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taken the just compensation which the Constitution guarantees to the owner includes not only the value of the part taken but also the damages accruing to the residue from the improvements. United States v. Grissard (219 U. S. 180); Mohler v. University of Nebraska (165 N.W. 954). The actual damage resulting from the invasion of the owner's rights of property is the measure of damages. Selma Railroad Company v. Camp (45 Ga. 180). In other word, the owner is entitled to recover the difference between the market value of the entire tract before the taking and the market value of what is left after the taking. McDougal v. Southern Pacific Railroad Co. (120 Pac. 766). It is to be observed that the damages sustained by the owner are the unit although composed of integral parts; namely, the value of the land taken and the injury to the remaining portion.

    In actual practice the determination of damages for the taking of land for canal right of way should be reduced to an acreage basis. The appraisers will usually determine the market value of the land and and then determine the damages to the remaining acreage. Damage to the remaining acreage may not be computed on an acreage basis. The elements which make up the market value of the land must all be considered. In the instant case the type of soil, cultivation, fertility, water rights, topography, nearness to market, and many other elements must be taken into consideration by the appraisers. If water for irrigation is to be delivered free of operation and maintenance charge the land is more valuable than other similar land where an annual operation and maintenance charge must be paid by the owner to obtain water. If the lands are exempt from taxation, that should be considered and will certainly enhance the value of the land. If the appraisal made does not include these elements it should be disapproved and instructions given to the appraisers to reconsider the whole matter and make a new or an amended report to you.

                                                                                                                                              NATHAN R. MARGOLD,

                        *                                *                                *                                *                                *

    At the last meeting of the Navajo Council, the Indians raised the question of their rights with regard to a timber contract, the details of which are set forth in this memorandum. They expressed impatience with the Purchaser's delays and a desire
to cancel the contract and conduct their own timber operations. Final decision was deferred until you could obtain the advice of the Solicitor of the Department. The following memorandum analyzes the legal questions involved. It is necessarily informal since it is offered in response to an informal request and especially since any final decision as to the course to be pursued depends upon an examination of the facts relative to the possible future market price of timber, facts which are not presently available to this office.

    The history of this contract that is pertinent to this opinion is as follows: The McGaffey Company, a New Mexico corporation of Albuquerque, New Mexico, entered into a contract with the Superintendent of the Southern Navajo Indian Agency, acting in behalf of the Navajo Tribe, the contract providing for the sale of specified timber in the Defiance Plateau Unit estimated to be 500,000,000 feet of western yellow pine. This contract, made October 22, 1928, and approved December 15, 1928, was assigned by the McGaffey Company to the Lutcher & Moore Lumber Company, a Texas corporation of Orange, Texas, on August 9, 1929, and the assignment was approved August 20, 1929. The Lutcher & Moore Lumber Company will hereinafter be referred to as the Purchaser.

    Under the contract the Purchaser agreed to deposit $20,000 with the Commissioner of Indian Affairs to cover the stumpage value of timber cut and to make additional deposits when necessitated by increased stumpage values. This deposit of $20,000 was made. The Purchaser further agreed to cut and remove all timber covered by the contract prior to March 31, 1950, and to pay for the timber cut on a basic price of $3 per thousand feet. The purchaser further agreed to cut and remove, unless relieved by the Commissioner of Indian Affairs, at least 25,000,000 feet prior to March 31, 1932, and not less than 25,000,000 feet each 12 months thereafter until the contract was completed.

    By a supplement agreement executed on May 8, 1931, and approved May 27, 1931, the Commissioner of Indian Affairs extended the time for removal of the first 25,000,000 feet of timber from March 31, 1932 to March 31, 1933, upon certain conditions to which the Purchaser agreed. One of these conditions was that the Purchaser should pay to the Superintendent of the Southern Navajo Indian Agency $62,500 in (three installments, namely $12,500 prior to March 31, 1931; $25,000 on or before March 31, 1932; and $25,000 on or before March 31, 1933. The first installment was paid on March 30, 1931.

    By the Commissioner's letter of February 18, 1932, approved February 20, 1932, the $25,000 in-
 

stallment payable on or before March 31, 1932, was waived, with express exclusion from the waiver of the supplemental agreement requirement that a $25,000 installment be paid on or before March 31, 1933. By the same letter there was waived the requirement of a minimum cut of 25,000,000 feet annually, "to the extent of requiring an annual cut of only 10,000,000 feet during the five years beginning April 1, 1932."

    By the letter of May 23, 1933, approved May 25, 1933, the Commissioner stated to the Purchaser:

    "As you have been unable to cut any of the 10,000,000 feet which was required to be cut during the year ending March 31, 1933, you are hereby relieved of such requirement with the understanding that you will cut the necessary 50,000,000 feet prior to April 1, 1937. In view of the existing economic conditions you will also be relieved from making the payment of, $25,000 due on or before March 31, 1933."

    "The department regards with favor the proposal to revoke the waiver extending time for your timber operations STOP It is very likely that such action will be taken immediately STOP This information is forwarded so that you may act accordingly."

    The Purchaser has done no cutting on the sale area. The Purchaser has taken no action in performance of the contract; has done little besides seek extensions of time limitations and reductions of cutting requirements.

    On April 1, 1933, the Purchaser had breached the working contract as then existing. It had failed to pay the $25,000 installment required, by the supplemental agreement, to be paid on or before March 31, 1933. (This requirement was expressly excluded from the waiver of February 18, 1932.) On April 1, 1933, the Purchaser had also failed to do any of the 10,000 feet of cutting that was required by stipulation in the waiver of February 18, 1932. At this point, certainly, the Purchaser had breached the contract.

    Although the letter of May 23, 1933, purported to waive the breaches set out in the preceding paragraph, that letter had no such legal effect. The purported waiver amounted to a modification of the terms of the contract, and so was within the purview of the act of Congress of March 4, 1933 (Public No. 435, 72d Congress), which act requires consent of the Indians involved for such a modification. This conclusion is supported by Solicitor's Opinion of August 8, 1933 (M. 27499). The breach of contract as of April 1, 1933, was, therefore, unaffected by the letter of May 23, 1933; the contract should be considered to have been breached on April 1, 1933.

    Assuming, however, for the purpose of complete analysis, that the purported waiver of May 23, 1933, was not within the purview of the act of March 4, 1933, and was, therefore, legally effective when granted, it was revoked by the Commissioner's letter of August 30, 1933. The relief granted in the May 23 letter was not the result of the exercise of any option for an extension that the plaintiff held under the contract; it was not granted for any consideration flowing from the plaintiff. Plaintiff has not taken any action in reliance upon it, has not altered his position so as to be injured by its revocation, and so can not claim any equitable estoppel in its favor. The situation on August 30 was, therefore, such that the Commissioner could properly revoke the relief granted on May 23.

    In many court decisions there is general language to the effect that a waiver of a breach of contract, once made, can not be revoked. Examination of these many decisions, however, reveals that in each of them the party favored by the waiver had acted in reliance upon it, had continued performance of the contract, so as to build an estoppel against revocation. That the Purchaser would have to act in reliance on the waiver before he could rely upon it is indicated in the case of Watkins v. Neff (1927; 288 Pa. 314, 136 Atl. 221), in which the court held that where a default is waived the one in default may tender performance and enforce the contract obligations; but that if he fails to tender performance or to perform he can not rely upon the waiver. Section 297 of the Restatement of the Law of Contracts states the rule applicable here, as follows:
 
 

    "Such a waiver, unless it is a binding promise within the rules for the formation of contracts, can be retracted at any time before the other party, has materially changed his position in reliance thereon, but not afterwards."

    "A contracts to buy and B contracts to sell goods to be delivered by September 1. The goods are not delivered by that day. On September 2 A writes B that he will accept the goods if delivered by September 15. On September 8 A writes B that he has changed his mind and will not accept the goods. A is bound to take the goods on September 15 if B materially changes his position after receiving the letter of September 2, and before receiving that of September 8. Otherwise A is not bound to take them."

  Berry v. Marion County (1924; 121 S.E. 79) is in point. The South Carolina Supreme Court affirmed judgment for the plaintiff in this case, which was an action to declare a certain timber contract forfeited and for an injunction against the purchaser restraining him from exercising any rights under the contract and for damages. The contract there involved set no time limit for commencing the cutting, but did set a time limit for finishing it. The court held that although there was no specified time for commencing cutting operations the Purchaser had to commence within a reasonable time, and that its failure to do so resulted in forfeiture of the Purchaser's rights and a reversion to the landowner.

    The Defiance Plateau Unit contract presents a strong case for application of the same rule. The General Timber Sale Regulations governed the negotiations leading to the formation of the contract and became a part of the contract itself. Regulation No. 47 provides:

  "Indian labor will be employed by the purchaser at the same wages as other labor and in preference to other labor not already in his employ whenever the Indian labor seeks employment and is competent."

    "We realize that the underlying thought in the sale of the Defiance Timber Unit was to give the Navajo Indians an equal chance in employment and with the stumpage accruing to their benefit. The Department will recall that at one time in our discussion permission was asked to double the maximum capacity when and if the market justified and we were advised that the Navajo Indians would be better off if employed and returns were extended over a long period of time. The plan outlined above provides just that."

purchaser has yet done no cutting. Certainly, there are good grounds for holding the Purchaser to be in default for failing to commence cutting operations within a reasonable time.

    The fact that the time when cutting was required to be done was financially inopportune or even most difficult is no legal excuse for the purchaser's failure. The Arkansas court, in 1916, said:

    "Inconvenience or the cost of compliance with the contract or other like thing can not excuse a party from the performance of an absolute and unqualified undertaking to do that which is possible and lawful." Polzin v. Beene (1916; 126 Ark. 46, 189 S.W. 654, 655).

    "The fact that the lumber market was ad verse to profitable operation did not justify the defendant's cessation of operation. Hawthorne v. Quinn, 42 Oreg. 1, 69 Pac. 817; Newton v. Warren, etc. Co., 116 Ark. 393, 173 S. W. 819."

  Rights and liabilities of the parties to the timber sale contract upon Purchaser's breach thereof.

    General Timber Sale Regulation No. 6 provides:

  "Titleto the forest products covered by any contract will not pass to the purchaser until such products are paid for."

    Regulation No. 52 provides in part:

    "Persistent failure to comply with any one of the requirements of the contract or regulations after written notice addressed to the purchaser by the superintendent or the officer in charge will be ground for revocation by the officer approving the contract of all rights of the purchaser under this and other contracts."

    The Superintendent of the Southern Navajo Indian Agency, acting for and in behalf of the Indians, may retain all moneys paid by the Purchaser. Regulation No. 52 provides, in case of breach and formal revocation of the Purchaser's rights, that there is ground for forfeiture "of all moneys paid." Case law bolsters this forfeiture provision. In Hodges v. George D. Mickle Lumber Co. (1928-Oregon, 264 Pac. 850, 852), the court held:

    "The purchaser of standing timber for a cash consideration, under an agreement to remove it within a specified time, can not recover, or receive credit for, money paid, upon his title to the timber being defeated by his failure to remove the timber within the time specified therefor in the contract of purchase."

    In McNair and Wade Land Co. v. Parker (1912; 64 Fla. 371, 59 So. 959), an equity action to obtain a forfeiture for non-uses and abandonment, the court held that "no equitable reason seems to demand a return of the purchase money."

      Damages to which vendor is entitled because of the breach.

    Regulation No. 52 provides that upon breach of the contract "the purchaser will be liable for all
 

damage resulting from his breach of contract." Regulation No. 56 provides that upon the contract being declared forfeited, the Purchaser and his bondsmen shall be "liable for the depreciation in the value of the remaining timber on an estimate of value and quantity to be made under the direction of the officer approving this contract." The damages referred to in Regulation No. 52 should be determined by the customary rules of damages. Regulation No. 56 should affect the determination of damages to the extent of making the estimates, provided for therein, if not arbitrarily arrived at, conclusive evidence of value and quantity. To avoid arbitrariness these estimates would have to be predicted on due consideration of all factors relevant to determination of value.

    The general rule of damages in a case of breach of contract is the award of damages sufficient to place the injured party in the same position he would have enjoyed had the contract been performed. The Arizona court in McFaddenv. Shanley (1914; 16 Ariz. 91, 141 Pac. 732, 733), upon reference to leading cases and to the leading treatises on damages, stated:

    "The contract having been broken, the person injured by the breach ought to be placed, so far as money can do it, in the same position as he would have been in if the contract had been filled."

    Unquestioned as it is, upon reference to the governing regulations and to the general rules of damages, that the vendor is entitled to damages compensating the injury it has sustained, question does arise in determining the proper measure of those damages. In this Defiance Plateau Unit case the breached contract requires cutting and payment of stumpage values at the contract price not only previous to the date of the breach, but subsequent to that date as well. Had the time for performance expired by the date of the breach, the measure of damages would be the difference between the contract price of the timber and its market value at the date of breach. Pope v. Barnett (1932; 163 S. E. 517-Ga.); Furrow v. Bair (1919; 84 W. Va. 654,100 S. E. 506); Stillwell v. Paepcke-Leicht Lumber Co. (1904; 73 Ark. 482, 84 S.W. 483). The last case cited above is relied upon for authority in the Ruling Case Law Statement that, "The measure of damages for a failure to cut, remove and pay for all the timber on certain land within a specified time is the difference between the market value of the timber left standing on the land and the contract price at the time of the breach." 17 R.C.L. 1102. This rule would, of course, be applicable in measuring the damages resulting from the Purchaser's failure to do that cutting required by the contract to be done previous to the date of breach. Examination of the three cases cited above, however, shows that in each of them the time set for performance had expired by the date of the breach complained of; and it is questionable whether the rule of these cases could be used in measuring the damages predicated on the breached contract's provision for cutting and payment of stumpage values at times subsequent to the date of breach. In measuring these future damages, the breach should be treated as an anticipatory breach; and in measuring damages resulting from anticipatory breach of contract there is confusion as to whether the market value, which is to be deducted from the contract price, should be determined as of the time of the breach or as of the time set for performance.

    The proper ruling, in view of the general purpose of damages, placing the damaged party in the same position he would have enjoyed in event of performance, would be that the market value should be determined as of the date or dates set for performance. Roehm v. Horst, supra;Mo. Furnace Co. v. Cochran (8 Fed. 463); Cox & Sons Co. v. Crane Iron Works (1925; C.C.A. 3d, 5 Fed. (2d) 314); Windmuller v. Pope (107 N. Y. 674, 14 N. E. 436); and many other cases support this rule. It should be noted that the Federal courts favor this rule. The contra rule, that the market value should be determined as of the date of the breach, is supported by dicta in Masterton v. Mayor (7 Hill 61); James H. Rice Co. v. Penn P. G. Co, (88 Ill. App. 407); and several other cases including a few Federal court decisions. Variance in circumstances affects the selection of the rule to be applied, but it is accurate to say that the majority of the courts, including the majority of Federal courts, favor the determination of market value as of the time set for performance. The many cases are covered in annotations in 34 A.L.R. 114 and 44 A.L.R. 215.

    If in a suit on the Defiance Plateau Unit contract the majority rule were adopted, then, to establish the market value at the various future times
 

set for performance, evidence of market values existing between the date of breach and the date of trial would be admissible. Roehm v. Horst, supra, supports this matter of evidence. This evidence could include that showing the effect of the N.I.R.A., Public No. 67, 73d Congress, and the Lumber Code on the market price and the contract requirements. Since the market was probably lower on April 1, 1933, than it is now or will be in the near future, it would be advantageous to the Indians concerned to have the damages measured by taking the market value as of the date of breach.

    Now to consider the damages recoverable in an action against the Purchaser in the Defiance Plateau Unit case for its breach of contract. The date of breach is April 1, 1933. (This, assuming that the waiver of May 23 was illegal and void or that the waiver was effectually revoked.) The damages due to the Purchaser's failure to cut 10,000,000 feet during the year ending March 31, 1933, would be measured by the difference between the contract price of 10,000,000 feet and that year's mean market value of 10,000,000 feet of the standing timber. The future damages would be measured by the difference between the contract price of the timber covered by the contract, less 10,000,000 feet, and the market value of that quantity of the timber as of the date of breach or, which would be more proper and more likely in the Federal courts, as of the dates set for performance.

    If the date of breach (on the assumption that the waiver was legally effective and could not be revoked) was set by the determination of a reasonable time within which the Purchaser should have commenced cutting operations, then the damages for which the Purchaser would be liable would be, first, damages occasioned by the breach which was waived. It is well settled that waiver of the right to treat a breach as repudiation of the contract, is not a waiver of the right to recover damages for the breach. "Acceptance of delayed performance of a contract which specifies the time of performance is not inconsistent with the retention of the right to recover damages for the delay." R. B. Boak & Co. v. United States Shipping Board E. R. Corp. (1926; 11 Fed. (2d) 523, 524). Purington Paving Brick Co. v. Metropolitan Paving Co. (U.S.C.C.A. Mo.-1925; 4 Fed. (2d) 676); and Peters v. Bow (45 Id. 303, 262 Pac. 149) are in accord. The damages occasioned by the delay would be interest on the contract price of 10,000,000 feet over the period between April 1, 1933, date of the waived breach, and the date of the subsequent breach resulting from failure to commence operations within a reasonable time. Secondly, damages for future nonperformance occasioned by the breach sued upon would be measured according to the rules discussed above with reference to April 1, 1933, as the date of breach.

                                                                                                                                              NATHAN R. MARGOLD,

    You have requested a memorandum relative to whether or not certain projects proposed by the Indian Service come within the scope of the National Recovery Act, approved June 16, 1933. The proposed projects are listed in your request of November 7, 1933, as: (1) building Indian homes, the costs to be repaid to the Government on a reimbursable plan: (2) the purchase of sufficient Indian heirship and other lands for sites for these homes and where necessary for subsistence farms for Indians for whom homes are erected: (3) the purchase of 18 portable sawmills for the manufacture of lumber from Indian forests to be used in building Indian homes, reservation schools and other buildings, for general sale: (4) the purchase of necessary household furniture, farm equipment and livestock, and the erection of farm and range fences; and (5) necessary land survey and classification to carry out this program systematically.

    First, it should be pointed out that the legitimacy of the proposed projects as Public Works is a matter for the determination of the Public Works Administration legal division; that this memorandum of necessity, therefore, is limited to advising you whether the probability of the said legitimacy is great enough to justify an application to the Public Works Administration.

    Second, it should be pointed out that, if application to the Public Works Administration be made, care should be taken that the application is complete in meeting the requirements set by the Board of Public Works for the form and substance of application.

    The proposed projects may well be held to be within the scope of Title II of the National Industrial Recovery act, particularly in view of the Departmental practice, evidenced by grants already approved. If title to the land purchased for these projects would be retained by the Federal Government, and the use of the land by Indians subjected to Federal supervision and control, then the projects would clearly be Federal in character, and as Federal projects they may well be held to be
 

within section 202 (c) of Title II of the National Industrial Recovery Act which provides for inclusion in the program of Public Works, "any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public". Many enactments of Congress have authorized such projects as these now proposed and have appropriated funds with which to finance them. Some of the more pertinent and recent enactments are Public No. 666-71st Congress, Public No. 581-71st Congress, Public No. 450-71st Congress, Public No. 217-71st Congress, Public No. 143-71st Congress, Public No. 1033-70th Congress, Public No. 762-70th Congress, Public No. 444-70th Congress, Public No. 443-70th Congress, Public No. 731-69th Congress, Public No. 437-69th Congress, Public No. 236-69th Congress, and Public No. 207-69th Congress.

    It seems that the success of an application to the Public Works Administration is dependent largely upon a showing of the project as economically sound and as one which will effect substantial reemployment. It would, therefore, be desirable to make it clear in the application that the projects are economically sound and that they will effect substantial reemployment of permanent character. Justification of the projects would be strengthened by showing that as incidents to their administration there will be affected a conservation of forest resources, a prevention of soil erosion and removal and/or reservation from cultivation of marginal farm lands.

    The probability of the proposed projects being held by Public Works Administration to be legitimate subjects for Public Works grants is great enough to justify the Indian Service in applying to Public Works Administration for grants to finance the said projects.

                                                                                                                                              NATHAN R. MARGOLD,

54 I.D. 335

M-27491                                                                                                                               December 1, 1933.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Commissioner of Indian Affairs has submitted for opinion two specific questions as follows:

    1. Is it permissible on Indian irrigation projects for suitable contracts to be entered into between the United States and the owners of irrigable land against which there are unpaid delinquent operation and maintenance assessments, such contracts definitely to provide for payment by the landowner of the current irrigation assessments as and when due, and to make annual payments of certain percentages of the total unpaid delinquency plus interest on the unpaid portion of the deferred amount, water to be delivered upon execution and compliance with such contract?

    2. Would it be permissible to include in such contracts unpaid delinquent construction assessments in the same manner as suggested for unpaid delinquent operation and maintenance assessments?

    Under the act of August 1, 1914 (38 Stat. 583), the Secretary is authorized to fix maintenance charges which may be paid as he may direct, such payments to be available for use in maintaining the project or system for which collected. He has also been authorized to fix operation and maintenance charges by a various acts of Congress, and to determine and announce the construction charges which shall be levied against the irrigable lands within Indian irrigation projects. As a general rule no administrative officer is vested with authority to extend without consideration the time of payment of a debt due the United States. The Secretary could amend any notice fixing the amount and date of payment of charges so as to
 

change the amount of the charge and could also defer the time when the payment fell due but when the charges thus fixed fall due he is given no authority to extend them. During the last few years business necessity has caused the Department to take promissory notes, secured by chattel mortgages, for operation and maintenance charges, thus making the charges due at the end of the irrigation season instead of compelling payment in advance, as required by public notice. The consideration for the extension is interest exacted, and this may be sufficient to make the transaction valid: a question not necessary here to decide. It seems probable that the theory on which annual operation and maintenance charges have been extended for a time before water is delivered in the spring to sometime in the fall after the irrigation season is past arises from the fact that the Secretary of the Interior is authorized by law to fix the annual operation and maintenance charges per acre and announce the date of payment. Hence, if he issued a notice prescribing that payment by the landowner of annual operation and maintenance shall be made in advance of the irrigation season he would be authorized to change the notice to provide for payment at the end of the irrigation season.

    It has evidently been the view of the Department that the Secretary of the Interior is without authority to extend payments, after they fall due, of the operation and maintenance or construction charges, because it has secured legislation from Congress in several instances where such authority has been required. The act of February 13, 1931 (46 Stat. 1093), is such as act. It authorized the Secretary of the Interior to adjust payment of charges due on the Blackfeet Indian Irrigation project, Montana. This act was the result of Senate Bill No. 1533, which, as originally written, was intended to give the Secretary of the Interior authority to extend past due water-right charges on any irrigation project, constructed or being constructed and operated under the direction of the Commissioner of Indian Affairs, the extension to be limited to the term of five years. Congress, however, changed the Bill to make it applicable only to the Blackfeet project, Montana, and prescribed that the extension should not exceed ten years. This action of Congress, together with other similar acts passed by it, indicate clearly that Congress considers that the Secretary of the Interior is without authority to extend the time of payment of operation and maintenance or construction charges on Indian irrigation projects except with the Congressional sanction previously given. Congress has not granted to the Secretary of the Interior general authority to extend the time of payment, after they fall due, of either the operation and maintenance charge or the construction charge, on Indian irrigation projects, and in my opinion, he can not extend such charges without specific authority of Congress.

                                                                                                                                            NATHAN R. MARGOLD,

    A memorandum to you dated August 21, 1933, expressed our opinion that a projected transfer of the inmates of the Canton Insane Asylum to Saint Elizabeth's Hospital was legal. Since that time a person acting as guardian ad litem for one of the inmates has obtained a temporary injunction against the superintendent of the asylum and the Commissioner of Indian Affairs restraining them from effecting the removal of the inmates. Although the court did not obtain jurisdiction over the Commissioner of Indian Affairs, it named him in the restraining order. The jurisdiction of the courts to issue such an order has been attacked by the United States attorney for the southern district of South Dakota, acting with an attorney assigned to the case by the Department of Justice. The matter has been pending in the District Court in South Dakota since October 23, the day upon which the issue of jurisdiction was argued. In the meantime the restraining order continues in force.

    Further delay can be avoided if the Secretary of the Interior, through an agent of his own appointment and not through the Commissioner of Indian Affairs, will proceed to transfer the Indians in question from Canton to Washington. Such procedure would be lawful as an exercise of the general supervisory power over Indian affairs vested in the Secretary of the Interior under Section 485 of Title 5 of the United States Code:

    "The Secretary of the Interior is charged with the supervision of public business relating to the following subjects; * * * Second, The Indians",

General Land Office, and the issuance of a new order by the Secretary himself, the Supreme Court said:

    "It makes no difference whether the appeal is in regular form according to the established rules of the Department, or whether the Secretary of his own motion, knowing that injustice is about to be done by some action of the Commissioner, takes up the case and disposes of it in accordance with law and justice. The Secretary of the guardian of the people of the United States over public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted".

  Knight v. United States Land Assn., 142 U.S. 181 (1891).

    "IT IS FURTHER ORDERED that pending the final determination in this hearing, the defendants herein JOHN COLLIER, as Commissioner of Indian Affairs of the United States, Harry R. Hummer, as Superintendent of the Asylum for Insane Indians, at Canton, South Dakota, and SAMUEL A. SILK, their agents and employees and all persons acting for and in their behalf, are hereby restrained and enjoined from proceeding further with the removal of the said ALBERT BLAINE or any of said patients of the said asylum for Insane Indians, located at Canton, South Dakota, and are hereby restrained and enjoined from closing of abandoning the said asylum for Insane Indians, located at Canton, South Dakota."

  Exparte State ex rel Higdon, 162 Ala. 181, 50 So. 143 (1909).

  Boyd v. State, 19 Neb. 128, 26 N. W. 925 (1886).

  Rigas v. Livingston, 178 N. Y. 20, 70, N. E. 107 (1904).

    "The writ did not undertake to create a status effecting to place the safe in gremio legis.The relator was a stranger to the writ. Its obligation was confined to the conduct of Ward and Bodeker. It was not framed and did not assume to protect the safe general. It did not attempt to maintain the status quo except by restraint of Ward and Bodeker".

    On the other hand a group of inferior Federal courts have evolved a theory that any independent act of a stranger to an injunction-if he has notice of the injunction-which has the effect of rendering the action of the court nugatory, is an act of disrespect for the court which is punishable as a criminal contempt.

    "It is entirely consonant with reason and necessary to maintain the dignity, usefulness and respect of the court, that any person, whether a party to a suit or not, having knowledge that a court of competent jurisdiction has ordered certain persons to do or abstain from doing certain acts, can not intentionally interfere to thwart the processes of the court in making such order * * *. Such an act is a flagrant disrespect to the court * * * and an unwarrantable interference with, and obstruction to the orderly and effective administration of justice, and, as such is and ought to be treated as a contempt of the court which issued the order".

  In re Reese 107 Fed. 942, 945 (C. C. A. 8th, 1901).

    Accord: Garrigan v. U. S., 163 Fed. 16 (C. C.A. 7th 1909).

  Chisholm v. Gaines, 121397 (C. C. D. S. C., 1903).

    "We are entirely at a loss to see how, there being no disobedience of the injunction charged, as we have shown, there can be any conviction of contempt based on the theory that the affidavit or complaint shows acts 'in contempt of the power and dignity of the

court,' acts, as referred to in Garrigan v. United States, supra, in defiance of the 'command of the court', and constituting as 'interference with or obstruction of the administration of justice'. There was no 'command' of the court addressed to petitioner in any way, by name or as a member of any class, and it was not charged that he was acting in concert or connection with or in aid of any party to whom the command was addressed. How then can it be said that he was acting in defiance of the command of the court, or in any way interfering with the execution of that command against those to whom it was addressed?

  Berger v. Superior Court 175 Cal. 719, 167 Pac. 143, 145 (1917).

    In view of the questionable reasoning of the Federal cases it is doubtful whether the United States Supreme Court would have affirmed the decisions in question. Moreover, a new factor has been introduced in the situation by a section of the Clayton Act. That section, Section 383 of Title 28 of the United States Code, provides that an injunction or a restraining order,

"shall be binding only upon the parties to the suit, their officers, agents, servants, employees, and attorneys, or those in active concert or participating with them, and who shall by personal service or otherwise, have received actual notice of the same."

    One ambiguity in the statute should be pointed out. It is not clear whether the phrase, "those in active concert or participating with them", is a restraint upon those who had been in active concert or participating in the doing of the prohibitory acts before injunction issued, or whether the phrase refers to concert after injunction. This question was mooted in Day v. United States 19F (2d) 21 (C. C. A. 7th, 1927.)

    The first interpretation seems rather strained, and it is doubtful whether a court would adopt it. In either event, evidence seems lacking in this case which would bring any action of the Secretary of the Interior within that clause.

    The entire analysis has postulated the existence of jurisdiction to issue the injunction in question. Briefs filed in the cause on behalf of the Superintendent of the Canton Asylum attack the jurisdiction of the court and seem sound in their contention. The absence of a necessary party, the Secretary of the Interior, and failure to serve the Commissioner of Indian Affairs with process, are the principal grounds for the attack upon the court's jurisdiction. Therefore, even as to parties named, the injunction should be held void, and disobedience of its mandate-no contempt. If any further circumstances should be required to influence an appellate court to look with disfavor on the entire procedure, it may be observed that the District Court in issuing the injunction, ignored all formalities for such procedure provided in Section 381 and 383 of Title 78 of the United States Code. One of those requirements is that the injunction state the reasons for its issuance.

    It is my opinion that no breach of law or propriety is involved in the procedure suggested in this memorandum.

                                                                                                                                              NATHAN R. MARGOLD,

54 I.D. 341

M-27636                                                                                                                               December 8, 1933.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether bonds issued by the Home Owners' Loan Corporation may be accepted on behalf of restricted Osage Indians in satisfaction of first mortgages held by such Indians on home properties, and if so, whether any action can be taken to provide additional security for the Indians where the amount of the loan obtained by the home owner is less than the amount of the note and mortgage outstanding.

    The Home Owners' Loan Corporation was created by the act of June 13, 1933 (48 Stat. 128), for the purpose of affording relief to distressed home owners by providing a method of refunding or re-financing pressing mortgage indebtedness against their homes. The Corporation has a capital stock of $200,000,000 fully subscribed by the United States and is authorized to issue bonds up to $2,000,000,000 to carry out the objects for which it was created. The plans of the Corporation provides for the exchange of its bonds in the acquisition of first mortgages on homes and also for the making
 

of loans in cash in certain cases but with the latter we are not here concerned. Where bonds are taken, the amount is limited to 80% of the appraised value of the property involved and the rate of interest paid by the home owner will not exceed 5 per cent. The consent of the owner of the existing mortgage to take bonds of the Corporation in consideration of the release of all his claims against the property is, of course, required. The bonds draw interest at the rate of 4% payable semi-annually and mature in 18 years but are callable at par by lot on any interest date. The bonds are guaranteed fully and unconditionally as to interest only by the Government of the United States. They are acceptable at face value in payment of indebtedness due to the Home Owners' Loan Corporation and are exempt as to both principal and interest from all Federal, State, municipal, and local taxation (except surtaxes, estate, inheritance, and gift taxes). The bonds are the direct obligation of the Home Owners' Loan Corporation, and the fixed assets supporting the bonds will consist of the first mortgages acquired by the Corporation including those acquired in consideration of loans made in cash provided by the issuance of capital stock and those acquired through the exchange of bonds. The Corporation plans to retire bonds as payments of principal on loans are made and the loans satisfied.

    The question presented by the present inquiry has arisen, it appears, in connection with an application made by one O. L. Barlow for a loan from the Home Owners' Loan Corporation of a sufficient amount to satisfy a mortgage now held by the Superintendent of the Osage Indian Agency for the benefit of the estate of Wiley (Wally) Whitewing, deceased Osage allottee No. 686. The mortgage was given to secure the payment of a note in the amount of $6,000 dated October 23, 1924, due October 23, 1929, with interest at 7%payable semi-annually. The loan was made from funds in the hands of the legal guardian of Wiley Whitewing and the funds were apparently unrestricted at that time. However, the restrictions upon such funds in the hands of legal guardians, or the property into which such funds may have been invested, appear to have been reimposed by certain provisions contained in the act of February 27, 1925 (43 Stat. 1008). See Hickey v. United States (64Fed. 2d. 628). Accordingly, the United States District Court for the Northern District of Oklahoma in the case of United States v. Bennett, No. 1721 Law, handed down a judgment on May 18, 1933, holding that the note and mortgage under consideration, together with certain other securities, were subject to the jurisdiction of the Secretary of the Interior. The Court found, among other things,

    "That the said judgment property and notes and mortgages are hereby declared subject to the jurisdiction and control of the Secretary of the Interior for the use and benefit of the said heirs of Wally Whitewing, deceased, to be administered by him in accordance with law."

    Regarding the question generally of the authority of the Secretary of the Interior to invest the restricted funds of members of the Osage Tribe of Indians in bonds of the Home Owners' Loan Corporation, it may be pointed out that the moneys belonging to these Indians are derived from leases of the minerals, chiefly of oil and gas, underlying their reservation which were reserved to the tribe in common by the act of June 28, 1906 (34 Stat. 539). That act directed, among other things, that the income from the mineral and other tribal sources should be paid quarterly pro rata to the members of the tribe as shown by a final roll made and approved under the provisions of the act. By the act of March 3, 1921 (41 Stat. 1249), however, Congress placed the members on quarterly allowances ($1000 for adults and $500 for minors) and directed that the remainder of the share of each member, commonly called the "surplus" be invested and conserved for his future benefit. Section 1 of the act of February 27, 1925 (43 Stat. 1008), increased the quarterly allowances for minors between the ages of 18 and 21 and broadened the scope of the authority of the Secretary of the Interior with respect to the expenditure and investment of the surplus. The latter provision being of most importance here, it is quoted in full below:

    "The Secretary of the Interior shall invest the remainder, after paying the taxes of such members, in United States bonds, Oklahoma State bonds, real estate, first mortgage real estate loans not to exceed 50 per centum of the appraised value of such real estate, and where the member is a resident of Oklahoma such investment shall be in loans on Oklahoma real estate, stock in Oklahoma building and loan

associations, livestock, or deposit the same in banks in Oklahoma, or expend the same for the benefit of such member, such expenditures, investments, and deposits to be made under such restrictions, rules, and regulations as he may prescribe: Provided, That the Secretary of the Interior shall not make any investment for an adult member without first securing the approval of such member of such investment."

    Regarding the exchange of the Corporation's bonds for an existing first mortgage investment, it may be said that the substitution of an unauthorized investment for an authorized one can not be justified where the existing authorized investment is safely secured, but where the security is impaired to the extent that the Indians face a certain loss, their manifest interests would appear to demand that such measures as may be available be taken to avoid or mitigate the loss. As the guardian of the Indian wards in the administration of their affairs, the Secretary of the Interior is charged with the duty of protecting their interests and promoting their welfare, and this duty would appear to draw to it the power and authority necessary to take appropriate action in such perilous cases. The facts in connection with the Barlow mortgage are not sufficiently stated to enable me to determine with certainty whether the case is one in which the acceptance of the bonds of the Home Owners' Loan Corporation is justified as a measure essential to the protection of the interests of the Indians. If upon further investigation it develops that such is the situation, the bonds of the Corporation may be accepted, otherwise not. It is difficult to see, however, how the proposed exchange could improve the position of the Indians, since not more than 80% of the value of the property could be acquired in such bonds. We are here dealing with trust funds, and we are not permitted to release any portion thereof without an adequate return. The existing mortgage is security for 100% of the loan if the property has that value. If it is good for only a portion of the debt, the Indians are entitled to its full value rather than 80% of the value as proposed in the exchange.

    The further question as to whether any action can be taken to provide additional security for the Indians where the amount of the loan obtained by the home owner is less than the amount of the outstanding note and mortgage can not well be answered without having before me a concrete case with a statement of the facts showing the amounts involved, the appraised value of the property, the status of the borrower as a moral risk and his earning power, and the kind of security he is able to furnish. I shall be pleased to consider this question further upon presentation of such a concrete case.

                                                                                                                                             NATHAN R. MARGOLD,

M-27645.                                                                                                                             December 22, 1933.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion in the matter of the issuance of a patent in fee for 160 acres of land allotted to William John Grant, deceased Rosebud allottee, No. 5033.

    Under authority of the act of June 25, 1910 (36 Stat. 855), the Department on March 5, 1930, approved a sale of the above land on the deferred payment plan, the contract of purchase being signed by Ross L. Massingale. All payments on the sale have now been completed and request is made that the patent issue to Bertha L. Massingale, mother
 

of Ross. A formal assignment to Bertha is submitted signed by Ross and his parents, John L. and Bertha L. Massingale. It develops that the real purchaser of the land was the father, John L. Massingale, and payment of the entire consideration has been made by him. The son, Ross, whose name was signed to the contract of purchase was, at the time of sale, a minor 9 years of age. The Superintendent of the Rosebud Indian Agency states:

    "This family, the same as a great many others in this vicinity, has suffered, financial losses and is now in straightened circumstances. For this reason they wish the patent in fee covering the above lands in the name of the mother in order that she may be able to convey them if necessary and save court fees required in conveying property belonging to a minor."

    Inasmuch as the transaction under consideration, if intended as a gift from father to son, was not completely executed, it is my opinion that the patent should issue to Bertha L. Massingale, in accordance with the request of John L. Massingale the purchaser and equitable owner of the land.

                                                                                                                                                NATHAN R. MARGOLD,

Re Proposed Trust for Natives of Alaska.

    The proposal made by Mr. Baldwin first presents this legal question: Can the Government officials named in the proposal act as trustees, and if so, by what means?

    After careful consideration it is my conclusion that the Government officials can accept and administer the proposed trust by means of an Act of Congress authorizing them so to act, and that such an Act of Congress is the surest and safest means of effectuating Mr. Baldwin's proposal.

    Although there are other means by which the proposed trust might be accepted and administered by the three officials named, these other means have attendant risks and uncertainties which make them relatively undesirable.

    1. There is a means of the three officials' indirectly accepting and administering the trust, which would not require an Act of Congress. And be cause of the delay and uncertainty which probably would confront an attempt to obtain an act of authorization from this busy session of Congress, this means, a corporation, might be expedient.

    A nonprofit membership corporation could be organized under the laws of Delaware naming as the members the persons now occupying the positions of the Secretary of the Interior, the Secretary of Agriculture, and the Governor of Alaska. The form of organization could be similar to that utilized in the formation of the Federal Subsistence Finance Corporation, with the objects and powers of the corporation expressed to be those of administering trusts for the benefit of the natives of Alaska. Mr. Baldwin could then create the trust, naming the corporation as trustee. (If preferable, the trust might be created before the corporation.) By having the trustees incorporated there would be,
 

if ever needed in future years, simplification of court enforcement of the beneficiaries' rights-the simplicity of proceeding against a corporation instead of Government officials. By providing in the corporation charter for limitation of membership to those persons occupying the three named governmental positions, administration of the trust would be placed where Mr. Baldwin wants it; but this corporate means would be private rather than governmental, and because of its private character would present a risk. The official character of the three named officials would merely make them eligible for membership in the corporation, and if in the future an individual holding one of the three Government offices should refuse membership, he could not be forced to accept it. In such an event a court might appoint another trustee in place of the corporation; but, nevertheless, Mr. Baldwin's purpose would have been defeated. Too, Mr. Baldiwn's proposal may reasonably be construed to contemplate the three officials' accepting and administering the trust in their official rather than their private capacities; so that the corporate means suggested, although perhaps expedient from one point of view, probably would not conform to Mr. Baldwin's wishes and would lack the permanency of trusteeship which an Act of Congress would provide.

    2. Before discussing an Act of Congress as a means of providing for acceptance and administration of the trust, there should be considered the question of whether legislative enactment is a prerequisite to legitimate activity of the three officials as trustees of the proposed trust. Examination of relevant statutes, case law, and the opinions of the Attorney General does not reveal any general authorization or sanction for a Department head to act as trustee in such a trust as that proposed. It is equally important, however, to note that neither does such examination reveal any prohibition against such executive activity. There seems to be neither authoritative sanction nor disapproval; but since the official duties of the heads of Departments are ordinarily determined by the laws for the execution of which their respective departments are responsible, the conventional means for carrying out the Baldwin proposal would be an Act of Congress. Acceptance and administration of the trust by the three officials without legislative authorization would be of uncertain legal authority.

    3. The three officials could, by virtue of an Act of Congress giving them authority in the premises, accept and administer the trust. The United States and those acting in its behalf have the capacity to act as trustees. And while they can administer a trust only for such purposes as are embraced within the powers conferred by the Constitution, the purposes of the proposed trust are within the granted powers over property belonging to the United States and over the natives of Alaska, so as to bring the proposed trust within the category of those which can be administered by the United States and those acting in its behalf.

    It is true that Title 48, Section 50b, Supplement VI, United States Code, provides:

"Donations for school, medical, and reindeer service; acceptance by Secretary of Interior.-The Secretary of the Interior, in his administration of the Alaska school service, the Alaska medical service, and the Alaska reindeer service, is authorized in his discretion to accept lands, buildings, or other property and moneys which may be donated for the purposes of those services. (Mar. 7, 1928, c. 137. Sec. 1, 45 Stat. 239.) "

    As indicated at the beginning of this memorandum the surest way of obtaining the services of. the three officials as trustees is to make such services a part of their official duties by Act of Congress; and the safest basis of authority for their activity, in their official capacity, as trustees, is an Act of Congress.

    A second question presented by the Baldwin proposal is the advisability, as a matter of policy, of accepting the trust. In this connection, the record of the hearings of the Reindeer Committee in Washington, D. C., February and March, 1931, the Department of the Interior files on the reindeer industry in Alaska, the records of the Reconstruction Finance Corporation relative to its negotiations with the corporations involved in the proposition, and the files of the Division of Investigations of the Department of the Interior contain much pertinent information. Since the question of policy is not one for initial consideration by my office, it has not been gone into and no recommendation is made here with reference thereto. If you desire me to inquire into this phase of the subject and submit a recommendation, I shall be glad to do so.

                                                                                                                                             NATHAN R. MARGOLD,

M-27671.                                                                                                                                             March 1, 1934

    Under the provisions of the act of February 13, 1929 (45 Stat. 1167), the buildings located on lands within the Yankton Sioux Indian Reservation reserved for school, agency and other purposes, passed to and became the property of the Yankton Sioux Tribe along with the lands. Such buildings may be sold under the provisions of the act of February 14, 1920 (41 Stat. 408-415), or they may be razed, if in the judgment of the Commissioner of Indian Affairs and the Secretary of the Interior, such action will better serve the interests of the Indians, any funds realized from such action to accrue to the benefit of the Indians.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Assistant Commissioner of Indian Affairs my opinion has been requested as to whether certain buildings located on lands originally a part of the Yankton Sioux Indian Reservation in South Dakota belong to the Indians or to the United States.

    The question of title to the buildings, as between the Government and the Indians, turns primarily on the provisions of the act of February 13, 1929 (45 Stat. 1167), but before discussing the provisions of that act it may be well to refer briefly to the ownership of the lands and buildings under the prior laws.

    The Yankton Sioux Indian Reservation was established by the treaty of April 19, 1858 (11 Stat. 744). The right of the Indians to the reservation thereby created was that of use and occupancy, the United States having the title in fee. Spalding v. Chandler (160 U.S. 394). By an agreement entered into December 31, 1892, and ratified by the act of August 15, 1894 (28 Stat. 286, 314), the Yankton Sioux Indians ceded and sold to the United States for a consideration of $600,000 a part of the reservation including the lands here involved which were reserved from sale to settlers and set aside for agency, school and other purposes by article 8 of the agreement. Complete title to the lands so reserved thus passed to the United States free and clear of all claims of the Indians. The buildings in question have been used in connection with school and administrative activities. They were erected and maintained by the Government on the reserved lands, not with moneys belonging to the Indians, but with moneys appropriated by Congress from the Federal Treasury. The buildings likewise belonged absolutely to the Government.

    Such was the condition of title to the lands and buildings at the time of the passage of the act of February 13, 1929, by which the reserved lands were reconveyed to the Indians. The act reads:

    "That all claim, right, title, and interest in and to certain lands on the Yankton Sioux Indian Reservation in the State of South Dakota, now reserved for agency, schools, and other purposes (embracing one thousand acres, more or less) pursuant to the Act of Congress dated August 15, 1894 (Twenty-eighth Statute, page 286), be, and is hereby, reinvested in the Yankton Sioux Tribe of Indians when they are no longer required for agency, school, and other purposes: Provided, however, That this Act shall not be construed to make any such land available for allotment purposes."

    Nothing in the legislative history of the enactment is to the contrary. In reports to the Senate
 

and House Committees on Indian Affairs recommending that the bill which became the act of 1929 be not enacted, the Secretary of the Interior called specific attention to the fact that "there are forty buildings on the land used in connection with school and administrative activities". See House Report No. 1852 and Senate Report No. 1130 on S-2792, 70th Congress 1st session. The debates before the House and Senate also show that Congress was advised of the existence of the buildings upon the premises. See Congressional Record Volume 69 Part 8, 70th Congress 1st Session, page 8837, and Volume 70 Part 3, 70th Congress 2nd Session, page 2489-2490. In the debate before the House, Congressman Leavitt in urging enactment of the bill stated among other things that a delegation of Indians had appeared before the Committee and presented their desire that whenever the lands ceased to be needed for the purposes they are used for they should be passed back to the custody of the tribe for a community center. And in the Senate, Senator McMaster of South Dakota made the following statement:

    "Mr. President, the statements made by the Senator from Utah are correct in regard to certain Indian lands; but this particular bill does not apply to that class of lands. This bill applies to a certain 1,000-acre tract the title to which is now in the Government of the United States. When this land was ordered placed on the homestead file the Indians were supposed to receive $3.75 an acre, which they did receive; but the Government made $165,000 profit, and retained these 1,000 acres for Government buildings. This is simply to reinvest this land, to give the title back to the Indians, not for allotment but for reservation purposes, buildings, and so forth."

    It is understood from the information submitted by the Assistant Commissioner of Indian Affairs that the use of the reserved lands for the purposes for which they were reserved has been permanently discontinued and that the lands are no longer needed for any of such purposes. Upon that understanding, I hold, for reasons stated above, that the lands and buildings located thereon are now tribal property belonging to the Yankton Sioux Tribe of Indians. As such, the buildings appear to be subject to sale for the benefit of the Indians either with or without the lands upon which they stand, in accordance with and subject to the conditions set forth in the act of February 14, 1920 (41 Stat. 408-415), which reads:

    "That the Secretary of the Interior is hereby authorized to sell and convey at public sale, to the highest bidder, under such regulations and under such terms and conditions as he may prescribe, at not less than the appraised value thereof, any abandoned day or boarding school plant, or any abandoned agency buildings, situated on lands belonging to any Indian tribe and not longer needed for Indian or administrative purposes, and to sell therewith not to exceed one hundred and sixty acres of land on which such plant or buildings may stand. Title to all lands disposed of under the provisions of this Act shall pass to the purchaser by deed or by patent in fee, with such reservations or conditions as the said Secretary may deem just and proper, no purchaser to acquire more than one hundred and sixty acres in any one tract: Provided, That the proceeds of all such sales shall be deposited in the Treasury of the United States to the credit of the Indians to whom said lands belong, to be disposed of in accordance with existing law."

    "It is obvious, it is common knowledge, that in the administration of such large and varied interests as are intrusted to the Land Department, matters not foreseen, equities not anticipated, and which are therefore not provided

for by express statute, may sometimes arise, and, therefore, that the Secretary of the Interior is given that superintending and supervising power which will enable him, in the face of these unexpected. contingencies, to do justice."

    The materials salvaged, or the proceeds arising from any sale thereof, in the event the buildings are razed, belong, of course, to the Indians and not to the Government.

    The question of whether the consent of the Indians should be obtained before the buildings are disposed of in the manner contemplated by the instructions of January 18, is one of policy upon which I express no opinion other than to suggest that, as the owners of the property, their wishes should be ascertained, and if possible, respected.

                                                                                                                                             NATHAN R. MARGOLD,

M-27656                                                                                                                              March 7, 1934.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs there has been referred to me for opinion the question of the validity of certain claims of surface and mineral rights asserted by the Indians of Papago Tribe. These claims embrace an existing Indian reservation of more than two and one-half million acres, and a large amount of adjacent land in southern Arizona. The area is bounded, in a general way, by the Gila River, the Santa Cruz River, the Mexican boundary and the Growler Mountains. For centuries it has been, and it still is the home of the Papago Indians.

    The Papagos claim that both surface and minerals belong to them in fee by virtue of a title vested in them before the area in question came under the sovereignty of the United States. Therefore, they allege, the land never became part of the public domain of the United States.

    In 1853, this territory, then a part of Mexico, was acquired by the United States as a part of the Gadsden Purchase. 10 Stat. 1031 (1854). By Act of July 22, 1854, Congress established the office of Surveyor General of the Territory of New Mexico and placed under the jurisdiction of the Surveyor General the examination of all claims to land asserted under the laws, usages, and customs of Spain and Mexico. Ultimate confirmation and rejection of such claims was made a function of Congress acting upon such report and recommendation as the Surveyor General might make. 10 Stat. 308 (1854). After Arizona became a separate territory, similar legislation was enacted creating the office of Surveyor General of Arizona and defining the duties of that office. 16 Stat. 291 (1870). In 1891 Congress created the Court of Private Land Claims and conferred upon it jurisdiction to hear and adjudicate claims asserted under the Spanish and Mexican law. 26 Stat. 854 (1891). As early as 1874 the President of the United States, by Executive order, set apart a small tract of land within the Papago country, immediately around the old Jesuit Mission and Indian village of San Xavier del Bac, as an Indian reservation. Other comparatively unimportant reservations followed until Executive Order No. 2524, dated February 1, 1917, effected the reservation of more than two million acres in the Papago country for Indian inhabitants, but excepted mineral deposits and provided that the reservation area be open to entry and location under the mining laws of the United States. Congress recently has added to this reservation a contiguous strip of some three hundred thousand acres with the same exception and provision concerning minerals. 46 Stat. 1202 (1931). From time to time the United States has issued patents to white settlers and miners within the Papago country. It is to be remarked that during all these years of Indian occupancy and of Federal action presupposing the inclusion of the land in question within the public domain, only one instance of formal assertion of Indian title is recorded. In that case the Supreme Court of the United States considered an Indian claim to a particular small area within the Papago country. The litigation was indecisive. Lane v. Pueblo of Santa Rosa, 249 U. S. 110 (1919); Pueblo of Santa Rosa v. Fall, 273 U. S. 315 (1927). Under these circumstances and at this late date, those who assert that the Indians hold fee simple title to this land must bear a substantial burden of persuasion.

    A number of surveys and studies have been made of the Papago Indians and the territory they occupy. From such sources it is possible to draw a
 

significant picture of the factual relation between these Indians and the land in controversy. The Geological Survey has published a monograph embodying the results of a recent survey. Bryan, The Papago Country, Arizona (1925). Ten years earlier The United States Indian Service, through the agency of H. V. Clotts, assistant engineer, completed a comprehensive survey of the Papago country. Also valuable is an unofficial study by Carl Lumholtz, published in 1912, in his book "New Trails in Mexico." Studies by the Bureau