question is not before us for determination. Carl Lewis is no party to, and a determination of his rights has no place in, this proceeding. The applicants are Samuel W. Lewis and Frank O. Lewis. The latter is not mentioned in the tax certificate. And we think the former is estopped by the decree in foreclosure from questioning the ownership of the improvements by RACC in this proceeding.

Underlying all of the appellants' arguments is the assumption that the Department is attempting to deprive them of a vested right to make entry based on their settlement. This assumption is without foundation, because, (a) even a vested right may be abandoned, (b) they have no such right in the absence of good faith, and (c) such rights as they might have acquired are always subject to denial in order to prevent an inequitable result.

It should be pointed out that in any event the lands involved were not designated under the stockraising act of December 29, 1916 (39 Stat. 862, 43 U. S. C. sec. 291), prior to the Executive order of withdrawal of November 26, 1934, and that therefore the appellants acquired no rights under that act. George J. Propp, 56 I. D. 347 (1938). At most, if the lands are subject to designation under the enlarged homestead act (act of February 19, 1909, 35 Stat. 639, 43 U. S. C. sec. 218), they would be entitled to 320 acres under each of the applications, and if not, then to 160-acre entries. Instructions, January 12, 1921, 47 L. D. 629; Alfred O. Lende, 49 L. D. 305 (1922); Don Carlos Bernard, September 24, 1937, unpublished, A. 19233; section 2289, R. S., 43 U. S. C. 161. However, our conclusion is that the applications should be denied in their entirety.

Upon rehearing, the decision of July 5, 1939, is adhered to and the Commissioner's decision again

Affirmed.

EXTRADITION TO INDIAN RESERVATIONS OF INDIAN

FUGITIVES

Opinion, August 14, 1941

EXTRADITION-INDIAN FUGITIVES-AUTHORITY OF STATE-AUTHORITY OF INTERIOR DEPARTMENT AUTHORITY OF INDIAN TRIBE CUSTODY OF INDIANS OUTSIDE INDIAN RESERVATIONS.

No extradition of Indian fugitives from the jurisdiction of a State may be obtained as States are authorized to extradite fugitives only pursuant to the Constitution and laws of the United States, which do not include the extradition of Indians to Indian reservations.

(a) The Interior Department has no authority to extradite Indians from one reservation to another, but Indian tribes have authority to request of each other the return of fugitives and to act on such requests to the extent of removing fugitives from the reservation or of turning over the fugitives to the authorities of the tribes requesting extradition.

August 14, 1941

(b) Neither the Indian police nor the tribal police have recognized authority to hold Indians in custody outside Indian reservations and legislation is necessary to authorize such custody by Federal or tribal officials as agents of the tribe seeking extradition.

COHEN, Acting Solicitor:

My opinion has been requested by the Indian Office on the general subject of the authority and procedure for the extradition of Indians to Indian reservations from which they have fled, for the purpose of trial for the commission of offenses or for execution of sentence. Indian Office has phrased the problem as follows:

*

The

The question arises whether or not an Indian may, under authority of an Indian Court, be taken against his will from one reservation to another or from any other place outside the reservation to a reservation, or from one state to an Indian reservation in another state in order to try him before the Court of Indian Offenses or to carry out a sentence previously imposed. The presentation of the question follows a letter of February 3, 1941, from the Chief Special Officer to the Indian Office reporting that extradition of Indians is important to the efficient operation of Indian courts, particularly in dealing with cases of desertion, and that due to the doubt as to the authority for such extradition, the position has been taken that extradition should not be attempted except within the boundaries of one State.

To consider this question I have divided the problem into two parts: First, extradition of an Indian within the jurisdiction of a State, and second, extradition of an Indian from another Indian reservation.

(1) Extradition from within State jurisdiction.—If an Indian has fled from the reservation where he has committed an offense and is within the jurisdiction of the State, the question of extradition is the same whether or not the State is the one in which the reservation is located. In either case there can be no extradition unless State officers are authorized to extradite fugitives from Indian reservations. It has long been decided that extradition by a State is not a matter of discretion or comity but is governed exclusively by the Constitution and laws of the United States. Ex parte Morgan, 20 Fed. 298 (D. C. W. D. Ark. 1883); United States v. Meyering, 75 F. (2d) 716 (C. C. A. 7,1935). The Constitution in Article IV, section 2, provides for extradition between States, and the statutes of the United States in 18 United States Code, section 662, provide for extradition either from a State or Territory. The Morgan case expressly held that there can be no extradition to an Indian reservation on the request of the tribal authorities as a reservation is neither a State nor a Territory. My conclusion, therefore, is that until legislation is obtained authorizing action by the States in this situation there can be no extradition of Indians from the jurisdiction of a State.

(2) Extradition from another Indian Reservation.-Two questions are basic to this discussion: (a) The power of reservation officials to authorize extradition from the reservation of refuge, and (b) the authority to hold the prisoner in custody during transit outside the

reservation.

(a) Neither the Indian Service nor the Interior Department has authority to cause the extradition of an Indian from one reservation to another. Such authority would have to be based upon statute. Not only is there no statute, but the statutes which would have authorized at least removal of an Indian from a reservation not his own by Interior Department officials in their discretion were repealed. The repealed statutes, sections 220 through 226 of title 25 of the United States Code, authorized the Commissioner and the Indian Agent to remove from reservations persons found there contrary to law, or thought to be undesirable, or absconding Indians, and to obtain the necessary force to effect such removal, including use of the military forces. These statutes were held to authorize the removal from an Indian reservation of Indians not belonging there, but not to authorize the forced return of such Indians to another reservation. United States v. Crook, Fed. Cas. No. 14891. Thus at no time, even when most authority was lodged in the Indian Service, was there authority to return fugitive Indians to reservations against their will.

However, an Indian tribe has authority to remove from its reservation persons who are not members of the tribe (55 I. D. 48-50). Moreover, the law and order regulations expressly authorize the Courts of Indian Offenses to order the delivery of offenders to the proper authorities of a tribe or reservation, as well as to the proper authorities of the State or Federal Government, where such authorities consent to exercise jurisdiction (25 CFR 161.2). I have no doubt that part of the unabridged sovereignty and authority of Indian tribes is to request of other tribes the return of fugitive members and to act upon such requests to the extent of removing the fugitive from the reservation or of turning over the fugitive to the proper authorities of the tribe requesting extradition.

(b) It is apparent from the foregoing that, if reservations were contiguous, extradition could be effectuated by the Indian police removing the fugitive upon court order to the border of the reservation where he could be received by the Indian police, acting upon the authority of the court of that reservation. Where, however, the reservations are not contiguous, a problem arises from the fact that the Indian police established under the appropriations for maintaining law and order on Indian reservations have no authority outside the Indian reservation for which they were appointed (18 Op. Atty. Gen. 440; Memo Sol., Int. Dep't, May 5, 1939, pt. IV). Even where there are

August 14, 1941

tribal police appointed and paid by the tribe, it is doubtful whether the authority of such police to hold another Indian in custody would be recognized outside an Indian reservation, since Indians outside the reservation are subject to State law, and since as a general rule peace officers of one sovereignty have no more authority outside that sovereignty to hold a person in custody than a private citizen. You will note that State officers are given authority to hold fugitives in custody during extradition across other States by the Federal statute adopted under Constitutional authority (18 U. S. C. sec. 664).

The fact that extradition may exist and function between separated tribes when implemented by Federal authorization is revealed by the treaties made by the United States with each of the Five Civilized Tribes in 1866 (14 Stat. 755, 769, 785, 799). These treaties provided for a general council composed of delegates from all the Indian tribes in the Indian territory with "power to legislate upon all subjects and matters pertaining to the intercourse and relations of the Indian tribes and nations resident in the said territory, the arrest and extradition of criminals escaping from one tribe to another, the administration of justice between members of the several tribes of the said territory *" This power existed until the acts of Congress, beginning with the act of June 7, 1897 (30 Stat. 83), placed jurisdiction of Indian offenses in the Indian Territory in the United States courts in the Territory and abolished the tribal courts and tribal governments in that Territory. Extradition power in the Indian Territory was implicitly recognized by the Attorney General in an opinion in 1883 (17 Op. Atty. Gen. 566), advising this Department on the disposition of an Indian held prisoner at Fort Reno, Oklahoma. The prisoner was a Creek Indian who had murdered an Arapaho Indian on the Potawatomi Reservation in the Indian Territory. The Attorney General said:

If no demand for Foster's surrender shall be made by one or other of the tribes, founded fairly upon a violation of some law of one or other of them having jurisdiction of the offense in question according to general principles, and by forms substantially conformable to natural justice, it seems that nothing remains except to discharge him. [P. 570.]

While Indian tribes have complete legal authority to seek and grant extradition, the custody problem needs solution where the two reservations are not contiguous and the prisoner refuses to remain in the custody of the Indian police officer while outside either reservation. In this situation it would appear necessary to obtain authority for holding a prisoner in involuntary custody between the reservations, in order for extradition between separated tribes to be accomplished, when the prisoner is not otherwise subject to custody by the agents of

593212-45-25

the tribe or the Department, as in the case of minors and mental incompetents (Peck v. A. T. & S. F. Ry. Co., 91 S. W. 323). Legislation would be appropriate to authorize Federal law enforcement officers or the tribal police to hold prisoners in involuntary custody outside of Indian reservations as agents of the tribe seeking extradition. Consideration might be given in this connection to the legislation proposed by the Indian Office to enlarge and define the duties of Federal law enforcement officers on Indian reservations.

Approved :

OSCAR L. CHAPMAN,

Assistant Secretary.

MARGARET SCHARF, APPLICANT, R. E. HAVENSTRITE,
INTERVENER

(MOTIONS FOR REHEARING AND INTERVENTION)

Decided August 15, 1941

SCHOOL LAND GRANTS-MINERAL CHARACTER PRESUMPTION THAT TITLE PASSED TO THE STATE

There is a presumption, which exists until the contrary is clearly shown, that land granted to a State for school purposes was of the character contemplated by the grant in so far as its then mineral or nonmineral character was concerned, and that therefore the title to a school section identified by survey has passed to the State.

SCHOOL LAND GRANTS-DEPARTMENTAL DETERMINATIONS OF MINERAL CHARACTER IN PROCEEDINGS ON AN APPLICATION FOR AN OIL AND GAS LEASE NECESSITY FOR SUBSTANTIAL EVIDENCE.

Mere allegations to the effect that the land granted for school purposes was mineral in character and that the title therefore did not pass to the State, unsupported by substantial evidence rebutting the presumption that the title had passed to the State as nonmineral land, will not warrant this Department, upon an application for an oil and gas lease, to entertain proceedings for a determination of the mineral character of the land.

SCHOOL LAND GRANTS MINERAL LANDS-ACT OF JANUARY 25, 1927-DETERMINATION OF MINERAL CHARACTER.

School lands which, because of their mineral character, could not pass under the original school grants, nevertheless passed to the State by virtue of the act of January 25, 1927, as amended (44 Stat. 1026, 47 Stat. 140, 43 U. S. C. sec. 870), provided certain circumstances enumerated in that act were not present. Therefore even if there were sufficient evidence offered to rebut the presumption as to the nonmineral character of the land, this Department will not, on an application for an oil and gas lease, determine the mineral character of the land unless the existence could be shown of any of those circumstances.