the introduction and sale of spirituous liquors in Indian country, shall be in full force and effect until otherwise directed by Congress or the President of the United States, and that a stipulation to that effect will operate proprio rigore, and be binding upon the courts, although the ceded territory is situated within an organized county of a State. These conclusions are stated in a very clear and able opinion by Mr. Justice Davis, United States r. 43 Gallons of Whiskey, 93 U. S., 188.

A question arose as to the power to prevent the sale of liquor in the town of Odenah, Wisconsin, located within the boundaries of Bad River Indian reservation and was submitted to this office for opinion. The provision affecting that land, found in the treaty of September 30, 1854 (10 Stat., 1109), is:

No spirituous liquors shall be made, sold, or used on any of the lands herein set apart for the residence of the Indians and the sale of the same shall be prohibited in the territory hereby ceded until otherwise ordered by the President.

By the same treaty certain missionaries, teachers, and other persons residing in the territory ceded or upon the reservations made therein, were allowed to enter the land occupied by them. Certain tracts were entered under this provision and patents issued therefor. Some of the lands so entered were sold and it was upon such a tract that the saloons complained of were being conducted, the owners claiming that the land was not a part of the reservation and that the United States had no control over it. In the opinion. of August 10, 1900, it was held that the sale of liquor upon such tracts was contrary to the law. The clause construed by the court is substantially the same as the provision in the Yankton agreement and ratifying act and the case cited would justify the conclusion that the latter provision would be upheld and declared effective to prevent the sale of liquor upon any of these lands. While in Matter of Heff (197 U. S., 488), the Supreme Court holds that police regulations respecting the persons of Indians who have become citizens fall within the domain of state jurisdiction, nothing said there can be held as overruling the decision in United States v. Forty-three Gallons of Whiskey, supra, or of denying the declarations there made as to the authority of Congress to make a provision prohibiting sale of liquor upon lands allotted to and ceded by the Indians. Until the court has made some declaration to the contrary this Department should go upon the theory that the act of August 15, 1894, was within the power of Congress and can be enforced.

The Commissioner of Indian Affairs says: "My own opinion, for whatever it may be worth, is that no punishment by fine and imprisonment would have the same deterrent effect in any event as a forfeiture of title." It should be remembered, however, that the clause in question would prevent sales on only a comparatively small portion of

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the lands formerly within the Yankton reservation; that is, only on tracts sold by heirs of deceased allottees. The allotments to Indians cover only a portion of the reservation, the remainder being open to settlement and entry by whites. Only a portion of the allotted lands will be subject to sale as inherited lands under the act of May 27, 1902 (32 Stat., 245, 275). Tracts entered under the law providing for the disposal of unallotted lands, and tracts conveyed by allottees after removal of restrictions on alienation by issue of patents in fee or otherwise, would not be affected by the clause in the deeds for inherited land; in other words, the provision in the law attaches to all the land while the clause in the deed would attach to only a comparatively small portion. It is doubtful whether, if the clause be inserted in these deeds, it will of itself give any large degree of protection against the evil aimed at. To prevent sales upon one tract while the traffic may be carried on without let or hindrance upon an adjacent tract, would not prove of great benefit to the body of the Indians. Real protection to the Yanktons must be found in the law as it now stands or in some provision to be hereafter enacted affecting the whole body of these lands.

Any condition imposed will naturally diminish the chances of sales and depreciate the price to be obtained by the heirs of deceased Indian allottees for their lands. The injury resulting to this class of Indians from insertion of this clause in their deeds should be taken into consideration and if it outweighs the probable benefit to the body of Indians, the clause should be rejected. As pointed out above, the prevention of sales upon only a small portion of the land inhabited by these people would afford no effective moral protection, while the imposition of the condition most probably would result in a considerable financial injury to the individuals whose lands will be affected. It would seemingly work disadvantageously to them without any compensating advantage to others.

For these reasons I doubt the advisability of inserting this clause in deeds for lands formerly within the Yankton reservation, or for lands in like condition elsewhere.

Approved:

E. A. HITCHCOCK, Secretary.

TOWNSITES IN OSAGE INDIAN RESERVATION-SALE OF LIQUORS-ACT OF MARCH 3, 1905.

OPINION.

There is no provision in the act of March 3, 1905, relating to townsites in the Osage Indian reservation, authorizing the Secretary of the Interior to insert in deeds for lots in such townsites a clause prohibiting the sale or storage of liquor on the premises conveyed and providing for a forfeiture of title in case of violation of the prohibition.

The general laws prohibiting the introduction of intoxicating liquors into the Indian country are applicable to towns in the Osage Indian reservation.

Assistant Attorney-General Campbell to the Secretary of the Interior, January 25, 1906. (W. C. P.)

You have referred for my opinion on the questions presented, a letter of the Commissioner of Indian Affairs of January 5, 1906. This letter embraces two matters, the first being the question of incorporating in deeds for lots in the towns of Pawhuska, Bigheart, Foraker, Fairfax and Hominy in the Osage Indian reservation, the clause recently adopted for insertion in all conveyances of Indian inherited lands, prohibiting the sale or storage of liquor on the premises conveyed and providing for forfeiture of title in case of violation of the prohibition; and the second being the modification of that clause to protect mortgagees of the land.

The Commissioner of Indian Affairs says that it has been assumed by his office that as these townsites are within the reservation the general laws prohibiting the introduction of intoxicating liquors into "the Indian country" were applicable and would suffice to prevent liquor traffic there. He further says this position was taken in 1903 with reference to the townsite of Washunga in the Kaw reservation and that so far as known no trouble has been experienced there in preventing the sale of liquor under the general law. He evidently now entertains a doubt as to the correctness of that position and regards the omission of a specific inhibition against the sale of liquor on these lots in the law authorizing the sale of the lots as a defect in that legislation and is of opinion that the defect might be more surely cured by including in all deeds covering lots in those townsites a clause similar to that now inserted in deeds of inherited Indian lands than by seeking additional legislation.

The act of March 3, 1905 (33 Stat., 1048, 1061), designates the lands to be reserved for these different towns and directs that they be surveyed, appraised, and laid off into lots, blocks, streets, and alleys by the Osage townsite commission "and sold at public auction after due advertisement to the highest bidder by said townsite commission under such rules and regulations as may be prescribed by the Secretary of the Interior." This law does not attach any condition respecting the sale of liquor on the premises nor does it authorize this Department to attach any such condition. The sale is to be absolute and unconditional. It is not the province of the executive department to remedy a supposed defect in the law in the manner proposed here, nor has it any power to do that. The insertion of a clause of the nature proposed here, which would amount to the imposition of a condition subsequent upon the title, is purely a legislative function and therefore outside the scope of the executive action. If

it be deemed necessary to have such a condition imposed Congress should be asked to grant authority there for or to enact such additional legislation as may be needed.

It is believed, however, that the position heretofore assumed in the Indian Office is correct and that the general laws prohibiting the introduction of intoxicating liquors into the Indian country will prevent the introduction and sale of such liquors in these towns. The Osage Indian reservation is Indian country beyond question, as defined by the Supreme Court of the United States in Bates v. Clark (95 U. S., 204). The sale of lots within these several townsites would not destroy the character of the reservation as Indian country. The Department of Justice was asked whether there was anything in the laws of the United States in relation to the Indian territory which would prevent the establishment of a distillery on lands therein where the Indian title is extinct. In reply to that question Attorney-General Griggs, after referring to the case of Bates . Clark, said (22 Ops., 232):

In the above decision in Bates r. Clark, all this territory remains Indian country, except as the Indian title thereto has been extinguished, and as it includes the place where the distillery in question is proposed to be erected, its erection is obviously forbidden by the section above referred to, unless the Indian title thereto has become extinct in the sense in which that expression is used in the case above cited.

Just to what extent over this vast territory thus described as Indian country the Indian title must be extinguished in order that, under the decision referred to, a particular locality therein shall cease to be Indian country is not apparent. But, in view of the evident object and purpose of Congress in this and kindred legislation to prevent the introduction of intoxicating liquors among the Indians or into localities inhabited by them, it is obvious that much more in this direction is required than that the Indian title shall be extinct as to the particular lot or parcel of land on which the distillery is erected or proposed to be erected.

In view of this and of existing facts in the Indian territory, the question submitted is somewhat indefinite. You ask in substance whether there is anything in the laws of the United States that prevents the establishment of a distillery in the Indian territory on lands therein when the Indian title is extinct."

If this means merely that the Indian title to the particular lands on which the distillery is proposed to be erected is extinct, the first part of the question should be answered in the affirmative, while if it means that the Indian title is extinct there over such an extent of territory as that such territory has, under the doctrine of Bates v. Clark (supra), ceased to be Indian country, then the section above referred to does not itself prohibit such distillery.

The sale of lots in these townsites would surely not render the Indian title extinct over any such extent of territory as would cause the Osage reservation to cease to be Indian country. The laws of the United States prohibiting the introduction of intoxicating liquors into the Indian country would still remain in force as to all the

Osage reservation and would be sufficient to prevent the sale of liquor in these towns.

The question as to the modification of the " liquor clause" in deeds of inherited Indian lands has been considered in another opinion of this date to which reference is hereby made.

Approved:

E. A. HITCHCOCK, Secretary.

ARID LAND—WITHDRAWAL-INCOMPLETE CLAIMS-ACT OF JUNE 17,

1902.

OPINION.

Uncompleted claims to lands withdrawn under the provisions of the act of June 17, 1902, and determined to be needed for construction of irrigation works in connection with a project that has been found practicable, should not be allowed to be perfected, but should remain in the same status as existed at the time the determination was made and the rights of the claimants adjusted upon the basis of that status.

Assistant Attorney-General Campbell to the Secretary of the Interior, January 25, 1906.

(E. F. B.)

I am in receipt of a report from the Director of the Geological Survey upon a letter from the Commissioner of the General Land Office relative to proposed instruction to be given to the register and receiver at Boise, Idaho, to "accept all final proofs offered for lands in Deer Flat reservoir site but issue no final certificates thereon pending further notice and forward said proofs to this office."

The Director is of the opinion that such instructions should not be given, and the matter is referred to me for opinion "as to which, under the law and the regulations of the Department, is the proper action to take in this matter, that recommended by the Commissioner of the General Land Office or that recommended by the Director of the Geological Survey."

I understand the lands in question have been withdrawn for use in the construction and operation of the irrigation works of the Payette-Boise project and hence have been appropriated by the

government.

The different withdrawals to be made under the reclamation act were described and the proper course to be followed in such matters was pointed out with considerable detail in instructions approved June 6, 1905 (33 L. D., 607). It was there said that withdrawals under either form would not defeat any valid entry, location or selection which had the effect of segregating the lands and that all such entries, selections, and locations should be permitted to proceed