May 31, 1939

3. Whether the large area of lands (approximately 85,000 acres) purchased through the Resettlement Administration, the title to which is now in the United States but administration in the Secretary of the Interior for the benefit of the Indians of the Fort Peck Reservation, will also be subject to allotment in the event such lands are later, by appropriate legislation, added to and made a part of the tribal holdings of the Fort Peck Reservation. The lands purchased through the Resettlement Administration are private lands within the reservation which had originally been dis posed of as surplus lands or which were fee patented allotments. Such lands would not come within the provisions of the 1914 act, which authorizes the making of further allotments of "surplus lands" within the reservation which "remain undisposed of." There is no allotment act applying specifically to the Fort Peck Reservation which would authorize the allotment of such newly acquired tribal holdings. The act of February 14, 1920 (41 Stat. 408, 421), which authorizes the Indians entitled to allotments under existing laws to select lands classified as coal lands does not authorize allotments in addition to those allotments authorized by the 1914 act, but was intended to permit the selection of coal lands under the authority of the 1914 act. The terms of the General Allotment Act of February 8, 1887 (24 Stat. 388), particularly as extended to lands purchased for Indians by the act of February 14, 1923 (42 Stat. 1246), are broad enough to provide authority for the allotting of any tribal lands within an Indian reservation, but it is doubtful whether this general act would apply to a reservation, such as Fort Peck, where the manner of allotment and disposition of the reservation has been comprehensively provided for in special legislation. Since, however, the resettlement lands will not become tribal lands without act of Congress, all questions as to their availability for allotment should be removed through specific provision on that point in the legislation.

4. Whether the undisposed of opened lands of this reservation (embracing around 41,500 acres) would also be subject to allotment if and when restored to tribal ownership.

This question should probably be answered in the affirmative, since the restored lands would continue to be the surplus lands within the reservation remaining undisposed of which may be allotted under the act of 1914. However, since restoration of such lands would require an act of Congress, the question of allotment should be covered in the legislation.

5. There is also another question; that is, certain leasing funds have been collected on many of the allotment selections covered by the unapproved schedule referred to above. This money is

being held in a special deposit awaiting final disposition of the question whether the allotments will be made or not. If the allotments are granted at this late date, who will be entitled to this land leasing money collected after the selections were made but before the allotments were approved?

In view of the rule stated in the cases of Hy-Yu-Tse-Mil-Kin v. Smith; Bonifer v. Smith; and Woodbury v. United States, supra, that equity will treat as done what ought to have been done, the rentals which have been accruing from the unapproved allotment selections should be placed to the credit of the selectors. This follows from the fact that the selectors would have been privileged to receive these rentals if the allotment selections had been approved in the usual manner in which previous allotment selections of this reservation have been approved.

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

CONTRACTS OF CANADIAN INDIANS WITH ATTORNEYS TO PROSECUTE CLAIMS AGAINST THE UNITED STATES

Opinion, June 1, 1939

INDIANS AND INDIAN AFFAIRS-CONTRACTS-SEC. 81, TITLE 25, UNITED STATES CODE.

A contract by which Indian residents and subjects of the Dominion of Canada propose to employ an attorney to prosecute claims against the United States is not subject to the approval of the Commissioner of Indian Affairs and the Secretary of the Interior. Sections 1, 2, and 81, title 25, United States Code, are confined in scope and operation to Indians who reside in and are subject to the jurisdiction of the United States and have no application to the subjects of a foreign nation.

MARGOLD, Solicitor:

In my opinion dated February 8, 1939 (M. 30146), I expressed the belief that section 81, title 25, United States Code, is confined in its scope and operations to Indians who reside in and are subject to the jurisdiction of the United States and has no application to the subjects of a foreign nation. Accordingly, it was held that a contract, by which Indian residents and subjects of the Dominion of Canada propose to employ an attorney to prosecute claims against the United States, is not subject to the approval of the Commissioner of Indian Affairs and the Secretary of the Interior. Counsel for the Canadian Pottawatomie Indians has now submitted a brief supplemented by a letter addressed to me under date of May 20, containing arguments that a contrary conclusion should be reached.

June 1, 1939

The primary contention relied upon in the brief is that section 81, title 25, United States Code, is a statute designed "to regularize the process by which claims may be prosecuted against the United States" and, as such, its operation is internal, rather than extraterritorial, in regulating the employment of counsel to prosecute a claim against the United States, notwithstanding the claimants are foreign subjects. That is to say, the argument advanced is that the statute regulates a purely domestic matter, namely, the procedure for presenting a claim against the United States, and its application to foreign subjects who are claimants does not constitute an extraterritorial application of the statute. In support of this argument counsel relies to some extent on the language of the section extending its provisions to "Indians not citizens of the United States."

In letter of May 20, counsel calls attention to sections 1 and 2, title 25, United States Code, committing to the Secretary of the Interior and the Commissioner of Indian Affairs the management of all matters arising out of Indian relations and suggests that since the employment of an attorney to prosecute the claims of Canadian Indians against the United States to enforce the payment of obligations arising out of treaties made between the United States and their ancestors is a matter arising out of Indian relations, the contract of employment would be subject to the approval of the Secretary of the Interior and the Commissioner of Indian Affairs.

After carefully considering the arguments advanced by counsel, I remain of the opinion that the matter of employment of counsel by the Canadian Pottawatomies is not one coming within the jurisdiction of this Department.

I do not question the authority of Congress to prescribe the conditions under which claims against the United States may be prosecuted in the courts of the United States even by citizens of a foreign nation. That Congress has such authority was recognized in my opinion of February 8. None of the statutes relied upon by counsel purport to regulate the prosecution of claims against the United States.

Section 81, title 25, United States Code, contains restrictions and limitations designed to protect Indian tribes and individual Indians against the making of improvident contracts. The reference in that section to "Indians not citizens of the United States" does not refer to the subjects of a foreign nation, but to Indians residing in the United States who at the time of the enactment were not United States citizens. Elk v. Wilkins, 112 U. S. 94.

Section 1 of title 25, United States Code, creates the office of Commissioner of Indian Affairs. Section 2 commits to the Commissioner, under the direction of the Secretary agreeably to such regulations as the President may prescribe, the management of all Indian Affairs

and of all matters arising out of Indian relations. As pointed out in Rainbow v. Young, 161 Fed. 837, the authority so conferred on the Commissioner was intended to be sufficiently comprehensive to enable him, agreeably to the laws of Congress and to the supervision of the President and the Secretary, to manage all Indian affairs, and all matters arising out of Indian relations, with a just regard, not merely to the rights and welfare of the public, but also to the rights and welfare of the Indians, and to the duty of care and protection owing to them by reason of their state of dependency and tutelage.

Statutes such as these obviously were enacted not in an attempt to regulate the prosecution of claims against the United States, but in the exercise of the general guardianship powers possessed by the National Government over its Indian wards. These guardianship powers obviously do not extend to the subjects of a foreign nation. The national guardianship extends only to dependent Indian communities within the borders of the United States. United States v. Sandoval, 231 U. S. 28, 46. The theater for the exercise of the guardianship powers is "within the geographical limits of the United States." United States v. Kagama, 118 U. S. 375, 384.

The fact that the Canadian Pottawatomies may be descendants of ancestors at one time subject to the jurisdiction of the United States is not important. Their status is controlled, not by the nationality of their ancestors, but by their own nationality. As the subjects of a foreign nation, they are without the scope of the statutes enacted for the protection of Indians of the United States. Such statutes subject them to no disability. The validity of their contracts made in their own country necessarily must be determined by the laws of that country. In their contractual relations and dealings with others in this country, they occupy the position of other alien subjects, enjoying like rights and privileges. What these rights and privileges may be need not be determined here other than to point out that the protection extended to Indians of the United States by the statutes under consideration is not one of them. If these Canadian Indians are entitled to the protection of such statutes, they are entitled to the protection of all other general statutes enacted by Congress for the protection of the Indian wards of the United States. Aborigines of all other countries would be entitled to like protection. A construction permitting such a far-reaching result must be rejected as an unreasonable extension of the guardian and ward relationship existing between the United States and the Indians, and as a violation of the principle announced in the case of The Apollon, 9 Wheat. 362, that, however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons upon whom the legislature have authority and jurisdiction.

June 10, 1939

I am convinced that my former opinion is correct and should not be disturbed.

Approved :

OSCAR L. CHAPMAN,

Assistant Secretary.

EXTINGUISHMENT OF UNITED STATES LIEN ON LAND WITHIN RECLAMATION PROJECT BY REASON OF SALE FOR STATE OR LOCAL TAXES

Opinion, June 10, 1939

LOCAL TAX LIEN-PRIOR UNITED STATES LIEN UNDER WATER RIGHT APPLICATION. A lien for local taxes assessed merely upon the interest of the property owner and subsequent in point of time to the lien of the United States under a water right application, is inferior to the lien of the United States. PRIORITY OF UNITED STATES LIEN OVER LOCAL TAX LIEN WHERE NO STATE STATUTE. A local tax lien which is not given priority by State statute is subordinate to a lien of the United States which is prior in time.

PRIORITY OF UNITED STATES LIEN OVER LOCAL TAX LIEN GIVEN PRIORITY OVER ALL OTHERS BY STATE STATUTE.

Where a local tax lien has, under State statute, priority over all other liens, this Department should, nevertheless, take the position, on the authority of the case of City of New Brunswick v. United States, 276 U. S. 547, that a lien of the United States which is prior in time is paramount to such tax lien and that a purchaser at a sale of the property for the nonpayment of such taxes takes subject to the lien of the United States. MARGOLD, Solicitor:

My opinion has been requested as to whether a sale of land within a reclamation project for State or local taxes operates to extinguish a lien on the land created in favor of the United States under a duly recorded water right application to assure the payment of construction, operation, and maintenance charges.

It is understood that the inquiry relates to land in private ownership and, for purposes of this opinion, it will be assumed that the tax, for the nonpayment of which the land has been or is about to be sold under State law, was validly assessed on the land by the State or local authority and that the lien therefor attached subsequent in point of time to the recordation of the water right application.

Generally, liens take precedence in the order of their creation and those prior in time are prior in equity. See, Portneuf-Marsh Co. v. Brown, 274 U. S. 630, 636. But tax liens, which, by statute, are given a preferred status, are superior to any mortgage or lien on the land held by a private person, even though the tax was assessed and the lien therefor attached subsequent to such private mortgage or lien, and a purchaser at a sale of the land for such taxes, in the absence

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