Sioux Mixed Blood-Attorney-General. I am of opinion, then, that on the basis of the contract alone Mr. Utz is not entitled to the amount claimed by him merely because the packages "contained merchandise of dutiable value on which duty was assessed and collected by the Government." Very respectfully, RICHARD OLNEY. The SECRETARY OF THE TREASURY. SIOUX MIXED BLOOD-ATTORNEY-GENERAL. The question whether or not the Sioux half-breed or quarter blood is an Indian within the meaning of the act of March 2, 1889, chapter 405, is to be determined not by the common law, but by the laws or usages of the tribe. Such laws or usages are not matters of which judicial notice can be taken, but present questions of fact upon which the Attorney-General can not advise. Affirmatively, a person apparently of mixed blood residing upon a reservation and claiming to be an Indian is in fact an Indian. Requests for opinions of the Attorney-General should be accompanied by a definite statement of the material facts and formulation of the questions to which an answer is desired. The Attorney-General can not be asked to exercise appellate jurisdiction upon mixed questions of fact and law. DEPARTMENT OF JUSTICE, February 9, 1894. SIR: Your letter of January 4, asking my opinion with relation to the citizenship of Jane E. Waldron, and the opinions of Assistant Attorneys-General Shields and Hall, therewith transmitted, have received my careful attention. It appears that Mrs. Waldron's mother was a half-breed Sioux Indian. Her father was white and supported his family off the reservation until 1883 or 1884, after she came of age. At that time, meeting with reverses, they came to the agency and were placed on the roll as entitled to rations, etc. Mrs. Waldron's husband is also a white man. Mrs. Waldron claims the rights of a Sioux Indian under the act of March 2, 1889, chapter 405, entitled "An act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations, and to secure the relinquishment of the Indian title to the remainder, and Sioux Mixed Blood-Attorney-General. for other purposes." This act carves out six small reservations from the great reservation of the Sioux Nation, and releases the balance of the land to the United States. Various provisions are made in the act for allotment of lands in severalty, and under one of these plaintiff claims as an "Indian receiving and entitled to rations and annuities at either of the agencies mentioned in this act at the time the same shall take effect." Her claim to an allotment has raised a number of interesting questions in your Department, among which you submit the question, "Whether the common-law rule that the offspring of free persons follow the condition of the father prevails in determining the status of children born to a white man, a citizen of the United States, and an Indian woman, his wife." It will be noticed that the act under consideration was dependent for its validity upon the consent of the Indians. (Sec. 28.) In other words, it was substantially a treaty with the Sioux Nation; acts in this form having taken the place of the ancient Indian treaty since the latter was prohibited by act of Congress in 1871. By the agreement confirmed in this act the Sioux Nation gave up a large amount of territory, and the rights conferred on the nation or on individuals were in consideration thereof. The persons entitled to such rights are the persons who at the time of the agreement constituted the Sioux Nation and were lawful members thereof. The question, therefore, whether any particular person is or is not an Indian within the meaning of this agreement is to be determined, in my opinion, not by the common law, but by the laws or usages of the tribe. (See Western Cherokee Indians v. United States, 27 C. Cls., 1, 54; United States v. Old Settlers, 148 U. S., 427, 479.) As to these laws or usages, I am not informed and am not qualified to advise. I do not think that they can be regarded as matters of which judicial notice can be taken. They present rather questions of fact like other local usages. Presumptively, a person apparently of mixed blood residing upon a reservation and claiming to be an Indian is, in fact, an Indian. (Famous Smith v. United States, 151 U. S., decided January 3, 1894.) Other interesting questions are discussed in the opinion, Navigable Waters of the United States. but they are not presented in such a way that I can answer them. No definite statement of facts is submitted, nor are the questions to which an answer is desired separately formu. lated. "Where an official opinion from the head of this Department is desired on questions of law arising on any case, the request should be accompanied by a statement of the material facts of the case, and also the precise questions on which advice is wanted." (14 Opin., 367, 368; 18 Opin., 487, 488; 19 Opin., 465, 466, 696.) You submit all the evidence for my consideration, requesting my opinion "upon all of the questions considered in the opinion of the Assistant Attorney-General for the Department of August 18, 1893." This substantially asks me to exercise appellate jurisdiction over a decision upon mixed questions of fact and law. This I am not empowered to do. Very respectfully, RICHARD OLNEY. The SECRETARY OF THE INTERIOR. NAVIGABLE WATERS OF THE UNITED STATES. The St. Louis and Cloquet rivers, being navigable waters of the United States, can be obstructed by dams only by permission of the Secretary of War, to whom Congress has by express statute given exclusive jurisdiction of the subject. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge yours of the 7th instant, in which, referring to the application of the Altemonte Water Company for permission to construct dams across the St. Louis and Cloquet rivers, you ask my opinion whether the Secretary of War has jurisdiction in the premises. Upon the facts as stated in your letter, both the St. Louis and Cloquet rivers must be deemed navigable waters of the United States. Being such, they can be obstructed by dams only by permission of the Secretary of War, to whom Congress by express statute has given exclusive jurisdiction of the subject. Respectfully, yours, The SECRETARY OF WAR. RICHARD OLNEY. Attorney-General-Treasury Department. ATTORNEY-GENERAL-TREASURY DEPARTMENT. The Solicitor of the Treasury is an officer of the Department of Justice and not of the Treasury Department. Actions to recover moneys due the United States, not involving any issue of fraud, do not come in any way under the direction of the Secretary of the Treasury. (Rev. Stat., 376.) The question whether such an action is maintainable is a question arising in the Department of Justice, and therefore the Attorney-General's opinion can not be asked upon it by the Treasury Department. The "collection of the revenue" under the superintendence of the Secretary of the Treasury within the meaning of Revised Statutes 249 relates to the proceedings of the collectors and their subordinates, and not to those of district attorneys. DEPARTMENT OF JUSTICE, SIR: On January 29 you asked my opinion upon the advisability of attaching certain goods of an alleged debtor to the United States while in transit through the State of Maine in bond en route from England to Canada. That opinion I declined to give, because the advisability of bringing a suit is not a question of law and because also it is inexpedient for the Attorney-General to render an official opinion as to how the suit, if actually brought, ought to be decided by the courts. You now refer the matter to me again, asking my opinion whether these goods can be attached by the laws of the State of Maine and whether such attachment would be in contravention of treaty or statute. The second of the grounds stated for declining an opinion upon the former question applies to these questions as well. And for another reason I am debarred from rendering an official opinion. Although brought to recover the duties on goods previously smuggled by the defendant, yet the proposed action would be simply an action of assumpsit for moneys due. No issue of fraud would be involved. It would, therefore, not come under the direction of the Secretary of the Treasury by section 376 of the Revised Statutes. It would be a suit "in which the United States is a party, or interested," within the meaning of section 379 of the Revised Statutes. As to such suits, "the Solicitor of the Treasury shall have power to instruct the district attorneys," etc., by the terms of that section. The Solicitor of the Treasury is an officer of this Department, as is also the dis Attorney-General-Treasury Department. trict attorney for the district of Maine. The questions of law stated in your communication, therefore, arise in the Department of Justice, and not in the Treasury Department, and are not questions upon which I am authorized to give an opinion to the Treasury Department by section 356 of the Revised Statutes. It is true that by section 249 it is in your province to "direct the superintendence of the collection of the duties on imports." I do not think, however, that this section is intended to substitute the Secretary of the Treasury for the Attorney-General as the officer controlling the actions of the Solicitor of the Treasury in such suits. I have held in the Bloch and Cutajar cases that by the peculiar provisions of section 376 prosecutions for frauds or attempted frauds upon the revenue are to be directed by the Secretary of the Treasury instead of by the Attorney-General. This, however, is an anomaly, and the word "collection" in section 249 applies, in my opinion, to the proceedings of collectors and their subordinates, and not to those of district attorneys. For these reasons the papers are again returned without opinion upon the questions submitted. Very respectfully, RICHARD OLNEY. The SECRETARY OF THE TREASURY. NOTE.-The following is the letter referred to in the foregoing opinion: OCTOBER 21, 1893. SIR: Your letter of October 13, 1893, in relation to frauds upon the revenue at the port of New York by one Cutajar, and the failure of the U. S. attorney to act upon information furnished by the collector, seems to raise the same question of departmental authority which has been discussed between us in the case of United States against Bloch. On reviewing the statutes I am still unable to perceive that I have any proper authority in this matter of punishing frauds upon the revenue. The act of August 2, 1861 (12 Stat., 285), charged the Attorney-General "with the general superintendence and direction of the attorneys and marshals of all the districts in the United States and Territories as to the manner of discharging their respective duties." An explanatory act was passed on August 6, 1861 (12 Stat,, 327), providing that the above enactment should not be "construed to repeal, modify, or in any way affect any law now in force confining or regulating the duties of the Solicitor of the Treasury." By the act of March 3, 1863 (12 Stat., 739), "the Solicitor of the Treasury, under direction of the Secretary of the Treasury," was |