with no intention to make entry into this country, then they are not passengers and are exempt from the tax in question. Respectfully, JAMES M. BECK, Acting Attorney-General. The SECRETARY OF THE TREASURY. CHEROKEE INDIANS-EXPORT TAX ON HAY. Under section 16 of the act of June 20, 1898 (30 Stat., 495), the Secre tary of the Interior has authority to collect the tribal tax imposed by the laws of the Cherokee Nation of Indians upon the exportation of prairie hay from that nation. But while that section forbids the payment to, or the reception by, any other person than the authorized officers or agents of the Indian Department of the rents or royalties arising from the unappropriated common public lands of that nation, it permits those who, under existing regulations, have taken possession of such lands as would be their share upon allotment, to use the lands thus occupied and to collect and receive the rents therefor. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your note of August 27, 1901, in which you request my official opinion whether your Department has authority, under existing laws, to collect the tribal tax imposed by the laws of the Cherokee Nation of Indians upon the exportation of prairie hay from that nation. The situation is this: Under the right of self-government conferred by Congress, the Cherokee Nation has its own constitution, government, and laws, not inconsistent with the Constitution or laws of the United States. By act of Congress, these laws are first approved by the President. When so approved, they have, in all respects, the force and effect of laws. This autonomy carries with it the unquestionable right of taxation. Under this power the Cherokee Nation imposes a tax of 20 cents per ton upon all prairie hay shipped out of and beyond the limits of that nation. (Laws of the Cherokee Nation, sections 374, 375.) In my opinion, there can be no question of the right or power of that nation to impose such a tax. For reasons satisfactory to both nations, the United States collects the tribal taxes imposed and the royalties and rents from the public domain and deposits them in the United States Treasury to the credit of the Indian Nation. The power and right to do this, by and through the Interior Department, is agreeably affirmed by the United States Court of Appeals, Indian Territory, in Maxey v. Wright (54 S. W. Rep., 807), under existing treaties and acts of Congress. While that decision was rendered with reference to the Creek Nation, it is just as applicable to the Cherokee Nation also, for similar treaties and laws exist as to that nation. Part of the revenues thus collected by the United States for the Indian Nation consists of rents and royalties arising from the public domain of that nation, and which has not been allotted to individual members of that nation; and section 16 of the act of June 28, 1898 (30 Stat., 495) provides the means for the collection of such revenues through the Department of the Interior; and to this end it forbids the payment to or the reception by any other person of the rents or royalties arising from these public lands, and provides for their collection by the Interior Department, and deposit in the Treasury to the credit of the Indian Nation. But allotment of these lands to the individual members of the nation is contemplated and provided for; and this contemplates that, so far as it can be done, the allotment to an individual, or for his wife and minor children, shall em. brace the land of which he or they are already in possession, not exceeding the amount to which he and they may be entitled in such allotment, and, in several respects, such persons, in the occupancy of lands, not more than their share upon such allotment, are treated as quasi owners of the land thus occupied, with the right to control the same and receive its proceeds. In accordance with this, section 16 of the act referred to, while it prohibits individuals from receiving or paying rents or royalties arising from the public lands of the nation except to officers or agents of the Indian Department, it makes an exception in favor of those who are in the occupancy of what they would be entitled to claim under the allotment, and allows them to use and receive the rents and proceeds of such lands, as if such act had not been passed. 19395-VOL 23-02-34 This exception is as follows: "Provided, That where any citizen shall be in possession of only such amount of agricultural or grazing lands as would be his just and reasonable share of the lands of the nation or tribe and that to which his wife and minor children are entitled, he may continue to use the same and receive the rents therefrom until allotment has been made to him." From this it will be readily seen that this section deals only with what are the common public lands of the nation not occupied by individuals as their share of the public domain, and provides that the revenues from such lands shall be collected and paid into the Treasury, while it permits those who have, under existing regulations, taken possession of the whole or a portion of what would be their share upon allotment, to continue as before to use that of which they are so in possession, and that the whole office of this section is to provide for the collection by the Department of the Interior of the revenues from the unappropriated common public lands of the nation, leaving those who have appropriated and are occupying their respective shares to continue to use the same and receive its rents. And it will be further seen that this section has nothing whatever to do with the imposition of local taxes by the Indian Nation or with the exempting any citizen from their payment. The proviso simply recognizes the quasi ownership of the individual in the share he has selected, but leaves the property and its proceeds subject to local taxation, just as in the case of other property. And the nation having imposed a tax upon all prairie hay shipped out of the nation, that tax is just as applicable to hay raised on lands such as are referred to in the proviso of this section as in any other case, and would be so even if the shipper was the absolute owner of the land on which the hay was raised. I have therefore to advise you that neither section 16 of the act of June 28, 1898, nor its proviso in anywise militates against the power of your department to collect the tax in question. Respectfully, The SECRETARY OF THE INTERIOR. P. C. KNOX. LOTTERY-BOND INVESTMENT SCHEMES. The principles which govern the Southern Mutual Investment Company and "Claude Buckley's Perfect System," their workings and results, differing essentially from those of the companies passed upon in the opinion of September 7, 1901 (ante, p. 512), their contracts, taken in connection with the additional terms and requirements imposed upon the companies by the Post-Office Department, do not so depend upon chance as to bring them within the operation of the anti-lottery statutes. Statutes highly penal in their nature must be construed strictly, and should not be applied to the business of a citizen unless such business is certainly within their purview. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your note of September 26, 1901, in which you again request my official opinion as to the legality, in respect to the use of the mails in their operation, of certain so-called bond-investment schemes. In the opinion rendered by me on September 7, 1901, in response to the request in your note of the 9th of August, I considered certain cases there referred to, but did not consider those to which you now refer, for the reason that I understood they were not presently existing cases upon which your Department was then called upon to act, but were merely proposed schemes presented for your advance ruling. But your present note informs me that this is not the case, and I therefore now consider the other two cases submitted. These are the case of the Southern Mutual Investment Company, of Lexington, Ky., and the case presented by Claude Buckley, of Louisville, Ky., called "Claude Buckley's Perfect System," and which I understand is now operated by one or more companies. These cases, in regard to the contracts made, the principles that govern them, their workings, and results, differ essentially from those cases considered in my former opinion. In view of all that was said in that opinion, both generally and specifically, with reference to particular cases, it is not thought necessary or useful to restate here the principles and considerations which govern the determination of the question whether a particular business is within the prohibition of the statutes as to the use of the mails. It may be proper, however, to again refer to the rule that such statutes, highly penal in their nature, must be construed strictly, and should not be applied to the business of a citizen unless such business is certainly within their purview, and to state that especially should the use of the mails not be forbidden to any private business which is not certainly within the prohibition of the statutes under consideration. I have examined the contracts which each of these companies makes, and the terms and conditions attached thereto and a part thereof, and, while standing upon these alone, I might be of opinion that one or both of them were within the purview of these statutes, yet I have read also your letter of instructions to the postmaster in each of these cases, in which certain additional terms and requirements are insisted upon in conducting said business, and to which I understand these companies agree and promise to conform. I quite concur in the wisdom and policy of and the necessity for such additional conditions and requirements, and with these observed as parts of the conduct and working of the business, I am of opinion that the use of the mails in conducting such business is not and should not be forbidden to any company whose business is thus conducted. In a business so conducted I am unable to say that the payment or reception of what is promised depends upon chance within the meaning of these statutes; and, inasmuch as the returns promised to each investor are not more than the money paid in by him and its legitimate earnings, plus an equitable proportion of moneys from lapses, fines, and penalties, no reason is perceived why the promises made may not be performed from the business itself; and I see nothing fraudulent in either plan when it is supplemented by the requirements of your letter of instructions. I have therefore to advise you that the mails may be used in the prosecution of the business upon either of the |