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Reservation, and all such lands as were undisposed of were withdrawn by the order of September 10, 1934, "until the matter of their permanent restoration to tribal ownership," as authorized by section 3 of the Indian Reorganization Act of June 18, 1934 ((48 Stat. 984, 25 U.S.C. sec. 463), could be given appropriate consideration. The order of August 25, 1945, restored to tribal ownership "all lands which are now or may hereafter be classified as undisposed of opened lands of the Uintah and Ouray Reservations."

The only possible basis upon which the tracts desired by the town of Myton could be regarded as outside the scope of the restoration order of August 25, 1945, would be to hold that the act of July 26, 1916, made it mandatory for the Secretary to hold the tracts in status quo indefinitely and to convey them to the town of Myton whenever the purchase price fixed by the act might be tendered by the town, irrespective of the length of time that might elapse between the date of the enactment of the statute and the date of the tender of the purchase price. It seems clear to me, however, that the act in question, which merely "authorized" the Secretary to issue patents for the lands to the town of Myton, is not mandatory.

The word "authorized" is not equivalent to "directed" any more than "may" means "must." Doubtless some courts have construed such words as interchangeable when the purpose and the context of the statute clearly required such a construction. But here neither the language of the statute nor its legislative history lends the slightest support to such an interpretation. A departmental report of June 11, 1914, simply establishes that the Department was of the opinion that it lacked authority to set apart any part of the town site of Myton for public purposes. The act of July 26, 1916, merely supplied the necessary authority.¹

It should be noted that the act did not set any time limit upon any application by the town of Myton. Hence, if the act were mandatory, the town of Myton could postpone action to take advantage of the statute for a hundred years or more, and would then be enabled to demand patents upon tender of the purchase price. Indeed, the present application was made almost 30 years after the passage of the act. Congress must have contemplated that in so long a period of time circumstances might entirely change, and the patenting of the land might become inadvisable.

Circumstances did, in fact, change. Ceded lands were made subject to restoration by the Indian Reorganization Act. The Secretary then had a choice between two alternatives. He was empowered to sell the lands to the town of Myton. But he was also authorized to restore the lands to tribal ownership. Once he made his choice in favor of restoration, it was irrevocable, since the town had no vested rights in the lands. As a matter of fact, at the time when the order of restoration was made, the town had not yet made a valid offer to purchase the lands.

Moreover, the record establishes that the town wishes to acquire the lands in order to develop an airport site. This is not one of the purposes specified in the act of July 26, 1916, concerning the uses to which the several tracts could be devoted if conveyed to the town of Myton, namely, as the site of a pumping station, as a cemetery, as a reservoir site, as public school grounds, as a public common, and as a public park. In addition, the statute expressly provides that "if the said town shall at any time permit the said lands hereby granted to be used for any purposes not contemplated by this act the said lands shall revert to the United States."

I am constrained to hold, therefore, that title to the lands in question has passed to the Indians.

Under Regulation 5 of the War Assets Administration, dated October 12, 1946, surplus power transmission line and power and light distribution system at Colorado River Relocation Center may be transferred from War Department to Indian Service pursuant to Memorandum of Understanding between these agencies dated May 1, 1942.

Under sections 504 (a) and 502 of the Lanham Act, as amended, transfers of surplus property raise legal questions for determination by the Federal Works Administrator and the National Housing Administrator, respectively, since they are the officers charged with administration of these provisions. It appears, however, that transfer of various structures to the Indian Service to be used in the establishment of a training center for Indian veterans would be permissible under section 504 (a) of the Lanham Act, as amended.

¹ It is true that a similar statute, the act of February 25, 1925 (43 Stat. 982), was held to be mandatory in A-19002, dated January 30, 1936. In that act, however, the Secretary of the Interior was authorized and directed to issue a patent for the lands to the city of Red Bluff, California, for public park purposes upon payment by the city of $1.25 an acre.

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As for structures needed to provide housing for Indian veterans in attendance at the training center, it appears that while the Indian Service cannot qualify as an "educational institution" within the meaning of section 502 of the Lanham Act, as amended, such structures may be transferred to the Colorado River Tribes as a "local public agency," and that the tribes may then permit the Indian Service to make use of them. Individual Indian veterans could also purchase structures suitable for housing under Public Law 384, 79th Congress.

Under Public Law 384, 79th Congress, the Indian Service may not obtain, however, telephone lines and various temporary administrative structures While such property, when dismantled, could conceivably be regarded as "equipment" or "materials" or "supplies," it would not constitute part of the "surplus stores" of the Colorado River Relocation Center. The legislative history of Public Law 384 establishes that it was intended to make possible the acquisition by the Indian Service of an existing store of surplus equipment to be used in carrying on further subjugation work on the Colorado River Indian Reservation.

Other temporary structures on the Colorado River Relocation Center may not be transferred to the Colorado River Indian Tribes in lieu of site restoration. While Regulation 5 of the War Assets Administration, dated October 12, 1946, permits transfers of surplus property in lieu of site restoration, an obligation to restore the site must have been expressly assumed by the Government. Such an obligation may not be implied in law, since the United states is not bound by the tortious acts of its officers or agents, and the doctrine of quasi-contract is not applicable to the Government. Moreover, such an obligation could not clearly be implied in fact under the memoranda of understanding between the War Relocation Authority and the Indian Service dated April 14, 1942, and January 29, 1944, even if ratified by the Colorado River Indian Tribes, since the agreements contemplated that the "permanent" improvements would remain in place at least as part compensation to the tribes for the occupancy of their lands, and the value of these permanent improvements may be greater than any amount which may be claimed by the tribes. The Government as a public body holding legal title to the Colorado River Reservation could not be regarded in the same light as an ordinary trespasser, and therefore would have a right to remove such improvements as were not permanent.

Surplus property belonging to the United States may be disposed of only pursuant to the authority of an act of Congress. The Secretary of the Interior has no greater authority in this respect because he is a trustee for Indian tribes.

Memorandum
To:            The Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Disposition of WRA properties at Colorado River Reservation.

The memorandum of February 11 from Mr. Beatty to Mr. Flanery raises various legal questions with respect to the disposition of surplus property at the WRA center at Poston on the Colorado River Indian Reservation.

(1) Transfer of power transmission line and power and light distribution system from the War Department to the Indian Service. Section 3305.7, paragraph (b), subparagraph (ii), of Regulation 5 of the War Assets Administration, dated October 12, 1946, provides that where improvements no longer needed by an owning agency are located on "non-Government-owned land leased or occupied by such agency with or without an obligation to restore the premises, such owning agency may dispose of such improvements * * * By disposition in accordance with contractual commitments * * *."

Paragraph 5, page 10, of the Memorandum of Understanding between the War Department and the Indian Service, dated May 1, 1942, pursuant to which the transmission line and the distribution system were constructed upon the Indian lands, provides that:

This agreement was made in consideration of the supply of electric power by the Indian Service to the War Department. Since the War Relocation Center has been closed, the facilities covered by the Memorandum of understanding may clearly be

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transferred to the Indian Service by the War Department pursuant to the provision of the War Assets Administration regulation quoted in the preceding paragraph. That provision apparently does not require that the War Assets Administration approve the transfer, nor that it shall be accompanied by an exchange of funds, presumably because the transferring agency has already received an appropriate consideration.

(2) Transfer of various structures to the Indian Service to be used in the establishment of a training center for Indian veterans and in providing housing for the Indian veterans who would be in attendance there. Section 504 (a) of the Lanham Act, as amended by section 2 of Public Law 697, 79th Congress (42 U.S.C.A., Supp. 1574), authorizes the transfer by the Federal Works Administrator, subject to the approval of the War Assets Administrator, of structures and educational facilities needed at "any educational institution including any educational facility operated by the Indian Service * * *." Section 502 of the Lanham Act, as amended by Public Law 292 and section 1 of Public Law 697, 79th Congress (42 U.S.C.A., Supp., 1572), authorizes the transfer to the National Housing Administrator of surplus property suitable for temporary housing and authorizes the said Administrator to turn such property over to "any educational institution, State or political subdivision thereof, local public agency, or nonprofit organization for use or re-use in producing temporary housing for families of servicemen, for veterans and their families, or, in the discretion of the Administrator, for single veterans attending educational institutions or for members of faculties (including the families of such members) of educational institutions furnishing education and training to veterans under title II of the Servicemen's Readjustment Act of 1944, as amended."

Since the administration of these statutory provisions is vested in agencies outside this Department, it would be for them to determine any legal questions which might arise in connection with applications by the Indian Service for particular transfers of property. It appears, however, that the procedure provided in section 504 (a) of the Lanham Act could be utilized to obtain for the Indian Service the buildings needed by the veterans' training center for purposes other than housing.

With respect to the property that is desired in order to accommodate the housing needs of veterans at the center, it is noted from Mr. Beatty's supplementary memorandum of March 11 that, while the Federal Public Housing Authority has advised that the Indian Service as a Federal agency could not qualify as an "educational institution" within the meaning of section 502 of the Lanham Act,¹ the Colorado River Tribes themselves could apply for a transfer of the structures needed in connection with the veterans' housing program and could thereafter permit the Indian Service to make use of them. Presumably, the transfer to the tribes would be based upon the theory that they constitute a "local public agency." This appears to me to be a reasonable interpretation of the statute.

I would suggest the possibility of making use also of the authority granted in Public Law 384, 79th Congress, to provide housing for Indian veterans "on the Colorado River, Pima, and Papago Indian Reservations * * *." While there is a drawback to invoking this statutory authority, namely, that the individual Indian veteran would have to pay for any structure to be acquired by him, the price has been fixed at only $50, and, moreover, the price may be paid on the installment plan.

(3) Transfer to the Indian Service of telephone lines, military police barracks at Camps I and II, and certain administrative structures in Block 218, Camp II. These transfers of property would be made apparently under a provision of Public Law 384, 79th Congress, which authorizes the Secretary "to transfer from the War Relocation Authority to the Bureau of Indian Affairs, without compensation therefore, equipment, materials, and supplies with an appraised value not exceeding $200,000 from the surplus stores of the Colorado River Relocation Center, located at Poston, Arizona, for use on the Colorado River Indian Reservation * * *." I understand that only approximately $165,000 worth of property has been transferred to the Indian Service pursuant to this authorization, and that the additional property under this heading contemplated for transfer would be worth considerably less than the balance of approximately $35,000.

These proposed transfers do not appear to be permissible. Conceivably, telephone lines, where dismantled, could be regarded as "equipment" or "materials" or "supplies," which are all terms representing broad and inclusive categories. However, telephone lines in place cannot be regarded as equipment or materials or supplies "from the surplus stores of the Colorado River Relocation Center,' (italics supplied). As for the military police barracks and administrative structures, it would certainly do violence to the meaning of the phrase "equipment, materials, and supplies * * * from

¹ Presumably this conclusion rests upon such considerations as those discussed in 23 Comp. Gen. 694, which held that St. Elizabeths Hospital--a Government Hospital--was not a "health" institution within the meaning of a statute authorizing grants to such institutions.

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the surplus stores" to regard it as covering buildings which clearly constitute part of the realty.

In fact, Mr. Beatty, when explaining the item to the House Subcommittee considering the bill, made it clear that he was referring to an existing store of surplus equipment which would be useful to the Indian Service in carrying on further subjugation work on the Colorado River Reservation (Hearings, p. 525). He told the Committee that the WRA had subjugated a considerable amount of land in its operations at the Relocation Center, and then continued:

(4) Transfer to the Colorado River Tribes of temporary barrack buildings, warehouses, supernumerary structures, and all wooden structures in Camp I in lieu of site restoration. Section 8305.7, paragraph (b), subparagraph (i) of War Assets Administration Regulation 5, previously mentioned in part (I) of this memorandum, also permits the disposition of improvements on "non-Government-owned land leased or occupied * * * with or without an obligation to restore the premises * * * By transfer to the lessor or owner of the premises in full or partial satisfaction of any obligation to restore the premises, provided the lessor or owner shall pay for any excess value' * * * "

The phrase "with or without an obligation to restore the premises," as used in this subparagraph, is simply part of the description of the land on which the improvements are located. The authority to make the disposition to the lessor or owner depends upon the existence of an obligation expressly assumed by the Government to restore the premises to the condition obtaining prior to the changes made by the Government. It is my understanding that the regulation has been uniformly interpreted in this manner.²

The standard Government lease form, containing a restoration provision, was not employed in this case. In fact, no lease with the tribes was made; and the memoranda of understanding between the WRA and the Department contained no express provisions requiring site restoration. Indeed, the memoranda distinguished between "permanent" improvements and other improvements, and expressly provided that the former would remain in place, at least as part compensation to the tribes for the occupancy of their land. With respect to such "permanent" improvements, therefore, the procedure of transfer in lieu of site restoration clearly is not available.

As for the improvements which are not "permanent," a dilemma is involved in working out a tenable theory which might be presented to the War Assets Administration as a basis for liberalizing the regulation so as to permit their transfer to the tribes in lieu of site restoration. Such a theory would (except for "permanent" improvements) have to be based upon an implied obligation to restore the site to the condition which existed when it was taken over for the construction of the relocation center. The United States is not, however, bound by the tortious acts of its officers or agents, and no contract may be implied merely from the fact that the Government benefited from an unauthorized use of the tribal lands.³

The doctrine of quasi-contract is not applicable to the Government. Thus, an obligation on the part of the Government cannot be implied merely in law. It must be implied in fact; in other words, it must be inferred from the conduct of the parties in the light of the surrounding circumstances.⁴ A mere injury to property cannot be made the basis of implying an obligation ex contractu.⁵ It has been specifically held that, where the Government occupied land for which it had no lease, it was not liable to suit for injuries to the land in the nature of waste.⁶ An obligation to pay compensation for

    ² See Paragraph 219 of the "Instructions for Disposing of 'War Housing and other Structures for Use Off Site,'" issued by the War Assets Administration on January 10, 1947.
    ³ See 10 Comp. Gen. 199. In this case the unauthorized use of a pier by the Government was held not to justify a claim for compensation to the company owning the pier, regardless of whether the claim was one for damages arising from the use of the pier by officers of the Government, or for compensation as on an implied contract.
    ⁴ Baltimore & Ohio R.R. v. United States, 261 U.S. 592, 597; Interocean Oil co. v. United States, 270 U.S. 65; Chesapeake & Potomac Telephone Co. v. United State, 281 U.S. 385; United States v. Sponenbarger, 308 U.S. 256; Booton v. United States, 59 Ct. Cl. 566.
    ⁵ McLennan County, Texas v. United States, 60 Ct. Cl. 496; Jacobs v. United States, 45 F, (2d) 34, 37 (CCCA 5th).
    ⁶ Mack Copper Co. v. United States, 63 Ct. Cl. 562, 575.

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property will be implied on where the acts of the Government amount to a taking.⁷

Of course, the tribes might ratify the memoranda of understanding, which presumably were executed pursuant to authority implied from appropriations for the WRA. But such a ratification would only amount to impalement on the other horn of the dilemma. If ratified, the agreements would have to be accepted as written. Now, paragraph 4 of the Memorandum of Understanding of January 29, 1944, after referring to the provision of the tribal constitution which required the consent of the tribe to any use of its lands, provided:

This replaced a provision in somewhat similar language contained in paragraph 13 of the earlier Memorandum of Understanding of April 14, 1942, which stated:

Despite their differences in phraseology with reference to the subject of compensation for the use of the tribes' lands, both paragraphs seem to contemplate a credit for permanent improvements and to recognize the possibility of addition rental. Thus, any attempt to "ratify" the later memorandum of understanding would not in itself produce a rental agreement but would merely create a situation looking toward the making of such an agreement between the tribes and the WRA, which is no longer in existence. Even if this difficulty were not present, it would be necessary to credit the value of all improvements against the rental claim, and if such value exceeded the amount of the claim, it would not be possible to imply an obligation of site restoration.

Moreover, any implied obligation of site restoration would probably be inconsistent with the express agreements to allow the "permanent" improvements to remain.

Undoubtedly the United States retained the right under the agreements to remove such structures as were not "permanent" improvements. This would be true even in the absence of ratification by the tribes. The ordinary rule that improvements made by a trespasser are forfeited to the owner of the soil has not been applied to corporations having the power of eminent domain,⁸or when the annexation is for a public or quasi-public purpose.⁹ Furthermore, the United States in this case held legal title to the reservation lands occupied by the WRA.¹⁰

I have considered these rather puzzling questions merely in order to canvass all the possibilities. However, as a practical matter, there is hardly any likelihood that the tribes will ratify the agreements,¹¹ for they have steadfastly refused to accept any of the permanent improvements which they

    ⁷ United States v. Cress, 243 U.S. 316; Temple v. United States, 248 U.S. 121; Horstmann Co. v. United States, 257 U.S. 138. The obligation arises from the Fifth Amendment. But even in such cases the obligation will not be implied if the Government claims title to the property. Bedford v. United States, 192 U.S. 217; Merriam v. United States, 29 Ct. Cl. 250.
    ⁸ See Titus v. Poland Coal Co., 119 Atl. 540 (Pa.).
    ⁹ See Tiffany, The Law of Real Property, 3d ed., sec. 611, and cases cited on page 578.
    ¹⁰ It has been held that the Government has the right to dispose of property in its possession and control even if the act under which the property was acquired was unconstitutional. Sanders v. Oklahoma City, 19 F. Supp. 50 (D.C.W.D. Okla.). See also John E. Andrews v. United States, 59 Ct. Cl. 851, indicating that the right of removal is to be liberally construed when in favor of the Government.
    ¹¹ It would seem clear that the resolutions already adopted by the tribes, namely, those of February 4, 1946, and November 20, 1946, do not constitute ratification since they are inconsistent with the terms of the agreements.

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believe the Government would have made in the normal course of events, and which for the most part cannot be removed anyway. Moreover, your office wishes to retain some of the permanent improvements for its own use.

I must conclude that, except for the procedures discussed in parts (1) and (2) of this memorandum, the surplus property on the Colorado River Reservation could be acquired by the tribes or by the Indian Service without the payment of compensation only if additional legislation authorizing such acquisition were enacted by the Congress. This property belongs to the United States, and it can be disposed of only pursuant to the authority of an act of Congress.¹² I note your suggestion that it would be proper for the Secretary to transfer the desired structures at the Colorado River Relocation Center "as trustee for the Colorado River Indians and other Indians to be settled on the reservation." The capacity in which the Secretary might act would, however, not constitute a source of authority to transfer Government property.

Memorandum
To:             The Commissioner of Indian Affairs.
From :        The Solicitor.
Subject:      Mining claims on the Papago Indian Reservation.

There is returned for your further consideration the attached letter to the Superintendent of the Sells Agency relating to the desire of the Papago Tribal Council that the law governing the location and patenting of mining claims with the Papago Reservation be modified.

It is suggested that the first sentence of the 4th paragraph of the letter be eliminated. The Solicitor's opinion of March 7, 1934 (54 I.D. 359), referred to therein, dealt with the claim of the tribe that at the time of cession of the lands by Mexico the Papagos had a perfected communal title in fee acquired under Spanish and Mexican law. Although there is dictum in the opinion to the effect that if the land had been part of the original territory of the United States the claim of the Indians would fail, nevertheless the opinion considered only the claim of the Indians under Spanish and Mexican law. No consideration was given to any claim of the tribe to the ownership of the minerals based on Indian title or aboriginal rights.

The Supreme Court in the case of United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, held that lands within the Mexican Cession were not excepted from the general policy of the Government to respect the Indian right of occupancy. However, the Court also held that occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact (p. 345) . In the 1934 opinion this office said (p. 363):

¹² Royal Indemnity Co. v. United States, 313 U.S. 289, and earlier authorities there cited. In 33 Op. Atty. Gen. it is stated that "it has become an axiom of administrative law that the Executive has no authority to dispose of the property of the United States or even to transfer it from one department to another except under statutory authority."

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In these circumstances it seems unwise to express the opinion "that the Papagos did have original Indian title to the minerals." Without a full exploration of the facts it would appear to be inappropriate for this Department to express any opinion as to the validity of any claim which the Papago Indians might assert before the Indian Claims Commission.

STATE CRIMINAL JURISDICTION UNDER GENERAL
ALLOTMENT ACT--FEDERAL JURISDICTION
UNDER MAJOR CRIMES ACT

In your letter of April 28 (your reference TLC: HDB:aa:90-2-7-012) you raise the question whether the view expressed in our letter of April 8 concerning State criminal jurisdiction under the General Allotment Act of February 8, 1887 (24 Stat. 388), as amended May 8, 1906 (34 Stat. 182), is consistent with the position taken by this Department in its letter of November 20, 1942. This earlier communication advanced the opinion that under the so-called Major Crimes Act of March 3, 1885, as amended (18 U.S.C. sec. 548), the Federal courts had exclusive jurisdiction over offenses by Indians against Indians or other persons whenever one of the ten major crimes was committed on any lands within the exterior boundaries of an Indian reservation. This Department thus committed itself to the proposition that this jurisdiction existed even when the crime was committed on fee-patented lands, although it recognized that the authorities were divided.

This Department still adheres to this view. In speaking of the jurisdiction of the State courts under the General Allotment Act in our letter of April 8, we had in mind their general jurisdiction thereunder. This is, of course, subject to such specific exceptions as have been made by Federal law, and one of these exceptions is the Major Crimes Act. Thus, we believe that while the State courts have no jurisdiction over one of the ten major crimes, they do have jurisdiction over other crimes under State law when committed by Indians who have been subjected to State law by the General Allotment Act, as amended. The Federal jurisdiction over the major crimes should be regarded as territorial, but it should nevertheless be recognized that the State courts have jurisdiction over other crimes as an incident of the personal status of the Indian allottees. Such a view would be in harmony with the decisions of the Supreme Court of Minnesota, which would have jurisdiction over Indians under the Consolidated Chippewa Indian Agency. See State v. Bush, 263 N.W. 300 (Minn.), and State v. Jackson, 16 N.W. (2d) 752 (Minn.).

When a tribal constitution or charter provides that certain types of ordinances or resolutions shall be subject to review or approval by the Secretary of the Interior, the Secretary's function is delegable, and personal consideration and action by the Secretary is not required.

Under general principles governing the delegability of Secretarial powers, the function of reviewing or approving tribal legislation can be delegated to the Commissioner of Indian Affairs as well as to the Under Secretary and the Assistant Secretaries of the Interior.

The Indian Delegation Act authorizes the Secretary to delegate to the Commissioner of Indian Affairs the power to review or approve tribal legislation.

If the Secretary issues general regulations to guide the Commissioner of the Indian Affairs in the exercise of the delegated authority, the Secretary has unfettered discretion in the matter of delegating to the Commissioner authority to act under the regulations in particular instances or situations which come within the scope of the regulations.

Memorandum
To:             The Secretary.
From :        The Solicitor.
Subject:      Delegation to Commissioner of Indian Affairs of veto power over tribal legislation.

This is in response to Assistant Secretary Davidson's informal request that I consider the question

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whether it is legally permissible for the Secretary to delegate to the Commissioner of Indian Affairs the power to approve or veto legislation enacted by Indian tribes which are organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 2 U.S.C. 461 et seq.).

Authority for the enactment of tribal legislation, which is in the form of ordinances or resolutions passed by the tribes of their governing bodies, is to be found in constitutions adopted by the tribes pursuant to section 16 of the Indian Reorganization Act (25 U.S.C. 476), or in charters issued to the tribes by the Secretary of the Interior pursuant to section 17 of that statute (25 U.S.C. 477).

When a tribal constitution or charter provides for Secretarial participation in the enactment of tribal legislation, it declares that tribal actions dealing with certain specified matters shall be subject either to "review" or "approval" by the Secretary of the Interior. While the exercise of either type of Secretarial power may result in the veto of tribal legislation, there is an important difference between the two processes. An ordinance or resolution which is subject to "review" must first be submitted to the superintendent of the particular Indian agency, and the superintendent must either approve or disapprove it within 10 days. If he gives his approval, the ordinance or resolution becomes effective as of the date of such approval. The ordinance or resolution must nevertheless be transmitted to the Secretary, who, within 90 days of its enactment, may rescind it. Failure upon the part of the Secretary to act within the 90-day period with reference to tribal legislation which has been approved by the superintendent leaves the ordinance or resolution in full force and effect. If the superintendent disapproves an ordinance or resolution, the tribal governing body may by a majority vote refer the legislation to the Secretary; and if the Secretary approves the ordinance or resolution within 90 days of its enactment, it thereupon becomes effective. Provisions for the "review" of tribal legislation are found only in tribal constitutions. Indian charters do not provide for this type of procedure.

When tribal legislation is subject to "approval" by the Secretary rather than to "review," there is no time limit within which such approval must be given; and until the Secretary has actually approved a particular ordinance or resolution, the legislation does not become effective. The superintendent is not involved in the process, except by way of making a recommendation to the Secretary.

Ordinarily, the parts of constitutions or charters which provide for Secretarial review or approval of tribal actions refer only to "the Secretary of the Interior." However, it is expressly provided in some instances that particular forms of tribal action shall be subject to review or approval by "the Secretary of the Interior or his designated representative".^* It might be argued that this difference, particularly where the two variations are found in the same constitution or charter, indicates that those concerned with the drafting and approval of tribal constitutions or with the drafting and issuance of tribal charters intended that the Secretary should personally exercise the "review" and "approval" functions when only he is mentioned; and that such functions should be regarded as delegable only in those instances where delegation is expressly provided for in the language of the constitutions and charters. However, I am informed that, over a period of approximately 10 years, it has been the customary practice in the Office of the Secretary, when tribal ordinances and resolutions have been received for "review" or "approval", to distribute them among the Under Secretary and the Assistant Secretaries for handling under general delegations of authority made to these officials by the Secretary (e.g., 43 CFR 4.0; 11 F.R. 8164; Secretary's Order No. 2233, July 26, 1946); and that personal consideration by the Secretary of these tribal ordinances and resolutions has not been regarded as essential to the validity of the depart mental action upon them. Notwithstanding the fact that the Under Secretary and the Assistant Secretaries have exercised the "review" and "approval" functions under tribal constitutions and charters on many occasions over a long period of time, it is understood that the propriety of their actions in this respect has never been questioned. Consequently, it appears that, as a practical matter, the Department can continue to regard these functions of the Secretary under tribal constitutions and charters as being delegable in nature, rather than as requiring personal consideration and action by the head of the Department; and that there is no reason at this late date to become concerned over technical objections which might be made with respect to the delegability of such functions.

If the "review" and "approval" functions of the Secretary under tribal constitutions and charters are delegable and can be exercised by the Under Secretary and the Assistant Secretaries under general delegations of authority from the Secretary, it

^* For example, see Article III and Article V, section 5, of the constitution of the San Carlos Apache Tribe of Arizona, and Article IV, section 1, subdivision 5, of the constitution of the Santa Clara Pueblo, New Mexico. Also see the provisions of the following constitutions relating to the determination of economic units in land assignments: Omaha Tribe of Nebraska; Ponca Tribe of Native Americans of Nebraska: Santee Sioux Tribe of the Sioux Nation of Nebraska; Winnebago Tribe of Nebraska; Walker River Paiute Tribe of Nevada; Alabama and Coushatta Tribes of Texas.

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MAY 16, 1947

is my view that such functions can also be delegated to the Commissioner of Indian Affairs. The Commissioner, like the Under Secretary and the Assistant Secretaries, is an officer appointed by the president and confirmed by the Senate (25 U.S.C. 1). Hence, if a distinction within the Department concerning the respective qualifications of "Officers Of the United States" and of "inferior officers" (Constitution, Art. II , sec. 2, clause 2) to receive delegations of Secretarial powers is justified (cf. 35 Atty. Gen. 15, 20), that distinction is not pertinent here. Moreover, the general authority of the Secretary of the Interior under section 161 of the Revised Statutes (5 U.S.C. 22) to delegate his powers extends to the Commissioner of Indian Affairs (in so far as functions in the field of Indian affairs are concerned) as well as to the Under Secretary and the Assistant Secretaries. Although the specific statutory authority of the Secretary to delegate powers to the Assistant Secretary whose position was created by section 6 of the act of March 14, 1862 (12 Stat. 355, 369; R.S. 438, 439; 5 U.S.C. 483), arising from the express authorization for the Secretary to prescribe the duties of this officer, has no exact counterpart in the statutes relating to the Commissioner of Indian Affairs, Congress itself has defined the duties of the Commissioner as covering "* * * the management of all Indian affairs and of all matters arising out of Indian relations" (R.S. 463; 25 U.S.C. 2). It seems clear that the function of passing upon tribal legislation, under general instructions issued by the Secretary, would properly come within the management job which Congress has prescribed for the Commissioner. Therefore, I believe that, under general principles governing the delegation of Secretarial powers, the Secretary's functions in connection with the "review" and "approval" of the tribal ordinances and resolutions may be delegated to the Commissioner of Indian Affairs.

Additional--and, in my judgment, conclusive--support for the view that the Secretary's "review" and "approval" functions under tribal constitutions and charters may be delegated to the Commissioner of Indian Affairs is furnished by the act of August 8, 1946 (25 U.S.C.A., Supp., la). That statute specifically authorizes the Secretary of the Interior to delegate to the Commissioner of Indian Affairs his powers and duties under the laws governing Indian Affairs "insofar as such powers and duties relate to action in individual cases arising under general regulations promulgated by the Secretary of the Interior pursuant to law"; and provides for the subdelegation of such powers and duties by the Commissioner to subordinate officials of the Bureau of Indian Affairs. Although it can argued that tribal ordinances and resolutions submitted for review or approval are not "individual cases", within the technical meaning of that term as used in connection with legal proceedings, the legislative history of the portion of the statute quoted in the preceding sentence indicates that the term "individual cases" was not used by Congress in a narrow or technical sense. It appears that this language was inserted in the bill (H.R. 4386, 79th Cong.) which later became the act of August 8, 1946, as the result of an amendment proposed by the Senate Committee on Indian Affairs (see S. Rept. No. 1318, 19th Cong.). Senator O'Mahoney, Chairman of the Indian Affairs Committee and the manager of the bill on the floor of the Senate, explained that the amendment was:

Thus, the Congressional purpose in inserting the phrase, "insofar as such powers and duties relate to action in individual cases arising under general regulations promulgated by the Secretary of the Interior pursuant to law", in the legislation was merely to insure that the Secretary of the Interior would not delegate his power to promulgate general regulations governing the administration of Indian affairs. This leads me to conclude that if the Secretary issue, under the Indian laws general regulations to guide the Commissioner of Indian Affairs in the exercise of the delegated authority, the Secretary has unfettered discretion in the matter of delegating to the Commissioner authority to act under the regulations in particular instances or situations which come within the scope of the regulations. Therefore, I believe that an order of the Secretary delegating his "review" and "approval" functions under tribal constitutions and charters to the Commissioner of Indian Affairs, and furnishing general instructions for the guidance of the Commissioner in passing upon particular ordinances and resolutions, would fall within the specific authorization of the act of August 8, 1946.

1460

DEPARTMENT OF THE INTERIOR

MAY 16, 1947

In view of the fact that the process of "reviewing" a tribal ordinance or resolution must be completed within 90 days from the date of its enactment, it probably would not be feasible to authorize the Commissioner of Indian Affairs to take unfavorable action with respect to such ordinances and resolutions and then provide for a process of appeal to the Secretary by the tribes, as contemplated by the act of August 8, 1946. Because of the time element, and by way of obviating the necessity for an appeal procedure, the Commissioner could be instructed to transmit to the Secretary for action any ordinance or resolution submitted for "review" if the Commissioner believes that it should be rescinded or that a disapproval previously given by the superintendent should be confirmed. Although the time factor is not so important with respect to tribal legislation submitted for "approval", I believe that, in order to avoid confusion, all ordinances and resolutions should be handled in the same manner, in so far as the power of the Commissioner to take unfavorable action of an authoritative nature is concerned. Thus, I suggest that the Commissioner not be empowered to disapprove or rescind tribal legislation; but, rather, that he be instructed to forward to the Secretary for action any ordinance or resolution which, in the opinion of the Commissioner, should be disapproved or rescinded.

A draft of a proposed order of delegation along the lines indicated above is attached for your consideration.

PROSECUTION OF CLAIMS BEFORE INDIAN CLAIMS
COMMISSION UNDER EXISTING ATTORNEYS'
CONTRACT

Attorneys who have been retained to represent Sioux Tribe of Indians in suits against the United States under the jurisdictional act of June 3, 1920 (41 Stat. 738) under a contract which requires them not only to prosecute any claims under the said act but also under any "acts amendatory thereof or supplemental thereto," may not represent the Indians in prosecuting claims before the Indian Claims Commission. Although section 11 of the Indian Claims Commission Act (Public Law 726, 79th Cong., 25 U.S.C. 70 et seq.) modifies existing jurisdictional acts under which suit could still be brought, it is not "amendatory of" or "supplementary to" the act of June 3, 1920, in the sense in which these terms are employed in the attorneys' contract. Suits could no longer be filed under the act of June 3, 1920, and it was the intention of the parties that the attorneys should continue to represent the Indians only if the particular jurisdictional act were amended or supplemented by another act relating to the claims of the tribe authorized to sue under the act. This interpretation of the contract is also supported by various provisions of the attorneys' contract which make it clear that the litigation was to have been conducted exclusively in the Court of Claims and the Supreme Court of the United States.

Memorandum
To:             The Commissioner of Indian Affairs.
From:         The Solicitor.
Subject:      Representation of Sioux Tribe of Indians before the Indian Claims Commission.

You have requested my opinion on the question whether, under the terms of a contract between the Sioux Tribe of Indians and Ralph H. Case and C. C. Calhoun (now deceased), attorneys, approved by the Department on December 21, 1922, and applicable provisions of law, Mr. Case is authorized to prosecute before the Indian Claims Commission any claims of the Sioux Tribe or bands thereof which may be cognizable before the Commission.

Suit against the United States by the Sioux Tribe of Indians was authorized by the act of June 3, 1920 (41 Stat. 738), and the attorneys' contract mentioned above made it the duty of the attorneys not only to prosecute any claims under the said act but also under any "acts amendatory thereof or supplemental thereto."

It appears that 24 separate petitions alleging various claims against the United States have been filed under the jurisdictional act of 1920. Most of these petitions have been dismissed by the Court of Claims, but a number are still pending before that court. Some of the claims were rejected by the Court of Claims on jurisdictional grounds, or because the amounts of the offsets established by the United States exceeded the amounts of the claims. It is apparently the intention of the attorney for the Sioux Tribe to present such claims to the Indian Claims Commission created by the act of August 13, 1946 (Public Law 726, 79th Cong.;

1461

OPINIONS OF THE SOLICITOR

JUNE 16, 1947

25 U.S.C.A. 70 et seq.), which affords a much more favorable basis of recovery than the jurisdictional act of 1920.

I am of the opinion, however, that before the attorney can present such claims to the Commission he must obtain a new contract pursuant to section 15 of the Indian Claims Commission Act (25 U.S.C.A. 70n), which provides for representation of claimants by attorneys employed to present claims to the Commission.

Section 11 of the Indian Claims Commission Act (70 U.S.C.A. 70j) provides that the Court of Claims shall retain jurisdiction of pending suits and permits the filing of suits in the Court of Claims "under existing legislation," subject, however, to a greater degree of liberality in the matter of offsets and authority to consider claims based "upon fair and honorable dealings." In these respects, the provisions of existing jurisdictional acts under which suits could still be brought have certainly been modified. However, suit could no longer be brought under the act of June 3, 1920, for section 2 thereof provides that suit must be brought within five years of the passage of the act. Consequently, it seems clear that the Indian Claims Commission Act cannot be regarded either as "amendatory of" or "supplementary to" the act of June 3, 1920, in the sense in which these terms are employed in the contract between the Sioux Tribe and Messrs. Case and Calhoun. What the parties apparently intended was that the attorneys should continue to represent the Indians if the particular jurisdictional act were amended or supplemented by another act relating to the claims of the tribe authorized to sue under the act. The Indian Claims Commission Act, which is an act of general operation, does not specifically amend or supplement the act of June 3, 1920.

The true intention of the parties may be gathered from provisions of the attorneys' contract which make it clear that the litigation was to have been conducted exclusively in the Court of Claims and the Supreme Court of the United States. The contract provided that the attorneys should "pursue the litigation in question to and through the courts of final resort"; that the attorneys should continue to be employed beyond the period of five years provided for in the contract "should the said cause not be then fully determined and settled in the court of last resort"; and that "upon the final determination of such suit, cause, or action the Court of Claims shall decree such fees as it shall find reasonable." Obviously, the Court of Claims could not fix fees in proceedings before the Indian Claims Commission.

To permit representation of the Indians before the Commission under the original contract, it would be necessary to reform the contract but this could be accomplished only by the parties themselves in making a new contract. As presented to Congress, section 11 of the bill (H.R. 4497, 79th Cong.) which became the Claims Commission Act not only required the transfer of suits from the Court of Claims to the Indian Claims Commission, but also provided: "In the event of such a transfer, the claimant shall continue to be represented by its attorney or attorneys under their approved existing contract according to its terms." This provision for the retention of attorneys was entirely omitted when Congress refused to permit the transfer of cases from the Court of Claims to the Indian Claims Commission.

LAND TRANSACTION BETWEEN STATE OF OKLAHOMA
AND U.S. FOR LAND PATENTED BY THE U.S.

Grant by Caddo County to the State of Oklahoma of land for fairground purposes and as a site for the erection of an Indian arts and crafts building to be a part of a permanent Indian exposition is not in contravention of the terms of the act of August 22, 1914 (38 Stat. 704), providing that if the land is not used for park and fairground purposes the title thereto shall revert to the United States.

In the absence of statute an appropriation for a particular fiscal year must be expended or obligated by contract prior to June 30, of that year.

Memorandum
To:             The Commissioner of Indian Affairs.
From :        The Solicitor.
Subject:      Grant of 2.9 acres of land by the Board of County Commissioners of Caddo County to the State
                   of Oklahoma.

In your memorandum of May 9 you raise several questions concerning the conveyance of 2.9 acres of land by the Board of County Commissioners of Caddo County to the State of Oklahoma for the use and benefit of the Oklahoma Planning and Resources Board, a State agency.

On March 27, 1915, a patent was issued by the United States to the Board of County Commis-

1462

DEPARTMENT OF THE INTERIOR

JUNE 4, 1947

sioners of Caddo County for a tract of land comprising 111.41 acres, which includes the 2.9-acre tract, pursuant to the act of August 22, 1914 (38 Stat. 704). This act provides in part:

You inquire whether the conveyance to the State is in contravention of the terms of the 1914 act.
The grant from Caddo County recites that the land is conveyed to the State:

The language of the grant clearly indicates that the property is to be used for one of the purposes specified in the act of August 22, 1914, namely, for a fairground.

The grant also contemplates that an Indian arts and crafts building is to be constructed on the tract and "used as a part of a permanent American Indian Exposition." It does not appear that the use of the land for such a purpose would be inconsistent with the provisions of the act of August 22, 1914. The term "fairground", which appears in that act, is broad enough to cover the site of an exposition building where the industrial products of a people are exhibited as a display of the success, workmanship, and art of the exhibitors.¹

It is my opinion, therefore, that the grant to the State does not violate the provisions of the 1914 act.

The Attorney General of Oklahoma, in a letter dated February 26 to the Oklahoma Planning and
Resources Board, advised that the Board should make an agreement with this Department which would provide that the $25,000 which is available under the Interior Department Appropriation Act, 1947 (Public Law 478, 79th Cong.), "for cooperation with the State of Oklahoma for the construction and equipment of an Indian arts and crafts building at Anadarko, Oklahoma, * * *" might be used in conjunction with $25,000 appropriated by the State for the payment of the cost of constructing and equipping the exposition building mentioned in the preceding paragraph. The Interior Department Appropriation Act, 1947, provides that the $25,000 of Federal funds shall be available during the fiscal year 1947. It is the general rule that in the absence of statutory authority to the contrary, an appropriation for a particular fiscal year ceases to be available for obligating after June 30 of that fiscal year.² However, an appropriation may be obligated by contract within the fiscal year.³ In the circumstances, you may deem it advisable to make a contract with the Oklahoma Planning and Resources Board prior to June 30, 1947, for the expenditure of these funds.

The Secretary of the Interior has authority during the present fiscal year to make a per capita payment to Indians of the Choctaw and Chickasaw Tribes of Oklahoma subject to the limitations contained in section 18 of the act of February 14, 1920 (41 Stat. 408, 427, 25 U.S.C. 120).

The authority of the Secretary to make a per capita distribution to the Indians of the Choctaw and Chickasaw Tribes after the close of the present fiscal year will depend upon the provisions of the Interior Department Appropriation Act for the fiscal year 1948 as finally enacted by Congress.

Memorandum
To:             Under Secretary Chapman
From :        Solicitor
Subject:      Per capita payment to Indians of the Choctaw and Chickasaw Tribes in Oklahoma.

In response to your informal memorandum of May 27, I find that authority exists for the Secre-

    ¹ State v. Long, 48 Ohio State 509, 28 N.E. 1038, 1039; State v. Reynolds, 77 Conn. 131, 58 Atl. 755, 756.
    ² 18 Comp. Gen. 969, 971.
    ³ M-31838, July 15, 1942.

1463

OPINIONS OF THE SOLICITOR

AUGUST 28, 1947

tary of the interior to make a per capita payment to Indians of the Choctaw and Chickasaw Tribes of Oklahoma.

Under existing law, no money can be expended from tribal funds belonging to the Five Civilized Tribes, including the Choctaw and Chickasaw Tribes, without specific appropriation by Congress.¹ However, for a number of years an item has been included in the annual appropriation act for this Department to the effect that "for the current fiscal year" money may be expended from tribal funds of certain of the Five Civilized Tribes, including the Choctaw and Chickasaw Tribes, for per capita and other payments "authorized by law." Such an item is found in the Interior Department Appropriation Act, 1947 (Public Law 478, 79th Cong., 2d sess.). A similar item has been recommended for inclusion in the Department's appropriation act for the coming fiscal year.²

It would appear, therefore, that money may now be expended from available Choctaw and Chickasaw tribal funds for per capita payments if such payments are otherwise authorized by law. The necessary authorization is found in the portion of section 18 of the Indian Appropriation Act of February 14, 1920 (41 Stat. 408, 427; 25 U.S.C. 120), which provides:

"That until further provided by Congress, the Secretary of the Interior, under rules and regulations to be prescribed by him, is authorized to make per capita payments of not to exceed $200 annually hereafter to the enrolled members of the Choctaw and Chickasaw Tribes of Indians of Oklahoma, entitled under existing law to share in the funds of said tribes, or to their lawful heirs, of all the available money held by the Government of the United States for the benefit of said tribes in excess of that required for expenditures authorized by annual appropriations made therefrom or by existing law."

The provisions of the 1920 act, quoted above, constitute continuing legislation respecting per capita payments to Indians of the Choctaw and Chickasaw Tribes of Oklahoma. This legislation, as supplemented by the current appropriation act, would permit the Secretary, at any time during the present fiscal year, to make a per capita distribution from any available tribal money belonging to the Choctaw or Chickasaw Tribe, subject, of course, to the limitations contained in the 1920 statute.³

The authority of the Secretary to make a per capita distribution to the Choctaws and Chickasaws after the close of the present fiscal year will depend upon the provisions of the Department's appropriation act for the fiscal year 1948, as finally enacted by Congress.

Congress is vested with plenary authority to legislate for the regulation of the affairs and economic welfare of Indian tribes and bands such as the Eastern Cherokees of North Carolina, and neither the constitution of a State nor any act of its legislature can withdraw the Indians from the operation of an act which Congress passes in the exercise of its paramount authority.

Since section 1 of the North Carolina statute of April 5, 1947, which section merely provides for the exercise of certain property rights by members of the Eastern Band of Cherokees, subject to existing and future Federal laws, neither interferes nor attempts to interfere with the jurisdiction of the Federal Government over the property of the Eastern Band, there is no occasion for an official of the Federal Government to question the validity of the section.

Section 2 of said act of April 5, 1947, which under takes to prescribe the qualifications which members of the Eastern Band must possess in order to hold office in the tribal government, is ineffective for the reason that the authority to determine such matters is now vested in the band as a result of the enactment of the Indian Reor-

    ¹ Act of May 24, 1922 (42 stat. 552, 575), 25 U.S.C. 124.
    ² H.R. 3123, 80th Cong., 1st sess.: "For the current fiscal year money may be expended from the tribal funds of the Choctaw, Chickasaw, Creek, and Seminole Tribes for equalization of allotments, per capita, and other payments authorized by law to individual members of the respective tribes *     *     *."
    ³ On three different occasions, at least the Department has authorized the Superintendent of the Five Civilized Tribes Agency to make per capita payments to Indians of one or both of the two tribes mentioned above, based upon the authority found in the 1920 act. See regulations approved May 12, 1921, covering a payment to the Choctaw and Chickasaw Indians; letter dated July 11, 1924, authorizing a payment of $25 per capita to the Choctaw Indians; and letter of February 21, 1929, containing authority for the making of a further per capita payment of $10 to the Choctaw Indians.

1464

DEPARTMENT OF THE INTERIOR

AUGUST 28, 1947

ganization Act of June 1934, and the acceptance of the provisions of the act by the Eastern Band.

Memorandum

To:             The Commissioner of Indian Affairs.
From:         The Solicitor.
Subject:      Validity of the North Carolina statute of April 5, 1947, relating to the Eastern Band of Cherokee
                   Indians.

You have requested that I express an opinion upon the question of the validity of the act of April 5, 1947, adopted by the Legislature of North Carolina with reference to the affairs of the Eastern Band of Cherokee Indians. Section 1 of the act provides that the members of the band and their lineal descendants shall have the capacity to acquire, hold, and dispose of property "as fully and completely * * * as any other citizen of the State of North Carolina," subject, however to "restrictions and conditions now existing or hereafter imposed under Federal statutes and regulations, or treaties, contracts, agreements, or conveyances between such Indians and the Federal Government." Section 2 of the act declares that any lineal descendant of any member of the band is eligible to hold any elective or appointive office in the band, including the office of principal chief, if such descendant is himself a member of and is domiciled on lands of the band.

Section 1 of the North Carolina statute presents no serious problem. The section does not seek to impose any limitations with respect to the exercise of property rights by members of the band, but on the contrary, it apparently is intended to make certain that the members of the band shall not labor under any State restrictions upon their capacity to acquire, hold, or dispose of property. Moreover, as the section expressly states that it is subject to existing and future Federal laws, it does not constitute any interference or attempted interference with the jurisdiction of the Federal Government over property of the Eastern Band of Cherokees. Consequently, there does not seem to be any occasion for an official of the Federal Government to question the validity of this section. I pass, therefore, to a consideration of section 2 of the act.

For many years legislation of the State of North Carolina has purported to govern the eligibility of members of the Eastern Band of Cherokees to serve as officers of the band. Prior to the passage of the act of April 5, 1947, the law of North Carolina covering this subject provided that the principal chief and assistant chief of the band must be of at least one-half Eastern Cherokee blood, and that the members of the council must be of at least one-sixteenth Eastern Cherokee blood. (Section 17 of the North Carolina law of March 8, 1897.) Section 2 of the act of April 5, 1947, abolishes these requirements as to the minimum degree of Indian blood necessary to establish eligibility for an office in the band.

Although the Indians originally comprising the Eastern Band of Cherokees declined to move west of the Mississippi River with the main body of the Cherokee Nation after the Treaty of New Echota in 1835, choosing instead to remain in the State of North Carolina and to become citizens of that State and subject to its laws,¹ it is well settled that, as a result of developments since the separation of the band from the main body of the tribe, this band now has the status of a "distinctly Indian community"; that it is under the guardianship and protection of the Federal Government; and that it is subject to the paramount authority of Congress to legislate for the regulation of the affairs of the band and for its economic welfare.² Therefore, it is necessary to determine whether the April 1947 legislation of the State of North Carolina concerning the eligibility of members of the Eastern Band of Cherokees to serve as officers of the tribal organization conflicts or is inconsistent with legislation enacted by the Congress under its paramount authority over these Indians.

In the consideration of the point mentioned in the last sentence of the preceding paragraph, it is unnecessary to dwell on the Congressional statutes adopted prior to the enactment of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461 et seq.), other than to point out that they were reviewed at length in the case of United States v. Wright.³ and were found to support the conclusion that Congress had recognized the Eastern Band of Cherokees as a "distinctly Indian community" and had placed the band in a status similar to that of other Indian tribes. As a band of Indians subject to Federal jurisdiction, the provisions of the Indian Reorganization Act were extended to the Eastern Band of Cherokees by section 19 of the act (25 U.S.C. 479), subject to their acceptance of the act by formal vote as provided in section 18 (25 U.S.C. 477). The Eastern Band of Cherokees accepted the act on

    ¹See the Cherokee Trust Funds, 117 U.S. 288 (1886).
    ² United States v. Wright, 53 F. (2d) 300, 306-7 (C.C.A. 4th., 1931), cert. denied, 285 U.S. 539.
    ³ Cited in footnote 2 above.

1465

OPINIONS OF THE SOLICITOR

AUGUST 29, 1947

December 20, 1934.⁴ The band has thus become entitled to all the rights, powers, and privileges granted by the act to the tribes accepting its terms. Among these is "the right to organize for its common welfare" (sec. 16; 25 U.S.C. 476).

The "right to organize" which Congress in section 16 of the Indian Reorganization Act specifically conferred upon, or recognized as existing in, Indian tribes includes the determination of the form or tribal government to be adopted. As former Solicitor Marigold said in an opinion dated October 25, 1934: ⁵

The authority of an Indian tribe to define its form of government necessarily includes the power to prescribe the qualifications which must be possessed by its officers and the members of its governing body. No other power is more inherent in or more intimately related to self-government.

It is my opinion, therefore, that section 2 of the act of April 5, 1947, of the North Carolina Legislature is ineffective to prescribe the qualifications which members of the band must possess in order to hold office in the tribal government, for the reason that the authority to determine such matters is now clearly vested in the band as a result of the enactment of the Indian Reorganization Act by Congress and the acceptance of the provisions of the act by the band. It is immaterial in this connection that the band has not as yet adopted a constitution or received a charter under the act. As the "right to organize" is lodged in the band, and as Congress in pursuance of its paramount authority has legislated with respect to the exercise of the right, the State is without power to control matters of tribal organization. "Neither the constitution of a State nor any act of its legislature, whatever rights it may confer on Indians or withhold from them, can withdraw them from the operation of an act which Congress passes concerning them in the exercise of its paramount authority." Sperry Oil Company v. Chisholm, 264 U.S. 488, 497.

Nothing contained in this opinion is to be construed as questioning the validity of the charter of incorporation issued to the Eastern Band of Cherokees by the State of North Carolina or the validity of the legislation enacted by the State with respect to matters of tribal organization prior to the passage of the Indian Reorganization Act. Aside from the fact that such legislation appears to have been enacted with the approval of the Indians, there was then no Federal law to the contrary on the subject. My opinion goes no further than to say that the power to make changes in the form of tribal government no longer rests in the State by virtue of the preemption of the field by Congress. Such changes may be made only in the manner prescribed by the Indian Reorganization Act, i.e., through the adoption of a constitution and bylaws as prescribed by section 16 of that act.

RIGHT OF ACCESS TO DEPARTMENTAL RECORDS
PURSUANT TO UTE INDIAN JURISDICTIONAL ACT

Section 7 of the Ute Indian jurisdictional act of June 28, 1938 (52 Stat. 1209), is mandatory and attorneys acting pursuant to that statute have the right of access to departmental records.

Affidavits stating the true consideration for assignments of oil and gas leases made confidential by departmental regulation cannot be excepted from the application of the jurisdictional act.

Memorandum
To:            The Director, Bureau of Land Management.
From:        The Solicitor.
Subject:     Request of Mr. Ernest L. Wilkinson for permission to examine certain records of the Bureau of
                  Land Management.

I have been requested to state my opinion concerning the legal question raised in a letter dated August 9, 1947, from Mr. Ernest L. Wilkinson,

⁴ See Ten Years of Tribal Government under the Indian Reorganization Act, Table A, page 18
⁵ 55 I.D. 14. 30.

1466

DEPARTMENT OF THE INTERIOR

AUGUST 29, 1947

Attorney at Law, Washington, D.C., requesting you to grant permission to the attorney or to his authorized representatives to examine certain files or records in your office containing affidavits showing the consideration for assignments of oil and gas leases in the Rangely and Wilson Creek oil fields, Colorado. Mr. Wilkinson is employed by various bands or tribes of Ute Indians, under contracts approved by the Department, for the purpose of prosecuting claims of the Ute Indians against the United States pursuant to the provisions of the jurisdictional act of June 28, 1938 (52 Stat. 1209). Mr. Wilkinson's request for access to your files is predicated upon section 7 of the 1938 act.¹

The request of Mr. Wilkinson was informally refused by your office because of a regulation of the Department approved March 9, 1942 (43 CFR J 92.42 (d) ; 7 F.R. 2246)² dealing with assignment agreements. That regulation was promulgated pursuant to authority found in the general mineral leasing act of February 25, 1920.³ Section 32 of that act (30 U.S.C. 189) provides that the "Secretary of the Interior is authorized to prescribe necessary and proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of this act * * *." This authority is a reiteration of the general authority vested in the Secretary concerning the issuance of regulations governing the performance of the business in his Department.⁴

The act of June 28, 1938, conferred jurisdiction on the United States Count of Claims to hear determine, and render final judgment on all legal and equitable claims which the Ute Indians may have against the United States. The power thus granted by Congress for the determination of matters affecting the United States obviously denotes a sincere desire by Congress to acquit itself wholly of whatever injustices the Indians may be able to prove. Such a result can be accomplished only through an examination of all the pertinent facts. Much of the data and information useful to the Indians and their attorneys probably can be found only in the files of those Government departments which handled the affairs of the Indians and which dealt with the lands and property involved in the Indians' claims. Much of this material no doubt would ordinarily be regarded as confidential. Therefore, if the usual rule against the disclosure of confidential information contained in the Government's files had been permitted to prevail after the passage of the 1938 jurisdictional act, the result would have been highly disadvantageous to the Indians, and, in some respects, it would probably have been futile for them even to attempt to establish grounds for recovery against the United States. In these circumstances, the reason for the use of the sweeping language in section 7 of the 1938 act is readily apparent.

The provisions of section 7 of the 1938 act are unaffected by the regulation of March 9, 1942. While it is true that the head of a department may prescribe regulations, not inconsistent with law, prohibiting the inspection of records in his custody when he feels that such measures are necessary to preserve the integrity and confidential nature of official documents or other papers,⁵ such regulations can have no force against the authority contained in a law of the United States expressly granting the right to obtain official information or to inspect official records.⁶

With respect to those individuals who furnished affidavits concerning the true consideration for assignments of oil and gas leases, it is not apparent to what extent, if any, they might be prejudiced by the disclosure of such affidavits. Moreover, I do not believe that compliance by the Department with section 7 of the jurisdictional act in this particular matter would provide any justification for an allegation of broken faith with the affiants. The controlling regulation still prevents access to or inspection of the affidavits by the general public. It

    ¹ Sec. 7. In any suit instituted hereunder, any letter, paper, document, map, or record in the possession of any officer or department of the United States (or certified copy thereof) may be used in evidence, and the departments of the Government of the United States shall give full and free access to the attorneys for any of said bands of Indians to such letters, papers, documents, or records as may be useful to said attorney or attorneys in the preparation for trial or trials of such suits and shall afford facilities for the examination of the same."
    ² "*     *     * If the consideration expressed in the agreement fails to describe the true consideration, an accompanying affidavit must be submitted stating the consideration in full. The affidavit will be treated as confidential and not for public inspection *     *     * " This provision has been eliminated from the present regulations, as affidavits of consideration are no longer required.
    ³ 41 Stat. 437; 30 U.S.C. 181 et seq.
    ⁴ 5 U.S.C 22: "1%~ brad of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it." See also 5 U.S.C. 489: "Nothing in sections 488 to 492 of this title shall be construed to limit or restrict in any manner the authority of the Secretary of the Interior to prescribe such rules and regulations as he may deem proper governing the inspection of the records of said department and its various bureaus by the general public, and any person having any particular interest in any of such records my be permitted to take copies of such records under such rules and regulations as may be prescribed by the Secretary of the Interior.
    ⁵ Boske v. Comingore, 177 U.S. 459 (1900); Ex parte Sackett, 74 F. (2d) 922 (1935); United States v. Potts, 57 Fed. Supp. 204 (1944).
    ⁶ Gonzales v. United States, 298 Fed. 1003 (1924); 25 Op. A.G. 326, 331; cf. United States v. Potts, 57 Fed. Supp. 204, 206 (1944)

1467

OPINIONS OF THE SOLICITOR

SEPTEMBER 5, 1947

would be fair to say that a limited opening of the records, including the affidavits in question, to an attorney authorized by Congress under a special act to examine papers and documents for the trial of a particular case does not in any event constitute a departure from either the letter or the spirit of the regulation which prohibited "public inspection."

Notwithstanding the incidental circumstances just mentioned, it must be reiterated that the departmental regulation in question cannot control in a situation such as this, where Congress has specifically provided in unequivocal and mandatory language that "the Departments of the Government of the United States shall give full and free access * * * to such letters, papers, documents, or records as may be useful * * * in the preparation for trial * * *." Neither the act nor its legislative history indicates that the language just quoted is inapplicable where materials generally regarded as confidential are involved.⁷

Therefore, if the documents in question may be useful to the attorney in preparing for the trial of a suit or suits instituted under the jurisdictional act of June 28, 1938, access to such documents should be granted in conformity with the Congressional mandate.

When Congress by the act of July 1, 1898 (30 Stat. 571, 596), called for recommendations as to the manner in which a controversy between the Northern Cheyenne Indians and white settlers might be ended and when it later, by the act of May 3, 1900 (31 Stat. 221, 241), approved recommendations that certain lands be added to the then existing Executive Order reservation and appropriated the money with which to purchase such lands, those actions by Congress had the effect of adding to the reservation the lands acquired pursuant to the 1900 act, including those lands situated outside reservation boundaries fixed by the Executive order of March 19, 1900.

The phrase "the Northern Cheyenne Reservation heretofore set apart by Executive Order dated the 19th day of March 1900" appearing in the act of June 3, 1926 (44 Stat. 690), authorizing allotments to Northern Cheyenne Indians, was used as a means of identification rather than as a limitation upon the allotment authority of the Secretary of the Interior.

Patents issued to Northern Cheyenne Indians for lands acquired under the act of May 31, 1900, although outside of the boundaries of the reservation established by Executive order of March 19, 1900, were properly issued pursuant to the act of June 3, 1926, as it was the purpose of Congress to authorize the allotment in severalty of the agricultural and grazing lands within the reservation as then constituted.

Memorandum
To:             The Acting Commissioner of Indian Affairs.
From :        The Solicitor.
Subject:      The validity of patents issued to Pat and Jean Spottedwolf.

This responds to the memorandum from the Assistant Commissioner of Indian Affairs submitting to this office the question whether trust patents issued to Pat and Jean Spottedwolf, Northern Cheyenne Indian Allottees Nos. 1090 and 1091, insofar as the patents cover land in Section 27, T. 2 S., R. 44 E., P.M., Montana, on the east bank of the Tongue River, were properly issued under the act of June 3, 1926 (44 Stat. 690).

Section 1 of that act declared "the Northern Cheyenne Reservation heretofore set apart by Executive order dated the 19th day of March, 1900, for the permanent use and occupation of the Northern Cheyenne Indians, in Montana," to be "the property of said Indians." Section 2 required the Secretary of the Interior to cause to be prepared "a list of the lands of said Indian reservation" and to classify the same as agricultural land, grazing land, or land chiefly valuable for its timber; and authorized the Secretary to allot in severalty the lands classified as agricultural or grazing lands, with a reservation to the tribe of the coal and other minerals. The patents issued to the Spottedwolfs contain the mineral reservation.

The question as to the validity of the patents arises by virtue of the fact that the Executive order of March 19, 1900 (1 Kappler 860), established the middle of the channel of the Tongue River as the eastern boundary of the Northern

⁷ Practically identical provisions in the Menominee jurisdictional act of September 3, 1935 (49 Stat. 1085), have been construed in the Department as containing no such limitations. See letter of March 14, 1942, to the law firm of Dwight, Harris, Koegel and Caskey, together with the accompanying memorandum of March 13, 1942, from the Indian Division of this office.

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 5, 1947

Cheyenne Reservation, while certain portions of the allotments covered by the two patents in question lie east of the Tongue River, which intersects Section 27. Those particular portions of the allotments, therefore, were not derived from the reservation as established by the Executive order.

In determining the propriety of allotting the land in Section 27 lying east of the Tongue River to Northern Cheyenne Indians under the act of June 3, 1926, consideration must be given not only to the Executive order of March 19, 1900, and to the 1926 act, but to the manner in which Section 27 was acquired for the use and benefit of the Northern Cheyenne Indians. The acts of Congress under which the land was acquired and the steps taken by this Department in the acquisition of the land and its allotment to the Indians will be re viewed in order that the true status of the land in question may be revealed.

By an Executive order dated November 26, 1884 (I Kappler 860), certain unsurveyed land in the Territory of Montana, bounded on the west by the Crow Indian Reservation, was set apart as a reservation for the use and occupancy of "the Northern Cheyenne Indians, now residing in the southern portion of Montana Territory * * *." Tracts of land within the boundaries described in the Executive order which had been "located, resided upon, and improved by bona fide settlers, prior to the 1st day of October, 1884," were excluded from the reservation, as were all lands to which valid rights had attached under the public land laws.

By orders dated June 22 and September 3, 1886, the Secretary of the Interior withdrew from settlement certain lands along the Tongue River outside the boundaries of the 1884 reservation, until the needs of the Northern Cheyenne Indians could be determined.¹

For many years there was trouble between the Indians and the non-Indians in the area, due in part to the agitation by the non-Indians for the removal of the Indians from the area and to the impossibility of determining the boundaries of the reservation.² Reports to this Department and to the War Department indicated that if the reservation were cleared of white settlers, who occupied much of the best land on the reservation, and if a sufficient amount of other desirable land could be added to the reservation, many of the difficulties of the Northern Cheyennes could be eliminated.

By section 10 of the act of July 1, 1898 (30 Stat. 571, 596), the Secretary of the Interior was directed to send an inspector to the Northern Cheyenne Reservation. The inspector was required to determine if it were feasible to secure the removal of the Northern Cheyenne Indians to the Crow Reservation; to ascertain and report in de tail the number and names of white settlers legally on the Northern Cheyenne Reservation and the number of acres of land owned by them; and to report on the number of white settlers who were illegally on the reservation and the circumstances attending their settlement. He was instructed by Congress to enter into negotiations with the white settlers who were found to have valid titles for the purchase of their lands and improvements by the Government, and he was authorized to make written purchase agreements with such settlers, but the agreements were to be binding only if ratified and approved by the Secretary of the Interior. The inspector was required, also, to make recommendations as to the settlement of the claims of any white settlers who had gone on the reservation under circumstances which gave them equitable rights in reservation lands.

The inspector made his first report and recommendations on November 14, 1898.³ He found that the Northern Cheyennes were unwilling to move to the Crow Reservation and that the Crows were unwilling to receive them. He proposed that the Northern Cheyenne Reservation be extended east to the Tongue River. He included in the report information concerning his negotiations with white settlers for lands and improvements owned and occupied by them within the limits of the reservation, as set apart by the Executive order of November 26, 1884, with whites who owned or claimed lands and improvements in the area proposed to be added to the reservation, and with Indians living east of the Tongue River for their removal to lands west of the river.

On February 3, 1900, the inspector submitted his second report, in which he told of his negotiations for the purchase of certain sections of land previously patented to the Northern Pacific Rail way Company and situated within "the proposed reservation for the Northern Cheyenne Indians". He reported that the railway company still owned 4,656.35 acres out of more than 10,000 acres patented to it within the area, and that he had entered into an agreement with the company for the purchase of the land still owned by it. He said that he had also entered into an agreement with

    ¹ See letter of Commissioner of Indian Affairs dated February 6, 1892, Sen. Ex. Doc. No. 58, 52d Cong., 1st sess., Vol. 5.
    ² See reports of the Agent at the Tongue River Agency contained in the reports of the Commissioner of Indian Affairs, 1889-90, 1891, 1896, and 1898, and the reports contained in Sen. Ex. Doc. 58, 52d Cong., 1st sess., Vol. 5.
    ³ House Document No. 55th Cong., 3d sess., Vol. 65.

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OPINIONS OF THE SOLICITOR

SEPTEMBER 5, 1947

one Hugh Hunter for the purchase of 3,732.28 acres of land which Mr. Hunter had acquired from the railway company; and that he was negotiating with a Captain A. E. Neate concerning the purchase of land acquired by the latter from the rail way company. The purchase agreement which the inspector made with the Northern Pacific Railway Company included the land in Section 27, T. 2 S., R. 44 E., on the east bank of the Tongue River.

On February 16, 1900, the inspector submitted a third report, stating that the negotiations with Captain Neate had ended in an agreement for the purchase of 1701.36 acres of land. The inspector also reported that it would be necessary for Congress to appropriate $171,615.44 to carry out the agreements which he had entered into with the settlers, the railway company, and the Indians.

Thereafter, the Executive order of March 19, 1900, was issued. It withdrew from sale and settlement the land described in the order, which included the area previously covered by the Executive order of November 26, 1884, and set the same apart as a reservation for the permanent use and occupancy of the Northern Cheyenne Indians.⁴ As previously stated, the middle of the channel of the Tongue River was fixed as part of the eastern boundary of the reservation, and no land east of that river was affected by the order.

On December 18, 1900, the Secretary revoked his orders of June 22 and September 3, 1886, thereby releasing lands east of the Tongue River for location and settlement.

A subsequent survey of the northern boundary of the reservation disclosed that there were seven settlers who remained within the reservation. They were found to be without title to the land occupied by them. Their improvements were estimated to aggregate $2,965, and Congress appropriated this amount in the Indian Appropriation Act of March 3, 1903 (32 Stat. 982, l,000), for the payment of their claims.

On July 14, 1930, the Commissioner of Indian Affairs transmitted to the Secretary a schedule showing the classification of the lands on the Northern Cheyenne Reservation, as required by the act of June 3, 1926. The schedule was approved on July 15, 1930.

On February 4, 1932, the Commissioner of Indian Affairs transmitted a schedule listing 1,457 allotments made to Indians of the Northern Cheyenne Reservation under the 1926 act. Allotments Nos. 1090 and 1091 appeared on that schedule. The General Land Office, now the Bureau of Land Management, recommended that action be suspended on certain allotment selections, including those of Pat and Jean Spottedwolf, because its records showed that the selections of the Indians conflicted with patents already issued. The records of the General Land Office showed that all of Section 27 had been patented to the Northern Pacific Railway Company in 1895.

On August 30, 1932, the Bureau of Indian Affairs forwarded to the General Land Office deeds and abstracts of title covering the lands involved in the conflicts. The Indian Bureau stated that the lands "were purchased as evidenced by the enclosed deeds during the years 1900, 1901, and 1902 for the Indians of the reservation in accordance with the act of May 31, 1900 (31 Stat. 241)"; and requested the General Land Office to advise it, after noting the deeds on its records, "whether there still exists any reason why the allotment selections listed in your memorandum should not be approved and patents issued to the allottees." The papers forwarded to the General Land Office showed, among other things, that the entire Section 27 was reacquired by the United States for the Indians of the Northern Cheyenne Reservation and had been reconveyed to the United States by deed from the railway company dated February 14, 1901, in accordance with the act of May 31, 1900.⁶ On March 2, 1933, the General Land Office addressed to the Commissioner of Indian Affairs a memorandum listing the allotment selections which then appeared free from conflicts. Allotments Nos. 1090 and 1091 appeared on that list. Thereafter, on June 21, 1933, the Commissioner of Indian Affairs recommended that the allotments be approved and that patents be issued to the allottees.

    ⁴ 31 stat. 221, 241.
    ⁵ "It is hereby ordered that the following-described tract of land lying in the State of Montana, the same being the tract described in Senate Bill 2173, 56th Congress, 1st session, which tract includes the lands embraced. in the boundaries set forth in Executive order issued November 26, 1884. relative to the Northern Cheyenne Reserve, be, and the same is hereby, withdrawn from sale and settlement and set apart as a reservation for the permanent use and occupation of the Indians now occupying or belonging upon the Northern Cheyenne Reservation, which reservation shall be known as the Northern Cheyenne Indian Reservation *     *     *."
    ⁶ Vol. 83, Montana Tract Book.

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 5, 1947

This recommendation was approved on June 22, 1933, and on August 25, 1933, trust patents were issued to the two Spottedwolfs.

The inclusion of lands acquired under the act of May 31, 1900, in patents issued to Northern Cheyenne Indians was, in effect, a ruling by the Department that the 1926 act permitted the allotment not only of lands set apart for the benefit of the Northern Cheyenne Indians by the Executive order of March 19, 1900, but also of lands acquired for the use and benefit of the Indians pursuant to the act of May 31, 1900. In my opinion, that ruling was proper.

It is fundamental that no valid existing rights in any lands included within the exterior boundaries of the reservation created by the Executive order of March 19, 1900, were affected by that order, and that only those lands within the reservation boundaries to which no rights had attached were set apart for the use and benefit of the Indians. It must be remembered in this connection that, when the Executive order of March 19, 1900, was issued, non-Indians had already acquired valid rights in many tracts of land within the exterior boundaries of the reservation, including a substantial portion of the best agricultural and grazing land; and that Congress subsequently provided in the act of May 31, 1900, for the purchase of these tracts, as well as certain land outside but adjacent to the reservation boundaries fixed in the Executive order, for the use and benefit of the Indians. It would not be reasonable to conclude that Congress, when it provided in the act of June 3, 1926, for the allotment in severalty of the agricultural and grazing lands of "the Northern Cheyenne Reservation heretofore set apart by Executive order dated the 19th day of March, 1900," intended merely to legislate with respect to those lands which had been affected by the original issuance of the Executive order, thus excluding from the allotment program agricultural and grazing lands purchased for these Indians subsequent to March 19, 1900.

A more reasonable construction of the act of June 3, 1926, than that suggested in the preceding paragraph is that, in view of the historical back ground related, it was the purpose of Congress to authorize the allotment in severalty of the agricultural and grazing lands within the reservation as then constituted; and that the phrase, "the Northern Cheyenne Reservation heretofore set apart by Executive order dated the 19th day of March, 1900," was used as a means of identification rather as a limitation upon the allotment authority of the Secretary of the Interior.

Furthermore, it appears that when Congress, by the act of July 1, 1898, called for recommendations as to the manner in which the controversy then raging between the Northern Cheyenne Indians and the white settlers might be ended, and when it later, by the act of May 31, 1900, approved the recommendations that certain lands be added to the then existing Executive order reservation and appropriated the money with which to purchase such lands, these actions by the Congress had the effect of adding to the reservation the lands acquired pursuant to the 1900 act, including those situated outside the reservation boundaries fixed by the Executive order of March 19, 1900.

Accordingly, it is my opinion that the trust patents issued to Pat and Jean Spottedwolf were properly issued under the act of June 3, 1926.

Deposits of bat guano found in caves on the Papago Indian Reservation, which is subject to exploration and location under the existing mining laws of the United States, are properly classifiable as mineral in character. The lands containing such deposits are subject to location and entry under the act of August 28, 1937 (50 Stat. 862; 25 U.S.C. sec. 463), and the deposits are therefore not subject to disposition by the Papago Tribal Council.

Memorandum:
To:            The Commissioner of Indian Affairs
From:        The Solicitor.
Subject:     Tribal permit to remove bat guano from Papago Reservation.

In a memorandum dated July 11, your office requested that I express an opinion on the following question:

1471

OPINIONS OF THE SOLICITOR

OCTOBER 7, 1947

The statutory provision mentioned in the question makes the lands of the Papago Indian Reservation subject "to exploration and location, under the existing mining laws of the United States * * * (25 U.S.C. 463) . These mining laws are applicable,
generally, to public lands containing "valuable mineral deposits" (30 U.S.C. 22).

Guano, the excrement of sea birds or bats, seems to .be outside the scope of the usual meaning of the word "mineral", i.e., "Any chemical element or compound occurring naturally as a product of inorganic processes" (Webster's New International Dictionary, 2nd ed., unabridged). However, as the Supreme Court said in the case of Northern Pacific Railway Company v. Soderberg, 188 U.S. 526, 530:

The question of the classification under the mining laws of public lands containing valuable guano deposits was considered by the Secretary of the Interior in the proceeding entitled Richter et al. v. State of Utah, 27 L.D. 95 (1898). The Secretary held (p. 98) :

The Secretary's decision was based upon the grounds that the guano involved in the proceeding (it had been deposited by sea birds on Gunnison Island) was composed of substantially the same chemical elements as certain phosphate deposits in the State of Florida, and that the Florida phosphate lands had previously been held (in Florida Central and Peninsular Railroad Co., 26 L.D. 600) to be "mineral lands within the intent and meaning of the laws relating to the disposal of the public domain."

The administrative classification by this Department of public lands containing guano deposits as mineral lands was mentioned. by the Supreme Court, apparently with approval, in Northern Pacific Railway Co. v. Soderberg, 188 U.S. 526, 534.

The fact that the guano found on the Papago Reservation is bat guano, whereas the guano that was involved in the Secretary's decision in the Richter case had been deposited by sea birds, is not significant. Webster's New International Dictionary (2nd ed., unabridged) includes bat guano under the definition of the term "guano", and the Encyclopedia Britannica states that bat guano is similar to other types of guano. This Department has regarded bat guano deposits as "mineral de
posits", within the meaning of the mining laws. (See the file relating to the approval on Oct. 17, 1932, of a mineral lease in favor of F. J. Rex, A. H. Kempton, and Charles A. Kumke covering bat guano deposits on the San Carlos Indian Reservation; and Ernest R, Woolley, Brookfield Products Co, A-24490, Aug. 18, 1947.)

I do not believe that the long-settled administrative practice with respect to this matter should be disturbed. It is my opinion, therefore, that the lands on the Papago Indian Reservation containing valuable deposits of bat guano are subject to location and entry under the mining laws of the United States, and, hence, that the guano deposits are not subject to disposition by the Papago Tribal Council.

PROPOSED LEGISLATION AUTHORIZING SALE
OF WYANDOTTE INDIAN BURIAL GROUND IN
KANSAS CITY, KANSAS

The fee title or ownership of the Wyandotte Indian burial ground in Kansas City, Kansas, is in the United States, subject to the recognized use of the Wyandotte Indian Tribe (Treaty of January 31, 1855 (10 Stat. 1159).

Kansas City, Kansas, has no right in, or title to, the cemetery tract in question. The interest of the City is that of a caretaker, stemming from a contract between it and the Government executed in the year 1918.

Congress may provide for the sale of the cemetery tract, which should be upon the condition that the consent of the Wyandotte Tribe be obtained.

Memorandum:
To: The Secretary.
From: The Acting Solicitor.
Subject: Proposed sale of the Wyandotte Indian burial ground in Kansas City, Kansas.

On August 8, 1947, Mr. Douglas W. McGregor, The Assistant to The Attorney General, transmitted to you a copy of a letter from Representative Errett P. Scrivner concerning the proposed sale of the Wyandotte Indian burial ground in

1472

DEPARTMENT OF THE INTERIOR

OCTOBER 7, 1947

Kansas City, Kansas.^lRepresentative Scrivner requested the Attorney General's opinion concerning the right of the United States or the Wyandotte Tribe of Indians to sell. the burial ground, and the right, if any, of Kansas City, Kansas, in such property. My views on those questions were requested by Mr. McGregor.

The sale of the tract in question was proposed by the introduction in ,the last session of Congress of H.R. 3685. By the terms of that bill, the Wyandotte Tribe of Oklahoma ² through its business committee would be authorized to sell the burial ground, subject to the approval of the Secretary of the Interior. Provision is made in the bill for the reinterment of bodies and the distribution per capita of the proceeds of the sale among the members of the Wyandotte Tribe after deduction of the costs incurred in the sale of the land and the removal of bodies to another suitable burial ground. A similar bill was introduced in the Senate during the last Congressional session (S. 1372) . This Department recommended the enactment of both bills, provided amendments were made eliminating mandatory requirement of a per capita payment and inserting in lieu thereof a provision permitting the proceeds remaining after the payment of expenses to be used for purposes designated by the tribal governing body with the approval of the Secretary of the Interior or an official designated by him^{. 3}

Under date of January 31, 1855, representatives of the United States and the Wyandotte Tribe of Indians negotiated a treaty ⁴ratified by the Senate and the President, by which (Article 2) the Indians ceded and relinquished to the United States all their right, title and interest in certain lands for the purpose of obtaining a reconveyance of such land through patents issued to the individual members of the tribe, excepting the burial ground in question which "shall be permanently reserved and appropriated for that purpose * * * " An item in the Indian Appropriation Act of June 21, 1906,)⁵ authorized the Secretary of the Interior to sell the burial ground under such rules and regulations as he might prescribe. A commission to sell the land was appointed, but in view of opposition to a sale by relatives and next of kin of persons interred in the cemetery, Congress on February 13, 1913,⁶ repealed that part of the 1906 act which had authorized the sale of the burial ground. Thereafter, Congress appropriated funds for the preservation and improvement of the tract in question ⁷ and authorized the Secretary of the Interior to pay to the authorities of Kansas City, Kansas, the sum of $1,000 .in consideration of the agreement by said authorities of Kansas City, Kansas, the sum of Huron Cemetery.⁸

¹ This burial ground is also known as the Huron Cemetery and contains two acres.
² Originally the Wyandotte Indians (otherwise known as the Hurons resided in territory within the States of Michigan and Ohio. See Treaties of September 20, 1818 (7 Stat. 180), April 23, 1836 (7 Stat. 502), and March 17, 1842 (11Stat. 581). They later moved west of the Mississippi River to the country which later became the Territory and the State of Kansas, from which they went to their present home in Oklahoma. See Treaties of January 31, 1855 (10 Stat. 1159), and February 23, 1867 (15 Stat. 513). See also Sen. Rept.527 on S. 1372 (80th Cong., 1st sess.),
³The Senate Public Lands Committee acted on S. 1372 and reported it favorably with the amendment suggested by this Department (Sen. Rept. 527).
⁴10 Stat. 1159.
⁵"34 Stat. 325, 348. "That the Secretary of the Interior is hereby authorized to sell and convey, under such rules and regulations as he may prescribe, the tract of land located in Kansas City, Kansas, reserved for a public burial ground under a treaty made and concluded with the Wyandotte tribe of Indians on the thirty-first day of January, eighteen hundred and fifty-five. And authority is hereby conferred upon the Secretary of the Interior to provide for the removal of the remains of persons interred in said burial ground and their reinterment in the Wyandotte Cemetery at Quindaro, Kansas, and to purchase and put in place appropriate monuments over the remains reinterred in the Quindaro Cemetery. And after the payment of the costs of such removal, as above specified, and the costs incident to the sale of said land, and, also after the payment to any of the Wyandotte people, or their legal heirs, of claims for losses sustained by reason of the purchase of the alleged rights of the Wyandotte tribe in a certain ferry named in said treaty, if, in the opinion of the Secretary of the Interior, such claims or any of them are just and equitable, without regard to the statutes of limitation, the residue of the money derived from said sale shall be paid per capita to the members of the Wyandotte tribe of Indians who were parties to said treaty, their heirs, or legal representatives."
⁶37 Stat. 668.
⁷ Act of September 8, 1916 (39 Stat. 844). "That the sum of $10,000, or so much thereof as may be necessary, is hereby appropriated, out of any money in the Treasury not other wise appropriated, for the preservation and improvement of Huron Cemetery, a tract of land in the city of Kansas City, Kansas, owned by the Government of the United States, the use of which was conveyed by treaty to the Wyandotte Tribe of Indians as a cemetery for the members of said tribe: Provided, That the authorities of Kansas City, Kansas, will construct and maintain all necessary retaining or outside walls along all the boundaries of said cemetery abutting on streets."
⁸ Act of June 30, 1919 (41 Stat. 3, 13). "That the Secretary of the Interior be, and he is hereby, authorized to pay to the authorities of Kansas City. Kansas, the sum of $1,000 in consideration of the agreement of said authorities forever to maintain and care for the Huron Cemetery, a tract of land in the city of Kansas City, Kansas, owned by the Government of the United States, as provided in the contract for said purposes with the said city of Kansas City, Kansas, the use of which was conveyed by treaty to the Wyandott tribe of Indians as a cemetery for members of said tribe. such payment to be made from the $10,000 appropriated for the preservation and improvement of said cemetery by the Act of September 8. 1916 (Thirty-ninth Statutes at Large, page eight hundred and forty-four) ."

1473

OPINIONS OF THE SOLICITOR

OCTOBER 7, 1947

It is clear that Kansas City, Kansas, has no title in, or right to, the cemetery tract. This office is unaware of any view ever having been expressed by .that municipality to the effect that it has a claim to the land involved. In fact, the officials of that city attempted to purchase the property after the enactment of the 1906 act, supra. The only interest of the city in the cemetery is that of a caretaker, which stems from a contract dated March 20, 1918, approved by this Department on April 17, 1918. That contract or agreement was entered into by officers of this city and representatives of this Department, whereby, in consideration of the payment of $1,000, authorized by the act of June 30, 1919, supra, the city agreed to maintain and care for the cemetary [sic] forever and to give it police protection.⁹ Except for the specific powers granted to the city under the contract, the city officials have been required to seek further authority from officers of this Department whenever they desired to act with respect to other matters affecting the cemetery.¹⁰
The ownership and fee title to the cemetery tract are in the United States, subject to the recognized use of the Wyandotte Tribe¹¹. It is well settled that the United States has the power to administer, control and to authorize the disposal of tribal property.¹²However, such a power is subject to certain limitations inherent in such a guardianship and to pertinent constitutional restrictions, and does not enable the United States, without the consent of the Indians, to give tribal lands to others or to appropriate them to its own purposes without rendering, or assuming an obligation to render, just compensation for them,¹³as that "would not be an exercise of guardianship, but an act of confiscation."¹⁴

Subject to the limitations and restrictions mentioned above, it is competent, of course, for the Congress to provide for the sale of the Wyandotte Cemetery tract on such terms and conditions as it sees fit to impose. Considerations of good faith would appear to require in any such legislation that the consent of the Wyandotte Tribe be a condition to any such sale. The Wyandotte Indians have adopted a tribal constitution under the Oklahoma Indian Welfare Act.¹⁵ Pursuant to that act, a corporate charter has also been issued to the Wyandotte Tribe, the provisions of which assure the tribe that none of its properties or assets will be disposed of without its consent or approval. Good faith on the part of the' United States requires that this assurance be respected.

^9"* * *the City of Kansas City, Kansas, agrees to forever maintain, care for, preserve the lawns and trim the trees and give the grounds the same and equal attention that it gives its City parks within the main part of the city, and particularly that of Huron Park adjoining said Cemetery; and that the city of Kansas City, Kansas, will furnish police protection equivalent to that furnished for the protection of Huron Park; and furnish all electrical energy free of charge for the maintenance of the electric lights, as provided for in the plans and specifications, maintaining and keeping in place all globes and fixtures, and give said Cemetery any and all care that a park of its nature in the heart of a city should demand."
¹⁰In a letter written by the Commissioner of Indian Affairs, dated October 28, 1927, approved by the Department on October 31, 1927, the City Attorney of Kansas City was advised of this Department's disapproval of the issuance of a proposed permit to drive over the cemetery. It was also I suggested to the City Attorney that matters falling outside the scope of the authority given by the contract of March 20, 1918, should be submitted to the local superintendent. Requests for the interment of bodies in the cemetery were recited as examples which should be referred to and considered by the superintendent.
¹¹Conley v. Ballinger; 216 U.S. 84 (1910) , 26 Op. Atty. Gen. 491 (1908). At the time these three decisions were rendered it was generally understood that the Wyandotte tribe had ceased to exist as a political entity. See Cohen, Handbook of Federal Indian Law, p. 273. While the Attorney General took the view, in 1908. that the right of the tribe could be regarded as abandoned, leaving the fee unencumbered and to be disposed of as to the Government may seem just and wise, the factual circumstances all point to a settled that the United States has the power to lack of abandonment. The available records do not purport to disclose in detail what interments were made over the years, but those records do show that the tract in question was being used as a burial ground in 1922. Furthermore, in the year 1934 the local superintendent was advised concerning an inquiry as to whom applications should be made for burial in the cemetery. It was suggested to him that the matter should be taken up with the Wyandotte tribal officials with the view of determining who should issue permits for future burials, as well as the eligibility for such burials and the promulgation of rules and regulations relating to interments. Previously, in 1927, the officials of Kansas City, Kansas, had been informed that any requests for the interment of bodies in the cemetery should be referred to the local superintendent. (fn. 10, supra)
¹²United States v . Alcea Band of Tillamooks, 329 U.S. 40, 46 (1946) : Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ; Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902).
¹³See United States v . Alcea Band of Tillamooks, 329 U.S. 40. 52. 54 (1946) ; United States v. Klamath Indians, 304 U.S. 119, 123 (1938) ; Shoshone Tribe of Indians v. United States, 29 U.S. 476 (1937) : United States v. Creek Nation. 295 U.S. 103 (1935).
¹⁴Shoshone Tribe of Indians V . United States, page 497; United States v. Creek Nation, page 110, supra.
^l

5 See Cohen, Handbook of Federal Indian Laws, page 273.

1474

DEPARTMENT OF THE INTERIOR

OCTOBER 8, 1947

VALIDITY OF ORDERS TEMPORARILY WITHDRAWING
PUBLIC LANDS IN AID OF LEGISLATION FOR THE ESTABLISHMENT OF INDIAN
RESERVATIONS

M-35003 October 8, 1947

Prior departmental rulings that the Secretary of the Interior may withdraw public land temporarily in aid of legislation looking to the establishment of Indian reservations by the Congress are not in conflict with the acts of May 25, 1918 (40 Stat.
570) June 30, 1919 (41 Stat. 34), and March 3, 1927 (44 Stat. 1347) .

Such withdrawals when made remain in full force and effect until revoked either by the Congress or by the Secretary, even though the contemplated legislation fails of enactment.

COHEN , Acting Solicitor:

Memorandum:

To: The Secretary.
From: The Acting Solicitor.
Subject: Validity of orders temporarily withdrawing public lands in aid of legislation looking to the establishment of Indian reservations.

In a letter to you under date of June 20, 1946, Senator McCarran of Nevada strongly questioned the legality and propriety of the practice of this Department of making temporary withdrawals of public land in aid of legislation looking to the establishment of Indian reservations, and made the assertion, based on a legal memorandum prepared by one Frank K. Nebeker,¹that this practice nullifies the act of May 25, 1918 (40 Stat. 570) the act of June 30, 1919 (41 Stat. 34), and the act of March 3, 1927 (44 Stat. 1347).

The policy issues raised by Senator McCarran have been met in part by revisions of departmental procedure with respect to the establishment and continuance of temporary land withdrawals. This memorandum will therefore be restricted to the purely legal issues.

The Nebeker memorandum, which was directed primarily to the validity of Secretarial order of September 26, 1933, withdrawing temporarily certain vacant, unentered and undisposed of public lands in Uintah County, Utah, was discussed at some length in a letter dated May 3, 1944, from Acting Secretary Fortas to Senator McCarran. In that letter, the prior rulings of this office were reviewed and the conclusion was reached that the temporary withdrawal "was clearly within the authority of the Secretary." I find no reason to disturb that conclusion.

The power to withdraw permanently, or temporarily in aid of legislation, the public lands of the United States including withdrawals for Indian use, is one that has been exercised by the executive department from an early date. The authority so to do, implied from long continued usage, with the acquiescence of the Congress, has been considered and upheld in the courts.

The act of May 25, 1918, prohibits the creation or enlargement of Indian reservations in the States of New Mexico and Arizona except by act of Congress. Section 27 of the act of June 30, 1919, made this prohibition general. Section 4 of the act of March 3, 1927, prohibits changes in the boundaries of Indian reservations wherever located, with the proviso that the prohibition shall not apply to temporary withdrawals by .the Secretary of the Interior. While the acts of 1918, 1919 and 1927 thus take away the implied power of the executive department to create, enlarge or make changes in the boundaries of Indian reservations, the power theretofore exercised of making temporary withdrawals was expressly recognized and preserved.

The legislative situation with respect to the establishment of Indian reservations appears to be on all fours with that considered by the court in Show v. Work, supra. In that case, Congress, by the act of June 25, 1910 (36 Stat. 847, 43 U.S.C. sec. 141-2) , had made express the implied authority of the executive to withdraw public lands temporarily for certain purposes, with a provision prohibiting the creation or enlargement of forest reserves in certain States, including Oregon. In 1912, the President issued an order temporarily with drawing public lands in Oregon. The object of the order was to withdraw the lands from disposition pending legislative action by the Congress looking to inclusion of the lands within a national forest. The validity of the order was upheld. The court said: "The contention of counsel for plaintiff that the, state of Oregon is exempt from the operation of the Act of June 25, 1910, vesting the President with the power of withdrawal, is

^l The Nebeker memorandum is referred to at page 46 of the Third Partial Report of the Committee on Public Lands and Surveys (Report No. 808, 79th Cong. 1st sess.) . For full text of the memorandum see Hearings before the Committee on Public Lands and Surveys, Washington, D.C., June 15, 16 and 21, pp. 2472-2475.

² United States v. Midwest Oil Co., 236 U.S. 459: Mason v . United States, 260 U.S. 545; Grisar v. McDowell, 6 Wall. 381; Shaw v. Work, 9 F. (2d) 101-l. cert. denied 270 U.S. 642.

1475

OPINIONS OF THE SOLICITOR

OCTOBER 8, 1947

In 1916 the Attorney General had reached a like conclusion in a similar case. 31 Op. A.G. 53. The question before the Attorney General was whether withdrawals of public lands might be made in aid of pending legislation looking to the inclusion of the lands within existing national forests in those States in which the creation of national forests, or additions to national forests, except by act of Congress, was prohibited by the act of March 4, 1907 (34 Stat. 1271) as reenacted by the act of June 25, 1910 (36 Stat. 847) , as amended. The Attorney General ruled that such a temporary withdrawal was not legally objectionable and said:

It seems to be obvious that the prohibitions contained in the acts of 1918, 1919 and 1927 were intended to prevent the creation of permanent reservations or permanent additions to existing reservations except by act of the Congress. Temporary withdrawals in aid of legislation, which create no rights and merely suspend (the operation of the public land laws, are not forbidden. On the contrary, the power to make such orders, held to be implied by the Supreme Court in the Midwest Oil
Co. case, was given express recognition and confirmation by section 4 of the act of March 3, 1927.

In his letter of June 20, 1946, Senator McCarran also sharply criticizes the Department for permitting temporary withdrawals to remain in effect indefinitely and over a long period of years despite the fact that in some instances no attempt was made to obtain legislation and that in others Congress declined to enact the contemplated legislation. While this criticism raises a question of policy on which I express no opinion, I deem it advisable to point out that when the word "temporary" is used with respect to withdrawals in aid of legislation, the word "temporary" is used in contradistinction to the word "permanent." The executive practice upheld in the Midwest Oil Co. case embraced two types of public land withdrawals- permanent withdrawals intended to be effective immediately for the purposes for which the lands were withdrawn, and temporary withdrawals such as those now under consideration, in which public land was with drawn for the purpose of maintaining the status of the land free of private claims until such time as the Congress itself had taken action. The latter type of withdrawal derives its temporary character from the fact that although it might remain in force indefinitely it is subject to revocation or discontinuance at any time without impairing the rights of anyone. Both types of withdrawal were
considered and discussed in the Midwest case. The power of withdrawal not only was held to extend to both but the court recognized that, even in the case of the temporary withdrawal, the order would remain effective, until revoked, irrespective of the period of time that might elapse. The court said (p. 479) :