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agreement of the nation itself or by the superior power of the republic it is taken from it. Neither the authority nor the power of the United States to license its citizens to trade in the Creek Nation, with or without the consent of that tribe, is in issue in this case, because the complainants have no such licenses. The plenary power and lawful authority of the government of the United States by license, by treaty, or by act of Congress to take from the Creek Nation every vestige of its original or acquired governmental authority and power may be admitted, and for the purposes of this decision are here conceded. The fact remains nevertheless that every original attribute of the government of the Creek Nation still exists intact which has not been destroyed or limited by act of Congress or by the contracts of the Creek tribe itself.

    In the case of Maxey v. Wright (3 Ind. T. 243. Affirmed 105 Fed. 1003), the court declared:

    " * * * in the absence of express contradictory provisions by treaty, or by statute of the United States, the Nation (and not a citizen) is to declare who shall come within the boundaries of its occupancy, and under what conditions." (at page 36.)

    "So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent." (1 Op. Atty. Gen. 465, 466).

                                                                                                                                              NATHAN R. MARGOLD,

  Attention: Assistant Commissioner Zimmerman.

    The attached letter to Superintendent Dady relative to damages for injury to land on the Soboba Reservation is returned for further consideration. The position taken by Superintendent Dady and approved in the proposed letter, that injury to tribal land creates a claim for damages on the part of the occupant of such land exclusively, is in conflict with the principle embodied in a long line of decisions, cited and discussed at pages 60 to 64 of the opinion on "Powers of Indian Tribes" (M-27781), approved October 25, 1934. All the decided cases take the view that the occupant of tribal land has no vendible interest therein but merely a usufructuary right, and that control over the land remains in the tribe save as such control has been limited by certain statutes affecting the sale and leasing of tribal land.

    Incidentally, the position taken in the attached letter is entirely inconsistent with the position taken by Superintendent Dady and concurred in by the Indian Office in the Palm Springs situation where the claim of the individual to rental accruing from tribal land has been denied. The claim of an individual to damages for a permanent injury to tribal land is much weaker, in my opinion, than a claim for rentals. The collection of rentals does not affect the interest that other members of the tribe may subsequently hold in the land affected. Permanent injury to the land does affect the interest that may be held in the future by members of the tribe other than the present occupant.

    I think that it is within the competency of the tribe to consent, if it so chooses, to the payment of part or all of the offered damages to the present occupant of the land. In the absence of such consent I do not believe that the Department has authority to grant a waiver of tribal claims for dam-
 

ages, which is what the attached letter purports to do.

                                                                                                                                        FREDERIC L. KIRGIS,

    In accordance with the memorandum signed by you on July 29, 1936, a survey has been made by the Indian Office and by this office of the extent of discrimination against Indians in the exercise of the franchise. The results of this study are contained in the attached "Analysis of Indian Voting Rights in the Various States". The summary in this analysis shows that voting rights are denied to Indians in seven States, namely, Arizona, Colorado, Idaho, New Mexico, North Carolina, Utah and Washington.

    In Idaho, New Mexico and Washington the State constitutions contain specific provisions denying the vote to "Indians not taxed." These provisions are, in my opinion, violative of the guarantees contained in the 15th Amendment. It is my recommendation that test cases be instituted in cooperation with the Indians concerned and with such aid as the Department of Justice may feel free to offer, in one or more of these three States for the purpose of challenging the constitutionality of these provisions.

    In the State of Colorado it appears that Indians are denied voting rights, under an opinion of the State Attorney General, on the assumption that they are not citizens. A communication from this Department to the State Attorney General indicating the inaccuracy of this assumption might help in vindicating Indian franchise rights. It is my recommendation that such a communication be sent.

    Similarly in the State of Utah, Indians residing on reservations are denied voting rights, under an opinion of the State Attorney General, on the assumption that they are not residents of Utah. The inaccuracy of this assumption likewise might properly be brought to the attention of the appropriate State officers.

    Discrimination in the States of Arizona and North Carolina is somewhat more subtle, and for the present I withhold any specific recommendations on procedures to be followed in these two States, awaiting the outcome of our efforts in the other five discriminating States.

    While proceeding with the foregoing steps, I would suggest that a request for a formal Solicitor's opinion on the question of the constitutionality of provisions denying voting rights to Indians should be submitted by the Commissioner. A Solicitor's opinion prepared in answer to such request may prove useful in the course of litigation.

                                                                                                                                            NATHAN R. MARGOLD,

    Superintendent Fryer of the Navajo Agency reports that reservation Indians in Arizona are denied the franchise under a provision of the State constitution (Article VII, section 2), which denies the franchise to "persons under guardianship." There is transmitted a transcript of the case of Porter v. Hall, 271 Pac. 411, holding that Pima Indians subject to Federal jurisdiction are not entitled to vote.

    The denial of the franchise to reservation Indians is confirmed by letters from Superintendent Gensler of the Colorado River Agency, Superintendent Donner of the Fort Apache Agency, and Superintendent Robinson of the Pima Agency.

    Superintendent Hutton of the Hopi Agency reports: "One of the judges informed me personally a few days ago that as far as they could find out that the Indians could vote if they so desired." No evidence is presented for this conclusion.

    Superintendent Farrow of the Paiute Agency, Cedar City, Utah, reports that Indians are largely prevented from voting in Arizona by a constitutional requirement that electors must be able to read the constitution of the State of Arizona.

    Superintendent Gensler of the Colorado River Agency reports that the Indians of California are accorded full voting rights. A similar report is made by Superintendent Nash of the Sacramento Agency.

    Superintendent Dady reports that Indians in southern California have never been denied the right of voting in State and local elections and transmits an opinion of the State Attorney General, dated November 18, 1936, upholding the rights of Indians to vote, together with similar opinions from various district attorneys.
 

    The Attorney General in a letter to Superintendent Wattson of the Consolidated Ute Agency, dated November 24, 1936. reports, "It is our opinion that until Congress enfranchises the Indian, he will not have the right to vote." The opinion assumes that Indians are not citizens. In a further letter, dated January 28, 1937, the Attorney General of the State expresses his willingness to consider any brief or memorandum of authorities that may be submitted by the Indian Office.

    Superintendent Scott of the Seminole Agency reports that Indians in Florida are entitled to vote on the same basis as whites. He points out that the Indians do not in practice pay poll taxes since they "do not consider the voting privileges of sufficient importance to induce them to pay this poll tax." Superintendent Scott transmits an opinion of the State Attorney General, dated March 13, 1934, upholding the voting rights of Florida Indians.

    Superintendent Gross of the Fort Hall Agency reports that the franchise is denied to Indians of Idaho under section 3, article VI of the Idaho constitution which provides: "No person is permitted to vote, serve as a juror, or hold any civil office who is under guardianship, * * * nor Indians not taxed, who have not severed their tribal relations and adopted the habits of civilization, either vote, serve as jurors, or hold any civil office." Superintendent Gross reports that steps are being taken to amend the State constitution in this respect. Attention is called to a letter signed by Acting Secretary of the Interior, Charles West, under date of February 27, 1936, to Hon. C. Ben Ross, Governor of Idaho, File Reference: Miscl. 67810-35 FHD. Opinions of the State Attorney General and the County Attorney at Blackfoot are transmitted. The State Attorney General holds that any disqualification of Indians would be in violation of the Fifteenth Amendment. The County Attorney refuses to abide by this ruling.

    Superintendent McNeilly of the Western Shoshone Agency reports: "In the State of Idaho, however, while we have had a few Indians voting in past years, the State constitution forbids the right of franchise to the Indians who live on the reservation and who have not severed their tribal relation. I would recommend, therefore, that action be taken, looking toward an amendment to the constitution of the State of Idaho which would permit Indians living on the reservation and still under their tribal laws and maintaining their tribal interests, the right to vote on the same basis as the other citizens of the State."

    Superintendent Wilson of the Coeur d'Alene Indian Agency reports that the Coeur d'Alene, Kootenai, and Nez Perce Indians are not denied the right to vote and that the question of whether Indians are ineligible by reason of being under guardianship has apparently never been raised.

    Superintendent Nelson of the Sac & Fox Sanatorium reports that there is no discrimination against voters in Iowa.

    Superintendent Bruce of the Potawatomie Agency reports that Indians of Kansas vote on the same terms as whites.

     Superintendent Christy of the Tomah Indian School reports that Indians are accorded full franchise rights in Michigan.
 
 

    Senior Clerk J. V. King of the Consolidated Chippewa Agency reports that no cases have been discovered in which Indians have been denied thefranchise.

    A similar report is made by Superintendent Balmer of the Pipestone Indian School, and by Superintendent Bitney of the Red Lake Agency. Superintendent Bitney adds the qualification that in elections on bond issues and similar referenda the Indians of the Red Lake Reservation, not being taxpayers, are not eligible to vote.

    Superintendent Rector of the Choctaw Agency reports: "So far as I can ascertain there is no discrimination against Indians in the matter of voting although there are only one or two who keep their poll taxes paid and comply with the law in regard to voting. The Indians in Mississippi can, of course, be prevented from voting by insisting on educational qualifications; the same as is done in the case of Negroes, but an Indian who can read and write, pays his poll taxes and is registered is entitled to vote."
 

    Superintendent Yellowtail of the Crow Agency reports that Montana Indians have full voting rights.

    A similar report is made by Superintendent Shotwell of the Flathead Agency, and by Superintendent Woolridge of the Rocky Boy's Agency.

    Complete recognition of Indian voting rights is reported by Superintendent Parker of the Winnebago Agency. A letter from the Attorney General of the State, dated November 20, 1936, states that "such Indians as are entitled to claim citizenship of the United States would be entitled to vote within this State, provided they have the additional qualifications as to age and residence. There are certain Federal laws relative to the United States citizenship of Indians and when these laws have been complied with, it is our understanding that Indians are entitled to vote in Nebraska. State ex rel. Crawford v. Nebraska, 37 Neb. 299, 55 N.W. 1086." A further communication from Assistant Attorney General Stubbs, dated November 27, 1936, cites the additional case of State v. Frazier, 28 Neb. 438, 44 N.W. 471.

    Superintendent Bruce of the Potawatomi Agency, Mayetta, Kansas, confirms the report that Indians in Nebraska have full voting rights.

    Superintendent Bowler of Carson Agency reports: "So far as we have been able to discover there is no discrimination whatever either in law or in practice against Indians within this jurisdiction in the matter of exercising their elective
franchise."

    "There are no discriminatory laws denying the franchise to Indians. In Nevada the Attorney General has repeatedly ruled that Nevada Indians have full rights to vote in any election."

    Superintendent McNeilly of the Western Shoshone Agency confirms the report that Nevada Indians are permitted to vote without discrimination.

    Superintendent Fryer of the Navajo Agency reports that the Navajos in New Mexico are not permitted to vote in any elections. He further reports that the two trial courts in the State have rendered conflicting opinions on the constitutionality of the provision of Article VIII, section 1 of the State constitution denying the franchise to "Indians not taxed."

    Superintendent Stover of the Jicarilla Agency writes: "I find no indication of the Indians of this jurisdiction being refused the elective franchise and of any desire on their part to use it." Superintendent Stover transmits a communication from the Attorney General of New Mexico, dated November 14, 1936, calling attention to the provisions of the State constitution and State election law denying the franchise to "Indians not taxed."

    A similar communication is reported by Superintendent M&ray of the Mescalero Agency.

    The special attorney for the Pueblo Indians, Mr. Brophy, states: "Pueblo Indians residing upon their respective reservations who are wards of the United States and who do not pay real property taxes are denied the right of elective franchise in New Mexico, even though such persons otherwise are qualified to vote." Mr. Brophy cites the relevant provisions of the New Mexico constitution and election law and refers to a statement by Merriam in the volume on Indian Administration suggesting that this discrimination is in violation of the Federal Constitution. Mr. Brophy further points out that there is no case, Attorney General's opinion, or opinion of a county attorney covering this question. His letter points out that Indians pay sales taxes in New Mexico on purchases made off the reservation.

    Superintendent Harrison of the New York Agency reports that there is no discrimination against Indian voters in the State of New York.

    Superintendent Foght reports that while there is no legislative discrimination against Indians, in practice Indians are excluded from the franchise under color of a provision of the State election law declaring: "A person desiring to register must be able to read and write any section of the Constitution in the English language and must show to the satisfaction of the registrar his ability to read and write any such section when he applies for registration and before he is entitled to be registered." Commenting upon this provision Superintendent Foght states: "We have had Indian graduates of Carlisle, Haskell and other schools in instances much better educated than the registrar himself, turned down because they did not read or write to his satisfaction."
 

    Superintendent Lippert of the Standing Rock Agency, Superintendent Beyer, Superintendent Gray of the Fort Totten Agency and Superintendent Balmer of the Turtle Mountain Agency, all report that there is no discrimination against Indians in North Dakota with respect to voting rights.

    Superintendent Ellis of the Osage Agency reports that Indian voting rights in Oklahoma are fully recognized. A letter to this effect by the Osage Tribal Attorney is transmitted.

    A similar report is made by Superintendent McGowan of the Kiowa Agency and Assistant Superintendent McMillan of the Five Civilized Tribes Agency.

    Superintendent Elliott of the Warm Springs Agency reports that the right of Indians to vote is not questioned.

    This is confirmed in a communication from Superintendent Crawford of the Klamath Agency.

    Superintendent Hyde of the Crow Creek Agency reports that no discriminatory laws denying the franchise to Indians prevail in his jurisdiction.

    This is confirmed by reports from Superintendent Roberts of Pine Ridge Agency and Superintendent Dickens of Cheyenne River Agency.

    The Attorney General of Utah in a letter transmitted to Superintendent Wright of the Uintah & Ouray Agency, dated January 23, 1937, holds that Indians residing on an Indian reservation within the State are not residents of Utah and cannot vote, but that Indians residing away from a reservation are entitled to the franchise. An earlier communication of the Attorney General of Utah, dated July 8, 1935, to Superintendent Cross of the Fort Hall Agency, holds, after examining the relevant authorities, that Indians have the right to vote in Utah. This opinion does not consider the question of residence.

    Superintendent Farrow of the Paiute Agency states that he has been told that there are no discriminative rules against Indians, but transmits a memorandum from the legal authorities of Iron County to the effect that Indians are not citizens.

    Superintendent Meyer of the Coleville Agency submits an opinion of the State Attorney General, dated June 15, 1916, holding that a provision of the State constitution denying the franchise to "Indians not taxed" is in conflict with the Fifteenth Amendment of the United States Constitution and is therefore invalid unless construed to refer only to noncitizens. There is transmitted a further opinion of the State Attorney General, dated April 1, 1936, stating: "We are of the opinion, taking into consideration the Fifteenth Amendment and the act of .June 2, 1924, that it is doubtful whether the provisions of Article VI of the State constitution with respect to Indians are now in effect. But whether or not these provisions are in effect we are further of the opinion that the payment of sales taxes and gasoline tax is a sufficient qualification on the part of an Indian offering to vote to comply with the provisions of Article VI as amended. If an Indian can show that he has paid such taxes to the State, and possesses the other qualifications required in Article VI as amended, including registration if that is required, such Indian voter should be by no means disqualified as an elector."

    Superintendent Meyer himself reports: "In so far as I know none of the Indians of the Coleville and Spokane Reservations who could meet the literary test have been denied the right to vote."

    Superintendent Johnson of the Yakima Agency reports that he has been "unable to find any case in which the Yakima Indians have been denied the privilege of voting. As a general rule very few of our Indians vote. This is due primarily to the belief, especially among the older people, that voting may in some way subject them to taxation." Superintendent Johnson transmits a copy of the opinion of the State Attorney General, rendered June 15, 1916, which is referred to above.

    Superintendent Nicholson of the Taholah Agency reports that Indians have been accorded full voting rights for many years except that officials of Jefferson County in March 1936 denied the franchise to certain Indians of the Quinaielt Reservation. An extensive correspondence is transmitted including a communication from the Attorney General, dated February 26, 1936, and an opinion dated April 1, 1936, upholding the right of Indians to vote upon proof of payment of sales or gasoline taxes. There is also transmitted a copy of a letter by the Prosecuting Attorney of Jefferson County, dated August 18, 1936, refusing to follow the opinion of the State Attorney General.
 

    It is reported by Superintendent Cavill of the Great Lakes Agency that no discrimination exists against Indians in the exercise of the franchise. A similar report is made by Superintendent Fredenberg of the Kashena Agency. Superintendent Christy of the Tomah Indian School reports that there is no discrimination against Indians in Wisconsin with respect to voting rights. He transmits the following communication from the Office of the Attorney General of Wisconsin: "Your letter of November 10 to the Attorney General has been handed to me for reply and in answer thereto will say that there is no discrimination against Indians in the exercise of their elective franchise in this State either by legislation or by practice in the various counties. All of them who are eligible for several years past have been diligently urged to vote by candidates in all counties. (Sgd.) W. J. Kershaw."

    The reports indicate entire absence of discrimination in the following 16 States:

California, Florida, Iowa, Kansas, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, North Dakota, Oklahoma, Oregon, South Dakota, Wisconsin.

Arizona, Colorado, Idaho, New Mexico, North Carolina, Utah, Washington.

    In the State of Arizona the franchise is denied Indians on the ground that they are "under guardianship" within the meaning of the provision of the State constitution denying the right to vote to Persons under guardianship.

    In the State of Colorado Indians are denied voting rights, under an opinion of the State Attorney General, on the theory that they are not citizens.

    In the State of Utah Indians residing on reservations are denied voting rights, under an opinion of the State Attorney General, on the ground that they are not residents of Utah.

    In the State of North Carolina there is general discrimination against Indian voters by voting officials who make use of a State constitutional provision restricting the franchise to persons who can show "to the satisfaction of the registrar" their ability to read and write any section of the constitution.

    I am transmitting without signature the attached draft of Indian mining regulations approved by the Assistant Commissioner of Indian Affairs and the Director of the Geological Survey. The following points, in my opinion, require some revision:

    1. The provision in section 4 that "the Superintendent shall execute leases on behalf of incompetent and minor allottees" overlooks the fact that a great many tribal constitutions, approved by this Department, provide that the tribal council may appoint guardians for minors and mental incompetents. Where action is taken under this power and the ordinances or resolutions of the tribal council are ratified by the Department, it would appear that the superintendent should no longer execute leases on behalf of incompetents and minor allottees for whom guardians have been properly designated but that such guardians should act in this capacity. It is understood, of course, that the superintendent will have the same power to approve or reject a lease made by a guardian as he has with respect to a lease made by an adult Indian. The superintendent, however, should not have power to lease a minor's allotment over the protest of the minor`s guardian. Such power cannot be justified by the terms of the statute (act of March 3, 1909; 35 Stat. 783), which provides that the allottee shall make the lease, nor can it be justified by the theory that the superintendent acts as a guardian for the child if another guardian has been duly appointed.

    Aside from this objection to the substance of the present regulation, it may be noted that the use of the term "incompetent" in this section is unfortunate. If it is intended to cover Indians who are non compos mentis, that phrase should be used. If on the other hand, it is intended to cover Indians who have not received fee patents or certificates of competency the section could not be supported under existing law, since that law declares that leases shall be made by allottees and at the
 

time of enactment of the statute the great majority of allottees affected by the law had not received patents in fee or certificates of competency. The right of leasing which the statute confers upon allottees cannot, therefore, be restricted to allottees who have received certificates of competency ot patents in fee.

    2. Provisions made in section 5 and following sections with respect to allotted lands fail to take account of the fact that many tribal constitutions approved by the Department provide for the transfer of lands from an "allotment" status to an "assignment" status. It is believed, therefore, that the present regulations should be expanded to include mineral leases made by individual assignees on assigned land. In this connection consideration should be given to such constitutional provisions as the following, taken from the Constitution of the Rosebud Sioux Tribe, approved December 20, 1935: "A member receiving an 'exchange assignment' shall receive the right to lease such assigned lands or interests under the same terms as governing the leasing of allotments." (Article 8, section 8)

    A number of constitutions provide that in leasing exchange assignments preference should be given to Indian cooperative associations or to individual members of the tribe. Where such provisions exist the rule established in section 3 of the proposed regulations, that leases will be offered in every instance to "the highest responsible bidder," will require modification as a matter of law. It is suggested that this provision may require qualification in other cases as well if it is considered that the policy of granting preference to Indian cooperative associations and to individual Indians should be carried out in the leasing of allotments as well as in the leasing of assignments.

    3. The provision in section 8 of the regulations that leases may be made over the objection of heirs holding a minority interest raises serious legal questions. Related questions in connection with grazing and agricultural leases have been considered in this office. It is therefore suggested that any instructions issued under section 8 should be considered in this office.

    4. In view of the policy established by the constitutions of several organized tribes that Indian cooperatives and individuals shall have preference in the issuance of leases, it is suggested that section 12 of the proposed regulations should be modified to provide for proper exceptions in such cases.

    5. Sections 25 and 26 of the proposed regulations contemplate that leases may be affected by Federal and State authorities, but fail to note that leases may also be affected by tribal authorities. Various tribal constitutions provide (a) for the regulation and protection of .natural resources on the reservation, (b) for the regulation of trade and commerce on the reservation, (c) for the imposition of license fees on non-Indians doing business within the reservation, and (d) for the regulation of the use and disposition of property on the reservation. Lessees will presumably be subject to tribal ordinances in these fields regardless of what the departmental regulations say on the subject, but for the sake of accuracy and in order to give fair notice to lessees sections 25 and 26 should be modified so as to refer to powers which may be exercised by the governing bodies of the organized tribes in this field.

    It will be noted that nearly all of the foregoing criticisms relate to organized tribes. It would be possible to approve the present regulations, subject to changes suggested in section 4, if they were limited to tribes not organized under the act of June 18, 1934. If, however, it is thought that a single set of regulations should apply both to organized and to unorganized tribes, changes should be made in these regulations along the lines above noted.

                                                                                                                                                        F. S. COHEN,

    The revised "regulations governing the leasing of restricted allotted Indian lands for mining purposes" submitted by your office on June 10 were passed by this office without objection and signed by Assistant Secretary Chapman on August 5. There are however, a number of points in connection with these regulations which, while not serious enough to justify disapproval of the regulations, should be carefully considered in your office. If you decide that all or any of these criticisms are well taken, you may wish to submit amendments to the regulations at this time so that corrections may be made in the regulations before they are mimeographed and distributed.

    1. Section 4 of the regulations refers to minor and "incompetent" Indians. The word "incompetent" has been used in various senses and if, as I believe, the word is here used in the sense of Indians non compos mentis, I would suggest that the
 

term should be clarified by adding in parenthesis that legal phrase or some simpler phrase such as "by reason of mental incapacity".

    2. Section 4-in providing that "the Superintendent shall execute leases on behalf of incompetent and minor allottees" apparently overlooks the fact that a great many tribal constitutions, approved by this Department, provide that the tribal council may appoint guardians for minors and mental incompetents. Where action is taken under this power and the ordinances or resolutions of the tribal council are ratified by the Department, it would appear that the Superintendent should no longer execute leases on behalf of incompetents and minor allottees for whom guardians have been properly designated but that such guardians should act in this capacity. It is understood, of course, that the Superintendent will have the same power to approve or reject a lease made by a guardian as he has with respect to a lease made by an adult Indian. The Superintendent, however, should not have power to lease a minor's allotment over the protest of the minor's guardian.

    3. Provisions made in section 5 and following sections with respect to allotted lands do not cover the leasing of "assignments". I suggest that either in the present regulations or in a supplement thereto which should receive early consideration, some statement should be included as to the manner of handling mineral leases of assigned lands. This is something about which Indians have a normal curiosity and it will be of assistance in your endeavor to bring about exchanges of allotted and heirship lands for "exchange assignments" if there are specific regulations covering the execution of mineral leases on such assigned lands. It will be noted that most constitutions provide that in leasing exchange assignments preference should be given to Indian cooperative associations or individual Indians. If this same policy is to be applied to allotted lands, the provision in section 3 of the regulations that leases will be offered to "the highest responsible bidder" will require modification. On the other hand, you may desire as a matter of policy to make a distinction in this respect between allotted and assigned lands.

    4. If such a policy of encouraging Indian cooperatives in tribal use of reservation resources is adopted, you may wish to qualify section 12 of the proposed regulations establishing fixed limits on the amount of land which any single lessee may hold, so as to permit the tribe as a whole or some associations set up for a specific purpose, to manage larger areas of land than those specified.

    5. Sections 25 and 26 of the regulations contemplate that leases may be affected by regulations of Federal and State authorities but fail to note that leases may also be affected by regulatory measures taken by tribal authorities. Various tribal constitutions provide (a) for regulation and protection of natural resources on the reservation, (b) for the regulation of trade and commerce on the reservation, (c) for the imposition of license fees on non-Indians doing business within the reservation, and (d) for the regulation of use and disposition of property on the reservation. In some cases these powers are subject to departmental review, in other cases they are not so subject. While the failure of these regulations to mention such powers will not affect tribal rights in the matter, it does seem that the lessee who is being warned of State and Federal police power should also be warned of tribal police power.

                                                                                                                                            NATHAN R. MARGOLD,

    At your suggestion I have given some consideration to the question whether restricted Indian land in heirship status may be sold to Indian tribes or to individual Indians by the Secretary of the Interior.

    The statute governing sales of restricted heirship lands by the Secretary of the Interior (U.S.C., Tit. 25, Sec. 372), reads as follows:

    "SEC. 372. Ascertainment of heirs of deceased allottees; settlement of estates; sale of lands; deposit of Indian moneys.

    "When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent, he may, in his discretion, cause such lands to be
 
 

sold: Provided, That if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor. All sales of lands allotted to Indians authorized by any other Act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of 10 per centum of the purchase price at the time of the sale. Should the purchaser fail to comply with the terms of sale prescribed by the Secretary of the Interior, the amount so paid shall be forfeited; in case the balance of the purchase price is to be paid on such deferred payments, all payments made, together with all interest paid on such deferred installments, shall be so forfeited for failure to comply with the terms of the sale. All forfeitures shall inure to the benefit of the allottee or his heirs. Upon payment of the purchase price in full the Secretary of the Interior shall cause to be issued to the purchaser patent in fee for such land: Provided, That the proceeds of the sale of inherited lands shall be paid to such heir or heirs as may be competent and held in trust subject to use and expenditure during the trust period for such heir or heirs as may be incompetent as their respective interests shall appear: * * *."

    "That the approval of the will and the death of the testator shall not operate to terminate the trust or restricted period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit."

    The words of the statute are clear. The statute authorizes the Secretary of the Interior to sell decedent's estates for the benefit of the heirs. It does not require the consent of the heirs themselves or any number of them to validate the transaction. The sale is to be upon such terms as the Secretary may fix except in such particulars expressly fixed by the statute as the requirement of a deposit of 10 percent of the purchase price at the time of the sale. There is no statutory requirement that the sale be at auction or that the land be sold to the highest bidder. There is no statutory limitation of the period during which payments may be extended. There is no statutory prohibition against granting preference to Indian tribes, to interested heirs, or to other Indians who may be desirous of purchasing the land in question. All these matters the statute leaves to the discretion of the Secretary of the Interior.

    It is entirely proper that this discretion should be exercised in accordance with the public policy that Indian lands shall, so far as possible, be preserved in Indian ownership. That. policy was administratively established in Order No. 420 of the Secretary of the Interior dated August 14, 1933, which prohibited all sales of restricted Indian lands unless exceptional circumstances were shown. The policy was given congressional sanction in the act of June 18, 1934. One of the purposes specified in the title of that act is "to conserve and develop Indian lands and resources." Section 1 of the act prohibited further allotments. Section 2 extended indefinitely existing trust periods and periods of restriction upon alienation. Sections 4 and 5 of the act prohibited sales of Indian land except to Indian tribes or to the United States for the benefit of Indian tribes or individuals. In view of this established public policy it would be entirely permissible for the Secretary of the Interior, acting under the authority of United States Code, title 25, sections 372 and 373, to provide by appropriate regulations for the sale of heirship lands to Indian tribes or to the United States in trust for Indian tribes or individuals, on reservations where the act of June 18, 1934, is in force, and on reservations where that act is not in force, to provide for sales of heirship lands directly to Indian tribes or to individual Indians. In making such sales it would be a useless formality to ask for bids from non-Indians if it has been determined that the land is not to be sold to non-Indians.

    There is, to be sure, an implication in the statute that the sale by the Secretary shall be a bona fide sale and not a gift. Therefore a transaction involving a purely nominal consideration would be invalid. If. however, the consideration bears a reason able relation to the current or prospective income value of the property to the heirs and if reasonable care is taken to secure for the heirs the highest
 

selling price which can be fairly obtained within the limited market in which sales are permitted, I can see no valid basis of objection to the transaction.

    In fixing the fair selling price of heirship lands, it would be proper to use the method of arbitration instead of relying upon bids or formal land appraisals to fix this price. The method of arbitration affords protection to the buyer and the seller, and the fiduciary relation of the Secretary extends equally to both parties to the transaction.

    It will be noted that section 372 of United States Code, title 25, requires that upon completion of the payment of the purchase price a patent in fee shall issue to the purchaser. Does this requirement make impossible sales to individual Indians, to Indian tribes, or to the Secretary of the interior in trust for such tribes or individuals?

    So far as direct sales to Indian tribes are concerned, there is nothing to prevent the issuance of a patent in fee to an Indian tribe. The issuance of patents to an Indian tribe is provided for by the following statutes: Act of January 12, 1891 (26 Stat. 712), providing for patents to Mission Bands; treaty with Cherokees, December 29, 1835 (7 Stat. 478), granting land to Cherokee Nation.

    After issuance of such patent, however, an organized tribe might, under section 5 of the act of June 18, 1934, surrender legal title to the land, if it so chose, to the United States, retaining equitable ownership of the land. A tribe not within the provisions of that act could not surrender such legal title.

    With respect to the sale of land to individual Indians, the requirement of section 372, that a fee patent be issued to the purchaser of the land upon the payment of the purchase price in full, raises serious questions.

    In the first place, it may be asked whether on reservations not subject to the act of June 18, 1934, a fee patent must be issued if the purchaser is an Indian who, in the judgment of the Secretary of the Interior, should be protected against loss of land by means of a trust patent or restrictions on alienation. I am forced to answer this question in the affirmative since the language of the statute is clear and there is no room for considerations of policy in construction. The same question arises in the case of sale of land to an Indian cooperative group. Under the controlling statute a fee patent for such land must be issued to the group, when payments for the land have been fully completed.

    In those cases where land is sold to an individual Indian or cooperative or to a tribe not under the act of June 18, 1934, the issuance of a fee patent will raise the question of taxation. It is well settled that land thus acquired by individual Indians would be taxable, and it is possible that the same rule would apply to cooperatives and tribes. (See Solicitor's Opinion of December 13, 1934 (M. 27810), question 10).

    It should be noted, however, that the question of taxation does not arise until a fee patent has been issued, that a fee patent cannot issue until the last installment of the purchase price has been paid, and that there is nothing to prevent the Secretary from agreeing to terms of the sale which postpone the final installment to a distant date. Meanwhile legislation may be sought to permit tribes purchasing land in this manner to receive a trust patent exempt from taxation.

    The necessity for issuance of a fee patent which arises when heirship land is sold by the Secretary of the Interior does not arise where the conveyance of land is made by all the interested heirs. Such conveyance, made on a restricted deed form, conveys only the same interest as is held by the heirs.

    The question of issuing fee patents to Indian purchasers of land does not arise on reservations subject to the act of June 18, 1934, since on such reservations direct sales to individual Indians are prohibited. A related question, however, arises with respect to sales of land to the United States in trust for a tribe or individual Indian, under the provisions of section 5 of the said act, which authorizes the Secretary of the Interior

"to acquire through purchase, relinquishment, gift exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians."

    "Title to any lands or rights acquired pursuant to this act shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."

provisions of section 372. If the latter view is taken one of the principal objects of section 5 of the act of June 18, 1934, would be defeated. If the former view is taken a legal absurdity is presented. In the face of this dilemma it appears to be a reasonable view that the requirement of section 372, that a patent in fee be issued to the purchaser, is inapplicable where the United States is itself the purchaser, and that in this case section 5 of the act of June 18, 1934, supersedes and amends the relevant provisions of section 372. This view is in accord with the familiar rule that a limiting statute does not run against the sovereign.

    It is my opinion, therefore, that the Secretary of the Interior, on reservations subject to the act of June 18, 1934, may acquire heirship land on behalf of individual Indians or Indian tribes, on the same terms as a private individual might acquire such lands under section 372, and that title to such lands is to be held by the United States in trust for the Indian or Indian tribe for which the land is purchased.

    In accordance with the foregoing analysis you are advised that existing departmental regulations and orders affecting the sale of heirship lands may be amended to provide for the following transactions, under existing law:

    1. On all reservations heirship lands may be sold by the Secretary of the Interior to an Indian tribe. Such sale may be made with or without the consent of the interested heirs. It is necessary that reasonable compensation be paid by the tribe for the land thus sold. Such reasonable compensation may be based upon the actual income-producing prospects and record of the land, due consideration being given to the expenses of leasing created by heirship status in so far as these expenses would be deducted from the sums paid to the lessors. Except for the requirement that 10 percent of the purchase price be paid in advance, the terms of payment are within the discretion of the Secretary of the Interior.

    2. On reservations within the act of June 18, 1934, sales of heirship land may be made to the United States in trust for the tribe or for individual Indians. With respect to the terms and manner of sale and the basis of valuation, the comments noted in the preceding paragraph appeal equally applicable.

    3. On reservations not within the act of June 18, 1934, heirship lands may be sold directly to individual Indians or to an Indian cooperative or tribe. It is within the discretion of the Secretary of the Interior to make such sales with or without the consent of the heirs, without calling for bids or after bids have been called for. Patents in fee must issue to the purchaser upon final completion of payments for the land, unless all the heirs join in making a conveyance of the trust title. If bids are called for it would be proper to limit the bidders either to Indians or to Indians of a particular tribe or to Indians interested in the particular estate or to any other reasonably defined class of Indians, provided that in any case a fair price, in the light of all circumstances, is obtained for the land that is sold. With respect to the terms and manner of sale, and the basis of valuation, the comments noted in the first paragraph of this summary appear equally applicable.

                                                                                                                                              NATHAN R. MARGOLD,

 Memorandum to Mr. Zimmerman, Assistant Commissioner of Indian Affairs:

    Attached are two cases concerning the purchase of lands from restricted Indians, Cora Wood and Mabel Merrick Hamilton, L-A75228-36. In each case, contracts were entered into for the purchase of land for a stated sum, this sum being much below the appraised value of the land. It is fairly clear from the correspondence in each case that the amount stated in the contract was intended to be just large enough to pay off all encumbrances. On examination of the title in each case, it was found that the encumbrances exceeded the purchase price. Therefore I pointed out in the Hamilton case that a new contract should be secured that would permit the payments of a sum sufficient to cover these encumbrances. I required, however, that the matter be presented to the Comptroller General with a full statement of the facts with a request for a decision as to the right of the Secretary to make payment on the basis of the new contract. Solicitor's Opinion M. 29051, April 30, 1937. Letters submitting the cases to the Acting Comptroller General have been prepared, but you have requested me informally to reconsider the problem and, if possible, to permit the payment on the basis of the new contract without submitting the matter to the Acting Comptroller General.

    I have re-examined the facts in each case and the rulings of the Comptroller General, but I remain of the opinion that payment should be made only after the case has been presented to the General Ac-
 

counting Office. The Comptroller General has repeatedly held that contracts once entered into cannot be altered by the contracting officer to the detriment of the United States. 5 C. G. 605 and 781. Payment in the attacked cases on the basis of the law contracts is in effect an alteration of an existing contract to the detriment of the United States. I regard the fact that these contracts are entered into without competitive bidding as being an immaterial distinction between the cases now before us and those in which the Comptroller General has ruled that contracts cannot be altered by officers of the United States. As I construe the opinions of the Comptroller General, they apply to every sort of contract entered into by the United States.

    The Comptroller General has held, however, that, subject to a determination of the matter by him (27 C.D. 109, C.G. 605, 11 C.G. 605), contracts may be altered by supplemental agreements if it is clear that the original contract was entered into on the basis of a mutual mistake (27 C.D. 109, 5 C.G. 605). Cf. decision of the Comptroller General, A. 88033 dated August 7, 1937. The attached cases, particularly the Hamilton case, appear to fall within the latter rule, for from all the correspondence it was made to appear before the contracts were entered into that the amount of the contract was intended by both parties to be enough only to meet the encumbrances against the land.

    I have redrafted the letters to the Acting Comptroller General in order to set out more clearly therein the matters which I believe bring the present cases within the rule of the decisions cited in the last paragraph. I have also emphasized the fact that the vendors are restricted Indians, that the land purchases will have to be abandoned if the contracts cannot be altered, and that the land in that event may be lost to the Indians entirely. Considering all these facts, I am of the opinion that the Acting Comptroller General will react favorably. I repeat, however, that the questions presented are primarily for his decision and should be presented to him.

                                                                                                                                              NATHAN R. MARGOLD,

 Memorandum for Assistant Secretary Chapman:

    At the suggestion of the Assistant Commissioner of Indian Affairs made at the request of W. G. Stigler, Choctaw National Attorney, William A. Durant, Principal Chief of the Choctaw Nation and Douglas H. Johnston, Governor of the Chickasaw Nation, you have asked me to give further consideration to a question decided in a memorandum opinion dated May 15 by the Acting Solicitor.

    The opinion of May 15 held that the title to certain lands included within a railroad right of way grant made through lands of the Seminole Nation to the Choctaw, Oklahoma and Gulf Railway Company under the act of February 18, 1888, 25 Stat. 35, had by operation of section 14 of the act of April 26, 1906, 34 Stat. 137, 142, passed to the owners of the legal subdivisions, subject, of course, to the Railway Company's existing easement, and that there is now no authority for the sale on behalf of the Seminole Nation of the lands included in the right of way grant.

    Lands formerly belonging to the Choctaw and Chickasaw Nations are traversed by similar right of way grants and it is the contention of the above mentioned representatives of the two Nations that title to the right of way lands remains in the Nations until the use thereof for railroad purposes has been abandoned and that until such abandonment the Secretary of the Interior has authority under section 14 of the act of 1906 to sell the lands on behalf of the Nations to the railroad companies owning the easements.

    In support of their contentions, the representatives of the Choctaw and Chickasaw Nations have failed to present any arguments not fully considered by the Acting Solicitor in the Seminole case. Moreover, a reexamination of the question discloses that his conclusions are supported by the language of section 14 of the act of 1906, the legislative history of that enactment, and the regulations prescribed by the Department under section 14, all of which evince a plain purpose on the part of Congress to divest the tribal title either by sale to the railroad company within a limited time, or, in the absence of such sale, by the transfer of title to the legal subdivision owners.

    While no legal basis appears to exist for disturbing the conclusions of the Acting Solicitor, your attention is called to the fact that on July 28, you approved the recommendation of the Commissioner of Indian Affairs that certain right of way lands to which the Choctaw and Chickasaw Nations claimed title, largely on the ground that section 14 of the act of 1906 is unconstitutional and void, be offered for sale where it appeared that prospective buyers had submitted or were interested in submitting bids with full knowledge of the condition of title to the lands. In passing the Commissioner's recommendation along to you in that case, the Acting Solicitor, without concurring in the Commissioner's recommendation, stated:

    "The record shows, however, that certain parties, regardless of the controversy over the

title, are willing to purchase whatever interests the Choctaw and Chickasaw Nations have in these lands. The superintendent, by letter dated April 9, 1937, reports that the bidder on tracts Nos. 115, 116 and 120 is willing to complete the purchase at the prices offered by him and by telegram dated July 7 the superintendent advised that the Phillips Petroleum Company has requested that tract No. 117 be offered for sale with a statement that it will submit a bid regardless of the condition of title. In this situation and as the representatives of the two Nations appear to be convinced that their claim of title is well founded, it may be that the Department should not deprive them of the opportunity to dispose of their claimed interests where, as appears to be the case here, this may be done for a substantial consideration. Administratively, therefore, you may conclude that the sales of the tracts in question should be authorized. Should you conclude to do this I would suggest that full information concerning the condition of title be given all bidders; that such title as the Nations may have been conveyed by quitclaim deed; and that all bidders be informed that no assurance of Federal assistance in the defense of their title against attack by adverse claimants can be given. It is further suggested that a better price perhaps could be obtained if the sales be had with the understanding that the consideration paid will be impounded pending determination of title, subject to refund, should the courts finally determine that the Choctaw and Chickasaw Nations have no right, title or interest in the tracts sold."

                                                                                                                        FREDERICK BERNAYS WIENER,

 Memorandum to the Commissioner of Indian Affairs:

    The Indian Office letter to the Superintendent of the Uintah and Ouray Agency authorizing exploratory leases of tribal and allotted land to be made on forms transmitted therewith and according to existing regulations is returned for the following reason.

    The prescribed form for the lease of tribal lands has been drafted by your office for execution by the Superintendent. However, section 3 of Article VIII of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation provides that tribal lands may be leased by the Tribal Business Committee with the approval of the Secretary of the Interior. Under this provision the lease of the tribal lands should be made and signed by the Tribal Business Committee. The lease form accompanying the letter to the Superintendent should therefore be corrected to provide that the lease is being made by the Tribal Business Committee under authority of section 3 of Article VIII of the Constitution of the Ute Indian Tribe and to provide for the signature of the Committee.

    The fact that such a provision as is in the Ute Constitution requires that the governing body of the tribe actually execute the lease rather than authorizing the Superintendent to make the lease, has been brought to your attention in connection with similar instances in which lease forms and information are being transmitted to Superintendents. You are referred in particular to my memoranda of May 28, 1936, in connection with leasing of tribal land on the Fort Hall Reservation, and of July 12, 1937, in connection with leasing of tribal land on the Fort Belknap Reservation.

 Memorandum to the Commissioner of Indian Affairs:

    I am returning for revision of the third paragraph your letter to Superintendent Boyd of the Fort Belknap Agency concerning the sale of a log house on tribal land to a white woman, to be purchased with the restricted funds of her children. The third paragraph impliedly authorizes the sale if the consent of the tribal council is obtained.

    Normally a building is part of the realty upon which it is placed. In the Indian Office letter of February 27, 1937, to Mr. George Eastman of the Flandreau Santee Sioux Tribe, it was stated that buildings which are permanently attached to the soil are part of the real estate and therefore could not be sold in view of the prohibition in the Reorganization Act against the sale of tribal land. However, since the building appears to be a small log house, it may possibly not come within this rule, as it may be removable without injury to itself or to the land and not have been intended to be a perma-
 

nent fixture on the land. It has been held that if personal property is attached to the land but remains removable without injury and without loss in value of the fixture, and if it was not intended to be a permanent improvement upon the land, it may be considered personal property and disposed of as such (In re Lexington Motors Company of New York, 294 Fed. 233; Rzeppa v. Seymour, 230 Mich. 439, 203 N.W. 62; Curtiss v. Hoyt, 19 Conn. 154). Whether this building can be sold would, therefore, depend upon further facts being submitted by the Superintendent as to its removability and permanence. If the house is determined to be saleable but it is not to be removed, it would be preferable in order to avoid disputes as to title, for the house not to be sold but rather to be leased or assigned together with such tribal land as the family wishes to use. Such an arrangement can of course be made if the house is found to be part of the realty.

    It is stated that there is some question as to the ownership of the building. If the building was placed on the land by a third person with his own funds, and if the building is of a temporary and removable character, it could be sold, but if it is desired to remove it, the consent of the tribal council should be obtained since the land belongs to the tribe, unless the house were placed on the land with the understanding of the person so placing it and the tribe that it was removable at any time. If the house is of such a nature that it has become part of the realty, it would in law be the property of the tribe and could not be sold, as explained above. The person placing the house on the tribal land would in such a case have only an interest enforceable in equity in the value of the house and could not convey title (Rzeppa v. Seymour, supra.)

                                                                                                                                                NATHAN R. MARGOLD,

 Memorandum for Mr. Herrick, Assistant to the Commissioner of Indian Affairs:

    The attached letter to the Superintendent for the Five Civilized Tribes concerning certain property owned by John Bearpaw, a Cherokee Indian, is returned.

    The statement in the second paragraph of the letter to the effect that the Stilwell, Oklahoma property is now subject to taxation is in error. The record submitted shows that this property was purchased with restricted or trust funds and that it was conveyed to Bearpaw prior to June 20, 1936, by a deed containing restrictions against alienation. Lands of this character were withdrawn from State taxation as a Federal instrumentality by the act of June 20, 1936 (49 Stat. 1542), where purchased prior to the date of that enactment. This tax exemption is not withdrawn by the amendment of May 19, 1937 (50 Stat. 188). Under that amendment the Stilwell property is subject to selection by Mr. Bearpaw as a homestead and such homestead is declared to be an instrumentality of the Federal Government and, as such, nontaxable until otherwise provided by Congress.

    No good reason is seen for withholding approval of the deed which Mr. Bearpaw has executed conveying the Stilwell property to W. R. Rhoads for a consideration of $450. Mr. Bearpaw desires to dispose of this property and use the proceeds in purchasing land outside the city limits. Inasmuch as the land purchased with the proceeds from sale of the Stilwell property may be made exempt from taxation by conveyance to the United States in trust for Mr. Bearpaw as authorized by the act of June 26, 1936 (49 Stat. 1967), or by conveyance to Mr. Bearpaw with restrictions against both alienation and taxation as authorized by the act of June 30, 1932 (47 Stat. 474). I suggest that the deed be approved so that Mr. Bearpaw may proceed without further delay in the purchase ot the property upon which he wishes to establish his home. He should be advised that he may choose either of the two types of conveyances just mentioned and the difference between them should be explained, namely, that where the United States is named as grantee in trust the land cannot be alienated with out further legislation by Congress, whereas, under the other type of conveyance the land may be alienated with the approval of the Secretary of the Interior.

                                                                                                                                              NATHAN R. MARGOLD,

 Memorandum to the Assistant Commissioner of Indian Affairs:

    The attached letter to the Superintendent of the Pine Ridge Reservation submitted for the approval of the Assistant Secretary of the Interior
 

would authorize the superintendent to approve tribal grazing leases without submitting them to the Department for approval. Such authorization would be a departure from existing law and regulations requiring the approval of the Secretary of the Interior for tribal leases and is not, in my Opinion, permissible.

    The basic law authorizing these leases is section 397 of title 25 which permits grazing leases to be made by the tribal council, "subject to the approval of the Secretary of the Interior." The departmental leasing regulations of May 9, 1929, the modification of these regulations by the Department on November 6, 1930, and the Grazing Regulations of 1935, all recognize the necessity of Secretarial approval of tribal leases.

    the constitution of the Oglala Sioux Tribe, in providing for Secretarial approval of tribal leases, was intended to represent existing law since under section 16 of the Reorganization Act the powers to be contained in the constitution were those possessed by the tribe under existing law. It is to be noted that the Oglala Sioux Tribe has not adopted a charter. A charter usually provides that tribal leases may be approved by the Secretary "or his duly authorized representative" and such a provision is justified under section 17 of the Reorganization Act which would permit the inclusion in a charter of a provision permitting a tribe to make leases without any supervision.

    The power of approval placed in a designated administrative officer by statute is a discretionary or "judicial" function and cannot be delegated, as can administrative or ministerial functions, without statutory authorization. As one instance, this principle is recognized in the cases which sanction the exercise by the Assistant Secretary of the Interior of the power of approval vested in the Secretary solely because of statutory authorization. Turner v. Seep, 167 Fed. 646; Robertson v. United States, 285 Fed. 911.

    Since the land sought to be leased in this case consists of numerous small and scattered tracts it might be possible to provide for their use for grazing purposes by permits subject only to the approval of the superintendent and of the Regional Forester under the 1935 Grazing Regulations. Such a distinction between a lease and a permit has generally been considered justifiable in view of the fact that a permit is revocable at any time in the discretion of the Commissioner but a lease grants an interest in the land for a term of years.

    The use of permits in this connection is complicated by the fact that the Oglala constitution provides that grazing permits may be issued by the tribal council with the approval of the Secretary of the Interior. However, since the constitution is intended, as previously stated, to reflect existing law on such disposition of tribal land, I would have no objection if the tribal council wished to interpret this provision concerning grazing permits as authorizing the issuance of grazing permits with the approval of the superintendent, as authorized by the regulations of the Secretary of the Interior.

                                                                                                                                           NATHAN R. MARGOLD,

 Memorandum to the Commissioner of Indian Affairs:

    The Hopi Tribal Council on October 5 passed a resolution accepting and adopting sections 1 and, 2 of Chapter 3 on Domestic Relations, of the Law and Order Regulations approved by the Secretary of the Interior on November 27, 1935. This resolution was approved by the Superintendent on October 6. The Indian Office has prepared for the, approval of the Assistant Secretary a letter to the chairman of the Hopi Tribal Council stating that this ordinance was adopted pursuant to Article VI, section 1 (g) of the Hopi Constitution, became elective on approval of the Superintendent, and that no reason is found requiring its rescission by the Secretary.

    In the consideration of this resolution in the Indian Office the provisions of Article III of the Hopi Constitution seem to have been overlooked. In section 2 (b) of this article the regulation of family relations is reserved to the self-governing villages which compose the Hopi Tribe. The reservation to the villages of the control of local matters is a cardinal feature of the Hopi Constitution. Mr. Oliver LaFarge who drafted this constitution with the Indians, in reporting at various times to the Commissioner of Indian Affairs, explained that Article III was intended to protect the entity of the individual villages and to reserve to them the powers which they then had. The Hopi tribal organization was to be a union of self-governing villages to provide a mechanism for handling certain inter-village affairs. Accordingly, the enumerated powers of the Tribal Council were to be as close to the legal minimum as possible. However, the intent of the framers of the constitution need not be relied upon as Article III is a clear reservation of the control of family relations to the villages, even though Article VI, section 1 (g), would permit
 

the Tribal Council to make general ordinances to protect tribal peace and welfare.

    Accordingly, I believe this resolution of the Hopi Tribal Council must be rescinded as not in conformity with the constitution. The resolution would accept as applicable to the Hopi Tribe the provision in the Law and Order Regulations that the Tribal Council shall have authority to determine whether Indian custom marriage and divorce shall be recognized in the future as lawful and what shall constitute such marriage and divorce. Such determination and definition would be a principal function of the regulation of family relations. It is suggested that the Tribal Council be advised of this constitutional impediment to their action in this field, but that they be invited to inform this office of any special problems on the reservation which they intended to cope with in this resolution, so that we may be able to advise them further in this connection. It appears that no information was submitted with this resolution which would explain its adoption.

    It is also suggested that in the letter to the Tribal Council to be signed by the Assistant Secretary rescinding this ordinance it be stated that the definition of the term Tribal Council in section 19 of Chapter I of the Law and Order Regulations for the Navajo and Hopi jurisdictions (which, incidentally, supplant the general law and order regulations referred to in the Tribal Council's resolution) shall be construed to include the governing body of the village wherever in the Hopi Constitution the village rather than the entire tribe possesses tribal powers involved in the Law and Order Regulations. A formal amendment of these regulations is not considered necessary as they may properly be construed in the light of the provisions of the constitution, and to the extent that the villages both before and after the adoption of the constitution had and have self-governing powers they may be considered "tribes" within the meaning of the term in section 19, Chapter 1, of the regulations.

                                                                                                                                            NATHAN R. MARGOLD,

 Memorandum to Mr. Daiker, Assistant to the Commissioner of Indian Affairs:

    In your memorandum of November 9 you state that the credit agent for the Pacific Northwest has suggested that the Flathead Tribe take from its borrowers an agreement to execute crop mortgages each year the loan is in effect, and you ask whether such an agreement would be enforceable and proper. The reason for the use of such an agreement is stated to be that the laws of Montana provide that in the case of crop mortgages the lien of the mortgage shall attach only to crops next maturing after the execution of the mortgage.

    An agreement to execute crop mortgages would be valid between the parties thereto, but even if filed would not be a protection against creditors and subsequent purchasers. However, such an agreement would be useful in that, if made part of the loan agreement between the borrower and the tribe, the failure to execute the crop mortgages as agreed would constitute a default in the carrying out of the loan agreement and the tribe could thereupon resort to any of the remedies provided for in the loan agreement.

    If this procedure is adopted, it is believed advisable that it be followed in connection with mortgages of crops on both restricted and unrestricted land for the following reasons: While crops growing on restricted land may be considered restricted property which cannot be sold or mortgaged with out the consent of the Government (United States v. First National Bank, 282 Fed. 330-D.C. Wash. 1922), it is probable that State law would be used in questions of the interpretation and enforcement of crop mortgages either in Federal or State courts in view of the absence of any Federal or tribal law on the content and effect of mortgages.

                                                                                                                                            NATHAN R. MARGOLD,

 Memorandum for the Commissioner of Indian Affairs:

    The attached proposed letter to the Examiner of Inheritance at Phoenix, Arizona, authorizing him to reopen a case already heard by the tribal court of the Mescalero Tribe is returned for further consideration. The proposed letter fails to specify whether the Examiner of Inheritance shall apply State law or tribal custom in probating the estate of Fred Godeley. The resolution of July 10, 1937, adopted by the Business Committee of the Mescalero Apache Tribe is not included in this file, but
 

from the account of the resolution given in the various memoranda it does not appear that this question has been considered by that Committee.

    It does appear from the letter of the local superintendent, dated August 31, that he takes the view that New Mexico law is applicable to the inheritance of personal property owned by Indians on the Mescalero Reservation. The error of this view should be pointed out in the letter to the Examiner of Inheritance.

    There is no objection to applying State law to these matters if the tribal business committee, after being apprised of its right to establish its own ordinances or to perpetuate its established customs of inheritance, should decide, after considering all alternatives, that it prefers to have these cases governed entirely by State laws. Unless that is done the Examiner of Inheritance should be instructed to investigate the established tribal customs with respect to descent of personal property and to make his findings in the instant case in accordance with such customs. Furthermore, in view of the temporary character of the present arrangement for the handling of these estates by the Examiner of Inheritance, you may want to suggest the establishment of some regular relationship between this officer and the tribal court, which is designated by the resolution cited as his heir apparent.

    I make no claim to a special knowledge of Apache law, but I am informed that the established custom of the Apaches does not coincide with the State law prescribing descent of the entire estate to the widow in the situation which the instant case presents.

                                                                                                                                             NATHAN R. MARGOLD,

 Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith for further action the proposed letter to Superintendent Bruce of the Potowatomi agency in Kansas authorizing the enrollment with the Prairie Band of Potowatomi Indians of children born to a woman enrolled with that Band who is now residing in Wisconsin. The Business Committee of the Prairie Band went on record against the enrollment of these children on the ground that the mother had abandoned her tribal relations at the time of their birth and was married to a white man and living away from the reservation. The letter does not contain any reason or rule governing this situation which would explain to the Business Committee and the field personnel the action being taken by the Department or which could be used by them in passing on other cases. Undoubtedly, many similar cases will arise as the situation involves the relationship of the Kansas and Wisconsin Potowatomis in Wisconsin with the Prairie Band in Kansas, and it appears there is considerable confusion as to the proper course.

    The facts as shown by the claimant and the held personnel are as follows: The mother, although married to a white man, is residing and was residing at the time the children concerned were born among the Wisconsin and Kansas Potowatomis on land bought for the Wisconsin Potowatomis in Wisconsin. There is evidence that she attempted to make her home on the Potowatomi Reservation in Kansas in 1932. Before that time she was residing with her mother in Wisconsin, who was a Kansas Potowatomi enrolled with the Prairie Band, married to a Wisconsin Potowatomi. In Wisconsin there are about 200 Potowatomis enrolled with the Prairie Band of Potowatomi in Kansas, but who have returned to the original home of the Potowatomis in Wisconsin because of preference or intermarriage with the Wisconsin Potowatomi Indians. The several hundred Wisconsin Potowatomis in Wisconsin are those Potowatomis who never removed to Kansas and for whom land was purchased in Wisconsin by the Government in 1913. All these Indians reside together in various Indian settlements and communities. Because of the continuous intercommunication between the Kansas Potowatomis in Kansas and Wisconsin, it would appear that a Kansas Potowatomi Indian residing with the Potowatomi in Wisconsin and living in an Indian community has not abandoned his tribal relations, unless all the Kansas Potowatomis in Wisconsin are considered as having abandoned their tribal relations, which has not been shown.

    The rule governing enrollment of children born to an Indian married to a white person is enunciated in the Oakes case (172 Fed. 305), and in the Solicitor's Opinions of January 8, 1927, and December 13, 1934, is that such children are not entitled to enrollment if the Indian parent has abandoned his tribal relations at the time of their birth. The principal test of abandonment is whether or not the Indian is living in a community of the tribe. In the Oakes case, the children born while the mother remained in a tribal community were held entitled to enrollment.

    It is believed that these facts and this rule should be placed before the Business Committee of the : Prairie Band with a statement that unless the Business Committee can show contrary facts the children concerned would seem to be eligible for en-
 

rollment under this rule. It might also be pointed out that the children of all the Kansas Potowatomis in Wisconsin should be treated in the same way, and that rules governing their right to enrollment can be worked out to the satisfaction of the Prairie Band. To this end it should be determined by the Band whether residence of a Kansas Potowatomi among the Potowatomis in Wisconsin constitutes abandonment of tribal relations with the Kansas band. However, if the Prairie Band still refuses, in the light of this information, to accept the children into membership, the Department is without power to enroll the children of its own accord, and the Business Committee should be so informed. While the Department may approve or disapprove adoptions into the tribe and expulsions therefrom made by the tribal authorities, no case holds that the Department, in the absence of express statutory authorization, may grant a person tribal membership over the protest of the tribal authorities. Such action would be contrary to the rules enunciated in the cases and to the position taken by the Department in the drafting of tribal constitutions.

    Information might be added on the meaning of residence on the reservation as there are indications that the field personnel believes the phrase would allow for enrollment of children born on the reservation whose mother returned there for the occasion and exclude children born off the reservation whose parents normally reside thereon. This is an erroneous interpretation in both instances. The actual place of birth of the child is immaterial, but the permanent home of the parents is the deciding factor.

                                                                                                                                       NATHAN R. MARGOLD,