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4802, and Alice Ecoffey, widow of Jule Ecoffey, deceased, Oglala Sioux Allottee No. 1358, for reimbursement under the act of June 11, 1940 (54 Stat. 298, 25 U.S.C. sec. 352c), as amended by the act of February 10, 1942 (56 Stat. 87, 25 U.S.C. sec. 352c), of taxes paid by the allottees after patents had been issued to them during the trust period without their applications.

    You propose to reimburse the allottees or their heirs for the taxes paid from the time the patents were issued until the lands were sold by the allottees. It is noted that the allottees in all instances mortgaged their allotments soon after they received the fee patents.

    The act of February 10, 1942, supra, after authorizing the Secretary to reimburse the Indian allottees or their Indian heirs or devisees for all taxes paid on their allotted lands patented in fee prior to the expiration of the trust period without application or consent of the patentees, provides:

    ". . . That if the Indian allottee, or his or her Indian heirs or Indian devisees, have by their own act, accepted such patent, no reimbursement shall be made for taxes paid, including penalties and interest, subsequent to acceptance of the patent: Provided further, That the fact of such acceptance shall be determined by the Secretary of the Interior."

    That the execution of a mortgage is ordinarily tantamount to the consent for the issuance of the patents was succinctly stated by former Solicitor Patterson in his opinion of February 24, 1928 (52 L.D. 325, 326), wherein it was said:

    ". . . Acceptance depends upon consent and a mortgagor who makes use of a title to secure a benefit, such as a loan, will not be heard to deny the giving of the consent upon which the validity of the mortgage given to secure the loan depends. . . ."

    More factual information is needed in the three cases returned herewith. The primary objects for which the mortgages were executed should be shown. The Superintendent of the Reservation should be instructed to assist the claimants in preparing their statements as to the purposes for which the mortgages were executed and to indicate whether, in his opinion, the mortgages were executed for the purpose of raising money to pay the taxes.

    If the claimants cannot establish the fact that they did not, by their acts of mortgaging their land, accept the fee patents, their claims for reimbursement under the act of February 10, 1942, supra, should be amended to include only that period between the issuance of the patents and the execution of the mortgages.

                                                                                                                                                        FOWLER HARPER,

M-33633

The approval of bonds required of officers and employees of the Department of the Interior is an act which does not require administrative discretion.

The approval by the Secretary of the bond of any officer or employee of the Department of the Interior, either under the act of August 13, 1894 (28 Stat. 279, 6 U.S.C. sec. 6), or under a specific statute, may be delegated to the Chief Clerk "as chief executive officer of the department" (44 Stat. 854, 5 U.S.C. sec. 484).

HARPER, Solicitor:
 

Memorandum for the Assistant Secretary:

    Reference is made to your memorandum of April 29, requesting my advice "as to whether or not approval of bonds of employees of the Department under the act of March 2, 1895 (28 Stat. 808), can be delegated to the Chief Clerk should it be determined that it is administratively desirable to do so."

    In my opinion, delegation by the Secretary to the Chief Clerk of the approval of any bond required from an employee of the Department would be valid legally.

    The statute mentioned in your memorandum provides in part that "every officer whose duty it is to take and approve official bonds shall cause all such bonds to be renewed every four years after their dates, but he may require such bonds to be renewed or strengthened oftener if he deems such action necessary." (28 Stat. 807, 6 U.S.C. sec. 3.)

    The general requirement of Secretarial approval is contained in the single sentence of the act of August 13, 1894 (28 Stat. 279, 6 U.S.C. sec. 6), emphasized below:

    "Whenever any recognizance, stipulation, bond, or undertaking conditioned for the faithful performance of any duty, or for doing or refraining from doing anything in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the United States required or permitted to be given with one surety or with two or more sureties, the execution of the same or the guaranteeing of the performance of the condition thereof shall be sufficient when executed or guaranteed solely by a corporation incorporated under the laws of the United States, or of any State having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial proceedings. Such recognizance, stipulation, bond, or undertaking shall be approved by the head of department, court, judge, officer, board, or body executive, legislative, or judicial required to approve or accept the same. No officer or person having the approval of any bond shall exact that it shall be furnished by the guarantee company or by any particular guarantee company."

    The statutory requirement of Secretarial approval dates back half a century to a time when the executive departments were so small in number of employees that it was not unusual for the Secretary or the Assistant Secretary to know personally both the principal and the two individual sureties on the bond. Since the personal integrity of the principal and the financial responsibility of the individual sureties constituted the only protection afforded the Federal Government, it is not surprising to find a statutory requirement of approval by the Secretary. Approval under these conditions clearly meant an exercise of administrative discretion.

    The situation today is entirely different. Hundreds of bonds hare given annually by officers and employees of the Department. Investigation by my office reveals that the whole process of bonding an employee requires only three steps. The first step is to determine the amount of the bond. A glance through the material in the appendix to this opinion will show either (1) that the amount of the bond is fixed by statute, as in the case of a register of a land office, or (2) that the amount of the bond is fixed by rule of the Department, as in the case of a special disbursing agent or a certifying officer. In a word, determining the amount of the bond no longer involves discretion. Instead, it requires only the application of a formula.

    The second step in the bonding process is approving the surety. In contrast to the earlier custom of using two individual sureties, the present universal practice of the Department is to use a corporate surety.¹ Treasury Form 356, dated April 10, 1944, is entitled "Companies holding Certificates of Authority from the Secretary of the Treasury under the Acts of Congress of August 13, 1894, and March 23, 1910, as Acceptable Sureties on Federal Bonds; Net Limit for which they may be Accepted on any Risk; States in which they are Incorporated and Licensed to do Business: and Judicial Districts in which they have Appointed Process Agents . . ." A total of 81 surety companies is Listed. Thus, approving a particular surety means little more than ascertaining whether it is on the Treasury list.

    The final step in the bonding process is deter-

____________
    ¹ The only exception seems to be the bond for subsistence advance, on which individual sureties customarily are used. Authority to approve bonds for subsistence advances was given to the Chief Clerk in a Memorandum for Heads of: Bureaus and Offices from the Acting Secretary on October 31, 1938.
 

mining whether the representative of the surety company with whom the Department is dealing has the authority to sign a contract for an amount as large as that appearing on the bond in question. A file in the office of the Chief Clerk contains a list of all representatives of all surety companies with which the Department does business, together with a complete statement covering the scope of authority of each representative. The process, therefore, of determining the extent of a particular agent's power to do business, likewise turns out to be largely mechanical.

    The act of July 3, 1926 (44 Stat. 854, 5 U.S.C. sec. 484), provides:

    "The chief clerk of the Department of the Interior shall be the chief executive officer of the department and may be designated by the Secretary to sign official papers and documents, including the authorization of expenditures from the contingent and other appropriations for the department, its bureaus and offices, section 675 of Title 31 to the contrary notwithstanding."

                                                                                                                                                      FOWLER HARPER,

    In this appendix an analysis is made of the principal kinds of bonds used in the Department. Existing statutory authority and Departmental regulations covering particular types of bonds have both been included.

    1. Agent-cashier bonds are approved by the Assistant Secretary. These bonds are given on Treasury Forms No. 1671-G-Revised, and No. 1671-E-Revised, issued by the Division of Disbursement, Treasury Department. Form No. 1671-G, the "dual purpose bond," is used where the employee collects money for some administrative office of this Department and also serves as the agent-cashier for the Treasury. Form 1671-E, the "single purpose bond," is used where the employee has disbursing functions only. Each of these forms states that "the said Principal has been designated by G. F. Allen, Chief Disbursing Officer, Division of Disbursement, Treasury Department, as Agent-Cashier to act in his place and stead in making payments. . ."

    Thus the function of the agent-cashier becomes that of custodian of Federal funds. Sometimes the collection of these funds constitutes part of the employee's work, as in the case of a ticket agent of the Alaska Railroad, who has been appointed an agent-cashier. In other instances Federal funds are deposited with the agent-cashier who disburses them for a certain purpose. The Geological Survey, for example, may send a surveyor on a project into the interior of Alaska. The surveyor may need the services of a rodman whom he hires and pays on the spot with Federal money which has been furnished him. Or the War Relocation Authority may require the services of an agent-cashier who pays out money for certain specified purposes at a relocation center.

    Bonds of "the disbursing clerks authorized by law in the several departments" are provided for by the Act of March 3, 1883 (22 Stat. 553, 5 U.S.C. sec. 44) which reads:

    The disbursing clerks authorized by law in the several departments shall be appointed by the heads of the respective departments; and shall each give bond to the United States for the faithful discharge of the duties of his office according to law in such amount as shall be directed by the Secretary of the Treasury, and with sureties to the satisfaction of the General Counsel for the Department of the Treasury; and shall from time to time renew, strengthen, and increase his official bond, as the Secretary of the Treasury may direct."

    "The Division of Disbursement of the Treasury Department is authorized to establish local offices, or to delegate the exercise of its functions locally to officers or employees of other agencies, according as the interests of efficiency and economy may require."

    While not particularly material to the present discussion, it should be noted that the Division of Disbursement was consolidated in the Fiscal Service by Reorganization Plan No. III, sec. 1 (a) (3) June 30, 1940, 5 F.R. 2107.

    2. Bonds of Registers of Land Offices are approved by the Assistant Secretary. These bonds are given on Department Form 4-222 (June 1937). The statutory authority for requiring them is contained in 30 Stat. 234, as amended, 43 U.S.C. sec. 72, Supp., and in 43 Stat. 1145, 43 U.S.C. sec. 79. These statutes provide:

    "There shall be appointed by the President, by and with the advice and consent of the Senate, a register of the land office for each land district established by law, who shall have charge of and attend to the sale of public and Indian lands within their respective districts, as provided by law and official regulations, and shall be accountable under their official bond for the proceeds of such sales, and for all fees, commissions, or other moneys received by them under any provision of law

    "Every register shall, before entering on the or official regulation, duties of his office, give bond in the penal sum of $10,000, with approved security, for the faithful discharge of his trust."

    "The Court there say, it has been objected that Hall was not entitled to act as paymaster until he had given the bond required by the act of 1816, in the form therein prescribed; and that not having given any such bond, he is not accountable as paymaster for any moneys received by him. We are, say the Court, of a different opinion. Hall's appointment as a paymaster was complete when his appointment was duly made by the President, and confirmed by the Senate. The giving the bond was a mere ministerial act, for the security of the government; and not a condition precedent to his authority to act as a paymaster." (Emphasis supplied.)

    Treasury Form 280-B contains a space for the name and title of the department officer who approves the bond. There is no requirement appearing on this form that the bond must be approved by the Assistant Secretary. Section 3614 of the Revised Statutes (31 U.S.C. sec. 481), however, provides:

    "Whenever it becomes necessary for the head of any department or office to employ special agents, other than officers of the Army or Navy, who may be charged with the disbursement of public moneys, such agents shall, before entering upon duty, give bond in such form and with such security as the head of the department or office employing them may approve."

    Three types of bonds are presently approved by the Assistant Secretary. The first, on Department Form 1-003a, is the bond of the special disbursing agent. The form still in use is marked "Edition of March, 1910, Req. 9170." The amount for which this bond is given will vary from $25,000 to $50,000, depending on the amount of money with which the principal is entrusted. The form contains the following:

    "Office of the Secretary
                -----------, 19--

    "The within bond is hereby approved and transmitted to the Secretary of the Treasury.
                                                                                                   ----------------------
                                                                                                            Secretary."

principal binds himself to keep safely and to account faithfully and honestly "without fraud or delay, for all public or other moneys and/or property advanced to or coming the possession or control of the said principal by virtue of his position." The third type, on Department Form 1-003g, is for safeguarding "moneys, . . . and property . . ." It carries the same notation for Secretarial approval as does Form 1003-a.

    The fourth type is a bond in the amount of $10,000 which is executed by one who has applied to the Commissioner of Indian Affairs for a license to trade with the Indians. The fifth type is a bond on Department Form 5-020, approved by the Department on June 7, 1926. It is executed by a bank which has been granted authority to receive on deposit "certain funds derived from the sale, rent, or leasing of Indian lands, or from the bale of timber on such lands, or from other sources, either to the official credit of a United States disbursing officer or to the personal credit of Indians, for the funds being held in trust by such officer or by the United States for the use of beneficiaries, whether Indians or other persons . . ."

    Bonds, of types four and five originally were approved by the Assistant Secretary. They are now approved by the Office of Indian Affairs under the authority of Department Order No. 1721; which listed Indian matters in 11 categories that thereafter did not need to be presented "for departmental consideration and action." Item 9 is the "Approval of surety bonds; provided that in the case of corporate surety the bonding company has been approved by the Treasury Department."

    A series of special statutes governs the giving of bonds by certain employees of the Office of Indian Affairs.

    The basic statute is section 465 of the Revised Statutes (25 U.S.C. sec. 9), which provides that

    "The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs."

    "By these statutes, the President and the Secretary of the Interior are given the authority to determine the character of the bond, both as to its, penalty and the nature and condition of its obligation."

    "In a communication, dated November 29, 1940, from the Office of Indian Affairs of the Department of the Interior, it was stated that there have been no Indian agents since 1908, all of the agencies and schools having been placed under the supervision of superintendents."

   "The President may, from time to time, require additional security, and in larger amounts, from all persons charged or trusted, under the laws of the United States, with the disbursement or application of money, goods, or effects of any kind, on account of Indian affairs." (25 U.S.C. sec. 51.)

    "When the Secretary of the Interior deems a new bond necessary he may, in his discretion, require any disbursing officer under the jurisdiction of the Commissioner of Indian Affairs to execute a new bond, with approved sureties, in such amount as he may deem necessary, and when accepted and approved by the Secretary of the Interior the new bond shall be valid . . ." (25 U.S.C. sec. 52.)

    "When it becomes necessary to make a large per capita payment to Indians, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, is authorized to require any disbursing officer of the Indian Department to file a special bond in such amount as may be necessary to make such payment in one installment." (25 U.S.C. sec. 52a.)

    a. Bonds of Certifying Officers.

    "The officer or employee certifying a voucher shall . . . (2) be required to give bond to the United States, with good and sufficient surety approved by the Secretary of the Treasury, in

such amount as may be determined by the head of the department, agency, or establishment concerned, pursuant to standards prescribed by the Secretary of the Treasury, and under such conditions as may be prescribed by the Secretary of the Treasury . . ."

  "Sec. 2. Bond of Certifying Officers: (a) Every officer or employee certifying a voucher to a disbursing officer under the executive branch of the Government . . . shall give bond, effective on April 1, 1942, or on such later date as his authorization becomes effective, with good and sufficient surety approved by the Secretary of the Treasury in such amount as may be determined by the head of the department, agency, or establishment concerned, pursuant to standards and under such conditions as are hereinafter prescribed . . .

  "Sec. 3. Standards for fixing amount of bond. The penal sum of each certifying officer's bond shall be fixed by the head of the department, establishment, or agency concerned in accordance with the degree of the officer's responsibility, taking into consideration the character and estimated amount of vouchers to be certified for payment during the ensuing twelve-months' period . . ."

    "After examination in the bureau the original bond of a certifying officer will be prepared for approval by the Chief Clerk of the Department and enclosed with a letter of transmittal for his signature addressed to the Section of Surety Bonds, Bureau of Accounts, Treasury Department, Washington, D.C. A record of all bonds will be kept in the Office of the Chief Clerk, where the examination required every two years will be made."

b. Bond for Subsistence Advance.

    "The head of departments and establishments, under regulations which shall be prescribed by the Secretary of the Treasury for the protection of the United States, may advance through the proper disbursing officers from applicable appropriations to any person entitled to actual expenses or per diem allowance . . . such sums as may be deemed advisable considering the character and probable duration of the travel to be performed . . ."

    "Enclosed is a copy of the Third Supplement to Treasury Department Circular No. 369, Revised, dated September 16, 1988, which relates to the filing of bonds of indemnity on Standard Form 19, to cover advances of public funds under the Subsistence Expense Act of 1926.

    "Attention is invited to its provisions which require that the bonds covering advances made through the Division of Disbursement, Treasury Department,. shall be passed upon by the department or establishment authorizing the advances.

    "Hereafter bonds, for travel advances obtained from the Division of Disbursement, will be initialled by a responsible bureau or office official and transmitted by the bureau to the Section of Surety Bonds, Office of the Commissioner of Accounts and Deposits, Treasury Department, for approval in accordance with Treasury Circular No. 369.

    "The Chief Clerk and in his absence the Acting Chief Clerk of the Department are authorized to approve such bonds." (Emphasis supplied)

 Memorandum for Assistant Secretary Chapman:

    On April 4, your office transmitted applications by ten Cheyenne River Sioux allottees for cash
 

allotment benefits and applications by three Indians of the Lower Brule Sioux Tribe for their pro rata shares of tribal funds on deposit in the Treasury of the United States. These applications had been submitted to you by the Office of Indian Affairs for your approval. Mr. Doty, in a memorandum for Mr. Flanery of my office, inquired whether the duty of approving such applications can be delegated by the Secretary to the Commissioner of Indian Affairs. I have concluded that such functions may properly be delegated.

Cash Allotment Benefits

    The allotment of cash benefits to the Cheyenne River Sioux. is governed by an act of March 2, 1889 (25 Stat. 888), as amended by the act of June 10, 1896 (29 Stat. 321). By the act of March 2, 1889, a portion of the Great Reservation of the Sioux Nation, in the Territory of Dakota, was divided into separate reservations, including the Cheyenne River Reservation which, pursuant to section 4 of the act, was set aside as a permanent reservation "for the Indians receiving rations and annuities at the Cheyenne River Agency, in said Territory of Dakota . . ." Under section 8 of the act, the President was authorized to allot portions of these reservations in severalty to the Indians located upon them.¹

    Section 17 of the act in part provided that:

    "The Secretary of the Interior is hereby authorized and directed to purchase, from time to time, for the use of said Indians, such and so many American breeding cows of good quality, not exceeding twenty-five thousand in number, and bulls of like quality, not exceeding one thousand in number, as in his judgment can be under regulations furnished by him, cared for and preserved, with their increase, by said Indians: Provided, That each head of family or single person over the age of eighteen years, who shall have or may hereafter take his or her allotment of land in severalty, shall be provided with two milch cows, one pair of oxens, with yoke and chain, or two mares and one set of harness in lieu of said oxen, yoke and chain, as the Secretary of the Interior may deem advisable, and they shall also receive one plow, one wagon, one harrow, one hoe, one axe, and one pitchfork, all suitable to the work they may have to do, and also fifty dollars in cash; to be expended under the direction of the Secretary of the Interior in aiding such Indians to erect a house and other buildings suitable for residence or the improvement of his allotment . . ."

    "The Secretary of the Interior is hereby authorized and directed to ascertain the number of Sioux and Ponca Indians in South Dakota and Nebraska who would not be benefited by the fulfillment of the proviso of section seventeen of . . . . [the act of March 2, 1889] . . . by the receipt from the United States of the articles of personal property therein mentioned and who desire to have the same converted into money, and in lieu of such articles of personal property, or any part thereof he may think proper, the Secretary of the Interior shall convert or commute the same, or so much thereof as he may think proper, into money, and pay the amount thereof to such Indians; and the payment under the provisions of this Act shall be held to be a liquidation of the obligation of the United States to said Indians under that portion of said section seventeen, so far as the articles of personal property therein named are concerned." ²

    While the power to make distributions of personal property, as well as the power to make substitute cash payments, is thus conferred upon the Secretary of the Interior, for the reasons set forth in the memorandum of Solicitor Gardner to you, dated August 26, 1943, I believe that the use of such language does not determine whether the power of the Secretary may be delegated to a responsible subordinate such as the Commissioner of Indian Affairs (see particularly Solicitor Gard-

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  ¹ Section 19 of the May 29, 1908 (35 Stat. 444, 451), authorized the Secretary of the Interior to cause allotments to be made "under the provisions" of the act of March 2, 1889, "to any living children of the Sioux tribe of Indians belonging on any of the Great Sioux reservations affected thereby and who have not heretofore been allotted, so long as the tribe to which such Indian children belong is possessed of any unallotted tribal or reservation lands . . ."

  ² See 25 Code of Federal Regulations, Part 224, secs. 224.1-224.5.
 

ner's Opinion, pp. l-7). In the absence of a clear indication of contrary congressional intent, the very nature of the duties required justifies the conclusion that personal action by the Secretary is not contemplated. Government could not go on if cabinet officers were personally required to distribute hoes and pitchforks to Indians in South Dakota. Reference to the congressional debates on the bill which eventuated in the act of March 2, 1889, fails to indicate a legislative intention to impose any such impossible burden upon the Secretary. If anything, the final clause of that portion of section 17 quoted above-"to be expended under the direction of the Secretary of the Interior in aiding such Indians to erect a house and other buildings suitable for residence or the improvement of his allotment"-which was added by the Senate as an amendment to the original House bill,³ reveals a recognition that the distributions were to be made "under the direction of the Secretary of the Interior" rather than personally by him.⁴

    In authorizing the allotment of cash in lieu of personal property enumerated in the March 2 act, Congress did not indicate that any greater personal participation by the Secretary was contemplated or required.⁵

Pro Rata Shares

    While the allotment of pro rata shares of tribal funds on deposit in the Treasury to the credit of the Lower Brule Sioux Tribe is governed by different statutes, I believe that the secretarial power to pass on applications for such allotments may likewise be delegated.

    The act of March 2, 1907 (34 Stat. 1221) provides:

    "That the Secretary of the Interior is hereby authorized, in his discretion, from time to time, to designate any individual Indian belonging to any tribe or tribes whom he may deem to be capable of managing his or her affairs, and of any tribal or trust funds on deposit in the [sic] he may cause to be apportioned and allotted to any such Indian his or her pro rata share Treasury of the United States to the credit of the tribe or tribes of which said Indian is a member, and the amount so apportioned and allotted shall be placed to the credit of such Indian upon the books of the Treasury, and the same shall thereupon be subject to the order of such Indian: Provided, That no apportionment or allotment shall be made to any Indian until such Indian has first made an application therefor: Provided further, That the Secretaries of the Interior and the Treasury are hereby directed to withhold from such apportionment and allotment a sufficient sum of the said Indian funds as may be necessary or required to pay any existing claims against said Indians that may be pending for settlement by judicial determination in the Court of Claims or in the Executive Department of the Government, at time of such apportionment and allotment.

    " 'That the pro rata share of any Indian who is mentally or physically incapable of managing his or her own affairs may be withdrawn from the Treasury in the discretion of the Secretary of the Interior and expended for the benefit of such Indian under such rules, regulations, and conditions as the said Secretary may prescribe:' [⁶] Provided, That said funds of any Indian shall not be withdrawn from the Treasury until needed by the Indian and upon his application and when approved by the Secretary of the Interior."

___________
  ³ See 20 Cong. Rec. 2284 (Feb. 25, 1889).

  ⁴ In view of the context and grammatical logic, the semicolon separating the final clause inserted by the Senate should be disregarded. It is then not entirely clear whether the final clause qualifies the whole of the preceding clause or simply that portion relating to payment of the fifty dollars. As a practical matter, there would be more reason to require the Secretary personally to approve the payment of funds than personally to distribute livestock and farm equipment. Since the payment of the funds is to be made "under the direction of the Secretary of the Interior," it is only fair to assume that the distribution of the personal property is governed by no more stringent requirement.

  ⁵ The language of the appropriation act of June 10, 1896, quoted above, was inserted as a Senate amendment. 28 Cong.
Rec. 3713 (April 8, 1896).

  ⁶ See 25 Code of Federal Regulations, Part 224, sec. 224.5; Part 233, sec. 233.3.

  ⁷ See Report No. 4634, Senate, 59th Cong., 2d sess.; Report No. 6637, Senate, 59th Cong., 2d sess. Cong. Rec. 3179 (Feb. 18, 1907).
 

Senate, sitting as a Committee of the whole.⁸ It is doubtful whether these changes have any significance; there is nothing in the debates which indicates that personal action by either the President or the Secretary was contemplated at any time.

    The amendatory language of the appropriation act was inserted by the Senate for the purpose, it was explained, "to enable those Indians who are able-bodied but noncompetent-and the use of the word 'noncompetent' in Indian laws and treaties refers to their inability to handle their own funds-to use those funds, or to enable the Secretary to use them for them, for their industrial betterment."⁹ In the discussion of the amendment it was contended that it was anomalous to require an Indian who was mentally incapable of managing his own affairs to make an application for a pro rata share before such moneys could be paid to him. The following colloquy took place:

    "Mr. SUTHERLAND. Why provide for the utterly useless formality on the part of an insane Indian of making an application to withdraw money?

    "Mr. LANE. It is a request. The Indian can apply for help, as any other hungry man would. He can go and say that he is hungry or that he is cold. That is all this is for.

    "Mr. SUTHERLAND. Of course, if every body is satisfied with that sort of a provision, I suppose I should not object to it.

    "Mr. LANE. If he has not sense enough to do that, he ought to starve.

    "Mr. SUTHERLAND. I will ask the Senator from Oregon how the application is made. Does he fill out a written blank?

    "Mr. LANE. No; he applies in person. Most of the Indians are unable to write the English language; at least, the old full bloods are.

    "MR. SUTHERLAND. How is he to apply to the Secretary of the Interior in person-an insane Indian off on a reservation?

    "Mr. LANE. He applies to the superintendent.

    "Mr. SUTHERLAND. It is certainly an anomaly.

    "Mr. LANE. And .then it has to be approved. I think all these applications have to be finally approved by the Secretary.

    "MR. SUTHERLAND. It occurs to me that the proviso is not only somewhat nonsensical, but that it is absolutely unnecessary. The substantive provision is that the pro rata share of the Indian so incapacitated may be withdrawn from the Treasury, in the discretion of the Secretary of the Interior, and expended for his benefit. Why is not that enough?"

Conclusions

    Accordingly, I believe that the power to approve both applications for cash allotment benefits and for pro rata shares of tribal funds may be delegated by the Secretary to the Commissioner of Indian Affairs. In the event that the Secretary's power to approve the applications is delegated to the Commissioner, I recommend, however, that provision be made for an opportunity to appeal to the Secretary from the Commissioner's determination. It would also be desirable to supplement existing regulations relating to cash allotment benefits, so that determinations could be made by the Commissioner on the basis of standards prescribed by the Secretary. In this way the supervision and direction of the Secretary, contemplated in some of the statutes may be maintained.

    The applications submitted with your memorandum appear to be in order, and I suggest that you approve them, pending determination of the desirability of delegation.

                                                                                                                                                      FOWLER HARPER,

MY DEAR MR. FOLTA:

    I think that you are putting an unwarranted construction upon my letter of May 16 in assuming that the Native Village of Minto "having

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  ⁸ 41 Cong. Rec. 3012-3013 (Feb. 15, 1907). See also 41 Cong. Rec. 3179 (Feb. 18, 1907).

  ⁹ 33 Cong. Rec. 4682 (March 23, 1916). Cf. also 53 Cong. Rec. 2140-2141 (Feb. 4, 1916).
 

adopted a constitution requiring conformity to the Federal Constitution and laws, has no power to enact an ordinance on searches and seizures at variance with the provisions of the 4th amendment and of the Act of Congress of June 15, 1917, 40
Stat. 228."

    I am unable to find any provision in the constitution in the constitution of the Native Village of Minto explicitly requiring conformity to the Federal Constitution. The first subparagraph of Article IV, section 1, of the constitution, provides merely that the Village shall have power

    "To do all things for the common good which it has done or has had the right to do in the past and which are not against Federal law and such Territorial law as may apply."

    You refer also to the act of Congress of June 15, 1917 (40 Stat. 228, 18 U.S.C. secs. 611-33). This act applies only to warrants "issued by a judge of a United States District court, or by a judge of a State or Territorial court of record, or by a United States Commissioner for the district wherein the property sought is located." It would not, therefore, apply to warrants issued by a native court or council, or to searches and seizures authorized by either of such bodies.

                                                                                                                                                      FOWLER HARPER,

Re:

Partitioning of Indian land held under a deed approved by the Secretary of the Interior subject to restriction against alienation without the consent of the Secretary of the Interior.

1. The Secretary of the Interior may not partition land held under a restricted deed by virtue of the authority vested in him by the act of May 18, 1916 (39 Stat. 129, 25 U.S.C. sec. 378), which act authorizes him to partition inherited trust allotments.

2. No partitioning of the Indian's restricted interest in land effected by a decree of a State court would be binding on the United States unless it were a party to the suit.

3. A non-Indian owner of an undivided interest in restricted Indian land cannot make the United States a party to any suit brought for the purpose of partitioning lands held under a restricted deed.

4. Such a non-Indian owner's only remedy appears to be the enactment of legislation conferring upon some court jurisdiction to partition the land.

    I am returning for your further consideration the attached letter to Herbert K. Hyde, Esq., relating to the partition of the NE1/4 of section 33, township 9 North, Range 1 East, in Cleveland County, Oklahoma. The W1/2 of this quarter section was originally the allotment of William Phelps and the E1/2 thereof was the original allotment of John Phelps, both of whom were members of the Citizen Band of Potawatomi Indians.

    Margaret Holmes, an heir to an undivided one-half interest in both tracts of land, conveyed her interest in both the E1/2 W1/2 of the NE1/4 to John H. Goodin, a white man, and John H. Goodin, legal guardian for John William Goodin, an Indian, heirs to the remaining undivided interest, by deed dated March 2, 1901. The deed was approved by the Department on May 20, 1901, subject to the restriction that any conveyance of the land must be approved by the Secretary of the Interior to pass valid title. The consideration for this conveyance was the conveyance by the Goodins of their undivided interests in other lands. The Secretary of the Interior was, of course, without authority to place any restrictions against the alienation of the one-fourth undivided interest which John H. Goodin acquired under the aforementioned deed and since John H. Goodin likewise acquired his original one-fourth undivided interest unrestricted it followed that his undivided
 

one-half interest in the land was unrestricted from and after 1901.¹

    John H. Goodin's unrestricted undivided interest is now claimed by B. H. Goodin, also a white man, subject to his mineral deed to one R. A. Heffner, covering a one-eighth interest in the W1/2 of the NE1/4 and a mortgage to one J. B. Webb, covering his undivided one-half interest in the W1/2 thereof. The remaining undivided one-half interest is still in Indian ownership and is still restricted against alienation without the approval of the Secretary of the Interior. It is now owned by Edith Fay Goodin Woodring, Thomas Goodin and J. R. Goodin.

    On October 3, 1939, your Office submitted for approval two deeds, one from B. H. Goodin and his wife, Stella, conveying to the Indian owners their undivided interests in and to the E1/2 of the NE1/4 and the other from the Indian owners conveying to B. H. Goodin their undivided interests in the W1/2 thereof. These deeds, if approved, would have accomplished the partition of the lands. The exchange deeds were not approved at that time because of certain deficiencies shown by the abstract of title submitted with the deeds.²

    The deeds were resubmitted for approval on September 25, 1940, but by a memorandum of October 24, 1940, this office held that since the continuation of the abstract of title disclosed that the Secretary of the Interior had approved an oil and gas lease on the restricted interests in these lands and that the unrestricted interest had also been leased for oil and gas purposes and further that a mineral deed to an undivided one-eighth interest in the oil and gas and other minerals on the W1/2 of the NE1/4 had been executed by B. H. Goodin and his wife, it would be necessary that the parties execute new deeds.

    Trouble seems to have arisen between B. H. Goodin and the Indian heirs at about that time. The Indians have ever since consistently refused to execute new deeds or to do anything toward settling their controversy with B. H. Goodin or getting the lands partitioned.

    On June 8, 1943, B. H. Goodin, through his attorney, Herbert K. Hyde, Esq., served notice on the United States District Attorney for the Western District of Oklahoma and on the Superintendent of the Shawnee Indian Agency that he had on May 13, 1943, commenced an action in the District Court of Cleveland County, Oklahoma, against the Indian owners for the partition of the lands. After the Superintendent called the suit to the attention of this Department, he was informed by your letter of August 4, 1943, that while the position of the Office of Indian Affairs ordinarily was that a State court was without jurisdiction over restricted Indian land, in view of the existing circumstances your Office was willing to waive the matter of jurisdiction and let the court proceed with the proposed partition proceedings with the understanding that the decree in partition would be subject to the approval of the Secretary of the Interior. It was suggested that the Superintendent so advise the United States Attorney. That letter was approved by the Department on September 10, 1943. Evidently the letter was approved by the Department of Justice dated June 19, 1943, and transmitted to your Office on June 23, 1943, was overlooked. It is not with the present record. In that letter the Department of Justice pointed out that the State court did not have jurisdiction to partition the land and stated that the United States Attorney had been instructed to move and quash the service on him and the Superintendent and to move to dismiss on behalf of the restricted Indians, if the attorney for Goodin refused to dismiss the action voluntarily. Thereafter Goodin dismissed his suit in the State court.

    On August 23, 1943, at the suggestion of the United States Attorney, Goodin petitioned the Secretary to partition the land "under and by virtue of the authority granted to the Secretary of the Interior under the act of May 18, 1916" (39 Stat. 127, 25 U.S.C. sec. 378).

    In his petition, B. H. Goodin states that although he is the owner of an undivided one-half interest in she lands he is being entirely excluded therefrom and that he is receiving no income therefrom. He states further that he has no remedy in any court of competent jurisdiction and that he can secure no relief except through the proper action of the Secretary of the Interior.

    On December 21, 1943, your Office advised the Superintendent:

    ". . . After carefully considering the matter and in view of the fact that the lands involved are not in a trust status but are held under restricted deeds, it has been determined that the lands cannot be partitioned by the issuance of a fee patent to the white man and a trust patent to the Indian heirs. The partition, if made by the Department will therefore have to be through the means of appropriate deeds executed by the parties involved. The only other alternative is to have the lands partitioned by appropriate court action as heretofore attempted by Mr. B. H. Goodin, the white man."

  ² See Solicitor's opinion M-30440, August 4, 1940.
 

    The Superintendent was instructed to call upon the Indians to execute a proper deed or to show cause why proper court action should not be instituted to partition the lands. On February 10, 1944, the Superintendent informed you that none of the Indians was willing to execute a new deed.

    You now propose to inform Mr. Hyde that there will be no objection on the part of the Department to the bringing of an appropriate action in the State court to have the land partitioned. I do not agree that the Department should so inform Mr. Hyde. The Department's action of September 10, 1943, acquiescing in the partitioning of these lands by the State court was ill-advised. It was, however, based on the fact that the United States Attorney had been served with notice in this suit and the belief that he would take whatever action might be necessary to protect the interests of the United States and the Indians. The fact that the Attorney General had already instructed the United States Attorney to move to dismiss the suit was not brought to the attention of the Department at that time. The same mistake should not be repeated.

    Obviously, as your Office recognizes, the State court has no jurisdiction over the restricted interest in this land.³ Any partitioning of the land effected by a decree of such a court would not be binding upon the United States and could be set aside by the United States unless it were a party to the suit.⁴ I know of no way in which Mr. Goodin could make the United States a party to any suit which he might bring to partition the lands.

    I agree with you that the lands may not be partitioned under the act of May 18, 1916, supra. That act authorizes the Secretary to partition inherited trust allotments and to issue patents in fee to competent heirs and trust patents to incompetent heirs. The Secretary may not issue a patent in fee or a trust patent for lands held under a restricted deed.

    It seems inescapable, therefore, that Mr. Goodin has no remedy in the Department or in the courts for the situation in which he finds himself. The only possible source of relief open co Mr. Goodin appears to be the enactment of legislation conferring upon some court jurisdiction to partition the lands. In this connection your attention is called to the act of June 29, 1936 (49 Stat. 2368), validating certain conveyances of Kickapoo Indians in Oklahoma. Section 2 of that act conferred upon the United States District Court for the Western District of Oklahoma jurisdiction to hear and determine partition actions involving the lands specified in that act. If, as an administrative matter, you believe that the present involved ownership of the lands warrants such a measure, it might be well for you to give consideration to the propriety of informing Mr. Hyde that the Department would have no objection .to the enactment of a private law for the relief of his client.

                                                                                                                                                     FOWLER HARPER,

 Memorandum to Indian Office:

Authority for the cancellation or adjustment of reimbursable charges due the Government by individual Indians contained in the sot of July 1, 1932 (47 Stat. 564), does not include authority to cancel interest to be earned on the unpaid or uncanceled principal of the loan. To cancel interest due under the terms of the reimbursable contract under the provisions of the act of July 1, 1932, the interest must exist as a debt on the date of the cancellation action, interest due in the future cannot be cancelled as such action would modify the terms of a contract prejudicial to the interests of the Government.

HARPER, Solicitor:

Memorandum for the Commissioner of Indian Affairs:

    This will refer to your Office memorandum dated January 18 and the file attached thereto regarding loan agreement CF-69 between the United States and Paul and Mabel Starr of the Cheyenne and Arapaho Agency, Oklahoma.

    An examination of the record before this Department discloses that loan agreement CF-69, Contract #I-13, Ind. 11656, was approved on November 10, 1938, covering a loan of $1,394 to Paul and Mabel Starr. This agreement was entered into for the purpose of refinancing a prior loan under agreement CF-16, Contract #I-13, Ind. 10003, then delinquent in the amount of $1,047, and to provide additional funds for other matters, fully set forth therein.

    Section 15 of the agreement provides for the payment to the United States of interest at the rate of three percent per annum. The loan which was approved on November 10, 1938, became delinquent and was foreclosed. Certain sums were

____________
  ³ Cohen, Handbook of Federal Indian Law, ch. 19, sec. 5.

  ⁴ United States v. Hellard, decided by the United States Supreme Court on May 15, 1944.
 

realized as a result of the foreclosure that were credited against the amount due. There is now due on the principal of the loan a balance of $861.60 and interest of $52.27 computed to November 1, 1943. Your Office asked whether under the provisions of the act of July 1, 1932 (47 Stat. 564), interest on this obligation can be cancelled.

    The real question presented, however, is whether a contract to which the United States is a part can be modified by administrative action prejudicial to the interest of the Government. In the absence of a statute specifically so providing, no officer of the Government has authority to give away or surrender a right vested in or acquired by the Government under a contract. Simpson v. United States, 172 U.S. 372; United States v. American Sales Corporation, 27 F. (2d) 389, aff'd 32 F. (2d) 141, cert. denied 280 U.S. 574.

    The Court of Claims stated in the case entitled Pacific Hardware Company v. United States, 40 Ct. Cl. 327-335, in part as follows:

"It is unquestionably true that an official of the Government is not authorized to give away or remit a claim due the Government. This rule is grounded in a sound public policy and is not to be weakened . . ."

    It is therefore clear that the loan agreement contract cannot be modified prejudicial to the interest of the Government by the elimination of interest in the absence of statutory authority granting the Secretary such power.

    We must now look to the act of July 1, 1932, supra, for such authority, if any exists. The pertinent parts of the act follow:

    "That the Secretary of the Interior is hereby authorized and directed to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made: . . . That any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorable or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days." (Italics supplied.)

    This office is of the opinion that in this particular case the loan should be permitted to remain in status quo until such time as its collection can be made or you can recommend its cancellation under the provisions of the act of July 1, 1932, supra. The files submitted with your memorandum are returned herewith.

                                                                                                                                                      FOWLER HARPER,

Memorandum:

The land purchased by the United States in trust for the Spokane Tribe with funds appropriated by the acts of June 18, 1940 (54 Stat. 416) and June 28, 1941 (55 Stat. 314), became part of the Spokane Reservation. The Spokane Indians having voted not to accept the provisions of the act of June 13, 1934 (48 Stat. 984), the allotment laws continue applicable to the Spokane Reservation. The act of February 14, 1923 (42 Stat. 1246), extended the allotment laws to lands purchased for the use and benefit of the tribe, and such land is available for allotment exchanges under the act of April 23, 1904 (33 Stat. 297), to the same extent as other reservation land.

Memorandum for the Commissioner of Indian Affairs:

    This will refer to your proposed letter to the Superintendent of the Colville Indian Agency, dated May 16, 1944, in which it is stated that there is no legal authority under which the Secretary of
 

the Interior may accept a relinquishment of the trust patent covering the allotment of Milo Abrahamson, Spokane allottee. No. 601, and issue to him a lieu trust patent covering an equal acreage of tribal land which was recently purchased with tribal funds.

    The tribal land involved in the proposed exchange is described as the W1/2 SE1/4 of Sec. 35, T. 29 N. R. 39 E.W.M., Washington. This land was originally allotted to Charley Haines, Spokane allottee No, 268, to whom a fee patent was issued therefore on December 6, 1917. In 1942 it was purchased by the United States in trust for the Spokane Tribe with tribal funds appropriated by the acts of June 18, 1940 (54 Stat. 416), and June 20, 1941 (55 stat. 314).

    It is true that the issuance of a fee patent for the above-described land operated to divest the United States of the jurisdiction it had over the tract at that time, but upon the return of the land to tribal ownership it became a part of the Spokane Reservation. The courts and this Department have held that any land in which an Indian tribe has occupancy rights may be considered reservation land, without regard to the method in which those rights were acquired, and no formal order designating the land an Indian reservation is required to give it that status. (See United States v. McGowan, 302 U.S. 535 (1938); Memo. Sol. I.D., July 1, 1938; Op. Sol. I.D., February 12, 1943, M. 31480; and Memo. Assistant Secretary, May 22,
1944.)

    The Indians of the Spokane Tribe voted not to accept the provisions of the act of June 18, 1934 (48 Stat. 984). The allotment laws are therefore applicable to the lands of the Spokane Reservation. Purchased lands were brought within the scope of these laws by the act of February 14, 1923 (42 Stat. 1246), which reads as follows:

    "That unless otherwise specifically provided, the provisions of the act of February 8, 1887 (24 Stat. 388), as amended, be, and they are hereby, extended to all lands heretofore purchased or which may hereafter be purchased by authority of Congress for the use or benefit of any individual Indian or band or tribe of Indians."

    There being no legal obstacle to the proposed exchange, I am returning the papers for your further consideration of the administrative question presented.

                                                                                                                                                       FOWLER HARPER,

M-33709

The Pueblos of New Mexico possess the requisite capacity to enter into binding contracts, the validity of which depend upon the legality of the object and the means of attaining that object. Under sections 5 and 7 of the act of June 18, 1934 (48 Stat. 984), the Secretary of the Interior may acquire lands for the Acoma and Laguna Pueblos and declare them to be Indian reservation lands, and such action is not in violation of the act of May 25, 1918 (40 Stat. 561, 570). The so-called compensation funds of the Picuris and Pojoaque Pueblos are available for any purpose considered of real benefit to the pueblo concerned, other than per capita payments, which is approved by the governing officials of the pueblos and the Commissioner of Indian Affairs. A loan of such funds to the Acoma and Laguna Pueblos to augment their present land holdings must be protected by adequate security and must return the lending pueblos the same or a greater rate of interest than the funds are now earning on deposit in the United States Treasury. The lands of the Acoma and Laguna Pueblos, whether now owned or hereafter acquired, are subject to the inhibitions on alienation or encumbrance found in section 4 of the 1934 act, supra.

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    In a memorandum of May 8 the Commissioner of Indian Affairs presented the question of whether
 

the so-called compensation funds of .the Picuris and Pojoaque Pueblos may be loaned to the Acoma and Laguna Pueblos for the purpose of enabling the borrowers to purchase certain patented lands and improvements within the Eleven Townships purchase area.

    The Commissioner's memorandum recites none of the details of the proposal. There are several questions which naturally suggest themselves and which I believe would have to be answered before a definite opinion could be given as to the legality of the proposal. For example, there is no information as to these and other features of the proposal for the repayment of the loans. The plans for repayment, including the promises to be made for the payment of interest and the pledging of property as security, would constitute integral parts of the loan transaction. In the absence of information as to these and other features of the proposal it is believed that it would be inadvisable to venture an opinion at this time on whether the loans can or cannot be made.

    Whatever the details of the proposal may be, however, there are certain fundamental legal principles which would apply in any event. I will discuss these principles briefly below in the belief that such discussion may prove helpful in reaching the administrative conclusions which will be required.

    The proposed loan transaction is, of course, a contractual one, and it is apparent that the action proposed by each party to the contract must rest upon legal authority. It is well settled that the Pueblos of New Mexico have the status of separate legal entities, possessing the requisite capacity to enter into binding contracts.¹ In the final analysis the contracts of the pueblos, as those of non-Indians, depend for their validity upon the legality of the object to be attained and the legality of the means of attainment employed by the contracting parties.

    It is the object of the present proposal to augment the land holdings of the Acoma and Laguna Pueblos. The property and affairs of both of these pueblos are subject to the provisions of the act of June 18, 1934 (48 Stat. 984), section 5 of which specifically authorizes the Secretary of the Interior to acquire lands for the tribe. Under section 7 of that act the lands so acquired may be proclaimed to be Indian reservations. Action so taken by the Secretary under these specific authorizations is not in violation of the act of May 25, 1918 (46 Stat. 561, 570), which prohibits additions to Indian reservations in the State of New Mexico "except by Act of Congress." Thus it is clear that the purpose of the proposed loans is a legal purpose, and that the borrowing pueblos may augment their present holdings through the purchase of lands. There remain for consideration the question of whether the compensation funds of the Picuris and Pojoaque Pueblos are available for the purpose of loans, and if they are so available, the further question of whether the Acoma and Laguna Pueblos are in a position to meet the conditions under which the funds are available.

    In my memorandum of March 1, 1944, I held that the compensation funds of the Picuris and Pojoaque Pueblos were available for the purchase of lands to be thereafter leased to the Ramah Navajos provided it was administratively determined that the purchases were in fact being made for the benefit of the pueblos. That memorandum listed the several appropriation acts by which appropriations were made to the Picuris and Pojoaque Pueblos to compensate them for lands and water rights lost to them pursuant to the Pueblo Lands Act of June 7, 1924 (43 Stat. 636). It was shown that with the exception of one item of $7,684.50 made available by the act of March 4, 1929 (45 Stat. 1562, 1569), for the purchase of a particular tract of land for the Picuris Pueblo the balance of the funds of both pueblos was continued available until expended by the acts of May 9, 1938 (52 Stat. 291, 299), and May 10, 1939 (53 Stat. 685, 694). These latter acts incorporated language which had first appeared in the act of August 9, 1937 (50 Stat. 571, 572), making the funds available not only for the original purposes, i.e., the reacquisition or replacement of properties lost pursuant to the 1924 act, but also "for such other purposes, except per capita payments, as may be recommended by the governing officials of the particular pueblos involved, and be approved by the Commissioner of Indian Affairs."

    It is to be borne in mind that the compensation funds of the pueblos are not gratuities from the United States. As their name implies they are of a compensatory character, a quid pro quo, belonging to the pueblos and merely held in trust by the Government. Thus, while it appears from the comprehensive language of the appropriation acts, quoted above, that these funds are available for any purpose other than per capita payments, it would be a mistake to assume that there are no limitations on the use of the funds. The high degree of care imposed by the law on any fiduciary limits the Commissioner of Indian Affairs to the approval of those expenditures recommended by the governing officials which result in a real bene-

____________
  ¹ Cohen, Handbook of Federal Indian Law, Ch. 14, sec. 5, and Ch. 20.
 

fit to the pueblo.² Whether a loan of these funds to other pueblos meets this standard depends upon whether a tangible advantage accrues to the lending pueblos. The moneys are now in the Treasury of the United States, drawing interest at the rate of four per cent per annum. This is the safest investment known to our Government, and I have no hesitancy, therefore, in expressing the opinion that any loan of these funds to other pueblos must be protected by adequate security and must return at least the same if not a greater rate of interest than the funds now earn. In view of the inhibitions contained in the act of June 18, 1934, supra, no lands of the Acoma or Laguna Pueblos, whether now owned or hereafter acquired, would be available for pledge as security for the loans. The ability of these pueblos to make and carry out a promise for the repayment of the substantial amount that would be involved, with interest, depends upon matters not in the record before me.

    If it is found to be administratively feasible to proceed with the formulation of plans for the proposal within the limits of the fundamental principles mentioned above a complete outline of the proposal should be prepared and submitted by the Commissioner for review of the legal questions involved.

                                                                                                                                                      FOWLER HARPER,

 Approved and referred to the Commissioner of Indian Affairs: July 8, 1944.

OSCAR L. CHAPMAN, Assistant Secretary.

    The attached file relates to the estate of Andrew Baconrind, deceased unallotted Osage Indian, who died intestate on February 1, 1943.

    Andrew was the son of George Baconrind, Osage Allotted No. 746, who had 13/16 degrees of Osage blood. Andrew's mother is a Kaw Indian of one half or more Indian blood. Andrew was therefore of more than one-half Indian blood but of less than one-half Osage blood. He left an estate consisting of 1 and 11/192ds Osage headlights, surplus funds, trust funds in the Treasury of the United States, inherited; lands and certain unrestricted money on deposit at the Osage Agency. He was survived by his wife, Marie, a white woman, and by his mother, Bertha Baconrind Endicott, each of whom would take one-half of his estate under the laws of Oklahoma, unless the white widow is prohibited from taking any part of the restricted Osage estate by reason of section 7 of the act of February 27, 1925 (43 Stat. 1008), which provides:

    "Hereafter none but heirs of Indian blood shall inherit from those who are of one-half or more Indian blood of the Osage Tribe of Indians any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe. . . ."

    Meanwhile, the administrator of Andrew Baconrind's estate made demand upon the Superintendent of the Osage Agency for the payment to him of the surplus funds to Baconrind's credit at the Osage Agency and also of the trust funds to Baconrind's credit in the United States Treasury. This demand was based upon that part of section 4 of the act of March 2, 1929 (45 Stat. 1478), which provides:

    ". . . Upon the death of any Osage Indian of less than one-half of Osage Indian blood or upon the death of an Osage Indian who has a certificate of competency, his moneys and funds and other property accrued and accruing to his credit shall be paid and delivered to the administrator or executor of his estate to be administered upon acceding to the laws of the State of Oklahoma: Provided, That upon the

settlement of such estate any funds or property subject to the control or supervision of the Secretary of the Interior on the date of the approval of this Act, which have been inherited by or devised to any adult or minor heir or devisee of one-half or more Osage Indian blood who does not have a certificate of competency, and which have been paid or delivered by the Secretary of the Interior to the administrator or executor shall be paid or delivered by such administrator or executor to the Secretary of the Interior for the benefit of such Indian and shall be subject to the supervision of the Secretary as provided by law."

    "Upon the death of an Osage Indian of one half or more Indian blood who does not have a certificate of competency, his or her moneys and funds and other property accrued and accruing to his or her credit and which have heretofore been subject to supervision as provided by law may be paid to the administrator or executor of the estate of such deceased Indian or direct to his .heirs or devisees, or may be retained by the Secretary of the Interior in the discretion of the Secretary of the Interior, under regulations to be promulgated by him: Provided, That the Secretary of the Interior shall pay to administrators and executors of the estates of such deceased Osage Indians a sufficient amount of money out of such estates to pay all lawful indebtedness and costs and expenses of administration when approved by him; and, out of the shares belonging to heirs or devisees, above referred to, he shall pay the costs and expenses of such heirs or devisees, including attorney fees, when approved by him, in the determination of heirs or contest of wills."

    Thereafter, on April 5, 1944, in a memorandum to the Commissioner, I expressed the opinion that in order to resolve the ambiguity in section 4 of the act of March 2, 1929, supra, the section must be construed, if possible, in such a manner that estates such, as Andrew Baconrind's would fall clearly and logically within either one or the other of the two provisions. The legislative history of the act as well as the consistent practice of the Department in dealing with Osage Indians of more than one-half Indian blood but of less than one half Osage blood led me to conclude that the estates of such Indians fall within the provision of section 4 last quoted above and that, therefore, it was within the discretion of the Secretary as to whether he would turn over their funds to administrators.

    On April 24, 1944, the County Court of Kay County, Oklahoma, found that all of the property of which Andrew Baconrind died seized came, to him from his father, George Baconrind, that Andrew Baconrind was not a member of the Osage Tribe and was an unrestricted Indian heir of an Osage Indian of more than one-half Osage Indian blood. The court found further that the supervision and control by the Secretary of the Interior over the property inherited by Andrew Baconrind from his father was not authorized by the Federal laws governing the restrictions on Osage Indians and that the estate of Andrew Baconrind was not subject to the control or supervision of the Secretary of the Interior in any manner and that the heirs of Andrew Baconrind, whom the court determined to be .the widow and the mother, were entitled to have their entire inheritance delivered to them individually, absolutely and unrestricted.

    The court found further that section 7 of the
 

act of February 27, 1925, supra, was plain and unambiguous and that the section applied only "to any restricted lands, moneys or mineral interests of the Osage Tribe." The court concluded that no bar existed to the inheritance by a person not of Indian blood from the estate of a deceased Osage Indian of less than one-half Indian blood of the Osage Tribe and that no bar existed to the inheritance of the property involved in this case since the court found the property to be unrestricted. The court directed the Osage Agency or any other agency having the property of said estate in its custody to turn over the same to the administrator. I understand that an appeal has been taken to the District Court of Kay County.

    On May 25, 1944, the County Court ordered a partial distribution of the estate in the sum of $500 to Bertha Baconrind Endicott, the mother of Andrew Baconrind. The court found that there remained in the possession of the United States Treasury and under the control of the Osage Agency trust funds in the sum of $2,755.82 and surplus funds in the amount of $8,533.02. The court found that regardless of the outcome of the appeal to the District Court Bertha was entitled to share in the estate to the extent of one-half thereof. The court directed the Osage Agency to pay the sum of $500 to the administrator to be by him paid to Bertha Baconrind Endicott.

    The attached memorandum from the Assistant Commissioner of Indian Affairs states that in view of the decision of the court he hesitates to recommend that any funds, other than the $500 for the partial distribution to Bertha Baconrind Endicott, be turned over to the administrator. He states, however, that if this office knows of no reason why all of the money should not be turned over to the administrator he would have no objection to paying the money to the administrator.

    As I have indicated above, I believe that this estate falls within the provision of section 4 of the 1929 act last quoted above and that you may, in your discretion, pay these funds to the administrator. Since one of the parties claiming the estate is a non-Indian and the other is a non-member of the Osage Tribe, the funds will not be restricted in the hands of the heir or heirs regardless of the final construction which may be placed on section 7 of the 1925 act and section 4 of the 1929 act. I suggest, therefore, that you exercise your discretion and order the Superintendent to pay over to the administrator the surplus funds to the credit of this estate.

    There is no authority of law for the payment of the trust funds in the Treasury of the United States to the administrator. These funds are not included within the term "moneys and funds and other property accrued and accruing to his or her credit" contained in both provisions of section 4 of the act of March 2, 1929, supra.¹ These funds must, therefore be retained in the Treasury of the United States until there has been a final determination of heirs.

                                                                                                                                                FELIX S. COHEN,

 Approved. The Commissioner of Indian Affairs is directed to instruct the Superintendent of the Osage Agency to turn over to the administrator of the Andrew Baconrind estate the surplus funds to the credit of the estate.

OSCAR L. CHAPMAN, Assistant Secretary.

 Memorandum for the Commissioner of Indian Affairs:

    Your letter to the Superintendent of the Colorado River Agency in regard to the report of the Tribal Roll Committee of the Quechan Tribal Council is returned to you for further consideration. The position taken in the letter that the adoption of new members can only be accomplished by general ordinances would seem to be based upon an unduly technical reading of section 2 of Article II of the tribal constitution with reference to adoption. This provision of the constitution does not in terms require as a preliminary step to adoption the promulgation of a general ordinance. An ordinance providing for the adoption of a particular person constitutes the promulgation of an ordinance on adoption. However, even if the constitution required adoption in accordance with a general ordinance, the Tribal Council could satisfy the requirement by adopting an ordinance to the effect that the Tribal Council should act only on individual applications. The tribal resolution should, therefore, be regarded as in effect an adoption of the 12 new members.

    There would also seem to be no good reason why the Council could not add the names of new members who had been adopted, since the expiration of the period for the review of the rolls. Section 1 (e) of Article IV of the tribal constitution provides only for the initial roll of the tribe, and

^{_______________
    1} 55 I.D. 489.
 

while the Council could not now deprive any person on that roll of membership, the addition of the names of new members is not prohibited by the provision of the constitution in question.

    Your attention is also called to the fact that the adoption of new members is not made subject to departmental review or approval by the tribal constitution.

                                                                                                                                                FELIX S. COHEN,

M-33626

Indians who are livestock owners having an interest or right of occupancy in lands set aside for tribal use, and who used the public domain in connection therewith in their livestock operations may be considered among preferred applicants for grazing privileges if the requirements of the Federal Range Code have been satisfied in other respects.

Tribal property rights in land are established in lands which are reserved or set apart for exclusive use of Indians by Act of Congress, and such rights accrued to the tribe with respect to the lands which were included in the Uintah Indian Grazing Reserve in accordance with specific legislative authority.

In order to entitle an applicant for grazing privileges in an established grazing district to preferential consideration by the Grazing Service the land offered as base property must qualify as "land dependent by use" within the meaning of the definition of the term in the Federal Range Code.

The Honorable, The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The Acting Director of the Grazing Service has requested my opinion as to whether or not any of the lands within the Uintah and Ouray Indian Grazing Reserve in Utah may qualify as base property, as defined in the Federal Range Code, in connection with the granting of grazing privileges for public range included within Utah Grazing District No. 8, except upon that part of the range designated for Indian administration by the memorandum of agreement between the Grazing Service and the Office of Indian Affairs, approved by you on June 14, 1943. The request was submitted through the Office of Indian Affairs, which recommends that the questions submitted be considered by this office.

    The pertinent facts relating to the establishment of the reserve are substantially as follows: An area known as the Uintah Indian Grazing Reserve, embracing approximately 250,000 acres, was set aside by a departmental order of July 11, 1905, in accordance with the direction contained in the Joint Resolution of June 19, 1902 (32 Stat. 744), which provided that there be set apart for the use in common of the Indians of the Uintah Indian Reservation, "such an amount of non-irrigable grazing lands therein at one or more places as will subserve the reasonable requirements of said Indians for the grazing of livestock." The resolution further provided that "the grazing land selected and set apart as aforesaid in the Uintah Indian Reservation for use in common of the Indians of that reservation, shall be equally open to the use of all Uncompahgre Indians receiving allotments in the said reservation of the reduced area here named."

    These lands were among those which theretofore had been included within the boundaries of the Uintah Valley Reservation established by a Presidential proclamation dated October 3, 1861, and which later were set apart by section 2 of the act of May 5, 1864 (13 Stat. 63), "for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said Territory (Utah) as may be induced to inhabit the same."

    Tracts of land in this reservation from time to time were opened to sale or entry under the public land laws. The act of May 24, 1888 (25 Stat. 157), provided for the restoration to the public domain and sale of part of the lands in the reservation, and provided that the money realized from the sale
 

should belong to the Indians and that it be held or added to their trust funds.

    The act of May 27, 1902 (32 Stat. 245, 263), directed the Secretary of the Interior to cause allotments of land to be made to the Indians prior to October 1, 1903, and that on that date the unallotted lands should be restored to the public domain. That act provided that persons entering any of the land under the homestead law should pay therefore at the rate of $1.25 per acre and that the money received from the sale, after certain deductions for expenses, be used for the benefit of the Indians.

    Further legislation contained in the joint resolution approved June 19, 1902, supra, provided that before any of the lands were opened to entry grazing areas be set aside for the use of the Indians as above stated.

    The act of March 3, 1903 (32 Stat. 997), provided that consent of the Indians to allotments be secured by June 1, 1903, and that the grazing lands to be set aside for the use of the Indians should not exceed 250,000 acres and at the same time, the date for opening unallotted lands was fixed at October 1, 1904. By subsequent legislation, the date for opening of the unreserved and unallotted lands was further extended to not later than September 1, 1905.

    It is evident that the proclamation of October 3, 1861, and the act of May 5, 1864, supra, set aside a definitely defined Indian reservation appropriated to Indian purposes. Minnesota v. Hitchcock, 185 U.S. 373; 389, 390. The status of the interests of the Indians in that part of the reservation which was included in the grazing reserve was not affected materially by the action taken pursuant to the legislation above mentioned. The lands were segregated from the other reservation lands for their use, together with other tracts which at the same time were set apart for other special purposes, by the Secretary's order of July 11, 1905, and prior to the proclamation of opening dated July 14, 1905. The lands to be reserved for grazing purposes and designated as a "grazing reserve," and those areas to be reserved for other designated purposes, were described in the report of the Commissioner of Indian Affairs dated July 8, 1905. The order approved the selections as recommended and directed the Commissioner of the General Land Office to cause a proper record thereof to be made and to protect such reservations when the unreserved and unallotted lands of the Uintah Reservation were restored to the public domain.

    In none of the acts affecting the lands of this reservation, or their disposition, has Congress failed to recognize the property interests of the Indians. When the surplus unallotted and unreserved lands were opened, the legislation required that certain payments be made by those entering them, and that the money be held or added to the trust fund and used for the benefit of the Indians. The surplus lands remained the property of the Indians until disposed of as provided by law. Ash Sheep Company v. United States, 252 U.S. 159. From the foregoing, it clearly appears that the property interest of the Indians in the reservation lands which were not opened to entry but were retained for their use and benefit was not extinguished or impaired.

    There remains then the question concerning the qualifications of such lands as base property in connection with the granting of grazing privileges upon the public range in the grazing district, which was established pursuant to the act of June 28, 1934 (48 Stat. 1269), as amended, commonly known as the Taylor Grazing Act.

    The general subject of the rights of Indians to grazing privileges upon the public range under the Taylor Grazing Act is discussed in an opinion of this office dated February 13, 1937, 56 I.D. 79. In that opinion, the view was expressed that an Indian who owns any interest in land, such as an inherited interest or an occupancy right in tribal land, giving him the right of possession, or has ownership of water rights under proper authority, would undoubtedly, under the regulations, come within the definition of a qualified applicant entitled to preference right under the Code. The location of an allotment or other land interest of an Indian within or without an Indian reservation is material only in connection with his opportunity to obtain first consideration under the regulations in the issuance of grazing licenses to preferred applicants.

    In a further opinion dated May 14, 1938, 56 I.D. 308, the view was expressed that a lease or an allotment obviously is not an exclusive means of acquiring control of base property, but that a showing of a right to possession, or a right to use the base property, whether by consent of the owner or otherwise, clearly would be sufficient to establish control. It was stated, however, that it would be necessary to point out definite base property, in order that it might be classified and rated, and that the same property could not be used as base to the full extent of its rating for more than one license.

    Upon the basis of the foregoing, it is my opinion that the lands in the reserve which were used in connection with public range now included within Utah Grazing District No. 8, may constitute a sufficient basis for an application for grazing privileges on the Federal range, if the lands are shown to be dependent by use and otherwise qualified as
 

base property within the meaning of the Federal Range Code. The extent of the grazing privileges to which an applicant offering such base is entitled would be determined upon the information furnished and in accordance with the applicable provisions of the Code.

                                                                                                                                                     FOWLER HARPER,

Approved: August 3, 1944.

OSCAR L. CHAPMAN, Assistant Secretary.

M-33717

The Secretary may delegate to the Commissioner of Indian Affairs the function of approving applications under the provisions of section 5 of the act of April 18, 1912 (37 Stat. 87).

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    This is in reply to your memorandum of July 8 in which you requested this office to consider the question of whether the function of approving applications under the provisions of section 5 of the act of Congress approved April 18, 1912 (37 Stat. 87), can legally be delegated to the Commissioner of Indian Affairs. That section provides as follows:

    "That the Secretary of the Interior, in his discretion, hereby is authorized, under rules and regulations to be prescribed by him and upon application therefor, to pay to Osage allottees, including the blind, insane, crippled, aged, or helpless, all or part of the funds in the Treasury of the United States to their individual credit: Provided, That he shall be first satisfied of the competency of the allottee or that the release of said individual trust funds would be to the manifest best interests and welfare of the allottee: Provided further, That no trust funds of a minor or a person above mentioned who is incompetent shall be re leased and paid over except to a guardian of such person duly appointed by the proper court and after the filing by such guardian and approval by the court of a sufficient bond conditioned to faithfully administer the funds released and the avails thereof."

    In accordance with the principles regarding the legality of delegating functions discussed in the memoranda of this office of August 26, 1943, and June 16, 1944, it is clear that the duty of approving applications by Osage Indians for moneys in the Treasury of the United States belonging to the applicant is one which the Secretary may delegate pursuant to the broad authority of sections 161 and 463 of the Revised Statutes. This duty does not involve the formulation of basic policies but merely constitutes a routine matter for which a standard form is employed. It does involve the exercise of discretion but as pointed out in the above-mentioned opinions, the head of a department may delegate such duties, once precedents have been established.

    There is no evidence in the legislative history of this statute which compels the conclusion that Congress intended that the Secretary's power to pass on these applications should be exercised personally. In fact the meager discussion of this section of the statute indicates a contrary intention (62d Cong., 2d sess., 48 Cong. Rec., vol. 5, p. 4258 et seq.). The statute itself prescribes the standards insofar as the eligibility of allottees is concerned. It obviously was intended that the phrase "to pay" as used therein should be interpreted as "shall cause to be paid." The Supreme Court so interpreted a similar provision involved in the case of Work v. United States ex rel. Lynn, 266 U.S. 161. It may also be noted in the language of the section that the Secretary is authorized to perform this duty "under rules and regulations to be prescribed by him," which indicates a recognition that the duty might be delegated. These indications, of course, are not determinative in themselves but constitute an additional factor in deciding the question. In the absence of a clear indication of a different congressional intent, this factor, together with the nature of the duty, justifies the conclusion that personal action was not contemplated. Accordingly, I believe that this authority may be delegated by the Secretary to the Commissioner of Indian Affairs.

    It is suggested that provision be made for an opportunity to appeal to the Secretary from the Commissioner's determination.

                                                                                                                                                       FOWLER HARPER,

Memorandum for Assistant Secretary Chapman:

Public Resolution No. 40, approved August 5, 1939 (53 Stat. 1221), approved the order of the Secretary of the Interior of April 10, 1939, made under the act of June 22, 1936 (49 Stat. 1803), deferring the collection of irrigation construction charges pending the completion of an investigation of the San Carlos Irrigation Project. The Department, having determined on June 7, 1944, that the investigation had been completed, and having ordered the resumption of payment of construction charges, may not subsequently, reopen the investigation, and thus in effect restore the moratorium. The applicable statutes cannot be interpreted to permit an administrative redetermination to be made.

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    I have before me a letter to Senator McFarland prepared for your signature by Mr. Mitchell in which it is proposed to inform the Senator that consideration will be given to a request made by the officials of the San Carlos Irrigation District to reopen the economic survey of the San Carlos Irrigation Project in order to investigate "certain aspects of the situation not adequately dealt with in the present study." There, are mentioned specifically in the letter "a fuller consideration of the power aspects, and also a discussion of possible effects upon the Project of proposed diversions from the Colorado River."

    On June 7, 1944, however, you approved an Indian Office letter dated May 24, 1944, to Mr. C. J. Moody, the Project Engineer, which stated:

    "As you know, Public Resolution No. 40, 76th Congress, approved August 5, 1939 (53 Stat. 1221) approved the Order of the Secretary of the Interior of April 10, 1939 made under the Act of June 22, 1936 (49 Stat. 1803). The Order postponed the collection of irrigation construction charges on the San Carlos Project until she completion of the economics investigation of the project under the 1936 act. The investigation has now been completed. It is recommended by the Principal Agricultural Economist who was in charge of the investigation that the assessment and collection of construction charges be immediately resumed."

    "Notify San Carlos District letter of May 24, approved by the Department June 7, is modified to require payment December 1, 1945."

    It is thus now proposed to consider the reopening of an investigation which the Department twice held had been completed. It is true that the Department is not at this time promising to reopen the investigation. But there would seem to be no point in suggesting that an application be made
 

unless a good prima facie case at least existed for continuing the investigation. I understand that a good deal of thought has already been devoted in the Indian Irrigation Service to the two subjects suggested for further investigation but they seem to have a rather remote bearing upon the purpose for which an investigation may be ordered by the Department under the act of June 22, 1936 (49 Stat. 1803, 25 U.S.C. secs. 389 et seq.). The investigation must relate to the question "whether the owners of non-Indian lands under Indian irrigation projects . . . are unable to pay irrigation charges . . ." The power aspects of the investigation while relevant to the administration and operation of the project will for a long time to come fail to have any connection with the ability of the land owners to pay irrigation construction charges, for the act of March 7, 1928 (45 Stat. 200, 211), provides that the revenues from the sale of power shall be devoted

"to reimbursing the United States for the cost of developing such electrical power as that cost shall be determined by the Secretary of the Interior; second, to reimbursing the United States for the cost of the San Carlos Irrigation project; third, to payment of operation and maintenance charges, and the making of repairs and improvements on said project: Provided further, That reimbursements to the United States from power revenues shall not reduce the annual payments from landowners on account of the principal sum constituting the cost of construction of the power plant or the project works until such sum shall have been paid in full: . . ."

    However, even if it could be determined on reasonable grounds that the investigation made has been inadequate, I am of the opinion that the Department would be without authority to reverse its determination that the investigation had been completed. I must confess that the whole problem of the extent to which administrative determinations may be reconsidered and modified or set aside is a very troublesome one. It is often treated as a problem of "administrative res judicata" although it is more akin to the judicial problem of vacating judgments during a term of court. The whole problem was hardly a subject of analysis until recent years.¹

    While it is difficult to draw the line between the types of administrative action that are and are not subject to administrative reconsideration, it is well settled that some administrative determinations may not be reopened. While the question has been raised in a considerable number of cases in recent years in both State and Federal courts involving the independent regulatory commissions and the departments of the Government,² the cases arising in this Department have been confined to attempted reversals of land determinations in connection with the issuance of patents by the General Land Office,³ grants of rights-of-way,⁴ or findings as to the character, location or boundaries of land,⁵ or to attempts to reverse determinations made in connection with the enrollment of Indians, ⁶ determinations of heirship to Indian lands,⁷ or other

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  ¹ Ernst Freund in his work, Administrative Powers over Persons and Property (Chicago, 1928), notes "the relative paucity of decisions" (p. 286). The literature on the subject (as well as the case material) is, however, growing. See F. Trowbridge von Baur, Federal Administrative Law, 2 vols. (Chicago, 1942). vol. 1, chap. 13; James Hart, An Introduction to Administrative Law (N.Y. 1940, Chap, 15); American Jurisprudence, title "Public Administrative Law," vol. 42. ss 161, 173-181; Noble K. Gregory, "Administrative Decisions as Res Judicata," in California Law Review, vol. XXIX (1941) 741-53; Ernest H. Schopflocher, "The Doctrine of Res Judicata in Administrative Law," in Wisconsin Law Review, vol. 1942, pp. 5-42, and 198-235; Notes in Michigan Law Review, vol. XXVII (1929) 677-83, and Yale Law Journal, XXXXIX (1940) 1250-78.

  ² The cases are assembled in the literature cited in the previous footnote.

    ³ See United States v. Stone, 69 U.S. 525; Moore v. Robbins, 96 U.S. 530; Lone v. Watts, 234 U.S. 525; United States v. State Investment Co., 264 U.S. 206. But the Department may reverse itself prior to the issuance of final patent. United States v. Kennedy, 206 Fed. 47 (C.C.A. 5th); Greenameyer v. Coate, 212 U.S. 434. And it may reverse a refusal to issue a patent. Beley v. Naphtaly, 169 U.S. 353. Moreover, the Department findings in the issuance of a patent are not res adjudicata in such a sense that they are conclusive on the courts in subsequent litigation in which the patent is attacked, Dickson v. Luck Land Co., 242 U.S. 371.

    ⁴ Noble v. Union River Logging Co., 147 U.S. 165.

    ⁵ New Orleans v. Paine, 147 U.S. 261; Michigan Land and Lumber Co. v. Rust, 168 U.S. 589; Lane v. Darlington, 249 U.S. 331; West v. Standard Oil Co., 278 U.S. 200.

    ⁶ See cases cited, pp. 5, 6, infra.

    ⁷ Lane v. United States, 241 U.S. 201.
 

rights in allotments.⁸ This office has in recent years also considered the question in various other connections.⁹ While none of the cases involves the question of reopening an investigation, which had been found to have been completed,¹⁰ I am satisfied nevertheless that the existing legal authorities indicate that such action could not lawfully be taken. While some of the cases seem to regard various factors or formulas as decisive, each case really presents a separate problem of statutory construction. This seems to be the common conclusion of all the text writers and is really the inarticulate promise of all the court decisions. The statutory ban upon change or modification of administrative action may be clearly expressed, or it may be left to implication." Sometimes it is said additionally that an administrative action is reversible if it is "administrative" or "executive" rather than "quasi-judicial." ¹² This test is, however, valueless because of the difficulties in distinguishing between the two categories. Again it is said that an administrative determination may not be reversed if the "jurisdiction" of the administrative agency has been exhausted. ¹³ This, too, is often the statement of a conclusion other than an adequate rationalization of the result. This factor would seem to be better stated, as it sometimes is stated, in terms of continuing function,¹⁴ for when this is the case it is less likely that the legislature intended that the power of the administrative agency to act should be exhausted by a single exercise of the power. Perhaps the most important factor is the reliance of private parties upon an administrative decision, with a resulting change of position involving economic detriment, and this factor has been given great weight by the courts.¹⁵

    A frequently cited case, both in the decisions of the courts and of this Department is Garfield v. United States ex rel. Goldsby, 30 App. D.C. 177, 183, which involved the question whether the Department could remove the name of a Cherokee Indian from a tribal roll which had been approved by the Department. In this case the Court said: "When the judgment or discretion of an executive officer has been completely exercised in the performance of a specific duty, the act performed is beyond his review or recall, unless power to that extent has also been conferred upon him by statute." (Italics added.) This factor, which is only another form of the test of "continuing function," would seem to have some bearing upon the present case although it may be regarded only as dictum. The decision in the Goldsby case was affirmed by the United States Supreme Court in 211 U.S. 249 solely upon :the ground that there had been no hearing prior to adjudication, and the substantive question of law involved was ultimately disposed of by the Supreme Court in another case, Lowe v. Fisher, 233 U.S. 95, which held that the Secretary of the Interior could reconsider his approval of the enrollment because under section 2 of the act of April 26, 1906 (34 Stat. 137), jurisdiction of the Secretary over the rolls was retained until March 4, 1907, and the reconsideration occurred prior to

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  ⁸ Knight v. Lane, 228 U.S. 6.

  ⁹ Solicitor's Memorandum to the Secretary, dated October 31, 1936, in re- Virginia Ores Corporation, War Minerals Claim No. 1071. pp. 50-51: Lance Creek Independent Oil Producers and Royalty Owners' Association, Inc. v. Argo Oil Corp. et al.; appeal from the Geological Survey, A. 22857, March 17, 1941, p. 4. (petition for revocation of approval of a contract); Solicitor's memorandum to the Under Secretary dated May 29, 1941, in re the reconsideration of an award made by the Department of damages due to the Mohave and Chemehuevi Indians for lands taken from them by the United States for the use of the Metropolitans Water District of Southern California. p. 10; opinion of the Board of Appeals, dated February 27, 1942; in re claims of the Algoma, Lamm and Forest Lumber Companies arising out of timber contracts, pp. 24-25.

  ¹⁰ In fact, the only case which in any way involves an irrigation district is apparently Wilbur v. Burley Irrigation District, 58 F. (2d) 871 (Ct. Ap. D.C.).

  ¹¹ United States v. Sherman, 237 U.S. 146 and Baldwin v. Milling Co., 307 U.S. 478, are good examples of cases in which the problem of administrative redetermination in considered entirely in terms of statutory construction.

  ¹² Examples of this common type of reasoning are to be found in District of Columbia v. Cluss, 103 U.S. 705; Pearson v. Williams 202 U.S. 281; West v. Standard Oil Co., 278 U.S. 200.

  ¹³ This is the reason usually given in the land cases holding the issuance of a patent to be final. The reason stated more practically is that a title must have a point of origin, and there would be no security in the public land States if the Department could cancel a patent.

    ¹⁴ See, for example, Broughman v. Blanton Mfg. Co., 249 U.S. 495, 500; West v. Standard Oil Co., 278 U.S. 200, 210; Wilbur v. United States, ex rel. Kadrie, 281 U.S. 206, 217. This would not seem to be a conclusive test, however. The Court of Claims has held in Wilder v. United States, 5 Ct. Cl. 468, that an administrative officer may not invoke his approval of a contract, and this, too, has been the position of this Department. But almost invariably an administrative officer has continuing duties under public contracts, and thin is particularly true in the case of contracts for services to Indians approved by this Department under which the payment for the services is made from restricted funds. Unless there has been a change of position by actual performances of services, approval should probably have no magic effect. Even when services have been performed, payment might be made on a quantum meruit basis, and the contract cancelled. The contrary rulings have probably been influenced by the sanctity attached to contracts in our constitutional system.

   ¹⁵ This salutary rule wan laid down an early as Tate v. Carney, 24 How. 357. An example of its recent application is to be found in Wilbur v. Burley Irrigation District, 58 F. (2d) 871 (Ct. Ap. D.C.).
 

that date. However, in neither decision did the Supreme Court criticize the statement of the principle laid down by the Court of Appeals of the District of Columbia. In Johnson v. Payne, 253 U.S. 209, the Supreme Court even held that the Secretary of the Interior could change his mind about the enrollment of an Indian of one of the Five Civilized Tribes although he had given his
approval of the enrollment in a letter to the Commissioner of Indian Affairs. Apparently, however, the name of the Indian had not yet been put on the official roll. The Court held, moreover, that the Secretary could revoke his approval without notice or hearing.

    Some of the factors to which weight has been given by the decisions of the Supreme Court are obviously not involved in the present situation. Certainly there is no basis for contending that reconsideration and reversal of the determination that the investigation of the San Carlos Irrigation Project had been completed will adversely affect the economic interests of either the irrigation districts or the individual landowners. But the public, as well as the private, interests are to be preserved.¹⁶ Congress authorized the construction of the irrigation system, and made the collection of construction charges mandatory. True, Congress subsequently granted a moratorium by Public Resolution No. 40, approved August 5, 1939 (53 Stat. 1221), but this moratorium is not to be stretched beyond its terms, and the mandatory duty of collecting construction charges remains except in so far as it has been suspended by the resolution.

    It seems superficially that the Department has a continuing duty to perform in collecting the construction charges annually in accordance with the statutes governing the San Carlos Irrigation Project and the repayment contracts. This duty undoubtedly exists and it is continuing in character. But this is not a duty that has any necessary connection with the determination of the status of the investigation. This was a separate and specific duty which when performed restored the continuing function but which, so long as it was unperformed, suspended the continuing function of collecting construction charges. In the nature of things there was no continuing duty in determining whether the investigation had been completed. The power to perform a specific duty must necessarily be exhausted by a single exercise.

    It is difficult to believe that Congress in confirming the departmental order made pursuant to the limited authority granted by the act of .June 22, 1936 (49 Stat. 1803), which deferred the collection of construction charges until the investigation of the ability of the landowners to pay had been completed intended to grant what might amount to a perpetual moratorium. For, logically, this must be the necessary result of holding that the Department might continue to change its mind about the question whether the investigation had been completed. Necessarily reasonable men might differ widely in opinion in judging the completeness of an investigation. There is no end to research and investigation and how long such activities will be continued must depend entirely on the zeal, energy, and funds of the researcher and investigator. In view of this rather notorious characteristic of all investigations, it should not be supposed that it was the legislative intent of Congress to delegate to the Department anything but a limited and circumscribed authority, and to the beneficiaries of the San Carlos Irrigation Project anything but a moratorium of some measurable duration. Indeed it may perhaps even be argued that it was the intention of Congress to limit the moratorium to such time as would reasonably be necessary to complete the investigation, and that when this time had once elapsed, the Department was bound to resume the collection of construction charges. Over five years have already elapsed since the Department ordered the investigation and its action was confirmed by Congress.

    From another point of view, the possibility of reopening the investigation may present a pure problem of legislative interpretation unrelated even to the problem of administrative redetermination. The order of the Secretary, confirmed by Congress, does not say in so many words that the collection of construction charges is deferred until the Secretary shall find as a fact that the investigation has been completed. Conceivably, therefore, it might be argued that the Department's determination whether the investigation had been completed was only an incident of its annual duty under the statutes requiring collection of construction charges to collect such charges. It would be one consequence of this interpretation that the determination of the status of the investigation would become in truth part and parcel of a continuing duty. But another consequence would be that if the Department's attempt to collect were resisted in the courts, the courts would have entire liberty to determine objectively for themselves whether the investigation had been completed, and the departmental determination would not have any conclusive effect. It is impossible to believe that what was done contemplated this sort of legislative, judicial and administrative anarchy. Since the order, confirmed by Congress, was made by the Secretary, who was

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   ¹⁶ The public interest in the reconsideration of an administrative determination is stressed in West v. Standard Oil Co., 278 U.S. 200.