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sole heir of George Big Knife, purporting to convey to John Allen said SW. of the SW. of Sec. 20, for the sum of twenty-six hundred dollars; that said deed was submitted to the Department on March 30, 1889, by the Indian Office, with a recommendation that the same be approved, so far as it conveyed the right, title and interest of the grantor in and to said tract; that on April 11, 1889, said deed was returned and the Commissioner was directed to secure further and more satisfactory proof as to the value of the land "to the present owner and holder," as the tract was situated close to Kansas City, Missouri, and to report the same to the Department "as early as possible;" that pursuant to said direction a special agent examined said tract and reported, on June 28, 1889, that the same was then laid out as a townsite, near a depot called Argentine, a few miles from Kansas City, and had upon it many houses and homes principally built by laboring people; that the value of the whole tract was $9,800, or about $245 per acre; that in the meantime the Indian Office received another deed, dated July 9, 1889, from Nancy Big Knife White (and Thomas White, her husband), sole heir of George Big Knife, purporting to convey the same land to George W. Briant, of Jackson county, Missouri, the consideration being the sum of $1,000, said deed having been acknowledged the same day before the agent of the Quapaw Agency; that on August 3, 1889, said deed to Allen was returned, with the information of the value placed upon said tract by the agent of the Indian Office, and on September 26, 1889, the agent of Mr. Briant was advised that no action could be taken on the deed to him until the Indian Office was advised as to what action Mr. Allen proposed to take to complete his purchase of said tract; that subsequently, at his request, Mr. Briant's deed and certificate of deposit of the purchase money were returned to him; that nothing further had been heard from Mr. Allen, and it was presumed that he had abandoned any further effort at completing his purchase.

It is further stated in said report that on October 16, 1889, one Frank Maltby advised the Indian Office that said tract was worth $60,000, but limited his valuation to $20,000; that "Mr. White, the grantor, filed a protest against the approval of the Allen deed, after executing it," and that from information received by the Commissioner said White now proposes to sell said land to other parties, as soon as he can gain possession of said deeds to Allen and Briant.

It is also stated that, on June 28, 1890, John Conners, by his attorney, filed in the Indian Office an original deed, dated September 12, 1870, purporting to convey said tract to the said John Conners for the sum of $200; that said deed had two witnesses and was acknowledged before a notary public in and for said county; that said deed was not acknowledged before an Indian Agent, nor submitted to the Indian Office for approval, but it would have passed a clear title to said land had the owners thereof and the parties thereto been white persons;

that said deed was duly recorded in the office of the Register of Deeds for said county, and was accompanied by an affidavit of one of the witnesses thereto, alleging that the consideration in said deed was adequate; that the grantor was competent and intelligent, and that he saw the money paid to the said grantor; that the reason said deed was not presented to the Indian Office for approval was because it was generally believed in that county that a second approval was not necessary, because the patent stipulated that the land should not be sold or conveyed by the patentee or his other heirs without the consent of the Secretary of the Interior; that the heirs to this land sold the same to said Big Knife, who, although a Shawnee Indian, bought the land in good faith, just as any white man would do, and paid a fair price for the same at the time of said purchase.

The Honorable Commissioner further states that, the only ground for objection to the approval of the deed to Mr. Conners is the recent opinion of this office, dated May 24, 1890 (10 L. D., 606), in the case of the deed from Mary Fish, widow of Charles Fish, a Shawnee reservee, purporting to convey to Sarah Cohen a certain tract of land, wherein the question was considered whether said deed could then "be approved by the Secretary so as to give validity thereto, and cause it to operate as a conveyance of the land, in view of the fact that since the execution of said deed Mary Fish has died, leaving heirs surviving her," and it was said:

If there is no power in the Indian owner to convey without the approval of the Secretary, then the deed from Mary Fish to Sarah Cohen conveyed no legal title, and the title remaining in her at the time of her death was by operation of law immediately cast upon her heirs. The subsequent approval of the Secretary could not operate to divest that title.

It is further stated in said report, relative to the practice of the Department, that

it has heretofore been held that the Secretary of the Interior could not refuse to sanction a sale, because of the death of the grantor, if satisfied that the sale was in all respects fair and reasonable, and would approve the same, the grantor being alive.

No decision of the Indian Office or of the Department is cited by the Commissioner in support of the above statement. But my attention having been called more particularly to the practice of the Indian Office and the Department, I have caused a further and more extended examination to be made, from which it appears that it has been the practice from almost the beginning to approve deeds made by Indians substantially in accordance with the regulations, even though the grantors have died prior to the presentation of the deeds to the Department for approval, and that fact was known to the Department at the time the approvals were made.

In the case of the deed of Therese Schindler, of Michilemackinac, "a Pottawatomie woman, in the county of Michilemack and Territory of Michigan," to Elizabeth T. Baird, of land granted under the treaty 2565-VOL 13—33

of August 29, 1821 (7 Stat., 218), the record shows that said deed was made on the 29th day of August, 1835; that the grantor had been dead long prior to the presentation of the deed for approval, and that the original deed was approved by President Grant on May 31, 1876, although the express stipulation of the treaty was that:

The tracts of land herein stipulated to be granted, shall never be leased or conveyed by the grantees or their heirs to any persons whatever, without the permission of the President of the United States. And such tracts shall be located after the said cession is surveyed, and in conformity with such surveys as near as may be, and in such manner as the President may direct. (Vide Records Ind. Office, Mis. Deeds, p. 335.)

In the case of the deed of William Donaldson, a Shawnee reservee, to his wife, Rachel Donaldson, through deeds first to one Bonnafield, and then from Bonnafield and wife to Rachel Donaldson, all of the deeds were approved by the Department on January 15, 1886, although it appeared that both William and Rachel Donaldson died in 1875. (See Comr's letter, dated February 14, 1887.)

The practice of the Department, relative to the approval of Indian deeds, as above set forth, appears to be in accordance with the rulings of the Department of Justice. On March 29, 1834, Attorney General Butler considered the question whether the President of the United States could properly give his consent and approval to the conveyance by will to one General Tipton, made by La Gros and Waises-Kea, his daughter, Miami Indians, of four sections of land reserved to them by the treaty of October, 23, 1826 (7 Stat., 300). By the third article of said treaty it was provided that:

There shall be granted to each of the persons named in the schedule hereunto annexed, and to their heirs, the tracts of land therein designated; but the land so granted shall never be conveyed without the consent of the President of the United States.

It appeared that the elder Indian died before the ratification of the treaty, and the daughter, his only surviving child, died in September, 1827, after the ratification of said treaty; that said daughter left no child, and so far as was known there were no brothers or sisters or any relatives of the father who claimed any of the lands reserved for him in said treaty. It also appeared that General Tipton had been for many years in possession of said land, asserting an equitable lien thereon; that in 1832 he applied to the President to cause said land to be sold, but his application was refused, for the reason that the Presi dent had no authority under said treaty, except to approve a convey ance; that the General was advised to cause administration with the will annexed to be obtained in Indiana, in order that the land might be sold, and his equitable lien satisfied; that if said lands were sold under the order of the Indiana court, and the court approved the conveyance, the President would also approve it. No action was taken by General Tipton under this advice, but he applied to the President to approve said will," with a view to secure to himself a valid title to the

premises." The Attorney General, after expressing doubts whether any of the Indians under said treaty had the power to devise their reservation by will, and stating that such power must be determined by the laws of Indiana, says:

The object of these grants was to provide for the support of these particular Indians and their descendants, but, as this benevolent object would have been defeated by permitting them to dispose of their property at pleasure, they are prohibited from doing so. Under the treaty, they must be conside red in a state of pupilage; they have no capacity to make deeds or wills, except so far as such capacity has been given them by treaty. No express authority is given to make a conveyance, but, by necessary implicat ion, the Indians are empowered to do so, with the consent of the President.

The Attorney General further says:

This question I find bas been twice presented to the Executive, under treaties similar to that now under consideration. Under the treat y made in October, 1826 (7 Stat., 295), with the Pottawatomies, Abraham Burnett became entitled to several sections, subject to the like restraint of alienation, with La Gros. Burnett died in 1827, leaving a will, which was proved according to the laws of Indiana, and on an authenticated copy being presented to President Adams, on the 26th day of December, 1828, he endorsed his approbation thereon in the following words: "The conveyance by this will is approved.

The Attorney General further states that early in the administration of President Jackson, his Secretary of War held that a devise was not a conveyance within the terms of the Chicago treaty of August 29, 1821 (7 Stat., 218), which ruling, he presumed, had been uniformly followed by President Jackson in his administration, and he concludes. that,

after bestowing no little reflection on the subject, I have been led to the conclusion that, even if the Executive should approve the will as a conveyance within the treaty, his consent thereto would not decide the question whether such conveyance was authorized by the treaty, nor be conclusive upon the rights of any party; that the questions of the Indian's right, with the President's approval, to convey by will, whether his will had been fairly made and was in due form, and what is its effect, must be subject to the decision of the judicial tribunals of Indiana, and

that the President has the power, in case he thinks proper to exercise it, to approve the conveyance by will, alleged to have been made by the Indians, La Gros and his daughter, subject to all legal questions in respect to the capacity and right to make conveyances by will and to the execution, validity and effect of those instruments, (and he recommended, after abundant caution,) that the consent, if given, be expressly declared to have been given subject to those questions and without prejudice to the rights of the heirs at law. (2d Op., p. 631-6.)

See also Sales of Choctaw Reservations (3 Op., 517); Attorney General Cushing upon the power of the President to approve a second deed (6 Op., 711); Opinion of Attorney General Devens upon the approval of an Indian deed (16 Op., 310 and 326).

From the foregoing it may be concluded, I think, that it has been the long established practice of the Indian Office and this Department to approve Indian deeds, where the transaction was fair in all respects,

and that the fact that the grantor has died after the execution of the conveyance and prior to the presentation of the same to the Executive Department for approval has not of itself been considered an obstacle to prevent the proper officer from approving said deed. This long established practice ought not to be now changed, except for cogent and conclusive reasons.

In the case of McKeen v. Delaney's Lessee (5 Cranch, 22), the United States supreme court, through Mr. Chief Justice Marshall, said:

In construing the statutes of a State, on which land titles depend, infinite mischief would ensue, should this court observe a different rule from that which has been long established in the State.

In Edwards v. Darby (12 Wheaton, 206), the same court said :

In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.

See also Atkins v. Disintegrating Co. (18 Wall., 272, 301); Smythe v. Fiske (23 Wall., 374, 382); United States v. Moore (95 U. S., 760, 763); United States v. Pugh (99 U. S., 265); Brown v. United States (113 U. S., 568, 571), wherein it is said that.

these authorities justify us in adhering to the construction of the law under consideration, adopted by the executive department of the government, and are conclusive against the contention of the appellant.

To the same effect is the case of The Laura (114 U. S., p. 411–416), quoting from the Lithographic Co. v. Sarony (111 U. S., 53, 57), in which the court, passing upon the constitutionality of certain statutory provisions reproduced from some of the earliest statutes, said:

The construction placed upon the constitution by the first act of 1790 and the act of 1802, by the men who were cotemporary with its formation, many of whom were members of the convention which framed it, is, of itself, entitled to great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century it is conclusive.

Also Hastings and Dakota Ry. Company v. Whitney (132 U. S., p. 357-366).

Such being the weight given by the United States supreme court to the long established practice and cotemporary construction of the executive department, in my judgment, the practice should be followed until changed by legislation, and that my said former opinion in the Mary Fish case should be modified in so far as it expresses the view that the Secretary of the Interior has no power to approve an Indian deed, where the grantor had died, leaving heirs surviving, prior to the presentation of the deed to him for approval, "so as to give validity thereto and cause it to operate as a conveyance of the land."

The practice of the Department, relative to the approval of Indian deeds, where the grantor had died leaving surviving heirs prior to the presentation of the deed for approval, was not stated by the Commissioner of Indian Affairs in his report upon the Fish case, nor was it considered by me in my said opinion. While I am now, upon a further

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