c:\capture2\html\p1526-1530.html

1526

DEPARTMENT OF THE INTERIOR

MAY 11, 1950

The letter of the Fiscal Assistant Secretary of the Treasury Department is in response to your letter of March 30, requesting that the funds of $5,105, 625 and $7,500,000, provided for in sections 2 and 12, respectively, of Public Law 437, 81st Congress, for the purpose of compensating the Indians of the Fort Berthold Reservation for lands taken by the United States in the construction and operation of the Garrison Reservoir, be placed in Indian trust fund accounts so as to be immediately available for the purpose of the act. Under section 12 of the act, both funds were, upon acceptance of the act by the Indians, to be placed to their credit in the Treasury of the United States at 4 percent interest until disbursed. The Indians voted to accept the act on March 5.

Your request was approved by the Treasury Department as to the $5,105,625 fund, since the Congress had previously appropriated that amount in the War Department Civil Appropriation Act, 1948 (Public Law 296, 80th Cong.). As to the $7,500,000 fund, however, the Fiscal Assistant Secretary took the position that further action by the Congress would be necessary to make that fund available, because section 12 of Public Law 437 is merely an authorization for an appropriation and not an actual appropriation of money.

Although there is some ambiguity in the language of section 12 respecting the point whether the section appropriates $7,500,000 or merely authorizes such an appropriation, I am inclined to agree with the Fiscal Assistant Secretary's analysis of the section. The joint resolution (H. J. Res. 33) which later became Public Law 437 was handled by the House Public Lands Committee and the Senate Interior and Insular Affairs Committee, rather than by the respective Appropriations Committees of the House and Senate, as would have been required if the resolution had appropriated any money. Moreover, Congress did not state specifically in section 12 that the sum of $7,500,000 "is appropriated," as is done in appropriation statutes. The point seems, therefore, to be covered by 31 U.S.C., 1946 ed., sec. 627, which provides that:

The Bureau of Indian Affairs informs me that a request for the appropriation of the $7,500,000 fund is being prepared, and that the item will be submitted to the Bureau of the Budget for inclusion in the next deficiency appropriation bill.

Restricted, tax-exempt land allotted to a full-blood Creek Indian remains restricted and tax-exempt after the allottee's death if it is inherited by full-blood Indian heirs.

Upon the sale to a non-Indian of an undivided one-half interest in restricted, tax-exempt Indian land by one of two full-blood Creek Indians who had inherited the land, and the subsequent partition of the land in kind between the non Indian grantee and the remaining full-blood Indian heir, the tract set apart to the Indian heir is restricted and tax-exempt.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Land allotted to a full-blood Creek Indian pursuant to a partition proceeding

This responds to your request for an opinion concerning the question whether land owned by Martha Johnson Morgan, an unenrolled full-blood Creek Indian of the Five Civilized Tribes, and which was allotted to her as the result of a partition proceeding instituted in the year 1930, is restricted and tax-exempt.

The question relates to half of an area originally comprising 120 acres and described as the S1/2 SW1/4 and the NW1/4 SW1/4, Sec. 25, T. 13 N., R. 13 E., in Okmulgee County, Oklahoma. This 120-acre
area appears to have been designated as part of the surplus allotment of Mary Daniel, full-blood Creek enrollee No. 354. The allottee died intestate in the year 1921. She left as her heirs at law her two full-blood Indian children, John Daniel, enrollee No. 355, and Martha Johnson Morgan, who apparently was born too late to be enrolled and who was a minor of the age of 10 years at the time of her mother's death.

By a deed executed on September 7, 1925, John Daniel conveyed his undivided one-half interest in the 120 acres to M. A. Holcomb, who apparently is a non-Indian. The conveyance was approved by the county court,¹ whereupon the undivided one half interest in the land acquired by the grantee became unrestricted and subject to local taxation.²

____________________

¹ Section 9, act of May 27, 1908 (35 Stat. 312).
² Sections 9, 4, act of May 27, 1908 (35 Stat. 312); 68 Okl. St. Ann., sec. 15.9.

1527

OPINIONS OF THE SOLICITOR

JUNE 7, 1950

However, the interest in the 120 acres which was retained by Martha Johnson Morgan, the other heir of the allottee, continued to be restricted. Because of her status as a full-blood Indian heir, her undivided one-half interest in the land was subject to the statutory requirement that she could not convey such interest without the approval of the appropriate county court.³ While so restricted, her undivided interest in the land was exempt from taxation.⁴

As a result of the proceeding in 1930, the 120 acres were partitioned in kind, and Martha Johnson Morgan was allotted as her share of land which is described as the NW1/4 SW1/4 and the N1/2 N1/2 S1/2 SW1/4 of section 25, containing 60 acres.

Since her undivided one-half interest in the 120 acre tract was restricted and tax-exempt prior to the partition proceeding, the question on which I am asked to render an opinion is whether the land which was received by Martha Johnson Morgan in lieu of her undivided interest in the entire 120 acres is likewise restricted and nontaxable. In this connection, it appears that, although the sheriff's deed which was executed pursuant to the judgment of partition contains a provision stating that the land conveyed thereby shall be restricted pursuant to the act of Congress approved June 14, 1918,⁵ taxes have nevertheless been levied by or under the authority of the State of Oklahoma for the years 1932 through 1948 against 40 acres of the land set apart to Martha Johnson Morgan in the partition proceeding.

The provision to the effect that land which is allotted (in kind) to a full-blood Indian in accordance with a partition proceeding "shall remain subject to all restrictions upon alienation and taxation obtaining prior to such partition" was incorporated in the legislation at the express request of this Department.⁶ There is no ambiguity in the language of this provision. Its meaning and effect could not be plainer. It clearly ensures that existing tax exemptions and restrictions upon alienation with respect to Indian land shall be preserved for the benefit of any full-blood Indian to whom such land may be allotted in kind as a result of a partition proceeding. Moreover, Congress considered the proposed legislation with the apparent assurance that its enactment into law would not have any injurious effect upon the rights of restricted Indians.⁷

It necessarily follows that the land which was allotted to Martha Johnson Morgan pursuant to the 1930 partition proceeding is restricted against alienation and exempt from taxation. The levying of taxes against this land during the period 1932 1948 was in contravention of the plain language of the 1918 act and, therefore, was unlawful.

The views expressed above are supported by the decision (unreported) of the United States District
Court for the Eastern District of Oklahoma in the suit entitled J. T. Phillips v. Lucinda Blackwood
et al., Civil No. 2133 (1947).

It is assumed that, pursuant to section 6 (b) of the act of August 4, 1947,⁸ a certificate of tax exemption has now been filed of record in the county where the 60 acres in question are located.

EXTENT OF SECRETARIAL AUTHORITY TO ISSUE
PATENT IN FEE--INDIAN REORGANIZATION ACT

Indian Land--Restrictions Against Alienation Statutory Construction--Authority of the Secretary of the Interior.

The authority of the Secretary of the Interior under the act of May 14, 1948, to issue patents in fee, to remove restrictions against alienation, and to approve conveyances extends to all restricted or trust lands held by individual Indians who are members of tribes that brought themselves with in the coverage of the act of June 18, 1934, and is not limited to lands acquired for individual Indians pursuant to the 1934 act.

    ³ Section !I. act of May 27, 1908 (3.5 Stat. 312); Parker v. Richard, 250 U.S. 235 (1919): United States v. Gypsy Oil Company, 10 F. 2d 487 (C.C.A. 8th. 1925); Cf. United States v. Goldfeder, 112 F. 2d 615, 616 (1940).
    ⁴ United States v. Shock, 187 Fed. 870 (1911); Cf. Glenn v. Lewis, 10.5 F. 2d 398, 400 (C.C.A. 10th. 1939), cert. denied, 308 U.S. 598.
    ⁵ 40 stat. 606, 25 U.S.C., 1946 ed., sec. 355.
    ⁶ 56 Cong. Rec. 7318 (1918).
    ⁷ 61 Stat. 731, 733.
    ⁸ 61 Stat. 731, 733.

1528

DEPARTMENT OF THE INTERIOR

JUNE 7, 1950

The language used in the title of a statute may be relied upon for interpretative purposes only if the text of the statute itself is ambiguous.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Scope of the Secretary's authority under the act of May 14, 1948

This responds to the request that I consider the problem of the scope of the authority of the Secretary of the Interior under the act of May 14, 1948 (62 Stat. 236; 25 U.S.C., 1946 ed., Supp. III, sec. 483), which provides:

The particular questions presented for consideration are (a) whether the authority of the Secretary of the Interior under this act is limited to lands or interests in lands which have been acquired for individual Indians pursuant to the act of June 18, 1934,¹ or (b) whether the authority of the Secretary extends also to other restricted or trust lands held by individual Indians.

The authority conferred on the Secretary of the Interior by the act of May 14, 1948, extends to lands or interests in lands "held by individual Indians under the provisions of the Act of June 18, 1934." Under this plain language, it is immaterial how, when, in what manner, or from what source the lands or interests were acquired by the individual Indians, so long as the lands or interests are held by them under--i.e., subject to-- the provisions of the 1934 act.

The 1934 act is applicable to all Indian tribes the members of which voted in favor of the application of the act to their reservations.² All restricted or trust lands belonging to the individual members of such a tribe are subject to the provisions of the 1934 act, irrespective of whether the lands were allotted in severalty or were acquired by purchase prior to the enactment of the 1934 statute or whether they have been acquired subsequently pursuant to its provisions. This is so because section 4 of the 1934 act³ so far as material to the question presently under consideration, prohibits the transfer of "restricted Indian lands", except that any such land may, with the approval of the Secretary of the Interior, be transferred to the Indian tribe to which the owner belongs and it may descend to the heirs of the owner or be devised to such heirs or any members of the tribe. This prohibition applies to all "restricted Indian lands", including trust lands,⁴ held by individual Indians who are members of the tribes that brought themselves within the compass f the 1934 act.⁵Thus, all such lands are "held under", or subject to, the provisions of the 1934 act.

The authority conferred on the Secretary by the 1948 act plainly is directed to section 4 of the 1934 act, and that authority appears clearly to have been conferred for the purpose of permitting the Secretary of the Interior, in his discretion, to remove completely the limitations contained in section 4 of the 1934 act to "lands or interests in lands held by individual Indians under the provisions of the Act of June 18, 1934" therefore embraces all lands or interests in lands which are subject to restrictions imposed by section 4 of the 1934 act. This includes restricted or trust lands allotted to or acquired for individual Indians prior to the enactment of the 1934 statute, as well as lands acquired for individual Indians under authority of the 1934 act.

The fact that the title of the 1948 act refers to "lands acquired under the act of June 18, 1934" has not been overlooked. The language used in the title of the statute would be of use in construing the scope of the act only if the text of the statute itself were ambiguous. It cannot be used to limit the plain meaning of the text.⁶ The word "acquired" is in no sense synonymous with the word "held", and the former cannot be substituted for the latter in the text of the statute without doing violence to the plain meaning of the legislation.

It is my opinion, therefore, that the authority of the Secretary under the act of May 14, 1948, extends to all restricted or trust lands held by individual Indians who are members of tribes that brought themselves within the coverage of the act of June 18, 1934, and that such authority is not

¹ 48 Stat. 984; 25 U.S.C., 1946 ed., sec. 461 et seq.
² 25 U.S.C., 1946 ed., sec. 478.
³ 25 U.S.C., 1946 ed., sec. 464.
⁴ See Estate of Ke to Sah Jefferson, IA-19, May 4, 1950.
⁵ See Solicitor's memorandum of November 20, 1934, to Commissioner of Indian Affairs.
⁶ Brotherhood of Railroad Trainmen v. Baltimore & o. R. Co., 331 U.S. 519.

1529

OPINIONS OF THE SOLICITOR

JULY 5, 1950

Under the provisions of the act of May 11, 1938, the tribal lands of the Pueblo or Laguna can not be leased for the development of oil and gas except upon the basis of competitive bidding, after notice and advertisement.

The constitution of the Pueblo of Laguna, adapted pursuant to the provisions of the Indian Reorganization Act, does not purport to dispense with the statutory requirement of competitive bidding in connection with the issuance of oil and gas leases on tribal lands.

The provisions of a constitution adopted by an Indian tribe pursuant to section 16 of the Indian Reorganization Act cannot disregard or dispense with the positive requirements of an act of Congress with respect to the leasing of tribal lands for mining purposes.

The unrestricted power to lease tribal lands for mining purposes may be conferred on an Indian tribe only by a charter of incorporation issued to the tribe pursuant to section 17 of the Indian Reorganization Act.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Leasing of lands owned by the Pueblo of Laguna for oil and gas development

This responds to your request for an opinion on the question whether oil and gas leases covering lands belonging to the Pueblo of Laguna in the State of New Mexico may be negotiated privately, or whether they must be offered for sale on a competitive basis.

Section 1 of the act of May 11, 1938 (52 Stat. 347, 25 U.S.C., 1946 ed., sec. 396a), authorizes the leasing for mining purposes, including oil and gas development, of "unallotted lands within any Indian reservation or lands owned by any tribe, group, or band of Indians under Federal jurisdiction, except those hereinafter specifically excepted from the provisions of this act." The Pueblos of New Mexico, whose status as Indian tribes under Federal jurisdiction is no longer open to question (United States v. Sandoval, 231 U.S. 28 (1913) ), are not mentioned among the Indian groups that are specifically excepted from the provisions of the 1938 act by section 6 of that act (25 U.S.C., 1946 ed., sec. 396f). The leasing of the lands involved in the present inquiry is, therefore, governed by the provisions of the 1938 act.

Section 2 of the 1938 act (25 U.S.C., 1946 ed., sec. 396b) requires that leases on the lands to which the act applies "shall be offered for sale to the highest responsible qualified bidder, at public auction or on sealed bids, after notice and advertisement, upon such terms and subject to such conditions as the Secretary of the Interior may prescribe." The quoted statutory language seems to provide a clear answer to the question propounded by you.

It might be argued, however, that the statutory requirement for the competitive sale of leases, after notice and advertisement, has been superseded by the provisions of the constitution and by laws adopted by the Pueblo of Laguna pursuant to section 16 of the Indian Reorganization Act of June 18, 1934 (25 U.S.C., 1946 ed., sec. 476), which document was approved by the Department on December 21, 1949. Such a contention would be premised on the proviso to section 2 of the 1938 act, which states:

A similar contention was considered in my opinion of July 7, 1949 (M-36007). which dealt with the leasing, for oil and gas mining purposes, of unallotted lands belonging to the Northern Cheyenne Tribe of the Tongue River Reservation. It was pointed out in the previous opinion that 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 the procedure to be followed in the issuance of tribal oil and gas leases that the procedure so specified must

1528

DEPARTMENT OF THE INTERIOR

JULY 5, 1950

An examination of the approved constitution and bylaws of the Pueblo of Laguna shows that this document does not contain any provision which purports to dispense with the statutory requirement of competitive bidding contained in the 1938 act. Article X, section 5, of the constitution, which deals with the subject of minerals, states in pertinent part that:

There is no inconsistency between this provision in the tribal constitution of the Pueblo of Laguna and the requirement in section 2 of the 1938 act that oil and gas leases on tribal lands shall be issued on the basis of competitive bidding.

Moreover, a tribal constitution, standing alone, cannot invest the tribe with the unrestricted power to make its own leases. Under section 16 of the Indian Reorganization Act, such a constitution may confer on the tribe only those powers vested in the tribe "under existing law" and certain other enumerated powers, including the power to "prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe." It clearly would not be permissible for any constitution adopted under section 16 to disregard or dispense with the positive requirements of an act of Congress with respect to the leasing of tribal lands for mining purposes. The constitution could, of course, impose an additional restriction by investing the tribe with a veto power over the issuance of such leases.

The unrestricted power to lease tribal lands for mining purposes may be conferred on an Indian tribe only by a charter of incorporation issued to the tribe pursuant to the provisions of section 17 of the Indian Reorganization Act (25 U.S.C., 1946 ed., sec. 477) and even then such a lease could not be made "for a period exceeding 10 years." The Secretary of the Interior has not as yet issued a charter of incorporation to the Pueblo of Laguna. Until such a charter is issued, by which the Pueblo is empowered to lease its lands for oil and gas mining purposes upon such terms as the Pueblo may see fit to prescribe, the Pueblo must abide by the provisions of the 1938 act with respect to the leasing of its land for oil and gas mining purposes.

It is my opinion, therefore, that tribal lands owned by the Pueblo of Laguna cannot be leased for the development of oil and gas except upon the basis of competitive bidding, after notice and advertisement.

DUTIES OF HEARING EXAMINERS IN EXAMINATION
OF INHERITANCES--ADMINISTRATIVE
PROCEDURE ACT

M-36037 July 26, 1950.

There is nothing in the nature of the duties of an area counsel of the Bureau of Indian Affairs which would be inconsistent with the duties of an examiner of inheritance in that bureau. Therefore, the provision in the Administrative Procedure Act prohibiting the performance by hearing examiners of duties and responsibilities inconsistent with their duties and responsibilities as examiners would not preclude an attorney from acting both as area counsel and examiner of inheritance.

An attorney serving both as examiner of inheritance and as area counsel could properly devote himself to the latter duties only if free of duties relating to the former position.

Memorandum
To:            Executive Officer, Bureau of Indian Affairs
From:        The Solicitor
Subject:     Assignment of additional duties to a hearing examiner

Your memorandum dated June 2, 1950, and the classification sheet attached to it present a proposal by the Area Director of the Bureau of Indian Affairs at Minneapolis, Minnesota, to establish a position which, although entitled "Hearing Examiner," would combine the duties of an examiner of inheritance and the duties of an area counsel.

An examiner of inheritance is a hearing examiner under the Administrative Procedure Act.

1531

OPINIONS OF THE SOLICITOR

SEPTEMBER 5, 1950

Under section 11 of that act (43 U.S.C., 1946 ed., sec. 1010), a hearing examiner cannot perform duties which are inconsistent with his duties and responsibilities as an examiner. You have asked me whether, in view of this statutory restriction, an attorney who is an examiner of inheritance may also serve as an area counsel.

So far as the classes of matters dealt with are concerned, the respective provinces of an examiner of inheritance and of an area counsel are distinct. An examiner of inheritance is authorized to perform only two functions--the determination of the heirs of Indians who die intestate, leaving restricted property, and the approval of wills made by Indians who hold such property. An area counsel is not empowered to perform, or to participate in the performance of, either of the functions previously mentioned. Therefore, there is nothing in the nature of the duties of an area counsel which would be inconsistent with the duties of an examiner of inheritance.

It is evident, however, that the first responsibility of a person who occupies a position as a hearing examiner under the Administrative Procedure Act is to dispose of matters which come before him in that capacity. In my judgment, an attorney serving both as an examiner of inheritance and as an area counsel could properly devote himself to the latter duties only if and when free of duties relating to the former capacity, and the area director could not properly require him to do otherwise.

If such a position as that under consideration is to be established, I recommend that the title of the position include the words "Area Counsel." Delegations of authority to determine tort and irrigation claims run to area counsels of the Bureau of Indian Affairs, not to hearing examiners.

Finally, I should call your attention to the fact that section 11 of the Administrative Procedure Act contains provisions with respect to the tenure and compensation of hearing examiners which differ from the comparable provisions found in the Classification Act of 1949 (41 U.S.C., 1946 ed., Supp. III, sec. 1071 et seq.). While it is arguable that the positions of hearing examiners now are subject to the latter act, so far as I am aware the Civil Service Commission has not made a ruling to that effect. You may, therefore, wish to consult the Commission with respect to the position under consideration.

WHETHER NATCHEZ TRACE PARKWAY COMES
UNDER THE DEFINITION OF "NATIONAL PARK"
OR "NATIONAL MONUMENT"

The Natchez Trace Parkway is not a national park or a national monument and, hence, is not within the exception, "national parks or monuments", stated in section 3 of the Mineral Leasing Act for Acquired Lands.

The Mineral Leasing Act for Acquired Lands is applicable to all acquired lands, other than those expressly excepted in the act.

The lands within the Natchez Trace Parkway, not being within any category of acquired lands expressly excepted from the scope of the Mineral Leasing Act for Acquired Lands, are subject to leasing under that act.

The Mineral Leasing Act for Acquired Lands merely grants to the Secretary of the Interior a permissive power to issue leases on the lands that are subject to the act; and, therefore, the determination as to whether lands of the Natchez Trace Parkway will or will not be leased under that act is discretionary with the Secretary.

Memorandum
To:            Assistant Secretary Doty
From:        The Solicitor
Subject:     Applicability of the Mineral Leasing Act for Acquired Lands to land in the Natchez Trace
                 Parkway

This responds to your request for my opinion on the question whether lands included in the Natchez Trace Parkway are subject to leasing under the Mineral Leasing Act for Acquired Lands, which was enacted on August 7, 1947 (30 U.S.C., 1946 ed., Supp. III, secs. 351-359).

Section 3 of the Mineral Leasing Act for Acquired Lands (30 U.S.C., 1946 ed., Supp. III. sec. 352) provides in part as follows:

1532

DEPARTMENT OF THE INTERIOR

SEPTEMBER 5, 1950

The lands within the Natchez Trace Parkway are "acquired lands," as that term is defined in section 2 of the Mineral Leasing Act for Acquired Lands (30 U.S.C., 1946 ed., Supp. III, sec. 351). Accordingly, the question to be determined is whether the Natchez Trace Parkway is a national park or a national monument within the meaning of the italicized phase in the quotation set out above and is thereby excepted from the provisions of the Mineral Leasing Act for Acquired Lands.

Certain areas in the United States and its Territories have been set aside and designated as national parks by acts of Congress (e.g., 16 U.S.C., 1946 ed., sets. 21-21a (Yellowstone National Park), 91 (Mount Rainier National Park) , 121 (Crater Lake National Park) ) . Certain other areas have been set aside and designated as national monuments. The great majority of the national monuments have been established by proclamations of the President issued pursuant to the general authorization contained in section 2 of the act of June 8, 1906 (16 U.S.C., 1946 ed., sec. 431). However, some national monuments have been established by Presidential proclamations issued pursuant to special acts of Congress (e.g., 16 U.S.C., 1946 ed., sets. 433a, 44le, 445). Still other national monuments have been directly created by acts of Congress (e.g., 16 U.S.C., 1946 ed., sets. 433g, 433k, 442).

Thus, each national park has been specifically designated as such by an act of Congress, and each national monument has been specifically designated as such by a Presidential proclamation or an act of Congress.

All the national parks and national monuments are administered by the National Park Service.

In addition to the national parks and national monuments, the National Park Service also administers other areas. These include national historic sites established under the act of August 21, 1935 (16 U.S.C., 1946 ed., secs. 461-466), national historical parks (e.g., 16 U.S.C., 1946 ed., secs. 81, 159, 211), national military parks (16 U.S.C., 1946 ed., sec. 411 et seq.), and national parkways. The Natchez Trace Parkway was established by the act of May 18, 1938 (16 U.S.C., 1946 ed., sec. 460), which provided that the parkway should be administered by the Secretary of the Interior through the National Park Service pursuant to the act of August 25, 1916 (16 U.S.C., 1946 ed., secs. 1, 2-4).

It is clear that the terms "national parks" and "national monuments" have definite meanings and include only certain classes of areas i.e., those areas which have been expressly declared by statutes or by Presidential proclamations to be national parks or national monuments. Obviously, these terms do not include national parkways.

It must be concluded, therefore, that the Natchez Trace Parkway does not fall within the exception,
"national parks or monuments," stated in section 3 of the Mineral Leasing Act for Acquired Lands.

Moreover, I do not believe that there is any sound legal basis for a ruling to the effect that the Natchez Trace Parkway, though not expressly excepted from the provisions of the Mineral Leasing Act for Acquired Lands, is nevertheless removed by implication from the scope of that statute.

The enactment of the Mineral Leasing Act for Acquired Lands was occasioned by an opinion of the Attorney General to the effect that the Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C., 1946 ed., sec. 181 et seq.), was not applicable to lands acquired by the War Department in the course of its rivers and harbors improvement program, inasmuch as that act "had peculiar application to the public domain" (40 Op. Atty. Gen. 9, 13 (1941) ). The purpose of the Mineral Leasing Act for Acquired Lands was clearly stated by the Committee on Public Lands of the House of Representatives in its report on the bill (H.R. 3022, 80th Cong.) which later became the statute under consideration here. The Committee said that:

In view of the clear Congressional statement of purpose, I do not believe that this Department would be warranted in reading into the Mineral Leasing Act for Acquired Lands any exceptions to its provisions, other than those expressly stated by the Congress in section 3 of the act.

For the reasons indicated above, it is my opinion that the Natchez Trace Parkway is subject to leasing under the Mineral Leasing Act for Acquired Lands.

Perhaps attention should be called, however, to the point that the authority of the Secretary to issue leases under the Mineral Leasing Act for Acquired Lands is merely permissive. The Congress
has not imposed upon the Secretary any mandatory

1533

OPINIONS OF THE SOLICITOR

DECEMBER 7, 1950

requirement that he exercise the power thus conferred upon him. Section 3 of the act states that the lands which are subject to the provisions of the act "may be leased by the Secretary" (emphasis supplied).

Therefore, the determination of the question whether a leasing program respecting lands within the Natchez Trace Parkway will or will not be undertaken by the Department under the Mineral Leasing Act for Acquired Lands is left to the discretion of the Secretary.

Act of April 4, 1910--Mineral Leasing Act of 1920--Mineral Leasing Act for Acquired Lands.

Under the act of April 4, 1910, the beneficial interest in the land described in that act is vested in the owners of the lands irrigated from the Strawberry Valley reclamation project, although the legal title to the land remains in the United States.

Land as to which the beneficial interest is in private persons is not public land subject to leasing under the Mineral Leasing Act of 1920, although the legal title to the land is vested in the United States.

As the complete management and control over the land described in the act of April 4, 1910, had been turned over to the Strawberry Water Users' Association prior to the time when the Mineral Leasing Act for Acquired Lands was enacted, the land is not subject to leasing by the Secretary of the Interior under that act, but is subject to leasing by the Association.

Proceeds from oil and gas leases issued on land described in the act of April 4, 1910, are subject to disposition as provided for in that act and in subsequent pertinent legislation.

Memorandum
To:            The Director, Bureau of Land Management
From:        The Solicitor
Subject:     Oil and gas leases on land in the Strawberry Valley reclamation project

This responds to your request for my opinion on two questions concerning five noncompetitive oil and gas leases ^l issued by the Department pursuant opening the unallotted lands to public entry was extended from October 1, 1903, to March 10, 1905. Finally, by the act of March 3, 1905 (33 Stat. 1048, 1069), it was provided that the time for opening the unallotted lands to public entry would be extended to September 1, 1905, unless the President should determine that the lands could be opened to entry at an earlier date. The 1905 act also pro vided that the unallotted lands should be opened to entry by proclamation of the President, and "That before the opening of the Uintah Indian Reservation the President * * * may also set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development * * * " (33 Stat. 1048, 1070).

In accordance with the 1905 act, the President issued a proclamation on July 14, 1905 (34 Stat. 3119), opening to entry on August 28, 1905, all unallotted lands in the reservation, except such land as might be reserved for other purposes by that date. On August 3, 1905, the President issued a second proclamation (34 Stat. 3141), which withdrew certain land in the reservation "for reservoir site necessary to conserve the water supply for the Indians." This proclamation was modified on August 14, 1905, by a third proclamation (34 Stat. 3143), which reduced the area of land previously withdrawn to a total of 60,068.51 acres. The withdrawn land included all the land which is embraced in the five oil and gas leases now under consideration.

Subsequently, on May 13, 1907, and November 12, 1909, a total of 56,868.51 acres of withdrawn land were included in two first-form reclamation withdrawals made by the Secretary of the Interior to section 17 of the Mineral Leasing Act of 1920, as amended (30 U.S.C., 1946 ed., sec. 226), on certain land in the Strawberry Valley reclamation project.

The land included in the five leases is situated in the Uintah Valley, Utah, which was set apart in 1861 as a permanent reservation for Indians.² By the act of May 27, 1902 (32 Stat. 245, 263), the Secretary of the Interior was directed to allot land in the reservation to the Indians prior to October 1, 1903, "on which date all the unallotted lands within said reservation shall be restored to the public domain." By subsequent acts,³ the time for

    ¹ Salt Lake City 068640-068644, inclusive.
    ² Presidential Proclamation of October 3, 1861 (1 Kappler 900); act of May 5, 1864 (13 Stat. 63).
    ³ Act of March 3, 1903 (32 Stat. 982, 998); act of April 21, 1904 (33 Stat. 189, 207).

1534

DEPARTMENT OF THE INTERIOR

DECEMBER 7, 1950

pursuant to section 3 of the Reclamation Act of June 17, 1902 (43 U.S.C., 1946 ed., sec. 416), for the benefit of the Strawberry Valley project. These withdrawals included all the land contained in three of the five leases presently under consideration, and part of the land included in the other two leases. The remainder of the leased land with which we are concerned is comprised within the 3,200 acres which were withdrawn by the President's proclamation of August 3, 1905, as modified by the proclamation of August 14, 1905, but which were not affected by the reclamation withdrawal orders of 1907 and 1909.

Following the two reclamation withdrawals, Congress passed the act of April 4, 1910, which provided in part as follows:

The last sentence in this quoted portion of the 1910 act apparently referred to section 6 of the Reclamation Act (43 U.S.C., 1946 ed., secs. 491, 498), which reads as follows:

A short time later, on October 20, 1910, the Secretary of the Interior withdrew for the use of the Strawberry Valley project the remaining 3,200 acres of land which had been reserved by the President in the proclamations of August 3 and 14, 1905. Thus, all the land withdrawn by the President was subsequently included by the Secretary of the Interior in reclamation withdrawals made for the benefit of the Strawberry Valley project, and all the land in the five oil and gas leases with which we are concerned is included in the overlapping withdrawals. However, only the land included in the reclamation withdrawals of 1907 and 1909 (i.e., 56,868.51 acres) was affected by the act of April 4, 1910.

Thereafter, Congress passed the act of December 5, 1924, section 4 of which is known as the Fact Finders' Act (43 Stat. 701). Subsection G of section 4 (43 U.S.C., 1946 ed., sec. 500) provides that whenever two-thirds of the irrigable area of a reclamation project shall be covered by water-right contracts between the water users and the United States, the project shall be required, as a condition precedent to receiving the benefits of the act, "to take over, through a legally organized water users' association or irrigation district, the care, operation, and maintenance of all or any part of the project works, subject to such rules and regulations as the Secretary may prescribe * * *." Subsection I of section 4 (43 U.S.C., 1946 ed., sec. 501) provides that whenever the water users take over the care, operation, and maintenance of a project, the net profits derived from the operation of project power plants, "leasing of project grazing and farm lands", and the sale or use of town sites shall be credited to construction charges, operation and maintenance charges, etc.

On September 28, 1926, the Secretary of the Interior entered into a contract (Ilr-78) with the Strawberry Water Users' Association for the purpose of enabling the project to obtain the benefits

1535

OPINIONS OF THE SOLICITOR

DECEMBER 7, 1950

of the Fact Finders' Act. Article 11 of the contract transferred to the Association "the care, operation and maintenance of the entire Strawberry Valley project", except for a lateral and a canal which had already been turned over to certain irrigation districts and a canal company, but the article provided that no title to any of the property belonging to the project .passed to the Association. Article 5 of the contract recited that under the act of April 4, 1910, "there was acquired by purchase" for the project 56,868.51 acres of grazing land protecting the water-shed of the Strawberry reservoir. Article 22 provided that the receipts from the land, designated in the contract as the "watershed lands", should be disposed of in the manner provided by subsection I of the Fact Finders' Act. Article 22 also specifically provided "that the title, management and control" of the watershed lands should not pass to the Association under the 1910 act until 51 percent of the project construction cost was paid to the United States. The watershed lands were described in Schedule A of the contract. They included all the land covered by the five oil and gas leases under consideration here, except the 3,200 acres which were not withdrawn for reclamation purposes until October 20, 1910, after the passage of the 1910 act.

On November 20, 1928, the 1926 contract was amended "to the extent that the care, operation and maintenance (management and control but not the title) of said 56,869.51 acres of land be and the same is hereby transferred to the association to be utilized by it for the benefit of the owners of the lands irrigated from said project * * *" (Art. 10).

The 1926 contract, as amended, was superseded by a contract dated October 9, 1940. The 1940 contract continued the provisions of the 1926 contract which transferred the care, operation, and maintenance of the Strawberry Valley project to the Strawberry Water Users' Association. With respect to the watershed lands, Article 20 of the 1940 contract provides:

"Notwithstanding the provisions of the Act of April 4, 1910 (36 Stat., 228), it is agreed that title to the lands described in the attached schedule A (being the same as the lands described in schedule A of the contract of September 28, 1926, and being hereinafter called grazing lands) shall be retained by the United States until otherwise provided by Congress. The management and control of said lands shall remain with the Association * * *."

Article 22 of the 1940 contract provides for the crediting of profits realized from the "grazing lands" (watershed lands) in conformity with subsection I of the Fact Finders' Act.

Your first question, in effect, is whether the five oil and gas leases, to the extent that they include watershed lands, should have been issued (1) by the Department pursuant to the Mineral Leasing Act of 1920, supra, or (2) by the Department under the Mineral Leasing Act for Acquired Lands (30 U.S.C., 1946 ed., Supp. III, sets. 351-359), or (3) by the Strawberry Water Users' Association.

Although the Uintah Indian reservation had been created out of the public domain, the land comprising it did not occupy the status of public domain land while included within the reservation. This is made clear by the act of May 27, 1902, which provided for the restoration "to the public domain" of such of the reservation land as might not be allotted to the Indians by a certain date. This date was eventually fixed as August 28, 1905, by the President's proclamation of July 14, 1905, but before August 28, 1905, the President withdrew certain land in the reservation, including the watershed lands, for a reservoir site. This withdrawal necessarily had the effect of preventing the withdrawn land from reverting to the public domain on August 28, 1905.

That the land withdrawn by the President retained its status as Indian land after August 28, 1905, seems clearly to be established by the act of April 4, 1910, which provided for the extinguishment of the Indian title to the 56,868.51 acres which had also been withdrawn by the Secretary for reclamation purposes. If the land referred to in the 1910 act had previously been restored to the public domain, there would have been no necessity for Congressional action extinguishing the Indian title to the land.

The question, then, is whether the 1910 act operated to convert the land covered by that act from Indian land to public domain land. It does not appear that the act had that effect. The act provided that the payments to the Indians should be included in the cost of construction of the Strawberry Valley project and should be reimbursed by the owners of lands irrigated from the project; that the title to the land should eventually pass to such owners; and that, in the interim, all rentals and other receipts from the land should be credited to such owners. These provisions strongly suggest, if they do not require, the interpretation that Congress intended by the 1910 act to sell the watershed lands to the landowners in the Strawberry Valley
project, and to transfer the equitable title to the landowners pending the transfer of legal title.

1536

DEPARTMENT OF THE INTERIOR

DECEMBER 7, 1950

Otherwise, there would be no reason to credit the landowners with the receipts derived from the watershed lands.

The legislative history of the 1910 act, although meager, supports this interpretation. The portion of the act involved in this discussion first appeared as a separate bill (S. 5926) in the 61st Congress. That bill, however, did not contain the sentence providing that the payments made to the Indians should be included in the construction cost of the Strawberry Valley project, to be reimbursed by the landowners, and that receipts from the land should be credited to the landowners; and the bill did not include the provision for the transfer to the land owners of title to the watershed lands. In lieu of the transfer of title provision, the bill simply provided that the watershed lands should be available in connection with operations under the Reclamation Act, and that any proceeds from the lands should be covered into the reclamation fund. Even so, in the debate on the bill in the Senate, Senator Sutherland of Utah, who handled the bill on the floor, stated that the money paid for the watershed lands "will be charged against the project and will have to be paid ultimately by the farmers who receive the water." (45 Cong. Rec. 1822.) Senator Sutherland also asserted at one point that the land covered by the bill was not public land, and at another point he said that it was public land "charged with a trust for the benefit of the Indian." (45 Cong. Rec. 1822.)

When the 1910 act, which was an appropriation measure, was before the Senate, the provisions of S. 5926 were added to the 1910 act by amendment. In conference, the text quoted above was adopted. The specific inclusion of provisions to the effect that the payments to the Indians should be included in the construction cost of the Strawberry Valley project, to be reimbursed by the owners of land irrigated from the project, and that the title to the watershed lands should pass to such land owners whenever the management and operation of the irrigation works should pass to them, and the substitution, for the original provision in S. 5926 to the effect that the receipts from the watershed land should go into the reclamation fund, of the requirement that the receipts should be credited to the landowners, seem to demonstrate unequivocally that it was the intent of Congress to provide in the 1910 act for an immediate transfer of the beneficial interest in the watershed lands to the landowners in the Strawberry Valley project, and for the ultimate transfer to the landowners of legal title to the watershed lands.

The effect of the 1910 act was discussed at great length in hearings which were held in 1922 on H.R. 10861, 67th Congress, by the House Committee on Public Lands. H.R. 10861 proposed to add all the land covered by the 1910 act to the Uintah National Forest, to be administered by the Secretary of Agriculture. The bill provided that 10 percent of the receipts from the national forest should be paid into the reclamation fund until the fund was reimbursed for the money paid to the Indians under the 1910 act, and that the Strawberry Valley project should be credited with such payments. The bill also provided for the repeal of the 1910 act to the extent that it was inconsistent with H.R. 10861.

The bill was favorably reported by the House Committee, which expressed the view that the landowners in the Strawberry Valley project had not acquired under the 1910 act such rights in the watershed lands as to prevent the Congress from enacting legislation like H.R. 10861 (H. Rept. No. 1633, 67th Cong.). However, a dissent to the report was filed by a minority of the committee.

The minority view was based upon a report dated September 7, 1922, by the Secretary of the Interior, who recommended against the enactment of H.R. 10861. Referring to the question whether the 1910 act required the transfer to the land owners in the Strawberry Valley project of title to the watershed lands, the Secretary stated that the question was immaterial "because the Act of 1910, in connection with the Reclamation law in general, must be construed as transferring to the landowners a valuable right for which they have assumed an obligation to make full payment and have up to date made payment substantially in accordance with the contract obligations assumed and have in fact made payment of a considerable part toward the amount due on account of these lands."

H.R. 10861 was never considered beyond the committee stage. Consequently, the views of the majority of the House Committee on Public Lands cannot be considered as representing a Congressional interpretation of the 1910 act.

For the reasons given in the preceding discussion, I believe that, although the legal title to the watershed lands is still in the United States, the beneficial interest in these lands is vested in the owners of the lands irrigated from the Strawberry Valley project. It follows from this view that the watershed lands are not subject to leasing under the Mineral Leasing Act. That act has been construed by the Attorney General to apply only to the public domain or public lands. 34 Op. Atty. Gen. 171 (1924); 40 Op. Atty. Gen. 9 (1941). The terms "public domain" and "public lands" have been used in various senses, but they generally denote land owned by the United States which is subject

1537

OPINIONS OF THE SOLICITOR

DECEMBER 7, 1950

to disposal under the general public-land laws. See 34 Op. Atty. Gen., supra (at p. 172). It is obvious that the watershed lands do not fall in this category.

It perhaps should be mentioned that the Mineral Leasing Act has been construed to be applicable to lands of the public-domain category which are temporarily unavailable for disposal under the public-land laws because they have been reserved for special purposes. J. D. Mel1 et al., 50 L.D. 308 (1924); 43 CFR 191.5, 191.6. In those cases, however, the reservations have been created by acts of the President or of the Secretary of the Interior, and the lands may be restored to public entry by the exercise of the same executive authority that was employed in establishing the reservations. This is not true of the land covered by the 1910 act.

Turning now to the Mineral Leasing Act for Acquired Lands, which was enacted on August 7, 1947, it may be noted that this act is broad in scope and applies, with certain exceptions not relevant here, to "all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended * * *" (30 U.S.C., 1946 ed., Supp. III, sec. 351). The watershed lands appear, on first impression, to come within this statutory description.

It will be recalled, however, that the 1910 act authorized the transfer of the management and control of the watershed lands to the landowners in the Strawberry Valley project whenever the management and operation of the irrigation works should pass to the landowners under the Reclamation Act. Section 6 of the Reclamation Act of 1902 provides that the management and operation of irrigation works constructed under the act shall pass to the owners of the lands irrigated from such works whenever the payments required by the act have been made for the major portion of the lands irrigated from the works. Subsection G of the Fact Finders' Act also authorizes the transfer of the care, operation, and maintenance of project works to a water users' association whenever two thirds of the irrigable area of a project are covered by water-right contracts.

The complete management and control of the land described in the 1910 act was turned over to the Strawberry Water Users' Association, pursuant to these statutory authorizations, by the 1928 amendment to the contract of September 28, 1926. The Association thereupon acquired a contractual right, subsequently reaffirmed by the contract of October 9, 1940, to exercise complete powers of management and control over the watershed lands. Such powers clearly include the authority to issue oil and gas leases.⁴ This contractual right was in existence on August 7, 1947, the effective date of the Mineral Leasing Act for Acquired Lands, and I do not believe that it was affected by that legislation. There is nothing in the language or legislative history of the 1947 act to indicate that it was intended to abrogate contractual rights theretofore acquired respecting Government-owned lands under earlier legislation, such as the provisions of the 1910 act relating to the management and control of the watershed lands.

It is my opinion, therefore, that the watershed lands are not subject to leasing by the Secretary of the Interior under the Mineral Leasing Act for Acquired Lands, but that such lands are subject to mineral leasing by the Strawberry Water Users' Association pursuant to its contract of October 9, 1940.

It follows that there was no authority in the Department to issue the five oil and gas leases discussed in this memorandum, to the extent that the leases include watershed lands. However, on April 26, 1950, the Strawberry Water Users' Association approved and ratified the five leases in so far as they include watershed lands, subject to the condition that the rentals and royalties received from the leases with respect to those lands be credited or paid to the association in conformity with the 1910 act and as provided by subsection I of the Fact Finders' Act. The ratification was accepted by the Carter Oil Company (the holder of the leases) and approved by the Acting Assistant Commissioner of the Bureau of Reclamation for the Secretary of the Interior. Consequently, there is now no problem with respect to the validity of the leases to the extent that they include watershed lands.

Your second question is whether the proceeds from the five oil and gas leases, in so far as they are derived from watershed lands, should be distributed as provided for in section 35 of the Mineral Leasing Act (30 U.S.C., 1946 ed., sec. 191) or as provided for in subsection I of the Fact Finders' Act.

It follows from the discussion of your first question that the proceeds from the leases, in so far as

⁴ Since about 1928, the Strawberry Water Users' Association has been issuing leases on the watershed lands for grazing purposes. On August 1, 1949, the Association issued a lease to Tom P. Costas authorizing him to prospect for and mine gold, silver, copper, and other minerals, excluding oil and gas, on a section of the watershed lands. This lease was approved by the Commissioner of Reclamation on December 20, 1949, pursuant to a delegation of authority to him from the Secretary of the Interior (Order No. 2534, 14 F.R. 5693).

1538

DEPARTMENT OF THE INTERIOR

DECEMBER 7, 1950

they are derived from watershed lands, should be applied in conformity with the 1910 act and subsection I of the Fact Finders' Act, as provided in the ratification of April 26, 1950.

Your two questions are directed only to the watershed lands which are included in the five oil and gas leases. However, the greater portion of the land included in two of the leases (Salt Lake 068643 and 068644) consists of the 3,200 acres of non-watershed lands which were withdrawn by the President's proclamations of August 3 and 14, 1905, but which were not affected by the act of April 4, 1910. The question of the validity of the two leases in so far as they include these 3,200 acres has not been considered in this opinion.

FARMERS HOME ADMINISTRATION CLAIM AND
WHETHER CLAIMS OF U.S. ARE SUBJECT
TO LIMITATIONS

A restrictive administrative regulation governing members of the public will not be construed as applicable to the United States unless the language of the regulation expressly evidences an intention that the restriction shall apply to the Government.

The United States is not bound by a time limitation in the Indian probate regulations regarding the filing of claims against restricted Indian estates, since the provisions imposing the limitation do not specifically mention claims of the United States as being subject to the limitation.

Memorandum
To:            Chief Counsel, Bureau of Indian Affairs
From:        The Solicitor
Subject:     Time limitation on filing claims of the United States against restricted Indian estates

This responds to your request for an opinion on the question whether paragraphs (a) and (e) of 25 CFR 81.23 are applicable to claims of the United States against restricted Indian estates. These paragraphs read as follows:

The question propounded by you has arisen because of the filing of a claim by the Farmers Home Administration of the Department of Agriculture against the estate of David Tangleyellowhair, a deceased Northern Cheyenne allottee.

On May 8, 1950, the Examiner of Inheritance transmitted copies of the calendar of proposed hearings on various Northern Cheyenne estates to representatives of the Farmers Home Administration, with the request that claims be filed before the dates of the hearings. The hearing on the present estate was set for and held on May 31, 1950. The claim in question was received by the Superintendent of the Northern Cheyenne Agency on July 8, 1950. The Superintendent did not forward the claim to the Examiner of Inheritance until November 1950. In the meantime, the Order Determining Heirs had been approved by the Examiner on July 24, 1950. Consequently, the claim of the Farmers Home Administration did not receive consideration by the Examiner.

It will be noted that neither paragraph (a) nor paragraph (e) of 25 CFR 81.23 makes any mention of the United States or of claims of the United States. In closely analogous circumstances involving the interpretation of Federal statutes, it is the general rule that the United States is not bound by restrictive legislation unless it is specifically named therein, and, in the absence of language clearly indicating a contrary intention, it will not be presumed that it was the purpose of Congress to deprive the Government of available rights or remedies.¹ The public policy behind this rule of stat-

¹ United States v. Stevenson, 215 U.S. 190, 197-198 (1909); United States v. Herron, 20 Wall. 251, 255, 261 (1873); The Dollar Savings Bank v. United States, 19 Wall, 227, 239 (1873); United States v. Taylor's Oak Ridge Corp., 89 F. Supp. 28, 32 (E.D. Tenn.. 1950).

1539

OPINIONS OF THE SOLICITOR

MAY 16, 1951

utory construction is certainly no less applicable in the construction of restrictive administrative regulations.

Therefore, since paragraphs (a) and (e) of 25 CFR 81.23, in imposing a time limitation with respect to the filing by the general public of claims against restricted Indian estates, do not specifically mention the United States or claims of the United States, it must be concluded that the time limitation prescribed in these paragraphs is inapplicable to the filing of claim on behalf of the United States.²

This responds--with regrettable tardiness--to your letter of August 14, 1950 (your file JMM: JJC: aal 90-2-7-012), concerning the lands in the vicinity of Celilo Falls, Oregon, reserved for the use of the Indians of that region engaged in fishing activities there.

These lands consist of several tracts. Two of the tracts, containing in the aggregate approximately 7.4 acres, are described in the act of February 9, 1929 (45 Stat. 1158), pursuant to which the tracts were made available to this Department for Indian use. A copy of a map showing the location of these tracts is enclosed. A third tract, containing in the aggregate approximately 34.5 acres, was purchased pursuant to the Interior Department Appropriation Act of July 25, 1947 (61 Stat. 460, 466). While no map of this tract is available here, there is enclosed a copy of the deed dated October 22, 1947, under which it was acquired. The deed gives a description of the tract, and indicates the form of title under which it is held by the United States. The Area Director of the Bureau of Indian Affairs, Portland, Oregon is being requested to furnish to the local United States Attorney a copy of any map of the tract which may be in his custody.

The Interior Department Appropriation Act of June 29, 1948 (62 Stat. 1112, 1120), contained an item in the amount of $125,000 which authorized the construction, repair, or rehabilitation of buildings and utilities at Celilo Falls for Indian use. The funds so appropriated were expended for the construction of buildings, including homes, and other facilities in the Indian village or settlement at Celilo Falls.

This Indian village is not located in proximity to any non-Indian community. The homes which were built for the Indian inhabitants are occupied by permanent residents. During the Fall season of each year, approximately 1,500 to 2,000 Indians congregate in the area, however, in order to carry on their fishing activities on the Columbia River.

It is the view of this Department that the Indians at Celilo Falls constitute "a dependent Indian community", and hence that such community constitutes "Indian country" within the meaning of 18 U.S.C., 1946 ed., Supp. III, sec. 1151. This view is based upon the decision in United States v. McGowan et al., 302 U.S. 535 (1938).

Where a statute places upon this Department the mandatory duty of conveying lands to persons who meet certain requirements prescribed in the legislation, the Department cannot impose upon such persons additional requirements or convey to them rights less than those provided for by Congress.

Where a statute vests in an administrative officer the discretionary power to grant or deny requested benefits, he may qualify grants of such benefits by making them subject to conditions deemed by him to be in the public interest.

The Secretary of the Interior has authority to insert in patents issued under the Recreation Act a provision barring racial discrimination in the use of the land.

² See, in this connection, United States v. Summerlin, 310 U.S. 414 (1940), and United States v. Lute, 78 F. Supp. 241, 243 (D. Minn., 1948), concerning the inapplicability to the United States of State statutes imposing time limitations on the filing of claims against the estates of decedents.

1540

DEPARTMENT OF THE INTERIOR

MAY 16, 1951

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Issuance of patents under the Recreation Act

This responds to the request for my opinion on the question whether the Secretary of the Interior has authority to insert in patents issued pursuant to the Recreation Act of June 14, 1926 (43 U.S.C., 1946 ed., sec. 869), a provision barring racial discrimination in the use of the land.

The Recreation Act confers upon the Secretary of the Interior the power, inter alia, to convey to States under exchange or sale arrangements, and to sell to counties and municipalities, public lands classified as chiefly valuable for recreational purposes. It expressly provides that any patent issued under the statute shall:

It is difficult to furnish a categorical answer to the inquiry stated above. The difficulty arises from the fact that two pertinent legal principles point the way to different conclusions.

In the first place, consideration must be given to the well established rule stated by the Supreme Court in the following:

This language seems to indicate that the Secretary of the Interior can insert in a patent issued under the Recreation Act only those restrictive provisions which are expressly authorized in that act. Under that approach to the problem now under consideration, a negative answer to the question stated at the outset of this memorandum would be necessary, inasmuch as the Recreation Act does not expressly authorize the inclusion in patents of a provision prohibiting racial discrimination in the use of the land.

However, the situation with which we are concerned at the present time can be distinguished from the problems before the Supreme Court in the case from which the above quotation was taken and in the other cases where the Court has adhered to the same rule.² In those cases, the Court was dealing with statutory provisions which placed upon this Department the mandatory duty of conveying public lands to persons who met certain requirements prescribed in the controlling legislation. Obviously, in such a situation the personnel of this Department could not, in effect, amend the particular statutes by imposing upon persons who met the statutory requirements further conditions not prescribed by Congress, or by conveying to them rights less than those which the Congress had stated they should receive.

The Recreation Act is not such a statute. It imposes no mandatory duty upon the Secretary of the Interior to convey lands to States, counties, or municipalities. Instead, the Recreation Act expressly states that the Secretary of the Interior is authorized, "in his discretion," to exchange land with States, and that the sale of land to States, counties, and municipalities is also "in the discretion" of the Secretary.

This leads to the second of the two legal principles previously mentioned. It is to the effect that where a statute vests in an administrative officer the discretionary power to grant or deny requested benefits he may qualify grants of benefits by making them subject to conditions deemed by him to be in the public interest, so long as such conditions are not prohibited by law.³ This rule extends to the exercise of discretionary power to grant interests in Government-owned lands.⁴

¹ Davis's Administrator v. Weibbold, 139 U.S. 507, 527-528 (1891).
² Deffeback v. Hawkes, 115 U.S. 392, 406 (1825). Burke v. Southern Pacific R.R. Co., 234 U.S. 669, 699-705 (1914).
³ Southern Pacific Co. v. Olympian Co., 260 U.S. 205, 208 (1922); Sunderland v. United States, 266 U.S. 226, 255 (1924); Impo v. Herbst, 92 F. (2d) 362, 365 (5th Cir. 1937); United States v. Wright, 56 F. Supp. 489. 492 (E.D. Ill. 1944).
⁴ United States v. Golden Gate Bridge and Highway District, 37 F. Supp. 505, 510 (N.D. Calif. 1941).

1541

OPINIONS OF THE SOLICITOR

MAY 16, 1951

Whether proposals for the exchange of land with States, or for the sale of land to States, counties, and municipalities, under the Recreation Act shall be consummated on behalf of the United States is wholly discretionary with the Secretary of the Interior. This being so, I believe that the Secretary could, if he desired, condition his approval of such proposals upon the inclusion in patents issued under the Recreation Act of a provision prohibiting racial discrimination in the use of the land. Such a provision is not prohibited by any Federal statute, and it would, I believe, be upheld by the courts ⁵ if it were to be inserted by the Secretary in patents issued under the Recreation Act.

The fact that Congress, in the Recreation Act, has specifically provided for the inclusion in patents of provisions respecting the reservation of mineral rights, the failure of the patentee during a 5-year period to use the land for park or recreational purposes, and the use of the land by the patentee for other purposes does not, in my judgment, indicate an intention upon the part of Congress to exclude from patents issued under the act other restrictive provisions deemed by .the Secretary of the Interior to be in the public interest. In view of the complete discretion that is vested in the Secretary to determine whether public land shall or shall not be conveyed to States, counties, and municipalities under the Recreation Act, the provisions prescribed by Congress for inclusion in patents under the act are evidently intended to be a minimum, rather than an exclusive, list of restrictions to be imposed upon patentees.

As indicated above, I believe that the question stated in the first paragraph of this memorandum should be answered in the affirmative.

PROPOSED WITHDRAWAL OF FORT
SPOKANE MILITARY RESERVATION
FOR RECREATIONAL PURPOSES

The Executive branch cannot utilize Government owned land for any purpose that would be inconsistent with an act of Congress.

A withdrawal of public land for a particular purpose does not terminate merely because the land is no longer being used for such purpose.

As the land included in the Fort Spokane Military Reservation has been set aside by act of Congress for Indian hospital purposes, such land cannot be withdrawn by Executive action for recreational purposes and included in the Coulee Dam National Recreational Area, notwithstanding the fact that the land is no longer actually being used for hospital purposes.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Proposed withdrawal of Fort Spokane Military Reservation for recreational purposes

This is in response to an informal request that this office consider the question whether the lands included in the Fort Spokane Military Reservation are subject to withdrawal for recreational purposes and inclusion in the Coulee Dam Recreational Area by Executive action.

The history of these lands is set forth in Solicitor's opinion M-30349, dated December 28, 1939, which discussed the question whether any Indians were entitled to compensation by reason of the flooding of some of the lands as the result of the construction of the Columbia River Reservoir. This question was answered in the negative. It was pointed out that the lands had been treated as public lands and included in the Fort Spokane Military Reservation by Executive order and that, although Congress had subsequently directed that these lands be used for various purposes in connection with the administration of Indian Affairs, there had been no recognition of the title of any particular group of Indians to the lands.

Thus, it appears that whatever aboriginal Indian title to these lands may once have existed has been taken by the Government, and that no present legal interest in the lands, except a possible right to compensation because of the extinguishment of Indian title, could now be asserted by any particular group of Indians.

This conclusion, however, does not necessarily dispose of the question whether the lands included in the Fort Spokane Military Reservation can now be devoted to recreational uses by Executive action. The answer to this question depends upon whether the lands are set aside for some other inconsistent purpose by Congressional action. It is axiomatic that the Executive branch cannot utilize Government-owned lands for any purpose that would be inconsistent with an act of Congress, for the Constitution places the authority to control and dispose of Government property exclusively in Congress, and any Executive action with refer-

⁵ See Air Terminal Service, Inc. v. Ren tzel et al., 81 F. Supp. 611, 612 (E.D. Va. 1949).

1542

DEPARTMENT OF THE INTERIOR

MAY 16, 1951

ence to such property must ultimately be traced to a Congressional authorization or to a delegation by Congress of its authority. Sioux Tribe v. United States, 316 U.S. 317, 326 (1942). See also 52 L.D. 226, and Southern Pacific Railroad Co. v. Orton, 32 Fed. 457, 469 (C.C.D. Calif., 1879).

The act of August 1, 1914 (38 Stat. 582, 853-84), set aside the lands of the Fort Spokane Military Reservation for Indian hospital purposes. Although the hospital constructed on the lands has been discontinued, the act of August 1, 1914, has not been repealed. The act of May 18, 1916 (39 Stat. 123, 155), authorized the sale of not to exceed 20 acres of the lands which were not needed for hospital purposes, but did not otherwise modify the act of August 1, 1914. The lands, therefore, are still set aside for Indian hospital purposes by act of Congress.

It has long been well settled that a withdrawal of public lands by Executive order, or other Executive action, does not terminate merely because the purpose of the order or action may have be come obsolete 5 L.D. 432; 48 L.D. 278; Sol. Op. M-35049, dated May 24, 1949. The same doctrine is, of course, no less applicable to a withdrawal effected by an act of Congress.

As for the question of consistency between the Congressional action in 1914 and the proposed use of the Fort Spokane lands for recreational purposes, it is apparent that the lands remaining in the Fort Spokane Military Reservation, which total only 333.31 acres, could hardly be used simultaneously both for hospital and recreational purposes. The plans for the development of the lands include the construction of a lodge, cabins, bath house, boat docks, and various utility buildings, and the setting aside of bathing areas, play areas, picnic areas, parking areas, camping grounds, and employees' residential areas. In this development, some of the existing hospital buildings would also be utilized. It must be apparent that such a utilization of the lands would not be consistent with the purpose of the existing Congressional withdrawal.

Under the act of July 5, 1884 (23 Stat. 103, 43 U.S.C., 1946 ed., secs. 1071-73), provision is made fir the disposition of the lands included in abandoned military reservations, together with the buildings and other property located on such lands. As the statute provides, however, for the subdivision of the lands into lots and the sale of the lots to settlers, and direcs thjat any property located oin such lands shall be disposed of under a system of competitive bidding, it supplies no authority which would be useful in carrying out the contemplated plan of development which the respect to Fort Spokane Military Reservation.

In its legislation dealing with the For Spokane Military Reservation, Congress has not only dedicated the lands to Indian uses, but also has recognized some sort of moral claim of the Colville or Spokane Indians to these lands. Indeed, the act of May 18, 19 16, supra, directed that the proceeds of the sale should be deposited in the Treasury to the credit of the Spokane Indians. In view of this historical background, it would seem particularly appropriate that the future use of the lands should be determined by the Congress.

I am of the opinion, therefore, that the lands included in the Fort Spokane Military Reservation are not subject to withdrawal for recreational purposes and inclusion in the Coulee Dam Recreational Area unless such action should be authorized by Congress.

A statutory provision empowering organized Indian tribes to employ counsel subject only to the requirement that the choice of counsel and the fixing of fees shall be subject to the approval of the Secretary of the Interior supersedes, as to such employment, a prior statutory provision regulating in general terms the contractual relations of Indian tribes with private parties.

Where contracts between unorganized Indian tribes and attorneys are required by statute to comply with certain specific requirements in addition to the requirement of receiving the approval of the Secretary of the Interior, the Secretary's authority is not limited to examining such contracts for compliance with the specific statutory requirements, but he may consider such a contract as a whole, including any provisions unrelated to the specific statutory requirements, and approve or withhold approval as his judgment may dictate.

Under a statutory provision governing the employment of attorneys by organized Indian tribes, which imposes the requirement of receiving the approval of the Secretary of the Interior only as to the choice of counsel and the fixing of fees, approval by the Secretary of contractual pro-

1543

OPINIONS OF THE SOLICITOR

JUNE 22, 1951

visions wholly unrelated to the choice of counsel or the fixing of fees is not required, and the Secretary cannot properly require the inclusion in such a contract of provisions having no reasonable relationship to the choice of counsel or the fixing of fees.

Under a statutory provision empowering organized Indian tribes to employ attorneys subject to the approval of the Secretary of the Interior respecting the choice of counsel and the fixing of fees, the Secretary is vested with wide discretion in determining what factors should be taken into account in passing upon the choice of counsel and the fixing of fees, and he may grant or withhold his approval upon the basis of whatever grounds he deems to be properly related to these matters, provided his action is not arbitrary or capricious.

The exercise of authority by the Secretary of the Interior over contracts between Indian tribes and attorneys does not constitute an unlawful interference with the free choice of counsel by Indian tribes, since the Secretary's authority is conferred by statutes enacted by the Congress in the exercise of the plenary power possessed by that body over Indian tribes and their affairs.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Authority of the Secretary respecting the approval of contracts between Indian tribes and
                 attorneys

This responds to your request for an expression of my opinion on the scope of your authority under the applicable statutory provisions relating to the approval of contracts between Indian tribes and attorneys. It appears from your memorandum that the opinion is desired as a guide in the preparation and promulgation of new regulations governing the negotiation, execution, and consideration of such contracts.

The applicable statutory provisions are now codified in 25 U.S.C., 1946 ed., as sections 81 and 476.

Section 81 is derived from section 2103 of the Revised Statutes, which, in turn, was based upon section 3 of the act of March 3, 1871 (16 Stat. 544, 570), and sections 1 and 2 of the act of May 21, 1872 (17 Stat. 136) . Section 81 reads in part as follows:

Section 81 does not specifically mention contracts between Indian tribes and attorneys. Such contracts are, however, plainly covered by the section if they provide for services relating to any one or more of the matters specified in the section. It appears, in fact, that the impositions to which the Indians had been subjected by unscrupulous members of the legal profession constituted an impelling reason for the enactment of the legislation. As was pointed out in a memorandum dated January 22, 1946, from the Solicitor to the Commissioner of Indian Affairs:

Section 476 is derived from section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat.

¹ The omitted words are "and the Commissioner of Indian Affairs." By reorganization Plan No. III of 1950 (15 F.R. 3174), the authority to approve contracts conferred on the Commissioner by section 81 was transferred to the Secretary.

1544

DEPARTMENT OF THE INTERIOR

JUNE 22, 1951

984, 987). This section authorizes Indian tribes to organize, and it provides that the constitution adopted by any Indian tribe "shall vest in such tribe or its tribal council" the power, among others, "To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior.²

As the earlier statutory provision (section 81) is, by its terms, applicable to all tribes residing within the territorial limits of the United States, and as the later statutory provision (section 476) is applicable only to those tribes which have adopted constitutions under it, the question arose whether section 476 had superseded section 81 with respect to contracts between organized tribes and attorneys. In answering this question in the affirmative, the Solicitor said in a memorandum dated January 23, 1937.³

As the view expressed by the Solicitor in 1937 appears to be correct, the question of the scope of the Secretary's authority must be separately considered under section 81 and 476.

Section 81 prescribes a number of requirements which a contract of employment between an Indian tribe and an attorney must meet, in addition to the requirement that the contract must bear the Secretary's approval indorsed upon it. These specific statutory requirements operate to limit the Secretary's discretion, in that none of them can be dispensed with by the Secretary,⁴and it is the duty of the Secretary to see to it that the requirements are met by any contract coming before him for approval. It does not follow, however, that the Secretary's authority is limited to examining proposed contracts for compliance with the statutory requirements, and that the Secretary cannot withhold his approval for reasons unrelated to the specific requirements of the statute. The contract itself may well contain many provisions which are unrelated to the specific statutory requirements, and inasmuch as the contract in its entirety is subject to the Secretary's approval, the Secretary clearly would be authorized to consider the contract as a whole, including any provisions unrelated to the specific statutory requirements, and approve or withhold approval as his judgment might dictate.

It was the purpose of Congress in section 81 to provide statutory safeguards that would be binding on the Indians and their attorneys, and on the Department as well, but Congress apparently realized the impracticability of covering by statute in advance every factor that should be taken into account and, hence, provided for the additional safe guard of Secretarial approval. In doing so, it was the evident intention of the Congress to enable the Secretary to condition his approval upon such other requirements as he might deem to be necessary for the protection of the Indians.

In LaMotte v. United States, 254 U.S. 570 (1921), the Supreme Court upheld the validity of regulations promulgated by the Secretary of the Interior for the purpose of prescribing in advance the terms and conditions which leases should contain in order to meet his approval under a statute which authorized the Indians to make such leases "subject only to the approval of the Secretary of

    ² The employment of counsel for the prosecution of claims the tribes against the United States is dealt with in section 15 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1053, 25 U.S.C., 1946 ed., sec. 70n). This section requires that attorneys for Indian tribes which are organized under the provisions of the Indian Reorganization Act be selected pursuant to the constitution and bylaws of the tribes. These constitutions and bylaws usually paraphrase the provisions in section 476 which require the choice of counsel and the fixing of fees to be approved by the Secretary of the Interior. The employment of attorneys by other claimants is subjected to the provisions of section 81.
    ³ The text of this memorandum appears in the Handbook of Federal Indian Law at p. 281.
    ⁴ 18 Op. Atty. Gen. 498 (1886); McMurray v. Choctaw Nation, 62 Ct. Cl. 458 (1926), cert. denied, 275 U.S. 524.

1545

OPINIONS OF THE SOLICITOR

JUNE 22, 1951

the Interior." After pointing out that the failure of the leasing provision to say anything about regulations was unimportant, and that the power to make regulations for the purpose of carrying the leasing provision into effect would be implied, the Supreme Court said (p. 577):

Statutes providing for the approval by the Secretary of the Interior of contracts made by Indians are numerous, and, whenever the courts have been called upon to consider such statutes, they have uniformly held that the power of approval carries with it wide discretionary authority to determine the conditions under which approval will be granted. Thus, in Anicker v. Gunsburg, 246 U.S. 110 (1918), the Court had under consideration the power of the Secretary under section 2 of the act of May 27, 1908 (35 Stat. 312), which provided that leases of restricted lands of members of the Five Civilized Tribes in Oklahoma might be made with the approval of the Secretary of the Interior, under rules and regulations prescribed by him, and not otherwise. The Court said (p. 119):

"The statute is plain in its provisions--that no lease, of the character here in question, can be valid without the approval of the Secretary. Such approval rests in the exercise of his discretion; unquestionably this authority was given to him for the protection of Indians against their own improvidence and the designs of those who would obtain their property for inadequate compensation. It is also true that the law does not vest arbitrary authority in the Secretary of the Interior. But it does give him power to consider the advantages and disadvantages of the lease presented for his action, and to grant or withhold approval as his judgment may dictate."

See also, to the same general effect, Davis v. Williford, 271 U.S. 484 (1926).

Of course, the authority conferred upon the Secretary by section 81, although very broad, is not unlimited. Approval of a contract could not be withheld capriciously or on purely arbitrary grounds. Moreover, as the power to contract is vested in the tribe, the Secretary could not initiate or make a contract for a tribe.⁵ Subject to these limitations and to the observance of the specific requirements imposed by section 81, it is my opinion that the discretionary authority vested in the Secretary under that section is broad enough to empower the Secretary to grant or withhold approval of contracts between Indian tribes and attorneys in accordance with his view as to what is necessary or advisable in order to protect the interests of the Indians, and to prescribe in advance the terms and conditions which a contract between an Indian tribe and legal counsel must contain in order to meet with the Secretary's approval.

The provisions of section 476 which are pertinent to the present inquiry circumscribe the limits of the Secretary's authority by confining the requirement of Secretarial approval, in so far as contracts between organized Indian tribes and attorneys are concerned, to the choice of counsel and the fixing of fees. In this respect, the section differs materially from section 81, under the contract in its entirety is subject to Secretarial approval. The considerations which may be invoked for withholding approval under section 476 from a contract made by an organized tribe with legal counsel must, therefore, bear some reasonable relationship either to the choice of counsel or to the fixing of fees. For example, as contract provisions wholly unrelated to these matters are not subject to the Secretary's approval, any attempt to require the inclusion in a contract of such unrelated provisions as a condition precedent to the granting of Secretarial approval would be beyond the scope of the Secretary's authority under this section. See Work v. Mosier, 261 U.S. 352 (1923); Ballinger v. Frost, 216 U.S. 240 (1910).

Wide discretion is, however, vested in the Secretary with regard to determining what considerations ought to be taken into account under section 476 in passing upon the choice of counsel and the fixing of fees. Subject to the traditional limitations against arbitrary or capricious action, I believe that the Secretary may grant approval to or withhold approval from a contract between an organized tribe and legal counsel for any reason or reasons which he deems to be properly related

⁵ Mott v. United States, 283 U.S. 747. 751 (1931); Midland Oil Co. v. Turner, 179 Fed. 74 (8th Cir., 1910); Jennings v. Wood. 192 Fed. 507 (8th Cir., 1911).

1546

DEPARTMENT OF THE INTERIOR

JUNE 22, 1951

to the choice of counsel or the fixing of fees. ⁶ Similarly, the Secretary may promulgate regulations prescribing in advance the terms and provisions relating to these matters which a contract between an organized tribe and legal counsel must contain in order to receive his approval.

The foregoing discussion outlines in general terms the scope of the Secretary's authority under sections 81 and 476 and ,the limitations upon the exercise of such authority. This general treatment is necessary for the reason that it is not possible to foresee and provide for every possible contingency or eventuality that might call for the exercise of the Secretary's authority under these respective sections. The views expressed will, I hope, supply guidance for the formulation of regulations governing the employment of attorneys by Indian tribes.

In the formulation of the views stated in this memorandum, consideration has been given to the comments made by lawyers and others in a memorandum that was issued by the Commissioner of Indian Affairs on November 9, 1950. None of the arguments made, and none of the authorities cited, in those comments requires that the views ex pressed above be modified in any way. One erroneous thought which appears to run through the various comments received by the Department should be mentioned. This is that the exercise by the Secretary of authority such as I have outlined would interfere with the free choice of counsel by Indian ;tribes and, therefore, would be unlawful. This objection is without merit, since the Secretary's authority is derived from statutes validly enacted in the exercise of the plenary power possessed by Congress over the property and affairs of Indian tribes. Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) ; United States v. Kagama, 118 U.S. 375, 384 (1886) ; United States v. Sandoval, 231 U.S. 28, 43 (1913) ; United States v. Nice, 241 U.S. 591 (1916) ; Bowling v. United States, 233 U.S. 528 (1914) ; Winton v. Ames, 255 U.S. 373 (1921). That this power extends to the regulation of the contract relations between Indians and private parties is no longer open to question. See Pasley v. Union National Bank, 278 Pac. 621 (Okla., 1928) ; Osage Motor Co. v. Pappin, 281 Pac. 217 (Okla., 1929) ; Osage Motor Co. v. United States, 33 F. (2d) 21 (8th Cir. 1939), cert denied, 280 U.S. 577.

Whether the existing restrictions on the power of Indian tribes to employ attorneys of their own choice should be removed in whole or in part is a matter for determination by the Congress. Until that body acts, the existing restrictions are binding on the Indians and their attorneys, and also on the Department.

Valentine--Gerard--Crow--Porter-field--Wyandotte Sioux Half-Breed--Forest Lieu--Soldiers' Additional--Public Lands--Withdrawals--Mineral Lands--Surveys--Occupancy Under Claim of Right.

Tidelands and lands beneath navigable inland waters belong to the States within whose boundaries they are situated (or to the States' grantees).

The term "public lands", when used in Federal provisions of law relating to the disposition of land, does not include submerged coastal lands.

Land known to be valuable for oil is "mineral" land for the purpose of scrip location.

Land occupied by another person under a claim of right cannot be selected under scrip as vacant or unoccupied or unappropriated land.

Memorandum
To:            The Secretary of the Interior.
From:        The Solicitor.
Subject:     Scrip applications for submerged coastal lands.

This responds to your oral request for an expression of my opinion regarding the action that the

⁶ See in this connection, Southern Pacific Co. v. Olympian Co., 260 U.S. 205, 208 (1922); Sunder-land v. United States, 266 U.S. 226. 235 (1924).

1547

OPINIONS OF THE SOLICITOR

JUNE 25, 1951

Department should take upon certain pending applications¹ to select, under various types of land
scrip, areas of submerged lands. The earliest of these applications was filed on August 8, 1946, and the latest was filed on May 12, 1951. One of the applications involves submerged lands along the coast of Louisiana, two involve submerged lands along the Texas coast, and the remainder involve submerged lands along the coast of California. The areas applied for vary in size from 40 acres to 1,932 acres.

It will be assumed, for the purpose of this discussion, that all the submerged lands involved in the applications previously mentioned lie seaward of the line of ordinary low tide along the respective coasts of Louisiana, Texas, and California, and that they are all situated outside the inland waters of those States, so that they are subject to the paramount rights, full dominion, and power of the United States under the Supreme Court's decisions in United States v. Louisiana, 339 U.S. 699 (1950), United States v. Texas, 339 U.S. 707 (1950), and United States v. California, 332 U.S. 19 (1947) . To the extent that any of these areas may actually comprise tidelands (i.e., lands situated between the lines of high and low tide) or lands beneath navigable inland waters, they be long to the States within whose boundaries they are situated (or to the States' grantees), under the doctrine announced by the Supreme Court in Pollard's Lessee v. Hagan, 3 How. 212 (1845), and related cases.

It seems advisable at the outset to summarize briefly the different provisions of law which are involved in this problem.

Four of the pending applications are based, in whole or in part, upon scrip issued under the act of April 5, 1872 for the relief of Thomas B. Valentine (17 Stat. 649) . That act authorized the Federal courts to adjudicate the merits of the claim of Thomas B. Valentine to a certain area of land in Sonoma County, California, under a Mexican grant. It was provided in section 3 of the act (p. 650) that:

Four of the pending applications are based upon scrip issued under the act of February 10, 1855 for the relief of the heirs of Joseph Gerard (10 Stat. 849). That act provided that the three children of Joseph Gerard:

One of the pending applications is based in part upon scrip issued under the act of February 18, 1907 relating to the land claim of Isaac Crow (34 Stat. 896). That act, in section 1, confirmed the patents theretofore issued by the United States, and the previous allowances of bona fide home stead entries, on lands within the specified sections comprising Isaac Crow's land claim, and then provided in section 3 (p. 897):

One of the pending applications is based in part upon a warrant issued under the act of April 11, 1860 for the relief of the legal representatives of Charles Porterfield, deceased (12 Stat. 836). That act authorized the Secretary of the Interior to issue to the executors of Robert Porterfield, deceased, warrants covering 6,133 acres of land:

^l Los Angeles 064374, 068714, 069033, 069107, 084333, 082864, 084334, and 084335, BLM 022310 and 022604, and Misc. 61877.

1548

DEPARTMENT OF THE INTERIOR

JUNE 25, 1951

Four of the pending applications are based in part upon rights claimed with respect to forest lieu selections under the act of June 4, 1897 (30 Stat. 11, 36), as modified. The 1897 act provided:

By the act of June 6, 1900 (31 Stat. 588, 614), Congress required that all subsequent selections of land made under the 1897 act:

The provisions of law relating to forest lieu selections were repealed by the act of March 3, 1905 (33 Stat. 1264). However, Congress subsequently enacted the act of September 22, 1922 (42 Stat. 1017), for the relief of persons who had relinquished land to the Government under the 1897 act but who had failed to record their selections prior to March 3, 1905, or whose lieu selections were finally rejected. The 1922 act provided that such persons might, under certain circumstances, be permitted to select "* * * not to exceed an equal value of national-forest land, unoccupied, surveyed, and nonmineral in character * * *" (which obviously is inapplicable here), or might, under other stated circumstances, select:

Six of the pending applications are based, in whole or in part, upon soldiers' rights to enter additional lands for homestead purposes under section 2306 of the Revised Statutes (43 U.S.C., 1946 ed., sec. 274).² That section provided, in effect, that any person who had served honorably in the armed forces of the United States during the Civil War for at least 90 days, and who had theretofore (i.e., prior to June 22, 1874) entered under the homestead laws a quantity of land less than 160 acres:

Two of the pending applications are based in part upon Wyandotte scrip issued under article 9 of the treaty of January 31, 1855 (10 Stat. 1159, 1162) , which provided:

Three of the pending applications are based in part upon scrip issued under the act of July 17, 1854 (10 Stat. 304). Section 1 of that act authorized the half-breeds or mixed bloods of the Sioux tribe to relinquish their interests in a certain area of land, and it authorized the President, upon such relinquishment:

In beginning our consideration of the legal question posed by the applications mentioned above, it is apparent immediately that none of the applications can be approved by the Department unless it is determined, in the first instance, that the lands applied for are public lands.

An examination of the pertinent statutory provisions set out in part I of this memorandum reveals that the provisions upon which the Valentine,

² This section was derived from section 2 of the act of April 4, 1872 (17 Stat. 49), as amended by the act of June 8. 1872, (17 Stat. 333).

1549

OPINIONS OF THE SOLICITOR

JUNE 25, 1951

Gerard, Crow, Porterfield, and forest lieu applications are based specifically indicate that only "public lands" may be selected in pursuance of the rights granted by those statutes.

In the case of the applications which involve soldiers' additional homestead rights under section 2306 of the Revised Statutes, it is pertinent to state that section 2306 comprises part of chapter 5, entitled "Homesteads", of title XXXII of the Revised Statutes, and that it is plainly stated elsewhere in the chapter that only "public lands" are subject to homestead entry (see, in particular, Rev. Stat. 2289, 2304; 43 U.S.C., 1946 ed., secs. 161, 271).

In so far as the applications which rely in part upon Wyandotte scrip are concerned, it will be noted that, under the language used in the treaty, such scrip may only be used for the selection of lands "subject to preemption and settlement". At the time of the making of the Wyandotte treaty on January 31, 1855, the basic provisions of law governing the preemption of and settlement upon lands of the United States indicated specifically that only "public lands" were subject to preemption and settlement (sec. 10 et seq., act of September 4, 1841, 5 Stat. 453, 455). Hence, the right of selection granted by article 9 of the treaty was necessarily limited to public lands.

With regard to the applications which are based in part upon Sioux half-breeds' scrip, it will be observed that the pertinent statutory language indicates that such scrip may be used only for the selection of "lands subject to preemption or private sale". Since none of the land sought in these applications has ever been made subject to private sale, there is left for interpretation only the phrase "lands subject to preemption". With regard to this point, the discussion of Wyandotte scrip in the preceding paragraph is equally applicable to Sioux half-breeds' scrip.

It is clear, therefore, that the several provisions of law which are involved in this problem granted rights of selection only with respect to public lands.

The term "public lands", when used in Federal provisions of law relating to the disposition of land, does not include land lying seaward of the line of high tide along the coast. Mann v. Tacoma Land Company, 153 U.S. 273, 284 (1894); Shively v. Bowlby, 152 U.S. 1, 49-50 (1894); see Borax Consolidated, Ltd., et al. v. Los Angeles, 296 U.S. 10, 17, 22 (1935).

The Mann case, cited in the preceding paragraph, is particularly significant for our purpose. That case involved the validity of locations made under Valentine scrip on lands situated below the line of high tide in Commencement Bay, Territory of Washington. The Supreme Court held, in effect, that the locations were invalid because only public lands could be located under Valentine scrip and the lands involved in the case were not in the category of public lands.³

As all the lands sought in the applications involved here are situated seaward of the line of high tide along the coast, they are not within the category of public lands. For that reason, apart from any others, all the applications must be rejected by the Department.

This conclusion is not negated by the decision of the Supreme Court in the case of Hynes v. Grimes Packing Company, 337 U.S. 86 (1949). That case involved, among other things, the interpretation of section 2 of the act of May 1, 1936 (49 Stat. 1250; 48 U.S.C., 1946 ed., sec. 358a), which authorized the Secretary of the Interior to designate as an Indian reservation any "public lands which are actually occupied by Indians or Eskimos" within the Territory of Alaska (as well as other lands specified in the section). Under the authority of this section, the Secretary issued an order which established the Karluk Indian Reservation on Kodiak Island and, where the reservation fronted on Shelikof Strait, placed within the boundaries of the reservation coastal waters to a distance of 3,000 feet from the shore line at mean low tide. The Court held that the statutory phrase previously quoted authorized the Secretary to include the coastal area within the boundaries of the reservation. The Court expressed the view that an interpretation of the statutory language so as "to describe only land above mean low tide is too restrictive in view of the history and habits of Alaska natives and the course of administration of Indian affairs in that Territory" (pp. 110-111). The Court stressed that section 2 of the 1936 act "gives no power to the Secretary to dispose finally of federal lands" or "do convey any permanent title or right to the Indians in the lands or waters of Karluk Reservation" (p. 102); and the Court indicated that it was the temporary character of the reservation, and the circumstance that the governing statutory provision was part of a series of legislative enactments designed to improve the economic condition of Alaskan natives, that distinguished the Hynes case from other cases holding that the term "public lands" does not include lands below the high watermark along the coast (pp. 115-l 16).

³ As Washington was a Territory at the time when the locations were made, title to the lands was vested in the United States at the time of the locations. Hence, the lands were Government lands but not "public lands."

1550

DEPARTMENT OF THE INTERIOR

JUNE 25, 1951

meaning of the term "public lands" when used in provisions of law providing for the final disposition of lands. There is not involved here any mere matter of temporary occupancy and use of Government lands, such as the Supreme Court said was involved in the Hynes case. Hence, we must interpret the term "public lands" in accordance with the Supreme Court's earlier decisions dealing with statutes providing for the final disposition of land.

Furthermore, if the lands involved in the pending applications were otherwise available for selection under scrip, it would be necessary to consider the effect upon them of the general withdrawal order of November 26, 1934 (Executive Order 6910, 43 CFR 297.11), or the general withdrawal order of February 5, 1935 (Executive Order 6964, 43 CFR 297.12), or Executive Order 9633 dated September 28, 1945 (10 F.R. 12305).

The order of November 26, 1934 declared that "all of the * * * public land in the States of * * * California * * * be, and it hereby is, temporarily withdrawn from * * * location * * * or entry and reserved for classification, and pending determination of the most useful purpose to which such land may be put * * *." The order of February 5, 1935 effected a similar withdrawal of "all the public lands" in Louisiana and certain other States. These withdrawals were, in effect, ratified by Congress in section 7 of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315f).

Executive Order 9633 declared that the lands "of the continental shelf beneath the high seas but contiguous to the coasts of the United States * * * be and they are hereby reserved, set aside, and placed under the jurisdiction and control of the Secretary of the Interior for administrative purposes, pending the enactment of legislation in regard thereto."

Therefore, even if the lands involved in the pending applications were otherwise available for selection under scrip, they would have been withdrawn prior to the respective dates on which the pending applications were filed, and they would still be subject to such withdrawals. So long as lands are withdrawn, they cannot be selected under scrip. See Chotard v. Pope, 12 Wheat. 586 (1827).⁴

Perhaps it should also be mentioned that most of the areas involved in these scrip applications were, at the times when the several applications for such areas were filed, known to be valuable for oil. By this, it is meant "that the known conditions at that time were such as reasonably to engender the belief that the lands contained oil of such quality and in such quantity as would render its extraction profitable and justify expenditures to that end." United States v. Southern Pacific Company et al., 251 U.S. 1, 13-14 (1919). Such areas constitute "mineral" lands, within the meaning of that term as used in public-land statutes. Burke v. Southern Pacific Railroad Company, 234 U.S. 669, 676-679 (1914); United States v. Southern Pacific Company el al., supra.

In this connection, it may be noted that the governing statutory provisions under which the Valentine, Crow, and forest lieu applications are based specifically state that only nonmineral lands may be selected under such provisions of law.

With regard to the applications involving soldiers' additional homestead rights under section 2306 of the Revised Statutes, it has previously been mentioned that this section comprises part of chapter 5 of title XXXII of the Revised Statutes. Another section in the same chapter (Rev. Stat. 2302, 43 U.S.C., 1946 ed., sec. 201) provides that "mineral lands" are not subject to entry under the provisions of the chapter.

The provisions of law under which the Gerard, Wyandotte, Sioux, and Porterfield applications were filed do not expressly exclude mineral lands from their scope. However, all the present applications involving Gerard, Wyandotte, and Sioux half breeds' scrip seek to obtain lands situated within the State of California, and the Supreme Court has held that, as early as 1853, the policy of the United States with respect to the disposition of mineral lands in California had been developed to the point where such lands were impliedly excluded from the scope of legislation providing in general terms for the disposition of public lands, and were affected only by legislation expressly pro viding for the disposition of mineral lands. Mining Company v. Consolidated Mining Company, 102 U.S. 167, 174-175 (1880). The several provisions of law involved in the present Gerard, Wyandotte, and Sioux applications are all subsequent in time to 1853.⁵ Consequently, it seems clear that mineral lands in California were, by implication, excluded from the scope of such provisions of law.

⁴ In so far as public lands within the States of California and Louisiana withdrawn by the orders of November 26, 1934 and February 5, 1935 are concerned, the Secretary of the Interior is authorized, in his discretion, to examine and classify such lands as "proper for acquisition in satisfaction of any outstanding * * * scrip rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification * * * " (43 U.S.C., 1946 ed., sec. 315f). Of course, no action along this line has been taken with regard to the lands involved in the present applications.
⁵ The promise made in article XIV of the treaty of March 17, 1842 (11 Stat. 581, 583), to grant lands to the Wyandottes related only to "lands * * * set apart for Indian use." The grant of the right to select public lands subject to preemption and settlement was not made until 1855.