those tribes.

66

While this act, according to the declaration of its fifth section, was not to be construed as recognizing title or ownership" in the Indians, it contained no denial of their interest in the lands, but provided, as we have seen, a way for compensation for the land of which it deprived them.

By the Indian appropriation act of March 2, 1895, the Secretary of the Interior was authorized to negotiate with the Indians of this reservation "for the cession or relinquishment to the United States of the lands embracing the coal fields," it being provided that any agreement made should be submitted to Congress for its action. (28 Stat. 894.) An agreement was made and submitted and received the approval of Congress. (Act of June 10, 1896, 29 Stat. 358 et seq.) The agreement is set forth in the statute. It contains four articles. By Article I the Indians, that is, the Apache, Mohave, and Yuma Indians residing on the reservation, cede, grant, and relinquish to the United States all their right, title, and claim to a certain described portion of the reservation. By Article II the United States in consideration of the cession agrees:

"To place in the Treasury of the United States to the credit and for the sole benefit of the said Apache, Mohave, and Yuma Indians and to account therefor annually, to them through their agent, the net proceeds accruing from the disposal of such coal and mineral lands, lying within the ceded territory, under the laws applicable thereto; and that said money shall be paid to them in cash from time to time as the same shall become available, pro rata, share and share alike to each man, woman, and child of the tribes now living upon and entitled to the privileges of the said

reservation."

Article III provides for a survey, "for the purpose of segregating the ceded land from the diminished reservation," and that the cost shall be paid from the proceeds of the ceded lands.

A later enactment restored another small tract of this reservation to the public domain, for sale under the mining laws. Although the area was but 231 acres, Congress

nevertheless provided that the proceeds of sale, after deducting the expenses of surveying, should be held in trust for the tribes of Indians on the reservation, to be expended by the Commissioner of Indian Affairs under the direction and control of the Secretary of the Interior, for the best interests of those tribes. (Act of Mar. 2, 1901, 31 Stat. 952.)

From the character of the legislation so passed in review, there can be little doubt that in the mind and policy of Congress this reservation was not only a valid reservation set apart for the occupancy and enjoyment of the various tribes which have inhabited it from the beginning, and subject to be allotted in part to the individual members composing them, but was also devoted to them in its entirety in such a sense that no part of it should be taken from them without their consent or giving something in return by way of compensation. And, of course, no distinction here is to be taken between the land and the timber growing upon it and, presumably, constituting its chief value. (U. S. v. Cook, 19 Wall. 591.)

The act of June 25, 1910 (36 Stat. 855, sec. 7), passed since the proclamation was issued, still further and more definitely extends and declares the same policy as to all such reservations in general. It provides:

"That the mature living and dead and down timber on unallotted lands of any Indian reservation may be sold under regulations to be prescribed by the Secretary of the Interior, and the proceeds from such sales shall be used for the benefit of the Indians of the reservation in such manner as he may direct: Provided, That this section shall not apply to the States of Minnesota and Wisconsin."

Has the proclamation forestalled the application of this law to the particular reservation in question?

While this proclamation, generally speaking, contemplates the ultimate absorption by the forest reservation of all the surplus Indian land, it clearly intends to postpone that result for a period of 25 years. This means that the partial extinguishment of the Indian reservation, which would be the necessary concomitant of such a merger, is

intended to be postponed for the same period of time. An Indian reservation, without regard to the method of its creation, is in a proper sense a special instrumentality of the Federal Government. It is designed to fulfill a particular purpose, or complex of purposes, and has definite, welldefined legal incidents which have arisen partly from the nature of those purposes and partly from the enactment by Congress of a body of laws relating to Indian reservations and to nothing else. Mutatis mutandis this is all true of forest reservations also. Legally it is impossible for the Executive without authority from Congress, and practically it would result in many perplexities, to bring into being a hybrid reservation partaking in some ways of the incidents and purposes of an Indian reservation and in other ways of the incidents and purposes of a forest reservation, but lacking the full attributes of either. An opinion rendered to the Secretary of the Interior by Mr. Attorney General Garland March 7, 1887, seems quite apposite here. The question was as to the right of the Secretary of the Interior to consent to the construction of a ditch by a mining company within an Indian reservation. Mr. Garland (18 Op. 563) said:

"If the reservation is not authorized by law, on dispossessing the Indians by the Government the land would be subject to the general laws applicable to the public domain; but while Indians in a reservation made by order of the President are organized in tribes or bands, and as such maintain a quasi national character; are placed under the charge of an agent appointed by the Government according to law; and are in the actual peaceable possession, the laws applicable to Indian reservations must be recognized as applicable to them.

Attorney General Bevens, in an opinion reported in 16 Opinions, page 553 (in which I concur), maintained that the United States had power to grant such privileges as are asked for by the petitioner in this case; but the power to make the grant exists only in Congress, and without action by Congress it can not be lawfully exercised. The conclusion then is, in the absence of Congressional action,

the right should not be granted to the petitioners in this case to enter upon the Lemhi Reservation, unless the Indians be lawfully removed or dispossessed." (See also 18 Op. 236.)

Inasmuch as the proclamation does not intend to destroy the status of the Indian lands within the forest as lands appertaining to an Indian reservation, they remain subject to the operation of the laws which apply to Indian reservations in general, and certain broad expressions in the wording of the proclamation which standing apart might suggest a different purpose should be restrained to conform with the presumed intention of the President to accomplish nothing other than a legal result.

.

The laws which authorize the Secretary of Agriculture to make sales of timber refer to the timber on the forest reservations. (Act of June 4, 1897, 30 Stat. 35; act of Feb. 1, 1905, 33 Stat. 628; act of May 23, 1908, 35 Stat. 268.) The money proceeds of such sales are required to be covered into the Treasury of the United States as a miscellaneous receipt. Twenty-five per cent of all such revenue ultimately goes to the States and Territories within which the reservations are situate, but none of it goes to the Indians. (Act of Mar. 4, 1907, 34 Stat. 1270; act of May 23, 1908, 35 Stat. 260.) The law which authorizes the selling of timber from Indian reservations and prescribes the application of the purchase money, is the act of June 25, 1910 (36 Stat. 855), section 7, which I have already set forth.

This, in my opinion, is the law which must govern any sale of timber from the Indian lands embraced by the proclamation. The sale should be conducted by the Secretary of the Interior, and the purchase money should be placed to the credit of the Indians, as that law provides.

These conclusions are stated the more confidently because they are in accord with the views entertained by both of the departments affected.

Very respectfully,

ERNEST KNAEBEL,

Acting Attorney General.

The SECRETARY OF AGRICULTURE.

TRANSFER OF DUTIES OF DISBURSING CLERK OF THE BUREAU OF THE CENSUS TO DISBURSING CLERK OF THE DEPARTMENT OF COMMERCE AND LABOR.

The duties formerly performed by the disbursing clerk of the Bureau of the Census can not be transferred to the disbursing clerk of the Department of Commerce and Labor consistent with law within the meaning of section 161 of the Revised Statutes.

DEPARTMENT OF JUSTICE,

September 9, 1911.

SIR: I have the honor to acknowledge the receipt of your letter of the 6th instant, in which you state that the position of disbursing clerk of the Bureau of the Census has been vacated as a result of the transfer of the incumbent thereof to the position of disbursing clerk of the Department of Commerce and Labor, and that it is your desire, in the interest of increased efficiency in the department, to leave vacant the position of disbursing clerk of the Bureau of the Census, provided the disbursing clerk of the Department of Commerce and Labor may legally perform the duties of the former position in addition to his own.

You therefore request my opinion as to "whether under the law the department has authority to transfer the duties formerly performed by the disbursing clerk of the Bureau of the Census to the disbursing clerk of the Department of Commerce and Labor;" and if so, whether the bond of the disbursing clerk of the Department of Commerce and Labor would be liable for funds advanced to him for the support of the Bureau of the Census.

Apparently the only provision of law from which you may derive authority, if at all, to make the arrangement suggested is section 161 of the Revised Statutes. That section is as follows:

"SEC. 161. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."