On the other hand, to construe "and" in this instance in the disjunctive will give logical purpose to the use of the two phrases, namely, to authorize the expenditure of funds for the broader purpose included in the second phrase and at the same time to emphasize the importance, in the legislative intent, of the narrower purpose first defined. The specific mention of one of a class, followed by mention of the class itself, is a rhetorical device not uncommonly employed for emphasis, and in this instance it seems clear that it is used by the Congress for that purpose.

Assuming, therefore, that expenditures may be made for that class of objects designed to further the independent functioning of the Philippines although not related to the matters involved in the loss of trade preferences, the question remains whether the strengthening of the Philippine Constabulary and the construction of an airport at Manila fall within that class. This is largely a question of fact, but it may be said that the authority granted is not limited to such expenditures as are required to replace expenditures formerly made by the United States for identical purposes; specifically, a prior expenditure of funds by the United States for the support of the Philippine Constabulary is not a condition precedent to the authority of the Commonwealth Government to spend these funds for the support of that body. I think it may be said that within the meaning of the provision in question are included those objects of expenditure normally considered by a government to be necessary for the maintenance of its integrity as a sovereign power and for the maintenance of its place among other nations in trade and commerce. The two objects mentioned by the High Commissioner in his request certainly seem, on the basis of the facts before me, to qualify in those categories.

While it is my opinion, based on the foregoing, that the expenditures contemplated fall within the terms of subsection (a) of section 19, it must be noted that by subsection (b) the President of the United States is specifically invested with final administrative authority to determine at any time whether the Commonwealth Government is acting in compliance with the provisions of subsection (a). The availability of these funds for any specific purpose will, therefore, depend on the President's determination of whether, in the circumstances then obtaining, their expenditure will meet the requirements of subsection (a) which I have construed above, irrespective of the present views of this Department on the qualification of any object for such expenditure.

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

CRIMINAL JURISDICTION OVER INDIANS ON LANDS PURCHASED FOR THEM WITHOUT STATE CONSENT

Opinion, May 28, 1941

STATUS OF LANDS PURCHASED FOR INDIANS-EFFECT OF PROCLAMATION AS INDIAN RESERVATION-FISH AND GAME LAWS-GENERAL CRIMINAL LAWS.

Lands purchased by the Federal Government for Indian use and set apart under the superintendence of the Government, whether proclaimed an Indian reservation or not, have the same status as an Indian reservation, and, therefore, the State of Wisconsin cannot enforce its criminal laws, including its fish and game laws, against the Indians on such lands.

MARGOLD, Solicitor:

You [Secretary of the Interior] have referred to me for an opinion the question presented by the Indian Office whether the State of Wisconsin may enforce its fish and game laws and other criminal statutes against Indians for acts committed on lands purchased for them by the Federal Government, including lands formally declared an Indian reservation under the Indian Reorganization Act and those which have not yet been so declared.

The question arose because of the arrest of an Indian of the Sakaogon Indian Community in Wisconsin on lands purchased for the Community under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and declared a reservation under section 7 of that act. The arrest was made by a State game warden for violation of the State game laws and the Indian was fined by the Justice of the Peace. It is reported that State game wardens have entered this reservation at various times and searched the Indian homes.

The argument advanced by the Justice of the Peace and the State Conservation Department is that the lands purchased for the Indians were purchased by the Federal Government without securing an enabling act from the State legislature and the permission of the county authorities and that therefore the State did not lose criminal jurisdiction of the lands purchased.

The conclusion of the State authorities that State officers may arrest Indians within an Indian reservation for violation of the State law does not follow from the premise that the State did not lose criminal jurisdiction of the area because of the purchase of land by the Federal Government without the consent of the State. The Federal Government does not assert exclusive jurisdiction of the lands purchased for Indians (see United States v. McGowan, 302 U. S. 535 at 539), nor claim that the State lost sovereignty of the land. The position of the Government is that criminal jurisdiction over the lands remains in the State for all purposes except that the State cannot apply its laws to the Indians within the reservation without the sanction of Congress.

Whether the Federal purpose relates to Indians or not, the ownership and use by the Federal Government of lands within a State, acquired without the consent of the State legislature, do not affect the jurisdiction of the State, except that the State cannot interfere with the Federal purpose for which the lands were acquired. See Surplus Trading Company v. Cook, 281 U. S. 647 at 650, 651. As stated in that case, a typical illustration of this situation is the "usual Indian reservation set apart within a State as a place where the United States may care for its Indian wards and lead them into habits and ways of civilized life.” The civil and criminal laws of the State were said to apply to such areas except in relation to the Indians therein.

Over Indian activities within Indian reservations the Federal Government does claim jurisdiction exclusive of the State. A group of Indians within an Indian reservation created for them by the United States is a "dependent Indian community" over which the United States has jurisdiction to the exclusion of the State. Kagama v. United States, 118 U. S. 375; United States v. Sandoval, 231 U. S. 28; United States v. Quiver, 241 U. S. 605; United States v. McGowan, supra.

One of the most thorough judicial analyses of the exclusive nature of Federal jurisdiction over Indians on Indian reservations as it relates to the criminal law of the State was made in 1931 by the Supreme Court of Wisconsin. State v. Rufus, 205 Wis. 317, 237 N. W. 67. That case held that the criminal law of Wisconsin did not apply to Indians on the Bad River Reservation, and reversed an 1879 Wisconsin case to the contrary. The argument was based upon the uniform recognition by Congress and the Federal courts that Indians on reservations are the wards of the Government subject to Federal supervision, which supervision can admit no interference or supplementation by State action.

This principle was applied specifically to the Wisconsin game laws by the Federal District Court when Wisconsin game officers sought to enforce the State laws against Indians on the same reservation. In re Blackbird, 109 Fed. 139 (D. C. Wis., 1901). The court said (at page 143) that the "true and unimpeachable ground" of Federal jurisdiction over Indians placed on reservations in the States is that they are wards of the Government and, Congress having assumed to punish for criminal offenses, the jurisdiction is exclusive. Identical rulings have been made by other Federal courts. In re Lincoln, 129 Fed. 247 (D. C. N. D. Calif., 1904); United States v. Hamilton, 233 Fed. 685 (W. D. N. Y., 1915). Both the Rufus and the Blackbird cases cite the fact that State jurisdiction over the reservation is complete except in matters touching the Federal relationship to the Indians. That State criminal laws apply to white persons within the reservation is well attested. United States v. McBratney, 104 U. S. 621; Draper v. United States, 164 U. S. 240.

May 28, 1941

These rules of jurisdiction are so well established that the only present question is whether a difference in the conclusion is necessitated by the fact that the lands were purchased for the Indians and were not set apart by treaty, statute, or Executive order from the original Indian country or from the public domain.

This office considered a similar question in the Solicitor's Opinion of September 4, 1940, 57 I. D. 162, supra, which held that State officers could not enter an Indian reservation in Florida for the purpose of removing deer thought to be infested with ticks. The lands of the Florida reservation were purchased under congressional appropriations providing merely for the purchase of lands for permanent homes for the Seminole Indians. Other lands recently purchased for the reservation under the Indian Reorganization Act had not yet been declared a reservation.

In that opinion I referred to the effect of the McGowan decision, and said of that case:

The Supreme Court swept aside distinctions based on the manner of acquisition of the land and on its previous character, saying that what must be regarded as Indian country must be considered in relation to the changes which have taken place, that the protection of the United States is extended over all dependent Indian communities within its borders, that the fundamental consideration of both Congress and the Department of the Interior in establishing this Colony was the protection of a dependent people, that the Indians in this Colony were afforded the same protection as that given Indians in other settlements known as reservations, that it is immaterial whether Congress designates a settlement as a reservation or a colony, that land may be an Indian reservation simply because it is set apart for the use of the Indians under the superintendence of the Government, as occurred in the case of the Reno Indian Colony, and that, while the State may retain sovereignty over the territory its laws cannot conflict with Federal enactments passed to protect and guard its Indian wards.

This decision was foundation for my memorandum to the Assistant Secretary of February 17, 1939, advising that lands purchased under the Indian Reorganization Act but not yet proclaimed a reservation may nevertheless be treated as a reservation and that section 7 of that act contemplated a formal declaration of status rather than a change in status of the lands. The fact that the newly purchased lands in the Hendry County reservation have not been declared a reservation would not seem to be significant or place them in a different category from any other lands of the reservation. All the lands have been set apart for the use of the Indians, under the superintendence of the Government. [p. 166.]

The McGowan decision is a culmination of the uniform line of Federal decisions, rehearsed in the Rufus and Blackbird cases, which rest the exclusive nature of Federal jurisdiction over the Indians, not upon the original title to the Indian reservation, but upon the existence of a dependent Indian community in an area established by the Federal Government for their protection.

The creation of an Indian reservation by purchase is not a new procedure. Congress has frequently authorized the purchase of land for

Indian use, usually designating the specific tribe, as in the Florida case, but sometimes providing a general authorization as in the Indian Reorganization Act. Congress has not, however, differentiated between the status of this type of reservation and other types. They have all been subsumed under the general term "Indian reservation" and treated as subject to the same laws. Because the original general allotment act of February 8, 1887 (24 Stat. 388), which was passed before the practice of purchasing lands for Indians became necessary, related only to treaty, statutory, and Executive order reservations, setting apart lands for Indian use, the act of February 14, 1923 (42 Stat. 1246), was passed to extend the provisions of the act to all lands purchased by authority of Congress for the use of any Indian or Indian tribe. This act demonstrated the assimilation of the purchased lands into the status of other reservation lands.

I, therefore, conclude that the statutes and judicial decisions relating to the application of State criminal law to Indians on Indian reservations, apply to lands set apart for Indians by the Federal Government by purchase, in the same manner as to other reservations, and that, therefore, the question presented by the Indian Office should be answered in the negative.

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

ADMISSION OF ALIEN WORKERS TO VIRGIN ISLANDS

Opinion, June 2, 1941

AUTHORITY OF GOVERNOR OF VIRGIN ISLANDS TO WAIVE PASSPORT AND VISA REQUIREMENTS-AUTHORITY OF PRESIDENT-ADMISSION OF ALIENS AS DEFENSE WORKERS-IMMIGRATION.

The authority conferred upon the Governor of the Virgin Islands by Executive Order No. 8430 of June 5, 1940, to waive passport and visa requirements in cases of emergency for nonimmigrant aliens applying for admission at a port of entry of the Virgin Islands, is applicable to the situation of nonimmigrant aliens coming to the Virgin Islands from other parts of the West Indies to engage in work on defense construction projects.

The applicable provisions of Executive Order No. 8430 are (a) legally valid and (b) currently in force.

The authority of the Governor of the Virgin Islands, under the Executive order cited, extends to (a) cases where the visitor intends to remain for the duration of the necessity, and (b) cases where the visitor has a pending application for an immigration visa and has a conditional intent to secure immigrant status if permitted to do so.

MARGOLD, Solicitor:

The Governor of the Virgin Islands reports that a serious labor shortage now exists in the Islands as a consequence of the national