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1501

OPINIONS OF THE SOLICITOR

NOVEMBER 22, 1948

Apparently the possibility is suggested that contributions or donations for the management of Indian forest, range and wildlife resources may be regarded as gifts "for the advancement of the Indian race." Such gifts, however, would not seem to fall within any of the categories of purposes for which contributions or donations of funds may be accepted under the statute. Its purpose would seem to be to permit gifts to be made for the benefit of Federal Indian "institutions," namely, "schools, hospitals, or other institutions," and the phrase "for the advancement of the Indian race" would seem to be intended as an additional characterization of the nature of these "other institutions." This interpretation seems to be supported by the title of the statute itself which is simply "An Act to authorize the Secretary of the Interior to accept donations to or in behalf of institutions conducted for the benefit of Indians." The title of a statute becomes a relevant factor in construction when its text may be said to be ambiguous.¹ Certainly the Bureau of Indian Affairs is not itself an "institution" in the sense in which that term is employed in the statute.

It is true that the statute also provides that any gifts received shall be applied not only for the use and benefit of institutions but also "for the benefit of individual Indians." However, individual Indians may benefit through institutional care, services or benefactors. The establishment of scholarships for Indians is one of the examples of this kind of benefit that is given in the legislative reports.² In the report on the legislation made by

In contending for a broader interpretation of the statute, reliance is also placed apparently upon section 20 of the Permanent Appropriations Repeal Act of June 26, 1934 (48 Stat. 1233, 31 U.S.C., 1946 ed., sec. 725s), which, in making provision for the expenditure of certain trust funds without specific appropriation by Congress, includes as category 66, "Funds contributed for Indian projects." (Italics supplied) Certainly the concept of a "project" is far wider than that of an "institution," and the former would certainly embrace non-institutional activities of the Indian Service. It has been held, to be sure, that subsequent Congressional legislation may be considered to assist in the interpretation of prior legislation on the same subject..³ However, the legislative history of category 66⁴ shows that it was intended to cover not only contributions under the act of February 14, 1931, but also contributions under other provisions of a special character such as those included in the appropriation acts of August 1, 1914 (38 Stat. 582, 588), and May 10, 1926 (44 Stat. 453, 476), which made possible contributions by the State of Arizona or counties of the States of Arizona and California toward bridge and road construction work. The establishment of only one trust fund account for contributions both under the general act and the special provisions undoubtedly explains the necessity of resorting to the broader category of projects. Indeed, the discussion of this account at the hearing on the Permanent Appropriations Repeal Act supplies further evidence that the act of February 14, 1931, was intended to permit only contributions made for the benefit of Indian institutions. Thus there occurred the following colloquy between Congressman Anthony J. Griffin, Chairman of the Subcommittee, and Samuel M. Dodd, Chief of Finance Office of the Bureau of Indian Affairs:

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    ¹ Fairport, P. & E. R. Co. v. Meredith, 292 U.S. 589, 594-5; Bengzon v. Secretary of Justice, 299 U.S. 410, Brotherhood of Railroad Trainmen v. B. & 0. R. Co., 331 U.S. 519. 528-9.
    ² See this Department's report, dated June 18, 1930, to the House Committee on Indian Affairs and Report No. 2088, House of Representatives, 71st Cong., 3d sess.
    ³ Great Northern Railway Co. v. United States, 315 U.S. 262, 276.
    ⁴ See Hearings before the Subcommittee of House Committee on Appropriations in Charge of Permanent Appropriations, 73d Cong., 2d sess., pp. 286-89.

1502

DEPARTMENT OF THE INTERIOR

NOVEMBER 22, 1948

In submitting the basic question of the scope of the act of February 14, 1931, the Acting Commissioner of Indian Affairs requested that I consider specifically four possible categories of gifts which might be made to assist in the management of Indian natural resources. These four categories are all alike in relating to the management of such resources but are differentiated by the character and motives of the donors as well as by the character of the beneficiaries, who may be either individual Indians or tribes of Indians.

In the first category are contributions which might be made by persons who have no desire to secure contracts or other advantages from the Bureau of Indian Affairs and are actuated solely by eleemosynary motives. In the second category are contributions which might be made by tribal Indians, or by non-Indians such as timber sale contractors, grazing permittees or lessees, who are interested in the development of Indian resources. In the third category are contributions which might be made by individual Indians, Indian associations, and Indian Tribes interested in the development of their own resources. In the fourth category are contributions which might be made to pay the salary of a clerk to prepare modifications of grazing permits on the Crow Reservation held by the contributors as well as by non-contributors.

It is entirely immaterial under the statute whether a donor is an Indian or a non-Indian, a tribal Indian or a non-tribal Indian, an Indian association or an Indian tribe. The statute does not undertake to limit the class of donors. The fact that some of the beneficiaries would be tribes of Indians is, however, a relevant factor. As the application of donations is plainly limited by the terms of the statute to individual Indians, donations could not be accepted for the management of Indian tribal resources. Of course, individual members of a tribe may be said to benefit in a general sense when the tribal welfare is advanced. The statute, however, obviously contemplates that the benefit be both immediate and direct for, otherwise, the limitation on the application of donations would be rendered meaningless.

It appears, moreover, that the prospective donors in all four categories of gifts, except the first, which must be almost entirely hypothetical, would have an interest in the use of the funds contributed by them, and would benefit directly from such use. The direct interest of such "donors" would in itself bar acceptance of their contributions. It is apparent that if the purpose of a contribution is to advance the interests of the contributor, he is not really a donor. As such a contribution cannot truly be regarded as a gift, it cannot be accepted.⁵ If it is a gift at all, it is a conditional gift, and it has been held that such gifts may not be accepted on behalf of the United States without statutory authority.⁶

It is my opinion, therefore, that the act of February 14, 1931, does not authorize the acceptance of contributions for the management of Indian forest range, and wildlife resources, and that none of the contributions specifically proposed may be accepted.

The penalty mail privilege may be used by an Indian school of the Bureau of Indian affairs only in the transmission through the mail of matters which relate exclusively to the business of the United States.

If written materials are prepared or procured by an Indian school with funds appropriated by Congress to the Bureau of Indian Affairs for such purposes, they fall into the category of "matters relating exclusively to the business of the United

⁵ See Memo Sol. I.D., dated May 21, 1940, holding that the act of February 14, 1931, could not be invoked to justify the acceptance by the United States of a proposed conveyance of Indian trust land to be held in trust for the Indian grantor; and Memo Sol. I.D., dated August 27, 1940, holding that the same act would not supply authority for the acceptance by the United States of a conveyance of allotted land in trust for the Crow Creek Tribe in liquidation of a loan made by the tribe to the allottee.
⁶ See 13 Op. Atty. Gen. 465; 21 ibid. 537; 30 ibid. 527; 10 Comp. Gen. 395; 11 ibid. 355 Express statutory authority to accept conditional gifts upon recommendation of the Surgeon General is conferred upon the Administrator of the Public Health Service by the act of July 1, 1944 (58 Stat. 709), as amended (42 U.S.C.. 1946 ed., sec. 219).

1503

OPINIONS OF THE SOLICITOR

DECEMBER 15, 1948

Even if news sheets, graduation announcements, or similar materials issued by an Indian school are eligible for the penalty mail privilege, they can be mailed free of postage only to those persons who have requested them.

Memorandum
To:            The Secretary.
From:        The Solicitor.
Subject:     Use of penalty mail privilege by Indian schools.

In a memorandum dated December 1, 1948, Acting Secretary Davidson requested an opinion concerning the propriety of the use of the penalty mail privilege by Indian schools of the Bureau of Indian Affairs in transmitting through the mail mimeographed monthly news sheets, graduation announcements, invitations to graduations, and other similar mail.

Authority for use of the penalty mail privilege is found in 39 U.S.C., 1946 ed., sec. 321, which provides that:

Under regulations issued by the Postmaster General, permits for the printing of the penalty indicia must be secured from the Third Assistant Postmaster General.

Section 306 of the Penalty Mail Act of 1948 (Public Law 785, 80th Congress) limits the use of the penalty mail privilege by executive agencies. It provides that:

"No executive department or independent establishment of the Government shall transmit through the mail, free of postage, any book, report, periodical, bulletin, pamphlet, list, or other article or document (except official letter correspondence, including such enclosures as are reasonably related to the subject matter of the correspondence; informational releases in connection with the decennial census of the United States, mail concerning the sale of Government securities, and all forms and blanks and copies of statutes, rules, regulations, and .instructions and administrative orders and interpretations necessary in the administration of such departments and establishments), unless a request therefore has been previously received by such department or independent establishment; or such transmission is required by law; or such document is transmitted to inform the recipient thereof of the adoption, amendment, or interpretation of a statute, rule, regulation, or order to which he is subject. * * *"

It is clear that only matter which relates exclusively to the business of the United States can properly be sent by an Indian school of the Bureau of Indian Affairs through the mail postage free. If the materials mentioned above are prepared or procured by an Indian school with funds appropriated for such purposes by Congress to the Bureau of Indian Affairs, it appears that such materials relate "exclusively to the business of the United States" and may properly be sent through the mail without the payment of postage. On the other hand, if the preparation or procurement of any of these materials is outside the scope of the activities of an Indian school for which Congress has provided funds and is accomplished at private expense, then those particular materials could not be regarded as "relating exclusively to the business of the United States" and they would not be eligible for the penalty mail privilege.

In this connection, it should be borne in mind that even if these materials, or some of them, are eligible for the penalty mail privilege because they relate "exclusively to the business of the United States," they can be transmitted free of postage only to persons who have specifically requested them.

1504

DEPARTMENT OF THE INTERIOR

DECEMBER 31, 1948

CHEMEHUEVI LANDS DESIGNATED FOR CONSTRUCTION
OF PARKER DAM PROJECT--MEMBERSHIP
IDENTITY PROBLEMS

Memorandum
To:            The Commissioner of Indian Affairs.
From:        Acting Solicitor.
Subject:     Disposition of Chemehuevi tribal funds.

This will refer to the matter of the disposal of the sum of $80,879.45 derived from the taking by the United States of lands on the Chemehuevi Reservation in California for the Parker Dam project pursuant to the provisions of the act of July 8, 1940 (54 Stat. 744).

The cited act granted to the United States all of the right, title and interest of the Indians of the "Chemehuevi Reservation in California" in lands designated by the Secretary of the Interior for the construction of the Parker Dam project with the provision for the determination by the Secretary of the compensation to be paid the Indians and a requirement that the amount due the tribe be deposited to its credit in the Treasury of the United States. Although this legislation established beyond challenge the Indian title to the reservation lands and the right of the tribe to receive the proceeds from disposals of the reservation lands (see In re Wilson, 140 U.S. 575, 577), the difficulty presented has been in establishing the identity of the tribe and its membership.

There is evidence that the Chemehuevi Tribe or Band formerly occupied lands in the Chemehuevi Valley. The reservation, which bears the name of the Indians, was no doubt set aside originally for the benefit of this tribe or band. Only eleven Chemehuevis were, however, given allotments on that reservation. The main body removed to and received allotments of lands on the Colorado River Reservation which had been established for Indians (such as the Chemehuevi) "of the Colorado River and its tributaries."^l Others moved else where and some were not allotted anywhere. As stated in a report dated February 19, 1942, of the former Superintendent of the Colorado River Indian agency:

It may well be that the Congress, in enacting the act of July 8, 1940, had in mind the original Chemehuevi Tribe or Band which occupied the Chemehuevi Valley and for whose benefit the lands of the Chemehuevi Reservation were originally withdrawn, and that this Tribe or Band would, for the purpose of the distribution of the funds of $80,879.45, now be represented by those members, now living, of the original Tribe or Band, together with their descendants and the descendants of those who have died, irrespective of their present places of residence. However, there is no clear indication of this in the act itself, and its legislative history offers no support for such a position. Moreover, the distribution of the fund in that manner would, as to Indians enrolled and allotted on other reservations, run afoul of the general rule that an Indian may not be a member of two tribes or bands and receive benefits as a member of each.

Confronted with this situation, it is my opinion that the problem may be solved satisfactorily only by the enactment of clarifying legislation. Should you desire to seek such legislation, this office will be pleased to render any desired drafting assistance.

Mr. Rell S. Theriot,
P.O. Box No. 1079,
Shreveport, Louisiana.

MY DEAR MR. THERIOT:

The President has referred to this Department your letter of January 15, 1949, relating to the grant of lands to Larkin Edwards made by the supplementary articles of the Caddo Indian Treaty of February 2, 1836.

¹ See act of March 3, 1865 (13 Stat. 540, 559), and Executive orders of November 22, 1873, November 16, 1874, and May 15, 1876.

1505

OPINIONS OF THE SOLICITOR

MARCH 28, 1949

Your letter, read in connection with your enclosed photostatic copy of a letter dated August 1, 1922, from Mr. C. F. Hauke, Chief Clerk of the Office (now Bureau) of Indian Affairs, indicates your belief that the supplementary articles required ratification and confirmation independently of the main treaty and that such separate action was not taken.

In answer, I am glad to advise you that all the affirmative acts necessary to effectuate this grant were performed within a year after the treaty was signed. The Senate acted upon the treaty and the supplementary articles containing the Larkin Edwards grant at one and the same time. So, too, did the President. Senate ratification of both treaty and supplement occurred in executive, or secret, session on January 26, 1836, and confirmation of both treaty and supplement was proclaimed by President Andrew Jackson on February 2, 1836.

It was considerably later, however, when the official documents and proceedings were published, and then in volumes of such limited editions that today only a few libraries possess them. The proclamation, containing the texts of both the treaty and the supplementary articles, appeared in 1842, being printed in Report 1035 of the House Committee on Indian Affairs, dated August 20, 1842, pp. 73-78. (See House Reports, 27th Cong., 2d sess., 1841-1842, vol. 5, Serial No. 411, pp. 73-78.) Four years later, the texts of the treaty and its supplement were published again, this time appearing on pp. 470-473 of Volume 7 of the United States Statutes at Large, printed in 1846. On page 470, the simple marginal notation "Proclamation February 2, 1836" gave notice of ratification as well as of proclamation, for without Senate ratification there could have been no Presidential proclamation.

The Senate deliberations on the Caddo Treaty, having been held in secret session, were not printed
in the Congressional Record. Instead, the proceedings, showing the resolution of ratification and the vote thereon, appear at page 508 of volume 4 of the "Journal of the Executive Proceedings of the Senate for the period from March 4, 1829, to March 3, 1837, inclusive." This volume was not printed until 1887, and then, by order of the Senate, was not released to the public until 1888. Moreover, Senate orders limited the printing of this volume to 125 copies, 107 for designated officials and libraries of the Federal Government and 18 copies to be held in reserve. (See Check List of United States Public Documents 1789-1909 published by U.S. Government Printing Office in 1911 p. 1503, paragraphs 1 and 2 for explanations concerning the publication of the Executive Journal for the first 40 Congresses.)

For your convenience, a copy of the Senate's Executive proceedings on the Caddo Treaty is enclosed. The text of the Senate resolution will provide you with conclusive evidence that the Senate ratified the supplementary articles as well as the treaty.

Evidence that President Jackson confirmed both the treaty and the supplementary articles appears in the preamble and the conclusion of his proclamation, when taken together; for the preamble shows that the supplementary articles are part of the treaty and the conclusion states that it confirms every clause and article of the treaty. The "Appendix" from the "Shreveport Centennial--100 years of Progress," included among the documents which you attached to your letter of January 15, seems to have intended to reproduce the proclamation on page 45 but by some inadvertence to have omitted the preamble. The preamble is worded as follows:

No patent has issued for the Larkin Edwards lands, the grant under the treaty having conferred upon Larkin Edwards a perfect title, which required no patent or other muniment from the Government to make it complete.

You will find further discussion of this grant in the enclosed decision of May 20, 1943, by Assistant Secretary Chapman on the petition of Effie Bryan Bagley and Maud Bryan Ford for the exercise of supervisory authority A-21497, 1715517 "F", pages l-2, 12-15).

Section 13 of the act of June 25, 1910, only authorizes withdrawals of Indian lands valuable for

1506

DEPARTMENT OF THE INTERIOR

MARCH 22, 1949

power or reservoir sites from disposition for any other purpose. Following such a withdrawal, it is still necessary to acquire title from the Indian owners.

Article VIII of the agreement of August 14, 1899, between the Crow Tribe and the United States, granting certain irrigation benefits to "persons, companies, or corporations," does not apply to the United States, because the sovereign cannot be regarded as a "person."

The act of February 5, 1948, providing for "rights-of-way" across Indian lands, does not apply to reservoir sites.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Acquisition of Yellowtail reservoir and dam site.

You have requested that I express an opinion on the question whether the Secretary of the Interior has authority under section 13 of the act of June 25, 1910 (36 Stat. 855, 858; 43 U.S.C., 1946 ed., sec. 148), to acquire for the United States the Yellowtail reservoir and dam site within the Crow Indian Reservation.

It is plain that the Secretary of the Interior has authority under section 13 of the act of June 25, 1910, supra, only to reserve a reservoir and dam site within an Indian reservation from disposition for any other purpose. The section does not vest in the Secretary any power to acquire for the United States the title to any such site.

At the time of the enactment of this provision, it was expected that many Indian reservations would be opened to disposal under the public-land laws. To prevent the alienation of lands which might be valuable as power or reservoir sites, Congress gave to the Secretary of the Interior authority to reserve such sites pending the enactment of legislation authorizing the construction of particular dams and reservoirs, and the acquisition of the reserved sites from the Indians. The mere reservation of a site does not, of course, deprive its owners of their title to the land. (See Solicitor's opinion M-30318, dated December 15, 1939.) It is still necessary to acquire the title from the Indian owners before the land can be used for the contemplated project.

It has now been suggested that the Yellowtail dam site might be acquired in accordance with article VIII of the agreement of August 14, 1899, between the Crow Tribe and the United States, as modified and ratified by the act of April 27, 1904 (33 Stat. 352), and that the Yellowtail reservoir site might be acquired in accordance with the act of February 5, 1948 (Public Law 407, 80th Cong.; 25 U.S.C.A., secs. 323-328). I do not believe, however, that either article VIII or the 1948 statute is applicable.

The benefits of this article cannot be obtained by the Government, in my opinion. They are confined to "persons, companies, or corporations," and it is apparent from the context that the United States is not a "person" within the meaning of the article. The term "person" normally refers to a natural person, and this must be especially so when the term is coupled, as here, with others which connote artificial persons. It has been said that "the ordinary dignities of speech" should require the mention of the United States by name. Davis v. Pringle, 268 U.S. 315, 318. The United States, to be sure, is a juristic person in the sense that it has capacity to sue upon its contracts and to vindicate its property rights. In common parlance,

1507

OPINIONS OF THE SOLICITOR

APRIL 20, 1949

however, the term "person" does not include the sovereign, and statutes employing the term are usually construed so as to exclude the sovereign. United States v. Fox, 94 U.S. 315, 321; United States v. Cooper Corp., 3 12 U.S. 600, 604.

Moreover, the other provisions of the agreement with the Crow Indians, as amended, confirmed, and supplemented by statute, are such that the United States is plainly excluded from the operation of article VIII. The agreement and related legislation provided for the cession to the United States of a portion of the Crow Reservation, and for the disposition of the ceded portions by the Government to settlers under the reclamation, homestead, townsite, and mineral-land laws. When article VIII is considered in connection with the related provisions of the agreement and statute, it is clear that this article was included for the benefit of settlers on the ceded lands, or companies or corporations claiming under them, and not for the benefit of the Government.

With regard to the act of February 5, 1948, supra, this statute authorizes the Secretary of the Interior to grant "rights-of-way for all purposes" across Indian lands. A grant under this act can only cover a right-of-way, and this office has declined to approve under the statute grants for such purposes as airports and reservoirs. It would certainly be stretching the statute beyond reason to hold that a reservoir site covering thousands of acres is a right-of-way. Accordingly, I must conclude that the 1948 act is not applicable to the problem now under consideration.

Agreements under Johnson-O'Malley Act--Social security benefits for reservation Indians--Indian welfare appropriations.

The provision of the Johnson-O'Malley Act authorizing the Secretary of the Interior to make contracts with States "for the * * * social welfare, including relief of distress, of Indians" and to expend under such contracts moneys appropriated by Congress "for the * * * social welfare, including relief of distress, of Indians" is sufficiently broad to cover an agreement with a State for the furnishing by the State to Indians on reservations of old-age assistance, aid to the needy blind, and aid to dependent children, which are the types of assistance contemplated by the Social Security Act.

The appropriation to the Department under the heading "Welfare of Indians" is broad enough to cover the financing by the Department, either directly or through the utilization of State machinery under the Johnson-O'Malley Act, of old-age assistance, aid to the needy blind, and aid to dependent children among Indians on reservations.

Inasmuch as Indians on reservations are entitled to assistance from the States under the Social Security Act to the same extent as other citizens, a special contract under the Johnson-O'Malley Act between the Secretary of the Interior and a State to secure for reservation Indians the very same assistance, to be financed in part out of Federal funds appropriated to this Department for purposes unconnected with the administration of the Social Security Act, would have the effect of partially relieving the State of its obligations under the Social Security Act.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Indian social security benefits

I have been requested to express an opinion on the question whether the problem of securing the payment of social security benefits in the form of assistance to needy Indians on reservations in Arizona and New Mexico, who have hitherto been denied such benefits by the respective States, may be solved by making formal agreements with these States under the Johnson-O'Malley Act of April 16, 1934 (48 Stat. 596), as amended (25 U.S.C., 1946 ed., secs. 452-55).

Two alternative forms of agreement under the Johnson-O'Malley Act are contemplated. One would be tripartite in character, the parties being the Secretary of the Interior, the State of New Mexico or Arizona, and the Federal Security Administrator; the other would be bilateral in character, the parties being the Secretary of the Interior and the State of New Mexico or Arizona. Under either form of agreement, applications for the various categories of public assistance under the Social Security Act and the related State welfare laws would be made to the State welfare agencies by Indian applicants who reside on reservations, and the State would process such applications, handling them in the same manner as all other

1508

DEPARTMENT OF THE INTERIOR

APRIL 20, 1949

applications of its citizens for such assistance and paying directly to the Indian applicants any benefits to which such applicants might be found to be entitled. The State would apply a small percentage of the funds needed to render assistance to reservation Indians. Under the tripartite form of agreement, the balance of the funds needed would be contributed in fixed proportions by the Social Security Administration of the Federal Security Agency from funds available to it under the Social Security Act for grants-in-aid to the States and by this Department from its Indian welfare appropriation. Under the bilateral form of agreement, the funds needed for reservation Indians, over and above the small percentage provided by the State, would be contributed by this Department from its Indian welfare appropriation. The percentage of the funds provided by the State pursuant to either type of agreement for the furnishing of assistance to Indians on reservations would be less than the share of the expense borne by the State in connection with the furnishing of assistance to its other citizens under the social security system.

The Johnson-O'Malley Act, in so far as material to a consideration of the present problem, authorizes the Secretary of the Interior to enter into a contract or contracts with any State or Territory or political subdivision thereof "for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians in such State or Territory, through the agencies of the State or Territory * * * and to expend under such contract or contracts, moneys appropriated by Congress for the education, medical attention, agricultural assistance, and social welfare, including relief in distress, of Indians in such State or Territory" (Italics added)

The primary purpose of the Johnson-O'Malley Act is to enable this Department to enlist the cooperation of States in rendering the social services mentioned in the act to Indians who are so inter mingled with the general population of a State that it is not practicable or economical for the Department to maintain separate services for them. Thus, the Senate Committee on Indian Affairs, in reporting on the measure while it was under consideration in the Congress, stated:

However, the scope of the legislation is not restricted to situations where Indians are intermingled with the remainder of the population of a State or Territory. Hence, although most of the Indians in Arizona and New Mexico reside on unallotted or closed reservations, these States are not excluded from the scope of the Johnson O'Malley Act, and a number of agreements based on the act have in fact been made with these States or their political subdivisions. Under these agreements, educational and medical services have been supplied to Indians.

With regard to the question whether an agreement may be made with a State under the Johnson O'Malley Act for the furnishing by the State to Indians on reservations of assistance falling within the various categories of assistance provided for in the Social Security Act, the cost to be borne in substantial part by this Department, it has been noted that the Johnson-O'Malley Act authorizes in extremely broad language the making of agreements with States to take care of the "social welfare" of Indians, "including the relief of distress." Moreover, the social welfare appropriations avail able to the Secretary of the Interior for the benefit of Indians have not been limited to particular forms of welfare or relief. On the contrary, these appropriations have always been of a general character. At the time of the enactment of the Johnson O'Malley Act in 1934, the Bureau of Indian Affairs used for the purpose of affording relief to Indians the appropriation for "general support and administration." The welfare appropriations for the fiscal years 1942 to 1946, inclusive, were those for "general support and rehabilitation of needy Indians in the United States." Beginning with the fiscal year 1947, money for this purpose has been appropriated for the "Welfare of Indians."

The language used by Congress in the Johnson-O'Malley Act is sufficiently broad, in my opinion, to cover an agreement with a State relating to the furnishing by the State to reservation Indians of the types of assistance contemplated by the Social Security Act, i.e., old-age assistance, aid to the needy blind, and aid to dependent children. I also believe that the language used in the appropriation items mentioned above has consistently been broad enough to cover the financing by this Department of such types of assistance to reservation Indians, either directly or through the utilization of State machinery under the Johnson-O'Malley Act.

Therefore, from the legal standpoint, I believe that it would be permissible for the Secretary of the Interior to enter into an agreement with a State under the Johnson-O'Malley Act whereby the State

1509

OPINIONS OF THE SOLICITOR

APRIL 20, 1949

would process, in accordance with the social security system, the applications for assistance submitted by its Indian citizens who reside on reservations and would make payments to such of these Indian applicants as appear to be entitled to assistance, and the Department would bear a fixed share of the cost out of funds appropriated to the Department for the "Welfare of Indians."

However, attention is called to the fact that, following the enactment of the Social Security Act on August 14, 1935 (49 Stat. 620), the Solicitor of this Department, in a memorandum dated April 22, 1936, and headed "The Applicability of the Social Security Act to Indians," expressed the view that needy Indians on reservations could not lawfully be excluded by the States from the public assistance benefits provided for in that act. The Solicitor's view was not, of course, binding on the Social Security Board or its successor, the Social Security Administration, but the same position has also been taken by the officials of that agency, who have always refused to approve State plans for the rendering of assistance to persons in need if such plans excluded the members of any particular race, including Indians. Indeed, the Social Security Administration now has under consideration the matter of withholding grants-in-aid to the States of Arizona and New Mexico because of their failure to extend the social security system to Indians on reservations. In connection with this matter, the Commissioner of the Social Security Administration recently made the following statement to the House Committee on Appropriations, which was conducting a hearing on the Supplemental Federal Security Agency Appropriation Bill for 1949:

Moreover, the House Committee, in reporting out the bill, made the following statement:

Therefore, Indians on reservations in New Mexico and Arizona are entitled to assistance from these States under the Social Security Act to the same extent as other citizens. Hence, a special contract under the Johnson-O'Malley Act between the Secretary of the Interior and New Mexico or Ari-

1510

DEPARTMENT OF THE INTERIOR

APRIL 20, 1949

zona to secure for reservation Indians the very same assistance, to be financed in substantial part out of Federal funds appropriated to this Department for purposes unconnected with the administration of the Social Security Act and the State's share of the expense to be proportionately less than that borne by the State in rendering comparable assistance to its other citizens, would have the effect of partially relieving the State of its obligation to reservation Indians under the Social Security Act. It may be that the discharge by New Mexico or Arizona of its full obligation to reservation Indians under the Social Security Act would, in view of the proportion of such Indians to the total population of the State, impose an undue burden upon the financial resources of the State. However, the problem of whether an attempt should be made to adjust this situation administratively through an agreement under the Johnson-O'Malley Act, rather than legislatively through the consideration by Congress of an amendment to the Social Security Act, involves an important question of policy which merits careful consideration.

The extent to which the Federal Security Administrator could properly join in an agreement of the sort discussed in this memorandum must be decided, of course, by the chief legal officer of the Federal Security Agency.

The question whether, after the approval of the sale by an Indian lessor to his lessee of allotted land covered by the lease, the lessor retained the right to collect the crop-share rental prescribed in the lease for the year in which the sale of the land was approved depends upon the terms of the lease contract and the time of the merger of the interests based upon the lease with the fee.

Memorandum
To:            Assistant Secretary Warne.
From:        The Solicitor
Subject:     Right of lessor of Indian allotment to collect rent after sale of allotment.

On April 15 you asked me to express an opinion concerning a legal question raised in a letter dated January 13, 1949, to Senator William Langer from Alexander Charette, a Turtle Mountain Chippewa Indian allottee, regarding the 1atter's share in the 1948 crop which was grown on his allotment.

It appears that the allottee, as lessor, entered into a farming lease with Lloyd or Floyd Elvsaas,¹ as lessee, for a term of five years beginning January 1, 1947. The lease provided for payment to the lessor of one-fourth of the crop each year as rental. The lease also provided as follows:

"In event this allotment is sold during the term of the lease, said lease will terminate at the close of the year in which the sale is approved. There is further agreed between the lessor and lessee, that in event of sale to some one other that the lessee, that the lessor will reimburse the lessee for any summer fallow work done the last year the land is used, at the rate of $3.00 per acre."

The land embraced in the lease was in fact sold to the lessee named above. The sale was approved by the Assistant Commissioner of Indian Affairs on June 24, 1948, and a patent in fee was issued to the purchaser on December 30, 1948.

The question presented is whether the Indian lessor is entitled to one-fourth of the 1948 crop.

The provision of the lease quoted above requires that this question be answered in the affirmative. The parties were cognizant of the fact that leased land might be sold during the term of lease to the lessee or to some other person, they made provision for such contingency in terms too clear to admit of doubt. The parties agree that, in the event of the sale of the land, the lease was to continue in full force until the close of the year in which the sale was approved by the appropriate Government official. This provision obviously was intended to benefit both parties, and, in so far as the lessor was concerned, its plain purpose was to preserve his right to receive the rent for that year notwithstanding the sale of the land, unless the lessor should convey this right in connection with the sale of the land. Here, there was no conveyance during the crop year 1948 of the lessor's right to receive rent under the lease. The proposed sale of the land by the lessor to the lessee was agreed upon and approved prior to the end of the crop year 1948, but the patent was not issued to the purchaser until December 30, 1948. Hence, the interests based upon the lease were not merged

^l The correspondence in the attached file of the Bureau of Indian Affairs refers to the lessee as Floyd Elvsaas, whereas he is shown in the lease as Lloyd Elvsaas. It is assumed that both names refer to the same person.

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OPINIONS OF THE SOLICITOR

MAY 24, 1949

It follows that the Indian lessor is entitled to receive as rent one-fourth of the crop for the year 1948.

The departmental order of September 19, 1934, temporarily withdrawing the surplus lands of the Colville Indian Reservation and of other Indian reservations from disposal of any kind until the matter of their permanent restoration to tribal ownership under the Indian Reorganization Act could be given appropriate consideration, was issued in the exercise of the Secretary's implied power temporarily to withdraw such lands, and was not issued under the act of June 25, 1910, authorizing the temporary withdrawal of public lands of the United States; and, therefore, the lands so withdrawn are not subject to the provision of the 1910 act which declares that land withdrawn under it shall be open to entry and location under the mining laws of the United States in so far as metalliferous minerals are concerned.

The fact that the Indians of the Colville Reservation voted on April 6, 1935, to exclude themselves from the operation of the Indian Reorganization Act, and thus made it impossible to accomplish the purpose for which the withdrawal of their surplus lands had been made in 1934, did not terminate the withdrawal as to such lands.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Mining locations on Colville surplus lands

The surplus lands of the Colville Indian Reservation are traceable to the act of March 22, 1906 (34 Stat. 80), which provided for the allotment of 80 acres to each person "belonging to or having tribal relations on said Colville Indian Reservation," for the classification of unallotted lands on the reservation as "irrigable lands, grazing lands, timber lands, mineral lands or arid lands," and for the disposal of the unallotted lands under the homestead, town site, mineral, timber, and reclamation laws, except for areas reserved for certain special purposes.

By the departmental order of September 19, 1934, the surplus lands of the Colville Indian Reservation, together with lands of other Indian reservations in the same category, were "temporily [sic] withdrawn from disposal 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 * * * can be given appropriate consideration."¹ The supplemental order of November 5, 1935, mentioned in the question, merely added the surplus lands of several Indian reservations to the list of such lands withdrawn by the order of September 19, 1934. It did not in any way affect the withdrawal of the surplus lands of the Colville Indian Reservation.

The principal legislation relating to temporary withdrawals is the act of June 25, 1910 (36 Stat. 847), as amended by the act of August 24, 1912 (37 Stat. 497; 43 U.S.C., 1946 ed., secs. 141-42), which authorizes the President temporarily to withdraw from settlement, location, sale, or entry "any of the public lands of the United States," subject to the qualification that all lands withdrawn under this act shall "at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals * * *." The President's power under this legislation has been delegated to the Secretary of the Interior.²

¹ The act of June 18, 1934 (48 Stat. 984; 25 U.S.C., 1946 ed.. sec. 461 et seq.), is commonly known as the Indian Reorganization Act.
² See Executive Order 9337, dated April 28, 1943 (8 F.R. 5516), which apparently was issued in confirmation of a practice that had developed whereby the Secretary of the Interior exercised the President's power to make temporary withdrawals of public lands of the United States.

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DEPARTMENT OF THE INTERIOR

MAY 24, 1949

It will be observed that the 1910 act refers to "public lands of the United States." With respect to the question whether this term is applicable to the surplus lands of the Colville Indian Reservation, it may be noted that section 6 of the act of March 22, 1906, supra, provided that the proceeds of the disposal of such lands should be deposited in the Treasury of the United States to the credit of the Colville Indians and should be expended for their benefit under the direction of the Secretary of the Interior, and that section 9 of the 1906 act expressly provided that the United States should act as trustee for the Indians in the disposal of their lands. The surplus lands of the Colville Indian Reservation, therefore, are Indian trust lands,
and, in a strict sense, they are not public lands of the United States. Ash Sheep Company v. United States, 252 U.S. 159.

I believe that, apart from authority derived by the Secretary of the Interior from the President for the making of temporary withdrawals of public lands of the United States under the 1910 act, the Secretary was vested with implied power, by virtue of his broad authority and responsibility in connection with the administration of Indian affairs, temporarily to withdraw the Indian trust lands involved in the order of September 19, 1934, from disposal of any kind if he regarded such action as necessary or advisable in order effectively to discharge his functions with respect to the administration of Indian affairs. The Secretary's implied power to make temporary withdrawals of lands in connection with the administration of Indian affairs was recognized and confirmed by the Congress in section 4 of the act of March 3, 1927 (44 Stat. 1347; 25 U.S.C., 1946 ed., sec. 398d), which, in prohibiting the executive branch of the Government from subsequently making "changes in the boundaries of reservations created by Executive order, proclamation, or otherwise for the use and occupation of Indians," declared in a proviso "That this shall not apply to temporary withdrawals by the Secretary of the Interior."

Any mandatory requirement in the act of March 22, 1906, that the Secretary of the Interior dispose of the surplus lands of the Colville Indian Reservation had been superseded prior to September 19, 1934, by the provision in section 3 of the Indian Reorganization Act of June 18, 1934 (25 U.S.C., 1946 ed., sec. 463), authorizing the Secretary "to restore to tribal ownership the remaining surplus lands of any Indian reservation * * *." In view of this authorization for the permanent restoration of Indian surplus lands to tribal ownership, it appears that the Secretary of the Interior was justified in utilizing his implied power by temporarily with drawing the Colville surplus lands and other similar Indian trust lands on September 19, 1934, from disposal of any kind in order to maintain the status quo until the matter of their permanent restoration to tribal ownership could be given appropriate consideration.

Therefore, I conclude that, in temporarily withdrawing on September 19, 1934, the surplus lands of the Colville Indian Reservation and of other Indian reservations, which are Indian trust lands, from disposal of any kind, the Secretary of the Interior was exercising his implied power temporarily to withdraw such lands; that he was not acting under the act of June 25, 1910; and, therefore, that the lands so withdrawn have not been and are not now subject to the provision of the 1910 act which declares that lands withdrawn under it shall be open to entry and location under the mining laws of the United States in so far as metalliferous minerals are concerned.

The Indians of the Colville Reservation voted on April 6, 1935, to exclude themselves from the operation of the Indian Reorganization Act. Be cause of this action by the Colville Indians, the restoration of the surplus lands of that reservation to tribal ownership, as contemplated at the time of the issuance of the order of September 19, 1934, could not be accomplished. (See 25 U.S.C., 1946 ed., sec. 478.) However, since a temporary withdrawal which was valid when made continues in operation until revoked by proper authority, notwithstanding the fact that the purpose of the withdrawal can no longer be realized (5 L.D. 432), the vote of the Colville Indians did not, ipso facto, terminate the temporary withdrawal order of September 19, 1934, as to the surplus lands of that reservation.

While the propriety, from an administrative standpoint, of continuing the temporary withdrawal of the Colville surplus lands during the years following the adverse vote of the Colville Indians on accepting the provisions of the Indian Reorganization Act may be open to serious question, recent developments have substantially affected the situation in this respect. On February 7, 1949, a bill (H.R. 2432) providing for the restoration to tribal ownership of the surplus lands of the Colville Indian Reservation was introduced in the 81st Congress. On May 9, the House Committee on Public Lands unanimously recommended the enactment of the bill, with some amendments which do not affect the restoration to tribal ownership of the lands covered by the bill. On May 16, the House passed the bill and transmitted it to the Senate, where a companion bill (S. 1021) is pending. Because of these developments, the continuation of the withdrawal of the surplus lands of the Colville Indian Reservation pending final action by

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OPINIONS OF THE SOLICITOR

MAY 31, 1949

the 81st Congress on the current legislative proposal regarding these lands would seem to be warranted.

Any previous statements by this office indicating that the withdrawal order of September 19, 1934, was issued under the act of June 25, 1910, are modified by this memorandum.

Under the act of May 23, 1930, as amended, which authorizes the exchange of lands in the Western Navajo Indian reservation for public lands of approximately equal value outside of the reservation, the value of the offered lands must be determined as of a time not earlier than the date of conveyance of the offered lands to the United States.

Memorandum
To:            Assistant Secretary Warne
From:        The Solicitor
Subject:     Indian Reservation Exchange Applications of Daniel W. Campbell.

You have asked me if there is any legal objection to Secretarial approval of the Indian reservation exchange applications of Daniel W. Campbell (Phoenix 080629 and 080630).

These applications were filed on June 17, 1942, under the act of May 23, 1930 (46 Stat. 378), as amended (46 Stat. 1204), which added certain areas of land to the Western Navajo Indian reservation. Section 2 of the Act provided in part as follows:

"That upon conveyance to the United States of a good and sufficient title to any privately owned land within the areas described in this Act, the owners or their assigns thereof are hereby authorized under regulations of the Secretary of the Interior, to select at any time within fifteen years after the approval of this Act, from the surveyed, unappropriated; unreserved, nonmineral public lands of the United States, in the State of Arizona, lands approximately equal in value to the lands thus conveyed, such values to be determined by the Secretary of the Interior * * * ."

On September 26, 1932, the Campbell-Francis Land & Livestock Company, the predecessor in interest of Mr. Campbell, proposed to deed to the United States "all of the lands" owned by it in the areas described in the act in return for "a commitment of some sort of their present appraised value." The proposal was approved by Assistant Secretary Edwards on October 25, 1932, in a decision which also approved appraisals of the company's lands, apparently at $3.50 per acre, and stated that such appraisals would constitute the basis with which the value of lands selected within the time allowed would be compared. The decision was clearly premised on the assumption that deeds covering all the lands owned by the company within the particular areas would be promptly submitted in accordance with the proposal.

The deeds to the lands offered by Mr. Campbell in the two applications now under consideration were executed on October 29, 1942, filed with the district land office on November 17, 1942, and recorded on August 21, 1948. Moreover, it does not appear that the company deeded to the United States all its lands involved in the decision of October 25, 1932.

The question at issue is whether the 1932 valuation of the offered lands constitutes a proper basis for the exchanges proposed in the pending applications.

It would be reasonable to construe section 2 of the 1930 act as authorizing the use of an appraisal of offered land made at the time when the land was conveyed as a basis for comparison with the value of selected land, even though the selection was made sometime after the conveyance of the offered land but within fifteen years after May 23, 1930. However, there is nothing in the act or in reason which would authorize or justify the use of an appraisal of offered land made approximately 10 years prior to the conveyance of such land to the United States. An appraisal made several years earlier than the date of the conveyance is obviously irrelevant in fixing the value of the offered land for the purpose of effectuating an exchange on an equal value basis.

It seems to be clear that the action of Assistant Secretary Edwards on October 25, 1932, is not binding with respect to the offered lands involved in these applications because his action was premised upon the anticipated conveyance of all the base lands in 1932. The conveyances involved here were not made until 1942.

For the reasons indicated above, I believe that the use at this time of the 1932 valuation of $3.50

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DEPARTMENT OF THE INTERIOR

MAY 31, 1949

per acre is unauthorized unless it represents the actual value of the base lands at the time when
the conveyances were made in 1942. In the absence of information to that effect, I am of the opinion that the pending exchange applications should not be approved.

The tribal lands of the Northern Cheyenne Tribe of the Tongue River Reservation cannot be leased for the development of oil and gas without competitive bidding.

An Indian Tribe which has organized and incorporated under the Indian Reorganization Act can issue oil and gas leases on tribal lands without competitive bidding if, and only if, the constitution or charter of the tribe expressly provides for such leasing on a noncompetitive basis.

Neither the constitution nor the charter of the Northern Cheyenne Tribe specifies what procedure shall be followed in the issuance of tribal oil and gas leases, and, accordingly, the method of competitive bidding must be followed.

Memorandum
To:            The Under Secretary
From:        The Solicitor
Subject:     Oil and gas leases of tribal lands of Northern Cheyenne Tribe

You have requested that I express an opinion on the question whether the tribal lands of the Northern Cheyenne Tribe of the Tongue River Reservation may be leased for the development of oil and gas without competitive bidding.

The leasing of tribal lands for any mining purpose is governed by the act of May 11, 1938 (52 Stat. 347, 25 U.S.C., 1946 ed., secs. 396a-3969), which is applicable to all Indian reservations, with certain specified exceptions. The Tongue River Reservation is not included among the reservations excepted from the provisions of the act.

Section 1 of the act provides that leases of tribal lands for mining purposes may be issued, with the approval of the Secretary of the Interior, "by authority of the tribal council or other authorized spokesmen for such Indians." Section 2 of the act expressly provides that a lease for the development of oil or gas may be issued only after competitive bidding.

The Northern Cheyenne Tribe of the Tongue River Reservation is organized and incorporated under sections 16 and 17 of the act of June 18, 1934 (commonly known as the Indian Reorganization Act; 25 U.S.C., 1946 ed., sets. 476, 477). However, neither the constitution nor the charter of the tribe prescribes any particular method for the leasing of tribal lands for oil and gas mining purposes. Section 5 (b) (3) of the corporate charter of the tribe merely authorizes the making of oil and gas leases for such periods as may be authorized by law. Moreover, this particular provision is preceded by a general provision declaring that any corporate powers granted by section 5 of the charter shall be exercised "subject to any restrictions contained in the Constitution and laws of the United States * * * ".

It is clear that the charter of the Northern Cheyenne Tribe does not dispense with the requirement for competitive bidding contained in the 1938 leasing statute with respect to oil and gas leases. On the contrary, the charter appears to incorporate this requirement by reference.

It is only when the organic law of an Indian tribe which has taken advantage of sections 16 and 17 of the Indian Reorganization Act specifies what procedure shall be followed in the making of tribal oil and gas leases that the procedure so specified must be followed to the exclusion of the statutory method.

It is my opinion, therefore, that the tribal lands of the Northern Cheyenne Tribe of the Tongue River Reservation cannot be leased for the development of oil and gas unless the leasing is preceded by competitive bidding.

I am aware that in a memorandum dated June 6, 1941, the Acting Solicitor of the Department expressed the view that the tribal lands of the Black feet Indian Reservation could be leased for oil and gas mining purposes without competitive bidding. The Blackfeet Tribe, like the Northern Cheyenne

1515

OPINIONS OF THE SOLICITOR

AUGUST 16, 1949

Tribe, is organized and incorporated under the Indian Reorganization Act. In so far as the issuance of oil and gas leases on tribal lands is concerned, the provisions of the constitutions and charters of these two tribes are similar. Accordingly, to the extent that the views expressed by the Acting Solicitor in the memorandum of June 6, 1941, are inconsistent with the views expressed in this opinion, they should no longer be followed.

The coastal waters of the territories are under the exclusive jurisdiction of the United States, and the lands beneath such waters belong to the United States and are subject to its disposition.

Grants to private persons of public lands within a territory, though bordering on or bounded by coastal waters, convey no title or right below the high-water mark.

A public land order reserving for the use of Alaskan natives a specified area of land, subject to any valid existing claim or right, and the waters extending 3,000 feet from the shore line of such area, includes waters contiguous to privately owned tracts of land which are situated within, and adjoin the shore line of, the area described in the order.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Public Land Order No. 128

This responds to the request for an opinion as to whether the phrase, "the waters adjacent there to", as it is used in section 2 of Public Land Order No. 128, dated May 22, 1943,¹ includes waters contiguous to privately-owned lands situated within the exterior boundaries of the Karluk Indian Reservation in Alaska.

Section 1 of Public Land Order No. 128 described by metes and bounds an area in Alaska bordering on Shelikof Strait, and section 2 then designated "The area described above and the waters adjacent thereto extending 3,000 feet from the shore line at mean low tide" as an Indian reservation for the use and benefit of the native in habitants of the village of Karluk and vicinity. This designation was made pursuant to section 2 of the act of May 1, 1936 (48 U.S.C., 1946 ed, sec. 358a). A proviso in section 2 of the order declared:

Public Land Order No. 128, including the portion of the order relating to waters, was held to be valid by the Supreme Court in the case of Hynes v. Grimes Packing Co. et al., 337 U.S. (preliminary print) 86 (May 3 1, 1949).

It is understood that some privately-owned tracts of land, upon which improvements have been erected by the owners, are situated along the shore line described in Public Land Order No. 128 and, hence, are within the exterior boundaries of the area mentioned in the order. However, these particular tracts of land actually not affected by the order, in view of the proviso quoted above. The question, therefore, is whether the waters extending 3,000 feet from the shore line of these privately-owned tracts, as well as the waters contiguous to the shore line of the Indian lands or public lands within the area described in the order, constitute part of the Karluk Indian Reservation, or whether only those waters adjoining the shore line of lands which themselves were reserved for native use by the order are to be regarded as within the reservation.

From the standpoint of syntax, the phrase "the waters adjacent thereto" in section 2 of Public Land Order No. 128 refers to "The area described above", and the latter phrase refers to the whole area enclosed within the boundaries previously outlined in section 1 of the order, irrespective of the nature of the ownership of the various tracts of land which comprise such area. Hence, under the plain language of section 2, waters extending 3,000 feet from the shore line of the tracts of privately owned lands within the area outlined in section 1 are reserved for Indian use to the same extent as waters contiguous to Indian lands or public lands within such area, unless there is some principle or provision of law which necessarily removes from the scope of the phrase, "the waters adjacent there to", those waters which adjoin the privately-owned lands.

I am not aware of any principle or provision of law which would restrict the scope of the phrase, "the waters adjacent thereto", in the manner mentioned above. The coastal waters and the navigable inland waters of the territories of the United States are under the exclusive jurisdiction of the United States, and the lands beneath such waters

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DEPARTMENT OF THE INTERIOR

AUGUST 16, 1949

belong to the United States and are subject to its disposition.² Moreover, grants to private persons of public lands within a territory, though bordering on or bounded by coastal waters or navigable inland waters, convey, of their own force, no title or right below the high-water mark.³

No claim apparently has been or is being made that any interest in the waters involved here, or in the lands beneath them, was acquired from the United States by the owners of the privately owned tracts of land which adjoin the shore line mentioned in Public Land Order No. 128. Hence, the coastal waters and submerged coastal lands contiguous to these privately-owned tracts were subject to being reserved under the authority of the United States at the time of the issuance of Public Land Order No. 128, and such authority had been vested by the Congress in the Secretary of the Interior (Hynes v. Grimes Packing Co. et al., supra).

It may be noted in this connection that the coastal waters and submerged coastal lands extending 3,000 feet from the shore line of the privately owned tracts previously mentioned actually are "adjacent" (through not contiguous) to upland areas which were reserved for the Karluk natives in Public Land Order No. 128. Uplands and submerged lands are adjacent "when they lie close to each other, but not necessarily in actual contact" (Webster's New International Dictionary, 2nd ed., unabridged).

It is my opinion, therefore, that the phrase, "the waters adjacent thereto", as used in section 2 of Public Land Order No. 128, includes waters contiguous to privately-owned lands situated within the exterior boundaries of the Karluk Indian Reservation in Alaska.

ACQUISITION OF YELLOWTAIL RESERVOIR AND
DAM SITE UNDER THE PROVISIONS OF THE
FLOOD CONTROL ACT

The Yellowtail reservoir and dam site, which is tribal land, constituting a part of the Crow Indian Reservation in Montana, may not be acquired by the Secretary of the Interior from the Crow Tribe under existing legislation.

Acquisition of the site is not authorized by the Flood Control Act of December 22, 1944, as amended by section 18 of the Flood Control Act of July 24, 1946.

The provision in House Document 475, relating to the acquisition of title to reservoir sites constituting a part of Indian tribal lands, which provision was approved by the Flood Control Act of December 22, 1944, and, therefore, has the force of law, is applicable only to projects in the Missouri River Basin to be undertaken by the Secretary of the Army.

Prior opinion of the Solicitor dated March 28, 1949, holding that the site may not be acquired in accordance with Article VIII of the agreement of August 14, 1899, between the Crow Tribe and the United States, or in accordance with the act of February 4, 1948, is adhered to.

Memorandum
To:            The Secretary
From:        The Acting Solicitor
Subject:     Acquisition of Yellowtail reservoir and dam site

You have requested an opinion on the question whether the Yellowtail reservoir and dam site, which is tribal land, constituting a part of the Crow Indian Reservation in Montana, may be acquired by the Secretary of the Interior from the Crow Tribe under existing legislation.

This office expressed the opinion in its memorandum of March 28 that the needed site could not be acquired either in accordance with Article VIII of the agreement of August 14, 1899, between the Crow Tribe and the United States, as modified and ratified by the act of April 27, 1904 (33 Stat. 352), or in accordance with the act of February 5, 1948 (Public Law 407, 80th Cong.; 25 U.S.C.A., secs. 323-328). This office is unaware of any reason for not adhering to this opinion.

It has also been suggested, however, that the needed site may be obtained in accordance with the Flood Control Act of December 22, 1944 (58 Stat. 887, 891), as amended by section 18 of the Flood Control Act of July 24, 1946 (60 Stat. 653).

Section 9 of the Flood Control Act of December 22, 1944, in its entirety, provides:

² Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87 (1918); Shively v. Bowlby, I52 U.S. 1. 48. 58 (1894). See also United States v. California, 332 U.S. 19 (1947); 56 I.D. 110. 114 (1937). Shively v. Bowlby supra (p. 58); Columbia Canning Co. et al., v. Hampton et al., 161 Feel. 60 (C.C.A. 9th. 1908); Cf. Moore v. United States, 157 F. (2d) 760, 765 (C.C.A. 9th. 1946). cert. den. 330 U.S. 827.

1517

OPINIONS OF THE SOLICITOR

OCTOBER 7, 1949

ond session, as revised and coordinated by Senate Document 247, Seventy-eighth Congress, second session, are hereby approved and the initial stages recommended are hereby authorized and shall be prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements.

"(b) The general comprehensive plan for flood control and other purposes in the Missouri River Basin approved by the Act of June 28, 1938, as modified by subsequent Acts, is hereby expanded to include the works referred to in paragraph (a) to be undertaken by the War Department; and said expanded plan shall be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers.

"(c) Subject to the basin-wide findings and recommendations regarding the benefits, the allocations of costs and the repayments by water users, made in said House and Senate documents, the reclamation and power developments to be undertaken by the Secretary of the Interior under said plans shall be governed by the Federal Reclamation Laws (Act of June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or supplementary thereto), except that irrigation of Indian trust and tribal lands, and repayment therefore, shall be in accordance with the laws relating to Indian lands.

"(d) In addition to previous authorizations there is hereby authorized to be appropriated the sum of $200,000,000 for the partial accomplishment of the works to be undertaken under said expanded plans by the Corps of Engineers.

"(e) The sum of $200,000,000 is hereby authorized to be appropriated for the partial accomplishment of the works to be undertaken under said plans by the Secretary of the Interior."

House Document 475 mentioned in section 9 (a) of the Flood Control Act of December 22, 1944, contains the following statement (at p. 4):

In view of its approval by the Flood Control Act of 1944, this statement has the force of law. It must be determined, however, whether it was intended to supply authority for the acquisition of the Yellowtail reservoir and dam site or, for that matter, for the acquisition of other sites which might be needed in connection with the construction of the projects in the Missouri River Basin to be undertaken by the Secretary of the Interior.

The preparation of a plan for flood control in the Missouri River Basin was first approved by the Flood Control Act of June 28, 1938 (52 Stat. 1215, 1218), which provided that the reservoirs were to be selected and approved by the Chief of Engineers of the War Department. House Document 475 is solely the plan of the Corps of Engineers in the War Department for the Development of the Missouri River Basin. This plan did not include the construction of the Yellowtail reservoir and dam, and it is not mentioned therein. The Yellowtail project is first mentioned in Senate Document 191, mentioned in the Flood Control Act of 1944 (at p. 50), and included in the list of projects to be found on page 53 of the document, which is, however, solely the plan of the Bureau of Reclamation of this Department for the development of the Missouri River Basin. To reconcile the plans of the Corps of Engineers and the Bureau of Reclamation, there was appointed a committee consisting of two representatives from each of these agencies, and Senate Document 247, mentioned in the Flood Control Act of 1944, was the result of their labors. This document referred to the plan of the Corps

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DEPARTMENT OF THE INTERIOR

OCTOBER 7, 1949

of Engineers and the plan of the Bureau of Reclamation as "separate plans" (p. 1). Moreover, the committee stated also that it conceived its function to be "to review the engineering features of the two plans with a view of reconciliation between them." No attention was therefore paid by the committee to the problems of land acquisition in connection with the construction of contemplated reservoirs and dams, and no plan for such acquisitions was mentioned by the committee. Senate Document 247 can, therefore, not be said either to have "revised" or "coordinated" House Document 475 in this respect.

Indeed, it is plain from the terms of the statement in House Document 475, governing the acquisition of Indian tribal lands, that it was intended to confer authority to acquire such lands upon the Secretary of War only. The Secretary of the Interior was, to be sure, to approve any conveyances by Indian tribes in the Missouri River Basin but this provision merely reflects the traditional role of the Secretary of the Interior as the official charged with general supervision of all Indian tribes. Even if it were possible to find in the silence of the interdepartmental coordinating committee the implication that the authority of the Secretary of War to acquire Indian tribal lands was to extend to all the projects in the Missouri River Basin, including those to be constructed by the Secretary of the Interior under the reclamation laws, the sites required in connection with Interior Department projects would have to be acquired by the Secretary of War (now Secretary of the Army) for the Secretary of the Interior with appropriations made to the latter. This certainly would be a highly anomalous governmental procedure.

I am of the opinion, therefore, that there is no existing legislation under which the Secretary of the Interior may acquire from the Crow Tribe the site needed for the Yellowtail reservoir and dam.

A railroad company, under a grant to it of a right-of-way across Indian tribal lands for station grounds under a Federal statute, may permit a third person to erect buildings and other structures on such grant in order to facilitate the convenient receipt and delivery of freight, so long as the full exercise of the railroad's franchise is not interfered with and a free and safe passage is left for the carriage of freight and passengers.

Such a use of station grounds by a third person may be granted for a short term only, or it must be subject to cancellation upon short notice by the railroad company.

Such a use of the station grounds would not require the consent of the Indians, because it would be within the power of the railroad.

Memorandum
To:            Under Secretary Chapman
From:        The Solicitor
Subject:     Lease of railroad's station grounds at Parker, Arizona

You have requested that this office express an opinion on the question whether the Atchison, Topeka and Santa Fe Railway Company may lease a portion of its station grounds at Parker, Arizona, to the Miller-Johns Company of Alhambra, Arizona, a heavy shipper of vegetables on the line of the railroad, for the purpose of enabling the shipper to erect an ice plant, vegetable packing shed, and box factory in close proximity to the railroad.

A right-of-way in the Colorado River Indian Reservation was originally granted to the Arizona and California Railway Company under the general railroad right-of-way act of March 2, 1899 (30 Stat. 990; 25 U.S.C., 1946 ed., sec. 312 et seq.). That right-of-way included an area for station buildings, depots, and other railroad facilities. However, because of the limited area which could be granted for station grounds and terminal facilities in accordance with the 1899 act, additional lands for such purposes, not exceeding 40 acres adjacent to the railroad company's approved right-of-way in the Colorado River Indian Reservation, were granted by Congress¹ to the Arizona and California Railway Company,² subject to the approval of the Secretary of the Interior and the payment by the railroad company of compensation in the manner provided for in section 3 of the 1899 act. The railroad company accordingly selected 40 additional acres, which appear to constitute the area upon which the proposed buildings involved in the present question are to be located. The railroad company's selection was approved by the

¹ Act of March 16, 1908 (35 Stat. 43).
² It is assumed that the Atchison, Topeka and Santa Fe Railway Company is the successor in interest to the Arizona and California Railway Company.

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OPINIONS OF THE SOLICITOR

OCTOBER 21, 1949

Department on June 10, 1908, and the damages assessed for the occupation of the are were placed to the credit of the Indian tribes residing on the Colorado River Reservation.

It has been held by the courts that a railroad company has the exclusive control of the land with the lines of its railway grant, and that it may, in its discretion, erect or permit others to erect buildings or other structures upon its grant in order to facilitate the convenient receipt and delivery of freight, so long as the full exercise of the company's franchise is not interfered with and a free and safe passage is left for the carriage of freight and passengers. See Hartford Fire Insurance Co. v. Chicago, Milwaukee and St. Paul Ry. Co., 175 U.S. 91, 99 (1899); Grand Trunk Ry. Co. v. Richardson et al., 91 U.S. 454, 468-469 (1875); Oregon Short Line Ry. Co. v. Ada County et al., 18 F. Supp. 842 (S.D. Ida1937), aff'd, 97 F. (2d) 666; Clear Water Short Line Ry. Co., 29 L. D. 569; Cf. Missouri Pacific Ry. Co. v. Nebraska, 164 U.S. 403, 415 (1896).

The fact that the proposed lessee in the present instance is a heavy shipper of vegetables over the railroad's line and that the particular location is desired because of its close proximity to the railroad would, in the absence of information to the contrary, serve as a basis for assuming that the erection of the proposed structures would be designed to facilitate the shipment of the Miller-Johns Company's vegetables over the railroad. If that is correct, the proposed use of a part of the station grounds for such purpose would be permissible under the rulings cited above.

However, a railroad company does not have the power to grant an unlimited use of its right-of-way by another person for structures to facilitate the shipment of goods, because the railroad company is not at liberty to alienate any part of the right-of-way. Grand Trunk Railway Company v. Richardson, supra (p. 468). In the present instance, therefore, it would be necessary for the railroad to avoid the granting of an unlimited right to the Miller-Johns Company and, instead, to issue a lease for a temporary or short term only, or to provide in the lease that the use which the Miller-Johns Company will make a portion of the right-of-way shall be subject to cancellation upon short notice at the option of the railroad. See Grand Trunk Railway Company v. Richardson, supra; City of Knoxville v. Kaiser, 33 S.W. (2d) 411 (1930); Clark v. St. Louis I. M. & S. Ry. Co., 201 S.W. 111 (1918); Cf. Mitchell v. Illinois Cent. Ry. Co., 51 N.E. (2d) 271, 272 (1943); Weir et al. v. Standard Oil Co. et al., 101 So. 290 (1924).

The granting by the railroad company to the Miller-Johns-Company of a lease along the line indicated in the preceding paragraph would not require the consent of the Indians, because such a grant would be within the power of the railroad and, therefore, would not terminate the estate.

Members of the Nez Perce Tribe of Indians who were not granted trust patents to the allotted lands prior to May 8, 1906, and who have not received fee patents for such lands may engage in hunting, fishing, and trapping on tribal lands or trust allotments within the exterior boundaries of the Nez Perce Reservation in the State of Idaho without observing the provisions of the State conservation laws.

The State of Idaho could not, by stocking the reservation with fish and game, acquire the power to regulate hunting, fishing, and trapping by the Nez Perce Indians on the reservation.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Hunting, fishing, and trapping rights of the Nez Perce Indians.

This responds to your request for an opinion on the question whether members of the Nez Perce Tribe of Indians who were not granted trust patents to their allotted lands prior to May 8, 1906, and who have not received fee patents for such lands may engage in hunting, fishing, and trapping on tribal lands or trust allotments within the exterior boundaries of the Nez Perce Indian Reservation in the State of Idaho without observing the provisions of the State conservation laws.

The significance of the date, May 8, 1906, in connection with questions of State jurisdiction over Indians on reservations derives from the fact that section 6 of the General Allotment Act of February 8, 1887 (24 Stat. 390), which had subjected allottees, as soon as trust patents were issued to them, to the civil and criminal laws of the State or Territory in which they happened to reside, was amended by the act of May 8, 1906 (34. Stat. 182,

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DEPARTMENT OF THE INTERIOR

OCTOBER 7, 1949

25 U.S.C., 1946 ed., sec. 349), in such a way as to subject allottees to State laws only after fee patents have been issued to them.

Thus, it has been held that allottees who received trust patents prior to May 8, 1906, are subject to the criminal jurisdiction of the States of their residence to the same extent as non-Indians (United States v. Kiya, 126 Fed. 879 (D.N.D., 1903), and In re Now-ge-zhuck, 76 Pac. 877 (Kan., 1904); and that allottees who have received patents in fee to allotted lands at any time are similarly subject to State criminal jurisdiction (Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th, 1921); Kitto v. State, 152 N.W. 380 (Neb., 1915); State v. Big Sheep, 243 Pac. 1067 (Mont., 1926); State v. Monroe, 274 Pac. 840 (Mont., 1929); and People v. Pratt, 80 P. 2d 87 (Calif., 1938). In some of these cases, State criminal jurisdiction has been upheld notwithstanding the existence of Federal statutes punishing the same crimes. In State v. Bush, 263 N.W. 300 (Minn., 1935), the court upheld the conviction of a patent-in-fee Indian who had taken muskrat on reservation land in violation of the State conservation laws; and, in 58 I.D. 455 (1943), this office held that an Indian allotted prior to May 8, 1906, could be convicted by violating the game laws of South Dakota, although he had hunted on reservation land.

Apart from Indians who come within the categories mentioned above, however, both State and Federal courts, as well as this office, have held that the States cannot regulate the right of Indians to hunt, fish, and trap on tribal lands and trust allotments. See State v. Cooney, 80 N.W. 696 (Minn., 1899); Cohen v. Gould, 225 N.W. 435 (Minn., 1929); State v. Cloud, 228 N.W. 611 (Minn., 1930); State v. Johnson, 249 N.W. 284 (Wis., 1933); Pioneer Packing Co. v. Winslow, 294 Pac. (Wash., 1930); United States v. Sturgeon, Fed. Gas. No. 16,413 (D. Nev. 1879); In re Blackbird, 109 Fed. 139 (W.D. Wis., 1901); In re Lincoln, 129 Fed. 247 (N.D. Calif., 1904); United States ex rel. Lynn v. Hamilton, 233 Fed. 685 (W.D. N-Y., 1915); 56 I.D. 38 (1936) ; 57 I.D. 295 (1941) ; 58 I.D. 331 (1943). The power of the States to apply their conservation laws to Indians taking fish and game on their own reservations is excluded (in the absence of Congressional consent) both by the Federal control of the reservations and by the existence of tribal sovereignty, subject to such control.

The Nez Perce Indian Reservation is not, in this respect, in any special category. It is true that the Supreme Court of Idaho, in applying the State criminal law to a case of larceny by a Nez Perce Indian who had received an allotment upon the Nez Perce Reservation prior to 1906, apparently regarded the cession to the United States of part of the reservation under the agreement of May 1, 1893, between the Nez Perce Indians and the United States, ratified by the act of August 15, 1894 (28 Stat. 327), and the allotment of the remainder of the reservation under legislation conferring citizenship upon the allottees and conferring general civil and criminal jurisdiction over allottees upon the State, as having effected a termination of the reservation, for the court referred to the reservation as the "former" Nez Perce Indian Reservation (State v. Lott, 123 Pac. 491 (1912). However, the cession of part of the reservation to the United States could not have the effect of removing the remainder of the area, which was retained for Indian use, from the category of an Indian reservation; and the existence of the reservation was not terminated by the allotment of the reservation lands to the Indians under trust patents (United States v. Celestine, 215 U.S. 278 (1909). Hence, in the absence of Congressional action discontinuing the Nez Perce Indian Reservation, that reservation must be regarded as still being in existence. Presumably, the Supreme Court of Idaho itself no longer regards the Nez Perce Indian Reservation as having been terminated (see State v. McConville, 139 P. 2d 485 (1943).

I am of the opinion, therefore, that members of the Nez Perce Tribe of Indians who did not receive trust allotments prior to 1906 and who have not received patents in fee to their allotments may engage in hunting, fishing, and trapping on tribal lands or trust allotments within the exterior boundaries of the Nez Perce Indian Reservation in Idaho without observing the provisions of the conservation laws of the State of Idaho.

As for your subsidiary question, whether the State of Idaho could apply its conservation laws to the Indians of the Nez Perce Reservation if the State stocked the reservation with fish and game, it is plain that this question must be answered in the negative. In the modern world, property and sovereignty have been regarded as distinct concepts. The power to regulate the taking of fish and game is an aspect of sovereignty, and the sovereignty of a State does not (in the absence of consent by Congress) extend to the members of an Indian tribe on an Indian reservation. Moreover, the State cannot assert ownership of fish and game with which it may stock a particular area, for the rule has long been recognized that there is no property in fish and game once held captive but since returned to a state of nature. They are regarded as ferae naturae.

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OPINIONS OF THE SOLICITOR

NOVEMBER 16, 1949

Capacity of Indian Group to Submit Claims--Acceptance of Government Employment by Attorney.

Where an attorney's contract to prosecute the claims of a group of Indians before the Indian Claims Commission has been approved, the rescission of the approval would not be justified on the ground of doubt as to whether the group is an "Indian tribe, band, or other identifiable group of American Indians," within the meaning of those terms as used in the Indian Claims Commission Act.

The fact that the attorney entered the employ of the Government subsequent to the execution of the contract incapacitated him from performing his duties under the contract and would form a proper basis for the termination of the contract.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Cancellation of the approval of an attorney's contract to prosecute Indian claims

My opinion has been requested on the question whether the Commissioner of Indian Affairs may rescind the approval given by the Acting Commissioner to a contract between Roy T. Mobley, an attorney of Alamagordo, New Mexico, and the Chiricahua and Warm Springs Apache Indians, retaining the attorney to prosecute the claims of these Indians before the Indian Claims Commission.

The contract, which was executed on March 5, 1948, was approved on January 7, 1949, by the Acting Commissioner of Indian Affairs pursuant to section 2103 of the Revised Statutes of the United States (now 25 USC., 1946 ed., sec. 81) and section 15 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1053, 25 U.S.C., 1946 ed., sec. 70n), under a delegation of authority made to the Commissioner of Indian Affairs in Secretarial Order No. 2252, dated September 9, 1946 (11 F.R. 10296).^l

Prior to the approval of this contract, the Commissioner had approved on July 15, 1947, under the same authority, a contract executed on January 27, 1947, between Grady Lewis, an attorney of Washington, D.C., and the Fort Sill Apache Indians of the State of Oklahoma, under which the attorney was to prosecute the claims of these Indians before the Indian Claims Commission.

Originally, both of the groups of Indians mentioned above constituted a single group known as the Fort Sill Apaches. They were the survivors or descendants of a band of Chiricahua and Warm Springs Apache Indians who, having engaged in hostilities against the United States, were eventually imprisoned at Fort Sill in Oklahoma. When they were finally released in 1913, a majority of these Indians settled on the Mescalero Reservation in New Mexico, while the rest remained at Fort Sill, Oklahoma.²

The approval of the contract between the Chiricahua and Warm Springs Apache Indians and Mr. Mobley appears to have been questioned by Mr. Lewis on the ground that the Chiricahua and Warm Springs Indians, who are now members of the Apache Tribe of the Mescalero Reservation in New Mexico, are not qualified as "an Indian tribe, band, or other identifiable group of American Indians" to prosecute claims against the United States under the Indian Claims Commission Act.

As indicated in my opinion of March 17, 1948 (M-35029), the function of making an authoritative determination of the question whether a particular group of Indians is a qualified litigant under the Indian Claims Commission Act is vested in the Indian Claims Commission. The disapproval of a contract, or the cancellation of the approval of a contract, once given, on such a ground would deprive the group of the opportunity of having the question of its competency as a party considered by the Commission and by the courts on appeal. For this reason, it was suggested in the opinion of March 17, 1948, that it would be permissible for the Commissioner of Indian Affairs to approve a contract without attempting to determine the question of status, by couching his approval in language reserving the question of the status of the particular group for future determination by the Commission. The Mobley contract was approved with appropriate qualifying language. Accordingly, the question of the status of the group under the Indian Claims Commission Act becomes one properly for determination by the Commission.

The approval of the contract between Mr. Mobley and the Chiricahua and Warm Springs Apache Indians is also questioned by Mr. Lewis on the ground that those Indians do not have any claims

¹ On August 15, 1949, Mr. Mobley filed petition No. 48 on behalf of the Chiricahua and Warm Springs Apaches with the Indian Claims Commission.
² On May 26, 1948, Mr. Lewis filed a petition (No. 30) with the Indian Claims Commission, in which the claims of both groups of Indians are asserted.

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DEPARTMENT OF THE INTERIOR

NOVEMBER 16, 1949

which are separable from the claims of the Fort Sill Apaches and, therefore, that the prior contract between the Fort Sill Apaches and Mr. Lewis vested in Mr. Lewis the exclusive authority to prosecute the claims of both groups of Indians before the Indian Claims Commission. This question, like that pertaining to the status of the Chiricahua and Warm Springs Apache Indians, appears to be properly determinable by the Commission. The authority of the Department under section 15 of the Indian Claims Commission Act to approve or disapprove the contracts of attorneys seeking to represent Indian tribes, bands, or groups before the Indian Claims Commission was conferred upon the Department for the purpose of safeguarding Indians from overreaching. Action upon the claims presented to the Indian Claims Commission by attorneys whose contracts have been approved by the Department is entrusted entirely to the Commission, which is empowered by its governing statute "to hear and determine * * * claims against the United States." In the exercise of its jurisdiction over the proceedings before it, it would seem to be the function of the Commission to determine, subject to judicial review, the nature and extent of the claims which may be asserted by attorneys in consequence of their employment under contracts approved by this Department. Mr. Lewis thus has an adequate forum in the Indian Claims Commission itself for the determination of the point discussed in this paragraph. He might attempt to intervene in the proceeding instituted before the Commission by Mr. Mobley and request either that such proceeding be dismissed or that it be consolidated with the proceeding instituted by him.

A more difficult question arises from the fact that it has been reported to this office that Mr. Mobley was employed on November 1, 1948, as an attorney by the Department of the Air Force, and that he is still employed by that agency.

As is well known, Federal statutory provisions impose restrictions or penalties upon present or former officers or employees of the United States with respect to participating or agreeing to participate in the prosecution of claims against the United States, under certain circumstances. One such provision is section 190 of the Revised Statutes (5 U.S.C., 1946 ed., sec. 99). Others were formerly contained in sections 109 and 113 of the Old Criminal Code (18 U.S.C., 1946 ed., sets. 198 and 203), but these sections were repealed when the Criminal Code was revised by Public Law 772, 80th Congress, and they were replaced by sections 281, 283, and 284 of the revised Criminal Code (18 U.S.C., as enacted into positive law by Public Law 772, 80th Cong.).

It thus becomes necessary to consider the effect of the employment of Mr. Mobley by the United States on his contract with the Chiricahua and Warm Springs Apache Indians. As to this point, it was held under section 109 of the old Criminal Code that where an attorney had entered into an agreement respecting the prosecution of a claim against the United States and thereafter was employed by the Government, such employment required a "complete severance" of his interest in the agreement. Case v. Helwig, 65 F. (2d) 186 (App. DC. 1933). As the substance of the statutory provision upon which the court relied in that case is still preserved in 18 U.S.C., sec. 283, it must be held that, at all times since November 1, 1948, Mr. Mobley has been incapacitated from acting as counsel for the Chiricahua and Warm Springs Apache Indians under his contract with that group.

The conclusion stated in the preceding paragraph is not affected by section 801 (j) of the Renegotiation Act of October 21, 1942 (56 Stat. 798, 985), as amended by the acts of June 14, 1947 (61 Stat. 133, 50 U.S.C., App., 1946 ed., Supp. II, sec. 1191(j), and June 28, 1949 (Public Law 137, 81st Cong.) As last amended, the section reads as follows:

The operative effect of this provision had previously been limited to June 30, 1949. In extending this date to June 30, 1950, it was apparently overlooked that, in the meantime, the Criminal Code had been revised. Thus, reference was made in the extending act to sections 109 and 113 of the old Criminal Code, which had been repealed. It is clear, however, from H. Rep. No. 846, 81st Congress, that Congress intended to refer to the relevant provisions of the new Criminal Code, because the report mentions sections 281 and 283 of the revised Criminal Code. It is believed, therefore, that the extending act should be read as if it referred to the relevant sections of the revised Criminal Code. It has been held that when the intention of a legislative body is clear, a mistake in referring

1523

OPINIONS OF THE SOLICITOR

FEBRUARY 1, 1950

to some provision of existing law should not prevent the carrying out of its intention. See Crawford, The Construction of Statutes (1940), pp. 348-49, and 50 Amer. Jurisp., pp. 2 19-20, as well as the authorities cited in these works.

However, the liberalizing effect of section 801 (j) of the Renegotiation Act, as amended, is not helpful to Mr. Mobley, because of the proviso which declares that "such person shall not prosecute any claim against the United States * * * during the period such person is engaged in employment in a department."

Therefore, it is my conclusion that, although there is no ground upon which it would be proper to rescind the approval of Mr. Mobley's contract, his employment by the United States incapacitated him from performing the duties imposed upon him by the contract and such incapacity would form a proper basis for the termination of the contract under the following provision contained therein: "The Commissioner of Indian Affairs with the consent of the above-named committee or its successors may terminate this contract for cause on 60 days' notice to the interested parties."

The Commissioner of Indian Affairs should bring the situation occasioned by Mr. Mobley's acceptance of employment with the United States to the attention of the committee referred to in the provision quoted above from the contract, with the statement that, if the committee so desires, appropriate action looking toward the termination of the contract as of the date of Mr. Mobley's employment by the United States will be taken.

LABOR UNION MEMBERSHIP OF INDIANS--
EMPLOYMENT PREFERENCE--GENERAL
TIMBER SALE REGULATIONS

Section 47 of the General Timber Sale Regulations does not prevent a purchaser of Indian timber, who is operating under a union shop agreement with a labor union which admits Indians to membership, from requiring Indian employees, as a condition of continuing in his employment, to join such labor union and to maintain their membership therein.

Union shop agreements between purchasers of Indian timber and labor unions may be prohibited by State law in some of the States where timber operations on Indian lands are conducted.

The National Labor Relations Act, as amended, prohibits a purchaser of Indian timber from requiring Indian applicants for employment to be members of a labor union as a condition of obtaining employment.

Memorandum
To            :The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Labor union membership of Indians who have preference in employment under General Timber
                 Sale Regulations

You have requested that I express an opinion on the question whether Indians, who have a preference in employment under section 47 of the General Timber Sale Regulations of April 10, 1920, with respect to operations conducted by the purchasers of timber growing on Indian lands, can be required to join a labor union as a condition of obtaining or continuing in the employment of a timber purchaser who is operating under an agreement with a labor union representing his employees.

In interpreting this regulation, it is necessary to distinguish between a preference in employment and a preference in the terms and conditions of employment. A preference in employment merely grants the right to employment to applicants of a particular class who otherwise would have to compete for the employment with all other applicants capable of discharging the duties of the employment. A preference in the terms and conditions of employment, on the other hand, assures to a particular class of employees more favorable treatment than other employees in the same class.

It is plain that, except for its requirement that Indian labor shall be paid the same wages as other labor, section 47 of the General Timber Sale Regulations merely deals with a preference in employment for the benefit of Indians seeking employment from purchasers of Indian timber. The section does not purport to confer upon such Indians any right to demand exemption from any of the terms and conditions of employment applicable to other employees similarly situated.

If the employer has entered into a union shop agreement with a labor union under which his employees are required to join the union and re-

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DEPARTMENT OF THE INTERIOR

FEBRUARY 1, 1950

tain membership in it as a condition of continuing in his employment, this contractual requirement is as much a term and condition of employment as any others imposed by the employer (such as those prescribing the hours of employment, requiring sobriety on the job, etc.), and Indian employees, no less than other employees, must comply with the requirement respecting union membership. Therefore, a union shop agreement, which does not require an applicant for employment to be a member of the contracting union before he is hired but merely requires him to join the union and to maintain membership therein after he is hired, would not seem to be inconsistent with the preference in employment accorded to Indians by section 47 of the General Timber Sale Regulations. An inconsistency would arise, of course, if the contracting union were to exclude Indians from membership.

It should be borne in mind that only the relationship between section 47 of the General Timber Sale Regulations and union shop agreements has been considered in the preceding paragraph. Irrespective of the regulation, union shop agreements may be prohibited by State law in some of the States where timber operations on Indian lands are conducted. In this connection, section 14 (b) of the National Labor Relations Act, as amended (29 U.S.C., 1946 ed., Supp. II, sec. 164), permits States statutes prohibiting union shop agreements to apply even to employees whose operations affect interstate commerce.

It seems unnecessary to determine whether the enforcement against Indian applicants of an existing closed shop agreement, which requires membership in the contracting union before an applicant for employment can be hired, would be inconsistent with the regulation granting a preference in employment to Indians, since closed shop agreements are prohibited by section 8 (a) (3) of the National Labor Relations Act, as amended (61 Stat. 136, 140; 29 USC., 1946 ed., Supp. II, sec. 158). An Indian applicant could not properly be excluded from employment by a timber purchaser on the ground that he was not a member of a union with which the timber purchaser had entered into a closed shop agreement, but the same would also be true with respect to a non-Indian applicant for employment. It is assumed, in this connection, that the operations of purchasers of Indian timber affect interstate commerce, and that such persons and their employees are subject to the provisions of the National Labor Relations Act, as amended.

I am of the opinion, therefore, (1) that section 47 of the General Timber Sale Regulations does not prevent a purchaser of Indian timber, who is operating under a union shop agreement with a labor union which admits Indians to membership, from requiring Indian employees, as a condition of continuing in his employment, to join such labor union and to maintain their membership therein; (2) that union shop agreements between purchasers of Indian timber and labor unions may be prohibited by State law in some of the States where timber operations on Indian lands are conducted; and (3) that the National Labor Relations Act, as amended, prohibits a purchaser of Indian timber from requiring Indian applicants for employment to be members of a labor union as a condition of obtaining employment.

The question whether an existing regulation of the Alaska Game Commission, providing that within a specified area no person shall take any fur animal without having resided within the area continuously for one year, is authorized by subdivision M of section 10 of the Alaska Game Law is academic in view of the fact that the Commission now desires to revoke the regulation and clearly has the discretionary power to do so.

Memorandum
To:            The Chief Counsel, Fish and Wildlife Service
From:        The Solicitor
Subject:     Whether subparagraph (1) of paragraph (c) of section 164.1, 50 CFR, is authorized by
                 subdivision M of section 10 of the Alaska Game Law

This acknowledges your request for my opinion on the question whether subparagraph (1) of paragraph (c) of section 164.1, 50 CFR (14 F.R. 1501, 1502), a portion of the regulations with respect to fur game management areas prescribed by the Alaska Game Commission, is authorized by subdivision M of section 10 of the Alaska Game Law (act of July 1, 1943; 57 Stat. 301, 3 10; 48 U.S.C., 1946 ed., sec. 199, subdivision M).

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OPINIONS OF THE SOLICITOR

MAY 11, 1950

It will be noted that the first sentence of subdivision M authorizes the Commission to restrict the taking of specified game or fur animals in specified areas by prescribing three different kinds of regulations, and that the language with respect to the issuance of each kind is permissive, that is, the word "may" is used in each case. The three kinds of regulations thus placed within the discretionary power of the Commission are: (1) those requiring residents, nonresidents, and aliens to obtain special licenses; (2) those limiting the number, kind, and sex of the animals that may be taken; and (3) those restricting the number of persons who may hunt or trap in each specified area.

The regulation with which we are presently concerned, 50 CFR 164.1 (c) (1), can be justified only on the basis (if at all) that it comes within the third category mentioned above.¹

I understand that, for reasons of policy, the Commission is now of the view that 50 CFR 164.1 (c) (1) should be eliminated from the regulations. Since, as previously indicated, the issuance of regulations by the Commission under subdivision M is permissive and not mandatory, the Commission has complete and unfettered discretion in the matter of revoking any regulation (or all regulations) heretofore promulgated under subdivision M, including 50 CFR 164.1 (c) (1).

In view of the Commission's desire to revoke 50 CFR 164.1 (c) (1), and the clear authority of the Commission to eliminate that provision from the regulations, it would be of academic interest only, and of no practical significance, to consider the question whether the Commission had the legal power to promulgate 50 CFR 164.1 (c) (1) in the first instance. For that reason, it seems unnecessary and inadvisable to respond to the specific question outlined in your memorandum.

CONGRESSIONAL AUTHORIZATION FOR
APPROPRIATION TO COMPENSATE
FT. BERTHOLD INDIANS

Memorandum
To:            Assistant Secretary Warne
From:        The Solicitor
Subject:     Compensation for the taking of the lands of the Fort Berthold Indians in the construction of the
                 Garrison Reservoir

This will respond to your note, requesting advice concerning a letter dated April 28 from the Fiscal Assistant Secretary of the Treasury Department, a copy of which was attached to your note.

¹ Cf. Haavik v. Alaska Packers Ass'n, 263 U.S. 510, 515 (1924); United States v. Twelve Ermine Skins, 78 F. Supp. 734, 738 (D. Alaska, 1948).