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1476

DEPARTMENT OF THE INTERIOR

OCTOBER 8, 1947

To the same effect is Shaw v. Work, supra, in which it was contended that a temporary withdrawal in aid of legislation then pending before the Congress, which withdrawal had been in effect for more than 10 years at the time of the decision, terminated with the adjournment of the final session of that Congress. The court rejected the contention, and held that the order remained effective until revoked.

While it is my opinion that the (temporary orders of withdrawal to which Senator McCarran refers were validly issued, and that those orders will remain in effect until formally revoked, either by the Congress or by the Department, I deem it advisable to call your attention to the cast of Bibo v. Pueblo of Acoma, Civil No. 940, now pending on appeal before the Tenth Circuit Court of Appeals, and to the case of United States v. Bibo, Civil No. 1253 in the United States District Court for the District of New Mexico. In these cases, Bibo claims the right to use public lands temporarily with drawn in aid of legislation by departmental order of December 23, 1938 (4 F.R. 401) , and it is my understanding that he is contending that the order of withdrawal is invalid on substantially the same grounds as those urged by Senator McCarran. The pending cases should thus result in a judicial determination of the question of the authority of the Department to make temporary withdrawals of public lands in aid of legislation looking to the establishment of Indian reservations.

In view of several novel features which have been incorporated in the attached Hydaburg Town Reserve order, I think it desirable to record the views of this office as to the legal authority upon which the various provisions of the order rest.

The power of the Secretary of the Interior to extend the existing Hydaburg reserve is conferred by the act of May 1, 1936 (49 Stat. 1250), which authorizes the Secretary of the Interior,

Under this authority a number of reservations have been set up or extended. See for example, Order of April 22, 1946, 11 F.R. 6143 (Little Diomede) . In only one case has the authority of the Secretary to proceed under the 1936 Act been challenged. This issue, with respect to uplands, was decided by the .trial court in favor of the Secretary's authority. Hynes v. Grimes Packing Co., 67 F. Supp. 43. No appeal was taken from this decision by the party challenging the authority of the Department.

The decision referred to, however, did deny that the Department has authority to include waters in an Indian reservation. On this point an appeal has been taken by the Government from the decision of the trial court and this appeal is scheduled for argument tomorrow. The validity of the inclusion of water in the attached order may very well depend upon the outcome of this appeal. I see no objection to promulgating the attached order with the understanding that this particular feature of the order is subject to judicial determination. Since the order cannot possibly become effective during a period of at least 60 days in which objections to the order may be filed with this Department, and since the order wil1 not become final until it has been ratified by a vote of the Indians, it may very well be that this question will be resolved one way or the other before the order is finally effected.

The question may be raised as to the propriety of including in the reserve order a stipulation granting to the Forest Service of the Department of Agriculture control over the cutting of Indian

1477

OPINIONS OF THE SOLICITOR

OCTOBER 11, 1947

timber. I believe that such a provision is within the discretionary powers of the Secretary of the Interior in establishing a reservation. Reservations have frequently been established in the past subject to even more serious limitations. In some cases, for example, as on the Papago Reservation, subsurface rights have been withheld from the Indians. The withholding or limitation of a right to manage timber resources would not destroy the fundamental purpose of this reservation, which is to improve the economic position of the Hydaburg natives. Since the natives would, in any event, ratify the reservation before it became effective, I do not believe that there would be any basis on which anyone could challenge the validity of the grant of authority to the Forest Service.

Memorandum:
To: The Director, Bureau of Land Management.
From: The Solicitor. Subject: Departmental order of September 19, 1934.

I have been asked whether the departmental order of September 19, 1934 (54 I.D. 559)--which withdrew "opened" lands of certain Indian reservations from disposal pending determinations as to whether the lands should be restored to tribal ownership, as authorized by the act of June 18, 1934 (48 Stat. 984, 25 U.S.C. 461, et seq .) - was issued pursuant to the general legislation governing temporary withdrawals (act of June 25, 1910, 36 Stat. 847, as amended by the act of August 24, 1912, 37 Stat. 497, 43 U.S.C. 141-142), or pursuant to the act of June 18, 1934. This question is limited to reservations which, subsequent to June 18, 1934, voted to reject the application to them of the act of that date.¹

I am of the opinion that authority for those withdrawals derives from the general legislation authorizing temporary withdrawals, and not from the act of June 18, 1934. As the latter statute does not apply to the reservations in question, it can afford no semblance of authority for any action taken to expand the area of those reservations.

It has been suggested that the decisions of the Department have been in conflict on the question of the statutory authority for the withdrawal order of September 19, 1934. I see no inconsistency in the decisions.

The first departmental expression on the subject is found in the Solicitor's memorandum to the Secretary dated September 17, 1934. This memorandum suggested that there was "doubt as to the authority of the Secretary to make a temporary withdrawal under section 3 of the Wheeler-Howard Act," but indicated clearly that there was no doubt as to the Secretary's authority to make a temporary withdrawal under the act of June 25, 1910. The Solicitor's advice that the withdrawal be accomplished under the 1910 act was followed in substance. The withdrawal order of September 19, 1934, was cast in the standard language of a temporary withdrawal under the 1910 legislation. The lands were "temporarily withdrawn from dis-

¹According to information supplied by the Bureau of Indian Affairs, the following reservations are included in this category: Klamath River, Coeur d' Alene, Fort Peck, Crow, Umatilla. Colville, Spokane, and Wind River.

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DEPARTMENT OF THE INTERIOR

OCTOBER 22, 1947

posal of any kind, subject to any and all existing valid rights, until the matter of their permanent restoration to tribal ownership, as authorized by section 3 of the Act of June 18, 1934, supra, can be given appropriate consideration" (54 I.D. 563). Clearly, (the act of June 18, 1934, is referred to here not as authority for the temporary withdrawal but as authority for a possible future "permanent restoration to tribal ownership." The fact that the act of June 25, 1910, is not specifically cited in the order is immaterial. This act was essentially confirmatory of a departmental practice antedating the act, which was sustained by the Supreme Court in United States v. Midwest Oil Company, 236 U.S. 459. I think it plain that the advice given by Solicitor Margold in his memorandum of September 17, 1934, was followed in substance, if not in its precise words.

The Solicitor's opinion (M-30851) dated August 12, 1942, is consistent with the foregoing, in as much as it refers (at page 15) to the withdrawal order as issued under the act of June 25, 1910.

Equally consistent with the foregoing views is the memorandum of the Acting Solicitor to the Secretary (M-33936) dated October 9, 1945. This memorandum does not suggest that the order of September 19, 1934, was issued pursuant to the act of June 18, 1934, but rather that a supplementary order might be issued pursuant to the 1934 act.

Nor do I find any inconsistency with the fore going views in the case of George P. Morgan (56 I.D. 3), decided September 18, 1936, which dealt with lands of a reservation which had been brought within the scope of the act of June 18, 1934, by vote of the resident Indians. The question of whether the extension of the act of June 13, 1934, to a reservation had the effect of changing a temporary withdrawal to a permanent one does not arise in the present case. Consideration of that question may therefore be deferred until a case arises in which that issue is necessarily presented. Nor is it intended here to express any opinion as to the modes in which ceded lands may be disposed of, in view of the agreements of cession and the proclamations made pursuant thereto.

So far as concerns the reservations which have voted themselves out of the act of June 15, 1934, I think it plain that the withdrawal of September 19, 1934, is only a temporary withdrawal, which does not enlarge the prior rights of the Indians in the land withdrawn or limit the authority of the United States to restore such lands to entry.

Memorandum:
To: The Commissioner of Indian Affairs.
From : The Solicitor Subject: Leasing Enterprise of the Nez Perce Tribe.

It appears from your memoranda of September 10 and October 24 that the Nez Perce Tribe, which is under the jurisdiction of the Northern Idaho Indian Agency, Lapwai, Idaho, has requested the approval of a tribal lease management enterprise which will handle the clerical and ministerial details in connection with the leasing of tribal and allotted lands located not only on the Nez Perce reservation but also on several other reservations under the jurisdiction of the same agency. You request that I advise you whether my opinion of December 6, 1948, which upheld the legality of a lease management enterprise, which was confined to a single tribe and reservation, would also be applicable to the proposed enterprise of the Nez Perce Tribe.

I am of the opinion that the greater scope of the Nez Perce enterprise would not afford a proper basis for questioning the validity of its operations. In my opinion of December 6, 1946, I pointed out that a leasing enterprise "would be no less tribal in character because it would involve participation in the management of individual lands" (p. 2), and it seems to me immaterial that such lands are not all located on the same reservation, since no tribe, even if incorporated, has been granted direct authority over the leasing of allotted land, and the power to lease such land depends upon the consent of the allottee, as well as upon other factors, namely. the failure of the statutes to establish any particular ministerial requirements, and the power of the Secretary to delegate ministerial functions to tribal bodies. The same considerations would support the leasing of tribal lands, even if there were doubt that +the power of the Secretary under the annual appropriation act to establish "tribal" enterprises extended to the establishment of multi-tribal enterprises. As a matter of fact, the Department has hitherto made delegations which cut across tribal membership and reservation boundaries. Thus, in many instances, authority has been delegated to the tribal court of a particular reservation to exercise law and- order jurisdiction over Indians living on that reservation, although

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OPINIONS OF THE SOLICITOR

DECEMBER 9, 1947

they were not members of the tribe for which the court had originally been established, and in some instances the judge of a particular court has been authorized to function on more than one reservation. I assume, of course, that all the interested allottees and tribes will give their consent to the handling of their leases by the Nez Perce lease management enterprise.

Memorandum
To:            Assistant Secretary Warner
From:        The Solicitor.
Subject:     Navajo program.

In your memorandum of November 18 discussing the Secretary's suggestion that surplus Army and Navy material, to be released by the President on an emergency basis, be made an element of the Navajo program, you refer to "some legal opinion
* * *against the authority" to include this element in the program.

This reference probably relates to an informal expression of opinion by counsel for the Bureau of Indian Affairs, with the concurrence of the Associate Solicitor, that the act of July 25, 1947 (Public Law 233, 80th Cong.) would not authorize the President to release surplus property to relieve distress on the Navajo Reservation this coming winter. The act mentioned above empowers the President to transfer surplus property to the Federal Works Agency without reimbursement "whenever the President shall determine it to be necessary or appropriate because of flood or other catastrophe." The act then authorizes the Federal Works Agency, in turn, to loan or transfer such surplus property, with or without monetary consideration, "to states and local governments situated in any area struck by such flood or catastrophe * * *"

It would be for the President and the Federal Works Agency to determine the scope of their powers under this statute. I feel bound to observe, however, that this Department could hardly urge a construction of the statute which would be inconsistent with its terms. Even if the Navajo Tribe could legitimately be regarded as a "local government" within the meaning of the statute, the conditions of distress which have long existed on the Navajo Reservation could hardly be fitted into the category of a "catastrophe," because that term suggests a sudden calamity.

However, surplus property is generally available to Government agencies in carrying out their functions. While the transfer of surplus property normally involves an exchange of funds, the Bureau of Indian Affairs has secured a number of statutory authorizations which have enabled it to secure considerable amounts of surplus property without any payments from its appropriations. Among; these authorizations is the item in the Interior Department Appropriation Act, 1947 (60 Stat. 348, 363), which authorizes the Bureau of Indian Affairs "to acquire by transfer without exchange of funds (for three years beginning July 1, 1946), from the War Department, the Navy Department, the Department of Agriculture, or the War Assets Administration: equipment, materials, and supplies of all kinds, with an appraised value of not to exceed $6,300,000 from the surplus stores of these agencies, for use in the schools, hospitals, and agencies, or by any operating division of the Bureau of Indian Affairs in the United States and Alaska * * *." I understand that several million dollars' worth of surplus property may still be obtained under this authorization. Such property could doubtless be used to provide a considerable amount of relief for the Navajo Indians. To the extent provided by this statutory authorization, the use of surplus property could be made an element of the Navajo program.

For Indians to be able to organize under section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 987, 25 U.S.C. sec. 476), they must constitute a "tribe, or tribes, residing on the same reservation," Therefore. the Nooksack Indians of the State of Washington, for whom no reservation has ever been set aside and who possess no recognized tribal status, are not eligible to organize under this provision of the Indian Reorganization Act.

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DEPARTMENT OF THE INTERIOR

DECEMBER 9, 1947

Memorandum
To:            The Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Proposed constitution for the Nooksack Indians.

    I am returning to you the proposed constitution for the Nooksack Indians of the State of Washington, together with the covering letter to the Superintendent of the Tulalip Agency calling an election for the purpose of enabling these Indians to vote on the proposed constitution.

The Nooksack Indians hold no tribal land. No reservation has ever been set apart for them by treaty, act of Congress, or Executive order. Some of them received homestead al1otments on the public domain, but apparently these are noncontiguous. Although they all live in Whattcomb County, they do not live in any one locality. No lands appear to have been purchased for them pursuant to the acquisition provisions of the Indian Reorganization Act.

The Nooksack Indians were included in the enumeration of ,the tribes or bands of nontreaty Indians who were authorized to sue the United States in the jurisdictional act of February 12, 1925 (43 Stat. 886)) and, pursuant to that act, they asserted a claim against the United States based on aboriginal occupancy of lands alleged to have been taken from them by the United States. In the subsequent litigation, however, the Court of Claims found that the lands claimed by the Nooksack Indians were ceded to (the United States by the Indians who were parties to the Point Elliott Treaty of January 22, 1855 (12 Stat. 927)) and that on the basis of the evidence there was no possibility "of definitely determining the exact status of the Indians and ,the relationship between them and the Government." Duwamish, et al. Indians v. United States, 79 Ct. Cl. 530, 606, cert. denied 295 U.S. 755.

The Court stated in the Duwamish case: "There is no doubt that after the execution of the Point Elliott Treaty they [the Nooksack Indians] were placed under the charge of an Indian agent, and after the ratification of the treaty came under the charge of the Indian agent for the Lummi Reservation, and participated in the distribution of benefits set forth in the treaty." In this connection, the court cited the Report of the Commissioner of Indian Affairs for the year 1877, p. 198. Earlier reports of the Commissioner indicate, that while the Nooksack Indians probably constituted at one time a separate tribe or band in contact with the Lummi Indians, they later became allied with the Lummi Tribe (1854, p. 257; 1857, p. 326; 1858, p. 223; 1867, p. 59; I870, p. 17). The Handbook of American Indians (Bureau of American Ethnology, Bulletin 30, Part 2) gives the following information with respect to the Nooksack Indians:

On the basis of the existing authorities, and in the absence of other evidence, it is not possible for me to conclude that the Nooksack Indians constitute a "tribe, or tribes, residing on the same reservation," which may adopt a constitution pursuant to the provisions of the Indian Reorganization Act.

M-34996 December 9, 1947.

The act of August 9, 1946 (60 Stat. 962), permitting the long-term leasing of restricted Indian lands in the State of Washington for business and certain other purposes furnishes no new authority for leases of a farming or agricultural character.

The planting and growing of an asparagus crop constitutes a farming or agricultural operation. and a lease for the use of land for the production of asparagus is not a lease for a business purpose.

1481

OPINIONS OF THE SOLICITOR

DECEMBER 9, 1947

Memorandum
To:            The Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Leasing of restricted Indian land in the State of Washington.

You have asked for my opinion as to whether the act of August 9, 1946,¹ authorizes the negotiation of long-term leases of restricted allotted Indian land in the State of Washington for the planting of asparagus. The California Packing Corporation of Toppenish, Washington, desires to obtain that type of lease covering two Indian allotments on the Yakima Indian Reservation, Washington. You state that, apart from the 1946 act, allotted land may be leased for a maximum period of five years for agricultural purposes, but that such a term is not long enough for the growing of asparagus at a profit because of the large initial investment which must be made by the lessee and the slow development of the crop. The prospective lessee has stated that a twenty-year lease would be required. The two Indian allottees involved have expressed their willingness to enter into such a lease.

The question is whether a lease of allotted land for the production of asparagus would be a lease for a "business" purpose, as that term is used in the act of August 9, 1946.

It appears to be agreed that the planting and cultivation of an asparagus crop constitute a farming or agricultural operation.²

The word "business" can be used in a very comprehensive sense to embrace everything about which a person can be employed; or which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.³ However, it is my opinion that Congress did not intend to place such a comprehensive meaning on the term "business" as it used in the 1946 act. The use of this word in its broadest sense would probably have covered all kinds of leases, and in that event it would have been unnecessary to mention the other types of leases in section 1 of the act or to preserve in section 2 the existing authority to issue leases.

When granting authority for the leasing of restricted Indian lands, Congress from a very early date has made a distinction between the different classes of leases authorized in the various statutes, and has frequently referred to "business" leases as constituting a class separate from leases for mining, farming, grazing, or other purposes.⁴ Hence it appears that Congress, in Indian leasing laws, has customarily used the word "business" in its relatively narrow sense as pertaining to a commercial or industrial establishment or enterprise. (Webster's New International Dictionary, 2d ed.) In the absence of anything pointing to a contrary conclusion, it can be assumed that Congress followed its usual practice when enacting the act of August 9, 1946, and that the reference therein to leases for "business" purposes was intended to authorize leases for commercial or industrial establishments or enterprises, a category separate from leases for agricultural purposes. That such was the view of this Department is clearly indicated by the Secretary's report dated June 29, 1945, to the Chairman of the Senate Committee on Indian Affairs regarding the bill which later became the act of August 9, 1946. After recommending the bill's enactment, the report stated: "The provisions of the bill would not extend to mineral leases, or to farming and grazing leases and permits, and would not alter the conditions imposed by existing law with respect to such instruments."

It is concluded, therefore, that the act of August 9, 1946, creates no new authority for the leasing of allotted lands in the State of Washington for agricultural purposes, including the production of as-

¹ 60 Stat. 962, 25 U.S.C.A. secs. 403b, 403c (Supp. 1946): "That notwithstanding any other provisions of law, with the consent in writing of the individual Indian, association of Indians, or Indian tribe concerned, any restricted Indian lands situated within the State of Washington, may be leased for religious, educational, recreational, business, or public purposes, including, but not limited to, airports, experimental station, stockyards, warehouses, and grain elevators, for periods not to exceed twenty-five years under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That nothing in this Act shall be deemed to authorize leases for the exploitation of any natural resources.
"Sec. 2. Such leases may be made only by the individual Indian owner of the land or by the authorized representatives of the tribe or group of Indians to whom the land belongs, subject to the approval of the Secretary of the Interior or his authorized representative. Restricted allotments of deceased Indians, when the heirs or devisees cannot agree on a lease, may be leased for them in the manner prescribed by the Act of July 8, 1940 (54 Stat. 745, ch. 554). No lease shall be made by or on behalf of any tribe for a longer period than is or may be authorized by the tribal constitution, charter, or ordinances. Nothing contained in this act shall be construed to repeal any authority to lease restricted lands which any Indian, Indian tribe, or official of the Department of the Interior would have in the absence of this Act."
² See Farmer's Bulletin No. 1646, U.S. Dept. of Agriculture (1947) : Encyc. Brit. (1926). vol. 2, p. 765.
³ Flint v. Stone Tracy Co., 220 U.S. 107. 171 (1911); 1 Bouvier's Law Dict., p. 406 (1914).
⁴ Acts of August 15, 1894 (28 Stat. 286, 305); March 2, 1895 (28 Stat. 876, 900); June 10, 1896 (29 Stat. 321, 340); June 7, 1897 (30 Stat. 62, 72. 85); February 14, 1920 (41 Stat. 408, 415).

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DEPARTMENT OF THE INTERIOR

DECEMBER 9, 1947

paragus. Leases of that character are governed by the authority which exists apart from the 1946 act.

Memorandum
To:            Assistant Secretary Warne.
From:        The Solicitor.
Subject:     Native possessory rights in Alaska.

Your note of December 22, 1947, together with the memorandum dated December 4 and December 11 from the Chief Counsel and the Director, respectively, of the Division of Territories and Island Possessions relative to the subject stated above, did not reach me until January 12, 1948. Consequently, it was not possible for me to comply with your request for a response not later than January 7, 1948.

As I understand the memoranda from the officials of the Division of Territories and Island Possessions, they propose: (a) that no additional reservations for the natives of Alaska be established by the Secretary of the Interior; and (b) that the Secretary of the Interior resume the program which was inaugurated in 1944, and which was subsequently suspended, for the "adjudication" of the claims of possessory rights over lands in the Territory of Alaska asserted by native tribes or groups. It seems to me that these proposals are mutually inconsistent.

It is my view that a resumption of the program for the "adjudication" by the Secretary of the claims of possessory rights asserted by native tribes or groups in Alaska would serve no useful purpose unless it were expected that such "adjudications" would be followed with reasonable promptness by affirmative actions designed to give legal effect to the findings and conclusions which indicate the existence of native possessory rights over particular areas. Even though it may be based upon evidence adduced at a formal hearing and may be characterized by formalism in phraseology and arrangement, a pronouncement by the Secretary of the Interior to the effect that a native tribe or group has possessory rights with respect to a particular area of land is, after all, a mere expression of opinion, with which other persons may agree or disagree according to their inclinations, unless something further is done to cause legal consequences to flow from such pronouncement. Mere expressions of opinion on the subject of native possessory rights in Alaska are not sufficiently valuable, in my judgment, to justify the trouble and expense that would be necessary in order to develop the essential factual data required for the drafting and issuance of Secretarial pronouncements upon the claims of possessory rights asserted by the various native tribes or groups in Alaska.

It will be recalled that, after the Department inaugurated the program for the "adjudication" of the claims of possessory rights made by Alaskan natives, extensive proceedings were had in connection with the claims of the natives of Hydaburg, Klawock, and Kake. At the conclusion of these proceedings, the Secretary of the Interior issued a "decision" dated July 27, 1945, and a supplemental "decision" dated January 11, 1946, in which he purported to define the areas with respect to which the natives of the three communities have valid possessory rights. However, no further affirmative action was taken for the purpose of causing legal consequences to flow from the Secretary's findings and conclusions. Therefore, I do not believe that the Secretary's pronouncements in connection with the claims asserted by the natives of Hydaburg, Klawock, and Kake represented any substantial contribution to the settlement of the controversial issues involved in these claims.

The Secretary of the Interior has ample power affirmatively to give legal effect to any findings and conclusions which he has previously made, or which he may subsequently make, concerning the areas in Alaska over which native tribes or groups have possessory rights. This can be accomplished by designating such areas as reservations for the benefit of the particular native groups having such possessory rights. Authority to take action along this line is vested in the Secretary of the Interior by section 2 of the act of May 1, 1936 (48 U.S.C. 358a). Once an area has been reserved for a native tribe or group under this statutory authority, the management of the property can be vested in such tribe or group through the mechanism afforded by the Indian Reorganization Act (25 U.S.C. 461 et seq.).

It seems to me that the determination by the Secretary of the areas over which native tribes or groups in Alaska have possessory rights, the prompt reservation of these areas for the benefit of such tribes or groups, and the utilization of the mechanism made available by the Indian Reorganization Act for the vesting of the management of such properties in the native tribes or groups, would constitute a proper and effective procedure for the settlement of the uncertainties which presently

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OPINIONS OF THE SOLICITOR

DECEMBER 9, 1947

On the other hand, if an administrative policy against the designation of such areas as Indian reservations is to be adopted, then, as indicated above, I believe that the constructive results which might be accomplished by resuming the program for the making of Secretarial pronouncements concerning the areas which are affected by native possessory rights would not be sufficient to justify the expenditure of time and effort which would be necessary in order to carry out the program.

The Secretary may delegate to the Commissioner of Indian Affairs authority to approve expenditures from Metlakatla tribal funds. Such a delegation clearly may be made under the act of August 28, 1937 (50 Stat. 873), which provides merely that expenditures from such funds may be made "under such rules and regulations" as the Secretary of the Interior may prescribe. Although statutes permitting expenditures from other tribal funds require the "approval" of the Secretary of the Interior, the function is nevertheless delegable to the Commissioner of Indian Affairs under general rules and regulations pursuant to the provisions of the act of August 8, 1946 (60 Stat. 939, 25 U.S.C.A. sec. la).

Although under the terms of Departmental Order No 2326 of May 26, 1947, the Commissioner of Indian Affairs was given power to subdelegate to District Directors of the Bureau of Indian Affairs authority to pass on resolutions and ordinances of tribes organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), it would be advisable for the Secretary, in order to minimize the danger of attacks in the courts upon the validity of ordinances or resolutions approved by District Directors, to issue to them instructions of a more precise character than the directive that was given to the Commissioner by the Secretary in Order No. 2326.

Order No. 2326 may legally be extended to other forms of tribal action than legislation. Thus the Secretary may delegate to the Commissioner under appropriate regulations the approval of tribal contracts which now require Secretarial approval. It would seem doubtful, however, whether anything would be gained by facilitating through delegation the making of per capita payments since the Department has steadfastly opposed such payments, because of their adverse effects upon the economies of the tribes.

Memorandum
To:            Assistant Secretary Warne.
From:        The Solicitor.
Subject:     Delegation of authority to Indian field offices.

    I have reviewed the comments made by the Bureau of Indian Affairs and by the Division of Budget and Administrative Management in response to your memorandum of December 4 which raised the question whether ordinances of the Metlakatla Village Council should continue to be forwarded to Washington for approval. At the same time, you suggested that the Bureau of Indian Affairs review its administrative procedures with a view to determining whether further delegations of authority could not be made to its field offices.

The Acting Commissioner of Indian Affairs explains that Metlakatla ordinances "are submitted to the Department for approval in compliance with the act of August 28, 1937 (50 Stat. 873)." The act mentioned deals solely with expenditures from revenues, and it provides merely that expenditures may be made "under such rules and regulations" as the Secretary of the Interior may prescribe. Any Secretarial function under this act, except the power to prescribe general rules and regulations, is clearly delegable, quite apart from the authority to delegate which is provided by the act of August 8, 1946 (60 Stat. 939, 25 U.S.C.A. sec. 1a).

I note that the Acting Commissioner of Indian Affairs advises that regulations are being drafted "with a view to delegating authority to the field to pass on expenditures from Metlakatla funds." However, he recommends against any delegation of authority to the field to pass on expenditures from other tribal funds, which, like the Metlakatla funds, are on deposit in the Treasury of the United States as trust funds but which are subject to expenditure with the approval of the Secretary of the Interior.¹ The function of passing on expenditures

¹ Such provisions are made by the act of June 20, 1936 (49 Stat. 1543), governing Crow tribal funds; the act of June 7, 1944 (58 Stat. 271), governing Minnesota Chippewa tribal funds; the act of June 24, 1946 (60 Stat. 302), governing Flathead tribal funds; and the act of May 19, 1947 (Public Law 74, 80th Cong.), governing Shoshone and Arapahoe tribal funds.

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DEPARTMENT OF THE INTERIOR

MARCH 2, 1948

from these funds is clearly delegable to field officials of the Bureau of Indian Affairs under the act of August 8, 1946.² Therefore, the question of whether such a delegation shall be made is one of policy. In this connection, the Director of the Division of Budget and Administrative Management is of the opinion that the Bureau of Indian Affairs needs to improve its practices and auditing facilities before such a delegation is made.

It appears also that the Acting Commissioner of Indian Affairs has under consideration the possibility of subdelegating to his District Directors authority to pass on resolutions and ordinances of tribes organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The Acting Commissioner already has the power to make this subdelegation under the terms of Departmental Order No. 2326 of May 26, 1947, which authorized the Commissioner of Indian Affairs to approve such resolutions and ordinances and to subdelegate this authority to his subordinates, except the superintendents of reservations.

The Acting Commissioner believes, however, that the subdelegation mentioned in the preceding paragraph should not be made until the personnel in the District offices has been trained to handle the problems involved in tribal relations. I agree certainly that extreme caution in this matter would be appropriate. The problems involved in passing on tribal legislation are of a most delicate kind. The scope of tribal legislation is extremely broad, since it involves most aspects of criminal and civil jurisdiction over the members of the tribes, as well as the control and disposition of tribal resources and property, and the relations of the tribes with non-members. In reviewing tribal legislation, the officer of the Department exercising the function stands in much the same relation to a tribe as a governor or mayor reviewing State or municipal legislation, and not only legal but practical and political considerations must be taken into account. The approval of an unwise or unconstitutional tribal ordinance may have serious consequences. Moreover, the legal problems to be considered in determining the constitutionality of a tribal ordinance are often very difficult.

If the Commissioner were to subdelegate to District Directors the power to pass finally upon tribal resolutions and ordinances, it would be advisable, in my judgment, for the Secretary to issue for their guidance instructions of a more precise character than the directive that was given to the Commissioner by the Secretary in Order No. 2326. That order authorized the Commissioner of Indian Affairs to approve any "ordinance or resolution which, in his judgment, is not inconsistent with the provisions of any act of Congress or of any treaty or of the tribal constitution or charter under which the ordinance or resolution was adopted * * *." Such a regulation, which is of the most general character, may be appropriate in the case of the Commissioner of Indian Affairs, an "Officer of the United States" who has been vested by Congress with "the management of all Indian Affairs" (R.S. 463: 25 U.S.C. sec. 2), but the action of a District Director under such a broad grant of discretionary power might entail danger of an attack upon the validity of an approved tribal ordinance or resolution.³

I note also that the Acting Commissioner of Indian Affairs suggests the advisability of extending Order No. 2326 to all tribal actions, such as the making of per capita payments and contracts requiring departmental approval. I can see no objection, either on grounds of law or policy, against delegating the approval of contracts of incorporated tribes. The amount to be paid under such contracts are, as a rule, not very great; what is involved is a particular transaction rather than an act of tribal legislation; and the charters provide with almost unfailing regularity and uniformity merely that contracts involving the payment of money by the tribal corporation in excess of a certain amount in any one fiscal year "shall be subject to the approval of the Secretary of the Interior or his duly authorized representative"--a provision which clearly demonstrates that the possibility of delegation was contemplated. As for per capita payments, consideration should be given to the fact that a large per capita payment may ruin the economy of a tribe, and that the Department has steadfastly opposed such payments. It seems doubtful whether anything would be gained by facilitating the making of such payments. The charters of at least six tribal corporations forbid such payments altogether,⁴ and the charter of the Minnesota Chippewa Tribe makes no provision for such payments.

² Only the statute governing expenditures from Shoshone and Arapahoe tribal funds provides for approval by the Secretary of the Interior or an official designated by him. The other statutes require "approval" by the Secretary of the Interior but the act of August 8, 1946, in effect, permits expenditures to be made under general rules and regulations.
³ In a criminal case such an attack might take the form of a habeas corpus proceeding.
⁴ The six charters are those of the Fort McDowell Mohave Apache Indian Community, Arizona; the Gila River Pima-Maricopa Indian Community, Arizona; the San Carlos Apache Tribe, Arizona; the Hualapai Tribe, Arizona; the Quartz Valley Indian Community, California; and the Apache Tribe of the Mescalero Reservation, New Mexico.

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OPINIONS OF THE SOLICITOR

MARCH 4, 1948

INDIAN DELEGATION ACT OF 1946--
POSSESSORY RIGHT WITHIN TONGASS
NATIONAL FOREST--EXTINGUISHMENT
OF INDIAN TITLE BY CESSION TREATY

The Secretary of the Interior is authorized by the Indian Delegation Act to delegate to the Commissioner of Indian Affairs the Secretary's power concerning the approval under Revised Statutes 2103 of contracts between unorganized Indian tribes and attorneys.

As the Tongass Timber Act of August 8, 1947, vests in the Secretary of Agriculture the exclusive authority to make valid sales of timber growing in the Tongass National Forest, including timber growing on areas which are subject to Indian possessory rights, a native tribe or group which has "Indian title" or possessory rights with respect to an area of timberland within the exterior boundaries of that forest cannot legally sell such timber.

The possessory rights of the natives of Alaska based upon aboriginal occupancy and use of lands were not extinguished by the treaty of cession between Russia and the United States under which Alaska was acquired by the United States.

MASTIN G. WHITE, Solicitor:

Memorandum
To:            The Under Secretary.
From:        The Solicitor.
Subject:     Administration of native affairs in Alaska.

This responds to your oral request for an expression of opinion regarding several legal questions which pertain to the administration of native affairs in Alaska. As only one day is available for the preparation of this memorandum, my discussion of the several legal points, some of which are complex, will necessarily be less complete than would be desirable.

The first question is whether the Secretary is authorized to delegate to the Commissioner of Indian Affairs the power to approve contracts between attorneys and Indian tribes. In considering this question, it is necessary to distinguish between tribes which have organized and adopted constitutions under section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 987, 25 U.S.C. 476), and between tribes which have not organized and adopted constitutions under the act. In so far as the organized tribes are concerned, section 16 empowers such tribes "* * * to employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior * * *." The contracts of unorganized tribes with attorneys are subject to section 2103 of the Revised Statutes (25 U.S.C. 81), which provides that every such contract shall "bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it."

In an opinion dated January 22, 1946, my predecessor, Solicitor Gardner, held that the Secretary could delegate to the Commissioner of Indian Affairs the power to approve the contracts of organized tribes with attorneys, in view of section 161 of the Revised Statutes (5 U.S.C. 22), authorizing "the head of each department * * * to prescribe regulations, not inconsistent with law, for the government of his department, * * * the distribution and performance of its business * * *." However, Solicitor Gardner was of the opinion that the function of approving the contracts of unorganized tribes with attorneys could not be delegated by the Secretary of the Interior to the Commissioner of Indian Affairs, because section 2103 of the Revised Statutes refers to the dual approval of such contracts by the Secretary and the Commissioner. I believe that Mr. Gardner's conclusions were correct as of the time when they were expressed.

Subsequent to the date of Solicitor Gardner's opinion, Congress enacted the Indian Delegation Act of August 8, 1946 (60 Stat. 939, 25 U.S.C.A. la), which authorizes the Secretary to delegate "to the extent * * * he deems proper, his powers and duties under said laws [governing Indian affairs] to the Commissioner of 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. * * *" Thus, Congress broadened the authority of the Secretary of the Interior to delegate his powers and duties in the field of Indian Affairs to the Commissioner of Indian Affairs. In using the phrase "to the extent * * * he deems proper," Congress made the scope of such delegations wholly discretionary with the Secretary, except for the limitations expressly imposed by Congress in the Indian Delegation Act upon the exercise of the Secretary's discretion. These limitations are: (1) only powers and duties under "the laws governing Indian affairs" can be delegated to the Commissioner of Indian Affairs pursuant to the act; (2) such powers and duties can be delegated pursuant to the act only in so far as they "relate to action in individual cases arising under general regulations promulgated by the Secretary of the Interior pursuant to law"; and (3) powers delegated

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DEPARTMENT OF THE INTERIOR

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None of the statutory limitations upon the Secretary's authority to delegate mentioned in the preceding paragraph prohibits the Secretary, in my opinion, from delegating to the Commissioner of Indian Affairs the Secretary's function under section 2103 of the Revised Statutes with respect to the approval of contracts between unorganized Indian tribes and attorneys. Accordingly, I conclude that since August 8, 1946 (the date of the enactment of the Indian Delegation Act), the Secretary has been authorized to delegate to the Commissioner of Indian Affairs the Secretary's function under section 2103 of the Revised Statutes with respect to the approval of contracts between unorganized Indian tribes and attorneys, as well as his function under section 16 of the Indian Reorganization Act relative to the approval of contracts between organized Indian tribes and attorneys:

The act of June 19, 1935 (49 Stat. 388) authorizing the Tlingit and Haida Indians of Alaska to sue the United States, provides in section 3 for the employment of attorneys by the Indians "under contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior." For the reasons which I have given in discussing the delegability of the Secretary's function of approving contracts under section 2103 of the Revised Statutes, I think it is clear that the Secretary has been authorized by the Indian Delegation Act to delegate to the Commissioner of Indian Affairs the Secretary's function in connection with the approval of the attorney contract contemplated by the act of June 19, 1935.

The second question is whether, assuming that a native tribe or group in Southeastern Alaska has "Indian title" or possessory rights with respect to an area of timber land within the exterior boundaries of the Tongass National Forest, the tribe or group can legally sell the timber without the approval of the Secretary of the Interior.

It is my view that the native tribe or group in the hypothetical case put to me cannot, without securing a proper authorization from the Government, legally self the timber growing upon the land which is subject to the possessory rights of the tribe or group. Whatever may have been the situation in this respect prior to August 8. 1947,^* the power to make valid sales of timber growing in such an area is now vested exclusively in the Secretary of Agriculture.

In language too clear to be misunderstood, the joint resolution approved August 8, 1947 (Public Law 385, 80th Cong.), authorizes the Secretary of Agriculture to sell "timber growing on any vacant, unappropriated, and unpatented lands within the exterior boundaries of the Tongass National Forest in Alaska, notwithstanding any claim of possessory rights." The joint resolution also validates prior contracts, requires that the receipts from timber sales be impounded until the rights to the lands and timber are finally determined, and declares that the rights acquired by a purchaser under any contract made pursuant thereto shall be "free and clear of all claims based on possessory rights." "Possessory rights," as used in the resolution, are defined to mean "all rights, if any should exist, which are based upon aboriginal occupancy or title, or upon section 8 of the Act of May 17, 1884 (23 Stat. 24), section 14 of the Act of March 3, 1891 (26 Stat. 1095), or section 27 of the Act of June 6, 1900 (31 Stat. 321), whether claimed by native tribes, native villages, native individuals, or other persons, and which have not been confirmed by patent or court decision or included within any reservation."

The existence of unsettled claims of possessory rights by natives of Alaska had long been a formidable obstacle to the development of the vast timber resources of Southeastern Alaska. The removal of this obstacle by vesting in the Secretary of Agriculture clear authority to make timber sales for the whole of the Tongass National Forest, including areas subject to possessory rights, thus assuring timber purchasers of valid title and paving the way to early timber development, was the controlling purpose of the joint resolution (see Hearings before Committee on Agriculture, House of Representatives, on H..J. Res. 205, 80th Cong.).

The third question which you have submitted is whether the possessory rights of the natives of Alaska based upon the aboriginal occupancy and use of Alaskan lands were extinguished by the treaty of cession dated June 20, 1867 (15 Stat. 539), between Russia and the United States, under which Alaska was acquired by the United States.

I believe that the proper answer to this question is in the negative. I reach this conclusion notwithstanding the contrary statement that appears in the opinion which was announced by the United States Circuit Court of Appeals for the Ninth Circuit on February 11, 1947, in the case of James Miller et al. v. United States. In that case, the precise question before the court was whether the appellants, who

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were Alaskan Indians, had set forth in their "answer and claim" allegations sufficient to show the existence of a compensable interest on their part in a small tract of land which was involved in a condemnation suit instituted by the Government in order to acquire the tract for a public use. The Government had demurred to the answer and claim, and the demurrer had been sustained by the trial court. The circuit court of appeals reversed the judgment of the trial court. The appellate court held that allegations in the answer and claim indicating that the appellants and "their predecessors * * * in lineal consanguinity" had been in the exclusive possession of the land on May 17, 1884, and at all times subsequent to that date, were sufficient to show that the appellants had a compensable interest in the land, by virtue of section 8 of the act of May 17, 1884 (23 Stat. 24, 26). In the course of its opinion, the circuit court of appeals made a statement to the effect that "whatever original Indian title the Tlingit Indians may have had under Russian rule was extinguished by the treaty" of June 20, 1867. However, the court went on to hold, as previously stated, that the appellants could assert possessory rights under section 8 of the act of May 17, 1884, which declared that "the Indians or other persons" in Alaska "shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them * * *."

The view, in the nature of dictum, expressed by the United States Circuit Court of Appeals for the Ninth Circuit in the Miller case that the possessory rights of the Indians and other native groups in Alaska based upon aboriginal occupancy and use were extinguished by the treaty of cession is unsound, in my opinion. The pertinent provisions of the treaty of cession respecting Alaska upon which the court based its statement are very similar to the provisions covering the same subject matter in Article II of the Louisiana Cession Treaty (8 Stat. 200). It is clear that the aboriginal possessory rights of Indians to lands within the areas acquired from France in the Louisiana cession survived the cession and were not extinguished by the treaty. United States v. Shoshone Tribe, 304 U.S. 111; see Chouteau v. Molony, 16 How. 203; Buttz v. Northern Pacific Railroad, 119 U.S. 55.

That aboriginal possessory rights of the Indians within the area acquired by the United States under the Mexican Cession Treaty (9 Stat. 922) were not extinguished by the treaty is established by the decision of the Supreme Court in United States v. Santa Fe Pacific R. R. Co., 314 U.S. 339. Also set Mitchel v. United States, 9 Pet. 711, dealing with the subject of aboriginal possessory rights in area acquired by the United States from Spain in the Florida Cession Treaty (8 Stat. 252).

Therefore, I am confident that, if and when the question is submitted to the Supreme Court, it will hold that the possessory rights of native tribes or groups in Alaska based upon the aboriginal occupancy and use of lands in that Territory were not extinguished by the treaty of 1867.

The fourth question relates to the limitations imposed by statute or departmental regulation upon the activities of a former Associate Solicitor of this Department, in the matter of representing clients before this Department and other agencies of the Government.

The regulation of the Interior Department on this point is contained in 43 CFR, Cum. Supp., 1.6, and reads, in part, as follows:

The Committee on Practitioners (43 CFR, Cum. Supp., 1.3), with some exceptions not relevant here, administers all functions under the regulation. Any applicant for permission to practice before the Department who is disqualified by a final determination of the committee may appeal to the Secretary. 43 CFR, Cum. Supp., 1.13.

The Associate Solicitor of the Department is not an "Officer of the United States" in the Constitutional sense (Art. II, sec. 2, cl. 2), because he is not appointed through the procedure of nomination by the President and confirmation by the Senate. Whether he should be regarded as "an officer or a policy-making employee", within the meaning of that phrase as used in 43 CFR 1.6, would be for the determination of the Committee on Practitioners or the Secretary on appeal.

With regard to former employees of the Department whose employment was not as "an officer or a policy-making employee", the principal standard

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DEPARTMENT OF THE INTERIOR

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used by the Committee on Practitioners in deciding whether to permit such former employees to appear before the Department during the two-year period mentioned in the regulation is: do the proposed appearances relate to matters which were handled by the applicants while employed in the Department or involve the use of information obtained in the course of performing official duties?

Under the provisions of section 190 of the Revised Statutes (5 U.S.C. 99), it would be unlawful for any person formerly employed by this Department to prosecute or aid in the prosecution against the United States, within two years after his separation from the service, or any claim which vas pending in any Department during his period of service. 20 Op. Atty. Gen. 695.

INDIANS OF CALIFORNIA AS "IDENTIFIABLE" GROUPS
WITHIN MEANING OF INDIAN CLAIMS
COMMISSION ACT

In order to be "identifiable" within the meaning of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1049, 25 U.S.C.A. 70a--v), a group of Indians must possess characteristics which bear a substantial relationship to the factors that characterize tribes or bands. It must be a group whose political existence is recognized by Congress or the Executive branch of the Government, or one which in the absence of such recognition has a de facto collective existence and carries on a type of group life characteristic of the Indians in the United States or Alaska, as the case may be.

Judged by this test, neither the Indians of California as a whole, nor particular organizations of California Indians such as the Indians of California, Inc., the Mission Indians of California, or the Federated Indians of California constitute "identifiable" groups of American Indians within the meaning of the Indian Claims Commission Act. To speak of all the Indians of the State of California is to refer solely to a geographical category. The California Jurisdictional Act of May 18, 1928 (45 Stat. 602) dealt with the Indians of California as a group solely for the purposes of that act.

Memorandum
To:            The Secretary.
From:        The Solicitor.
Subject:     Attorneys' contracts with California Indians.

    This memorandum relates to three contracts between California Indians and attorneys.

One contract is between "the Indians of California" and Messrs. Wilkinson, Goodwin, and Clammer, providing for the employment of these attorneys as general counsel and as counsel to prosecute any claims which the Indians may have against the United States. This contract apparently originated in a convention of California Indians held at Berkeley, California, in September 1945.¹ It purports to have been executed on behalf of the Indians by Clyde F. Thompson, Herbert A. Bellas, and Manual Cordova, who are supposed to represent various auxiliaries of an organization of California Indians known as the "Indians of California, Inc.," and by Adam Castillo, who is supposed to represent another organization of California Indians designated as the "Mission Indians of California." These are apparently voluntary organizations of California Indians established under the laws of the State of California for purposes not precisely disclosed to the Department.

Adam Castillo has informed the Department of his withdrawal from the Wilkinson contract, and there has been submitted to the Department for approval a contract under which the "Mission Indians of California," purportedly represented by Castillo, have employed Mr. Norman Littell to press their claims before the Indians Claims Commission and to act as general counsel.

Other California Indians, describing themselves as the "Federated Indians of California," have submitted to the Department for approval a contract employing Messrs. John W. Preston, Frederick A. Baker, and John W. Preston, Jr., as attorneys to represent its members before the Indian Claims Commission.

Section 2 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1049, 1050; 25 U.S.C.A. 70a) gives the Commission authority to hear and determine "claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska." The terms "tribe" and "band" are not without

¹ See letter dated June 30, 1947, from F. G. Collet to Under Secretary Chapman.

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OPINIONS OF THE SOLICITOR

MARCH 17, 1948

their perplexities,² but these have been largely resolved in the course of working out satisfactory relationships between the Indians and the Government of the United States. The term "tribe" may be used in two senses, one ethnological and the other political. Some of the Indian groups which have been accorded recognition as tribes by the Government represent mergers of different ethnological stocks for administrative and political purposes.³ On the other hand, some Indian groups that originally were tribes in the ethnological sense have become subdivided in the course of time into separate bands, each exercising political authority, and these bands have secured recognition from Congress or the executive officers of the Government. Governmental recognition of tribes and bands has been accorded in the process of treaty-making, or has been implicit in the establishment of reservations for groups of Indians by acts of Congress or Executive orders, or in other types of legislative or administrative action. There has been no such recognition of "the Indians of California" or the "Indians of California, Inc." or the "Mission Indians of California" or the "Federated Indians of California" as a tribe or band exercising political authority.

The term "identifiable group of American Indians" had not been employed, either in claims legislation or in Indian legislation generally, prior to the enactment of the Indian Claims Commission Act. That act contains no provision specifically defining the term "identifiable group of American Indians."

It is obvious that, in order to be "identifiable," a group of Indians must possess common characteristics which will serve either to distinguish them from or assimilate them to other groups of Indians. While the act does not enumerate these characteristics, they must necessarily bear a substantial relationship to the factors that characterize tribes or bands. The rule of eiusdem generis, which restricts a general term in a statute within the ambit of the specific terms used in the same connection, would seem to be applicable here, unless a broader meaning is suggested by the statute or the circumstances of its enactment.

The Indian Claims Commission Act itself reveals no intention to make a wide departure from established usage in determining the status of Indian groups. The subdivisions of section 2 of the act relating to the types of legal claims which may be prosecuted under the act refer to claims based on laws, treaties, Executive orders of the President, contracts, and agreements. Such claims would arise only if political recognition had been accorded to the particular Indian groups asserting them. The references to other claims "in law or equity" or based on "fair and honorable dealings" also appear to assume the existence of some form of relations between the claimants as groups and the Government.

The provision for representative suits made by section 10 of the Indian Claims Commission Act (25 U.S.C.A. 70i) apparently contemplates the possibility of a state of political disorganization in an Indian group. However, the claim is to be filed in such a situation on behalf of the group, and only group rights are to be adjudicated by the Commission.

Of particular interest is section 13 (a) of the Indian Claims Commission Act (25 U.S.C.A. 70i), which provides:

It would hardly be possible for the Commission to mail a written explanation of the act to a group which did not have some recognized form of collective existence.⁴ Moreover, a group could hardly be said to exist as a "distinct entity" unless some means had been established for ascertaining and effectuating the will of the group.

For the reasons indicated above, it is my conclusion that an "identifiable" group of Indians, within the meaning of the Indian Claims Commission Act, is a group whose political existence has been recognized by Congress or the Executive branch of the Government, or one which, in the absence of such recognition, has a de facto collective existence

    ² See Cohen: Handbook of Federal Indian Law (1942), p. 268 et seq.
    ³ Examples are the Indians of the Fort Belknap Reservation (Gros Ventre and Assiniboine Tribes); the Indians of the Flathead Reservation (Salish and Kootenai Tribes); and the Indians of the Wind River Reservation (Shoshone and Arapahoe Tribes).
    ⁴ In complying with section 13 (a), the Commission did not attempt to determine what constituted "identifiable groups of American Indians existing as district entitles." It requested that the Bureau of Indian Affairs supply a list of "the names and addresses of those to whom the explanation of the act must be sent." See letter of April 17, 1947, from the Commission to the Commissioner of Indian Affairs. The list was supplied on April 24. It included specific bands of California Indians, but none of the organizations of California Indians involved in the pending contracts was included. The list was admittedly incomplete, and a supplementary list was promised.

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DEPARTMENT OF THE INTERIOR

MARCH 4, 1948

and carries on a type of group life characteristic of the Indians in the United States or Alaska, as the case may be.

To speak of all the Indians of the State of California is to refer solely to a geographical category. Prior to the act of May 18, 1928 (45 Stat. 602), which authorized "all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State" to sue the United States, the Indians in California certainly did not constitute a single entity. Moreover, the jurisdictional act plainly and unequivocally indicated that the California Indians were being dealt with as a group solely for the purposes of that act. Thus, even after the act was passed, there was no new entity known as "the Indians of California"; and since the date of the statute the Indians of California have not maintained any sort of collective existence as a single group.

I am aware that the legislature of the State of California has adopted legislation⁵ authorizing the Attorney General of the State to represent the Indians of California before the Indian Claims Commission. The Attorney General has ruled⁶ that under this legislation he may not represent any group of California Indians less than the whole group known as "the Indians of California," despite the fact that the legislature adopted a resolution declaring that the legislation was intended to permit him to do so.⁷ In the course of his opinion, the Attorney General expressed the view that "historically the Indians of California as a combined group or entity have been regarded and treated in a sense at least as wards of the government." However, his assumption that the Indians of California historically have been treated as a single entity is not supported by any factual data and is plainly contrary to the specific finding made by the Court of Claims in the case of The Indians of California v. The United States, 98 Ct. Cl. 583, 597, as follows:

An argument could be made that the jurisdictional act of May 18, 1928, constituted a recognition by Congress of the "Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State" as an identifiable group of Indians for all purposes, including the Indian Claims Commission Act. However, for the reasons set out above, I do not believe that such an argument would be sound. Further more, such an argument would not be available to support the contentions of the "Indians of California, Inc.," the "Mission Indians of California," and the "Federated Indians of California" that they constitute identifiable groups of Indians for the purposes of the Indian Claims Commission Act. These three organizations apparently possess none of the attributes which historically have characterized Indian groups in the United States.

It follows from what has been said that, in my opinion, neither the Indians of California, considered as a whole, nor any other of the organizations in whose behalf the contracts under consideration have been executed can properly be regarded as an "Indian tribe, band, or other identifiable group of American Indians" for the purposes of the Indian Claims Commission Act. However, the function of making authoritative determinations on questions of this nature is vested in the Indian Claims Commission. The disapproval of the contracts by this Department for the reason which I have stated would deprive the parties of the opportunity to have the question of status considered by the Commission and by the courts on appeal. Therefore, I believe that, subject to a determination that such contracts otherwise merit approval (as to which I express no opinion), it would be permissible to approve the respective contracts in the following language, thus reserving for future determination by the Indian Claims Commission the question concerning the competency of these several organizations of California Indians to institute proceedings under the Indian Claims Commission Act:

The suggestion that any approval which may be given to the contracts under consideration should be limited to the contract provisions relating to the presentation of claims to the Indian Claims Commission is made for the reason that two of the contracts provide for employment of the attorneys as general counsel in addition to their employment for the purpose of prosecuting claims before the Commission. In so far as the employment of gen-

    ⁵ Laws of California, 1947, chapters 46 and 47.
    ⁶ Opinion No. 47/205, August 29, 1947.
    ⁷ Assembly Concurrent Resolution No. 65.

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OPINIONS OF THE SOLICITOR

MARCH 23, 1948

eral counsel by these organizations of California Indians is concerned, administrative approval of such contracts is not required by law and would not be appropriate. Apart from the provisions of the Indian Claims Commission Act, only Indian tribes are required by section 16 of the Indian Reorganization Act (25 U.S.C. 476) or section 2103 of the Revised Statutes (25 U.S.C. 81), as the case may be, to submit contracts with attorneys to this Department for approval;⁸ and none of the organizations of California Indians considered in this memorandum is a tribe within the meaning of either of these statutory provisions.

ADJUSTMENT OF INDIAN IRRIGATION CHARGES
IN NON--GOVERNMENTAL IRRIGATION
PROJECTS

The Oroville-Tonasket Irrigation District in the State of Washington from which water rights were purchased for Indian-owned lands within the District pursuant to the acts of May 18, 1916 (39 Stat. 155), and May 24, 1922 (42 Stat. 579), is not a "Government irrigation project" within the meaning of the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C. 386a), and the cost of purchasing such water rights is not a "construction" cost within the meaning of the said act. Consequently, the assessment and collection of such costs may not be deferred under the terms of the act. While such costs could be cancelled upon the basis of appropriate findings under the act, such a cancellation would put the Indian landowners in a far better position than the non-Indian landowners of the Oroville-Tonasket Irrigation District.

To:            The Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Adjustment of irrigation charges against Indian lands within the Oroville-Tonasket Irrigation
                 District, Washington.

In your memorandum of December 23 you recommend action with respect to certain reimbursable irrigation charges against Indian-owned lands within the Oroville-Tonasket Irrigation District, Washington. These charges were incurred pursuant to the acts of May 18, 1916 (39 Stat. 155), and May 24, 1922 (42 Stat. 579). It is proposed to take the suggested action in order to equalize the obligations of the Indian and non-Indian landowners of the District. The latter have already been benefited by adjustments and cancellations effectuated by the Department pursuant to the act of June 22, 1936 (49 Stat. 1803, 25 U.S.C. 389a-e), and confirmed by Congress in the act of December 24, 1942 (56 Stat. 1082).

You propose to cancel under the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C. 386a), the sum of $17,554.23, which is said to represent 52.56 percent of total "construction" costs in the amount of $33,398.46 which are charged against the 492.53 acres still in Indian ownership, and the sum of $8,187.73, which represents delinquent operation and maintenance charges accruing from 1918 to 1933, inclusive. The same percentage of the "construction" costs chargeable against non-Indian owned lands was cancelled by the act of December 24, 1942, supra.

The Leavitt Act permits the adjustment or cancellation of "reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made." Consequently, your present proposal can be effectuated upon the basis of proper findings that the cancellation of the operation and maintenance charges and the partial cancellation of the so-called "construction" costs would be equitable and just.

With regard to the "construction" costs, however, you assume that the proposed partial cancellation of such costs would result in a balance of $15,844.23 to be paid on such costs, which balance would be "spread on a per-acre basis against the 492.53 acres for collection, as contemplated by the act of July 1, 1932, when and if in the future the Indian title to the land is extinguished * * *." This assumption apparently is based on the provision in the Leavitt Act to the effect that "the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished * * *."

The Oroville-Tonasket Irrigation District in the State of Washington is also not a "Government irrigation project." It is apparently a privately organized district existing under State law. The Federal Government did not construct the irrigation system operated by the District, but merely

⁸ The reference in R. S. 2103 to "individual Indians not citizens of the United States" is no longer significant in view of the granting of citizenship to all Indians by virtue of 8 U.S.C. 601.

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DEPARTMENT OF THE INTERIOR

MARCH 23, 1948

purchased water rights for those lands allotted to Indians which could be irrigated from the works constructed by the District. Furthermore, the cost of this purchase was not a "construction cost", in a proper sense, although its amount was no doubt measured by the construction costs of the District. Consequently, this case appears to be outside the scope of the statutory provision quoted in the preceding paragraph with respect to the deferment of the collection of charges for "construction costs" against Indian-owned lands within a "Government irrigation project". For that reason, the plan envisioned by you, whereby part of the cost of purchasing the water rights would be cancelled under the Leavitt Act and the balance of such cost would be deferred pending the extinguishment of Indian title to the lands involved in your proposal, can not be carried out in its entirety.

Of course, the total cost of purchasing the water rights could be cancelled upon the basis of appropriate findings under the Leavitt Act. However, this would put the Indian landowners in a far better position than the non-Indian landowners of the Oroville-Tonasket Irrigation District.

This is in response to your informal inquiry of April 7 regarding the respective mineral ownership rights of the United States and the Indians of the Uintah and Ouray Reservation, Utah, in the lands that were added to the reservation by the act of March 11, 1948 (Public Law 440, 80th Cong.). That act provides:

It will be noted that, under the provision quoted above, the United States retains the ownership, within the entire area added by the 1948 act to the Uintah and Ouray Indian Reservation, of all fissionable minerals reserved to the United States by the Atomic Energy Act of 1946. The United States also retains the ownership of all other minerals in that portion of the added area which was with drawn by Executive Order No. 5327. The Indians, on the other hand, obtained the ownership of minerals, other than fissionable minerals, in that portion of the added area which was not affected by the withdrawal in Executive Order No. 5327.

A map of a part of Utah is attached, with red lines superimposed thereon showing the boundaries of the area that was added to the Uintah and Ouray Reservation by the act of March 11, 1948. The total area of additional land approximates 510,859 acres. The part of the added area that is shaded in green on the map indicates the portion of the area in which the Indians own the minerals, other than fissionable minerals. The total area shaded in green approximates 237,825 acres. The unshaded part within the red lines indicates the portion of the added area in which the United States owns all mineral rights and in which the Indians acquired only surface rights. This portion approximates 273,034 acres. These over-all figures, however, include approximately 31,000 acres of land the title to which was acquired by purchase for the Indians, 11,852 acres of land allotted in trust to individual Indians, 34,000 acres of land owned by the State of Utah, and 3,338 acres of land owned by the county and by non-Indians. Complete information concerning the ownership of minerals in the areas referred to in the preceding sentence is not now available.

The Director of the Geological Survey stated informally that T. 16 S., Rs. 17 and 18 E., are classified as coal lands; that Ts. 17 and 18 S., Rs. 17 and 18 E. and T. 19 S., Rs. 19 and 20 E., are under withdrawal for coal but have not been classified; and that essentially all of the area shaded in green on the map is affected by Executive Order No. 4371, approved January 21, 1926, to the extent, as yet undetermined but currently under investigation, that it contains deposits of rock asphalt analogous to those now under development near Sunnyside and Vernal, Utah.

1493

OPINIONS OF THE SOLICITOR

MAY 20, 1948

The effectiveness of a trading license issued by the Commissioner of Indian Affairs is not dependent upon the consent of the Navajo Tribal Council with whose members the licensee is authorized to engage in trade; and the lack of such consent cannot impair the validity of the license.

The Commissioner of Indian Affairs has the discretionary power to specify the sales prices at which traders shall sell goods to the Indians, and he can either make or decline to make rules and regulations in that respect. The action of the Navajo Tribal Council in proposing to fix prices or to determine what the traders' mark-ups on goods shall be is an attempted encroachment upon a power which is vested solely in the Commissioner.

A licensed trader is privileged to engage in trade with the Indians under whatever conditions and requirements the Commissioner of Indian Affairs may prescribe, and the Navajo Tribal Council has no authority to impose additional conditions or requirements without the concurrence of the Commissioner.

A distinction exists between the privilege of engaging in trade with the Indians and the privilege of using the land of another in carrying on that trade. The latter privilege may be acquired only from the landowner; and if the land is held in trust by the United States for an Indian tribe or for an individual Indian, the regulations of the Department relating to the use of such land for business purposes must be observed.

Under the applicable departmental regulations, the consent of the tribal council and concurrent action by the Secretary or his authorized representative are required with respect to the issuance of a permit to use tribal lands for business purposes. The tribal council may give its consent or withhold it for any reason deemed by it to be sufficient. However, the tribal council has no voice in connection with the utilization of individually allotted lands for business purposes.

Conditions prescribed by the tribal council to affect either new trading licensees or those traders whose licenses have not expired cannot be made effective unless adopted by the Commissioner as a part of the regulations prescribed by him in this field, or unless they are incorporated, with the approval of the Secretary or his authorized representative, in permits covering the use by traders of lands belonging to the tribe.

Memorandum
To:            Assistant Secretary Warne.
From:        The Solicitor.
Subject:     Regulation of traders on the Navajo Indian Reservation.

On April 27, 1948, you referred to me four questions from the Acting Commissioner of Indian Affairs relative to the licensing of traders on the Navajo Indian Reservation. These questions arise out of a resolution which was adopted by the Navajo Tribal Council on March 20, 1948, and which purports to regulate traders on the reservation.

By the act of August 15, 1876,¹ Congress vested in the Commissioner of Indian Affairs "the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." In the act of March 3, 1901, as amended and extended by the act of March 3, 1903,² the Commissioner of Indian Affairs again was designated by the Congress to determine what persons shall be permitted to trade with the Indians on any Indian reservation and to prescribe appropriate rules and regulations for the protection of the Indians.³

The scope of the Commissioner's authority under the statutes mentioned above was discussed by the Solicitor of this Department in an opinion dated

    ¹ 19 Stat. 176, 200; 25 U.S.C. 1946 ed.. sec. 261.
    ².31 Stat. 1058, 1066, 32 Stat. 982, 1009; 25 U.S.C. 1946 ed. sec. 262.
    ³ The penalty provision relating to the laws governing trade with the Indians is found in 25 U.S.C. 1946 ed., sec. 264, which excepts persons trading with the Five Civilized Tribes.

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DEPARTMENT OF THE INTERIOR

MAY 20, 1948

October 25, 1934.⁴ The Solicitor held, among other things, that the taxing power of Indian tribes does not extend to the levy by a tribe of a tax upon licensed traders, in the absence of an authorization from the Commissioner of Indian Affairs, because the Congress has conferred upon the Commissioner the exclusive authority to appoint traders on Indian reservations and to prescribe the terms and conditions governing their operations. The courts likewise have held that full power and responsibility with respect to granting or refusing a license to trade are vested in the Commissioner of Indian Affairs, and that the privilege of doing business as a trader with the Indians on a reservation is dependent upon a license issued by the Commissioner.⁵

The effectiveness of a license issued by the Commissioner, under the authority exclusively vested in him by the Congress, is not dependent upon the consent of the tribe with whose members the licensee is authorized to engage in trade; and the lack of such consent cannot impair the validity of the License.

As pointed out above, the act of August 15, 1876, confers on the Commissioner of Indian Affairs the power not only to appoint traders to the Indian tribes but to specify "the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." In conferring this power on the Commissioner, the Congress necessarily withheld it from the tribes. Thus, any resolution adopted by a tribe dealing with the subject of price control in relation to traders could become effective only to the extent that the Commissioner might see fit to adopt it as a part of his regulations.

The general regulations governing licensed traders in their trade with the Indians on any Indian reservation were prepared by the Commissioner of Indian Affairs and approved by the Secretary of the Interior on June 29, 1927. On June 1, 1937, special regulations covering trade on the Navajo, Zuni, and Hopi Indian Reservations were prepared by the Commissioner, and these regulations were approved by the Assistant Secretary on June 2, 1937.⁶ Section 276.22 of the 1927 regulations directs the local superintendent to see that prices charged by licensed traders are fair and reasonable. To that end, the traders are required, upon request, to submit records which reflect the cost and selling prices of goods handled by them. A specific provision dealing with the regulation of prices was not included originally in the special 1937 regulations pertaining to traders on the Navajo Reservation. The omission appears to have been intentional.⁷ On November 5, 1942, the 1937 trading regulations were amended to include a provision stating that the prices of all articles of merchandise placed on sale shall be plainly and visibly marked by the traders.⁸

Apparently, the Commissioner has not yet determined that there is a need for setting the sales prices of, or fixing mark-ups on, goods sold by the traders. Such a determination is within the discretionary power exclusively vested in him by the laws mentioned above, and he can either make or decline to make rules and regulations in that respect. I believe, therefore, that the action of the Navajo Tribal Council in proposing to fix prices at that traders may sell goods to Indians or to determine what the traders' mark-ups on goods shall be is an attempted encroachment upon a power which is vested solely in the Commissioner of Indian Affairs.⁹

    ⁴ 55 I.D. 14, 48. See also the Solicitor's memorandum dated August 7, 1937, and a memorandum of the First Assistant Solicitor, dated May 1, 1940, both of which were addressed to the Commissioner of Indian Affairs.
    ⁵ See United States v. Parton et al., 132 F. (2d) 886 (1943); Blair Supt. v. McAlhaney, 123 F. (2d) 142 (1941).
    ⁶ See 25 CFR, Part 277. The text of the regulations approved in 1927 may be found in 25 CFR, Part 276.
    ⁷ See Indian Office file 7141-36-124, dealing with trading regulations affecting the Navajo Indians. See particularly Superintendent Fryer's recommendation of February 5, 1937, to the Commissioner of Indian Affairs.
    ⁸ 25 CFR Cum. Supp. 277.7. Prior to this amendment, the Superintendent of the Navajo Agency had been authorized by the Commissioner's office on July 30, 1941 to direct traders on the Navajo Reservation to mark the sales prices of all goods offered to the Indians.
    ⁹ See Solicitor's opinions dated May 8, 1940 (57 I.D. 124, 125, 126), and Ma): 31, 1940 (57 I.D. 129, 141).

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OPINIONS OF THE SOLICITOR

AUGUST 13, 1948

As previously indicated, a licensed trader is privileged to engage in trade with the Indians under whatever conditions and requirements the Commissioner may prescribe. Without the concurrence of the Commissioner, the Navajo Tribal Council has no authority to impose additional conditions or requirements.¹⁰

However, a distinction must be made between the privilege of engaging in trade with the Indians and the privilege of using the land of another in carrying on that trade. The latter privilege may be acquired only from the landowner; and if the land is held in trust by the United States for an Indian tribe or for an individual Indian, the regulations of the Department relating to the use of such land for business purposes must be observed.

In so far as tribal lands are concerned, the applicable regulations require that the consent of the tribe to the use of such land for business purposes be obtained.¹¹ The tribal council may give such consent in a given case or the consent may be withheld for any reason deemed by the council to be sufficient. Therefore, through the concurrent action of the Secretary, or his authorized representative, and the Navajo Tribal Council, any permit issued for the use of Navajo tribal land by a trader may contain appropriate conditions relating to the payment of rent and such other conditions as may be deemed to be essential to the protection of the Indians and the promotion of their welfare.

On the other hand, a tribal council has no voice in connection with the utilization for business purposes of lands allotted in severalty to individual members of the tribe.

It follows from what has been said in the preceding parts of this memorandum that the several conditions set forth in the resolution of March 20, 1948, in so far as they affect the business of licensed traders, cannot be made effective unless they are adopted by the Commissioner as a part of the regulations prescribed by him in the exercise of his exclusive authority in this field, or unless they are incorporated, with the approval of the Secretary or his authorized representative, in permits covering the use by traders of lands belonging to the tribe. Standing alone, such conditions cannot be enforced either against new licensees or against those whose licenses have not yet expired.

Where a statute authorizing the purchase by the United States of lands and mineral deposits provides that the properties "when acquired" shall become a part of the public domain subject to the applicable public land mining and mineral leasing laws, the date upon which the lands and mineral deposits become a part of the public domain is determined by the date of acquisition.

A contract by which the Choctaw and Chickasaw Nations agree to sell, and the United States agrees to buy, for a consideration of $8,500,000 lands and mineral deposits, with provision for conveyance when the appropriation of the purchase price has been made, is executory in nature and operates to vest in the United States on the date of the appropriation the full equitable title, with the right to a conveyance, as of that date, of the legal title.

As the date of the appropriation of the purchase price becomes the date of acquisition by the United States and the date upon which the acquired properties become a part of the public domain, any lease made prior to that date under the leasing laws applicable to the public domain would be without authority of law.

Under the act of April 21, 1932 (47 Stat. 88), as amended by the act of July 31, 1947 (Public Law 295, 80th Cong.), renewals of existing leases and permits, completed within extension periods granted by the Secretary of the Interior prior to

¹⁰ Cf. Sperry Oil Co. v. Chisholm, 264 U.S. 488 (1924); Blanset v. Cardin, 256 U.S. 319 (1921).
¹¹ 25 CFR 277.12 and the regulations approved February 17, 1948 (I3 F.R. 829-831, sec. 171.10)

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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1948

the execution of the contract of sale to the United States, may be approved by the Bureau of Indian Affairs.

A contract of sale executed on October 8, 1947, became binding, upon ratification by the Congress, from the date of its execution, and operated to prevent the vendor from selling, leasing or otherwise disposing of the properties contracted to be sold unless specifically authorized by the contract of sale.

A provision in a contract between the Choctaw and Chickasaw Nations and the United States, declaring that all "proceeds from the sale of any of the properties mentioned herein made subsequent to the date of this contract and prior to the appropriation of the purchase price, shall be credited on the purchase price," is construed to contemplate and, therefore, to authorize sales by the vendor to third persons at any time prior to the appropriation of the purchase price.

Memorandum
To:            The Secretary.
From:        The Solicitor.
Subject:     Administration, lease, and sale of Choctaw and Chickasaw coal and asphalt lands.

By the act of June 24, 1948 (Public Law 754, 80th Cong.), the Congress ratified a contract by which the United States agreed to buy, and the Choctaw and Chickasaw Nations agreed to sell, for a consideration of $8,500,000, the interest of the two Indian nations in certain lands chiefly valuable for their coal and asphalt deposits. Section 3 of the contract provides that when the purchase price has been appropriated by the Congress, the Principal Chief of the Choctaw Nation and the Governor of the Chickasaw Nation shall execute a conveyance or conveyances, satisfactory in form and substance to the Secretary of the Interior, vesting in the United States all the right, title, and interest of the Choctaw and Chickasaw Nations. Pending performance under the contract by the parties-that is to say, the appropriation of the purchase price by the Congress and the execution of a proper conveyance or conveyances by the officials of the Choctaw and Chickasaw Nations, which performance is not expected until some time after the 81st Congress convenes in January of 1949--certain questions concerning the administration, lease, and sale of the mineral deposits have arisen and have been referred to me for an opinion.

During the interim period mentioned above, may coal and asphalt leases on the property be issued by the Department under the mineral leasing laws applicable to lands and mineral deposits owned by the United States?

The contract was executed under authority contained in the Interior Department Appropriation Act, 1944 (58 Stat. 463, 483-485). That act provides, among other things, that the lands and mineral deposits "when acquired hereunder shall become part of the public domain subject to the applicable public land mining and mineral leasing laws." The lands and mineral deposits here in question will, therefore, become part of the public domain and subject to the public-land mineral leasing laws on the date of acquisition by the United States. That date, in my opinion will be the date upon which the appropriation of the purchase price is made.

In connection with executory contracts of this nature, the courts have frequently said that immediately upon execution of such a contract the vendee becomes the equitable owner of the property and the vendor retains the legal title as security for the payment of the purchase price. But, as pointed out in National Bank of Kentucky v. Louisville Trust Co., 67 F. (2d) 97, 101 (C.C.A. 6th, 1933), this means no more than that the vendee has a right to compel specific performance, but that the vendor will not be required to convey unless and until the purchase price is paid. When the purchase price is paid in full prior to the execution of a conveyance, the vendee immediately becomes the full equitable owner of the property.¹

That the title to the lands and mineral deposits under consideration here was not to pass prior to the payment of the purchase price is made clear by the provisions of the ratified contract, which must be given controlling effect.

Under section 2 of the contract, the purchase price, when appropriated, is to be placed to the credit of the Choctaw and Chickasaw Nations in the Treasury and will then be subject to per capita distribution, as provided in section 4 of the contract. Under section 3 of the contract, the officials of the two nations become obligated to convey immediately upon appropriation of the purchase

¹ Sutton v. Commissioner of Internal Revenue, 95 F. (2d) 845 (C.C.A. 10th, 1938); National Bank of Kentucky v. Louisville Trust Co., 67 F. (2d) 97 (C.C.A. 6th. 1933); California Delta Farms, Inc. v. Chinese American Farms, Inc, 278 Pac. 227, 232, app. dismissed 280 U.S. 520; Magee v. Young, 198 S.W. (2d) 883 (Tex., 1947); Long v. Godfrey, 32 S.E. (2d) 306 (Ga., 1944).

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OPINIONS OF THE SOLICITOR

AUGUST 13, 1948

price. Accordingly, when the appropriation is made, the Indian nations become the owners of the appropriated moneys, and the Government becomes the owner of the equitable title to the lands and mineral deposits covered by the contract and will be entitled, as of that date, to a conveyance of the legal title.

Section 5 of the contract provides that the proceeds received from any sale of any of the properties involved in the contract, made subsequent to the date of the contract and prior to the appropriation of the purchase price, shall be credited upon the purchase price, and that all royalties received from any coal, asphalt, oil, gas, or other minerals mined from the properties until the first of the month in which the purchase price shall have been appropriated shall be placed to the credit of the Choctaw and Chickasaw Nations on the books of the Treasury of the United States. As the right to the royalty income from, and the right to the proceeds of any sale of, the mineral deposits go hand in hand with ownership of the deposits, and as the parties, by the terms of the contract, have unequivocally recognized that these rights remain with the Choctaw and Chickasaw Nations down to the date of the appropriation of the purchase price, it necessarily follows that, until such date, the United States does not have a disposable interest in these mineral deposits.

Therefore, it is my opinion that any lease of the properties made at the present time pursuant to the mineral leasing laws applicable to Government-owned lands and mineral deposits would be without authority of law.

In reaching this conclusion I am not unmindful of the fact that the report of the Senate Committee on Interior and Insular Affairs on the bill to ratify the contract of purchase contains a statement to the effect that, upon ratification of the contract, the lands and mineral deposits would become a part of the public domain and subject to the applicable public-land mining and mineral leasing laws.² I find no support for this statement either in the enabling provisions of the Interior Department Appropriation Act, 1945, or in the provisions of the contract made pursuant to that act. As explained above, the addition of these properties to the public domain does not, under the act and the contract, become an accomplished fact until the purchase price shall have been appropriated.

In the event that leases cannot be made under the mineral leasing laws applicable to lands owned by the United States, may administration of the coal and asphalt deposits and the issuance of leases during the interim period be continued in the Bureau of Indian Affairs pursuant to the regulations in 25 CFR, Part 207?

The regulations to which reference is made were prescribed under authority of the act of April 21, 1932 (47 Stat. 88). That act authorizes the leasing of "developed tracts" of Choctaw and Chickasaw coal and asphalt lands for periods of not to exceed 15 years from September 25, 1932, such leases to be made, subject to the approval of the Secretary of the Interior, by the Choctaw and Chickasaw Mining Trustee or by such other officer as the Secretary may designate. Leases made pursuant to this act would have expired, in the absence of renewal or extension, on September 25, 1947. The act of April 21, 1932, was, however, amended by the act of July 31, 1947 (Public Law 295, 80th Cong.), to provide that leases or renewal leases might be made for periods of not to exceed 15 years. As shown by its legislative history, the amendatory act was enacted not only to prevent the loss of a substantial royalty income to the Choctaw and Chickasaw Nations but to protect the holders of existing leases and permits, then about to expire, who had expended large sums of money in the development and operation of the properties.³ By letter dated September 22, 1947, the Secretary of the Interior authorized the Superintendent for the Five Civilized Tribes to grant extensions to the holders of existing leases and permits, pending the negotiation of renewals, such extensions to be "effective until the approval by the Commissioner of Indian Affairs of renewal leases or permits, but in no event to be effective for a period extending beyond September 25, 1948."

In view of the action taken by the Secretary under the amendatory act of July 31, 1947, in authorizing the Superintendent of the Five Civilized Tribes to grant extensions of existing leases and permits, it would be permissible, in my judgment, for the Bureau of Indian Affairs, notwithstanding the execution and ratification in the meantime of the contract of sale between the Indian nations and the United States, to approve renewal leases or permits properly executed within the time limit specified in the Secretarial letter of September 22, 1947.

In view, however, of the ratification by the Congress of the contract for the sale to the United States of the lands and mineral deposits, no new leases of developed or undeveloped tracts and no additional extensions of existing leases or permits

² Senate Report No. 1266 on S. J. Res. 203, 80th Cong., 2d sess.
³ See House Report No. 466 on H.R. 2005, 80th Gong.. 1st sess.

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DEPARTMENT OF THE INTERIOR

AUGUST 13, 1948

can now be made. The contract of sale between the Indian nations and the United States, upon ratification by the Congress, became binding on the parties. The interest which the Choctaw and Chickasaw Nations contracted to sell to the United States is the interest which these nations owned on the date of the execution of the contract,⁴ with such exceptions as are specifically authorized by the contract. The contract contains no provision which authorizes the Choctaw and Chickasaw Nations to grant additional leasehold interests in the coal and asphalt deposits pending the consummation of the transaction between the two nations and the United States.

During the interim period mentioned above, may any tracts be sold pursuant to the provisions of the act of June 19, 1930 (46 Stat. 788), and the regulations in 25 CFR, Part 213?⁵

This question must be answered in the affirmative, for the reason that the contract. between the Indian nations and the United States specifically contemplates, and therefore must be deemed to authorize, sales at any time prior to the appropriation of the purchase price. It does this by including in section 5 a provision, to which I have already referred, declaring that all "proceeds from the sale of any of the properties mentioned herein made subsequent to the date of this contract, and prior to the appropriation of the purchase price, shall be credited on the purchase price." The requirement that the proceeds be credited upon the purchase price makes it clear that the sales contemplated are to be sales made on behalf of the Indian nations and not on behalf of the United States.

The effect of such sales would be to eliminate the tracts sold from the contract between the nations and the United States, and to relieve the United States of the obligation to pay for the tracts sold by crediting the proceeds of sale on the price which the Government agreed to pay.

If any sales are to be made to persons other than the United States--and this presents an administrative question on which I express no opinion--it would be appropriate, inasmuch as the sales would be made on behalf of the Indians, to conduct such sales under the act of June 19, 1930, and the regulations prescribed under that act.

Section 4 of the Interior Department Appropriation Act, 1949 (Public Law 841, 80th Cong., p. 42), specifically authorizes, within the express limitations therein, expenditures which would be otherwise prohibited by 5 U.S.C., 1946 ed., sec. 83 and 31 U.S.C., 1946 ed., sec. 551, which are directed to the expenditure of appropriated moneys for the payment of expenses of persons in attendance at meetings or conventions of societies or associations which are private and non-governmental in nature.

Neither the prohibitions expressed in 15 U.S.C., 1946 ed., sec. 83 or 31 U.S.C., 1946 ed., sec. 551 nor the provisions of section 4 of the Interior Department Appropriation Act, 1949, impose limitations on the payment of expenses of any officer or employee of the Department in connection with his attendance as a representative of the Government at a congress of representatives of various governments.

None of these provisions has any application to the expenditure of funds to defray the expenses of an officer or employee who attends the Second Inter-American Indian Congress as a delegate of this Government.

Memorandum
To:            Under Secretary Chapman.
From:        The Solicitor.
Subject:     Payment of expenses to international conference.

You have asked my opinion on the question whether section 4 of the Interior Department Appropriation Act, 1949, is a limitation on the payment of expenses of officers and employees of the Department and the Bureau of Indian Affairs who are properly designated as delegates to the convocation of the Second Inter-American Indian Congress at Cuzco, Peru, October 19, 1948.

Section 4 of the Interior Department Appropriation Act, 1949 (Public Law 841, 80th Congress, p. 42) recites that:

⁴ See Solicitor's memorandum to the Commissioner of Indian Affairs, dated October 5, 1944.
⁵ This act and the regulations referred to relate to the sate of the coal and asphalt deposits during the period of ownership by the Choctaw and Chickasaw Nations.

1499

OPINIONS OF THE SOLICITOR

SEPTEMBER 29, 1948

This provision specifically authorizes, within the express limitations therein, expenditures which would be otherwise prohibited by section 8 of the act of June 26, 1912 (5 U.S.C., 1946 ed., sec. 83), as amended, and a Joint Resolution, dated February 2, 1935 (31 U.S.C., 1946 ed., sec. 551), which respectively provide that:

These prohibitions are directed to the expenditure of appropriated moneys for the payment of expenses of persons in attendance of meetings or conventions of societies or associations which are private and non-governmental in nature. 27 Comp. Gen. 627; 16 id. 839 and 850.

Neither the prohibitions expressed in the act of June 26, 1912 and the Joint Resolution of February 2, 1935 nor the provisions of section 4 of the Interior Department Appropriation Act, 1949 impose limitations on the payment of expenses of any officer or employee of the Government in connection with his attendance as a representative of the Government at a congress of representatives of various governments. 5 Comp. Gen. 834.

The Second Inter-American Indian Congress is being held pursuant to the convention which established the Inter-American Indian Institute and which was ratified by the Senate on May 26, 1941 and proclaimed by the President to be in full force on February 27, 1942 (56 Stat. 1303), and the regulations approved by Executive Order No. 2 of the Peruvian Government, January 29, 1948. It is clear, under article II of the convention and article 14 of the regulations, that the Congress will be an international conference attended by the representatives of various governments. Therefore, none of the three statutory provisions quoted above has any application to the expenditure of funds to defray the expenses of an officer or employee who attends the Congress as a delegate of this Government.

The question whether appropriations are available for the payment of the expenses of any officer or employee of the Department who might be authorized to attend the Congress as a delegate of this Government has not been considered in this memorandum.

Under the previous ruling of this office that an Indian tribe incorporated under Federal law may be regarded as a "municipality," there would be no violation of the act of March 3, 1917, if the salary of a Government employee were to be augmented by a contribution from the funds of an incorporated tribe.

As section 1765 of the Revised Statutes is designed to guard and protect the United States Treasury against unforeseen demands, the payment of additional compensation out of tribal funds to a Federal employee is outside the scope of that section.

Memorandum
To:            The Secretary.
From:        The Solicitor.
Subject:     Use of funds in tribal treasury to supplement salary of Government employee.

The Council of the Confederated Salish and Kootenai Tribes has appropriated $249.52 to supplement the salary of an extension clerk at the Flathead Agency. The clerk is a Government employee whose appointment and compensation are expressly provided for "by law or regulations." The Acting Commissioner of Indian Affairs has raised the question whether the proposed tribal contribution comes within the scope of the memorandum opinion of Acting Solicitor Kirgis, dated August 10, 1938, which held that, notwithstanding

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 29, 1948

the provisions of the act of March 3, 1917 (39 Stat. 1106, 5 U.S.C., 1946 ed., sec. 66), and section 1765 of the Revised Statutes (5 U.S.C., 1946 ed., sec. 70), the Flathead Tribes could supplement the salaries of certain Federal employees performing tribal functions whose appointments and compensation were not expressly provided for by law or regulations.

The act of March 3, 1917, prohibits the receipt by a Government official or employee of any salary in connection with his services "from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality." Section 1765 of the Revised Statutes provides that no officer or other person whose compensation is "fixed by law or regulations" shall receive any additional compensation "unless the same is authorized by law, and the appropriation therefore explicitly states that it is for such additional" compensation.

The Acting Solicitor held in the memorandum of August 10, 1938, that an Indian tribe incorporated under Federal law may be regarded as a "municipality", as that term is employed in the act of March 3, 1917. Under this view, the correctness of which I have not attempted to check in the limited time available to me, there would appear to be no reason for objecting on the basis of that act to the present appropriation for the purpose of supplementing the salary of the extension clerk.

The clerk is an employee whose appointment and compensation are expressly provided for "by law or regulations," as contemplated in section 1765 of the Revised Statutes. However, the purpose of this provision is to prevent officers or employees of the Government from making demands on the United States Treasury for additional compensation, over and above their regular salaries, unless such additional compensation has been expressly authorized by law and appropriated by the Congress. The Attorney General has stated that the provision was designed "to guard and protect the Treasury against unforeseen demands." 4 Op. Atty. Gen. 248. See also United States v. King, 147 U.S. 676; 679; Lewis v. United States, 244 U.S. 134, 146; Wickersham v. Smith, 7 Alaska 522. The payment of additional compensation out of tribal funds to a Federal employee is, therefore, outside the scope of section 1765 of the Revised Statutes.

Under Article VI, Section 1 (h), of the constitution of the Flathead Tribes, the resolution making the appropriation to supplement the salary of the extension clerk at the Flathead Agency is subject to review by the Secretary of the Interior within 90 days of its enactment. As the resolution was adopted on July 2, the period for review will expire September 30. The resolution, therefore, should receive immediate attention.

The act of February 14, 1931 (46 Stat. 1106, 25 U.S.C., 1946 ed., sec. 451), which provides only for acceptance of donations made for the benefit of Indian "institutions," supplies no authority for the acceptance by the Secretary of the Interior of contributions for the management of Indian forest range and wildlife resources. The authority under the act of February 14, 1931, has not been broadened by section 20 of the Permanent Appropriations Repeal Act (48 Stat. 1233, 31 U.S.C., 1946 ed., sec. 725s), which sets up an account of "Funds contributed for Indian projects," only because the account included donations under special legislation. Inview of the requirement of the act of February 14, 1931, that donations be applied "for the benefit of individual Indians," donations could not be expended in any event in the management of Indian tribal resources. Moreover, contributions could not be accepted from donors who would be primarily interested in advancing their own interests. Such contributions would be either no gifts at all, or conditional gifts which may not be accepted on behalf of the United States without express statutory authority.

Memorandum
To:            The Secretary.
From:        The Solicitor.
Subject:     Acceptance of contributions for the management of Indian resources.

You have requested that I express an opinion on the question whether the act of February 14, 1931 (46 Stat. 1106, 25 U.S.C., 1946 ed., sec. 451), supplies authority for acceptance by the Secretary of the Interior of contributions "for the management of Indian forest, range and wildlife resources."