department the determination of this question. See Aurora Lode ». Bulger Hill and Nugget Gulch Placer (23 L. D., 95). Manifestly, if these lodes were not discovered until long after petitioner's patent application was filed, as now claimed, it can take nothing by its proceedings thereunder, and the application must in that event be rejected. And the controverted question can not be determined from the records containing the evidence at various times adduced before the State and Federal courts, in the several controversies involving portions of the placer location, or from ex parte affidavits or exhibits, but only after hearing regularly had before the local office at which full opportunity has been afforded both sides for submission of such evidence as they may have and for cross-examination of the opposing witnesses. Besides these considerations, no admission of the nonplacer character of the land embraced in their location has been made by respondents; and the motion for rescission of the pending order for hearing is denied.

Upon application by respondents to your office, within a reasonable time, the hearing heretofore ordered will be broadened to include the question of the date of discovery of the lodes embraced in the land in controversy.

For the reasons above given the Department adheres to the decision under review; and the record is returned for such proceedings and action in the case as may appropriately be had in accordance with the foregoing views and directions.

INDIAN LANDS-LIQUOR CLAUSE IN DEEDS BY HEIRS OF DECEASED

ALLOTTEES.

OPINION.

Opinion expressed that the liquor clause" now inserted in deeds by heirs of deceased Indian allottees, prohibiting the sale or storage of liquor on the land conveyed, and providing for a reversion of title in case of violation of the prohibition, should be modified by a further provision "that the rights of mortgagees in good faith, their heirs and assigns, shall not be voided or jeopardized by such reversion.

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

You have referred for my consideration, in connection with a reference of December 8, 1905, a letter of the Commissioner of Indian Affairs reporting on a communication of L. W. Clapp suggesting certain modifications in the clause to be inserted in deeds by heirs of deceased Indian allottees respecting the sale of liquor on the premises conveyed. In his report the Commissioner says that the clause in

question was prepared by "the law officers of the Department" upon recommendation of his office.

When a deed from an heir of a Winnebago allottee for land which the purchaser intended to use for a townsite was presented for your approval, this office was informally asked whether a clause prohibiting the sale of liquor on the land to be conveyed, could be sustained. It was found that the Supreme Court of Nebraska, in which State the lands affected by the proposed deed are situated, in the case of Jetter. Lyon, decided December 2, 1903 (97 Northwestern Rep., 596), had held such a condition valid and enforceable. It was concluded, and the question so informally answered, that such a clause in the proposed deed would in all probability be sustained in the State of Nebraska. It was then asked to formulate a clause, and did so, adopting in substance the clause in the deed that was before the court in that case. The form as adopted reads as follows:

That no malt, spirituous, or vinous liquors shall be kept nor disposed of on the premises conveyed, and that any violation of this condition, either by the grantee or any person claiming rights under said party of the second part, shall render the conveyance void and cause the premises to revert to the party of the first part, his heirs and assigns.

By letter of November 21, 1905, to the Commissioner of Indian Affairs, the Department directed that this clause be inserted in all deeds by heirs of deceased Indian allottees. Afterward the grantee in the deed which brought up for consideration this question, suggested that the clause be modified by limiting the forfeiture to the particular lot or tract upon which liquor was kept or disposed of, and upon reference of that suggestion to this office it was advised in opinion of November 17, 1905, that the modification suggested be not made.

It is now suggested that a proviso be added to the clause as follows: “And provided further, That the rights of mortgagees in good faith, their heirs, and assigns, shall not be voided or jeopardized by such reversion." It is stated that before the clause in question was inserted in these deeds loans could be made with the land as security, but that without some modification of the provision "no life insurance company or other careful investor would lend a dollar at any time in the future upon any land held under a deed or title containing a provision that rendered the deed absolutely void as to the grantee and all persons acquiring rights under him, in case any of such persons should violate this liquor clause.“

The Indian Office suggests that the clause, if thus modified, might be used to defeat the object sought to be attained by the original clause, and by way of illustration suggests, (1) that if a mortgage should be placed on a tract held under such a deed, the mortgage foreclosed and title acquired by virtue of the sale thereunder, the

purchaser under such sale might be relieved of the condition, (2) that the purchaser from the Indian might mortgage the land for a sum nearly equal to its full value and upon violation of the condition the title would not revert to the Indian until he had paid and discharged the incumbrance.

It is believed that the first of these suggestions is not entitled to great consideration. A purchaser at a sale under foreclosure of a mortgage of a tract of land affected by this clause would be a person claiming rights under the original grantee of the Indian. At any rate, instances of sales under foreclosures would be so infrequent as to constitute a negligible factor in determining the course to be pursued. The second suggestion contemplates a condition that may be presented at any time though not probably exactly as the Indian Office puts it. Mortgages will be placed on these lands, at least if the proposed modification be adopted, and whether the amount of such an incumbrance be large or small the reversion of the title, if the amendment suggested be adopted, would become effective only upon the payment by the Indian of the amount of the incumbrance. This would, in most instances, constitute a barrier to the effectual and complete reversion of title. The Indian would, as a rule, be unable to discharge the incumbrance and the final lodgment of the title would be largely in the control of the mortgagee. This would no doubt open the way for secret dealings between the mortgagor and mortgagee with a view to defeat of the liquor clause. It is quite improbable that such cases will be presented so frequently as to constitute a grave objection to the proposed amendment. Holders of these lands will not generally resort to any such proceeding for the purpose of defeating the inhibitory clause. The practical operation of the clause will be to depreciate the price of these lands and any modification that will remove any part of the objections thereto will benefit the Indian holder. Whether the objections to the incorporation of the amendment are sufficient to cause its rejection in the face of the assertions of disadvantage to the Indian that would grow out of the retention of the clause in its original form, can not in the nature of things be definitely determined. The actual results are problematical. I am inclined to the opinion, however, that the disadvantages to the individual Indian growing out of the clause in its original form, especially where the lands affected are agricultural, will be greater than the difficulties that will be presented if the modification be adopted.

Approved:

E. A. HITCHCOCK, Secretary.

YANKTON INDIAN RESERVATION-LIQUOR CLAUSE IN DEEDS-ACT OF AUGUST 15, 1894.

OPINION.

Opinion expressed that it is inadvisable to insert in deeds by heirs of deceased allottees in the Yankton Indian reservation the "liquor clause," prohibiting the sale or storage of liquor on the land conveyed and providing for a reversion of title in case of violation of the prohibition, the agreement with the Yankton Indians and the provisions of the act of August 15, 1894, ratifying the same, being the proper authority which should be invoked for the protection of the Indians in that respect.

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

In his letter of December 7, 1905, the Commissioner of Indian Affairs says that he has informally received a protest from residents upon the Yankton Indian reservation, South Dakota, against the clause prohibiting the sale of liquor being inserted in deeds for lands within that reservation, made under sales by heirs of deceased allottees, and submits the matter for instruction. This letter has been referred to me for opinion upon the matter therein presented. The clause protested against is:

Provided that no malt, spirituous or vinous liquors shall be kept nor disposed of on the premises conveyed, and that any violation of this condition, either by the grantee or any person claiming rights under said party of the second part, shall render the conveyance void and cause the premises to revert to the party of the first part, his heirs and assigns.

It is insisted that the provision in the agreement with the Yankton tribe of Sioux or Dakota Indians on the Yankton reservation ceding these lands and of the act of Congress approved August 15, 1894 (28 Stat., 286), ratifying said agreement, amply provides for the situation so far at least as that reservation is concerned. The provision in the agreement (page 318) is as follows:

No intoxicating liquors nor other intoxicants shall ever be sold or given away upon any of the lands by this agreement ceded and sold to the United States, nor upon any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the treaty between the said Indians and the United States, dated April 19th, 1858, and as afterward surveyed and set off to the said Indians. The penalty for the violation of this provision shall be such as Congress may prescribe in the act ratifying this agreement.

The provision in the ratifying act (page 319) is:

That every person who shall sell or give away any intoxicating liquors or other intoxicants upon any of the lands by said agreeement ceded, or upon any of the lands included in the Yankton Sioux Indian Reservation as created by the treaty of April nineteenth, eighteen hundred and fifty-eight, shall be punishable by imprisonment for not more than two years and by a fine of not more than three hundred-dollars.

Submitting the matter the Commissioner says:

I shall be glad to be instructed by an opinion from the law officers of your Department whether, after a parcel of land had passed entirely out of Indian ownership and become subject to taxation by, and all other jurisdiction of, the State of South Dakota, an act of Congress providing for the punishment of an offense committed on that land could be successfully enforced.

I am not informed whether the effectiveness of the provision against the sale of liquor within the boundaries of the former reservation has been tested in the courts.

Article 7 of the treaty with the Red Lake and Pembina band of Chippewa Indians of May 5, 1864 (13 Stat., 668), provides:

The laws of the United States now in force or that may hereafter be enacted prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States.

The validity of this provision was before the Supreme Court in United States v. 43 Gallons of Whiskey (93 U. S., 188). The power of Congress to make this provision was fully sustained. Speaking of it the court said (page 197) :

This stipulation was not only reasonable in itself but was justly due from a strong government to a weak people it had engaged to protect.

It further said (page 197):

Besides, the power to make treaties with the Indian tribes is, as we have seen, coextensive with that to make treaties with foreign nations. In regard to the latter, it is, beyond doubt, ample to cover all the usual subjects of diplomacy. One of them relates to the disability of the citizens or subjects of either contracting nation to take, by descent or devise, real property situate in the territory of the other. If a treaty to which the United States is a party removed such disability, and secured to them the right so to take and hold such property, as if they were natives of this country, it might contravene the statutes of a State; but, in that event, the courts would disregard them, and give to the alien the full protection conferred by its provisions. If this result can be thus obtained, surely the Federal government may, in the exercise of its acknowledged power to treat with Indians, make the provision in question, coming, as it fairly does, within the clause relating to the regulation of commerce.

When the case came before the Supreme Court again (United States. 43 Gallons of Whiskey, 108 U. S., 491, 494), the authority of the United States to make the provision there in question was more clearly asserted, as follows:

Several important legal and constitutional questions were raised on the argument here, and it was held that Congress, under its constitutional power to regulate commerce with the Indian tribes, may not only prohibit the introduction and sale of spirituous liquors in the Indian country, but extend such prohibition to territory in proximity to that occupied by Indians; that it is competent for the United States, in the exercise of the treaty-making power, to stipulate in a treaty with an Indian tribe that within the territory thereby ceded the laws of the United States, then and thereafter enacted, prohibiting