Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1201-1225

1201

OPINIONS OF THE SOLICITOR

MARCH 15, 1943

256.75 provides that "no applicant should independently attempt to negotiate for a right-of-way or pay any money therefore direct to any tribe of Indians . . ." While the act of April 21, 1928, need not be regarded as exclusive, the Secretary by regulation has in effect made it so. Any compensation paid in connection with the issuance of a highway should therefore be deposited in the Treasury as "Indian Moneys, Proceeds of Labor."

(4) Sale of hay produced on Zuni Subagency farm: The nature of this enterprise, or the character of the land upon which it is located, does not appear in the file, and I am therefore unable to determine how these proceeds should be handled. I can only point out that if this is an agency farm, belonging to the United States, it would seem that the proceeds should be deposited in the Treasury as "Indian Moneys, Proceeds of Labor." However, if the farm is a tribal enterprise, based upon the utilization of tribal land, and is operated under a contract requiring the payment of the proceeds of the sale of hay to the pueblo officials, such proceeds may be paid to them.

(5) Stock crossing permits: It is an inherent power of an Indian tribe to issue permits to cross tribal land. It has also been held by this Department that pueblo Indians may themselves grant permits despite the approval requirement of the Pueblo Lands Act (Op. Sol. I.D., M. 29566, Aug. 9, 1939). It is clear, therefore, that money obtained by issuing stock crossing permits has resulted exclusively from the action of the tribe in disposing of a tribal right, and may be made available directly to the pueblo officials.

(6) Fishing permits issued by the Santa Clara pueblo: Since this is a pueblo organized under the Indian Reorganization Act, there can be no question but that the income derived from the issuance of fishing permits is payable directly to the pueblo officials.

The report of the accountants also calls attention to the fact that some non-Indian traders trading on fee patented lands and certain full-blood Indians have, within the jurisdiction of the United Pueblos Agency, been permitted to trade without licenses. The regulations governing traders on the Navajo, Zuni and Hopi reservations were extended to the United Pueblos jurisdiction by a regulation approved by the Secretary on June 29, 1938. Under 25 U.S.C. sec. 262, all persons desiring to trade with the Indians on any Indian reservation are required to obtain licenses, although Indians of the full blood are not subjected to the penal provisions of 25 U.S.C. sec 264. While it is doubtful whether Congress intended to require that Indians of the full blood be licensed, in presenting the question to the Fourth Circuit Court of Appeals in the case of United States v. Marion T. Parton and Amy Tahouette, the position was taken that section 262 was applicable to Indians of the full blood, and the court in its decisions, dated January 11, 1943, has accepted this view, pointing out that, while the statutory penalty may not be imposed on Indians of the full blood, violation of the licensing provision by them may be restrained by injunction. It is also immaterial that traders operate on fee patented lands. Whether they are required to obtain a license does not depend upon the character of the title by which they hold their land but upon whether they are engaged in trading with the Indians. (See Memo. of the First Assistant Solicitor to the Commissioner of Indian Affairs dated May 1, 1940.) The Superintendent of the United Pueblos Agency should, therefore, be instructured to require traders who engage in trade with the Indians to obtain licenses, irrespective of whether their business is carried on on fee patented land and irrespective of whether they are Indians of the full blood.

This will refer to your request to be informed whether, in my opinion, the prohibition found to exist against the application of any part of the joint funds of the Shoshone and Arapaho Tribes of the Wind River Reservation, Wyoming, or accruals thereto, to any purpose other than the reimbursement of the Shoshone Judgment Fund, pursuant to section 6 of the act of July 27, 1939 (53 Stat. 1128, 1130, 25 U.S.C. sec. 576), extends to the application of these funds to the payment of the expenses of members of the Arapaho Tribal Council. In an opinion approved on June 11, 1941 (M. 31324), it was pointed out that there was no authority under existing law to pay out for another purpose the joint funds of the two tribes so long as expenditures from the Shoshone Judgment Fund, made pursuant to section 3 (a) of

1202

DEPARTMENT OF THE INTERIOR

MARCH 15, 1943

the 1939 act, had not been reimbursed. The "other purpose" specifically considered in that opinion was the making of a per capita payment to the members of the tribes. However, in view of the mandatory direction contained in the statute that expenditures from the fund,

I realize the administrative difficulties which are likely to ensue from the fact that apparently the Shoshones have other funds with which to pay their councilmen while the Arapahos have none. But the fact remains that the payment of the Arapaho councilmen out of these funds would be clear violation of the statute.

It occurs to me that the payment of these expenses could be achieved by having inserted in a future appropriation act language which would permit the use of a portion of the remainder of the Shoshone Judgment Fund, mentioned in section 3 (c) of the act, for the payment of these expenses or by the amendment of section 6 to permit these expenses to be paid before reimbursement is made to the fund. Another possibility is that the expenses could be met by the leasing of a portion of the lands in which the two tribes are jointly interested by a lease or leases containing provisions for the payment of the proceeds thereof to the tribal councils. The tribal councils could by appropriate resolution make such moneys available for the payment of expenses of members of the Council. If in fact the payment of council expenses is essential to the proper management of the joint estate of the two tribes, and thus a necessary means to the full repayment of the debt owed to the Shoshone Tribe, such an allocation of revenues not already accrued would, in my opinion, further the purpose of the 1939 statute without violating its terms.

On October 16, 1942, I addressed a memorandum to you in which I expressed my approval of the proposed revision of the regulations covering rights-of-way over public lands and reservations for electrical plants and transmission lines. In that memorandum I called attention to the fact that these regulations had hitherto been interpreted as providing for the granting of rights-of-way over allotted Indian lands under the acts of February 15, 1901 (31 Stat. 790, 43 U.S.C. sec. 959), and March 4, 1911 (36 Stat. 1253, 43 U.S.C. sec. 961), but that the Circuit Court of Appeals, Tenth Circuit, in the case of United States v. Oklahoma Gas and Electric Company, 127 F. (2d) 349 (1942), had ruled that these acts were without application to lands allotted in severalty to individual Indians.

At that time the case was before the United States Supreme Court. I suggested that if the Circuit Court of Appeals were upheld the Department would be without authority to grant rights-of-way over allotted lands under these two acts and that it would be necessary for those desiring to use allotted Indian lands for electrical plants and transmission lines to obtain easement deeds from each allottee covering the lands necessary for such purposes.

The United States Supreme Court on February 15, 1943, affirmed the decision of the Circuit Court of Appeals insofar as the lands involved in that case were concerned. It held that permission to a State to establish a highway over allotted Indian lands given under section 4 of the act of March 3, 1901 (31 Stat. 1058, 1084, 25 U.S.C. sec. 311), included the right of the State to permit maintenance of rural electric service lines within the highway boundaries and that, therefore, a permittee of the State need not apply to the Secretary of the Interior under either the acts of February 15, 1901, or March 4, 1911, supra, for permission to use the allotted lands included within the highway. The case before the court involved lands of a Mexican Kickapoo allottee. The court reviewed the history of the Kickapoo and determined that the particular lands involved were not within a reservation. Therefore the acts of February 15, 1901 and March 4, 1911, which authorize the Secretary of the Interior to permit the use of rights-of-way through reservations, were not applicable to the

1203

OPINIONS OF THE SOLICITOR

APRIL 17, 1943

lands involved. The court left open the question of the applicability of the above two acts to allotted lands actually within Indian reservations. It ruled:

Approved and copy referred to the Commissioner of Indian Affairs, Commissioner of the General Land Office, Director of the Geological Survey, and the Division of Power for their information and guidance.

The following problem has been submitted to me for an opinion: The Minnesota Chippewa Tribe is governed by a Tribal Executive Committee whose members are selected by tribal delegates who in turn are elected by the members of the band and the Indians of the five reservations composing the tribe pursuant to its constitution and bylaws approved July 24, 1936. The difficulty arising in this connection due to the war labor migration consists in the inability to assemble a quorum of tribal delegates for the purpose of having them select the members of the Tribal Executive Committee. Inquiry has been made by the Office of Indian Affairs whether and in what way this difficulty can be overcome in order to maintain a regular governmental authority for the Minnesota Chippewa Tribe.

(1) Section 1 of Article III provides that the tribe shall be governed by a Tribal Executive Committee which shall be composed of not more than

1204

DEPARTMENT OF THE INTERIOR

APRIL 17, 1943

two members from the band and each of the five reservations constituting the tribe. These members of the Tribal Executive Committee are selected by the tribal delegates pursuant to section 2 of Article IV. The tribal delegates numbering not more than two from any district or community are elected annually. Under section 2 of Article III, these districts and communities are designated by the Tribal Executive Committee. There are at present 31 election districts electing 62 delegates.

The first suggestion then in the face of the present dearth of available voters and delegates would be for the Tribal Executive Committee to revise its division of the tribal territory into districts and communities by reducing the number of such election districts to the point where each district will contain a sufficient number of voters and will be in a position to present a sufficient slate of candidates for the post of delegate. In so doing the Tribal Executive Committee should keep in mind the requirement established by section 1, Article X of the constitution that "all districts or communities shall have equal representation."

(2) Secondly, the number of delegates to be elected in each district may be reduced to one instead of the present number of two delegates from each district: Section 1 of Article IV, providing that there shall be "not more than two" delegates from each district, permits the number of delegates from each district to be less than two. The Tribal Executive Committee which has power to designate the election districts should also have the power to determine whether the number of delegates to be returned by the districts should be one or two.

(4) The memorandum from the Office of Indian Affairs finally refers to section 6 of Article II of the bylaws which provides that "a quorum for the Tribal Delegates shall be . . . at least two thirds of the total number of the delegates." The memorandum inquires whether that section should be interpreted to mean

In such a situation the most appropriate remedy might be that already mentioned under 1, supra, of redistributing the election districts. It may be wise for the Tribal Executive Committee to study the situation annually some time before the election date in order to make sure that there is a candidate for delegate in every election district or otherwise to redistrict the tribal area. In order to gain time to make such a study this year, the Executive Committee may want to postpone the election date a few weeks, pursuant to the authority granted it by section 1 of Article IV.

Such redistribution is not limited to election time. At any time during the year when a vacancy occurs the Executive Committee may wish to consolidate districts and hold new elections in the enlarged districts where the delegates actively rep-

1205

OPINIONS OF THE SOLICITOR

JUNE 5, 1943

During a recent session of the Committee on Public Lands at Vernal, Utah, Senator Abe Murdock raised the question whether surplus lands resulting from the passage of the act of May 27, 1902 (32 Stat. 245, 263), were really Indian lands. He seems to have contended that the act restored these lands to the public domain, and that the Indians therefore were not entitled to any proceeds derived from these lands. My opinion has been informally requested on this question.

I am of the opinion that these surplus lands of the Uintah and White River Utes are properly to be regarded as Indian lands, the proceeds of which belong to the Indians. It is true that the act of May 27, 1902, declared that after allotment "all the unallotted lands within said reservation shall be restored to the public domain." This is, however, only a method of indicating that the lands are to be subject to disposition under the public land laws. The act nevertheless provides that the proceeds of the lands "shall be used for the benefit of the Indians," and such a provision constitutes them Indian lands, and requires the United States to hold the proceeds of such lands in trust for the Indians (Ash Sheep Company v. United States, 252 U.S. 159).

The Department has similarly held that the lands ceded by the Ute Indians of Colorado by the act of June 15, 1880 (21 Stat. 199), were Indian lands despite the provision of section 3 of this act that the ceded lands "shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of public lands." (56 I.D. 330, 337-38.) In fact this Department has held inferentially that the surplus lands of the Uintah and White River Utes resulting from the act of May 27, 1902, were Indian lands by including them in the list of lands temporarily withdrawn on September 19, 1934, pending restoration to tribal ownership, pursuant to section 3 of the Indian Reorganization Act (act of June 18, 1934, 48 Stat. 984, 25 U.S.C. sec. 463).

This list is printed in 54 I.D. 559. Such lands were subject to restoration to tribal ownership only if they were lands in which the Indians still had an interest (56 I.D. 330, 334-37).

I do not agree with the opinion expressed in the attached letter to the Superintendent of the Sisseton Agency relating to the jurisdiction of the State of South Dakota over the Sisseton Indians.

The Superintendent requested full information as to the jurisdiction of the South Dakota courts to prosecute Indians for violations of the State game laws when such violations occurred on allotted lands within the boundaries of the original Lake Traverse Reservation under the jurisdiction of the Sisseton Agency. The Superintendent points out that most of the allotments are no longer held by original allottees but that they have been inherited by other Indians under his jurisdiction.

In your proposed reply you state that the Sissetons were allotted under the acts of February 8, 1887 (24 Stat. 388), and March 3, 1891 (26 Stat. 989, 1035), and that all allotments were made prior to the act of May 8, 1906 (34 Stat. 182), amending the 1887 act. You point out that under section 6 of the 1887 act the allottees were made subject to the civil and criminal laws of the State or Territory in which they reside and that the act of May 8, 1906, supra, modified section 6 of the earlier act by providing that "until the issuance of fee simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States" (your emphasis). You state that the 1906 act did not cancel the criminal jurisdiction of the State extended by the 1887 act over allotments which were made prior to that act. You conclude that because all Sisseton allotments were made prior to the amendatory act of 1906, the Sisseton Indians are subject to the hunting and fishing laws of the State of South Dakota as well as to the general criminal code of the State, with the exceptions set forth in 18 U.S.C.

1206

DEPARTMENT OF THE INTERIOR

JUNE 5, 1943

sec 549. You argue, in effect, that because the original allottees were subject to such jurisdiction those who now hold the land by inheritance or devise are likewise subject to State criminal jurisdiction by reason of the 1887 act.

I agree that the allottees who received their patents under the General Allotment Act and the act of March 3, 1891, supra, are probably subject to the civil and criminal laws of the State of South Dakota. However, I cannot agree that the provision in the General Allotment Act subjecting the allottees to the laws of the State had the force of subjecting unallotted Indians who have acquired the original allotments by inheritance or devise to such laws. Neither can I agree that the land comprising these allotments is within the political control of the State to the extent necessary to give the State the power to regulate the unallotted Indians' activities in connection with the wildlife thereon.

1207

OPINIONS OF THE SOLICITOR

JUNE 5, 1943

guardianship.¹ Heff was convicted by the lower court of having sold liquor to an Indian who had received an allotment under the General Allotment Act. The Supreme Court held that an Indian who had received an allotment under that act was no longer a ward of the Government. The allottee was held to be a citizen of the United States and of the State in which he resided and subject to the civil and criminal laws of that State. Such an Indian was held not to be within the reach of Indian police regulations on the part of Congress and the conviction of Heff was held to have been without the jurisdiction of the Federal court. ²

It was to meet this situation that the amendatory act of 1906 was passed. The report of the Senate Committee on Indian Affairs states:

While the 1887 act provided that the United States should hold the allotted lands in trust for the use and benefit of the Indian to whom such allotment should have been made or, in case of his decease, of his heirs, and at the expiration of the trust period the United States would convey the land by patent in fee to the allottee or his heirs, there is nothing in that act which subjects such heirs to the civil or criminal jurisdiction of the States.

It has long been recognized that State laws have no force on Indian reservations in matters affecting the Indians unless Congress has sanctioned the application of such laws to the Indians and their property. In the absence of such congressional sanction, a State court has no jurisdiction to punish an Indian for acts forbidden by State law when such acts are committed within an Indian reservation. Worcester v. State of Georgia, 6 Pet. 515 (1832); United States v. Kagama, 118 U.S. 375 (1886); In re Blackbird, 109 Fed. 139 (1901); In re Lincoln, 129 Fed. 247 (1904); United States v. Hamilton, 233 Fed. 685 (1915); State v. Rufus, 205 Wisc. 317, 237 N.W. 67 (1931); see also opinions of this office M. 28568, December 11, 1936, M. 30920, September 4, 1940, M. 31122, May 28, 1941, and Handbook of Federal Indian Law, ch. 6 and ch. 14, sec. 7. It is fundamental that while the States may exercise jurisdiction over non-Indians and their property within Indian reservations (Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881)), they may not interfere with the activities of the Federal Government in carrying out its policies with regard to the Indians. They may not exercise any jurisdiction over the land held in trust by the United States for the Indians which will interfere with the use thereof by the Indians. United States v. Rickert, 188 U.S. 432 (1903). See Surplus Trading Company v. Cook, 281 U.S. 647 (1930).

So long as the Indians remain on the reservations set apart for them by the United States they are within the exclusive jurisdiction of the United States and until such time as Congress decrees that the Indians shall be subject to the jurisdiction of the States, the States may not control their activities within the reservations. The State of South Dakota itself recognizes this doctrine. In a recent decision its supreme court had occasion to consider whether the enabling act admitting the State into the Union and Article XXII of its Constitution, disclaiming all rights to Indian lands within the State and agreeing that such land should remain under the absolute jurisdiction and control of the United States, the court said:

² This case was specifically overruled by the Supreme Court in United States v. Nice, 241 U.S. 591 (1916).

1208

DEPARTMENT OF THE INTERIOR

JUNE 5, 1943

To what extent has Congress sanctioned the States' exercise of criminal jurisdiction over Indians for acts committed within the boundaries of a reservation? The General Allotment Act did subject allottees to the criminal jurisdiction of the State. Congress has also by the act of February 15, 1929 (45 Stat. 1185, 25 U.S.C. sec. 231), authorized officers of any State to enforce sanitation and quarantine regulations and to enforce compulsory school attendance of Indian pupils as provided by the laws of the State on tribal or allotted lands under regulations prescribed by the Secretary of the Interior. But I am aware of no other instance in which Congress has subjected the Indians to the criminal jurisdiction of the States.

Therefore, since the unallotted Indians and Indians who received their allotments after the effective date of the 1906 act have never been subjected to the criminal jurisdiction of the States, I am of the opinion that the Department should resist the efforts of the State of South Dakota to subject these Indians to its laws when the acts complained of are committed within Indian reservations. That Congress intended this Department, rather than the States, to take the initiative in the protection of the wildlife on such reservations is shown by the act of March 10, 1934 (48 Stat. 401, 16 U.S.C. sec. 664). This act vested in the Office of Indian Affairs and the Wildlife Service, jointly, authority to prepare plans for the better protection of the wildlife resources, including game animals, upon all Indian reservations and unallotted Indian lands coming under the supervision of the Federal Government. It authorizes the Secretary of the Interior to make the necessary regulations for the enforcement of such plans. This is an affirmative recognition by Congress that jurisdiction over Indian lands for the purpose of wildlife conservation rests in the United States rather than in the States.

The Commissioner of Indian Affairs recently submitted the attached proposed modification of the Order Determining Heirs in the case of Fletcher Red Hawk, deceased Standing Rock Sioux allottee No. 8952. The allottee died in 1927, and on September 2, 1932, the Department determined his heirs to be George Red Hawk and Esther Red Hawk, children of decedent's subsequently deceased mother, Victoria Yellow Elk, or Mrs. Jesse Red Hawk. The allottee's mother died on February 9, 1929. She left a will approved by the Department on September 8, 1932, under which the allotment of Fletcher Red Hawk was devised to John Iron Boulder.

Obviously, the two different dispositions of the same allotment cannot stand. The office of Indian Affairs has proposed that the determination made on September 2, 1932 be modified and that the allotment be awarded to John Iron Boulder.

That office has, however, raised the question of the applicability of the act of October 17, 1940, 54 Stat. 1178, 50 U.S.C. 501 et sec., known as the Soldiers' and Sailors' Civil Relief Act of 1940, to the present case, in view of the fact that George Red Hawk, one of the heirs under the determination of September 2, 1932, is now in the armed forces serving outside of the United States. The Examiner of Inheritance has been unable, so far, to contact him for the purpose of notifying him of the proposed modification.

In my opinion the above mentioned act has no application to the quasi-judicial function performed by the Secretary of the Interior in determining the heirs to allotments or in approving wills of allottees under the acts of June 25, 1910, 36 Stat. 855, 25 U.S.C. 372, and February 14, 1913, 37 Stat. 678, 25 U.S.C. 373. The purpose of the Soldiers' and Sailors' Civil Relief Act of 1940 is "to suspend enforcement of civil liabilities" of persons in the military service of the United States. The act sets up the procedure to be followed "in any action or proceeding commenced in any court." The term "court" is defined "to include any court of competent jurisdiction of the United States or of any State, whether or not a court of record." Obviously, an administrative agency of the United States Government was not intended to be included within the term "court" nor can a modification of a prior determination of heirship, entered for the purpose of correcting an error in such prior determination be considered an "action or proceeding" within the scope of the act. Neither can such modification be said to affect the civil liabilities of a person in in the military service. I am of the opinion that, as a matter of law, you may modify the attached order, notwithstanding the fact that George Red Hawk is now in the military service.

While I believe that, legally, a modification of a determination of heirship made by the Secretary of the Interior is outside of the scope of the 1940 act, I am not unmindful of the spirit of that act,

1209

OPINIONS OF THE SOLICITOR

JUNE 14, 1943

which is to prevent the penalizing of persons in the military service of our country through their inability to be present to protect their interests. The circumstances in this particular case indicate that, while there must be a modification of the order of September 2, 1932, George Red Hawk may have a valid defense to the modification proposed by the Office of Indian Affairs awarding the allotment to John Iron Boulder, and you may, as a matter of policy, decide to suspend action thereon until George Red Hawk has had an opportunity to be heard.

The devise to John Iron Boulder in the will of Mrs. Red Hawk was, in my opinion, a conditional devise, subject to be defeated by John Iron Boulder's failure to carry out the condition imposed. In that event the devise would pass under the residuary clause of the will to George and Esther Red Hawk.

The hearing on Mrs. Red Hawk's estate was held on March 29, 1930. The hearing on Fletcher Red Hawk's estate was not until August 20, 1931. At the later hearing John Iron Boulder appeared as guardian ad litem for George Red Hawk and Annie Skye appeared as guardian ad litem for Esther Red Hawk. Their appearance in the capacity as guardians ad litem indicates that they were at that time performing the conditions of the devises to them. However, neither of the children reached their majority until some years after 1931 and there is nothing in the present record to indicate whether the devisees continued to take care of the children during their minority. Unless they did so they are not entitled to retain the land vested in them, as non-performance of the condition would divest the estate previously vested. Wood v. Cantrell, supra; Colonial Trust Co. v. Waldron, supra; Green v. Old People's Home of Chicago, supra; McCall v. McCall, 161 Pa. 412, 29 Atl. 63 (1894). It should be borne in mind, however, that an estate granted on condition of the performance of future duties will not be defeated by anything less than the refusal or failure of the grantee to perform the duties, and non-performance as a result of conditions over which the grantee has no control will not defeat the grant. Boggess v. Crail, 224 Ky. 97, 5 S.W. (2d) 906 (1928). If the devisees did fail or refuse to continue to give care and support to these children, the lands in question would vest in the children as the residuary devisees under Mrs. Red Hawk's will.

In these circumstances. it seems to me that a supplemental hearing should be held to determine whether John Iron Boulder and Annie Skye are

1210

DEPARTMENT OF THE INTERIOR

JUNE 14, 1943

entitled to retain the lands devised to them before any modification of the finding in the Fletcher Red Hawk case is made. I suggest that you do not approve the recommendation of the Office of Indian Affairs in its present form but that it be returned with instructions to hold such a supplemental hearing. This hearing should be held without awaiting the return of George Red Hawk. Almost 8 years have elapsed since he reached his majority and 4 years have passed since Esther Red Hawk became of age. Witnesses who know whether or not the devisees performed the conditions may die or move away. John Iron Boulder, if he is still living, is in his middle sixties and Annie Skye, if she is still living, is almost sixty. In these circumstances I think it advisable to take testimony at the earliest possible moment. However, George Red Hawk, as one of the residuary devisees, should not be deprived, by reason of his absence with the armed forces, of his opportunity to testify as to whether or not the conditions of the will were carried out by John Iron Boulder and Annie Skye.

An effort should be made by the Examiner of Inheritance to inform George Red Hawk by mail of the necessity of modifying the order in the Fletcher Red Hawk case and he should be requested to make a deposition as to whether or not the devisees carried out the conditions imposed by his mother's will. If it is impossible to contact George Red Hawk, I suggest that final action on the modification be suspended until he returns to civilian life.

The Commissioner of Indian Affairs has presented for consideration the question of whether a one-third undivided interest in certain allotted Osage Indian lands is restricted in the hands of its present owner, Joella Gentry, now Tiger, an unallotted Osage Indian of less than one-half degree Indian blood who has never received a certificate of competency.

On August 25, 1942, you approved an opinion of this office (M-31576) that the undivided interests of two unallotted Osage Indians in certain lands in the State of New Mexico were unrestricted. The Commissioner desires to be informed whether, by reason of that opinion, the lands here in question must be considered unrestricted.

The lands discussed in the opinion of August 25, 1942, had never been restricted against alienation. They had been purchased with the unrestricted funds of the persons from whom the unallotted Osage Indians took by devise. This office held that while section 3 of the act of February 27, 1925 (43 Stat. 1008), which was made applicable to unallotted Osage Indians by section 5 of the act of March 2, 1929 (45 Stat. 1478), reimposed restrictions against alienation of lands devised to or inherited by Osages of one-half or more degree Indian blood or those not having certificates of competency, those acts did not apply because the lands there in question were at no time restricted in the hands of the devisors. That opinion has no bearing on the question now presented except insofar as it was pointed out therein that restrictions against alienation of lands theretofore restricted were reimposed on unallotted Indians by section 5 of the act of March 2, 1929, supra.

The question here presented is fully answered by an opinion of this office approved by you on January 26, 1937 (M-27963). There the question was whether the interest in an Osage allotment inherited by John Holloway, an unallotted Osage of less than one-half degree Indian blood without a certificate of competency, descended to him subject to restrictions against alienation. His interest came to him by inheritance from his wife, Alice King, also an unallotted Osage without a certificate of competency, who inherited the land in 1925. John Holloway inherited his interest in 1932. After dis-

1211

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

cussing fully the various acts of Congress dealing with the Osage Indians and the decisions of the courts construing such acts, the conclusion was reached that Alice King who had inherited her interest in the lands prior to 1929, took such interest free of all restrictions against alienation. This conclusion was based on the fact that prior to that time unallotted Indians were not considered members of the Osage Tribe and, not being members, all restrictions against alienation of their inherited interests in Osage lands were removed by section 6 of the act of April 18, 1912 (37 Stat. 86). United States v. La Motte, 67 F. (2d) 788 (C.C.A. 10th, 1933).

The 1929 act was construed as reimposing restrictions on these lands in the hands of Alice King. John Holloway was held to have taken his interest subject to restrictions against alienation. An attempted conveyance of his interest by John Holloway without the approval of the Secretary of the Interior was held to be void. Thereafter the attempted conveyance was the subject of a suit in the United States District Court for the Northern District of Oklahoma in the case of United States v. Johnson, 29 F. Supp. 300 (1939). The court reached the same conclusion as my predecessor, namely, that John Holloway's interest was restricted.

In the present case, Joella Gentry took her interest in these lands upon the death of her mother, Blanch Fronkier, on September 8, 1921, Blanch Fronkier was an Osage allottee of less than one-half degree Indian blood who had received a certificate of competency during her lifetime. At the time of her death all of her Osage lands were unrestricted both by reason of the issuance to her of the certificate of competency and section 3 of the act of March 3, 1921 (41 Stat. 1249), which removed all restrictions against the alienation of the allotment selections, both surplus and homestead, of all adult Osage Indians of less than one-half degree Indian blood.

Joella Gentry took these lands free from restrictions under section 6 of the act of April 18, 1912, supra, and held them unrestricted from the date of her mother's death until March 2, 1929, when the restrictions against alienation applicable to the members of the Osage Tribe were extended to unallotted Osage Indians and their heirs of Indian blood. United States v. Howard, 8 F. Supp. 617 (Okla. 1934); United States v. Johnson, supra. Among the restrictions made applicable was the provision contained in section 3 of the 1925 act, supra, that lands devised to members of the Osage Tribe of one-half or more degree Indian blood or who do not have certificates of competency, under wills approved by the Secretary of the Interior, and lands inherited by such Indians shall be in alienable unless such lands be conveyed with the approval of the Secretary of the Interior. Joella Gentry does not have a certificate of competency and since she inherited these lands they must be considered restricted from and after March 2, 1929.

The Commissioner of Indian Affairs states that Joella Gentry has executed two mortgages on her inherited interest in the lands in question. He states that if the conclusion be reached that her interest in these lands is restricted it is his intention to request that the matter be submitted to the Department of Justice with the request that suit be instituted to clear her title. The Commissioner fails to state the dates on which the mortgages were executed. It must be remembered that Joella Gentry's interest in these lands was entirely unrestricted from September 8, 1921, until March 2, 1929. During that period any conveyance or incumbrance of the land made by Joella Gentry would be as valid as a similar conveyance or incumbrance executed by any person not under any legal disability.

In my opinion the mortgages should be examined to ascertain the dates upon which they were executed. Unless they were executed after March 2, 1929, the Department of Justice should not be requested to institute suits to cancel them.

1212

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

This is to advise you concerning the legal power of the Secretary to delegate certain functions now exercised by you to the Commissioner of Indian Affairs. The consideration of the legality of delegating most of these functions was deferred at the time Order 1721 of August 10, 1942 was signed. Since then other functions have been added to the original request. The principal questions of delegation are to be answered in relation to (a) the sale of Indian allotted and inherited lands, and (b) the determination of heirship and the approval of wills in the probate of Indian estates. A considerable number of other functions are, however, also involved.

As I have already had occasion to inform you or the Under Secretary in a number of other memoranda dealing with problems of delegation,¹ the Secretary of the Interior, as the head of one of the Departments of the Federal Government, has a wide discretion in ordering its affairs, and in the exercise of this discretion, he may ordinarily delegate those functions that fall within the province of the various bureaus of his Department to the respective heads of such bureaus. While I have already discussed at some length .the general considerations applicable to delegations by the Secretary to bureau heads, I think I should take advantage of this occasion to elaborate and clarify my views, especially since the problem presents somewhat greater difficulties in the field of Indian Affairs.

The Secretary's power to delegate his functions to the heads of the bureaus has a variety of sources. A general power to delegate functions which by their very nature can be performed by subordinates is conferred by section 161 of the Revised Statutes (now 5 U.S.C. sec. 22) providing that "the head of each department is authorized to prescribe regulation, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business. . . . " The general power to delegate under this provision has been recognized by the courts.² It has been most recently reaffirmed in

____________
¹ Memorandum of October 26, 1942, as supplemented by the memorandum of April 17, 1943, dealing with delegations to the Commissioner of the General Land Office: memorandum of June 14, 1943 (M. 33180), dealing with the delegation to the Director of the Bureau of Mines of authority to approve certain types of travel orders; the memorandum of June 18, 1943 (M. 33164), dealing with the delegation to the Director of the Geological Survey of certain functions relating to over-all management and fiscal administration in the Department: and the memorandum of August 16, 1943, dealing with the delegation of certain functions to the Director of Grazing.

² Norris v. United States, 257 U.S. 77, 81; The John Shillito Co. v. McClung, 51 Fed. 868, 871 (C.C.A. 6th); Lew Shee v. Nagle, 22 F. (2d) 107, 109 (C.C.A. 9th). It is true that the delegations in these cases were to assistant secretaries to whom the Secretaries had specific power to delegate under the statutes creating the offices of the assistants, but the fact that the courts also relied on section 161 of the Revised Statutes demonstrates the importance attributed by them to the general power.

1213

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

Cudahy Packing Co. v. Holland, 315 U.S. 357, 366. There the Court refused to permit the administrator of the Fair Labor Standards Act to delegate his subpeona power, partly because the Court regarded it as oppressive and easily susceptible to abuse, and partly because :the Court read the legislative history of the act as evidencing an intention on the part of Congress not to permit delegation. Chief Justice Stone, however, implied with reasonable clarity that the results would have been different if Congress, instead of entrusting the powers under the Fair Labor Standards Act to an independent administrator, had "committed the administration of the act to the Secretary of Labor" who would have had authority under section 161.

The nature of the office of the official to whom a power is to be delegated is also important. The broad authorization contained in section 161 of the Revised Statutes is reinforced by the statutory provision of section 441 of the Revised Statutes as amended (now 5 U.S.C. sec. 485) which charges the Secretary of the Interior with "the supervision of public business" relating to a considerable variety of subjects, and the further statutory provisions³ relating to the appointment of the heads of the bureaus, offices and divisions which together make up the Department of the Interior. So far as concerns the administration of Indian Affairs, section 463 of the Revised Statutes (now 25 U.S.C. sec. 2) provides that the "Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe,⁴ have the management of all Indian Affairs and of all matters arising out of Indian relations." These provisions, when read together, establish a departmental rather than a personal framework within which the Secretary discharges his duties. From the general framework of section 161 of the Revised Statutes, authorizing broadly the delegation of the Secretary's duties, and section 463, authorizing with equal breadth the management of all Indian Affairs by the Commissioner, arises a very strong presumption that Indian maters committed to the Secretary may be delegated to the Commissioner.⁵

While section 463 of the Revised Statutes refers in express terms to a power in the Secretary of "direction" rather than delegation, the existence of a power of delegation to a bureau head cannot be doubted. It arises from the very relationship between the Secretary and the heads of his bureaus. The head of a department would not have been provided with these assistants unless it had been contemplated that he should take advantage of their services. An examination of title 25 of the United States Code dealing with Indian matters will show that in the course of Indian legislation there have been relatively few functions which have been directly vested in the Commissioner of Indian Affairs alone⁶ but his participation in Indian administration has nevertheless been large. The heads of the bureaus were originally the key figures in Federal administration,⁷and their independence in the decentralized Federal administration was such that the extent of the supervision which might be exercised over them by the heads of the Departments long remained in doubt.⁸ The heads of the bureaus generally antedated the assistant secretaries, and the head of a department therefore had no choice but to rely upon them in getting done the work of his department.⁹ When provision was later made for assistant secretaries, it was surely not intended that these additional aides should replace the older ones.

It is true that the great majority of statutes governing the functions of the Department of the Interior vest power in the "Secretary of the Interior" rather than in particular Commissioners. But this statutory form of reference does not in itself demonstrate that the Secretary must per-

⁴ The regulation of Indian Affairs by the President has become virtually obsolete so that they are now managed by the commissioner of Indian Affairs under the direction of the Secretary of the Interior.

⁵See United States v. Birdsall, 233 U.S. 223, 232; United States ex rel. West v. Hitchcock, 205 U.S. 80, 85, and Rainbow v. Young, 161 Fed. 835, 838 (C.C.A. 8th), commenting on the general jurisdiction of the Commissioner of Indian Affairs in Indian matters.

⁶ See sections 3, 5, 7, 8, 12, 127, 261, 262, 274, 279, 285, 286, 288, 289, 292, 405.

⁷ See A. W. MacMahon., "Selection and Tenure of Bureau Chiefs in the National Administration of the United States," in American Political Science Review, vol. XX (1926, pp. 548 et seq., and F. J. Goodnow, The Principles of the Administrative Law of the United States (1905, pp. 136-137, 141-143, 375-376.

⁸ The course of centralized control may be traced through such cases as Eliot v. Swarthout, 10 Pet. 137; Butterworth v. Hoe, 112 U.S. 50; Merritt v. Cameron, 137 U.S. 542, and Knight v. United States Land Association, 142 U.S. 161. In the Merritt case, it was finally settled that the power of supervision by the head of a department extended to the issuance of regulations, and in the Knight case, that it might be exercised by "direct orders or by review on appeals."

⁹ So extensive were their duties that in Parish v. United States, 100 U.S. 500, 504, the Supreme Court actually implied that a bureau chief was more burdened than the head of a department: "It has been found," said the Court, "in regard to many of these bureaus and even to the heads of departments, that it is impossible for a single individual to perform in person all the duties imposed on him by his office."

1214

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

sonally exercise the power. The Attorney General has recognized that "Secretary" and "Department" are usually equivalent expressions (39 Op. Atty. Gen. 541, 542) and they have been employed interchangeably not only in common parlance but in legislative debate. While a reference to "departmental" action obviously implies that it is impersonal, a reference to "Secretarial" action does not in itself necessarily imply that it must be personal. Administrative action, in contrast to judicial action, is normally impersonal. The fact that under some statutes the power is vested in the head of a bureau rather than in the head of the department may have no greater significance than that under such statutes the bureau chief may act without awaiting specific instructions from his superior. But even here the Secretary, if he so desires, by virtue of his general power of direction and supervision, may assume complete control over the discharge of the particular function; so that the situation will become the same as if the power had been directly vested in the Secretary in the first instance.

The legislative choice between Secretary and Commissioner seems in truth to be largely a matter of terminological accident, and it would be misleading to attribute a common and careful discrimination in phraseology to diverse draftsmen and Congresses.¹⁰For instance, despite the fact that section 463 of the Revised Statutes subjects the Commissioner of Indian Affairs to the direction of the Secretary, Congress has occasionally enacted that a particular power entrusted to the Commissioner of Indian Affairs should be exercised by him "subject to the approval of" or "under the supervision of" the Secretary of the Interior,¹¹provisions that would seem to be wholly superfluous. Each statute vesting a power in the Secretary or the Commissioner of Indian Affairs must be read against the background of sections 161 and 463 of the Revised Statutes, which constitute the basic framework for each specific allocation of function.

But, apart from all statutes, the power of delegation of a head of a department is a dictate of common sense. While even a general statutory authority to delegate contains a latent qualification that it is not to be pressed to the point of abdication of major duties, particularly when they involve the formulation of basic policies, the great bulk of the routine or trivial tasks which are committed to a department head must and can be delegated.¹² To hold otherwise would prevent the Secretary from exercising that general supervision over the basic policies of a department with which he is expressly charged by statute, and which inheres in the very nature of his office. He would cease to be a policy maker and become a drudge. There is an ultimate source of delegation that is not written down in so many words in any single statute, but is to be derived from the cumulative effect of all of them. If only a few functions were entrusted to the head of a department, it could reasonably be argued that he should personally discharge all of them. When Congress has heaped more and more statutory duties upon a high executive officer, it must follow, in the absence of the clearest and strongest evidence of a contrary intention, that he may perform them through delegates.

This principle of delegation is perhaps most clearly exemplified in the Presidential office. It was no doubt intended in the early days of the Republic that the President should play a more important personal role in the conduct of national affairs than is the case today, and this was particularly true in the case of Indian affairs, which were regarded as a type of foreign affairs. In title 25 of the United States Code are to be found a very large number of Indian powers entrusted to the President rather than the Secretary of the Interior or the Commissioner of Indian Affairs.¹³Today, these powers, whatever their form, insofar as they are not obsolete, could undoubtedly be exercised by the President through the Secretary of the Interior. In view of the first rank of the Presidential office and the enormous burdens that have been put upon the President in the course of the decades, the courts have come to permit him to act through the members of his cabinet by creating the virtually irrebatable presumption that their acts are deemed to be the acts of the President. Wilcox v. Jackson, 13 Pet. 498; Williams v. United States, 1 How 290, 297; Confiscation Cases,

___________
¹⁰ Cf. United States v. Stewart, 311 U.S. 60, 69, Scripps-Howard Radio v. F. C. C., 316 U.S. 4, 11.

¹¹ See title 25 of the United States Code, secs. 10, 13, 66, 99, 222, 264, 292, 295, 302 and 384.

¹² This is the implication of such cases as Crane v. Nichols, 1 F. (2d) 33 (D.C.S.D. Tex.), and Allvord v. United States, 95 U.S. 356, 358, where the Court said: "We suppose that the assistant postmasters general were appointed for precisely such functions as this one discharged in the matter, and it would be a dangerous principle to hold that the Department is bound alone by what is transacted by the Postmaster General in person; for the same rule would free parties dealing with the department from obligations not assumed directly with its head." While the act of June 8, 1872 (17 Stat. 284, Rev. Stat. sec. 389, 5 U.S.C. sec. 363), provided for three assistant postmasters general, the Postmaster General was not given express power to delegate his duties to them.

¹³ See secs. 111, 112, 113, 115, 139, 140, 141, 153, 157, 174, 180, 196, 220, 223, 225, 229, 263, 271, 331, 348.

1215

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

20 Wall. 92, 109; Wolsey v. Chapman, 101 U.S. 755, 769; Chicago, Milwaukee and St. Paul Ry. Co. v. United States, 244 U.S. 351, 357; French v. Weeks, 259 U.S. 326, 334. It has also been held that the President may act through the Commissioner of Indian Affairs. Belt's Executors v. United States,15 Ct. Cls. 92; United States v. Clapox, 35 Fed. 575 (D.C.D. Oreg.). And the acts of not only secretaries but assistant secretaries and the heads of bureaus are protected from attack by the presumption that their actions have been taken within the scope of their authority. McCollum v. United States, 17 Ct. Cls. 101; Chadwick v. United States, 3 Fed. 750 (C.C.D. Mass.); United States v. Adams, 24 Fed. 348 (C.C.D. Oreg.). Surely it is reasonable to suppose that, if the President may act through the heads of the departments, the latter may in turn act through the heads of the bureaus.

There are many judicial decisions holding that, while an executive officer may delegate purely ministerial duties, he must personally discharge duties involving the exercise of judgment or discretion. These cases usually involve, however, inferior officers, such as those of municipal corporations.¹⁴ To hold that the head of a department cannot delegate duties involving the exercise of judgment or discretion would be to nullify section 161 of the Revised Statutes. The Attorneys General have pointed out the futility of applying to a high executive officer, such as the head of one of the great departments of the Government "any principle based upon the theory that every duty imposed upon, or power vested in the Secretary, which requires the exercise of judgment or discretion must be performed by him personally . . ." 35 Op. Atty. Gen. 15, 19; see also 37 Op. Atty. Gen. 364; 39 Op. Atty. Gen. 541, 543. The last cited opinion contains a particularly illuminating discussion of the bases of delegation by the heads of the departments. It points out not only that "regarding the nature of the offices, the assumption is required that the assignments will include duties of a high character" but that whatever the duty of the head of a department in the initial phase of the administration of a statute, once precedents have become established, delegation amounts only to "an assignment of the detail of disposing of particular applications according to precedents already established, subject to any exceptions which the Secretary may now find proper or hereafter may become advisable." (39 Op. Atty. Gen. 541, 546.)

"Delegation," as Justice Douglas pointed out in his dissenting opinion in the Cudahy Packing case, 315 U.S. 357, 369, " is a matter of degrees." It rarely occurs in a form that amounts to a complete abdication of function. An official duty of decision may no less effectively be discharged through the issuance of general rules and regulations. Ferguson v. Port Huron and Sarnia Ferry Co., 13 F. (2d) 489, 492 (D.C.E.D. Mich.). Moreover, the regulation governing the exercise of a power by a subordinate need not necessarily be in writing but may consist of .the unwritten usage of a department. United States v. Birdsall, 233 U.S. 223, 331. The theory of legislative delegation should also be applicable to administrative delegation. The courts have said that, while no delegation of legislative power to administrative agencies or officials is permissible, Congress may nevertheless permit them to issue rules and regulations to implement the policy which it has itself laid down. The administrative official is then merely "filling in the details," and no delegation has in fact taken place. So, too, there is no forbidden delegation when the subordinate is merely executing the rules and regulations promulgated by his superior. This is pre-eminently true when the superior has provided for a right of appeal to him from the decision of his subordinate. Indeed, in the case of the Secretary of the Interior, his duty of direction and supervision over the Commissioner of Indian Affairs, would necessarily imply a duty of considering appeals from decisions of the latter in exercising powers specifically entrusted to his subordinate by statute.¹⁵

Finally, it is to be noted that even when a high executive officer must "approve" an action, it does not necessarily follow that he must approve in writing or by signing his name. His approval may not only be given under general instructions but it may be gathered from circumstances.¹⁶ As the Supreme Court said in Hannibal Bridge Co. v. United States, 221 U.S. 194, 206: "It is physically impossible for the head of an executive department to sign himself every official communication that emanates from his Department." Certainly

____________
¹⁴ Mechem: Public Offices and Officers, § 566 et seq.; Throop: Public Officers, ch. XXIV.

¹⁵ In Butterworth v. Hoe, 112 U.S. 50, 57, the Supreme Court of the United States held with reference to the Commissioner of Patents that in all cases affecting private rights as distinguished from those in which the public has a general interest, the "official duty of direction and supervision on the part of the Secretary implies a correlative right of appeal from the Commissioner in every case of complaint, although no such appeal is expressly given."

¹⁶ Compare Northern Pacific Ry. Co. v. Wismer, 246 U.S. 283, which upheld the establishment of an Indian Reservation by the Commissioner of Indian Affairs with only the tacit approval of the Secretary of the Interior. In Lomax v. Pickering, 173 U.S. 26, 30, it was held that the President's approval of a deed could be expressed in any form or on any document.

1216

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

when he has in fact approved, he may have someone else stamp or sign his signature as a token of his approval. 31 Op. Atty. Gen. 146, 349.

The general powers of the Secretary over the sale of allotted lands and inherited interests in allotted lands, whether held in trust or otherwise restricted against alienation, are based upon a considerable number of statutes.¹⁷ He also possesses similar powers under statutes governing the Five Civilized Tribes,¹⁸ and other Indian Tribes in Oklahoma ¹⁹ The Secretary may in effect remove restrictions from Indian lands by issuing a patent in fee, or a certificate of competency upon the application of the Indian owner. Restricted lands may also be sold "subject to the approval" of the Secretary or "under rules and regulations" prescribed by him. Restrictions on the alienation of lands may be removed either conditionally or unconditionally. The present regulations governing the alienation of restricted Indian lands are to be found in title 25, part 241, of the Code of Federal Regulations. Section 4 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 985, 25 U.S.C. sec. 464), has however, greatly limited the extent of the Secretary's powers over the alienation of Indian lands, and the sale of such lands is now relatively infrequent.²⁰ While on all reservations patents in fee and certificates of competency may still be issued,²¹ the power of the Secretary to permit alienation depends upon whether a reservation is under the Indian Reorganization Act. On reservations under the act sales are limited to the Indian Tribe. However, even on reservations not under the act, the policy is to restrict sales.²² The regulations provide, however, that sales of heirship lands may be made without the consent of the interested heirs. In view of the general considerations noted in the preceding pages, the power of the Secretary of the Interior to make delegations of authority in this field to the Commissioner of Indian Affairs would be entirely clear but for the fact that the removal of restrictions or the alienation of restricted land is a matter of more than routine importance, and the further fact that most of the general acts of Congress on this subject expressly refer decisions on the alienation of restricted land or on the removal of restrictions to the discretion or approval of the Secretary of the Interior while referring other less basic responsibilities, affecting, for example, funds or reports, to the Commissioner of Indian Affairs. As indicated below, however, I do not believe these considerations to be controlling.

I find no evidence in the legislative history of the relevant statutes that compels the conclusions that Congress intends that the Secretary's powers over the sale of original and inherited allotments shall be exercised personally. I think that for the purposes of ,the problem of delegation the administration of Indian property should be considered as a single activity dominated by common conceptions of policy in particular phases of its history. It should require therefore the strongest evidence to show that disposition of Indian property under a particular statute demands the personal action of the Secretary when dispositions under other statutes involving similar property

____________
¹⁷ The course of legislation in this field was as follows: Acts of May 27, 1902, section 7 (32 Stat. 245, 275, 25 U.S.C. sec. 379); May 8, 1906 (34 Stat. 182, 183, 25 U.S.C. sec. 349); June 21, 1906 (34 Stat. 325, 327, 25 U.S.C. sec. 409); March 1, 1907 (34 Stat. 1015, 1018, 25 U.S.C. sec. 405); May 29, 1908, section 1 (35 Stat. 444, 25 U.S.C. sec. 404); June 25, 1910; sections 1 and 2 (36 Stat. 855), as amended February 14, 1913 (37 Stat. 678), 25 U.S.C. sections 372 and 373. The provisions of the act of May 8, 1906 as to sales, and the provisions of the act of May 29, 1908, were practically superseded by the act of June 25, 1910, which is now the basic statute. Indeed this act was only a reenactment of the act of May 8, 1906 and May 29, 1908 (House Report 1135, April 26, 1910).

¹⁸ The Secretary was first empowered to remove restrictions on alienation on lands of the Five Civilized Tribes by the act of April 21, 1904 (33 Stat. 189, 204). By section 22 of the act of April 26, 1906 (34 Stat. 137, 146), conveyances by full-blood heirs were made subject to the approval of the Secretary of the Interior but by section 9 of the act of May 27, 1908 (35 Stat. 312, 315), the Oklahoma courts having jurisdiction of the estate of the deceased allottee were substituted for the Secretary. But under section 1 of the act of May 27, 1908, as amended by section 1 of the act of May 10, 1928 (45 Stat. 495), the Secretary has authority to remove restrictions on allotted lands.

¹⁹ As to Osage: Act of June 28, 1906 (34 Stat. 539, 544), section 2, subdivision 4, and section 12; April 18, 1912 (37 Stat. 86, 87, 88), sections 3, 6 and 8; May 25, 1918 (40 Stat. 561, 579), March 3, 1921 (41 Stat. 1249), section 3; February 27, 1925 (43 Stat. 1008, 1010), section 3. As to other Oklahoma Tribes: Acts of August 15, 1894 (28 Stat. 295, 296), June 10, 1896 (29 Stat. 321, 343), June 7, 1897 (30 Stat. 62, 72); May 31, 1900 (31 Stat. 221, 247), section 7; March 3, 1909 (35 Stat. 751, 752), March 3, 1909 (35 Stat. 728).

²⁰ Even prior to the enactment of the Indian Reorganization Act the Secretary had approved Order No. 420 on August 14, 1933, which provided that until further notice "no more trust or restricted Indian lands, allotted or inherited, shall be offered for sale, nor certificates of competency, patents in fee, or removal of restrictions be submitted to the Indian Office for approval, except in individual cases of great distress or other emergency where it appears absolutely necessary that a restricted Indian tract of land be offered for sale for relief purposes."

1217

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

interests of no less importance do not demand such personal action. So far as concerns the problem of delegation there is no more reason to distinguish between lands of the Five Civilized Tribes (or other Indian Tribes in Oklahoma) and Indian lands elsewhere than there is to distinguish between original allotments and inherited interests in such allotments.

The Congressional debates and reports with reference to the relevant statutes variously refer to "Secretary," "Commissioner", "Department" or "Indian Department" as discharging a particular function, or different functions. But to dwell upon the accident of whether a Congressman on the floor happened to say "Secretary" rather than "Department" is at least as frequent as those to "Secreable construction. Even if ,the distinction between "Secretary" and "Department" had any significance, the reference in the debates to "Department" is as least as frequent as those to "Secretary". The debates show a full awareness on the part of Congress that the real decisions as to the alienation of Indian property were made in the Indian Office, and that they were departmental rather than personal. The size of the appropriations made to carry on the work of the Indian Office is explicable only upon the assumption that the alienation of Indian property was actually being accomplished there rather than in the Office of the Secretary. That the thought of at least many members of Congress was department-wise is shown best when the debate revolved around the question whether the alienation of Indian lands should be entrusted to the courts rather than the Department of the Interior. On such occasions the personal character of judicial action was emphasized.²³ Reference to the "discretion" of the Secretary are particularly meaningless in connection with Five Tribes lands because the debates in Congress as to the power of removing restrictions always revolved about the question whether the power should be entrusted to the Oklahoma courts rather than to the Department and the Secretary.²⁴

I also find nothing in the texts of the statutes themselves that convinces me that delegation is not permissible. The first general statute, the act of May 27, 1902, providing only for the sale of heirship lands, made conveyances "subject to the approval of the Secretary of the Interior," and the first statute providing for removal of restrictions on lands of the Five Civilized Tribes also provided that it should be done "with the approval of the Secretary of the Interior" and "under such rules and regulations as the Secretary of the Interior may prescribe . . . and the approval of the Secretary of the Interior shall be in writing . . ." The requirement of approval must be deemed to be equivalent to the provision that the action to be taken should be left to the Secretary's discretion-a form of provision that does not in itself prevent delegation. Moreover, the departmental character of the supervision of the act of alienation is emphasized in all the subsequent statutes by the provision that it shall be performed under such terms and conditions and under such rules and regulations as the Secretary may prescribe-an obvious aid to delegation since it enables the Secretary to secure the discharge of the function under general rules and regulations. While the acts of May 8, 1906, and May 29, 1908, in some circumstances require the Secretary to be satisfied of the competency of the Indian, they also merely provide that he shall "cause to be issued a patent in fee simple." The same sort of language is even more marked in the basic act of June 25, 1910. While it is provided therein that if the Secretary finds the heirs to be competent, "he shall issue to such heir or heirs a patent in fee," it is also provided that if he finds one or more of the heirs to be incompetent, "he may, in his discretion, cause such lands to be sold," and that if he decides to partition the lands "he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefore." The very omission of the word "cause" from the first clause relating to the issuance of patent in fee to competent heirs is, however, an instructive reminder of the futility of attempting to resolve problems of delegation as the basis of slight variations in language.

The acts of March 1, 1907, and May 29, 1908, did make a distinction between Secretary and Commissioner. Alienations of allotments or inherited interests were made subject to such terms and conditions and such rules or regulations as the Secretary might prescribe but it was also provided that .the proceeds of any disposition should be used for the benefit of the allottee or his heirs "under the supervision of the Commissioner of Indian Affairs." But I think that Congress was here merely expressing the normal expectation that the purely managerial function of handling the proceeds

____________
²³ See particularly 41 Cong. Rec., pt. III, pp. 2284, 2285, containing the remarks of Senator Clapp urging that a court would be a better agency than the Department to remove restrictions on alienation. Speaking a few days later, Senator Clapp said: "Last year we passed a general law giving the Interior Department authority to remove restrictions . . ." (41 Cong. Rec. pt. III, p. 2415).

²⁴ In House Report No. 637, 67th Cong., 2d sess., dated January 31, 1922, the House was informed that while the duties of guardianship of the Five Civilized Tribes "are devolved by law upon the Department of the Interior," they were "very largely performed through the Superintendent of the Five Tribes."

1218

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

would be discharged by .the Bureau of Indian Affairs. This would have been the practice even in the absence of such an express provision. It would be misleading to imply a presumption against delegation of a function entrusted to the Secretary merely because another has been entrusted to the Commissioner, especially since the separate allocation of each of the functions does not prevent the Secretary from exercising both, and its only practical effect is to enable the Commissioner to act without awaiting instructions from the Secretary. It should be particularly noted that both the acts of March 1, 1907 and May 29, 1908, are couched in terms that do not require personal action on the part of the Secretary. While both acts refer indirectly to a requirement of approval on his part, they both also provide for sale under such terms and conditions and under such rules and regulations as he may prescribe, and the 1908 act, moreover, provides only, with reference to inherited interests, that he "shall cause to be issued . . . a patent in fee simple," and that "upon the approval of any sale . . . he shall cause a patent in fee to issue." In any event the provision in these acts for the administration of the proceeds by the Commissioner of Indian Affairs is not to be found in the final act of June 25, 1910, which, moreover, contains a general provision, as follows: "All sales of lands allotted to Indians authorized by any Act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe . . ." Neither the text nor the legislative history of the Indian Reorganization Act indicates any intention to disturb the legislative status quo with respect to the power of delegating the function of accomplishing the alienation of Indian allotments.²⁵

There is little authority on questions of delegation in the field of Indian affairs but there are a number of dicta with reference to conveyances of Indian lands. In Gentry v. McCurry, 164 Okla. 1, 22 P. (2d) 75, the Court upheld the power of the Secretary to make use of the Oklahoma County Court in conducting a sale of an Indian minor's land. However, since the deed in this case was also approved by the Secretary as the ultimate holder of the power of sale, no true problem of delegation was really involved. Nevertheless, the common sense statement of the court is worth noting. "Congress," said the court, "recognized that the Secretary of the Interior could not go personally to Pawhuska, Oklahoma, and conduct the sale of the lands belonging to the allottees and for that reason gave him the right to provide the method of sale of the lands . . ." There are, however, dicta unfavorable to delegation of the Secretary's powers over restricted property in United States v. Watashe, 102 F. (2d) 428, (C.C.A. 10th), and in an opinion of a Solicitor of this Department, M. 25258, dated June 26, 1929. The Watashe case involved the validity of a deed of Creek Indian land which had been approved not by the Secretary of the Interior but by the Assistant Superintendent of the Five Civilized Tribes, although the governing act was that of April 21, 1904, which not only required the Secretary's approval but prescribed that it should be given in writing: the Solicitor`s opinion of June 26, 1929, involved the question whether the Secretary could without statutory authority create a trust of restricted Indian funds which might be administered by a commercial trust company. The court was thinking of the dangers of delegating to subordinate officials such as Indian superintendents, and was particularly impressed by the fact that Section 5 of the act of May 11, 1938 (52 Stat. 347, 348, 25 U.S.C. sec. 396e), expressly authorized the Secretary to authorize "superintendents or other officials in the Indian service" to approve Indian mining leases. On the other hand, the Solicitor was thinking of the dangers of turning restricted funds over to a private trust company which might become involved in State as well as in Federal litigation. In neither case is it clear that there would have been disapproval of delegation to the Commissioner of Indian Affairs, who was neither a subordinate official nor acting in a private capacity but the official specifically charged with the general administration of Indian Affairs.

It may well be argued that in the field of Indian affairs greater caution should prevail in delegating Secretarial powers than in such fields as the public lands. The Indian in contemplation of law is not sui juris; and, since he is a ward, his rights should be protected with special care. The argument would seem to prove too much, as a legal proposition, for it would prevent almost any delegation in the field of Indian affairs. Yet it is

____________
²⁵A power of delegation was expressly included in Title 1, section 13 (a), of H.R. 7902, but this provision was omitted from S. 3645, the bill which actually became the Indian Reorganization Act. In any event I should be unable to perceive the logic of erecting an unsuccessful attempt at statutory delegation as a bar to all delegation in the future, and the same is even true of successful attempts. Legislation intended to remove doubts would thus end by creating them. For instance, the act of September 21, 1922, (42 Stat. 994, 995. 25 U.S.C. sec. 392), expressly authorized the Secretary of the Interior to permit the alienation of allotments which under any law or treaty could be alienated only with the consent of the President. But at least in this particular instance the legislative history establishes conclusively that the purpose of the statute was merely to allay the traditional anxiety of conveyancers. See H. Rept. 623 January 27, 1922): H. Rept. 637 (January 31, 1922); and S. Rept. 551 (March 9, 1922), all in 67th Cong., 2d sess.

1219

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

a consideration which must be weighed with great care in making the policy decision. So far as concerns the bare legal power to delegate, I believe it would have force only if the Secretary were to propose to delegate his powers over Indian property to Indian superintendents, or other Indian Service employees, or local courts. It has, however, very little force if the delegate is to be the Commissioner of Indian Affairs who in reality already exercises much of the substance of the powers which are proposed to be delegated under rules and regulations, and is now subject only to the most general supervision of the Secretary.

As a matter of fact, the Secretary has already under the regulations delegated to the Commissioner of Indian Affairs his power to disapprove alienations of Indian lands. I am of the opinion that he may now further delegate to him the power to approve such alienations subject to existing rules and regulations, and the decisions and practices of the Department. I have hitherto expressed the opinion that delegations should also be made subject to appeal to the Secretary, but it would be meaningless to give a right of appeal on the merits to either the Indian who wishes to dispose of his land, or the prospective purchaser from the decision of the Commissioner issuing a patent in fee or approving a sale, since the application is never made unless seller and purchaser are anxious or willing to consummate the transaction.

Litigation can arise only from changes of circumstances in the future, which are usually unforeseeable. The Indian owner may seek to avoid the transfer if for some reason the land should become very valuable, or a subsequent purchaser may refuse to take title if the land should suddenly decline in value, or if he should himself become financially embarrassed. It is true that, if a title were attacked because it had been conveyed without proper approval, it could be validated by Secretarial approval given at such time even though decades had elapsed since the original transfer and the original allottee had died,²⁶ but the propriety of giving such approval would be entirely in the discretion of the subsequent Secretary.

The situation then is one in which one of the factors ordinarily making delegation of power plainly permissible is absent. More importantly, it involves the title to real property and I should doubt that the traditional caution of property lawyers will be matched by a corresponding learning in the law of Federal delegation. The issue may arise in litigation at any time and may be resolved in State courts by litigants who may not choose to carry the Federal question to the Supreme Court of the United States. In these circumstances I think that you should, if you decide to delegate this function, obtain also the opinion of the
Attorney General.

The present law and practice with respect to the general determination of heirship and the approval of wills rests upon sections 1 and 2 of the act of June 25, 1910 (36 Stat. 825, 856, 25 U.S.C. secs. 372 and 373). The probate of the estates of Indians of the Five Civilized Tribes and the Osage Indians is confided by Federal statutes to the Oklahoma courts²⁷ except that under the act of December 24, 1942 (56 Stat. 1080), exclusive jurisdiction is conferred upon the Secretary of the Interior "under such rules and regulations as he may prescribe" to determine the heirs and probate the estates of restricted Indians of the Five Civilized Tribes which consist only of funds or securities of an aggregate value not exceeding $2,500.

As originally enacted, section 2 of the act of June 25, 1910, which gave allottees the right to dispose of their holdings by will, "in accordance with rules and regulations to be prescribed by the Secretary of the Interior," also contained the proviso that "no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Commissioner of Indian Affairs and the Secretary of the Interior."²⁸ Speaking of this proviso, Congressman Burke said: "I put both in to safeguard it." ²⁹

Whatever may have been the occasion for this provision, the requirement of dual approval was

____________
²⁶ See Pickering v. Lomax, 145 U.S. 310, 314, 316; Lomax v. Pickering, 173 U.S. 26, 27, 32; Lykins v. McGrath, 184 U.S. 169, 171-172; Anchor Oil Co. v. Gray, 256 U.S. 519, 522.

²⁷ With respect to the Five Civilized Tribes, see sections 6 and 9 of the act of May 27, 1908 (35 Stat. 312, 313, 315), and section 1 of the act of June 14, 1918 (40 Stat. 606, 25 U.S.C. sec. 375), and with respect to the Osage, see section 3 of the act of April 18, 1912 (37 Stat. 86).

²⁸ Similar provisions are to be found in Title 25: section 82, relating to the review of payments under Indian contracts; section 84, relating to the approval of assignments of Indian contracts; and section 383, relating to the approval of plans for irrigation projects.

²⁹ See 45 Cong. Rec., pt. VI, p. 5812, May 4, 1910. If one were to assume a careful analysis, the motive may have been not so much to secure the personal approval of both the Commissioner and the Secretary, but to save the time of the latter by permitting the former to disapprove the will, so that no further action by the Secretary would be necessary. In form the Secretary would thus be given a power of approval. Actually he would be given a power of disapproval.

1220

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

repealed by the act of February 14, 1913.³⁰ The legislative history of the act of 1913 furnishes not the slightest clue to the reason for this change, but :it is only reasonable to assume that it was deliberate, and that the question of delegation is now to be determined in accordance with normal criteria.

I am of the opinion therefore that the Secretary's power in approving wills, as well as in determining heirship can be delegated. While the Indian Reorganization Act obviously reduces the responsibility of the Secretary in the approval of wills ³¹the total number of successions handled by him has not necessarily decreased. Insofar as the discretion of the Secretary in approving wills is still important, the Secretary has by general regulation prescribed what factors shall be taken into consideration (Title 25, part 81, sec. 53). The procedure for determining heirs is minutely regulated by the same regulations, and, while this function is quasi-judicial, requiring findings as to heirship in accordance with the evidence, it certainly has little or no discretionary aspect, which is a strong circumstance favoring delegation. Section 52 of the regulations itself refers to the approval of wills as a function of the "Department."

I can find nothing in the legislative history of the act of December 24, 1942, which indicates that the function of administering the small estates with which it deals was to be anything but departmental It is unlikely that Congress expected the Secretary to pass personally upon the probate of every one of these small estates. The present regulations governing the determination of heirs and approval of wills already provide for summary distribution by the Superintendent of personal estates which do not exceed $250 in value. (Title 25, part 81, sec. 23.) If the Secretary may permit the Superintendent to distribute $250 estates, surely he may permit the Commissioner of Indian Affairs to distribute $2,500 estates. Elaborate regulations for the distribution of estates under the act of December 24, 1942, were approved on August 9, 1943 (8 F.R. 11335) .

I think that the Secretary may delegate to the Commissioner of Indian Affairs power to determine heirs and approve wills under applicable regulations. However, to remove any doubt the delegation should be made subject to a right of appeal to the Secretary. A provision for appeal is entirely practical in the handling of probate matters and interested parties who choose not to take advantage of it will be deemed to have waived any right to object. The general regulations in force at present will only need to be modified to provide that the Examiner of Inheritance shall notify all parties at the hearing that they have a right to appeal to the Secretary from any adverse determination by the Commissioner of Indian Affairs. ³²

(c) Authorizations for the sale of restricted Indian lands pledged to tribes as security for loans made by Indian chartered corporations.

This presumably refers to the form entitled "Authority to Sell Restricted Lands" which is executed by an Indian who wishes to borrow funds from an Indian chartered corporation. It authorizes the Secretary upon the Indian's failure to comply with the loan agreement to convey to the corporation the restricted land pledged as security. It is the present practice for this document to be submitted to the Secretary of the Interior for his approval. Since the Commissioner of Indian Affairs requests the delegation to him of the power to sell restricted lands, it may be his intention to request not only the authority to approve the form when the loan is made but also the authority to sell the land upon default in payment of the loan. I have already indicated that the Secretary may delegate to the Commissioner the power to sell restricted land. However, even if this power were to be denied, there still would be no compelling necessity for submitting the conditional authorization to the Secretary for approval. Since the Indian debtor cannot withdraw from the agreement,³³ which is revocable only with the consent of the Secretary of the Interior, there is nothing to prevent the latter from acting upon it upon his default, nor will the death of the debtor prevent the foreclosure of the pledge.³⁴While it is true that the execution of the form creates in effect an encumbrance on the restricted land, it is in favor of the United States against whom the restrictions do not run, and in any event the ultimate approval of the conveyance would constitute necessarily an approval of the prior encumbrance. The present practice of having

___________
³⁰ The object of the amendatory act was simply to widen the scope of the 1910 act, so that it would apply to restricted fees, as well as trust patented lands.

³¹ Under section 4 of the act (25 U.S.C. sec. 464), restricted Indian lands and shares in the assets of a tribal corporation can be devised only to the testator's heirs, to members of the tribe, or to the tribe itself.

³² I should also point out that the courts have held that the Secretary may reopen heirship determinations so long as the property remains subject to departmental administration, and that his decisions are not open to collateral attack. Lane v. United States, 241 U.S. 201; Dixon v. Cox, 268 Fed. 285 (C.C.A. 8th), app. dism. 258 U.S. 634; Peoria Tribe v. Wea Townsite Co., 117 F. (2d) 940 (C.C.A. 10th). Thus even after the time for appeal has passed, the heirship determination remains subject at least to potential supervision by the Secretary.

³³ Almeda On Co. v. Kelley, 35 Okla. 525, 130 Pac. 931; Central National Bank of Tulsa, Okla. v. United States, 283 Fed 368, 373 (C.C.A. 8th).

³⁴ See cases cited in footnote 26, and Scioto Oil Co. v. O'Hern, 67 Okla. 106, 169 Pac. 483.

1221

OPINIONS OF THE SOLICITOR

AUGUST 26, 1943

the Secretary approve the form may therefore be discontinued without detriment to the legal strength of the transaction. The form should in this even be modified, however, by deleting the signature space now provided for Secretarial approval.

(d) Approval of "Receipt and Release Agreements" settling claims of damage to allotted lands of the Five Civilized Tribes.

These agreements in similar terms acknowledge the receipt of certain payments in settlement of damages to allotted lands caused by oil companies in permitting "oil, base sediment, salt water and other deleterious substances to escape from . . . wells located in the watershed of the above-described lands and to flow upon, over, across and through said allotment . . . in full satisfaction of damages caused to said land by such pollution . . . for a period of ten years from the date of this receipt." I do not think that I need decide, with reference to the problem of delegation, the rather puzzling question of the precise juristic nature of this form of agreement.³⁵Whatever its nature, it is a contract affecting restricted land which is subject to approval by the Secretary under the terms of the statutes governing the lands of the Five Civilized Tribes.³⁶ Since the Secretary may delegate authority to remove restrictions, he may obviously also delegate the authority to approve an agreement which may not amount to a transfer of an interest in the restricted lands. There would in any event be no substantial risk of litigation involved in the approval of Receipt and Release Agreement by the Commissioner of Indian Affairs and the power may therefore be delegated without any qualification based upon practicality.

(e) Authorization for the expenditure of tribal industrial assistance funds for tribal enterprises.

I have already approved the delegation of this function in passing upon amendments to part 29 of the Credit Regulations relating to "Loans to Indians from Industry Among Indians Tribal Funds" which authorized the Commissioner of Indian Affairs to approve requests for the use of tribal funds in tribal enterprises. The amendments were approved by the Assistant Secretary on July 2, 1943. There can be no question that the power to make loans for tribal enterprises can be delegated since the Interior Department Appropration Acts authorize the use of tribal funds in tribal enterprises "when proposed by Indian tribes and approved under regulations prescribed by the Secretary of the Interior." The appropriation acts in terms thus do not require the approval to be given by the Secretary; they require only that the regulations shall be Secretarially prescribed. The Comptroller General has indeed already upheld the power of the Secretary to delegate to the Commissioner the power to make loans to Indians under the act of June 26, 1936 (49 Stat. 1967). 17 Comp. Gen. 773.

(f) Contracts pursuant to the Johnson-O'Malley Act of April 16, 1934, as amended by the act of June 4, 1936 (48 Stat. 596, 49 Stat. 1458, 25 U.S.C. secs. 452 to 455).

Section 1 of the act authorizes the Secretary of the Interior "in his discretion" to enter contracts with State political agencies or State educational institutions for education, medical attention, relief and social welfare of Indians. Section 3 of the act authorizes the Secretary of the Interior "to perform any and all acts and to make such rules and regulations, as may be necessary and proper for the purpose of carrying the provisions of this act into effect." I am of the opinion that the powers under the act are clearly delegable. The fact that they are discretionary does not prevent delegation, especially when the officer to whom the powers are granted is given such wide rule-making authority. There is no indication in the legislative history of the act that the powers of the Secretary were not to be delegated.³⁷

I presume that this request to authorizations for travel which under existing orders of the Secretary require his approval, namely (a) travel by air ³⁸or extra-fare trains ³⁹where the cost is in excess of the cost of other available transportation and there is no emergency involving life or property, (b) the issuance of certificates of

___________
³⁵ In United States v. Fixico, 115 F. (2d) 389 (C.C.A. 10th), the court held that the judgment in this action which was for damages for permanent injury to restricted allotted land by pollution would create or recognize "the existence of a right somewhat difficult to define with precision but which is measurably akin to that of an easement." (p. 392.) Subsequent to this decision, this Department seems to have held in a letter dated June 13, 1941, from the Assistant Commissioner of Indian Affairs to the Superintendent of the Five Civilized Tribes, approved by the Assistant Secretary on June 16, 1941, that the Receipt and Release Agreement form did not involve an interest in the nature of an easement, since the agreement was one for future damages based upon an act of pollutton that had already occurred.

³⁶ Compare Parker v. Richard, 250 US. 234, and United States v. Hinkle, 261 Fed. 518 (C.C.A. 8th).

³⁷ In discussing the act on the floor of the Senate, Senator Thomas stated that it authorized contracts "by the Bureau of Indian Affairs, acting through the Secretary of the Interior." 80 Cong. Rec., pt. VI, p. 6032, 74th Cong., 2d sess. (April 24, 1936). This merely described the existing practice but there is nothing to show that it was to be unalterable.

³⁹ The authority to approve travel by extra-fare trains is now vested in the Under Secretary under his general authority to engage in departmental administration. See Secretary's Order No. 1795, dated March 11, 1943.

1222

DEPARTMENT OF THE INTERIOR

AUGUST 26, 1943

priority for air travel, ⁴⁰(c) the issuance of general travel orders covering travel throughout the United States, Territories and Island Possessions, or other general travel beyond a district or limited region.⁴¹ I am of the opinion, for the reasons stated in my memorandum to the Under Secretary of June 14, 1943 (M-33180), holding that the Secretary could delegate to the Director of the Bureau of Mines the authority to issue all travel orders, that the same delegation may be made to the Commissioner of Indian Affairs.

There are four additional requests for delegation that need clarification. As to two of them, I can express partial or tentative opinions; as to the other two, I think that I should express no opinion until additional information has been supplied.

(a) Correspondence involving trespass, grazing privileges, hunting and fishing rights.

I presume that such correspondence would merely involve policy matters, and that the Commissioner is not requesting authority to make final determinations which now require Secretarial approval. The conduct of such correspondence can undoubtedly be delegated. As a matter of fact, there are no longer submitted for Secretarial signature certain types of correspondence with United States Attorneys relating to attempts to enjoin or evict trespassers on lands, buildings, or projects, under control of the Indian Office, including restricted lands, or to recover trespass damages of less than $1,000. See Assistant Secretary's memorandum of December 28, 1942, and Indian Office Law Circular 3490 of January 11, 1943. However, if the intention is to request authority to make final determinations, the precise nature of such determinations should specified, and submitted for a further opinion.

(b) Leases and permits on tribal lands except where tribal constitutions or statutes require departmental approval.

I am not entirely clear whether the exceptions to this request apply to both the leases and the permits. So far as leases are concerned, no valid lease can be made or approved unless there is specific statutory authority therefor, and all the statutes provide for some form of departmental approval. The request indeed seems to assume that the power of the Secretary to approve leases cannot be delegated. Possibly the request refers to the revocable permits sometimes issued by Indian tribes with departmental approval in the absence of statute. Such permits are sometimes also loosely denominated "leases". The power to issue such permits, if it exists in the Department, would as a matter of fact be vested in the Commissioner of Indian Affairs by virtue of section 463 of the Revised Statutes, if it were not for the fact that the Secretary under his general power of supervision had issued regulations requiring that they be submitted to him for approval. It would therefore be necessary to change the existing regulations to make such permits subject to approval by the Commissioner of Indian Affairs.

(c) Approvals and denials of exclusions of time within which timber must be removed; and timber sales and contracts for the cutting and delivery of logs on the Menominee Reservation.

This request may be intended to cover applications for extensions of time for removal of timber on all Indian lands, or only on the Menominee Indian Reservation: or extensions of time on existing contracts as well as on future contracts; or timber sales contracts (i.e., stumpage sales) rather than timber logging contracts, i.e., contracts relating to services for the cutting and removal of timber. I am informed that there are no "timber sales" (i.e., stumpage sales) now being conducted on the Menominee Reservation; any contracts under which the trees are there cut are only in the nature of logging or cutting agreements with regard to the services of the Indians in the cutting of the timber and its delivery to the Menominee Indian Mills. ⁴² Again, "the extensions of time within which timber must be removed" may refer to relief against cutting requirements in any one year rather than to the extension of the whole contract term. If a modification of the contract were involved, it might require legislation such as that contained in the act of March 4, 1933 (47 Stat. 1568), as amended by the acts of June 16, 1933 (48 Stat. 311), March 5, 1934 (48 Stat. 397), and May 6, 1936 (49 Stat. 1266), specifically authorizing modification of existing Indian timber contracts, all of which acts expired on September 6, 1936. So far as concerns existing contracts, the question may be not so much as one of delegation as the extent to which a government contract may be modified.

⁴¹ Secratary's Order No. 1314 of September 10, 1938, as interpreted by First Assistant Secretary Burlow's memorandum of October 28, 1938.

⁴² The cutting of timber on the Menominee Indian Reservation is governed by special statutes, namely the act of March 28, 1908 (35 Stat. 51), as amended by the acts of March 3, 1911 (36 Stat. 1058, 1076), May 18, 1916 (39 Stat. 123, 157), March 2, 1917 (39 Stat. 969, 991), January 27, 1925 (43 Stat. 793), and June 15, 1934 (48 Stat. 964). Prior to 1908, the applicable acts were those of March 22, 1882 (22 Stat. 30), and June 12, 1890 (26 Stat. 146).

1223

OPINIONS OF THE SOLICITOR

SEPTEMBER 16, 1943

The law governing enrollment, which is important in connection with the administrative distribution of tribal land, funds, and other resources, varies from tribe to tribe. Provision may be made for enrollment by chiefs with the approval of the Secretary; or by the Secretary with the assistance of chiefs; or by a commission, which may include Indian members, acting with the approval of the Secretary; or by the Secretary alone. There is also a general statute giving the Secretary authority to establish a final roll of membership of all tribes with a few exceptions in connection with the segregation of Tribal funds.⁴³ Under constitutions adopted pursuant to the Indian Reorganization Act, the Secretary usually also has the power of reviewing or approving tribal ordinances governing future membership. While, I suppose, that it would be possible for me to undertake an examination of every one of the multitudinous statutes and treaties, in order to determine whether the power under it is delegable, I hesitate to undertake so formidable a task without definite knowledge of its necessity. The current administrative problems in connection with enrollment may be limited, and I should be advised with some particularity concerning those powers the delegation of which is contemplated.

In conclusion I should perhaps make it clear again that I have passed only on the legal validity of the delegations requested by the Commissioner of Indian Affairs. Whether any particular delegation should be made is, of course, a question of policy for the Secretary to decide. However, I believe that I should advise you that in my opinion the responsibility of my office for the review of questions of law in connection with the sale of Indian allotments, the probate of estates, and the issuance of permits should continue, at least for the present. Such supervision of the legal aspects of the performance of these functions need not, however, prevent delegations. While delegation subject to legal review will not in all cases expedite the work of the Indian Office as much as may be desired, it will at least relieve your office of a considerable burden. It will also permit a fairly flexible series of arrangements with respect to legal review which should permit a gradual diminution of matters which are not disposed of at the bureau level. My office will be glad to prepare any orders effectuating the Secretary's wishes.

On April 13, 1943, Solicitor Gardner addressed a memorandum to the Assistant Secretary to the effect that, having considered the decision of the Supreme Courtin United States v. Oklahoma Gas & Electric Co., 63 Sup. Ct. Rep. 534, he was of the opinion that the Department might continue its former practice of granting rights-of-way over allotted Indian lands for electrical plants and transmission lines under the acts of February 15, 1901,¹ and March 4, 1911,² in those cases in which the affected allotments were "within the boundaries of a regularly established Indian reservation." The question of the exact meaning of that phrase has now arisen in connection wiht certain allotted lands in the Siletz Indian Reservation in Oregon and my opinion has been requested by the Office of Indian Affairs and the General Land Office.

The facts are these. The Boston-Lincoln Electric Cooperative, Inc., a local project sponsored by the Rural Electrification Administration, in 1940 obtained permission from the superintendent in charge of the Grand Ronde-Siletz Agency at Salem, Oregon, to construct its line at its own risk, subject to prompt compliance with the applicable laws and regulations.³ The report of the Commissioner of Indian Affairs, dated April 30,

____________
⁴³Act of June 30, 1919, sec. 1 (41 Stat. 9, 25 U.S.C. sec. 163).

1224

DEPARTMENT OF THE INTERIOR

SEPTEMBER 16, 1943

1941, showed that the line would affect 16 allotments, that the superintendent had reported that the matter had been explained to the Indians, many of whom were members of the Cooperative, that little damage would result from the construction and no interference with farming operations, and that the majority of allottees had consented, waiving damages.

The Cooperative has constructed the line and has it in operation using power purchased from the Bonneville Power Administration. It duly filed application with the Secretary for a right-of-way for a transmission line across the allotments involved and was about to receive a permit when notified by the General Land Office in February 1943, that its application would be held in abeyance pending the decision by the Supreme Court in United States v. Oklahoma Gas & Electric Co., supra. On February 15, 1943, the court held that the grant of permission to a State under the act of March 3, 1901,⁴to construct a highway over allotted Indian lands included the right to grant an electric company a permit to run its lines within the highway boundaries, so that, having obtained a permit from the State of Oklahoma, the company need not apply to the Secretary of the Interior for a permit under the acts of February 15, 1901, and March 4, 1911. The court held the latter statutes inapplicable to Oklahoma land allotted to a Kickapoo Indian for the reason thrut such land is not a "reservation" within the meaning of those two acts.

On May 28, 1943, the Land Office rejected the instant application on the ground that the Oregon Siletz land was in the same category as that of the Kickapoo Indian in Oklahoma, and suggested the procurement of separate rights-of-way from the individual Indians affected. With this decision the Indian Office is not in accord.

As pointed out in Solicitor Gardner's memorandum of April 13, 1943, the Supreme Court in the Oklahoma Gas & Electric Co. case didnot say that a reservation may never include allotted lands, but merely that the Kickapoo lands were not within a reservation. Therefore, the court left open the question of the applicability of the acts of February 15, 1961, and March 4, 1911, to allotted lands that are actually within Indian reservations.

Previous opinions of this office have construed the word "reservation" as used in the various right-of-way statutes as including any area validly set apart by the Federal Government for Indian occupation and use.⁵ This interpretation finds ample judicial support. In United States v. Celestine, 215 U.S. 278, 285, the Supreme Court said that ". . . when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated there from by Congress . . ." In United States v. Pelican, 232 U.S. 442, a restoration of a portion of the Colville Indian Reservation was held to apply only to the part specified and clearly not to the lands "allotted or reserved" for lthe Indians, allotted lands remaining reservation lands during the trust period. And United States v. Sutton, 215 U.S. 291, decided that the limits of the Yakima Reservation were not changed by virtue of the allotments in severalty. The Supreme Court thought it necessary to distinguish these three cases in reaching its decision in .the Oklahoma Gas & Electric case, and the holding that the entire Kickapoo reservation had been dissolved, satisfied that distinction.

Consideration of the history of the Siletz Reservation compels the conclusion that this reservation has never been dissolved and that any allotted lands within it may therefore be considered reservation lands for the purposes of the acts of February 15, 1901, and March 4, 1911. It appears that the tribes constituting the group generally referred to as the Siletz Indians are indigenous to the coastal region of Oregon, west of the Cascade Mountains. ⁶Various treaties were made with these coastal tribes in 1854 and 1855 but none was ratified. However, a Siletz Reservation was established by Executive order of November 9, 1855.⁷ The purpose of this order, as well as other such orders issued at about this time, to give the Indians security against white encroachment, was difficult of achievement because of the constantly increasing influx of white settlers.

The act of March 3, 1875,⁸ restored the southern portion of the Siletz Reservation to the public domain, setting apart the remainder "as a permanent reservation for the Indians now occupying the same and to be hereafter located thereon. . . ." Apparently, the Indians were still uneasy about the permanency of this arrangement, for the Siletz agent commented in 1876 that his charges desired allotments as they feared removal to other country.⁹

Then came the General Allotment Act of February 8, 1887,¹⁰ providing for the allotment of lands in severalty to Indians on reservations, and for the allotment of public lands not otherwise appropriated to non-reservation Indians who might

⁵ Memorandum of July 1, 1938, from the Acting Solicitor to the Assistant Secretary; opinion of August 24, 1942 (M. 30582).

1225

OPINIONS OF THE SOLICITOR

SEPTEMBER 16, 1943

settle upon them. The patents contemplated were to be issued in trust for a 25.year period, with the President given discretionary power to extend the trust period.

Pursuant to the 1887 act, allotments to the Siletz Indians were made and in 1892 an agreement was concluded between the United States and the chiefs and male adults of the reservation, ratified by Congress on August 15, 1894,¹¹ whereby the Indians for a consideration of $142,600 ceded to the United States all unallotted lands within the limits of their reservation, with the exception of five sections of timber land retained for the mutual benefit of the Indians in becoming self-supporting. The ceded lands were referred to in the Presidential Proclamation¹² opening them for settlement, as described in the "Schedule of lands within the Siletz Indian Reservation, in Oregon, opened to settlement by proclamation of the President, dated May 16th, 1895."

The five timber sections and other Siletz land reserved for administrative, educational or missionary purposes were again dealt with in the act of May 13, 1910,¹³and the Secretary was authorized to dispose of them, but actually only four of the five sections have been sold, although the report of John Holst, Supervisor of Indian Schools, dated May 10, 1941 (pp. 12, 13), indicates that an additional section may have been sold. In any event there still remain 2,561 acres listed as tribal land.¹⁴ This, added to the 6,779 acres of trust allotted land of the Siletz, makes a total of 9,340 acres of land presently under the jurisdiction of the Office of Indian Affairs on the Siletz Reservation.

The Holst Report referred to above (p. 18) also states that the Federal Government has improved the tribal property by building roads, a community house, a council house, and a park, and it pays tuition for Indian pupils in the school at the village of Siletz.

The facts with respect to the Kickapoos in Oklahoma are quite different. This wandering tribe-the name itself means "one who moves about" (Bureau of American Ethnology, Bul. 30, pt. 1,p. 684)-a branch of the Kansas Kickapoos but native to Wisconsin, has lived successively in Illinois and Indiana, Missouri, Kansas, Mexico and finally Oklahoma. In 1891, the Secretary of the Interior elected to allot their lands to them in seventhy rather than recognize a diminished reservation in common as they suggested.¹⁵Stressing this point and the absolute terms of the cession, the Supreme Court in the Oklahoma Gas & EIectric case, supra, held that "the Kickapoo reservation was obliterated; the tribal lands were no more, and only individual allotments survived. . . ." The court also noted that while Congress has, since 1891, often referred to the Kickapoo Reservation in Kansas, it has never since that time referred to a Kickapoo Reservation as existing in Oklahoma. The converse is true of the Siletz Reservation as there have been at least four references¹⁶to it by Congress since the 1894 cession of unallotted lands, and two,¹⁷ more recently, by Executive order extending the trust periods on "allotments made to the Indians of the Siletz Reservation in Oregon." Even after the act of May 13, 1910, supra, which because of the authority to sell contained in it might have been construed as evidencing an intent to extinguish the reservation, Congress referred to the Siletz Reservation and granted a right-of-way for a water ditch through the "lands of the United States in the Siletz Indian Reservation" and provided that the company should make payment to the Secretary of the Interior for the benefit of the allottees of "full compensation for such right of way through their allotments." ¹⁸ The wording of this statute seems to indicate that Congress no more considered the Siletz Reservation to be extinguished at that time, than subsequent developments have proven it to be.

The Supreme Court in earlier opinions has often recognized the protective and regulatory authority of Congress over the Indians as being final, within constitutional limits. In United States v. Holliday, 3 Wall. 407, 419, the court said:

¹⁴ Statistical Supplement to Annual Report of the Commissioner of Indian Affairs for fiscal year ended June 30, 1942.

¹⁶ Act of March 3, 1901, 31 Stat. 1058, 1085; act of May 29, 1908, sec. 23, 35 Stat. 444, 456; act of March 3, 1909, 35 Stat. 781, 807; act of June 22, 1910, 36 Stat. 582; but cf. act of February 11, 1920, 41 Stat. 1459.

¹⁷ Executive Orders: July 10, 1919 (IV Kapp. 1045), and April 1, 1929 (V Kapp. 678).