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1551

OPINIONS OF THE SOLICITOR

JULY 31, 1951

It appears that the 1860 statute providing for the issuance of Porterfield warrants, although it does not expressly exclude mineral lands, would be subject to the general rule of implied exclusion stated by the Supreme Court in the case of United States v. Sweet, 245 U.S. 563, 567 (1918), as follows:

It is unnecessary in the present instance, however, actually to pass upon the question of the implied exclusion of mineral lands from the scope of the provisions of law mentioned in the two preceding paragraphs, or upon the question whether surface rights to the mineral lands involved in the several applications under consideration in this memorandum might be obtained by the applicants under the provisions of 30 U.S.C., 1946 ed., sec. 121. As indicated in other parts of this memorandum, the rejection of the applications is required for reasons apart from the mineral character of lands.

There are other pertinent points which might be discussed. For example, there is the circumstance that the lands applied for have never been surveyed and are not subject to being surveyed (see Mann v. Tacoma Land Company, supra) and, consequently, could not be selected under provisions of law limiting selections to surveyed lands or land subject to survey. Also, there is the further fact that a number of the areas applied for were, at the times when the respective applications were filed, occupied under claims of right by other persons engaged in the production of oil from such areas and, accordingly, apart from the other considerations mentioned in this memorandum, would not have been subject to selection as "vacant" or "unoccupied" or "unappropriated" lands (see Atherton v. Fowler, 96 U.S. 513, 519 (1877); Cowell v. Lammers 21 Fed. 200, 203 (C.C.D. Calif., 1884) ).

It seems unnecessary, however, to extend the discussion, because it is already clear that, for reasons previously given, the Department must reject all the pending applications.

RED LAKE SAWMILL FUND--USE FOR
DEFRAYING EXPENSES OF SALE OF LITTLE
PINE ISLAND TIMBER

A statute which provides for the creation of a forest reserve on an Indian reservation and authorizes the manufacture and sale of timber within the reserve at a tribal sawmill, with a provision for the use of the net proceeds for expenses in connection with the operation, cannot properly be construed to authorize the use of any part of the net proceeds for the purpose of meeting supervisory and scaling costs incurred in connection with a sale of reservation timber, none of which is located within the forest reserve and none of which is to be manufactured at the tribal sawmill.

Under a provision in an annual appropriation act which states, without limitation or exception, that tribal funds may be advanced to Indian tribes for "such purposes as may be designated by the governing body of the particular tribe involved and approved by the Secretary", it is legally permissible for the tribe, with the concurrence of the Secretary of the Interior, to use the net proceeds from the operation of a tribal saw mill for the purpose of meeting supervisory and scaling costs incurred in the sale of reservation timber.

Memorandum
To:            The Director, Division of Land Utilization
From:        The Solicitor
Subject:     Proposed sale of timber from Little Pine Island

This responds to your memorandum of July 18, in which you request that I review the legality of the proposed procedure in connection with the sale of cordwood and cedar from Little Pine Island, which is part of the Red Lake Indian Reservation in Minnesota.

It is understood that you have reference to the proposal that the governing body of the Red Lake

⁶ Cf. Work v. Louisiana, 269 U.S. 250, 255 (1925), in which the Supreme Court said that "There was, however, no such settled policy in 1849 and 1850 * * *."

1552

DEPARTMENT OF THE INTERIOR

JUNE 25, 1951

Tribal Council consent to the use of the Red Lake Sawmill Fund to pay supervisory and scaling costs incident to the proposed sale, and that you question the authority to use the sawmill fund for this purpose.

The Red Lake Indian Sawmill Fund is composed of the net proceeds derived from the manufacture and sale of timber at the Red Lake sawmill, which was constructed and is being operated under the provisions of the act of May 18, 1916 (39 Stat. 123, 137). That act created a forest reserve "to be known as the Red Lake Indian Forest," and the mill was constructed for the purpose of manufacturing timber located within the forest reserve. Although the 1916 act, as amended by the act of June 30, 1919 (41 Stat. 1, 14), confers broad authority for the use of the sawmill fund in meeting expenses incident to the manufacture of timber at the Red Lake sawmill, I find nothing therein that would authorize the use of the sawmill fund to defray expenses incident to the sale of the timber located on Little Pine Island, since that timber is not a part of the Red Lake Indian Forest, and none of it is to be manufactured at the Red Lake sawmill.

Your attention is called, however, to the provision in the Interior Department Appropriation Act, 1951 (Ch. VII, Public Law 759, 81st Cong.), which states that "Tribal funds may be advanced to Indian tribes during the current fiscal year for such purposes as may be designated by the governing body of the particular tribe involved and approved by the Secretary." This provision has been temporarily extended by the terms of H. J. Resolution 277 (Public Law 70, 82d Cong.), and an identical provision is contained in the Department's appropriation bill for 1952 (H.R. 3790). As the provision contains no exceptions of any kind, it must be deemed to be as applicable to the Red Lake Indian Sawmill Fund as to any other tribal fund.

Accordingly, it would be legally permissible, so long as the provision mentioned above remains in effect, for the tribe, with the concurrence of the Secretary, to permit the Red Lake Indian Sawmill Fund to be used to meet supervisory and scaling costs incident to the sale of Little Pine Island timber.

Where a contract between an attorney and an Indian tribe, which is subject to the approval of the Secretary of the Interior or his authorized representative, runs for a period of ten years from the date of its execution, the approval of the contract relates back to the date of execution so that the 10-year period of the contract runs from that date and not from the date of approval.

Where such a contract provides for annual payments, the first of which is payable within one month after the date of approval of the contract, with subsequent payments to "fall due on the first of November of each succeeding year," and the contract was executed on December 8, 1949, and approved on April 13, 1951, the first annual payment became payable within one month after April 13, 1951, and the second annual payment becomes payable on November 1, 1951, with subsequent annual payments to become due on the anniversary of that date.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Payment of fees under claims contract between James E. Curry and the Colville Indians

This responds to the request made in your memorandum of May 28 that I express an opinion on the question whether Mr. James E. Curry is entitled to payment of fees under two vouchers filed by him for services rendered by him pursuant to the terms of a contract between him and the Colville Indians under which he is employed as attorney to prosecute their claims against the United States. The first voucher covers services rendered from November 1949 through October 31, 1950; the second covers services rendered or to be rendered from November 1, 1950 to October 31, 1951.

The execution of the contract, which is dated November 28, 1949, was completed by the parties on December 8, 1949, but it was not approved until April 13, 1951, as required by section 2103 of the Revised Statutes (25 U.S.C., 1946 ed., sec. 81). The contract contains three :paragraphs which are relevant to a consideration of the question which you have submitted. These are paragraphs 5, 6, and 9, which read, respectively, as follows:

1553

OPINIONS OF THE SOLICITOR

AUGUST 6, 1951

I am of the opinion that both vouchers submitted by the attorney should be paid, one now and the other on November 1, 1951.

The contract clearly states that it is to run for a period of ten years beginning with the date of its execution. While it was also made subject to the approval of the Commissioner of Indian Affairs, the approval must be held to operate by relation to the date of the execution of the contract. It was so held by the Attorney General in the case of a contract approved by the Secretary of the Interior pursuant to section 2103 of the Revised Statutes (15 Op. Atty. Gen. 585). In that case, the Attorney General held that a claimant requesting payment under such a contract is not confined to showing acts of service done after the date of the approval of the contract, but may show acts of service performed at any time after the date of the execution of the contract.

The doctrine of relation, which is based upon the broad equitable principle of preventing injustice to claimants who have initiated but not perfected rights, is peculiarly applicable in the case of attorneys who have entered into contracts with Indian tribes providing for the prosecution of claims. As a rule, an attorney must spend a great deal of time investigating a claim before committing himself to its prosecution, and, if he is diligent, he initiates this work prior to the approval of his contract. As it takes considerable time to secure the approval of a contract, it would penalize an attorney for his diligence to bar him from receiving compensation for work performed during the interim while the contract is receiving administrative consideration.

It must be remembered that sections 2103, 2104, and 2105 of the Revised Statutes (25 U.S.C., 1946 ed., secs. 81, 82, 83) do not bar attorneys from performing services for Indian tribes. What these statutory provisions prohibit and penalize are the payment and receipt of compensation for such services in the absence of the approval of the contract pursuant to which they are rendered.

There appears to be no provision in the contract in the present case which indicates that the doctrine of relation should not be applied. To pay the retainer fee only for the period subsequent to the approval of the contract would, in effect, reduce the term of the contract from ten years to less than nine. This would be inconsistent with the clear statement of the terms of the contract in paragraph 9.

It appears that, under the plain terms of the contract, the first annual retainer fee, in the sum of $3,000, became payable to Mr. Curry within one month after April 13, 1951. It also appears that the second annual payment will be due on November 1, 1951, as the phrase "each succeeding year" in paragraph 5 of the contract is understood as referring to the second contract-year and, in turn, to each subsequent contract-year thereafter.

Regulations--Oil or Gas Pipe Lines--Common Carrier--Discretionary Power of Secretary.

As the power of the Secretary with respect to the granting of rights-of-way across Indian lands for oil or gas pipe lines is wholly discretionary, the Secretary may grant such rights-of-way subject to whatever conditions he deems to appropriate.

The Secretary has the legal authority to promulgate a regulation requiring all applicants for rights-of-way for oil or gas pipe lines across Indian lands to agree to operate such lines as common carriers, if he deems such action to be appropriate.

A policy recommendation is made that the Secretary's actions in the discharge of his supervisory functions respecting Indian lands ought to be motivated by considerations relating to the welfare of the Indians or to the interests of the Government; and that, since the purpose of im-

1554

DEPARTMENT OF THE INTERIOR

JUNE 25, 1951

posing a common-carrier requirement on applicants for rights-of-way across Indian lands for oil or gas pipe lines would be to promote the interests of prospective shippers of oil or gas, rather than to promote the interests of the Indians or of the Government, such a requirement ought not to be imposed.

Memorandum
To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Rights-of-way over Indian lands.

Attached is a proposed revision of Part 256 of the Code of Federal Regulations, which governs the granting of rights-of-way over Indian lands.

These proposed regulations were prepared initially in the Bureau of Indian Affairs. They have been revised somewhat in this office for purposes of clarification.

The only point that appears to require special consideration is a suggestion that has been made to the effect that there be inserted in the section (256.25) relating to rights-of-way for oil or gas pipe lines a provision requiring each applicant for such a right-of-way to agree, as a condition precedent to the granting of the right-of-way, that the pipe line will be operated as a common carrier.

I have no doubt concerning the legal authority of the Secretary of the Interior to include a common-carrier requirement in the section relating to rights-of-way for oil or gas pipe lines, if he should deem such action to be appropriate. The power of the Secretary of the Interior with respect to the granting of rights-of-way for the construction of oil or gas pipe lines across Indian lands is discretionary in nature.

The long-standing statutory provision relating specifically to this subject states that:

A more recent statutory provision conferring upon the Secretary of the Interior general authority respecting the granting of all types of rights-of way across Indian lands declares that:

Since the Secretary, under the statutory provisions quoted above, cannot be compelled to grant applications for rights-of-way for the construction of oil or gas pipe lines across Indian lands, but, on the contrary, has complete discretion to deny such applications, he may grant rights-of-way for oil or gas pipe lines subject to whatever conditions he deems to be appropriate.¹ Of course, the Secretary could not impose a condition specifically prohibited by law, and he could not act arbitrarily or capriciously in the imposition of conditions. However, the proposal that the Secretary, by regulation, require all applicants for rights-of-way for oil or gas pipe lines across Indian lands to agree to operate such lines as common carriers is well within the permissible scope of the Secretary's discretionary power, in my opinion.

It is my recommendation, however, that the Secretary do not require, as a condition precedent to the granting of rights-of-way across Indian lands for the construction of oil or gas pipe lines, that each applicant for such a right-of-way agree to operate the pipe line as a common carrier.

It must be remembered that we are not dealing here with public lands, which are owned by all the people and, hence, may appropriately be administered from the standpoint of achieving the greatest good for the greatest number of the public at large. The beneficial ownership of Indian lands is vested in the Indians themselves. In exercising control over such lands, the Secretary of the Interior acts for the Government in its capacity as guardian for Indian tribes and for individual Indians in relation to their trust or restricted property. Consequently, I believe that the Secretary's actions in the discharge of his functions respecting Indian lands ought to be motivated by considerations relating to the welfare of the Indians or relating to the interests of ,the Government.

The imposition of a common-carrier requirement in connection with the granting of rights-of-way across Indian lands for oil or gas pipe lines would not be in furtherance of the interests of the Indians or in furtherance of the interests of the Government. Instead, the purpose of such a requirement would be to promote the interests of prospective shippers of oil or gas.

¹ Southern Pacific Co. v. Olympian Co., 260 U.S. 205, 208 (1922); Sunderland v. United States, 266 U.S. 226. 235 (1924); Lupo v. Zerbst, 92 F. (2d) 362, 365 (5th Cir. 1937); United States v. Golden Gate Bridge and Highway District, 37 F. Supp. 505, 510 (N.D. Calif. 1941); United States v. Wright., 56 F. Supp. 489, 492 (EN. Ill. 1944).

1555

OPINIONS OF THE SOLICITOR

AUGUST 6, 1951

For the reasons indicated above, I do not believe that the suggestion respecting the inclusion of a common-carrier requirement in section 256.25 of these regulations should be adopted. This, of course, is a policy recommendation and not the statement of a legal position.

USE OF REGULAR OFFICE STAFF STENOGRAPHER
BY ATTORNEY UNDER TRIBAL CONTRACT--
CLAIM FOR REIMBURSEMENT

Where a contract between an attorney and an Indian tribe authorizes the attorney to employ such stenographic services as are necessary for the performance of his obligations under the contract, and to charge as an expense to the tribe the amount paid for such services, the claim of the attorney to reimbursement for money paid to a stenographer who is a regular member of his office staff, representing the proportion of her time during regular office hours devoted to stenographic work for the tribe, should be allowed.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Claim of James E. Curry for reimbursement of stenographic expenses

You have asked for an expression of my opinion on the question whether Mr. James E. Curry is entitled, under the provisions of his contract with the Sioux Tribe of Indians, Standing Rock Reservation, to reimbursement for the proportionate amount paid to a stenographer who is a regular member of his office staff for services performed for the benefit of the tribe during regular office hours.

Mr. Curry's contract with the Standing Rock Sioux Tribe was executed on October 31, 1949, and was approved by the Assistant Commissioner of Indian Affairs on November 14, 1949. The pertinent part of the contract is found in paragraph 4, and reads as follows:

This provision plainly contemplates that payments made for stenographic services required by the attorney in the performance of his obligations under the contract will be allowed as expenses incidental to his employment, so long as the yearly expense limitation provided for elsewhere in the contract is not exceeded. The contract contains no provision precluding the use by the attorney of a stenographer who is a member of his regular office staff, and it would seem to be immaterial to the tribe whether the work is done .by such a stenographer or by some other person or persons specially employed from time to time to perform stenographic services in connection with the tribe's business. The point of concern to the tribe under this contract provision is whether the stenographic work for which it is billed was essential to the performance by the attorney of his contractual obligations to the tribe, rather than whether the stenographer had a regular or temporary employment status with Mr. Curry.

In my opinion, the item of stenographic expense involved in the present inquiry, if otherwise proper under the contract, should be allowed.

This responds to your Department's letter of August 20, 1951, to the Commissioner of Indian Affairs (JMM:JDS:gmf 29798), in which the question is raised whether beer may legally be sold on a tract of fee-patented land adjacent to the Town of Mission, a non-Indian community, which lies wholly within the exterior boundaries of the Rosebud Indian Reservation in South Dakota. The beer is to be sold in connection with the operation of a public rodeo on the tract of fee-patented land, and this enterprise is regarded as a part of the community life of the Town of Mission.

1556

DEPARTMENT OF THE INTERIOR

SEPTEMBER 28, 1951

Section 1154 of title 18 of the United States Code prohibits the introduction of intoxicating liquors into the Indian country, and section 1156 of the same code prohibits the possession of intoxicating liquor in the Indian country. The term "Indian country for the purpose of the Indian liquor laws is defined in subsection (c) of section 1154, however, in such a way as to exclude "fee-patented lands in non-Indian communities."

The term "community" has been said to refer to a group of people residing in a particular neighborhood, vicinity, or locality. Gilman v. Dwight, 74 Amer. Dec. (Mass. 1859); Keech v. Toplin, 106 Pac. 222, 227 (Calif. 1909); State ex. inf. Carnahan ex rel. Webb v. Jones, 181 S.W. 50, 51 (Mo. 1915); State ex. inf. Thompson ex rel. Kenneppee v. Scott, 264 S.W. 369, 370 (Mo. 1924); Conley v. Valley Motor Transit Co., 139 F. (2d) 692, 693 (C.C.A. 6th, 1943); Gilbert v. Town of Hamden, 68 Atl. (2d) 157, 159 (Conn. 1949). Hence the term "community" does not denote any exact geographical area such as the corporate limits of a town. Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 49 So. 92, 93 (Ala. 1922); Bennett v. Garrett, 112 S.E. 772, 774 (Va. 1922). It follows that any fee-patented land adjacent to a non-Indian community on which a business is operated which serves the needs of that community should not be regarded as "Indian country" within the meaning of section 1154 of the criminal code.

This view is also clearly required by the legislative history of this definition of Indian country. Prior to the revision of the Federal criminal code in 1948, it was settled by a long line of judicial decisions that when Indian title to lands had been extinguished such lands were no longer to be regarded as Indian country within the intendment of the Indian liquor laws. Clairmont v. United States, 225 U.S. 551; United States v. Sutton, 215 U.S. 291; Bates v. Clark, 95 U.S. 204, United States v. Twelve Bottles of Whiskey, 201 Fed. 191 (D.C.D. 1912). Thus, fee-patented lands, although located within the exterior boundaries of an Indian reservation were not subject to the operation of such laws. When the Federal criminal code was revised, however, the term "Indian country" was so defined in section 1151 thereof as to extend it to "all land within the limits of any Indian reservation," and thus fee-patented lands within the exterior boundaries of Indian reservations were brought within the reach of the Indian liquor laws. The law was, however, again changed by section 27 of the act of May 24, 1949 (Public Law 72, 81st Cong.), which established the present definition of Indian country for the purpose of the Indian liquor laws. In explaining the reason for the change, the House Committee on the Judiciary stated that it was made "in order to conform it (the definition of Indian country) and section 1156 (of the Federal criminal code), more closely to the laws relating to intoxicating liquor in the Indian country as they have heretofore been construed." See House Report No. 352, 81st Cong., 1st sess., p. 6. Similarly, the Senate Committee on the Judiciary stated that the amendment was "in accord with decisional law." See Senate Report No. 303, 81st Cong., 1st sess., p. 3.

DISTRIBUTION OF PER CAPITA SHARES OF
DECEASED CHOCTAW AND CHICKASAW INDIANS
--PAYMENT OF COSTS

In a recent telephone conversation with Mr. W. H. Flanery of this office, you requested information concerning (1) the laws applicable to the distribution of the per capita shares of deceased members of the Choctaw and Chickasaw Nations in moneys belonging to those nations and (2) the payment of the costs of making the per capita distributions.

The moneys involved in your inquiry were derived from (a) the sale to the United States by the Choctaw and Chickasaw Nations of coal and asphalt deposits under a contract of sale ratified by the act of June 24, 1948 (62 Stat. 596); (b) the commutation of the annual appropriations for fulfilling various treaties with the Choctaw Indians of Oklahoma, made by the act of September 1, 1950 (Public Law 747, 81st Cong.); and (c) two judgments of the Indian Claims Commission, one in favor of the Choctaw Nation in the amount of $2,587,835.47, and one in favor of the Chickasaw Nation in the amount of $902,008.11.

With respect to the moneys derived from the sale of the coal and asphalt deposits (category (a) ), section 4 of the contract of sale provides that the "share of a deceased member shall be distributed to his heirs or devisees determined in con-

1557

OPINIONS OF THE SOLICITOR

OCTOBER 24, 1951

formity with the law applicable at the date of the death of the deceased member, or the date of the death of his heirs or devisees." This method of payment of the shares of deceased members in the commutation moneys (category (b) ) was also adopted by the Congress (see sec. 3, act of September 1, 1950).

Prior to the admission of Oklahoma into the Union on November 16, 1907, the devolution of the estates of deceased members of the Choctaw and Chickasaw Nations, in so far as property (real and personal) coming to them from tribal sources is concerned, was governed by "the laws of descent and distribution as provided in chapter 49 of Mansfield's Digest of the Statutes of Arkansas." See section 22 of the agreement with the Choctaws and Chickasaws ratified by the act of July 1, 1902 (32 Stat. 641, 643). Accordingly, it would appear to be quite clear that the ownership of the share of a deceased member of the Choctaw or Chickasaw Nation in moneys falling in categories (a) and (b) would be determined by the application of the pertinent provisions of chapter 49 of Mansfield's Digest of the Statutes of Arkansas in all cases in which the deceased member and his heirs or legatees died prior to November 16, 1907. This rule would apply irrespective of whether the decedent was or was not domiciled in the State of Oklahoma at the time of his death.

The special rule of descent based upon Mansfield's Digest of the Statutes of Arkansas, referred to in the preceding paragraph, appears, however, to have been repealed by the provisions of the Oklahoma Enabling Act of June 16, 1906 (34 Stat. 267), and section 9 of the act of May 27, 1908 (35 Stat. 312). See and compare United States v. Tiger, 19 F. (2d) 35, and Dunn v. Micco et al., 106 F. (2d) 346, cert. denied 308 U.S. 620, rehearing denied 308 U.S. 639. See also Graves v. Jacobs, 217 Pac. 871, and McKay v. Roe, 219 Pac. 921. Accordingly, the ownership of the share of a deceased member of the Choctaw or Chickasaw Nation who died on or after November 16, 1907, or the interest therein of any heir or legatee who died subsequent to that date, would be determined by the application of the laws of descent and distribution of the State of Oklahoma in all cases in which the decedent died a resident of that State. If the decedent died a resident of some State other than Oklahoma, the laws of descent and distribution of that State should be applied, since the property involved here consists of personalty. This conforms to the usual rule that the distribution of personal property follows the law of the domicile.

The foregoing views have been expressed with full regard for the provisions of the act of December 24, 1942 (52 Stat. 1080). That act deals with the probate and distribution of "restricted estates" of deceased members of the Five Civilized Tribes where the estates consist of moneys and securities only in an amount of not to exceed $2,500, and contains specific directions concerning the laws of descent and distribution to be applied. Since the moneys falling in categories (a) and (b) above are required to be paid to the Indians, or their legal representatives, without restrictions (see sec. 4 of the contract of sale of the coal and asphalt deposits and sec. 3 of the act of September 1, 1950), the moneys so paid cannot be regarded as a part of the restricted estate of a deceased Indian and, hence, the 1942 act would appear to be without application.

With respect to the distribution of the moneys falling in category (c) , it appears that an appropriation covering the payment of the judgments is carried in the Second Supplemental Appropriation Act, 1951, approved January 6, 1951 (Public Law 911, 81st Cong.). That act makes no provision for a per capita distribution of the judgment funds. It appears, however, that the Secretary of the Interior has authority under section 18 of the Indian Appropriation Act of February 14, 1920 (41 Stat. 408, 25 U.S.C., 1946 ed., sec. 120), as supplemented by an item contained in the Interior Department Appropriation Act, 1952 (Public Law 136, 82d Cong.), to make a per capita payment out of the judgment funds during the present fiscal year of not to exceed $200 to eligible enrolled members of the Choctaw and Chickasaw Nations, or to their lawful heirs. As neither the Congress nor the Secretary of the Interior has as yet authorized a per capita distribution of any part of the judgment funds, any attempt to determine the laws of descent and distribution to be applied in ascertaining the heirs or legatees of a deceased member would appear to be premature.

The costs of making the per capita distribution of the moneys falling in categories (a) and (b) are being paid from Federal and not from tribal funds.

The consideration provided for in the contract of sale of the coal and asphalt deposits, as ratified by the act of June 24, 1948, was $8,500,000 (category (a) ). However, the contract provided that if any of the properties should be sold subsequent to the date of the contract but prior to the date of the appropriation of the purchase price, the proceeds of such sales should be credited to the purchase price. As a result of such sales, the sum of $191,000 was credited on the purchase price. To fulfill the obligation of the United States under

1558

DEPARTMENT OF THE INTERIOR

OCTOBER 24, 1951

the contract, it was necessary, therefore, to appropriate only the sum of $8,309,000. The act of May 24, 1949 (63 Stat. 76, 84), appropriated $8,359,000 "of which not to exceed $50,000 shall be available until expended for defraying the expenses, including printing and binding, of making the per capita payment." The excess of $50,000 thus constitutes an appropriation of Federal and not tribal funds.

The costs of making the per capita distribution falling in category (b) will likewise be paid by the United States. The Second Supplemental Appropriation Act, 1952 (H.R. 5650, now before the President for signature) will appropriate the moneys commuted by the act of September 1, 1950, and, in addition, the sum of $34,333 for defraying the "expenses of making per capita payments authorized by said Act, to remain available until expended."

Unless and until either the Congress or the Secretary of the Interior has authorized the per capita distribution of the judgment funds (category (c) ), it is not possible to determine whether the costs of distribution will be met by the United States or by the Indian nations.

Where lands which the Department had no authority to lease were inadvertently included with other lands in oil and gas leases issued pursuant to the Mineral Leasing Act, corrective action may be taken.

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 an opinion on the questions whether the Bureau of Land Management may cancel two non-competitive oil and gas leases (Salt Lake City 068643 and 068644) issued pursuant to section 17 of the Mineral Leasing Act, as amended (30 U.S.C., 1946 ed., sec. 226), in so far as they cover sets. 13, 14, 23, 24, and 26, T. 4 S., R. 11 W., U.S.M., Utah, and issue new leases covering those lands under different serial numbers but bearing the dates of the original leases; and whether, if the answer to your first question is in the affirmative, the leases may be canceled and the new leases issued without the consent of the lessee and its surety.

The two leases embrace, in addition to the 3,200 acres of land described above, portions of the so-called watershed lands the status of which was discussed in the Solicitor's opinion of December 7, 1950 (M-36051). In that opinion, it was held that the Department had no authority to lease any of the watershed lands. No opinion was expressed as to the validity of the two leases here in question in so far as they included non-watershed lands.

These 3,200 acres (the non-watershed lands) are those lands which were withdrawn by the Presidential Proclamation of August 3, 1905 (34 Stat. 3141), as modified by the Presidential Proclamation of August 14, 1905 (34 Stat. 3143), prior to the opening of the unallotted lands on the Uintah Indian Reservation on August 28, 1905 (Presidential Proclamation of July 14, 1905; 34 Stat. 3119), but which were not withdrawn for reclamation purposes until October 20, 1910, after the passage of the act of April 4, 1910 (36 Stat. 269, 285).

There is now pending in the United States Court of Claims a suit (No. 47570) brought by the Uintah and White River Bands of Ute Indians against the United States under the jurisdictional act of June 28, 1938 (52 Stat. 1209), as amended. The petition alleges the expropriation by the United States of the lands withdrawn by the Presidential Proclamations of August 3 and 14, 1905, and seeks just compensation for the taking. In view of the pendency of this suit, I do not believe that any opinion should be expressed by this office at this time as to the validity of any outstanding leases issued by this Department on that part of the withdrawn lands which, as this office previously held, were not affected by the act of April 4, 1910.

However, assuming for the purpose of answering your questions that the leases, in so far as they cover the non-watershed lands, were properly issued under the Mineral Leasing Act, the situation appears to be that the outstanding leases embrace lands in two categories: (1) watershed lands which the Department had no authority to lease for oil and gas purposes, and (2) non-watershed lands which the Department had authority to lease for such purposes.

With respect to lands in the first category, the leases were originally ineffective in so far as they purported to have been issued under authority conferred by law upon this Department. However, as pointed out in the previous opinion, there is no question as to the present validity of the leases in so far as they embrace the watershed lands, be-

1559

OPINIONS OF THE SOLICITOR

NOVEMBER 7, 1951

cause the leases have, to the extent that they embrace the watershed lands, been ratified and approved by the Strawberry Water Users' Association, in which, under a contract between that Association and the Secretary of the Interior, the control and management of the watershed lands are vested.

The situation here is analogous to other situations which have arisen in this Department. It is my understanding that, where an oil and gas lease has been issued covering both land which the Department had authority to lease and, inadvertently, land which the Department had no authority to lease, it has been the customary procedure to notify the lessee that the land which the Department had no authority to lease will be eliminated from the lease and that the lease shall henceforth cover only the land which the Department had authority to lease. It would appear that a similar procedure may appropriately be followed in the present case, with a slight modification to fit the present situation.

Evidently, it is desirable that the serial numbers assigned to the leases at the time of their issuance should be retained in order that the watershed lands covered thereby may be properly identified; and, at the same time, it is desirable that, for accounting purposes, the tracts embracing the watershed lands should be separated from the tracts of non-watershed lands. In such circumstances, it would seem entirely proper to assign new serial numbers to the leases in so far as they cover the non-watershed lands, thus segregating the lands leased under the Department's authority.

No question of cancellation of the outstanding leases seems to be involved. The only question seems to be whether, for the purposes of proper accounting, new serial numbers may be assigned to the outstanding leases in so far as they cover the non-watershed lands. I can see no impropriety in such a course of action, which might include the reissuance of clean copies of the leases, bearing the new serial numbers and referring only to the non-watershed lands.

It is my understanding that all of the lands embraced in the two leases is covered by the Strawberry Reservoir Unit Agreement (I-sec. 644), approved on January 12, 1949. The Carter Oil Company, the lessee under the two leases here in question, is the approved unit operator. According to the August report received by the Geological Survey, no production has yet been obtained on the Unit. Accordingly, no participating area has been set up within the Unit.

As the course of action mentioned above would not affect the rights or obligations of the lessee or its surety, the consent of these persons would not be essential to the effectuation of the plan. It might be advisable, however, to write letters of explanation to such persons.

Under the provisions of existing legislation, the Secretary must approve and promulgate the revised roll of the Indians of California within six months from May 24, 1951, if the roll is to be a valid official document; and if the revised roll of the Indians of California cannot be approved and promulgated by the Secretary within six months from May 24, 1951, it will be necessary to secure the enactment of further legislation extending the period within which the Secretary may act.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Enrollment of the Indians of California

This refers to your memorandum of September 26, 1951, addressed to Assistant Secretary Doty, regarding section 7 of the act of May 18, 1928, as amended by section 1 of the act of May 24, 1950 (Public Law 524, 81st Cong.; 25 U.S.C., 1946 ed., Supp. IV, sec. 657), relative to the enrollment of the Indians of California.

Your memorandum raises the question whether section 7, as amended on May 24, 1950, fixes an absolute time limit within which the Secretary of the Interior must approve the revised roll of the Indians of California if the roll is to have validity, or whether the reference in the section, as amended, to the period for Secretarial action is merely an expression of a desire upon the part of the Congress that the Secretary make an earnest effort to expedite action on the revised roll.

It is my opinion that the Secretary of the Interior is required to act within the period prescribed by section 7, as amended, if the revised roll of the Indians of California is to have the binding legal effect contemplated by the section.

In connection with this problem, it is necessary to refer briefly to the history of section 7, and to point out the changes that have been made in it by the Congress from time to time.

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DEPARTMENT OF THE INTERIOR

NOVEMBER 7, 1951

inter alia, for the preparation of a roll comprising "all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State." In its original form as part of the act of May 18, 1928, section 7 provided in pertinent part as follows:

After the act of May 18, 1928, became law, it was found to be impracticable to complete the work incident to the enrollment of the Indians of California within the time limit specified in section 7. Thereupon, section 7 was amended by the act of April 29, 1930 (46 Stat. 259), so as to grant additional time in which to carry out and complete the enrollment work.¹ The period for the filing of applications for enrollment was changed from two years to four years, and the period within which the Secretary might act was changed from three years to five years.

The roll provided for in section 7, as amended in 1930, was completed and approved by the Secretary within the time specified by the 1930 amendment. The correspondence in the departmental files clearly indicates that it was believed in the Department at the time that the Secretary was required to approve the roll within the time specified. The Secretary accordingly approved the roll shortly before the expiration of the prescribed period.

Section 7 was subsequently amended again by the act of June 30, 1948 (62 Stat. 1166). As thus amended, the section provided for the revision of the roll of the Indians of California by including the names of eligible persons who had been born since May 18, 1928, and by removing from the roll the names of enrolled persons who had died since that date. The 1948 version of section 7 further provided that:

It is significant that at the time when the bill (H-R. 2878, 80th Cong.) which later became the 1948 amendatory act was introduced in the Congress, it contained a provision allowing the Secretary of the Interior only six months after the expiration of the period for the filing of applications in which to approve and promulgate the revised roll, but that the time limit for Secretarial action was extended to one year upon a specific request to that effect by this Department.² This indicates that the Department regarded the time limit fixed in the 1948 amendment for Secretarial action as mandatory, rather than as a mere congressional admonition regarding the desirability of expeditious action by the Secretary.

Section 7 was amended a third time by the act of May 24, 1950, supra. The 1950 amendatory legislation was designed primarily to extend the benefits of enrollment to additional classes of California Indians who had not previously been eligible for enrollment. At the same time, it extended the period allowed for the completion of the revised roll (theretofore fixed in 1948 as two years from June 30, 1948) to a date 18 months from May 24, 1950. This came about by virtue of the inclusion in section 7, as amended in 1950, of the following language:

¹ See H. Rept. 796, 71st Cong., regarding the purpose of the amendatory act.
² H. Rept. 549. 80th Congress.

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OPINIONS OF THE SOLICITOR

DECEMBER 4, 1951

It is manifest that it has been the established departmental view through the years that the Secretary of the Interior has been required to act within the time allotted to him under the various versions of section 7, and that if he could not do so within the period prescribed by the version of section 7 current at a particular time, it was essential that an extension of the period be obtained from the Congress.

In its original form, and as amended in 1930, section 7 prescribed a period of time within which the Secretary might act respecting the roll of the Indians of California, and then stated in the same sentence that "at the expiration of which time said roll shall be closed for all purposes and thereafter no additional names shall be added thereto." The quoted language necessarily foreclosed any construction of section 7 as allowing the Secretary to act after the end of the period prescribed in the section for Secretarial action. The 1948 version of section 7 allowed the Secretary a specified period of time in which to approve and promulgate the revised roll of the Indians of California, and then in the same sentence stated, "after which the roll shall be closed and thereafter no additional names shall be added thereto." Here, the "which" in the quoted phrase apparently referred to the time allowed for Secretarial action, and indicated that the Secretary would be powerless to act after the expiration of such period. It is true that Congress, in enacting the 1950 version of section 7, did not use, with respect to this point, language as clear as that previously used in the 1928, 1930, and 1948 versions of the section. The 1950 version allots for Secretarial action a period of six months after the expiration of the time for the filing of applications for enrollment, and then states in a separate sentence that: "Upon such approval and promulgation, the roll shall be closed and thereafter no additional names shall be added thereto." There is no indication, however, that the Congress, in using a different sentence structure and a somewhat different form of language in the 1950 version of section 7, intended thereby to permit the Secretary of the Interior to approve and promulgate the revised roll of the Indians of California after the expiration of the 6-month period allotted by the Congress for Secretarial action. I believe, therefore, that the 1950 version of section 7 should be construed as placing upon the Secretary of the Interior the same mandatory duty to act within the period prescribed by Congress as was imposed upon the Secretary in the 1928, 1930, and 1948 versions of the section.

For the reasons indicated above, it is my opinion that the approval and promulgation of the revised roll of the Indians of California must be accomplished by the Secretary within six months from May 24, 1951, if the roll is to comprise a valid official document; and that if the revised roll cannot be approved and promulgated within the short time now remaining, it will be necessary to obtain from the Congress further legislation extending the period of time within which the Secretary may act.

Status of Indian Band-Bailment-Federal Tort Claims Act

An Indian band is a legal entity and, as such, it may own all kinds of personal property, including a motor vehicle.

An Indian band may file a claim against the Government under the Federal Tort Claims Act for damage allegedly done to an automobile owned by the band as the result of its negligent operation by a Government employee who was using it, with the consent of the band, in connection with his official duties.

Under the law of California, the bailee of an auto mobile is under a duty to use due care for its protection, and where the bailment is for the sole benefit of the bailee, the bailee is required to exercise "great care and extraordinary diligence" in his use of the automobile.

Memorandum
To:            Chief Counsel, Bureau of Indian Affairs
From:        The Solicitor
Subject:     Tort claim by an Indian band against the United States

In your memorandum dated November 14, 1951, you requested my opinion on the question whether the Agua Caliente Band of Mission Indians might file a claim against the Government under the Federal Tort Claims Act (28 U.S.C., 1946 ed., Supp. IV, sec. 2671 et seq.) because of damage to an auto-

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DEPARTMENT OF THE INTERIOR

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mobile owned by the band. You indicated that the automobile was damaged in a collision resulting from the alleged negligent operation of the vehicle by Henry Harris, Jr., who had been authorized by the Indian band to use the automobile in the pursuance of his official duties as an employee of the Bureau of Indian Affairs.

It appears that on June 29, 1951, an automobile driven by R. L. Cramer, Palm Springs, California, pulled out from a parking space alongside the curb on Palm Canyon Drive in Palm Springs, California; that Mr. Harris, in the discharge of official duties, was traveling in the same direction on Palm Canyon Drive at that time in the Indian band's automobile; that the automobiles collided; and that both were damaged.

As an Indian band is a legal entity,^* it may hold title to all kinds of personal property. (See Handbook of Federal Indian Law, p. 337.) In the present case, the Agua Caliente Band of Mission Indians is the owner of the damaged vehicle. As such, it may properly file a claim under the Federal Tort Claims Act.

After providing for the administrative determination of tort claims, the Federal Tort Claims Act (sec. 2674) provides that "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *." The law of the place where the tortious act or omission occurred is made controlling by the statute in fixing substantive liability (sec. 2672).

Under decisions of the California courts, when an automobile owner gives another person the possession of his automobile with permission to operate it, a contract of bailment is created. The bailee is responsible to the owner of the automobile for damage to the bailed property resulting from the failure of the bailee to exercise a proper degree of care over it. Where the bailment is for the sole benefit of the bailee, the bailee is required to exercise "great care and extraordinary diligence." Baugh v. Rogers, 148 P. 2d 633 (Cal., 1944) ; Hall v. Osell, 228 P. 2d 293 (Cal., 1951); Civil Code of California, Deering, 1941, sec. 1886.

In the present case, Mr. Harris was the bailee of the Indian band's automobile, and he was under a duty to exercise due care, at least, in the operation of the automobile. As he was using the vehicle at the time of the collision in the course of his official duties, the United States was legally responsible to the Indian band for any damage to its vehicle caused by the negligent operation of the automobile by Mr. Harris.

Accordingly, it is my opinion that the Agua Caliente Band of Mission Indians may properly file a claim against the Government under the Federal Tort Claims Act. Allowance or disallowance of the claim will depend upon whether or not it is found that the damage complained of was actually caused by the negligence of Mr. Harris.

INDIAN CORPORATION--BORROWING FROM
GOVERNMENT AGENCY--METLAKATLA INDIAN
COMMUNITY, ALASKA

MR. W. CARROLL HUNTER, Solicitor.
Department of Agriculture
Washington 25, DC.

This responds to your letter of January 29, relating to the application of the Metlakatla Indian Community of the Annette Islands Reserve, in Alaska, for a loan from the Rural Electrification Administration.

You raise the question whether the recent amendment to the community's charter, empowering it to borrow money from "any other Government agency, or source," in addition to borrowing from the Revolving Indian Credit Fund, transcends the power which may be conferred upon an Indian chartered corporation pursuant to sections 10, 16, and 17 of the Wheeler-Howard Act of June 18, 1934 (48 Stat. 986, 987, 988; 25 U.S.C., 1946 ed., sets. 470, 476, 477), as supplemented by section 1 of the act of May 1, 1936 (49 Stat. 1250; 25 U.S.C., 1946 ed., sec. 473a).

It might be argued, of course, that since section 10 of the Wheeler-Howard Act, which established the Revolving Indian Credit Fund, expressly au-

^* In Herring v. United States, 32 Ct. Cl. 536, 538 (1897), the court stated:

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OPINIONS OF THE SOLICITOR

FEBRUARY 14, 1952

thorizes the Secretary of the Interior to make loans to Indian chartered corporations from that fund, it impliedly prevents the granting to such corporations of the power to borrow from other sources, in view of the doctrine of expressio unius est axclusio alterius.

This office believes such an implication to be entirely unwarranted. The doctrine from which this implication is drawn is merely one of the numerous canons which may be invoked as aids to construction when no more reliable guides are to be found in the language, history, and purpose of a particular statute. It is clear, in this connection, that it was not the intention of Congress to prohibit, either directly or by implication, borrowing by Indian chartered corporations from other sources than the credit fund which it had created. The purpose of Congress in creating the credit fund was not to endow Indian chartered corporations with the legal capacity to borrow money, but to create a fund from which they could obtain loans. They needed a special fund only because the restrictions on the alienation of their lands inhibited their capacity to give real estate mortgages as security and thus made it difficult for them to borrow from commercial banking sources. See Senate Re port No. 1080, 73d Cong., 2d sess., p. 3, and House Report No. 1804, 73d Cong., 2d sess., pp. 3, 7.

It is true that, ordinarily, corporations which are created by statute possess only such powers as are conferred upon them by the statute. The Wheeler-Howard Act did not, however, create Indian tribes, or bring them into existence as bodies corporate. They were bodies corporate prior to the enactment of that statute, because they existed already as domestic dependent nations and exercised sovereign powers, subject only to control and regulations by the United States. See 55 I.D. 14, and authorities there cited. Among such powers is the power to make contracts, which includes, of course, the power to contract debts. See Handbook of Federal Indian Law, p. 279 et seq.

Moreover, Congress, in authorizing Indian tribes in section 16 of the Wheeler-Howard Act to organize and adopt constitutions conferring certain express powers, itself recognized "all powers vested in any Indian tribe or tribal council by existing law"; and Congress, in authorizing in section 17 of the act the issuance of charters of incorporation to such organized tribes, provided that such charters might convey to the incorporated tribes "the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, * * * and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law * * *." Obviously, such powers include the power to contract and to acquire property by making contracts of indebtedness, and every charter issued by the Department under the Wheeler-Howard act, including the chart of the Metlakatla Indian Community, has included the power to make contracts.

The power to borrow from the Indian Revolving Credit Fund has been expressly conferred on Indian chartered corporations only because that fund is expressly mentioned in the Wheeler-Howard Act. As a matter of fact, virtually all charters issued to Indian tribes in the continental United States have conferred the power to borrow not only from the Indian credit fund but also from "any other governmental agency," and a number of such charters have also conferred the power to borrow from "any other source." See the charters of the Quartz Valley Indian Community, California; the Bay Mills Indian Community, Michigan; the Sokaogon Chippewa Community, Wisconsin; and the Stockbridge Munsee Community, Wisconsin. Approximately one-third of the charters which have been issued to native corporations in Alaska include the power to borrow not only from the Indian Revolving Credit Fund but also "from any other source".

You may be interested to know that a number of loans have been made by commercial banks to Indian chartered corporations in Alaska in order to finance the operations of the canneries of such corporations.

You have specifically inquired whether, when the amendment to the charter of the Metlakatla Indian Community was submitted to this office for review, the question of the legal power of the community to adopt the amendment was considered. Although no formal opinion on this question was rendered, this office entertained no doubt whatsoever that the amendment could be adopted. Indeed, what this office doubted was whether the amendment was really necessary, inasmuch as the charter of the community already contained the more basic provision authorizing the community to "make contracts".

Organized Tribes--Chartered Tribes--Indian Reorganization Act--Revised Statutes 2103

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DEPARTMENT OF THE INTERIOR

FEBRUARY 14, 1952

In granting a charter to an Indian tribe under section 17 of the Indian Reorganization Act, the Secretary of the Interior may grant to the tribe the freedom to make contracts without complying with the requirements prescribed in section 2103 of the Revised Statutes.

Where the Secretary of the Interior, in granting a charter to an Indian tribe, gave the tribe broad authority to make and perform contracts and agreements subject only to the limitations that tribal lands could not be sold or mortgaged or leased for a period exceeding ten years and that any contract involving the payment of money in excess of $5,000 in any fiscal year should be subject to the approval of the Secretary, it was clearly the intent of the Secretary to authorize the tribe to make contracts without regard to the requirements prescribed in section 2103 of the Revised Statutes.

The inclusion by the Secretary in a tribal charter of a qualifying phrase stating that the powers of the tribe under the charter shall be exercised "subject to any restrictions contained in the * * * laws of the United States" does not impose upon the tribe the necessity of complying with all the pre-existing statutory restrictions relating generally to the activities of Indian tribes, but, instead, refers only to those statutory restrictions from which the Secretary cannot legally free the tribe.

The adoption by an Indian tribe of a constitution under section 16 of the Indian Reorganization Act does not relieve the tribe of the necessity of complying with section 2103 of the Revised Statutes in making a contract with a person to manage a tribal farming enterprise.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Contracts for the employment of managers of Indian tribal enterprises

You have requested that I express an opinion regarding the applicability of section 2103 of the Revised Statutes (25 U.S.C., 1946 ed., sec. 81) to an executed contract and a proposed contract, each of which is between an Indian tribe and a manager of a tribal enterprise conducted by the tribe.

Section 2103 of the Revised Statutes applies to, inter alia, contracts for services to be rendered to Indian tribes "relative to their lands." The section prescribes several requirements which are essential to the validity of such a contract. Among these is the requirement that such a contract "shall be executed before a judge of a court of record."

A. Contract for the management of the Grand Portage Trading Post and Resort Enterprise.

The executed contract involved in your submission is dated July 27, 1951, and is between the Grand Portage Band of Chippewa Indians and Peter Gagnow, of Grand Portage, Minnesota. Under the terms of the contract, Mr. Gagnow will operate a tribal enterprise known as the Grand Portage Trading Post and Resort Enterprise, which is located on and makes use of tribal land.

The Grand Portage Band is one of the constituent bands of the Minnesota Chippewa Tribe, which has adopted a constitution and has received a charter under sections 16 and 17, respectively, of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 987, 988; 25 U.S.C., 1946 ed., secs. 476, 477). The Grand Portage Band operates under a subordinate charter from the Minnesota Chippewa Tribe, and this charter confers on the band authority to manage enterprises and to administer tribal land.

Section 17 of the Indian Reorganization Act, in authorizing the Secretary of the Interior to issue a charter of incorporation to any Indian tribe which has adopted a constitution pursuant to the act, provides in part as follows:

It seems to be clear from this language that section 17 permits the Secretary to grant to incorporated tribes far-reaching powers with respect to the conduct of business activities, including the making and performance of tribal contracts, and that the Secretary is subject, in this regard, only to the limitations expressly stated in the section. These express statutory limitations are to the effect that the Secretary cannot (1) authorize an incorporated tribe to sell or mortgage reservation lands or to lease them for periods in excess of 10 years, or (2) grant to the tribe incidental corporate powers which are inconsistent with law (i.e., powers which cannot lawfully be given to any corporation, non-

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OPINIONS OF THE SOLICITOR

FEBRUARY 14, 1952

Indian or Indian). Such statutory limitations on the Secretary's authority certainly are not broad enough to prevent the Secretary from granting to an incorporated tribe the power to make contracts without complying with the requirements of section 2103 of the Revised Statutes. In this connection, such a grant of power would not be "inconsistent with law", because it is a purpose of incorporation to provide the means for the conduct of business activities in a business-like way, and freeing a corporation from the necessity, inter alia, of executing all its contracts before a judge of a court of record would serve that purpose.

It is my view, therefore, that section 17 of the Indian Reorganization Act has superseded section 2103 of the Revised Statutes to the extent of authorizing the Secretary to grant, in charters of incorporation, the power to make contracts without regard to the limitations prescribed in section 2103.

In granting charters under section 17 of the Indian Reorganization Act, the Secretary of the Interior has invariably conferred wide powers with respect to the making of contracts. Thus, section 5 of the charter of the Minnesota Chippewa Tribe, which is typical, confers upon the tribe the power to "make and perform contracts and agreements of every description, not inconsistent with law or with any provisions of this charter * * *," subject only to the limitation (prescribed by the statute) that tribal lands cannot be sold or mortgaged or leased for periods in excess of 10 years, and the further limitation (imposed by the Secretary in the exercise of his discretion) that "any contract involving payment of money by the corporation in excess of $5,000 in any one fiscal year shall be subject to the approval of the Secretary of the Interior or his duly authorized representative." It was clearly the purpose of the broad language used in this charter respecting the contracting power to grant to the tribe freedom to make contracts without complying with the requirements prescribed in section 2103 of the Revised Statutes.

It is true that the Department inserted in the chapter to the Minnesota Chippewa Tribe (and in other charters as well) an introductory qualifying phrase stating that the powers conferred in (the charter shall be exercised "subject to any restrictions contained in the * * * laws of the United States". However, this phrase (which, incidentally, is confusing and ambiguous) could not have been intended to render meaningless the broad grant of power conferred in the charter, by making the incorporated tribe subject to all the pre-existing statutes imposing restrictions, procedural and substantive, on the conduct of tribal business. Such a construction of the quoted phrase would make a mockery of the liberal process of incorporation established by the Department.

In order that the general qualifying phrase, "subject to any restrictions contained in the * * * laws of the United States", in the charter to the Minnesota Chippewa Tribe may not render meaningless the freedom of operation expressly granted to the tribe in the other provisions of the charter, I believe that the general phrase should be construed as referring to those statutory restrictions from which the Secretary of the Interior could not legally free the tribe in granting the charter to it, such as, for example, the restrictions imposed by the anti-trust laws. As previously indicated, section 2103 of the Revised Statutes is not in that category.

For the reasons stated above, it is my opinion that section 2103 of the Revised Statutes is not applicable to the contract dated July 27, 1951 between the Grand Portage Band of the Minnesota Chippewa Tribe and Peter Gagnow relative to the management by the latter of the Grand Portage Trading Post and Resort Enterprise.

The proposed contract involved in your submission is to be made between the Salt River Pima-Maricopa Indian Community and a farm manager. Under the contract, the farm manager is to operate a tribal farming enterprise, which will include the cultivation of tribal lands, the development of livestock industries to utilize the crops raised by the enterprise, and the marketing of surplus crops.

The Salt River Pima-Maricopa Indian Community has adopted a constitution pursuant to section 16 of the Indian Reorganization Act (25 U.S.C., 1946 ed., sec. 476) . It has not, however, received a charter of incorporation under section 17 of that act.

The adoption by the Salt River Pima-Maricopa Indian Community of a constitution under section 16 of the Indian Reorganization Act does not exempt it from the necessity of complying with the requirements of section 2103 of the Revised Statutes in connection with the making of a contract such as the proposed contract under consideration here. A tribe adopting a constitution under the Indian Reorganization Act may obtain only the powers mentioned in section 16, which include the authority to employ legal counsel, to prevent the alienation of tribal lands or other assets, and to negotiate with Federal, State, and local governments, plus such other powers as were "vested in any Indian tribe or tribal council by existing law." We do not find here any grant of power to make

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DEPARTMENT OF THE INTERIOR

FEBRUARY 1 4, 1952

contracts without regard to the requirements of section 2103 of the Revised Statutes, except that section 16 indicates that contracts for the employment of attorneys may be made subject only to the approval of the Secretary of the Interior respecting the choice of counsel and the fixing of the fees (see Solicitor's opinion M-36069, June 22, 1951).

It appears that the employment of a manager for the tribal farming enterprise is required by the terms of a plan of operation to which the tribe agreed in obtaining a loan from the Revolving Credit Fund for the purpose of conducting the tribal enterprise. This fund was established by section 10 of the Indian Reorganization Act (48 Stat. 986, 25 U.S.C., 1946 ed., sec. 470), which provides in part as follows:

The Revolving Credit Fund was made available for loans to all Indian tribes and their members by the act of May 7, 1948 (62 Stat. 211, 25 U.S.C., 1946 ed., Supp. IV, sec. 482).

Under this legislation governing the making of loans, to Indian tribes, the Secretary of the Interior has been given a broad rule-making power. It may be argued that this power is broad enough to encompass all the measures necessary to protect the interests of the United States in making loans to Indian tribes, and that any means or instruments adopted by the Department toward that end are subject to no other requirements than those which may be imposed in the exercise of the rule-making authority of the Secretary. Under such a theory, contracts required of a borrower for the protection of the Government (e.g., the proposed contract under consideration here) would be subject only to the requirements prescribed by the Secretary in the exercise of his rule-making power, and their validity would not depend upon compliance with the provisions of section 2103 of the Revised Statutes, which antedated the credit legislation by many years.

Courts have recognized that section 2103 of the Revised Statutes may be repealed by implication when a later enactment is based upon a premise inconsistent with its terms, or it may reasonably be inferred from the purpose and history of the later enactment that such was the intent of Congress. See United States v. Crawford, 47 Fed. 561 C.C.W.D. Ark., 1891), and Butler and Vale v. United States, 43 Ct. Cl. 497 (1908). In dealing with organized Indian tribes, such a premise may, perhaps, be found in the philosophy of the Indian Reorganization Act, which was intended to make a new point of departure in the relations between the tribes and the Government.

Repeals by implication are not favored, however, and it would be unsafe to reply upon such an implied repeal of section 2103 of the Revised Statutes in the present instance, particularly since any person receiving money in violation of that section is subject to a fine of not more than $1,000 or to imprisonment for not more than six months, or both, and may be compelled to forfeit the money so received (see 18 USC., sec. 438).

I believe, therefore, that the proposed contract between the Salt River Pima-Maricopa Indian Community and the manager of the tribal farming enterprise should be executed in accordance with the requirements of section 2103 of the Revised Statutes.

INDIAN CONVICTED OF MURDER AND SENTENCED
TO DEATH BY STATE COURTS--QUESTION OF
FEDERAL JURISDICTION AS HOMICIDE
OCCURRED ON TRUST ALLOTMENT

It is requested that you cause to be taken whatever action is necessary to secure the release of Rayna Tom Carmen, a restricted Mono Indian, from an invalid death sentence imposed by the State of California for a homicide allegedly committed on April 23, 1950, by Mr. Carmen on the Maggie Jim allotment, Sacramento 93. This is an Indian trust allotment on the public domain. It consists of lots 6 and 7, the NW1/4 NE1/4 SW1/4, and the SW1/4 SE1/4 NW1/4, sec. 7, T. 8 S., R. 23 E., M.D.M.

Mr. Carmen was tried for murder in the Superior Court of Madera County, California, in June 1950. He was convicted. His conviction was reversed on appeal to the Supreme Court of California, the ground of the reversal being the failure of

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OPINIONS OF THE SOLICITOR

MARCH 18, 1952

the trial court to instruct the jury on the possibility of finding him guilty of manslaughter. On retrial, he pleaded insanity and, upon being adjudged sane by the jury, he was again convicted of murder and sentenced to death. He is now imprisoned in San Quentin prison awaiting execution of the sentence. The Supreme Court of California is scheduled to hear an automatic appeal in this case on March 5, 1952.

The fact that the homicide was committed on an Indian trust allotment apparently was not raised at either trial or on the previous appeal to the Supreme Court of California. The nature of the site of the homicide was discovered during the course of a conversation which Miss Rita Singer, Area Counsel of the Bureau of Indian Affairs at Sacramento, California, had with Mr. Carmen when she visited him at his request on January 26, 1952. A subsequent survey has confirmed the fact that the homicide was committed on an Indian trust allotment.

It is our opinion that sections 1151-1153 of Title 18, United States Code, precludes the State courts from taking jurisdiction of any of the ten major crimes committed by Indians on public domain Indian trust allotments.

We previously took this same position in a letter to you dated November 24, 1950, requesting that appropriate action be taken on the behalf of Henry Castillo, a restricted Indian indicted by the State of New Mexico for murder, the homicide having occurred upon an Indian trust allotment outside the exterior boundaries of the Navajo Indian reservation (your file JMM:MHH:rp 235033-32). Upon Mr. Castillo's petition for a writ of habeas corpus (In the matter of Henry Castillo, Civil No. 1746, United States District Court for the District of New Mexico), Judge Carl A. Hatch on December 18, 1950, delivered an oral opinion, in the course of which he made the following statement relative to 18 U.S.C., secs. 1151-1153:

However, the petition was denied on the ground the petitioner had not exhausted his remedies in the State courts.

As the Supreme Court of California is scheduled to hear an appeal in Mr. Carmen's case on March 5, you are respectfully urged to take immediate action to prevent the execution of the State court's sentence and to arrange for the trial of Mr. Carmen by the Federal court having jurisdiction of the offense committed by him. Mason A. Bailey, Robertson Building, Madera, California, is the court appointed attorney who has been handling Mr. Carmen's defense in the State courts. Mr. Leonard M. Hill, Acting Area Director, Bureau of Indian Affairs, Sacramento, California, will be glad to furnish the United States Attorney with whatever assistance his office can render, including the aid of Area Counsel Singer.

The provision in the Interior Department Appropriation Act, 1952, declaring that Indian tribal

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DEPARTMENT OF THE INTERIOR

MARCH 18, 1952

funds shall not be used for the acquisition of lands or water rights within the States of Nevada, Oregon, Washington, and Wyoming is inapplicable to moneys in the local treasuries of Indian tribes.

Memorandum
To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Availability of tribal funds for land acquisition

In a memorandum dated January 9, 1952, the Commissioner of Indian Affairs submitted to this office certain questions concerning the scope of the limitation in the Interior Department Appropriation Act, 1952 (Public Law 136, 82nd Cong.), on the use of Indian tribal funds for the purpose of acquiring lands or water rights in the States of Nevada, Oregon, Washington, and Wyoming.

The limitation referred to above is stated in the second proviso of the following paragraph in the current appropriation act (p. 7):

One of the problems presented in the Commissioner's memorandum is whether the term "other tribal funds" in the second proviso of the paragraph quoted above refers to moneys in the local treasuries of the various Indian tribes located in the States of Nevada, Oregon, Washington, and Wyoming.

These moneys are derived from the disposition of tribal resources or the grant of privileges by the tribes. They are not required to be deposited, nor are they deposited, in the Treasury of the United States. No appropriation by or authorization from the Congress is required in order to permit their expenditure. Accordingly, these moneys in the local treasuries of Indian tribes are not funds of the sort customarily dealt with by the Congress in appropriation acts or in permanent legislation relating to tribal funds.

The Department does not exercise any control over the expenditures of moneys in the local treasuries of Indian tribes, except as may be required by the terms of charters granted to the tribes pursuant to section 17 of the Indian Reorganization Act (25 U.S.C., 1946 ed., sec. 477). In most instances, the pertinent provisions of Indian tribal chapters only require departmental approval of contracts made by the tribes when the consideration involved exceeds a certain amount.

The rule of ejusdem generis suggests the propriety of the conclusion that when Congress, in the Interior Department Appropriation Act, 1952, limited the use of "other tribal funds" in so far as the acquisition of lands or water rights in the States of Nevada, Oregon, Washington, and Wyoming was concerned, it had in mind only tribal funds in the Treasury of the United States, over which the Congress has customarily exercised control. It is not to be assumed that Congress intended, by the use of an ambiguous phrase in an appropriation act, to enter a new field of regulation over the affairs of Indian tribes, by imposing on the tribes a restriction with respect to tribal moneys of a type heretofore wholly outside the scope of congressional legislation.

The other questions presented in the Commissioner's memorandum pertain to the scope of the second proviso in the paragraph of the Interior Department Appropriation Act, 1952, quoted above, in relation to tribal funds deposited in the Treasury of the United States and appropriated by the Congress or advanced to Indian tribes by the Secretary of the Interior pursuant to statutory authorizations. Since the answers to these questions are not clear, and since any views expressed by the Solicitor's Office on such questions would not be authoritative inasmuch as expenditures of such funds deposited in the Treasury of the United States are subject to review by the General Accounting Office, it appears that these questions should be submitted to the Comptroller General. Accordingly, a letter to the Comptroller General for this purpose has been drafted and is attached.

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OPINIONS OF THE SOLICITOR

MARCH 19, 1952

Acts of June 15, 1934 and July 14, 1939--"Automatic" Enrollment--Membership by Adoption.

The substantive provisions of section 4 of the act of June 15, 1934 respecting eligibility for enrollment in the Menominee Tribe have been superseded by the provisions of section 1 of the act of July 14, 1939, except that the portion of section 4 of the 1934 act dealing with the enrollment of persons adopted into the tribe is still in effect.

The procedural provisions of the act of June 15, 1934 have been impliedly repealed by the act of July 14, 1939.

Under the present law, an unenrolled applicant who was born prior to June 15, 1934 of an enrolled parent or parents residing on the Menominee reservation at the time of his birth is entitled, upon the presentation of a proper birth certificate, to be "automatically" enrolled as a member of the tribe, irrespective of the quantum or the derivation of such applicant's Menominee blood.

An unenrolled applicant born on or subsequent to June 15, 1934 of parents residing on the Menominee reservation at the time of his birth is entitled, upon the presentation of a proper birth certificate, to be "automatically" enrolled as a member of the Menominee tribe if at least one of his parents was an enrolled member of the tribe and such applicant possesses at least one fourth of Menominee Indian blood (irrespective of the derivation of such blood).

An unenrolled applicant properly adopted by the Menominee Tribe is entitled to enrollment on the tribal roll. Eligibility for adoption depends upon the possession of at least one-fourth of Menominee Indian blood derived through an ancestor or ancestors who did not participate in the Half Breed Payment of 1849.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Enrollment in Menominee Tribe

This is with reference to your memorandum transmitting a group of applications from various individuals for enrollment in the Menominee Tribe of Wisconsin, pursuant to the provisions of the act of June 15, 1934 (48 Stat. 965), as modified by the act of July 14, 1939 (53 Stat. 1003).

Like other Indian tribes, the Menominee Tribe had a "tribal roll" of its members prior to the passage of the act of June 15, 1934. Before the adoption of that statute, enrollment in the tribe was primarily a matter for consideration by the governing body of the tribe, and neither the quantum nor derivation of the blood of an applicant was decisive. As in the case of other Indian tribes which were not governed by special legislation, membership depended upon birth or adoption into the tribe, the maintenance of tribal relations, and recognition of membership by the tribe.

The act of June 15, 1934, laid down new procedural and substantive requirements concerning enrollment in the Menominee Tribe. Section 1 of the 1934 act directed the Secretary of the Interior to prepare a "certified roll" of the membership in the tribe, to consist of the names already on the tribal roll on the date of the enactment of the act, and of such other names as the Secretary might subsequently add to the roll in accordance with the provisions of the act. Sections 2 and 3 of the act provided that applications for enrollment in the Menominee Tribe should be made to the Secretary of the Interior, who, at the close of each fiscal year, should certify a list of the applicants to the General Council of the Menominee Tribe for consideration by the Council, and that no action should be taken by the Secretary on the applications until at least one year had elapsed from the date of the certification of the list to the Council. Section 6 of the act provided a right of appeal to the United States District Court for the Eastern District of Wisconsin from any action taken by the Secretary on an application for enrollment, and this right of appeal was made available not only to aggrieved applicants but to the General Council. Section 4 of the act introduced new substantive requirements concerning quantum derivation of Menominee Indian blood, as follows:

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DEPARTMENT OF THE INTERIOR

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A "certified roll" of the Menominee Tribe was prepared pursuant to the 1934 act and the regulations of May 28, 1935 (25 CFR, Part 51), and the roll so prepared was approved by the Secretary of the Interior on December 27, 1935.

The experience of applicants for enrollment under the 1934 act soon led, however, to increasing dissatisfaction with its provisions. The elaborate enrollment procedure prescribed by sections 2 and 3 of .the act was contrasted unfavorably with the simplicity of the pre-existing procedure, under which children of members of the Menominee Tribe who resided on the Menominee Reservation and participated in its affairs were automatically enrolled by the Superintendent without any inquiry into the quantum or derivation of their blood. It was discovered also that there were some Menominee Indians who had not been listed on the tribal roll, and who, therefore, had not been listed on the certified roll. It was felt, moreover, that too many applicants for enrollment were being disqualified because of the relationship of the applicants to ancestors who had participated in the Half Breed Payment of 1849, or because of difficulties in determining the quantum of their blood.

The result of this dissatisfaction was the adoption of the act of July 14, 1939. It contains two sections. Section 1 of the 1939 act provides as follows:

So far as its substantive provisions are concerned, the 1939 act represented a compromise between the policy prevailing in matters of enrollment prior to the adoption of the 1934 act and the far more stringent requirements of the 1934 act. Section 1 of the 1939 act was designed to provide for the "automatic" enrollment, upon the receipt of proper birth certificates, of (1) any living child born prior to June 15, 1934, of an enrolled parent or parents residing on the Menominee Reservation at the time of his birth, irrespective of the quantum or the derivation of the child's Menominee blood, and (2) any child born on or subsequent to June 15, 1934, of parents residing on the Menominee Reservation at the time of his birth, if at least one of the parents was an enrolled member of the Menominee Tribe and the child possessed at least one-fourth of Menominee Indian blood (even though the derivation of that blood might be traced through an ancestor who had participated in the Half Breed Payment of 1849).

Because of inconsistencies in the two sections with respect to eligibility for enrollment, it appears that the provisions of section 1 of the 1939 act, as summarized in the preceding paragraph, have superseded the provisions of section 4 of the 1934 act, except that, since the later section does not cover the matter of enrolling persons adopted into the tribe, the portion of section 4 of the 1934 act

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OPINIONS OF THE SOLICITOR

MARCH 19, 1952

dealing with this subject is still in effect. Section 4 provides for the enrollment of any person who "has been or may be adopted by the Menominee Tribe." However, membership in the tribe by adoption cannot be effected under section 4 unless the person adopted possesses at least one-fourth of Menominee Indian blood derived through an ancestor or ancestors who did not participate in the Half Breed Payment of 1849.

We turn now to a consideration of the effect of the 1939 act upon the procedural requirements of sections 2, 3, and 6 of the 1934 act. Although the later statute is not cast in the form of a repeal or amendment of the earlier one, it is difficult to escape the conclusion that the 1939 act constituted a repeal of the procedural provisions of the 1934 act by implication. The procedural provisions of the two statutes stand in irreconcilable contradiction to each other. The 1934 act provided an elaborate administrative and judicial procedure for determining the rights of applicants to enrollment in the Menominee Tribe. The 1939 act not only provided a far simpler automatic procedure based merely upon the presentation of proper birth certificates, but its substantive provisions, which left only the possibility of adoption in addition to "automatic" enrollment, made the older and more elaborate procedure wholly inapplicable. An application for adoption must necessarily be made to the tribal governing body rather than to the Secretary of the Interior, who can only approve or disapprove the action taken. Moreover, adoption cases would be so uncommon after 1939 that it would be quite absurd to suppose that the elaborate procedural requirements of the 1934 act, which included the certification by the Secretary of the Interior of lists of applicants to the tribal governing body, were intended to apply. Certainly, the provisions of the 1934 act relating to judicial review of Secretarial action could have no application in cases of adoption, which is not a matter of right.

In view of the repeal of the procedural requirements of the 1934 act by the 1939 act, their retention in the regulations of the Department governing the enrollment of Menominee Indians must be regarded as extremely confusing. It appears that when regulations were promulgated on September 9, 1942 (7 F.R. 7075), in order to effectuate the provisions of the 1939 act, the Department merely supplemented the original regulations of May 28, 1935. Thus, sections 51.2, 51.3, 51.4, 51.5, 51.13, 51.14, and 51.19 appear to have been added to the original regulations without any real consideration of the question of the consistency of the original regulations with the provisions of the 1939 act. In this connection, attention is called to the fact that section 51.12, which was retained from the original regulations, excludes from enrollment the descendants of all participants in the Half Breed Payment of 1849, although this is entirely inconsistent with section 51.4 of the regulations and with section 1 of the 1939 act, which made the derivation of the blood of an applicant wholly immaterial in all cases except those of adoption.

The regulations in 25 CFR, Part 51, should be revised to eliminate the provisions which are based on the procedural requirements of the 1934 act, and any other obsolete provisions. The revised regulations should make provision for the "automatic" enrollment of the two classes of persons mentioned in section 1 of the 1939 act, and for the enrollment of persons adopted into the tribe in accordance with section 4 of the 1934 act. Since it is conceivable that the right of an occasional applicant for enrollment may be disputed, provision should be made in the revised regulations for the taking of successive appeals to the Commissioner and to the Secretary from actions of the Superintendent in matters of enrollment.

While this office does not propose to comment in detail upon the individual applications submitted with your memorandum, some general comments may be in order. In some instances, the relevant facts are not clearly developed. In certain other instances, applicants have been denied enrollment despite the fact that they clearly seem to be entitled to "automatic" enrollment. The error most commonly made, perhaps, in considering the applicants has been to assume that the derivation of an applicant's blood through an ancestor who participated in the Half Breed Payment of 1849 is always relevant, whereas it is now relevant only in cases of adoption.

Moreover, it appears that a number of applicants eligible for membership in the tribe by adoption have been denied enrollment without any consideration having been given to the possibility of making them members of the tribe by adoption. These cases should be reconsidered by the General Council of the Menominee Tribe.

The applications for enrollment are returned to you for processing in accordance with the comments contained in this memorandum.

This office is prepared to render any assistance which you may request in revising the regulations, or in handling any of the individual applications for enrollment.

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DEPARTMENT OF THE INTERIOR

APRIL 17, 1952

The statutory authority of the Secretary of the Interior to determine the heirs of deceased Indians carries with it, by necessary implication, the authority to determine whether a particular Indian is deceased; and, in a proper case, the Secretary of the Interior may rely upon a presumption of death and order the distribution of the restricted estate of the decedent.

When an Indian has been absent from his home for 32 years, without any information being received concerning his whereabouts or continued existence, and the circumstances of the case .indicate that no other presumed explanation of the long absence would be as convincing as the presumption of his death during that period, it is proper for the Secretary of the Interior to presume his death and to set in motion proceedings for the determination of his heirs and the distribution of his restricted estate.

Memorandum
To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Determination of heirs of Columbus Tulee.

The Commissioner of Indian Affairs has submitted the case of Columbus Tulee, Yakima allottee No. 2860, who disappeared from his home in 1920. His putative heirs have requested that the Department presume his death and distribute his estate.

The record shows that on January 10, 1920, Columbus Tulee disappeared from his home near Toppenish, Washington, after his father, David Tulee, had been killed. Ther eis agreement that Columbus Tulee killed his father. The immediate family, consisting of a sister, Annie Tulee Johansen, and a brother, Sampson Tulee, stated that the homicide resulted from a quarrel over the use of money. Other witnesses claim that Columbus Tulee discovered his father committing incest with his sister, Annie, and that, while in a rage, he killed his father.

There is evidence in the record indicating that Columbus Tulee attempted a crossing of the Columbia River on or about the evening of January 11, 1920. The remains of a crude raft that he had constructed for his attempted crossing were found a few miles downstream the following day.

By virtue of section 1 of the act of June 25, 1910 (36 Stat. 855, 25 U.S.C., 1946 ed., 372), and other applicable statutory provisions, the authority to determine the heirs of deceased Indians is vested in the Secretary of the Interior. Implicit in this authority is the power to determine whether a particular Indian is deceased. The Secretary of the Interior has repeatedly exercised the authority to presume that an Indian is dead and, based on that presumption, to distribute the estate of the decedent. Estate of Edward M. Morrison, Chippewa allottee No. 83 (file No. 46688-1925); Estate of Alec Patton, Paiute allottee No. 7 (file No. 35655-1926); Estate of Ben Harrison, Makah allottee No. 121 (file No. 36151-1931); Estate of Charles Bennett, Bad River Chippewa allottee (files Nos. 30125-1921 and 46051-38).

The State of Washington, where Columbus Tulee resided when he disappeared and in which his property is located, follows the common law in the presumption of death after an unexplained absence. Washington was admitted to statehood in 1889. The earliest reported Washington case involving death by presumption is that of Scott v. McNeal, 5 Wash. 309, 31 Pac. 873 (1892), judgment reversed 154 U.S. 34 (1894). That case approved, without much discussion, the declaration of death of a man who had been absent from his home, without explanation or communication, for seven years. It was reversed on other grounds by the United States Supreme Court. In Butler v. Supreme Court, I.O.F., 101 Pac. 481, 482--483 (Wash., 1909), it is stated:

Accord: Fordyce v. Modern Woodmen of America, 129 Wash. 364, 225 Pac. 434 (1924); Peterson v. Northwestern Mutual Life Insurance Co., 134 Wash. 172, 235 Pac. 15 (1925); Ireland v. Metropolitan Life Insurance Co., 184 Wash. 1, 49 P. 2d 469 (1935); Howard v. Equitable Life Assurance Society of United States, 197 Wash. 230, 85 P. 2d 253 ( 1938). Of course, the presumption of death is rebuttable. See Shaw v. Prudential Insurance Company of America, 158 Wash. 43, 290 Pac. 694 (1930).

In the case of Columbus Tulee, the absentee has been away from his home and family for 32 years, without any tidings of his existence. The record shows that he may have drowned while attempting to cross the Columbia River on or about

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OPINIONS OF THE SOLICITOR

APRIL 21, 1952

January 11, 1920. Although he left considerable land and money behind him, he has since made no effort to receive benefits from his property.

On the other hand, it is necessary to consider that the reason for Columbus Tulee's departure apparently was the homicide which he had committed, and that, under such circumstances, he would have been reluctant, if alive, to return home. Also, there have been rumors that he has since been seen alive. However, the testimony in the record concerning these rumors is unconvincing. It abounds with internal and external inconsistencies. Because of this, and because it is well known that the incident of a person being missing nearly always results in many reports based on mistaken identification, it seems reasonable to place very little credence on this testimony.

According to the law of the State of Washington, a trier of facts in such a case is at liberty to consider all these circumstances and to infer whether death or something else most fairly accounts for the absence.

No other presumed explanation of the utter silence of Columbus Tulee for 32 years would be as convincing as the presumption of his death during that time.

On June 12, 1929, the Superior Court of Yakima County, Washington, declared Columbus Tulee dead by presumption, and ordered the unrestricted portion of his estate (valued at about $3,000) distributed to his heirs.

I believe, therefore, that the Secretary may appropriately presume Columbus Tulee to be dead and that he may properly set in motion proceedings for the determination of his heirs and the distribution of his estate. A draft of an order along that line is attached for your consideration.

Statutory Interpretation--Surplus Property--Application of Federal Property and Administrative Services Act of 1949 to Indian Property.

The provisions of the Federal Property and Administrative Services Act of 1949, relating to the disposition of surplus property, have no application to property owned by an Indian tribe.

Memorandum
To:            The Administrative Assistant Secretary
From:        The Acting Solicitor
Subject:     Sale of Menominee Indian Mills House No. 36

You have referred to this office for review the attached request of the Bureau of Indian Affairs for authority to sell Menominee Indian Mills House No. 36 to a member of the Menominee Tribe. The authority cited for the sale is section 5 of the Menominee Indian Mills Act of 1908 (35 Stat. 51, 52).

A member of your staff has informally questioned the applicability of the Menominee Indian Mills Act, on the ground that the house in question may be regarded as "surplus property" which is subject to disposition only in accordance with the provisions of the Federal Property and Administrative Services Act of 1949 (63 Stat. 377, 41 U.S.C., 1946 ed., sec. 233), as amended September 5, 1950 (Public Law 754, 81st Cong.). The doubt about the matter appears to be induced by a memorandum from the Solicitor to the Secretary of the Interior dated May 7, 1947, in which the term "public property" as used in section 4 of the Administrative Procedure Act (60 Stat. 237, 25 U.S.C., 1946 ed., sec. 1003), was interpreted to include property held by the United States in trust for Indians. A like interpretation of the provisions of the Federal Property and Administrative Services Act of 1949, it is argued, would require that the provisions of that act be applied in disposing of Menominee Indian Mills House No. 36.

The interpretation of the words "public property" as used in the Administrative Procedure Act was based on legislative history of that enactment from which it appeared that that term was intended to "include property held by the United States in trust or as guardian, as Indian property is often held." See House Report No. 1980, 79th Congress, 2d session, at page 23. The Federal Property and Administrative Services Act has no similar legislative background, and it is quite clear from a reading of the act itself that the provisions thereof dealing with disposition of surplus property were not intended to apply to Indian owned property.

As Menominee Indian Mills House No. 36 belongs to the Menominee Indian Tribe and not to the United States, the provisions of the Federal Property and Administrative Services Act have no application to the disposition of that house. As the house, along with many others of a similar nature, appears to have been erected for the purpose of housing employees of the Menominee Indian Mills, it may be properly regarded as a part of the "saw-

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DEPARTMENT OF THE INTERIOR

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mill and manufacturing plant," within the meaning of those words as used in section 5 of the Menominee Indian Mills Act of 1908. As such, the house is subject to disposition under provisions of that section.

The statutory authority of the Secretary of the Interior to adjust or cancel reimbursable charges of the United States existing as debts against individual Indians, whenever the Secretary finds such action to be equitable and just in consideration of the circumstances under which the charges were incurred, extends to reimbursable charges growing out of the purchase of water rights for the irrigation of allotted lands of individual Indians and the payment of accrued operation and maintenance charges against their lands.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Cancellation of reimbursable charges against Indian lands within the Oroville Tonasket
                 Irrigation District, Washington

I have been requested to express an opinion on the question whether reimbursable charges against Indian lands in the Oroville-Tonasket Irrigation District, Washington, may be canceled by the Secretary of the Interior pursuant to the provisions of the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C., 1946 ed., sec. 386a).

The charges involved in this inquiry were incurred pursuant to the provisions of the acts of May 18, 1916 (39 Stat. 123, 155-156) and May 24, 1922 (42 Stat. 522, 579). The first of these acts made a reimbursable appropriation of $95,000 to be used for the purchase of water rights, and the payment of operation and maintenance costs during the first year, in connection with the irrigation of 1,401 acres of Indian land located within the Oroville-Tonasket Irrigation District. Under the act of May 24, 1922, the sum of $12,112.97 was expended in order to pay accrued operation and maintenance charges. Both acts provided for the imposition of liens on the Indian lands for charge remaining unpaid at the time of the sale of the lands or the issuance of patents in fee for them.

At the present time, 492.53 acres of the original 1,401 acres of Indian land remain in Indian ownership. The reimbursable water-right charges against the 492.53 acres remaining in Indian ownership amount to $33,398.46; and, in addition, there remain unpaid by the Indian owners reimbursable operation and maintenance charges aggregating $8,187.73 for this acreage.

As the charges under consideration here clearly represent "reimbursable charges of the Government of the United States existing as debts against individual Indians", it is clear that the Secretary has authority .to cancel the charges, in whole or in part, if the Secretary finds that such action is "equitable and just in consideration of all the circumstances under which the charges were made". This conclusion is in accordance with that reached in my memorandum to the Commissioner of Indian Affairs dated March 23, 1948 (M-35032).

In determining whether the authority conferred by the statute should be exercised, the Secretary is invested with very broad discretion.

The record indicates that the 1916 action of the Congress in authorizing the acquisition of water rights for the Indian lands was taken primarily for the benefit of the Oroville-Tonasket Irrigation District. Without such legislation, the Indian lands could not have been made part of the district. The moneys used in acquiring the water rights for the Indian lands were turned over to the district and were used for the purpose of retiring or reducing the district's indebtedness. While there is some indication in the record that the Indians were in favor of the acquisition of the water rights, there is nothing to show that they were informed either (1) that reimbursement to the United States of the purchase price and of the amount advanced for the payment of operation and maintenance costs would have to be made by them, or (2) that their lands were to be impressed with liens to ensure such reimbursement.

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OPINIONS OF THE SOLICITOR

MAY 19, 1952

derive from the acquisition of the water rights have not been realized. A report submitted to the Commissioner of Indian Affairs on September 23, 1947, by Paul F. Henderson, District Engineer, shows that practically all of the Indian lands against which the charges under consideration were assessed have lain idle for many years; that in most cases the water has never been used; that in some cases water was put on land that was not suitable for irrigation; that some of the tracts are located a considerable distance from the main canal, and laterals have never been constructed to them; that the high operation and maintenance assessments required highly specialized crops, which were beyond the financial means of the Indians; and that, notwithstanding the fact that Congress in the act of December 29, 1942 (56 Stat. 1082), authorized the Secretary of the Interior to enter into a contract with the district for the repair and rehabilitation, at a cost of not to exceed $15,000, of certain irrigation canals, laterals, and sub-laterals necessary for the delivery of water to irrigate the Indian lands, no such contract was ever made. At the time of the Henderson report, water was being used on but 27 acres of land embraced in three Indian allotments, and the district, because of the limited capacity in their main canal flumes, was not in a position to provide water for additional Indian lands.

The circumstances related above are amply sufficient, in my opinion, to warrant the cancellation, pursuant to the authority conferred on you by the Leavitt Act, of the entire amount of the charges involved here, on the ground that such action would be "equitable and just in consideration of all of the circumstances under which such charges were made."

FURNISHING COPIES OF OFFICIAL RECORDS
OF THE BUREAU OF INDIAN AFFAIRS
TO THE PUBLIC

Unless an earlier statutory provision is clearly inconsistent with, or repugnant to, a later provision, both will be given effect.

As the provisions of section 4 of the act of July 26, 1892, relating to the furnishing of copies of official records of the Bureau of Indian Affairs, were inconsistent with the provisions of section 1 of the act of August 24, 1912, relating to the furnishing of copies of official records of the Department and its constituent bureaus and offices, the earlier section was impliedly repealed by the later section.

Memorandum
To:            The Chief Clerk
From:        The Solicitor
Subject:     Furnishing copies of official records of the Bureau of Indian Affairs to the public

This responds to your memorandum of March 24, 1952, requesting an opinion on the question whether section 4 of the act of July 26, 1892 (27 Stat. 272, 273; 25 U.S.C., 1946 ed., sec. 7), has been repealed by implication.

Section 4 of the act of July 26, 1892, as originally enacted, provided in pertinent part as follows:

If this section is still effective (as to which see the subsequent discussion), it has been modified by transferring the authority under the section from the Commissioner of Indian Affairs to the Secretary of the Interior (sec. 1 (a) , Reorganization Plan No. 3 of 1950; 15 F.R. 3174).

Some years after the enactment of the provision quoted above, Congress enacted section 1 of the act of August 24, 1912 (37 Stat. 497), which provided in part as follows: