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would have been counted. There is, however, no indication that these Indians were regarded differently than their fellow whites in so far as apportionment was concerned. The whites were counted regardless of whether they paid taxes as were also the Indians. The distinction between these two groups and the "Indians not taxed" group was that the former were subject to the tax laws of the Government whereas the latter were not.

This seems clearly to have been the understanding of the Bureau of the Census. In a "Report on Indians Taxed and Indians Not Taxed in the United States at the Eleventh Census: 1890," I find the following statement:

Indians taxed and Indians not taxed are terms that can not be rigidly interpreted, as Indian citizens, like white citizens, frequently have nothing to tax. Indians subject to tax and Indians not subject to tax might more closely express the distinction.

*

It is to be constantly borne in mind that Indians living scattered among whites were counted in the general census, while Indians on reservations, under the care of the government, the Six Nations of New York and the Five Civilized Tribes of the Indian territory, were not counted in the general census but in a special Indian census.

As recently as the census of 1930 the Bureau of the Census again reiterated its understanding of the phrase "Indians not taxed" as meaning "Indians not subject to taxation."

This interpretation of the phrase is not only the reasonable one but is, in addition, the only interpretation which can be practically administered. If the phrase were taken to mean Indians actually paying taxes, the census enumerator would be faced with a problem of determining at what point between census periods the payment of a tax entitled an Indian to be counted. For example, suppose a particular Indian had paid a tax in 1932 but had paid no other taxes between 1932 and 1940. Suppose in fact he had paid the tax in 1932 and then returned to his reservation and remained there continuously from 1932 until the census enumeration of 1940. Or, suppose that though a tax had been levied upon the property of this Indian he was not obliged to pay the tax until 10 days after the date of the enumeration. These hypothetical questions are but a few of the many which would arise to plague the census enumerator in the event the phrase were construed to mean Indians actually paying taxes. In order to administer the phrase as thus interpreted it would be necessary in view of the many problems that would arise to read into the phrase a great variety of implications. This might be countenanced only if such an interpretation reflected the object of the Constitution but here the object is not in doubt. It is reflected in the circumstances which prevailed at the time of the adoption of the Constitution. It has been administratively interpreted

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in the light of those circumstances and it has been so understood

by subsequent legislators.

In the debate in Congress on the Civil Rights Bill, the objection was made that the amendment to the bill "excluding Indians not taxed" from citizenship would require an Indian to have property upon which a tax was levied before he could become a citizen. To this objection Mr. Trumbull, author of the amendment, replied.

* * *

* The Senator from Missouri understands it to be a property qualification to become a citizen. Not at all. It is a constitutional term used by the men who made the Constitution itself to designate * a class of persons who were not a part of our population. It is not intended as a property qualification. That is not the meaning of it. The Senator wants to know why, if an Indian cannot be a citizen without being taxed, should. a white man or a negro be a citizen without being taxed. If the negro or white man belonged to a foreign Government he would not be a citizen; we do not propose that he should be; and that is all that the words "Indians not taxed," in that connection, mean. (Cong. Globe, 39th Cong., 1st sess., p. 572.)

Significantly I find the following paragraph in President Johnson's message to Congress vetoing the Civil Rights Bill:

By the first section of the bill, all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship. [Italics supplied.] (Cong. Globe, 1st sess., 39th Cong., p. 1679.)

To him, as to Justice Harlan in the case of Elk v. Wilkins, 112 U. S. 94, "Indians not taxed" meant Indians not subject to taxation.

In view of the foregoing, I am clearly of the opinion that "Indians not taxed" means Indians not subject to taxation.

II. DOES THE PHRASE "INDIANS NOT TAXED" REFER TO A PARTICULAR TAXING AUTHORITY?

It has been suggested that the phrase "Indians not taxed" refers only to taxation by the States. I find that neither reason nor decision supports this conclusion.

The suggested construction serves to restrict the meaning of the phrase. As such it violates a cardinal principle of constitutional construction that words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted. Pollock v. Farmers' Loan and Trust Co., 158 U. S. 601, 618. The restriction might be countenanced only if it were in consonance with the object of the Constitution. Gibbons v. Ogden, 9 Wheat. 1. It is not. As we

have seen, “Indians not taxed," was a phrase used to describe individuals who were outside the community of people of the United States and hence not entitled to be counted in the apportionment of representatives. The object was not to exclude a particular group from representation but to include all who could reasonably be denominated members of this community of people. Thus, express provision was made for the inclusion of subject Indians, as well as of slaves and persons bound to service for a term of years. If the phrase is restricted to taxation by the State it means that unless a reservation Indian subjects himself to the tax laws of the State, either by settling or by purchasing property within its jurisdiction, he cannot be regarded as a member of the community of people of the United States, even though he is a citizen and as such entitled to the same civil and political status as other citizens.

The restricted interpretation can be founded only upon the argument that the State has the exclusive right to determine who within its borders shall be counted among its numbers for apportionment purposes. The argument, however, is fallacious. It confuses a Federal rule for the determination of the aggregate number of representatives with a State right to prescribe the qualifications of those who would vote for the representatives. As observed by the Federalist:

It is a fundamental principle of the proposed constitution, that as the aggregate number of representatives alloted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this alloted number in each state is to be exercised by such part of the inhabitants as the State itself may designate. [Italics supplied.] The Federalist, No. 54.

The power to recognize a person as a member of the community of people of the United States resides in the Federal Government as well as in the States. In fact, it resides, in the most important instance, exclusively within the power of the Federal Government. I refer to the admission and naturalization of aliens. The Federal Government may admit aliens and may provide for their becoming citizens of the United States as well as of the States wherein they reside. Thus, by Federal action alone, an individual may be recognized as a member of the community of people of the United States, and as an inhabitant of a State entitled to be counted among its numbers for apportionment purposes. Where, as in this case, the Constitution of the United States directs that all people comprising the community of people of the United States shall be counted for the purpose of apportioning representatives, and where, as here, the criterion for determining whether a person is a member of the community of people of the United States is made to depend on whether he is or is not subject to taxation, and where it has been shown that the Federal Government has the power to admit a person to the com

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munity of the people of the United States and of the State, it is only reasonable to assume in the absence of a contrary constitutional provision or legislative intent, that the phrase "Indians not taxed" refers to the exercise of Federal as well as State power.

In the Constitution, provision is made for the establishment of a system of internal revenue by the Federal Government. Had there been any expression or intention on the part of the Federal Government to subject Indians to taxation at that time or had there been any indication that Indians were within the scope of the taxing jurisdiction of the Federal Government, we should have cause to believe that only State taxation was referred to by the phrase "Indians not taxed." For if the phrase referred to Federal taxation as well as State taxation, and if at the time of the adoption of the Constitution Indians were subject to Federal taxation, the phrase would be meaningless as there would have been no "Indians not taxed." But, as I have pointed out earlier, the exact contrary was the case. The treaties made by the Federal Government with the Indian tribes guaranteed them the peaceful and uninterrupted possession of their domain. Many of the treaties guaranteed total exemption from taxation. And, though the Federal Government passed both direct and indirect taxes, they were not considered as having any application to Indians living in their tribal communities.

In view of the foregoing I can only conclude that the phrase "Indians not taxed" refers to Federal as well as to State taxation. The question which has been propounded to me may then be formulated as follows: What Indians are not subject to taxation?

Since all Indians are today subject to taxation by the Federal Government (Superintendent v. Commissioner, 295 U. S. 418), there are no longer Indians not subject to taxation. The criterion for their recognition as members of the community of people of the United States has been satisfied and they are all entitled to be counted in the apportionment of representatives. That some may still be not subject to State taxes does not alter the conclusion. The position of such Indians is analogous in this regard to that of members of the United States army who while stationed at a military reservation within a State are counted inhabitants of the State for apportionment purposes, notwithstanding the fact that they are not subject to the tax laws of the State. I perceive no reason in either the Constitution or the apportionment process for assuming that Indians should be regarded differently.

Approved:

W. C. MENDENHALL,

Acting Assistant Secretary.

LENA M. BEAN, WENDELL C. BEAN, JAMES SHELTON,
MORTGAGEE AND PROTESTANT

Decided November 12, 1940

ENTRY-REINSTATEMENT.

Bean made homestead entry May 1, 1930, and obtained an extension of time to submit final proof until May 1, 1937. Relinquishment of the entry was filed July 7, 1937, together with an application to make homestead entry of the land by the son of Bean. Shelton filed petition for reinstatement of the entry and a protest against the application of Bean's son, alleging that he held a recorded mortgage on the land executed by Bean to secure the payment of her promissory note for $650 with interest. Shelton alleged that Bean had fully complied with the homestead requirements and the relinquishment and application was for the purpose of defrauding him. Shelton had filed no notice of his encumbrance on the land as required by Rule 98 of Practice. Bean had filed an affidavit in 1935 admitting that she had never established residence on the land. Held, (1) that Shelton, not having filed any notice of his lien, had no basis for his complaint that he had no notice of the relinquishment; (2) that a transferee or mortgagee, prior to patent or prior to submission of final proof acquires no greater right or estate than exists in the homesteader; (3) that had Shelton received notice of the relinquishment he would have been in no better position to oppose the relinquishment then than now, as Bean could not show that she maintained the residence required within the statutory life of the entry and the entry would have to be canceled, and, therefore, there was no basis for its reinstatement.

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One who takes a mortgage from an entryman who holds but an inceptive title to the entry has a precarious and uncertain security as the entry is subject to forfeiture for noncompliance with the homestead requirements and his lien would not become enforceable unless and until the entryman had made acceptable final proof and obtained equitable title to the land. MORTGAGE-NOTICE.

A subsequent applicant for homestead entry, with notice of the existence of a mortgage on a prior, unperfected entry on the land that had been relinquished, is not charged with the notice of a valid lien on the land for none such exists.

CHAPMAN, Assistant Secretary:

Lena C. Bean made enlarged homestead entry, Great Falls 076319, for the NE4 sec. 10, T. 29 N., R. 1 E., M. M. Montana, on May 1, 1930. On March 8, 1935, the Commissioner of the General Land Office denied her application for extension of time to submit final proof on the ground that it was shown that she had not established or maintained residence on the land; that she would not be able to comply with the requirements of the homestead law if extension was granted; that there was no authority of law for granting the extension of time in cases where the statutory period expired after December 31, 1934.

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