Opinions of the Solicitor of the Interior Relating to Indian Affairs p.1376-1400

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of a body of navigable water are as important to the public as the commercial. Thus, while through commercial traffic would in any event have to be allowed to pass through the Indian area of the reservoir, mere pleasure boating, which was confined to the Indian area of the reservoir, could be prohibited

All these factors may be considered by the Secretary in the exercise of his judgment and discretion. The problem involved here is primarily administrative, and the Secretary's discretion is limited only by his duty to maintain the paramount character of the Indians' rights of use.

In view of the conclusion that the rights of the Indians to use the reservoir for hunting, fishing and boating are not necessarily exclusive, it would seem unnecessary at this time to decide the question whether these rights are merely personal, so that the general public may not be licensed by the Indians to enjoy them. No practical problem of licensing by the Indians would probably arise with respect to these activities unless the Secretary should make them exclusive rights, and unless the Indians should then wish to license their use by others. The resulting legal problem is as difficult as it is hypothetical, and I prefer not to resolve an issue which may never arise.

The question whether the Secretary may require the Indians to pay license fees in connection with their hunting, fishing and boating activities in the areas set aside for them must clearly be answered in the negative. A somewhat similar problem was presented in Tulee v. Washington, 315 U.S. 681, with respect to the treaty rights of the Yakima Indians to fish at their "usual and accustomed places" on ceded lands without paying license fees to the State of Washington. The Court held that the State could not burden the treaty right by imposing license fees. It is true that this ruling is not precisely in point here. No treaty right is involved, and the question presented is one of Federal rather than State regulation. Nevertheless the liberal approach of the Supreme Court to the problem is not without significance here. Further more, the Court expressly pointed out⁵⁶ that "the imposition of license fee is not indispensable to the effectiveness of a state conservation program." The same would seem to be true of a Federal conservation program. But all room for doubt is removed by the provision of the act itself. After making the grant of the rights, the act expressly provides that they "shall be subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife." (Italics supplied.) The Secretary may not charge the Indians a fee for hunting and fishing privileges because it would be unnecessary to an effective conservation program, and he may not charge the Indians a fee for boating because such an exaction would not be within the restricted power given to him under the act.

No less than four agencies of the Department are interested in one way or another in the administration of the Columbia River Reservoir. These agencies are the Bureau of Reclamation, the Bureau of Indian Affairs, the National Park Service, and the Fish and Wildlife Service. At present the reservoir area as a whole is being administered by the National Park Service under a temporary arrangement. The Indian Service requests that it be entrusted with the administration of whatever areas are set apart for the Indians.

The problem of administrative jurisdiction presents for consideration only a question of policy. If the applicable legislation expressly vested a particular function in relation to the reservoir area in one rather than another of the interested bureaus, some question might conceivably be raised as to the propriety of relieving it altogether of any connection with the discharge of such function. But it is obvious that each one of the interested agencies may have some function to perform in relation to the reservoir area. On the other hand, the administration of the Columbia Basin Project is vested in the Secretary, and it is the Secretary who is directed to set aside a part of the Columbia River Reservoir for the benefit of the Colville and Spokane Indians. The Secretary also has a general power of selection among the interested agencies by virtue of section 161 of the Revised Statutes (now 5 U.S.C. sec. 22), which provides that "the head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business . . ."

The act makes the use of the reservoir by the Indians subject to "such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife." On April 6, 1940, while the legislation was under consideration, the Acting Commissioner of the Bureau of Fisheries addressed a memorandum to the Assistant Chief

_______________

⁵⁶At page 685.

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Counsel of the Bureau of Reclamation which suggested that the proposed plan of Federal regulation might present a constitutional question. Strangely enough, it does not appear that this question was further explored prior to the passage of the act. However, in his memorandum of July 4, 1944, to the Solicitor, the Assistant Chief Counsel of the Bureau of Reclamation again raised the question of constitutionality, referring to the decision in Mason Co. v. Tax Commission, 302 US. 186, which involved merely the question whether the State of Washington could levy an occupation tax on a private contractor on the Grand Coulee Dam whose activities were carried on at Mason City on land ceded by the State of Washington to the Federal Government, as to which the Court held there had been no cession of exclusive jurisdiction. Moreover, there was in this case no act of Congress which expressly conferred a power of: regulation upon an officer of the Federal Government.

Article IV, section 3, of the Federal Constitution, confers upon Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States." The title to the shorelands is undoubtedly in the United States in fee simple absolute. While the United States has no property interest in the waters of the reservoir, and the title to the river bed is rather complicated,⁵⁷ the property interest of the United States would seem to be sufficiently broad to justify Federal regulation. While normally State conservation laws would govern even on Federal property, there is no doubt that Congress could override them if it had reasonable basis for supposing that such a step was necessary. See Hunt v. United States, 278 U.S. 96.

While the power to preserve fish and game is inherent in the sovereignty of a State, it is nevertheless subject to any valid exercise of authority under the Federal Constitution. New York ex rel. Kennedy v. Becker, 241 U.S. 556, 562. Among the powers of Congress is the control of the navigable waters of the United States. Although the authority of a State to regulate fishing in navigable waters of the United States within its territory was recognized at an early date, in Manchester v. Massachusetts, 139 U.S. 240, the Court declared that such regulation would be valid only "in the absence of any regulation by the United States." (p. 265) The provision of the act of June 29, 1940, obviously constitutes such regulation. Congress in carrying out its plan for the improvement of navigation on the Columbia River could validly proceed upon the assumption that the control of hunting and fishing on the reservoir required Federal regulation in whole or in part, either because such a measure was desirable in itself or because it was deemed a desirable factor in providing compensation to the Indians. It was once argued that the constitutional power of the United States over its waters was limited to control for navigation. But this narrow view was emphatically rejected in United States v. Appalachian Power Co., 311 U.S. 377, 423, et seq., in which the Court recognized that "`the authority of the United States is the regulation of commerce on its waters," and also declared: "It is no objection to the terms and to the exertion of the power that 'its exercise is at tended by the same incidents which attend the exercise of the policy power of the states.' "

Finally, there is the plenary power of Congress over Indians and Indian affairs, which has been recognized by a long line of decisions since United States v. Kagama, 118 U.S. 375.⁵⁸ Indeed in United States v. McGowan, 302 U.S. 535, 538, the Supreme Court declared: "Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out."⁵⁹ While the Federal regulation of Indian hunting and fishing in the reservoir may extend to areas as to which the Indian title has been extinguished,⁶⁰ the plenary power of Congress over Indians does not necessarily depend upon title. United States v. Thomas, 151 U.S. 577. The power of Congress to regulate the liquor traffic with Indians on lands ceded by them has been uniformly upheld, despite the fact that the Indian title has been extinguished. While in United States v. Forty three Gallons of Whiskey, 93 U.S. 188, and in Dick v. United States, 208 U.S. 340, the power to regulate such traffic was based upon the authority

⁵⁷As already indicated, the complexities arising from this state of the title could be avoided by locating the Indian areas of the reservoir within the exterior boundaries of the reservations.
⁵⁸See Board of Com'rs. v. Seber, 318 US. 705, 716, footnote 18, in which the earlier cases are collected.
⁵⁹Compare the early declaration in Lone Wolf V. Hitchcock, 187 U.S. 553, 565: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government."
⁶⁰Even if it were assumed that the Indian titles to the shorelands and the river bed have both been extinguished, it would not necessarily follow that the effect was to redefine the reservation boundaries and thus to exclude the acquired lands. In United States v. Celestine, 215 U.S. 278, the Court declared in general terms that when land is fee patented it still remains within the limits of the reservation. If this is so, it is difficult to see why acquisition of title by the United States should ipso facto terminate the reservation, especially since the Indians still have a limited number of special rights in the areas in question. A reservation is not a grant and has nothing to do with title. Alaska Pacific Fisheries v. United States, 243 U.S. 78, 86.

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of Congress to regulate commerce with the Indian tribes, in Perrin v. United States, 232 U.S. 478, 482, the Court declared that the power was also derived "in part from the recognized relation of tribal Indians to the Federal Government." Similarly the jurisdiction of the Federal courts under section 548 of title 18, United States Code, to punish the so-called major crimes when committed by Indians on fee patented lands has been upheld.⁶¹ In United States v. Ramsey, 271 U.S. 467, 471, the Court declared in general terms that "Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States."

    There is implicit in the doubts expressed concerning the constitutionality of the act the idea that the question ought to be avoided by conforming the regulations issued under the authority of the act to the provisions of State law. Upon the question whether such a course ought to be adopted on independent grounds of policy as the best practical measure I need express no opinion. It is plain, however, that such a course need not be adopted because of the supposed desirability of avoiding constitutional doubts, which have no substantial basis. I see no reason to doubt the amplitude of the constitutional power of Congress in providing for Federal regulation of the Indian reservoir areas.

                                                                                                                    WARNER W. GARDNER,
                                                                                                                                                    Solicitor.

December 29, 1945.
Mr. K. S. Haskell,
406 Senate Office Building,
Washington, D.C.

This will refer to your informal request concerning the judicial and departmental construction which has been placed on the words "Indian reservation."

As a result of the limited research which I have been able to do on the subject, I find that the courts have not laid down a general definition of the term. They have more often been concerned with whether particular land was an "Indian reservation" or "Indian country" within the meaning of certain criminal statutes, or whether certain Indians had title to or a compensable interest in land rather than in the question of what was an Indian reservation. The discussion of Indian reservation has been incidental to the other phases of the cases presented for consideration. The courts have usually been concerned with the manner in which Indian reservations have been established or recognized. Thus, in the case of Minnesota v. Hitchcock, 185 U.S. 373, 389 (1901), the Court said:

⁶¹See Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th) : State v. Johnson, 249 N.W. 284 (Wis.). There are dicta pro and con in United States v. Kiya, 126 Fed. 879 (D.C.N.D.); Ex parte Tilden, 218 Fed. 920 (D.C. Idaho); State v. Big Sheep, 243 Pat, 1067 (Mont.); State v. Columbia George, 65 Pac. 604 (Ore.); United States v. Gardner, 189 Fed. 690 (D.C.E.D.Wis.); People v. Pratt, 80 P. (2d) 87 (D.C.A. Cal.) Quagon v. Riddle, 5 F. (2d) 608 (C.C.A. 8th). The disagreement in the authorities is based upon the language of' the statute rather than upon constitutional considerations.

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Your attention is also called to the following cases decided by the Supreme Court in which the status of lands occupied by the Indians is discussed: United States v. Celestine, 215 U.S. 278 (1909); Donnelly v. United States, 228 U.S. 243 (1912); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Pelican, 232 U.S. 442 (1914); United States v. McGowan, 302 U.S. 535 (1938); Sioux Tribe of Indians v. United States, 316 U.S. 317 (1941); and United States v. Oklahoma Gas & Electric Co., 318 U.S. 206 (1943).

I do not find that the Department has ever attempted to make a general definition of the term. Like the courts, it has construed the words "Indian country" in relation to the criminal statutes. It has also construed the prohibition contained in the acts of May 25, 1918 (40 Stat. 570, 25 U.S.C. sec. 211), and March 3, 1927 (44 Stat. 1347, 25 U.S.C sec. 398d), against the creation of Indian reservations without statutory authority. Copies of two of these opinions are attached for your information.

    If I can be of further assistance to you in this matter, please feel free to call upon me.

                                                                                                                    WARNER W. GARDNER,
                                                                                                                                                    Solicitor.

Although statutes of limitation do not run against the United States as the sovereign, the United States may avail itself of the limitation statutes as a valid defense in an action brought against it.

The United States and its instrumentalities, including Indian tribes, may perfect valid title by adverse possession.

In California owners of adjacent tracts are bound by a common fence line long acquiesced in and treated as a common boundary.

Long and continued occupancy of land by an Indian tribe within a recognized boundary vests valid title in the United States in trust for the tribe, regardless of the results of any resurvey of the area.

You have requested my opinion concerning the status of the title to certain land on the western boundary of the Laguna Mission Indian Reservation in California. The lands in question are a part of the SE 1/4 SE1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32, T. 14 S., R. 5 E., S.B.M.

In accordance with the provisions of the act of January 12, 1891 (26 Stat. 712), the Mission Commission, better known as the Smiley Commission, selected for allotment to the Laguna Indians the S 1/2 Sec. 28, NW 1/4 and N 1/2 SW 1/4, Sec. 33, T. 14 S., R. 5 E., S.B.M. Trust patents were issued to the Laguna Indians in 1893 and in 1911. These lands are adjacent to Secs. 29 and 32.

On May 19, 1893, a selection and application for a patent to the SE 1/4 SE 1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32, T. 14 S., R. 5 E., S.B.M. were filed in the United States Land Office at Los Angeles by the State of California on the basis of a deficit in section 36 lands. The application was accepted on December 29, 1893, and on November 20, 1896, the lands were included in clear list No. 21. The list was certified to the State on December 4, 1896, which was tantamount to the issuance of a patent. In 1891 one Eli A. Harper filed an application with the State of California for a patent to the lands and a certificate of purchase was issued to him by the State in 1894. According to the records, the Laguna Indians were then occupying and using all of the above-described lands and had been in possession thereof since about the year 1856. By order dated February 28, 1895, the Secretary withdrew the SE 1/4 SE1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32 from all forms of entry. During the year 1895 Harper furnished the wire and posts and the Indians furnished the labor, and a fence was constructed, known as the Harper Fence, which has been maintained to this day. The Laguna Indians were using and actually occupying the land within the enclosure when the State filed its application for a

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patent in 1893, and when Harper filed his application for a patent from the State in 1891, and the Indians have been occupying and using the land continuously since the fence was erected in 1895. At the present time the Indians maintain an Indian cemetery, a corral, and a water tank on the land in question and derive their water supply from springs located thereon.

By mesne conveyances Charles Luckman holds the record title to the SE 1/4 SE 1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32. Patent therefore was issued by the State of California in the name of Eli A. Harper on July 1, 1941. Luckman now claims that the Harper Fence is located some 400 feet to the west of the corners common to Sec. 28, 33, 29 and 32, according to the original survey, and that therefore the true west boundary of the Laguna Mission Indian Reservation is some 400 feet east of the fence.

Section 325 of the Code of Civil Procedure of California (Deering 1941) provides that persons who have cultivated or improved land protected by a substantial enclosure for 5 years continuously have established title by adverse possession. The land within the enclosure is now used and occupied by the Laguna Indians, as it has been for 50 years. Although statutes of limitation do not run against the United States as the sovereign, the United States may avail itself of limitation statutes as a defense in any action brought against it. Stanley v. Schualby, 147 U.S. 508 (1892). The United States and Indian Tribes may perfect a valid title by adverse possession. Garcia et al. v. United States, 43 F. (2d) 873 (1930). In addition thereto, the law in California is to the effect that owners of adjacent tracts are bound by the erection of a fence and continued recognition of it as the boundary line. Columbet v. Pacheco, 48 Calif. 395 (1874).

It is my opinion that valid title to the lands within the enclosure is vested in the United States in trust for the Laguna Mission Indians, irrespective of the results of any resurvey.

AUTHORITY FOR TAKING TITLE IN THE
NAME OF THE U.S. IN TRUST FOR THE
VARIOUS PUEBLO INDIANS

The act of June 7, 1924 (43 Stat. 636), did not indicate the manner of taking title. Solicitor's opinion August 7, I929 (52 L.D. 694), ruled that title so acquired should be taken in the name of the pueblo acquiring the land. Subsequent ruling by Acting Solicitor Kirgis dated April 23, 1938, advised that under the act of 1933 titles could be taken at the request of the pueblo by the United States in trust for the pueblos. The soundness of this ruling not questioned in view of seven years' administrative practice there-under and since it gave effect to customary mode of taking title to lands acquired for Indian tribes with funds held in trust for them by the United States and in that respect conforms to the doctrine of substitution of trusts which is of familiar application in Indian administration.

Reference is made to your memorandum of October 19 concerning the authority under which title to various tracts of land acquired since 1941 was taken by the United States in trust for the Pueblo of Laguna and the various other pueblos, in view of the Solicitor's opinion of August 7, I929 (52 L.D. 694), which held that title to lands acquired under the act of June 7, 1924 (43 Stat. 636), should be taken in the name of the pueblos.

The act of June 7, 1924, did not indicate the manner in which title to lands should be taken. The moneys used in effecting such land purchases belonged to the Indians as a result of appropriations made by Congress to compensate them for the lass of lands and water rights, title to which became vested in non-Indians. These moneys were carried in the United States Treasury to the credit of the pueblos entitled thereto. (See sec. 7 of the act of 1924,) The tracts to be purchased and restored to Indian ownership were originally held by the Indians in communal fee simple and the Solicitor held in the opinion of August 7, 1929, that title to such land should be taken in the names of the respective pueblos in order that the lands might be restored to their original status.

The act of May 31, 1933 (48 Stat. 108), authorized appropriations for the purpose of restoring lands to Indian ownership as provided in the 1924 act and also authorized the Secretary to acquire other lands for the pueblos.

Acting Solicitor Frederic L. Kirgis, on April 23, 1938, advised Mr. Brophy, however, after consideration of the Solicitor's opinion of August 7, 1929, that under the act of 1933 the governing authorities of the pueblos could authorize the conveyance of title to the United States in trust for the pueblos. He cited the act of 1933 as authority for the taking of title in the United States in trust for the pueblo. Since the lands conveyed to the

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pueblos under authority of the acts of 1924 and 1935 are not taxable (M. 27145, August 4, 1932), Mr. Brophy was further advised that the taking of title in the United States in trust for the pueblos would remove any possible controversy over the tax question. Thereafter, in many pueblo land acquisitions, title was taken in the name of the United States in trust for the pueblo.

The Acting Solicitor's letter of April 25, 1938, gave effect to the customary mode of taking title to lands acquired for Indian tribes with funds held in trust for them by the United States. The doctrine of substitution of trusts is, moreover, one of familiar application in Indian administration. I see no reason, especially after more than 7 years of practice under the Acting Solicitor's opinion, to question its soundness. Whatever doubts might have been present originally seem to me to have effectually been removed by the actual administrative practice.

In addition to the statutes relied upon by the Acting Solicitor, your attention is called to section 5 of the Indian Reorganization Act of June 18, 1934, which expressly authorizes the conveyance of lands, acquired under that act for Indian tribes, to the United States in trust. This act is applicable to all of the pueblos in New Mexico with the exception of the Pueblo of Jemez, which voted to reject the provisions of the act. See in this connection Solicitor Harper's memorandum of July 7, 1944, to Assistant Secretary Chapman.

Copies of the Acting Solicitor's letter of April 23, 1938, are enclosed.

WARNER W. GARDNER,
Solicitor.

DELEGATION OF AUTHORITY TO PERFORM
CERTAIN FUNCTIONS RELATING TO
ATTORNEY CONTRACTS WITH INDIAN

Sections 2103-2106 of the Revised Statutes (tit. 25, sets. 81-84, U.S.C.) provide, among other things, for dual action by the Secretary of the Interior and the Commissioner of Indian Affairs in connection with the approval of contracts between attorneys and Indian tribes and the approval of payments made thereunder. The express language of this legislation, as well as its legislative history, show that it was intended that these provisions be complied with literally, and for this reason the Secretary may not delegate to the Commissioner the functions mentioned which are committed to the Secretary. Similar functions, however, which are committed to the Secretary by section 16 of the act of June 18, 1934 (48 Stat. 984), are merely veto powers given the Secretary under legislation designed to enlarge the scope of tribal responsibility, and these powers may be delegated to the Commissioner by the Secretary if he so desires.

You have requested my views on the question of whether the Secretary may lawfully delegate to you or to the Assistant Commissioner the following functions: (1) The approval of attorney contracts with Indian tribes under sections 2103 to 2106 of the Revised Statutes (tit. 25, secs. 81-84, U.S.C.) and sections 16 of the act of June 18, 1934 (48 Stat. 984); and (2) The approval of payments, such as fees and expenses, under such contracts.

I am of the opinion that the functions of approving contracts and approving payments thereunder which are committed to the Secretary of the Interior by sections 2103 to 2106, supra, may not be delegated, but that the similar functions which are committed to the Secretary by section 16 of the 1934 act, supra, may be delegated.

Sections 2103 to 2106 deal with the making and assignments of contracts with Indian tribes relative to their lands or to claims, section 2103 laying down six specific requirements as to the form and the manner of execution of such contracts. So far as pertinent here, those requirements are:

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Section 2106 prohibits the assignment of contracts coming within the scope of section 2103 "unless the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon."

This legislation was enacted to protect the Indians in their contractual dealings with attorneys and agents, a field in which the Indians were not without sad experience. The Indians had previously been the victims of monstrous and shameful frauds perpetrated by agents and attorneys, and this legislation which drastically curtailed the right to contract was obviously intended as an extreme measure designed to remedy what was regarded as a great evil. That Congress considered the matter one of major importance is well shown by this statement taken from the report of the House Committee on Indian Affairs:

It is against this historical background that these sections of the Revised Statutes have always been construed. As early as 1886 the Attorney General held that nothing less than literal compliance with the requirements of the act was essential, and that the Secretary was not empowered to dispense with any of those requirements.² Since that time the courts have uniformly held unenforceable those contracts which failed in any particular to meet the requirements of the act.³As recently as 1935 the Solicitor held that a contract which extended by its terms for five years and so long thereafter as would be necessary to complete the litigation failed to meet the requirement of section 2103 that such contract "shall have a fixed, limited time to run, which shall be distinctly stated . . ." ⁴

In view of the history of the legislation and its unambiguous language, it is apparent that those provisions requiring dual action by the Secretary and the Commissioner must be literally followed. It is not the action of the Department that is required but the action of the two officials-the Secretary and the Commissioner. The idea that departmental sanctions of a contract could supplant that required by the express terms of the statute was rejected by the Supreme Court in the following language in Green v. Menominee Tribe: ⁵

The functions exercised by the Secretary under section 16 of the 1934 act, supra, rest on an entirely different footing. Indian tribes organized under that act may employ legal counsel, "the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior." The purpose of this provision, as heretofore recognized, was to give the tribes a greater degree of responsibility in their dealings with attorneys than they had enjoyed under sections 2103-2106 of the Revised Statutes, with the result that organized tribes may contract with attorneys subject only to the limitations imposed by section 16 of the 1934 act, supra.⁶The power conferred upon the Secretary by section 16 is merely a veto power over the choice of counsel and the fixing of fees, and I know of no reason why that power may not be delegated in accordance with the principles discussed in my memorandum of August 26, 1943. I conclude, therefore, that the Secretary has legal

¹ Investigation of Indian Frauds. H. Rept. No. 98. 42d Cong.. 3d sess., March 3. 1873.
² 18 Op. Atty. Gen. 498.
³ E.g., Gwen v . Menominee Tribe, 233 U.S. 558 (1914): Pueblo of Santa Rosa v. Fall, 273 US. 315 (1927) : McMurray v. Choctaw Nation, 62 C. Cls. 458 (1926); cert. denied 275 U.S. 524 (1927).
⁴ Op. Sol., I.D., M. 28033, June 4. 1935.
⁵ 233 U.S. 558. at p. 570 (1914).
⁶ Memo. Sol., I.D., January 23, 1937.

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authority, if he desires to use it, to delegate to the Commissioner or Assistant Commissioner the functions mentioned with respect to those tribes organized under section 16 of the 1934 act, supra. Any order prepared for the purpose of effecting such a delegation should contain a provision which gives interested parties the right to appeal to the Secretary from actions of the Commissioner or Assistant Commissioner.

WARNER W. GARDNER,
Solicitor.

This Department has jurisdiction at any time prior to the issuance of a patent to investigate the character of the public land.

Issuance of a patent for land to a railroad company pursuant to a grant which excepts mineral land imports a final determination that the land patented is not mineral in character.

Upon issuance of such a patent this Department's jurisdiction over the land ceases.

Where land was patented to a railroad company pursuant to a grant which excepted mineral land and where the patent was subsequently cancelled by a Federal District Court in a suit brought by the United States on behalf of Indian occupants whose claims were found to be superior to that of the railroad company, equitable title to the land, including any minerals which may be contained therein, was vested in the Indian occupants.

The land recovered for the Indians should be conveyed to them by trust patents pursuant to section 4 of the General Allotment Act.

The Commissioner of the General Land Office has requested to be informed whether applications by Indians for allotments under section 4 of the General Allotment Act, as amended,¹ may be allowed for public land in a national forest where the land has been occupied by the Indians from time immemorial and where such land is reported to be valuable for metalliferous or other minerals. The Commissioner also requests to be advised what steps should be taken to protect the Indians' right of occupancy in the event public land which is mineral in character is not subject to allotment to Indians, other than the notation of the Indian claims on the records of the General Land Office and the district land office. The Commissioner calls attention to the regulations of the Department under which allotments may be made within national forests of land containing coal, oil and gas with reservations of the minerals to the United States but not for land valuable for metalliferous minerals,² and to various decisions of the Department which the Commissioner considers to be in conflict with these regulations.

The questions are presented in connection with the formal applications made in 1934 by Addie M. Ramus, Kate Martin, Jake Offield, and Beecher Morgan³for individual allotment of separate and distinct portions of the SW1/4 of Sec. 31, T. 46 N., R. 10 W., M.D.M., California, amounting, in the aggregate, to less than 20 acres. The land applied for is within the exterior boundaries of the Klamath Forest Reserve, proclaimed on May 6, 1905.

Consideration of the circumstances surrounding the occupancy by these four applicants of the particular lands applied for, the action which has previously been taken by the Department--both before and after the creation of the forest reserve--and of a decree entered by a Federal district court affecting this land leads me to conclude that the law and regulations which govern the allotment to Indians of public land within national forests is not applicable to the land now applied for. Since answers to the specific questions raised by the Commissioner would be of no assistance in the proper disposition of the four applications for allotment now under consideration, I shall not discuss those questions but I shall confine myself to a discussion of the rights of these applicants to receive trust patents for the land applied for.

It is my opinion (1) that the Department long ago lost its jurisdiction to determine whether the land is or is. not mineral in character; (2) that the four applicants now have the equitable title to the land applied for, including any minerals which may be contained therein; (3) that the Department has no authority to withhold the land from the Indians even if it is mineral land; and (4) all that remains to be done is to issue appropriate trust patents to the applicants.

The SW1/4 of Sec. 31, T. 46 N., R. 10 W., M.D.M., California, was patented to the Central Pacific Railroad Company pursuant to the act of
____________________

¹24 Stat. 388: 26 Stat. 794, 795; 36 Stat. 855, 859 (25 U.S.C. secs. 334 and 336).
² 52 LD. 36b. 391: 43 CFR 176.15.
³Serial Nos. Sacramento 029099, 029100, 029101, and 029102, respectively.

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July 25, 1866,⁴"An Act granting lands to aid in the Construction of a Railroad and Telegraph Line from the Central Pacific Railroad in California to Portland, in Oregon," Under that act mineral lands were excepted from the grant as were such lands as "shall be found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of." The act provided for the issuance of patents to the grantee upon compliance with certain conditions. A patent covering the quarter section in question was issued to the company on February 12, 1896.

Under well-settled doctrines for the construction of railroad land grants, this Department has jurisdiction, at any time prior to the issuance of a patent, to investigate the character of the land,⁵ but the issuance of a patent for land to a railroad company pursuant to a grant which excepts mineral land imports a final determination that the land patented is not mineral in character. Upon the issuance of the patent, this Department's jurisdiction over the land ceases. ⁶

The patent issued in this case operated not only to divest the Government of its title to the land in question but it also stopped the Government from questioning the character of the land conveyed thereby except in a direct proceeding brought by the Government to have the patent set aside and annulled.

On March 3, 1891, prior to the issuance of the patent covering the land now under consideration, Congress passed an act whereby suits by the United States to vacate and annul any patent thereafter issued might only be brought within six years after the date of the issuance of the patent. Shortly after the issuance of the patent to the company in this case, and on March 2, 1896, Congress extended the time within which to bring actions for the annulment of railroad grant patents previously issued, to five years from the passage of that act. ⁸ Thus the time within which to bring a suit to vacate the patent in the present case expired in March of 1901. The United States did not bring such a suit and it could not have succeeded, in its own right, at a later date in having the patent annulled.⁹

Such was the situation when, in 1905, the forest reserve was created. The land was not at that time public land of the United States, and, since the proclamation dealt only with public land, the particular land now under discussion was not affected by the reservation. As far as the United States was concerned, complete title to the land was at that time in the railroad company, or its successor in interest. Nothing which has occurred since that time has resulted in this land becoming a part of the forest reserve.

Some 25 years after the issuance of the patent to the company and at least 25 years ago, this Department considered the claims of the present applicants together with the claims of other Indians residing in the same vicinity that they and their ancestors had occupied portions of the land patented to the Central Pacific Railroad Company for its successor long prior to the grant to the company. On the recommendation of this Department, suits were instituted by the United States on behalf of the Indians to have certain of the patents cancelled as to specific legal subdivisions of land. The rights of some of these Indians, the present applicants not being among them, were determined by the United States Supreme Court in Cramer et al v. United States,¹⁰and the principles announced by the Court in that case are those which must be applied here. The Court found that the Indians in whose behalf that suit was brought had lived continuously on defined portions of the patented land since as early as 1859; that they had constructed and maintained dwelling houses and other improvements thereon, and that their individual occupancy of the land was entitled to protection. The Court said:

The Court considered the contention made on behalf of the company that any rights which these Indians might otherwise have, had been barred by the provisions of the act of March 3, 1851,¹¹ which required every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Governments to present the

⁴ 14 stat. 239. ⁵Barden v. Northern Pacific R.R. Co., 154 US. 288 (1894); West v. Standard Oil Co., 278 U.S. 200 (1929); 12 Lb. 608; 39 L.D. 289: 56 I.D. 201.
⁶West V. Standard Oil Co., 278 U.S. 200 (1929); 5 L.D. 193; 19 L.D. 410; cf. 54 I.D. 475.
⁷ 26 Stat. 1093, 1099 (43 U.S.C. sec. 1166).
⁸29 Stat. 42.
⁹United States v. Winona & St. Peter R.R. Co., 165 US. 463 (1897); United States v. Whited and Whelless, Ltd., et al., 246 U.S. 552 (1918). Putnam, et al., v. Ickes, et al., 78 F. (2d) 223 (1935), cert. denied, 296 U.S. 612.
¹⁰261 US. 219 (1922).
¹¹9 Stat. 631.

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OPINIONS OF THE SOLICITOR

JANUARY 29, 1946

same for settlement to a commission created by that act. It determined that the 1851 act had no application because the Indians did not belong to any of the classes described in the act because their claims were in no way derived from the Spanish or Mexican Governments and because, further, it did not appear that the Indians were occupying the lands in question in 1851.¹²

In disposing of the contention made that the suit was barred by the act of March 3, 1891, supra, the Court said:

Thereafter patents were issued to the Indians whose claims were considered in the Cramer case under section 4 of the General Allotment Act.¹³

Prior to the decision in the Cramer case, suit had been filed covering the claims of the present applicants.¹⁴ The complaint alleged Indian occupancy of the entire SW1/4 of Sec. 31. However, after that decision, this Department, on June 5, 1928, agreed to a decree being entered embracing all of the land actually occupied by the Indians. The Department, in its letter to the Department of Justice, stated that if the case were settled on that basis the matter of determining the boundaries of the tracts belonging to each Indian occupant could be taken up and appropriately disposed of. Apparently, at that time, no Government survey was made of the land actually occupied by the Indians and, on January 14, 1929, the district court entered its decree canceling the patent issued to the railroad company for so much of the SW1/4 of Sec. 31 as the Court found to have been occupied by the Indians. Adescription of that land is embodied in the decree and the Commissioner of the General Land Office states that the land covered by the present applications is the land described in the decree. The Court declared subsequent conveyances of that land to be null and void and the company and its successors were decreed to have no right, title or interest in and to any of that land. The decree provided:

The effect of that decree was to vest the naked legal title to the land in United States. Equitable title to the land was vested in the Indians. The

¹² Nothing in the present record indicates that these Indians claim under a Spanish or Mexican grant or that they occupied the land as early as 1851.
¹³ Patents Nos. 1069529 and 1069530.
¹⁴United States v. Sarah S. Totten, et al., Equity No. 246. in the Northern Division of the United States District Court for the Northern District of California.

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DEPARTMENT OF THE INTERIOR

JANUARY 29, 1946

right of these applicants to specified portions of the public domain, which the Department had already determined to be nonmineral in character, was found to antedate and to be superior to that of the railroad company. Since the Government could not have recovered this land on its own behalf and since it recovered it in trust for the occupants, it follows that the equitable title to the minerals, if any, in the land recovered is in the Indians and this Department has no authority to withhold those minerals from the owners of the equitable title.

The decree placed upon the Government the burden of determining the areas, within the land described, which were owned by the individual Indian occupants and of issuing appropriate patents to those found entitled thereto. The Department has not carried out the decree of the court. It has not conveyed the individual portions of the land to the individual occupants.

In 1933 the Superintendent of the Hoopa Valley Indian Agency, on behalf of the four applicants, inquired when the applicants would receive their trust patents. In reply, he was advised by the Office of Indian Affairs that no segregation survey had been made to determine the boundaries of the individual claims within the area and that trust patents under section 4 of the General Allotment Act, supra, could not be issued until such survey were made. The Commissioner continued: "Pending survey and allotment of the land, there is no danger that the Indians will be interfered with as their right to this land has been fixed by the court."

Thereafter, on May 24, 1934, the four applications were filed at the local land office, evidently in an effort to prod the Government into carrying out the decree. Surveys of the tracts were completed in 1940 and thereafter the General Land Office caused an examination to be made to determine whether the land was valuable for minerals. In 1943 special reports were filed by a field examiner of the General Land Office stating that the land embraced in the four applications was essentially mineral in character, containing deposits of placer gold.

As I have indicated above, it is my opinion that the only duty which rested upon this Department after the decree of the court was entered in 1929 was to define the areas occupied by the individual Indians and to issue appropriate patents to the rightful owners. The areas have now been defined and, regardless of the report that the land is mineral in character, trust patents to the individual applicants should be issued immediately. I know of no reason why patents, similar to those issued to the Indians involved in the Cramer case, may not be issued to the present applicants pursuant to section 4 of the General Allotment Act, supra, since these applicants meet the requirements of that act.

I am returning for further consideration the letter to the Attorney General prepared in your office, concerning the sale of intoxicating liquor to an Indian woman who has received a State license to operate a tavern at Odanah, Wisconsin. The liquor would be sold to her for purposes of resale, and the question has been raised by the local United States Attorney whether such sales would violate 25 U.S.C. sec. 241. The Attorney General has transmitted his query to this Department with request for advice.

There is no case that supports the suggestion that it makes any difference that the intoxicating liquor is sold to an Indian for the purposes of resale if the Indian in question comes within one of the classes described in 25 U.S.C. sec. 241. Under the provision sales are prohibited only when made to an Indian "to whom an allotment of land has been made while the title to the same shall be held in trust by the Government; or to any Indian who is a ward of the Government under charge of any Indian superintendent or agent, or to any Indian, including mixed bloods, over whom the Government through its departments exercises guardianship." There is no information in the file from which it can be determined whether the Indian woman holds a trust allotment, or is a ward Indian. Since she is married to a white man, she may have abandoned tribal relations.

Apparently the tavern where the liquor would be sold is located on land within the Indian town site of Odanah, Wisconsin, which was established pursuant to the acts of June 21, 1906 (34 Stat 381, 382), and August 1, 1914 (38 Stat. 607, 608). It is stated in the second paragraph of your proposed letter to the Attorney General: "The village of Odanah, Wisconsin, is located within the exterior boundaries of the Bad River Indian Reservation." It is stated, however, in the letters of the United

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OPINIONS OF THE SOLICITOR

JANUARY 31, 1946

States Attorney that the tavern is located off the reservation. While it is apparent from the 1906 and 1914 acts that the Odanah townsite would necessarily be within the exterior boundaries of the reservation, there may be a question whether the village of Odanah and the townsite of Odanah are coextensive. In any event, this office should like to be advised also to what extent the lands within the townsite or village are unrestricted, and whether the land on which the tavern is located is restricted,¹ and whether the land on which the tavern is located borders on the exterior boundaries of the reservation. See memorandum opinion from the Acting Secretary of the Interior to the Commissioner of Indian Affairs dated September 28, 1939, with reference to the sale of liquor at Mason City located on the edge of the Colville Indian Reservation.

If, in fact, the tavern is located on restricted land within the exterior boundaries of the reservation, the special statutes cited in your proposed letter would seem to add nothing to the provisions of the Indian liquor laws contained in Title 25 of the U.S. Code. If, on the other hand, the tavern is located off the reservation, there would have to be considered the applicability of the act of June 27, 1934 (48 Stat. 1245, 25 U.S.C. sec. 254), which has been overlooked in your proposed letter. Thus in the third paragraph of this letter you refer to Article 7 of the treaty of September 30, 1854 (10 Stat. 1109), pursuant to which the Bad River Reservation was created. Article 7 of the treaty prohibits the manufacture, sale or use of "spirituous liquors" on the territory ceded under the treaty. This was an outright cession, and the lands are no longer therefore part of the Bad River Reservation. The act of June 27, 1934, which applies to ceded lands, would have the effect of lifting this prohibition except for sale to restricted Indians. So far as the treaty is concerned liquor could legally be sold to
non-Indians.

You refer also to provisions of the 1906 and 1914 acts relating to intoxicating liquors. The acts are identical except in two respects: (1) The 1906 act provided for the issuance of patents "on such terms as may be approved by the Secretary of the Interior" while the 1914 act provides for the issuance of trust patents under the General Allotment Act; (2) the 1906 act provided for the forfeiture of land conveyed if the liquor prohibitions were violated while the 1914 act directly made applicable the provisions of the laws prohibiting the introduction of intoxicants Pinto the Indian country. As a matter of form the 1914 act did not amend or repeal the 1906 act, and therefore if any patents have been issued under the 1906 act, they would still be subject to its provisions. If any patents have been issued, on the other hand, after the effective date of the 1914 act, they would be governed by its provisions. But it is not indicated under what act any patent which may have been issued for the land on which the tavern is located was actually issued. Further confusion is created with reference to the location of this land by your reference to the intoxicating liquor provision of the 1914 act governing the making of allotments under this act. This provision has no relevancy unless the tavern is located on an allotment rather than a townsite lot.

I am sending a letter to the Attorney General supplying such advice as may be given pending the receipt of the additional information requested herein.

Section 85, 25 U.S.C. does not apply to contracts between individual Indians and attorneys unless specific tribal funds or property held by the United States are the subject of the contract.

Attached is a letter to William L. Paul, Jr., concerning a contract of employment between Mr. Paul and the Tlingit Indians of the Village of Douglas, Alaska. There is also attached a letter relating to a contract of employment between the Seneca-Cayuga Tribe of Indians of Oklahoma, and N. M. Coursolle and W. C. Preus. In both letters it is suggested that contracts may be executed between individual Indians and attorneys and that it is only where payment of fees or expenses out of restricted funds under the control of this Department is contemplated that approval of such contracts becomes necessary.

A question has been raised as to the applicability of 25 U.S.C. sec. 85 to such individual contracts becomes necessary.

¹See the attached copy of a memorandum from Mr. Hancock of the General Land Office to Mr. Wasserman, Chief Counsel of the General Land Office, dated January 16, 1946, to whom this memorandum was submitted.

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DEPARTMENT OF THE INTERIOR

JANUARY 31, 1946

    It is my opinion that section 85 does not apply to contracts between individual Indians and attorneys unless specific tribal funds or property held by the United States are the subject matter of the contract. It has no application where it is contemplated merely that a claim is to be prosecuted against the United States by such Indians. The legislative history of section 85 indicates that the type of contract which it was intended to prohibit dealt with tribal funds or property which the United States was holding in trust for the Indians. The legislative history also reveals that it was the intention of Congress that such funds or property should be delivered to the Indians undiminished in quantity and without the necessity for the employment of attorneys, and the consequent payment of fees to them, to prod the Government to do something which it was already obliged to do. (50 Cong. Rec., pp. 2043-2046, 2080-2082.) Therefore, I believe that the language which has been used in the two attached letters concerning contracts between individual Indians and the respective attorneys is legally correct.

                                                                                                                WARNER W. GARDNER,
                                                                                                                                                Solicitor.

DRIVING GOVERNMENT AUTOMOBILES ON
SHORT DETOUR AS USE FOR "OTHER
THAN OFFICIAL PURPOSES"

A detour of three miles in a 30-mile automobile trip on Government business, made for the personal pleasure of the driver, is not a deviation sufficient to constitute as a matter of law use of the Government-owned vehicle for "other than official purposes" within the meaning of Section 202 (b) of the Independent Offices Appropriation Act, 1945.

Reference is made to your memorandum of October 25, 1945, inquiring whether certain actions of an employee of the Five Civilized Tribes Agency, Muskogee, Oklahoma, constitute an unofficial use of a Government automobile. It is assumed that you have in mind the prohibition contained in section 202(b) of the Independent Offices Appropriation Act, 1945, against such unofficial use.

The facts, so far as pertinent to a decision of your question, appear briefly to have been as follows: An employee of the Five Civilized Tribes embarked upon an official trip from Muskogee to Tuskahoma, Oklahoma, and on the way picked up a second, 18 year-old girl, employee who was on annual leave and who accompanied him for the rest of the day. Later on the same day, these employees were joined by a farm agent employee for the Five Civilized Tribes, who lived in Wilburton. Thereafter the three proceeded in the automobile from Wilburton to Tuskahoma. The farm agent employee, at the request of the Indian Bureau employee, drove the Government automobile on the return trip during the course of which the Indian Bureau employee requested that the car be driven off the main highway to a bootlegger establishment where he purchased a gallon of whiskey. Available information indicates that the distance to and from the establishment was about three miles. In the evening of the same day, the Indian Bureau employee, after leaving the farm agent at Wilburton, requested the girl employee to drive the Government automobile from Wilburton back to Muskogee headquarters. During the course of the return trip an accident occurred, resulting in almost total destruction of the Government automobile.

The record indicates that due consideration is being given by you and the Bureau of Indian Affairs to disciplinary action for whatever other acts of misconduct occurred, in accordance with the Department's established personnel procedures. Although your inquiry is to be advised whether the employee in question "has made unofficial use of a Government automobile," I therefore take it that you are interested only in being advised whether the 3-mile detour of the employee on a mission of his own in the course of official business violates the provisions of the 1945 Appropriation Act, thereby requiring you to dismiss him summarily.

It is my opinion, in view of all the circumstances, that the 3-mile detour cannot be regarded as a violation of the act so as to require the summary dismissal of the employee in question.

Section 202 (b) provides:

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OPINIONS OF THE SOLICITOR

FEBRUARY 11, 1946

The prohibition on the use of Government automobiles for personal business can be traced back to section 4 of the Post Office Appropriation Act, 1933 (47 Stat. 604), where its application was limited to "passenger-carrying vehicles" purchased with funds appropriated to the Post Office Department. By the next year the prohibition was extended to appropriations "available for the executive departments and independent establishments," by section 3(b) of the Post Office Appropriation Act, 1934 (43 Stat. 450). It continued in the annual appropriation acts of the Post Office Department until March 25, 1940, when it appeared as section 302 (b) of the Treasury and Post Office Appropriation Act, 1941 (54 Stat. 78). In 1943, the prohibition became section 262 (b) of the Independent Offices Appropriation Act, 1944 (57 Stat. 195). It was reenacted on June 27, 1944, as section 282 (b) of the Independent Offices Appropriation Act, 1945. The noticeable change in 1945 was the inclusion of the penalty provision.

It appears that prior to enactment of the penalty provision of misuse of Government property, including automobiles, was the subject of disciplinary action in accordance with established procedures of the Department. See, in this connection, paragraphs numbered 7 and 11, on pages 2 and 3, of "Regulations for the Operation of Motor Vehicles by Employees of the Department of the Interior on Official Business," issued by the Secretary in February 1942, which are still in effect. Between 1942 and 1944 the Byrd Committee of the Congress made exhaustive studies and reports on the reduction of non-essential Federal expenditures, including automobiles. Out of these investigations grew the request for the prohibition against the unofficial use of Government automobiles as it appears in the 1945 Appropriation Act. Very little in the way of recorded legislative history exists. I am reliably informed by a representative of the Bureau of the Budget, who attended all of the discussions and hearings on that phase of the Byrd Committee reports, however, that considerable latitude undoubtedly was intended to be allowed the head of any Department to decide as a matter of policy how strict a construction should be placed upon the language of the statute in determining, in the light of all the circumstances, what constitutes use "for other than official purposes." The complaints seemed to be aimed primarily at such types of abuse as result from the taking of a Government automobile in the first instance with the intention of using it primarily or solely for personal use. The discussion, it appears, did not indicate clearly whether the Committee had in mind only the misuse of automobiles in towns where other modes of transportation were available, the source of the major portion of the complaints, or in isolated parts of the country as well, where transportation facilities are scarce or nonexistent. Some of the abuses discussed were the use of Government cars by members of the families of officials, by employees to go to and from their homes, for vacation trips, to go to and from eating places, and to attend social events in the evening. It appears that no discussion occurred on the specific question whether after an employee has embarked upon an official trip and then detours for any reason from the main route of travel, resuming the official trip thereafter, such action should be regarded as a violation of the statute.

There was no Appropriation Committee discussion of the language included in the appropriation bill and nothing occurred at the Appropriation Hearing because the House Committee did not discuss it. The provision was put in in the Senate, but the Senate Committee did not discuss it either. It appears to be generally assumed that it came about as a result of the Byrd Committee action. See the statements of the Byrd Committee appearing in 88 Cong. Rec., pp. 4225-4232 (May 15, 1942); S. Doc. No. 5, 78th Cong., 1st sess., dated February 15, 1943; S. Doc. No. 198, 78th Cong., 2d sess., pp. 2 and 5,

From the foregoing, it is my conclusion that it was intended that a rule of reason should be applied when invoking the statute with respect to seeming violations. The application of such a rule could well be regarded as justifying the differentiation between the case of a Government vehicle taken by an employee with the intention in the first instance of using it for personal reasons, and the incidental use of such a vehicle for personal reasons

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DEPARTMENT OF THE INTERIOR

FEBRUARY 11, 1946

incidental to the conduct of official business. As to what in such circumstances would constitute a permissible detour or deviation, it would appear to be necessary to turn for legal analogy to decide cases dealing with the liability of employees or their employers to third persons for the consequences of accidents caused by employees while using their employers' vehicles on business of their own, a field which for precise guidance is as unsatisfactory as the recorded history of the act, and which may be said in the final analysis to fall back upon what appears to be reasonable in the light of all of the circumstances of each case. See, for example, Ritchie v. Wailer, 63 Conn. 155, 28 Atl. 29 (1893); Lee v. Pierce, 112 Okla. 212, 239 Pac. 989 (1925); Hickson v. Walker Co., 110 Conn. 604, 149 Atl. 400 (1930).

I accordingly am constrained to hold that in the light of the legislative history of the statute, the prohibition against the use or authorization of the use of a Government-owned vehicle "for other than official purposes" does not refer to an incidental use of the nature here involved.

March 11,1946.

Mr. H. A. Andrews,
Superintendent, Quapaw Indian Agency,
Miami, Oklahoma.

The receipt is acknowledged of your letter dated February 29, addressed to the Secretary, inquiring whether restricted Indians of the Quapaw Tribe may take advantage of the Oklahoma Community Property Act of April 28, 1945, in filing income tax returns.

A similar question was recently raised by the Superintendent of the Five Tribes Agency, Muskogee, Oklahoma. Under date of February 4 this office advised the Superintendent that the Bureau of Internal Revenue in a letter dated December 27, 1945, to the Governor of Oklahoma, held that citizens of Oklahoma could take advantage of the community property statute in the filing of Federal income tax returns covering income subsequent to July 26, 1945, the effective date of the statute. For your convenient reference and guidance a copy of the letter to the Superintendent is enclosed. You will note that this decision offers the possibility of effecting a saving in income taxes of married Indians whose income is large enough to reach into more than the first surtax bracket by filing separate returns of the community income, which may be divided equally between them.

    It would appear to be the advantage of the restricted members of the Quapaw Tribe to file their Federal income tax returns in such a manner as to take advantage of the Community Property Act. It must be remembered that, while section 51 (b) of the Internal Revenue Code permits a husband and wife to elect between filing a joint or separate return, the election becomes irrevocable after the due date of the return. See Buttoluh v. Commissioner 29 F. (2d) 695; Rose v. Grant, 39 F. (2d) 340, appeal dismissed 283 U.S. 867; Einstein v. Commissioner, 10 B.T.A. 240. While the filing of separate returns will undoubtedly impose an added burden upon your office, especially in view of the change brought about by the Community Property Act during the taxable year, the savings that may be effected by filing such returns will generally be so large that joint returns should not be filed. If it is not possible to file separate returns before March 15, you should seek an extension of time for the filing of the returns from the office of the local Collector.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

COMPARATIVE GRAZING RIGHT PRIVILEGES
OF UTE INDIANS AND NON-INDIANS
ON PUBLIC LANDS

Ernest L. Wilkinson, Esq.,
Attorney for the Ute Indians,
c/o Supt., Uintah and Ouray Agency,
Fort Duchesne, Utah.

Messrs. Knox Patterson and Hugh C. Colton,
Attorneys for the Albert Smith Investment
    Co.. a corporation.
The David Smith Estate, a co-partnership,
Blanche, Moroni & Emory Smith, a
    co-partnership,
Steve Chuturas, H. A. Tyzack and D. R. Seeley,
    Salt Lake City, Utah.

Under Secretary Chapman has asked me to look into the comparative rights of the Ute Indians

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OPINIONS OF THE SOLICITOR

APRIL 3, 1946

and the non-Indians named above with respect to grazing privileges on certain public lands lying partly within the boundaries of the former Uncompahgre Indian Reservation in Utah. The particular lands involved comprise what is now known as Unit G within Grazing District No. 8, established pursuant to the provisions of the Taylor Grazing Act.

A substantial portion of the lands were originally a part of the Uncompahgre Indian Reservation established by Executive order of January 5, 1882. With the exception of lands allotted to some 83 individual Indians, the reservation was restored to the public domain by the act of June 7, 1897 (30 Stat. 87). The Indian title was thus extinguished. It is my understanding that the remaining lands, prior to withdrawal, were part of the public domain free of any claim of Indian title or ownership. Despite efforts extending over a decade, legislation proposing to establish an Indian reserve has not been enacted and the possibility of its enactment now seems remote. Until it is enacted, no title to, or ownership by the Indians of, the withdrawn lands can be recognized. Nevertheless, in virtue of long prior use of at least a part of the lands within this area and the expenditure of approximately $300,000, including $169,000 of tribal funds, in the purchase of base properties in this area, which expenditures were made with the expectation that a permanent reserve would be established by the Congress for the Indians, the equitable position of the Indians is strong.

The non-Indian users can claim no vested rights under the provisions of the Taylor Grazing Act, even if that act were applicable, since the act in section 3 expressly declares that the creation of a grazing district or the issuance of a permit pursuant to the provisions of the act "shall not create any right, title or estate in or to the lands." At the time of the passage of the Taylor Grazing Act, the lands were covered by the temporary withdrawal of September 26, 1933. Administration of the lands under range management in conformity with the Taylor Grazing Act as provided in the agreement of 1935 was temporary and limited. This agreement was superseded by the agreement of 1943, under which the Indians now hold a permit for the entire area under discussion subject to the issuance to the non-Indian users of permits for grazing privileges on the terms and conditions set forth in the agreement. The non-Indian users, although entitled to equitable consideration by reason of prior use over the years, have nevertheless refused to accept permits tendered to them under the agreement of 1943 and are, therefore, in the position of occupying the range without lawful authority.

No adjudication of the grazing privileges that would attach to the base properties of either party under the Taylor Grazing Act has ever been completed. I have concluded that while neither the Indians nor the non-Indians have any legally enforceable rights to grazing privileges on these lands, both appear to have equities of such substance that justice would be done by the issuance to them of grazing permits or licenses substantially in conformity with the provisions of the Taylor Grazing Act. Subject to reconsideration upon receipt of your views. I propose to make the following recommendations:

1. Applications for licenses or permits shall be filed with a special examiner to be selected from a region other than Utah. All applications shall be filed within not exceeding 15 days from the date of notice to be given by the examiner. The applications shall be set down for hearing before the examiner after reasonable notice to the applicants. The evidence submitted in support of applications, and the adjudication, shall conform to the requirements of the Federal Range Code except that the determination of the grazing privileges attaching to lands purchased for the Indians shall be made on the basis of grazing use during the priority period by applicants and their predecessors in interest and upon the productivity of the lands at the time of purchase. The allocation of Federal range shall, however, be made on the basis of productivity at the time of adjudication, the difference to be considered in a non-use status with the grazing privilege to attach as productivity of the base properties is restored. Upon final adjudication by the examiner of the rights of any applicant, any aggrieved party shall have the right to appeal to the Secretary of the Interior within 30 days from the date of the adjudication.

2. The grazing capacity of the lands and the dividing line between winter and summer range, agreed on by the Office of Indian Affairs and the Grazing Service and as set out in the Scott-Lenzie report of September 12, 1945, will be applied in the allocation of Federal range.

3. Licenses or permits shall be issued to the parties in accordance with the final adjudication. So far as should be practicable, the Indian and white users shall make separate use of the range in conformity with such adjudication.

4. The agreement approved June 14, 1943, shall remain in full force and effect until the adjudication shall have been completed. Unless the adjudication has been completed by the beginning of the next grazing season, any party grazing livestock on the range without a license or permit shall be subject to suit for injunction and trespass.

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DEPARTMENT OF THE INTERIOR

APRIL 3, 1946

posal are invited at the earliest possible date, copies of such comments to be served on each other. If a formal hearing is desired by either of you, my recommendations will be set down for such a hearing before me or other representatives of the Department on a date agreeable to the parties.

WARNER W. GARDNER,
Solicitor.

OSAGE ESTATE WILLED TO CHEROKEE--APPLICABILITY
OF OSAGE RESTRICTIONS TO FIVE TRIBES

This has reference to your memorandum dated January 28, requesting the views of this office regarding the correctness of advice given by you to the Superintendent of the Five Civilized Tribes Agency. In effect, you advised the Superintendent that upon the death of a full-blood Osage Indian allottee, restricted lands devised by such decedent to a full-blood Cherokee Indian of the Five Civilized Tribes became unrestricted. We find no error in the giving of such advice.

The reported facts are that Ben Mashunkashey, a full-blood Osage allottee, died on January 12, 1941, leaving a will approved by the Secretary of the Interior on June 30, 1941, and admitted to probate by the County Court of Osage County on July 24 1941. A final decree was entered October 3, 1944, at which time the testator's widow, Mamie Mashunkashey Keith, a full-blood unenrolled Cherokee Indian, was found entitled to one-third of the estate, and the remaining two-thirds interest was set apart in undivided shares to the surviving children of the testator. One of the beneficiaries thereafter instituted a partition action in the District Court of Osage County, Oklahoma, which is now docketed as Case No. 18159. The other beneficiaries are named defendants in that action, together with A. S. Sands who claims an interest in and a lien upon the undivided one-third interest of Mamie M. Keith because of certain notes, deeds and a mortgage executed by her after the testator's death but prior to the entry of the final probate decree. A separate answer was filed by the United States Probate Attorney on behalf of Mamie M. Keith, wherein it is alleged that the notes in question, which served as the basis for the execution of the deeds and mortgage as security, were given with out consideration and should be declared null and void. The request was made by the Superintendent of the Five Civilized Tribes Agency that an independent suit be instituted by the United States to cancel the conveyances executed by Mamie M. Keith on the theory that she, being a full-blood Cherokee Indian, could not alienate her devised interest without the approval of the county court.

The lands involved include the original allotment of Ben Mashunkashey as well as lands inherited by him from Osage allottees, portions of which apparently had been purchased by or for such allottees with restricted funds and title taken on a restricted form of deed. The Superintendent states that the lands were restricted while owned by Ken Mashunkashey, no doubt because of the laws applicable to members of the Osage Tribe of Indians. The continued application of those particular laws would require that the interest devised to the Cherokee widow be regarded as unrestricted upon the testator's death.¹ That such is the effect of the Osage laws appears to be conceded, but the Superintendent contends that the interest devised to Mamie M. Keith, a full-blood Cherokee Indian, is impressed with restrictions because of certain statutes dealing with the property and affairs of Indians of the Five Civilized Tribes.

Aside from the possible incongruity of an attempt to apply Five Tribes restrictions to lands which up to the date of death of the Osage Indian allottee apparently had been regarded as subject to Osage laws,² an examination of the statutes cited by the Superintendent, as interpreted by the courts, leads to the conclusion that those enactments have no application here. The Superintendent refers to sections 1 and 8 of the act of January 27, 1933,³ and the act of July 2, 1945,⁴ as supporting his view that the interest of the surviving Cherokee widow is restricted. Earlier Five Tribes legislation, particularly with respect to the restricted status of inherited and devised lands, is found in the act of May 27, 1908, as amended and extended by the acts of April 12, 1926, and May 10, 1928.⁵ It is patent from a reading of those statutes that Congress was dealing there with lands of members of the Five Civilized Tribes, and in those enactments Congress spelled out the particular restrictions which were to govern those lands in the hands of full-blood Indian heirs and devisees of deceased members of the Five Civilized Tribes.

¹ Sec. 8, Act of April 18, 1912 (37 Stat. 86); Sec. 3, Act of February 27, 1925 (43 Stat. 1008); See Lamotte v. United States, 254 U.S. 570 (1921); Cf. United States v. Mullendore, 30 F. Supp. IS (N.D.. Okla., 1939).
²Cf. Drummond v. United States, 42 F. Supp. 958, aff'd. 131 F. (2d) 568 (C.C.A. 10th. 1942).
³47 Stat. 777.
⁴Public Law 116. 79th Cong., 1st sess.
⁵ 35 Stat. 312, 44 Stat. 239. 45 Stat. 495.

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Section 1 of the 1933 act, supra, relied upon by the Superintendent, clearly cannot apply here. Aside from the apparent lack of information that the lands owned by the deceased Osage ancestor were tax-exempt as well as restricted in his hands, the language of the section itself nevertheless is an effective bar to any attempt to include within its scope lands of the type here involved. That section reads in part as follows:

While the surviving widow, as the acquirer, comes within the class of "restricted Indians," ⁶the lands so acquired by her never belonged "to members of the Five Civilized Tribes." Such lands were held by Ben Mashunkashey and his predecessors in title, all of whom appear to have been Osage Indians and members of that tribe.

Section 8 of the 1933 act, supra, likewise cannot be invoked to impress restrictions upon the one-third interest received by devise. While the language of that section is sweeping in its application to "any full-blood Indian heir," there is nothing in the section relating to lands received by devise. In that respect alone the case of Carrie Louty, nee Williams, v. L. C. Beard, et al., Civil No. 711 (U.S.D.C.-E.D., Okla), cited by the Superintendent is distinguishable. There, deeds to inherited lands executed by full-blood Indians were held to be void without approval of the county court having jurisdiction of the settlement of the deceased allottee's estate. The attempted alienation by the Indian grantors in that case fell squarely within the prohibition of section 8 of the 1933 act because their interests in the lands were those of heirs. Furthermore, it must be noted that the lands there involved had been allotted to the heirs' ancestor as a member of the Five Civilized Tribes.

In addition, there is judicial authority for the view that section 8 of the 1933 act cannot be construed to include full-blooded Indian devisees as well as heirs. See Sam Buck v. Sukey Jenkins, et al., Civil 678 (unreported), wherein a judgment was entered June 26, 1943, by the United States District Court for the Eastern District of Oklahoma. In that suit the lands involved originally comprised the allotments of Creek Indian allottees and were later owned by Cussehta Yarhola, a full-blood Creek Indian, who died testate in the year 1936. One of the testator's full-blood Creek Indian devisees thereafter conveyed her interest without the approval of the county court. The Government attempted to invoke section 8 of the 1933 act as declaring that such an alienation was void. The court said, however (Conclusions of Law, Fdg. 15), "By the plain language of sec. 8 of the 1933 act, restrictions apply only to lands acquired by inheritance by full-blood Indians, and not to purchased or devised lands."⁷

The Five Tribes legislation which expressly imposes restrictions on full-blood devisees is found in section 1 of the act of April 12, 1926.⁸ It is apparent, however, that the interest acquired by Mamie M. Keith is not an interest restricted by section 1 of the 1908 act, and the 1926 act is of no assistance therefore in imposing restrictions on the lands here involved which were restricted under separate Osage laws.

Neither does the act of July 2, 1945, supra, have any bearing on the present situation. Section 1 of that act continues restrictions on lands purchased by Indians of the Five Civilized Tribes on deeds containing restrictions expiring April 26, 1931. That section also validates titles to lands of that character conveyed by Five Tribes Indians between April 26, 1931, and the date of the act. Section 2 of the 1945 act likewise validates titles to certain lands conveyed by Indians of the Five Civilized Tribes and specifically provides that nothing contained in the act of January 27, 1933, supra, shall be construed to impose restrictions on lands acquired by Indians of the Five Civilized Tribes which were not restricted against alienation at the time of acquisition. Section 3 of the 1945 act merely validates partition judgments and sales involving Five Tribes lands, notwithstanding the failure to make the United States a party to those proceedings. Obviously, the 1945 act was designed for the purpose of validating titles. We find nothing therein which could be regarded as imposing or continuing restrictions on lands which belonged to a deceased Osage allottee.

____________________

⁶ Glenn v. Lewis, 105 F. (2d) 398 (C.C.A., 10th. 1939).
⁷ The decision in the Buck case has been followed by the Department of Justice in determining whether the Government should proceed in subsequent litigation. See for instance E. L. Franklin v. Heirs of Arlie Shoemaker, Civil No. 1160 (U.S.D.C.-E.D., Okla., unreported).
⁸ See p. 2. ants. The pertinent portion of that section amending section 9 of the 1908 act, supra, provides: "The death of an allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this act [1908 act] acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court . . ." (Italics supplied.)

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    In these circumstances, it is concluded that you are justified in treating the interest of Mamie M. Keith as unrestricted. It is possible, however, that the notes and deeds, as well as the mortgage, executed by the widow, are subject to attack for the reasons pleaded in her answer filed in the pending partition proceedings. We suggest, therefore, that this matter be fully explained to Mamie M. Keith so that she may if desired retain counsel to protect her interests in the District Court of Osage County, Oklahoma.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

WHETHER BURNS PAIUTE INDIANS CONSTITUTE
BAND AND POSSIBILITY OF ORGANIZATION
UNDER IRA

There is returned to you for further information and consideration the proposed constitution and charter for the Burns Paiute Indian Community of Burns, Oregon. To be able to organize under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), a group of Indians must either constitute a recognized tribe or band or be residents of a reservation (Sol. Op. M. 27810, dated December 13, 1934, pp. 10-l1). The record is not clear in either respect.

When the proposal to organize the Burns Indians was first submitted to the Department, the papers were returned informally to Mr. Haas because it was not clear that the Indians met either of the requirements for organization. The Burns Indians are among those for whom the Malheur Reservation was created by Executive orders of September 12, 1872, May 15, 1875, and July 23, 1880. The purpose in creating the reservation was to consolidate those Oregon Indians who lived east of the Cascade Mountains. The lands of the reservation were taken from them, however, and restored to the public domain by the Executive orders of January 28, 1876, September 13, 1882, May 21, 1883, and March 2, 1889. The Indians were dispersed over a wide area, and are at present living in the States of California, Nevada, Oregon, and Washington. (See Sen. Rep. No. 1486, 76th Cong., 3d sess. p. 3.) Some of the Indians who now reside in the vicinity of Burns, Oregon, received public domain allotments in 1896-97. but it appears that they have never resided on these allotments. The group of Indians consisting of about 25 families who now propose to organize as the Burns Paiute Indian Community live on two sites near Burns, Oregon; one of these appears to be a camp site which was formerly a dump heap of the city of Burns; the other is a subsistence homestead tract purchased with Federal funds which apparently were made available by the Emergency Relief Appropriation Act of 1935. It does not appear that either of these tracts has ever been set aside as an Indian reservation, nor that the United States holds either of these tracts in trust for the Burns Indians. The Department indeed has sought unsuccessfully to secure authority to establish the subsistence homestead lands as an Indian reservation. (See House Rep. No. 250. 76th Cong., 1st sess., on H.R. 4679.)

When the file was resubmitted to the Department with your memorandum of March 21, it included a warranty deed dated March 2, 1928, which, you pointed out, "indicates the purchase of a tract of land for the Burns Paiute Indians residing in Harney County, Oregon." You also explained that the article on territory in the proposed constitution had been revised so as to make this tract, which contains 10 acres of land, the basis of the proposed organization. But this deed, too, seems to be an absolute conveyance to the United States. It was intended to correct an earlier deed of October 5, 1926, by omitting therefrom a clause under which the tract would have reverted to the grantor if it ceased to be used by the Government as a place of residence for the Paiute Indians residing in Harney County, Oregon. It does not appear under what authority or under what circumstances this 10-acre tract was acquired; whether it is part of one of the two tracts mentioned in Superintendent Cloud's letter and report of March 13, 1941, or in addition to these two tracts; nor to what extent the Indians who propose to organize actually reside on this tract. Mr. Beatty in his memorandum of December 7, 1945, mentions a submarginal land purchase adjoining the Resettlement Administration tract which is merely used by the Indians for grazing purposes.

The file is also devoid of evidence on the question whether the Burns Indians constitute a recognized band of Paiute Indians. No evidence is at hand to show that any specific appropriations have ever been made by Congress for these Indians as a band. A few weeks ago the Department requested informally the submission of any additional information in your possession on the history and status of the Burns Indians, and a number of files relating to these Indians were transmitted to the Department. The files proved to be of no value in this connection but a sheet of paper included in one of

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them bore a notation indicating that there was considerable material on the Burns Indians in file 8684-2, Warm Springs 735, Parts 1 to 5. This file was not, however, transmitted to the Department. The files transmitted to the Department are being returned to you.

    The Department will be glad to consider any additional evidence or information which you may be able to present but on the basis of the present record it cannot find that the Burns Indians may adopt a constitution under the Indian Reorganization Act.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

Bureau of the Budget Circular No. A-38, of May 12, 1945, does not affect existing law so as to preclude the authority of the Bureau of Indian Affairs where there is Government property on hand at any Indian reservation or school not required for the use or benefit of the Indians of that reservation or school to move such property to such other Indian reservations or schools where it may be required.

Reference is made to your memorandum of April 18 requesting to be advised whether the provisions of Bureau of the Budget Circular No. A-38, of May 12, 1945, supersede existing law so as to preclude the transfer of certain property between Indian reservations or schools.

The basic law is contained in a provision of an appropriation act dated March 1, 1907 (34 Stat. 1015, 1016. 25 U.S.C. sec. 291) which reads as follows:

Bureau of the Budget Circular No. A-38 provides in paragraph 2 that "Equipment or supplies acquired for the purpose of any appropriation or allocation shall not, unless specifically authorized by law, be permanently transferred for use in furthering the purpose of any other appropriation or allocation within a department . . .". (Emphasis supplied)

    I think it is clear that the quoted provision of the 1907 act furnishes the necessary specific legal authorization for the Bureau of Indian Affairs to transfer to the extent indicated supplies and equipment on hand at Indian reservations or schools.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

TRIBAL AUTHORIZATION TO EMPLOY ATTORNEY--
DELEGATION OF APPROVAL AUTHORITY TO
COMMISSIONER--SOLICITOR'S RESPONSIBILITY

Section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), provides that tribes organized thereunder may employ legal counsel, "the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior."

By a memorandum opinion of January 22 this Office advised the Commissioner of Indian Affairs that it was legally permissible for you to delegate to him the functions committed to you under section 16 of the 1934 act, supra, if you deemed it administratively desirable to do so.

The Office of Indian Affairs has submitted drafts of proposed amendments to Parts 14 and 15, Title 25, Indians, C.F.R., to accomplish the delegation. These drafts, however, confined the delegation of authority to the Commissioner only. After the matter was discussed with officials of the Indian Service, the drafts were revised to provide that the delegated functions may be performed by the Commissioner or such other official of the Indian Service as may be properly authorized to act for and in his stead. This revision has been concurred in by the Commissioner.

You will note that the proposed amendments do not contain the phrase usually appearing in our orders of delegation relating to the retention of responsibility by the Solicitor for the review of legal

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questions. This phrase has led to some confusion by raising the question of whether the bureau concerned must submit the files to this Office or whether legal review by the Chief Counsel, under instructions from this Office, will suffice. It is understood, of course, that the omission of this phrase does not constitute an abdication by the Solicitor of his authority or responsibility in such matters, but that the Solicitor shall retain full power to exercise such supervision of the legal work, either within the bureau or by review in this Office, as may be considered necessary.

    It is recommended that the proposed amendments be approved.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

This will refer to your memorandum of April 12 relating further to the application of Wahlell Ware, unallotted half-blood Osage Indian, for an order removing restrictions on her undivided interest in certain lands in Osage County, Oklahoma.

You state that the interpretation of section 3 of the act of February 27, 1925 (43 Stat. 1008), contained in your letter of November 15, 1945, which was returned for further consideration by a memorandum from this office of December 17, 1945, was not intended to apply to lands held under restricted deeds but only to those lands inherited by or devised to Osage Indians of one-half or more Indian blood. You state further that it has been the practice of your office to require heirs to execute deeds and to have such deeds approved by the Secretary where the lands sought to be freed from restriction came to the heirs restricted by virtue of section 3 of the 1925 act, as amended, but that orders removing restrictions have been used to free land which was restricted by virtue of a restrictive clause in the instrument of conveyance. You say that the issuance of an order removing restrictions would eliminate certain work incident to the sale of the restricted land but that it would also remove whatever protective measures your office and the Department have to offer in the way of securing advantageous sales of the property for the Indian owners.

It is my opinion that, as a matter of law, an order removing restrictions is equally effective as is a deed approved by the Secretary to free from restrictions land inherited by or devised to Osage Indians and restricted against alienation by section 3 of the act of February 27, 1925, supra, as amended by section 5 of the act of March 2, 1929 (45 Stat. 1478).

The above interpretation of the law would not prevent your office, as a matter of policy, from refusing to recommend the issuance of orders removing restrictions in those cases where your office believed that the Indian owner would receive better protection if the contemplated sale of the property were accomplished under the supervision of the Department. However, it is not believed that the narrow interpretation of the law as set out in your letter of November 15, 1945, is justified.

    The Superintendent of the Osage Agency states that the order affecting the lands of Miss Ware was requested in order that the present policy with respect to such orders might be determined. If your office believes that the practice of requiring deeds approved by the Secretary should be continued, it is suggested that the Superintendent be informed that while either form of removal of restrictions is acceptable to the Department as a matter of law, the present policy will be continued by your office.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

The Executive order of December 16, 1882, set aside certain lands for the use and occupancy of the Hopi Indians "and such other Indians as the Secretary of the Interior may see fit to settle thereon." At that time and for years prior thereto the lands were occupied by the Hopi Indians and by Navajo Indians, and Navajos continued thereafter to settle within the area. Funds appropriated for Federal services such as the education of Indian children have been used throughout the years for the benefit of Hopis and Navajos living within the area and the Secretary has regulated the grazing of the livestock on the reservation belonging to Hopis and Navajos, no action being taken to prevent

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the further settlement of Navajos until the Secretary declared that Navajo Indians would not be permitted to settle on the reservation after the date of ratification of the Hopi Constitution.

The historical background shows that the intention of the Executive order was to create the reservation for the Hopi Indians and for the Navajo Indians then living within the area, with the further settlement of Navajos to be permitted in the discretion of the Secretary. Under this construction it is held that the Hopi Indians and those Navajos within the area who settled in good faith prior to the date of ratification of the Hopi Constitution have coextensive rights with respect to the natural resources of the reservation, including the mineral estate.

Under the act of May 11, 1938 (52 Stat. 347, 25 U.S.C. secs. 396a-f), lands within the Hopi Executive Order Reservation may be leased for mining purposes, with approval of the Secretary, by authority of the Hopi Tribal Council and the duly authorized representatives of the Navajos having rights within the reservation. The preparation of a roll identifying the individual Indians entitled to participate in the mineral estate is unnecessary unless it is intended that the proceeds of mineral leasing be individualized.

MY DEAR MR. SECRETARY:

The Commissioner of Indian Affairs has requested that you obtain my opinion on the following question:

The so-called Hopi Executive Order Reservation embraces some two and one-half million acres in northern Arizona, having been created out of the public domain by an order of the President, dated December 16, 1882, which set aside the area "for the use and occupancy of the Moqui [Hopi] and such other Indians as the Secretary of the Interior may see fit to settle thereon." The Hopi Indians have occupied this general area as their ancestral home for centuries, living, for the most part, in villages located on the high mesas. At least since the early part of the nineteenth century, however, Navajo Indians have also lived within the area, and the Indian population has steadily grown from approximately 2000 in 1882 to over 7000 to day.¹ The two Indian groups have retained their separate tribal affiliations and have never been able to agree on a reservation boundary or a division of land use. The reservation is heavily overgrazed, and as the population has grown the dispute between the Hopis and the Navajos within the area has reached serious proportions.

Any determination of the comparative rights of the two Indian groups must, of course, take into consideration the historical background of the ancient dispute between them. The problem out of which that dispute has grown, however, is largely one of ecomics,² and its solution depends upon factors that are primarily administrative rather than legal. No attempt will be made to solve it in this opinion. I understand that the Commissioner's request for my views was prompted by inquiries he has received as to the procedure to be followed in offering the lands for mineral development under the act of May 11, 1938 (52 Stat. 347, U.S.C. secs. 396a-f), which provides that the ". . . unallotted lands within any Indian reservation . . . may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians . . ." This question of leasing procedure may be decided upon legal grounds.

In an opinion of February 12, 1941, Solicitor Margold considered and ruled upon the question of whether the Department could, without the consent of the Indians, define a reservation boundary between the Hopis and Navajos living within the Executive Order area, thereby creating grazing districts for the exclusive use of the respective groups. It was there held, specifically, that the definition of such a boundary would be in viola-

¹ In 1882 the population consisted of approximately 1,800 Hopis and "a few hundred" Navajos. (See the Commissioner's letter of December 13, 1882, to the Secretary, recommending Creation of the reservation.) Today there are 3,000 Hopis and 4,000 Navajos living there. (See the report of the Hopi Agency for March 1944, entitled "Long Range Program for the Hopi Tribe.")
² The Congress is fully cognizant of the dispute between these Indians and the economic aspects thereof. See Part 18. of the Survey of Conditions of the Indians in the United States. Hearings before the Senate Subcommittee on Indian Affairs, 71st Congress, 3d .Session; Hearings before the Senate Committee on Indian Affairs, 72d Congress, 2d Session, on Boundary, Navajo-Hopi Indian Reservation; and Hearings before the House Committee on Indian Affairs, 79th Congress, 1st Session, on the Hopi Tribe.

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tion of legislation which prohibits the creation of Indian reservations or changes in the boundaries of existing reservations without authority of Congress. It was also held that the definition of such a boundary would violate the rights of the Hopi Indians within the 1882 reservation area and would violate the provisions of their Constitution which was approved on December 19, 1936. In discussing the rights of the Hopi Indians it was demonstrated in the opinion that under the executive order they acquired the usual Indian title which could not be divested by Departmental fiat, but that their rights were not exclusive. It was also shown that Navajo Indians were living within the area when the reservation was created in 1882 and that Navajos in increasing numbers have continued to settle there. Although I believe it is implicit in the opinion mentioned that the individual Navajos have rights within the reservation, the extent of those rights, as compared to those of the Hopis, was not discussed, and since there appears to be considerable confusion on the point among the Indians and others, I believe it desirable that the Department clarify its position on the matter now.

The Executive Order of 1882 was promulgated upon the recommendation of this Department. The records of this Department are therefore the most trustworthy source of acceptable evidence as to the meaning and effect of the order. Cf. Sioux Tribe of Indians v. United States, 316 U.S. 317 (1942). When the records relating to events leading to the creation of the reservation are considered together with those showing the course of administrative action thereafter taken, the meaning and effect of the Executive order becomes reasonably plain. At the time the reservation was created in 1882 the Secretary was well informed as to conditions among the Hopis and the Navajos by reports he had received from United States Indian Inspectors and from the Commissioner of Indian Affairs.³By a treaty of June 1, 1868 (15 Stat. 667) , a reservation had been established for the Navajos in an area lying to the east of the 1882 Executive Order area. The Navajo Tribe relinquished under that treaty their tribal claims to lands outside the treaty reservation and agreed to assist in resettling within the treaty reservation the large number of individual Navajos living outside those boundaries. Little or no success was had, however, in effecting the removal of these individual Navajos, and since the usable portion of the treaty reservation was far too small to support the rapidly growing Navajo population no serious effort was made to accomplish the resettlement. Instead, an attempt was made to handle the administrative problem by a series of Executive orders making additions to the Navajo Reservation."

The reports show that during all this period prior to 1882 the Hopis were complaining of the encroachments and depredations of the Navajos and non-Indians in their midst. As their forefathers had done before them, the Hopi Indians lived in their villages high on the mesas, coming down into the more fertile valleys only to tend stock and to tend small farming units. All efforts to remove them to the valleys met with failure, and their traditional habits of life made it difficult, if not impossible, for them to protect themselves against the encroachments of the whites and the Navajos. The Indian agent who had jurisdiction over the Hopis and Navajos within the area was handicapped in dealing with the situation because the land was part of the public domain. In a report of May 1, 1879, Agent Mateer reported numerous intrusions by the whites and asked if there were not "some law by which the Indians can be protected in their rights to lands which they have cultivated for a century or more." In comprehensive reports covering the entire Navajo-Hopi area, submitted in July and November 1882, Inspector Howard estimated that the Navajos living in Arizona to the west of the Navajo Reservation numbered 8000 and the Hopis numbered some 2000. As to the capacity of the Navajo Reservation to sustain all of the Navajo Indians, he stated that if those living in Arizona outside the Navajo reservation were crowded back on the reservation, "it would become necessary for the United States Government to feed them." He recommended the establishment of a new reservation for the Arizona Navajos and the Hopis combined, with a separate agent for these two groups. He concluded that if his recommendation were adopted and the lands were given a reservation status, the encroaching whites could be excluded, and with a combined agency the agent could umpire the controversies between the Hopis and the Navajos, possibly is suing certificates of title to the settler's within the area from both tribes.

³E.g., the reports of Inspector Vandever, September 25, 1873 (1385/1873); Inspector Daniels, August 16, 1874 (117/1874); Inspector Vandever, for 1877 (1731/1877): Inspector Howard, July 31, 1882 (15060/1882); Inspector Howard, November 29, 1882 (1403/1883); and the annual reports of the Commissioner of Indian Affairs.
⁴ Extension of the Navajo Reservation boundaries has continued by sundry Executive orders and statutes, the last being the act of June 14, 1934 (48 Stat. 960). Today the Hopi Executive Order area lies wholly within the exterior boundaries of the Navajo Reservation, and since the latter is still insufficient for the needs of the Navajos, the problem of resettlement of the excess population living within the Hopi area is thus immeasurably complicated.

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of the activities of certain white persons. In a letter to the Commissioner of November 11, 1882 (21371/1882), Agent Fleming reported open defiance of his authority by a group of white settlers, and a resultant loss of his prestige and influence with the Indians. He strongly urged that corrective action be taken, failing which he would tender his resignation. In response, the Commissioner instructed Agent Fleming to submit a description of boundaries for a reservation that would include the Hopi villages and the agency site and be "large enough to meet all needful purposes and no larger." After the land descriptions were submitted, the Commissioner recommended to the Secretary the transmittal to the President of an order setting aside the area described "for the use and occupancy of the Moqui [Hopi] and such other Indians as the Secretary of the Interior may see fit to settle thereon." In making this recommendation the Commissioner pointed to the peaceful habits of the Hopi Indians and to the difficulties encountered in dealing with the white settlers due to the want of reservation status for the lands. It was the order thus recommended that the President signed on December 16, 1882.

The factual situation delineated above shows clearly, in my opinion, that it was the intention in creating the reservation to set aside the lands for the use and occupancy of the Hopi Indians and for the use and occupancy of the Navajos then living there, and to permit the continued settlement of Navajos within the area in the discretion of the Secretary. Had there been any intention of disturbing the Navajos then occupying the area, it would have been a comparatively simple thing to draft the Executive order as to create a reservation exclusively for the Hopis. But that was not done. The prime need at the time was to provide Indian reservation status for lands long occupied by Hopis and Navajos alike, and to retain administrative authority over the further settlement of Navajos within the area. This was precisely what the Executive Order of 1882 accomplished.

The foregoing views are borne out by the history of subsequent events. Except for action taken by the military in 1890-1891 to protect the Hopis in their peaceful occupation of the traditional village areas,⁵ and the action taken by the Department in more recent years in connection with the necessary conservation of the range, no action was taken to prevent the settlement of Navajos within the 1882 reservation until the Department took the position in a letter to the Superintendent, on February 8, 1942, that Navajos would not be allowed to settle on the reservation after October 24, 1936, the date of ratification of the Hopi Constitution.⁶ I do not mean to imply that the Navajos could acquire rights in the reservation through the Secretary's inaction or through his failure to exercise the discretion vested in him by the Executive order. But the Secretary is not chargeable with neglect in this matter. Throughout the years the Secretary has sought and obtained funds from Congress which have been used for the education of the children of Hopis and Navajos alike, and the grazing of the livestock of both groups has been permitted and regulated by the Secretary. This, to my mind, is conclusive evidence that the settlement of the Navajos on the reservation has been sanctioned and confirmed by the Secretary, and that their settlement is therefore lawful, resulting in the necessity of recognition of their rights within the area.

The Executive Order of 1882 provided that the lands were set aside for the "use and occupancy" of two classes of Indians, namely, the Hopis and others settled by the Secretary. As Solicitor Margold pointed out in the opinion of February 12, 1941, this was a usual form of Indian title, carrying with it the rights normally incident to such title. It would be a violation of the clear language of the Executive order to distinguish between the quality of estate acquired by the two groups, and I therefore hold that the rights of the Navajos within the area who settled in good faith prior to October 24, 1936, are coextensive with those of the Hopis with respect to the natural resources of the reservation. It is settled by now, of course, that the mineral estate is in the Indians. See the act of March 3, 1927 (44 Stat. 1347, 25 U.S.C., sec. 398a), and Cf. United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938).

As previously stated, the act of May 11, 1938, supra, provides that the unallotted lands of an Indian reservation may be leased for mining purposes, with the approval of the Secretary, "by authority of the tribal council or other authorized spokesmen for such Indians." The term "such Indians" obviously refers to the Indian owners of the reservation. The fact that the Indian owners are of different tribal or ethnic groups should be no obstacle to leasing under the act. The Hopi Indians have a Tribal Council which is empowered by Article VI, Section 1 (c) of their approved Constitution to handle such matters. But the Navajos

⁵ See Indian Office files, Letters Received, Files Nos. 2914/1891; 4417/1891; 6567/1891; 25561/1891. ⁶ As previously stated, the reservation is now overpopulated. Since it was undoubtedly not intended that the settlement of non-Hopis continue beyond the "saturation point" it was perfectly proper for the Secretary to recognize that the point had been reached and to declare that the further settlement of Navajos would not be permitted.

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DEPARTMENT OF THE INTERIOR

JUNE 11, 1946

having rights within the reservation are not members of the Hopi organization and the Hopi Tribal Council would therefore have no authority to represent them. It is my understanding that these Navajos are represented on the Navajo Council for certain purposes but whether such representation would suffice for the purpose of approving mining leases or whether a special council should be called to designate representatives of the Navajos of the Hopi Reservation are administrative questions which should be considered in the first instance by the Indian Service. Any lease executed as authorized by the Hopi Council and the representatives of the Navajos concerned would, upon approval by the Secretary, satisfy the requirements of the 1938 act and bind all of the Indian Owners of the reservation. No necessity would arise for the preparation of a roll identifying all of the individual Indians entitled to participate in the mineral estate unless it were intended to individualize and distribute among the Indians the proceeds de rived from mineral leasing.

FELIX S. COHEN,
Acting Solicitor.

Approved: June 11, 1946.

July 2, 1946.
Mr. Curtis E. Jackson,
Fort Hall Indian Agency,
Fort Hall, Idaho.

This will refer to your letter of May 16, requesting a copy of a map which will show lands relinquished by treaties, etc., between the Shoshone Bannock Indians and the Government. This office does not have available copies of any map which would show all the above information. Some of the information you seek is embodied in the attached map. More can be found in "Royce, Indian Land Cessions," which contains maps designated as Plates Nos. 7, 8, 9, 10, 16, 39, 40, 43, 51, 52, 58, 59, 66, and 67, showing the various transactions affecting Shoshone lands in Idaho and other States down to and including August 15, 1894.

Your attention is called to the decision of the Court of Claims of the United States, dated March 2, 1942, in the case entitled The Northwest Bands of Shoshone Indians v. United States, 95 Ct. Cls. 642. You will note at page 673 a copy of a map which was submitted to the Senate for its consideration in connection with various Shoshone treaties, referred to by the court in its opinion. The opinion contains considerable historical information concerning the various Shoshone treaties. The decision of the Court of Claims was affirmed by the Supreme Court of the United States on March 12, 1945, 325 U.S. 840.

There is enclosed a typewritten copy of an excerpt from a publication by this Department entitled "General Data Concerning Indian Reservations" wherein the various acts of Congress, etc., dealing with the reservation and allotment of lands of the Shoshone-Bannock Indians, are set forth. Additional citations to Shoshone-Bannock agreements and statutes are given at pages 458 and 479 of the "Handbook of Federal Indian Law."

    Photostat copies of the plates referred to above, together with Royce's page references to the applicable treaties, statutes and Executive orders could be made and forwarded to you for a cost of approximately $9.80. If preferred, typewritten copies of the page references could be furnished at 15¢ per 100 words. If you are an Indian, this material could be furnished without charge, provided that you furnish information as to your roll number, degree of blood and the name of the tribe to which you belong.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

The attached letter addressed to the Superintendent of the New York Agency relating to a proposed power line across the St. Regis Indian Reservation is returned for your further consideration.

You state that the acts of February 15, 1901 (31 Stat. 790, 43 U.S.C. sec. 959), and March 4, 1911 (36 Stat. 1253, 43 U.S.C. sec. 961), which authorize the Secretary of the Interior to grant rights-of-way for transmission lines across Indian reservations, have not been applied generally to the Indian reservations in the State of New York. While that statement may be true, the Department has not to my knowledge construed these acts to be