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1401

OPINIONS OF THE SOLICITOR

AUGUST 7, 1946

inapplicable to the St. Regis Reservation. The lands of the St. Regis Indians are under the protection of the Federal Government and may be said to constitute an Indian reservation within the meaning of the acts of February 15, 1901, and March 4, 1911, supra.¹

In the absence of additional legislation by Congress I know of no way in which a Power company could obtain the right to construct transmission lines across the St. Regis Reservation if a right-of-way cannot be granted under one of the above two acts, unless the Power line is to be constructed wholly within the boundaries of a legally established highway and then only if the New York law permits the use of highways for transmission line purposes. This is so because of the prohibition contained in the act of June 30, 1934 (4 Stat. 729, 25 U.S.C. sec. 177) against the purchase, grant, lease or conveyance of lands, or of any title or claim thereto, from any Indian tribe "unless the same be made by treaty or convention entered into pursuant to the constitution . . ."

In the light of the above limitation of the right of the Indians to convey their lands, or any interest therein, your suggestion that the power company should obtain the consent of the duly constituted tribal governing body and easements from the individual occupants of the tribal lands proposed to be crossed, and that approval of the easements by your office or the Department is not required, appears to need further consideration. Neither individual occupants of the land nor the tribal governing body can convey any interest in the land without the consent of the United States. In this connection your attention is called to a memorandum of August 4, 1944, by the then Solicitor General, Mr. Charles Fahy, relating to the case of United States v. National Gypsum Co., 141 F. (2d) 859 (C.C.A. 2d, 1944). For your ready reference I quote the memorandum in full:

    If the statement contained in the letter from Moses J. White to the effect that the poles for the transmission of the power will be set along the highway is correct, it would appear that all that is necessary for your office to do at this time is to call the attention of the Superintendent to the decision of the United States Supreme Court in the Oklahoma Gas and Electric Company case, 318 U.S. 206. If, on the other hand, it is found that it will be necessary to cross Indians lands with the lines, the Superintendent's attention should be called to the acts of February 15, 1901, and March 4, 1911, supra. The consent of the tribal governing body to the granting of the necessary rights-of-way should be obtained. Since individual Indians occupy the lands, apparently under some form of tribal custom or assignment, it might be well to get the consent of as many of the individual Indians affected as possible.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

Lands purchased by a Klamath Indian prior to February 24, 1942, and held under a restricted deed may not be conveyed to the United States in trust for the grantor for the purpose of placing the land in a nontaxable status. The act of February 24, 1942 (56 Stat. 121), which authorizes the Secretary of the Interior to accept voluntary conveyances to the United States in trust for the grantor, and which provides that while the land is so held it shall be exempt from taxation, applies only to conveyances of land held by Klamath Indians with full power of alienation and

____________________
¹See memorandum Land Division D.J., vol. 5, p. 236, that upon the signing of the treaty of May 3, 1796, 7 Stat. 55. between the State of New York and the seven nations of Canada, made under the authority of the United States, wherein, the seven nations relinquished to the State all of their claim to the lands within the State of New York except a certain tract reserved for the St. Regis Indians that tract was set apart as a Federal reservation for the use and occupancy of the St. Regis Indians.

1402

DEPARTMENT OF THE INTERIOR

AUGUST 7, 1946

There is returned herewith for your further consideration the attached letter to the Superintendent of the Klamath Indian Agency relating to a tax exemption certificate executed by Marie Garcia Norris.

The tax exemption certificate purports to be executed pursuant to the act of June 20, 1936 (49 Stat. 1542), as amended by the act of May 19, 1937 (50 Stat. 88), but, as you state in the attached letter, the certificate cannot be approved under these acts since the land in question, though purchased in part with restricted funds and held under a restricted deed, was purchased by Mrs. Norris subsequent to May 19, 1937.

You suggest that if Mrs. Norris desires to have the land placed in a nontaxable status she take advantage of the act of February 24, 1942 (56 Stat. 121), by executing a deed to the land in question to the United States of America in trust for herself. You state that when clear title is shown and the deed to the United States is approved, the land will then be in a nontaxable status.

In my opinion the land purchased by Mrs. Norris does not come within the scope of the act of February 24, 1942, supra. That act provides:

The act does not permit the acceptance by the Secretary of deeds to land held subject to restrictions against alienation but only to lands held by the Klamath Indians with full power of alienation. This construction of the statute is clearly borne out by the legislative history which shows that it was intended primarily to prevent further loss of land to the remaining 79 fee patent allottees of the Klamath Tribe, thereby excluding from its application any Klamath Indians holding land under a restricted deed.¹

Nor does the act permit the Secretary to take title in the United States to lands purchased prior to February 24, 1942, with the restricted funds of individual Klamath Indians. The second provision of the act which permits the Secretary to take title in the name of the United States to be held in trust for individual members of the Klamath Tribe whenever their restricted funds are used merely authorizes title to land purchased subsequent to February 24, 1942, to be taken in the name of the United States. That provision of the act cannot be given retroactive application.²

    Thus, the tax exemption which the act affords extends only to land which had previously been owned by Klamath Indians with full power of alienation and which was still retained by the Indians on February 24, 1942, and to lands acquired after February 24, 1942, with their restricted funds. Since the land purchased by Mrs. Norris does not fall within either category, she may not be relieved of the burdens of taxation by virtue of that act.

                                                                                                                            W. H. FLANERY,
                                                                                                                                         Acting Solicitor.

There is attached a proposed letter to the President recommending the reappointment of William

^l S. Rept. No. 1052, 77th Cong., 2d sess.
²The Senate Report cited in footnote 1 states: "Whenever in the future the Secretary of the Interior purchases land for individual members of the Klamath Tribe, he is authorized to take title in the name of the United States as trustee for such individual Indians." (Emphasis supplied.)

1403

OPINIONS OF THE SOLICITOR

AUGUST 8, 1946

A. Durant as Principal Chief of the Choctaw Nation for a term of two years beginning August 18, 1946. In connection with such proposed appointment, Mr. John H. Proviso, Assistant Commissioner of Indian Affairs, has submitted to me a petition signed by various Choctaw citizens, wherein they ask that a nominating convention or election be called for the purpose of choosing by popular vote the Principal Chief of the Choctaw Nation. In that petition a question is presented involving the interpretation of that portion of section 6 of the act of April 26, 1906,¹ which reads as follows:

The particular question involved arises because of the petitioners' statement to the effect that the President's authority to appoint exists only through the happening of one of the various contingencies named in the statute, with the apparent inference that none of such contingencies has occurred which would serve as a basis for the proposed reappointment of Chief Durant.

It is believed that the President's present authority in this matter stems from the time his appointing powers were invoked by reason of the occurrence of one of the contingencies provided by the statute, i.e., the refusal or neglect of a Principal Chief to perform his duties or the disability or death of such officer. An examination of the Department's files discloses that as early as February 15, 1911, the President had occasion to invoke the terms of the statute, at which time he appointed Victor M. Locke, Jr., as Principal Chief of the Choctaw Nation to fill the position vacated by the death of Green McCurtain.² Successive Presidential appointments were made from time to time at the recommendation of this Department, such appointments extending "during the pleasure of the President of the United States for the time being." Upon the death of Principal Chief William H. Harrison on September 25, 1929, the Department initiated the practice of recommending to the President that he appoint Principal Chiefs of the Choctaw Nation for fixed terms. Ben Dwight, the successor of William H. Harrison, was so appointed. He held office for successive terms from February 18, 1930, the date of his first appointment, until the date of his resignation on January 1, 1937.³ William A. Durant, the present incumbent, thereafter was appointed to fill Ben Dwight's unexpired term, and since July 22, 1938, he has been recommended and appointed for successive two-year terms.

Section 6 of the 1906 act, supra, vests the power of appointment of Principal Chiefs of the Choctaw Nation in the President. No limitations, reservations or conditions are imposed or implied by the Congress with respect to such appointment, except that the appointee must be a citizen by blood of the tribe. The Congress likewise did not provide that the appointment of a Principal Chief should be for any prescribed length or period of time. In the absence of such directions by the legislative body, it is reasonable to conclude that Congress intended to commit to the President a discretion with respect to the fixing and limiting of his appointees' tenure in office, including the periods they were to serve,⁴Such a conclusion would seem to be fortified by the fact that with respect to certain other Presidential appointees for the Choctaw Nation, such as mining trustees, a definite term of office was prescribed by the Congress.⁵ Upon the death of William H. Harrison, the President chose to grant temporary or short-term appointments, at the expiration of each of which he was likewise free to reappoint the incumbent or look elsewhere for his appointee. This conclusion is in accord with the practical interpretation which has been placed upon the 1906 statute by this Department and which has continued without question for a period of more than thirty years.

Since the act of 1906 is silent concerning the manner in which the Principal Chief shall be selected, the method of selection is likewise left to the discretion of the President. In the exercise of this discretion, he may make the appointment as heretofore or he may be guided by the wishes of the Choctaw people. The Department apparently is

^l 34 Stat. 137.² Correspondence in the files indicates that Green McCurtain was the last tribally elected Chief of the Choctaws.³All of those terms were for two-year periods with the exception of a six-month appointment beginning February 18, 1934.⁴It appears to be the general rule that where an office having no fixed term is filled by appointment, the appointing power may fix the term, or it may be held at its pleasure. See Anderson v. City of Jacksonville, 41 N.E. (2d) 956 (Ill., 1942); Kinsland v. Mackey, 8 S.E. (2d) 598 (N.C. 1940); Southern Ry. CO. v. Hamilton Co., 138 S.W. (2d) 770, 772 (Tenn. 1939); Wheelis v. Franks, 72 S.W. (2d) 231, 233 (Ark., 1934); Childs v. State, 113 Pac. 545 (Okla., 1910/ Mutter of Hennen, 13 Pet. 230 (U.S., 1839).
⁵ Act of June 28, 1898 (30 Stat. 495, 510), which provides for a term of four years.

1404

DEPARTMENT OF THE INTERIOR

AUGUST 7, 1946

in sympathy with the desire of the Choctaw people to choose their own Chief, as evidenced by a letter written July 16, 1946, by Assistant Secretary Davidson to Mrs. Myrtle Creason, Oklahoma City, Oklahoma. In that letter the Assistant Secretary pointed out, however, that with respect to the pending appointment, it would not be practical to call a convention before the date of expiration of the present term of office, but that the local officials would be requested to offer recommendations concerning procedures which could be established by which the wishes of the tribal membership might be made known. Since a vacancy in the position of Principal Chief would be unfortunate at this particular period, I have surnamed the proposed letter to the President.

W. H. FLANERY,
Acting Solicitor.

Cheyenne and Arapahoe Indians retained no reversionary rights in lands ceded to the United States under the act of March 3, 1891 (26 Stat. 989, 1022). Even though General Conference of Mennonites of North America ceased using lands for religious or educational purposes, for which patent in fee was issued in 1907, any action by the United States to set aside or cancel the patent is barred by limitation under the act of March 3, 1891 (26 Stat. 1093, 43 U.S.C. sec. 1166), unless it could be proved that the patent was procured through misrepresentation or fraud. Limitation would not commence to run until discovery of the fraud. However, the doctrine of laches may be invoked against the United States. Recognizing the inadequacy of the consideration received by the Indians for such lands, Congress has, on numerous occasions, directed that the proceeds therefrom be placed to the credit of the Indians or has made the lands available for Indian use. Full investigation should be made concerning the facts and circum stances surrounding the procurement of the patent and the actual use of the land by the Mennonites from the date patent issued, in order that it may be determined whether the United States might successfully maintain an action to cancel the patent or to recover the proceeds derived by the Mennonites from leasing the land and not occupying and using it for religious and educational work, as asserted by the Indians.

You have requested my opinion concerning what rights, if any, the Cheyenne and Arapahoe Indians may have in certain land for which patent in fee was issued to the General Conference of Mennonites of North America on March 13, 1907, under the act of June 21, 1906 (34 Stat. 325, 365). The land in question is described as the N1/2 NE1/4 Sec. 30, T. 19 N., R. 13 W., I.M., Oklahoma.

This land is pant of the tract ceded to the United States by the Cheyenne and Arapahoe Indians in their agreement of October 1890, which was ratified by the Congress on March 3, 1891 (26 Stat. 989, 1022).

Article IV of the agreement provides that "wherever . . . any religious society or other organization is now occupying any portion of reservation lands for religious and educational work among the Indian [sic] the land so occupied may be allotted and confirmed to such society or organization; not, however, to exceed 160 acres to any one society or organization, so long as the same shall be so occupied and used . . ." (Emphasis supplied.)

The act of June 21, 1906, authorizes any missionary society or religious organization now occupying, for religious or educational work among the Indians, any lands in Oklahoma territory heretofore ceded to the United States by the Indians, and reserved to such organization for such religious uses on the schedules of allotments approved by the Secretary of the Interior, to apply for a patent within two years and the Secretary is authorized and directed to issue patent in fee on such application, provided that when the Indians in their agreement ceding the lands to the United States reserved to themselves a reversionary interest in such lands, such religious society shall pay therefor a fair valuation to be fixed by the Secretary, but not less than the price paid the Indians by the United States for the lands so ceded and the proceeds therefrom shall be placed in the United States Treasury to the credit of the tribes by whom such lands were ceded.

The Cheyenne and Arapahoe Reservation was allotted in 1891 and the N 1/2 NE 1/4 Sec. 30, T. 19 N., N., R. 13 W., I.M. was confirmed to the Mennonite Mission Board for religious and educational purposes. The schedule of allotments was approved by the Secretary on April 1, 1892.

By letter dated February 19, 1907, the Commissioner of Indian Affairs forwarded the application of the General Conference of Mennonites of North

1405

OPINIONS OF THE SOLICITOR

OCTOBER 16, 1946

America for a patent to the Secretary and advised him that the agreement of 1890 of the Cheyenne and Arapahos does not contain a reversionary interest in the lands, and recommended the issuance of a patent in fee under the 1906 act. By letter dated February 25, 1907, the Secretary directed the Commissioner of the General Land Office to issue the patent in fee, which was done on March 13, 1907.

According to the letter of December 6, 1906, to the Commissioner from the Superintendent of the Cheyenne and Arapahoe Reservation, the land in question was then occupied by the Mennonite Mission. The Indians assert that the land has not been used for religious or educational purposes since 1900.

1. If there is a reversionary interest in the tribe with respect to these lands, could payment of fair evaluation be obtained, and from whom?

2. If it can be shown that the Mennonites were not using the land for religious or educational purposes at the time of application for the patent and the issuance thereof, would this constitute sufficient irregularity to justify cancellation of the patent?

3. If either or both of the above questions are answered affirmatively, could the Indian collect the proceeds from the Mennonites resulting from leasing the land, during all these years?

1. Under Article II of the Cheyenne and Arapahoe Agreement of 1890 (26 Stat. 989, 1022), the Indians ceded, conveyed, transferred, relinquished and surrendered forever and absolutely "without any reservation whatever, express or implied, all their claim, title and interest of every kind and character, in and to the lands . . ." It is quite clear, therefore, that the Indians have no legal reversionary rights in the ceded area. However, although the Congress has been fully apprised of this Fact, that body has on numerous occasions authorized disposition of such lands and, recognizing the in adequacy of the consideration received by the Indians for such lands, has directed that the proceeds therefrom be placed to the credit of the Indians, or has made the lands available for Indian use. (See H. Rept. No. 704, 62d Cong., 2d sess., and the act of April 13, 1938 (52 Stat. 219;). Also H. Rept. No. 978, 78th Cong., 2d sess.)

2. Whether the patent could now be set aside or canceled depends upon proof of the following facts: (a) that the patent was procured through misrepresentation or fraud; (b) that the 6-year period of limitation prescribed by the act of March 3, 1891 (26 Stat. 1093, 43 U.S.C. sec. 1166), has not run since discovery of the fraud; and (c) that the Government has not been guilty of laches in discovering the fraud, even though the perpetration thereof was concealed. Exploration Company, Ltd. v. United States, 247 U.S. 435; United States v. Diamond Coal and Coke Company, 255 U.S. 323. Your second question cannot be answered fully until all the facts and circumstances in connection with the procurement of the patent are before me for consideration. It is suggested that a full investigation be made and that a complete report be rendered thereon.

3. Since the Indians have relinquished all right, title and interest in the ceded area, it is evident that they could not collect the proceeds from the Mennonites resulting from leasing the land and not using the same for religious or educational purposes, if investigation shows that the lands have been so leased. Whether the United States could successfully maintain such an action will, of course, depend upon the facts developed by a thorough investigation. Should the Government succeed in recovering the proceeds of leasing, further action by the Congress would be required in order to place such funds to the credit of the Indians. Favorable consideration by Congress would be in harmony with its past recognition of the Indians' equitable rights in the lands.

The record before me contains no evidence concerning the leasing of the land by the Mennonites. The investigation should cover all of the facts in connection with the use of the land by the Mennonites since the issuance of the patent.

    Upon submission of a complete report on all of the controlling facts hereinabove pointed out, further consideration will be given to the questions presented.

                                                                                                                            W. H. FLANERY,
                                                                                                                                         Acting Solicitor.

In the absence of specific legislative authority there is no power in the head of an executive department to dispose of Government property by alienating the title, ownership or control thereof.

The Interior Department Appropriation Act for 1947 (Public Law 478) authorized the transfer to the Secretary of the Interior for the use of the Bureau of Indian Affairs, certain naval facilities

1406

DEPARTMENT OF THE INTERIOR

OCTOBER 16, 1946

and Army installation, including the hospital building concerned, and supplies and equipment needed to operate the facilities for school and hospital purposes.

The Secretary of the Interior is without legislative authority to transfer the property to the Territory of Alaska.

The issuance of a revocable permit to the Territory permitting certain uses of the property under an arrangement which is mutually satisfactory would not involve an alienation of the title, ownership or control of the property.

Memorandum
To:        The Director,
             Division of Territories and Island Possessions
From:    The Solicitor
Subject: Orthopedic space in Sitka Hospital,
              Alaska

    Reference is made to your memorandum of October 1, requesting my opinion as to whether under existing law a hospital building at Sitka, Alaska, now being operated by the Bureau of Indian Affairs, may be transferred to the Territory of Alaska and operated as an orthopedic clinic and hospital at territorial expense.

From the facts stated in your memorandum and the information disclosed by the correspondence in the files of the Department, it appears that the proposal has been under consideration for some time and that the Commissioner of Indian Affairs, by a memorandum dated September 30, advised the Secretary that the Law Division of his office had concluded that it was not possible under existing law to carry out the plan of the territorial officers which proposes that the property be turned over to the Territory for operation for the purposes stated. The Commissioner, however, reported that he had explored other possibilities and had instructed the local superintendent of the Alaska Native Service to take the matter up with the Territorial Health Department, with a view to reaching an agreement upon a plan to furnish the needed medical care for both white and native children.

The correspondence discloses that the hospital building under consideration is a part of the properties and facilities of the Navy Department which were made available for transfer to the Secretary of the Interior for the use of the Bureau of Indian Affairs, by a provision in the Interior Department Appropriations Act for 1947 (Public Law 478), which reads as follows:

Since Congress has authorized the Secretary of the Navy to transfer the property to the Secretary of the Interior for the use of the Bureau of Indian Affairs, the proposed transfer to the Territory of Alaska would be unauthorized in the absence of additional legislative authority. 29 Op. Atty. Gen. 205, 272; 33 Op. Atty. Gen. 288; cf. 37 Op. Atty. Gen. 459.

It is my understanding that an effort is being made to work out an arrangement which would be mutually satisfactory. In this connection, I wish to call your attention to the possibility of the issuance of a revocable permit to the Territory, if this should be compatible with the requirements of the Bureau of Indian Affairs. Such a practice has been sanctioned by the Attorney General. 29 Op. Atty. Gen. 205, 207.

PROHIBITION AGAINST CERTAIN FORMER
EMPLOYEES PARTICIPATING IN DISPOSAL
OF SURPLUS PROPERTY

Section 27 of the Surplus Property Act of 1944 (act of October 3, 1944, 58 Stat. 765, 78 1, 50 U.S.C. App., Sup. V, sec. 1636), prohibiting any person who ratified, approved, or authorized the disposition of any surplus property under the act or recommended any such approval, authorization or ratification as part of his official duties, from subsequently acting as counsel, attorney, or

1407

OPINIONS OF THE SOLICITOR

AUGUST 7, 1946

agent, or being employed as representative, in connection with any matter involving the disposition of surplus property by his former agency, is not applicable to an employee of the Territorial Surplus Property Office whose official duties consisted of the appraisal of property already declared surplus, and did not include the enumerated actions.

Memorandum
To:            Director of Personnel
From:        The Solicitor
Subject:     Transfer of Inspector-Appraiser in Territorial Surplus Property Office in Indian Service

The personnel file of Raymond T. Mathews and other relevant documents have been referred to me for a determination as to whether his duties as an inspector-appraiser with the Territorial Surplus Property Office would preclude his employment by the Indian Service in a position the duties of which would include the acquisition of surplus property for the Indian Service.

On the basis of the papers before me, I am of the opinion that Mr. Mathews may properly be transferred, but I urge that inquiry be made to as certain whether Mr. Mathews has actually performed duties other than those stated in his job sheet.

Section 27 of the Surplus Property Act of 1944 (act of October 3, 1944, 58 Stat. 756, 781, 50 U.S.C. App., Supp. V. sec. 1636), reads as follows:

The purpose of this section is to prevent loss to the Government in its disposition of surplus property by reason of experience and information gained by persons formerly occupying positions in which they were responsible for the disposition of such property. It is therefore arguable that the section is not applicable to persons transferring to other parts of the Government, since the Government, the agencies of which are entitled to priority in the acquisition of surplus property at the fair value fixed by the disposal agency under section 12 of the act, would lose nothing by such intra-governmental transactions. However, the language of section 27 is so comprehensive and the penalties for its violation are so severe that I prefer to rely upon other grounds for approving the legality of Mr. Mathews' proposed duties in the Indian Service, if possible.

As an inspector-appraiser, CAF-I11, for the Territorial Surplus Property Office at Juneau, Alaska, Mr. Mathews' duties, according to his job-description, are as follows:

1408

DEPARTMENT OF THE INTERIOR

OCTOBER 21, 1946

If Mr. Mathews' responsibilities with respect to the disposition of surplus property have been confined to the duties listed in his job description, section 27 of the Surplus Property Act would not prohibit him from subsequently acting as representative in the acquisition of surplus property. A preliminary memorandum from the Attorney General dated November 13, 1944, while not purporting to discuss specific cases, has the following to say about the employees to whom section 27 applies:

Mr. Mathews' duties apparently consisted of evaluating property already declared surplus, and apparently they ended with his appraisal. If his job description is an accurate summary of his work, he neither ratified, approved, or authorized the disposition of any surplus property under the act nor recommended any such approval, authorization, or ratification as part of his official duties. Accordingly, he would not be incurring possible criminal penalties by representing the Indian Service in the acquisition of surplus property from the Territorial Surplus Property Office, unless duties outside the scope of his job-description were actually assigned to him.

    The memorandum prepared for your signature, however, indicates that there is a possibility that Mr. Mathews may have engaged in work not covered by his job sheet that might fall within the prohibition of section 27. In the circumstances, I am of the opinion that Mr. Mathews' protection requires that his transfer be delayed until a statement can be obtained from the Territorial Surplus Property Office negating the official performance by Mr. Mathews of any of the acts referred to in section 27.

                                                                                                                        MASTIN G. WHITE,
                                                                                                                                                Solicitor.

Memorandum
To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Proposed purchase of Allotment No. 46 by Edward Hatchett, a Winnebago Indian.

The view expressed in your letter to Superintendent Parker of the Winnebago Agency concerning this matter, that a patent in fee may be issued to the purchaser notwithstanding any provision of the Indian Reorganization Act, is correct. The letter, however, also seems to contemplate that in addition to issuing a patent in fee, an order transferring the inherited interests will be made. The order made in such cases transfers only the trust title, and is employed only when it is desired that the lands shall continue to be held in trust. There is no need for the order when it is desired to create an unrestricted fee simple title. Under section 1 of the act of June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372), the Secretary may cause the lands to be conveyed without the consent of the heirs, and he may issue a patent in fee directly to the purchaser. While such a procedure is contrary to an existing regulation (25 CFR, section 241.10), an exception to the regulation may be made.

There are also several other objections to your proposed letter. The word "inherited" rather than "allotted" should have been employed in the seventh line of the last paragraph of the letter, since only interests in inherited lands may be transferred; the reference to condemnation proceedings in the last line of the letter is incorrect since a taking under such proceedings, which is involuntary, cannot be said to be a "disposition". It would seem to be unnecessary, however, to discuss possibilities of disposition which are not involved in the present case..

The letter has been revised in accordance with these views, and it is suggested that you sign the revised letter, which has been prepared for Departmental approval, in view of the fact that an exception to the regulations is being made.

1409

OPINIONS OF THE SOLICITOR

NOVEMBER 12, 1946

SIR:

There is enclosed a copy of a memorandum dated September 6 from the Assistant Commissioner of Indian Affairs, together with copies of correspondence from the local officials of the Five Civilized Tribes Agency, Muskogee, Oklahoma, relative to the distribution of the estate of George Jones, a deceased full-blood Seminole Indian. Jones died on or about November 5, 1942, leaving a will wherein he named as his beneficiaries three restricted Indians who would have inherited his estate had he died intestate. The claim of the only contestant of the will, Thomas Jones, was settled through a stipulation of the parties, as shown by the attached copy of an order by the county court distributing the estate. No notice of the pendency of the probate proceedings was served upon the Superintendent of the Five Civilized Tribes Agency in accordance with the provisions of section 3 of the act of April 12, 1926 (44 Stat. 239).

This matter is referred to you because of the possibility of future action by your Department on behalf of some claimant to the estate. You have entertained the view, on the basis of the decision in Anderson v. Peck, 53 F. (2d) 257 (1931), that the Government is not barred from attacking decrees entered in probate proceedings relating to deceased members of the Five Civilized Tribes if the Government was not a party and no notice was served on the Superintendent under section 3 of the 1926 act, supra. It appears, however, that the county court decree which was subject to attack in the Peck case was held to be of no effect because of the lack of process under State law on the Indian heir in whose behalf the Government intervened. It was solely on the basis of a want of due process on the Indian heir that the judgment of the Federal district court was affirmed on appeal. Roberts v. Anderson, 66 F. (26) 874 (1933). It would seem, therefore, to be an open question whether a probate decree which is valid and effective in al1 other respects could be reopened on the motion of the Government merely because the Government was not a party to the proceeding or because notice was not served under the 1926 act. Cf. United States v. Hellard, 322 U.S. 363, 365 (1944); In re Micca's Estate, 59 F. supp. 434, 440 (1945).

It is unlikely that the Government would see fit to attack any completed probate proceeding unless it should appear that fraud, collusion, or other impropriety was involved. In such a situation, private litigants themselves ordinarily would not be barred from moving to set a decree aside. We are unaware of any instance where your Department, acting on behalf of the Government, has moved to set aside a probate decree which was final and binding on all other parties and wherein all statutory and other requirements had been met by a court having jurisdiction over the proceedings. Where these factors are present, it would seem that the Agency Superintendent or disbursing officer would be warranted in making distribution of the estate based on the county court's final decree. In analogous circumstances officers have been held justified and protected when following an order or process of a court, tribunal, or other body of competent jurisdiction. See Harding v. Woodcock, 137 U.S. 43 (1890); Haffin v. Mason, 15 Wall. 671 (1872); Kercheval v. Allen, 220 Fed. 262 (1915); State ex rel. Grimes v. Board of Education of Oklahoma City, 99 P. (26) 876 (Okla., 1940); cited with approval in Standard Surety and Casualty Co. of New York v. State of Oklahoma, 145 F. (2d) 605, 609 (1944); Board of Education v. Jeppson, County Treasurer, 280 P. 1065, 1067 (Utah, 1929); Mundell v. Wells, 184 P. 666, 667 (Calif. 1919); Robinette v. Price, Sheriff, 8 N.W. (2d) 800 (Minn., 1943).

This Department proposes to instruct the Agency Superintendent to continue to make distribution of the estates of Indians who died intestate whenever a county court having jurisdiction over the proceedings has entered a final order determining the heirs after full compliance with all the statutory requirements, irrespective of whether notice was served under the 1926 act.

In view of the decision in the case entitled In re Micco's Estate (your file RFM-M JS 90-2-12-263), it would seem to be immaterial in any event whether notice of a proceeding to determine heirship was served on the Superintendent, because proceedings of that type were treated by the Federal district court in the Micco case as not coming within the scope of the 1926 act. Consequently, this Department further proposes to advise the Superintendent that it is not necessary for probate attorneys to serve further notices under the 1926 act in proceedings involving only the determination of heirship.

In the case of a proceeding which involves the probate of a will and the distribution in conformity

1410

DEPARTMENT OF THE INTERIOR

NOVEMBER 12, 1946

with its provisions of restricted property, it seems advisable that notice be served under the 1926 act. It may be argued that, since a valid will operates as an alienation of restricted property within the meaning of the acts of Congress (Caesar v. Burgess, 103 F. (2d) 503, 507 (1939), the interests of the United States in the proceedings are so vital as to require the presence of the Government as a necessary or indispensable party. Cf. United States v. Hellard, supra. If the courts should ultimately take this view of the matter, the proceedings relative to the will, like the partition proceedings in the Hellard case, might be held to be fatally defective in the absence of notice. On the other hand, the courts might well take the view expressed in the Government's brief before the United States Supreme Court in United States v. Rice, 90 L. Ed. 769 (Oct. Term, 1945), that the Government is a proper but not an indispensable party and that the probate court otherwise having jurisdiction can proceed in the Government's absence. Faced with this uncertainty regarding the ultimate judicial view upon the question indicated, we believe that the rights of the parties would be better protected by the service of notice in all cases of this type.

This Department is presently confronted by the problem of the propriety of distributing estates like that of George Jones upon the basis of decrees of the State courts in cases to which the United States was not a party and in which notice was not served under the 1926 act. While is now appears to be too late to cause notice to be served in the proceedings on that particular estate, a separate suit to quiet the title to the property of George Jones might be instituted, in which event notice could be served under the 1926 act. However, the institution of such a suit seems inadvisable for the reason -that, since the beneficiaries under the will are also the heirs at law of the testator, the probability of the assertion in the future of an adverse claim to the Jones estate is highly remote. It is the view of this Department, therefore, that the estate of George Jones should be distributed by the Superintendent in accordance with the final order of the county court.

    An expression of your views regarding the propriety of distributing the estate of George Jones in accordance with the order of the county court, and also concerning the proposal that Probate Attorneys discontinue the serving of notices under the 1926 act in all probate proceedings which involve only the determination of heirs, would be appreciated.

                                                                                                                        MASTIN G. WHITE,
                                                                                                                                                Solicitor.

                                                                                                                                 December 6, 1946.
Memorandum
To:            Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Application of the Fort Belknap Indian Community for a loan of revolving credit funds in the
                 amount of $225,000.

In connection with the attached application of the Fort Belknap Indian Community for a loan of revolving credit funds in the amount of $225,000, of which $125,000 are to be devoted to the establishment and operation of a tribal land purchase enterprise, you have requested the opinion of this office on the question whether this Indian tribe, through a tribal leasing clerk, may take over the clerical work involved in the leasing of individual and tribal lands, and the assessment of fees for the performance of this work. The leasing fees would eventually be deposited locally to the credit of the land enterprise, and would be used to meet its
expenses.

Apparently the money needed to pay the salary of the tribal leasing clerk is to be provided initially by using $1,800 of tribal industrial assistance funds now on deposit in the United States Treasury. It is stated in the detailed plan of operation of the tribal land enterprise: "The $1800 received from Tribal Industrial Assistance Funds will be repaid to an appropriate tribal account" (p. 7). It seems that once the $1,800 has been repaid to this account from leasing fees, all further deposits would be made in "the Fort Belknap Indian Community tribal account at Fort Belknap Agency" (p. 7). The schedule of fees would coincide "with those now authorized in the Secretary of the Interior's regulations."

What precisely is meant by the "clerical" work to be done by the tribal leasing clerk is not entirely clear from the plan. Would the leasing clerk merely prepare the papers and attend to other details? Or would he also execute the lease on be half of the lessor, whether an individual or the tribe? In a teletype message dated October 10, however, the information has been supplied that the lands would continue to be leased in accordance with the grazing and leasing regulations, which require approval of any lease by some officer of the Department. Thus, the tribal clerk would perform only the task of preparing the papers and attending to other details.

I shall first consider the question of the authority to employ tribal industrial assistance funds in the

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OPINIONS OF THE SOLICITOR

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United States Treasury to pay the salary of the tribal leasing clerk in the initial stage of the operation of the enterprise. Since 1945, the annual Appropriation Act has carried a provision making tribal funds available in tribal enterprises, in accordance with the Revolving Credit Regulations, whether or not the tribal enterprises are conducted by tribes that have organized and incorporated under the Indian Reorganization Act. In practical terms this has meant that revenues derived from enterprises operated with tribal funds advanced to unincorporated tribes need no longer be covered into the Treasury, but may be used as a revolving fund, as when advances are made to incorporated tribes. Thus the current Appropriation Act (Public Law 478, 79th Cong., at p. 15) provides:

This provision makes no distinction between administrative and other expenses in the conduct of a tribal enterprise. It would also seem to be immaterial that the tribal leasing clerk would assist in leasing individual as well as tribal lands, if he is otherwise authorized to do so. Presumably each individual owner would normally give his consent to the leasing of his land in this manner and would thus entrust managerial functions to the enterprise. The enterprise, however, would be no less tribal in character because it would involve participation in the management of individual lands.

Thus, there would seem to be nothing in the provision of the current Appropriation Act upon the subject which would prevent the advance of tribal funds to pay the salary of the tribal leasing clerk in the initial phase of the operation of the enterprise. It is necessary, however, to consider also the effect of the act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. sec. 413), which provides:

This act does not in itself prevent a tribal body or any other body from collecting leasing fees, nor does it even require the Secretary to collect fees for the performance of work in connection with the management of Indian resources. The legislative history of the act, which may be gathered from Senate Report 1204, 72d Cong., 2d sess. (1933), shows that it had two purposes:

Any possible conflict between this statute and the provision of the current Appropriation Act would seem to be avoided by that feature of the plan for the tribal enterprise which calls for the deposit of leasing fees in the local tribal treasury only after the amount of the advance has been repaid into the United States Treasury. The necessity for such repayment, however, will undoubtedly hamper the operation of the leasing program, and render more difficult the problem of meeting the salary of the leasing clerk. I should point out, therefore, that consideration should be given to the possibility of eliminating the immediate repayment of the advance of tribal industrial assistance funds into the United States Treasury. In a memorandum of December 4, 1944, this office held that the provision of the 1942 Appropriation Act (55 Stat. 303, 316), which required the repayment into the United States Treasury of the revenues derived from the operations of the Navajo sawmill, was in effect superseded by the provision of the 1945 Appropriation Act with reference to the advance of tribal industrial assistance funds to tribal enterprises, which did not require such repayment. While there is a general rule of statutory construction to the effect that a special statute will not be presumed to be superseded by one of general operation, the rule yields to evidence of a contrary intention, and such evidence was found in the legislative history of the 1945 Appropriation Act, which clearly showed that it was the intention to establish a uniform system in the use of tribal industrial assistance funds in tribal enterprises. This reason-

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DEPARTMENT OF THE INTERIOR

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ing would seem to be wholly applicable to the construction of the act of March 1, 1933. The amounts collected in fees would not have to be repaid at once into the United States Treasury but could be retained to pay the salary of the tribal leasing clerk.

It has also been objected that the tribal leasing clerk could not participate in the leasing of tribal or individual lands because he would be performing a Government function. So far as the tribal lands are concerned, this view is obviously untenable. An incorporated tribe such as the Fort Belknap Indian Community, clearly has authority to lease such lands, and therefore may employ a tribal leasing clerk. Section 1 of its charter declares that one of the purposes for which the corporation has been formed is "to provide for the proper exercise by the Community of various functions heretofore performed by the Department of the Interior." Section 5 (b) of the charter contains the provision authorized by section 17 of the Indian Reorganization Act (48 Stat. 988; 25 U.S.C. sec, 477) which confers upon the community "the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, rate, and dispose of property of every description, real and personal," except that no sale, mortgage, or lease for a period exceeding 10 years may be made. While subdivision (b) (2) of the same section subjects leases to the approval of the Secretary of the Interior, this limitation is derived from the charter itself, and may be terminated at any time by the Secretary of the Interior upon the request of the Community Council and upon submission of the question of termination to the members of the community, or by a two-thirds vote of the Community even over the objection of the Secretary of the Interior. (Charter, sec. 6.) It was the purpose of the charter to vest the administration of tribal property in the Community Council; the requirement of Secretarial approval in certain cases was intended only as a temporary safeguard; and the mere existence of this provision does not render the leasing process a governmental function which may be performed only by civil-service employees. (See memorandum of Acting Solicitor Kirgis to Commissioner of Indian Affairs, dated May 22, 1937.) I assume that the leases will still be approved by the Community Council and the Secretary of the Interior, as required by the Community charter. There is no reason, however, why the details of the transaction may not be entrusted to the tribal leasing clerk.

A somewhat more difficult problem is presented, however, by the participation of the tribal leasing clerk in the leasing of individual lands. The charter of the Fort Belknap Indian Community does not expressly enlarge in any way the powers of the Community Council in dealing with lands which are individually owned. It must be determined, therefore, whether the activities of the tribal leasing clerk would be in harmony with the provisions of Federal law governing the leasing of individual lands. I need consider only the provisions governing the leasing of individual lands for farming and grazing purposes. No other types of lease would presumably be made in connection with the operations of the tribal land enterprise. The individual lands involved would be lands allotted under the act of March 3, 1921 (41 Stat. 1355), or possibly lands purchased pursuant to the provisions of the Indian Reorganization Act. In either case, the lands would be held under trust patents.

The statutes authorizing leases differ in many respects. The statutes which would have a bearing on farming and grazing leases are the acts of March 3, 1921 (41 Stat. 1232; 25 U.S.C. sec. 393), May 18, 1916 (39 Stat. 128; 25 U.S.C. sec. 394), May 31, 1900 (31 Stat. 229; 25 U.S.C. sec. 395), June 25, 1910 (36 Stat. 856; 25 U.S.C., sec. 403). The authority to lease under each of these statutes varies in one or more respects: the circumstances under which the lands may be leased; the type of lands that may be leased; the purpose for which the lands may be leased; the length of the term of the lease; the making of the lease; and finally the approval of the lease. The making and approval of the lease are particularly significant factors in connection with the present problem, and the most general, and hence important, statutes are the acts of June 25, 1910, and March 3, 1921. Under the latter, restricted allotments may be leased for farming or grazing purposes by the allottee or his heirs subject to the approval of the Superintendent under such rules and regulations as the Secretary of the Interior may prescribe, while under the former allotted lands held in trust may be leased by the allottee for any purpose in conformity with such rules and regulations as the Secretary of the Interior may prescribe. There is no express statutory authority for leasing lands purchased for individual Indians pursuant to the Indian Reorganization Act, but it is not clear whether there is any intention to lease such lands.

This Department has held that a trust of restricted Indian funds whereby a commercial trust company would take over the management of the trust estate could not be created even with the approval of the Secretary of the Interior who had control of the restricted funds (Op. Sol. M. 25258, approved June 26, 1929). The Attorney General came to the same conclusion in an opinion dated October 5, 1929 (36 Op. Atty. Gen. 98). These opinions seem to rest upon the theory that the

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OPINIONS OF THE SOLICITOR

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control of restricted funds is a Government function which the Secretary could not delegate to agencies outside of his Department in the absence of express statutory authority even though he might remove altogether the restrictions upon the funds, The canon against the delegation of legislative authority to nongovernmental agencies which was enunciated by the Supreme Court in Schechter Corp. v. United States, 295 U.S. 495, 537 (1935), has been repeated by the Court in Carter v. Carter Coal Co. 2, 98 U.S. 238, 310 (1936), although it has not been applied in subsequent cases such as Sunshine Coal Co. v. Adkins, 310 U.S. 381, 399 (1940); Cumin v. Wallace, 306 U.S. 1, 15 (1939), or Yakus v. United States, 321 U.S. 414, 424 (1939), where the question was essentially whether Congress could make the execution of a statutory scheme dependent upon some action by a private group. A fortiori, if a legislative body may not delegate its legislative functions to an outside agency, an administrative body may not thus rid itself of administrative responsibility imposed by statute.

A proposal to "delegate" to the Southern Ute Tribal Council the Department's authority under the act of March 1, 1933, supra, to charge fees to cover the cost of preparing tribal grazing permits was considered in a memorandum of this office dated March 28, 1939. It was suggested that the delegation could be made under section 2 of Article V of the Southern Ute constitution, which provided that the Tribal Council might exercise "such further powers as may be delegated to the Southern Ute Tribe by the Secretary of the Interior." It was pointed out that since the council had authority itself to issue the permits, it could undoubtedly charge fees to cover the cost of the work. There was thus no real problem of delegation. Doubt was, however, expressed that the Secretary could delegate his power to charge fees under the act of March 1, 1933, in a case in which the power of disposition was vested in him.

These opinions are perhaps the basis of the view expressed in your office that "tribal employees cannot assist in transcribing leases and permits, posting accounts, etc., which tasks are supposed to be Government functions to be performed by civil service employees only." This view may be considered in the light of various alternative theories.

In the first place, the leasing statutes do not impose any particular ministerial requirements. The authority to lease restricted lands, whether held in trust or subject to restrictions against alienation, is granted actually to the allottees or their heirs. Presumably they will normally consent to the making of the leases and the payment of the leasing fees. While the authority to lease is subject to a regulatory power in the Secretary, and in the case of restricted allotments the approval of the Superintendent is expressly required, it does not necessarily follow that every step in a leasing trans action must be regarded as a Government operation, Since the plan for the Fort Belknap tribal land enterprise contemplates that whatever approval is required by the statutes or regulations will be given by the appropriate officers of the Federal Government, there would seem to be no serious problem of delegation of Government authority to any "outside agency."

Certainly there would be no delegation of any discretionary duty of the Government officers in leasing allotted lands. The tribal clerk would perform purely ministerial duties in connection with the leasing of such lands which hitherto have been performed by a Government clerk in accordance with the existing regulations. But the statutes themselves do not require the transcribing of leases or the posting of accounts any more than they prescribe that the Secretary shall manufacture his own paper, typewriters and ink. The performance of "government functions" becomes involved in mysticism if it is contended that statutory requirements are violated when an "outside agency" performs purely mechanical or ministerial acts.

Moreover, if the allottee may lease the land, he may himself prepare the lease and attend to other details. He is required only to submit the lease to the proper Government officer, who is usually the Superintendent. What the allottee may do for himself, he may do through the tribal leasing clerk. Even the posting of accounts is not a necessary and integral part of a statutory scheme. Section 4 of the act of June 25, 1910, supra, does provide that the proceeds of any lease "shall be paid to the allottee or his heirs, or expended for his or their benefit, in the discretion of the Secretary of the Interior," But the Secretary may and in fact has allowed competent allottees at least to collect and retain the rentals, as well as to negotiate their own leases (25 CFR 171.4)

The leasing of inherited allotments presents a more difficult problem. The act of July 8, 1940 (54 Stat. 745; 25 U.S.C. sec. 380), provides that restricted allotments of deceased Indians may be leased by reservation superintendents, subject to departmental regulation, when the heirs or devisees have not been determined, or if determined, they are not making use of the lands, and have failed to agree upon a lease during a 3-month period. The proceeds are required to be credited to the estates or accounts of those entitled thereto. Under this statute, the power of disposition is undoubtedly vested in a Government officer and the occasion for

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DEPARTMENT OF THE INTERIOR

DECEMBER 6, 1946

its exercise is of frequent occurrence. The inability to secure adequate consent may exist also in the case of incompetent allottees or heirs. The mechanical details of leasing such lands are, however, not prescribed by the statutes, and the approval required by the statute or regulations would in any event be given. Since it is concluded below that a tribal leasing clerk would not be an outside agency, such cases, too, would not seem to present an insuperable obstacle. It is not clear from the plan, however, just how the proceeds would be handled in such cases by the tribal leasing clerk.

No bar to the proposed scheme would seem to be interposed by section 3679 of the Revised Statutes, as amended by the act of February 27, 1906 (34 Stat. 27, 48; 31 U.S.C. sec. 665), which provides: "Nor shall any department or any officer of the Government accept voluntary service for the Government * * *". It may be argued that even though the services are not required by the statutes, and are not therefore "governmental" in nature, the Department would be taking advantage of the services in performing the necessary function of review or approval. This indirect benefit, however, would not seem to contravene the statute. Moreover, the Attorney General has held (30 Op. Atty. Gen. 51, 55) that "the evil at which Congress was aiming was not appointment or employment for authorized services without compensation, but the acceptance of unauthorized services not intended or agreed to be gratuitous and therefore likely to afford a basis for a future claim upon Congress." In any event, the statute would not have the effect of invalidating any lease in connection with which "voluntary" services had been accepted.

The problem thus far has been discussed upon the assumption that a government of an Indian tribe is vis-à-vis the Federal Government, an outside agency." Actually, an Indian tribal government can hardly be regarded in the same way as a private commercial trust company. It has been held that Indian tribes may impose on Indian Service employees the duty of enforcing the laws and ordinances of the tribe. See Cohen, Handbook of Federal Indian Law, pp. 149-150. While these cases involved permit laws of one or the other of the Five Civilized Tribes in Oklahoma, and hence the application of the Curtis Act, the courts seem to have recognized the possibility of delegation upon general principles. So, too, the Department has held that an incorporated Indian tribe may delegate to an Indian Service employee the performance of ministerial functions in the preparation and execution of a lease. The Department has also assumed in a letter dated April 17, 1945, to the Superintendent of the Flathead Agency that an Indian tribal government is a "municipality" in the sense in which the term is employed in section 1 of the act of March 3, 1917 (39 Stat- 1106; 5 U.S.C, sec. 66), so that an Indian tribal government could contribute to the salary of an Indian Service employee without violating the prohibition of the statute. Conversely, it has been recognized in at least one instance by statute that the Secretary of the Interior might give to the proper authority of a tribe the direction of persons employed by the Government in their behalf. See Rev. Stat. sec. 2072, now 25 U.S.C. sec. 48. White this statute would not afford the basis for the solution of the present problem, since the leasing clerk would not be a Government employee unless he continued to be paid from gratuity or tribal funds, the possibility of making such a delegation without endangering vital governmental interests would seem to be apparent. In fact, the Department, even in the absence of express statutory provision, has generally assumed that it may delegate to an Indian tribal government the "sole" power, pursuant to section 5 of the act of August 15, 1876 (19 Stat. 200; 25 U.S.C. sec. 261), to appoint traders to the Indian tribes. If Indian tribal courts may be regarded as disciplinary agencies of the Department rather than as agencies of the tribes, then it may be said that the Department has frequently delegated its authority to particular tribal courts. Indeed, the constitutions adopted by tribes under the Indian Reorganization Act generally contain a standard clause providing that the governing body of the tribe may exercise such powers as may in the future be delegated to it by the Secretary of the Interior. While this provision does not, of course, determine the extent of permissible delegation, it is evidence of the expectation of making such delegations.

It must be apparent that in their relations with each other the Federal Government and an Indian tribe do not regard each other as alien sovereignties. Power has flowed in both directions, and this could have occurred only if it be assumed that an Indian tribal government may in fact be regarded as an instrumentality of the United States. See Cohen, Handbook of Federal Indian Law, pp. 275-276, and authorities there cited. The tribes are dependent upon the United States and the United States owes to them not only the duty of protection but also the services of civilization. There would seem to be no better means of promoting this civilizing process than by encouraging to the greatest possible extent, consistent with statutory provisions, the management by the tribes themselves of their own resources. Certainly there need be little hesitancy in concluding that, at least so long as the Department retains general control of

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the leasing process, it may delegate to a tribal government its purely ministerial aspects.

This conclusion may be accepted the more readily in view of the fact that the functions would be performed in connection with the operations of a tribal enterprise, which the Secretary has been given express statutory authority to establish. It is not unreasonable to suppose that this express statutory permission enlarges the scope of the Secretary's power, especially since he also possesses a general rule-making power in this connection. If the Secretary is convinced that greater efficiency or economy would be produced in the management of a tribal land enterprise by permitting it also to assist in the leasing of individual lands, his statutory authority to regulate the enterprise should enable him to produce this desirable result.

While the question presented has been occasioned by the plans for the Fort Belknap Tribal Land Enterprise, it is the desire of your office that it be considered also with reference to the powers of an unincorporated tribe. While the powers of disposition of tribal resources possessed by an unincorporated tribe are less extensive than those of an incorporated tribe, this factor would limit primarily the extent of tribal lands subject to leasing. The act of February 28, 1981 (26 Stat. 795; 25 U.S.C. sec. 397), permits tribal grazing leases only when lands are occupied by Indians "who have bought and paid for the same," including lands held by aboriginal occupancy recognized by treaty or some form of agreement. The act of August 15, 1894 (28 Stat. 305; 25 U.S.C. sec. 402), permits only the leasing of the "surplus lands of any tribe" for farming purposes. Both statutes provide, however, that the leases may be made by the councils of the tribes. As was said in White Bear v. Barth, 61 Mont. 322, 203 Pac. 517 (1921), in referring to the statute authorizing tribal grazing leases: "From the language of this statute it appears reasonably certain that it was the legislative purpose to confer primary authority upon the Indians, and that the determination of the council should be conclusive upon the government, at least in the absence of fraud or undue influence." The 1891 act provides for the approval of any lease by the Secretary of the Interior, while the 1894 act provides that the leases may be made "under the same rules and regulations" as in the case of leases for grazing purposes. The act of July 3, 1926 (44 Stat. 894; 25 U.S.C. sec. 402a), provides that the "unallotted irrigable lands on any Indian reservation may be leased for farming purposes" with the consent of the governing body of the tribe under such rules and regulations as the Secretary of the Interior may prescribe.

Since an unincorporated tribe may no less be an instrumentality of the United States than an incorporated tribe, and may establish tribal enterprises upon the same basis as an incorporated tribe, there would seem to be no objection to the performance by the leasing clerk of purely ministerial functions in the leasing of tribal lands, or to retaining the leasing fees in the tribal enterprise. The views expressed with reference to allotted lands are equally applicable to an unincorporated tribe, since the powers of even an incorporated tribe in the management of such lands are no greater.

While I am of the opinion that a tribal leasing clerk may take over the ministerial duties in connection with the leasing of tribal and individual lands, whether or not the tribe is incorporated, it seems to me that the details of his activities and of the plan for the operation of the tribal enterprise as a whole are lacking in clarity, despite the additional information that has been secured by this office since the documents were submitted. It is, for instance, not clear just how the tribal leasing clerk will function in relation to nonconsenting and incompetent owners. The form in which consent to the leasing of lands will be given by individual owners is also obscure. It is provided, for instance, in paragraph 4, page 8, of the detailed plan of operation that a landowner shall have a right of appeal from the decision of an appraisal board. Does this mean that he has agreed in advance to abide by the appraisal? It is not even entirely clear from the detailed plan of operation that the leasing of individually owned lands would necessarily be involved in the conduct of the proposed Fort Belknap Tribal Land Enterprise, At page 27 of Exhibit H of the loan application it is stated: "Only land purchased or otherwise acquired by this enterprise will be included in the enterprise." The purchased land would, of course, become tribal land.

The present regulations governing the issuance of grazing permits and the leasing of tribal and allotted lands were designed to govern the activities of Government employees acting under the general supervision of the Department. In view of the substitution of tribal leasing clerks for Government leasing clerks, it would seem to be necessary, however, that further consideration be given to the question whether the regulations themselves should not be modified. I suppose that you have considered the extent of the additional financial burden upon the Government which will result from the elimination of the leasing fees hitherto collected. I assume, of course, that it is not in tended to charge double leasing fees, although the

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Apart from the foregoing difficulties, I am concerned at the level of payments contemplated in the land-purchase program. I doubt that the Fort Belknap Community can afford, if this is to be considered an economic proposition, to pay an average of $2.50 per acre for surface rights to land bringing a gross income of 10 cents per acre and still meet the contemplated repayment schedule and take care of its costs of operation, including the expenses of fencing, lease operations, and collections, all of which are entirely omitted from the schedule in the "detailed plan of operation of Fort Belknap Indian Community Tribal Land Enterprise," at pages 13-14, I note also that the financial and property statement in Exhibit E places a valuation on all the tribal agricultural and grazing lands of $2 an acre. The grazing lands alone, then, must be appraised at less than this amount, particularly since the tribe would be purchasing only surface rights, as it already owns the minerals (41 Stat. 1355).

It appears to me that an undertaking to pay individual Indians 25 times the average gross annual income of their lands (which would often amount to 50 times the net income) is likely to build up a land-selling drive among these Indians, and perhaps, by contagion, among other Indian groups as well. Such a drive would probably (1) create many false hopes, (2) impose upon tribal and agency authorities an invidious burden of selection among would-be sellers, (3) break down alternative methods of land consolidation set out in the constitution of this community, such as the exchange assignment system, and (4) nullify the effects of years of education as to the importance of holding, rather than selling, lands. These dangers could be forestalled to some extent by seeing that no more than a fair price, in terms of appraisals giving due weight to prospective net income to the seller, is paid for lands which the tribe may purchase.

Thus, while I am prepared to recommend the approval of the loan application and the revocable permit of the submarginal lands, I think that your office should assume the responsibility for approving the detailed plan of operation. If the regulations themselves are modified, it will, of course, be necessary for you to submit the amended regulations for departmental approval.

Memorandum
To:            The Secretary
From:        The Office of the Solicitor
Subject:     Proposed adjudication of grazing privileges of Indians and non-Indians in Unit G, District
                 No. 8, Utah.

On April 3 former Solicitor Gardner submitted to Mr. Ernest L. Wilkinson, attorney for the Ute Indians in Utah, and to Messrs. Knox Patterson and Hugh C. Colton, attorneys for certain non-Indian livestock operators, a proposal having for its purpose the settlement of a long-standing controversy over grazing privileges on public lands located in what is known as Unit G within Utah Grazing District No 8, established pursuant to the provisions of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269), as amended. The proposal contemplated the issuance of grazing permits or licenses to the Indians and non-Indians after the respective rights of the parties had been adjudicated under the Federal Range Code and in substantial conformity with the provisions of the Taylor Grazing Act.

In a reply dated April 8, supplemented by letters dated June 7, June 13, and August 17, 1946, the attorneys for the white users expressed themselves as in substantial accord with Mr. Gardner's proposal. In a reply dated June 9, supplemented by letters dated June 20 and June 29, 1946, counsel for the Ute Indians objects to the adjudication at this time, makes certain suggestions as to procedure, and insists upon the institution of trespass proceedings against the white users. Before discussing the position of counsel, I deem it to be important that a review at some length of the record relating to this controversy be made.

The Uncompahgre (sometimes called Tabebguache) Band of Ute Indians is one of several bands commonly referred to as the Confederated Bands of Ute Indians. The Confederated Bands were parties to certain agreements with the United States by which cessions of large areas of land were made in consideration of sundry promises on the part of the Government. In one of these agreements,¹ it was provided that the Uncompahgre Utes would remove to and settle on agricultural lands on Grand River near the mouth of the

^l Agreement dated March 6, 1880, ratified and confirmed by the act of June 15, 1880 (21 Stat. 199).

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Gunnison River in Colorado if a sufficient quantity of agricultural land should be found, or, if not, then upon other unoccupied agricultural lands as might be found in that vicinity or in the Territory of Utah. Sufficient agricultural land not being found at the point designated for the future home of the Uncompahgres, the President established for them a reserve in Utah containing nearly two million acres, the boundaries of which were defined by an Executive order dated January 5, 1882. From 1882 to 1899 allotments of land within this reserve were made to 105 Uncompahgres. Between 1899 and 1905 all but 83 of these allotments were relinquished for other lands on the adjoining Uintah and Ouray Reservation.² The lands of the Uncompahgre Reservation not included in the individual allotments were unconditionally restored to the public domain by the act of June 7, 1897 (30 Stat. 87). From 1897 to 1933 the Uncompahgres and other Indians of the Uintah and Ouray Reservation grazed their livestock on the unentered public lands of the former Uncompahgre Reservation along with homesteaders and other white live stock operators.

On September 26, 1933, the First Assistant Secretary of the Interior approved the recommendation of the Commissioner of Indian Affairs that all vacant and unentered lands within the former Uncompahgre reserve be temporarily withdrawn in aid of legislation to be requested for the purpose of permanently reserving the lands as a grazing reserve. While the Commissioner's recommendation indicates that a permanent reserve was to be made for the benefit of both Indian and white users and recites that the temporary withdrawal was not in tended to deprive the Indians or the whites who had theretofore utilized any of the withdrawn lands from continued use of the area for grazing purposes under approved permits from the Commissioner of Indian Affairs, it appears that the immediate objective was to protect the range from overgrazing by bands of sheep which were entering the area from Colorado and other parts of Utah in increasing numbers, and that the ultimate objective was to establish in some part of the area a permanent reserve for the exclusive use and benefit of the Indians.

Looking to the establishment of a permanent reserve for the exclusive use of the Indians, and in order to meet problems of administration resulting from the enactment of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269), representatives of the Indian Service conferred with local stockmen, landowners and county commissioners at Vernal, Utah, on July 10, 1935. At this conference an agreement was reached on a proposed bill to establish a permanent grazing reserve for the exclusive use of the Indians and to authorize, among other things, an appropriation for the purchase of privately owned lands and improvements within the proposed reserve. This agreement was reduced to writing and signed by the conferees on July 10, 1935.³ Joint recommendations for range management of the withdrawn area were then submitted to the Secretary by the Commissioner of Indian Affairs and the Acting Director of the Division of Grazing Control. These recommendations were approved by the Secretary on July 20, 1935. The approved range management plan provided, in effect, that range management should be consistent with the withdrawal order of September 26, 1933; that, subject to the concurrence of the Commissioner of Indian Affairs on matters of policy, the withdrawn area should be placed temporarily under range management in conformity with the Taylor Grazing Act until December 31, 1936, or until the passage of the bill establishing the Indian reserve, whichever occurred first; that in the event the bill failed to pass by December 31, 1936, administration under the Taylor Grazing Act should continue unless the Commissioner found that the local Utah people had ceased to support the bill; that Indians within the former Uncompahgre Reserve who desired to use the lands for their own livestock should be given a prior right to an allocation of range irrespective of what their technical commensurability might be; and that only temporary licenses which vested no rights of any kind in and to the lands should be issued for grazing livestock within the grazing district. Delay in the enactment of the legislation led Assistant Secretary Chapman to extend, on November 27, 1936, the period of temporary administration by the Grazing Service until final action should be taken by the Congress, with the understanding that in the meantime grazing fees by the Indians were to be waived, such waiver to be retroactive to July 19, 1935.⁴

By an Order dated June 22, 1935, Utah Grazing District No. 8 was established under authority of the Taylor Grazing Act. This order was amended on July 20, 1935, to include the lands temporarily

    2 This reservation, which is also known as the Ute Indian Reservation in Utah, is located in Uintah Valley and was set aside without treaty or agreement by an Executive order dated October 3, 1861. This Executive action was subsequently confirmed by the act of May 5, 1864 (13 Stat. 63).
    ³ For the text of this agreement see Hearings before Sub committee of the Senate Committee on Public Lands and Surveys, 78th Cong., February 16 and 17, 1943, Vernal, Utah, Part 6, p. 2150.
    ⁴ For the text of the range management plan approved July 20, 1935, see Hearings before Subcommittee of the Senate Committee on Public Lands and Surveys, 78th Cong., February 16 and 17, 1943, Vernal, Utah, Part 6, p. 2157.

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withdrawn by the order of September 26, 1933 This amendment was approved simultaneously with the range management plan by which the withdrawn area was placed under temporary administration by the Grazing Service. The order of September 26, 1933, was not, therefore, affected by the inclusion of the withdrawn area in District No. 8.^4a The boundaries of District No. 8, including the lands withdrawn by the order of September 26, 1933, embrace a gross area of approximately 2,500,000 acres of Federal lands.

On August 16, 1935, a bill conforming to the agreement reached at Vernal, Utah, on July 10, 1935, was introduced as H.R. 9156, 74th Congress. This bill proposed, among other things, to extend the boundaries of the Ute (Uintah and Ouray) Indian Reservation in Utah to include an additional area of about 726,000 acres. Of this area, about 380,000 acres were situated within the former Uncompahgre Reservation adjoining the Uintah and Ouray Reservation, where most of the Uncompahgres and other Indians of Utah were allotted. The remaining acreage was a part of the public domain located outside the former Uncompahgre Reservation.⁵ The bill failed of enactment. Similar bills were introduced in the House and Senate in 1937.⁶ But these likewise failed of enactment.

On January 4, 1939, Senator Adams introduced in the 76th Congress a bill (S. 72) having for its purpose the correction of a land description contained in the Ute jurisdictional act of June 28, 1938 (52 Stat. 1209). Mr. Murdock caused this bill to be amended in the House by the inclusion of a provision authorizing the Secretary to establish within Utah Grazing District No. 8 a grazing unit to be administered by the Bureau of Indian Affairs for the exclusive use and benefit of the Indians of the Uintah and Ouray Reservation, such unit to consist of an area of unappropriated public lands adjacent to the base properties of the Uintah and Ouray Indians and commensurate with but not exceeding the grazing rights of such properties determined in accordance with the range standards adopted by the Grazing Service of the Department of the Interior.⁷On May 8, 1940, Mr. Murdock introduced a bill (H.R. 9705), which, as subsequently amended, was in conformity with the amended S. 72. H.R. 9705 passed the House on June 17, 1940, but failed in the Senate on objections from Senator Adams.⁸

Bills substantially similar to H.R. 9705 of the 76th congress were introduced in the House during the next Congress, in 1941 and 1942.⁹ The Public Lands Committee of the House reported favorably on one of these bills (H.R. 7768),¹⁰ and the House passed the bill on October 19, 1942. The Senate failed to take any action on the bill. If it had been enacted, the measure would, among other things, have authorized the Secretary to set apart public lands adjacent to the base properties, the amount of lands needed for the proper conduct of the livestock enterprise based on such Indian properties, and such other range requirement standards as the Secretary might deem proper.

On January 7, 1943, Mr. Robinson of Utah introduced a bill (H.R. 837, 78th Cong.) identical in terms with H.R. 7638 of the previous Congress. The House Committee on Public Lands reported favorably on the bill without amendment and the House passed the bill on April 5, 1943. The bill encountered strong opposition in the Senate with particular regard to the proposal for establishing an Indian grazing reserve. The result was an amendment which eliminated the provision that would have required the Grazing Service to determine the extent of the tribal and individual graz-

    ^4a See letter dated May 3, 1944, from the Acting Secretary of the Interior to Senator McCarran.
    ⁵ In reporting on this bill, the Department stated among other things:
    " . . . A plan to furnish the required area under the provisions of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1296), was carefully considered. However, it has been definitely concluded that if the best interests of the Indians and white stockmen of that vicinity are to be served, an Indian grazing reserve should be established separate and independent of the grazing districts being established under that act. In this way any possibility of conflict of interests between Indians and white stockmen will be eliminated, and for the further reason that the Indian Service can give the Indians the necessary supervision and establish and enforce range control to their benefit. This arrangement meets with the approval of the local stockmen and the Indians. . . ."
    H.R. Rep. No. 2399, 74th Cong., 2d sess. (1936).
    ⁶ S. 1792 and H.R. 5296, 75th Cong., 1st sess.
    ⁷ The Murdock amendment included certain matters wholly unrelated to the establishment of a grazing reserve for the Indians, such as the submission to the Court of Claims of the claims of the Utes based on certain unratified treaties, and a proposal to restore to the Indians 61,000 of some 220,000 acres of land which the United States had undertaken to dispose of for the benefit of the Indians under the act of May 27, 1902 (32 Stat. 245, 263), and subsequent acts. These lands were subject to restoration by Secretarial order under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), and were in fact restored to the Indians by order dated August 25, 1945 (10 F.R, 12409).
    ⁸ See H.R. Rep. 2516, 76th Cong., 3d sess.; S. Rep. 2125, 76th Cong., 3d sess.
    ⁹ H.R. 5720, 77th Cong., 1st sess.; H.R. 7638, 77th Cong., 2d sess.
    ¹⁰ H.R. Rep. 2516, 77th Cong., 2d sess.

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ing privileges of the Ute Indians by giving recognition to the prior use and productive capacity, as of the time of purchase, of any lands purchased by the Indians, the grazing rights of the Indians in all other respects to be determined under the provisions of the Taylor Grazing Act. The Senate passed the amended bill on November 27, 1944. Agreement was reached in conference, but no action was taken by either House on the conference report and the legislation again failed.¹¹ No further legislative action has been taken.

While this legislation was pursuing its tortuous and futile way, the Indian Service, in anticipation of favorable Congressional action, proceeded to acquire by purchase privately owned lands and improvements situated within the proposed Indian reserve. Such purchase negotiations were initiated in 1935. The first purchase was completed in 1937 and the purchase program was completed in 1942. A total acreage of approximately 31,000 was purchased for a consideration of nearly $300,000, including $169,000 of tribal Indian moneys.¹² The purchase price included the fair value of the commensurate rights of the base properties purchased to grazing privileges on the public domain, which were determined by the application of a three-to-one ratio on the public domain for base property commensurate ratings. This formula, according to a report dated July 9, 1938, by Carl L. Pearson, Assistant Land Field Agent of the Indian Service, was adopted and applied by the Grazing Service in issuing permits for grazing privileges throughout District No. 8.

With the acquisition of these private properties, substantially all the lands within the proposed Indian reserve, with the exception of scattered tracts of State-owned land, were either Indian allotments, Indian tribal lands, or public domain. Accordingly, the Indian Office assumed that under the provisions of the Taylor Grazing Act the ownership by the Indians of these base properties would entitle them to the use of practically all the public domain within the proposed reserve. Upon this assumption, the Indian Office recommended the issuance of, and on September 16, 1941, the Secretary signed, an order designed to retain under temporary withdrawal in aid of legislation those lands included within the proposed Indian reserve; to exclude such lands from Utah District No. 8 and subject them to the administrative jurisdiction of the Indian Service; and to terminate the temporary withdrawal of September 26, 1933, so that the public lands covered by that order and not included in the proposed Indian reserve would be subjected to the full administrative jurisdiction of the Grazing Service. The promulgation of the order of September 16, 1941, was withheld by the Secretary in order to afford the Congress an opportunity to enact legislation, which was then pending, to establish the Indian reserve. The order has not been released to date.

Pursuant to the range management plan approved by the Secretary on July 20, 1935, the Grazing Service proceeded with the administration of all the public lands within Utah Grazing District No. 8, including those temporarily withdrawn by the order of September 26, 1933, and with the issuance of grazing licenses to applicants for grazing privileges on the public domain. For purposes of administration, District No. 8 was divided into several administrative units. The boundaries of one of the units coincided with the boundaries of the reserve originally proposed for the Indians. It is designated as Unit G.¹³ In the administration of this unit by the Grazing Service, serious controversy developed. This controversy has centered around the issuance by the Grazing Service of licenses for grazing privileges to some six non-Indian users identified as the Albert Smith Investment Company, a corporation, the David Smith Estate, a co-partnership, Blanche, Moroni and Emery Smith, a co-partnership, Steve Chuturas, H. A. Tyzack, and D. R. Seeley. The position of the Indian Service has been that the grazing privileges licensed to these applicants were clearly in excess of the carrying capacity of the range; that in the issuance of licenses the range management plan approved on July 20, 1935, was violated in that some of the white users were not qualified for grazing privileges under the Taylor Grazing Act; and that other white users were allowed to shift their stock from Colorado and Western Utah, and from other units of District No. 8 to Unit G, in disregard of the grazing privileges attaching to the base properties owned by the Indians, whose requests for nonuse licenses pending the time when they would be able to utilize fully their grazing privileges were denied. Despite joint instructions issued by the

¹¹ The proposal to establish an Indian reserve was not the only controversial feature of H.R. 837. For example, the bill would have authorized the Court of Claims to enter judgment in favor of the Indians on the basis of $1.25 per acre for lands which the Indians are alleged to have surrendered to the United States under the provisions of an unratified treaty. The potential liability of the United States under this provision was estimated to run in the neighborhood of one hundred million dollars. Cong. Rec., December 12, 1944, p. 5070.
¹² For a list of the purchased properties see Hearings before Subcommittee of the Senate on Public Lands and Surveys, 78th Cong., 1st sess., February 16 and 17, 1943, Vernal, Utah, Part 6, p. 2393.

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Indian and Grazing Services to their filed personnel under date of February 15, 1940, having for their purpose the clarification of existing misunderstandings and the adjustment of competing claims, no satisfactory solution of the controversy was reached, and the situation became so acute as to command the attention of the Subcommittee of the Committee on Public Lands and Surveys of the United States Senate. Members of that committee journeyed to Vernal, Utah, and on February 16 and 17, 1943, conducted an extensive inquiry into the controversy, hearing representatives of all interested parties. At the conclusion of the inquiry, Chairman McCarran suggested to the parties that the controversy was one that should lend itself to ready settlement, and he asked the parties to assume the responsibility of achieving a prompt settlement.

Pursuant to Senator McCarran's suggestion, the Indian and Grazing Services entered into a cooperative agreement for the administration of Utah Grazing District No. 8, which agreement received Secretarial approval on June 14, 1943. In terms this agreement superseded the range management plan that had been approved on July 20, 1935. It provided for the issuance by the Grazing Service, without charge, of a 10-year grazing permit, renewable upon expiration, to the Ute Indian Tribe of the Uintah and Ouray Reservation for the use of public lands within Unit G, as modified and outlined on a map attached to the agreement, and subjected the lands in the unit to administrative jurisdiction and management by the Indian Service. The agreement further provided for the issuance by the Indian Service of permits to the six non-Indian livestock operators named above for grazing privileges, such permits to be (a) for the use of winter range, (b) for the number of livestock for which the applicant had theretofore received a license from the Grazing Service during the winter season of 1942-3, and (c) for the maximum period in each winter season, not exceeding five months, during which the range might be used in accordance with good range conservation practice. The permits to the non-Indians were to be made for a period of five years, with the privilege of renewal for an additional period of five years. Each permit was to be subject to a reduction of not to exceed 10 percent during the first 5-year period and a reduction of not to exceed 15 percent during the second 5-year period, such reductions to be made only when necessary for the accommodation of Indian-owned stock. At the end of the second 5-year period, further permits might be issued in so far as the actual needs for Indian use might then permit. Where the qualified demands of permittee could not be met within the unit because of the actual needs for Indian use, the Grazing Service was to endeavor to satisfy such demands on other Federal range. The administration of Grazing District No. 8, exclusive of the area permitted to the Indians, was to be committed to the Grazing Service.

Prior to the approval of this agreement, its substance was presented to the six white users and to the representatives of the Ute Indians. The proposal was agreeable to the Indians, but the white users formally rejected it under date of April 20, 1943.¹⁴ The provisions of the agreement were discussed at hearings before the Subcommittee of the Committee on Public Lands and Surveys, United States Senate, 73th Congress, in Washington on June 15, 16 and 21, 1943. The hearings were attended by representatives of the six white users and by an attorney representing the Indians. The general attitude seemed to be that, while a solution of the problem by the enactment of the legislation then pending was preferable, no substantial objection to the operation of the agreement in the interim would be made.¹⁵

Pursuant to the agreement of June 14, 1943, the Director of the Grazing Service issued a 10-year permit to the Ute Indian Tribe of the Uintah and Ouray Reservation under date of July 1, 1943. Permits were thereafter tendered by the Indian Service to the white users, but the permits were formally rejected by them on October 27 and 28, 1943, chiefly for the reason, as alleged by them, that the range allocations offered to the differed from the area customarily used by them in the past and that the new allocations were in fact waste lands and no winter grazing lands, as contemplated by the agreement of June 14, 1943. They also objected to administration of the area by the Indian Service and to the 5-year permits, insisting upon 10-year permits such as were customarily issued to other users under the provisions of the Taylor Grazing Act. Shortly after rejecting the permits, the white users brought suit to enjoin the Superintendent of the Uintah and Ouray Agency from carrying out the terms of the agreement of 1943, but this suit was dismissed on motion of the plaintiffs without prejudice on March 31, 1944. On January 31, 1945, the Superintendent of the Uintah and Ouray Agency advised the white users that, until the acceptance by them of the permits tendered in 1943, they were without authority to use the Federal range.

¹⁴ See letter dated April 20, 1943, from Mr. C. C. Wright, Superintendent of the Uintah and Ouray Indian Reservation, to the Commissioner of Indian Affairs.
¹⁵ See statement of Assistant Secretary Chapman appearing at pages 2445-6 of Hearings before a subcommittee of the Senate Committee on Public Lands and Surveys, 78th Cong., 1st sess. (1943), Part 7.

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DECEMBER 10, 1946

Pursuant to instructions issued by Commissioner Brophy under date of November 6, 1945, permits for grazing privileges in Unit G carrying a 10 percent reduction were offered to the white users. These instructions were based primarily on the carrying capacity of the range, as established by reports submitted by Richard B. Millin, Regional Forester of the Indian Service, and by Mile H. Deming, Range Examiner of the Grazing Service, under the respective dates of February 10, 1945, and March 1, 1945, which reports were reconciled by a joint report submitted on September 12, 1945, by Frank B. Lenzie, Regional Forester, Indian Service, and James A. Scott, Chief of Range Management, Grazing Service. The white users again refused to accept the permits; and on January 16, 1946, they protested further administration of the area under the agreement of June 14, 1943, petitioned for the issuance of a permit in common under the provisions of the Taylor Grazing Act covering the combined area theretofore used by them, and asked for a hearing. This petition was denied by the Assistant Commissioner of Indian Affairs on February 12, 1946, and the Superintendent was instructed to confer with the United States Attorney with a view to the institution of trespass proceedings against the white users. From this action the petitioners appealed informally to the Department. The matter was referred to former Solicitor Gardner, who formulated and submitted to the interested parties the tentative recommendations of April 3, 1946.

While the legal and equitable considerations upon which Mr. Gardner's proposal is based have not been questioned by counsel for either party, the more important of these should be stressed. These considerations, amplified somewhat, are indicated below.

1. The act of June 7, 1897 (30 Stat, 87), by which the unallotted lands of the Uncompahgre Reservation were restored to the public domain, contained no conditions imposing on the lands any trust for the benefit of the Indians. Since the restoration was wholly unconditional, the Indian title was completely extinguished. That title, in view of the prohibition contained in section 27 of the act of June 30, 1919 (41 Stat. 3), and section 4 of the act of March 3, 1927 (44 Stat. 1347), against the creation of Indian reservations or the making of changes in the boundaries of reservations except by act of Congress, may be restored only by Congressional action. For a like reason, the temporary withdrawal of September 26, 1933, although effective, until revoked, to preserve the status quo and prevent the initiation of new rights under the public land laws, could not, and was not intended to, have the effect of restoring the Indian title to any part of the withdrawn area. Nevertheless, the long use of at least part of the area involved, and the expenditure of nearly $300,000 in the purchase of base properties upon the understanding that the purchase included the commensurate rights of the properties to grazing privileges on the public domain and with the expectation that a permanent Indian reserve would be established by the Congress, have placed the Indians in a strong position in so far as equitable considerations are concerned.

2. The non-Indian users can claim no vested rights under the provisions of the Taylor Grazing Act, 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 within the former Uncompahgre Reservation 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 range management plan approved July 20, 1935, was temporary and limited. This range management plan was largely superseded by the agreement of June 14, 1943, under which the Indians now hold a permit for the entire area under discussion, subject to the issuance to the white users of permits for grazing privileges and the terms and conditions set forth in the agreement. The white users, although entitled to equitable consideration upon a proper showing 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.

3. Since the only claim which any of the parties, Indian or white, could legitimately assert in any event is a claim to grazing privileges under the Taylor Grazing Act, it is entirely appropriate that the claims of all be adjudicated under authority of that act and in conformity with the Federal Range Code adopted thereunder subject, however, to departures from the code deemed necessary to meet the equities of the parties.

4. Neither the range management plan approved July 20, 1935, nor the agreement of June 14, 1943, purports to constitute a contract between the parties upon which vested, enforceable rights might be based. The range management plan and the agreement are merely administrative measures that were adopted for the temporary administration of the area pending the enactment of legislation that was awaiting action by Congress as of the time when each became effective. Of course, the range management plan was, and the agreement is, subject to termination or modification at any time, and

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DECEMBER 10, 1946

In his letter of June 9, counsel for the Ute Indians suggests that the adjudication proceedings be preceded by an attempt on the part of "top flight" officials to arrive at a determination of the controversy which might be acceptable to the parties. An examination of the record demonstrates that such an attempt would be futile. Every effort, short of adjudication, to settle this controversy has already been made without success. These efforts, extending over a period of some 15 years, have included attempts to settle the controversy by agreement, joint instructions, arbitration, and legislation. Numerous investigations and range surveys have been made by technicians of the Indian and Grazing Services, separately and jointly. While the reports of these investigations contain much valuable data bearing upon the respective rights of the parties, no final or conclusive determination of those rights has been made. Such a determination may properly be made only after a final hearing has been accorded to the interested parties. The objection of counsel for the Indians to the conduct of such a hearing by an examiner affiliated with either the Indian Service or the Grazing Service is not well taken, in my judgment. It seems advisable that the adjudication be made by a competent examiner who is qualified by experience in the practical administration of the Taylor Grazing Act and the range code, and the designation, as examiner, of a completely disinterested person would tend to assure the impartiality and freedom from bias that are essential to a determination that will be fair to all the parties.

Counsel for the Indians and for the six white users have suggested that there are other non-Indian users within or adjacent to Unit G who are interested in that unit and whose rights should be determined for that reason. Counsel for the Indians also suggests that the rights of certain Indians to grazing privileges outside of Unit G should be determined. This, he states, is necessary because Indian rights outside the unit have been determined by the advisory board of District No. 8 on the premise that all Indian rights were to be confined to Unit G. The adjudication proceedings should, of course, be open to all parties claiming to be entitled to grazing privileges in Unit G, irrespective of whether their base properties are located within or without the boundaries of that unit. In the absence of full information concerning the extent of the grazing privileges claimed by the various parties, and the evidence to be submitted in support thereof, it is not possible to fix in advance the exact limitations of the adjudication other than to suggest that it is a matter that should be left to the discretion of the examiner, who should be invested with authority to pursue the investigation to such extent as may be essential to a fair determination of the rights of the parties. The primary purpose of the adjudication is, however, to determine the distribution on of the range in Unit G. Licenses are to be issued, of course, in the order of preference set forth in the Federal Range Code (43 CFR sec. 501.6), not to exceed, however, the reasonable carrying capacity of the range. If Federal range is not available to accommodate all applicants, unqualified applicants should be eliminated first and the secondary (class 2) applicants next. If, with these eliminations, the Federal range is still insufficient to satisfy qualified applicants in class I, the available range should be apportioned among them, with one qualification deemed to be necessary in justice to all the parties. This qualification is that applicants whose grazing privileges may have been shifted into Unit G from other States or other parts of District No. 8 should be subordinated to an applicant who clearly establishes that the Federal range applied for was that customarily used by him during the priority period in connection with the base properties which he submits.

Another point mentioned by counsel for the Indians is that the measuring rod for determining the grazing rights attaching to the base properties purchased for the Indians in Unit G should be changed from the productivity of the lands at the time of purchase, to the productivity of the base properties at the time of the acceptance of options. This suggestion has merit and should be adopted, in my judgment. Reference to the time of purchase is somewhat indefinite. The uncertainty would be removed by the adoption of counsel's suggestion. Moreover, some of the sellers, in reliance upon punctual consummation of the sales, commenced the liquidation of their livestock holdings after optioning the properties to the Indians and allowed the productivity of the properties to decrease during the intervening period. The Indians should not be penalized by this delay, which occurred through no fault on their part.

Finally, counsel for the Indians insists that the Department of Justice be required to institute trespass suits against the white users. If, as counsel alleges, these users have continued, notwithstanding the lapse of their licenses, to drive their sheep across lands in Indian ownership without permission, they would no doubt be liable for the penal ties prescribed by 25 U.S.C, sec. 179. However, the institution of such an action in advance of a determination of the rights of the parties in the proposed adjudication proceedings would appear to be unwise, so I would suggest that no such action be filed at this time. On the other hand, the parties

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should be informed that any use of the Federal range without licenses or permits issued under authority of this Department is made at their peril, and that they will be held to strict accountability for such use, past or future.

In view of the foregoing, I recommend that the following procedure be adopted for the adjudication of the respective rights of the parties and the issuance to them of licenses or permits on Federal range in Unit G of District No. 8:

a. Applications for licenses or permits shall be filed with a special examiner to be selected by the Director of the Bureau of Land Management. No person who has heretofore participated in any advice or recommendation concerning the issuance of permits or licenses in Utah Grazing District No. 8 or who may be interested, directly or indirectly, in any application for a license or permit, shall be selected as examiner. All applications shall be filed within 30 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 proceedings shall be open to all parties claiming to be entitled to grazing privileges in Unit G, irrespective of whether their base properties are located within or without the boundaries of Unit G. The evidence submitted in support of applications, and the adjudication, shall conform to the requirements of the Federal Range Code, except that (1) Indian base properties not submitted prior to June 28, 1938, may be offered in applications for grazing privileges, and if the requirements of the Federal Range Code are otherwise met, the applicants shall be eligible for grazing privileges on the Federal range, and (2) the determination of the grazing privileges attaching to base properties 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 base properties at the time of the acceptance of options by the Indians. The allocation of Federal range shall, however, be made on the basis of productivity of the base properties at the time of adjudication, the difference to be considered in a nonuse status with the grazing privileges to attach as productivity of the base properties is restored. The examiner shall have full authority to pursue the investigation to such extent as may be essential to a fair determination of the rights of the parties. At the conclusion of the hearings, the applications for licenses or permits and the tentative findings of the examiner shall be referred to the Advisory Board of District No. 8 for advice and recommendation, upon the receipt of which the examiner shall proceed with the final adjudication of the rights of the parties. 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.

b. 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 it in the Scott-Lenzie report of September 12, 1945, will be applied in the allocation of Federal range.

c. Licenses or permits shall be issued to the parties in accordance with the final adjudication. Licenses shall be issued in the order of preference set forth in the Federal Range Code (43 CFR sec. 501.6). If Federal range is not available to accommodate all applicants, unqualified applicants shall be eliminated first and the secondary (class 2) applicants next. If, with these eliminations, the Federal range is still insufficient to satisfy qualified applicants in class 1, the available range shall be apportioned among them subject to the condition that applicants whose grazing privileges may have been shifted into Unit G from other States or other parts of District No. 8 shall be subordinated to an applicant who clearly establishes that the Federal range applied for was that customarily used by him during the priority period in connection with the base properties which he submits.

d. The agreement approved June 14, 1943, shall remain in full force and effect until the adjudication shall have been completed. Pending completion of the adjudication, any party who utilizes the Federal range without a license or permit does so at his peril and shall be held to strict accountability for such unlawful use, past or future.

In conclusion, attention is called to the fact that the temporary withdrawal of September 26, 1933, which affects the unentered lands of the former Uncompahgre Reservation originally comprising nearly two million acres of land, is still in force, notwithstanding the failure of the Congress to enact legislation to establish the proposed Indian reserve. The unpopulated order of September 16, 1941, which would have continued the temporary withdrawal only as to lands within the proposed Indian reservation, constitutes the only effort at modification over the years. In a letter dated June 20 to the Secretary, Senator McCarran strongly criticized the practice of continuing these temporary withdrawals lover a long period of years after the failure of Congress to enact the legislation in anticipation of which such withdrawals were made. By a memorandum dated August 6 the Indian Office, in connection with Senator McCarran's complaint, recommended to the Secretary that the withdrawal be not vacated until the rights of the Indians shall have been taken care of by ap-

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propriate legislation. As efforts over a period of ten years to obtain such legislation have been unsuccessful, and as the only legislation which both Houses of the Congress have considered favorably would have required the grazing privileges of the Indians in the public lands to be determined by application of the provisions of the Taylor Grazing Act there seems to be no justification for continuing in effect the temporary order of September 26, 1933. Accordingly, I recommend that that order, as well as the unpromulgated order of September 16, 1941, be canceled immediately upon completion of the adjudication and the issuance of licenses or permits in conformity with the adjudication.

Approved: February 5, 1947.
C. GIRARD DAVIDSON,
Assistant Secretary of the Interior.

PREMIUM PAYMENTS FOR TIMBER PRODUCTION
ON INDIAN LANDS UNDER VETERANS'
EMERGENCY HOUSING ACT--PAYMENTS TO
INCORPORATED TRIBES

DAVID L. KROOTH, ESQ.,
General Counsel, National Housing Agency,
Washington, D.C.

MY DEAR MR. KROOTH:

I am further advised that the problem of making the premium money available to stimulate additional production of timber from Indian lands has been discussed during the past few weeks in a series of conferences attended by various members of the administrative and legal staffs of your office, and by various representatives of the Indian Office and of this office. Members of your legal staff suggested the possibility of reconsidering the conclusion reached in the opinion of October 28. It is the purpose of this letter to urge such reconsideration.

The assumptions made in the opinion with reference to the administration of Indian timber resources are not in accord with existing law and practice. Sawmills are operated an only four reservations--the Menominee, Red Lake, Navajo and Ft. Apache Indian Reservations. On all other reservations timber sales only are made. But whether or not the timber is milled, the timber operations are supervised by the Indian Office, which employs the cruisers and scalers and conducts the operations upon the principles of sustained yield management. In the case of an incorporated tribe, the practice is for the tribe to make timber sales contracts with the approval of the Secretary of the Interior, where-

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OPINIONS OF THE SOLICITOR

DECEMBER 13, 1946

as the Secretary makes such contracts on behalf of an unincorporated tribe. A contract with an incorporated tribe usually permits the proceeds, after the deduction of the expenses of management, to be deposited in the local tribal treasury. On the other hand, when a contract is made on behalf of an unincorporated tribe, the proceeds are required to be deposited in the United States Treasury for the benefit of the tribe.

Although the management of timber operations is confided to the Indian Office, the Indians are the beneficial owners of the timber, and are entitled to the proceeds of any timber sale. United States v. Klamath Indians, 304 U.S. 119; United States v. Shoshone Tribe, 304 U.S. 111. Even though a timber contract may be made by a Government officer, he acts only on behalf of an Indian tribe, and the contract itself is not to be regarded as made with the United States. Thus it is not a Government contract. United States v. Algoma Lumber Co., 305 U.S. 415, 421. It is for these reasons that the expenses of the sale of timber are charged against the proceeds of sales. Although Congress appropriates annually funds to cover the expenses, the appropriation is not a gratuity but is reimbursable from the proceeds of the sale of the timber. Thus the current appropriation act provides:

The act of March 1, 1933, to which reference is made in this provision, authorizes the Secretary of the Interior to collect reasonable fees to cover the cost of work performed for Indian tribes. The fees may be deducted from "the proceeds of sale, leases, or other sources of revenue," and the amounts collected are required to be covered into the Treasury as miscellaneous receipts, except that when the expenses have been paid from Indian tribal funds, the amounts collected must be credited to such funds. While the collection of fees is not made mandatory under the act of March 1, 1933 (see Senate Report No. 1204, 72d Cong., 2d sess.), it is made mandatory by the provision of the current appropriation act.

The disposition of timber on tribal lands is governed by section 7 of the act of June 25, 1910 (36 Stat. 857, 25 U.S.C. sec. 407), which vests the power of disposition in the Secretary of the Interior under regulations to be prescribed by him. Notwithstanding this provision, incorporated tribes, as previously indicated, have generally been given authority under their charters to make timber sales contracts, subject to the approval of the Secretary of the Interior. Such charter provisions rest upon section 17 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 988, 25 U.S.C. sec. 477), which confers authority upon incorporated tribes to "own, hold, manage, operate and dispose of property of every description, real and personal." The requirement of Secretarial approval rests merely on the provision of the charter itself and may ordinarily be terminated by mutual agreement of the tribes and the Secretary of the Interior.

Whether the cruising and scaling of timber are functions which could be entrusted to both incorporated and unincorporated tribes by the Secretary of the Interior by appropriate provisions in the timber sales contract is a question which need not be considered, since I am informed by the Indian Office that a change in the existing practice would not be desirable. The payment of the premium moneys directly to the tribes would not in any event take care of the general expense of administrative supervision involved in the making of the timber sales contracts themselves. Incorporation under the Indian Reorganization Act is optional, and it happens, moreover, that few of the Indian tribes with important timber resources have incorporated under the Indian Reorganization Act. Thus the suggestion of direct payments to the tribes would not be practicable. Indeed, I under stand that only one of the tribes whose lands would be a source of additional timber is incorporated.

If the premium moneys are to be used at all to secure additional timber production from Indian lands, it would seem, therefore, that they would have to be made available to the Indian Office. In view of the nature of the interest of the Indian tribes in the production of timber, and the role of the Department in the supervision of such production, it would seem that the tribes may be regarded as owners and producers within the meaning of the Veterans' Emergency Housing Act. There would seem to be no objection per se to making premium moneys available to a Government agency, in ad-