Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1351-1375

1351

OPINIONS OF THE SOLICITOR

SEPTEMBER 20, 1945

to their heirs, to whom patents in fee containing restrictions against alienation have been issued is limited to Indians and their Indian heirs since the Secretary of the Interior has no authority to deal with .the lands of non-Indians.

There is returned herewith for your further consideration the attached memorandum for the Secretary dated August 1 with which you transmitted for consideration a certificate of competency in favor of Frances V. Vanderventer.

You propose that the certificate be issued to Mrs. Vanderventer under the provisions of section 1 of the act of Congress approved June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372), which, inter alia, authorizes the Secretary of the Interior "in his discretion to issue a certificate of competency, upon application therefore, to any Indian, or in case of his death, to his heirs, to whom a patent in fee containing restrictions against alienation has been issued, and such certificate shall have the effect of removing the restrictions on alienation contained in such patent." You state that the certificate of competency should be issued to Mrs. Vanderventer in order to clear her title to the land described therein.

In the circumstances surrounding the land now owned by Mrs. Vanderventer it is my opinion that the land is now unrestricted and that nothing remains to be done to clear her title.

Mrs. Vanderventer is a white woman. Under date of May 7, 1945, she was determined to be the widow and sole heir of George Vanderventer, Allottee No. 340, of the Bad River Indian Reservation. This determination was made by this Department under authority of section 1 of the act of June 25, 1910, supra. As such heir she inherited the entire interest in two allotments made to her husband under the treaty by the United States with the Chippewa Indians on September 30, 1854 (10 Stat. 1109), for which restricted fee patents were issued to George Vanderventer.

Since Mrs. Vanderventer is a white woman, the restrictions against alienation contained in the patents do not apply to her and she is free to alienate the land inherited from her Indian husband in the same manner in which any other white person may alienate his land.

Restrictions against alienation contained in patents to Indians were imposed by the Federal Government to protect the Indians against their own improvidence. The authority of the Federal Government to impose such restrictions is too well established to require citation. But the policy to protect the Indians does not embrace white persons, not under national protection, although they might inherit lands from Indians.¹ The United States has no control over the interest of a white woman and she is in no sense its ward.² The United States having no control over the lands owned by Mrs. Vanderventer, the Secretary of the Interior has no authority to issue a certificate of competency to her.

Further, the certificate of competency proposed to be issued to Mrs. Vanderventer recites that upon investigation she has been found to be fully competent and capable of transacting her own business and caring for her own individual affairs. There is nothing in the attached file to indicate that there has been any investigation of the capacity of Mrs. Vanderventer to handle her own affairs. Nor, in my opinion, has the Secretary any authority to make such an investigation. While the act of June 25, 1910, supra, speaks of "any Indian" or "his heirs," obviously Congress did not intend that the Secretary might inquire into the capacity of a white person in order to determine whether that person were capable of transacting his own affairs. Congress was only concerned with the capacity of Indians and their Indian heirs. Congress did not invest the Secretary of the Interior with discretion to remove or retain restrictions against alienation of land belonging to non-Indians. The restrictions in such a case are removed by operation of law when title vests in the non-Indian and a certificate of competency issued under the act of June 25, 1910, would be of no effect.³

It is suggested that Mrs. Vanderventer and her attorney be informed that she now holds the land inherited from her husband in unrestricted ownership and that this Department has no further jurisdiction over the matter.

¹Levindale Lead & Zinc Mining Co. v. Coleman, 241 U.S 432 (1916); In re Irwin, 60 F. (2d) 495 (CCA. l0th, 1932) ; Mixon v. Littleton, 265 Fed. 603 (C.C.A. 8th. 1920) ; Unkle v. Wilk, 281 Fed. 29 (C.C.A. 8th, 1922).
²Chouteau v. Commissioner of Internal Revenue, 38 F. (2d) 976 (C.C.A. 10th, 1930).
³Cf: Ex parte Pero, 99 F. (2d) 28 (C.C.A. 7th. 1938).

1352

DEPARTMENT OF THE INTERIOR

SEPTEMBER 28, 1945

You have requested my opinion concerning several questions involving the construction of section 8 of the Corporate Charter of the Blackfeet Tribe, which provides as follows:

It appears that the Blackfeet Council in its per capita distributions for the past few years has included funds deposited in the Treasury to the credit of the tribe in determining the amounts available for such distribution. According to your memorandum of January 3, these funds are made up in part of funds received by the tribe as compensation for the taking of capital assets and in part from oil leases made by the Secretary for the tribe.

I believe your office is correct in assuming that the phrases "accrued surplus" and "net income of corporate activities" do not have reference to the capital assets of the tribe. The capital assets of the tribe and the proceeds of Secretarial leases on deposit in the Treasury are not derived from "corporate activities" and may not be included in the "accrued surplus" for the purpose of determining the amount of net income which may be distributed per capita to the members of the tribe.¹ I also agree that section 8 of the charter does not make the establishment of a reserve fund mandatory.

It is clear, of course, that an organized .tribe has the right to deposit in its own treasury receipts of tribal activities and to dispose of such receipts in accordance with its constitution and charter. See opinion of the Comptroller General, dated June 30, 1937 (A. 86599). The question of tribal control of revenues derived from tribal resources has also been discussed in a recent opinion of this office dated February 25, 1943, wherein the distinction between funds which must be deposited in the Treasury and those which may be collected and retained by the tribe was explained. It has already been made clear to the Blackfeet Tribal Council in a letter dated April 29, 1941, approved by the Assistant Secretary, that per capita payments can not be made from "funds of the tribe that are in the United States Treasury" since they are "available only through Congressional authorization and therefore, cannot be considered in the nature of a reserve." That letter also pointed out that the tribal council was under a duty of setting aside a portion of the funds in the possession of the tribe as a reserve fund to be used in cases of emergency, but this duty is directory only and not a condition precedent to the distribution among the members of the tribe of portions of the net income derived from corporate activities.

Again in your letter of February 26, 1942, addressed to Mr. Brian Connolly, approved by the Assistant Secretary, the question of the control of the Council over tribal moneys deposited in the Treasury of the United States was discussed. It was pointed out that where contracts are executed by the Tribal Council, it exercises control over the funds accruing therefrom. It was also stated:

¹The tribal council, however, may dispose of judgment moneys awarded to the Blackfeet Indians, with the approval of the Secretary, and in accordance with their constitution and bylaws. 49 Stat. 1568.

1353

OPINIONS OF THE SOLICITOR

OCTOBER 9, 1945

The Council, therefore, should be aware that its authority to distribute corporate dividends in accord with Section 8 of its charter only encompasses funds within its own treasury and control.

STATUS OF REMNANT LANDS OF THE KIOWA,
COMANCHE AND APACHE RESERVATIONS
UNDER THE TAYLOR GRAZING ACT

Instructions have been requested by the Land office in a memorandum to the Secretary dated January 16, 1945, as to the applicability of sections 7, 8, 14 and 15 of the Taylor Grazing Act to two lots in Township 5 South, Ranges 10 and 13 West, I.M., Cotton County, Oklahoma, within the territory which the Kiowa, Comanche and Apache Indians ceded to the United States by agreement of October 6, 1892.¹Both lots are bounded on the south by the Red River. Subject to allotments in severalty (which could not be made on any portion of the reservation then "used or occupied for military, agency, school, school farm, religious, or other public uses . . .") and the setting apart of 480,000 acres of common grazing land and "subject to the conditions hereinafter imposed," the Indians did "cede, convey, transfer, relinquish, and surrender, forever and absolutely, without any reservation whatever, express or implied," all their lands therein described.

The established interpretation of Indian cession acts indicates that the Indian title was extinguished and that the United States acquired unrestricted title to the lands opened under the act of June 6, 1900,^lof which lot 3, Sec. 15, T. 5 S., R. 10 W., is a remnant.² As to ,the other lot in question here (lot 6, Sec. 4, T. 5 S., R. 13 W.) which is a remnant of lands acquired under the subsequent act of June 5, 1906, the same established interpretation indicates that the United States took title subject to a trust agreement to sell the lands for the benefit of the Indians.³ The latter act provided that the 480,000 acres of common grazing land (subject to certain additional allotments to children born after June 6, 1900) and "twenty-five thousand acres of land set apart as a wood reservation in the Kiowa, Comanche and Apache Indian reservations, in Oklahoma Territory" should be opened to settlement by proclamation of the President within six months from its passage.

¹Ratified by the act of June 6, 1906, 31 Stat. 676, 679, 680. The validity Of this act was upheld in the case of Lone Wolf v. Hitchcock, 187 U.S. 553.
²The Land Office map compiled under the direction of Commissioner Hermann to show the lands of the Kiowa, Comanche and Apache Indian Reservation opened for entry on August 6, 1901, indicates that this lot was not reserved for tribal use for schools, missions, etc.
³Ash Sheep Co.v. U.S., 252 US. 159, 164; Minnesota v. Hitchcock, 185 U.S. 373, 394, 398; U.S. v. Mille Lac Band of Chippewa Indians, 229 U.S. 498.

1354

DEPARTMENT OF THE INTERIOR

OCTOBER 9, 1945

expended for the benefit of said Indians in such manner as Congress may, direct . . ."⁴

The Indian Appropriation Act of 1913 contained in section 17 thereof the following:

It is the interpretation of this enactment that necessitates this opinion. Pursuant to the act a sale was held at Lawton, Oklahoma, commencing December 8, 1913; the notice of sale set a minimum price of $1.25 per acre. When lands of these reservations were again offered at public sale in 1925 and 1930, the directions to the Commissioner specified sale at a minimum price of $1.25 per acre and stated:

In 1930 both lots were referred to as prospectively valuable for oil and gas and disposable with a reservation of those minerals to the United States under the act of July 17, 1914 (38 Stat. 509).⁷ The pasture lot (6 of Sec. 4, T. 5 S., R. 13 W.) was listed as subject to sale under the 1919 act, supra, and the other lot (3 of Sec. 15, T. 5 S., R. 13 W.) as subject to sale under the 1913 act, supra. Neither was disposed of as a result of that sale.

By letter of May 2, 1934, the Commissioner of Indian Affairs stated *that approximately 20 tracts, mostly isolated, comprising approximately 900 acres, were undisposed of within the former Wichita, Kiowa, Comanche and Apache Indian Reservations, and subject to disposal by public sale.⁸ It was decided to make no attempt to dispose of these lands because of pending Indian legislation.

Shortly after the passage of the Wheeler-Howard Act of June 18, 1934 (48 Stat. 984, 25 U.S.C. sec. 461, et seq.) and pursuant to section 3 thereof, the lands affected by the act of 1906, supra, were specifically withdrawn by recommendation approved by the Secretary, September 19, 1934, for possible restoration to the tribes as "remaining surplus lands" of an Indian reservation. It is a question whether the balance of the Kiowa, Comanche .and Apache lands were included in view of the following language of the withdrawal: ⁹

⁴3 Stat. 213. The 1900 and 1906 statutes are analyzed in the case of Oklahoma v. Texas, 258 U.S. 574, 592 et seq.
⁵Act of June 30, 1913, 38 Stat. 77, 92. The hospital for maintenance of which the fund was set up, was constructed with Indian tribal funds, $40,000 being authorized for that purpose by the act of August 24, 1912, 37 Stat. 518, 529. See also act of August 9, 1916, 39 Stat. 445, authorizing the deposit to the hospital fund of the proceeds of certain specified
townsite reserves.
⁶See instructions of April 14, 1930, 985739 "K", (Circ. 1216), and December 20, 1924. The act of March 3, 1919 changed certain provisions with respect to sales at public auction of lands opened under the terms of the 1906 act,
supra.⁷Cf. Oklahoma v. Texas, 258 U.S. 574, 601, pointing out that there was never any act subjecting the grazing reserve of the Kiowa, Comanche and Apache land to the mining laws. ⁸1538324 "K", May2, 1934.
⁹54 I.D. 559, 563.

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OPINIONS OF THE SOLICITOR

OCTOBER 9, 1945

thus not subject to sale or entry. However, by letter 1681210 "K", December 7, 1937, from the Commissioner of the General Land Office to the Commissioner of Indian Affairs, the contrary position was taken. This letter stated that the Indians had been compensated for lands opened to entry under the original cession agreement of 1892 and ratifying act of 1900, and that the provision of the act of June 30, 1913, supra, directing the deposit of "receipts" to the credit of the Kiowa Agency Hospital fund was a mere gratuity and not a part of said agreement." However, the Commissioner has continued in the view that these former Indian lands are subject to disposal only at public auction, referring to the act of June 30, 1913, supra, and informing those who inquired that the cost of a public sale for the few scattered tracts remaining would be prohibitive.¹⁰

It is clear that the lot which was formerly in the pasture reserve is affected by the withdrawal of September 19, 1934, so that it may not be disposed of at all until the question of restoration to tribal ownership is decided.^l1 In the interim with the consent of the Commissioner of Indian Affairs it is subject to inclusion within a grazing district by virtue of section 1 of the Taylor Act and to lease under section 15 of that act.12

The 1934 order of withdrawal speaks of an "intention to withdraw only land the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians . . ." The 1913 act, supra, provides for the allocation to the Indians, not of the entire proceeds of sale, but only the excess above $1.25 per acre. Whether land, part of the proceeds of whose sale may accrue to the benefit of the Indians, is as a matter of law encompassed within the language quoted from the order is a difficult question to decide.¹³

However, I do not believe it is necessary now to decide that question. Under section 3 of the Wheeler-Howard Act, supra, the Secretary has the power to withdraw this lot and any other lands in the same category. Consequently, the problem is really one of policy. If it is determined as a matter of policy that this or any other such land should be withdrawn, then an unambiguous order or orders of withdrawal should be promulgated. If a contrary determination is made, then the entire question of the status of this land with reference to the public land laws may be resubmitted for consideration by this office.

Hon. Robert M. LaFollette, Jr., has referred to this office your letter of October 6 in which you inquire whether certain lands in Wisconsin, which you state formerly belonged to the town of Sar-

¹⁰ See 1710334 "K", March 11, 1938. See also: 1776373 "K", January 29, 1946, taking same position but suggesting a section 15 lease under the Taylor Act. Also GLO 02705 "K", June 17, 1941, GLO 05519 "K', July 15, 1941, 1871631 "K", July 18, 1941, 1859676 "K", August 6, 1941, 1901812 "K", March 6, 1942, the last four stating that sale would be considered if there was a general demand therefore.
¹¹No order of restoration affecting the lands opened by the act of June 5, 1906, and specifically mentioned in the September 19, 1934, withdrawal, has been found. The balance of four townsites set aside -out of the common grazing lands under authority of another act affecting these tribes, the act of March 20, 1906 (34 Stat. 80). but actually disposed of to only a small extent, were restored to tribal ownership of the Kiowas, Comanches, and Apaches by the Secretary's order of January 17, 1936. These were originally the townsite of Isadore, 320 acres, S1/2, NE1/4, S1/2, NW1/4, N1/2, SE1/4, and N1/2, SW1/4, Sec. 24, T.2 S., R.16 W.; the townsite of Quanah, 320 acres, SW1/4, Sl/2 NW1/4, and W1/2 SE1/4,Sec. 36,
T. 3 S., R. 16 W.; the townsite of Ahpeatone, 320 acres, W1/2 Sec. 34, T. 2 S., R. 13 W.; and the townsite of Koonakazachey, 160 acres, Sl/2 NW1/4, S1/2 N1/2 NW1/4 and N1/2 N1/2 SW1/4 Sec. 13, T.5 N., R. 19 W. (See page 32 of printed schedule 8183-06-l with reference to the opening of the pasture and wood reserve lands in September 1906.) ¹²Act of June 28, 1934, 48 Stat. 1269, as amended June 26, 1936, 49 Stat. 1976; 43 U.S.C. sets. 315 et seq. See Solicitor's Opinion M. 31653, November 21, 1942, and M. 28726, September 14. 1936 (the latter being in the form of a letter from the First Assistant Secretary to the Commissioner of the General Land Office.)
¹³This excludes the "military, agency, school" and similar lands referred to at the beginning of this opinion, which qualify as "remaining surplus lands" of an Indian reservation within the meaning of section 3 of the Wheeler-Howard Act, supra, and were unquestionably included in the said withdrawal.

1356

DEPARTMENT OF THE INTERIOR

OCTOBER 31, 1945

tieme and on which you state the Stockbridge Indians now reside, are considered to be an Indian reservation. You state that you are now defending an Indian for having committed a serious crime on these lands and you question whether the courts of the State of Wisconsin have jurisdiction over the Indian.

Without more specific information than that contained in your letter, particularly as to the lands on which the crime is alleged to have been committed, it is impossible for this office to express any opinion as to the jurisdiction of the State courts over the Indian.

As you undoubtedly know, a State cannot enforce its criminal laws against Indians on Indian reservations. Jurisdiction over the so-called "Major Crimes" committed by Indians on Indian reservations was vested in the Federal courts by the act of March 3, 1885 (23 Stat. 385) as amended, 18 U.S.C. sec. 548. The locus of the alleged crime is therefore an important factor to be determined. Without having a description of the land on which the crime is alleged to have been committed, it is impossible to determine whether the land is within an Indian reservation.

The records available in Washington do not indicate that any lands were purchased from the town of Sartieme for the Stockbridge Indians. However, in 1936 certain lands in Shawano County, Wisconsin, were purchased from various individuals for the benefit of landless Indians in Wisconsin under, the authority of section 5 of the act of June 18, 1934 (48 Stat. 984), 25 U.S.C. sec. 465. That act authorizes the Secretary of the Interior to acquire land for the purpose of providing land for Indians. Title to the land purchased in 1936 was taken in the name of the United States in trust for the Stockbridge and Munsee band of Mohican Indians of Wisconsin. It is the opinion of this office that these lands constituted an Indian reservation even though the lands may not have been formerly designated as an Indian reservation. Minnesota v. Hitchcock, 185 U.S. 373, 389, 391 (1901); United States v. McGowan, 302 U.S. 535 (1937); 37 I.D. 295. Therefore, if the crime was committed on lands purchased for the Stockbridge Indians pursuant to the 1934 act, it is the opinion of this office that the State courts are without jurisdiction to try the Indian.

The deeds and other papers relating to the purchase of lands for the Stockbridge Indians are contained in the files of the office of Indian Affairs, Merchandise Mart Building, Chicago 54, Illinois. It is therefore suggested that you request that office to inform you whether the land on which the crime was committed is within the area purchased for the Stockbridge Indians.

If this office can be of further assistance to you in the matter, please feel free to write to us.

Mr. Frank Ohlerking,
Secretary-treasurer,
Fort Belknap Community Council,
Fort Belknap Agency,
Harlem, Montana.

By your letters of August 27 and October 4 you have asked me for an opinion as to whether the proceeds from the sale of restricted land held by an old age assistance client will have to be paid to the State for assistance theretofore received or if it can be used by the client while still alive.

My answer is that money received by an old age assistance client from the sale of his interests in restricted lands, does not have to be paid to the Welfare Board in settlement of assistance theretofore received, but may be used by the client while he is still alive.

You state that it is your plan to purchase some restricted lands from persons who are now old age assistance clients. So that you may be fully informed it is deemed advisable to give you a brief analysis of the Old Age Assistance situation in Montana, as it may have a bearing on your activities.

Sec. 325.53 of the Session Laws, and 1943 amendments, of the State of Montana, provide the eligibility requirements for old age assistance, and require, among other things, that the applicant must show that he "has not made an assignment or transfer of property for the purpose of rendering himself eligible for assistance under the act at any time within two years immediately prior to the filing of the application for assistance."
Sec. 325.60, Session Laws, supra, provides:

1357

OPINIONS OF THE SOLICITOR

OCTOBER 31, 1945

It must be borne in mind that the foregoing statutes are applicable to all white persons and Indians receiving old age assistance except that the restricted lands of Indians can not be subjected to lien for the purpose of satisfying any debt contracted prior to the issuance of the final patent in fee therefore and the old age assistance claims can be paid from income only on approval of the Commissioner or the Secretary. However, the Department has concluded that old age assistance claims should be administratively allowed and paid from funds subsequently accruing to the estate, to the end that Indians still living may receive the benefits of the Old Age Assistance Acts.

The following matters should be borne in mind in making purchases of land from old age assistance clients and from those who may soon be eligible for such assistance.

(1) If the seller is a recipient, the proposed purchase should be brought to the attention of the Welfare Board, so that they may adjust their allowances depending upon the amount of cash the recipient is to receive.

(2) If the seller will soon be eligible for old age assistance, care should be exercised .to see that he does not apply to the Welfare Board for assistance while he still retains funds received from the sale that can be used for his maintenance. In other words, he should not be deliberately placed in a position that will disqualify him for old age assistance.

Specific rules are laid down by the Welfare Board under which Indians and others, alike, qualify for old age assistance. Assuming that an Indian owns restricted lands from which he derives but little income and the average annual amount has been disclosed to the Welfare Board, an order would doubtless be made under which he would receive a specified allowance each month. He is thereupon properly on the Welfare rolls and he is legally entitled to the allowance. Assume that after he has received $300 in allowances, he sells his interests in all lands owned by him and receives $1,000 therefore. When this is reported to the Welfare Board, the future allowances would be canceled but none of the $1,000 would be applied on the advances theretofore made unless it appeared that he had received excess allowances by reason of some deceit he had practiced on the Board in obtaining the original allowance or in failing to report to them the receipt of moneys from other sources. Assuming that the recipient has dealt fairly with the Board, he would have the entire $1,000 for his own use, but he would get no further allowances from the Board until the $1,000 had been expended for his maintenance. He might then again become eligible for an allowance.

If at the time of his death he had not expended all of the $1,000 and an amount in excess of $500 remained, that portion in excess of $500 would be liable, under the Montana statute and the administrative policy of the Department, to the repayment of the allowances he had received prior to the time he received the $1,000 on the sale.

If the recipient of old age assistance sold only a part of his restricted lands, and was still the owner of some at the time of his death, the liability to the Welfare Board would depend upon its appraised value. If the value were less than $500 there would be no liability.

    The purchase of restricted lands from recipients of old age assistance is a very proper proceeding and should be to the benefit of the recipient, the Tribe and the Welfare Board. In consummating all purchases, however, it is imperative that the transaction be fully disclosed to the Welfare Board to the end that the recipient or seller is fully protected, and the Welfare Board is able to make appropriate changes as to future allowances.

                                                                                            WARNER W. GARDNER,
                                                                                                                                 Solicitor.

1358

DEPARTMENT OF THE INTERIOR

NOVEMBER 8, 1945

In recommending legislative relief in personal injury cases, the Department should be guided by the rules of negligence, contributory negligence, and master and servant prevailing in the jurisdiction where the injury occurred.

A guest invited to ride in an automobile is guilty of contributory negligence only if he knew of the driver's drunkenness at the time he entered the automobile.

In the absence of evidence to the contrary, it must be presumed that an aged Indian guest has no knowledge of the driver's drunkenness, particularly if the automobile is traveling on official business in an Indian reservation where possession of liquor is prohibited.

A Government-owned automobile continues to be "used for official service," within the meaning of a prior Interior Department Appropriation Act, even though an aged Indian passenger is picked up and carried over part of the route used by the Government driver on his official tour of duty.

Reference is made to the Secretary's memorandum dated May 21, as well as to your memorandum dated May 16, and to that of Assistant Commissioner McCaskill, dated August 8.

I find myself unable to agree that no legislative relief should be provided for the death of Gray Whiskers. The Indian Office has stated two reasons in support of the position which it has taken, namely: (1) that under Arizona law "the defense of contributory negligence would bar recovery by a guest who rode in a motor vehicle driven by a driver whom he knew or had reason to know was intoxicated," and (2) that the Interior Department Appropriation Act in force at the time required the driver to use the Government vehicle only for official purposes and that, under general principles of law, "an owner of a motor vehicle is only liable for wanton or wilful injuries sustained by another while riding by invitation of a servant in violation of his master's instructions."

As to the first ground, the only authority in Arizona is the case of Franco v. Vakares, 35 Ariz. 309,277 Pac. 812 (1929), cited in the memorandum of the Assistant Commissioner. In this case the administrator of a decedent's estate was barred from recovery for the death of the deceased. The court said:

As the quotation indicates, the court holds that only knowledge of the drunkenness of the driver constitutes contributory negligence on the part of the guest. This seems to be the general rule. See Babbitt, Motor Vehicle Law (4th ed., 1933), secs.1665, pp. 1187-I 189; 5 Am. Jur. (1936) Automobiles, sec. 483, p. 774; see also R. S. Rice, The Automobile Guest and the Rationale of Assumption of Risk, 27 Minn. L. Rev. 323, 349, 447 (1943); L. H. Gammon, The Automobile Guest, 17 Tenn. L. Rev. 452-459 (1942) ; White, The Liability of an Automobile Driver to a Non-paying Passenger, 20 Va. L. Rev. 326 (1934) .

This knowledge must have existed at the time when the guest entered the vehicle. Babbitt, Motor Vehicle Law (4th ed., 1933)) sec. 1665, p.1188. There is nothing in the record that indicates that Gray Whiskers knew of the Indian driver's drunkenness when he entered the car. He had a right to assume that the driver, a Government employee on official business on a reservation where possession of liquor is prohibited to whites as well as to Indians, was sober until the falsity of that

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OPINIONS OF THE SOLICITOR

NOVEMBER 8, 1945

assumption was conclusively demonstrated. As the burden of proof for the guest's knowledge of the driver's drunkenness rests in any event with the party who invokes the defense--i.e., the United States-it must be assumed in the absence of evidence, that Gray Whiskers was not aware of the driver's drunkenness when he entered the car.

As to the second ground, prior to the period of July 1, 1943, the Interior Department Appropriation Acts provided under item "Vehicles, Indian Service":

As the accident occurred on August 6, 1940, the quoted statutory limitation is applicable to the car in which Gray Whiskers was riding. It is true that one who rides in a vehicle in violation of a State or Federal statute cannot rely on the apparent authority of the servant-driver to take him along but is a trespasser to whom the owner of the vehicle is not liable for failure of his servant to exercise ordinary care. Hinnant v. Southern Railroad Co., 113 S.C. 19, 100 S.E. 709 (1919) ; see also Illinois C. R. Co. v. Messina, 240 U.S. 395 (1916), reversing 109 Miss. 143, 67 So. 963 (1915) ; Giles v. Missouri P. R. Co., 169 M O . App. 24, 154 S.W. 852 (1913) ; see also 14 A.L.R. 150, 62 A.L.R. 1169, 74 A.L.R. 163 ("Liability of master for in jury to one whom servant, in violation of instructions, permits to ride on vehicle"). However, this rule presupposes that a State or Federal statute has been violated. In view of the particular circumstances of this case, I do not think that the quoted provision of the Interior Department Appropriation Act has been violated. Whether a violation of this statute occurred depends on whether the vehicle was used for official service. For two reasons I believe that the vehicle was still used for official service after Gray Whiskers had entered it:

(1) Before Gray Whiskers was taken along, the driver of the vehicle was "using the vehicle for official service." The vehicle was still "used for official service" after Gray Whiskers had been invited to come along, as the driver continued to travel in order to dispose of his official duties.

(2) In view of the special relationship between the Office of Indian Affairs and Gray Whiskers, an Indian, the vehicle was "used for official service" when Gray Whiskers was invited or permitted to ride. The act of November 2, 1921 (42 Stat. 208, 25 U.S.C. sec. 13), provides as follows:

It would seem to me that the driver acted within the scope of the foregoing provision when he invited or permitted Gray Whiskers to ride. Bearing in mind that the reservation on which the accident took place is as large as Massachusetts, Connecticut and Rhode Island put together, and contains no means of public transportation, it would seem that allowing an aged Indian ward of the Government¹ to ride in a Government car is not only not illegal but is a highly commendable act.

I should appreciate it if you will reconsider your memorandum of May 16, 1945, in the light of the considerations set forth above.

Some time ago Mr. John J. Galbreath, of Browning, Montana, called attention to his proposed

_________________

¹See Cohen, Handbook of Federal Indian Law (1942). ch. 8, sec. 9. p. 170.

1360

DEPARTMENT OF THE INTERIOR

DECEMBER 3, 1945

conveyance of certain lands to the Blackfeet Tribe in exchange for an assignment of the lands to him by the tribe. He stated that his proposed warranty deed of the lands to the tribe was never approved by this Department because he was unable to pay for a title search and that the tax title, which is now outstanding against the land, is invalid be cause the land is tax-exempt.

Solicitor Harper's memorandum of August 14 pointed out that failure of the donor to finance a title search was not a valid reason for rejecting a gift of lands. This memorandum reserved the question of the validity of the tax lien on these lands for further consideration.

Information which has now been received indicates that some years ago Mr. Galbreath purchased a number of Indian allotments for which so-called "forced fee" patents had been issued, that he did not pay the taxes on these lands, and that in 1927 the lands, together with his own allotment and that of his wife, were advertised for delinquent taxes. Apparently the Alberta Stake of Zion purchased the land at a tax sale and, in 1929, the land was deeded to the Alberta Stake of Zion by Glacier County, Montana.

Mr. Galbreath evidently is under the impression that all taxes assessed against lands for which "forced fee" patents were issued are invalid. I think this impression is probably not correct. If the patentee accepts the fee patent, even though it was originally issued to him without his application, the courts have held that the land thereupon becomes taxable.

The act of February 26, 1927 (44 Stat. 1247, 25 U.S.C. sec. 352a), authorizes the Secretary of the Interior to cancel any fee patent issued to an Indian allottee without his application or consent before the end of the trust period, if the patentee has not mortgaged or sold any part of the land described in the patent. Upon cancellation of the fee simple patent, the land again becomes nontaxable. The act of February 21, 1931 (46 Stat.1295, 25 U.S.C. sec. 352b), provides that where patents in fee have been issued for Indian allotments during the trust period, without application by or consent of the patentee, and such patentee or his Indian heirs have sold a part of the lands included in the patent or have mortgaged the lands or any part :thereof and such mortgages have been satisfied, such lands remaining undisposed of and without encumbrance by the patentee may be given a trust patent status. However, neither of these acts apply where the lands have been sold for unpaid taxes assessed after the date of a deed executed by the patentee where the period of redemption from the tax sale has expired.

By the act of June 11, 1940 (54 Stat. 298) as amended by the act of February 10, 1942 (56 Stat.87, 25 U.S.C. sec. 352c), the Secretary of the Interior is authorized to reimburse Indian allottees for all taxes paid on so much of their allotted lands as have been patented in fee prior to the expiration of the trust period without application by or consent of patentee, but if the Indian allottee has by his own act accepted such patent, no reimbursement may be made for taxes paid subsequent to acceptance of the patent.

Since no facts have been presented to indicate that the sale of these allotments was not voluntary, I do not believe that this Department would at this time be justified in taking any action to set aside the tax liens.

It will be appreciated if the views embodied in this memorandum and in Solicitor Harper's memorandum of August 14 are brought to the attention of Mr. Galbreath.

Executive Order No. 9613 (10 F.R. 11789) authorized the withdrawal from sale of all public lands and all lands heretofore acquired by the United States, which contain deposits of radio-active mineral substances. Equitable title to surplus Indian lands is vested in :the tribe and the United State merely acts as trustee for the Indians.

Executive Order No. 9613 is without application to surplus Indian lands.

Reference is made to your memorandum of November 2 for the Secretary, concerning the applicability of Executive Order No. 9613, dated September 13, 1945, to the SE1/4 Sec. 13, T. 17 N., R. 17 E., B.H.M., South Dakota, which is proposed to be restored to tribal ownership prior to issuance of a patent in fee to Bert McCoy, Jr. Your reference number is 2032468 "K".

The land is a part of the surplus lands of the Cheyenne River Sioux Reservation in South Dakota and was opened to sale, entry or any other form of disposal under the public land laws by the act of May 29, 1908 (35 Stat. 460). The Indian Reorganization Act of June 18, 1934 (48 Stat. 984)

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authorizes the Secretary to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened or authorized to be opened to sale provided that valid rights or claims of any persons to any lands so withdrawn are not affected and also provided that no reclamation project has been authorized within such lands.

The above-described surplus lands of the Cheyenne River Sioux Reservation were temporarily withdrawn from all forms of sale, disposal or leasing by order of the Secretary dated September 19, 1934, upon the recommendation of the Commissioner of Indian Affairs (54 I.D. 559, 563). The purpose of the withdrawal was to enable the Bureau of Indian Affairs to give appropriate consideration to the matter of permanent restoration of lands to tribal ownership as authorized by the act of June 18, 1934, supra.

These undisposed of lands of this class remain the property of the Indians until disposed of according to law. Cf. Ash Sheep Company v. United States, 252 U.S. 159. When sold, the proceeds of the sale are required to be deposited in the Treasury to the credit of the Indian tribe. Act of May 29, 1908, supra. The United States merely acts as trustee for the Indians. Therefore, the equitable title to the lands is vested in the Indians, subject to the trusteeship of the United States, as provided by laws enacted by the Congress.

Executive Order No. 9613 (10 F.R. 11789) authorized the withdrawal from sale and all other forms of disposal under the public land laws, including the mining laws, of all public lands of the United States, including Alaska, which contain deposits of radio-active mineral substances and reserves such lands for the use of the United States. Such withdrawal is, of course, subject to valid existing rights. The order also applies to all lands in the United States, its Territories or possessions, "heretofore acquired by the United States" which contain deposits of radio-active mineral substances and requires that all leases, licenses and other authorizations thereafter granted to occupy or use such lands to reserve to the United States the right at any time to enter upon such lands and mine and remove such mineral substances. The order is made applicable to all lands .thereafter acquired by the United States provided that any such reservation will not interfere with the use of the lands established or indicated by any act of Congress.

        Since the lands under consideration are surplus lands of an Indian tribe with respect to which the United States merely acts as trustee, Executive Order No. 9613, in my opinion, is without application. Unless there are reasons that would prevent the issuance of a patent in fee to Bert McCoy, Jr., as recommended, after restoration of the land to tribal ownership, such patent in fee should be is sued without regard to Executive Order No. 9613.

                                                                                            WARNER W. GARDNER,
                                                                                                                                 Solicitor.

With reference to your telephonic inquiry concerning the meaning and effect of the comments made in paragraph 12 of the letter of the Chief of Engineers, United States Army, dated December 31, 1943 (House Document No. 475, 78th Cong.,2d sess., p. 4), concerning arrangements to be made where Indian lands are inundated by proposed reservoirs, there are two observations that I should like to submit:

1. As a legal matter I should think it very doubtful whether a statement by the Chief of Engineers of the United States Army in a letter to the Chairman of the House Committee on Flood Control would be considered a limitation upon any powers of condemnation which may be vested in the War Department by prior legislation, such as the act of March 3, 1901 (31 Stat. 1058, 1084; 25 U.S.C. sec. 357) authorizing the condemnation of Indian allotments with cash payment of damages.

2. Even if the statement in question should be construed as having the force of law, it purports in terms not to limit any legal authority heretofore vested in Federal agencies to carry out condemnation, but rather to spell out authority to handle land transactions with Indians on a basis of agreement and subject to the approval of the Secretary of the Interior. I do not doubt that such a method of procedure is highly desirable. Unfortunately, the language of the statement in question, while purporting to authorize future action on such a basis, does not in terms limit action to any such basis. It thus fails to accord to the Indians any assurance that they will be consulted with regard to the disposition of their lands.

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    I trust that the foregoing observations appropriately answer your inquiry. Because of the pressure of time these observations have not been submitted to the scrutiny of the Interior Department and they are therefore to be considered merely as the expressions of my own opinion.

                                                                                                        FELIX S. COHEN,
                                                                                                                  Acting Solicitor.

The act imposes a mandatory duty upon the Secretary to set aside approximately one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations.

Although the act in terms permits the Secretary to set aside one or more areas for Indian use, it also makes separate provision for two different tribes of Indians. The Secretary is therefore required to allocate at least one area to each of the two tribes. While he may also set aside more than two areas, his power is limited by a rule of reason which would prevent him from setting aside so many areas that he would bring about the very evil which the statute was designed to prevent. The object of the statute was, so to speak, to secure a consolidation of the areas of Indian interest.

The interest of the Colville and Spokane Indians in one-quarter of the reservoir area is not joint but several. In view of the failure of the statute to prescribe a formula for dividing between the two tribes the 25 percent of the reservoir area to be set aside for both of them, the Secretary may make the apportionment in such a manner as will be equitable under all the circumstances. However, the ratio that was employed in determining the percentage of the entire reservoir area that was to be set aside for both tribes could reasonably be applied in determining the share of each tribe. This ratio was obtained by comparing the length of the original river shore line of Indian lands acquired or to be acquired for the reservoir with the total original shore line of the river in the reservoir area. The result would also be in harmony with the relative populations of the Colville and Spokane Indian Reservations.

While the Secretary has discretion in the location of the Indian areas, his discretion in this respect is limited by the requirement that the areas set aside for the Indians be readily accessible to them. The Indian area must therefore be located in responsible proximity to the Indian lands, namely, adjacent to such lands. The application of this rule would require the location of the Indian areas along the former shoreline of Indian lands. However, in view of the scope of the Secretary's discretion he is under no duty to locate the Indian areas within the exterior boundaries of the reservations as they existed prior to the construction of the reservoir.

The Secretary is not confined to setting aside one-quarter of the water surface of the reservoir for the use of the Indians. He may include freeboard areas in the areas set aside for the Indians because (a) the Indians are given hunting rights which can also be enjoyed on the shorelands; (b) the "entire" reservoir area is made the basis for calculating the Indians' share; (c) the rights of access to the Indian reservoir areas are granted only "when necessary."

The special rights given to the Indians under the act are expressly limited to hunting, fishing and boating. These rights are not enlarged by the "access" provision of the act since a right of access is not a separate and independent right but a means of enjoying property rights or special rights otherwise possessed. However, the rights of access are not limited to mere rights of ingress and egress but are commensurate with the purposes to which the portions of the reservoir to be set aside for the Indians are to be put.

No special rights inure to the Indians from any other source. By virtue of the act of July 1, 1892(27 Stat. 62), the southern and eastern boundary of the Colville Reservation extends to the middle of the channel of the Columbia River. By

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the Executive order of January 18, 1881, the bed of the Spokane River to the south bank thereof was included in the Spokane Indian Reservation. Even if it be assumed that the titles to the beds of the Columbia and Spokane Rivers were not taken and extinguished under the act of June 29, 1940, it cannot be made a source of additional special rights for the Indians. The special rights accorded to the Indians by the act are plainly denominated lieu rights. They are therefore to be deemed an exclusive substitute for whatever rights the Indians may have enjoyed prior to the enactment of the statute by reason of their rights of ownership.

However, the Indians are not confined to those parts of the reservoir set aside for their "paramount" use. In such areas of the reservoir they will enjoy special rights. But in the reservoir as a whole, in so far as they may have access to it, they may enjoy such privileges as are accorded to the general public in navigable waters, which include those of hunting and fishing, floating logs and navigation. The Indians may also take advantage of section 10 of the act of August 4, 1939 (43 U.S.C. sec. 387), which gives the Secretary power to grant leases, licenses, easements or rights-of-way over lands acquired and administered under the Federal reclamation laws.

Since the act declares that the areas set aside for the Indians shall be for their "paramount" use for hunting, fishing and boating, such use is neither exclusive of the same use by other persons, nor exclusive of any other use by other persons. However, the Secretary is under a duty to maintain the paramount character of the Indian use, and if he finds that this can be accomplished only by according the Indians exclusive rights in the areas set aside for them, he is empowered to do so. He may make such rights exclusive in all parts of the Indian areas, or at particular locations, or at particular times, or give greater freedom to the Indians in making use of the reservoir than is permitted to others.

Since the rights of the Indians will not necessarily be exclusive, there is no present need to decide whether the Indians may license others to enjoy their rights.

Although the Bureau of Reclamation, the Bureau of Indian Affairs, the National Park Service, and the Fish and Wildlife Service are all interested in the Columbia River Reservoir area, its administration is vested in the Secretary of the Interior rather than in any particular bureau, and the Secretary by virtue of section 161 of the Revised Statutes (now) 5 U.S.C. sec. 22 may select any one or more of the interested agencies to administer any part of the reservoir area.

There is no good reason to doubt the constitutionality of the provision of the act which gives the Secretary of the Interior authority to prescribe reasonable regulations for the protection and conservation of fish and wildlife in the areas set aside for Indian use. The constitutionality of the act is supported by the property interests of the United States in the reservoir area; the power of Congress to control the navigable waters of the United States; and the powers of Congress over Indians and Indian affairs.

GARDNER, Solicitor:

Memorandum for Assistant Secretary Chapman:

This is in response to your memorandum of January 25, 1944, in which you request that this office consider the legal problems involved in determining the rights of the Indians of the Colville and Spokane Indian Reservations in the Columbia River Reservoir created by the construction of the Grand Coulee Dam. The rights in question arise under the second paragraph of section 1 of the act of June 29, 1940 (54 Stat. 703). I have considered in this connection the memoranda of the Office of Indian Affairs, dated December 30, 1943; of the Assistant to the Secretary in Charge of Land Utilization, dated January 7, 1944; and of the Assistant Chief Counsel of the Bureau of Reclamation dated July 4, 1944; as well as other documents in the files of the interested agencies.

You apparently request that I consider all the legal problems that can immediately be anticipated as arising under the act so that you may be advised concerning the permissible scope of administra-

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tive action. This panoramic assignment, going beyond the specific inquiry to which my opinions are ordinarily addressed, seems at least necessary in part because the agencies interested in the administration of the Columbia River Reservoir area have been unable to agree upon a plan for the development of the area.¹

The statute imposes a mandatory duty upon the Secretary to set aside "approximately² one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations. . . ."³ But it does not, at least in specific terms, supply much guidance to the Secretary in carrying out this duty. In order to extract the full implications of the statutory direction, it is necessary to consider first some aspects of the history of the Colville and Spokane Indians, and the more immediate events leading to the passage of the act of June 29, 1940.

The Colville Reservation was established by an Executive order of President Grant, dated July 2, 1872, which set aside "the country bounded on the east and south by the Columbia River, on the west by the Okanagon River, and on the north by the British possessions." Pursuant to the act of August 19, 1899. (26 Stat. 336, 355), an agreement was made with the Colville Indians on May 9, 1891, for the cession of the northern half of their reservation for the sum of $1,500,000. Congress, however, refused to ratify this agreement. The reservation was thereafter diminished, subject to the allotment in severalty of the Indians already residing on the vacated portion, by the act of July 1, 1892(27 Stat. 62), which described the portion to be vacated as follows:

Section 8 of this act provided that nothing therein should be construed as recognizing the title or ownership of the Indians in any part of the reservation. However, the purpose of this provision appears to have been merely to prevent the assertion of any rights against the United States by the Indians. As the Supreme Court pointed out in United States v. Pelican, 232 U.S. 442, 445, the reservation was repeatedly recognized in subsequent acts of Congress, and was therefore "a legally constituted reservation." Thus the act of March 22, 1906 (34 Stat. 80), made provision for allotments on the diminished reservation and authorized the sale and disposition of the surplus unallotted lands subject to the payment of the proceeds of the sales to the Indians. Indeed, by the act of June 21, 1906 (34 Stat. 325, 377), Congress appropriated the $1,500,000 contemplated by the act of May 9, 1891, in payment of the lands restored to the public domain by the act of 1892.

The Executive order of 1872 had set aside the Reservation not only for the Colville Indians but "for such other Indians as the Department of The Interior may see fit to locate thereon." Under an agreement of July 7, 1883, ratified by the act of July 4, 1884 (23 Stat. 76, 79), which was made with Chief Moses and other Indians of the Columbia and Colville Reservations, the Columbia River Indians were moved to the Colville Reservation. See United States v. Moore, 161 Fed. 513 (C.C.A. 9th). The act of March 8, 1906 (34 Stat. 55), provided for the issuance of patents to lands allotted under the Moses agreement of July 7, 1883. Chief Joseph and his band of Nez Perce Indians were also settled on the Colville Reservation.

The Spokane Reservation was established by an Executive order of President Hayes, dated January 18, 1881, with boundaries as follows:

¹A Memorandum of Agreement for the administration of the reservoir area was signed on September 26, 1941, by representatives of the Colville Indian Agency, the Colville Business Council, the National Park Service. and the Bureau of Reclamation but it received the approval of neither the heads of the interested agencies nor of the Department.²Hereafter when reference is made to "one quarter of the entire reservoir area" or to "one quarter of the reservoir area," the statement should be understood in an approximate sense.
³The language of the act is mandatory. It makes use of the imperative "shall," and nothing in the legislative history of the act casts any doubt upon the mandatory character of the 1anguage.

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The act of June 19, 1902 (32 Stat. 744), provided for the allotment of the Spokane Reservation and the opening of the unallotted lands to exploration, location, occupation, and purchase under the mining laws. The act of May 29, 1968 (35 Stat. 458), also provided for allotments, and the opening of the surplus unallotted lands to settlement and entry under the homestead laws. Under an act of March 3, 1905 (33 Stat. 1096), the waters of the Spokane River where it formed the southern boundary of the Spokane Reservation had been made subject to non-Indian appropriation pursuant to the laws of the State of Michigan, and the Secretary of the Interior had been authorized to grant allotted and unallotted lands to appropriators when necessary "for the beneficial use of said waters."

It should be noted that the boundaries of the Colville Reservation extend to the middle of the bed of the Columbia River. The Department so held in the case of J. H. Seupelt, decided May 29, 1914 (43 L.D. 267).⁴ It was pointed out in the opinion that while the language of the Executive order of 1872 was not clear, all doubt had been removed by the act of 1892 which ran the boundary from a point "in the middle of the channel of the Columbia River" and referred to the western boundary "in the Okanagon River." This conclusion was supported also by the desirability of protecting "the fishing interests of the Indians, as it is well known that the Indians secure a great deal of their subsistence from the fish obtained from the Columbia River." While the disposition of the beds of navigable waters during the territorial period are not favored,⁵ the Federal Government has ample power to make such dispositions, and the intention to do so may be inferred in the creation of Indian reservations during the territorial period. The inclusion of tide lands or the beds of navigable waters in Indian reservations has been upheld in the years since the departmental decision in a considerable number of cases.⁶ The question in each case is one of intent.

It has also been held in United States v. Big Bend Transit Co., 42 F. Supp. 459 (D.C.E.D.Wash.), that the bed of the Spokane River is part of the Spokane Indian Reservation. The court declared in this case:

Fishing was originally a vital part of the economy of the Colville and Spokane Indians, especially salmon fishing, although they also did some farming. The Spokane Indians had several fisheries along the Spokane River. But the great fishery for all the Indians of this region was at Kettle Falls, which is considerably north of the present northern boundary of the Colville Reservation, and even further north of the Spokane Reservation. Fishing by the Indians at Kettle Falls was a right enjoyed by them in common before the establishment of the reservations.⁷ The situation was thus very similar to that which later obtained farther west along the reaches of the Columbia River in Oregon where the Indians "likened the river to a great table where all the Indians came to partake."⁸ The Indians have never exercised exclusive fishing rights over the whole of the Columbia River. The ownership of the Colville Indians along most of the river where it bordered their reservation was only to the thread of the stream. Where the Columbia River flowed through the Colville and Spokane Reservations, so as to form a common border of the two reservations and to give them complete ownership of the bed of the river, there appear to have been no fishing locations. In fact fishing was always at particular sites rather than along the whole river, and this was true also on the tributaries of the river. The San Poil River

__________________

⁴In Port of Seattle v. Oregon & Washington Ry. Co., 255 U.S. 56, and Mason Co. v. Tax Commission, 302 U.S. 186. the Court held that title to the bed of the Columbia River was in the State of Washington but the cases involved points in the river where no Indian rights existed.⁵See Shively v. Bowlby, 152 U.S. 1, and United States v. Hott State Bank, 270 U.S. 49.
⁶See Alaska Pacific Fisheries v. United States, 248 U.S. 78: United States v. Romaine, 255 Fed., 253 (C.C.A. 9th); United States v. Stotts, 49 F. (2d) 619 (D.C.W.D. Wash.); Montana Power Co. v. Rochester, 127 F. (2d) 189 (C.C.A. 9th); United States v. Mile Moore, No. 554 (D.C.W.D. Wash.), decided September 26. 1945.
⁷See Report of the Commissioner of Indian Affairs for 1870, pp. 23-27. On the early history of the Colville and Spokane Indians, see also Leslie Spier, Tribal Distribution in Washington (General Series in Anthropology, No. 3.
⁸See Seufert Bros. Co. v . United States, 249 U.S. 194, 197.

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is the only important fishing stream that flows through the Colville Reservation.

Fishing is now of little importance in the Indian economy, the salmon having largely disappeared as the result of extensive fish trap operations else where on the river.⁹ The construction of the Grand Coulee Dam has been the final step in destroying the salmon fishing. The Columbia River reservoir will have to be restocked with other fish.¹⁰ On December 2, 1939, the Colville Business Council adopted a resolution calling on the Bureau of Reclamation to compensate the tribe for the destruction of its fishing sites on the San Poil River and at Kettle Falls.

Neither the Colville nor Spokane Reservations were ever very suitable for agriculture. An Indian agent called the reservation established for the Colville Indians by the Executive order of 1872 "mostly a conglomeration of bare, rocky mountains," and another declared, "there is rock enough on the reservation to supply the world."¹¹

The present economy of the Colville and Spokane Reservations rests primarily upon the grazing of livestock, and the exploitation of the great timber resources of the two reservations. Of the 3.5 billion feet of lumber on the two reservations, approximately 2 billion feet are located on lands tributary to the Columbia River Reservoir. Some of the range units adjoin the Columbia River Reservoir, and the Indians are to a considerable extent dependent upon its water for their livestock.¹²

The construction of the Grand Coulee Dam was authorized by section 2 of the Rivers and Harbors Act of August 30, 1935. It was estimated that the Columbia Basin project as a whole would cost $389,000,000.¹³ The primary purposes of the project are irrigation, power development and the improvement of navigation¹⁴ but it was contemplated also that the reservoir area would afford great recreational opportunities. The Columbia River Reservoir,¹⁵which reaches to the Canadian border, is about 150 miles long, and the total area of the reservoir is approximately 86,000 acres, of which about 5,000 acres are shorelands (at high flood level) .¹⁶ Section 1 of the act of June 29, 1940, authorized the acquisition of Indian tribal and allotted lands up to a maximum elevation of 1,310 feet above sea level. The maximum water elevation of the reservoir is 1,290 feet, thus leaving a free board margin of 20 feet.

It is important to realize that the acquisition of Indian allotted lands for the reservoir began long in advance of the passage of the act of June 29, 1940, and that some of these lands were inundated prior to their acquisition.¹⁷ The plan at this time was to reserve easements to the Indian owners which would enable them to make use of the reservoir without any limitation upon these uses, and therefore the riparian factor of severance damage was not taken into consideration in appraising the Indian lands, either at this time or subsequently, the lands of Indians and non-Indians alike being appraised upon the same basis.¹⁸ The Indian allotted lands were acquired under memoranda of understanding between the Indian Office and the Bureau of Reclamation approved by the Department on April 6, 1939, and June 14, 1940.¹⁹ Paragraph 7 of the latter memorandum of understanding provided: "Nothing in this agreement shall affect existing hunting and fishing rights of the Indians in the Columbia River Reservoir area intended to be satisfied by the enactment into law of the provisions of the second paragraph of section 1 of S. 3766 and H.R. 9445 (76th Cong, 3d sess.)." Most of the lands along the river acquired for the

⁹See Hearings before a Subcommittee of the House Committee on Indian Affairs on HR. 9270 (April 6, 1926) on the claims of the Colville Indians. The Indians claimed damages of $1,000,000 for the loss of their fishing rights. ¹⁰See memorandum of March 23. 1940, from Commissioner of Reclamation to the Secretary, and U.S. Department of the Interior, Bureau of Reclamation, Final Report of the Committee for the Study of Problem No. 26, Which sets forth a plan for the recreational development of the reservoir area.
¹¹See Serial No. 1601, 43d Cong., 1st sess., H. Ex. Dec. 1, pp. 663-65.
¹²See Indian Office memorandum for the Secretary dated December 30, 1943, p. 2. ¹³See House Hearings on Interior Department Appropriation Bill for 1938, p. 1549.
¹⁴See section 2 of the Rivers and Harbors Act of August 30, 1935 (49 Stat. 1028, 1039).
¹⁵The Columbia River Reservoir is formed not only from the Columbia River but also from its tributaries, including the Spokane River which formed the southern boundary of the Spokane Reservation.
¹⁶See Indian Office memorandum for the Secretary dated December 30, 1943, p. 1. The "shorelands" are the uninundated lands above the maximum water elevation of the reservoir. They constitute the so-called freeboard area. See first paragraph of section 2 (e) , infra.
¹⁷See letter of September 19, 1938, from F. A. Banks, construction engineer, to the Commissioner of Reclamation which states that "several tracts of Indian tribal and allotted land will be partially or entirely flooded during the coming year."
¹⁸See memorandum from Acting Supervising Engineer to the Commissioner of Reclamation dated May 1, 1940, and teletype message from the Office of the Construction Engineer at Grand Coulee to the Commissioner of Reclamation dated September 25, 1944.
¹⁹There was a supplemental memorandum of understanding of November 7, 1939, with reference to two tracts. The memoranda of understanding recite that some of the lands had already been inundated.

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reservoir were allotted rather than tribal lands,²⁰and among the latter were also some ceded lands.²¹Only a small percentage of reservation lands had, however, been allotted.²² Some of the allotted lands acquired for the reservoir were located in the portion of the Colville Reservation vacated and restored to the public domain by the act of July 1, 1892. After the passage of the act of June 29, 1940, the acquisition of Indian lands under the memoranda of understanding was abandoned and regulations governing the acquisition of Indian lands under the act were approved by the Department on September 3, 1940.

My review of the background of the act of June 29, 1940, would be incomplete without note of the fundamental change of plan that occurred in the course of the consideration of the legislation. Originally the bill drafted in the Department had merely made the grants of title under the act "subject to the reservation for the Indians of an easement to use such lands for hunting, fishing, boating and other purposes." This type of provision had a precedent in the act of May 9, 1924 (43 Stat. 117) , relating to the American Falls Reservoir which gave similar rights to the Fort Hall Indians.²³

However, the Bureau of Reclamation although it had originally accepted a solution of the problem along these lines, later objected to the reservation of easements over the former Indian lands along the Columbia River which did not lie in a contiguous block but were scattered all along the river from Grand Coulee to the Canadian border. Such easements would have given the Indians rights in all parts of the reservoir area, and it was feared that this would interfere with the proper development of its recreational possibilities. The Bureau of Reclamation was also opposed to any grant of easements for unspecified purposes.²⁴ It proposed therefore that the Indian be given "paramount" rights of use; that these rights be limited to hunting, fishing and boating; and that they be confined to not more than approximately one quarter of the entire reservoir area. This figure was derived from the ratio of the original river shore line of Indian lands acquired or to be acquired for the reservoir to the total original shore line of the river in the reservoir area. This idea was first broached in a memorandum of March 23, 1940, from the Commissioner of Reclamation to the Secretary. It was suggested in this memorandum that the following language be included in the bill:

²⁰The following figures are given in the table contained in the letter from Acting Commissioner W. Barton Greenwood to the Secretary dated September 13, 1939.
    Colville Reservation
        Tribal . . . . . . . . . 2,293.3 acres
        Allotted . . . . . . .13,034.7 acres
    Spokane Reservation
        Tribal . . . . . . . . . 1,105.l acres
        Allotted . . . . . . . 2,481.8 acres

There is some discrepancy between these figures and those given in a teletype message from the Office of the Construction Engineer at Grand Coulee to the Commissioner of Reclamation dated September 25, 1944. This states that in all 3,441.94 acres of tribal land and 15,032.89 acres of allotted land were acquired.
²¹See memorandum from the Assistant Commissioner of Indian Affairs to Commissioner of Reclamation dated April 15, 1941.
²²The Statistical Supplement to the Annual Report of the Commissioner of Indian Affairs for fiscal year ended June 30, 1944, indicates that of 1,313,309 acres of land on Colville Reservation 342,193 are allotted, and that of 137,699 acres of land on Spokane Reservation 47,988 are allotted.
²³The grant under this act was made "subject to the reservation of an easement to the Fort Hall Indians to use the said lands for grazing, hunting, fishing, and gathering of wood. and so forth, the dame way as obtained prior to this easement, in so far as such uses shall not interfere with the use of said lands for reservoir purposes."
²⁴ See memorandum from the Commissioner of the Bureau of Reclamation to the Commissioner of Indian Affairs dated February 20. 1940.

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In a memorandum of April 5, 1940, the Assistant Commissioner of Indian Affairs made the following comment upon this proposal:

The Assistant Commissioner of Indian Affairs proposed at the same time that the bill be redrafted as follows:

In a memorandum of April 10, 1940, from the Commissioner of Reclamation to the Secretary, it was set forth that the Office of Indian Affairs and the Bureau of Reclamation had agreed upon the draft of a bill. This draft is identical with the language of the act of June 29, 1940. The comment made by the Commissioner of Reclamation upon this draft in the memorandum is in substance the same as that made by the Department in its report on the bill to Congress on May 28, 1940, as follows:²⁵

2. The Nature and Extent of the Reservoir Area to be Set Aside.
The act directs the Secretary to set aside "approximately one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations." Five questions need to be considered in determining the nature and extent of this area: (a) Must definite areas be set aside; (b) how many areas may be set aside; (c) must separate areas be set aside for each of the tribes; (d) must the areas set aside be adjacent to reservation lands and within the exterior boundaries of the reservations as they existed prior to the construction of the reservoir; (e) may part of the freeboard area be included in the area set aside.

(a) The Setting Aside of the Areas.
When the act was being considered, the desirability of setting aside a definite area for the Indians was stressed. Since then the practicality of dividing the reservoir into Indian and non-Indian zones has been seriously questioned not only by people in the Indian Office but also in the Bureau of Reclamation. Indeed the Indian Office in its memorandum of December 30, 1943, argued that the Indians be given the privileges contemplated by the act "without attempting to delimit certain parts of the reservoir for their use." Such a scheme would, however, have to be rejected as a legal possibility under the act because, unless the area

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²⁵The departmental report is printed in Report No. 2350, H.R., 76th Cong., 3d sess., p. 2.

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or areas were fixed and capable of definite description, no area or areas would have been "set aside," as is commanded by the statute.

(b) The Number of Areas.
The language of the act in terms empowers the Secretary to set aside one or more areas for the use of the Indians provided all the areas set aside do not exceed one-quarter of the reservoir area. While the second paragraph of section 1 of the act speaks of setting aside one-quarter of the "entire reservoir area" in the singular, the reference here is to the total reservoir area from which the Indian area or areas are to be selected. The intention of the statute seems to be plain from the last proviso to this paragraph, which in directing the Secretary to grant the Indians reasonable right of access speaks of "rights of access to such area or areas."²⁶

On the other hand, the statute also makes provision for rights of use for two separate tribes of Indians. Since I conclude in the next section that the interest of the Indians in one-quarter of the reservoir area is not joint but several, the Secretary would be required to allocate at least one area to each of the two tribes. This conclusion is not inconsistent, however, with the language of the statute, which permits the Secretary to set aside one or more areas. The Secretary could set aside areas for the two tribes which would be contiguous, or to put it in another way, the Secretary could subdivide a single area into two parts so that each tribe would be allocated a separate area. The setting aside of a single contiguous area so subdivided would be with the language of the statute in every respect.

    I hold therefore that the Secretary may set aside one or more areas for Indian use. However, the rule of reason must be taken to limit his power in the latter respect. He may not set aside so many areas that he would bring about the very evil which the statute was designed to prevent. The object of the statute was, so to speak, to secure a consolidation of the areas of Indian interest.

    (c) The Nature of the Interests of the Tribes.
    Although the Secretary may set aside one or more areas, the question remains whether he must set aside separate areas for the Colville and Spokane Indians. Each area set aside could be for the joint or several use of the Colville and Spokane Indians. If the setting aside of separate areas had been intended, it would doubtless have been more natural to direct the Secretary to set aside areas for the Colville and Spokane Indians "respectively," and to have provided a formula for dividing between the two tribes the 25 percent of the reservoir area to be set aside for both of them. But this sort of argument would prove altogether too much in the case of a statute that is as ambiguous as the act of June 29, 1940.

    In a sense, moreover, the statute does impliedly make the necessary provisions. If more than one area may be set aside, then it is more reasonable to suppose that separate areas should be set aside for each tribe. The ratio that was employed in determining the percentage of the entire reservoir area that was to be set aside for both tribes could reasonably be applied in determining the share of each. This ratio would give approximately one quarter of the Indian areas of the reservoir to the Spokane Tribe.²⁷ The population of the Spokane Indian Reservation is also about one-quarter of that of the Colville Indian Reservation.²⁸The total land areas of the two reservations are quite disproportionate, the Colville Reservation being at least ten times as large as the Spokane Reservation,²⁹ but this factor would seem to be of no great importance. While I do not hold, in view of the silence of the statute in this respect, that the Secretary is bound to adopt any particular formula, their availability facilitates any apportionment by the Secretary of the total Indian area in such a manner as would be equitable under all the circumstances.

It should be remembered that the Colville and Spokane Indians are separate tribal groups with separate reservations and that they had separate rights in the lands of the reservations and in the waters flowing through or bordering upon their reservations, although they did have a common border on part of the Columbia River. In the absence of a plain indication in the statute that the rights to be accorded were to be enjoyed in common, a construction should not be indulged which might lead to complexities and difficulties in the relations between the two tribes. If the Secretary were required by the statute to set aside a single area, it would complicate the problem of making the

²⁶ I consider it unimportant that in two communications the Commissioner of Reclamation spoke of the location or use of the "area" in the singular, as did the Department in its final report to Congress under date of May 28, 1940, and in commenting on the enrolled bill on June 26, 1940. See memorandum from the Commissioner of Reclamation to the Secretary of the Interior, dated April 10, 1940; letter from the Commissioner of Reclamation to Congressman Charles N. Leavy; dated April 16, 1940.
²⁷See supra, footnote 20.
²⁸In the Statistical Supplement to the Annual Report of the Commissioner of Indian Affairs, p. 12, the population of the Colville Reservation is given as 3,501, and that of the Spokane Reservation as 925.
²⁹In the same Statistical Supplement, p. 21, the total area of the Colville Reservation is given as 1,175,700 acres, and that of the Spokane Reservation as 137,609.

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area accessible to both tribes.³⁰ Indeed, the Secretary might select an area that would lie at least partly within the exterior boundaries of the Colville Reservation. One of the tributaries of the Columbia River, the San Poil River, which forms part of the reservoir system, flows entirely through the Colville Reservation. I hold therefore that the Secretary is empowered to allocate at least one area to each of the two tribes, and that the implications of the statutory provisions are best realized if this be done.

(d) The Location of the Areas.
The answer to this question is not as simple as it seems. The statute does not say directly that the areas to be set aside by the Secretary must be adjacent to reservation lands or that the areas must be within the exterior boundaries of the respective reservations as they existed prior to the construction of the reservoir. The legislative history of the statute shows that its purpose was to give the Secretary discretion in determining the location of the reservoir area in which the Indians were to be given special rights. Thus the departmental report states:

However, the discretion of the Secretary is not unlimited, and must be exercised in a reasonable manner. The areas to be set aside are for the use of the Indians, and they must be put in a position to make use of them. The departmental report itself recognizes that the Indian use is to be considered in locating the areas to be set aside. The Columbia River Reservoir runs all the way to the Canadian border from the northern boundaries of the Colville and Spokane Reservations. To locate the Indian area or areas near the Canadian border, for example, would be to make them practically inaccessible to the Indians. The act itself grants the Indians access across project lands to the areas set aside for them but this right of access might be rendered wholly nugatory by the location of these areas at places which could not be reached from the Colville and Spokane Indian Reservations. The Indians would then need rights of access also across considerable areas of privately owned lands, which they could acquire only by purchase. To make the rights of access real the Indian areas of the reservoir must therefore be located in reasonable proximity to the reservations, which is to say that they must be adjacent to or near the reservation lands. Other things being equal, this means that they should be located along the former shoreline of the Indian lands.

In considering the location of the reservoir areas to be set aside, I have spoken throughout of "reservation lands" rather than of Indian lands. The record shows, however, that a number of scattered off-the-reservation allotments lie far to the north of the boundaries of the Colville Reservation along the Kettle and Columbia Rivers. I have no information concerning whether these allottees still maintained their affiliations with the Colville Tribe at the time their lands were acquired, nor do I know where or whether they have been relocated. In view of the fact that these allottees could never have had any special rights in the Kettle and Columbia Rivers at the points at which they were located, I do not believe that it can be said that the Secretary is under a duty to locate an area adjacent to these former Indian lands, although I suppose that if in fact these allottees have relocated in close proximity to the present reservoir the Secretary would not be barred from doing so.

I think, too, that it cannot be maintained, in view of the scope of the Secretary's discretion that he is under a duty to locate the Indian areas with in the exterior boundaries of the reservations as they existed prior to the construction of the reservoir. This would seem to follow from the possibility of establishing an area for off-the-reservation allottees, as well as from the fact that the areas to be set aside are for the paramount rather than the exclusive use of the Indians. Since the Indian rights of use are not necessarily exclusive,³¹ there would not seem to be much point in confining the Indian areas within the exterior boundaries of the reservations, which in the case of the San Poil and Spokane Rivers would make it possible to set aside areas running entirely across the streams, and in the case of the Columbia River would make it possible to extend any area or areas set aside to the middle of the channel of the river. However, in view of the constitutional question that has been raised,³² I think there would be a distinct advantage in locating the Indian areas in such a way that they would lie within the exterior boundaries of

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³⁰See the discussion of this question infra in subdivision (d).³¹See infra section 3 (b) .
³²See infra section 5.

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the reservations. If this were done, it would help to avoid the constitutional question. It should, however, expressly be noted that I do not believe that one rather than the other construction is indispensable in maintaining the constitutionality of the act, or is required by the rule that where a statute is susceptible of two constructions by one of which grave constitutional questions may arise, and by the other of which such questions may be avoided, construction should favor the latter.³³

(e) The Inclusion of the Freeboard Area.
The first paragraph of section 1 of the act of June 29, 1940, permitted the taking of Indian lands for reservoir purposes up to a maximum elevation of 1310 feet above sea level.³⁴ That elevation is, however, approximately 20 feet above the maximum water surface elevation of the reservoir. While this difference in elevation is small, the area of shoreland above the maximum water surface elevation of the reservoir may be quite extensive depending on the contour of the land above this elevation.

The language of the act is helpful although not conclusive on the question of the inclusion of the freeboard area. The term "reservoir area" alone does not necessarily include the freeboard area. According to its dictionary meaning, a reservoir is a basin, either natural or artificial, for collecting and maintaining a supply of water. The "reservoir area" may therefore be only the area covered by the water of the reservoir. The term "reservoir area" does not seem to be an engineering term with a fixed and definite meaning. Diligent search has failed to uncover its use as such in other reclamation legislation. The construction engineer at the Grand Coulee Dam, Mr. F. A. Banks, seems to have expressed the opinion, moreover, that the freeboard area is not to be regarded as part of the reservoir area.³⁵ However, the statute does not speak merely of the "reservoir area." It refers to the "entire" reservoir area, and it may be that the addition of this word was intended to emphasize that the reservoir area was :to be deemed to include the freeboard area, as well as the water surface area of the reservoir. Otherwise, the word would be surplusage, and there is a familiar rule of construction that every word in a statute is to be given meaning if at all possible.

The statute also gives the Indians hunting rights in the reservoir areas to be set aside for them. Such rights could be exercised on land as well as water. Although the freeboard area may not now be valuable for hunting, since it must have been practically stripped of game in the process of clearing the land while the project was under construction, the possibility exists that it may be made valuable for such a purpose by the establishment of game refuges in the freeboard area, or by its reforestation and no construction should be indulged which might deprive the Indians of any future game resources.

The fact that the act provides the Indians with a right of access to the reservoir area to be set aside for them does not in itself rule out the inclusion of part of the freeboard area. I must attach considerable weight to the presence of the words "where necessary" to the clause providing for access to the reservoir area or areas. It reads, "The Secretary shall also, where necessary, grant to the Indians reasonable rights of access to such area or areas across any project lands." It seems to have been assumed therefore that in some circumstances it would not be necessary to grant rights of access. Such could be the case only if shorelands were included in the reservoir areas. If such shorelands adjoined Indian lands no right of access would be necessary. However, a right of access would always be necessary if "reservoir area" meant only the water surface of the reservoir, for the free board area would everywhere separate the waters of the reservoir from Indian lands.

Finally, I must point out that even if any part of the freeboard area were entirely useless to the Indians for hunting purposes it would nevertheless possess some value for them in affording greater security to them in obtaining access to the water surface of the reservoir. It would be one thing to have only a right of access to a particular freeboard area but quite another to have the area set aside for their use especially since the Secretary might make such use exclusive.³⁶

The legislative history of the act is inconclusive upon the question whether the freeboard area may be included in the areas to be set aside for the Indians. In the early stages of the consideration of the legislation the Indian Office and the Bureau of Reclamation thought in terms of allowing the Indians to use "the lands and reservoir"³⁷ or the "lands and the waters thereon."³⁸ But at this time the bureaus were also thinking in terms of the

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³³See United States v. Delaware & Hudson Co., 213 U.S. 866, 407; Addy Co. v. United States, 264 U.S. 239, 245: Missouri Pacific R.R. Co. v. Boone, 270 U.S. 466, 471.
³⁴This section was amended by the act of December 16, 1944 (Public Law 497. 78th Cong.. 2d sess.), to permit the acquisition of Indian lands also for operation and maintenance of the reservoir.
³⁵See his memorandum to the Commissioner of Reclamation dated February 26, 1944, paragraph 3.
³⁶See infra section 3 (b).
³⁷Indian Office letter of September 13, 1939, to the Secretary.
³⁸Draft of bill submitted by the Bureau of Reclamation to the Indian Office on February 20, 1946.

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reservation of easements and of permitting the Indians to make use of the reservoir area for such a purpose as grazing--a plan that was finally abandoned. However, even under the plan actually adopted, the Indians would have rights in "lands and waters" if no part of the freeboard area were included in the areas set aside for them, since the shorelands below the maximum water elevation would not always be inundated. On the other hand, in the basic memorandum of March 23 in which the scheme of the present act was first suggested, the Commissioner of Reclamation himself made use of the term "reservoir area" in a sense which suggests that it may have been intended to include the freeboard area. He spoke of "the need for regulation of the Indian hunting rights in relation to game refuges that might be established in the reservoir area." (Italics supplied.) However, a refuge for wild fowl would also be a game refuge, and it could be part of the water surface area of the reservoir.

Under all these circumstances, I am not disposed to favor a construction that would limit the Secretary's discretion in this respect in setting aside the Indian reservoir areas, and I hold therefore that the Secretary may include freeboard areas in the areas to be set aside for the Indians.

Four questions relating to the character of the Indian rights under the act have been raised: (a) Whether the rights of the Indians are confined to hunting, fishing and boating; (b) whether the characterization in the statute of the Indian use as "paramount" makes the Indian rights of hunting, fishing and boating exclusive rights; (c) whether the Indian rights are personal rather than assignable; (d) whether the Indians may be required to pay license fees in connection with exercising their rights under the act.

The Indian Office emphasizes the desirability of the Indians also having grazing rights, and of being able to make use of the reservoir in connection with their logging operations. The enjoyment of such privileges would undoubtedly be of much greater value to the Indian than those specifically mentioned in the act, namely, hunting, fishing and boating. The question is whether the Indians may use the reservoir for any other purposes.

During the drafting period of the bill the Indian Office sought to secure the acceptance by the Bureau of Reclamation of a form of bill which would have granted to the Indians easements for "hunting, fishing, boating and other purposes." In its memorandum of February 20, 1940, the Bureau of Reclamation in objecting to this proposal thus explained the reasons for its objection:

The words "and other purposes" were subsequently eliminated from the act. If the scheme of the act had remained the same, it could hardly be argued that it was intended to permit the Indians to make use of the reservoir for other purposes than those specifically mentioned in the statute.³⁹ However, although the scheme of the statute was subsequently changed from a reservation of easements across the Indian lands acquired to a grant of right in a portion of the reservoir area, there is no evidence in the legislative history file bearing on the question of the effect of the change upon the uses to which the area to be set aside might be put.

Nevertheless, in the absence of such evidence, I am bound to assume that the Indian rights in the areas to be set aside were not to be enlarged, unless the possibility of enlargement is suggested by the language of the act. Despite the change in plan, only rights of hunting, fishing and boating were enumerated in the act. It is true that the provision for access made in the last sentence of the second paragraph of section 1 of the act does not expressly say that the rights of access are to be granted "to

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³⁹Such a construction would be reinforced by the doctrine expressio unius est exclusio alterius. See Crawford: Statutory Construction, sec. 195.

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enable the Indians to exercise their rights of hunting, fishing and boating." But the addition of such language would have been superfluous since a right of access is not a separate and independent right but a means of enjoying property rights or special rights otherwise possessed. The rights of access cannot therefore be made the basis of additional special rights in the areas set aside for the Indians for purposes not mentioned in the statute. However, I should point out that the rights of access would not be limited to mere rights of ingress and egress, but would be commensurate with the purposes to which the portions of the reservoir to be set aside for the Indians are to be put.⁴⁰ Thus the Indians would have the right to construct a reasonable number of docks in connection with their boating operations, and to erect such structures as may be necessary in connection with their hunting and fishing activities.

There still remains the question, however, whether there are not other rights that inure to the Indians apart from the provisions of the act of June 29, 1940. Apparently the Bureau of Reclamation in acquiring the allotted and tribal lands under the act did not specifically acquire title to such portions of the river bed as were beneficially owned by the Indians, and the appraisals did not specifically include any allowances based upon the ownership of the river bed. The allottees themselves had no title to the river bed, owning the uplands only.⁴¹ Even if the title of the tribe to the river bed abutting the uplands survived allotment,⁴² there was still no particular reason why the Bureau of Reclamation should have acquired title thereto. The United States has a servitude for the improvement of navigation in the beds of all navigable waters,⁴³ and the Columbia River had been held to be navigable.⁴⁴ The same servitude existed with respect to the tributaries of the Columbia River even though they may not have been navigable in themselves.⁴⁵ Moreover, the United States in improving navigation could cut off the Colville and Spokane Indians from access to deep water without making compensation.⁴⁶ The existence of these servitudes permitted the construction of the dam and reservoir without acquisition of title.

Nevertheless, whatever title the Colville and Spokane tribes had in the beds of the Columbia and Spokane Rivers would not be destroyed by the mere exercise of the servitude for the improvement of navigation.⁴⁷ I think, however, that I need not decide the rather puzzling and difficult question of the survival of this title in the process of taking,⁴⁸since I am convinced that it could not be made a source of additional special rights for the Indians. It seems to me apparent from the whole history of the statute, as well as from its terms, that the scheme of rights provided therein was intended as an exclusive substitute for whatever rights the Indians may have enjoyed before its enactment by reason of their rights of ownership. The rights are plainly denominated lieu rights in the statute itself, which provides that the areas to be set aside for the Indians are to be in "in lieu of reserving rights of hunting, fishing and boating in the areas granted under this Act . . ." Even if I were to hold the contrary, it would merely necessitate the acquisition of title to the river beds for the taking of which the act would supply ample authority. But I see no necessity for this because the special rights granted to the Indians under the act were them selves obviously deemed to be a form of compensation for the riparian rights of the Indians for which no separate compensation had been made. To put it in another way, even if it be assumed theoretically that the Indians have title to a portion of the river bed, it is an entirely naked title, since Congress plainly intended to give the Indians only rights of hunting, fishing and boating in such portions of the reservoir as should be set aside for them by the Secretary. Moreover, the ownership of the river bed would not give the Indians any right to use the waters of the reservoir itself for

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⁴⁰Reining v. New York L. & W. Ry. Co., 13 N.Y.S. 238; Heyman v. Biggs, 150 N.Y.S. 246; Brookhaven v. Smith, 188 N.Y. 74, 80 N.E. 665; Alaska Juneau Gold Mining Co. v. Northern Lumber Mills, 5 Alaska 269; 45 Corpus Juris, pp. 501-02.⁴¹The grant of title to allotted lands will be construed in accordance with State law (Hill v. Hobart, 186 Fed. 426 (C.C.A. 8th); Shively v. Bowlby, 152 U.S. 1; Producers Oil CO. v. Hanzen, 238 U.S. 325), and in the State of Washington the owner of upland does not have title to the bed of navigable waters.⁴²It appears to have been held in United States v. Ashton 170 Fed. 509, 517 (C.C.W.D. Wash.), app. dis. sub nomine Bird v. Ashton, 220 U.S. 604, that allotment extinguished any tribal title.⁴³Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 US. 82; Greenleaf Lumber Co. v. Garrison, 237 U.S. 251; Luther I. Bailey v. United States, 62 Ct. Cl. 77.⁴⁴Continental Land Co. v. United States, 88 F. (2d) 104 (C.C.A. 9th), which also relates in some detail the plans for the construction of the Grand Coulee Dam and the Columbia River Reservoir.
⁴⁵Appalachian Electric Power Co. v. Smith, 4 F. Supp. 6 (D.C.W.D. Va.) reversed 67 F. (2d) 451 (C.C.A. 4th), and
cert. denied 291 U.S. 674.
⁴⁶Scranton v. Wheeler, 179 U.S. 141; United States v. Appalachian Electric Power Co., 311 U.S. 377.
⁴⁷James v. Dravo Contracting Co., 302 U.S. 134, 140.
⁴⁸While the bed of a stream may be separately owned from the uplands, the ordinary rule is that unless a contrary intention is clearly expressed the conveyance of title to the upland carries with it the title to the bed of the stream. See 45 Corpus Juris, pp. 568, 569 and authorities there cited. The application of this rule here, however, would be uncertain because title was not conveyed but taken.

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such purposes as stock watering and the floating of logs, since the waters of a navigable stream are "in no sense private property."⁴⁹

It does not follow from these views, however, that the Indians may not use the Columbia River Reservoir for any other purpose than hunting, fishing and boating, and that they may not venture forth into parts of the reservoir area which have not been set apart for their paramount use. Apart from their special rights in the areas set aside for them, they may of course enjoy such privileges as are accorded to the general public. They may exercise such privileges as the law allows the public in navigable waters and obtain such rights in the shorelands as the Secretary may grant to any member of the public under existing law, and upon the same terms and conditions. Section 10 of the act of August 4, 1939 (43 U.S.C. sec. 387), provides:

Thus the Secretary, exercising his powers under this act, may grant permits to the Colville and Spokane Indians to use the reservoir area for grazing, stock watering, and logging sites, and may make such charges for these privileges as are exacted when similar applications are made by non-Indians. Thus, too, the Indians may navigate any of the waters of the reservoir and fish and hunt thereon, as well as float logs on the reservoir for these are public rights in navigable waters,⁵⁰ although the extent to which they will be able to enjoy these privileges will depend on their ability to secure access to the reservoir. They may also enjoy such privileges in the use of the shorelands as are accorded to the general public.

It has been argued that the hunting, fishing and boating uses assured to the Indians under the act in the areas to be set aside for them are neither exclusive of the same uses by other persons, nor exclusive of other uses by other persons. The uses have even been described as merely "preferential."⁵¹ It is true that the rights of the Indians would not be wholly nugatory if the act were construed to give them "preferential" rights only. It could then be argued that such rights could not be regulated to the point of complete prohibition as could any privileges granted to the general public, and also that such rights could not be burdened with a charge in the form of license fees.

The act declares that the area to be set aside shall be for the "paramount" use of the Indians. It may be conceded that the reliance upon the adjective "paramount" alone in this context was probably unfortunate. The adjective played a great role in the feudal land law, and in American legal terminology it has been employed primarily with reference to the "paramount" authority of the Federal Government in the American constitutional scheme. The complexities and perplexities of both feudalism and federalism should constitute a sufficient warning that a "paramount" use is a somewhat elusive concept. A paramount right is one that is superior to all others but this necessarily implies that others may have rights in the same thing, and in any event the question always remains in what respects the right is paramount, for it may be a right to present enjoyment, or a reversionary right, and it may be subject to limitations.

The act itself, however, does not define the sense in which "paramount" is employed and the legislative history relating to this question is rather confusing.⁵² A clue to this sense is, however, to be found in a sentence in the Department's report on the bill which reads: "The rights of the Indians to use this area for hunting, fishing and boating will not necessarily be exclusive rights." This statement clearly implies that it was contemplated that

⁴⁹See United Stales v. Appalachian Electric Power Co., 311 U.S. 377, 424.
⁵⁰See 22 Amer. Jurisp., pp. 674, 678; 34 Amer. Jurisp., pp. 526-29; 45 Corpus Juris, pp. 444-45; 26 Corpus Juris, pp. 602,604; 27 Corpus Juris, p. 944; 38 Corpus Juris, pp. 203-05 and authorities there cited.
⁵¹See Memorandum of Assistant Chief Counsel of the Bureau of Reclamation to the Solicitor dated July 4, 1944.
⁵²There does not appear to have been any real meeting of the minds on this question. In his memorandum of April 5, 1940, to the Secretary, the Assistant Commissioner of Indian Affairs spoke of setting apart "part or parts of the reservoir for the exclusive use of the Indians in exercising their rights." There is no evidence, however, that this idea was accepted by the Bureau of Reclamation.

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there might be circumstances in which the Indian rights could be made exclusive. The adjective "paramount" rather than "exclusive" must have been employed in the act only because in an absolute sense the Indian rights could not be exclusive. This arose from the fact that the Indians would be granted rights in a reservoir which was constructed primarily for other purposes, namely, for irrigation, power development, and the improvement of navigation. The act also contained the proviso, "That the exercise of the Indians' rights shall not interfere with project operations," and made the hunting and fishing rights expressly subject to regulation by the Secretary. The subordination of the Indian rights to project operations, and the subjection of these rights to regulation, need not have prevented them, however, from being denominated "exclusive" rights; there may
have been misunderstanding on this score.

It can hardly be doubted that the whole reservoir area, including the Indian area, is subject to .the public right of navigation. But there are other uses to which the Indian area could be put without interfering with the Indian rights of hunting, fishing and boating. Such uses might be both of a commercial and recreational character. An example of the former use would be the floating of logs obtained in lumbering operations, and examples of the latter would be the use of the reservoir for swimming, and of the reservoir area for camping. In view of all of these possibilities, it would not be reasonable to hold that it was intended to make the exercise of the Indian rights in the Indian area of the reservoir exclusive of other uses by other persons unless experience showed that these uses so interfered with the Indians' exercise of their rights that these other uses by other persons would have to be curtailed or abolished by the Secretary.

Indeed the real purpose of the statute seems to have been to give to the Indians directly neither "preferential" nor "exclusive" rights. It was rather to give a power to the Secretary to make the Indian rights exclusive where necessary to insure the realization of their privileges. In the absence of the declaration in the statute that the rights of use of the Indians in the reservoir area were to be paramount, the Secretary, as a public officer administering the project, could have given special rights to no one. But the declaration having been made, the Secretary, while under no absolute duty to give the Indians exclusive rights of hunting, fishing and boating, is empowered to do so, as well as to curtail the rights which non-Indians might exercise in the areas of the reservoir set apart for their use. However, the Secretary would be under a duty to make the rights of the Indians exclusive whenever he found as a fact that the protection of the Indians in the exercise of their rights made such a step necessary. Thus, while the rights of the Indians would "not necessarily be exclusive rights," they might be made exclusive rights. That the statute contemplated such a flexible scheme is suggested not only by its language but by the nature of the rights themselves, and the problems inherent in according them protection.

In a sense there can really be no exclusive fishing rights in a portion of a reservoir.⁵³ The setting aside of various areas of the reservoir for the Indians will not imprison the fish in those areas, which can also be taken from the adjoining areas, and somewhat similar considerations apply to the hunting of waterfowl from the surface of the reservoir. Conceivably, too, a distinction might be made between offshore fishing from specified locations, and fishing by boat from the surface of the reservoir and the Indians might be given the primary right of selecting the offshore fishing locations. Distinctions might also be made as to permissible methods and periods of fishing to the advantage of the Indians in their area of the reservoir.

Boating presents a somewhat different problem from hunting and fishing since the Indian areas can in no sense be depleted by the movement of pleasure boats over their surface, although, of course, excessive boating might interfere not only with the same use by the Indians but also with their hunting and fishing. Conceivably, too, a distinction might be drawn between "boating" which, according to its dictionary meaning, means rowing or sailing primarily for pleasure or as a pastime, and the use of navigable waters for the purposes of trade or commerce.⁵⁴ The latter has anciently been said to be the test of navigability, although the more modern and better view, supported by an in creasing number of cases, is that boating is an instance of public navigation,⁵⁵-a view based on the persuasive consideration that the recreational uses

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⁵³In United States v. Sturgeon, Fed. Cas. 16413, 6 Sawy. 29 (D.C.D. Nev.), the Court said in speaking of fishing in a lake wholly within the boundaries of an Indian reservation: "It is plain that nothing of value to the Indians will be left of their reservation if all the whites who choose may resort there to fish." But obviously such a consideration would be inapplicable to fishing in part of a reservoir.
⁵⁴See 45 Corpus Juris, p. 410, section 6, of title "Navigable Waters": "It is generally, but not in all jurisdictions, held that the stream must be navigable for some useful purpose, such as trade or agriculture, rather than for mere pleasure, and must be capable of sustaining more than small boats such as rowboats, or small skiffs or launches."⁵⁵See Lamprey v. Metcalf, 58 N.W. 1139 (Minn.); State v. Korrer, 148 N.W. 617 (Minn.); Willow River Club v. Wade, 76 N.W. 273 (Wis.); Diana Shooting Club v. Husting, 145 N.W. 816 (Wis.); Nehoosa Edwards Paper Co. v. Railroad Commission, 228 N.W. 144 (Wis.).