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these laws or take away the power to enact them, or to exempt the purchasers of lots, or any other persons, from their operation, it is quite safe to say it would have done so by provisions very different from those in the act of 1898. The treaties and laws of the United States make all persons, with a few specified exceptions, who are not citizens of an Indian nation or members of an Indian tribe, and are found within an Indian nation without permission, intruders there, and require their removal by the United States. This closes the whole matter, absolutely excludes all but the excepted classes, and fully authorizes these nations to absolutely exclude outsiders, or to permit their residence or business upon such terms as they may choose to impose, and it must be borne in mind that citizens of the United States have, as such, no more right or business to be there than they have in any foreign nation, and can lawfully be there at all only by Indian permission; and that their right to be or remain or carry on business there depends solely upon whether they have such permission.

As to the power or duty of your Department in the premises there can hardly be a doubt. Under the treaties of the United States with these Indian nations this Government is under the most solemn obligation, and for which it has received ample consideration, to remove and keep removed from the territory of these tribes, all this class of intruders who are there without Indian permission. The performance of this obligation, as in other matters concerning the Indians and their affairs, has long been devolved upon the Department of the Interior. This power and duty are affirmed in the two opinions referred to and, as directly, in Maxey v. Wright, supra. In that case it was said, on page 812:

"Upon the whole case we therefore hold that a lawyer who is a white man and not a citizen of the Creek Nation, is, pursuant to their statutes, required to pay for the privilege of remaining and practicing his profession in that nation, the sum of $25; and if he refuses the payment thereof he becomes, by virtue of the treaty, an intruder, and that in such a case, the Government of the United States may remove him from the nation; and that this duty devolves upon the Indian Department."

And in another place:

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"We are of the opinion, however, that the Indian agent, when directed by the Secretary of the Interior, may collect this money for the Creeks. In this case the Indian agent was acting in strict accordance with directions and regulations of the Secretary of the Interior, in a matter clearly relating to intercourse with the Indians."

That the United States has the power to perform its treaty stipulations in this regard can not be doubted; and, as already said, and in the opinions referred to and above quoted, the execution of that power and duty devolves upon the Interior Department.

This power of removal is expressly conferred by Revised Statutes, sections 2147 to 2150, inclusive, with the right to use the military force of the United States, when necessary for its accomplishment. And a power of this nature carries with it the duty of its exercise.

But as to persons other than purchasers of town or city lots residing or carrying on business thereon, no question arises under the above act of 1898, and persons who are pasturing cattle upon, or otherwise occupying part of the public domain of either of these Indian nations without permission from the Indian authorities, are simply intruders, and should be removed, unless they obtain such permit and pay the required tax, or permit, or license fee.

In one of the questions submitted, you ask whether your Department has "authority in the case of a merchant refusing to pay such tax, to close his place of business or to remove his stock of merchandise beyond the limits of the nation."

To this, I answer: Your Department may and should remove such merchant unless he has a permit to reside or remain there; and close his place of business and his business, unless he has a permit to carry it on, in all places where such permit is required by law. The question of the right to remove his stock of merchandise beyond the limits of the Indian nation is a different and more doubtful one. While he has no right to remain or carry on business there without a permit to do so, his want of right to keep his goods there, or the right of the Department to remove them,

is not so clear.

While the law excludes him and authorizes his removal, it does not do so expressly, at least as to his goods. And as the whole evil which is sought to be remedied is so done by the removal of the owner and the closing of his business, it is recommended that his goods be permitted to remain if he so desires.

Your question, whether the lands of any Indian nation in which a town or city is situated will cease to be Indian country, etc., when the lands in such town or city are sold, is not one involving any present existing question, or one which I am authorized to answer.

Your last question asks, "What is the full scope of the authority and duty of the Department of the Interior in the premises under the treaties with these nations and the laws of the United States regulating trade and intercourse with the Indians?"

As applicable to the cases here in hand, which is as far as I am authorized to answer the question, and which is designed also as a comprehensive answer to all the other questions save the one last referred to above, it may be said generally that the authority and duty of the Interior Department is, within any of these Indian nations, to remove all persons of the classes forbidden by treaty or law, who are there without Indian permit or license; to close all business which requires a permit or license and is being carried on there without one; and to remove all cattle being pastured on the public land without Indian permit or license, where such license or permit is required; and this is not intended as an enumeration or summary of all the powers or duties of your Department in this direction.

In view of the number of persons, the magnitude of the interests involved, and also as tending to a more ready and better adjustment of the difficulties, it is suggested that public notice be first given to all persons residing or carrying on business without an Indian permit or license, where, for such residence or business, such permit is required, that unless such permit or license be obtained by a short day to be named, such persons will be removed, and such business closed; and in case of cattle pastured without permission,

where permission is required, such cattle will be removed from within the nation.

I return herewith the printed copy of the Constitution and Laws of the Chickasaw Nation, transmitted with your

note.

Respectfully,

The SECRETARY OF THE INTERIOR.

JOHN W. GRIGGS.

ATTORNEY-GENERAL-LEGACY TAX.

The question as to whether section 29, act of June 13, 1898 (30 Stat., 448, 464), imposes a legacy tax upon the estate of persons who were not domiciled in the United States at the time of death, is not free from doubt.

It is not the practice of the Department of Justice to give an opinion in a matter where the question involved is disputable and is the subject of a pending suit, as such action would be equivalent to expressing an opinion as to whether the question ought to be decided in favor of the Government and might bring the Department into conflict with a judicial tribunal.

DEPARTMENT OF JUSTICE,
September 7, 1900.

SIR: I have the honor to acknowledge the receipt of your letter of July 26, transmitting a letter from the Commissioner of Internal Revenue dated July 24, 1900, and requesting an opinion upon the question as to whether the twenty-ninth section of the act of June 13, 1898, imposes a legacy tax upon the estates of persons who are not domiciled in the United States at the time of death. I also have the honor to acknowledge the receipt of your letter of August 22, 1900, with reference to the same matter, together with the inclosed copy of a letter from the United States district attorney for the eastern district of New York, by which it appears that the question upon which you request an opinion is now the subject of a suit in the United States court for that district.

The question submitted is not free from doubt. It is not the practice of this Department to give an opinion in a

matter where the question involved is disputable and is the subject of a pending suit and awaiting judicial determination. To express an opinion under such circumstances would be equivalent to expressing an opinion as to whether the question involved ought to be decided by the courts in favor of the Government. Moreover, the opinion, if given, might "bring this Department into conflict with a judicial tribunal." For both the reasons suggested, this Department has refused to give opinions under similar circumstances, and, it seems to me, with propriety. (See 20 Opin., 619, 702.)

I must decline to give the opinion requested.

Respectfully,

JOHN W. GRIGGS.

The SECRETARY OF THE TREASURY.

SPANISH MINING LAWS-CUBA.

The Spanish mining laws were not continued in force in Cuba after the American occupation of the island.

Both by the rules of public law that apply to foreign territory seized and held as a conquest, and by the terms of the resolution of Congress, the United States, upon taking possession of Cuba, rightly entered upon the exercise of sovereignty, jurisdiction, and control over that island. These are to be used by the United States as a trustee for the benefit of the people of Cuba, and also for its pacification. No limitation of this power is created by the trust, but as to what acts of sovereignty it will perform, the particular manner in which it will perform them, and the subject upon which it will permit its sovereign will to operate, the United States, acting through the President as commander in chief, is the sole judge.

The President, by virtue of his constitutional authority as commander in chief of the Army and Navy, has adequate power to use and make disposition of property in Cuba formerly belonging to the Crown of Spain, or subject to the imperial prerogative, and this includes the right to dispose of mining or other property formerly belonging to the Spanish Crown.

If he desires to do so, the President can authorize the military governor of Cuba to make grants of mining rights, but whether such power should be exercised is a question involving important and delicate considerations.

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