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under the allotment laws in force prior to 1919, which contained no provision for a mineral reservation to the tribe. The lands subsequently passed into unrestricted private ownership and were purchased from the private owners in 1940 under authority contained in the Indian Reorganization Act of 1934. Under the provisions of that Act, the title was conveyed to the United States in trust for the Blackfeet tribe. In an exchange transaction between the tribe and Helen Conway Brown, the latter, who had received in allotment some 400 acres under the 1919 Act conveyed those lands to the United States in trust for the Blackfeet tribe, and in exchange therefore received a trust patent dated October 2, 1952, for the 80 acres of land embraced in her application for a patent in fee. The record relating to this transaction shows that the lands involved were of equal value and there is nothing to indicate any intent on the part of the Blackfeet tribe to reserve the underlying minerals. The trust patent issued to Mrs. Brown contains no mineral reservation, and under the rule announced above, that patent must be held to constitute a valid conveyance not only of the surface but also of whatever mineral rights the Blackfeet tribe had in the lands.

    The record does show, however, that the 1940 conveyance to the United States in trust for the Blackfeet tribe contained the following exception and reservation:

    "Excepting and reserving, however, from the last above described lands, 2½% of all minerals and mineral rights and oil and gas royalty lying in and under, and which may be produced from the said last above described land to the same extent and in the same manner as the same have been heretofore reserved by predecessors in title of the parties of the first part herein. The interest so excepted and reserved is intended to include and does include all the interest in said minerals heretofore reserved and is not in addition thereto."

    Subject to the foregoing exception and reservation, and subject also to any other valid and subsisting encumbrances of record, it is my opinion that a patent in fee should be issued to Mrs. Brown as applied for authority for the issuance of such patent in fee is found in the Act of May 14, 1948 (62 Stat. 236; 2.5 U.S.C., sec. 483).

DISTRIBUTION OF ESTATE OF FULL-BLOOD
CREEK INDIAN--AUTHORITY OF OKLAHOMA
STATE COURTS

M-36426 January 4, 1957.

(Opinion dated September 13, 1956)

Notice

In proceedings to probate the restricted estate of a deceased Indian of the Five Civilized Tribes in Oklahoma substantial compliance must be had with the notice provisions of section 3 (b) of the act of August 4, 1947 (61 Stat. 731).

The Oklahoma law of wills applies in the case of restricted estates of deceased Indians of the Five Civilized Tribes in all particulars save as modified by the proviso contained in section 23 of the act of April 26, 1906 (34 Stat. 137), as amended.

The will of a deceased Indian of the Five Civilized Tribes which was acknowledged and approved as required by section 23 of the act of April 26, 1906 (34 Stat. 137), as amended, can effectively devise restricted lands without regard to any limiting provisions of the Oklahoma law, but such will cannot effectively disinherit a surviving spouse with respect to other types and classes of property.

Indian Lands: Descent and Distribution: Generally

The State courts of Oklahoma are without authority to administer the restricted estate of deceased Indians of the Five Civilized Tribes, and such courts are likewise without authority to consider and allow claims against the distributive shares of Indian heirs which are restricted by the act of August 4, 1947 (61 Stat. 731).

Memorandum

To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Distribution of the Estate of Martha Jackson Chisholm, deceased full-blood Creek Indian, Roll No. 9615

    At your request this office has obtained from the Regional Solicitor, Tulsa, Oklahoma, the entire

record of the Bureau's Area Office in the matter of this estate. This action was prompted because Mr. Clem H. Stephenson, Seminole, Oklahoma, has been insisting that the estate of this deceased full-blood Indian be distributed under the provisions of an order of the county court of Okfuskee County, Oklahoma, dated April 17, 1956, which was filed with the clerk of the court on .June 21, 1956. This order purports to distribute the estate and allow certain claims against individual distributees. In view of the submission of the records to this office and the questions presented, the Regional Solicitor has advised the Area Director to withhold distribution.

    This estate has been the subject of protracted litigation since the death of the decedent in 1949. In view of the multiplicity of suits and the complexity of the questions involved, I am setting forth below a summary of the pertinent facts as they appear from an examination of the files.

Statement of Facts

    Martha Jackson Chisholm died testate on July 9, 1949, leaving an estate valued at $195,553.98. She was survived by her husband, Buster Chisholm, a full-blood Cherokee Indian, enrollee No. 16300; an adopted son, Eugene Davis, Jr., a brother, Robert .Jackson; and four nephews, Eugene Jackson, Winifred Saber-Jackson, Andrew Jackson, Jr., and Kenneth Dale Jackson, the children of a predeceased brother, Andrew Jackson. All of the decedent's collateral relatives, named above, are full blood Creek Indians.

    The decedent's last will and testament, dated June 24, 1949, devised and bequeathed to the surviving husband, Buster Chisholm, 10 acres of restricted purchased land valued at $6,500; certain household goods and other personal property appraised at $4,304; and $10,000 in cash. The will bequeathed one dollar to the adopted son, leaving all of the balance of the estate to the brother and nephews named above, in equal shares. During the lifetime of the testatrix the will had been acknowledged before and approved by the County Judge of Okfuskee County in accordance with the provisions of Section 23 of the Act of April 26, 1906 (34 Stat. 137), as amended by the Act of May 27, 1908 (35 Stat. 315).

    On July 11, 1949, the surviving husband filed case No. 3000 in the Okfuskee County Court to probate a purported will which had been executed in 1947. Notice of the pendency of that action was not served on the Superintendent (now Area Director) as required by section 3 (b) of the Act of August 4, 1947 (61 Stat. 731). On July 14, 1949, Mr. I. V. Hollis, the executor named in the decedent's last will of June 24, 1949, filed in case No. 3000 a contest of the earlier will involved in that case, and at the same time he filed case No. 3002 in which he offered the later will of June 24, 1949, for probate. The sworn statement of Mr. Hollis' attorney shows that copies of these two first pleadings filed by Mr. Hollis on July 14, 1949, were served that day by registered mail on the United States probate attorney at Wewoka, Oklahoma, and copies likewise were mailed to the United States probate attorney at Muskogee, Oklahoma. The cases were consolidated by the court under case No. 3002, and the United States probate attorneys at Wewoka, Oklahoma, and his successors in office appeared thereafter from time to time and participated in the proceedings as developments occurred. As the litigation progressed over a period of seven years, the Area Director made several disbursements out of the decedent's restricted funds in payment of various claims and expenses allowed by the county court in case No. 3002.

    The surviving husband, Buster Chisholm, died on July 21, 1949, and Mr. Harry Scoufos was appointed administrator of the husband's estate in case No. 3004. Although that action is still pending, it appears from available information that Buster Chisholm was survived by his father, William Chisholm, a full-blood Shawnee Indian who will be entitled to inherit the entire estate of Buster Chisholm.

    Mr. Scoufos, as administrator of the estate of Buster Chisholm, has appeared in his representative capacity in all proceedings relating to the estate of Martha Jackson Chisholm. Mr. Scoufos filed an election to take under the Oklahoma statutes of descent (84 O.S.A., sec. 44). Mr. .J. D. Fuller, a former husband of the decedent, who had divorced her in 1940, filed a contest against the probate of the will in which he alleged that he was entitled to one-half of the estate as surviving spouse under the provisions of 84 O.S.A., sec. 44.

    The Okfuskee County Court admitted to probate the last will of Martha Jackson Chisholm, dated June 24, 1949, and held that Mr. Fuller was the surviving spouse and was entitled to share in the estate under the laws of succession. The judgment of the county court was affirmed on appeal to the district court. Upon further appeal, the Oklahoma Supreme Court rejected Mr. Fuller's claim and held that Buster Chisholm was the surviving spouse of Martha Jackson Chisholm (280 P. (2d) 720 (Okl-1954) .)

    On April 17, 1956, the County Court of Okfuskee County entered its final decree of distribution in the matter of the estate of Martha Jackson Chisholm. This decree distributes the estate on the theory that the decedent's will is effective to disinherit the surviving husband as to restricted lands,

but is ineffective against the husband's rights as a forced heir under the laws of succession with respect to all other classes of property belonging to the decedent. Thus, under the decree, certain restricted lands are distributed to the decedent's brother and four nephews in equal shares of one-fifth each, as provided by the will. All of the rest and residue of the estate (less $1.00 bequeathed to the adopted son) is distributed; one-half to the administrator of the estate of Buster Chisholm, deceased, and one-tenth each to the decedent's brother and four nephews, named above.

    The final decree allows certain costs, executor's fees, and fees to the executor's attorneys. The court also allowed attorneys' fees to the attorneys for the brother and nephews of the decedent, and also allowed various amounts to these attorneys for advancements allegedly made by them to their clients during the pendency of the litigation and for services allegedly rendered in unrelated matters.

Questions Presented

    The following questions are raised by the record:

    1. Whether the probate proceedings are defective for want of compliance with the requirement of service of notice provided by section 3 (b) of the Act of August 4, 1947 (61 Stat. 731)?

    2. Whether the probate court correctly applied the law, Federal and state, relating to the testamentary disposition of restricted property by deceased Indians of the Five Civilized Tribes?

    3. Whether the probate court exceeded its authority in attempting to distribute restricted property to the administrator of the estate of a deceased full-blood Indian of the Five Civilized Tribes?

    4. Whether the probate court exceeded its authority in attempting to allow and direct payment of claims against the distributive shares of full blood Indians of the Five Civilized Tribes?

    These questions will be dealt with in the order listed above.

1

    Section 3 (b) of the Act of August 4, 1947, supra, provides:

    "(b) The United States shall not be deemed to be a necessary or indispensable party to any action or proceeding of which the State courts of Oklahoma are given exclusive jurisdiction by the provisions of subsection (a) of this section, and the final judgment rendered in any such action or proceeding shall bind the United States and the parties thereto to the same extent as though no Indian property or question were involved: Provided, That written notice of the pendency of any such action or proceeding shall be served on the Superintendent for the Five Civilized Tribes within ten days of the filing of the first pleading in such action or proceeding. Such notice shall be served by the party or parties causing the first pleading to be filed."

    We are aware of no reported decision involving the statute quoted above. However, in cases arising under similar Federal statutes requiring service of notice on a superintendent in Indian litigation, where the exercise of jurisdiction has been challenged, the courts have inquired first whether the record contains evidence of an attempt to comply with the statutory provision for the service of notice. Where there has been a total failure to comply with the requirements of the statute in any particular, the courts have generally regarded the non-compliance as a fatal defect. See Goddard et al. v. Frazier, 156 F. (2d) 938 (1946); Collinson v. Threadgill, 252 Pac. 827 (Okl.--1927). But where there has been substantial compliance with the statute and the party entitled to notice thereunder has failed to interpose timely objection to technical deficiencies, but has participated and acquiesced in the proceedings, the courts have upheld the exercise of jurisdiction notwithstanding technical irregularities in the service of notice. See Shimonek v. Tillman, 1 Pac. (2d) 154 (Okl.-1931); United States v. Thompson et al., 128 F. (2d) 173 (1942). The latter case is particularly in point, since it involved an interpretation of section 3 of the Act of April 12, 1926 (44 Stat. 240) which, like section 3 (b) of the 1947 act, provides a detailed procedure for serving the superintendent with notice of the pendency of litigation affecting the restricted property of Indians of the Five Civilized Tribes. Service of notice on the superintendent in that case was made after the expiration of the ten day period prescribed by the statute. The United States intervened in the case, removed it to the Federal court, and moved to quash the service of notice. The motion to quash was overruled, and the United States did not thereafter participate actively in the proceedings in the trial court. It was held on appeal that the government's intervention made it a party to the action and cured any irregularities in the service of notice.

    Applying the foregoing principles to the case at hand, it is clear that no objection should now be interposed to the probate proceedings in case No. 3002 for failure to comply strictly with the notice provisions of the 1947 act, supra. The statute provides that the party filing the first plead-

ing shall, within ten days of filing, serve upon the superintendent for the Five Civilized Tribes a notice of pendency of the action. Meticulous compliance was had with the requirements of this statute except that the notice was addressed to the two probate attorneys in Wewoka, and Muskogee, Oklahoma, instead of the superintendent (now area director) at Muskogee. This service was followed by the appearance and continued participation in the proceedings by the probate attorney, and the disbursement of restricted funds by the superintendent (now area director) during the course of the litigation. For the reasons given, it is believed that the proceedings in case No. 3002 cannot be said to be defective for want of compliance with the provisions of section 3 (b) of the Act of August 4, 1947, supra.

2

    Section 23 of the Act of April 26, 1906 (34 Stat. 137), reads as follows:

    "Sec. 23. Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner" (The Act of May 27, 1908 (35 Stat. 315), extended the authority to approve such wills to judges of the county courts of the State of Oklahoma).

    In the case of Blundell v. Wallace, 267 U.S. 373 (1925), the Supreme Court passed upon the meaning and scope of the above quoted statute. The court reviewed the congressional policy respecting the Indians of the Five Civilized Tribes and found therefrom that the local law of wills was applicable to these Indians except to the extent that such local law had been modified by the proviso contained in section 23 of the 1906 act, quoted above. The court observed:

    "*     *     * The general policy of Congress prior to the adoption of section 23 plainly had been to consider the local law of descents and wills applicable to the persons and estates of Indians, except insofar as it was otherwise provided. *     *     * Section 23 must be read in the light of this policy; and so reading it, we agree with the ruling of the state Supreme Court that Congress intended thereby to enable the Indian to dispose of his estate on the same footing as any other citizen, with the limitation contained in the proviso thereto. The effect of section 23 was to remove a restriction theretofore existing upon the testamentary power of the Indians, leaving the regulatory local law free to operate as in the case of other persons and property. *     *     * it (sec. 23) is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law."

    An important part of Oklahoma's "local law of wills" is found in 84 O.S.A., sec. 44, which reads:

    "*     *     * but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one-half thereof in value to the surviving spouse."

    It is manifestly necessary to reconcile the statutes, Federal and State, which have been quoted above. The matter was squarely presented to the Oklahoma Supreme Court in the case of Long v. Darks et al., 87 Pac. (2d) 972 (Okl.--1939). The testator in that case was a full-blood Creek Indian whose will had been acknowledged and approved as provided by the 1906 act, supra. By the terms of the will the surviving spouse was devised and bequeathed property which was less in value than she would have received under the laws of succession. The court said:

    "*     *     * It will be observed that the proviso in section 23 relating to full-blood applies only to the devise of real estate. Personal property is not affected thereby; and as to lands, the proviso could apply to none except that which is restricted by the federal acts. *     *     * But, unless plaintiff has waived her rights to renounce the will and to invoke the provisions of said section, as to all other lands and all personal estate, it would be necessary to reverse the judgment and remand the cause with directions to ascertain the value thereof, and if plaintiff has been denied that portion in value which she would have inherited under the laws of succession, the will should be declared inoperative as to that portion of the estate

and the same be distributed accordingly. In making such distribution of the personal estate and the unrestricted lands, the manner of the testamentary disposition of the restricted land or the future income therefrom is entitled to no consideration. That devise occupies a position wholly independent of the state statute."

    The court concluded in the Long case that the widow was estopped from asserting her rights under the laws of succession because of her conduct in having joined in the action to probate the will, and having accepted benefits thereunder. It is quite clear, however, that the distribution to the widow in accordance with the will, was predicated solely on the doctrine of estoppel, the court rejecting in its entirety the idea that the proviso in section 23 of the 1906 act had any application to property other than restricted lands.

    Another question has been raised and should be disposed of here. The surviving husband, Buster Chisholm, died shortly after the death of Martha Jackson Chisholm, and before her will was admitted to probate. It has been suggested that he was required by law to elect between taking under the will or under the laws of succession, and that his failure to exercise his personal right of election before he died rendered the court powerless to order distribution to him as a forced heir under 84 O.S.A., sec. 44. We disagree. The statute makes no requirement that the surviving spouse elect between taking under the will or under the laws of succession. In the case of Bank of Commerce and Trust Company v. Trigg, 280 Pac. 563 (Okl.--1929), this statute was distinguished from those of other jurisdictions which require the surviving spouse to elect, and which provide for distribution under the will if an election is not made. The court said:

    "There are numerous decisions holding that where an election is necessary, and where the legatee dies without having made an election, the heirs of the deceased are presumed to take under the will, and not under the statute. All of these cases, however, insofar as we have been able to ascertain, are based on statutes. *     *     * In all the states where these statutes prevail, it is uniformly held that, if the wife does not make an election, she is deemed to take under the will. The statutes so provide. These decisions, therefore, are not in point in this state, because we have no such statute."

A contrary view to that expressed in the Trigg case would do violence to the language of the Oklahoma statute and, indeed, would reduce it to impotence. The statute expressly limits the testamentary power of a married person for the benefit and protection of the surviving spouse. If, in cases like the one presently under consideration, the survivor's failure to elect were to result in distributing the estate under the will, the very thing prohibited by the statute could be accomplished.

    On the basis of the authorities cited above, it is our view that the court was correct in holding that the will of Martha Jackson Chisholm was effective to disinherit the surviving spouse as to restricted lands but was ineffective against the rights of the surviving spouse as a forced heir with respect to all other types of classes of property belonging to the estate.

3 and 4

    The answer to both of these questions depends upon a single principle of law. The entire restricted estate of Martha Jackson Chisholm passes by inheritance and devise to Indians of the Five Civilized Tribes of one-half or more Indian blood. All such property is classified as restricted by the Act of August 4, 1947 (61 Stat. 731). It is well settled in Oklahoma that the restricted property of deceased Indians of the Five Civilized Tribes is not subject to administration by the probate court. See House v. United States, 144 F. (2d) 555 (1944); Moore v. Jefferson, 120 Pac. (2d) 983 (Okl.--1942); Ryburn v. Carney, 39 Pac. (2d) 9 (Okl.--1935). Accordingly, it must be concluded that the county court was without authority to order the distribution of restricted property to the administrator of the estate of Buster Chisholm. The court was likewise without authority to order the payment of claims against the distributive shares of the full-blood Indian beneficiaries named in the decedent's will.

Recommendations

    It is recommended that the Area Director be instructed to proceed with the distribution of the estate of Martha Jackson Chisholm in accordance with the final decree of the county court of Okfuskee County dated April 17, 1956, except in the following particulars:

    1. The restricted property inherited by Buster Chisholm, now deceased, should not be distributed to his administrator but should be retained subject to the completion of valid probate proceedings in the matter of his estate.

    2. The distributive shares of the decedent's brother and four nephews should be credited

to their respective accounts on the books and records of the area office and held subject to supervision in accordance with applicable regulations. Any persons having claims against these distributive shares should be advised by the area office as to the procedure to be followed in presenting their claims to that office for consideration.

January 4, 1957

Approved as recommended:

FRED A. SEATON, Secretary of the Interior.

IMPOSITION OF NORTH DAKOTA STATE FISH AND
GAME LAWS ON INDIAN CLAIMING TREATY
AND OTHER RIGHTS TO HUNT AND FISH

M-36410                                                                                                                 February 11, 1957.

An Indian, like any other citizen, when outside the confines of his reservation, is amenable to the State law, in the absence of treaty provisions according him or his tribe special rights. If there is no treaty giving an Indian an unrestricted right to hunt and fish off his reservation, he is in no better position than anyone else as to proving that wild game in his possession during a closed season was legally killed.

Indian Tribes: Treaties

Solicitor's Opinion of June 15, 1934, 54 I.D. 517, is overruled insofar as it suggests that the hunting rights on Indian reservations were not protected for the future by the Treaty of Point Elliott, 1855, or that, despite any such protection, such rights were plainly abrogated by the Migratory Bird Treaty Act, 39 Stat. 1702.

Memorandum

To:            James D. Geissinger, Regional Solicitor, Denver
From:        Solicitor
Subject:     Imposition of North Dakota State fish and game laws on Indians claiming
                 treaty and other rights to hunt and fish

    I have been asked to comment on a memorandum by the Field Solicitor, Billings, in the matter of the North Dakota State fish and game laws and Indians claiming treaty rights to hunt and fish.

    Because of the great number of treaties which have been negotiated with the Indians of the tribes represented in North Dakota, and also because of the multitude of different tribal organizations and Federal laws and regulations which affect particular tribes and reservations, it is difficult to answer the question without making the answer very general.

    The general position taken by the Bureau of Indian Affairs and the Department for many years has been that a State has jurisdiction over Indians while outside of their reservation within the State. It is fundamental that an Indian, like any other citizen, when outside the confines of his reservation, is amenable to the State law, in the absence of treaty provisions according him or his tribe special rights.

to his possession during a closed season. Certainly, if the game warden encountered the finder with game in his possession he would be justified in making an arrest, and the finder would be required to prove that the killing was not illegal. And, if we admit that there is no treaty giving an Indian an unrestricted right to hunt and fish off of his reservation, he is in no better position than anyone else as to proving that wild game in his possession during a closed season was legally killed.

    I am unable to agree with the Field Solicitor's opinion that, because the killing was legal while upon the reservation, the Indian has an unqualified right to transport the wild game to any point within the State. I believe that this concept of the law was fully covered in the celebrated case of Geer v. Connecticut, 161 U.S. 519; cf. Ward v. Race Horse, 163 U.S. 504. In the Geer case, the charge was not one of unlawful killing but was the unlawful possession of game birds, for the purpose of transporting them beyond the limits of the State. The part herein pertinent to this problem was stated by the court as follows:

    "We must consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus not overlook the authority of the State over property in game killed within its confines, and the consequent power of the State to follow such property into whatever hands it might pass with the conditions and restriction deemed necessary for the public interest."

    Furthermore, the opinion expressed, in respect to the Migratory Bird Treaty Act on page 6, is not in accord with the last memorandum opinion of the Solicitor of the Department dated February 10, 1942. Some confusion has been caused by the opinion of the Solicitor of June 15, 1934, 54 I.D. 517, that discussed a right of Indians to hunt migratory birds specified in the Act of July 3, 1918. 40 Stat. 755, which was itself based upon the treaty of December 8, 1916, 39 Stat. 1702, between the United States and Great Britain. The opinion held that the Indians' hunting rights were subject to the act, but that the game and fishing laws of the State were not applicable to Indian reservations. On March 13, 1941, the United States District Court, District of Idaho, Eastern Division, in the case of United States v. Cutler, 37 F. Supp. 724, held that the treaty with the Shoshone and Ban neck Tribes of Indians (15 Stat. 673) as applicable to the Indians' reserved right to hunt should be strictly construed in their favor. After this court decision, the Solicitor of the Department, in a memorandum opinion dated February 10, 1942, pointed out that certain statements in the opinion rendered on June 15, 1934, on hunting rights of Swinomish Indians (54 I.D. 517), may appear inconsistent with the foregoing conclusions. The earlier opinion is overruled insofar as it suggests either that the hunting rights on the reservation were not protected for the future by the treaty under consideration, or that, despite any such protection, such rights were plainly abrogated by the Migratory Bird Treaty Act, supra. These positions can no longer be maintained in the light of the court decisions rendered after the 1934 opinion was issued. Chippewa Indians v. United States, 301 U.S. 358 (1937); United States v. Cutler, supra. It is possible that a copy of this 1942 opinion was not furnished the Field Officers at that time. A copy of that opinion is enclosed.

    We agree with the observations contained in the last sentence of the subject memorandum opinion, appearing on page 5, to the effect that before undertaking an exhaustive study of the many treaties and acts of Congress in relation to the Chippewa Indians, we should await the presentation of an actual case involving the questions referred to so that the facts and circumstances may be thoroughly considered and properly dealt with.

PAYMENTS TO PINE RIDGE SIOUX INDIANS FOR
LANDS TAKEN FOR AERIAL GUNNERY RANGE

                                                                                                                                    March 5, 1957.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Payments to Indians under provisions of act of July 24, 1956, 70 Stat. 625

    "That the Secretary of the Interior is authorized and directed to pay the sum of $3,500 to the head of each of the one hundred and twenty-five Indian families determined by the report entitled 'Investigation of the Pine Ridge Aerial Gunnery Range taking for the Committee of Interior and Insular Affairs, United States House of Representatives' submitted by

the Department of the Interior on April 10, 1952, in response to a resolution of the Committee on Public Lands of the House of Representatives, adopted March 4, 1950, to have actually been domiciled on August 1, 1932, on the land belonging to the Pine Ridge Sioux Tribe of Indians, South Dakota, which was taken by the Department of the Army in 1942 for the Pine Ridge aerial gunnery range. The Secretary of the Interior shall make such payment of $3,500 to the heirs or devisees of any such head of a family who is deceased. Payment of such sum shall be in full and complete settlement of all claims of such Indians and their heirs or devisees against the United States for damages suffered as a result of being forced to move from their homes, and being forced to relocate and reestablish themselves elsewhere because such lands were taken for an aerial gunnery range and the distribution of funds under this Act shall not be subject to any lien, except for debts owed to the United States or to Indian organizations indebted to the United States, and shall not be taxable.

    "Sec. 2. There is hereby authorized to be appropriated to carry out the purposes of the first section of this Act the sum of $437,500." (Emphasis added.)

    A study of :the legislative history of the act, supra, indicates that it was the intent of Congress to give a specified sum to the family units which vacated the area taken for the Pine Ridge Aerial Gunnery Range in compensation for the losses, expenses, and inconveniences incident to moving and reestablishing themselves elsewhere. In general it may be said that no more than 125 persons may receive payments under the act. Payments may be made to only those persons who (1) are named in the Report cited, and (2) are found to have been domiciled until August 1, 1942, on land taken for the gunnery range, and (3) who were forced to move from their former homes to other locations as a result of the taking. The committee formed by the Superintendent, as an aid in the proper administration of the act, has certified 82 names as meeting all these requirements. An additional name, that of Pearl Shangreau O'Rourke also appears to have been certified to and is numbered 83 on the certified list prepared by the Superintendent's committee.

    With regard to the specific questions which were submitted by the Area Director, Aberdeen, I construe the act as follows:

    The statute by its language incorporates into its provisions the contents of a Report containing the names of 125 persons who were believed to have been "determined" to meet all the qualifications set forth in the act. We have given the report careful study and find it to be so imbued with ambiguity as to raise doubt about what it might be that the report determines, if the report does determine anything. At no one place in the report are persons clearly designated as the "head of each of the 125 Indian families" entitled to payment. We disagree with the Area Director's interpretation limiting payments to those persons only who are listed in Appendix 15 "List of Families with Data regarding Status in 1942," since this list apparently relates chiefly to livestock operations within the area, giving the number of persons in the various family units, the number of cattle and horses and the quantity and condition of farm machinery owned by the people listed. Appendix 15 provides no information as to the location of their residences, and whether or not they incurred losses by reason of being forced to vacate the area taken for the gunnery range. Names of other persons who seem to meet those requirements can be found elsewhere in the report. Therefore, since it is our opinion that the report does not provide adequate identification of the intended beneficiaries, the aid of an administrative committee is essential to accomplish the purposes outlined by the act, and we believe it is both justifiable and feasible to make the authorized payments on the basis of certified lists submitted by the committee.

    For the purposes authorized by this act, all adults whether married or unmarried, whose names appear in Appendices 15 or 16 may receive the sum specified to be paid, if they meet the other requirements set out above. Payments may be made immediately to 83 persons named in the report whom the committee appointed by the Superintendent of the Pine Ridge Agency has certified as having been domiciled on August 1, 1942, on tribal land which was taken for the Pine Ridge Aerial Gunnery Range. The committee certified the names of Frances and Edith Clifford with the notation that they lived with their father. Apparently, the committee believed that since these two persons owned cattle which had to be moved, they were entitled to the payments made to others. We believe this decision is valid and does not do violence to the law.

    2. Whether payment must be made to those heads of families who were included in the 1952 report who, on further investigation, were found not to have been domiciled within the taking area on August 1, 1942.

    The act directs that a payment of $3,500 be made to the head of each of the 125 families named in

the report cited. This report was the best information available on the date of enactment. However, where the facts prove the report to be in error, additional authorization must be obtained before payments may be made to any person who cannot now be certified as qualifying under the interpretation set forth in this opinion.

UTILIZATION OF LANDS IN THE NAVAJO
INDIAN RESERVATION FOR GLEN CANYON
DAM AND RESERVOIR

64 I.D. 70

M-36395                                                                                                                             March 22, 1957.

Indian Lands: Rights-of-Way--Rights-of-Way Generally

The Act of February 5, 1948 (62 Stat. 17, 25 U.S.C. sec. 323), providing for "rights-of-way for all purposes" over and across Indian lands applies to sites for all features and facilities, including dams, reservoirs, power plants and construction and operating camps, appropriate to water control projects undertaken by the United States.

    Solicitor's opinion M-35093 (March 28, 1949) overruled in part.

Memorandum

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Utilization of lands in the Navajo Indian Reservation for Glen Canyon Dam and Reservoir

    I have been requested by both the Bureaus of Indian Affairs and Reclamation to advise whether, for use in connection with the Glen Canyon Unit of the Colorado River Storage Project, the Secretary of the Interior has the authority administratively to make available lands in the Navajo Indian Reservation for use in connection with the construction, operation and maintenance of Glen Canyon Dam, power plant and reservoir. This would embrace use of the land for dam and reservoir site, construction and operating camp site and associated uses such as borrow pits and other incidental requirements. The Colorado River Storage Project, of which the Glen Canyon Unit is a principal feature, is authorized by the Act of April 11, 1956 (70 Stat. 105).

    The Colorado River Storage Project is a Federal reclamation project and by the express terms of Section 4 of the Act of April 11, 1956, the Secretary, except as otherwise provided in that Act, in constructing, operating and maintaining the units of the Colorado River Storage Project is to be governed by the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 388, and acts amendatory thereof or supplementary thereto). The Glen Canyon Unit is one of the units specifically authorized by Section 1 of the Act of April 11, 1956, to be constructed, operated and maintained as an initial unit of the storage project.

    Section 1 of the Act of February 5, 1948 (62 Stat. 17-18; 25 U.S.C. Sets. 323-328), empowers the Secretary of the Interior to grant "rights-of-way for all purposes" across Indian lands. Section 5 of the Act makes it in terms applicable to rights-of way for the use of the United States. The availability of this Act turns upon the meaning to be accorded the phrase "rights-of-way for all purposes."

    Whatever may be its meaning at common law or in nongovernmental usage, the use of the term "right-of-way" to characterize lands to be occupied as the site of works comprising water control projects is neither novel nor unusual in legislative enactments dealing with authorization to permit the use of lands under the control of the United States, including Indian lands.

    Rev. Stat. 2339 enacted in 1866 recognized "right of-way" over the public lands for "ditches and canals." Rev. Stat. Sec. 2340 enacted in 1870 referred to rights to "ditches and reservoirs" as may have been recognized by Rev. Stat. Sec. 2339. The two sections are codified together as 43 U.S.C. Sec. 661. As it is perhaps unnecessary to add, they constitute the foundation stone of the systems of water law of the Western States. The Supreme Court has held that together these sections granted "right-of-way" over the public lands for "ditches, canals and reservoirs." (Emphasis supplied) Utah Power and Light Co. v. United States, 243 U.S. 389, 405 (1917).

    Section 18 of the Act of March 3, 1891, as amended (43 U.S.C. Sec. 946), dealing with rights-of-way through the public lands and reservations of the United States, including Indian reservations, for purposes of irrigation or drainage refers to "rights-of-way" for, among other purposes, reservoirs.

    The term "right-of-way" is used in the Act of January 21, 1895, as amended (43 U.S.C. Sec. 956), to characterize land to be occupied by reservoirs

although this Act is specifically made inapplicable to Indian reservations. The Act authorizes rights of-way in connection with mining, quarrying, and timbering and for the purpose of furnishing water for domestic, public and other beneficial uses.

    A principal source of Departmental authority in connection with the grant of rights-of-way through public lands and reservations, including Indian reservations, is the Act of February 15, 1901, as amended (43 U.S.C. Sec. 959). This Act authorizes and empowers the Secretary of the Interior to grant rights-of-way for a wide variety of facilities, including, among others, "dams and reservoirs."

    These statutes enumerate various purposes for which, under the conditions therein specified, "rights-of-way" may be granted by the Secretary of the Interior, or is granted upon the filing of requisite documents with the Secretary. Their significance for our purpose lies in the Congressional recognition they evidence that "right-of-way" is an appropriate term of reference to describe land to be occupied by such features of water control development as dams and reservoirs. That they are not all applicable to Indian reservations is, in this connection, quite immaterial.

    Viewing the phrase "rights-of-way for all purposes" in the Act of February 5, 1948, in the context of the foregoing enactments, I have no hesitancy in concluding from the text of the statute itself that by the term the Congress intended to embrace at the very least those purposes it had included in statutes which specifically enumerated purposes for which rights-of-way might be granted. I am fortified in this conclusion by the construction the Supreme Court has placed upon the term "right-of-way" when used in a statute which failed to enumerate the kinds of works for which a right-of-way might be granted. The Act of May 14, 1896, authorized and empowered the Secretary of the Interior "to permit the use of right-of-way *     *     * upon the public lands and national forests of the United States *     *     * for the purposes of generating, manufacturing or distributing electric power." Of this statute the Supreme Court has stated, "That it contained no express mention of ditches, canals and reservoirs is of no significance, for it was similarly silent respecting power houses, transmission lines and subsidiary structures. What was done was to provide for all in a general way without naming my of them." (Emphasis supplied) Utah Power & Light Co. v. United States, supra, at page 406. If a statute referring to right-of-way for power purposes embraces use of land for all works appropriate to power purposes, a fortiori, a statute authorizing rights-of-way "for all purposes" must embrace all land needed for constructing, operating and maintaining a water control project.

    Any doubt that the Act of February 5, 1948, should be construed broadly to embrace all facilities in connection with water control projects is removed by reference to its legislative history. The legislation that resulted in the Act was proposed by this Department as a substitute for a measure that had been introduced dealing with rights-of-way for certain purposes through lands of certain classes of members of the Osage Tribe of Indians. The then Under Secretary of the Department, in identical letters to the Speaker of the House and the President pro tempore of the Senate dated July 22, 1947, proposed the general form of legislation in order to avoid, when considering applications for rights-of-way over Indian lands, the examination of a plethora of statutes to determine which, if any, covered the particular purpose for which a right-of-way was being sought or the particular category of lands which the right-of-way would affect. The Department also adverted to difficulties encountered in obtaining signatures of individual Indian allottees to easement deeds which were required to be executed by the Indian owners and approved by the Secretary of the Interior in cases when a right-of-way affected allotted lands and could not be granted under the then existing statutory authorities. The general legislation was proposed as a means of overcoming these difficulties by prescribing a general blanket authority which could be utilized in all cases. The following quotations from the Department's identical letters of July 22, 1947, are illustrative of the objectives and purposes sought to be achieved by the Act:

    "For the reasons hereinafter stated, I strongly urge enactment of the proposed legislation.

    "It will go a long way to satisfy the need for simplification and uniformity in the administration of Indian law. At the present time the authority of the Secretary of the Interior to grant rights-of-way is contained in many acts of Congress dating as far back as 1875. Thus, each application for a right-of-way over Indian land must be painstakingly scrutinized in order to make certain that the right-of-way sought falls within a category specified in some existing statute, which may limit the type of right-of-way that may be granted, or the character of the land across which it may be granted.

    "For example, the acts of February 15, 1901 (31 Stat. 790), and March 4, 1911 (36 Stat.

1253), which authorize the granting of transmission line rights-of-way, are limited in their application to 'reservations of the United States,' which have been held to include only those individual Indian allotments within the original boundaries of Indian reservations which were not extinguished by cession to the United States. These acts are also inapplicable to individual Indian allotments on the public domain. There would seem to be no persuasive reasons for maintaining such artificial distinctions."

*     *     *     *     *

    "The proposed legislation would vest in the Secretary of the Interior authority to grant rights-of-way of any nature over the Indian lands described in the bill. The bill preserves the powers of those Indian tribes organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984); the act of May 1, 1936 (49 Stat. 1250), extending certain provisions of that act to Alaska; and the Oklahoma Welfare Act of June 26, 1936 (49 Stat. 1967), with reference to the disposition of tribal land. *     *     *

    "In order to avoid any possible confusion which may arise, particularly in the period of transition from the old system to the new, provision has also been made in section 4 of the bill to preserve the existing statutory authority relating to rights-of-way over Indian lands."

    It will be obvious from the above that it was the intendment of the 1948 act to draw together all of the authorities theretofore existing; not to restrict purposes theretofore recognized but to embrace them all and to clarify by eliminating inconsistencies and artificial distinctions and limitations. And there can be no doubt, because of the express provisions of Section 5, that it was intended to make the United States itself expressly eligible for grants of rights-of-way for any and all purposes theretofore embodied by specific right-of-way acts applicable to Indian lands. Now to read the term "right-of-way" as being inapplicable to such purposes as dams, reservoirs, construction and operating camps and appurtenances required in connection with Federal water control projects would be neither to simplify nor to unify the administration of Indian law. Rather than permitting simplification and uniformity it would continue the general confusion and complexity concerning which the Department had complained.

    In recommending passage of the legislation, the Senate Committee on Public Lands referred to the Department's letter in explanation of the purposes of the proposed legislation, and the Committee stated that, "It is the judgment of your Committee that there is a real need for additional legislation relating to rights-of-way on Indian lands of all reservations." (Sen. Report No. 823, 80th Congress, 2nd Sess., page 2.) There is no House report on the broader form of that legislation since the House had adopted the original version of the legislation dealing only with Osage lands prior to the receipt of the Department's recommendations for broadening the scope of the bill. Following adoption of the broader form of legislation by the Senate, the House concurred in the Senate version and the measure thus became law. No comment was made concerning the legislation on the floor of either House of Congress. See 94 Cong. Rec. 500, Jan. 26, 1948, ibid, 588, Jan. 27, 1948.

    But notwithstanding the foregoing, it might be argued that the meaning of the term right-of-way as used in the Act of February 5, 1948, is clear and that there is therefore no occasion to resort to extrinsic legislative aids to determine its meaning.

    There are two answers. In the first place the term right-of-way as used in statutes dealing with authority to occupy publicly owned lands is not necessarily limited to a right of passage or to the land occupied therefore. A by no means exhaustive search of the statutes of the 17 Western States reveals express references in the statutes of 10 of these states to "rights-of-way" for, among other purposes, reservoirs.¹ Consequently it cannot be said that even on its face the phrase, coupled with the phrase "for all purposes," is so limited in meaning as to preclude examination of earlier statutes and legislative history to determine the intent of the Congress.

    Secondly, no so-called rule or canon of statutory construction is subject to greater caution in application than the oft-heard statement that where the literal meaning of words in a statute is clear, resort to extrinsic aids to assist in interpretation will not be made. The cases in which the courts have refused to apply this precept are legion. As Judge Learned Hand has so aptly stated, "There is no surer way to misread any document than to

    ¹ Colo. Rev. Stats., 1953, Chap. 112--3--37; Idaho Code Sec. 58-601; Sec. 81-804, Repl. Vol. 5, Rev. Code Mont., 1947; Sec. 8047, Nev. Compiled Laws, Suppl. 1931-1941; Sec. 75--23--20 New Mexico Stats., 1953; Sec 61-0119, No. Dak. Rev. Code 1943; Title 82, Sec. 2, Okla. Stats., Anno.; Sec. 541.240 Ore. Rev. Stats., 1953; Sec. 61.0147 So. Dak. Code 1939; Sec. 73--7--11 Utah Code Anno. 1953. Most of these statutes confer a "right-of-way" over lands of the State for such purposes among others as reservoirs and dams.

read it literally . . ." Guiseppi v. Walling, 144 Fed. 2d. 608, 624 (concurring opinion).

    The principle is not looked upon with favor by the Supreme Court. In Employees v. Westinghouse Corp., 348 U.S. 437 (1955) Mr. Justice Frankfurter, announcing the judgment of the Court in an opinion in which Mr. Justice Burton and Mr. Justice Minton concurred, stated (at page 444):

    "And considering that the construction we have found seems plain, the so-called 'plain meaning rule,' on which construction is from time to time rested also in this Court, likewise makes further inquiry needless and indeed improper. But that rule has not dominated our decisions. The contrary doctrine has prevailed. See Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48; United States v. Dickenson, 3 10 U.S. 554, 561. And so we proceed to an examination of the legislative history to see whether that raises such doubts that the search for meaning should not be limited to the statute itself."

    In Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952), the Court reminds that, "literalness is no sure touchstone of legislative purpose."

    In Farmers Irrigation Co. v. McComb, 337 U.S. 755 (1949), the Court states (p. 764), "But we do not 'make a fortress out of the dictionary.' And we have, therefore, consistently refused to pervert the process of interpretation by mechanically applying definitions in unintended contexts."

The view of the Supreme Court on the frailties of the "literal meaning" rule is cogently set forth in U.S. v. Dickerson, 310 U.S. 554 (1940). There the Court states (at pages 561, 562):

    "The respondent contends that the words of § 402 are plain and unambiguous and that other aids to construction may not be utilized. *     *     * The very legislative materials which respondent would exclude refute his assumption. It would be anomalous to close our minds to persuasive evidence of intention on the ground that reasonable men could not differ as to the meaning of the words. Legislative materials may be without probative value, or contradictory, or ambiguous, it is true, and in such cases will not be permitted to control the customary meaning of words or overcome rules of syntax or construction found by experience to be workable; they can scarcely be deemed to be incompetent or irrelevant. See Boston Sand & Gravel Co. v. United States, supra, at 48. The meaning to be ascribed to an Act of Congress can only be derived from a considered weighing of every relevant aid to construction. *     *     * "

    Perhaps the clearest statement that the so-called "literal meaning" rule is not inflexible is to be found in the oft-cited opinion of Mr. Justice Holmes, speaking for the Court in Boston Sand & Gravel Co. v. United States, 278 U.S. 4 1 (1928):

    "It is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists. If Congress has been accustomed to use a certain phrase with a more limited meaning than might be attributed to it by common practice, it would be arbitrary to refuse to consider that fact when we come to interpret a statute." (278 U.S. 41 at page 48)

    The foregoing, particularly the last two quotations, effectively dispose of any contention that consideration of earlier statutes and of the legislative history of the Act itself is inappropriate in construing the Act of February 5, 1948.

    I am mindful that one of my predecessors has expressed the opinion that the Act of February 5, 1948, is inapplicable to reservoir sites. Opinion M-35093, March 28, 1949. The subject received only the most casual discussion in that opinion, however, and it is quite apparent from the text thereof that consideration had not been given either to the statutory pattern antecedent to the Act of February 5, 1948, or to the objectives sought to be achieved by that Act. In any event, my views being as above indicated, the conclusion reached in Opinion M-35093 as to reservoir sites is overruled.

    In view of the foregoing, I conclude that pursuant to the Act of February 5, 1948, the necessary lands of the Navajo Reservation may be made available for use in connection with the construction, operation and maintenance of Glen Canyon Dam and Reservoir and associated facilities to whatever extent and subject to whatever conditions the Secretary of the Interior may determine. This being my conclusion, it is unnecessary to consider whether the required lands may be made available to the United States under the Act of February 15, 1901, supra, or Section 13 of the Act of June 25, 1910 (43 U.S.C. 148).

INDIAN FUGITIVE FROM STATE PRISON--
CAPTURED ON INDIAN RESERVATION--
STATE JURISDICTION

                                                                                                                                        March 27, 1957.

Robert S. Lowe, Esq.
County and Prosecuting Attorney
Carbon County, Wyoming
P.O. Box 875
Rawlins, Wyoming

DEAR MR. LOWE:

    I have your letter of March 15 regarding the case of State v. Sitting Eagle. As I understand the matter, you are prosecuting an Arapaho Indian, although you state there is a possibility he may be a Shoshone, on a charge of escape from the Wyoming State Penitentiary. He was sentenced to that penitentiary by the 7th Judicial District Court in and for Fremont County, for stealing an automobile from within the city limits of the city of Riverton. You state that the defendant's attorney has demurred to your prosecution for escape from the penitentiary for the reason that the defendant had not been properly convicted and sentenced under the Indian treaties and laws of the United States.

    In the course of his argument, the defendant's attorney appears to have alleged several matters of law upon which apparently both the judge and you desire the views of this Department.

    The defense makes the contention the Indians reserve to themselves the right of prosecuting all criminal violations on the Wind River Reservation and that the same has not been surrendered by the Indians to the United States or to any of the States. The contention that Congress cannot make Indians subject to the criminal laws of the United States without their consent was effectively disposed of in the case of United States v. Kagama, 118 U.S. 375. The defense attorney's reference to a Congressional grant of authority to the States of jurisdiction "over Indians on Indian soil for ten certain enumerated felonies" is perhaps a reference to Title 18 U.S.C., section 1162. As far as I am aware, there have been no decisions on the constitutionality of this legislation.

    In 1954, this Department took the position with respect to one of the ten major crimes committed on fee-patented land within the townsite of Fort Yates, North Dakota, that the townsite is Indian country within the meaning of 18 U.S.C., section 1151, and accordingly, that if one or more of the ten major crimes is committed in this townsite, the United States has jurisdiction as provided in 18 U.S.C., 1153.

    As regards treaties between the United States and the Shoshone and Arapaho Indians, we are informally advised by the Bureau of Indian Affairs they are unable to identify any treaty by which the Indians of the Wind River Reservation reserve criminal jurisdiction to themselves. Treaties to which the Shoshone Indians are parties may be found in the United States Statutes at Large as follows: 13 Stat. 663, 681; 15 Stat. 673; 18 Stat. 685, 689. Treaties with the Arapahoes are located in the Statutes at Large as follows: 12 Stat. 1163; 14 Stat. 703, 713; 15 Stat. 593, 635, 655. One treaty with the Arapaho is simply noted at 11 Stat. 749. The complete text is set forth on page 594 of volume 2, 2d edition, Indian Affairs Laws and Treaties, by Charles J. Kappler (Government Printing Office, 1904). This particular treaty involves the Sioux, Cheyennes, Arapahoes, Crows, Assinaboines, Gros-Ventre, Mandans, and Arrickaras. There appears to be no provision in the treaty concerning the retention or abandonment of criminal jurisdiction by the tribes concerned. Because of the availability of these treaties in the Statutes at Large, except for the one just mentioned, I have not requested authenticated copies of them from the Department of State. If authenticated copies are found to be necessary they can, of course, be obtained from the State Department.

    It is hoped that the foregoing may be of some assistance in considering the matter before you.

                                                                                                                        EDMUND T. FRITZ ,
                                                                                                                                        Acting Solicitor.

PROPOSED CANCELLATION OF INDEBTEDNESS
TO THE UNITED STATES

M-36409                                                                                                                         March 27, 1957.

Uncollectible obligations owed to the United States by Associations of Alaskan Natives organized and exercising the functions of government under a Constitution approved pursuant to the acts of June 18, 1934, 48 Stat. 984 and May 1, 1936, 49 Stat. 1250, may be canceled under authority provided in the Leavitt Act, 47 Stat. 564, 25 U.S.C. 386a, but similar obligations of Indian Livestock Associations organized under the Oklahoma Welfare Act, 49 Stat. 1967, 25 U.S.C. 504, cannot be included in cancellation orders provided for in the Leavitt Act, supra.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Proposed cancellation of indebtedness to the United States

    In a memorandum of November 30, 1956, you requested the opinion of this office on the following questions relating specifically to the Hoonah Indian Association, Hoonah, Alaska, and the Kenwood Indian Cooperative Livestock Association, Oklahoma:

    1. Whether the uncollectible portion of the in debtedness of an Indian Association may properly be included in a cancellation order to clear the accounting records.

    Under the Leavitt Act, 47 Stat. 564, 25 U.S.C., sec. 386a, reimbursable charges existing as debts may be adjusted or canceled by the Secretary of the Interior if the loan or charge was made from gratuity funds of the United States, and the debtor is either (I) an individual Indian or (2) a tribe of Indians. The Comptroller General has held that in giving the ordinary meaning to the words "reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians" the act of July 1, 1932, supra, does not authorize the Secretary of the Interior to adjust or eliminate reimbursable charges originating in tribal funds appropriated by the Congress for the purpose of making loans (20 Comp. Gen. 387). The loans to the Hoonah and Kenwood Indian Associations were made from gratuity funds of the United States and not from tribal funds or funds held in trust for Indian organizations. This being the case, it may then be determined whether or not the debtors are a tribe or are individually and personally liable for the repayment of the loan.

    The records of the Hoonah Village, Indian Bureau File No. 46321-1937-068, indicate that Hoonah Indians are known to have resided as a unit at the site of the present village for many years prior to 1890 and have continuously exercised the functions of local government. It appears that prior to acquiring an approved constitution under the act of June 18, 1934, 48 Stat. 984, and May 1, 1936, 49 Stat. 1250, Hoonah had a voluntary government consisting of a Mayor and a city council of 12 members. But it has been contended that the Indians of Hoonah Village may not be recognized as a tribe without distinguishing or setting aside Solicitor's Opinion of May 25, 1940, which contains the following language:

    "*     *     * At the time the basic regulations and policies to govern organization in Alaska were formulated a thorough review of the type of organization suitable was undertaken and the question was the subject of numerous memoranda and conferences. It was established that the villages in Alaska were the natural form of Indian organization and that no tribal organizations existed as they are known in the United States. It was found that the word 'tribe' was used in Alaska to denote ethnic or language groups and did not signify 'domestic dependent nations' as the tribes were recognized to be in the United States. For example, in the report of February 5, 1937, of a series of conferences held with a large number of departmental officials, it was stated that 'It was shown that tribal government as such did not exist among the Indians of Alaska.' Legal analysis made at that time of the status of Alaskan tribes accorded with that factual statement. *     *     *"

    The fact that the Hoonah Indians cannot be called an historical tribe is, I believe, not controlling here. Since 1939, when the Secretary approved and the group ratified its Constitution and Charter of Incorporation, the Indians of the Hoonah Association have been constituted as a statutory tribe. It is my opinion that the uncollectible portion of the debt of the Hoonah Indian Association may be included in the cancellation order.

    The second case relates to the Kenwood Livestock Association which is neither a statutory nor an historical tribe. We have been asked if the debts of the Kenwood Livestock Association may be canceled by the Secretary under authority provided

in the Leavitt Act since loans to the Kenwood Association have somewhat the same purpose and character as those made to the Hoonah Indians. Although the legislative history of the Leavitt Act contains some reference to cancellation of indebtedness incurred by reason of ventures in livestock production,¹ it does not appear that the Congress contemplated granting relief to associations of Indians whose members were not individually liable.

    The general rule of law is that an association having a corporate charter is regarded as a corporation and the liability of its members is governed by the corporate charter. 13 Am. Jur. 594. There is nothing in the records to support a contention that the members of the Kenwood Live stock Association were to be individually liable for the debts of the Association. In fact, in the proceedings at meeting held on October 21, 1942, at the Community house, on the Kenwood Project, in Delaware County, Oklahoma, to organize a cattle cooperative association, elect officers and consider loan application, Mr. Wattson, Extension Supervisor for Oklahoma-Kansas Area explained:

    "*     *     * Some of you could probably get loans to buy cattle, but just the cattle would not be sufficient, you would still have to have other things in order to conduct a livestock program successfully. For that reason it was decided that the best way to make use of the grazing land was to form an organization, a livestock association. That association could then borrow the money to purchase the necessary cattle, and the other money .to conduct the operations, and any profits of the cattle program could be divided among the members. One advantage of that plan, and we will repeat it often from time to time, is that if the organization is formed, and borrows the money from the Government, no one member of that organization is responsible for the debt. The association borrows the money and no one person is liable. If something should happen that a loss was sustained and all of the money could not be paid back the Government would not expect any one person to be responsible for the indebtedness. *     *     * The Government is in favor of making a loan sufficiently large to start a cattle program here. But the Indian Office at Washington has informed us that they will not consider an application for a loan until an organization is formed to make application for a loan. *     *     * Under an Act of Congress that we call the Thomas-Rogers Act, any group of 10 or more Indian families may go together and form the organization necessary to ask for the money. *     *     *"

    On February 19, 1943, the Association was granted a certificate of incorporation "under the terms of the act of June 26, 1936, 49 Stat. 1967; 25 U.S.C. 504, with all rights, powers, privileges and immunities" incident thereto. The loan agreement dated April 2, 1943, between the Kenwood Indian Cooperative Association and the United States recites:

    "*     *     * That all security given to the United States for loans from the Revolving Fund for Loans to Indians and Indian Chartered Corporations shall be security for the return of cattle as set forth *     *     * above. Likewise, any interest or equity the Association shall acquire in cattle purchased *     *     * under this agreement shall be security for any loans which the Association receives from the Revolving Fund for loans to Indians and Indian Chartered Corporations."

    Therefore, employing the precept of reasonable interpretation, the Leavitt Act, supra, cannot be construed as providing for the inclusion of the Kenwood Association indebtedness in a cancellation order prepared under the authority given in that act.

    2. If the debt cannot be eliminated from the accounting records is it necessary to continue to accrue interest each year on the uncollectible loan?

    Reimbursable loans from gratuity funds may be made under such rules and regulations as the Secretary may prescribe. See 2.5 U.S.C. 470, 482, 506. However, since the regulations contained in 25 CFR 21 and 23 do not provide for the termination of interest charges on loans determined by the Secretary of the Interior or his authorized representative to be uncollectible but which cannot be canceled, the interest charges should be continued until that section of the regulation is amended to provide for the waiver of interest on uncollectible indebtedness.

                                                                                                                        EDMUND T. FRITZ ,
                                                                                                                                        Deputy Solicitor.

GRAZING PRIVILEGES--
TRIBAL POWER TO TAX

                                                                                                                                            April 11, 1957.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Proposed letter to President of the Rose bud Sioux Tribal Council re grazing privileges

    The proposed letter states as a reason for the rescission of Resolution No. 5707 that, "it is not the policy of the Department to make payment of the tax a requirement to obtain permits or leases on allotted lands." In my opinion, such reason is neither justifiable nor practical as applied here. In the first place, Resolution 5707 does not make the payment of the tribal tax a condition to the granting of a permit, but rather makes the failure to pay the taxes due a cause for cancellation of a permit already granted.

    We note the Bureau's announced policy against the use of Bureau personnel as collectors of the tax, with consequent burdens of receipting there for, accounting and the like. But the resolution now under consideration would not violate that policy because it provides for the payment of all tribal taxes to the tribal Treasurer or his authorized representative.

    The proposed letter further states in justification of rescission that it has been determined by the Department in a similar instance involving a tax levied on the Pine Ridge Reservation that collection of the tax was the full responsibility of the tribe. This determination was embodied in a press release, dated August 12, 1953, which stated:

    "On the question of the tribal tax, the Department has held that collection of this tax is a responsibility of the Tribe rather than the Bureau and that it should not be included in the stipulations attached to the permits. The Bureau has been instructed to eliminate this requirement from the stipulations."

One argument which was urged in support of this directive was that prospective bidders tend to discount the amount of a tribal tax when bidding on allotted lands and as a result the Indian Bureau was not able to obtain for the allottee the highest possible return. Another reason appears to have been the fact that for some time the question of tribal power to tax was in litigation. It has now been judicially determined that the tribe has the right to collect taxes from nonmembers doing business on the reservation. Iron Crow v. Oglala Sioux Tribe, 23 1 F. 2d 89 (8th Cir. 1956). Further, it has been held that the tribe has capacity to sue in the Federal District Court for the collection of taxes which the tribe has validly imposed on nonmembers leasing tribal land. Oglala Sioux Tribe v. Barta, D.C., 146 F. Supp. 917. The principles of these cases apply with equal force to the actions of the Rosebud Sioux Tribal Council here in question.

    The Area Director has suggested that, if the resolution under consideration is not rescinded, some notice of the tribal tax should be included in the advertisement of grazing privileges for the information of prospective bidders. This action would be in harmony with prior practices on the Navajo and Cherokee Reservations with respect to tribal taxation of licensed traders.

    Resolution No. 5707 is, in my opinion, acceptable in form, having been passed in regular manner by a majority of the Rosebud Sioux Tribal Council as certified to by the President and the Acting Secretary of the Council. Without some assistance to the tribe in collection of their tax such as that provided in this resolution, the tribe's admitted right to tax would be seriously restricted, if not practically nullified, and the tribe would be left no remedy but litigation in the event of delinquencies.

DISTRIBUTION OF ESTATE OF FULL-BLOOD
CHEROKEE

                                                                                                                                        June 7, 1957.

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Distribution of the Estate of Buster Chisholm, deceased full-blood Cherokee enrollee No. 16300

    The County Court of Okfuskee County, Oklahoma, entered its final decree in this case on March 11, 1957. The estate is valued at some $90,000, all of which was inherited by the decedent from his prior deceased wife, Martha Jackson Chisholm, a full-blood Creek Indian whose estate was the subject of the Solicitor's opinion M-36426, approved by the Secretary on January 4, 1957.

    The final decree determines the decedent's father, William Chisholm, to be the sole heir entitled to the entire estate. The decree also allows fees to the administrator and his attorney, Mr. Clem H. Stephenson, of approximately $52,000.

    The decree orders distribution to the guardian of the heir, William Chisholm, on the theory that the heir is not a restricted Indian of the Five Civilized Tribes but is an absentee Shawnee Indian whose inheritance is unrestricted. The Muskogee Area office has submitted certain documents and factual information which raised the question whether the heir, William Chisholm, is a restricted Indian of the Five Civilized Tribes whose inheritance is restricted by Federal Law and, therefore, subject to supervision by the Department. If William Chisholm is restricted his inheritance would remain under the supervision of the Department and would not be distributed to his guardian because of an apparently fatal jurisdictional deficiency in the guardianship proceedings. Also, if the property is restricted, the fees of the administrator and his attorney would be subject to consideration and allowance in reasonable amount by the Area office rather than in the amounts fixed by the Court, it being well settled that the Court is without jurisdiction to administer on restricted estates of deceased Indians of the Five Civilized Tribes.

    The question presented is a legal one. Section 2 of the act of August 4, 1947, 61 Stat. 732 provides:

    "In determining the quantum of Indian blood of any Indian heir or devisee, the final rolls of the Five Civilized Tribes as to such heir or devisee, if enrolled, shall be conclusive of his or her quantum of Indian blood. If unenrolled, his or her degree of Indian blood shall be computed from the nearest enrolled paternal or maternal lineal ancestors of Indian blood enrolled on the final rolls of the Five Civilized Tribes."

The information submitted by the Area office indicates that the heir, William Chisholm, was enrolled and allotted as a half-blood Creek Indian but his name was taken from the rolls and the allotment deeds to him were canceled by authority of Departmental letter of August 3, 1904, because it was discovered that he had been previously allotted as an absentee Shawnee Indian. The in formation from the Area office also discloses that the heir's paternal aunt, Jennie Harper, is enrolled as a full-blood Creek Indian.

    Neither this office nor the Courts, to the best of our knowledge, has ruled specifically heretofore on the legal questions presented. We have requested our Regional Solicitor in Tulsa to submit his views in the premises. After the Regional Solicitor's views are received we will be able to rule on the matter, probably disposing of the case within two weeks' time. It appears to us at this moment that the disposition of this case could not be expedited by oral argument, and that no useful purpose could be achieved by such oral argument.

                                                                                                                        EDMUND T. FRITZ ,
                                                                                                                                        Deputy Solicitor.

STATUTORY RAPE--CRIMINAL
JURISDICTION OVER NATIVE
VILLAGE OF TYONEK

                                                                                                                                            June 24, 1957.

SIR:

    Mr. Marvin Helter of your Department has informally requested that we furnish you our views regarding the court's conclusion that certain offenses occurred in Indian country in its opinion entered May 15, 1957. In the Matter of the Petition of Emil McCord for a Writ of Habeas Corpus No. A-13,363, and In the Matter of the Petition of Andrew Nickanorka for a Writ of Habeas Corpus No. A-13,364, in the District Court for the District of Alaska, Third Division.

    Both pet