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AGO 1951 No. 194 - December 14, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

INDIAN LAND LEASE.

Wardship Indians may purchase or lease state lands.

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                                                               December 14, 1951

Honorable Jack Taylor
Commissioner of Public Lands
Public Lands ‑ Social Security Bldg.
Olympia, Washington                                                                                              Cite as:  AGO 51-53 No. 194

Attention:  Mr. Frank O. Sether

Dear Sir:

            You have inquired whether the Alien Land Laws of Washington prohibit wardship Indians from purchasing or leasing state lands.

            We are of the opinion that wardship Indians may purchase or lease state lands.

                                                                     ANALYSIS

            Article II, section 33 of the Washington Constitution and Rem. Rev. Stat. sections 10581, et seq., restrict the ownership and/or the use of lands within this state to citizens of the United States, and to persons declaring intentions of becoming such citizens.  These enactments are popularly known as "Alien Land Laws."

            Alien Land Laws are inapplicable to Indians who are not aliens in any sense of the word, but, on the contrary, are citizens of the United States.  See 8 U.S.C.A., § 601, which reads in part:

            "The following shall be nationals and citizens of the United States at birth:  * * *

            "(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe:  Provided, That the granting of  [[Orig. Op. Page 2]] citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property; * * *"

            It is to be noted that in the granting of citizenship to native born Indians, Congress did not distinguish between those that have and have not been completely emancipated.  The grant of citizenship to Indians is not inconsistent with their status as wards of the government.  SeeCreek County v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1942);United States v. Dewey County, 14 F. (2d) 784 (D.C. S. Dak. 1926), 26 F. (2d) 434 C.C.A. 8th 1928); mining Co. v. Weir, 271 U.S. 609, 46 S.Ct. 592, 70 L.Ed. 1112 (1926);United States v. Candelavia, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926); McCandless v. United States, 25 F. (2d) 71 C.C.A. 3rd 1928).  Hence, wardship Indians, being citizens, are not inhibited by the Alien Land Laws of Washington from purchasing or leasing state lands.

            By inference, your question presents the further problem of whether tribal Indians have capacity to contract.  On this point we find in 27 Am.Jur., Indians, section 17:

            "An Indian is not under a general legal disability merely because he belongs to a band which is governed by Indian customs and retains a tribal organization; he has the capacity to contract debts and to make binding personal obligations,unless Congress, in the exercise of its power over the Indians, has provided otherwise.  * * *" (Emphasis supplied)

            We have discovered no law restricting the right of individual Washington Indians to contract, except as to reservation property.  We conclude, therefore, that they may purchase or lease state lands.

Very truly yours,

SMITH TROY
Attorney General

ROBERT A. COMFORT
Assistant Attorney General

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