sale by Indians of their trust lands and the purchase of other lands with their trust funds, the property should thereupon become subject to taxation regardless of protective methods exercised by the Government in such transaction, then the instrumentalities for the execution of its duties and obligations with respect to its Indian wards would be destroyed.

It was held in the case of Van Brocklin v. State of Tennessee, 117 U. S., 151:

The power to tax involves the power to destroy; the power to destroy may defeat and render useless the power to create; and there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control. The States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.

See also case of United States v. Nashville, etc., Railway Co., 118 U. S., 120.

Congress has conferred upon the Secretary of the Interior authority to prescribe regulations and conditions to govern the sale of Indian allotted lands as well as the expenditure of the proceeds which implies an exclusion of all other authority. The lands and proceeds are held by the Government for a specified period in trust for the Indians, such trust being an agency for the exercise of a Federal power and therefore outside the province of State authority. It follows that trust land conveyed by a husband to his wife, or other trust land purchased with trust funds, as well as unrestricted lands purchased with trust funds, after deeds therefor containing restrictions against alienation have been approved, are not subject to taxation.

INSTRUCTIONS.

January 2, 1914.

RESTORATION OF LANDS-ACT SEPTEMBER 30, 1913-PREFERENCE RIGHT OF STATE. Under the act of September 30, 1913, lands excluded from national forests or released from other withdrawals and restored to the public domain may be opened to settlement only for a definite period, not exceeding ninety days, and at the end of that time may be made subject generally to disposition under all the public land laws applicable; and where so opened, the preference right of selection conferred upon certain States by the act of March 3, 1893, operates for sixty days from and after the time the lands have been so declared to be subject to disposition generally under the public land laws. RESTORATION OF NATIONAL FOREST LANDS-ACT OF SEPTEMBER 30, 1913. The act of September 30, 1913, authorizes certain limitations and conditions to be imposed upon lands thereafter excluded from national forests, but confers no authority upon the land department to impose such limitations and conditions upon lands theretofore authorized by proclamation to be

excluded and restored to the public domain, which lands should be opened to disposition in accordance with the terms of the proclamation and the practice prevailing at the date the proclamation issued.

JONES, First Assistant Secretary:

I am in receipt of your [Commissioner of the General Land Office] letter of December 8, 1913, transmitting drafts of orders proposed to be issued in connection with the restoration of certain lands exIcluded from the Sioux National Forest in Montana and South Dakota and withdrawn for classification under the act of June 25, 1910 (36 Stat., 847).

In your said letter you refer to the act of March 3, 1893 (27 Stat., 592), according to the States of North and South Dakota and Montana a preference right over any person or corporation

to select lands subject to entry by said States . . . for a priod of sixty days after lands have been surveyed and duly declared to be subject to selection and entry under the general land laws of the United States: And provided further, That such preference right shall not accrue against bona fide homestead or preemption settlers on any of said lands at the date of filing of the plat of survey of any township in any local land office, of said States.

You also refer to departmental instructions of April 24, 1913, providing that in the matter of restoration of lands from the Custer National Forest the State shall have preference right of selection for sixty days from and after the date of restoration where the township has been previously surveyed or in the event of unsurveyed lands a preference right during sixty days immediately following the filing of the township plat of survey.

You suggest that this practice is not warranted by the law, particularly in view of the act of Congress of September 30, 1913 (Public, No. 15), which provides a method whereby lands restored from national forests may be made subject to homestead entry by actual settlers only, etc., for a period not exceeding ninety days, the unentered lands to be thereafter subject to disposition under applicable public-land laws. In brief, your view is that under existing law the lands may first be restored to settlement for a definite period and at the end of that time made subject to disposition under all public-land laws applicable, and that the preference right conferred on the States named operates for sixty days from and after the lands have been "declared to be subject to selection and entry under the general land laws of the United States.”

I agree with this view, for the act of September 30, 1913, supra, clearly vests the President, when excluding lands from national forests or releasing them from other withdrawals, to provide for the opening of the lands by settlement in advance of entry, for a limited period; the lands, after the expiration of such period as may

be fixed, not exceeding ninety days, to be subject to disposition under all of the land laws which may be applicable to that particular area. This is not inconsistent with the act of March 3, 1893, supra, according a preference right to the States named therein, because that preference does not attach until the "selection and entry under the general land laws." Your recommendation for an amended form of order governing the restoration of lands in States to which the acts of March 3, 1893, and September 30, 1913, apply, is, therefore, approved.

I have not, however, approved the proposed orders for the restoration of land from the Sioux National Forest. The proclamations authorizing the exclusion of these lands from the forest were signed by the President June 30, 1911, and provide that the lands should "when compatible with public interest be restored to settlement and entry under the laws applicable thereto on such dates as shall be fixed by the Secretary of the Interior and after such notice as he may deem advisable."

The proclamations did not specifically authorize or direct the opening of the land by settlement in advance of entry, nor had the act authorizing the President to so provide in orders of restoration been enacted at that time.

As noted, the act of September 30, 1913, confers upon the President of the United States the authority to limit or provide specific methods of opening to settlement and disposition the lands excluded from national forests, and, therefore, in my opinion, this Department is without authority to prescribe limitations or conditions. The proclamations of June 30, 1911, imposed no such limitations or conditions and I am, therefore, of the opinion that I am without authority so to do and that the lands described in the proposed orders forwarded by you should be opened to disposition in accordance with the practice prevailing at date of issuance of the proclamations or that new proclamations should be submitted to the President for consideration amending or modifying those previously issued and providing the method and manner of restoration under the authority vested in him by said act of September 30, 1913.

INSTRUCTIONS.

January 2, 1914.

ABANDONED MILITARY RESERVATION-NATIONAL FOREST-ACT JUNE 11, 1906. Lands in an abandoned military reservation included within a national forest are subject to listing and entry under the act of June 11, 1906, without regard to the act of July 5, 1884, providing for the appraisal and sale of lands in abandoned military reservations.

35017°-VOL 43-17-3

CONFLICTING INSTRUCTIONS AND DECISIONS OVERRULED.

Departmental instructions of November 29, 1910, not reported, and all decisions inconsistent herewith, overruled.

JONES, First Assistant Secretary.

The Mt. Whitney Military Reservation, California, was established by Executive order of September 20, 1883, and was turned over to this Department for disposal under the act of July 5, 1884 (23 Stat., 103), by Executive order of February 2, 1904.

A portion of said reservation was included within the Sierra Forest Reserve by proclamation of the President July 25, 1905. Another portion thereof was included in the forest by Executive order of April 20, 1908. The lands are now a part of the Kern National Forest as described in Executive order dated January 30, 1911.

In opinion dated March 31, 1908 (36 L. D., 342), the Secretary of the Interior reached the conclusion that the fact that lands within a former military reservation had been abandoned and turned over to the Department of the Interior for disposition under the act of July 5, 1884, supra, does not prevent their reservation for a national forest under section 24 of the act of March 3, 1891 (26 Stat., 1095). This opinion was supported by citation of decision of the United States Circuit Court of Appeals, Ninth Circuit, in the case of United States v. Blendaur (128 Fed., 910). The lands within the abandoned Mount Whitney Military Reservation included in the national forest by the proclamations hereinbefore mentioned, have, accordingly, since that time been regarded and administered as a part of the national forest.

In 1910 you [Commissioner of the General Land Office] advised that the Department of Agriculture had listed for homestead entry, under the act of June 11, 1906 (34 Stat., 233), certain lands within. the common limits of the said abandoned military reservation and the national forest and asked for instructions as to whether the lands could be opened to entry, stating that same had not been appraised under the act of July 5, 1884, supra. You also requested instructions as to whether or not payment should be required in the event the lands were opened to entry.

Under date of November 29, 1910 [not reported], you were advised that while the right of the President to include the lands within the national forest had already been determined, such inclusion could not operate to defeat the application of the law governing the method of disposal of lands within abandoned military reservations "if and when the forest reservation might be discontinued." You were further advised that in the opinion of the Department the lands so listed should be appraised and the parties entering the same under the forest homestead law of June 11, 1906, required to pay

the appraised price. Appraisal was made and was approved by the Department December 8, 1911, and you were instructed to advise each homestead entryman and applicant as to the price fixed.

The act of August 23, 1894 (28 Stat., 491), authorizing the disposition under the homestead law of lands within certain abandoned military reservations theretofore turned over to this Department, has no application to this reservation, which was not abandoned until February 2, 1904.

Upon suggestion of this Department there was introduced into Congress a bill (S. 2815) which proposed to authorize the completion of all homestead entries heretofore made within the limits of the abandoned Mt. Whitney Military Reservation, without appraisement of the lands or payment of any purchase price therefor.

November 6, 1913, considering certain lists submitted by the Secretary of Agriculture, under the act of June 11, 1906, the Department expressed the opinion that lands within the abandoned Mt. Whitney Military Reservation, and others of like status also within. national forests, are not subject to disposition under the act of June 11, 1906, supra, but can be disposed of only under the provisions of the act of July 5, 1884, supra.

I am now in receipt of proposed letter to the Secretary of Agriculture, wherein certain other lists are discussed and the suggestion made that all lands described therein which lie within the limits of the abandoned military reservation and the Kern National Forest, will not be restored under the act of 1906 but should be, through amendment, eliminated from the lists.

It is true that the act of July 5, 1884, provides a specific method for the disposal of lands within the limits of abandoned military reservations, which method includes appraisal and sale, at not less than the appraised value, a method inconsistent with disposition under the so-called free homestead law. It is also true, as already stated, that the act of August 23, 1894, modifying the act first mentioned as to certain military reservations theretofore opened, has no application to the lands here involved. However, under section 24 of the act of March 3, 1891 (26 Stat., 1095), the President is authorized to "set apart and reserve, in any State or Territory having public lands bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations," and this Department and the courts have held that under this authority he may withdraw lands in the public domain whether they be disposable under the general land laws or under some special and limited method. The case of United States v. Blendaur, hereinbefore cited, involved lands which it was contended were not "public lands" but had been previously set apart for a special purpose, but the court held that