Indians and Indian Lands-Con. Page
Five Civilized Tribes-Continued.

20. In a policy of insurance and
in annuity contracts no trust is
created, the relations of the par-
ties being those of debtor and
creditor, the premiums paid be-
longing absolutely to the insurer,
in consideration for which it binds
itself to pay a given sum or sums
according to the terms of the pol-
icy it has issued to the insured__

21. While the authority granted
the Secretary of the Interior by
section 2 of the act of January 27,
1933, being confined to trusts, does
not contemplate or include life-
insurance policies or annuity con-
tracts, it does not follow that the
Secretary is nowhere clothed with
authority to permit Indians of the
class named in the act to pur-
chase annuities or life insurance
out of restricted funds, section 1
of said act placing such funds
under his jurisdiction and control
until April 26, 1956, "subject to
expenditure in the meantime for
the use and benefit of the individ-
ual Indians to whom such funds
belong, under such rules
and regulations as said Secretary
may prescribe ", thus conferring a
broad discretionary power upon
the Secretary over expenditure of
the funds of these Indians, includ-
ing authority to permit any such
Indian to purchase life insurance
or an annuity if the Secretary de-
termines it is for his benefit to do
SO----

*

22. The act of January 27, 1933
(47 Stat. 777), insofar as it re-
lates to lands belonging to mem-
bers of the Five Civilized Tribes
in Oklahoma, is not intended to be
given retroactive scope or opera-
tion, from which it follows that
where an allottee of the Five
Tribes died prior to April 26,
1931, at which time his entire al-
lotment was restricted and tax
exempt, leaving heirs of one-half
or more but less than the full
blood, his allotted land passed to
his heirs unrestricted and the re-
strictions were not reimposed by
said act of January 27, 1933____

23. Under authority of succes-
sive treaties with the Cherokee
Nation, these Indians passed and
administered their own laws, in-
cluding statutes of descent, until
October 1, 1898, and by the act
of May 2, 1890 (26 Stat. 81), the
laws of Arkansas were extended

310

310

382

Indians and Indian Lands Con. Page
Five Civilized Tribes-Continued.

to Indian Territory. Held, that
upon the death, intestate, in 1888,
of an Indian adopted into the
Cherokee Nation, the statutes of
descent of the Cherokee Nation
would govern her estate, and upon
the death of her husband, also
adopted into the Cherokee Nation,
in 1901, the laws of Arkansas rel-
ative to descent and distribution
would control

Former Indian Lands, Restoration.

23. Instructions of September
19, 1934 (submitted Aug. 10,
1934), to govern restoration of
lands formerly Indian to tribal
ownership

Georgetown (Shoalwater) Band.
See 6-8, supra.
Inheritance.

24. The absence, in an Indian
tribe, of any law, rule, or custom
of inheritance, would not preclude
a member of said tribe who had
obtained adoption into another
tribe, the latter having laws of
inheritance, from obtaining the
benefit of inheritance, even
though the property involved was
a benefit conferred only upon mem-
bers of the tribe abandoned---.

25. Upon the death of an In-
dian, the right of inheritance in
his property is controlled by the
laws, usages, and customs of the
tribe or nation of which he is at
the time a member, whether by
birth or adoption---

26. A Shawnee Indian Woman
entitled to share in the appropria-
tion made by Congress (act of Dec.
22, 1927) in settlement of Civil
War claims of certain Shawnees,
was adopted, together with her
husband, into the Cherokee Nation,
where she died intestate and with-
out issue in 1883, leaving a hus-
band surviving, who died in 1901.
Held, that the tribal laws of the
Cherokee Nation covering inherit-
ance, at the date of her death,
applied in her case, and that her
approved, claim against the Govern-
ment, although originating while
she was a member of the Shawnee
tribe, would be governed, in the
matter of inheritance, by said laws
of the Cherokee Nation___.

27. Under authority of succes-
sive treaties with the Cherokee Na-

298

559

297

297

298

Indians and Indian Lands-Con. Page

Inheritance-Continued.

tion, these Indians passed and ad-
ministered their own laws, includ-
ing statutes of descent, until Octo-
ber 1, 1898, and by the act of
May 2, 1890 (26 Stat. 81), the
laws of Arkansas were extended to
Indian Territory. Held, that upon
the death, intestate, in 1888, of an
Indian adopted into the Cherokee
Nation, the statutes of descent of
the Cherokee Nation would govern
her estate, and upon the death
of her husband, also adopted into
the Cherokee Nation, in 1901, the
laws of Arkansas relative to de-
scent and distribution would con-
trol

28. In section 4 of the Wheeler-
Howard Act, limiting the class of
persons to whom may be devised
restricted Indian lands, it is pro-
vided that "in all instances such
lands or interests shall descend
or be devised * * * to any
member of such tribe or of such
corporation or any heirs of such
member." Held, that the phrase,
"heirs of such member ", therein
employed, should be construed to
mean heirs of the testator",
such construction being reason-
able, consistent with legal usage,
and in harmony with the general
plan and expressed intent of Con-
gress.

29. The act of January 27, 1933
(47 Stat. 777), insofar as it re-
lates to lands belonging to mem-
bers of the Five Civilized Tribes
in Oklahoma, is not intended to
be given retroactive scope or op-
eration, from which it follows
that where an allottee of the Five
Tribes died prior to April 26,
1931, at which time his entire al-
lotment was restricted and tax
exempt, leaving heirs of one-half

or more but less than the full
blood, his allotted land passed to
his heirs unrestricted and the re-
strictions were not reimposed by
said act of January 27, 1933----

30. The act of January 27,
1933, bears no indication that it
was intended to be retroactive in
operation and hence does not take
from the county courts of Oklaho-
ma the jurisdiction theretofore ex-
ercised by them over conveyances
by fullblood Indian heirs of lands
or interests therein inherited by
them prior to January 27, 1933-

298

584

382

383

Indians and Indian Lands-Con.
Life Insurance and Annuity.

See 18-21, supra.

Navajo Reservation.

30. Instructions of April 26,
1933, lands in Utah added to Nav-
ajo reservation__.
Oil and Gas Rights.

See 10, supra.

31. While in the acts of Feb-
ruary 26, 1927 (44 Stat. 1247),
and February 21, 1931 (46 Stat.
1205), the express limitations
upon the authority of the Sec-
retary of the Interior to cancel
patents in fee to Indian allottees
do not include one forbidding such
cancellation where the allottee
has conveyed an interest in oil
and gas royalty rights since pat-
ent in fee was issued, such convey-
ance would bring the case within
the spirit, if not the letter, of the
inhibition contained in said acts__

32. An oil and gas lease made
under authority of section 2 of the
act of May 27, 1908 (35 Stat.
312), contained provisions that it
should run for five years from
date of approval, which was No-
vember 3, 1920, "and as much
longer thereafter as oil or gas is
found in paying quantities;" that
the lessee should pay as royalty
on each gas-producing well $300
per annum in advance, to be cal-
culated from the date of com-
mencement of utilization; and
that, if the gas well should prove
unprofitable commercially, and the
lessee desired to retain certain gas-
producing privileges, he should pay
a rental of $100 per annum, in ad-
vance, calculated from the date of
discovery of gas, on each gas-pro-
ducing well. Held, That no gas
well having produced commercially
since the year 1926, the mere pay-
ment by the lessee of $100 annu-
ally, under the clause of the lease
which makes provision for reten-
tion of gas-producing privileges in
an unprofitable well, would not op-
erate to extend the lease beyond
the fixed or primary period of five
years, an extension of the lease
requiring, as a prerequisite, pro-
duction of oil or gas in paying
quantities---.

Osage Tribe.

33. An act of Congress (act Feb-
ruary 27, 1925, 43 Stat. 1008) in-
tended to permit greater latitude

Indians and Indian Lands-Con. Page

Osage Tribe-Continued.

in the investment of the surplus
funds of Osage Indians contained
language which, if given literal
application, would preclude the
Secretary of the Interior from in-
vesting the funds of such Indians,
if resident in Oklahoma, in bonds
of the United States Government,
and in other respects would work
hardship to such Indians generally,
whether resident in Oklahoma or
not. Held, That the presence of
this language in the statute should
not preclude the Secretary from
investing these funds in bonds of
the United States Government,
should he deem such action in the
interest of the Indians---

34. Bonds of the Home Owners'
Loan Corporation are not United
States bonds, but are direct obli-
gations of the Corporation, the
liability of the United States ex-
tending only to guaranteeing the
interest, with no responsibility
whatever as to the principal; ac-
cordingly, an investment in bonds
of the Home Owners' Loan Cor-
poration would not be a compli-
ance with the terms of the act
of February 27, 1925, directing the
Secretary of the Interior to invest
the funds of restricted Osage In-
dians in United States bonds; nor
do they come within the scope of
the statute by regarding them as
a form of

first mortgage real

estate investment, since the act of
1925 contemplates direct invest-
ment of the Indians' funds in first
mortgages, while the loans made
by the Corporation represent in-
vestments in its own behalf, the
notes and mortgages taken by it
being the means by which to raise
funds to retire its bonds_----

35. The provision in the act of
March 2, 1929, which extended
until January 1, 1959, the period
of exemption fro: taxation of
homestead allotments of members
of the Osage Tribe of one-half or
more of Indian blood to whom cer-
tificates of competency had not
issued had reference only to such
Indians as were not holding cer-
tificates of competency on the for-
mer date, but as to those having
certificates of competency out-
standing on that date which were
subsequently revoked the taxation
of their homesteads is to be gov-
erned by subsection 7 of section 2
of the act of June 28, 1906, under

260

341

Indians and Indian Lands-Con. Page
Osage Tribe-Continued.

which the period of exemption
terminated on June 28, 1931----- 105
Papago Lands.

36. Held, That under dominion
of Spain and Mexico the Papago
Indians did not have title in fee
to the lands they occupied; that
in 1853, through the Gadsden Pur-
chase, the United States acquired
title to these lands, subject to an
Indian right of occupancy of an
area not exactly determined; that
no interests in minerals was ac-
cessory or incidental to whatever
surface rights the Indians may
have enjoyed; that complete and
unincumbered title to minerals in
the land was formerly vested in
the Mexican State and passed to
the United States upon cession of
the territory; that the appropri-
ate manner of protecting the
Papagos in their possession is a
matter exclusively of political
cognizance--.

37. It was accepted legal theory
of the European nations which
colonized America that upon dis-
covery of any new lands complete
jurisdiction and ownership became
vested in the sovereign to whom
the discoverer owed allegiance,
from which it follows that all
rights or titles to lands once a
part of Mexico, vested in private
persons, severally or in groups,
must derive their legal character
from the Spanish crown or suc-
ceeding proprietors

38. Spanish and Mexican law
are decisive of the question of the
title under which the lands of the
Papago Indians are held_____

39. The numerous decrees of
the monarchs of Spain protecting
Indians in their occupation of
lands are not in effect a grant of
complete title to Indian communi-
ties in possession generally‒‒‒‒‒‒

40. A claim of tribal ownership
of a large land area cannot be
established without a fixing of
boundaries, and ownership by vil-
lage communities can be estab-
lished only if such communities
can be defined__

41. By confirming the acts of
Spanish officers in granting lands
which were in Indian possession,
United States courts, Federal and
State, have accorded recognition
to the doctrine that title to lands
held by Indians in Mexico was not
a fee simple title.

359

359

359

359

359

359

Indians and Indian Lands-Con.

Papago Lands-Continued.

42. Since the cession to the
United States of the territory
which embraces the Papago lands,
the courts in this country have
recognized the ownership of mines
by Spain and Mexico before the
cession as well as the succession
of the United States to that
ownership, and the Supreme Court
has stated expressly that under
Spanish law minerals in Indian
lands were the property of the
Crown; also the Executive and
Legislative branches of the Fed-
eral Government have likewise
recognized the succession of the
Federal Government to the owner-
ship of mines in what was for-
merly Spanish and Mexican terri-
tory-

43. Certain laws of the Spanish
regime are incompatible with rec-
ognition of ultimate title in the
Indians, as, for instance, the law
(Law 23, Book 4, Title 7, "Com-
pilation of the Indies ") permit-
ting Spaniards to make new set-
tlements in Indian territory,
peaceably, if possible, but other-
wise if necessary..

44. The Executive order of Feb-
ruary 1, 1917, reserving lands for
the Papago Indians, excepted min-
eral deposits and provided that the
reservation area should be open to
entry and location under the min-
ing laws of the United States____

45. Even if prescriptive right,
as against the Crown, resulting
from immemorial possession, was
recognized by the Spanish law, an
appropriate formal procedure was
necessary to a complete title.
Case of Carino v. The Insular Gov-
ernment of the Philppine Islands
(212 U. S. 449, 461) distin-
guished

46. The Indian right of surface
occupancy within the exterior
boundaries of the Papago Indian
Reservation, Arizona, is quite in-
dependent of the mineral or non-
mineral character of the land----

47. The presence, in an adminis-
trative recommendation (see 45
L. D. 537), of an observation that
"ample protection will be given
the Indians in the occupation and
use of their mineral lands", is no
sufficient basis for an inference
that the Department has ruled or
should now rule that Indian sur-
face rights are restricted to non-
mineral lands

Page

359

360

360

360

437

Indians and Indian Lands-Con.
Patent in Fee-Cancelation.

48. While in the acts of Febru-
ary 26, 1927 (44 Stat. 1247), and
February 21, 1931 (46 Stat. 1205),
the express limitations upon the
authority of the Secretary of the
Interior to cancel patents in fee
to Indian allottees do not include
one forbidding such cancellation
where the allottee has conveyed an
interest in oil and gas royalty
rights since patent in fee was is-
sued, such conveyance would bring
the case within the spirit, if not
the letter, of the inhibition con-
tained in said acts---

49. The acts of February 26,
1927, and February 21, 1931, au-
thorizing the Secretary of the In-
terior to cancel patents in fee
issued by him to Indian allottees
upon his own initiative and with-
out request or consent on the part
of the Indian, make no provision
for conditional cancellation of
such patents, which form of can-
cellation would also be inconsist-
ent in principle with the purpose
of such acts, which is to restore
the land to the same status as
though such fee patent had never
issued and to issue a new trust
patent having the form and legal
effect of one issued under the pro-
visions of the act of February 8,
1887, and amendments thereto_-_

50. Where an Indian allottee ap-
plied for cancellation of the patent
in fee issued to him by the Secre-
tary of the Interior upon that of-
ficial's initiative and without the
Indian's application or consent,
and the allotment has since be-
come subject to an oil and gas
royalty interest, cancellation of
the fee patent is not authorized__

51. The language of the act of
February 26, 1927, and of the sup-
plemental act of February 21,
1931, evinces an intent on the
part of Congress that patents in
fee simple issued to Indian al-
lottees before the expiration of
the trust period or authorized ex-
tensions thereof should not be can-
celed by the Secretary of the In-
terior if the land involved is not
free of liens attaching subsequent
to issuance of the fee simple pat-
ent__.

Indians and Indian Lands-Con. Page
Swinomish Indians.

52. The Migratory Bird Treaty
Act of July 3, 1918 (40 Stat. 755),
passed to give effect to the treaty
between the United States and
Great Britain, proclaimed by the
President on December 8, 1916
(39 Stat.. pt. 2, p. 1702), is ap-
plicable to Indians and Indian
reservations, the treaty and stat-
ute containing no provision exclud-
ing Indians or Indian reservations
from their operation, and the
treaty expressly mentioning con-
cessions to Indians not extended
to any other race---

53. The privilege of hunting giv
en to the Swinomish and other
Indian tribes by the treaty of
January 22, 1855, known as the
Treaty of Point Elliott, does not
extend to the reservation lands,
but is confined to the undisposed
of and unappropriated public lands
of the United States, there being
no necessity for making a specific
reservation with respect to the
reservation lands at the time this
treaty was entered into___.

54. The right of the Indians
who were parties to the Treaty of
Point Elliott to hunt on their res-
ervation lands was not based upon
any provision of the treaty, but
was a right already existing in
them and not granted away by
the treaty----.

55. The Migratory Bird Treaty
Act, insofar as it restrains the
Indians from taking and killing
the class of game to which it ap-
plies, is based upon the power of
Congress, as the lawmaking au-
thority, to prescribe game laws
restricting the Indians in their
rights of hunting on reservation
lands

56. Primarily, the States, both
as trustees of the rights of their
people and in the exercise of their
police power, have control over the
right to reduce wild game to pos-
session; but this rule is without
application to Indian reservations,
and Congress, having paramount
authority over such reservations
and the Indians occupying them,
may provide game laws to restrict
the Indians in their natural and
immemorial rights of fishing and
hunting

Timber Sale.

See Constitution of the United
States, 2.

517

517

518

518

518

Indians and Indian Lands-Con.
Timber Sale-Continued.

57. Where an Indian Reserva-
tion is virtually abandoned as
such by the Indians in favor of
another reservation, by satisfying
the allotment right thereon and
living elsewhere, the land so aban-
doned becomes, in effect, the land
of the United States, and it and
the timber thereon become subject
to disposition by the United
States, and money derived from
the sale of such timber should
be covered into the Treasury of
the United States, not as Indian
money, but miscellaneous receipts_

58. A paper and pulp company's
contract with Indians to purchase
timber from them contained a pro-
vision affording the company ad-
ministrative recourse against eco-
nomically unreasonable stumpage
prices, by price reduction, which
provision formed a substantial
consideration for the company's
contractual promises. Quaere:
Whether a later statute if con-
strued to deprive the company of
such administrative recourse for
a price reduction would not vio-
late the "due process" clause of
the Fifth Amendment to the Fed-
eral Constitution_

59. The act of March 4, 1933
(47 Stat. 1568), which merely
authorizes and directs the Secre-
tary of the Interior, with the
consent of the Indians and the
purchasers, to modify timber sale
contracts, cannot properly be con-
strued to modify, by its own op-
eration and without the consent
of the purchaser, a contract pro-
vision for price reduction ____.

60. Consideration of the back-
ground and legislative history of the
act of March 4, 1933, and the lan-
guage of the act itself, leads to
the conclusion that the act should
not be construed so as to require
consent of the Indians involved
to a modification of a contract
which, by its own terms, may be
modified without the Indians' con-
sent-----

61. A contract must be viewed
and interpreted with reference to
the nature of the obligations be-
tween the parties and the inten-
tion which they have manifested
in forming them, and, once ascer-
tained, the intention of the par-
ties must be given effect, sacrific-