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7, 1882, provides for the allotment of lands of Omahas, and then follows this provision:
"That upon the completion of said allotment and the patenting of the land to said allottees, each and every member of said tribe of Indians shall have the benefit of and be subject to the laws, both civil and criminal, of the State of Nebraska.' (22 Stat., 342.)
666 Where the Indians of any tribe, located upon a reservation within a State or Territory, have had lands allotted to them under any law or treaty of the United States they thereby become citizens and pass under the protection of the Consti. tution of the United States, and are, therefore, entitled to the benefits of and subject to the laws, both civil and criminal, of the State or Territory in which they reside. When an Indian takes up his residence separate and apart from his tribe and adopts habits of civilized life, he likewise becomes a citizen entitled to all the privileges and immunities, and subject to all the burdens incident upon such citizenship; but his rights and interests in tribal or other property are not in any manner impaired or otherwise affected.' (Regulations of the Indian Office, 1894, section 574.) (See sec. 6, Act of February 8,1887; 24 Stat., 388, 390.)
" The allotments have been made, and nearly, if not all, these Indians hold their lands in severalty. It is therefore safe to hold that the laws of Nebraska apply to all of them. This will avoid any confusion and furnish a fixed rule. “The laws of Nebraska provide as follows:
666 All male children under twenty-one and all females under eighteen years of age are declared to be minors; but in case a female inarries between the age of sixteen and eighteen her minority ends.' (Revised Statutes of Nebraska, chap. 34, sec. 1, p. 178.)
Annuity funds, except where otherwise clearly indicated by treaty stipulations, must be divided and paid to the individual members of the tribe entitled to participate therein in equal shares per capita, heads of families receipting for the amount due them, their wives, and the minor members of their families. All other members of the family who may be of legal age are to receive and to receipt for their own shares. In the case of minors, members of a family who are not the children of the head of said family, as nephews and nieces or persons holding similar relations, and minors or helpless or incompetent persons residing with a head of family, not their blood relation, the payments should be made to such head of family, provided there shall first be obtained from two or more of the principal men of the tribe a certificate fully setting forth the facts in the case, and clearly establishing the fact that the person receiving the money is the proper guardian of the party to whom the funds belong; such a certificate to be verified by the interpreter and two disinterested witnesses, and forwarded with the agent's accounts as a subvoucher to establish the claim of proper payment.' (Regulations of the Indian Office, 1894, sec. 154.)
66 Minority under this regulation is a disability that affects payment to the head of a family who is a minor the same as it affects payment to others who are minors.
" The regulation is to be read as warranting payment to the head of a family where he is qualified to receive it. If he were a lunatic, intoxicated, or otherwise disqualified to receive it, it would not be paid to him simply because he was the head of a family, neither should it be paid to him while he is a minor simply because he is the head of a family.
" Payments should not be made to minors at all because they can not give a legal acquittance. They rest under disabilities, and these disabilities should be removed before pay. ment is made to them.
“ The suspensions should, therefore, be removed as to all those who are of age under the laws of Nebraska and continued as to all those who are minors, but were paid as heads of families until they furnish letters of guardiansbip under the laws of the State of Nebraska.
"Letters of guardianship of minor Indians, who have had lands allotted to them in severalty, should conform to the laws of the State in which they live, being governed by the laws of tbe State. Section 154 of Indian Regulations, 1894, above quoted as to appointment of guardians does not apply in their cases. Suspensions will be made in all such cases where letters of guardianship are not furnished in accordance with the laws of tbe State.”
The act of August 7, 1882 (22 Stat., 342), provided for the allotment in severalty to Winnebago Indians of lands theretofore held by the tribe in common. Section 7 of said act provides as follows:
“ That upon the completion of said allotment and the patenting of the lands to the said allottees, each and every member of said tribe of Indians shall have the benefit of and be subject to the laws, both civil and criminal, of the State of Nebraska.” * * *
The act of February 8, 1887 (24 Stat., 388), is a general allotment act applying to nearly, if not all, the different tribes. Section 6 of said act provides:
SEC. 6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of, and be subject to, the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States and is entitled to all the rights, privileges, and immuni. ties of such citizens, whether such Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any mannerimpairing or otherwise affecting the rightof any such Indian to tribal or other property.”
Section 154 of the regulations of the Indian Office of 1894 has been set forth in full in the Auditor's decision and need not be repeated here.
The Auditor says:
“The allotments have been made and nearly, if not all, these Indians hold their lands in severalty. It is therefore safe to hold that the laws of Nebraska apply to all of them. * * * Minority, under this regulation (Section 154, Indian Office Reg. ulations), is a disability that affects payment to the head of a family who is a minor the same as it affects payment to others who are minors.”
The concluding paragraph of the Auditor's decision is as follows:
“ Letters of guardianship of minor Indians who have had lands allotted to them in severalty should conform to the laws of the State in which they live, being governed by the laws of the State. Section 154 of Indian Regulations, 1894, above quoted, as to appointment of guardians, does not apply to their cases. Suspensions will be made in all cases where letters of guardianship are not furnished in accordance with the laws of the State."
If the Auditor is correct in his interpretration of the statutes under consideration, and in his proposed action thereunder, then his decision falls far short of meeting the full requirements of the laws of Nebraska; for instance, the laws of that State recognize the right of a married woman to the control of her separate property to the same extent as if she were a femme sole. .
If the laws of the State are appealed to and applied, the husband must not only be an adult to give a valid acquittance for his own share of annuities, but must be duly authorized by the proper authority of the State before he can give a valid receipt for any other person.
In the settlement of the account out of which this decision grows, the action of the Auditor is widely at variance with his pronounced decision. He refuses recognition of the receipt of an Indian who is married, for shares due himself and wife, because said Indian is a minor, while at the same time he accepts the receipt of the adult husband and father for shares belonging of right to the wife and children, and recognizes the right of a natural guardian to receipt for shares due orphan children. In other words, he discredits the receipt of the head of a family, who is a minor, for his own money, but allows, without question, the receipt of A for money, the individual property of B, C, and D.
But is the Auditor correct in his interpretation of the statutes quoted? The laws, in substance, provide that the Indians to whom allotments have been made shall have the benefit of and be subject to the laws of the State in which they reside. The concluding portion of section 6, act of February 8, 1887 (24 Stat., 390), reads: “Without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property."
Was it the intention of Congress in enacting these laws to completely emancipate said Indians from the jurisdiction of the United States through the Department of the Interior, and in every sense to subject their tribal or communal property to the ordinary incidents of property of white citizens under the general laws? If this was the intent, then the Auditor is correct, so far as he has gone. If, however, the Indians are still for some purposes wards of the Government, and if their communal property is still to be regarded as subject to the control of the officers of the Government whose duty it has been made by law to manage Indian affairs, and "all matters arising out of Indian relations,” then the regulations of the Indian Office, approved, as they have been, by the Secretary of the Interior, must govern the distribution of annuities as heretofore.
The Attorney-General, in his opinion of January 26, 1889 (19 Opin. A. G., 232), in commenting on the status of the Indians under the acts referred to, says:
"In this contemplated new mode of life the guardianship which heretofore has been exercised over the tribe is to be transferred to the individual allottees provided for in this act.
The separate manhood of each Indian is to be recognized, but still subject for the time to the care and supervision of the Government as trustee or guardian."
In the opinion of March 12, 1890 (19 Opin. A. G., 511), the Attorney-General says:
" As will be seen by that opinion (referring to 19 Opin. A. G., 161, one of Acting Attorney-General Jenks), the conclusions there reached rest largely upon the proposition that notwithstanding the Indians, by taking separate allotments, have made a first and a long step toward civilization and independent citizenship, yet they are still in a state of pupilage and under the guardianship of the General Government. Upon the same ground, I am clear that it has not been the intention of Congress, in any legislation so far, to put these Indians * * entirely upon their own resources, or to withdraw the Govern. ment's guardianship, supervision, and protection."
In the case of United States v. Holliday (3 Wall., 407) the Supreme Court held that the laws of the United States prohibiting the sale of liquors to Indians applied to them, notwithstanding rights as citizens and electors had been granted them by the State of Michigan.
In the case of Eells et al. v. Ross (64 Fed. Rep., 417) the United States circuit court of appeals, ninth circuit, held that:
"The act of 1887, which confers citizenship, clearly does not emancipate the Indians from all control or abolish the reservation. Section 3 (act February 28, 1891, 26 Stat., 795) provides for leasing land under certain contingencies, under the regulations of the Secretary of the Interior, and the proviso of the section contemplates agents in charge of the reservations. Besides, the practice of the Department has been and is to maintain them, and this practice is respectable evidence of a correct interpretation of the statute by officers who may have suggested the policy and written the provisions of the statute. (Railroad y. Whitney, 132 U. S., 357–366; Sturr v. Beck, 133 U.S., 548.) That the abolition * * * of the guardianship of the Indians is the ultimate hope of the policy there can be no doubt; but it will not be soonest realized by attributing fanciful qualities to the Indians, or by supposing that their natures can be changed by legislative enactments."
In the case of Beck v. Flournoy, etc., Co. (65 Fed. Rep., 30) the circuit court of appeals, eighth circuit, has followed the same line of argument in holding that Indians might be invested with citizenship without divesting the United States from all jurisdiction and control over them.