The Act of May 27, 1930, c. 342, 46 Stat. 427, transferred the Bureau of Prohibition to the Department of Justice without change in the classified status of the employees, except that attorney positions were withdrawn from the competitive classified service. Executive Order No. 6166 of June 10, 1933, transferred the investigative work connected with prohibition enforcement to the Division of Investigation of the Department of Justice. Thereafter this work was consolidated in a unit of the Division of Investigation known as the Alcoholic Beverage Unit, and the positions in the unit were excepted from the classified service.

It thus appears that when the Bureau of Prohibition was abolished by Executive Order No. 6166 as of August 10, 1933, all of the employees of the Bureau had been appointed thereto on the basis of a classified civil service status, except attorneys appointed subsequent to the transfer of the Bureau to this Department. It also appears that all appointments made in the Division of Investigation and the Alcoholic Beverage Unit subsequent to August 10, 1933, were made without regard to the Civil Service Act and Rules.

It appears, however, from the hearings held by the Senate Civil Service Committee on S. J. Res. 113, the predecessor of the proviso under consideration, that the Committee was under the impression that the persons who had been actually separated from the Bureau of Prohibition and the Alcoholic Beverage Unit between June 10 and December 31, 1933, had never taken a real civil service examination. In view of this fact, and also since the Congress could not have intended to require employees who had been reinstated to their positions on the basis of a civil service status acquired through open competitive examination to pass another such examination, it may be assumed that the real purpose of the Congress in enacting the proviso was to require those who had been reinstated to their present positions on a basis other than a civil service status acquired through open competitive examination to pass such an examination. However, the Treasury Department was authorized under Civil Service Rule IX to reinstate, and it did reinstate, only those who possessed a classified civil service status. The

conclusion is inevitable, therefore, that the proviso requires the persons so reinstated to take new, open competitive examinations. Otherwise, there would be no employees to whom the proviso could apply. Respectfully,

HOMER CUMMINGS.

To the SECRETARY OF THE TREASURY.

APPLICABILITY OF SECTION 208 OF THE NATIONAL INDUSTRIAL RECOVERY ACT WITH RESPECT TO PROVIDING SUBSISTENCE HOMESTEADS FOR INDIANS

The principle, stated in opinion of September 10, 1934, that section 208 of the National Industrial Recovery Act does not contemplate collective or communal ownership, but actual purchase by those who occupy the land and the houses erected thereon, is applicable to homesteads provided for Indians beyond the limits of an Indian reservation, but is inapplicable with respect to homesteads provided for Indians within an existing Indian reservation or added to an existing one under the act of June 18, 1934, and subject to its provisions.

DEPARTMENT OF JUSTICE,

October 31, 1934.

SIR: I have the honor to comply with your request of October 18 for my opinion upon a question arising under Section 208 of the National Industrial Recovery Act with respect to providing subsistence homesteads for Indians.

Section 208 reads as follows:

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To provide for aiding the redistribution of the overbalance of population in industrial centers $25,000,000 is hereby made available to the President, to be used by him through such agencies as he may establish and under such regulations as he may make, for making loans for and otherwise aiding in the purchase of subsistence homesteads. The moneys collected as repayment of said loans shall constitute a revolving fund to be administered as directed by the President for the purposes of this section." (48 Stat. 205.)

You also direct my attention to the Act of June 18, 1934 (48 Stat. 984), with reference to Indian land holdings, etc., and inquire whether, in view thereof and in view of the fact that Indians have been accustomed to collective ownership of property, you may consider as inapplicable to homesteads

provided for them the principle thus stated in my opinion of September 10, 1934:

"In my opinion to you of October 4, 1933, concerning alternative plans for temporarily retaining title in the United States or in a non-profit corporation, I stated: 'It should be borne in mind that the statute necessarily contemplates that the persons who occupy the land and the houses erected thereon will actually purchase them. No particular form of contract is prescribed, but it is rather difficult to conceive of one which would come within the spirit of the statute and yet not bind the settlers as purchasers, or intended purchasers, of the premises occupied.'

"In my opinion, a contract of lease does not amount to a purchase, within the meaning of the provision authorizing 'loans for the purchase of subsistence homesteads,' and ownership by the lessor (the association) would not be ownership by the lessee (the tenant); nor do I think that a collective or communal ownership was intended by Congress." (38 Op. 58.)

The appropriation made in Section 208 of the National Industrial Recovery Act is limited to uses within the stated purpose of "aiding in the redistribution of the overbalance of population in industrial centers." The section is not properly to be interpreted as authorizing discrimination either in favor of or against persons of the Indian race. An Indian who comes within the designated class of beneficiaries may be aided in purchasing a homestead in the same manner as other persons. The fact that one may have been accustomed to collective or communal property holding supplies no reason for reading into the section an exception in his favor.

As to Indians, however, subsequent legislation is to be considered. The Act of June 18, 1934, provides, generally, that hereafter no land of any Indian reservation shall be allotted in severalty; that restrictions upon alienation of Indian lands are continued indefinitely; that the Secretary of the Interior may restore to tribal ownership remaining surplus. lands of any Indian reservation; that he may proclaim new Indian reservations on lands acquired pursuant to the Act or add such lands to existing reservations; that lands so acquired shall be held in the name of the United States, in

trust for the Indian or Indians, with exemption from state taxation, etc. Some provisions are made inapplicable to particular tribes, and the application of the statute is further limited by the following sections:

"SEC. 8. Nothing contained in this Act shall be construed to relate to Indian holdings of allotments or homesteads upon the public domain outside of the geographic boundaries of any Indian reservation now existing or established hereafter." [48 Stat. 986.]

"SEC. 18. This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice." [48 Stat. 988.]

It is thus expressly provided that the Act shall not apply to a homestead acquired by an individual Indian upon the public domain beyond the boundary of his reservation. A fortiori, there can be no intention that it shall apply to a homestead acquired by him upon land which is not part of the public domain and is not within any Indian reservation; and no language in the statute can reasonably be construed as giving it such extended meaning.

If, however, a homestead is provided for an Indian upon an existing Indian reservation or upon land acquired pursuant to the Act of June 18, 1934, and either proclaimed as a new Indian reservation or added to an existing one, the Act has direct application, unless rejected by a majority vote of the adult Indians, and it forbids allotments in severalty. In the absence of such rejection, the holding will be governed by that Act, which, to the extent of any conflict, must prevail over earlier legislation.

This also presents the question whether the funds provided in Section 208 of the National Industrial Recovery Act may be used for subsistence homesteads upon Indian reservations. In so far as Section 208 is concerned, there is no applicable restriction so long as the loan or other form of assistance comes within the stated purpose 66 to provide for aiding the redistribution of the overbalance of popula

tion in industrial centers," and my attention has been called to no other statute which would prevent such use.

Considering the foregoing, it is my opinion that the principle stated in the opinion of September 10, 1934, concerning collective ownership of subsistence homesteads is applicable to homesteads provided for Indians beyond the limits of an Indian reservation, but is inapplicable with respect to homesteads provided for Indians within an existing Indian reservation or upon land either proclaimed as a new reservation or added to an existing one under the Act of June 18, 1934, and subject to its provisions.

Respectfully,

HOMER CUMMINGS.

To the SECRETARY OF THE INTERIOR.

CONSTRUCTION OF THE ACT OF JUNE 18, 1934, RELATING TO INDIAN LANDS

Section 18 of the act of June 18, 1934, relating to Indian lands and reservations, provides in part, "This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application."

Held, the words "this Act" cannot properly be considered as designating only a part, or parts, of the Act, and hence the third and succeeding provisos in section 3, quoted herein, will be inoperative if the vote under section 18 is against the application of the Act. The functions of the proviso stated.

DEPARTMENT OF JUSTICE,
November 1, 1934.

SIR: I have your letter of October 20 requesting my opinion with respect to the proper interpretation of the Act of June 18, 1934 [48 Stat. 984], which provides, generally, that no land of any Indian reservation shall be allotted in severalty; that restrictions upon alienations of Indian lands are continued indefinitely; that the Secretary of the Interior may restore to tribal ownership remaining surplus lands of Indian reservations; that he may proclaim new Indian reservations upon lands acquired pursuant to the Act or add such lands to existing reservations, etc., and contains the following pertinent sections:

"SEC. 3. The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore