appropriation for this work is brought up to $600,000. This sum, however, is not sufficient to complete the work fully, according to the estimates of the engineers. In this state of affairs your question is "Whether the fact that the total sum ($600,000) appropriated and made available by the act of June 25, 1910, will prove insufficient for the completion of the work authorized by Congress, is a bar to commencing operations and applying the available funds to the prosecution of the preliminary work as recommended by the Chief of Engineers in his letter of August 26, 1911." In my opinion the provisions of the act quoted above show so clearly that the appropriation authorized may be expended in the prosecution of the work, as far as it will go, whether the total cost exceed the amount of the appropriation or not as not to justify any extended discussion. Even without the aid of section 2 quoted above the same result would follow, since the sum of $600,000, appropriated in section 1, is not expressly constituted a limit to the amount to be expended upon the improvement. In the opinion of the Attorney General of November 30, 1910 (28 Op. 477), in regard to battleship No. 34, and in the opinion of the Comptroller to the Secretary of War of May 14, 1903 (9 Comp. Dec. 638), the appropriation acts under consideration expressly limited the cost of the work to a certain specific When no such limitation is made in the act, no provision of general law and no reason prevents the use of the appropriation so far as it will go. This conclusion is fortified and rendered entirely certain by the language of section 2 quoted above, which expressly provides that the appropriation may be used so far as it will go, whether it is sufficient to complete the job or not. sum. Your question, therefore, must receive a negative answer. Respectfully, The SECRETARY OF WAR. J. A. FOWLER, Acting Attorney General. SALES OF TIMBER FROM UNALLOTTED LANDS OF INDIAN RESERVATION. Sales of timber from unallotted lands of the White Mountain Apache Indian Reservation, which were included in the Sitgreaves National Forest by the President's proclamation of March 2, 1909 (35 Stat. 2236), should be conducted by the Secretary of the Interior and the purchase money should be placed to the credit of the Indians. DEPARTMENT OF JUSTICE, SIR: Your letter of July 11, 1911, submitted for an opinion the following questions: "1. Has the Secretary of Agriculture, independently of the Department of the Interior, authority to make sales of timber from unallotted lands of the White Mountain Apache Indian Reservation, which were included in the Sitgreaves National Forest by the President's proclamation of March 2, 1909? "2. If this department has such authority, should the proceeds of such sales be deposited in the general funds of the Treasury, or should they be placed to the credit of the Indians?" The questions result from an informal application pending with the Forester for the purchase of a large amount of timber, all of which stands within the general limits of the forest as defined by the proclamation, but part of which is also situate upon included lands of the Indian reservation. The proclamation, after proclaiming that the Indian lands are added to the forest, proceeds to declare: "Such National Forest so enlarged shall, except as hereinafter provided, be subject to all the laws affecting National Forests including the mineral land laws of the United States; Provided, that, nothing herein shall, for the term of twenty-five years from the date hereof, operate to terminate or abridge the rights of the Secretary of the Interior and of the Commissioner of Indian Affairs, under existing laws, to allot to individual Indians any of such of the above-described lands as were included in the said White Mountain Apache Indian Reservation by the said Executive Orders modified as aforesaid; to use any of such lands or the timber thereon for Agency, school, or other tribal purposes; to permit the use of any of such lands for grazing purposes; to permit the free use by individual Indians of timber and stone from any of said lands necessary for domestic use upon their allotments; to dispose of the proceeds arising from grazing as provided for by law for other Indian funds; and to dispose of the dead timber standing or fallen upon such lands; Provided further, that said powers and rights of the Secretary of the Interior and Commissioner of Indian Affairs or permittees under or through them or either of them, and of individual Indians, except as to allotments to such Indians, shall be subject to such rules and regulations as the Secretary of Agriculture may from time to time prescribe for the protection of the National Forest; and said powers and rights shall not be construed to apply to any land except such parts of said White Mountain Apache Indian Reservation as are included in the Forest by this proclamation, and all said powers and rights except the rights of individual Indians and their heirs to hold and enjoy their allotments, shall cease and determine twenty-five years after the date hereof, and thereafter the occupancy and use of the unallotted parts of said lands shall in all respects be subject to the laws governing National Forests. "The withdrawal made by this proclamation shall, as to all lands which are at this date legally appropriated under the public-land laws or reserved or used for Indian Agency, school, or church purposes, or reserved for any public purpose other than for Indian occupancy and use under such Executive Orders, be subject to, and shall not interfere with, or defeat legal rights under such appropriation, or prevent the use for such public purpose of lands so reserved, so long as such appropriation is legally maintained, or such reservation remains in force." (35 Stat. 2236.) The Indian reservation here affected is what is known as an Executive order reservation since it was created neither by a treaty with the Indians nor by act of Congress, but by an order of the President. The question whether the President is authorized to create such reservations has received discussion in the opinions of the Attorney General (17 Op. 258; 14 id. 181) and, in actual practice, the existence of such a power has been very frequently assumed; but it should be pointed out that neither the power of the Executive to create, nor his power to revoke (no treaty or law opposing), is regarded as necessarily involved in the answering of the questions you have propounded. In this instance the creative order was made November 9, 1871. Other orders followed, modifying the boundaries mainly by reduction of the original area, the last of them, bearing date March 31, 1877 (1 Kappler's Laws and Treaties, pp. 810 et seq.). No legislation earlier than the general allotment act of February 8, 1887 (24 Stat. 388), has come to my notice which might be regarded as evincing a congressional recognition or adoption of this reservation. That act, however, provided, by its first section: "That in all cases where any tribe or band of Indians has been or shall hereafter be located upon any reservation created for their use, either by treaty stipulations or by virtue of an act of Congress or Executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation, or any part thereof, of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon, in quantities, as follows." Of this law the Supreme Court has said, in a case in which the validity of this very reservation, though not questioned by the parties, appears to have been necessarily involved: "The necessary effect of this legislative recognition was to confirm the Executive order, and establish beyond challenge the Indian title to this reservation." (In re Wilson, 140 U. S. 575, 577.) The court there expressly held that the district court of the Territory of Arizona, sitting for the purpose of enforcing the Federal criminal laws, was vested with the juris 89760°-VOL 29-13-16 diction to try and sentence the petitioner, a negro, for the murder of another negro, within the reservation, as the offense was included by section 2145 of the Revised Statutes, providing for the extension of certain general penal laws of the United States "to the Indian country." Justice Brewer observed in the opinion, page 578: "This Indian reservation is a part of the Indian country within the meaning of that section." (Bates v. Clark, 95 U. S. 204; Ex parte Crow Dog, 109 U. S. 556.) By reference to the two authorities thus cited it will be found that "Indian country" (the definition of which occurs in the act of June 30, 1834, 4 Stat. 729) means nowadays all country within the United States, and not within the jurisdiction of any State "to which the Indian title has not been extinguished." (See Ex parte Crow Dog, supra, p. 561.) To be "Indian country" it is not essential that a given area should be within an Indian reservation (ibid.); it is of importance, however, to note that in the view of the Supreme Court, as expressed in Wilson's case, the reservation was a valid reservation-recognized indeed by Congress itself-of land subject to the Indian title. It was from the beginning, or had grown to be, something more than a mere refuge for the tribes collected there; the Indians were interested in the land. And this conception of an interest, not assertable, if you please, against the Government, but still an interest recognized by Congress as extending throughout the entire reservation (General allotment act of Feb. 8, 1887, 24 Stat. 388, sec. 1, sec. 5 third proviso), is confirmed and strengthened by subsequent acts of Congress relating to this reservation exclusively. Thus by the act of February 20, 1893 (27 Stat. 469), it was provided that the money proceeds (over fees and survey expenses) to accrue from the sale of the lands which it took from the reservation and restored to the public domain should be held in trust "for the sole use and benefit of the tribes of Indians now located upon said reservation," and be expended for the best interests of |