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1576

DEPARTMENT OF THE INTERIOR

MAY 19, 1952

Section 1 of the 1912 act was revised and reenacted by section 1 of the act of July 30, 1947 (61 Stat. 521); and it was again revised and reenacted by the act of August 3, 1950 (Public Law 644, 81st Cong.; 5 U.S.C., 1946 ed., Supp. IV, sec. 488). In its present form, the section provides in part as follows:

The general rule is that the courts do not favor repeals of statutory provisions by implication,¹ the theory being that legislatures act with knowledge of former related statutes and express their intent to repeal them if they so intend.² Thus, unless an earlier statutory provision is clearly inconsistent with, or repugnant to, a later provision, both will be given effect.³ This is particularly true where the question is whether general legislation has superseded or repealed by implication an earlier statute which is specific or limited in nature.⁴

The reports of the Senate and House Committees on S. 7157, 62d Cong., 2d sess., which later became the act of August 24, 1912, were brief and general in nature. The Senate Committee on Public Lands merely reported the bill favorably (S. Rept. No. 952, 62d Cong., 2d sess.). The Committee quoted a letter from the Secretary of the Interior, dated June 19, 1912, stating in part as follows:

The report of the House Committee on Public Lands was also brief (H. Rept. No. 1090, 62d Cong., 2d sess.). It quoted from an earlier report of the Committee on an identical bill in the same Congress, H.R. 25437:

The report then quoted the following portion of a letter dated July 8, 1912, from the Acting Secretary of the Interior:

"* * * Under existing law the charges for furnishing certified copies are not uniform throughout the various branches of the department, and in some instances the law does not authorize a charge to be made for making certified copies. It is very essential in the interests of good administration that the bill be enacted into law at as early a date as practicable, and I recommend that the committee report it favorably, and request that you use your best endeavors to have it passed at an early date."

    ¹ United States v. Noce, 268 U.S. 613 (1925); United States v. Greathouse, 166 U.S. 601 (1897); Frost v. Wenie, 157 U.S. 46 (1895); Pullen v. Morgenthau, Director of Railroads, 73 F. 2d 281 (C.C.A. 2nd, 1934); Ferch v. People, 74 P. 2d 712 (Cola.. 1937).
    ² Continental Ins. Co. v. Simpson, 8 F. 2d 439 (C.C.A. 4th. 1925); Borough of Oakland et al. v. Board of Conservation and Development et al., 118 Atl. 787 (N.J., 1922); Webber et al. v. Bailey et al., 51 P. 2d 832 (Ore., 1935).
    ³ United States v. Greathouse, supra; Frost v. Wenie, supra; Borough of Oakland v. Board of Conservation and Development, supra; Commonwealth v. Bloomberg et al., 19 N.E. 2d 62 (Mass., 1939).
    ⁴ United States v. Noce, supra: Stewart v. United States, 106 F. 2d 405 (C.C.A. 9th. 1939); Pullen v. Morgenthau, supra.

1577

OPINIONS OF THE SOLICITOR

MAY 19, 1952

Additional light is thrown on the legislative intent by the report of the Department of the Interior on H.R. 9058, 62nd Cong., the House version of the Senate bill (S. 7157) which later became the act of August 24, 1912. That report, dated January 25, 1912, stated in pertinent part as follows:

It is to be noted that although section 5 of the act of August 24, 1912 specifically repealed one earlier act (unrelated to Indian affairs) and specifically saved several other existing statutory provisions (some of which were related to Indian affairs), it did not refer expressly to the act of July 26, 1892. Section 5 did, however, provide in part as follows:

This statement seems clearly to imply that the provisions of the 1912 act were regarded by the Congress as superseding the provisions of earlier legislation relating to the furnishing of copies of official records of the Bureau of Indian Affairs, with the exception of the provisions specifically mentioned in section 5 as surviving the enactment of the 1912 statute.

In view of the background information referred to above, I conclude that the Congress, in enacting the act of August 24, 1912, intended to repeal by implication all those parts of earlier acts authorizing the Bureau of Indian Affairs (or other bureaus of the Department) to make charges which were inconsistent with the provisions of the 1912 act (except to the extent that earlier statutory provisions were expressly saved by section 5 of the 1912 act). As the provisions of section 4 of the act of July 26, 1892, were inconsistent with the provisions of section 1 of the act of August 24, 1912, it appears that the earlier section was impliedly repealed by the later section.

It is my opinion, therefore, that section 4 of the act of July 26, 1892, relating to the furnishing of copies of official records of the Bureau of Indian Affairs, is no longer in effect.

ISSUANCE OF FEE PATENT FOR ALLOTMENT
OF OZ-HO-WE-WUSH-CO-BE-NAIS,
DECEASED WHITE EARTH ALLOTTEE
NO. 2308.

Determination of Indian Heirs--Rehearing and Modification of Heirship Findings--Patents in Fee.

The Secretary is authorized to determine the heirs of a deceased Indian allottee who died prior to the expiration of the trust period on the allotment; and, in order to correct an erroneous decision previously made, he may reopen the case and re-determine the allottee's heirs.

Where a full-blood Indian of the White Earth Reservation died prior to the expiration of the

1578

DEPARTMENT OF THE INTERIOR

MAY 29, 1952

trust period on his allotment, the question whether any interest in the allotment is now subject to restrictions against alienation, encumbrance, and taxation depends upon whether any inherited interest in the allotment is now held by full-blood Indian heirs.

Where the quantum of Indian blood possessed by heirs of a deceased White Earth Indian allottee is unknown, it would be improper for the Department to issue to the heirs a patent in fee without an investigation to determine such quantum of Indian blood, and, if any of them are full-blood Indians, without determining that they are competent to handle their own affairs.

This responds to your request for an expression of my opinion on the question whether it would be proper to issue a patent in fee on the allotment of Oz-ho-we-wush-co-be-nais, deceased White Earth allottee No. 2308, to the heirs of Oz-ho-we-wush-co-be-nais, as heretofore determined by the Secretary of the Interior.

Oz-ho-we-wush-co-be-nais died in March 1898. On December 30, 1902, a trust patent was issued in his favor for land described as the E1/2 SW1/4, sec. 9, T. 145 N., R. 39 W., 5th P.M., Minnesota (Minnesota Patents, Vol. 297, page 164). Subsequent to his death and prior to the determination of his heirs, the allottee's mixed-blood wife, Nay-now-e-gwon-a-be-quay, and his mixed-blood son, Kay-baish-kung, died. Under a determination made by the Probate Court of Mahnomen County, Minnesota, the interests of these two heirs, Nay-now-e-gwon-a-be-quay and Kay-baish-kung, vested in Ke-we-taunce, or Sarah Wade, the allottee's mixed blood daughter. On June 23, 1920 (Probate No. 109775-19), the Secretary of the Interior determined the allottee's heirs to be the heirs of Nay-now-e-gwon-e-be-quay, the heirs of Kay-baish-kung, Ke-we-taunce, or Sarah Wade.

Ke-we-taunce, or Sarah Wade, conveyed the allotment to T.F. Rodwell by a warranty deed dated November 19, 1919. Mr. Rodwell, after subjecting the property to a first and a second mortgage, conveyed his interest, subject to encumbrances, to Luella Powers by a warranty deed dated December 30, 1922. On December 30, 1924, Luella Powers executed a warranty deed in favor of Nettie M. Powers.

On October 1, 1925, Mah-je-bin-ais (John Jumbo) petitioned the Secretary of the Interior to reopen the proceedings relative to the estate of Oz-ho-we-wush-co-be-nais, on the grounds that the petitioner was the allottee's son. The case was reopened, and on January 14, 1926, the Secretary modified his previous determination of heirs by declaring Mah-je-bin-ais to have been the son of the allottee and entitled to a child's share in his estate.

On March 10, 1941, the property was bid in for the State of Minnesota at a tax sale. Thereafter, the State conveyed the property to B. C. Ness by a tax deed dated October 21, 1947. Subsequently, on July 15, 1948, a decree by the District Court of the Fourteenth Judicial District of Minnesota quieted title in B. C. Ness by declaring him to be the owner in fee of the E1/2 SW1/4, sec. 9, T. 145 N., R. 39 W., 5th P.M., Minnesota.

As the allottee was a full-blood Indian who died before the expiration of the trust period, it is plain that the exclusive authority to determine his heirs was vested in the Secretary of the Interior (sec. 1, act of June 25, 1910 (36 Stat. 855), as amended: 25 U.S.C., 1946 ed., sec. 372). It is equally plain that the Secretary had the authority, in order to correct an erroneous decision, to reconsider the prior decision and to re-determine the allottee's heirs. Lane v. United States ex rel. Mickadiet,, 241 U.S. 201 (19 16); Dixon v. Cox, 268 Fed. 285 (C.C.A. 8th, 1920). Therefore, the action of the Secretary in re-determining, on January 14, 1926, the heirs of Oz-ho-we-wush-co-be-nais was validly taken. Pursuant to that determination, which final and conclusive (Dixon v. Cox, supra), Mah-je-bin-ais succeeded to a 2/9ths interest in the land under consideration here. Upon his death in 1932, that interest passed to his heirs at law.

The act of June 21, 1906 (34 Stat. 325, 353), as amended by the act of March 1, 1907 (34 1015, 1034), removed the restrictions against "the sale, encumbrance, or taxation" of allotted lands held by adult mixed-blood Indians on the White Earth Reservation, with the declaration that the trust deeds theretofore or thereafter issued to mixed-bloods for allotted lands should pass the full fee simple title, or that such mixed-blood Indians, upon application, should be entitled to receive patents in fee. With respect to full-blood allottees on that reservation, the restrictions could be removed under the cited legislation by the Secretary pursuant to applications from the In-

1579

OPINIONS OF THE SOLICITOR

JUNE 2, 1952

dian owners and upon findings by the Secretary that the Indian applicants were competent to handle their own affairs. This legislation, in so far as it relates to the removal of restrictions against alienation, encumbrance, and taxation, has been administratively construed to apply to all allotted lands on the White Earth Reservation, irrespective of whether the lands are held by the original allottees or by their heirs. See letter dated January 8, 1918, from the Assistant Secretary of the Interior to the Commissioner of Indian Affairs, Indian Office File No. 12567--1919 White Earth 312.

The record at hand is silent with respect to the quantum of Indian blood possessed by Mah-je-bin-ais. If he and his heirs were full-blood Indians, the 2/9ths interest held by him and subsequently by them would not be affected by the provisions of the legislation mentioned above relating to the removal of restrictions against alienation, encumbrance, and taxation, and that interest would continue to be held in trust by the United States for the Indian owners unless validly conveyed with the approval of the Secretary of the Interior. There is no indication in the record that any such conveyance has been made. On the other hand, if Mah-je-bin-ais was a mixed-blood Indian, or if he was a full-blood and his heirs were mixed blood Indians, the restrictions against alienation, encumbrance, and taxation, together with the incidental supervision and control of the Secretary of the Interior, have long since terminated by operation of the legislation previously cited.

In the circumstances set forth above, it would not be proper for the Department to issue a patent in fee to anyone at this time. If all the Indians who succeeded to interests in the land by inheritance are mixed-blood Indians, the issuance of such a patent actually would be unnecessary, since the 1906-1907 legislation operated to pass to them the full fee simple title, and any patent issued would merely be confirmatory of a title that had already passed. On the other hand, if Mah-je-bin-ais and his heirs are full-blood Indians, their 2/9ths interest in the land is still held in trust, and a patent in fee can be issued to the heirs only upon their application and a finding by the Secretary that they are competent to handle their own affairs.

It necessarily follows from what has been said that an investigation should be made in the field for the purpose of determining the blood status of Mah-je-bin-ais; and, if he is found to have been a full-blood Indian, then a further investigation should be made of the blood status of his heirs. If the investigation should disclose that Mah-je-bin-ais was a full-blood Indian and that his heirs, or some of them, are also full-blood Indians, the issuance of a patent in fee covering the interest of such full-blood Indians in the allotment of Oz-we-wush-co-be-nais would be contingent upon the receipt of applications from them and a finding by the Secretary that they are competent to handle their own affairs.

Act of June 25, 1910--Restricted Indian Estates--Payment of Claims--Administrative Practice--Congressional Recognition.

Under the act of June 25, 1910, as amended, providing for the determination of heirs and the approval of wills of deceased Indians who have left trust or restricted estates, the Secretary of the Interior has implied authority to allow all just claims against such estates.

Having been recognized by the Congress, the departmental practice of allowing claims against trust or restricted Indian estates has in effect received the approval of that body.

The Secretary of the Interior may, in his discretion, determine what income from trust or restricted Indian estates shall be applied in payment of claims against the estates, and a regulation which permits such claims to be paid from any income which may accrue from the decedent's trust or restricted property after his death is valid.

This responds to your memorandum requesting an opinion on the question whether there is adequate statutory authority to support the depart mental practice which permits the settlement of State claims for reimbursement of social security or old-age assistance payments to an Indian allottee out of income derived from the decedent's allotment after his death. (See 2.5 CFR 81.25.)

1580

DEPARTMENT OF THE INTERIOR

JUNE 2, 1952

The jurisdiction of the Secretary of the Interior over the trust or restricted estates of deceased Indians, including the determination of heirs and the approval of wills, is based upon sections 1 and 2 of the act of June 25, 1910, as amended (25 U.S.C., 1946 ed., sets. 372, 373). Section 1 of the 1910 act, as amended, provides in pertinent part that:

While the 1910 act provided in so many words only for the ascertainment of heirs and the approval of wills, and did not expressly grant to the Secretary the power to allow or disallow claims against the trust or restricted estates of deceased Indians, the practice of considering and allowing claims against the estates of deceased allottees was almost immediately instituted.¹ The regulations of September 13, 1915, and June 19, 1923, relating to the determination of heirs and the approval of wills provided in sections 14 and 9, respectively, for serving notices of hearing on "claimants" as well as on "presumptive heirs." Detailed provisions relating to the handling of claims were contained in sections 46, 47, 48, and 49 of the regulations on the same subject promulgated May 31, 1935, which preceded the present regulations.

The propriety of paying claims against the trust or restricted estates of Indians has been recognized in recent years by two Solicitors of the Department, who expressly stated that such claims might be paid not only from income to the credit of the estate at the time of the decedent's death but also from income accruing to the estate subsequent to the death of the decedent.²

It is clear that the 1910 statute confers upon the Secretary of the Interior an implied power to allow claims against trust or restricted Indian estates. As the Supreme Count said in an early case, United States v. Macdaniel, 7 Pet. 1, 14 (1833), in speaking of the duties and responsibilities of the head of a department of the Federal Government: "He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for everything he does."³ The exigencies of government in more recent times have led to the enactment of many statutes which merely lay down broad general policies or objectives and leave it to the executive to fill in the details. The lacunae of the 1910 act in particular have had to be filled in by administrative practice. For example, section 1 of the act did not expressly confer upon the Secretary of the Interior the power to ascertain the heirs to Indian allotments which were patented in fee but held subject to restrictions against alienation; yet the power of the Secretary to do so was upheld in United States v. Bowling, 256 U.S. 484 (1921). On the authority of that case, the Department held that the Secretary had the power to determine the heirs to lands which had been purchased with restricted funds, and had been subjected by the Secretary to restrictions against alienation.⁴ Moreover, although section 1 (unlike section 2) of the 1910 act does not expressly give the Secretary jurisdiction over Indian trust funds, it has been the uniform practice of the Department to determine the heirs to such funds as an incident of the power to de-

    ^l See Grace Cox et al., 42 L.D. 493, 501-02 (1913), where it was said apropos of claims: "Claims for reasonable expenditures of this nature receive favorable consideration in this Office and are paid out of rentals or other funds remaining to the credit of the estate."
    ² See letter dated June 20. 1940, from Solicitor Margold to the Solicitor of the Department of Agriculture, and letter dated September 28, 1944, from Solicitor Harper to Senator Harland J. Bushfield of South Dakota.
    ³ See also Rainbow v. Young, 161 Fed. 835 (C.C.A. 8th, 1908); William Small, Executor v. United States, 45 Ct. Cl. 13, 17 (1909); 34 Op. Atty. Gen 320, 326 (1924).
    ⁴ See 49 L.D. 414 (1923).

1581

OPINIONS OF THE SOLICITOR

JUNE 2, 1952

The implied power to allow claims against trust or restricted Indian estates is readily deducible from the terms of the 1910 act. A rule-making power is expressly conferred upon the Secretary of the Interior by both sections 1 and 2 of the act, and this rule-making power necessarily carries with it the authority to utilize all proper means for effectuating the purposes of the act.⁶ Now, conceivably, if creditors could, without the assistance of the Secretary of the Interior, collect debts which Indians had incurred before their deaths but which remained unpaid at the time of their deaths, it might be possible to argue that the power of the Secretary to see that such debts were paid was not necessarily to be implied from his power to ascertain the heirs or approve the wills of the debtors. Section 1 of the 1910 act expressly declares, however, that the decision of the Secretary in this respect "shall be final and conclusive"; and, although section 2 of the act contains no such express declaration, wills devising trust or restricted Indian property cannot be probated in the courts.⁷ As the jurisdiction over the trust or restricted estates of Indians is thus vested in the Secretary, their creditors cannot resort to the courts to collect their debts; and if these were not paid at the direction of the Secretary of the Interior, the creditors would be left without any remedy. It is hardly to be assumed that the Congress intended to make itself a party to such dishonesty.

So far as concerns the allowance of claims against the estates of Indians who have left wills, there is an additional factor which support the power of the Secretary. Indian testators almost invariably direct that their just debts shall be paid. Thus, the Secretary, in allowing claims against their estates, is only carrying out their express wishes.

In recent years, Congress has recognized that the Secretary of the Interior was exercising a general probate jurisdiction with regard to the trust or restricted estates of deceased Indians. In adopting the act of July 8, 1940 (54 Stat. 746, 25 U.S.C., 1946 ed., sec. 372a), which regulates the adoption of children by Indians who own trust or restricted estates, Congress provided that the statutory procedure should apply to "probate matters under the exclusive jurisdiction of the Secretary of the Interior * * * " and, even more significantly, that the act should not apply to "the distribution of estates of Indians who have died prior to the effective date of this act." The distribution of an estate clearly includes the allowance of any just claims against the estate. Moreover, in providing in the act of November 24, 1942 (56 Stat. 1021, 25 U.S.C., 1946 ed., sets. 373a-373c) for the disposition of the trust or restricted estates of Indians who died intestate without heirs, Congress expressly declared that the estate should escheat only "subject to the payment of such creditors' claims as the Secretary of the Interior may find proper to be paid from the cash on hand or income accruing to said estate * * *."

The legislative history of the act of November 24, 1942, is particularly interesting as a test of Congressional sentiment on the question of the payment of creditors' claims against Indian estates. In its original form, the bill (H.R. 4533, 77th Congress) which became the act of November 24, 1942, made no express provision for the payment of creditors' claims. Indeed, it was couched in such phraseology that it seemed to exclude the payment of any creditors' claims. Thus, it provided:

When the bill came up for consideration in the House on May 19, 1941, Congressman Case of South Dakota objected to the bill. "The bill, as I read section 1," he pointed out "provides that not merely the land but all the accumulated rent, issues, and profits therefrom held in trust for the decedent shall escheat to the tribe owning the land at the time of the allotment. It occurs to me that many times when Indians die under this circumstance claims against the estate of the Indian could not be taken care of. I find no provision in the

    ⁵ The propriety of this practice was inferentially recognized in the act of January 24, 1928 (42 Stat. 1185, 25 U.S.C., 1946 ed., sec. 377), which provided for the collection of fees by the Secretary of the Interior for the cost of the work performed by him in determining the heirs to any trust or "restricted Indian property" or in approving wills covering "restricted property" and which authorized the fees to be collected "from any trust funds belonging to the estate of the decedent."
    ⁶ As the Supreme Court said in Hallowell v. Commons, 239 U.S. 506, 508 (1916), the Secretary in promulgating regulations under the act has "considerable discretion as to details."
    ⁷ As the Supreme Court said, in speaking of the words of section 2 of the 1910 act in Blanset v. Cardin, 256 U.S. 319, 326 (1921): "They not only permit a will but define its permissible extent, excluding any limitation or the intrusion of any qualification by State law." It then added that "the act of Congress is complete in its control and administration of the allotment and of all that is connected with or made necessary by it
*     *     *."

1582

DEPARTMENT OF THE INTERIOR

JUNE 2, 1952

bill that would permit the settlement of the claims before the property, the rents, and so forth, go to the tribe." To this Congressman Rogers of Oklahoma, who had introduced the bill at the request of the Department, replied: "That is under the supervision of the Secretary. The estate would have to be settled before any of it would revert."⁸ Still dissatisfied with the language of the bill, however, Congressman Case asked that the bill be passed over, and on June 16, 1941, he offered an amendment expressly providing for the payment of creditors' claims, and this amendment was adopted by the House.⁹

It might be contended that the departmental practice in the matter of allowing claims against trust or restricted Indian estates runs counter to the provision in section 5 of the General Allotment Act of February 8, 1887 (24 Stat. 389), as amended (25 U.S.C., 1946 ed., sec. 348), which states that at the expiration of the trust period of an allotment the United States will convey the same "free of all charge or encumbrance whatsoever," and to a related provision in the act of June 21, 1906 (34 Stat. 327, 25 U.S.C., 1946 ed., sec. 354), which states that no allotted land shall become "liable to the satisfaction of any debt contracted prior to the issuing of the final patent in fee therefore." Even conceding, for the sake of argument, that these provisions would preclude the allowance of claims against the estates of allotted Indians, it is clear that they have, in effect, been set aside by the later adoption of the act of June 25, 1910, which, properly construed, permits the allowance of such claims. The General Allotment Act, to be sure, attempted to forbid the alienation or encumbrance of allotted lands in any manner during the trust period, but this policy was soon abandoned, and all sorts of transactions affecting allotted lands were subsequently authorized by a long series of Congressional enactments. The allowance of creditors' claims against trust or restricted estates is only another example of such an authorization.

It might also be contended that even if claims against trust or restricted Indian estates may be allowed from cash on hand at the time of the decedent's death, such claims cannot be allowed from the rents, profits, or income of the decedent's lands accruing after his death. If, however, the Secretary of the Interior has authority to allow claims against Indian estates, the question of the time of the accrual of the income to be applied to the satisfaction of a claim is to be determined entirely in his discretion. It is true that it is the rule generally that the rents, profits, and income derived from realty vest in the heirs or devisees of the decedent and are not assets in the hands of an executor or administrator, but this rule does not apply where the personalty is insufficient to pay the debts of the estate. Moreover, in many States the general rule has been altered by statutes which make subsequently accruing rents and profits from realty assets in the hands of personal representatives for the payment of debts.¹⁰ In any event, the Secretary of the Interior is not bound by these rules of State law, for under section 5 of the General Allotment Act (25 U.S.C., 1946 ed., sec. 348), he is bound by State law only in his determination of heirship.

I am of the opinion, therefore, that the regulation of the Department which requires the allowance of claims of States on account of social security or old-age assistance payments, and which gives such claims priority over the claims of general creditors, has an adequate statutory basis.

It is possible, however, that in some instances the application of the regulation may cause undue hardship. You may wish to reconsider the policy question whether or under what circumstances income accruing to trust or restricted Indian estates subsequent to the death of the decedent should be used to pay State social security claims, with the idea of perhaps proposing a change in the regulation.

A provision in a tribal constitution which declares that any adult member of the tribe shall be eligible to vote at any election "when he or she presents himself or herself at a polling place within his or her voting district" does not impose a residence requirement on eligibility to vote, since the quoted phrase is designed to regulate the voting process by preventing absentee voting, rather than to disqualify members of the tribe who reside outside the voting districts comprising the reservation.

Election laws are to be construed liberally in favor of the right to vote, and this rule is particularly appropriate in construing the provisions of Indian tribal constitutions governing eligibility to vote in tribal elections.

    8 See Congressional Record for May 19. 1941, p. 4316.
    9 See Congressional Record for June 16, 1941, pp. 5314-15.
    10 See 33 C.J.S.., title "Executors and Administrators," sec. 105. and authorities there cited.

1583

OPINIONS OF THE SOLICITOR

JULY 18, 1952

Residence in a voting district on the Blackfeet Reservation is not a prerequisite for voting in Blackfeet tribal elections.

In determining whether at least 30 per centum of the eligible Blackfeet voters participated in an election on a proposed amendment to the Black feet tribal constitution, it is necessary to include in the computation all the nonresident adult members of the tribe, as well as the adult members of the tribe residing in the voting districts which comprise the reservation.

Only the Secretary of the Interior (or his delegate) can call a legal election on the adoption of a proposed amendment to the constitution of an Indian tribe.

An election which was called and held by the Blackfeet Tribal Business Council on the adoption of a proposed amendment to the Blackfeet tribal constitution has no legal standing and must be disregarded in determining whether the proposed amendment was adopted.

As less than 30 per centum of the eligible members of the Blackfeet Tribe voted in the legal election on the adoption of proposed Amendment III to the tribal constitution, the proposed amendment was not adopted.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Vote on proposed Amendment III to Blackfeet Constitution

On March 18, 1952, Assistant Secretary Doty directed that the Superintendent of the Blackfeet Reservation conduct an election to enable the qualified voters of the Blackfeet Tribe to vote on the question whether a proposed Amendment III to the tribal constitution should be adopted. The proposed amendment related to the deposit and disbursement of tribal funds. This election was held on May 9; and out of a total of 606 voters who participated in the election, 460 voted in favor of the amendment and 146 voted against the amendment.

The election board and the Superintendent of the reservation thereupon certified that the amendment was adopted by a majority of the voters, and that the total vote cast constituted not less than 30 per centum of those entitled to vote in the election. This certification was made because of the requirement in section 1 of the act of June 15, 1935 (49 Stat. 378, 25 U.S.C. 1946 ed., sec. 478a), that an amendment to a tribal constitution, in order to be effective, must receive the approval of a majority of the persons voting in a tribal election which is participated in by not less than 30 per centum of those entitled to vote.

The question has been raised, however, whether a minimum of 30 per centum of the persons eligible to vote actually participated in the election on the adoption of Amendment III. The answer to this question turns upon the proper construction of section 1 of Article VIII of the tribal constitution, which determines the eligibility of voters in tribal elections. This provision reads as follows:

The Superintendent, in preparing the certification previously mentioned, construed the reference to "his or her voting district" in the section quoted above as impliedly limiting eligibility to those members of the tribe who were, at the time of the election on the adoption of Amendment III, residents of the several districts comprising the reservation. Under the Superintendent's theory that only members of the tribe who resided in the several districts of the reservation were qualified to vote, approximately 1,000 non-resident adult members of the tribe were regarded as having been ineligible to participate in the election on the adoption of Amendment III. These nonresident members of the tribe were disregarded by the Superintendent in connection with the certification that not less than 30 per centum of those entitled to vote had participated in the election. The correctness of the certification depends upon the correctness of the Superintendent's view that nonresident members of the tribe were not eligible to vote.²

To treat the reference to "his or her voting district" in section 1 of Article VIII of the tribal constitution as imposing a residence requirement on

¹ Article VIII, of which this provision is a part, bears the heading, "Bill of Rights," and is plainly designed to govern voting in all tribal elections, whether the purpose of an election is the selection of tribal officers or the adoption of a constitutional amendment. However, Article IV, which is headed "Elections and Nominations for the Tribal Council." also has a section--section 7--which defines the eligibility of voters. As section 7 of Article IV and section 1 of Article VIII are identical, no question of conflict can arise.
² This problem was not raised in connection with the adoption of the two previous amendments to the tribal constitution, perhaps because they were approved at elections in which it appeared that at least 30 per centum of the adult members of the tribe participated. Amendment I was ratified on November 30, 1945, by a vote of 515 to 305. Amendment II was ratified on January 20, 1948, by a vote of 1,020 to 236.

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DEPARTMENT OF THE INTERIOR

JULY 18, 1952

eligibility to vote is to give it a meaning which the framers of the constitution could hardly have intended. These words must be considered in relation to the longer phrase of which they are a part. The phrase is to the effect that any adult member of the Blackfeet Tribe shall be eligible to vote at any election "when he or she presents himself or herself at a polling place within his or her voting district". It seems to be plain that the purpose of this phrase is merely to require the personal presence of voters at the proper polling places on election day, and thus to prevent absentee voting. In other words, this phrase is designed to regulate the voting process, rather than to disqualify nonresident members of the tribe.

It does not follow from the fact that absentee voting is prohibited that nonresident members of the tribe cannot vote. Although the requirement respecting a personal appearance in order to vote would ordinarily entail more inconvenience for a nonresident member of the tribe than for a tribal member residing on the reservation, there are doubtless nonresident members of the tribe who are sufficiently interested in exercising the right of suffrage to incur whatever inconvenience might be involved in making personal appearances on election day at the polling places within the appropriate voting districts for the purpose of voting. In the absence of any specific arrangement prescribed by competent authority with respect to the assignment of nonresident adult members of the tribe to a particular voting district or districts for the purpose of participating in tribal elections, it should not be too difficult to identify each of these persons with a voting district upon the basis of past association. For example, a nonresident member of the tribe who had formerly resided on the reservation might properly vote in the district where he last resided. Similarly, a nonresident member of the tribe who had received an allotment might properly vote in the district containing the allotment. In other cases, a nonresident member of the tribe might be regarded, by virtue of having voted in a particular district heretofore without any objection being raised by tribal officials, as impliedly assigned to that district for voting purposes.

Election laws are to be construed liberally in favor of the right to vote.³ It is particularly appropriate that this rule should be applied in the case of tribal constitutions adopted pursuant to the Indian Reorganization Act, because these constitutions were carefully prepared under departmental supervision, and the question whether residence on the reservation should be one of the prerequisites for voting was carefully considered, and provision was made in accordance with the wishes of the tribe concerned.⁴ Accordingly, since the constitution of the Blackfeet Tribe does not expressly disqualify nonresident members of the tribe from participating in tribal elections, this Department ought not, through the process of interpretation, to read into the constitution a limitation on voting which was omitted by the framers of the constitution.

It is my opinion, therefore, that residence in a voting district on the Blackfeet Reservation is not a prerequisite for voting in tribal elections.

As the Blackfeet Tribe in 1952 has a voting population of at least 2,800 adult members of the tribe, and as 30 per centum of this number is at least 840, it is clear that the 606 members of the tribe who participated in the election on May 9, 1952, did not constitute 30 per centum of those entitled to vote in the election, as is required by section 1 of the act of June 15, 1935.

It appears that on May 9 the Blackfeet Tribal Business Council also held, entirely under its own auspices, a purported election on the adoption of Amendment III to the tribal constitution. In this purported election, 527 members of the tribe participated, 154 voting in favor of the amendment and 373 against it. If these 527 votes could properly be added to the 606 votes which were cast in the election that was conducted on the same day under the supervision of the Superintendent of the Blackfeet Agency, it could be found that 1,133 votes were cast on the acceptance or rejection of the amendment, and this number would, of course, constitute more than 30 per centum of those entitled to vote on the amendment. It is obvious, however, that the votes in the two elections cannot be combined. This is because the purported election conducted by the Blackfeet council has no legal stand-whether Amendment III was adopted.

Article X of the Blackfeet tribal constitution, which covers the subject of amendments to the constitution, provides as follows:

³ See 29 Corpus Juris Secundum, p. 27, and cases there cited.
⁴ The ratio of tribal constitutions which make residence on the reservation a qualification of voters to those which do not is somewhat more than 3 to 1.

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OPINIONS OF THE SOLICITOR

OCTOBER 2, 1952

Moreover, section 16 of the Indian Reorganization Act (25 U.S.C., 1946 ed., sec. 476), under which the Blackfeet tribal constitution was adopted, expressly provides in pertinent part that a tribal constitution shall become effective "when ratified
* * * at a special election authorized and called by the Secretary of the Interior," and that "Amendments to the constitution * * * may be ratified * * * in the same manner as the original constitution." Thus, it is plain both from Article X of the Blackfeet tribal constitution and from the governing statutory provision that only the Secretary of the Interior is authorized to call a legal election upon the adoption or rejection of a proposed amendment to the Blackfeet tribal constitution.

It is recommended that you sign the attached draft of a letter addressed to the Superintendent of the Blackfeet Agency, in which he is informed that Amendment III to the Blackfeet tribal constitution has failed of adoption and is not to be carried into effect.

Indian Reorganization Act--Organized Indian Tribes--Indian Chartered Corporations--Approval of Attorneys' Contracts

The provision in the corporation charter issued to the Fort Belknap Indian Community stating that the exercise by the community of its corporate powers shall be subject to any restrictions contained in the community's constitution and by laws incorporates by reference the requirement in the constitution and bylaws that any employment of legal counsel by the community shall be subject to the approval of the Secretary of the Interior in so far as the choice of counsel and the fixing of fees are concerned.

A letter from an official of the Department making suggestions concerning changes in a draft of a proposed contract between an organized Indian tribe and an attorney, but containing no assurance that if the suggested changes were made the tribe's choice of the attorney and the fees provided for in the document would be approved by the Department, did not amount to a departmental approval of the employment of the attorney by the tribe.

A purported contract between an organized Indian tribe and an attorney which has not received the approval of the Secretary of the Interior (or his representative) with respect to the choice of counsel and the fixing of fees is invalid.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Employment of attorney by Fort Belknap Indian Community

You have requested that I express an opinion on the question of the validity of a purported contract dated March 16, 1950, between Mr. Felix S. Cohen and the Fort Belknap Indian Community of Montana, providing for the employment of Mr. Cohen to act as the tribe's general counsel for a period of three years.

The first question to be answered is whether the Fort Belknap Indian Community is required by its corporate charter to secure the approval of the Secretary of the Interior (or his representative) in connection with the employment of Mr. Cohen as the community's attorney.

The Fort Belknap Indian Community is organized and incorporated under section 16 and 17 of the act of June 18, 1934, commonly known as the Indian Reorganization Act (25 U.S.C., 1946 ed., sets. 476, 477).

Section 5 of the corporate charter issued to the Fort Belknap Indian Community confers upon the community certain specified corporate powers, to be exercised by the Community Council. The contracting power is covered by paragraph (f) of section 5, which authorizes the community--

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DEPARTMENT OF THE INTERIOR

OCTOBER 2, 1952

As the purported contract with Mr. Cohen presumably would not involve the payment of more than $2,000 by the community during any fiscal year, the proviso in paragraph (f) respecting the approval of the Secretary (or his representative) may be regarded as inapplicable to the present case.

Paragraph (f) is not, however, the only provision in section 5 of the corporate charter that is pertinent to the question now under construction. The lettered paragraphs of section 5 conferring specific corporate powers on the community are all preceded and qualified by a general provision at the beginning of the section which states, in effect, that the several corporate powers granted by section 5 or to be exercised "subject to any restrictions contained in * * * the Constitution and By-laws of the said community * * *."

The subject of the employment of legal counsel is expressly covered by paragraph (b) of section 1 of article V of the constitution and bylaws of the Fort Belknap Indian Community. This paragraph states that, in connection with such employment, "the choice of counsel and fixing of fees [are] to be subject to the approval of the Secretary of the Interior". The quoted provision applies to any employment of legal counsel by the community, irrespective of the amount of money that the tribe may be obligated to pay under the arrangement.

As the restriction set out in the constitution and bylaws of the Fort Belknap Indian Community with respect to securing the approval of the Secretary of the Interior concerning the choice of counsel by the community and the fixing of counsel fees is incorporated by reference in section 5 of the community's corporate charter, it must be concluded that the Fort Belknap Indian Community cannot, under its corporate charter, employ an attorney without securing the approval of the Secretary (or his representative) with respect to the choice of the attorney and the fixing of the attorney's fees. This is so irrespective of whether the employment of the attorney will or will not involve the payment by the community of more than $2.000 during any one fiscal year.

The next question requiring consideration is whether the selection of Mr. Cohen by the community as its counsel, and the fees provided for in the purported contract with Mr. Cohen, have been duly approved by the Secretary or his representative.

The record shows that on August 29, 1949, Assistant Commissioner Zimmerman, of the Bureau of Indian Affairs, wrote to Mr. Cohen, suggesting that certain changes be made in an unexecuted draft of a proposed contract between Mr. Cohen and the Fort Belknap Indian Community, under which Mr. Cohen was to be employed as the community's general counsel. These changes were apparently made in the draft, and the revised document, signed by Mr. Cohen and the Chairman of the Community Council, was thereafter submitted to the Commissioner of Indian Affairs for approval. ^l No approval was ever granted by the Commissioner.

Assistant Commissioner Zimmerman, in his letter of August 29, 1949, was merely commenting on a draft of a proposed contract. He did not give any assurance that if the changes suggested by him were made in the document, the choice of Mr. Cohen by the community and the counsel fees provided for in the proposed document would thereupon be approved by the Department. Consequently, it is plain that Assistant Commissioner Zimmerman's letter did not purport to be, and was not, the departmental approval that is essential under the constitution and bylaws-and, hence, under the corporate charter-of the Fort Belknap Indian Community in order to effect the valid employment of legal counsel.

For the reasons indicated above, it is my opinion that since the Fort Belknap Indian Community cannot employ an attorney without securing the approval of the Secretary of the Interior (or his representative) with respect to the choice of counsel and the fixing of the fees, and since the requisite approval has not been granted in connection with the purported contract dated March 16, 1950 between Mr. Felix S. Cohen and the community, that document is invalid.

¹ The authority to approve the choice of counsel and the fixing of fees in contracts between attorneys and organized Indian tribes was delegated to the Commissioner of Indian Affairs by Secretarial Order No. 2508, dated January 11, 1949 (14 F.R. 258, 260).

1587

OPINIONS OF THE SOLICITOR

OCTOBER 27, 1952

Indian allotted lands required for the Yellowtail Project can be condemned in accordance with the provisions of section 3 of the act of March 3, 1901, which subjects such lands to condemnation for public purposes in the same manner and to the same extent as lands owned in fee.

The Indian tribal lands needed for the Yellowtail dam and reservoir site cannot be condemned, because the Yellowtail Project would be constructed within, and would provide for the irrigation of approximately 21,500 acres of Indian owned lands situated within the exterior boundaries of the Crow Indian Reservation, and Congress has prohibited any further irrigation development on the reservation without the consent of the Crow Indians.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Condemnation of Indian lands needed for the Yellowtail dam and reservoir site

You have requested that I express an opinion on the question whether it is possible under existing legislation to condemn the Indian lands that are needed for the proposed Yellowtail dam and reservoir site.

The proposed Yellowtail dam site is located in secs. 18 and 19, T. 6 S., R. 31 E., Montana Meridian. The dam would be constructed across the Big Horn River about three-fourths of a mile above the mouth of Big Horn Canyon, which is 35 miles southwest of Hardin, Montana. The Yellowtail reservoir would extend south from the dam site along the Big Horn River bed to the vicinity of Kane, Wyoming, a distance of about 72 miles. Approximately 42 miles of the length of the reservoir would thus lie within the exterior boundaries of the Crow Indian Reservation.

The dam site would consist entirely of Crow tribal land, and so would the reservoir site, except for one 40-acre Indian allotment. A total of 1,033.27 acres of allotted Indian land would be required for the camp site to be established in connection with the construction of the Yellowtail project. In all, 6,846.67 acres of tribal and allotted land would be required for the Yellowtail project, which is descrilbed as one having multipurpose features, among which are included flood-control, irrigation, and power development.¹

Under the provisions of section 3 of the act of March 3, 1901 (31 Stat. 1084, 25 U.S.C., 1946 ed., sec. 357), allotted Indian lands are subject to condemnation for public purposes in the same manner and to the same extent as lands owned in fee. Consequently, the Indian allotments required for the Yellowtail project may be condemned in accordance with this section.

Except for the act of May 10, 1926 (44 Stat. 498), which authorizes the condemnation of the lands of the Pueblo Indians of New Mexico "for any public purpose and for any purpose for which lands may be condemned under the laws of the State of New Mexico, * * *" there is no legislation which in specific terms authorizes the condemnation of Indian tribal lands.

It has been suggested, however, that Indian tribal lands may be condemned pursuant to section 1 of the act of August 1, 1888 (25 Stat. 357, 40 U.S.C., 1946 ed., sec. 257), which provides in part as follows:

Section 7 of the Reclamation Act of June 17, 1902 (32 Stat. 389, 43 U.S.C., 1946 ed., sec. 421), has also been suggested as a more specific source of authority for the condemnation of Indian tribal lands needed for reclamation projects. This section reads in part as follows:

¹ See Missouri River Basin Investigations Staff, Billings Area Office, Bureau of Indian Affairs, Billings, Montana. Report No. 107 (August 1950).

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DEPARTMENT OF THE INTERIOR

OCTOBER 27, 1952

Different law officers of this Department have apparently entertained different views with respect to the question whether Indian tribal lands can be condemned under legislation which, in general terms, provides for the condemnation of land but which does not specifically refer to Indian tribal lands. For example, Acting Solicitor Kirgis in 1936 and Acting Solicitor Cohen in 1945 were seemingly doubtful that such legislation provided the authority for the condemnation of Indian tribal lands.³ On the other hand, Solicitor Gardner in 1943 took the position that Indian tribal lands could be condemned under statutory provisions which authorized the Secretary of War, in general terms, to institute condemnation proceedings for the acquisition of "the necessary lands" or "any real property" required for certain purposes.⁴

For the reason discussed below, I do not believe that it is necessary in the present instance to express an opinion on the general question whether Indian tribal lands needed for a reclamation project can be condemned under section I of the act of August 1, 1888, supra, or under section 7 of the Reclamation Act, supra.

The construction of the Yellowtail project would result in the irrigation of approximately 44,000 acres of land which cannot now be irrigated. Of this acreage, approximately 21,500 acres are Indian owned lands situated within the exterior boundaries of the Crow Indian Reservation. Hence, 49 percent of the lands to be irrigated are Indian owned lands within the reservation. ⁵

The Crow Indians complained for a long time that the Government provided for them irrigation developments which they did not want. Congress finally heeded this complaint by declaring that no further irrigation construction work should be undertaken on the Crow Indian Reservation without the consent of the Crow Indians. Thus, it was provided in section 8 of the act of June 4, 1920 (41 Stat. 751, 753), that "no additional irrigation system shall be established or constructed by the Government for the irrigation of Indian lands on the Crow Reservation until the consent of the tribal council thereto has been duly obtained." This prohibition was repeated in virtually identical terms when section 8 of the 1920 act was amended by the act of May 26, 1926 (44 Stat. 658, 660). Moreover, an even broader prohibition of a similar character was enacted in section 9 of the act of June 28, 1946 (60 Stat. 333, 336), which provides in part as follows:

It will be noted that the prohibitions contained in these statutes are sufficiently broad in scope to cover the construction of the proposed Yellowtail project. The prohibition in the 1920 act, as amended by the 1926 act, is upon the construction of any "additional irrigation system for the irrigation of Indian lands on the Crow Reservation" (approximately 49 percent of the lands to be served by the Yellowtail project would be "Indian lands on the Crow Reservation"); and the prohibition in the 1946 act is upon "further construction work on the Crow Indian Reservation * * * by the United States" (the Yellowtail dam would be constructed "on the Crow Indian Reservation * * * by the United States").

The 1946 prohibition upon further construction work on the Crow Indian Reservation by the United States without the consent of the Indians was adopted by Congress subsequent to the approval by Congress, in section 9 of the Flood Control Act of December 22, 1944 (58 Stat. 887, 891), of the plans of development for the Missouri River Basin that included the Yellowtail project.⁶ There-

    ² It should be noted, however, that the reclamation fund is no longer available unless specifically appropriated by Congress. See sec. 16, act of August 13, 1914 (39 Stat. 690. 43 U.S.C.. 1946 ed., sec. 414).
    ³ See memorandum dated July 8, 1936, from Acting Solicitor Kirgis to the Commissioner of Indian Affairs, and statement made to the Senate Committee on Indian Affairs on October 9, 1945, regarding S. J. Res. 79. 79th Cong., by Acting Solicitor Cohen, who is the author of the Handbook of Federal Indian Law (Washington, 1942).
    ⁴ See letter dated June 29, 1943, relating to proceedings for the condemnation of an area of tribal land which was part of the Fort Hall Indian Reservation in Idaho for the Pocatello Air Base. It was stated in the letter that "the Solicitor [referring to Solicitor Gardner] does not believe that there can be any successful challenge to the legal authority of the United States to condemn tribal lands for a wartime need" under statutory provisions that are now codified as 10 U.S.C., 1946 ed., sec. 1343b, and 50 U.S.C. 1946 ed., sec. 171.
    ⁵ See telegram dated October 16, 1952, from Billings office of Bureau of Reclamation to the Commissioner of Reclamation. See also Senate Hearings on Interior Department Appropriation Bill for 1950, Part I, p. 1007.
    ⁶That section approved, among other things, the plans contained in S. Doc. 191, 78th Gong., which included the Yellowtail project.

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OPINIONS OF THE SOLICITOR

OCTOBER 29, 1952

fore, it seems clear that the approval of the plan for the Yellowtail project was thereafter qualified by and made subject to the prohibition contained in section 9 of the 1946 act.

Moreover, section 9 (c) of the Flood Control Act of 1944 expressly provides that "irrigation of Indian trust and tribal lands shall be in accordance with the laws relating to Indian lands." Among these laws are, of course, the provisions of section 8 of the 1920 act, as amended in 1926, and of section 9 of the 1946 act, prohibiting further irrigation developments on the Crow Indian Reservation without the consent of the Crow Indians.

In its essence, a condemnation proceeding involves the taking of land against the will of its owner, or irrespective of the owner's consent. Since any further irrigation developments on the Crow Indian Reservation are contingent, under present law, upon securing the consent of the Crow Indians, it is my opinion that the tribal lands needed for the Yellowtail dam and reservoir site cannot be acquired by means of condemnation proceedings.

Lands--Mineral Rights--Title-Authorization of Reclamation Project--Ute Tribe--Uintah and Ouray Reservation

The authority of the Secretary to withdraw "lands" for reclamation purposed includes within its scope the authority to withdraw the minerals in lands where the surface has been patented by the Government but the title to the minerals is retained by the Government.

A reclamation withdrawal order excepting from its provisions "any tract the title to which has passed out of the United States" excluded only those tracts as to which the title in its entirety had passed out of the Government, and covered the minerals in tracts within the withdrawn area which has been patented with a reservation of the minerals to the United States.

An order restoring to tribal ownership the "undisposed-of opened lands" within an Indian reservation did not include tracts which were at that time withdrawn from a reclamation project, since lands withdrawn from public entry and dedicated to a particular purpose cannot be regarded as "undisposed of" lands.

The authority of the Secretary to restore to tribal ownership former tribal lands within an Indian reservation includes the authority to restore to tribal ownership the minerals in tracts which have been patented with a reservation of the minerals to the United States.

A withdrawal of lands for a reclamation project does not constitute an authorization of the project; and the fact that former tribal lands within an Indian reservation have been withdrawn for a reclamation project dopes not prevent the Secretary from revoking the withdrawal and restoring the lands to tribal ownership if he determines that such action would be in the public interest.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Restoration to tribal ownership of lands included in a reclamation withdrawal

This responds to your request for an opinion on the question whether the N1/2 S1/2, SW1/4 NW1/4 sec. 27 and the mineral rights in the N1/2 S1/2, SE1/4 SE1/4 sec. 25 and in the N1/2 S1/2 sec. 26, T. 3 S., R. 9 W., U.S.M., Utah, have been restored to the Ute Indian Tribe.

The tracts referred to in the preceding paragraph were formerly unallotted lands of the Ute Indian Tribe on the Uintah and Ouray Reservation. There were opened by the act of May 27, 1902 (32 Stat. 263), as amended, for disposition under the public-land laws of the United States. The tracts in sections 25 and 26 were disposed of at a public sale held on June 21, 1917, and were patented with a reservation of the minerals to the United States. The tracts in section 27 were never entered or patented.

All these tracts are within the area covered by a first-form reclamation withdrawal order issued on September 20, 1920, withdrawing lands for the Castle Peak reclamation project. The withdrawal order of September 20, 1920 has not been revoked with respect to the tracts under consideration in this opinion.

On August 25, 1945, the Secretary of the Interior promulgated an order (10 F.R. 12409) restoring to tribal ownership all the "undisposed-of lands of the Uintah and Ouray Reservation."

1590

DEPARTMENT OF THE INTERIOR

OCTOBER 29, 1952

The first question to be decided is whether the tracts with which we are concerned were affected by the reclamation withdrawal order of September 20, 1920. That order, in so far as it is pertinent to our present discussion, purported to withdraw "all secs. * * * 25, 26, and 27", T. 3 S., R. 9 W., U.S.M., Utah, "excepting any tract the title to which has passed out of the United States."

It is clear at the outset that the withdrawal order was applicable to the N1/2 S1/2 and the SW1/4 NW1/4 sec. 27, since no part of the title to these tracts had previously "passed out of the United States."

A more difficult problem is presented when we consider the applicability of the withdrawal order to the N1/2 S1/2, SE1/4 SE1/4 sec. 25 and the N1/2 S1/2 sec. 26. These tracts had been disposed of by the United States in 1917 under patents reserving the minerals to the United States. Hence, at the time when the reclamation withdrawal order of September 20, 1920 was issued, only the mineral rights in these tracts were held by the United States.

The authority of the Secretary of the Interior to make first-form reclamation withdrawals is contained in section 3 of the Reclamation Act of June 17, 1902 (43 U.S.C., 1946 ed., sec. 416), which provides in part that the Secretary may "withdraw from public entry the lands required for any irrigation works * * *." It is my view that this authority to withdraw "lands" includes within its scope the authority to withdraw the minerals in lands where the surface has been patented by the Government but the title to the minerals is retained by the Government. In this connection, it is appropriate to repeat the statement that was made in Solicitor's Opinion M-34836 (January 27, 1947):

We turn, then, to the problem of whether the withdrawal order of September 20, 1920 was actually intended to cover the minerals in the N1/2 S1/2, SE1/4 SE1/4 sec. 25 and in the N1/2 S1/2 sec. 26, inasmuch as the order excepted from its provisions "any tract the title to which has passed out of the United States." I believe that the quoted exclusionary phrase referred only to those tracts as to which the title in its entirety had passed out of the Government. Accordingly, since the patents Covering the tracts in secs. 25 and 26 with which we are concerned conveyed only the title to the surface, and reserved to the United States the title to the minerals, it appears that the minerals in these tracts were not excluded by the language of the withdrawal order from its scope.

Hence, it is my opinion that the N1/2 S1/2, SW1/4 NW1/4 sec 27 and the minerals in the N1/2 S1/2, SE1/4 SE1/4 sec. 25 and the N1/2 S1/2 sec. 26 were withdrawn by the first-form reclamation withdrawal order of September 20, 1920.

The next question to be decided is whether the restoration order of August 25, 1945 restored the N1/2 S1/2, SW1/4 NW1/4 sec 27 and the minerals in the N1/2 S1/2, SE1/4 SE1/4 sec. 25 and in the N1/2 S1/2 sec. 26 to tribal ownership, in view of the fact that these lands and minerals were at that time subject to the first-form reclamation withdrawal order of September 20, 1920.

It will be noted that this order restored to tribal ownership the "undisposed-of" lands of the Uintah and Ouray Reservation. In so far as the present question is concerned, the problem is whether former tribal lands which were subject to a reclamation withdrawal on August 25, 1945 comprised "undisposed-of" lands.

It seems to me that former tribal lands withdrawn from public entry and dedicated to a particular purpose--e.g., a reclamation project--by a proper order cannot be regarded as "undisposed-of" lands.

Moreover, the memorandum dated March 21, 1945 from the Assistant Commissioner of Indian Affairs recommending the issuance of the restoration order that is involved here leaves no doubt that the former tribal lands which had been withdrawn for reclamation purposes in the meantime

1591

OPINIONS OF THE SOLICITOR

NOVEMBER 14, 1952

were intended to be excluded from the restoration order. In that memorandum, the Assistant Commissioner made the following statement:

Hence, it is plain from the Assistant Commissioner's language that the proposal for the restoration to tribal ownership of former tribal lands did not contemplate the restoration of those lands that were "in a Reclamation reserve."

It is my opinion, therefore, that the N1/2S1/2, SW1/4NW1/4 sec. 27 and the mineral rights in the N1/2S1/2, SE1/4SE1/4 sec. 25 and in the N1/2S1/2 sec. 26 were not restored to tribal ownership by the order of August 25, 1945.

Perhaps it should be mentioned that the lands and minerals discussed in this opinion can still be restored to tribal ownership if the Secretary of the Interior should determine that the public interest would be served by taking such action, instead of continuing the withdrawal of such lands and minerals for the purpose of a reclamation project.

The authority for the restoration to tribal ownership of former tribal lands is found in section 3 (a) of the Indian Reorganization Act of June 18, 1934 (25 U.S.C., 1946 ed., sec. 463 (a)), which provides in pertinent part as follows:

The statutory proviso quoted above would not prevent action by the Secretary to restore to tribal ownership the lands and minerals discussed in this opinion, since no reclamation project affecting these lands and minerals has ever been authorized. Although the withdrawal order of September 20, 1920 was issued in anticipation of the ultimate construction of the Castle Peak reclamation project, that order did not, of course, purport to authorize the project. The authorization of the project necessarily awaited subsequent action by the Congress (or, since August 4, 1939, by the Secretary of the Interior under section 9 (a) of the Reclamation Project Act of 1939, 43 U.S.C., 1946 ed., sec. 485h (a) ).

Under section 8 of the corporate charter of the Southern Ute Tribe, the tribe may make per capita payments out of the current net income for any fiscal year without securing departmental approval.

The Southern Ute Tribe may, without securing departmental approval, distribute per capita among its members, in any fiscal year, up to one-half of the tribe's accrued surplus.

1592

DEPARTMENT OF THE INTERIOR

NOVEMBER 14, 1952

The Southern Ute Tribe must secure the approval of the Department before it can distribute per capita among its members, in any one year, more than one-half of its accrued surplus.

The governing body of the Southern Ute Tribe may, before the close of a fiscal year, make per capita payments out of the profits for that year.

The royalties received by the Southern Ute Tribe from its oil and gas leases constitute "profits of corporate enterprises or income" within the meaning of section 8 of the corporate charter of the tribe.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Per capita distributions under Southern Ute charter

You have requested that I express opinions on certain questions which have arisen in connection with a proposed per capita distribution of corporate profits or income pursuant to section 8 of the charter of the Southern Ute Tribe.

Your first question is whether there are limits to the amounts which may be distributed by the tribe per capita without the approval of the Department.

It seems to be plain that the tribe may distribute the whole of its current net income for any fiscal year without securing departmental approval. The current net income would be determined by deducting from the tribe's gross income all sums necessary "to defray corporate obligations and * * * all sums which may be devoted to the establishment of a reserve fund, the construction of public works, the costs of public enterprises, the expenses of tribal government, the needs of charitable or other corporate purposes."

It also seems to be plain that the tribe may, without securing departmental approval, distribute per capita among its members, in any fiscal year, up to one-half of its accrued surplus, consisting of the accumulated profits of past years. The approval of the Department would, however, be required before the tribe could distribute per capita among its members, in any one year, more than half of its accrued surplus.¹

Your next question is whether the tribe may, before the end of a fiscal year, make a per capita payment out of the income received in that year.

A per capita payment is in the nature of a dividend on the profits of the corporate enterprises conducted by the tribe.² As a general rule, the directors of a corporation have discretion to determine at what time a dividend shall be paid from the corporate profits.³

An incorporated Indian tribe, such as the Southern Ute Tribe, differs from other corporations, to be sure, in that the distribution of profits which it may make is subject to certain limitations, but these limitations are not of such a character that a distribution before the end of a fiscal year is ruled out. As it may be apparent long before the end of a fiscal year that there will be profits accruing from a tribe's corporate enterprises over and above all liabilities and obligations of the tribe, there is no good reason for denying to the governing body of the tribe the authority to make a distribution whenever the existence of profits for the fiscal year has become obvious.

    ¹ See page 31 of the Explanatory Memorandum on Indian Tribal Charters, approved by the Secretary of the Interior on May 18, 1936, where a virtually identical provision of a proposed charter for the Fort Belknap Indian Community of Montana is construed in the same manner.
    ² Indeed, it is so denominated in the Explanatory Memorandum cited in the previous footnote. "Each corporate charter," it is stated in the memorandum, "should contain a provision specifying that dividends shall be paid only out of profits or net income."
    ³ See 18 C.J.S., pp. 1108-09, and authorities there cited.

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OPINIONS OF THE SOLICITOR

NOVEMBER 21, 1952

I am of the opinion, therefore, that the governing body of the Southern Ute tribe need not wait until the end of a fiscal year before deciding to make a per capita payment out of profits for that year.

Your final question is whether royalties received by the Southern Ute Tribe from its oil and gas leases constitute "profits of corporate enterprises or income" within the meaning of section 8 of the corporate charter of the tribe, so as to be distributable on a per capita basis under that section.

For the purposes of the Federal income tax laws, royalties paid under mining leases, including oil and gas leases, have been regarded as "income" rather than as "capital gains," although reasonable allowances for depletion have been made under such laws.⁴

While, conceivably, the terms "profits" and "income" might have been used in section 8 of the corporate charter of the Southern Ute Tribe in a different sense than in the tax laws, there is no evidence of any intention to depart from common usage. Indeed, it would be unreasonable to suppose that royalties paid under oil and gas leases were not to be treated as profits or income, since the management or disposition of natural resources is usually involved in the organization of corporate enterprises by Indian tribes. If the income under mining leases were to be excluded from distribution under the terms of corporate charters granted to Indian tribes, the making of per capita payments in any considerable amounts would hardly be possible. Moreover, under a statute requiring the distribution of "income" to members of the Osage Tribe, the royalties and bonuses paid under oil and gas leases made by the tribe have been regarded as income.⁵

I am of the opinion, therefore, that royalties paid under oil and gas leases made by the Southern Ute Tribe are to be regarded as profits or income from the tribe's corporate enterprises, and are distributable among its members in accordance with section 8 of the tribe's corporate charter.

PROPOSED AMENDMENTS TO THE CHARTER,
CONSTITUTION AND BY-LAWS--CADDO
INDIAN TRIBE

Section 3 of the Oklahoma Indian Welfare Act incorporates by reference the provisions of the Indian Reorganization Act prescribing what powers can be conferred upon an organized Indian tribe.

The provision in section 16 of the Indian Reorganization Act respecting the exercise by the Secretary of the Interior of the authority to approve for organized Indian tribes "the choice of counsel and fixing of fees" is mandatory; and it would not be permissible to insert an inconsistent provision in the charter of an Indian tribe organized under the Indian Reorganization Act or the Oklahoma Indian Welfare Act.

There is no requirement in the Oklahoma Indian Welfare Act that any prescribed percentage of the eligible voters in an Indian tribe must participate in an election to adopt a constitution and bylaws, or to adopt amendments to a constitution or bylaws.

As the Secretary of the Interior has not issued any rules or regulations concerning the amendment of constitutions and bylaws adopted by Indian tribes pursuant to the Oklahoma Indian Welfare Act, it is proper to look to the constitution of the Caddo Indian Tribe to determine what procedures must be followed in the adoption of amendments to the constitution and bylaws of that tribe.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Proposed amendments to the charter and to the constitution and bylaws of
                 the Caddo Indian Tribe

I am returning to you the draft of a proposed letter addressed to the Superintendent of the Southern Plains Agency, in which an election would be called to enable the voters of the Caddo Indian Tribe of Oklahoma to vote on proposed amendments to the charter and to the constitution and bylaws of the tribe.

⁴ See Burnett v. Hormel, 287 U.S. 103 (1932); Herring v. Commissioner, 293 U.S. 322 (1934); Marie-Smith v. Commissioner, 42 F. (2~1) 837, 841 (C.C.A. 2d. 1930); Emerald Oil Co. v. Commissioner, 72 F. (2d) 681, 684 (C.C.A. 5th. 1934); Perkins v. Thomas, 86 F. (2d) 954. 955 (C.C.A. 5th. 1936).
⁵ See Work v. Mosier, 261 U.S. 352 (1923).

1594

DEPARTMENT OF THE INTERIOR

NOVEMBER 21, 1952

Paragraph (e) of section 4 of the charter of the Caddo Indian tribe now provides that:

The Caddo Indian Tribe was granted a charter of incorporation pursuant to the provisions of the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967). Section 3 of the act provides in part as follows:

There is no specific mention in the Oklahoma Indian Welfare Act of the power to enter into contracts with attorneys. The powers which may be granted to an Indian Tribe under the Indian Reorganization Act of June 18, 1934 have been incorporated by reference, however, into the Oklahoma Indian Welfare Act. The property of the proposed amendment to the charter of the Caddo Indian Tribe which would relax the requirement for departmental approval of the choice of counsel and fixing of fees must depend, therefore, upon the construction put upon the provisions of the Indian Reorganization Act concerning the employment of attorneys.

Section 16 of the Indian Reorganization Act (25 U.S.C., 1946 ed., sec. 476) provides, among other things, as follows:

Paragraph (c) of section 4 of the charter of the Caddo Indian Tribe is based upon this provision of the Indian Reorganization Act. Having determined to grant the Caddo Indians this statutory power, the Secretary of the Interior cannot expand or restrict it. The provision in section 16 of the Indian Reorganization Act respecting the exercise by the Secretary of the Interior of the authority to approve "the choice of counsel and fixing of fees" is mandatory. Section 16 states plainly that every constitution granted to an Indian tribe shall vest in the tribe the powers specified in the section--including, of course, the power to employ legal counsel subject to the Secretary's approval respecting the choice of counsel and the fixing of fees--and this has been construed as mandatory from the very beginning.² It would not be permissible to avoid this plain statutory directive by inserting an inconsistent provision in the charter of an organized Indian tribe.

It is my opinion, therefore, that it would be contrary to the statutory requirement discussed above--which has been incorporated by reference in the Oklahoma Indian Welfare Act--for the Secretary of the Interior to approve an amendment to the charter of the Caddo Indian Tribe which would authorize the employment of attorneys for any purpose without departmental approval of the choice of attorneys and fixing of fees.

¹ Authority to approve contracts between attorney and Indian tribes was delegated to the Commissioner of Indian Affairs by Secretarial Order No. 2508. dated January 11, 1949 (14 F.R. 258. 260).
² See "Explanatory Memorandum on Drafting of Tribal Constitutions," issued by the department, pp. 1 and 12: "There are, of course, several standard provisions which should be included in every constitution, in accordance with the terms of the Indian Reorganization Act, such as provisions on the manner of adoption and ratification, the manner of amendment, and those tribal powers which are enumerated in section 16 of the Indian Reorganization Act * * *." After mentioning as the first power the power to negotiate with Government agencies, the memorandum proceeds to state: "A second power which, by the terms of the Indian Reorganization Act, is to be included in every constitution is the power 'to employ legal counsel, the choice of counsel and the fixing of fees to be subject to the approval of the Secretary of the Interior.' "

1595

OPINIONS OF THE SOLICITOR

NOVEMBER 28, 1952

It appears that the suggested certifications of the proposed amendments to the constitution and bylaws of the Caddo Indian Tribe are not in proper form. They are apparently based on the assumption that at least 30 percent of those entitled to vote must vote in the election. The provision in section 3 of the Oklahoma Indian Welfare Act requiring a total vote of a least 30 percent of those entitled to vote applies, however, only to the initial ratification of a charter.

So far as the adoption of a constitution and by laws is concerned, section 3 provides as follows:

No rules or regulations concerning the amendment of constitutions and bylaws adopted pursuant to the Oklahoma Indian Welfare Act have been issued by the Secretary. In order to determine what procedure must be followed in adopting amendments to the constitution and bylaws of the Caddo Indian Tribe, reference must be made, therefore, to the constitution itself.

Article XI of the constitution of the Caddo Indian Tribe provides that amendments to the constitution and bylaws may be proposed by either of two methods, and

Under this provision, an amendment to the constitution or to the bylaws would be validly adopted if a majority of those voting in the election voted in favor of its adoption, and the number of voters participating in the election would be immaterial.

It is suggested that the following form be employed in certifying the proposed amendments:

"Pursuant to an order approved on _______ by the _______ Secretary of the Interior, the attached amendments II and III to the constitution and bylaws of the Caddo Indian Tribe of Oklahoma were submitted for ratification to the adult members of the Caddo Indian Tribe of Oklahoma, and on _______ were duly adopted by a vote of _______ for and _______ against in the case of amendment II and by a vote of _______ for and _______ against in the case of amendment III, all in accordance with Article XI of the constitution of the Caddo Indian Tribe of Oklahoma."

Where a patent in fee is issued on Indian lands traversed by a logging railroad right-of-way granted to a lumber company by revocable permit, it is not necessary to insert in the patents a notation respecting the right-of-way in order to preserve the right granted in the permit.

The Secretary of the Interior is authorized to insert in a patent in fee for Indian lands a notation of the fact that the title conveyed is subject to a valid existing right-of-way.

Memorandum
To:            Assistant Secretary Wolfsohn
From:        The Solicitor
Subject:     Notations in patents in fee for Indian lands of existing rights-of-way

In a memorandum dated October 22, 1952, you requested my advice concerning the propriety of giving your approval to the recommendation of the Commissioner of Indian Affairs that the following provision be inserted in patents in fee hereafter issued on allotted Indian lands which are traversed by a logging railroad right-of-way granted by revocable permit to the C. D. Johnson Lumber Corporation:

This response will consider whether the insertion of such a provision in the patents is (1) necessary in order to preserve the right granted in the permit, and (2) authorized.

1596

DEPARTMENT OF THE INTERIOR

NOVEMBER 28, 1952

The case of Swendig et al. v. Washington Water Power Company, 265 U.S. 322 (1924), and a regulation of the Department (43 CFR 244.17 (b) ) support the proposition that in public land cases, at least, no mention of prior revocable rights-of-way is needed in patents for the lands affected by the rights-of-way.

In the Swendig case, the revocable permit for a right-of-way had been granted by the Secretary of the Interior under a statute which declared that the permission might be revoked by the Secretary who gave it or by his successor, and that the permission granted should not be held to confer any right, or easement, or interest in, to, or over the land involved. Patents subsequently issued for lands traversed by the right-of-way contained no notation thereon of the existence of the permit, but a regulation of the Department provided, in effect, that the issuance of such a patent should not be construed to be a revocation of the permit in whole or in part, and that the patentee took the title subject to the right-of-way, which would continue in force until specifically revoked as provided in the governing statute. In holding that the patentee took the title subject to the right-of-way, the Court said, inter alia:

The permit to the C. D. Johnson Lumber Corporation was issued on July 25, 1941, pursuant to the provisions of 25 CFR 256.66, as then in effect. The right-of-way covered a number of Indian allotments located on the Siletz Indian Reservation in Oregon. Although neither the regulations in force when the permit was issued nor those presently in force (25 CFR, 195 1 Cum. Pocket Supp., Part 256) contain any provision concerning the effect on the right-of-way of a patent subsequently issued to an Indian allottee whose lands are traversed by the right-of-way, the permit itself is enlightening in this respect.

The permit provides that it is revocable in the discretion of the Secretary of the Interior, but this is qualified by the further provision that the permit shall not be revoked "except for due cause and/or failure of the company to comply fully with the stipulations as set forth herein." As this provision plainly contemplates that the permit will continue in full force and effect until it is actually terminated by the Secretary, the mere issuance of a patent conveying the land to which the permit is subject clearly would not revoke the permit.

Under this view, a recitation or notation in the patent of the existence of the permit would not appear to be necessary, as a matter of law, in order to preserve the right granted in the permit. However, such a recitation or notice in the patent would appear to be desirable from the viewpoint of the permittee, inasmuch as it would serve to bring to the attention of those who deal with the land the fact that the title conveyed by the patent is subject to a valid existing right.

In determining whether the insertion in patents of the provision under consideration would be authorized, the case of Burke v. Southern Pacific Railroad Co., 234 U.S. 669 (1914), requires attention. The Burke case announces the principle that officers of the Department are not authorized to insert in patents reservations or exceptions not contemplated by law.

This principle is clearly without application here. The provision now under consideration does not of its own force purport to except or reserve anything from the grant. It consists merely of a recitation or notation, the only purpose of which is, as indicated above, to call attention to the fact that the title conveyed is subject to a valid existing right.

I am unaware, therefore, of any reason for doubting the authority of the Department to include in patents the provision previously mentioned.

Perhaps it should be mentioned, in connection with this problem, that prior to 1912 a regulation of the Department relating to the public lands provided that the issuance of a patent in fee for a tract of land covered by a revocable right-of-way permit operated to revoke the permit. That regulation, which resulted in the piece-meal revocation of rights-of-way and thus discouraged the development of enterprises requiring expensive and permanent construction, another regulation was superseded in 1912 by which is in effect today (43 CFR 244.17) and which provides, in substance, that such a right-of-way permit shall continue in full force and effect until it is specifically canceled,

1597

OPINIONS OF THE SOLICITOR

DECEMBER 12, 1952

despite the issuance of a patent in fee for any tract of land traversed by the right-of-way. The reasons which induced the Department to adopt such a regulation with respect to public lands would appear to be equally applicable to logging railroad permits for rights-of-way over Indian lands. Logging railroad permits are frequently granted respecting Indian lands to enable private entrepreneurs to remove timber from large tracts of Indian or public lands pursuant to long-term contracts. The existence of adequate means of transport is vital to the fulfillment of the timber contracts, and any interference with the continued operation of the roads, such as would result from the piece-meal revocation of permits as and when patents in fee are issued, might well be detrimental to the interests of the Indians, of the Government, and of the private operators.

HOMESTEADING ON LANDS WITHIN THE KLAMATH
LAKE RESERVATION AND IN THE TULE LAKE
WILD LIFE REFUGE

Authority of the Secretary--Modification of Executive Order Reservations--Permissive Statutes--Ceded Lands--First-Form Reclamation Withdrawals.

The Secretary of the Interior has the authority to open for homestead entry under the reclamation laws any or all of the lands in the Tule Lake Unit of the Tule Lake Wild Life Refuge, and any or all of the lands in the Klamath Straits Unit, the Sheepy Lake West Unit, and the Sheepy Lake East Unit of the Klamath Lake Reservation.

The Secretary of the Interior is not required by law to open for homestead entry under the provisions of the reclamation laws any of the lands in the Tule Lake Unit, the Klamath Straits Unit, the Sheepy Lake West Unit, or the Sheepy Lake East Unit.

The Secretary of the Interior has the power, as the President's delegate, to modify existing Executive orders respecting the Tule Lake Wild Life Refuge and the Klamath Lake Reservation by eliminating from the respective reservations any lands that he may decide to open for homestead entry under the reclamation laws.

Permissive statutory provisions indicating that the Secretary of the Interior "may" or "is authorized" to dispose of lands under the provisions of the reclamation laws should not be construed administratively as imposing a mandatory duty to effect such disposition.

A statutory provision stating that certain ceded lands shall be subject to the provisions of the reclamation laws concerning entry and patent merely places such lands in the category of lands that are subject to entry and patent under the provisions of the reclamation laws unless with drawn or reserved for a public purpose, and is not a statutory command that an existing reservation of such lands for a public purpose shall be canceled and the lands disposed of in the manner indicated.

The cancellation of a first-form reclamation withdrawal respecting an area does not cancel other existing withdrawals or reservations of the same area for different purposes so as necessarily to make the area available for entry.

Memorandum
To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Homesteading on lands within the Klamath Lake Reservation
                 and in the Tule Lake Wild Life Refuge.

This responds to the request dated November 21, 1952, as subsequently modified by you orally, for an expression of my opinion concerning the homesteading under the reclamation laws of 9,900 acres of land in the Tule Lake Unit, 5,900 acres of land in the Klamath Straits Unit, 3,660 acres of land in the Sheepy Lake West Unit, and 1,440 acres of land in the Sheepy Lake East Unit.

The Tule Lake Unit is situated within the boundaries of the Tule Lake Wild Life Refuge, and the other three units are situated within the boundaries of the Klamath Lake Reservation for the protection of native birds. The Klamath Straits Unit is in Oregon, and the other units are in California.

Information available to me indicates that the lands in the Tule Lake Unit were ceded to the United States by the State of California in the act of February 3, 1905 (California Statutes, 1905, p. 4); that the lands in the Klamath Straits Unit were ceded to the United States by the State of Oregon in the act of January 20, 1905 (General Laws of Oregon, 1905, p. 63); that the lands in the Sheepy Lake West Unit are public lands of the United States: and that the lands in the Sheepy Lake East

1598

DEPARTMENT OF THE INTERIOR

DECEMBER 12, 1952

Unit are in part public lands of the United States and in part lands ceded to the United States by the State of California in the act of February 9, 1905.¹

The California act of cession mentioned above provided in pertinent part as follows:

The Oregon act of cession used language virtually identical with that in the California act of cession quoted above.

In order to implement the California and Oregon statutes referred to above, Congress enacted the act of February 9, 1905 (33 Stat. 714), which provided in pertinent part as follows:

Thereafter, President Theodore Roosevelt issued Executive Order 924 of August 8, 1908, establishing the Klamath Lake Reservation as "a preserve and breeding ground for native birds." This reservation, as subsequently reduced in size by Executive Orders 2200 (May 14, 1915) and 3422 (March 28, 1921), includes, inter alia, the ceded lands in the Klamath Straits Unit, the public lands in the Sheepy Lake West Unit, and the lands, whether ceded or public, in the Sheepy Lake East Unit. Executive Order 924, as modified by Executive Order 2200, declares that:

The Tule Lake Wild Life Refuge--the boundaries of which include, inter alia, the ceded lands in the Tule Lake Unit--was originally established by Executive Order 4975 (October 4, 1928). That order was subsequently superseded by Executive Order 5945 (November 3, 1932), and the refuge was thereafter enlarged by Executive Order 7341 (April 10, 1936). Executive Order 5945 declares that it is unlawful, among other things,

It is expressly stated in both Executive Order 5945 and Executive Order 7341 that the reservation of the lands as a wildlife refuge is subject to the use

    1 No precise determinations on these points have been made since the answers to the legal questions involved in this submission do not, in my opinion, differ with respect to the different types of land.
    2 This function was originally vested in the Secretary of Agriculture, but it was transferred to the Secretary of the Interior by paragraph (F) of section 4 of Reorganization Plan No. II (4 F.R. 2731).
    3 See fn. 2, supra.

1599

OPINIONS OF THE SOLICITOR

DECEMBER 12, 1952

An agreement between the Bureau of Reclamation and the Fish and Wildlife Service, approved by the First Assistant Secretary of the Interior on January 8, 1942, provides for the administration of the lands within the Tule Lake Wild Life Refuge and the Klamath Lake Reservation.

With regard to the lands within the Tule Lake Wild Life Refuge, the agreement of January 8, 1942, provides that the Fish and Wildlife Service

(except that the transfer to the Fish and Wildlife Service of a certain specified portion of the Tule Lake Restricted Sump is to be deferred until the Secretary of the Interior determines that such portion "is needed for sump purposes or has become unsuitable for agricultural purposes"). The lands of the Tule Lake Wild Life Refuge not placed by the agreement under the jurisdiction, administration, and control of the Fish and Wildlife Service are to "continue under the immediate jurisdiction, administration, and control" of the Bureau of Reclamation. The agreement provides, however, that "all leases of such lands entered into by the Bureau shall contain provisions prohibiting the lessee, except with the approval of the Bureau, from burning stubble fields, and making hunting and shooting thereon subject to regulation by the Service * * *."

The lands of the Tule Lake Unit are outside the "Tule Lake Restricted Sump, the Service areas, and the buffer areas," as defined in the agreement of January 8, 1942.

In so far as the Klamath Lake Reservation is concerned, the agreement of January 8, 1942 provides that the Fish and Wildlife Service shall have "the immediate jurisdiction over and administration and control of all the lands" comprising the area defined in the agreement as the "Service's Lower Klamath area." This area is wholly within the California portion of the Klamath Lake Reservation. The agreement states that the other lands within the California portion of the Klamath Lake Reservation shall "continue under the immediate jurisdiction, administration, and control" of the Bureau of Reclamation; but that all leases entered into by the Bureau respecting such lands shall contain provisions prohibiting the lessees, except with the approval of the Bureau, from burning stubble fields, and making hunting and shooting thereon subject to regulation by the Service * * *."

The lands of the Sheepy Lake East Unit and of the Sheepy Lake West Unit are located in California and are outside the area defined in the agreement of January 8, 1942 as the "Service's Lower Klamath area". The lands of the Klamath Straits Unit are situated in Oregon and, consequently, are not expressly affected by the provisions of the agreement. It is understood, however, that the Bureau of Reclamation has actually been administering the lands of the Klamath Straits Unit.

The agreement of January 8, 1942 was subsequently given statutory recognition by subsection (b) of section 2 of the act of January 17, 1944 (58 Stat. 279; 43 U.S.C., 1946 ed., sec. 612). Subsection (b) provides in part that:

The ceded lands comprising the Klamath Straits Unit and partially comprising the Sheepy Lake East Unit are situated west of the respective Oregon and California lines mentioned in the statutory provision quoted above. The ceded lands of the Tule Lake Unit are situated east of the California line prescribed in the quoted provision.

One question that has been propounded to me is whether the lands in the four units previously mentioned may be opened to entry for homesteading under the reclamation laws.

It seems clear to me that an affirmative answer should be given to this question.

With regard to the ceded lands that are involved in this problem, the opening of such lands to entry for homesteading under the reclamation laws would be within the scope of the authorizations contained in the respective California and Oregon acts of cession and in the implementing Federal act of February 9, 1905. The State statutes plainly authorize the United States to dispose of the ceded lands under the reclamation laws in any manner.

1600

DEPARTMENT OF THE INTERIOR

DECEMBER 12, 1952

that may be deemed advisable by the appropriate agencies of the United States; and the Federal statute vests this power of disposition in the Secretary of the Interior.

Moreover, in so far as ceded lands in the Klamath Straits Unit and in the Sheepy Lake East Unit are concerned, the authority of the Secretary of the Interior to make such lands available for homestead entry under the reclamation laws was reaffirmed by subsection (b) of section 2 of the act of January 17, 1944. It will be recalled that subsection (b) expressly makes ceded lands lying west of certain lines in Oregon and California subject to the provisions of the reclamation laws concerning entry and patent, with the exception of "any part of these lands administered by the Fish and Wildlife Service pursuant to the existing agreement with the Bureau of Reclamation." In construing the meaning of the quoted exception, it is pertinent to note that the agreement between the Fish and Wildlife Service and the Bureau of Reclamation states that the Fish and Wildlife Service shall have the immediate jurisdiction over, and administration and control of, certain specified areas in the Tule Lake Wild Life Refuge and a certain specified area in the Klamath Lake Reservation; and that other lands within the two reservations shall continue under the immediate jurisdiction, administration, and control of the Bureau of Reclamation. It seems obvious that the phrase, "any part of these lands administered by the Fish and Wildlife Service pursuant to the existing agreement with the Bureau of Reclamation", in the 1944 act is intended to refer to those areas, and only to those areas, which are placed by the agreement of January 8, 1942 under the jurisdiction, administration, and control of the Fish and Wildlife Service. As previously indicated, these are "the Tule Lake Restricted Sump, the Service areas, and the buffer areas" in the Tule Lake Wild Life Refuge, and "the Service's Lower Klamath area" in the Klamath Lake Reservation. None of these areas includes any of the lands involved in the present discussion. Accordingly, the exception stated in subsection (b) of section 2 of the 1944 act must be regarded as inapplicable to any of the lands with which we are concerned at the present time.

Of course, the opening to homestead entry of the ceded or public lands in the four units previously mentioned would be incompatible with their continued inclusion in the respective wild life reservations pursuant to existing Executive orders. The opening of the lands to homestead entry would look forward to the ultimate patenting of the lands, and there is no authority in the Secretary of the Interior to include privately owned lands as parts of wildlife refuges. However, the Secretary of the Interior clearly has the authority to modify the existing Executive orders respecting the Tule Lake Wild Life Refuge and the Klamath Lake Reservation by eliminating from the respective reservations any of these lands, ceded or public, that he may decide to make available for homestead entry under the reclamation laws. The Secretary's authority in this regard is found in paragraph (a) of section 1 of the Executive Order 10355 (17 F.R. 4831), in which the President expressly confers upon the Secretary "the authority to modify or revoke withdrawals and reservations" heretofore made of public lands or other lands owned or controlled by the United States.

The discussion in the preceding paragraph of the Secretary's power to modify the existing Executive orders respecting the Tule Lake Wild Life Refuge and the Klamath Lake Reservation so as to make reservation lands available for homesteading under the reclamation laws disposes of the only legal question that requires consideration in connection with the Secretary's authority to open the public lands comprising the Sheepy Lake West Unit and partially comprising the Sheepy Lake East Unit to entry for homesteading under the reclamation laws.

It is my opinion, therefore, that the Secretary of the Interior has the legal authority to make any or all of the lands in the Tule Lake Unit, in the Klamath Straits Unit, in the Sheepy Lake West Unit, and in the Sheepy Lake East Unit available for homestead entry under the reclamation laws.

The next question which requires attention is whether the Secretary of the Interior is required by law to open any of the lands within the four units previously mentioned to homestead entry under the reclamation laws.

It is clear at the outset of this part of the discussion that the Secretary is not under any such mandatory legal duty with regard to the public lands comprising the Sheepy Lake West Unit and partially comprising the Sheepy Lake East Unit. The President has discretionary authority under the Constitution (see United States v. Midwest Oil Company, 236 U.S. 459 (1915), and under section 1 of the act of June 25, 1910 (43 U.S.C., 1946 ed., sec. 141) to withdraw and reserve public lands for uses deemed by the executive to be in the public interest. The withdrawal and reservation of public lands for use as a wildlife refuge certainly falls within the constitutional and statutory power of the executive in this regard. The President has delegated to the Secretary of the Interior, in paragraph (a) of section 1 of Executive Order 10355, the executive power "to withdraw or reserve lands