- 5 -

Indian tribal laws and customs fostered the theory that tribal property was for the common benefit of all. The constitution of the Cherokee Nation, both as originally adopted in 1839 and as amended in 1866, declared in Sec. 2, Art. 1. that the lands of the Cherokee Nation were to remain the common property of the tribe. The communal aspect of tribal property fitted in well with the organization of the tribe.

Indian lands were looked upon as a permanent home for the Indians. Considered as such, "it was not unnatural or unequal that the vast body of lands not thus specifically and personally appropriated should be treated as the common property of the nation. . . ."

In the case of *United States v. Charles*, 23 F. Supp. 346, 348 (D.C.W.D.N.Y. 1938), the court, in referring to the lands occupied by the Tonawanda Band of Seneca Indians, stated, "the

10/ *Mitchell v. United States*, 9 Pet. 711 (1835).

11/ Cited and discussed in *Cherokee Intermarriage Cases*, 203 U.S. 76 (1906) and in *Cherokee Trust Funds*, 117 U.S. 288 (1886).

12/ *Cherokee Nation v. Journey cake*, 155 U.S. 196 (1894).

- 6 -

reservation lands are held in common by the tribe, although
individual members may be in possession of a particular tract,
and such possession is recognized by the tribe."

The nature of the individual member's right where a
tribe holds property in common is discussed in *Seufert Bros.*
*Co. v. United States*, 249 U.S. 194 (1919). The court quotes
the words of an Indian witness who compared a river in which
there was a common right to fish to a "great table where all
the Indians came to partake."

According to the opinion of the Solicitor of the
13/
Department of the Interior, title to lands conveyed in patents
issued to the Mission Indians conveyed to the bands a right of
use and occupancy; the rights were not in the individual members,
but in the tribe.

Under the Osage allotment acts (34 Stat. 539, 41 Stat.
1249, and 43 Stat. 1008), the Osage Indians have a communal
14/
interest in the mineral deposits underlying the surface.

Indians of the Iriquois confederacy hold tribal lands in
common, even though individual members of the tribe may be in possession
of the lands. 14a/
***

13/ Op. Sol. l.D. M. 29097, April 8, 1937.

14/ Op. Sol. l.D. M. 18423, March 16, 1926.

12a/ Approved and quoted in *Mason v. Sam's*, 5 F. 2d 255 (D.C. W.D. Wash. 1925).

14a/ *United States v. Charles*, 23 F. Supp. 346 (D.C.W.D.N.Y. 1938)

- 7 -

When tribal property is held in communal ownership,
the individual Indian has no right as against the tribe to any
15/ specific part of the property. It is said that the individual
15a/ has only a "prospective right" to future income from tribal
15b/ property in which he has no present interest. Other terms
15c/ used to picture this right are "an inchoate right", a "float".
15d/ These terms aptly define the intangible right of the Indian
to share in tribal property. Until the property loses its
tribal character and becomes individualized, his right can be
no more than this, except in so far as tribal law of custom may
give him a more definite right of occupancy in a particular
tract. In the case of funds, he has no vested right to them
until they have been paid over to him or have been set over
15e/ to his credit, perhaps subject to certain restrictions. In
the case of lands, he has no vested right unless the land has
15f/ been set aside for him either severally or as tenant in common.

15/ McDougal v. McKay, 237 U.S. 372 (1915); Shulthis
v. McDougal, 225 U.S. 561 (1912); Delaware Indians v. Cherokee
Nation, 193 U.S. 127 (1904); Mitchel v. United States, 9 Pet.
711 (1835).

15a/ Op. Sol. I.D., M.8370, August 15, 1922; Memo Sol.
I.D., July 8, 1930.

15b/ Taylor v. Tayrien, 51 F. 2d 884 (C.C.A. 10, 1931).

15c/ Taylor v. Tayrien, 51 F. 2d 884 (C.C.A. 10, 1931).

15d/ McKee v. Henny, 201 Fed. 74 (C.C.A. 8, 1912); Wood-
bury v. United States, 170 Fed. 302 (C.C.A. 8, 1909); Op. Sol.
I.D., 42071, December 29, 1921.

15e/ Funds due Osage as share in royalties and proceeds
from sale of land, not his until actually paid to him or
placed to his credit - Op. Sol. I.D., M.8370, August 15, 1922;
Memo Sol. I.D., July 8, 1930. So long as a judgment in favor
of a tribe is not prorated among individual members, no present
or former member has a vested right - Letter of Commissioner
of Indian Affairs, October 9, 1937.

15f/ Gritts v. Fisher, 224 U.S. 640 (1912); Op. Sol.
I.D., M.29097, April 8, 1937; McKee v. Henny, 201 Fed. 74
(C.C.A. 8, 1912).

The interest of the Indian in tribal property is
not vendible or descendible. Referring to the mineral deposits
reserved for the tribe below the surface of the lands allotted
by the Act of June 28, 1892 (30 Stat. 495), the court, in the
case of *Cherokee Nation v. Hitchcock*, 187 U.S. 294 (1902),
states,

"Whatever title the Indians have is in the
tribe and not in the individual."

"The lands and moneys of these tribes (Five Civilized
Tribes) are public lands and public moneys, and are not held in
individual ownership." This being so, the individual members
have no vested right so as to maintain an action protesting the
admission of others to citizenship which would increase the
number of distributees and lessen the individual share of each
of the members."

Lands set aside within a reservation for the use of a
cemetery remain tribal property. A member of the tribe, even
though he has relatives buried there, does not have any such
right in the property to enjoin the United States from disturbing
the bodies.

16/ Sizemore v. Brady, 235 U.S. 441 (1914); Franklin v. Lynch, 233 U.S. 269 (1914); Gritts v. Fisher, 224 U.S. 640 (1912).

17/ United States v. Charles, 23 F. Supp. 346 (D.C.W.D.N.Y. 1938; McKee v. Henry, 201 Fed. 74 (C.C.A. 8, 1912); Stephens v. Cherokee Nation, 174 U.S. 445 (1892).

18/ Dukes v. Goodall, 5 Ind. Ter. 145 (1904).

18a/ Conley v. Ballinger, 216 U.S. 84 (1910). This case is discussed in Op. Sol. I.8., 27750, July 14, 1934.

Although Cherokee lands were held in communal ownership, the court speaking in the case of *The Cherokee Trust Funds*, 117 U.S. 288 (1886) remarks,

"... that does not mean that each member had such an interest, as a *tenant* in common, that he could claim a *pro rata* proportion of the proceeds of sales made of any part of them."

However, communal ownership does not mean that all members of the tribe must share in every tribal asset. Where a fund is created for a specific purpose and payable only to a given class, it may still be communal.

19/ Op. Sol. I.D., D.42071, December 29, 1921. (Fund created to pay shares to those who were mistakenly omitted from prior distribution.)

10
- 12 -

The question of what constitutes tribal property is discussed elsewhere, but in general, it may be said to consist of lands, funds, and other property such as chattels. The lands may be held in fee, or the tribe may have an estate of 23/ less dignity, for example, the right of occupancy only, or the 24/ right to only the minerals underlying the soil, the rights in the surface being elsewhere. When these interests are disposed of, the tribe and, through it, the individual Indian, may have some interests in the proceeds derived from the dis- 25/ position.

23/ United States v. Chase, 245 U.S. 89 (1917); Kindred v. Union Pacific R. R. Co., 225 U.S. 583 (1912) - Prior to 1865, Omaha tribe had right of occupancy.

24/ Act of June 28, 1898 (30 Stat. 495). (Discussed in Woodward v. De Grafenried, 238 U.S. 284 (1918).)

25/ Funds from sale of tribal lands, placed to credit of all the Chippewas in Minnesota. Wilbur v. United States ex rel. Kadrie, 281 U.S. 206 (1930); Work v. United States ex rel. Gouin, 18 F. 2d 820 (App. D. C. 1927). Funds from sale of timber cut from tribal lands to be invested and income to be paid per capita to Menominee tribe. United States ex rel. Besaw v. Work, 6 F. 2d 694 (App. D. C. 1925). Income from oil and gas leases and royalties from minerals reserved below surface distributed among Osages -- In re Irwin, 60 F. 2d 495 (C.C.A. 10, 1932); Tapp v. Stuart, 6 F. Supp. 577 (D.C.N.D. Okla. 1934). Proceeds received in payment of judgment rendered in favor of tribe is distributable among members of the tribe. Eastern Cherokees v. United States, 225 U.S. 572.

11
- 93 -

Where certain lands have been reserved for the use
and occupation of a tribe, members of the tribe are entitled
27/ to use bodies of navigable water within the reservation.

To the extent that tribal property is not taxable by
the state, the value of the share of the individual is enhanced.

27/ Op. Sol. I.D., 25358, May 14, 1928. United States v. Powers, 305 U.S. 527 (1939), holding that under the treaty of 1868 with the Crow Indians (15 Stat. 649), the waters within the reservation were reserved for the equal benefit of tribal members and when allotments of these lands were made, the right to use the waters passed to the allottees. See also Skeem v. United States, 273 Fed. 93 (C.C.A. 9, 1921) holding that the members of the Shoshone tribe who occupied tribal lands under Article 6 of the Fort Bridger Treaty, ratified in 1869 by Congress (15 Stat. 673) and who were awarded allotments of these lands under Article 8 of the Treaty of 1892 (31 Stat. 672) were entitled to the water rights.

12-
14 -

This, then, is the general nature of tribal property --
the subject matter in which the individual Indian may seek to
share.

Eligibility to Share in Tribal Property

Since tribal property was held by the tribe for the
common benefit of the community, one claiming a share in the
tribal assets must have a status to bring himself within the
class of those entitled to be benefited.

Originally the only requisite to share in tribal
property was membership. Abandonment or loss of membership
forfeited the right to share. The question of what constituted
tribal membership is discussed elsewhere. The membership rule
apparently operated efficiently in practice when tribal organiza-
tion was strong enough to enforce the equitable distribution of

28/ Halbert v. United States, 283 U.S. 753 (1931);
Tiger v. Fewell, 22 F. 2d 786 (C.C.A. 8, 1927); LaRoque v.
United States, 237 U.S. 62 (1915); Sizemore v. Brady, 235 U.S.
441 (1914); Gritts v. Fisher, 223 U.S. 640 (1912); Oakes v. United
States, 172 Fed. 305 (C.C.A. 8, 1909); Fleming v. McCurtain,
215 U.S. 56 (1909); Cherokee Nation v. Hitchcock, 187 U.S. 294,
307 (1902); Op. Sol. I.D., M.15954, January 8, 1927.

29/ In the case of The Cherokee Trust Funds, 117 U.S.
288 (1906), in which the court denied the right of those who
had remained east and abandoned their membership, to share in
proceeds arising from sale of lands of Cherokee Nation. The
court stated (p. 311), "If Indians . . . wish to enjoy the
benefits of the common property of the Cherokee Nation, in
whatever form it may exist, they must . . . be readmitted to
citizenship. . . . They cannot live out of its Territory, evade
the obligations and burdens of citizenship, and at the same time
enjoy the benefits of the funds and common property of the
Nation.

13
- 15 -

30/
its property in accordance with tribal law and custom.

Changing conditions forced the modification of the
rule requiring membership in the tribe as the requisite for the
right to share in tribal property.

One class of problem arose when groups of non-members became affiliated with the tribe and were granted an interest in tribal property.

One of the early problems in the distribution of
tribal assets developed when one tribe moved into the territory
of another tribe. In the case of *Cherokee Nation v. Journey-cake*, 155 U.S. 196 (1894), the court discussed the rights of
the Delaware Indians to share in the property rights of the
Cherokee Nation. Construing the contract entered into between
the Delawares and the Cherokees on April 8, 1867, in pursuance of
a treaty entered into between the United States and the Cherokee
Nation, July 19, 1866 (14 Stat. 799, 903), the court quoted
from the agreement, "On fulfillment by the Delawares of the
foregoing stipulations, all the members of the

30/

United States v. Fitzgerald, 201 Fed. 295 (C.C.A. 8, 1912).

14

- 16 -

tribe, registered as above provided, shall become members of
the Cherokee Nation, with the same rights and immunities,
and the same participations (and no other) in the national
fund as native Cherokees, save as hereinbefore provided."
The court decided (pp. 210-211), "Given therefore, the two
propositions that the lands are the common property of the
Cherokee Nation, and that the registered Delawares have become
incorporated into the Cherokee Nation and are members and
citizens thereof, it follows necessarily that they are equally
with the native Cherokees the owners of and entitled to share
in the profits and proceeds of these lands. 31/

In the case of the *Cherokee Nation v. Blackfeather*,
155 U.S. 218 (1894), the same problem arose between the
Shawnees and the Cherokees. The court interpreted the contract
entered into between the Shawnees and the Cherokees on June 6,

31/ See also *Cherokee Intermarriage Cases*, 203 U.S. 76,
87 (1906) and *Delaware Indians v. Cherokee Nation*, 193 U.S.
127 (1904), for a discussion of the rights of the Delawares
in Cherokee property.

- 15 -
- N7 -

1869 as giving to those Shawnees who settled on Cherokee lands
and who became a part of the Cherokee Nation, equal rights with
the native Cherokees in the common property of the Cherokees.

An analagous situation arose when the slaves
residing in the Indian Territory were granted freedom and
citizenship by the Emancipation Proclamation and the 13th Amend-
ment to the United States constitution. These measures did
not give them any property rights in the tribal property.
However, the treaty entered into between the United States
and the Cherokee Nation on July 19, 1866 (14 Stat. 799, 901)
gave to the Freedmen residents in the Cherokee Nation and
those who had been residents but had left, the rights of
membership and of sharing in the proceeds from the sale of
tribal lands. The rights of those who had been residents

32/ Chickasaw Freedmen v. Choctaw Nation, 193 U.S. 115
(1904).

but had left were subject to the qualification that they had
to resume their residence within six months after the effective
date of the treaty. 33/ In the case of Lowe v. Fisher, 233 U.S.
95 (1912), the court held that the requirement of returning
within six months in order to share applied to free colored
persons as well as to freedmen. The purpose of the six
months provision was to limit the number of those who might
avail themselves of the benefits of the treaty and also to
keep out Negroes who had lived elsewhere, but might come to the
Cherokee Territory to get free land. Thus the rights of those
really entitled to share would be protected.

The court in *Cherokee Nation v. Whitmire*, 233 U.S. 108 (1912), held that those who did not return within the specified time of six months were not entitled to participate. 34/

33/ *United States v. Jacobs*, 195 Fed. 707 (C.C.A. 8, 1912).

34/ See also *Goat v. United States*, 224 U.S. 458 (1912), construing the treaty of 1866 between the United States and the Seminole Indians, 11 Stat. 699, to give the freedmen residing in Seminole territory rights of membership and the same rights in tribal property as native Seminoles.

Another group who claimed rights to share in tribal
property were the white people who had married Indians. The
problem created by the claims of these people is discussed in the
Cherokee Intermarriage Cases, 203 U.S. 76 (1906). The court
traces the policy of the United States and the tribal government
to keep tribal property from coming into the hands of whites
who married Indians solely for the purpose of sharing in the
tribal wealth.

In 1874, the Cherokee National Council adopted a code
which admitted white men to citizenship, and if one paid a sum
of $500.00 (the approximate value of the share of each Indian)
into the national treasury, he became entitled to a share in
tribal property. But even this privilege was withdrawn in 1877,
and so from that date, whites intermarrying into the Cherokee
Nation were admitted to citizenship upon the condition that they

16

- 20 -

should not thereby acquire an estate or interest in the communal
property of the nation. In the case of Whitmire v. Cherokee
Nation, 30 Ct. C1s. 138, 152 (1895), the court quotes a section
of the Cherokee Code and adds, "the idea, therefore, existed
both in the minds and in the laws of the Cherokee people, that
citizenship did not necessarily extend to or invest in the
citizen a personal or individual interest in what the constitution
termed the 'common property', the lands of the Cherokee Nation."

The policy of the United States toward the rights of
non-Indians who claimed rights because of intermarriage is
indicated by Sec. 1 of the Act of August 9, 1888, Chap. 818
(25 Stat. 392), which, excluding the Five Civilized Tribes from
its scope, provided, "No white man, not otherwise a member of
any tribe of Indians, who may hereafter marry an Indian woman
member of any Indian tribe . . . shall by such marriage hereafter

19
- 21 -

acquire any right in any tribal property, privilege, or interest
whatever to which any member of such tribe is entitled."

So far as intermarriages of Cherokees with Indians
of other tribes were concerned, no restrictions were placed
on this group. Referring to this class of intermarriages, the
court in the *Cherokee Intermarriage Cases*, 203 U.S. 76, 87,
(1906), cites the Cherokee Act of November 27, 1880, and declares
"that act provided that the marriage should be contracted accord-
ing to the law regulating marriages between 'our own citizens'
and declared that such Indian 'shall be and is hereby deemed to
be a Cherokee to all intents and purposes and entitled to the
rights of other Cherokees!'"

The question of whether these new members should
share in the distribution of tribal assets is important, not
only from the viewpoint of the individual claimant but also from

35/
1909). Cited in *Oakes v. United States*, 172 Fed. 305 (C.C.A. 8,

the viewpoint of those eligible to share. For the greater the
number of distributees, the less the share of each is.

However, claims to share in tribal property did not
arise only from those who had attained their status in the
fashion described above. Claims were also heard from those
who, either through themselves or through their ancestors,
had some affiliation with the tribe. In the case of *Winton v. Amos*, 255 U.S. 373 (1921), the court traces the history of the
litigation surrounding the claims of the Mississippi Choctaws
to share in the property of the Choctaw Nation. "By Article 3 of
the Treaty of September 27, 1830 (7 Stat. 333), known as the Treaty
of Dancing Rabbit Creek, the Choctaw Nation of Indians ceded to
the United States the entire country possessed by them east of
the Mississippi River, and agreed to remove beyond the Mississippi
during the three years next succeeding. But, in view of the fact
that some of the Choctaws preferred not to move, it was provided
in Article 14 that each head of a family who desired to remain
and become a citizen of the States should be permitted to do so,
and should thereupon be entitled to a reservation of one section

21 - 22a -

of land, with an additional half section for each unmarried child
living with him over ten years of age, and a quarter section for
each child under ten. If they resided upon said lands intending
to become citizens of the States for five years after the ratification
of the treaty, a grant in fee simple should issue; and it was
further provided: 'Persons who claim under this article shall not
lose the privilege of a Choctaw citizen, but if they ever remove
are not to be entitled to any portion of the Choctaw annuity.'"

Years later, in 1896, these Choctaws who had remained in Mississippi
and their descendants asserted their claims to participate in any
distribution of lands or moneys of the Choctaw and Chickasaw
Nation. Finally after much confusion concerning who were eligible
under Section 14 for enrollment as distributees of said tribal
property, the rule for eligibility was established. By the
Choctaw-Chickasaw Supplemental Agreement, September 25, 1902
(32 Stat. 641, 651-652) "practically all Mississippi Choctaws were
enrolled. . . ." Section 41 of the act established the full-
blood rule of evidence - that is, that all full-blood Choctaws
living in Mississippi should be presumed to be descendants of
those Choctaws who had complied with Section 14 of the treaty of

- 228 -

of the treaty of 1830. (This was the principle adopted under the "McKennon Roll," but this roll had been disapproved when submitted in 1901. The Dawes Commission subsequently required applicants for enrollment to furnish proof of descent, but Congress under the Act of September 25, 1902 apparently felt this to be too onerous). It allowed six months after date of final ratification of the agreement within which application might be made; it provided that the Mississippi Choctaws had to settle within the Choctaw-Chickasaw country within six months after identification and one year after identification was allowed for making proof of such settlement. The result of all this was that 1,759 Mississippi Choctaws were added to the roles of distributees in the tribal property of the Choctaws and Chickasaws.

As pointed out previously, the original rule was that existing membership was the requisite for sharing in tribal property. But with the beginning of the allotment system, and the abandonment of tribal relations, this rule was modified.

In order to persuade Indians to forsake tribal habits and adopt the white man's civilization, Congress passed various acts, guaranteeing to those Indians who complied with this

- 22a -

policy the same rights to share in tribal property, as if
they had remained with the tribe.

Section 6 of the Act of February 8, 1887, Chap. 119
(24 Stat. 388, 390) declares, "and every Indian born within the
territorial limits of the United States who has voluntarily
taken up, within said limits, his residence separate and apart
from any tribe of Indians therein, and has adopted the habits
of civilized life is hereby declared to be a citizen of the
United States, without in any manner impairing or affecting
the right of any such Indian to tribal or other property."

"Oakes v. United States, 172 Fed. 305 (C.C.A. 8, 1909); United States ex rel. Besaw v. Work, 6 F. 2d 694 (App. D.C. 1925); Pape v. United States, 19 F. 2d 219 (C.C.A. 9, 1927)."

"In view of this act, "the mere transfer of citizenship is not important, so far as the question of the rights in tribal property is concerned." - United States ex rel. Besaw v. Work, 6 F. 2d 694 (App. D.C. 1925); See also Matter of Heff, 197 U.S. 488 (1905) to the same effect.

- 23a -

The Act of January 18, 1881, Chap. 23 (21 Stat. 315, 316), gave to those Winnebago Indians of Wisconsin who have abandoned their tribal relation<sup>5</sup> and wish to use the money for the purposes of setting a homestead on the public domain a pro rata share in the distribution of tribal funds.<sup>37a</sup>

The Act of December 19, 1854 (10 Stat. 598, 599), promised that the property rights of the mixed bloods in the tribal property of the Chippewas would not be impaired if they remained on the lands ceded to the United States and separated from the tribe.<sup>37b</sup>

37a Memo Sol. I.D., March 6, 1937.

37b/ Discussed in Op. Sol. I.D., M.27381, December 13, 1934.

- 24 -

The Act of March 3, 1921, Chap. 120 (41 Stat. 1249) provides in part that the Osage Indian shall be granted citizenship, and yet he shall not be deprived of his share in tribal property by virtue of this.

By Sec. 2 of the Act of August 9, 1888, Chap. 818 (25 Stat. 392) rights in tribal property were preserved to Indian women who married thereafter citizens of the United States and became citizens also.

The Act of June 2, 1924, Chap. 233 (43 Stat. Pt. 1, p. 253) provides, "That all non-citizen Indians born within the territorial limits of the United States be and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property."

The Act of March 13, 1875, Chap. 131 (18 Stat. 402) provides (p.420) for Indians who had abandoned or who should

37a/ 1925). Discussed in *Mason v. Sams*, 5 F. 2d 255 (D.C.W.D. Wash.).

- 25 -

thereafter abandon their tribal relations to settle under federal homestead laws, with the express provision "that any such Indian shall be entitled to his distribution share of . . . tribal funds, lands, and other property, the same as though he had maintained his tribal relations.

In the case of *Reynolds v. United States*, 305 Fed. 685 (D.C.S.D. 1913), a Sioux woman who had been born on the reservation and was a member of the tribe was taken from the reservation by her father. She never lived on the reservation but adopted the habits of white people and married a white man. Her rights to share in the tribal property were recognized.

The Act of January 18, 1889, Chap. 23 (21 Stat. 315, 316) gave to those Winnebago Indians of Wisconsin who abandoned their tribal relations and wished to use the money for purposes

38/ See also *Pape v. United States*, 19 F. 2d 219 (C.C.A. 9, 1927), holding that an Indian woman may receive a share in tribal property even if she marries a white man, becomes a citizen of the United States, has severed tribal relations and has adopted civilized life. *Work v. Gouin*, 18 F. 2d 820 (App. D.C. 1927), holding that a Chippewa woman who, though married to a white man and separated from the tribe, was entitled to share in tribal fund.

- 26 -

of settling a homestead on the public domain a pro rata share in
the distribution of tribal funds.
39

However, where specially provided, Indians who wished
to, might leave the tribe and receive certain lands as their
allotments, but then they had to relinquish their rights to
share in any further distribution of tribal assets. The treaty
of November 15, 1861 (12 Stat. 1192) with the Pottawatomie
provided that those of the tribe who had adopted the customs of
the whites and who were willing to abandon all claims to the
common lands and funds should have lands allotted to them in
severalty.
40a

39/ Discussed in Memo Sol. I.D., March 6, 1937.
40/ See Act of February 6, 1871 (16 Stat. 404).
40a/ Discussed in *Goodfellow v. Muckey*, 10 Fed. Cas. No. 5537

(C.C.Kans. 1881)

- 27 -

Under the rule that membership was necessary to
share in tribal property, the right to participate in the
distribution could not pass to the member's heirs, nor
41/ could it be assigned by the member. The children of a
member could not inherit their parent's right to share.
Their only right to share in the distribution of tribal
property came from being members themselves. However,
had their parent's right to participate in the distribu-
tion of tribal assets attached itself to certain property
in which he had a vested right, his children might inherit
42/ this property. But as soon as the member's right had vested,
the property was no longer tribal property. It had become
individualized; it was individual property and not tribal
property or a right to share in its distribution that was
43/ being passed on by descent.

41/ Gritts v. Fisher, 224 U.S. 640 (1912).

42/ See Op. Sol. I.D., December 29, 1921.

43/ Op. Sol. I.D., M. 15954, January 8, 1927; Op. Sol. I.D., M.13270, November 6, 1924; Op. Sol. I.D., M.27381, December 13, 1934.

- 28 -

Rights of illegitimate children of Indians depend on
application of the general rule that the status of illegitimates
44/
is that of their mother. It has been held that illegitimate
children whose father was Indian and whose mother was not
Indian are not members of the tribe and cannot share in a tribal
fund payable to the "Chippewa Indians in Minnesota and their
issue", in absence of tribal consent or adoption into the
45/
tribe as members.

In furtherance of its policy to induce Indians to
break away from the tribal mode of life, Congress included
in the appropriation act of June 7, 1897, Chap. 3 (30 Stat.
62, 90) the following provision granting rights in tribal
property to the children of certain Indian women who
had left the tribe: "That all children born of a marriage
heretofore solemnized between a white man and an Indian woman
by blood and not by adoption, where said Indian woman is at this
time, or was at the time of her death, recognized by the tribe,
shall have the same rights and privileges to the property of
the tribe to which the mother

44/ Memo Sol. I.D., October 18, 1932.

45/ Op. Sol. I.D., M.11665, April 19, 1924.

44cont./Sec. 2 of the Act of April 26, 1906 (34 Stat. 137) as amended by the Act of June 21, 1906 (34 Stat. 325, 341) relating to distribution of the property of the Five Civilized Tribes, provided in part, "illegiti ate children shall take the status of their mother, and allotments shall be made to the children so enrolled. . . . "

- 29 -

belongs, or belonged at the time of her death, by blood, as
any other member of the tribe. . . . " Because this statute
creates a new class of distributees in tribal property and to
that extent decreases the property right of those distributees
otherwise entitled to share, it has been strictly construed.
It does not include the children of a marriage between two
47/ Indians; it does not include the children of a marriage between
an Indian man and a white woman; 48/ it does not save any rights
of children of an Indian woman who married a white man after
49/ June 7, 1897; it does not save the rights of children whose
Indian mother had married a white man before that date, but
who was a member by adoption only, or if she had been a member
by blood, who was not considered a member at that date, or
at her death if it had occurred prior to that time. 50/ Nor does

46/ Applied in Stookey v. Wilbur, 58 F. 2d 522 (App. D.
C. 1932).

47/ Memo Sol. I.D., December 18, 1934.

48/ Memo Sol. I.D., December 18, 1934.

49/ Pape v. United States, 19 F. 2d 219 (C.C.A. 9, 1927).

50/ Oakes v. United States, 172 Fed. 305 (C.C.A. 8, 1909).

- 30 -

it create any rights in any lineal descendants other than
children of the Indian woman.

The rights of children of a tribal member are discussed
in *Halbert v. United States*, 283 U.S. 753 (1931): "The children
of a marriage between an Indian woman and a white man usually
take the status of the father; but if the wife retains her tribal
membership and the children are born in the tribal environment
and there reared by her, with the husband failing to discharge
his duties to them, they take the status of the mother."

Whether grandchildren of such a marriage have tribal
membership or otherwise depends on the status of the father or
mother as the case may be, and not on that of a grandparent.

As to marriages occurring before June 7, 1897, (as
the marriages here did) between a white man and an Indian woman,
who was Indian by blood rather than by adoption, - and who on
June 17, 1897, or at the time of her death, was recognized by the
tribe, - the children have the same right to share in the division
or distribution of the property of the tribe of the mother as any
other member of the tribe, but this is in virtue of the Act of June
7, 1897".

31
- 30a -

In the distribution of tribal assets, the visible evidence of one's right to share was the appearance of his name on the list of participants. If membership was the requisite, he had to be on the list of members. As a practical measure, acts and treaties providing for distribution of tribal property had to and did set a specific date as to when status must exist. Hence, in absence of provision to the contrary, those who did not have a status entitling them to share on that date could not participate even though they might have had such a status before and/or after that date.

The Act of March 1, 1901 (31 Stat. 861, 869, 870) provided that distribution of Creek funds be made according to the roll of citizenship of the tribe, and that no person was to be added to the rolls after ratification of the agreement. The roll was to be made up of all those living on April 1, 1899 who were entitled to be enrolled under Sec. 23 of the Act of June 28, 1898 (30 Stat. 502). Children born to enrollees up to and including July 1, 1900 and living on that date could also be enrolled. But

- 32 -

because of the delays in distributing the funds, the funds were not distributed as soon as scheduled. To take care of the children born to enrollees after July 1, 1900, Congress amended the Act of March 1, 1901 be Sec. 7 and 8 of the Act of June 30, 1902 (32 Stat. 500, 501, 502). It permitted the enrollment of children born to citizens who were themselves entitled to enrollment, up to and including May 25, 1901, and living upon the latter date.

The Osage allotment act of 1906 provided that the distribution be made among those on the tribal roll "as it existed on the first day of January, nineteen hundred and six, and all children born between January 1, nineteen hundred and six, and July first, nineteen hundred and seven to persons whose names are on said roll on January first, nineteen hundred and six, and all children whose names are not now on said roll, but who were born to members of the tribe whose names were on the said roll on January first, nineteen hundred and six, including the children of members

50a/ The plans of distribution in these two acts are discussed in Skelton v. Dill, 235 U.S. 206 (1914).

33
- 30c -

of the tribe who have, or have had, while husbands... but
no name shall be included in said list of any person or his
descendants that was placed on the roll prior to the thirty first
day of December, eighteen hundred and eighty one. . . ." (34 Stat.
540).

The Cherokee Agreement, July 1, 1902 (32 Stat. 725),
provided for ascertaining who were members and entitled to share
in Cherokee Tribal property. In the main, it provided that the
roll of members be made as of September 1, 1902, and those members
living on that date should share. No child born into tribal
membership after that date would share; nor would there be
any right to the heirs of a member whose name was on the roll
but who had died before September 1, 1902. Applications had to
be made within a specified time. But because of the different
matters that arose to delay the distribution of the funds, the
funds were not distributed by March 4, 1906, as originally planned,
Congress, feeling that no injustice would result, authorized the
enrollment of a class of persons whose applications had not been
allowable because of not having been made in time and also permitted

- 34 -

"the enrollment of children who were minors living March fourth, nineteen hundred and six", whose parents were eligible distributees. The power of Congress to make this change was upheld in *Gritts v. Fisher*, 224 U.S. 640 (1912).

Though Congress has the power to add new participants, yet when one has been enrolled as a member on the tribal roll and has a right to participate in the division of tribal assets, the Secretary of the Interior cannot summarily strike his name off the roll.

## Apportionment and Distribution of Tribal Property

As stated before, it is not necessary that all members of the tribe must share equally in the distribution of tribal assets. Different classes of members may receive more of certain funds and at different times than others. What then are the various methods in which tribal assets have been apportioned?

Apportionment and distribution of tribal funds may be affected by acts passed by Congress in the exercise of its plenary power over tribal property. The manner in which the plenary power over tribal property could be exercised to affect the individual's rights is discussed in *Sizemore v. Brady*, 235 U.S. 411 (1914). The court held that until vested rights to certain land were created in individuals entitled to allotments of Creek lands

50b Garfield v. United States ex rel. Allison, 211 U.S. 249 (1908); Garfield v. United States ex rel. Goldsby, 211 U.S. 264 (1908).

- 34a -

under the Original Creek Agreement, Act of March 1, 1901, Chap. 676, (31 Stat. 861), Congress "Could revoke the agreement and abandon the purpose to distribute them in severalty or adopt another mode of distribution, or pursue any other course which to it seemed better for the Indians. And without doubt, it could confine the allotment and distribution to living members of the tribe or make any provision deemed more reasonable than the first for passing to the relatives of deceased members the lands and money to which the latter would be entitled, if living."

In discussing the effect of the Act of March 3, 1921 on the right of the non-competent Indian to receive his share of tribal income, in the case of Ne-kah-wah-she-tun-kah v. Fall, 290 Fed. 303 (App. D. C. 1923), the court held the act to be within the Constitutional authority of Congress.

"The funds to which these statutes relate were derived from tribal sources, and Congress has merely prescribed the conditions upon which payment shall be made to certain classes of Indians. The property of those Indians is not divested, their title to it is undisturbed. . . ."

53/ This case followed Gritts v. Fisher, 224 U.S. 640 (1912), upholding the Act of April 26, 1906 (34 Stat. 137), where Congress enlarged the number of participants entitled to share in the distribution of Cherokee tribal property by admitting to participation Cherokee members born after September 1, 1902 and before March 4, 1906. A prior Act, July 1, 1902 (32 Stat. 716) had limited enrollees to those in esse as of September 1, 1902.

- 30e -

property and is found in numerous treaties and acts providing for
the distribution of tribal property. "Every member of the tribe
has an interest in preventing one member from getting more than
50c/
his share."

Under the Osage Allotment Act of June 28, 1906 (34 Stat. 539), each member appearing on the roll was to share pro rata in the distribution of tribal funds.

In the Treaty of August 6, 1846 (9 Stat. 871), which is discussed in *Cherokee Trust Funds*, 117 U.S. 288 (1886). provided for a per capita distribution of Cherokee funds among individuals, heads of families, or legal representatives.

In the case of *Eastern Cherokees v. United States*, 225 U.S. 572 (1913), a judgment rendered in favor of the tribe is to be distributed per capita among its members.

When tribal school property is sold, the proceeds are to be divided per capita according to those names appearing on the membership roll.

50c/ Tiger v. Twin State Oil Co., 48 F. 2d 509 (C.C.A. 10, 1931).

50d/ Memo Sol. I.D., May 31, 1929; Op. Sol. I.D., January 30, 1938; Memo Sol. I.D., March 10, 1931; Memo Sol. I.D., July 8, 1930; Op. Sol. I.D., April 22, 1930; Op. Sol. I.D., April 23, 1936.

50e/ Memo Sol. I.D., March 25, 1939.

- 36 -

By virtue of Sec. 17 of the Act of April 26, 1906, Chap. 1876 (34 Stat. 137), it was provided that a final enrollment of the members of the Five Civilized Tribes roll be made and Sec. 17 of said act provided that the tribal funds "shall be distributed per capita to the members then living and the heirs of deceased members whose names appear upon the finally approved rolls of the respective tribes . . . " Yet when a judgment in favor of the Creek nation was recovered in 1934, it was provided (Act of June 19, 1934, Chap. 648 (48 Stat. 1021, 1034)) it be paid "per capita to the members of the Creek Tribe of Indians entitled thereto or their heirs, upon a roll made as of date of December 4, 1933 . . . " This act varied

the plan to make the roll of 1907 final and was a valid exercise
of Congressional power over tribal property, even though it
conflicted with prior laws or agreements with the tribe. Con-
sequently, members on the rolls in 1907 but who have lost their
membership rights and were not members as of December 4, 1933,
have no status entitling them to share. Heirs of enrollees of
1907 who passed away before December 4, 1933 do not inherit any
right to a share in the judgment. For the membership of the
ancestor terminated at his death. If the ancestor were a member
as of December 4, 1933, then he would be entitled to per capita
share; and such right would pass to his heirs.

In an opinion of the Solicitor of the Department of
the Interior, M.29097, dated April 8, 1937, a similar problem
is discussed. It was held that individual members of the Mission
Indians did not require any vested rights in tribal property
by the enactment of legislation causing allotments to be made,
until the land had been set aside for the individual. Until

54/

Op. Sol. I.D. 17, 27759, January 22, 1935

then, Congress could change the method of disposing of the
tribal property.

However, communal ownership does not prevent a certain
class of members from participating only in the distribution of
a particular tribal fund. In an opinion handed down by the
Solicitor of the Department of the Interior, D.42071, dated
December 29, 1921, there was considered the problem of distribu-
ting a tribal fund created for the purpose of paying to certain
Indians their share in tribal property, said Indians having
been erroneously omitted from the distribution of an earlier
fund. The opinion states: "The fund created was for one
purpose only. Consequently there is no merit to the con-
tention that if the fund be tribal or communal then it must
be subject to disbursement for tribal expenditures generally,
and that it is necessarily individual and not tribal because
all members do not participate in its distribution. The
very purpose of the appropriation refutes the contention."

Where it is provided that an Indian accepting an
allotment of tribal land thereby releases and waives any further
claim to further participation in tribal assets, such provision is

controlling and operates not only to limit the allottee's share,
but also to possibly increase the amount each remaining eligible
Indian receives, since there are less distributees, even though
the amount of tribal property is decreased to the extent of the
amount of land allotted.

By Article 10 of the Treaty of October 1, 1859
(15 Stat. 467), it was provided that half-brights and intermarried
Indians could get certain tribal lands assigned to them in
severalty, but then they would have no share in other tribal
property, even though they remained members of the tribe.

Oftentimes, the act or treaty did not state specifically
the proportion each member would receive, but left the distribution
to the conscience of the tribe.

A further limitation on the right of an individual in
tribal property is found in the Act of March 1, 1901, Chap. 676
(31 Stat. 861, 862-863). The act provides for the allotment

50f/
The Act of March 3, 1839 (5 Stat. 349), providing
for the division and distribution of lands belonging to the
Brothertown Indians by a board of commissioners, stated that
it was the duty of the board "to make a just and fair partition
and division of said lands among the members of said tribe, or among
such of them as, by the laws and customs and regulations of said
tribe, are entitled to the same, and in such proportions and in
such manner as shall be consistent with equity and justice, and in
accordance with the existing laws, customs, usages, or agreements
of said tribe."

38
- 30h -

of one hundred and sixty acres of land, valued at six dollars and
fifty cents per acre, to each citizen of the tribe. Section 3
of the act provides in part, "If any citizen select lands the
appraised value of which, for any reason, is in excess of such standard
value, the excess of value shall be charged against him in the future
distribution of the funds of the tribe arising from all sources
whatsoever, and he shall not receive any further distribution of
property or funds of the tribe until all other citizens have
received lands and money equal in value to his allotment. If
any citizen select lands the appraised value of which is in
excess of such standard value, he may pay the overplus in money,
but if he fail to do so, the same shall be charged against him in
the future distribution of the funds of the tribe arising from all
sources whatsoever, and he shall not receive any further distribution
of property or funds until all other citizens shall have received
lands and funds equal in value to his allotment;"

34 - 301 -

By the act of February 16, 1889 (25 Stat. 673), Congress gave its permission to the Chippewas living on certain reservations to cut the dead trees and timber on the reservations and keep the money for themselves. In the case of *Pine River Logging and Improvement Co. v. United States*, 186 U.S. 279 (1902), the court interpreted the purpose of the act as being for the benefit of all the Indians who were to share equally; no one group was to cut all the timber.

In an opinion handed down by the Solicitor in the Department of the Interior, February 19, 1938, M.29616, there were discussed the rights of members of the different tribes. As provided by the Act of January 14, 1889 (25 Stat. 642), lands belonging to various bands of Chippewas were to be sold and each member of each tribe was to share in the proceeds of said sale. The question was raised, whether the member of a certain band was to share in the proceeds derived from the sale of only his band's lands and whether under Section 3 of the Reorganization Act, where the funds were converted into lands, members of each tribe were to share only in proportion

40
- 80j -

to the lands originally ceded by them. The opinion held
otherwise, ruling to the effect that the equitable and also the
most practical rule would be for all members to share equally,
regardless of the amount ceded by his tribe.

The question of the proportionate distribution of
the interest accruing upon the Chippewa fund was discussed in
an opinion of the Solicitor of the Interior Department, M.15954,
dated January 8, 1927. Under the act (25 Stat. 642) creating
the fund, one-half of the interest was to be paid annually
in cash in equal shares to heads of families and guardians of
orphan minors; one-fourth of the interest was to be paid
in equal shares per capita to all other eligibles. This is
an illustration of different classes of members sharing differently,
though all within a class share alike.

The rights of Indians in tribal funds are affected by
expenditures made from such funds before distribution. These
expenditures of course decrease the amount payable per capita,
but when these expenditures are made for the benefit of the
tribe as a whole, the individual Indian, by being a member, will
also share in this benefit.

41
- 30k -

Thus, by the Act of March 3, 1905, live stock was to be purchased for the tribe with part of the funds derived from the sale of land in the Wind River Reservation.

By the Act of April 26, 1906 (34 Stat. 137), it was provided that if there was not enough tribal land to give each allottee a certain number of acres, tribal funds could be used to make up the deficiencies. The allottee would receive out of the tribal funds a sum equal to twice the appraised value of the lands he was lacking.

In the distribution of interest accruing on the fund of the Chippewas, under 25 Stat. 642, it was provided that one-fourth of the interest annually was to be used for the "establishment and maintenance of a system of free schools among said Indians".

In the case of *Quick Bear v. Leupp*, 210 U.S. 50 (1908), the court held that trust funds of the Sioux may be used for maintenance and education of Indians in sectarian schools or whatever schools the Indians wish, the funds being distributed to different schools in proportion to the Indian requests.

50g/ 10, 1930). Discussed in *Clarke v. Boyden*, 39 F. 2d 800 (C.C.A.).

50h/ (C.C.A. 8, 1921). Discussed in *Cochran v. United States*, 276 Fed. 701.

The right of the individual in tribal property is
affected by acts limiting the amount of tribal property vesting
in him at a particular time.

Under the allotment act of 1906 (34 Stat. 539, 544),

- 38 -
43

each eligible Osage was to be credited with a pro rata share of
the funds of the Osage tribe derived or to be derived from the
sale of certain lands and other sources. However, he could not
receive this share for a period of 25 years; during this time,
his share in these funds was to be held in trust for him by the
United States, and the interest accruing thereon was to be paid
to him every three months. Concerning the distribution of the
royalties received from oil, gas, coal and other leases and of
the proceeds derived from the sale of certain lands, it was
provided that a pro rata share be paid to each eligible Osage
every three months.

But, because of the enormous wealth accruing and paid
to each Osage from the royalties received from oil and gas
leases, and the squandering and waste which followed, the right
to receive all of his per capita share was suspended by the Act
of March 3, 1921, Chap. 120 (41 Stat. 1249), which provided,
(Sec.4), that only those Indians who had a certificate of

56/ This trust period was extended until April 8, 1946
by the Act of March 3, 1921 (41 Stat. 1249) and later until
April 8, 1958 by the Act of March 2, 1929 (45 Stat. 1478).

56a/ For liability of recipients of this income to federal
income tax, see Chouteau v. Com'r, 38 F. 2d 976 (C.C.A. 10, 1930).

- $ -
4/

competency could continue to receive his entire share every

57/ three months. In the case of adult members not having a certificate of competency, only $1,000 of his share in the trust fund income and in the royalties, etc. was to be paid to each; in the case of minors, only the sum of $500 was to be paid to each. 57a

The rest of this money which would otherwise have been paid to these minors and adults without certificates of competency was to be reinvested and placed to the individual's credit. Having been placed there, this money belongs to the individual and is no longer tribal. The question of what may be done with this money from this time is discussed under "Individual Rights in Restricted Funds and Administration Handling of Indian Funds."

57/ Even if an Indian has had a guardian appointed for him, said guardian may receive the entire share accrued for the Indian, if the Indian holds a certificate of competency. Op. Sol. I.D., 18423, March 16, 1926.

58/ Op. Sol., M.24055, January 30, 1938; United States v. Mullendore, 74 F. 2d 286 (C.C.A. 10, 1934).

57a/ In connection with the amounts payable under the Act of March 3, 1921 to non-competents or minors, the Solicitor of the Department of Indian has held (Op. I.D., June 8, 1926) that the amounts payable quarterly are not to be affected by the inheritance of a headright. Thus, a non-competent Indian may receive his $1,000 quarterly plus any amount due him as heir or devisee.

By the Act of February 27, 1925, Chap. 359 (43 Stat. 1008), it was provided that an adult not having a certificate of competency could have paid to him his entire income accumulating in the future from his share in tribal funds, provided he did not waste or squander his income. He was therefore put on the same footing as adults having certificates of competency so far as receiving his share in the trust fund and royalties, etc. was concerned. He was no longer bound by the rule that he could receive only $1000 quarterly.

In a similar fashion, the rights of the individual Chippewa in a share of tribal property have been limited by statutes affecting the time, amount and manner of distribution of tribal funds. The Act of January 14, 1889, Chap. 24 (25 Stat. 642), provided for the sale of certain tribal lands of the Chippewa Indians of Minnesota. Sec. 7 provided in part, "that all moneys

accruing from the disposal of said lands . . . shall . . . be
placed in the Treasury of the United States to the credit of all
the Chippewa Indians in the State of Minnesota as a permanent fund,
which shall draw interest at the rate of five per centum per
annum, payable annually for the period of fifty years . . .
and which interest and permanent fund shall be expended for
the benefit of said Indians in the manner following: One-half
of said interest shall, during the said period of fifty years,
except in cases hereinafter provided, be annually paid in cash in
equal shares to the heads of families and guardians of orphan minors
for their use; and one-fourth of said interest shall during the same
period and with the like exception, be annually paid in cash in
equal shares per capita to all other classes of said Indians;
and the remaining one-fourth of said interest, shall during said
period of fifty years . . . be devoted exclusively to the establish-
ment and maintenance of a system of free schools among said Indians . . . ;

and at the expiration of the said fifty year, the said permanent
fund shall be divided and paid to all of said Chippewa Indians
and their issue then living, in cash, in equal share. The United
States shall, for the benefit of said Indians, advance to them
as such interest as aforesaid the sum of $90,000 annually . . .
until such time as said permanent fund . . . shall equal or
exceed the sum of $3,000,000, less any actual interest that may
in the meantime accrue from accumulations of said permanent fund . . . "

Under this act, three-fourths of the interest is paid
annually to the eligible Indians in equal shares per capita.
Any advances made can come only from the interest, and the Secretary
of the Interior cannot segregate and advance to any individual
Chippewa his pro rata share of the permanent fund. If he were
allowed to do this, there is a possibility that the permanent fund
set apart for the benefit of all Chippewas might be seriously
depleted or exhausted. The policy behind keeping the fund

59

59

Op. Sol. I.D., M.11879, May 31, 1924.

intact for the period of fifty years was to prevent the Indians
from squandering their wealth; it was supposed that, during the
fifty years period, they would have become sufficiently educated to
realize the value of their property.

However, by virtue of the Act of May 18, 1916, Chap. 125,
(39 Stat. 123, 135), the Secretary of the Interior was authorized
in his discretion to advance to any individual entitled to participate
in the permanent fund of the Chippewas "one fourth of the amount
which would now be coming to said Indian under a pro rata
distribution of said permanent fund. . . . Provided further, That
any money received hereunder by any member of said tribe or
used for his or her benefit shall be deducted from the share
of said member in the permanent fund of the said Chippewa Indians
in Minnesota to which he or she would be entitled. . . . "
60/

60/

Discussed Op. Sol. I.D., 15954, January 8, 1927.

Where there is no definite policy compelling the keeping of tribal funds intact, Congress may pass acts authorizing the apportionment and allotment to the individual of some or all his share in tribal property.

Section 28 of the Appropriation Act of May 25, 1918 (40 Stat. 569, 591) provides in part: Sec.28. That the Secretary of the Interior be, and he is hereby authorized under such rules and regulations as he may prescribe, to withdraw from the United States Treasury and segregate the common, or community funds of any Indian tribe ... held in trust by the United States ... so as to credit an equal share to each and every member ... and to deposit the funds so segregated " to the personal credit of the individual.

Section 2 of the Act of March 2, 1907, Chap. 2523 (34 Stat. 1221) as amended by Section 1 of the Appropriation Act of May 18, 1916, Chap. 125 (39 Stat. 128) provides: "That the pro rata share of any Indian who is mentally or physically incapable of managing his or her own affairs may be withdrawn from the Treasury. ... "

Section 9 of the Act of May 18, 1916 (39 Stat. 135) provides in part: "That the Secretary of the Interior ... is hereby authorized to advance to any individual Chippewa Indian in the State of Minnesota entitled to participate in the peermanent fund ... one-fourth of the amount which would now be coming to said Indian under a pro rata distribution of said permanent fund ... "

Under the Act of June 28, 1906 (34 Stat. 539), an Osage
could not receive any part of the principal of the trust fund
held by the United States until the expiration of the trust period.
But by Sec. 5 of the Act of April 18, 1912 (37 Stat. 86, 87),

it was possible for the Osage to receive part of the trust fund
from time to time. The court in *McCurdy v. United States*,
246 U.S. 236, 269 (1918), discusses Sec. 5 of the Act and states,
"That section confers upon him (*the Secretary of the Interior*),
if application is made therefore, discretion whether to release
or to withhold . . . The Secretary is authorized to prescribe
the rules and regulations under which such releases shall be
made; but he is not given the authority to exercise control of
any property in which the funds released may thereafter be invested. . . "

62/ Act of April 18, 1912, Sec. 5: "That the Secretary of the Interior is authorized, under rules and regulations prescribed by him and upon application therefore, to pay to Osage allottees, including the blind, insane, crippled, aged, or helpless, all or part of the funds in the Treasury of the United States to their individual credit. . . "

- 48 - 50a

The question has also arisen in the distribution of Osage tribal assets as to the amounts payable. Under the Osage allotment Act of 1906, the interest from money held in trust by the United States was to be paid plus the income from royalties and leasing of sub-surface rights. In the case of *Work v. United States ex rel. Mosier*, 261 U.S. 352 (1923), the court held that bonuses secured by the tribal council in auctioning off the privilege of taking leases of tribal lands were in effect a supplement to the royalties prescribed. It rejected the contention of the Secretary of the Interior that the bonuses should be considered as capital and should be invested, with the interest only payable.

Because of the nature of the control of Congress over tribal property and the limited benefit that one entitled to share in it might make of his right while the property remains tribal, it is often the contention of an individual that a particular

tribal asset in which he is entitled to share has lost its
tribal character and title to his share has vested in him. In
the case of both lands and funds, the rule is that the right has
vested when the property is in his name or has been segregated in
his name. In applying this rule, the courts have considered
various types of cases.

In the case of Fleming v. McCurtain, 215 U.S. 56 (1909),
the court construed a grant of lands to the Choctaw Nation "in
fee simple to them and their descendants to inure to them while
they shall exist as a nation and live on it." The court held
that title was in the tribe in trust for its members; that no
rights were vested in those persons who were members of the tribe
at the date of the treaty and their respective descendants.

Lands patented to the Mission Indians under the Act of
1891 conveyed a right of use and occupancy in the tribe; there
were no vested rights in the individual members until parcels of

68a/ A grant of lands to the Creek Nation to be held by them as a tribe in fee simple so long as they should continue as a nation and continue to occupy the lands does not give any individual member a vested right in the lands - *McKee v. Henny*, 201 Fed. 74 (C.C.A. 8, 1912), construing the treaty of March 24, 1832 (7 Stat. 366); Treaty of February 14, 1833 (7 Stat. 417); and Treaty of August 15, 1856 (11 Stat. 699).

land were individualized, usually by means of a trust patent in the
<u>69</u> name of one Indian.

By the Act of January 14, 1889, Chap. 24 (25 Stat. 642),
money accruing from the disposal of lands of the Chippewa was to
be placed in a fund and held in trust by the United States for a
period of fifty years and payable at that time "to all of said
Chippewa Indians and their issue then living." During the fifty
year period, the fund was to draw interest, which was to be paid
annually to those eligible Chippewa Indians in Minnesota.

The question has arisen as to whether this fund and the
interest accruing on it are tribal or whether individualized and
vested, even though held in trust. If tribal, then in order to
participate, one must be a member in his own right or the child of
a Chippewa woman and a white man whose rights are saved by the
Act of June 7, 1897, Chap. 3, (30 Stat. 62, 90). The position

<u>69</u>/ Op. Sol. I.D., 29097, April 8, 1937.

that the fund is tribal is found in an opinion of the Solicitor
in the Department of the Interior, N.27381, December 13, 1934;
Wilbur v. United States ex rel. Kadrie, 281 U.S. 206 (1930); and
Morrison v. Work, 266 U.S. 481 (1925).

This position is based on the theory that the lands
sold were held by the tribe for its members and that no member
had any vested right in the lands; that the expenditures to be
made from the fund before distribution were to be made for the
benefit of those living in the tribal environment and not for
those born apart from the tribe.

Under this theory, in order for the descendants of
a member to participate in the distribution of tribal property,
they must either be members themselves or come within the pro-
visions of the section of the Act of 1897 cited above. As has
been stated above, if the property has been individualized, this
rule does not apply. Then it is a question of descent of
property belonging to an Indian. However, it can be seen that
the question of whether the fund is still tribal or has become
individualized affects also the rights of the members of the
tribe and those coming within the provisions of the Act of 1897;
it means that they will be getting less as their shares, and it
also means that people who have tribal blood as their only

qualification, will be enjoying the use of proceeds derived
from the sale of lands, as heirs of a member who had a vested
right.

On the other hand, the position has been taken that
all lineal descendants of an ancestor who had been enrolled may
share since the fund was vested in him. For this view, see Op. Sol.
I.D., M.11380, June 17, 1924; United States ex rel. Kadrie v. West,
30 F. 2d 989 (App. D. C. 1929). This position interprets "issue"
to mean heirs and emphasizes the policy of Congress to break up
tribal life; that Congress did not intend that Chippewa tribal
organization should continue for the next fifty years succeeding
the passage of the Act of 1889.

Transferability of The Right to Share in Tribal Property

Tribal property being communal in nature, an in-
dividual having a right to participate in its distribution had an
equitable right in tribal property. When this right was
personal to him by virtue of his membership, it could not be
51/
alienated either voluntarily or by operation of law. To
be entitled to participate, his children had to have a status in
their own right; they could be entitled to share as members,
52/
but not as heirs.

However, with the passage of the allotment acts and
other acts looking toward the extinguishment of tribal title,
rights in tribal property were made alienable to a limited extent.
It is our purpose to learn to what extent the individual's interests
in tribal property were alienable. The question of what restrictions
exist on the individual's right to use his own funds will be im-
portant only where such funds were received as his share in tribal
property and where such restrictions were imposed as a condition of
his receiving his share. These conditions were imposed by Congress
in the exercise of its plenary power over tribal property.

51/ *Bizemore* v. *Brady*, 235 U. S. 441 (1914).

52/ Op. Sol. I. D., D. 42071, December 29, 1921.

Statutes affecting disposition of tribal property and consequently the rights of individuals to share in it are to be distinguished from statutes which restrict the use of the individual's funds. Statutes of the first type, such as the Act of June 28, 1906 (34 Stat. 539), providing for distribution of tribal property among the Osages, are an exercise of Congressional power over tribal property. Statutes affecting individual property, which, incidentally may have been obtained as a share of tribal funds, are discussed in the section "Individual Rights in Restricted Funds". They represent an exercise of Congressional power over the property of the Indian and do not affect the nature of tribal property and the right of the individual to share in it. For example, Section 4 of the Act of March 3, 1921 (41 Stat. 1250), removing restrictions against alienation of surplus and homestead allotments by Osage adults of less than one-half blood does not affect the nature of the tribal trust

existing in the sub-surface minerals to give the individual Osage
55/
a right to dispose of them.

An act which removes a qualification limiting disposition
of an Indians share in tribal property affects his interest in
tribal property. Such an act was the Act of April 12, 1913
(37 Stat. 86), which allows a mentally competent Osage to dispose
of his estate, including his right to share in the trust funds,
by will approved by the Secretary of the Interior; also of
this type was the Act of April 12, 1924, Chap. 95 (43 Stat. 94),
authorizing the sale or other disposition of the right of persons
not of Indian blood in Osage tribal lands and funds. But
these acts do not change the character of the property from tribal
to individual.

55/ Taylor v. Tayrien, 51 F. 2d 884 (C.C.A. 10, 1931).

By these acts, a quality of transferability has been
attached to the right of the Osage to share in tribal property.
Although this right was only prospective, yet because an individual
was one of a class that would share, he had an equitable right. It
has been held that an Osage may validly assign the right to share
in tribal property, commonly called a "headright", under a power
of attorney coupled with an interest.

By the Act of June 28, 1906, Chap. 3572 (34 Stat. 539),
it was provided that the right of an Osage to share was descendible;
by the Act of April 18, 1912, (37 Stat. 86), adult members of the
Osage tribe, mentally competent, were given the privilege of
devising their interest. However, neither of these statutes

63/ Memo Sol. I.D., October 2, 1933.

- 46 -

make the interest of the Osage vested, so that he has any present
right to the funds. 64/ Therefore, unless statues so provide, this
right to share was not an asset to be turned over to a trustee
65/
in bankruptcy for benefit of creditors. Nor was it subject to
claims of creditors of the Indian at his death. 66/ At the death
of an Osage, his income derived from the tribe is transferred
directly to his heirs or devisees and is not to be paid over to
the administrator or executor. 66b/

In the case of United States v. Jacobs, 195 Fed. 707 (C.C.A. 8, 1912), it was held that by virtue of the Act of June 30, 1902, Chap. 1323 (32 Stat. 501), providing for the transfer of interests in property of the Creek Nation, if a member who was entitled to a share and was enrolled, died before receiving his share, his rights that he would be entitled to if living, go to his heirs. 66a/

The Act of March 1, 1901 (31 Stat. 861), which was
the original agreement with the Creeks contained a similar
provision.

64/ Act of 1906 providing for descendibility did not make interest assignable - Op. Sol. I D., M.8370, August 15, 1922. Act of 1912 providing for descendibility did not make right assignable - Memo Sol. I.D., March 10, 1931; Taylor v. Tayrien, 51 F. 2d 884 (C.C.A. 10, 1931).

65/ Memo Sol. I.D., May 31, 1929; Memo Sol. I.D., June 26, 1930; Memo Sol. I.D., July 8, 1930; Memo Sol. I.D., October 2, 1933; In re Denison, 38 F. 2d 662 (D.C.W.D. Okla. 1930); Taylor v. Tayrien, 51 F. 2d 884 (C.C.A. 10, 1931).

66/ Memo Sol. I.D., July 8, 1930; Tapp v. Stuart, 6 F. Supp. 577 (D.C.N.D. Okla. 1934).

66b/ United States v. Hughes, 6 F. Supp. 972 (D.C.N.D. Okla. 1934). The inheritance was not subject to prior debts of the heirs or devisees under the Act of April 18, 1912 (37 Stat. 86). The purpose of Congress was to protect the heirs, because even though members they may not have been eligible in their own right to share and therefore were poor. Such restriction also protects the

The point to be observed is that a statute of this type
provides for a change of beneficiary. The heir takes direct
and stands in the stead of the ancestor. It is really not a
case of descent of property which had lost its tribal character
and become vested in the ancestor before his death. The heir
does not take by inheritance. Where an heir takes direct, state
statutes regarding allowance and distribution of estates do not
apply, and the heir does not have to pay the administrative fee
imposed for the determination of heirship.

67/ Op. Sol. I. D., D. 42071, December 29, 1921.

66b cont. / Government from having to support such indigent Indians.

66a/ McKee v. Henny, 201 Fed. 74 (C.C.A. 8, 1912).

# Rights in Land

## A. Occupancy

A problem of the rights of the individual in tribal property is raised when tribal land is held by a member of the tribe as occupant.

Under communal ownership, all tribal land is held for the benefit of its members, no one having any right in severalty.

Nevertheless, as a practical matter, some distribution of possession is generally necessary in order to use the land.

Hence, it comes about that individuals are given rights to occupancy in certain tracts of tribal land. The tribe may formally assign a right of occupancy to an individual, or if an individual is in possession by tribal law, usage and custom, a right of occupancy may be recognized.

A tribe may assign certain tracts of tribal land to individual members. "If no definite land assignments are made, it is possible that individual members may assert occupancy rights based on long continued usage."

Article VII, Sec. 3 of the Constitution of the Pueblo of Santa Clara provides that "the grantee shall have thereafter full possession of said land unless the council shall, in accordance with the constitution, by-laws, and ordinances of the pueblo dis-possess him of the same." Tribal property rights were not affected by the granting of the right of possession. The right of occupancy does not give the occupant any vested rights in the land he occupied as against the tribe. The tribe could revoke it at will."

Referring to the rights of the occupant of lands of the Cherokee Nation, the court in the case of *The Cherokee Trust Funds*, 117 U. S. 288, 308 (1886), declared: "He had a right to use parcels of the lands thus held by the Nation, subject to such rules as its governing authority might prescribe; but that right neither prevented nor qualified the legal power of that authority to cede the lands

7a/ Memo Sol. I. D., October 21, 1938.

72/ Memo Sol. I. D., January 28, 1937; Memo Sol. I. D., April 14, 1939; Memo Sol. I. D., July 21, 1934.

72a/ and the title of the Nation to the United States." In the case of Bell v. Atlantic & P. R. Co., (C.C.A. 8, 1894), the court discusses further the rights of occupants in Cherokee tribal lands. Pointing out that the lands are tribal, the court states, "Whatever rights a citizen of the Cherokee Nation has to occupy any particular piece of public lands in the nation, he must acquire in pursuance and under laws of the Nation." He could not enter on land previously dedicated to some other person or to some specified use.

Being revocable at will, the right of the occupant is 72b/ analogous to that of a licensee or tenant at will. But, in order to assure the occupant of land some security in his possession, tribal law and custom recognizes his right of possession to the extent that the right of occupancy is not revoked at the caprice of the tribe. By a tribal act passed in 1889, the Creek Nation conferred on each citizen of the nation, who was the head of a family and engaged in grazing live stock, the right to enclose for that purpose one square mile of public domain without paying compensation. Provision was made for establishing, under certain conditions, more extensive pastures near the frontiers to protect the occupants against the influx of stock from adjacent nations. The right to possession became valuable when the occupant was assured of

72a/ United States v. Chase, 245 U.S. 89 (1917). Granting of occupancy right did not prevent tribe from making provision for ultimate disposal of the land.

72b/ Memo Sol. I.D., April 14, 1939.

73/ Turner v. United States, 248 U.S. 354 (1919).

stability of possession. Creekl custom and law began to permit the
transfer of the right of possession; it could be sold or leased.
The rights of the conveyor and the conveyee, the lessor and lessee
were protected in courts. If the lessee refused to surrender
possession after the expiration of his term, the lessor could maintain
an action of ejectment in federal courts. Adverse possession could
run against an occupant. The occupant could maintain an action of
forcible entry and detainer against a trepasser. *Shulthis v. McDougal*, 170 Fed. 529 (C.C.A. 8, 1909), describes the nature of
the interest held by an occupant, as follows:

"From the time they took up their residence west of the
Mississippi, the Constitutions of the Five Nations provided that
their land should remain common property; but the improvements
made thereon, and in the possession of the citizens of the nation,
are the exclusive and indefeasible property of the citizens re-
spectively who made, or may rightfully be in possession of them.

74/ *Gooding v. Watkins*, 5 Ind. Ter. 578 (1904).

75/ *Hunt v. Hicks*, 3 Ind. Ter. 275 (1900).

The term 'improvements', as here used, meant not only betterments, but occupancy. *Cherokee Nation v. Journeycake*, 155 U.S. 196, 210, 15 Sup. Ct. 55, 39 L. Ed. 120. These 'improvements' passed from father to son, and were the subject of sale, with the single restriction that they should not be sold to the United States, individual states, or to individual citizens thereof."

This system operated satisfactorily when the tribal organization was strong enough to see that the members of the tribe, for whose benefit after all the lands were really held, were in possession of the lands. But with the influx of the whites and the disintegration of the tribe, possession of the lands became concentrated in the hands of the whites and the more ambitious Indians. By 1890, most of the land belonging to the Five Civilized Tribes was out of the possession of the Indians, even though theoretically the lands were held by the tribe in trust for its members.

The following statement of conditions in the lands of the Five Civilized Tribes is found in the Report by Senate Committee on Five Civilized Tribes, May, 1894 (S. Rept. No. 377, 53d Cong. 2d Sess.), cited in Stephens v. Cherokee Nation, 174 U.S. 445 (1892), and Heckman v. United States, 224 U.S. 413 (1912): "A few enterprising citizens of the tribe, frequently not Indians by blood, but by intermarriage, have in fact become the practical owners of the best and greatest part of these lands, while the title still remains in the tribe -- theoretically for all, yet in fact the great body of the tribe derives no more benefit from their title than the neighbors in Kansas, Arkansas, or Missouri. . . ." For more complete statement of conditions see Woodward v. DeGrafenried, 238 U.S. 284 (1918). In view of these conditions, Congress stepped in and in exercise of its plenary power over tribal property, passed acts to protect the rights of the individual Indians. Some of these acts extinguished tribal title and gave the individual Indian a certain

amount of land in severalty. Other acts provided for a redistribu-
tion of possession in accordance with the communal theory of
tribal ownership. The Curtis Act, June 28, 1898 (30 Stat. 495),
relating to the Creeks, may be taken as an example of this latter
76/
type of act. Under Sec. 11, 30 Stat. 495, 497, the exclusive
use and occupancy of the surface of certain lands were to be
allotted among the members and these rights were not transferable;
all subsurface deposits and town-site locations were reserved
for the use of the tribe as a whole. The town-sites were to
be sold. After as much of the revenue necessary for educational
purposes was deducted, the proceeds were to be paid per capita
77/
to tribal members. Subsequent sections of the act provided
for the cancellation of existing leases and forbade the holding
by any member of more than his proportionate share due him as
his allotment.

76/ **Woodward v. De Grafenried**, 238 U.S. 284 (1918), p. 306:
"And the manifest purpose of the Curtis Act was not to displace,
but to recognize the communal titles, and to administer the use
of lands for the equal benefit of the members of the tribes. . . . "
See **United States v. Fitzgerald**, 201 Fed. 295 (C.C.A. 8, 1912)
and **Moore v. Carter Oil Co.**, 43 F. 2d 322 (C.C.A. 10, 1930), to
the same effect.

77/ Discussed in *United States v. McMurray*, 181 Fed. 723 (C.C.E.D. Okla. 1910).

The right of occupancy was not descendible. At death of the occupant, the right of possession to the surface reverted to the tribe and became part of the public domain of the tribe. 78/
Sec. 23, however, permitted the leasing of the lands occupied. 79/

In the Act of February 6, 1871 (16 Stat. 404), occupancy of lands belonging to the Stockbridge and Munsee tribes was apportioned among their members. The act provided that this right was not to be alienable, but could descend to the heirs of the occupant. If he had no heirs, the right would revert to the tribe.

Under the Act of June 18, 1934, Chap. 576 (48 Stat. 984), commonly known as the "Indian Reorganization Act" or the "Wheeler-Howard Act," the rights of the individual in tribal property are strengthened by the maintenance of title in the tribe. Sec. 1 of the act prohibits future allotments in severalty and thus preserves communal ownership in property. 80/

78/ Woodward v. De Grafenried, 238 U.S. 284 (1918).

79/ Under this section, a Chickasaw Indian, in the Chickasaw Nation, could lay off a town and rent lots on the land he occupied. United States v. Lewis, 5 Ind. Ter. (1903). But it does not permit him to sell the lands or the right to them to either an Indian or to a United States citizen. Denton v. Capital Town Site Co., 5 Ind. Ter. 396 (1904).

80/ Op. Sol. I.D., 27770, May 22, 1935.

Under Section 4 of the act, rights in tribal property were made non-transferable, except that tribal lands or interests in tribal property might be, with the approval of the Secretary of the Interior, "transferred to the Indian tribe in which the lands or shares are located or from which the shares were derived or to a successor corporation; and in all instances such lands or interests shall descend or be devised, in accordance with the then existing laws of the State, or Federal laws where applicable, in which said lands are located or in which the subject matter of the corporation is located, to any member of such tribe or such corporation or heirs of such member. . . ."

Under the Reorganization Act, the tribe cannot sell 81/ its land, even to its own members. Hence, the right in common is preserved.

In a memorandum of the Solicitor of the Department of Interior, April 14, 1939, the position was taken that a tribe might grant occupancy rights to its members under Section 4 of the Reorganization Act obtaining the approval of the Secretary of the Interior. The reasoning behind this conclusion that the grant of occupancy did not of itself involve the conveyance of any interest in tribal land, is that the occupant is similar to a licensee.

"The assignments may be for personal use and occupancy or may permit leasing, to outsiders under departmental (Department of Interior) supervision." 82/

81/ Memo Sol. I.D., October 20, 1937.

82/ Memo Sol. I.D., October 21, 1938.

B. Grazing Rights

The right of the individual to use tribal lands for grazing purposes is subject to federal and tribal control.

This control has been exercised to prevent exploitation of tribal lands by a few stock owners. Monopolization of grazing lands by a few prevents the flowing of benefits equally to tribal members and runs counter to the theory of communal ownership. In addition, the economic life of the tribe may be periled by the serious overstocking of the range and the rapid soil erosion.

In a bulletin of the Department of the Interior, June 2, 1937, containing grazing regulations for the Navajo and Hopi reservations, the purpose of these regulations, which may be taken as the purpose of grazing regulations generally, is set forth: "1. The preservation of the forage, the land, and the water resources . . . and the building up of these resources where they have deteriorated. 2. The protection of the interests of the . . . Indians from the encroachment of unduly

aggressive and anti-social individuals who may or may not be
members of the tribe. 3. The adjustment of the livestock
numbers to the carrying capacity of the range in such a manner
that the total economy of the tribe will be preserved... ."

In the case of *United States v. Barquin*, (D.C.Wyo. 1928) the court considered regulations promulgated by the commissioner of Indian Affairs governing grazing on the Shoshone Indian reservations. The regulations provided generally for the free grazing by each family of a limited number of stock, which were to be branded. Indians were allowed to graze cattle in excess of this number by securing a permit and paying a small fee. The court held that an Indian who grazed cattle in violation of these regulations was guilty of trespass and enjoined him from so using the tribal lands.

84a/ In the case of *United States v. Jensen* (D.C.E.D. Wash. 1926), a member of the Yakima tribe was adjudged guilty of trespassing on tribal lands when he grazed sheep upon the tribal reservation without securing a permit from the Secretary of the Interior in accordance with regulations promulgated by the Secretary. See also *United States v. Olney* (D.C.E.D.Wash. holding that the Secretary of the Interior has the authority to require a user of tribal grazing lands to first secure a permit and to require him to pay a fee for cattle grazed in excess of the number prescribed as "free" under Department of Interior regulations.

In the case of *United States v. Bega*, (D.C. Ariz. 1939), and related cases, the court had before it the power of the Department of the Interior to make grazing regulations on Navajo tribal grazing lands.

As promulgated, June 2, 1937, these regulations provided in part:

" 1. The Commissioner of Indian Affairs shall establish land management districts within the Navajo and Hopi Indian Reservations, based upon the social and economic requirements of the Indians and the necessity of rehabilitating the grazing lands.

" 2. The Commissioner of Indian Affairs shall promulgate for each land management district the carrying capacity for livestock.

**Instructions:** Carrying capacities shall be stated in terms of sheep units year-long, in the ratio of, mules and horses 1 to 5, cattle 1 to 4, goats 1 to 1. The latter figure in each case denotes sheep units. Animals six months of age or older shall be counted against the carrying capacity. ...

" 3. The Superintendent shall keep accurate records of ownership of all livestock.

**Instructions:** In order to obtain true records of ownership, the head of each livestock-owning family group shall personally appear at the dipping vat with his or her sheep and goats, together with the sheep and goats belonging to members of his or her family group. Should the head of the family group be unable to appear personally he or she shall designate a representative to act for and in his or her behalf. The sheep and goats will be dipped and recorded in the name of the family head, ... Grazing permits will be issued for

Consent of the Navajo tribe to federal grazing regula-
tions had been obtained November 24, 1936. The court held that
the Secretary of the Interior could require the removal of
horses from the reservation in excess of the number permitted,

(cont.)

that number of stock plus the issue of such
animals, including those which exceed the six-
months age during the year, which the family group
will be permitted to graze during the rehabili-
tation period. Grazing permits issued to family
heads owning sheep and goats shall include all,
classes of livestock. . . .

" 4. The Superintendent shall reduce the livestock in each district to the carrying capacity of the range.

**Instructions:** Necessary reductions will be made by districts. In order to make these reductions, the Superintendent shall determine the total stock in each district in sheep units; calculate the total required reduction by subtracting the carrying capacity from this figure; and specify by how much each family group should reduce to accomplish this total reduction. The sale of non-productive, unserviceable and cull animals (including excess horses, scrub cattle, wether sheep and goats, and old ewes) shall be encouraged before reductions are made in breeding herds. For the purpose of effecting the widest and most equitable distribution of stock ownership and range privileges, recognized family groups will be considered as the units of ownership and reductions so far as practicable will be made so as to place the burden on those stock-owning family groups who are best able to bear the burden. . . .

" 5. The Superintendent is authorized to assess and collect trespass fees and, with the consent of the tribal council of the Navajo Indians, he may also assess

and in its decree the court compelled the stockholders to remove
excess stock. In addition, the court disposed of questions
that might cause future litigation by including a declaratory
judgment to the following effect:

"the Secretary of the Interior of the United States is vested with the power, right and authority to promulgate rules and regulations for the protection of the tribal lands of the Navajo Reservation within the State of Arizona, and to the effect and extent necessary to prevent waste caused by overgrazing and to prevent unfair or unreasonable monopolization of tribal range by individuals, and to provide by rules and regulations a maximum carrying capacity of such districts as may be fixed and determined by said rules and regulations."

(cont.)

and collect grazing fees upon all stock owned in
excess of the base preference number and upon all
non-productive stock owned below the base prefer-
ence number. . . ."

In the case of Mason v. Sams, 5 F. 2d 255 (D.C.W.D. Wash. 1925), the court considered the power of the Secretary of the Interior to promulgate regulations with respect to the use of waters in the Quinaielt reservation by tribal Indians. The court intimates that inasmuch as the reservation and its waters were reserved for the exclusive use of the Indians by the Treaty of July 1, 1855 (12 Stat. 971), the tribal consent should be obtained before distribution of use among members was changed. The court also denied the power of the Secretary of the Interior to deny certain members fishing rights at favored locations. The regulations promulgated, as listed in the case, did not provide for the equal treatment of all Quinaielts. In these respects, the decision in Mason v. Sams, 5 F. 2d 255 (D.C.W.D. Wash. 1925), is to be distinguished in the grazing cases discussed above.

C. Improvements

With reference to improvements placed upon the
land by the occupant, he has a vested right in them, subject
to the limitation of tribal rules and customs.

The individual has a vested right in them because
they are his own property; they are not the property of the
tribe and his right to them is not derived as an interest in
86/
tribal property.

However, his use and disposition of the improvements
are qualified by the fact that he does not own the land and
that the tribe, in granting him the right of occupancy, may
impose as conditions of his occupancy certain terms affecting
improvements.

Vested rights in individual improvements, however,
may be limited by the laws or customs of the Indian tribe.
In effect, such laws and customs represent conditions upon the
grant of individual occupancy rights, to which the individual

86/ Memo Sol. I.D., October 21, 1938. The tribe does not own the improvements placed on tribal land by or under the direction of individual members of the tribe. Where the occupant leases, with approval of all concerned, the land and improvements, "there should be a definite provision as to division of rentals between the owner of the improvements and the tribe as owner of the land."

is deemed to consent upon receiving such rights. Thus, in
Myers v. Mathis, 2 Ind. Ter. 3, 46 S. W. 178, the court
upheld the validity of a Chickasaw statute of limitations, whereby
an individual Indian suffered a loss of his improvements by
reason of his absence for a fixed period.

87/ Op. Sol. I.D., M.29566, August 9, 1939.

By virtue of the fact that it is upon its land that
the occupant is placing improvements, the tribe may limit
the kind, amount, and disposition of the improvements in its
grant of occupancy. The limitations may be found in a particular
grant alone or may be found in the general rules and regulations
<u>88</u>/of the tribe regarding occupancy rights.

The Constitution of the Five Civilized Tribes
provided that improvements may be made by the individual
occupant and recognized his vested rights therein. The improvements
were inheritable and subject to sale, the only restriction being
that they were not to be sold to the United States, any of the
states, or to any citizen of the states. The purpose of this
<u>89</u>/restriction was to keep tribal members in possession.

Improvements and enclosures on lands held in occupancy
made in furtherance of agriculture and grazing purposes by
members of the Five Civilized Tribes were permitted to pass by
<u>90</u>/quitclaim deed or bill of sale from one member to another.

<u>88</u>/<u>89</u>/<u>90</u> Memo Sol. I.D., August 26, 1938 - The right to use tribal lands and place improvements on it is conditioned upon conformity to ordinances of the tribe and permission granted to members and non-members may be revoked for violation of the ordinance.

<u>89</u>/<u>90</u> Cherokee Trust Funds, 117 U.S. 288(1886); *Shulthis* v. *McDougal*, 225 U.S. 561 (1912).

<u>90</u>/ United States v. Rea-Read Mill & Elevator Co., 171 Fed. 501 (C.C.E.D. Okla. 1909).

The fact that he had made improvements upon lands he occupied was of benefit to the Indian when allotment acts were passed. These acts generally provided that the Indian who held certain lands as an occupant and had made improvements thereon had prior right of selecting these lands as his allotment. The practical value of this was that he could, if he wished, retain a favorable location and save himself the expense of moving and making improvements elsewhere.

Article 8 of the Agreement of 1892 (31 Stat. 672), between the Shoshones and the United States provided that the Indians who had taken possession of lands under a prior treaty and were occupying them as tribal lands were not to be removed without their consent, but might retain the tracts possessed and receive allotments of the same.

Under certain statutes which provided for the sale of tribal lands, occupants were permitted to purchase the lands they had been occupying at a price less than their appraisal value.

90a/ "That all allotments . . . shall be selected . . . in such manner as to embrace the improvements of the Indians making the selection. . . ." is the provision found in Sec. 2 of the General Allotment Act of 1887 (24 Stat. 388) and Sec. 9 of the Act of March 2, 1889 (25 Stat. 888).

91/ This explains why, in the selection of allotments, contention arose as to who had been entitled to occupancy rights.

92/ (C.C.A. 9, 1921).

93/ 31 Stat. 866, Sec. 11 - Occupant in rightful possession of a town lot on Creek lands having permanent improvements thereon, had the right to purchase the lot at half the appraised value. Following Sections of the act provide protection for occupant and owner of improvements:

Though this would mean that there might be less accruing to the
tribe for distribution among its members, nevertheless, it
made a right of occupancy more valuable to the occupant.

(93) cont.

" 12. Any person having the right of occupancy of a residence or business lot or both in any town, whether improved or not, and owning no other lot or land therein, shall have the right to purchase such lot by paying one-half of the appraised value thereof.

" 13. Any person holding lands within a town occupied by him as a home, also any person who had at the time of signing this agreement purchased any lot, tract, or parcel of land from any person in legal possession at the time, shall have the right to purchase the lot embraced in same by paying one-half of the appraised value thereof, not, however, exceeding four acres.

" 14. All town lots not having thereon improvements, other than temporary buildings, fencing, and tillage, the sale or disposition of which is not herein otherwise specifically provided for, shall be sold within twelve months after their appraisement, under direction of the Secretary of the Interior, after due advertisement, at public auction to the highest bidder at not less than their appraised value.

COMMENTS ON EXHIBIT NO. 1

Page 2, line 5. The criticism that the cases in footnote 3 do not support the text is irrelevant and unjustified. The text sentence is a statement of fact, not a proposition of law. The cases cited illustrate the fact situation discussed. Thus Moore v. Carter Oil Company deals with the term of a deed to a Seminole allottee, and the court comments:

"Each allottee, in accepting a deed to his allotment, relinquished his interest in all other allotments, - a transmutation of the tribe's communal estate to private ownership in severalty by its enrolled members." (At page 326.)

A similar purpose is served by the citation of The Kansas Indians and of Chopte v. Drapp. The case of United States v. Fort Smith and E. R. R. Company offers a different sort of illustration of the situation discussed in the text, namely, one in which damages that would have been payable to the entire tribe before allotment are payable to the allottee thereafter.

The criticism is well taken only in so far as it relates to United States v. Fitzgerald, which should not be included in this footnote, or in footnote 30, p. 13.

Page 2, line 10. This criticism is incorrect. The text statement is true generally, though perhaps not universally. The word "generally" should be inserted after "severalty" and there should be added to the footnote cross-references to chapter 15 and chapter 11 (neither of which had been begun at the time this draft was prepared).

Page 3, par. 2. This criticism is logically fallacious. The sentence "So long as men are mortal they make mistakes" does not logically imply that some men are immortal.

Page 3, par. 3. This criticism is unjustified. The paragraph does not refer simply to the Creek Tribe, as the criticism

assumes, but is general in its expression, and is
so intended. Of course every citation of a par-
ticular case is specific. It is true that neither
the Irwin case nor any other case cited proves the
general proposition given in the text, since no
particular case can logically prove a general prop-
osition, but the cases cited do support or exemplify
the general proposition. The argument that they
should be cited as mere dictum is logically fallac-
ious. The fact that the parties to the Irwin case
were not Indians does not show that no question of
Indian rights is involved in the case. In fact the
right of the non-Indian bankrupt in this case was
derived from and dependent upon the right of the
deceased, an Indian.

Page 4, par. 2. This criticism is unjustified. It proceeds from an assumption that in the case of Mason v. Sams fishing rights "in customary places outside the reservation" were being litigated. The fact of the matter is that the Interior Department regulations which were the subject matter of litigation in the case referred only to the Quinaielt river and, as the court pointed out, "the Quinaielt River through its entire course, flows through the reservation, emptying into the Pacific Ocean." (At page 255.)

Page 4, par. 2, footnote 9a - This criticism is unjustified. The case cited as an "accord" case deals with the same section of the same treaty and applies to allotments the same rule that Mason v. Sams applies to fishing rights, namely, that the treaty promise to the tribe confers rights or equities upon all the members of the tribe, which the Interior Department is bound to respect.

Page 5, par. 3. This criticism of repetitiveness is well taken. The second sentence referred to should be deleted.

Page 6, par. 1. This criticism is unjustified. That individuals' rights are discussed in the Seufert case will be obvious to anyone who reads the opinion, particularly paragraphs 2 and 3 on page 197 and paragraph 5 on page 198, not to mention the phrase quoted in the

2

Page 8, par. 2, footnote 17 - This criticism is well taken in so far as it deals with the order in which the cases are cited in the footnote. The Stephens case should be cited first. The Charles case should be third and should be labeled "Accord."

Page 9, footnote 19 - This suggestion is not well taken. United States v. Chippewa Tribe, 307 U. S. 1, is not in point here because in that case the entire tribe benefited and not a particular class.

Page 10. The criticism that this page is inadequately documented is beside the point, since Chapter 15 (Tribal Property) covers this ground and cites all the cases mentioned as well as many others. In the final version of Chapter 9, a cross-reference would take the place of any detailed statement or footnotes on the point here discussed.

Page 11. This criticism is unfounded, in substance, as noted in the memorandum to Assistant Attorney General Littell, dated November 1.

Pages 1 - 12. This criticism is similar to that made of page 10 and subject to the same answer.

Page 13, footnote 30. - See page 1, comment 1, paragraph 3, supra.

Pages 14 - 15. As a suggestion for abridgment of the text, this comment is well founded.

Pages 17 - 18. The criticism that pages 17 to 18 "give no conception of the progressive, historical and legislative treatment of this problem or of the existing law" is not well taken. These pages, together with page 19, give a concise and fair sketch of the development of the law. Instead of setting forth the "progressive, historical and legislative treatment" in detail, the author quite properly refers the reader to the excellent discussion of this by the Supreme Court in the *Cherokee Intermarriage* cases. The existing law is stated at pages 18 - 19, and the criticism that existing law is not stated is entirely without foundation. The critic's comment regarding the Osages is irrelevant and incorrect: irrelevant because it relates to trans-

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UNITED STATES
DEPARTMENT OF THE INTERIOR
WASHINGTON

1. I disagree with this comment (except as to the Fitzgerald case, which is a gross mistake) for reasons stated in my memo of December 13, 1947, that the statement in the text is not a proposition of law but a statement of historic fact, which 4 of the 5 cited cases illustrate. It seems to me that your point 50, infra, recognizes the distinction between a citation designed to prove a legal proposition and one designed to illustrate a fact situation.

1. Page 2, line 5. The text states that an allotment system or any act or treaty which extinguishes tribal title decrees to that extent the quantity of tribal property in which the individual may share. The criticism admits the truth of the statement but alleges that the cases in footnote 3 do not support it. The cases cited are Moore v. Carter Oil Co., 43 F. (2d) 322; United States v. Fort Smith and W. R.R. Co., 195 Fed. 211; United States v. Fitzgerald, 201 Fed. 295; Choate v. Trapp, 224 U. S. 665; The Kansas Indians, 5 Wall. 737. The criticism appears to be well founded. Moore v. Carter Oil Co. was a suit by a Seminole freedman claiming title to the mineral estate in forty acres of land allotted to him. While it is perfectly clear that allotments in severalty do decree *pro tanto* the quantity of tribal property in which the individual may share, no question of that kind was involved. Nor was such a question involved in the remaining cases. In the *Fort Smith* case, the question was whether the Creek Nation was entitled to receive $50 per mile under an act of Congress for a railroad right of way. The road had been constructed over allotted lands and the allottees had been compensated therefor by the railroad company. The court held that the tribe was not entitled to the claimed compensation. United States v. Fitzgerald was a case in which the United States sued for damages for the wrongful taking by the defendant from an individual Indian of sacks of wool sheared from the Indian's sheep.

Choate v. Trapp involved an illegal attempt of the State of Oklahoma to tax Indian allotments after the restrictions had been removed but prior to the expiration of the specific period of non-taxability fixed by the allotment agreement. The case of The Kansas Indians likewise deals with State taxation on lands held in severalty by individual Indians.

2. Page 2, line 10. The text states that the allottee of lands in severalty receives the land free from any claim on the part of the tribe or any other member of the tribe. The criticism is that this statement is not generally true, attention being called in that connection to the case of the Osage Tribe in which mineral rights were reserved to the tribe when allotments in severalty were made. The criticism is not correct. The statement is true generally. A slight correction would take care of the situation at Osage and other places such as the Blackfeet Reservation in Montana, where the mineral rights were reserved to the tribes.

3. Page 3, paragraph 2. This criticism calls attention to the statement in the text that "A distinctive feature of tribal property *** is that it is communal property." It is then alleged that the first sentence, page 7, of the text indicates that sometimes tribal property is not held in communal ownership. The latter statement reads: "When tribal property is held in communal

2

4. I do not agree that the case of Sizemore v. Brady is to be cited as mere dictum. The case upholds the constitutionality of the Act of June 30, 1902 (32 Stat. 500) as applied to an Indian dying on March 1, 1901. The basis of this holding is that the property was communal and the individual Indian therefore had no vested interest which Congress was constitutionally bound to respect. Since this is a principal point in the case, the statement that it is dictum is not justified, except in a sense in which every general principle enunciated in a case may be called dictum.

Gritts v. Fisher is like Sizemore v. Brady in this respect.

I agree that United States v. Cherokee Nation is not a square holding. It might be cited for dictum or comparision.

The Hackman case is useful for the dicta on the nature of tribal property at pp. 431-435, and not otherwise.

With respect to the Irwin case, the original criticism is that the case is not in point because the plaintiff is a white man. I think it

[ATTACHED P. 2]

ought to be said that this argument is invalid
and the conclusion is false. The issue in this
case is whether an Osage headright which has been
transferred to a non-Indian passes to his trustee
in bankruptcy. The issue depends upon the
nature of the interest that passed to the bank-
rupt. The Court holds that the interest is an
individual right of participation in a tribal
fund, subject to certain restraints on alienation.
This is not a complete definition, but it is
certainly a holding that can be properly cited
in support of the text sentence. The comment
of W.H.F. that the case depends upon special
legislation and is inadequate authority for
a general statement would be sound if this were
cited as sole authority. But it is cited with
other cases. I think that the last two sentences
of this comment are therefore not entirely justi-
fied. (This material on Oklahoma cases,
omitted in a second draft of the chapter).

and including all of
This particular
footnote were

[ATTACHED P.3]

ownership, the individual has no right as against the tribe to any
specific part of the property." The criticism is tenuous and could
readily be met by a slight change in phraseology.

4. Page 3, paragraph 2. The statement of the text is: "A dis-
tinctive feature of tribal property affecting the right of an Indian
to share in it is that it is communal property. (5) Each individual
is owner of it all as such since he is a member of the community.
By virtue of his being part of the community, he has an equitable
interest in the tribal property. (6) The general statement is that
where the tribe held legal title to its property it held it in trust
for its members."

The criticism is that the above paragraph apparently refers
specifically to the Creek Tribe although there is no indication of
such limitation; that the cases cited in footnote 5 should be cited
as *dictum inasmuch as they do not hold the proposition cited; that*
the case of *In re Irwin*, cited in footnote 6, is not in point inasmuch
as it held that an Osage headright held by a white person passes
to his trustee in bankruptcy and, therefore, the parties involved
were not members of a "community".

The criticism appears clearly to be in error in stating that
the text refers specifically to the Creek Nation. I read it as a
statement applicable generally to all tribal property. However, it
would appear to be incorrect to say that each individual "is the

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owner of it all." None of the cases cited in the footnote supports
such a statement. It would be more accurate to say that as a mem-
ber of the community each individual is interested in the whole.
The criticism concerning the citation in footnote 5 appears to be well
taken. Sizemore v. Brady, Gritts v. Fisher, and United States v.
Cherokee Nation, all contain general statements made in the course
of the decision on other points that tribal lands belong to the tribe
as a community and not to the members severally or as tenants in common.
The Heckman case was a suit to cancel conveyances of allotted lands
made in violation of Federal restrictions. It is no authority for
the statement in the text. The case of In re Irwin is cited in footnote
6 in support of the proposition that the individual member of the
tribe has an equitable interest in the tribal property. That case
dealt with an Osage headright which had been inherited by a white
woman. While the decision recognizes that the holder of an Osage
headright, whether Indian or white, has some sort of a property right,
the exact nature of the right is not definitely defined, and the
decision is based on special Osage legislation providing for a pro
rata distribution of tribal property among the individual members
of the tribe shown on a final roll of membership prepared in accord-
ance with Congressional directions. The case is questionable author-
ity for a general statement purporting to apply to all Indian tribes.

4

5. Page 4, paragraph 2. The text refers to the case of *Mason v. Sams*, 5 F.(2d) 255, and states that the court construes the treaty setting the reservation apart for the use and occupancy of the Indians as giving the Indians an exclusive right of fishing in the waters on the lands. The criticism is that the court's holding was based on section 3 of the treaty which provides that "the right of taking fish is secured for the Indians" in customary places outside the reservation, plus the fact that the Indians involved depend largely on fishing for their livelihood. The criticism is incorrect. The case involves the validity of certain departmental regulations which placed limitations on the right of the Indians to fish. Holding that the regulations were in part unauthorized, the court referred to the treaty provision quoted in the text and stated that the provision "should be construed as giving (?) the exclusive right of fishing on the reservation to these Indians." The statement in the text is, therefore, correct.

6. Page 4, paragraph 2, footnote 9(a). This footnote cites *Halbert v. United States*, 283 U. S. 753, as in accord with *Mason v. Sams*. The criticism is that the *Halbert* case involves the right of an Indian to allotment and does not support directly or indirectly the proposition for which it is cited. The criticism is correct. The questions involved in the *Halbert* case were (1) whether Indians

5

of certain tribes were entitled to allotments on the Quinaiilt Reserva-
tion, and (2) whether personal residence on the reservation lands
was essential to the right of allotment. I find nothing in the deci-
sion to support the statement in the text.

7. Page 5, paragraph 3. The criticism is that the statement in the text is repeated at page 6, paragraph 4. This is correct.

8. Page 6, paragraph 1. The text states that the nature of the individual member's right where a tribe holds property in common is discussed in *Seufert Bros. v. United States*, 249 U. S. 194. Further, that the court quoted the words of an Indian witness who compared a river in which there was a common right to fish to "a great table where all the Indians came to partake." The criticism is that the case cited was brought to establish a tribal fishing right and that there is no discussion concerning the nature of individuals' rights. The suit was brought by the United States to enforce on behalf of the Yakima Indians the right reserved in a treaty to fish at usual and accustomed places. The case does not decide whether the right so reserved is a tribal or an individual right. The case of *Mason v. Sams*, *supra*, points out that while the treaty was with the tribe the right to take fish at usual and accustomed places was plainly a right common to the members of the tribe — a right to a common is a right of an individual of the community. Viewed in this light it is not incorrect to say that the nature of the individuals' right,

6

where the tribe holds property in common, is discussed in the *Seufert Bros.* case. The criticism does not appear to be well taken.

9. Page 6, paragraph 2. The text refers to an opinion by the Solicitor holding that patents issued to the Mission Indians conveyed to the bands a right of use and occupancy and that the rights were not in individual members but in the tribe. The criticism admits that this is a correct statement of the general rule but suggests the paragraph is novel and that if the patents *enrolled* contain a reservation indicating that a greater estate than the one of use and occupancy was being conveyed to the Indian. The criticism is nebulous and hardly worthy of notice.

10. Page 7, paragraph 1. The statement in the text is that the individual Indian has no right as *against* the tribe to any specific portion of the tribal property. The criticism is that the case of *McDougal* v. *McKay*, 237 U. S. 372, and *Shulthis v. McDougal*, 225 U. S. 561, cited in the footnote, does not support the text. The criticism is correct. The *McKay* case involved a determination of the heirs of an infant who was enrolled after death. The only statement in the decision having any relation to the text is contained in the quotation from *Shulthis v. McDougal*, 170 Fed. 529, to the effect that so long as tribal relations continue a member of the tribe had no right to have a share of the tribal property set off to him as his private, separate

7

estate for the constitutional policy of the tribe was ownership in common. The decision of the Supreme Court in *Shulthis v. McDougal* dismissed an appeal in the case last cited for lack of jurisdiction and no statement in the decision lends any support to the text. It seems that the decision in 170 Fed. 529 should have been cited but as the question decided was how certain land to which an Indian would have been entitled had he survived descended under the provisions of the allotment agreement, the statement in point obviously is *dictum*. This is also true of *Mitchel v. United States*, 9 Pet. 711, cited in the same footnote and which involved a question of title to more than one million acres of land claimed under conveyances from Indian tribes.

11. Page 7, footnotes 15(b), (c), (d). Footnote 15(b) cites *Taylor v. Tayrien* as authority for the statement that the individual has only a prospective right to future income from tribal property in which he has no present interest. Footnote 15(c) cites the same case in describing the individual interest as an "inchoate right". Footnote 15(d) cites *McKee v. Henny, Woodbury v. United States*, and a Solicitor's opinion in describing the individual interest as a "float". The criticism is that the cases cited deal with situations after enrollment and prior to allotment of lands or the allocation of funds, and hence it would more properly seem to come within the discussion on individual restricted property; that all of the cases cited on this

8

page deal either with the Five Civilized Tribes or the Osage Indians; that due to the distinctive character of the title under which these tribes hold their lands there should be an acknowledgment of this fact and also a discussion of whether or not this law is applicable in other situations.

The statement that all of the cases cited deal with the Five Civilized Tribes or the Osage Indians is incorrect. The case of *Woodbury v. United States* was a suit for allotment on the White Earth Reservation in Minnesota in which it was held that the right of an Indian to an allotment terminated with his death *where* the death occurred before the time when, in the orderly administration of the allotment act, the Indian could lawfully make an application and selection. While it is largely a matter of choice whether the situation discussed in the text should be covered under the heading "Individual Rights in Tribal Property" or the heading "Individual Restricted Property", it seems that the former place is the more logical since the right discussed has not yet become fully individualized. The chief difficulty, as I view it, in citing cases dealing with the Five Civilized Tribes and the Osage Indians is that these tribes have always been the subject of special legislation, including special agreements or acts of Congress providing for the division of the tribal property among the members of the tribes as shown by rolls fixing finally and definitely the tribal membership. Under such legisla-

9

tion, the right of the individual Indian in tribal property differs materially from that obtaining elsewhere where the membership fluctuates due to death of old members and birth of new members.

In the latter situation, death terminates all rights of membership.

In the former the heirs of deceased members succeed to the rights of the decedent with respect to distributions of tribal property.

Accordingly, the text appears to me to be inadequate in failing to discuss and differentiate between the rights of the individual Indian in the two situations mentioned. Moreover, the citation of *Taylor v. Tayrien*, an Osage case, in support of the statement defining the individual right in tribal property as "inchoate" is unjustified in view of the later case of *In re Irwin*, 60 F. (2d) 495, in which the same court recognizes that the right of an Osage Indian in the tribal property has *become at least some part* of a property right and with respect to its previous characterization of the right said:

> "In those opinions we characterized the right of the Indian owners as 'inchoate,' because Congress had plenary power over Indians and their property, such as controlling its disposition upon death. The opinion stated that precise definition of the quality of the peculiar right of the Indian was not undertaken; the word 'inchoate' was used, perhaps ineptly, as a characterization of a contingent right, the enjoyment of which was subject to regulation by Congress, and to which the right of descent might be curtailed or cut off. The speculative value of the right was discussed, but as stated in the opinion, only as an aid to statutory interpretation."

The necessity for differentiation between the two situations mentioned above is further illustrated by the unqualified statement

10

12. Agree, but would add, "and the citation to the Charles case should appear after the other citations and with the explanatory signal "Accord" also." (This clinical correction was made to the carbon sent to the mimerographer.)

Otherwise, your comment sounds as if the Charles case is not in point. I think it is, in l.3 of point 12, "tribal should be "individual"."

13. I disagree. The text refers to a "given class" in the sense of something less than "all members of the tribe" which is the subject of the preceding clause. Thus construed, the text would not get direct support from the Chippewa Case because that case dealt with the entire tribe, not a partial class. See my memo of December 13.

at the top of page 8 that "The interest of the Indian in tribal
property is not vendable or descendable." This is not true where
Congress has provided for the distribution of tribal property on
the basis of final rolls.

12. Page 8, paragraph 2, footnote 17. The statement of the text
is that the lands and moneys of the Five Civilized Tribes are public
lands and public moneys and are not held in tribal ownership. The
criticism is that the case of *United States v. Charles*, cited in sup-
port of the text involves the Tonawana Band of Indians in New York
State and not the Five Civilized Tribes. The criticism is correct.

13. Page 9, footnote 19. The statement of the text is that
where a fund is created for a specific purpose and payable only to
a given class, it may still be communal. Citation is made to a
Solicitor's opinion. The criticism is that *United States v. Chippewa*
*Tribe*, 307 U. S. 1, should have been cited. The criticism is correct.
In the *Chippewa* case, an interest-bearing fund had been created in
the United States Treasury for "all the Chippewa Indians of Minnesota"
which fund, subject to the distribution of interest in the meantime
was to be paid out at the end of a specified period to "all of said
Chippewa Indians and their issue then living." The effect of the
decision of the Supreme Court is that the fund should remain a tribal
fund subject to appropriation by Congress for the benefit of the
Indians notwithstanding the specific provisions contained in the act

11