held not to be bound to the terms of the Nelson Act in its administration of the ceded lands. The courts have said that the Congress did not intend by the Nelson Act to abandon its guardianship of the Indians here concerned or to establish a conventional trust of lands and funds which would be beyond its own power to control. They hold that the Congress has retained undiminished plenary power over both the lands ceded and the funds realized and that in exercising the powers of a guardian and of a trustee in possession it may make such changes in the management and disposition of the tribal property as it deems necessary to promote the Indians' welfare. Morrison v. Work (1924), 266 U.S. 481, 483, 485; Chippewa Indians of Minnesota v. The United States (1938), 88 Ct. Cl. 1; idem, 307 U.S. 1 (193).

    There can be no question therefore that the hands of the Congress were not tied by the so-called express trust of the Nelson Act and that the Congress retained power to depart from the plan envisaged therein and to authorize restoration of the ceded lands to tribal ownership. Such a departure is made by section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), enacted to conserve and develop Indian lands and resources and to accomplish other ends, section 3 containing the following provision:

    "The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act: Provided further, That this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation: . . ."

    I find therefore that the provisions of the Indian Reorganization Act above quoted freed the Executive from the restrictions imposed by the Nelson Act as above pointed out; that the departmental withdrawals of September 19 and November 2, 1934, were lawful and valid as regards the Chippewa lands; and that they withdrew these lands from homestead entry and from every other form of disposition, subject only to the valid rights to Volstead patent existing in the State of Minnesota and its qualified tax sale purchasers or those properly subrogated to their rights.

    In summary, therefore, for all the considerations above set forth, I am of opinion,

  First, that the Minnesota drainage relief statutes concerning which the Commissioner of the General Land Office has inquired neither waive the State's liens imposed on United States lands under the Volstead Act nor apply at all to these lands;

    Second, that the State authorities erroneously regard the United States lands as forfeited to the State for nonpayment of the drainage charges;

    Third, that the only form of disposition of public and Indian ceded lands to which the State and those claiming under it acquire rights under the Volstead Act is Volstead disposition and Volstead patent; and

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  ¹⁹All lands other than pine lands were classified as agricultural and were to he disposed of to actual settlers only under the provisions of the homestead law upon payment of a statutory price per acre in five equal annual installments and proof of five years' occupancy. Act of January 14, 1889 (23 Stat. 642), sec. 6.

  ²⁰ Section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984).

  ²¹ Memorandum, Solicitor to Secretary, September 17, 1934. See also section 4 of act of March 3, 1927 (44 Stat. 1347); and Handbook of Federal Indian Law, ch. 15. section 21, Status of Surplus and Ceded Lands, p. 336.
 

    Fourth, that the Executive order of February 5, 1935, and the departmental orders of September 19, and November 2, 1934, withdraw, respectively, the public and the Indian ceded lands here concerned from homestead entry and every other form of disposition under the public land laws subject only to valid rights to Volstead patent existing in the State of Minnesota and the qualified persons claiming under it.

    Accordingly, any previous contrary determination is hereby overruled.

                                                                                                                                                FELIX S. COHEN,

Approved: August 12, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

    "WHEREAS, the laws of the State of Minnesota in force prior to the year 1925 relating to public drainage ditches authorized the establishment of such ditches upon petition to the several district courts of the State which petitions were authorized to be signed by a small number of property owners and upon hearings thereon before such courts the boards of county commissioners and other county officials, and taxpayers of the county not directly affected by such ditches, were not permitted to be heard, and

    "WHEREAS, upon the establishment of each of such ditches it was found and determined by such courts that the establishment and construction thereof would be of public utility or benefit or would promote the public health, and

    "WHEREAS, under such laws it was mandatory upon the boards of county commissioners and other county officials to issue and sell the general obligation bonds of the county secured by the pledge of the full faith, credit and resources, and unlimited taxing powers of such counties to the extent necessary to pay the costs of establishment and construction of such ditches so ordered by the district courts, and

    "WHEREAS, pursuant to such laws, the counties of Beltrami, Lake of the Woods and Koochiching have heretofore incurred obligations to finance and refinance such ditches upon lands which it now appears were and are not suitable for agriculture, and the assessments levied upon lands supposedly benefited thereby cannot be collected in a sum sufficient to pay such bonds and the payment of such bonds by the use of the taxing powers of such counties would result in confiscatory rates such that taxes so levied would not be paid, and

    "WHEREAS, default in the payment of such bonds by such counties is imminent, and the general credit of the State of Minnesota and all its political subdivisions and municipal corporations would thereby be damaged, resulting in greatly added interest charges on all public financing for many years to come, and

    "WHEREAS, certain lands in said counties hereinafter described will become available for state ownership by reason of delinquent tax liens thereon, and such lands are suitable for state ownership and administration for use as a wild life preserve and hunting ground and other state purposes, and will produce revenues to assist in relieving the tax burdens and preventing such bond default,

    "NOW, THEREFORE,

Be it enacted by the Legislature of the State of Minnesota: . . .

    "Sec. 1. For the purpose of vesting and revesting the State with title to lands . . . which are suitable primarily for State use . . . for . . . breeding wild life . . ., and for the development of forests and prevention of forest fires and the preservation of rare . . . flora native in such area, there is hereby . . . created a state wild life preserve and hunting ground . . .; to be known as the 'Red Lake Game Preserve,' . . ."

    L. 1939, ch. 328, amends L. 1935, ch. 210, which in turn implemented L. 1929, ch. 258, the act creating the Red Lake Game Preserve. The exact language of section 7 is as follows:

  "Who may purchase. Any parcel of land described in any such notice of sale may at any time not less than one week prior to the date of such sale be purchased at the appraised value thereof by the person who is a bona fide Federal Entryman or Patentee of any such land or, by the Person who was the record owner of the fee title thereto at the time the state became the absolute owner thereof." (The italicized phrases constitute the new matter.)

Section 6, prescribing the contents of the notice of sale, requires the lands about to be sold to be described in the notice of sale as parcels

"which have been forfeited to the state for non-payment of taxes and which have been classified as agricultural lands and appraised as provided by law."

DEAR SIR:

            In re your G.L.O. 08254 "K"

    In reply to your inquiry of the 2nd inst. I beg to advise that the records of this office show that NW 1/4 NW 1/4 Sec. 15; NE 1/4 of NE 1/4 Sec. 16 T 159 N., R 30 W 5th P.M. Minnesota in this county has forfeited to the state of Minnesota for unpaid drainage assessments.

    Said forfeiture is based on notice of expiration served under the provisions of Chapter 278 Laws of Minnesota for 1935.

    Upon forfeiture, as above, all back taxes and unextended liens for special assessments of all kinds are cancelled of record. That has been done in this case so there are no longer any such drainage assessments effective as of this date.

    The question now arises of how to remove the cloud upon the title caused by the forfeiture to the state of the land. In the completion of proceedings of forfeiture on notice of expiration of redemption period, there being no redemption made, lists of said tracts are recorded with the register of deeds showing same as forfeited to the state of Minnesota.

    Such forfeited lands may be sold upon appraisal and their classification as agricultural lands-Chapter 210 Session laws 1935. Due to the dual interest of the federal government and the state in such lands however, no classification or offering of tax forfeited lands have been made of any tract shown to have been U.S. Land at time of forfeiture except it be shown that same has been entered or patented. In such cases the interested parties have been requested to appear before the county board and discuss its classification and appraisal. The owner of forfeited lands or the patentee or entryman thereof being given the privilege of purchase at the appraised price prior to the public offering thereof.

    The answer to your question is that there are no longer any drainage improvement charges in a tax sense on the above land of record.

                                                                                                                                                       Yours truly,

                                                                                                                                                          M. D. WEEKS,

 (Lake of the Woods County)

M-30582                                                                                                                                                August 24, 1924.

Re:

Laws and procedure governing condemnation and grants of rights-of-way over lands of Indians of the Five Civilized Tribes in Oklahoma including lands acquired for Indian tribes under the Oklahoma Indian Welfare Act.

1. That authorization by Congress is a prerequisite to the valid condemnation of Indian lands restricted against alienation.

2. That the United States is an indispensable party to condemnation proceedings against the restricted lands of Indians of the Five Civilized Tribes.

3. That if Congress has authorized the condemnation of Indian lands it has also consented to suits against the United States in such cases subject to any condition which Congress sees fit to impose.

4. That the consent of the Secretary of the Interior is not essential to the maintenance of condemnation proceedings against lands

of Indians of the Five Civilized Tribes under the act of March 3, 1901 (31 Stat. 1084).

5.  That section 11 of the Curtis Act of June 28, 1898 (30 Stat. 495), the act of February 28, 1902 (32 Stat. 43), and section 25 of the act of April 26, 1906 (34 Stat. 137), relating to the condemnation of  lands of Indians of the Five Civilized Tribes constitute permanent legislation continued in force after the admission of Oklahoma into the Union by the Oklahoma enabling act of June 16, 1906 (34 Stat. 267), if not by the terms of the acts themselves.

6.  That the act of March 3, 1901 (31 Stat. 1084), upon the admission of Oklahoma into the Union on November 16, 1907, became available as authority for the condemnation of lands allotted to Indians of the Five Civilized Tribes except in so far as authority to condemn allotted lands had been furnished by the acts of June 28, 1898
(30 Stat. 495), February 28, 1902 (32 Stat. 43), and April 26, 1906 (34 Stat. 137).

7.  That the imposition of restrictions upon allotted lands of Indians of the Five Civilized Tribes by the act of May 27, 1908 (35 Stat. 312), did not repeal the authority for condemning such lands granted by the earlier acts.

8.  That the provisions regarding eminent domain in the act of May 27, 1908, supra, did not limit the eminent domain authority previously granted.

9.  That in the absence of Congressional direction to the contrary, the Federal and not the State courts have jurisdiction over proceedings in condemnation of restricted Indian lands.

10.  That upon the admission of Oklahoma into the Union, the provisions of the act of March 3, 1901 (31 Stat. 1084), became available as authority for grants by the Secretary of the Interior of rights-of-way for public highways and for general telephone and telegraph business over lands of Indians of the Five Civilized Tribes.

11.  That the provisions for section line highways contained in section 10 of the supplemental Creek agreement (32 Stat. 600), in section 37 of the Cherokee agreement (32 Stat. 716), and in section 24 of the act of April 26, 1906 (34 Stat. 137), were of temporary duration and not intended to survive the admission of Oklahoma into the union.

12.  That the lands of the Five Civilized Tribes prior to allotment constitute Indian reservations and as such are subject to the acts of February 15, 1901 (31 Stat. 790), and March 4, 1911 (35 Stat. 1253), authorizing the Secretary of the Interior to grant rights-of-way for telephone, telegraph and transmission lines, etc.

13.  That the applicability of the acts of February 15, 1901, and March 4, 1911, supra, to lands allotted to Indians of the Five Civilized Tribes will be determined by the final decision in United States v. Oklahoma Gas & Electric Company, decided by the Tenth Circuit Court of Appeals on March 10, 1942, 127 F. (2d) 349, and now pending before the United States Supreme Court on petition of the United States for certiorari.

14.  That lands acquired for Indian tribes under authority of section 1 of the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967), became in effect Indian reservation lands and as such subject to the provisions of the acts of March 3, 1901, February 14, 1901, and March 4, 1911, supra.
 

MY DEAR MR. SECRETARY:

    On January 4, 1940, you referred to the Solicitor for an opinion certain questions concerning the laws and procedure governing condemnation of restricted lands allotted to Indians of the Five Civilized Tribes in Oklahoma. These questions arose out of efforts of the Grand River Dam Authority, then a public corporation and an instrumentality of the State of Oklahoma, to acquire by condemnation certain of the lands of these Indians for reservoir purposes. Since the acquisition of the lands needed by the Grand River Dam Authority was subsequently authorized by the act of June 11, 1940 (54 Stat. 303), the questions became moot in that particular case and the Commissioner of Indian Affairs was so advised by former Solicitor Margold on June 20, 1940.

    In view of the limited scope of the act of June 11, 1940, and since questions concerning the authority under which the lands of Indians of the Five Civilized Tribes might be acquired for public purposes are constantly recurring, this office has undertaken a study of the applicable statutes and the departmental practices thereunder with a view to reaching some definite conclusion as to the appropriate legal procedure to be followed. The result of this study is given below.
 

    The Five Civilized Tribes in Oklahoma comprise the Creek, Cherokee, Seminole, Choctaw, and Chickasaw nations. The lands of these nations were allotted in severalty to the individual members thereof under various allotment agreements entered into with the several nations and duly ratified by Congress.¹ The patents issued to the individual allottees under these agreements conveyed the fee simple title with restrictions against alienation. The restrictions so imposed, as modified by subsequent legislation,²  have been extended to April 26, 1956, by the act of May 10, 1928.³ The effect of these restrictions is to restrain both voluntary and involuntary alienation, so that no interest can validly be acquired in the lands under the laws of the State, whether enacted in the exercise of its power of eminent domain or otherwise, without the sanction of Congress. The attitude of the courts is shown by the statement of the Supreme Court, speaking with reference to the attempt of an Oklahoma court to apply a State law so as to validate a lease of his restricted lands by a Cherokee Indian, in the case of Bunch v. Cole, 263 U.S. 250 (Okla., 1923):

    "The power of Congress to impose restrictions on the right of Indian wards of the United States to alien or lease lands allotted to them in the division of the lands of their tribe is beyond question; and of course it is not competent for a State to enact or give effect to a local statute which disregards those restrictions or thwarts their purpose. Tiger v. Western Investment Co., 221 U.S. 286, 316; Monson v. Simonson, 231 U.S. 341, 347; Brader v. James, 246 U.S. 88, 96; Mullen v. Pickens, 250 U.S. 590, 595."

    The need for enabling legislation by Congress also arises from the status of the United States as an indispensable party to the proceeding. As was stated by the Supreme Court in the case of Minnesota v. United States, 305 U.S. 382, 388 (1939), "A proceeding against property in which the United States has an interest is a suit against the United States." The Court also pointed out that not even a State can sue the United States until permission to do so has been granted. The United States clearly is an indispensable party when the legal title to the lands to be condemned is held by the United States in trust for the Indians. Minnesota v. United States, supra. The fact that the restricted lands of Indians of the Five Civilized Tribes are held in fee subject to restrictions against alienation does not call for a different rule. This was the view taken by the United States District Court for the Northern District of Oklahoma in several unreported cases of recent origin.⁴ In each of these cases the Grand River Dam Authority sought to condemn lands of Five Tribes Indians and asserted that the United States need not be joined as a party defendant. The United States attorney moved to dismiss on the ground, among others, that the United States is an indispensable party and should have been joined as a party defendant. The court said that this contention was correct and in each of its orders gave the counsel for the Grand River Dam Authority permission to amend the pleadings. The soundness of the ruling is not open to question.

    The maintenance of the restrictions which Congress has imposed to prevent alienation of Five Civilized Tribes lands is distinctly an interest of the United States. Privett v. United States, 256 U.S. 201 (1921). The Supreme Court discussed this interest in the maintenance of restrictions in the case of Sunderland v. United States, 266 U.S. 226, 234 (1924), saying, "And the power does not fall short of the need; but, so long as they remain wards of the Government, justifies the interposition of the strong shield of federal law to the end that they be not overreached or despoiled in respect of their property of whatsoever kind or nature. United States v. Kagama, 118 U.S. 375, 383-4." The guardianship of the Government over the Indians did not cease when the allotments were made. Bowling v. United States, 233 US. 528 (1914). The entry of Oklahoma into statehood did not disturb the interests of the United States over the Indians for "Congress was careful to preserve the authority of the Government of the United States over the Indians, their lands and property, which it had prior to the passage" of the Oklahoma enabling act of June 16, 1906 (34 Stat. 267). Tiger

____________
  ¹ Cherokee agreement (32 Stat. 716); Choctaw and Chickasaw original agreement (30 Stat. 495); Choctaw and Chickasaw supplement agreement (32 Stat. 641); Creek original agreement (31 Stat. 861); Creek supplemental agreement (32
Stat. 500); Seminole agreement (30 Stat. 367).

  ² See acts of April 26, 1906 (34 Stat. 137); May 27, 1908 (33 Stat. 312); April 12, 1926 (44 Stat. 239); and January 27, 1933 (47 Stat. 777).

  ³ 45 Stat. 495.

  ⁴Grand River Dam Authority v. Kephart, No. 263 Civil; Grand River Dam Authority v. Landrum, No. 322 Civil; Grand River Dam Authority v. Barehead, No. 329 Civil.
 

v. Western Investment Co., 221 U.S. 286 (1911). If the lands of an Indian have been improperly alienated, the United States can sue in his behalf; "the authority to enforce restrictions of this character is the necessary complement to the power to impose them"; and the Government need not have a pecuniary interest in the controversy. Heckman v. United States, 224 U.S. 413 (1912). From the foregoing statements. it is apparent that the United States has a sufficient interest in proceedings looking toward condemnation of restricted Indian land, individual or tribal, to be an indispensable party to any such action.

    The question as to whether authorization for condemnation carries with a consent to be sued was affirmatively decided by the Eighth Circuit Court of Appeals in the case of Minnesota v. United States, 95 F. (2d) 468 (1938), but it was there held that permission is given to condemn a highway right-of-way under the act of March 3, 1901 (31 Stat. 1084), only if the Secretary of the Interior consents fo the proceedings. On review, the Supreme Court did not discuss the necessity of consent by the Secretary, but as to the other point stated in a strong dictum that authorization to condemn implied a consent to be sued (305 U.S. 382, 388). In Minnesota v. United States, 113 F. (2d) 770, the Circuit Court of Appeals reconsidered its prior holding and ruled that Secretarial consent was not necessary for condemnation to lie under the act of 1901.

    Prior to the admission of Oklahoma into the Union, the legislation enacted by Congress for the regulation of the affairs of the Five Civilized Tribes fell into two principal categories-legislation of a permanent and continuing nature, and legislation of temporary duration made necessary by the lack of an organized territorial government and not intended to be effective after statehood. The necessity for the latter type of legislation is well described by Mr. Justice Van Devanter in the case of Southern Surety Co. v. Oklahoma:⁵

    "By reason of the conditions arising out of the presence of the Five Civilized Tribes no organized territorial government was ever established in the Indian Territory. Up to the time it became a part of the State of Oklahoma it was governed under the immediate direction of Congress, which legislated for it in respect of many matters of local or domestic concern which in a State are regulated by the state legislature. and also applied to it many laws dealing with subjects which under the Constitution are within Federal rather than state control. In what was done Congress did not contemplate that this situation should be of long duration, but on the contrary that the Territory should be prepared for early inclusion in a State. . . ."

"and the laws of the United States not locally inapplicable shall have the same force and effect within the said State as elsewhere within the United States."

    With respect to the procedure, condemnation proceedings under the act of 1898 were originally conducted under the laws of Arkansas; but the Oklahoma enabling act, in sections 13 and 21, extended the laws of the Territory of Oklahoma to

______________
  ⁵ 241 U.S. 582, 584 (1916).

  ⁶ Act of June 16, 1906 (34 Stat. 267).
 

Indian Territory until such time as the State laws were enacted. The act of 1906, in the final proviso of section 25, stated that all rights granted under that section were to be "subject to the control of the future Territory or State within which Indian Territory may be situated." Whether the procedure under the 1902 railroad act also became subject to State laws is a question now moot since the act of May 27, 1908 (35 Stat. 312), discussed below, specifically continued in force sections 13 to 23 inclusive of the 1902 statute.

    The only law of the United States which provided generally for the condemnation of Indian lands and which it is necessary to consider in connection with section 21 of the enabling act is found in the second paragraph of section 3 of the act of March 3, 1901 (31 Stat. 1084; 25 U.S.C. sec. 357), and provides:

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

    At the time the act of March 3, 1901, was passed the lands of the Five Tribes Indians in Indian Territory were in tribal ownership, and were, except for certain Federal control, subject to the government of the respective nations. On March 3, 1893 (27 Stat. 612, 645), Congress had indicated its intention to place these areas under a territorial or state government, notwithstanding guarantees to the contrary given in some of the treaties between the nations and the United States.⁷ The Curtis Act of June 28, 1898 (30 Stat. 495, 512), made definite reference to this intended change, and four of the five allotment agreements recognized the imminence of the change by providing that the tribal government should not continue in existence longer than March 4, 1906. ⁸ Although most of these agreements were later supplemented, all of the initial agreements, with the exception of the Creek agreement, had been approved and ratified prior to March 3, 1901. The one with the Creeks was approved by Congress on March 1 of that year, but it was not ratified by the tribe until March 25.

    The first paragraph of section 3 of the act of March 3, 1901, was concerned with certain rights-of-way over Indian lands, including "any lands held by an Indian tribe or nation in the Indian Territory." The second paragraph contained no language which showed an intention to exclude the Indian Territory or even lands of the Five Civilized Tribes from the scope of the eminent domain provision. It is to be noted that while the 1901 act allows the condemnation only of allotted lands, the special statutes dealing with the Indian Territory authorize condemnation of tribal lands as well. In view of the circumstances at the time the act was passed and in view of the broad language of the 1901 provision and the specific mention of Indian Territory in the first paragraph of the section in which it is found, we are led to the conclusion that the provision was meant to apply to allotted lands in the Indian Territory whenever a Territory or State had been formed. It was not until November 16, 1907, that the State of Oklahoma was finally admitted into the Union, but upon that date the authority conferred in the act of March 3, 1901, became available for the condemnation of Indian allotments in Oklahoma, in so far as such proceedings were not authorized by the 1898, 1908, or 1906 acts.

    After Oklahoma had been admitted to statehood, the next pertinent act was passed on May 27, 1908 (35 Stat. 312), and was titled "An Act for the removal of restrictions upon part of the lands of allottees of the Five Civilized Tribes, and for other purposes." Section 1 restated and partially revised the restrictions on alienation and, in the last sentence of the section, provided:

    ". . . No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty-three inclusive, of an act entitled 'An Act to grant the right of way through Okla-

  ⁸ Section 63, original Cherokee agreement (32 Stat. 716, 725); Choctaw and Chickasaw agreement (30 Stat. 495, 512); section 46, Creek agreement (31 Stat. 861, 872). For similar provision as to Seminole Nation see act of March 3, 1903
(32 Stat. 982, 1008).
 

homa Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes,' approved February twenty-eighth, nineteen hundred and two (Thirty-second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma."

    "The act of March 3, 1901 (31 Stat. 1084), in brief, authorizes condemnation of lands allotted to Indians for public purposes. This act is general in its operation. Congress, however, has legislated specifically as to the homestead tracts allotted to Creek Indians, especially as to full-blood Indians. The act of May 27, 1908, supra, prohibits the alienation or any incumbrance upon such homestead prior to April 26, 1931, except when the restrictions are removed for the sale and disposal of the proceeds for the benefit of the Indian. Congress then qualified the effect of the restriction of alienation so as not to 'prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands', etc. The act of May 27, 1908, prohibits the alienation of the homestead of a full-blood minor Creek Indian and permits the exercise of the right of eminent domain solely for 'rights of way for public purposes.' The term 'rights of way' can not be construed to include lands desired for school purposes. . . .

    ". . . The general provisions of the act of March 3, 1901 (31 Stat. 1058), having been superseded by the specific provisions relating to the Creek restricted lands, it accordingly follows that there is no right of eminent domain under the existing law for the purpose of securing a school site upon the homestead of Annie Scott."

   The 1917 opinion appears to hold that the imposition of restrictions by section 1 of the act of 1908 repeals by implication the previously granted authority to condemn Five Civilized Tribes allotted lands and that the statement to the effect that the restrictions are not to be construed as preventing the condemnation of "rights of way for public purposes" was an affirmative grant of new authority for condemnation. The opinion further holds that the proposed use for a school site was not a "right of way" and so did not come within the authority for condemnation granted in the 1908 act. I do not agree with these conclusions, and believe the effect of the 1908 act must be reconsidered.

    It is a familiar rule that repeals by implication are not favored, and that such a repeal will exist only where there is a positive repugnancy between the provisions of the new law and those of the old.⁹ It is also elementary that one statute is not repugnant to another unless they relate to the same subject. There must be a conflict between different acts on the same specific subject.¹⁰ The act of 1901 authorizes the condemnation of allotted lands for any public purpose under the laws of the State in the same manner as lands owned in fee simple by white citizens can be condemned. The authority so conferred was of necessity continuing in nature and the plain intent of Congress was that it should be available notwithstanding restrictions against alienation then or thereafter in force. Section 1 of the act of 1908 dealt with a totally different subject. That section reimposed, supplemented and extended the restrictions against alienation of lands allotted to Indians of the Five Civilized Tribes. The oft-reiterated and well recognized reason for the imposition of such restrictions is the protection of the Indian from his own ignorance and inexperience in business dealings and from the greed and fraud of other individuals. United States v. Sunderland, 266 U.S. 226, 234 (1924). It is true that the grant of the right of eminent domain is usually to be construed strictly against the grantee. But, on the other hand, the courts have long recognized the desirability of avoiding questions as to the conflict of sovereignty except when such questions are inescapable, and the courts have always tried to determine and follow the intention of the legislative body. The enumeration in the act of 1908 of the types of alienation which are forbidden¹¹ indicates that the Congressional pro-

____________
   ⁹ United States v. Borden Co., 308 U.S. 188, 60 S. Ct. 182 (1939).

   ¹⁰ See Lewis's Sutherland Statutory Construction, vol. 1, sec. 247, pp. 468-9.

   ¹¹ Section 5 of the act of 1908 provides: "That any attempted alienation or incumbrance by deed, mortgage, contract to sell, power of attorney, or other instrument or method of incumbering real estate, made before or after the approval of this Act, which affects the title of the land allotted to allottees of the Five Civilized Tribes prior to removal of restrictions therefrom, and also any lease of such restricted land made in violation of law before or after the approval of this Act shall be absolutely null and void."
 

hibition did not repeal the statutory provisions which allowed the lands to be taken for a public purpose. That the lands cannot be taken from the Indians for the benefit of some private interest is in no way inconsistent with the right of a public instrumentality to proceed under statutory authority to take the lands for a valid public purpose. The procedure for such a taking is so well established that the possibility of fraud is reduced to a minimum. The right of the United States to participate in such a proceeding is an added guarantee against miscarriage of justice in the judicial action.

    It is my conclusion that the eminent domain authority in the act of March 3, 1901, was not impliedly repealed by the provisions regarding restrictions against alienation in section 1 of the act of 1908.

    This conclusion is strengthened rather than weakened by the clause in section 1 which preserves the right of eminent domain for "rights of way for public purposes." The very language shows that the purpose served by the statement was one of clarification rather than of authorization. When it is remembered that no right to condemn restricted Indian lands could exist unless Congress had so provided, the language of the statute to the effect that "No restrictions of alienation shall be construed to prevent . . . eminent domain" shows that some authority to condemn existed and was recognized by the legislators; otherwise there would have been no right of condemnation to be prevented.

    The use of the words "rights of way" raise the question as to where those words imply a limitation on the broad rights of eminent domain. One of the rules of statutory construction is, of course, that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. But the rule is applicable in determining the Congressional intent only if the term "rights of way" as used has a limited meaning. The definition of the words, however, has not been so fixed by usage as to be free of all ambiguity. Congress itself has used the words in legislating to mean a limitation upon the interest in the land which can be taken-for example, a limited fee or mere easement rather than a fee simple; and at another time to mean a limitation upon the use for which the land can be taken-for example, in section 23 of the act of February 28, 1902 (32 Stat. 43), the right was granted "to take and condemn lands for rights of way, depot grounds, terminals, and other railway purposes." Another possibility is that Congress may have intended the words to mean in general any taking by eminent domain and without limitation as to the nature of the public use or the interest in the land. The legislative history should indicate the Congressional intent.

    The part of section 1 which deals with eminent domain was not contained in the original bill (H.R. 15641, 60th Cong., 1st sess.) either as introduced or as it first passed the House of Representatives. Nor was the matter of eminent domain discussed in the report of the committee ( H. Rept. 1454) or in the debate on the floor of the House (Cong. Rec., 60th Cong., 1st sess., pp. 5425-27, 6189-90). The Senate Committee on Indian Affairs in its report (S. Rept. 575) recommended the following amendment be added to section 1 of the bill:

    "No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands."

"and for such purposes sections thirteen to twenty-three inclusive, of an act entitled 'An Act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Company, and for other purposes,' approved February twenty-eighth, nineteen hundred and two (Thirty-second Statutes at Large, page forty-three), are hereby continued in force in the State of Oklahoma."

    "Amendment No. 8 provides that no restriction on alienation shall prevent the exercise of the right of eminent domain, and in conference a provision was agreed to making it certain that the provisions of the railroad right of way should not be repealed by this provision." (Cong. Rec., supra, p. 6781).

    "Another provision makes it clear that these restrictions do not prevent the exercise of the use of the right of eminent domain." (Cong. Rec., supra, p. 6782).

istent authority to condemn. It is my conclusion that Congress intended to continue in force all eminent domain provisions in effect when the statute was passed on May 27, 1908. The Solicitor's opinion of October 31, 1917, is not in accord with the conclusions which have been reached in the present opinion, but although the 1917 ruling has been in force for over 20 years, it has not given rise during that period to any administrative practice which causes us to hesitate in overruling it. The denial of the right to condemn under the 1901 act may have caused some inconveniences to would-be condemners, but the denial of a right to take land could not have clouded any title or fostered any vested interest which will be effected. In so far as the 1917 opinion is contrary to the conclusions stated in this opinion, it is hereby overruled.

    The last portion of the eminent domain provision in the 1908 act presents one additional question not considered in the opinion of 1917. The words "and for such purposes sections thirteen to twenty-three inclusive, of an act . . . approved February twenty-eighth, nineteen hundred and two . . . are hereby continued in force in the State of Oklahoma" may mean that the procedure set forth in those sections shall apply either to all condemnation proceedings or only to those involving railroads. The words "and for such purposes" are not free from doubt as to the meaning which they convey and we are justified in resorting to the legislative history to determine the correct interpretation. The words of reference to the 1902 act were added in conference at the request of the House conferees, and one of the conferees explained to the House that this addition made certain that the provisions of the railroad right-of-way act were not repealed. This explanation gives the words a "saving" function and nothing more. Prior to the admission of Oklahoma into statehood, sections 15 and 17 had served to provide the procedure for the taking of Indian land in Indian Territory by light or power companies under the act of April 26, 1906, but section 25 of that act also provided that the laws of Oklahoma were to govern after the admission of the State. The act of March 3, 1901, also implies that State laws are to govern. Sections 13 to 23 inclusive of the 1902 act are not generally applicable to the needs of parties other than railroads. In the light of these circumstances it is my conclusion that while the condemnation of Indian lands by railroads is to be in accordance with the provisions of the 1902 act, that act does not control condemnation proceedings authorized for other than railroad purposes.

2. The Court having jurisdiction to hear and determine proceedings in condemnation.

    The procedure which is set forth in the act of February 28, 1902, includes in section 23 a provision that "all judicial proceedings herein authorized may be commenced and prosecuted in the courts of said Oklahoma Territory which may now or hereafter exercise jurisdiction within said reservations or allotted lands." Section 15 of that act provides for consideration in the condemnation proceedings by "the United States court, or other court of competent jurisdiction." The act of April 26, 1906, incorporates section 15 of the 1902 act by reference. These various statutes, however dealt with the taking of not only the lands of the Indians but also those of any other persons, corporation of municipality within the Indian Territory. With regard to the latter group, it is evident that a State court would have jurisdiction, but in a proceeding against restricted Indian lands the United States is an indispensable party and, as such, can be sued only in the Federal court. This conclusion is substantiated by the provision of the Oklahoma Enabling Act of June 16, 1906, which provided in section 16 that all causes pending in the courts of the Oklahoma Territory and the Indian Territory "in which the United States may be a party . . . shall be transferred to the proper United States Circuit or District Court for final disposition."

3. Rights of way for public highways.

    "That the Secretary of the Interior is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the

laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which have not been conveyed to the allottees with full power of alienation."

    Provisions for section line highways of limited width were included in the Creek and Cherokee agreements¹² and in section 24 of the act of April 26, 1906 (34 Stat. 137). But these were special provisions to meet temporary needs. The Creek and Cherokee agreements required that damages for the opening and establishment of public highways be paid from tribal funds during the existence of the tribal governments then scheduled to expire in 1906. The act of 1906 likewise required that damages be paid from tribal funds but as that act continued the tribal governments in force until otherwise provided by law, the determination of the damages and the payment thereof from tribal funds was limited to the period "prior to the inauguration of a state government." Legislation of this nature plainly is of the temporary type hereinbefore referred to as not intended to survive statehood. As laws "locally inapplicable," they were not continued in force by the enabling act and could not have been intended to displace other and more comprehensive statutory provisions such as contained in the act of 1901. Even though the act of 1901 could not, in the absence of a territorial or state government, become immediately available, this difficulty was completely removed by the formation of the State of Oklahoma. Indeed, as a law of the United States not then locally inapplicable, the act of 1901 was required to be given the same force and effect in Oklahoma as elsewhere by section 21 of the enabling act of June 16, 1906, supra.

4. Secretarial grants of rights-of-way for telephone, telegraph and power transmission lines.

"through any Indian reservation, through any lands held by an Indian tribe or nation in the Indian Territory, through any lands reserved for an Indian agency or Indian school, or for other purposes in connection with the Indian Service, or through any lands which have been allotted in severalty to any individual Indian under any law or treaty, but which have not been conveyed to the allottee with full power of alienation."

    The act of February 15. 1901 (31 Stat. 790), authorizes the Secretary of the Interior to grant rights-of-way for telephone, telegraph and transmission lines and for sundry other purposes through reservations of the United States including Indian reservations, upon the condition, among others, that no such grant shall be made without the approval of the chief officer of the department having supervision over the reservation affected. With variations not here material, the act of March 4, 1911 (36 Stat. 1253), confers a like authority upon heads of departments with respect to telephone, telegraph and transmission lines. As to telephone and telegraph lines, these acts are broader in scope than the first paragraph of section 3 of the act of 1901 in that they authorize a grant of a right-of-way for a private telephone or telegraph line in addition to rights-of-way for lines used for general public service.

    Whether or not the acts of February 15, 1901, and March 4, 1911, are applicable to lands of the Five Civilized Tribes depends upon whether such lands prior and subsequent to allotments in severalty may properly be classified as Indian reservations. I find little difficulty in holding that prior to allotment the lands belonging to the Five Civilized Tribes were legally constituted Indian reservations. Under certain early treaties, a comprehensive discussion of which is found in the Handbook of Federal Indian Law (ch. 3, sec. 4, subdivision E), specific and well defined tracts of land were set apart as permanent homes for each of the nations comprising the Five Civilized Tribes. In Minnesota v. Hitchcock, 185 U.S. 373, 390. lands set aside for an Indian tribe with much less formality than this were declared to be an Indian reservation. See also Spalding v. Chandler, 160 U.S. 394. It is true that the lands were conveyed in fee to the nations by patents issued by the United States, but this did not terminate the guardian-

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  ¹²Section 10, supplemental Creek agreement (32 Stat. 600); section 57, Cherokee allotment agreement (32 Stat. 716).
 

ship relation existing between the Indians and the United States and they continued to be subject to the legislation of Congress enacted in the exercise of the Government's guardianship over the nations and their affairs. In this and in other respects the lands stood in exactly the same category as the lands of other legally constituted Indian reservations.

    The administrative interpretation over a long period of years has been that the word "reservation" as used in the various right-of-way statutes included lands allotted to individual Indians.¹³ However, on March 27, 1942, the Circuit Court of Appeals for the 10th Circuit in United States v. Oklahoma Gas & Electric Co., 127 F. (2d) 349, held the acts of February 15, 1901, and March 4, 1911, to be without application to an Indian allotment for the reason that the allotment was no longer a part of the reservation. Since a petition for certiorari has been filed by the United States and is now pending before the United States Supreme Court, the question of the applicability of these acts to allotted lands of the Five Civilized Tribes can only be answered conditionally. If certiorari be denied or the Supreme Court on review affirms the decisions of the Tenth Circuit Court of Appeals, the acts cannot be held to be applicable. If, on the other hand, the Supreme Court reversed the Circuit Court of Appeals and sustains the departmental interpretation of the acts, then it must be held that they apply to allotted lands of the Five Civilized Tribes.

5. Laws governing rights-of-way over and condemnation of lands acquired for Indian tribes in Oklahoma under the Oklahoma Indian Welfare Act.

    This conclusion is in accord with the interpretation placed by this office on the word "reservation" as used in a right-of-way statute differing in no material respects from the statutes here involved. In a memorandum dated July 1, 1938, from the Acting Solicitor to the Assistant Secretary consideration was given to the question of whether lands purchased for Indian school purposes constituted a reservation within the meaning of an Act of Congress authorizing the granting of irrigation ditch rights-of-way across reservations of the United States. Disagreeing with a proposed interpretation of the word "reservation", the Acting Solicitor said:

    "A construction of the word 'reservation' in this statute to refer only to reservations created out of the public domain and to exclude reservations where the land has been acquired by purchase, donation or otherwise unduly restricts the application of the act of Congress by departmental interpretation. No previous formal decision of this Department nor any court opinion has been found which interprets the term 'reservation' in right of way statutes in the manner proposed. On the contrary in the Icicle Canal Company case, 44 L.D. 511, at 512, it is reported that a reservation purchased by, and trust patented to, the Indians was held by (the Department to be within the term 'public lands and reservations of the United States' in the highway right of way statutes. The courts have generally given the term 'reservation' a broad meaning to include any lands set apart by the Government for any purpose. (See United States v. Portneuf-Marsh Valley Irrigation Co., 213 Fed. 601, at 603). In this connection it is relevant to refer to the case of United States v. McGowan decided in the Supreme Court on January 3, 1938 (302 U.S. 535, 82 Sup. Ct. 305). That opinion overruled the holding of the lower Federal counts that The Reno Ind