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    "When oil lessees manufacture casing-head gasoline from casing-head gas produced from their own leases, payment for the royalty interest of the lessor shall be at the rate of 16 2/3 per cent (or the royalty specified in the lease) to be computed on 33 1/3 per cent of the gasoline extracted as provided in paragraph 6, and which shall be subject to change as prescribed in paragraph 9."

    Neither section 2 nor section 12 of the leases are decisive of the question presented here. Though all originate from the same source, oil, casing-head gas and gasoline manufactured therefrom are distinct products. The first two are derived from the ground in their natural state, while gasoline is a manufactured commodity. Provisions in the leases relating to oil and casing-head gas do not, therefore, necessarily apply to casing-head gasoline.

    Section 2 of the leases applies to crude oil, and allows a deduction for operating purposes from the amount subject to royalty charges. It does not, however, create an exemption for casing-head gasoline similarly utilized.

    Section 12 deals with casing-head gas, and provides for royalties to be paid by the oil and gas lessees depending on certain contingencies and subject to certain limitations. When used for the manufacture of gasoline the gas is subject to payment by the oil lessee of royalty based on the market value of the gasoline contents. It is royalty free when used for operating purposes on the leased premises. It is not clear, however, whether royalty is payable on the gas used for manufacture of gasoline at all times, regardless of the use to which the gasoline is put, or whether gasoline used on the premises falls within the exemption applicable to casing-head gas so used.

    Whatever may be the correct construction in this connection, section 10 of the regulations is specific on the point involved. It is necessary to consider section 12 standing by itself, for section 10 clarifies it and eliminates any confusion that might otherwise exist. It provides for royalty payments for the interest of the lessor based on 33 2/3 percent of the gasoline extracted. The section has two effects. On the one hand, it changes the provisions of section 12 relating to the basis of computing royalty when gasoline is manufactured from casing-head gas. The amount of gasoline extracted, rather than the gasoline contents, is made the basis of measurement. On the other hand, there can no longer be any confusion as to whether casing-head gasoline used on the premises should be royalty free within the exemption applied to casing-head gas so utilized. It provides specifically that royalty shall be charged on 33 1/3 percent of any and all gasoline extracted, and that 66 2/3 percent shall be allowed royalty free for operating purposes. Whether the gasoline is produced for use on the premises, or for resale, or any other purpose royalty is payable in accordance with the above proportions.

    The intent of the section clearly is to preserve the interest of the Osage Tribe in a community that was of no great commercial significance at the time these leases were approved, but that has since become of considerable value, both for resale and fuel purposes. As pointed out by the Acting Superintendent of the Osage Reservation in his recommendations on the subject, "it seems unfair to the Osage tribe to ask that they be assessed further operation expense when they have already made a very liberal contribution under the provisions of the regulations for that purpose." The fact that the leases themselves say nothing on the question is without importance. Section 10 clearly and explicitly remedies this defect.

    I am of the opinion, therefore, that royalty should be paid at the rate of 16 2/3 percent computed on 33 1/3 percent of the gasoline extracted from casing-head gas, whether actually used in operating the lease or not, the remaining 66 2/3 percent being
 

royalty free under the terms of section 6 of the regulations.

                                                                                                                                                    CHARLES FAHY,

 Memorandum for the Commissioner of Indian Affairs:

    I am returning without approval your letter of April 22 recommending the enrollment with the Lake Band of Chippewa Indians in Minnesota of Patricia Cameil Peron and Donna Peron, children of Mrs. Leona Lealin Peron, an enrolled mixed blood Indian of the Red Lake Band.

    The enrollment of these children does not appear to be justified by anything contained in the present record. In the first place, they are not recognized by the Red Lake Band of Indians as members, the Indians in general council having in fact declined to approve their enrollment. In the second place, they are the issue of a marriage between an Indian woman and a white man and the marriage having been solemnized after June 7, 1897, they are not entitled to enrollment under the act of that date (30 Stat. 62,90). Finally, it is well established than an Indian woman loses her tribal membership where she marries a white man, separates from the tribe and lives with him among white people. It is also well settled that the children of such a marriage take the status of the father rather than that of the mother unless the mother remains in the tribal environment and retains her tribal membership and the children are born in the tribal environment and there reared by her with the father failing to discharge his duties to them. See Malbert v. United States (283 U.S. 753, 763); Oakes v. United States (172 Fed. 305).

    One of the children was born in Los Angeles, California, after the mother had long been absent from the reservation. See Superintendent's letter of June 22, 1934. The other child was born on the reservation after the mother had returned there. The marriage of Mrs. Peron to a white man, coupled with absence from the reservation and residence among the whites, appears to have put an end to her tribal membership. The child thereafter born to her in California clearly was not born into tribal membership and cannot be enrolled, nor does the child born after her return to the reservation stand in any better position. If, as appears to be the case, the membership of the mother had terminated, her return to the reservation would neither restore her tribal membership nor confer tribal membership rights on her children born there unless the tribe itself recognizes them as members. Such recognition in the present case has so far been withheld.

                                                                                                                                                    CHARLES FAHY,

M-27996                                                                                                                                     May 14, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested as to the ownership of the bed of the Arkansas River where it forms the western boundary of the Kaw Indian Reservation in Oklahoma.

    The Kaw tribe of Indians is asserting title to the river bed between the upland and the mid-channel of river and on March 4, 1934, executed an oil and gas lease on the river bed lands to one D. J. Donahoe, Jr. of Ponca City, Oklahoma. The lease is accompanied by an agreement between the tribe and Mr. Donahoe under which the latter undertakes to protect the right and interest of the tribe in the leased lands at his own expense, such expense to include the cost of hiring competent counsel.

    It is appropriate to state at the outset that the lease and agreement which have been submitted for approval of the Secretary of the Interior can not be approved at this time even though the lands involved belong to the lessor tribe. The lease purports to have been executed under section 3 of the act of February 28, 1891 (26 Stat. 795) and was let privately without advertising or public sale. The act of 1891 was amended in 1924 (act of May 29, 1924, 43 Stat. 244) to require that all oil and gas leases on tribal lands subject to lease under the act of 1891 be sold at "public auction." In view of this statutory requirement, there is no authority for approval of the present lease which was not executed pursuant to a public auction sale.

    The lands comprising the Kaw Indian Reservation were part of a large tract purchased by the Osage tribe of Indians from the Cherokee nation pursuant to the act of June 5, 1872 (17 Stat. 228). The description of the entire tract as set forth in
 

the act is "bounded on the east by the 96th meridian, on the south and west by the northline of the Creek country and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas." The act provided that the Osage tribe should permit the settlement on the land of the Kansas (Kaw) tribe of Indians-not exceeding 160 acres for each member of that tribe to be paid for out of the proceeds of sales of lands in Kansas belonging to the Kaws. Payment for the entire tract was made to the Cherokees by the Osages. The Osages were then paid by the Kaws for the lands assigned to them and the respective tracts were duly conveyed to the United States in trust for the Osage and Kaw tribes by a deed executed June 14, 1883, under authority of an act of the Cherokee nation. The deed described the land by townships and fractional townships, the latter being located on the left bank of the Arkansas River. In Brewer Oil Company v. United States (260 U.S. 77) the Supreme Court considered the scope of the title acquired by the Osage tribe under the Cherokee deed and held that the deed, interpreted in the light of the language used in the act of 1872, carried title to the river bed land out to the main channel. Under this decision, it is clear that the title of the Kaw tribe acquired under the same deed likewise extended to the main channel of the stream.

    The reservation thus established for the Kaw tribe aggregated 100,137.32 acres and was maintained until July 1, 1902, when Congress by an act of that date (32 Stat. 636) accepted, ratified and confirmed an agreement submitted by the tribe providing for disposition of the reservation by directing that all of the lands with the exception of certain tracts reserved for school, agency, cemetery and town site purposes, be divided among the members of the tribe, giving to each his or her fair share in acres. Specific provision was made for a homestead allotment to each member of 160 acres, the balance to be divided equally in acres among the members "giving to each as nearly as practicable the same number of acres of farming and grazing lands." The agreement was carried into effect by making the allotments provided for, title passing to the allottees by deeds containing prescribed restrictions against alienation. The deeds described the lands according to legal subdivisions established by meander line surveys of the upland and shown on official plats. The deeds for the lands bordering on the stream contained no express inclusion or exclusion of rights in the river bed.

    The question for decision is whether title to the river bed land passed with the allotment of the upland or whether the river bed remained tribal land subject to disposition as such. As the Arkansas River where it forms the western boundary of the Kaw Reservation is a non navigable stream (Brewer Oil Company v. United States, supra,) the answer to this question is determined I think by the Decision of the Supreme Court of the United States in Oklahoma v. Texas (258 U.S. 570) and that of the Circuit Court of Appeals, 8th Circuit in United States v. Hayes (20 Fed. 2d. 873; certiorari denied 270 U.S. 552). In the Oklahoma-Texas case the question was whether allotments made to the Kiowa, Comanche and Apache Indians in Oklahoma of lands on the north bank of the Red River, a non navigable stream, carried title to the river bed in front thereof. There, as here, the tribal reservation extended to the mid-channel of the river. There, as here, the allotments were made according to legal subdivisions established by a survey of the upland, and there, as here, the patents contained no express exclusion or inclusion of the river bed lands. The court found that in executing the allotment acts there was no attempt to dispose of the river bed separately from the upland and held that the conveyances of the riparian tracts conferred a title not merely to the water line but to the middle of the stream. Such was the effect of the conveyances under the Oklahoma law, and in so holding, the court applied the general rule that:

    "Where the United States owns the bed of a non navigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what it intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the State in which the land lies. Where it is disposing of tribal land of Indians under its guardianship the same rules apply."

riparian allottees to the lands conveyed according to meander line surveys extended to the thread of the streams.

    These decisions must be considered as decisive of the question of the title in the present case in the absence of anything to show an intention to reserve to the Kaw tribe the river bed lands. The deeds to the allottees contain nothing to show an intent to reserve the river bed; nor do the provisions of the allotment agreement support the claim of the tribe in this respect. The agreement specifically provides for the allotment of all of the tribal lands except those specifically reserved from allotment and the specific reservations made do not include the river bed lands. It is contended, however, that an intent to reserve the river bed lands may be inferred from the fact that to allow the riparian allottees to have such lands would give to them a greater acreage than that allowed by the allotment agreement, thereby disregarding equality of division in acres which that agreement expressly provided for. This contention cannot be taken seriously but must be rejected for reasons well stated by the Circuit Court of Appeals in denying a similar claim asserted on behalf of the Creek nation in United States v. Hayes, supra. The court said:

    "Viewing the matter as of the time these Agreements were made, as we should, there was no money value in these river bed lands, therefore, there would be no disturbance in the 'value' standard of allotment. There would be an excess in acreage but acreage was not the controlling basis of division of lands-it was acreage of a given standard of value. Moreover, this excess in acreage was of land which had no apparent usefulness-at least none in and of itself. It might well be regarded as of no account. Suppose allotment had been attempted on an acreage basis which included this worthless river bed land as part of the 160 acres allotted, would it not have been opposed as unfair and unauthorized? What Congress designed and what the Agreements contemplated was that each allottee should have 160 acres of land, not 150 acres of land and ten acres of sand covered by the fluctuating waters of a bordering stream. The course of dealing by the United States in the disposal of the public lands is suggestive, if not analogous. 'It has been the practice of the government from its origin, in disposing of the public lands. to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines.' Grand Rapids & Indiana R. Co. v. Butler, 159 U.S. 87, 93, 15 S.Ct. 991, 933 (40 L.Ed. 95)."

                                                                                                                                                    CHARLES FAHY,

May 21, 1935.

Memorandum for the Secretary:

    May 8, the Assistant Commissioner of Indian Affairs submitted for my consideration the attached contract with the State of Washington which provides for the education in the State schools of all the Indian children of that State during the fiscal year 1935.

    The contract was executed on behalf of the State under date of April 2, 1935, by the Governor of the State and the State Superintendent of Public Instruction. In conformity with the suggestion made in my memorandum of February 27 the contract is accompanied by an opinion of the Assistant Attorney General of the State of Washington, holding that the State is authorized to enter into contracts of this nature. In my opinion this is a sufficient affirmative showing of the legal authority of the State to enter into the contract and, therefore, meets the requirements of the Act of April 16, 1934 (48 Stat. 596).

    The contract provides for the payment to the State of Washington out of funds appropriated by Congress of the sum of $100,963 less any disbursements made during the fiscal year 1935 by the Indian superintendents for the purposes the contract is intended to cover. Under the provisions of the contract this amount is to be paid in three installments, the last installment to be paid at the
 

end of the fourth quarter. Due to delay in the execution of the contract none of the installment payments provided for in the contract has been made. However, tuition payments for Indian children have been made during the year by the Indian Service. These amounts must be deducted from the payment due the State under the contract as provided therein. I am informed by the Office of Indian Affairs that in view of the payments so made to date the amount due the State under the contract will be less than the final installment, which is $25,240.75. The State will be required to submit a claim for the balance due under the contract, which claim will be presented to the General Accounting Office for approval and settlement before payment thereof is made. The seal of the State has not been affixed to the contract as is apparently required by the laws of the State of Washington. However, following your execution of the contract it will be transmitted to the State Officials for correction in this respect.

    With this understanding and the further under standing that payment of the balance due the State will be made in the manner described above, I recommend that you sign the attached contract.

                                                                                                                                                    CHARLES FAHY,

M-27770                                                                                                                                     May 22, 1935.

The Honorable,
The Secretary of the Interior

MY DEAR MR. SECRETARY:

    You have requested my opinion as to whether Section 1 of the Act of June 18, 1934 (48 Stat. 984), takes away the authority conferred upon the Secretary of the Interior by the Act of May 28, 1934 (48 Stat. 811), to issue patents to individual Indians for lots within the village of Taholah on the Quinaielt Reservation in Washington.

    The Act of May 28, 1934, reads:

   "That the Secretary of the Interior be, and he is hereby, authorized, upon application by any qualified Indian living within the Indian village of Taholah, on the Quinaielt Indian Reservation in the State of Washington, to issue to such Indian a patent for not to exceed two contiguous lots within said village, one of which lots must be occupied by said applicant: Provided, That where pursuant to section 10 of the Act of June 25, 1910 (36 Stat. L,. 858), one lot within said Indian village has heretofore been patented to any Indian living thereon said Secretary of the Interior is hereby authorized to patent to such Indian, or to his or her heirs in case of death, one additional contiguous lot wherever available. All patents issued hereunder shall be of the legal effect prescribed by said section 10 of the Act of June 25, 1910, and all lots so patented to said Indians shall be disposed of as provided for in section 1 of that Act."

    "That hereafter no land of any Indian reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase or otherwise, shall be allotted in severalty to any Indian."

    The lands within the village of Taholah authorized to be patented to individual Indians by the Act of May 28 are tribal lands. Under Section 1 of the Act of June 18 such lands cannot be allotted in severalty to individual Indians. The term "allotted in severalty" is a familiar one in Indian administration and comprehends the setting aside to an individual Indian of a tract of land from the common tribal holding accomplished usually by the issuance of a patent or other instrument of conveyance in such form as to divest the tribal title and substitute therefor an individual title. Such is the effect of
 

the patents authorized to be issued by the Act of May 28. That act declares that the patents shall be of the legal effect prescribed by the Act of June 25, 1910 (36 Stat. 858), and that all lots so patented shall be disposed of as provided in Section 1 of that act. Under the sections cited from the Act of 1910 the patented lands become the individual property of the patentees free from any tribal claim. This change from tribal to individual ownership is precisely what Congress by Section 1 of the later and controlling act of June 18 has emphatically declared shall not be done.

    It follows that the issuance of patents to individual Indians for lots in the village of Taholah is not now authorized.

                                                                                                                                                    CHARLES FAHY,

 Approved: May 22, 1935.

OSCAR L. CHAPMAN, Assistant Secretary.

M-28028                                                                                                                                     May 24, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have asked me for an opinion as to whether the act of June 6, 1912 (37 Stat. 125), providing for reclassification or reappraisement of the unallotted or otherwise unreserved lands within any Indian reservation opened to settlement and entry, where the existing classification or appraisement is, in the opinion of the Secretary of the Interior, erroneous, is applicable to opened lands of Indian reservations which were covered by entries at the time reappraisements were approved.

    The question has been raised in connection with the Fort Peck Indian Reservation, Montana. The surplus lands of that reservation were opened to homestead and desert-land entry under the provisions of the act of May 30, 1908 (35 Stat. 558), after they had been classified and appraised. The later act of June 6, 1912, supra, reads as follows:

    "That the Secretary of the Interior be, and he is hereby, authorized to cause to be classified or reclassified and appraised or reappraised in such manner as he may deem advisable, the unallotted or otherwise unreserved lands within any Indian reservation opened to settlement and entry but not classified and appraised in the manner provided for in the Act or Acts opening such reservations to settlement and entry, or where the existing classification or appraisement is, in the opinion of the Secretary of the Interior, erroneous."

    In a memorandum opinion dated May 4, 1927, the Solicitor for this Department in construing the act of June 6, 1912, said:

    "The Secretary represents the United States and the position of the latter is defined by section 12 of the act of May 30, 1908 (35 Stat. 538, 563), thus: 'it being the intention of this act that the United States shall act as trustee to dispose of said lands' etc. While as such trustee the United States declined to assume any obligation to find purchasers, yet it did assume a duty when a purchaser was found to collect the agreed consideration (appraised price at time of entry) and pay it over as directed by the act. Its obligation to the Indian became fixed when an entry was made and the act of 1912, supra, recognized this when it limited the right of reappraisement to 'unallotted and otherwise unreserved' lands. As to unentered lands if it was found the appraised price had been 'erroneously' fixed so high they could not be disposed of, the act of 1912 met the emergency.

                *                                *                                *                                *                                *

    "It is my opinion that if this Tribe ever raises the issue and is given authority to sue, it will recover an amount equal to the aggregate reductions made on entered lands through reappraisements."

    "Considering the long period that has passed since the original appraisements were made, and the continued filing of applications for reappraisement, it is the opinion of this Office

that action should be taken to bring the matter definitely to an end. It is believed that ample authority is vested in the Secretary of the Interior under the act above cited, to set a definite date after which no further applications for reappraisement will be considered. It is also believed that if the action proposed is taken, it will result in settling the condition of unrest and dissatisfaction that now prevails among many of the settlers on the reservation.

    "It is therefore recommended that no further applications for reappraisement involving Fort Peck lands be considered unless filed in the local land office on or before July 31, 1927. It is also recommended that in those cases where action has once been taken on an application for reappraisement, that no appeal or supplemental application for reappraisement be considered."

    In an opinion dated December 30, 1931, in the case of Alexander Miller (36 Op. Atty. Gen.) the Attorney General of the United States held that under the said act of 1912 the Secretary of the Interior had the lawful authority on a second reappraisement to raise the price above that of the first reappraisement. That case involved lands that had been entered, and the Attorney General said that the Secretary of the Interior had authority under the said statute to reappraise the lands if the existing appraisal was, in his opinion, erroneous; that the authority to reappraise was not exhausted by an erroneous reappraisal, but continued to exist until the issuance of patent. Numerous decisions were cited in support of that ruling.

    The words "unreserved lands" as used in the act of 1912 in connection with the expression "unallotted or otherwise unreserved lands within any Indian reservation," cannot be taken to mean "unentered lands." It is noted that in sections 3 and 14 of the act of 1908 the Secretary is authorized to reserve lands within the Fort Peck Reservation for certain specified purposes. Reservations are also made somewhat similarly in connection with the opening of other Indian reservations. See 34 Stat. 80; 34 Stat. 325, 336. Congress has been careful to make a distinction between "unappropriated" lands-that is, lands not covered or embraced in any entry, location, selection, or filing which withdraws them from the public domain-and "unreserved" lands-those not included in any kind of reservation or withdrawal.

    In my opinion lands embraced in homestead entries within the Fort Peck Reservation could properly be reappraised by the Secretary of the Interior under the provisions of the act of June 6, 1912, supra. Whether that act deprived the Indians of rights so that they may succeed in litigation or so that Congress should make appropriation to reimburse them for losses the Department is not called upon to decide.

                                                                                                                                                    CHARLES FAHY,

 Approved: May 24, 1935.
OSCAR L. CHAPMAN, Assistant Secretary.

 Memorandum for the Secretary:

    In reply to the request of the Assistant Commissioner of Indian Affairs on May 17 for comment by the Solicitor upon S. 2778, a bill to extend the criminal code of Montana over all the reservations in that State, I would advise that an adverse report should be prepared on that bill and that in such report the following points might well be included, in addition to the points raised by the Assistant Commissioner in the memorandum addressed to you.

    Objections to the bill fall into two major groups: first, the bill itself is incomplete in that it fails to take into consideration certain matters of vital importance if State control were to be extended to the reservations; and secondly, the extension of State criminal jurisdiction, the object of the bill, is for various reasons inadvisable at this time.

    On the subject of the inadequacy of the bill, it should be pointed out (1) that the State law does not cover all offenses committed on the reservations. The Institute for Government Research in its study of Law and Order on Indian Reservations of the Northwest (which study includes Montana), reported in Part 26 of the Survey of Conditions of the Indians in the United States, June 30, 1932, states (at 14140) that many Indian offenses are such as would be embraced only by municipal or township ordinances and not by State laws; and therefore the Institute recommends the use of a Federal code of minor offenses even if State law should extend to the reservations and the encouragement, where feasible, of the organization of Indian or Indian and white communities or townships which can adopt their own code. The present bill does not take this situation into consideration; it merely extends the criminal jurisdiction of the State without providing ways or means for obtain-
 

ing and administering the necessary municipal or local code.

    (2) Related to the first omission is the failure of the bill to take account of the extent to which the Indians under existing law may make and enforce local ordinances and preserve law and order by their own efforts through tribal courts or through reservation courts under the supervision of the Department. Moreover, the Indians of five of the seven reservations in Montana have accepted the Wheeler-Howard Act, and thus indicated a determination to exercise increased control over their reservation problems. But the bill contains no provision which would integrate this existing local authority with State authority or define the limits of each; and the extension of State jurisdiction over the reservations would seriously circumscribe and block any increased effort by the Indians to man age their own problems of social disorder.

    (3) In this connection it will be noted that the bill is a blanket one which would not be affected by the willingness or unwillingness of the Indians on any one reservation to be subjected to the State criminal law and administration. But the recent tendency of legislation lies in the direction of encouraging their understanding of and expression of opinion on legislation affecting their future and making such expression of opinion a determining factor in the application of the legislation. The object of this bill is a matter of the gravest concern to the Indians, particularly where they may intend to adopt Federal constitutions dealing with law and order. The matter is of practical importance, for unless the cooperation and consent of most of the Indians on a reservation is gained, the application to that reservation of State law will meet with little success.

    (4) Furthermore, the reservations differ from each other greatly in the extent of white infiltration, the accessibility to State courts, the amicability and understanding between the whites and the Indians, and the advancement of the Indians. These varying factors make the blanket application of State law to all reservations in one State exceedingly unwise and impractical. This was the chief conclusion of the investigators of law and order on the Northwest reservations (Survey at 14137 et seq.). According to this study all of the reservations, whether now susceptible to State law or not, will require extensive education and training in preparation for the application of State law (see Survey at 14140 et seq.), but this bill makes no provision for such a period or for the personnel to undertake such preparation.

    Turning to the second major class of objections, it may be said unequivocally that the question whether State criminal law should be extended to any reservation at all at this time should be answered in the negative.

    (1) Probably the most important reason why the extension of State criminal jurisdiction to Indian reservations is inadvisable at this time is the fact that it will necessarily cause interference with and limitation of Federal control not only in the law and order field but in all aspects of the Federal guardianship. The activity of State officials upon the reservation in the enforcement of another body of law will handicap the administration of a coherent Federal program and the grant of special authority to the State will divide, and therefore weaken, the responsibility for the development of the Indians.

    (2) A further reason is that the extension of State criminal law is a matter which requires the ascertainment of the relevant facts for each State and reservation-facts which are not fully available at present-and one which must be undertaken gradually in an experimental way. "Merely making Indians subject to State law administered by State courts will not solve the problem" (of law and order). Survey at 14142. It must be an educational process and most State courts do not consider themselves educational institutions. Furthermore, certain peculiar factors must be weighed. In Montana the reservations are in areas where the population is under 10 per square mile and is decreasing (see tables in Survey, at 14168, 14170). This fact may affect the efficiency of the extension of State law. Again, it appears that throughout the Northwest generally the lapses in the markedly good behavior of Indians are not of a violent nature but are due primarily to lack of healthy employment and recreational facilities and will be largely prevented by providing such employment and facilities: a job which the Department is working to accomplish. Law breaking might, on the other hand, be exaggerated and stimulated by enforcement of inappropriate laws and contact with hardened white criminals.

    (3) Moreover, the whole problem of law and order on the reservations is being studied in the Interior Department and a comprehensive program is emerging which will allow for the successful handling of each situation in the most appropriate way. The problem is being tackled from two directions-local control of minor offenses through Indian courts acting under revised regulations or constitutions under the Wheeler-Howard Act, and supervisory action and control of major matters in white men's courts, either Federal or State depending on the needs and wishes of the locality. The program is based upon all the available information and opinion on the subject and is directed toward the same ends which undoubtedly motivated the introduction of S. 2778; namely, the care and pre-
 

vention of crime and the education of the Indians in the laws and mode of life of the States in which they live. Congress should be urged, however, not to enact piecemeal legislation such as the drastic and incomplete bill proposed, but to await the submission of comprehensive proposals.

    Your letter of May 22, transmitting for approval a draft of regulations governing the leasing of lands inherited by or devised to Indians of the Five Civilized Tribes of one half or more Indian blood for oil and gas mining purposes, is returned.

    The proposed regulations do not adequately meet the various contingencies arising out of the first proviso to section 1 of the act of January 27, 1933 (47 Stat. 777), which reads:

" * * * That where the entire interest in any tract of restricted and tax exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: * * *"

    The first proviso of section 1 of the act of January 27, 1933, is without application unless the lands involved are both restricted and tax exempt and unless the entire interest therein is acquired by restricted Indians. The language immediately preceding the first proviso shows that the term "restricted Indians" was intended to embrace Indians of the Five Civilized Tribes of one half or more Indian blood. In my opinion of March 14, 1934, it was pointed out that the lands to which the first proviso of the act of 1933 applied fall into two classes, first, restricted allotments of living allottees which have been designated by them as tax exempt under the act of May 10, 1928 (45 Stat. 495), which lands were under the jurisdiction of the Secretary of the Interior and could be leased for oil and gas mining purposes only with his approval and not otherwise under section 2 of the act of May 27, 1908, supra. Second, lands inherited by or devised to full-blood Indians prior to January 27, 1933, and designated by them as tax exempt under the act of 1928, which lands were subject to the restriction that no conveyance by the full blood should be valid unless approved by the county court having jurisdiction of the settlement of the deceased allottee's estate, and which lands could be leased by the full blood for oil and gas mining purposes with the approval of the said court and without the approval of the Secretary of the Interior.

    It was further pointed out in my opinion of March 14 that the first proviso of the act of 1933 was designed to preserve the existing restrictions and not to reimpose restrictions once removed or to change the form of existing restrictions. Accordingly, where the entire interest in lands of the first
 

class is acquired by Indians of the Five Civilized Tribes of one half or more Indian blood, they take the same subject to the same restrictions which rested upon the lands in the lands of the allottee. Such lands, therefore, continue to be subject to lease for oil and gas mining purposes only with the approval of the Secretary of the Interior and not otherwise. The county court having jurisdiction of the settlement of the deceased allottee's estate has no authority to approve a conveyance or lease of such lands. The only jurisdiction which the probate courts may exercise in this class of cases is confined to conveyances and leases made by guardians of minors and incompetents and in such cases the conveyance or lease must be made under order of the proper probate court. See sections 2 and 6 of the act of May 27, 1908, supra.

    Where the entire interest in lands of the second class, that is, tax exempt lands acquired by full blood heirs or devisees prior to January 27, 1933, passes into the hands of Indians of one half or more Indian blood after that date, such Indians take the lands subject to the restriction resting upon the previous owner, namely, they cannot convey without the approval of the county court having jurisdiction of the settlement of the deceased allottee's estate. With such approval they may convey or lease, but such approval as to the interest of any full blood must be given in open court after notice, as provided by section 8 of the act of January 27, 1933.

    Some uncertainty exists as to what is meant by the provision in section 8 of the act of January 27, 1933, declaring that "no conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June of 1914." While this provision is somewhat awkwardly worded, it appears to have been the intent of Congress not only that notice should be given in accordance with the rules mentioned but that the approval by the court should be given in accordance with the procedure prescribed in such rules. By reference to the hearings on this measure (H.R. 8750) before the Subcommittee of the Committee on Indian Affairs, United States Senate, 72d Congress, 2d Session, page 6, it appears that the notice required to be given is notice upon the United States probate attorneys. Such notice is expressly provided for in Rule 10 of the rules adopted by the Oklahoma Supreme Court in June, 1914, and as said Rule 10 deals entirely with the procedure to be followed by the county court in approving conveyances by full-blood heirs, I think that Congress intended to adopt and put in force the provisions of that rule as the governing procedure with respect to all conveyances of interests inherited by full-blood heirs. This would include oil and gas leases which have been held to constitute conveyances of interests in land (United States v. Gypsy Oil Co., supra). Rule 9, dealing with oil and gas leases, does not appear to have application. It relates to leases by minors and incompetents generally, makes no reference to full blood Indians, makes no provision for leases by Indians not under the disability of minority or incompetency, and does not provide for notice to the United States probate attorneys.

    I find it necessary, in view of the foregoing, to redraft the regulations submitted by you. The redraft fixes the procedure to be followed in transactions requiring the consideration and approval of the Secretary of the Interior, but does not attempt to set out the procedure to be followed by the county courts in approving conveyances and leases by full-blood Indians. The Secretary of the Interior cannot, of course, bind such courts by any regulations he may prescribe. The probate attorneys should, however, be instructed to call the attention of the county judges in their districts to what this Department believes to be the correct procedure. Exceptions should be taken to approvals given in any other manner and appeals taken, as provided in section 8 of the act of January 27, 1933, from any adverse ruling thereon.

    The redraft of the proposed regulations is enclosed with the suggestion that, before approval, a copy be transmitted to the Five Tribes Agency for the consideration and comment particularly of Mr. Finley, Chief Supervising Probate Attorney.

    In conclusion may I take the liberty of reminding you that the situation existing with respect to lands inherited by Indians of the Five Civilized Tribes, is in such a complicated and confusing state that in many instances it is practically impossible to ascertain with any degree of certainty the exact status of the lands from the viewpoint of restrictions, taxability and departmental jurisdiction. This situation should not be permitted longer to endure and I cannot too strongly emphasize the need of obtaining clarifying legislation. The legislation sought should be in such form as definitely to fix the status of the lands without the necessity of referring to the several lengthy prior laws with their attendant conflicts and inconsistencies. I have drafted, and submit for your consideration, a short bill which I believe will accomplish the desired result.

                                                                                                                                            NATHAN R. MARGOLD,

M-28033                                                                                                                              June 4, 1935.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commission of Indian Affairs my opinion has been requested on certain questions arising out of a     contract between the Seminole Nation of Indians in Oklahoma and John B. Campbell, Esq., of Holdenville, Oklahoma.

    The contract was entered into for the purpose of providing legal services needed by the Seminole Nation in prosecuting the suits authorized to be filed by the Nation against the United States by the jurisdictional Act approved May 20, 1924 (43 Stat. 133). Section 2 of the Act provides that the suits should be instituted by petitions "verified by the Attorney or attorneys employed to prosecute such claim or claims under contract with the Seminoles approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and said contract shall be executed in their behalf by a committee chosen by them under the direction and approval of the Commissioner of Indian Affairs and the Secretary of the Interior." The contract was duly executed by a committee selected in conformity with the Act, and was approved by the Commissioner of Indian Affairs on October 16, 1925, and by the Assistant Secretary of the Interior, on October 20, 1925.

    The contract contains the provision that "no assignment of this contract or any interest therein shall be made without the consent previously obtained of the Commissioner of Indian Affairs and the Secretary of the Interior." Under the authority impliedly conferred by this provision, Mr. Campbell, on June 23, 1926, with the approval of the Commissioner of Indian Affairs and the Assistant Secretary of the Interior, assigned an undivided one-half interest in the contract to E. J. Van Court. This assignment was later released by an agreement dated August 20, 1926, which agreement, in addition to releasing the prior assignment, transferred to Van Court and to Chester I. Long of Wichita, Kansas, George E. Chamberlain and Peter Q. Nyce of Washington, D.C. an undivided 65% interest in the contract. This agreement was approved by the Commissioner and the Assistant Secretary.

    Two additional assignments have been presented for approval. By one of these, dated May 10, 1933, Campbell proposes to assign one-half of his remaining interest in the contract to one W. W. Pryor. By the other assignment, dated November 26, 1934, Campbell joined by Van Court and Pryor, proposes to transfer to Paul M. Niebell, of Washington, D.C., an unspecified, undivided interest in the contract with a provision for the substitution of Niebell, in the event of Van Court's death, as attorney of record before the Court of Claims in the suits which have been filed under the jurisdictional Act. Mr. Nyce, one of the assignees under the agreement of August 20, 1926, has not joined in either of the assignments last mentioned nor does it appear that he has assented thereto. Niebell, in presenting the assignments for approval, asks that the prior assignment to Van Court, Long, Chamberlain and Nyce, be canceled and that the original assignment made to Van Court and released by the agreement of August 20, 1926, be revived and permitted to remain in force as written and approved. In support of this request he calls attention to the fact that both Long and Chamberlain have died and alleges a complete failure on the part of Long, Chamberlain and Nyce, to perform the obligations imposed upon them by the assignment agreement.

    A further assignment to one Frank J. Boudinot appears to have been attempted by Campbell and Van Court, again without the assent of Nyce, their surviving associate attorney. This assignment is not with the record but it appears to relate to one of the suits filed under the jurisdictional Act, styled Seminole Nation v. United States, L-89, and to provide for an equal division of the entire fee in that case between Van Court and associates and Boudinot and his associates. Van Court has recently died.

    In view of this somewhat muddled situation the Commissioner of Indian Affairs inquires as to whether the entire contract did not come to an end with the deaths of Long and Chamberlain or, in any event, upon the death of Van Court. If not, the Commissioner inquires further, whether there is any authority for cancellation of the assignment dated August 20, 1926, to Van Court, Long, Chamberlain and Nyce, or to approve the new assignments with the acquiescence of Mr. Nyce.

    While for reasons which will hereafter appear, a decision on the questions raised by the Commissioner is not essential to a determination of the action to be taken in this case, I do not think that the death of either Chamberlain, Long or Van Court would have terminated the contract. In virtue of the assignment, they, together, with Nyce, became jointly employed with Campbell. The relation then existing between the several attorneys, while not a general partnership, may be appropriately styled a limited partnership. See Consaul v. Cummings, 222 U.S. 262. As neither Long, Chamberlain nor Nyce were parties to the original con-
 

tract, it is evident that the Seminoles did not rely or depend upon any peculiar skill or talent they may have possessed. This being so, their deaths or the death of any one of them, leaving surviving members capable of carrying on the unfinished business, would not end the contract. Clifton v. Clark, 36 So. 251, 66 L.R.A. 821; McPherson v. Bacon's Executor, 203 S.W. 744. The death of one or more of the partners would dissolve the partnership and this, together with the nonassent of Nyce, one of the surviving members, would prevent approval of the new assignments to Pryor, Niebell, and Boudinot. (See 47 C.J. Sec. 569, page 1020; Clifton v. Clark, supra.)

    The contract, however, must be held to have terminated on other grounds. The period of the contract as set forth therein is:

    "It is further agreed that this contract shall continue for a period of five years, beginning with the date of its approval by the Secretary of the Interior; provided, fully determined and settled by the Court of last resort and an appropriation not have then been made to satisfy any judgment that may be recovered, if any, the said contract shall remain in force until such appropriation and final settlement."

    In an opinion dated June 27, 1899, Mr. Vandevanter, then Assistant Attorney General for the Interior Department and now Associate Justice of the United States Supreme Court, held that Section 2103 of the Revised Statutes was applicable to the Five Civilized Tribes. (14 Op. Asst. Atty. Gen. Interior Dept. 372.) That opinion, so far as I am advised, has not since been questioned. The jurisdictional Act of 1924 contains nothing calling for a different conclusion. Consistently with Section 2103, the jurisdictional Act provides for approval of the attorney's contract by the Commissioner of Indian Affairs and the Secretary of the Interior and in addition prescribes the method of execution of the contract on behalf of the Seminoles. There is no indication of any intent to displace the provisions of Section 2103 and as repeals by implication are not favored, the requirements of both enactments where, as here, there is no inconsistency, must be met.

    It follows from what has been said that the Seminole contract with Mr. Campbell came to an end, in any event, at the end of the five-year period, or in 1930. Unfortunately, this leaves the Seminoles without authorizing legal representation in the cases now pending before the Court of Claims. Immediate action should therefore be taken looking to the execution and approval of a new contract. In view of the long period of time which has elapsed since the selection of the original committee and in order to avoid any question of the legality of the new contract on the ground that that committee is now without authority to act, I suggest that the new contract be executed by a new committee chosen by the Seminoles in conformity with the directions contained in the Act of 1924.

                                                                                                                                            NATHAN R. MARGOLD,

June 18, 1935.

Memorandum for the Assistant Commissioner of Indian Affairs:

    As requested in your memorandum of June 13, I have reviewed the attached file relating to conflicting claims to lands within the Eastern Cherokee Indian Reservation in North Carolina with a view to determining what further action should be taken.

    It appears that a dispute of some years standing exists as to the location of the boundary line of the Eastern Cherokee Reservation with the result that a considerable number of non-Indians are occupying and claiming title to lands alleged to belong to
 

the Indians. One suit designed to quiet the title of the Indians to a portion of a tract designated as Tract No. 103 was instituted by the United States and the Eastern Band of Cherokee Indians against Ralph Parker (No. 194 Law in the United States District Court for the Western District of North Carolina) and on July 31, 1934, the case was decided adversely to the contention of the Government and the Indians. The Attorney General having declined to take an appeal (see his letter of October 8, 1934), the suggestion is made in a memorandum attached to yours of the 13th that an attorney from my office be detailed to prosecute the appeal. Aside from the fact that no member of my staff would have authority to appear in this case as an attorney of record for the United States without the sanction of the Attorney General, the suggested action is not possible because the time for appeal expired on October 29, 1934, three months after the entry of judgment (Section 230, Title 28, U.S.C.). The judgment does bear a notation signed by the attorneys for the plaintiffs and defendants that the plaintiffs objected and excepted thereto; that they prayed an appeal; that notice of appeal was given in open court and that further notice is waived. But there is nothing to indicate that the court allowed the appeal and none of the steps necessary to perfect an appeal to the Circuit Court of Appeals have been taken. The notation referred to amounted to nothing more than notice of an intention to take an appeal in the future. This is not sufficient to stop the running of the statute or to extend the time. As said by the Circuit Court of Appeals, Fifth Circuit, in Vaughan v. American Insurance Co. (15 Fed. (2d) 526):

    "It is contended by plaintiff in error that he gave notice of appeal in open court at the time the judgment was entered. This is not substantiated by the record, but it is immaterial. It may be conceded that a writ of error may be applied for by motion in open court, but merely giving notice of the intention to take such action in future amounts to nothing. The running of the statute is not stayed, unless there is some action by the court that may be construed as an allowance of the writ. Certainly that was not the case here, as the orders entered clearly indicate that it was contemplated that the writ of error would be subsequently applied for within the delay granted.

    "Extended discussion of the law is unnecessary, as it is well settled that statutes limiting the time in which appeals and writs of error may be brought are mandatory and jurisdictional. The statute begins to run from the date of the judgment, and the time cannot be extended by waiver, by agreement of the parties, nor by order of the court."

    The record discloses that lands claimed by the Indians to the value of more than $30,000 are now in the possession of whites or negroes or are being trespassed upon by them. The adverse decision in the Parker case doubtless will be regarded as lending support to some of these claims and may encourage further encroachments upon the Indian rights. In this situation it appears that the Indians have gone on record as favoring the employment of private counsel, the compensation of counsel to be paid from tribal funds, for the purpose of prosecuting the necessary suits to establish the Indian title and remove the trespassers. While I am in thorough sympathy with the desire of the Indians that these cases be vigorously prosecuted and taken to the appellate courts wherever necessary, the employment of private counsel for that purpose does not appear to be feasible. In the first place, there is no statute expressly authorizing the payment of private counsel from tribal funds and the act of May 18, 1916 (39 Stat. 158), prohibits the use of tribal funds for that purpose without such express authorization. See also Comptroller General's decisions of October 20, 1932, A-45091; January 26, 1931, A-34858; and July 1, 1929, A-27779. In the second place, the legal title to the lands has been conveyed to and now rests in the United States (act of June 7, 1924, 43 Stat. 376), hence these conflicting claims may be satisfactorily and finally determined only in suits instituted by the United States. The progress and conduct of litigation waged on behalf of the United States, whether for the direct interest of the Government or of its Indian wards, has been placed by Congress under the exclusive control and jurisdiction of the Attorney General. See Title 5, U.S.C., Sec. 306; United States v. San Jacinto Tin Co. (125 U.S. 273); Conner v. Cornell (32 Fed. (2d) 581) ; Pueblo of Picuris in State of New Mexico v. Abeyta (50 Fed. (2d) 12); Mars v. McDougul (40 Fed. (2d) 247). Private counsel even though employed by the Indians cannot participate in such litigation without the assent of the Attorney General (Pueblo of Picuris v. Abeyta, supra) and then only through a special appointment by the Attorney General (Title 5, U.S.C., Sec. 310).

    In view of the foregoing and the unsatisfactory local situation which appears to exist, and as it is extremely unlikely that the Attorney General would sanction the participation of private counsel in the suits necessary to be instituted for the protection
 

of the Eastern Cherokee Indians, I suggest that the entire situation be laid before the Attorney General with a strong recommendation that an attorney from his office be detailed to investigate these conflicting land title claims and to conduct such litigation as may be necessary to assure a final adjudication of the controversy.

July 17, 1935.

Memorandum to the Commissioner of Indian Affairs.

    The policy of the Indian Office not to approve further allotments on the Fort Peck Reservation, embodied in the proposed letter to Superintendent Hunter submitted to this office, raises various legal questions which should be called to your attention before this letter leaves the Department.

    In the first place, in this situation the Wheeler-Howard Act is entirely immaterial, since the reservation voted to exclude itself from the provisions of that act. The first sentence of section 4 of the act (Pub. No. 147, 74th. Cong.) amending the Wheeler-Howard Act reads as follows:

    "Sec. 4. All laws, general and special, and all treaty provisions affecting any Indian reservation which has voted or may vote to exclude itself from the application of the Act of June 18, 1934 (48 Stat. 984), shall be deemed to have been continuously effective as to such reservation, notwithstanding the passage of said Act of June 18, 1934. * * *"

    The situation must then be viewed as it existed in February 1934, when the problem was first presented to the Indian Office. The legal questions may be grouped under two primary inquiries: (1) Can the Secretary of the Interior refuse to allow further selections of allotments on the Fort Peck Reservation? (2) Can the Secretary refuse to approve all further allotment selections even though such selections were previously authorized? The answers to both involve analysis of the Fort Peck allotment laws.

    Under the act of May 30, 1908 (35 Stat. 558), the Secretary was authorized and directed to cause a survey of the Fort Peck Reservation. Section 2 of the act provided that upon the completion of the survey "the Commissioner of Indian Affairs shall cause allotments of the same to be made under the provisions of the allotment laws of the United States to all Indians belonging and having tribal rights on said reservation * * *". There followed specifications of the quantity of grazing, timber and irrigable lands permitted for one allotment. The surplus land was to be opened to disposal under the homestead and mineral laws, etc. The Indian Office early decided that only Indians in being up to a certain date were privileged to receive allotments under this act. (See Indian Office File 74675-1909 Fort Peck File No. 313.) The appropriation act of August 1, 1914 (38 Stat. 593), contains a provision of even greater interest here:

"* * * Provided, That the Secretary of the Interior is hereby authorized to make allotments in accordance with the provisions of the Act of May 30. 1908, (Thirty fifth Statutes, page 558, the children on the Fort Peck Reservation who have not received, but who are entitled to, allotments as long as any of the surplus lands within said reservation remain undisposed of, such allotments to be made under such rules and regulations as the Secretary of the Interior may prescribe."

best interest of the Indians. While there are cases to the effect that "an officer 'authorized' is an officer commanded in a matter of public concern" (see Chase, Jr. v. United States, 256 U.S. 1, 8), each situation must be weighed separately according to the probable purpose and intent of Congress.

    In addition to the lack of directory words in the act of 1914 which, when compared to related acts, may be considered intentional, it may be forcefully argued that for sound reasons of policy it was the intent of Congress to leave a matter of this kind in the discretion of the Secretary. The act was to continue in effect for an indefinite number of years, like the act of 1887, and not like the act of 1908 which contemplated immediate allotments. Within that period changes in circumstances might make it disadvantageous to the Indian wards for the Secretary to continue allotments in any or all cases. The Secretary as guardian, would naturally be vested with authority to allot or refrain from allotting so long as he was acting reasonably and not arbitrarily. The act expressly gives the Secretary power to prescribe regulations for the making of allotments. It is familiar law that allotment acts should be construed in view of their purpose to promote the welfare of the Indian wards. Levindale Zinc Mining Co. v. Coleman (241 U.S. 432, 437). Under provisions of the Red Lake Allotment Act almost identical to those of the 1914 act in question here, the Secretary had refused to allow selections for more than thirty years. When the matter came before the Supreme Court, the court said the question of the legality of the Secretary's action was not properly raised, but did not indicate that it saw anything illegal in the Secretary's refusal. Morrison v. Work (266 U.S. 481). Moreover, the 1914 act does not attempt to bestow any right to select allotments upon particular designated persons as do allotment acts such as the Fort Belknap Act (March 3, 1921, 41 Stat. 1355) which provides that inclusion in a tribal roll shall be conclusive evidence of the right to an allotment. Nor does it provide for allotment pro rata, as does the Fort Belknap Act, which in effect places an equitable interest in all the Indians counted for the pro rata distribution. The reference in the 1914 act to children "entitled to" allotments apparently refers simply to the test set up in the 1908 act to determine what Indians are privileged to receive allotments-namely, "belonging to" the reservation and having "tribal rights" thereon. It does not place an absolute right to selection in any child.

    These considerations indicate not only that the 1914 act is merely permissive, but that the discretion placed in the Secretary extends to the refusal of all further selecting of allotments whenever such refusal may reasonably be found to be more to the economic advantage of the Indians than the allotment of lands in, severalty. The inquiry then becomes one of fact and policy for the Indian Office to settle.

    The question arises whether the act of February 14, 1920 (41 Stat. 408, 421) alters this interpretation. This act reads as follows:

    "The Indians of the Ft. Peck Reservation in Montana entitled to allotments under existing laws may select lands classified as coal and receive patents therefor in accordance with the Act of May 30, 1908 (35th Statutes at Large, page 558), with a reservation, however, to the Ft. Peck Indians of the coal deposits therein and of the right to prospect for, mine, and remove the same."

    It is clear, then, that the purpose of this act was to enlarge the privilege of allotment simply in one way-the character of land available for allotment. The language of the act perfectly fits this purpose. It would be an unwarranted elaboration of this language to say that the words "The Indians . . . may select lands classified as coal" place a vested right to an allotment of coal lands in the Indians whether or not such right is possessed in other types of allotment, and remove the discretion of the
 

Secretary to refuse allotments in coal areas although he may refuse allotments elsewhere. Moreover, there is no support for the further argument that, assuming an intent to create vested rights in this act, it is evidence that such was the intent of the 1914 act. The 1920 act is concerned with but a minor detail in the allotment statutory scheme and shows no purpose to alter that scheme as a whole.
 

    In short, the 1920 act places a privilege in the Indians who are entitled to select allotments to make such selections upon coal lands, but does not affect the discretion of the Secretary to close the door to further allotments of all sorts.

    (2) Even more difficult to answer authoritatively is the question whether the Secretary can refuse to approve allotment selections already made and which had previously been authorized, not on the ground that the selection was incorrect or the applicant unqualified, but solely on the ground that the policy concerning allotments has been changed. It should be noted that all the allotment selections in dispute in this Fort Peck case were selected and recorded previously to notice from the Indian Office of the new policy of disapproving further allotments. According to this file that notice was first given in the office letter to Superintendent Hunter of April 10, 1934, after 13 timber selections and 320 grazing selections had already been made. Furthermore, by office letter of November 13, 1934, the Indian Office refused approval to two allotment selections excluded because of conflicts from a schedule of selections approved in January 1933, although on May 15, 1933, the Indian Office had approved two selections in lieu of selections previously excluded from approval because of conflict.

    However, these selections do not present the important characteristics possessed by the Fort Belknap selections which led this office to decide that the right to approval and patenting was equitably vested in the owners of unapproved allotment selections on the Fort Belknap Reservation. Solicitor's Opinion, M-28086, July 17, 1935. In that case the allotment selections had been made as long as ten years previously and had failed to receive approval through the neglect of the public officers to attend to correction of the clerical errors and to the submission of the selections for approval within a reasonable time. The doctrine was there applied that where a person fails to receive a right through the neglect of public officers, equity will treat as done that which ought to have been done. Moreover, the owners of selections in that case were in a strong equitable position since as enrolled members they were conclusively entitled to a pro rata share of the reservation. Accordingly, the Secretary had little if any discretion to refuse approval. However, as has been pointed out, the Fort Peck children stand in no such equitable position, but as ordinary applicants for allotment.

    In the Solicitor's Opinion before mentioned, it was pointed out (at 15, 16) that the owners of allotment selections have certain rights and interests which will be protected against outside interests and errors by Government agents. United States v. Chase (245 U.S. 89); Hy Ya Tse Mil Kin v. Smith (194 U.S. 401); Smith v. Bonifer (166 Fed: 846, C.C.A. 9th 1909) ; Conway v. United States (149 Fed. 261, C.C. Neb. 1907). But they ordinarily have no vested right to approval or to a patent. In other words, they cannot prevent Congress from annulling their selection (Lemieux v. United States, 15 Fed. (2d) 518, 521 (C.C.A. 8th 1926), nor force the Secretary to grant approval. West v. Hitchcock (205 U.S. 80).

    Decidedly, the conservation of Indian land in tribal ownership when as imperative as in the Ft. Peck situation, if it can be accomplished, would appear to be sufficient justification for the exercise of the discretion of the Secretary to refuse approval to allotment selections. Precedent is not available for guidance here since cases dealing with the discretion of the Secretary to refuse approval to allotments have dealt only with his power as applied to particular applications for allotment and resulting from certain defects in the application. However, in one of these cases, West v. Hitchcock (205 U.S. 80), the stewardship of the Secretary over tribal property was recognized as a source of power to refuse allotments injurious to the tribe. The power would seem at least as great when applied on a large scale as in a single instance. Accordingly, I conclude that the Secretary is privileged to disapprove the Ft. Peck selections upon the grounds of policy.

    While I have concluded that allotments to Indians on the Ft. Peck reservation may be halted by the Secretary upon reasonable considerations of policy, one legal factor of vital significance to any such considerations should be called to your attention. Under the act of 1908, surplus lands are subject to disposal to white men. The act of 1914 does not prevent this disposal; it simply authorizes the giving of shares in this surplus to Indian children so long as the surplus lasts. Therefore, land not allotted to Indian children may be taken up by white men unless some permanent provision is made by the Indian Office for preventing such disposal.

55 I.D. 295

M-28086                                                                                                                                       July 17, 1935.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question of whether, under the first section of the Wheeler-Howard Act (act of June 18, 1934 (48 Stat. 984), 25 unpatented allotment selections on the Fort Belknap reservation can now be patented.

    The allotments in question comprise five allotment selections which were included in the schedule of 1171 Fort Belknap allotments approved October 3, 1925, and 20 allotment selections originally included in that schedule but withheld from approval. These 25 allotments were selected under the act of March 3, 1921 (41 Stat. 1355), which directed the Secretary of the Interior to prepare a final roll of the Indians of the Fort Belknap Reservation and to allot the lands on the reservation pro rata among the Indians enrolled. This work was completed except for the 25 allotments before described and most of the patents were issued under date of May 24, 1927. It is clear that the failure to complete these allotments was due to no fault of the Indian allottees The records of the Indian Office indicate no reason why four of the five approved selections were not patented and that the fifth was detained because a supplemental plat was necessary for its proper description. They further indicate that the 20 unapproved selections were withheld also because of errors in description and because of conflicts with other selections, making a number of supplemental plats necessary. It will be noted that the failure of consummation due to errors in description occurred after as well as before approval, and that in no case did approval require passing upon the applicant's qualifications or other considerations of a discretionary character.

    The first section of the Wheeler-Howard Act of June 18, 1934, reads as follows:

    "That hereafter no land of any Indian reservation. created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian."

    The word "allot" and its derivatives, "allottee" and "allotments," have been used in various statutes, decisions, and by the Department of the Interior in both the broader sense referring to the completed process evidenced by trust patents, and in the narrower and primary sense meaning the parcelling out and assigning of so many acres of land to each Indian. However, these words have been regularly employed in the narrower sense in the numerous allotment statutes, in careful distinction to the patenting of the lands "allotted." Thus, the standard act, the General Allotment Act of 1887, in section 1 authorizes the President "to allot the lands * * * in severalty":

    "That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows: * * * "

to the local land office * * * to have the same allotted * * * in quantities and manner as provided in this act for Indians residing upon reservations." Not until section 5 is there reference to patents, and the language indicates that in the mind of the legislature the patent was a second process entered upon after allotment was completed.

    "That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, * * *"

    It will be noted that the extent of application of the first section of the Wheeler-Howard Act is identical in fact, and almost so in language, to the first section of the General Allotment Act. The intention of the 73rd Congress to forbid allotment in the field under section 1 of the 1887 act as a preliminary step in the conveyance of title is apparent on the face of the act and is a matter of general understanding. For this reason, the word "allotted" seems peculiarly appropriately restricted to its earlier and primary connotations. However, there are numerous particular acts as those authorizing continuing allotment in the field from surplus lands on various reservations as Indians entitled thereto are born, which are clearly aimed at by the Wheeler-Howard Act. The narrower interpretation would, therefore, fill the first section with a great deal of meaning.

    Many cases interpreting the word "allot" in treaties and statutes providing for allotments distinguish between "allotting" and "patenting" and speak of allotments as completed before the patents are issued. Cf. United States v. Miamies (12 L. D. 168). Because of the variety of allotment laws, a case under one is not necessarily applicable to another but may still be illustrative of the significance given to the word "allot." In Millet v. Bilby (110 Okla. 241, 237 Pac. 859 (1925), the court decided that the word "allot" in the original Creek agreement was not word of grant but of apportionment of that to which the party was entitled. Several cases consider patentees merely evidence of the completed and vested allotment. Wood v. Gleason (258 U.S. 574, 596), or simply "a paper or writing, improperly called a patent" desi