Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1601-1625

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OPINIONS OF THE SOLICITOR

DECEMBER 12, 1952

of the public domain * * * for public purposes, including the authority to modify or revoke withdrawals or reservations of such lands heretofore * * * made." This delegation of authority clearly vests in the Secretary of the Interior the discretionary power to decide whether reservations of public lands heretofore made by the President for public purposes, including wildlife refuge purposes, shall be continued or rescinded.

Turning now to a consideration of the ceded lands comprising the Tule Lake Unit and the Klamath Straits Unit, and partially comprising the Sheepy Lake East Unit, it seems to be plain that the respective cession laws of California and Oregon, and the implementing Federal statute of February 9, 1905, do not impose upon the Secretary of the Interior any mandatory duty to open the ceded lands to homestead entry under the reclamation laws. The cession laws use the permissive "may" in authorizing the disposition of ceded lands under the provisions of the reclamation laws; and the Federal act of February 9, 1905 also uses the permissive "is authorized" in indicating that the Secretary may dispose of ceded lands under the provisions of the reclamation laws. As these statutory provisions, which have been enacted for the purpose of furnishing guides for administrative action, use language that is plainly permissive in character, this Department would not be justified in modifying them, through the process of interpretation or construction, by substituting mandatory terminology for that actually used by the respective legislatures.

This brings us to a consideration of the Federal statute of June 17, 1944, which (in so far as it is pertinent to the point now under consideration) declares, in effect, that the ceded lands comprising the Klamath Straits Unit and partially comprising the Sheepy Lake East Unit "shall be subject to all applicable provisions of the Federal reclamation laws concerning entry and patent." The problem is whether the Congress, in using the quoted phrase, intended to command the Secretary of the Interior to dispose of such lands under the provisions of the reclamation laws concerning entry and patent.

The 1944 act was enacted pursuant to a recommendation from the Department of the Interior. The Department's recommendation was accompanied by a draft of a proposed bill, which contained the provision mentioned in the preceding paragraph. The Department's explanation of the proposed bill⁴ merely stated, with respect to this provision, that "* * * it would be desirable to provide expressly that certain government-owned lands in the Lower Klamath Lake area shall be subject to entry and patent under the general provisions of the Federal Reclamation Laws."

It would be unreasonable to suppose that the Secretary of the Interior was asking the Congress to compel him to dispose of these lands under the provisions of the reclamation laws as to entry and patent. Consequently, it seems reasonable to conclude that the phrase, "shall be subject to all applicable provisions of the Federal reclamation laws concerning entry and patent", as proposed by the Department and as enacted by the Congress, was merely intended to place these ceded lands in the category of lands that are subject to entry and patent under the provisions of the reclamation laws. Such legislative action was apparently thought to be necessary because of the circumstance that, generally speaking, only public lands are subject and patent under the reclamation laws,⁵ and lands ceded by Oregon and California to the United States under the 1905 cession laws would not be subject to such disposition in the absence of enabling legislation passed by the Congress. (The Department, when it made this proposal in 1943, apparently overlooked the fact that the Congress had already, in the act of February 9, 1905, authorized the Secretary to dispose of these ceded lands "under the terms and conditions of the national reclamation act".)

Accordingly, I construe the phrase, "shall be subject to all applicable provisions of the Federal reclamation laws concerning entry and patent", in the 1944 act as meaning merely that the ceded lands to which it is applicable are within the category of lands which the Secretary of the Interior may make available for disposition under the provisions of the reclamation laws concerning entry and patent, if he deems it advisable to do so from the policy standpoint.

If the Congress had intended, in the 1944 act, to require the Secretary of the Interior to dispose of ceded lands under the provisions of the reclamation laws, it would undoubtedly have employed language similar to that which was used in the act of May 27, 1920 (41 Stat. 627). That statute, among other things, stated in section 7 that:

"the Secretary of the Interior shall determine which of the lands now within the boundaries of the Klamath Lake Bird Reserve are chiefly valuable for agricultural purposes and which for the purpose of said reservation, and shall open to homestead entry those lands which are chiefly valuable for agricultural purposes * * *." (Emphasis supplied.)

⁴ See the letter dated October 4, 1943 from the Secretary of the Interior to the Speaker of the House of Representatives, which is contained in the Department's legislative file on H.R. 3476, 78th Congress.
⁵ See, e.g.. 43 U.S.C., 1946 ed., secs. 161, 416, 433.

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DEPARTMENT OF THE INTERIOR

DECEMBER 12, 1952

This mandatory instruction from the Congress was apparently ignored by successive Secretaries of the Interior, and it was finally repealed by subsection (a) of section 2 of the act of June 17, 1944. How ever, there is a distinct difference between Congress' plain command in the 1920 act that "the Secretary of the Interior * * * shall open to homestead entry those lands which are chiefly valuable for agricultural purposes", and the declaration in the 1944 act that certain of the ceded lands "shall be subject to all applicable provisions of the Federal reclamation laws concerning entry and patent".

Perhaps it should be mentioned that the current contract ⁶ of April 28, 1943 between the United States and the Klamath Drainage District (the exterior boundaries of which include the Klamath Straits Unit) contains in paragraph 27 provisions indicating what shall be done when "public lands" within the boundaries of the district are opened to entry, and that the term "public lands" is specially defined in the contract to include lands ceded to the United States by Oregon in the act of January 20, 1905. The United States does not make any commitment in the contract, however, that the lands in the Klamath Straits Unit will actually be opened to entry. Consequently, the provisions in paragraph 27 to which reference is made must be regarded as having been inserted in the contract to provide for the contingency that the Secretary might, in his discretion, decide at some future time to open such lands to entry.

There is one further point which may merit attention. The file indicates that the lands previously discussed are, in addition to being reserved by Executive order for wildlife refuge purposes, also subject to first-form reclamation withdrawals made under section 3 of the Reclamation Act of June 17, 1902 (43 U.S.C., 1946 ed., sec. 416).⁷ That section, inter alia, authorizes the withdrawal from public entry of lands "required for any irrigation works", and then provides that the Secretary of the Interior "shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required" for the purpose mentioned. The directive to the effect that land "shall" be restored to public entry upon the cancellation of a first form reclamation withdrawal is merely part of the great mass of law (statutory and constitutional) relating to the administration and disposition of the Government's lands, and there is no indication that it is intended to be pre-eminent. Consequently, I do not believe that it would be reasonable to construe this directive in section 3 of the Reclamation Act as superseding the president's power (which he has delegated to the Secretary of the Interior in Executive Order 10355) under the Constitution that section 1 of the act of June 25, 1910 to withdraw or reserve lands for public purposes other than the construction of irrigation works. I construe this provision in section 3 of the Reclamation Act concerning the restoration of lands to public entry upon the cancellation of a first-form reclamation withdrawal as meaning that such lands shall be restored to entry unless they are validly withdrawn or reserved for some other public purpose under another provision of law or under the Constitution. Hence, the existence of the first-form reclamation withdrawals respecting the lands under consideration here does not, in my judgment, legally compel the Secretary to open such lands to entry if he should determine that they are not required for irrigation works. In other words, the cancellation of the first-form reclamation withdrawals would still leave these lands subject to the provisions of the outstanding Executive orders reserving them for wildlife refuge purposes.

For the reasons indicated above, it is my opinion that the Secretary of the Interior is not required by law to open any of the lands within the four units previously mentioned to homesteading under the provisions of the reclamation laws.

In view of your oral request that my opinion on the main questions discussed above be expedited as much as possible, consideration of other subsidiary questions will be deferred pending a determination on the policy question whether it would be in the public interest to open some or all of these lands to entry for homesteading under the reclamation laws.

ARREST BY SHERIFF OF NAVAJO FUGITIVE
FROM JUSTICE ON NAVAJO RESERVATION FOR
EXTRADITION TO COLORADO

On December 11 Mr. J. M. Hannon of the Criminal Division of your Department telephoned the

⁶ This contract superseded earlier contracts, and was approved by Congress in section I of the act of June 17, 1944.
⁷ The effectiveness of the first-form reclamation withdrawals of the ceded lands is beyond the scope of this memorandum.

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OPINIONS OF THE SOLICITOR

JANUARY 6, 1953

Office of the Chief Counsel of the Bureau of Indian Affairs regarding the arrest of Mr. Leo Harding, a Navajo Indian. It appears that Mr. Harding, who is charged with the crime of forgery by the State of Colorado, was arrested by the sheriff of Apache County, Arizona, on the Navajo Indian Reservation, Arizona, apparently in pursuance of extradition proceedings commenced by the State of Colorado. Information in this Department indicates that the sheriff delivered Mr. Harding to Colorado authorities, and that he is now incarcerated in a jail at Glenwood Springs, Colorado.

Mr. Hannon requested information concerning this arrest in connection with a telegram which he stated that he had received from the United States Attorney, who asked, first, whether it was illegal for the sheriff to enter the Navajo Reservation to make his arrest, and, second, if the arrest was illegal, whether the sheriff had committed a crime.

With respect to the first question, the Solicitor of this Department has expressed the opinion that "without specific authority State officers have no power to enter restricted Indian lands for the enforcement of State laws against Indians * * *." 56 I.D. 38, 39 (1936). In the Harding case, the Arizona sheriff did not request or obtain proper permission to apprehend the fugitive. Moreover, we are aware of no Federal law or Navajo tribal ordinance authorizing the apprehension by a State officer of an Indian fugitive where the latter is charged with the commission of a criminal violation of State law off the Navajo Reservation. Accordingly, this Department takes the view that the arrest of Mr. Harding was illegal.

With respect to the second question, the Arizona sheriff does not appear to have violated any Federal criminal statute peculiar to the administration of Indian affairs.

Nevertheless, in view of the unauthorized character of the arrest, it is recommended that the United States Attorney be directed, pursuant to 25 U.S.C., 1946 ed., sec. 175, to represent Mr. Harding for the purpose of challenging the legality of his detention by the Colorado court.

For your further information, there is attached a copy of a letter dated December 1, 1952, from the Acting Area Director of the Window Rock Area Office of the Bureau of Indian Affairs to the United States Attorney at Denver, Colorado, respecting this case.

Memorandum
To:            The Secretary
From:        The Solicitor
Subject:     Proposed legislation respecting leasing of oil and gas in Alaskan school lands

The attached letter dated December 23, 1952, to you from R. E. Havenstrite requests your assistance in expediting the passage of legislation proposed by Mr. Havenstrite, which would authorize the Secretary of the Interior to issue oil and gas leases on Alaskan school sections under the provisions of the Mineral Leasing Act, as amended (30 U.S.C., 1946 ed., sec. 181 et seq.). Mr. Havenstrite states that he will get in touch with you immediately about this matter on his arrival in Washington on January 8.

The following background may be useful to you in discussing the matter with Mr. Havenstrite, if you should grant him an interview:

On July 22, 1952, in Solicitor's opinion M-36143, I expressed the view that neither the Territory of Alaska nor this Department is empowered by any existing legislation to dispose of the oil and gas deposits that may be contained in Alaskan school sections. On August 1, 1952, you asked this office, in collaboration with the interested bureaus, to consider the desirability of seeking legislation that would remedy this deficiency and, if it were concluded that such legislation should be sponsored by the Department, to prepare a proposed bill for submission to the Congress.

In response to your memorandum, the views of the Bureau of Land Management and of the Office of Territories were obtained. The Bureau recommended that the Territory, rather than the Department, be authorized to dispose of all minerals, timber, and other resources in the school sections. The Office of Territories recommended that the Secretary of the Interior be authorized to dispose of the oil and gas in school sections under such regulations as he might prescribe. Upon the basis of these recommendations and for the reasons later set forth, a bill was drafted in this office which would follow, in substance, the recommendation of the Bureau of Land Management. This bill, together with an accompanying report, has not yet cleared this office.

At the present time, there is divided authority over the school section lands. The Territory of Alaska has authority under section 1 of the act of March 4, 1915 (48 U.S.C., 1946 ed., sec. 353), to

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DEPARTMENT OF THE INTERIOR

JANUARY 6, 1953

lease school sections for not longer than 10 years at any one time. This authority presumably extends entirely or principally to surface uses of the land. On the other hand, timber and other "materials" in the school sections (excluding, of course, oil and gas) are subject to disposal by the Secretary of the Interior under the Materials Act of July 31, 1947, as amended (43 U.S.C., 1946 ed., Supp. V, sea 1185-1188).

Mr. Havenstrite's bill would add a third authority, covering oil and gas alone, which would be vested in the Secretary of the Interior and would provide for leasing under the Mineral Leasing Act. This, in effect, would restore the situation which obtained with respect to oil and gas leasing prior to the act of March 5, 1952 (Public Law 270, 82d Cong.), which eliminated the authority previously vested in the Secretary to lease the school sections under the Mineral Leasing Act.

All proceeds from school sections under the Materials Act go into the Territorial treasury for school purposes. The same disposition was made of proceeds from mineral leases on school sections prior to the elimination of the authority to issue such leases by the act of March 5, 1952. In view of the fact that the Territory has the exclusive financial interest in the proceeds derived from the school sections, and will be vested with complete title to the school sections upon the admission of the Territory to statehood, it is the view of this office that the authority to dispose of oil and gas, as well as other resources, in the school sections should be vested in the Territory. This would permit a unified administration of the school sections by the governmental entity principally interested, and would avoid the necessity for having more than one statute applicable to the school sections.

Mr. Havenstrite urges the immediate enactment of legislation in order that further development under the Iniskin Bay unit agreement may commence not later than April 1 of this year. A memorandum attached to his letter indicates that this immediate development is believed to be necessary in order to extend the terms of 5-year unitized leases (not on school section lands) which will otherwise expire during 1954 and 1955. Although the exact status of these leases is not known, it would appear that, if no discovery of oil or gas were made prior to the expiration of their primary terms, they would be entitled to a 5-year extension under section 17 of the Mineral Leasing Act, as amended (30 U.S.C., 1946 ed., sec. 226).

Early development of oil and gas in Alaska would, of course, be desirable apart from any question of the extension of lease terms.

PROPOSED TRANSFER OF AUTHORITY FROM
SECRETARY TO STATE OF TEXAS--
ADMINISTRATION OF TIMBER RESOURCES

Indians--Interior Department Appropriation Act, 1953--Tribal Moneys--Authority of the Secretary of the Interior.

The funds derived from sales of timber on Indian reservation lands and deposited in the United States Treasury may not be expended or disbursed without Congressional appropriation or authorization.

Unless authorized by the Congress, the Secretary of the Interior may not grant to a State full power and authority to extend to an Indian reservation the policies and practices followed by the State with respect to the management, protection, and conservation of the timber lands of State forests.

Memorandum
To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Proposed agreement between the Secretary of the Interior and the State of Texas re
                 administration of timber resources of the Alabama and Coushatta Indians

By memorandum dated March 17, 1953, you referred to me a letter dated February 27, 1953, from Governor Shivers of Texas, wherein the Governor referred to negotiations between officials of the Texas Forest Service and representatives of the Bureau of Indian Affairs, whereby, among other things, it is proposed to authorize the State to assume responsibility for the management, protection, and conservation of the forest resources of the reservation of the Alabama and Coushatta Indian Tribes in Polk County, Texas.¹ A proposed "Declaration of Joint Policy," to be executed by the Governor of Texas and the Secretary of the Interior has been prepared and is now under consideration in the Bureau. This "Declaration of Joint Policy" is to be implemented by an agreement looking to the accomplishment of the purposes outlined above, and which would also be

¹ The Alabama and Coushatta Tribes have organized pursuant to the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 2.5 U.S.C., 1946 ed., sec. 461 et Seq.). A constitution and bylaws of these tribes was approved by the Assistant Secretary of the Interior on August 19, 1938, and the members of the tribes have ratified a corporate charter.

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OPINIONS OF THE SOLICITOR

APRIL 2, 1953

designed as a forerunner to the procurement of appropriate legislation authorizing a complete transfer to the State of Texas of the responsibility of the United States for the Alabama and Coushatta Tribes and their assets.²

The point raised by Governor Shivers in his letter of February 27, 1953, relates to control over the disposition of the proceeds arising from sales of timber on Indian lands which are to be deposited in the United States Treasury. He states:

Although the point raised by Governor Shivers appears to have been discussed between the representatives of the State of Texas and the Indian Service, no agreement with respect thereto appears to have been reached, and the "Declaration of Joint Policy," as now drafted, contains no verbiage such as that referred to by the Governor. However, as the "Declaration of Joint Policy" has not yet been executed, it is proper to consider whether the provision desired by Governor Shivers, which, as I understand it, would mandatorily require the Secretary of the Interior to disburse the funds derived from timber sales at the request of the tribe and after approval of the request by the State agent, may legally be inserted in the "Declaration of Joint Policy."

Tribal funds on deposit in the United States Treasury are available for expenditure or disbursement only pursuant to Congressional appropriation or authorization.³ The current Interior Department Appropriation Act for the fiscal year 1953 (Public Law 470, 82d Cong., 2d sess.) under the section entitled "Tribal Funds," appropriates a specific sum for various purposes in "addition to the tribal funds authorized to be expended by existing law." A proviso in this section (page 6) states:

The authority conferred by the above-quoted provision is contingent, in the first instance, upon the submission of a request by the governing body of the tribe that tribal funds be used for a particular purpose, upon which request the Secretary of the Interior would then determine within his discretion whether the advance should or should not be made. As the provision suggested by Governor Shivers would have the effect of divesting the Secretary of the Interior of the discretionary authority conferred upon him by the statute and attempts to vest that authority in an agency of the State, such a provision would appear to be clearly unauthorized. Moreover, any general commitment in a document of this kind with respect to the disposition of tribal funds on deposit in the United States Treasury would appear to be improper since the disposition of such funds is dependent upon the will of the Congress, and hence the commitment might well run counter to legislation enacted in the future by that body. This could be particularly true where, as here, the funds are derived from timber-sale contracts which normally extend over a period of several years.

The "Declaration of Joint Policy" contains certain provisions which, in my opinion, cannot be made effective as to that part of the Indian reservation which is under the jurisdiction of the United States without enabling legislation by the Congress.

Paragraph numbered "1", page 2, of the "Declaration of Joint Policy" declares that the State of Texas shall have full power and authority to extend to the Alabama and Coushatta Indian Reservation "those policies and practices followed by the State with respect to the management, protec-

² It appears that the reservation land of the Alabama and Coushatta Indians consists of both Federal and State grants. The Federal appropriation of funds for the purchase of lands is embodied in the act of May 29, 1928 (45 Stat. 883. 900), reading as follows: "Alabama and Coushatta Indians, Texas: For the purchase of land for, and industrial assistance to, the Alabama and Coushatta Indians in Polk County, Texas, including not less than $5,000 for the purchase of livestock and agricultural equipment for such Indians, fiscal years 1928 and 1929, $40.000, to be reimbursed to the United States under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That title to any land purchased shall be taken in the name of the United States in trust for such Indians." See also the act of February 15, 1929 (45 Stat. 1186), which authorized the acceptance of title to the purchased lands subject to mineral interests and to existing contracts for the sale of timber.
³ See 25 U.S.C., 1946 ed., secs. 123, 123a and 155.

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DEPARTMENT OF THE INTERIOR

APRIL 2, 1953

tion, and conservation of the timber lands of State Forests." I have been unable to find any act of Congress which, expressly or impliedly, authorizes the Secretary of the Interior to make such a broad grant of power to the State of Texas. On the contrary, the proposed grant of power clearly appears to be inconsistent with section 6 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 25 U.S.C., 1946 ed., sec. 466), which "directs" the Secretary of the Interior "to make rules and regulations for the operation and management of Indian forestry units on the principle of sustained-yield management." It also is inconsistent with section 5 (4) of the corporate charter of the Alabama and Coushatta Tribes, which requires that all timber sale contracts shall conform to "regulations of the Secretary of the Interior authorized by section 6 of the Act of June 18, 1934," and declares that conformity with such regulations shall be made a condition of any such timber contract, and that a violation of that condition shall render the contract revocable in the discretion of the Secretary of the Interior.

The foregoing comments are made without in any way questioning the wisdom of the transfer of jurisdiction to the State of Texas. It seems to me, however, that this objective may properly be accomplished only by the Congress, and I would suggest that the necessary legislation be drafted and submitted to that body as soon as possible. In addition to the transfer of jurisdiction to the State of Texas with respect to the conservation, development, improvement, and operation of Indian forestry units, the proposed legislation might well encompass provisions conferring civil and criminal jurisdiction on the State with respect to the lands now under Federal jurisdiction, and such other provisions as may be necessary to transfer the legal title now held by the United States to the tribes or to the State in trust for the tribes.

Memorandum
To:            The Administrative Assistant Secretary
From:        The Solicitor
Subject:     Estate of Edmund Kenworthy, deceased unallotted Osage Indian

You have requested my views concerning the advisability of reopening the matter of the estate of Edmund Kenworthy, deceased unallotted Osage Indian, who died testate on or about April 29, 1952.

On October 29, 1952, the Superintendent of the Osage Indian Agency, after notice and hearing,¹ disapproved a purported will of the decedent, dated December 18, 1951, as having been executed as a result of undue influence. The interested parties failed within the time allowed to appeal to the Commissioner of Indian Affairs from the decision of the Superintendent.²

Subsequent to the Superintendent's disapproval of the December 18, 1951, will, a hearing after notice was held concerning a purported will of the decedent dated October 30, 1951. The Superintendent on December 12, 1952, approved the will executed by the decedent on October 30, 1951. The interested parties again failed to take an appeal from the Superintendent's decision.

The will of October 30, 1951, was admitted to probate by the County Court of Osage County, Oklahoma, on January 9, 1953, without objection or contest, and no appeal has been taken from the court's action admitting the will to probate.

A review of the record of the hearings on the wills of December 18, 1951, and October 30, 1951, indicates that the departmental regulations ³ governing actions on wills of deceased Osage Indians were carefully observed. Furthermore, our review has failed to reveal any substantial error in the hearings and determinations. Inasmuch as none of the interested parties chose to appeal from the decisions of the Superintendent, or to contest the matter in the count, a reopening of the case for further hearings at this time does not appear to be warranted.

The Labelle theory of murder and conspiracy to which Special Agent Hart refers in his memorandum of April 2, 1953, appears to be based on pure suspicion rather than fact. In the absence of any evidence to support the theory, no basis for further investigation by this Department appears to exist.

ILLICIT COHABITATION OF INDIANS ON
NORTH DAKOTA RESERVATIONS--STATE
JURISDICTION

MR. JOHN H. HART, Executive Director
North Dakota Indian Affairs Commission
Rolla, North Dakota

This is in response to your telegrams of May 11, May 19, and May 25, 1953, in which you ask to be

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OPINIONS OF THE SOLICITOR

JUNE 18, 1953

advised "what branch of Federal government is responsible for enforcement of Federal laws" concerning illegal cohabitation among Indians on Indian reservations in North Dakota.

In what appears to be the first report of the North Dakota Indian Affairs Commission, though it is undated, the question of jurisdiction over crimes on Indian reservations appears to be briefly but fairly well summarized.

There are no Federal statutes which specifically make illegal cohabitation among Indians on Indian reservations an offense. However, the regulations of this Department, 25 CFR 161, Law and Order on Indian Reservations, might come within the classification of "Federal laws." These regulations make illicit cohabitation by Indians an offense. These regulations do not apply on all reservations. See 25 CFR 161.1. In North Dakota these regulations apply only on the Standing Rock and Turtle Mountain Reservations. The tribes on the Fort Berthold Reservation, acting pursuant to authority in their tribal constitution, adopted a tribal law and order code. Illicit cohabitation is defined as an offense in this code, the enforcement of which is a tribal duty and responsibility. As you know, Congress, by the act of May 31, 1946 (60 Stat. 229), extended the criminal jurisdiction of the State of North Dakota to offenses committed by or against Indians on the Devils Lake Reservation.

I am informed that you have discussed this subject on several occasions with Mr. John M. Cooper, Director of the Aberdeen, South Dakota, Area Office of the Bureau of Indian Affairs, and his staff, including the area counsel and the area law enforcement officer. I am sure that they have advised you fully, and I suggest that you present to Mr. Cooper any evidence of violations of Federal statutes or regulations you may have.

This has further reference to your letter of May 8. addressed to Secretary McKay, wherein you referred to H.R. 4483, and to the question whether minerals underlying certain lands within the Riverton reclamation project on the ceded portion of the Wind River Indian Reservation, Wyoming, are owned by the United States or by the Indians of that reservation.

The Wind River Indian Reservation was established by the treaty of July 3, 1868 (15 Stat. 673), whereby in return for a relinquishment of all claim or right to other territory of the United States, the Shoshone Indians accepted in exchange the reservation in Wyoming. The United States agreed that the territory described in Article II of the 1868 treaty would be "set apart for the absolute and undisturbed use and occupation of the Shoshone Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them." Reinforcing this covenant, there was a solemn pledge of faith by the United States that no persons, except a few specially enumerated, and governmental agents engaged in the discharge of duties enjoined by law, should "ever be permitted to pass over, settle upon, or reside" in the territory so reserved.

The act of March 3, 1905 (33 Stat. 1016), to which reference is made in your letter, constituted an amendment and ratification of a later agreement with the Indians of the Shoshone or Wind River Reservation, entered into on April 21, 1904, where by that reservation was diminished to the extent of a further cession or relinquishment of lands by the Indians to the United States. Article II of that agreement, as amended, provides that the ceded lands were to be disposed of by the United States at stipulated prices under the provisions of the homestead, town-site, coal and mineral land laws of the United States, and that any lands remaining unsold eight years after being opened to entry may then be sold to the highest bidder for cash. While the 1905 act by its terms constituted an approval of a relinquishment or grant by the Indians of "all right, title and interest" which they had to the ceded lands in question, nevertheless, it was specifically provided that the proceeds from the lands to be disposed of by the United States were to be expended for the benefit of the Indians. Moreover, amended Article IX of the agreement provides that:

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DEPARTMENT OF THE INTERIOR

JUNE 18, 1953

The extent of the interest which the Shoshone Indians received in the lands set apart to them as their reservation under the 1868 treaty has been defined by decisions by the Supreme Court of the United States in connection with the suit instituted by those Indians against the United States to recover compensation for the settling of Arapahoe Indians on their reservation. It was determined as the basis for the judgment awarded the Indians by those decisions (Shoshone Tribe v. United States, 299 U.S. 476 (1937), and United States v. Shoshone Tribe, 304 U.S. 111 (1938) ), that for all practical purposes the Shoshone Indian Tribe owned the reservation lands, and that the Indians likewise were the beneficial owners of the mineral deposits and the timber on the reservation. The Court said in 304 U.S., at page 117, that:

Thus, it would appear that by the agreement of April 21, 1904, as amended and ratified by the act of March 3, 1905, supra, the Indians of the Wind River Reservation merely released and relinquished such part of their interest or right in the lands ceded by them as would enable the United States to make perfect title to those persons, including homesteaders and settlers, who availed themselves of the purchase provisions contained in the 1905 act. Moreover, it is clear from Article IX of the amended agreement, quoted in full above, that until final disposition of the lands the United States would hold the lands as trustee for the Indians, and any proceeds which may be derived from the sale of the lands, or for the use thereof, would belong to the Indians as the beneficial owners, and not to the trustee. See in this connection Ash Sheep Company v. United States, 252 U.S. 159 (1920); Hanson v. United States, 153 F. (2d) 162 (C.C.A. 10th, 1946). It should also be noted that in similar circumstances, where patents have issued to homestead entrymen with a reservation of minerals to the United States, this Department has likewise regarded the United States as a trustee of the minerals for the benefit of the Indians. See Solicitor's opinion, 59 I.D. 393 (1947).

This continuing beneficial interest of the Indians in the ceded lands, until they were finally disposed of, was again recognized by the Congress when, by the act approved August 21, 1916 (39 Stat. 519), the Secretary of the Interior was authorized to lease such lands for oil and gas production, and after the extinguishment of any indebtedness of the Shoshone Tribe to the United States, to apply the balance of the proceeds from the leases to the use and benefit of the Indians in the same manner as though secured from the sale of said lands the act of March 3, 1905, supra. Moreover, also been stated in United States v. Shoshone 304 U.S., supra, at page 117, that:

The lands ceded by the Indians under the 1905 act were in fact opened to settlement and entry by Presidential proclamation dated June 2, 1906 (34 Stat. 3208). The construction, under the Federal reclamation laws, of the Riverton project on lands within the ceded portion of the Wind River Reservation was authorized by a provision in the appropriation act of June 5, 1920 (41 Stat. 874, 915). Moreover, it appears that approximately 332,000 acres of the ceded lands were reserved for reclamation purposes in accordance with the provisions of section 3 of the reclamation act of June 17, 1902 (32 Stat. 388). H.R. 4483 apparently is designed to provide a means of payment to the Indians for that part of the lands so reserved for which the Indians had not already been compensated.

Your letter of May 8 does not indicate the basis upon which settlers on ceded lands within the Riverton project feel they are entitled to mineral rights. Generally, mineral lands were not liable to entry and settlement under the homestead laws of the United States (43 U.S.C., 1946 ed., sec. 201). Nevertheless, at least one exception in that respect was provided by the act of July 17, 1914 (38 Stat.

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OPINIONS OF THE SOLICITOR

JUNE 25, 1953

509, 30 U.S.C., 1946 ed., secs. 121-123b. Under this act, lands withdrawn, classified, or reported as valuable for certain mineral deposits were made subject to entry under the nonmineral land laws of the United States, but with the requirement that the patents contain mineral reservations in favor of the United States. On the basis of the trust relationship mentioned above, such a reservation of minerals underlying ceded Indian lands of the class here involved would inure to the benefit of the Indians. Of course, it should also be noted that under the 1914 act, the classification of mineral lands could be disproved, and a patent secured without a mineral reservation.

By an item in the appropriation act of March 4, 1921 (41 Stat. 1367, 1404), it was provided that when lands on the Riverton project are opened to homestead entry under the reclamation laws, the entrymen are required to pay to the United States the sum of $1.50 per acre as stipulated in the schedule of prices fixed by the act of March 3, 1905, supra. Moreover, it is provided by departmental regulation (43 CFR, 1951 Supp., 401.24), that homestead entries on lands within Federal reclamation projects will be subject to the laws of the United States governing mineral land, and there is included in this same regulation a provision for the waiver by the homestead applicants of the right to the mineral content of the land.

Notwithstanding the generalizations mentioned above, it is apparent that no definite opinion can be given regarding the merits of any particular entry or claim to mineral rights until all of the pertinent facts are made available. This should include an identification of the claim or entry upon the land, a full description of the land, and complete information regarding the basis for any claim to mineral rights. Upon the presentation of such data, this Department would be pleased to consider the matter further.

This responds to your letter of May 28, 1953, ad dressed to Secretary McKay, in which you allege that you and Jasper Palouse are the heirs of Meshach (Mace) Tipton, deceased Public Domain Allottee No. 26 (Roseburg).

On July 9, 1948, after extensive hearings had been held and investigations conducted to ascertain the heirs of Meshach Tipton, it was concluded by the Acting Secretary of the Interior that the decedent died intestate without heirs. It was also ordered that pursuant to the provisions of the act of November 24, 1942 (56 Stat. 1021, 25 U.S.C., 1946 ed., sec. 373b), the original allotment of the decedent, together with his inherited interest in the allotment of his prior deceased wife, Nancy Tipton, should escheat to the United States, to be held in trust for such Indians as the Congress may thereafter designate.

After the escheat order of July 9, 1948, was entered, Jasper Palouse petitioned that such order be reconsidered or reopened, and that his claim as an heir be reexamined. However, by a decision dated January 19, 1951 (IA-41), the then Solicitor for this Department refused to reopen the proceedings on the estate of Meshach Tipton, and denied the petitioner's request for reconsideration. Moreover, a bill (H.R. 3948) was introduced in the Eighty-second Congress which would have authorized and directed the Secretary of the Interior to make an allotment to Jasper Palouse of those lands which constituted the original allotment of Meshach Tipton. However, that bill failed of enactment. A similar bill (H.R. 3947, 82d Cong.), which would have granted an allotment to Pauline Acusta Dumont of the land inherited by the decedent, likewise failed of enactment.

The Indian probate regulations (25 CFR, Part 81) contain no provision for further proceedings in a matter where the Secretary of the Interior has finally determined that an Indian estate shall escheat. However, as stated in the decision of January 19, 1951, supra, the Secretary of the Interior has the inherent power, even in the absence of a specific provision on the point, to reopen and review administrative determinations purporting to dispose finally of departmental proceedings (see Lane v. Mickadiet, 241 U.S. 201 (1916). This power, however, would be exercised only when some new factor, such as newly discovered evidence or fraud, is brought to the Secretary's attention. See Sarah Chah-se-nah (Sarah Bruna), IA-2, June 29, 1950.

It has been noted that the escheat order of July 9, 1948, was made only after exhaustive investigations had been conducted and many hearings held in an effort to ascertain the heirs of Meshach Tipton. Numerous witnesses were interviewed, and notices were posted concerning the various proceedings on the decedent's estate. All of these earnest efforts failed to disclose any heirs of the

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decedent. In these circumstances, the Department would not be willing to give any further consideration to this matter unless newly discovered evidence of a convincing nature is furnished in support of your claim. If you have such evidence to offer, it is suggested that you submit the same to Mr. Richard J. Montgomery, Examiner of Inheritance, Bureau of Indian Affairs, Portland 18, Oregon.

RESOLUTION OF FORT PECK EXECUTIVE BOARD
INCREASING SALARIES--LIMITED BY
FEDERAL STATUTE

On April 13, 1953, the Fort Peck Executive Board adopted Resolution No. 10-53, requesting that the Secretary of the Interior authorize the expenditure of $6,000 of tribal funds for the payment of the salaries and expenses of the board, in addition to the $10,000 specifically authorized to be expended by the act of April 28, 1948 (62 Stat. 203), which provides for the payment of the salaries and expenses of the board, subject to the limitation, however, that not more than $10,000 per annum shall be expended for such purposes. There is advanced as authority for the additional expenditure of $6,000 the item in the current departmental appropriation act (Public Law 470, 82d Cong.), which appropriates "in addition to the tribal funds authorized to be expended by existing law," $2,920,000 of tribal funds "not otherwise available for expenditure for the benefit of Indians and Indian tribes," subject to a proviso that "in addition to the amount appropriated herein, tribal funds may be advanced to Indian tribes during the current fiscal year for such purposes as may be designated by the governing body of the particular tribes involved and approved by the Secretary * * *."

In your letter of May 4, 1953, to the Secretary, you appeal from an informal ruling of the area office of the Bureau of Indian Affairs to the effect that the additional expenditure of $6,000 may not be approved. As your appeal involves a purely legal question, the appeal has been referred to this office for consideration.

Your basic contention is that the limitation on the expenditure of tribal funds under the act of April 28, 1948, supra, which is specifically applicable to the Fort Peck Tribe, was impliedly repealed by the general provision in the tribal funds item of the current appropriation act. It is a well-settled rule of construction, however, that specific statutes are not to be presumed to be repealed by statutes of general operation unless both are utterly incompatible, or there is persuasive evidence of an intent to repeal the specific statute.

I find no such incompatibility in the present instance, nor any evidence of such an intent. The tribal funds item in the current appropriation act as a whole is "in addition" to the tribal funds which are authorized to be expended by existing law, and all special provisions governing the expenditure of the funds of a particular tribe are thus expressly preserved. Moreover, the appropriation of tribal funds is of funds "not otherwise available for expenditure," and funds already permanently appropriated by other statutes relating to particular Indian tribes are already available for expenditure.

While I entertain no doubts concerning the continued applicability of the limitations contained in the act of April 28, 1948, governing the payment of the salaries and expenses of officials of the Fort Peck Tribe, I should add that the views herein expressed are in accord with the interpretation placed on similar legislation by this Department and by the Congress. The act of May 15, 1945 (59 Stat. 167), governing the payment of the salaries and expenses of officials of the Klamath Tribe, is similar to the act of April 28, 1948, except that the limitation on expenditure for these purposes is $15,000 rather than $10,000. The governing body of the Klamath Tribe took the same position as the Fort Peck Tribal Executive Board, contending that the $15,000 limitation had been lifted by Congress in making tribal funds available in the annual appropriation act subsequently adopted. When this contention was rejected by the Bureau of Indian Affairs, a bill--HR 3406--was introduced in the present Congress for the purpose of removing the $15,000 limitation. The bill was enacted and approved on May 29, 1953 (Public Law 44. 83d Cong.). In submitting its report on the hill, the Department stated that the act of May 15, 1945, "limits the amount to be expended for salaries and expenses of tribal officials and representatives to not more than $15,000 per annum." Congress, in lifting the limitation, must necessarily be deemed to have approved the prior administrative construction.

I am of the opinion, therefore, that the tribal funds item in the current appropriation act does

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not authorize the approval of the additional expenditure, and that Resolution No. 10-53 must be disapproved.

Cheyenne River Hospital--Construction of Oahe Dam and Reservoir--Claim for Compensation Arising Out of Flooding of Hospital--Appropriateness of Expression of Opinion.

In view of the legislation governing the settlement of the claims of the Cheyenne River Sioux Indians, arising from the construction of the Oahe Dam and Reservoir, under which the claims are for final disposition by Congress, and the Chief of Engineers, Department of the Army is given final responsibility for negotiating with respect to the taking of the Indians' property, a definite expression of opinion on the part of this Department concerning the claim of the tribe for compensation for the Cheyenne River Hospital, which will be inundated by the Oahe Dam and Reservoir, might prove both premature and academic. As it appears, however, that the Cheyenne River Hospital was constructed on tribal lands with tribal funds but was subsequently remodeled at the expense of the Government, the argument may be advanced by the Department that the claims of the tribe calls for an adjustment of equities.

Memorandum
To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Compensation for the taking of the Cheyenne River Hospital

In connection with the negotiations pursuant to the act of September 30, 1950 (64 Stat. 1093), as amended by the act of April 8, 1952 (66 Stat. 46), which provide for the settlement of the claims of Indians of the Cheyenne River and Standing Rock Reservations arising out of the construction of the Oahe Dam and Reservoir, the question has been raised to what extent the United States is obligated to compensate the Cheyenne River Sioux Tribe for the Cheyenne River Hospital which will be inundated by the construction of the Oahe Dam and Reservoir.

The Cheyenne River Hospital is situated on tribally-owned land of the agency reserve within the Cheyenne River Reservation. A contract for the construction of the original structure was awarded in 1914 at a contract price of $34,700 and payment therefore was made from tribal funds.¹ Beginning in 1936, the United States extensively remodeled and made substantial additions to the structure, the costs of which improvements were borne entirely by the United States: $56,750 expended from the account "National Industrial Recovery, Interior, Indians, 1933-1937"; $14,000 expended from the account "Public Works Administration, Allotment to Interior, Indians, 1933-1939"; and $14,500 specifically appropriated for repairs to the hospital by the Interior Department Appropriation Act of 1939 (52 Stat. 316). There is said to be no evidence that the tribe ever specifically objected or consented to the remodeling of the building and none as to whether the United States expressly intended that the improvements be a gift to the tribe.

In view of the provisions of the statute governing the negotiations with the Cheyenne River Sioux Tribe, I believe that a definite expression of opinion on my part concerning the question which has been submitted to me might prove both premature and academic. The property of the Indians is not taken directly under the terms of the statute but provision is made thereon for the negotiations of contracts of compensation to the tribes, and these contracts are to be made subject to the approval of the Congress; and the contracts may embody provisions as to which the negotiating parties may disagree, so that the provisions in dispute may be considered by the Congress in connection with the ratification of the contracts by that body. It appears also that the two negotiators on behalf of the Government, who are the Chief of Engineers, Department of the Army, and the Secretary of the Interior do not have equal responsibility in the negotiations, for section 2, subdivision (a), of the statute provides that the Chief of Engineers shall have "primary and final responsibility" in negotiating the settlement of the Indians' property rights, so that that officer would not be bound by any opinion expressed in this Department concerning the liability of the Government to compensate the Indians for the destruction of the Cheyenne River Hospital. Moreover, since section 2, subdivision (b) (2) of the statute

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contemplates that the contracts which are negotiated may also provide costs of "relocating and reestablishing" the Indians in a new location, it is possible that the Chief of Engineers may elect to reconstruct the existing hospital facilities in the new location.

Under these circumstances, it seems to me that as the law officer of the Department whose responsibility is limited to aiding the Indians in securing just compensation for their rights, that I need not--and indeed should not--go beyond stating an argument which might be advanced in the negotiations on behalf of the Indians on the issue of compensation for the Cheyenne River Hospital.

The Indians are doubtless taking the position that they should receive compensation for the full value of the hospital building and its facilities, since the hospital is located on tribal land, and it is a familiar rule that permanent improvements made upon the lands of another, without his consent, belong to him. The applicability of this doctrine in the present instance would appear, however, to be doubtful, for the United States which reconstructed the original hospital is the holder of the legal title of the land on which the hospital stands, the tribe being merely the beneficial owner. The Government and the tribe thus do not stand with respect to each other in the relation of strangers, for the Government as guardian has the duty of supervising the affairs of the tribe. The Chief of Engineers may well contend that the Government has at least not lost its equity in the hospital. There are, indeed, cases which hold that the ordinary rule that improvements are forfeited to the owner of the soil does not apply to public corporations ² or when the annexation is for a public purpose, ³ and that a right of removal of improvements is to be liberally construed in favor of the Government.⁴ In this situation, it would seem that the most realistic approach that could be adopted by the Department on behalf of the Indians would be to urge an adjustment of the equities. This would permit the tribe to be compensated for the value and its equitable interest in the land on which the hospital is situated, as well as for its proportionate interest in the improvements on the land. I suggest that this approach be adopted.

Indian Lands--Indian Irrigation Projects--Contracts with State Irrigation Districts for Operation and Maintenance of Indian Irrigation Projects

Generally speaking, Indian allotted and tribal lands may not, under existing law, be included, with or without the consent of the Indians, in State irrigation districts which would have the power to operate and maintain the Indian projects serving such lands, and to assess such lands for irrigation charges, under contracts which would not permit the irrigation districts to resort to foreclosure proceedings in State courts to enforce the collection of such charges.

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Terminating supervision over Indian irrigation projects.

In a memorandum to you dated May 28, the Acting Commissioner of Indian Affairs suggested that, in view of the facts that a considerable portion of the lands included in Indian irrigation projects had come into non-Indian ownership,¹ and that the Indian landowners compared favorably with their white neighbors in industry, intelligence, and agricultural experience, it would be desirable to turn over the operation and maintenance of the Indian projects to irrigation districts organized under State law,² which presumably would have jurisdiction over Indian as well as non-Indian lands. After reviewing the general legislation applicable to Indian irrigation projects, and stating that there is no provision of law, except the act

    ² Titus v. Poland Coal Co., 119 Atl. 540 (Pa.).
    ³ See Tiffany, The Law of Real Property, 39 ed., sec. 611, and cases cited on page 578.
    ⁴ See John E. Andrus v. United States, 59 Ct. Cl. 851.
    ¹ It is stated in the memorandum that Indian irrigation projects "now provide service to approximately 840,000 acres of which approximately 280,000 acres are owned by non-Indians."
    ² It is stated in the memorandum that there "are irrigation districts created pursuant to State law on the Flathead and Crow Indian irrigation projects in Montana." In addition, there is an irrigation district created pursuant to State law on the San Carlos Indian Irrigation Project in Montana. None of these districts has jurisdiction over Indian-owned lands but the San Carlos Irrigation and Drainage District, unlike the Flathead and Crow Districts, does operate and maintain part of the project works known as "district works," which serve non-Indian lands.

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of May 28, 1941 (55 Stat. 209)) applicable solely to the Uintah Indian Irrigation Project, ³ which expressly authorizes the transfer of the operation and maintenance of any Indian irrigation projects to any irrigation districts organized under State law, it is requested that I render an opinion on the questions whether

I believe that these three questions may be reformulated as the single question whether under existing law restricted or trust Indian lands may be included, with or without the consent of the Indians, in State irrigation districts which would have the power to operate and maintain the Indian projects serving such lands, and to assess such lands for irrigation charges, under contracts which would not permit the irrigation districts to resort to foreclosure proceedings in State courts to enforce the collection of such charges.

Any such contracts would be made presumably between the Secretary of the Interior and the State irrigation districts, and would be designed to terminate supervision by the Department of the operation and maintenance of Indian irrigation projects. The accomplishment of this objective would also involve presumably contractual relationships between the irrigation districts and the owners of the Indian lands. However, no specific contracts have been submitted to me, nor has any specific Indian irrigation project been mentioned, except the Uintah project. While the question posed is thus entirely general, there exists in addition to the general legislation governing Indian irrigation projects a vast amount of special legislation applicable to one or more of the Indian irrigation projects,⁴ some of which were initiated in the closing decades of the last century, and this legislation is, moreover, of an extremely diverse character. While the major projects are not many, there are many smaller projects. To achieve absolute accuracy with respect to general questions relating to the Indian irrigation projects would, therefore, be such a formidable task that the purpose of any inquiry would be defeated. In the observations which follow any general statements made must be assumed to be subject to the qualification that there may conceivably be a contrary provision with respect to a specific project.

There is some special legislation expressly authorizing the formation of irrigation districts under state law but Indian lands have been excluded from the scope of such legislation. One of the acts governing the Flathead Indian Irrigation Project, namely, the act of May 10, 1926 (44 Stat. 453, 465), expressly excludes Indian lands from the irrigation districts organized pursuant to State law. In making funds available for the construction of the project, Congress in this act provided that none of the funds should be expended on construction work "until an appropriate repayment contract, in form approved by the Secretary of the Interior, shall have been properly executed by a district or districts organized under State law embracing the lands irrigable under the project, except trust patent Indian lands * * *." The act also contained a proviso, moreover, "That trust patent Indian lands shall not be subject to the provisions of the law of any district created as herein provided for but shall upon the issuance of fee patent therefore, be accorded the same rights and privileges and be subject to the same obligations as other lands within such district or districts * * *." In conformity with these provisions, the repayment contracts executed by the three irrigation districts subsequently organized under State law expressly excluded trust patent Indian lands

³ This exception is more apparent than real. While the act of May 28, 1941, authorizes the Secretary of the Interior "to make contracts transferring the operation and maintenance of any canal system or systems under the said Project to an irrigation district or districts formed pursuant to State law," the act was passed to confirm recommendations made after an investigation pursuant to the act of June 22, 1936 (49 Stat. 1803. 25 U.S.C., 1946 ed., sec. 389), which authorizes the Secretary of the Interior to adjust irrigation charges against lands of non-Indians within Indian irrigation projects, subject to express confirmation by Congress, and the "contracts" to which the act refers appear to be contracts with the non-Indian land owners who were the beneficiaries of the legislation. See Senate Rep. No. 243, 77th Cong., 1st sess., pp. 4-5.
⁴ A compilation of laws relating to Indian irrigation projects which was printed as an appendix to Hearings Before the Committee on Indian Affairs. House of Representatives, 66th Cong., 1st sess., on "The Condition of Various Tribes of Indians" (Washington: 1919), runs to 168 pages A later compilation of such laws, published by the Bureau of Indian Affairs under the title "Analysis of Water Resources Authority." runs to 119 pages.

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from the scope of the contracts.⁵ While the act of May 10, 1926, has been amended in some respects by the act of May 25, 1948 (62 Stat. 269) ⁶ and amendatory repayments contracts have been executed pursuant to that act, the prohibition upon the inclusion of the trust patent Indian lands in the irrigation districts has not been disturbed.⁷

Similarly, the basic act governing the San Carlos Indian Irrigation Project, namely, the act of June 7, 1924 (43 Stat. 475), excludes Indian lands from the irrigation district organized pursuant to State law. Section 1 of the act authorized the Secretary of the Interior to construct a dam across the canyon of the Gila River near San Carlos, Arizona, "for the purpose, first, of providing water for the irrigation of lands allotted to Pima Indians on the Gila River Reservation, Arizona, now without an adequate supply of water and, second, for the irrigation of such other lands in public or private ownership, as in the opinion of the said Secretary, can be served with water impounded by said dam without diminishing the supply necessary for said lands * * *." The three classes of lands to be benefited by the project thus were Indian allotted lands, public lands, and lands in private ownership. Section 4 of the act, in providing for the execution of a repayment contract to cover the construction costs of the project, stipulated that the contract should be executed "by a district organized under State law, embracing lands in public or private ownership irrigable under the project * * *." Thus the Indian lands were excluded.

Finally, in the case of the only other Indian irrigation project, where an irrigation district organized under State law is in existence, namely, the Crow Irrigation Project, the Indian lands are also excluded from the jurisdiction of the district. Section 3 of the act of June 28, 1946 (60 Stat. 333), which is the last of the series of statutes governing the Crow Irrigation Project, authorizes the Secretary of the Interior to enter into repayment contracts only "with irrigation districts acting on behalf of all non-Indians owning land under the Crow irrigation project * * *."

Thus, Congress, in providing for the execution of repayment contracts with irrigation districts organized under State law has regularly excluded Indian lands, and in the case of the Flathead Project has expressly made the provisions of State law relating to irrigation districts wholly inapplicable to the Indian lands. The Flathead and San Carlos irrigation projects are, moreover, the second and third largest, respectively, of the Indian irrigation projects, and the Crow project ranks sixth.

Again, in the case of at least three of the largest Indian irrigation projects, namely, the Flathead, Fort Hall, ⁸ and Fort Peck ⁹ project, Congress has itself specified precisely when the operation and maintenance of the projects may be taken over by the landowners. The time when the projects may be taken over is when required payments have been made "for the major part of the unallotted lands irrigable under any system * * *." Thus, section 15 of the act of May 29, 1908 (35 Stat. 444, 150), applicable to the Flathead Project, and section 2 of the act of May 30, 1908 (35 Stat. 558, 559), applicable to the Fort Peck Project, provide in identical terms:

The act of March 1, 1907 (34 Stat. 1024, 1025), applicable to the Fort Hall project, is the same, except that the words "in accordance with the laws of Idaho" are added after the reference to the Secretary of the Interior.

The provisions of the special legislation thus far discussed merely reflect the fundamental proposition which governs Indian relations that State laws have no application to Indians on Indian reservations unless Congress has specifically made such laws applicable. Whenever it has been deemed desirable that Indians should in some respect be subjected to State jurisdiction, or have the benefit of State laws or State services, special legislation has always been sought to accomplish such pur-

    ⁵ See paragraph 7 of the contract with the Flathead Irrigation District, approved November 24, 1928; paragraph 9 of the contract with the Mission Irrigation District, approved August 21, 1931; and paragraph 13 of the contract with the Jocko Valley Irrigation District, approved February 26, 1935.
    ⁶ The principal purpose of the 1948 act was to provide for the liquidation of the construction costs of the project from the power revenues of the project.
    ⁷ See Amendatory Repayment Contracts with the Flathead Irrigation District, Mission Irrigation District, and Jocko Valley Irrigation District, all approved September 15, 1949.
    ⁸ This project is the fifth largest of the Indian irrigation projects.
    ⁹ This project is the eighth largest of the Indian irrigation projects.

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poses.¹⁰ There appears to be only one general law authorizing the Secretary of the Interior to make contracts with State agencies to secure services for Indians. This is the Johnson-O'Malley Act of April 16, 1934 (48 Stat. 596), as amended by the act of June 4, 1936 (49 Stat. 1458, 25 U S C., 1946 ed., sec. 452), which authorizes such contracts in the fields of education, medical attention, agricultural assistance, and social welfare.¹¹

It is also a fundamental principle of Federal administrative law--applicable not only to Indian relations but to all Federal activities--that Federal officials may make only such contracts as are authorized by law.¹² This does not mean, to be sure, that the nature of the contract must be precisely spelled out in some Federal statute. But the power to make the contract must be at least readily inferable from a statutory power, and must be in harmony with the policy behind the statute. The Secretary of the Interior has, no doubt, a wide rule-making power with reference to the management of Indian irrigation projects, and his power to delegate his functions to the officials and agencies of his own Department is now virtually limitless.¹³ But this power may not be exercised with respect to Indians and Indian lands by delegating it to State agencies in the absence of a clear indication by Congress that such a step may be taken.¹⁴ The only statute under which the Secretary of the Interior is authorized to make agreements in connection with the irrigation of Indian lands is the act of March 3, 1909 (35 Stat. 798, 25 U.S.C., 1946 ed., sec. 382) but this authority is limited to the making of agreements covering the allotments of Indians on the public domain, and the act expressly provides that "no lien or charge for construction, or maintenance shall thereby be created against any such lands."

It would seem to be plain that no matter how desirable it may seem at present that Indian and non-Indian landowners on Indian irrigation projects should be treated on the basis of equality that such is not the policy that is embodied in existing Federal legislation governing such projects. The construction of Indian irrigation projects was often launched with little regard for their economic feasibility but were undertaken as part of the Federal Government's program of instructing the Indians in the arts of civilized life, which, of course, include agriculture. Sometimes the Indians benefiting from a project were not required to pay construction costs,¹⁵ and sometimes they were excused even from paying operation and maintenance charges.¹⁶ Congress, to be sure, subsequently adopted general legislation providing for the payment by Indians of operation and maintenance charges and construction costs of the Indian irrigation projects. However, the act of August 1, 1914 (38 Stat. 583, 25 U.S.C., 1946 ed., sec. 385), which made maintenance charges reimbursable, did so only "where the Indians have adequate funds to repay the Government," ¹⁷ and the act of February 14, 1920 (41 Stat. 409, 25 U.S.C., 1946 ed., sec. 386), which provided for the collection of construction charges, was limited to those cases "where reimbursement is required by law." Moreover, Congress subsequently adopted the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C., 1946 ed., sec. 386a), which authorized the Secretary of the Interior "to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made," and which at the same time deferred the collection of all construction costs against any Indian-owned lands within any Govern-

    ¹⁰ See Handbook of Federal Indian law (Wash., 1942) Chap. 6, where examples of such legislation in the field of crime, taxation, inheritance, probate, sanitation, and school attendance are given.
    ¹¹ It is interesting to note that some Indian groups were alarmed by this legislation and had to be assured by the Department that it did not provide authority for the States to assume jurisdiction over Indian lands (see letter dated April 21, 1930, from Secretary Ray Lyman Wilbur to Mr. Pablo Abeita). In sponsoring the legislation, the Commissioner of Indian Affairs had stated, however, that the legislation "does not in any way affect the status of the Indian either as to his citizenship or his property rights, nor does it affect in any way the tribal assets, land holdings, or any other property of individual Indians or of any tribe of Indians." (See Senate Rep. No. 449, 71st Cong., 2d sess., p. 2.)
    ¹² R.S. 3732, as amended (41 U.S.C., 1946 ed., sec. 11), provides: "No contract *     *     * on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment *     *     *."
    ¹³ See Reorganization Plan No. 3 of 1950 (15 F.R. 3174).
    ¹⁴ See Op Sol. I.D. (M-25258), dated June 26, 1929, and (M-31351), dated August 24, 1942, together with the authorities there cited.
    ¹⁵ See, for example, the act of May 30, 1908 (35 Stat. 558, 559), relating to the Fort Peck Project, which provides: "The land irrigable under the system herein provided, which has been allotted to Indians in severalty, shall be deemed to have a right to so much water as may be requited to irrigate such land without cost to the Indians for the construction of such irrigation systems."
    ¹⁶ See, for example, the act of March 1, 1907 (34 Stat. 1024, 1025), relating to the Fort Hall Project, which provided that the Indians shall pay no construction charges, and no maintenance charges unless the lands are leased for more than three years.
    ¹⁷ It has been the practice to deliver water to Indians unable to pay operation and maintenance charges upon a certification by the superintendent of the reservation of the Indian farmer's inability to pay the charges. Fee 25 CFR, 130.

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ment irrigation project, and provided that no assessments should be made "on behalf of such charges against such lands until the Indian title thereto shall have been extinguished * * *." Under the provision of the Leavitt Act permitting the adjustment of reimbursable charges, it has been common practice to cancel debts arising from the non-payment by Indians of operation and maintenance charges made by Indian irrigation projects.

There is also an ultimate reason for denying the power of the Secretary of the Interior to make contracts providing for the operation of Indian irrigation projects by State irrigation districts. This lies in the fact that Indian irrigated lands are almost entirely allotted lands. In the Northwest, the Indian irrigated lands are virtually all allotted lands; there are small areas of irrigated tribal lands in the Southwest, but two of the largest of these areas which lie under the San Carlos and Colorado River Indian irrigation projects are interspersed with allotted lands, so that any contract made with an irrigation district would necessarily have to cover both classes of lands.

Now, allotted lands are wholly immunized by acts of Congress from State control, and from any contractual relationships between the allottee and state officials. Section 6 of the General Allotment Act of February 8, 1887 (24 Stat. 390), as amended by the act of May 8, 1906 (34 Stat. 182, 25 U.S.C., 1946 ed., sec. 349), expressly provides that "until the issuance of fee-simple patents all allottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States," and section 5 of the General Allotment Act (24 Stat. 389, 25 U.S.C., 1946 ed., sec. 348), provides that if any contract is made "touching" allotted lands, such "contract shall be absolutely null and void." While Congress has authorized, subsequent to the adoption of this provision, various types of contracts to be made with respect to allotted lands, the type of contracts proposed to be made with State irrigation districts has not been included. As any such contract is not authorized, moreover, it would make no difference that it contained a provision which would not permit a State irrigation district to institute foreclosure proceedings in State courts to enforce the collection of operation and maintenance charges.¹⁸

It follows from what has been said that the proposed plan of including Indian lands within irrigation districts organized under State law would not be carried out under existing law, and that the execution of the proposed plan will require additional legislation.

In the absence of specific authority in statutes concerning Indians generally or in the Taylor Grazing Act for the Secretary of the Interior to permit the exchange of Indian trust lands for public lands pursuant to section 8 of the Taylor Grazing Act, an amendment to 43 CFR, Part 146 which would involve, among other things, the cancellation and issuance of trust patents to accomplish an exchange, would be authorized.

To:            The Secretary
From:        The Solicitor
Subject:     Amendment of 43 CFR, Part 146.

The Bureau of Land Management has submitted proposed amendments to 43 CFR, Part 146, which would permit exchanges to be made, pursuant to section 8 of the Taylor Grazing Act of June 26, 1934 (48 Stat. 1269), as amended, (49 Stat. 1976, 43 U.S.C., 1946 ed., 315 (g) ), of public lands for Indian allotments for which trust patents have been issued, or other lands held in trust for Indians by the United States.

Section 8 of the Taylor Grazing Act authorizes the Secretary of the Interior to accept privately owned lands within or without the exterior boundary of a grazing district in exchange for public lands of equal value, whenever the Secretary determines that it is to the best interest of the government. Both the government and the private owner may reserve mineral rights in the lands to be exchanged.

Until the present time, the Departmental regulations implementing the administration of the Taylor Grazing Act have contained nothing concerning the acceptance of Indian lands in exchange for public lands. The Director of the Bureau of Land Management has stated in a memorandum of January 22, that it is his opinion that the Taylor Grazing Act contains sufficient authority to permit exchanges of this kind, and he has proposed an

¹⁸ It should be noted that such a provision would also be contrary to existing state law under which all assessments against lands included in an irrigation district are commonly made liens against all the lands in the district. See, for instance, Arizona Code of 1939, section 75:313(d) and Idaho Code of 1949, section 43:706.

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OPINIONS OF THE SOLICITOR

AUGUST 14, 1953

It appears that these regulations would not be authorized unless (1) as a matter of public land law, the Secretary has been given the authority to exchange public domain for Indian trust lands¹ and (2) as a matter of Indian law, the Secretary has been given authority to permit Indians to exchange their trust lands in the manner proposed in the amended regulations.

As a matter of Indian law, it is my opinion that there is no statutory authority for these regulations and that they should not be approved.

The United States holds the legal title to certain lands in trust for individual Indians or groups of Indians or subject to restrictions against alienation, pursuant to express treaty agreements or statutory authorization. Changes in the status of these lands, including exchanges, alienations, cancellation and issuance of trust patents, and the imposition of restrictions against alienation, can be made or approved by the Secretary acting pursuant to statutory authority. Without such authorization, he is powerless to act. Cf. 25 U.S.C., 1946 ed., sec. 348 and United States v. Getzelman, 89 F. (2d) 531 (C.C.A. l0th, 1937) and cases cited therein (cert. denied, 302 U.S. 708).

Although there are a number of Indian laws authorizing the Secretary of the Interior to permit the alienation of trust property, cancellation of trust patents, and exchange of trust property under special circumstances,²I can find nothing in the Indian laws which either specifically or generally authorizes the Secretary to carry out the exchanges proposed in the amendments to 43 CFR, Part 146. In fact, it is contemplated by the proposed regulations that exchanges shall be made thereunder when they "* * * cannot be made under any other law * * *."

Therefore, the authority, as a matter of Indian law, for Indians to exchange their trust lands in the manner proposed in the regulations must be found in the Taylor Grazing Act, or not at all. The argument based on the Taylor Grazing Act is that the words "privately owned lands" as used in section 8 were intended to include Indian trust lands, and that there must be implied authority in the Secretary to facilitate the exchanges by appropriate methods. If this authority is not implied, it is argued, an absurdity would exist by which the United States would be permitted to accept Indian trust lands in exchange for public lands, but the Indians would be incapable of making the exchange.

As a legal matter, land to which the United States holds the fee title, albeit in trust for Indians, is clearly not privately owned land. The Indians have an equitable property interest, but it is hardly comparable to fee ownership by a private individual. However, if it were common usage to include Indian trust lands within the phrase "privately owned lands" or if the Congress had habitually used the phrase with this meaning, there might be some merit to the argument supporting the conclusion that the Taylor Grazing Act would permit Indians to exchange their trust lands for public lands. In fact the common usage by the Congress, when it has intended to include Indian lands, has been to state clearly its intention. It has been the practice in statutes, as well as in judicial opinions, to speak of Indian lands in terms such as follows: "Indian lands," "Indian country," "Indian trust lands," "trust lands," "Indian allotments," "tribal lands," "Indian reservations."

To determine that the Congress intended to include Indian trust lands in the phrase "privately owned lands" as used in section 8 of the Taylor Grazing Act, it would be necessary to find some thing definite concerning this intention in the legislative history of the act. There is no such intention displayed in this history.³

The Taylor Grazing Act is a public land law designed to promote the highest use of the public lands. Some of the public lands are non-contiguous, and are interspersed with non-public land. The purpose of section 8 was to permit consolidation of public lands to facilitate their administration. The legislative history indicates that several State governments and a number of railroads owned land mixed in with the public lands in a checkerboard fashion. At no place in the hearings or the reports is there any indication that there was a problem created by Indian lands being mixed up with the public lands, that public lands could be exchanged for Indian lands, or that the Secretary of the Interior should be given the authority to permit the Indians to make such exchanges.

    ¹ Otherwise, there would be a contravention of R.S. 3732, as amended (41 U.S.C., 1946 ed., sec. 11) which provides "No contract *     *     * on behalf of the United States shall be made, unless the same is authorized by law *     *     *."
    ² Limited authority for the exchange of tribal lands and individually owned restricted lands is conferred by sections 4 and 5 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 25 U.S.C., 1946 ed., secs. 464 and 465), but this limited authority does not appear to include the exchanges here proposed. See also act of March 3, 1921 (41 Stat. 1225, 1239), in which the authority conferred is limited to four counties in the State of New Mexico.
    ³ See H.R. 903 and 2050, and S. 1182, 73d Cong., 2d sess.; Hearings on H.R. 6462, House Committee on Public Lands, 73d Cong., 2d; Hearings on H.R. 6462, Senate Committee on Public Lands and Surveys, 73d Cong., 2d; Materials on H.R. 6462, Secretary's File No. 2-147, General Legislation.

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DEPARTMENT OF THE INTERIOR

AUGUST 14, 1953

The Congress was aware of Indian lands and related matters, however, and when it wanted to refer to them, did so. Thus, in section 1 of the Taylor Grazing Act (43 U.S.C., 1946 ed., sec. 315), it provided that the Secretary could create grazing districts from parts of the public domain, but that this should not include Indian reservations. In section 11 (43 U.S.C., 1946 ed., sec. 315j), it provided how the moneys received from leasing ceded Indian lands should be allocated. If it had been the intention to permit the exchange of Indian lands, provision would doubtless have been made for the cancellation of the existing trust patents, as well as for the issuance of new trust patents, for trust patents may not be cancelled or issued without express statutory authority. See United States v. Getzelman, supra.

It is interesting also to note a similar language usage in the act of Congress of June 14, 1934 (48 Stat. 960), concerning the Navajo Indian Reservation. Section 2 of this Act provides:

This shows that the phrase "privately owned lands" does not automatically include Indian lands, and that when the Congress intended that it should include Indian lands, it expressly stated this intention. In other statutes the terms "privately owned lands" or "private lands" have been sharply contrasted with "Indian lands" and "public lands".⁴

It is true that by an act of June 23, 1938 (52 Stat. 1033, 43 U.S.C., 1946 ed., sec. 315m-l), known as the Pierce Act, which is closely related to the Taylor Act, it was provided that the Secretary could lease "State, county, or privately owned lands" located within a grazing district for the purpose of consolidating the land area, and that in at least one instance, a lease which refers to the Pierce Act as its authority was executed between the United States and Indian allottees.⁵ Apparently it was assumed in this instance that the term "privately owned lands" as used in this statute included Indian trust lands. The legislative history of this act shows, however, no reference to Indian matters whatsoever,⁶and the lease was not considered by the Solicitor. Moreover, so far as the Indian allottees were concerned, there was ample statutory authority to permit them to lease the allotted lands. The act of March 3, 1921 (41 Stat. 1232, 25 U.S.C., 1946 ed., sec. 393), permits the leasing of restricted allotments for grazing purposes; the act of June 25, 1910 (36 Stat. 856, 25 U.S.C., 1946 ed., sec. 403), permits Indian trust allotments to be leased for any purpose for a period not to exceed five years; and the lease here was made for a period which did not exceed five years. All that can be inferred from this transaction is that in administering the Pierce Act, the Bureau of Land Management was of the opinion that the Act gave authority to the Secretary of the Interior to execute a lease, on behalf of the United States, for Indian trust lands. Whether or not this was a proper interpretation need not be determined here.

It would seem utterly without merit to build an interpretation of the Taylor Grazing Act upon a doubtful administrative decision under the Pierce Act, and then to superimpose on this very weak base an implication of authority by necessity in the Secretary to take action to permit Indians to exchange their trust lands for public lands under section 8 of the Taylor Grazing Act.

Inasmuch as neither the Taylor Grazing Act nor any statute concerning Indians generally authorizes the arrangement for exchanges of Indian trust lands for public lands proposed in this amendment to 43 CFR, Part 146, I am of the opinion that the regulation should not be approved.

APPLICABILITY TO INDIAN LANDS OF ARIZONA
LAW REGULATING WITHDRAWAL OF GROUND WATER

Indian Lands--Applicability of Arizona Law Regulating Withdrawals of Ground Water.

The law of Arizona regulating the withdrawal of underground water cannot be applied to Indians on Indian reservations in the State in the absence of Congressional legislation specifically making such law applicable.

    ⁴ See for instance, the act of June 7, 1924 (43 Stat. 475), governing the San Carlos Indian Irrigation Project. Of particular significance is the act of April 21, 1904 (33 Stat. 211) which provides for the exchange of "private lands" included in an Indian reservation.
    ⁵ Indian Files 51353-41--Sacramento.
    ⁶ Cf. H. Rep. 1746, and S. Rep. 2159, 75th Cong., 3rd sess. It does not appear that any hearings were held on this act, and references to the bill in the Congressional Record at the time of enactment reveals nothing concerning the meaning of "privately owned lands."

1619

OPINIONS OF THE SOLICITOR

SEPTEMBER 10, 1953

It follows as a necessary corollary from this proposition that the law of Arizona regulating the withdrawal of underground water cannot be made applicable to Indians on Indian reservations in the State by agreement of the Department, Bureau of Indian Affairs, and Indian Tribal Councils as the interested parties.

To:            Assistant Secretary Lewis
From:        Solicitor
Subject:     Regulation of the Withdrawal of ground water

This refers to your memorandum of March 23, relating to the possibility of regulating the withdrawal of underground water in Arizona by State laws which will apply to all lands. In this connection you request my advice upon three questions:

I believe that the answers to questions (1) and (2) must be in the negative. As a general proposition, the application of State laws to Indians on Indian reservations is excluded unless Congress has specifically made them applicable, and this general proposition has been applied to Indian water rights, which have been held to be reserved exclusively for the benefit of the Indians. Winters v. United States, 207 U.S. 564 (1908); United States v. Walker River Irrigation District, 104 F. (2d) 334 (C.C.A. 9th, 1939). It has been specifically held that rights cannot be acquired in the waters of Indian reservations under State laws relating to the appropriation of waters and that only Congress can provide how rights in such waters may be acquired. United States v. McIntyre, 101 F. (2d) 650 (C.C.A. 9th, 1939). As the court said in this case of the Indian reservation waters: "Being reserved, no title could be acquired by anyone except as specified by Congress. * * * Likewise, the Montana statutes regarding water rights are not applicable, because Congress at no time has made such statutes controlling in the reservation."

If the consent of Congress is necessary to make statutes applicable to Indian water rights, it follows as a necessary corollary that this cannot be accomplished by agreement of the interested parties. It is moreover, a basic rule of Federal administrative law that Federal officers can make only such agreements as Congress has authorized them to make, and there is no Federal legislation which authorizes agreements to make the laws of Arizona relating to underground waters applicable to Indian lands. On the contrary, there is Federal legislation which would doubtless be construed to prevent officials of the Department and the Tribal Councils from making any agreement which would have the effect of disposing of Indian water rights. Revised Statutes 2116 (now 25 U.S.C., 1946 ed., sec. 177) prohibits any alienation of Indian "lands," and lands commonly include the appurtenant water rights.

Since no specific proposal for the orderly withdrawal of existing ground water supplies has been presented to me, a precise answer to question (3) cannot be given. I shall be glad, of course, to consider the legality of any such proposal if and when it is presented to me.

I think that I should add that the law of Arizona relating to percolating underground waters has become involved recently in a great deal of uncertainty and confusion which would make it difficult to regulate the withdrawal of such waters even if the law were applicable to Indian lands. It appears to have been assumed in Arizona ever since the decision in the case of Howard v. Perrin, 8 Ariz. 347, 76 Pac. 460, affirmed 200 U.S. 71 (1904), that underground waters, except underground streams flowing in defined channels, were the property of the owner of the soil, although it was not entirely clear whether the Supreme Court of Arizona would apply the doctrine of reasonable use or correlative rights to such waters. In Bristol v. Cheatham, 73 Ariz. 228, 240 P. (2d) 185 (1952), however, a majority of the Supreme Court of Arizona upset the doctrine of the Perrin case, and declared that percolating waters were public, and subject to appropriation. Upon rehearing, a majority of the court decided on March 14, 1953, not only to return to the doctrine of the Perrin case but to accept the doctrine of reasonable use. The court did not, however, decide precisely what would be a reasonable use. On the contrary, the court declared: "This rule does not prevent the extraction of ground water subjacent to the soil so long as it is taken in connection with a beneficial enjoyment of the land from which it is taken. If it is diverted for the purpose of making reasonable use of the land from which it is taken, there is no liability incurred to an adjoining owner for a resulting damage." While

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 10, 1953

the court indicated that the legislature might take some regulatory measures under its police power, it declined to say whether the power could be invoked "to affect the rights involved herein." The decision appears to have caused considerable consternation in the State. On March 18, 1953, the Arizona Legislature adopted and Governor Pyle signed Senate Bill No. 107, the effect of which is to close until March 31, 1954, a large area in the Central Valley of Arizona to further agricultural development dependent on ground water supplies. It is expected that new legislation of some sort will be prepared and submitted to the legislature in the interim.

INDIAN TIMBER SALE CONTRACTS--TRANSFER OF
ADMINISTRATION FROM SECRETARY TO DEPARTMENT
OF AGRICULTURE

Congress, in the exercise of its constitutional power to regulate commerce with the Indian tribes, may transfer the administration of Indian timber sale contracts from the Secretary of the Interior to the Secretary of Agriculture, and such a transfer would not impair the obligations of such contracts, nor be lacking in due process.

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Transfer of administration of Indian timber sale contracts to Secretary of Agriculture

In your memorandum of October 12, 1953, you raise the question whether the Bureau of Indian Affairs, in drafting legislation for terminating the Bureau's activities in the Pacific Northwest, may include a provision in such legislation for the transfer of the administration of Indian timber sale contracts ¹from the Secretary of the Interior and various subordinate officials of this Department to the Secretary of Agriculture.

It is apparently feared that the courts may hold that the purchasers of Indian timber may have a vested right to the discretion of the particular officials specified in the contracts. Indeed, you call attention to a line of cases in the Court of Claims²in which that court has held that a contractor is entitled to have the judgment of the particular contracting officer named in the contract rather than a superior official on the question whether the contract has been breached in a particular respect. But, as you point out, this question differs from the question whether Congress has the power to transfer the administration of a contract from one officer to another in the same or different agencies or departments of the Government. Such a transfer would be executory and would be made before any breach of the contract had been alleged.

The only conceivable ground for doubting the power of Congress to transfer the administration of a contract from one agency to another is that such a transfer would impair the obligation of the contract. The only clause of the Federal Constitution which prohibits such impairment is to be found in Article I, section 10, thereof. But the courts have repeatedly had occasion to point out that this clause provides only that "no State shall * * * pass any * * * Law impairing the Obligation of Contracts," and that it does not therefore limit the power of Congress, which in the exercise of one of its constitutional powers may enact legislation which has the effect of impairing the obligation of existing contracts. ³If Congress were to enact legislation authorizing the transfer of the administration of Indian timber sales contracts from this Department to the Department of Agriculture, it would do so in the exercise of its constitutional power to "regulate Commerce * * * with the Indian Tribes," and to make laws for "carrying into Execution * * * all other Powers vested by this Constitution in the

¹As an example of such contracts, there is attached to your memorandum a copy of a long term timber sale contract covering the Crane Creek Logging Unit on the Quinaielt Indian Reservation. This contract was approved by the Department on June 30, 1952, and under it the purchaser of the timber agrees to cut all timber covered by the contract prior to April 1, 1986. Under the terms of the contract, provision is made for the revision of stumpage rates by the "officer approving this contract," who is the Secretary of the Interior, but other functions or determinations are entrusted to the Commissioner of Indian Affairs, or the Area Director of the Bureau of Indian Affairs.
² There are mentioned in your memorandum the cases of Standard Dredging Company v. United States, 71 Ct. Cl. 218 1930): Cramp & Sons Ship Company v. United States, 72 Ct. Cl. 146 (1931): Karno-Smith Company v. United States, 84 Ct. Cl. 110 (1936); S. M. Siesel Company v. United States, 90 Ct. Cl. 582 (1940); Climatic Rainwear Company, Inc. v. United States, 115 Ct. Cl. 520 (1950). Such decisions of the Court of Claims have been followed in Brister & Koester Lumber Corporation v. United States, 188 F. 2d 986 (U.S. Ct. App., D.C., 1951) and United States v. Greendale Coop. .Ass'n., 79 F. Supp. 536 (D.C. Wis.. 1948).
³See Legal Tender Cases, 12 Wall. 457, 547-52 (1870); Sinking Fund Cases, 99 U.S. 700. 718-19 (1878); Mitchell v. Clark, 110 U.S. 633, 643 (1884); Louisville Bridge Co. v. United States, 242 U.S. 409. 418 (1917); New York v. United States, 257 U.S. 591, 601 (1922); Norman v. B. & 0. R.R. Co., 294 U.S. 240. 306-11 (1935); Guaranty Trust Co. of New York v. Henwood, 307 U.S. 247. 258-59 (1939).

1621

OPINIONS OF THE SOLICITOR

OCTOBER 29, 1953

Government of the United States, or in any Department or Officer thereof (Article I, section 8)." The legislative actions of the Congress are, to be sure, subject to the requirements. of due process, and Congress may not act arbitrarily. But the courts have said that they may inquire only whether what Congress has done has a seasonable relation to a legitimate end, and it could hardly be contended that a minor adjustment such as that involved in the executory transfer of the administration of a contract from one agency to another transcended the power of Congress. To deny such power to Congress would seriously impede the efforts which it has made in recent years to reorganize the Federal Government with the object of improving its efficiency.

Indeed, in the frequent reorganizations of the Federal Government in the last two decades, it has been common practice to make provision for the transfer of contracts from one agency to another. Such transfers have even been made by Executive orders under legislation which did not expressly provide for the transfer between agencies of contracts, or even of property rights.⁴ Under the First War Powers Act of December 18, 1941 (55 Stat. 838), which authorized the President "to make such redistributions of functions among executive agencies as he may deem necessary," a number of Executive orders were issued which, in transferring the functions of particular agencies to other agencies, made provision for the transfer of the contracts of the abolished agency to its successor.⁵ In various other reorganization acts which have been enacted by Congress since 1932⁶ provision has, been expressly made only for the transfer of "functions" and "property " between agencies but these provisions have been deemed broad enough to authorize some reorganization plans which direct the transfer of contracts from one agency to another.⁷ However, Congress has in at least one instance expressly provided for the transfer of contracts from one agency to another.⁸

Indian timber sales contracts are not, to be sure, Government contracts. They are rather tribal contracts between the particular tribe concerned and the purchasers of the timber,⁹ made subject to the approval of the Secretary of the Interior, and to his continuing supervision. Nevertheless, the supervision of the contracts is a governmental function, and, therefore, subject to the constitutional control of Congress. Indeed, in so far as the timber contracts are aspects of the management of tribal affairs, the power of Congress is even more manifest, for the courts have frequently declared that the power of Congress to manage tribal affairs for tribal benefit is "plenary," and not subject to inquiry by the courts.¹⁰

I am clearly of the opinion, therefore, that Congress has power to transfer the administration of Indian timber contracts from the officers of this Department to the Secretary of Agriculture. As Congress has already made similar provisions, it would indeed be inappropriate for me to question the constitutionality of such legislation.¹¹

    ⁴ See Executive Order No. 7496, dated November 14, 1936, transferring Recreational Demonstration Projects from the Resettlement Administration to the Secretary of the Interior, and Executive Order No. 7546, dated February 1, 1937 transferring Indian Subsistence Homestead Projects from the Department of Agriculture to the Department of the Interior. These orders were made under the National Industrial Recovery Act of June 16, 1933 (48 Stat. 195), and the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat. 115).
    ⁵ See Executive Order No. 9070, dated February 24, 1942, paragraphs 5 and 6; Executive Order No. 9177, dated May 30, 1942, paragraph 5; Executive Order No. 9839 dated April 19, 1943, paragraph 8; and Executive Order No. 9357, dated June 30, 1943, paragraph 1. These orders are printed in 50 U.S.C.App., following sec. 601.
    ⁶ Reorganization acts of June 30, 1932 (47 Stat. 382. 413); April 3, 1939 (53 Stat. 561); December 20, 1945 (59 Stat. 613); and June 20, 1949 (63 Stat. 203).
    ⁷ See Reorganization Plan No. 3 of 1947, sec. 8 (12 F.R. 4981, 61 Stat. 954); Reorganization Plan No. 22 of 1950, sec. 5 (15 F.R. 4365, 64 Stat. 1277); Reorganization Plan No. 23 of 1950, sec. 2 (15 F.R. 4365, 64 Stat. 1279).
    ⁸ See section 16 of the Commodity Credit Corporation Charter Act of June 29, 1948 (62 Stat. 1070, 1075. 14 U.S.C., sec. 714n), which provides: "The rights, privileges, and powers, and the duties and liabilities of Commodity Credit Corporation, a Delaware corporation, in respect to any contract, agreement, loan, account, or other obligation shall become the rights, privileges, and powers, and the duties and liabilities, respectively, of the Corporation."
    ⁹ See Algoma Lumber Co. v. United States, 305 U.S. 415 (1939).
    ¹⁰ See Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903), where the Court said: "Plenary authority over the tribal relations of Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government." See also Tiger v. Western Investment Co., 221 U.S. 286, 311 (1911); Sizemore v. Brady, 235 U.S. 441 449 (1914); United States v. Creek Nation, 295 U.S. 103, 109-10 (1935); Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937); Chippewa Indians v. United States, 301 U.S. 358 375 (1937).
    ¹¹ The Attorneys General of the United States have repeatedly declined to question the constitutionality of acts of Congress. See 31 Op. A.G.. 475, 476; 38 Op. A.G. 252, 253; 39 Op. A.G. 11, 16; 40 Op. A.G. 158, 160.

1622

DEPARTMENT OF THE INTERIOR

NOVEMBER 9, 1953

REVISION OF MEMBERSHIP ROLL OF THE LAC DU
FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Revision of Membership Roll of the Lac du Flambeau Band of
                 Lake Superior Chippewa Indians.

I am returning to you a proposed bureau letter, dated September 17, addressed to Area Director Foster, concerning a revised membership roll for the Lac du Flambeau Band of Lake Superior Chippewa Indians.

By this letter approval would be denied to a revised membership roll, approved by the Tribal Council on April 8, 1953. This roll was prepared by the council in accordance with an amendment to Section 1, Article II of the tribal constitution, which was approved by this Department on January 21, 1953. The amendment provides as follows:

As the tribal constitution was approved on August 15, 1936, the power of the Tribal Council to revise the 1936 census roll extended to August 15, 1953. Notwithstanding the fact that the Tribal Council completed its revision of the roll prior to this date, the position is taken in the proposed bureau letter that the Department may not now give its approval to the revised roll, and that the tribe must adopt still another constitutional amendment if it wishes to revise the roll. This position is predicated on the theory that not only tribal action but Departmental action must have been completed within the seventeen year period.

I cannot agree that this theory is inescapable, and that the considerable labors of the Tribal Council must now be rendered wholly useless.

The Tribal Council has experienced considerable difficulty in revising and perfecting its basic membership roll. The original constitution allowed only a period of two years for this purpose. By Amendment II to its constitution, the time within which the Tribal Council might exercise the power to make a revision was extended to twelve years from the approval of the constitution. Then, by Amendment IV, the time was extended to seventeen years from the same date. Needless to say, much time and effort was spent in securing these amendments, quite apart from the time and effort involved in revising the basic membership roll. Moreover, it seems particularly important that the membership roll be revised at the earliest practicable date because it contains the names of considerable numbers of Indians who appear to be affiliated with other Chippewa bands.

It would seem to me that a construction should not be indulged which would vitiate the labors of the Tribal Council. It would seem to be perfectly reasonable to construe the requirement of Secretarial approval as a condition subsequent. Otherwise the normal function of the commas which surround the phrase "with the approval of the Secretary of the Interior" would be denied. The function of these commas is to indicate that the enclosed phrase is parenthetical to the rest of the sentence. It is thus not a restriction on the time within which the Tribal Council must exercise its power to revise the roll. It is simply a limitation on the effectiveness of the action of the Tribal Council acting pursuant to its power.

Aside from any grammatical construction of the constitutional provision, it would be very hard to find any rational reason to explain why the Band would have desired to have restricted its ability to revise its basic membership roll by placing a time limitation not only upon the permissible action of its Tribal Council but also upon the Secretary of the Interior. It would be equally difficult to explain why the Secretary would have wanted to have placed a time limitation upon his authority to approve and make effective any revision of the basic membership roll prepared by the Tribal Council. The result would have been to place the onus upon the Tribe to expedite the action of the Secretary and his subordinates, even though this was a matter over which the Tribe had absolutely no control, and to punish the tribal council for the delays of the Department.

It is my opinion, therefore, that the constitutional provision does not require that Secretarial approval be given within seventeen years from the approval of the constitution in order to make effective a revision of the basic membership roll, prepared and submitted by the Tribal Council within the required seventeen year period. If the Tribal Council has not exceeded its powers in revising the roll, it may be approved hereafter even though certain data and explanations may be required before the Secretary will be able to pass upon the proposed

1623

OPINIONS OF THE SOLICITOR

DECEMBER 18, 1953

revision and even though the Secretary may find it necessary to direct that the revision be corrected in some respects.

I agree, of course, that further information and explanations must be secured from the Tribal Council before the revised roll can be approved by the Department, and the suggestions made in the paragraphs of page 2 of your bureau's letter numbered 1 to 4, inclusive, are proper, except the suggestion that another constitutional amendment be adopted. However, I must enter a caveat against the statements made in the third paragraph of the first page of the letter in which a distinction between a "revision of the 1936 census roll" and "a roll of the current tribal membership" is implicit. This distinction will only confuse the tribal council. To revise a roll is to prepare a roll which will reflect current membership.

The Secretary of the Interior has no jurisdiction to probate interests in restricted or trust property inherited by or devised to Indians who are Canadian nationals.

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Departmental jurisdiction to probate estates of Canadian Indians

In your memorandum of October 16 you request that I express an opinion on the question whether the Secretary of the Interior has jurisdiction under the act of June 25, 1910 (36 Stat. 855), as amended (25 U.S.C., 1946 ed., secs. 372 and 373), to probate interests in restricted or trust property inherited by or devised to Indians who are Canadian nationals.

Under the applicable legislation, the Secretary has authority to determine the heirs and approve or disapprove the wills of Indians who leave interests in property subject to restrictions on alienation, or held in trust by the United States.

You call attention to the fact that it has been a long-standing administrative practice of the Department to assume jurisdiction over the estates of Canadian Indians, and explain that this assumption of jurisdiction has been occasioned by the circumstances that Canadian Indians have held interests in allotments in common with American Indians, and by the consideration that it would facilitate the leasing or alienation of allotments to determine the identity of all persons owning interests therein. While you express doubt concerning the validity of this practice, you also point out that if it were to be upset, some questions might be raised "regarding the title of persons who have purchased property in reliance upon this Department's probate and heirship determinations."

As you are aware, the Solicitor of this Department has said in 57 I.D. 24, 26, that the powers o guardianship exercised by the department over Indians "extends only to dependent Indian communities within the borders of the United States," and has held, therefore, that it does not extend to Canadian Indians. Such Indians are legally in the same position as non-Indians, whether white men, or members of any other race.

Now, it is settled upon the highest authority that the Secretary has no duty to perform with respect to the protection of interests in Indian allotments which are owned by non-Indians. In Levindale Lead Co. v. Coleman, 241 U.S. 432 (1916), the Supreme Court held that the restrictions upon alienation imposed upon an Indian allotment were solely for the benefit of Indians who were wards of the United States, and that a white man might convey the interest in such allotment which he had inherited, notwithstanding the restrictions. In the recent case of Bailess v. Paukune, 344 U.S. 171 (1952), which involved a trust allotment inherited by the widow of an Apache Indian who was apparently of Mexican descent, the Court held that her inherited interest was subject to ad valorem State taxation, not withstanding the fact that the title was still in the United States. Said the Court:

I must conclude, therefore, that the Secretary of the Interior has no probate jurisdiction over interests in restricted or trust property inherited by Indians who are Canadian nationals. When such nationals inherit allotments or interests in allotments which are held in trust by the United States, fee

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DEPARTMENT OF THE INTERIOR

DECEMBER 18, 1953

patents should be issued to them as soon as their nationality and identity are established.

As for the effect of this ruling upon estates of Canadian Indians already probated, I do not believe that it will be very serious. In the first place, it is probable that the estates in this category are not very many. In the second place, since it is reasonable to assume that the heirs were correctly determined, the defect in the titles will be technical, and will have importance only if the property affected by it has been or should be sold. In such cases, the technical defect in the titles may readily be cured at the relatively moderate expense of an action to quiet title. Moreover, even if an heirship determination is shown to have been incorrect, good title may have been obtained by adverse possession.

An application made by a State to exchange lands outside of a grazing district pursuant to section 8 (c) of the Taylor Grazing Act, as amended, may not be rejected because the consummation of the proposed exchange will interfere with the administration and disposal of the remaining public lands.

The authority under section 7 of the Taylor Grazing Act, as amended, to classify lands does not extend to lands outside of a grazing district which are applied for in a State exchange under section 8 (c) of the act.

To:            The Secretary
From:        The Solicitor
Subject:     State applications to exchange lands under section 8 of the Taylor Grazing Act

The Director of the Bureau of Land Management has requested instructions as to the extent of his authority to reject applications by States to exchange lands outside of grazing districts under section 8 (c) of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315g (c) ). The Director states that two State applications have been filed for a 180-mile strip of land, presumably to be used for a pipeline right-of-way, and that if the applications are allowed, it will result in the separation of public lands on each side of the selected lands and prevent anyone having those public lands under grazing lease from driving his livestock from one portion of his lease to the other. He also states that, because the strip of land runs along a highway, allowance of the exchanges will prevent access to the highway from the remaining public Lands. He asks whether such applications may be rejected:

In my opinion, an application made by a State to exchange lands outside of a grazing district under section 8 (c) of the Taylor Grazing Act, as amended, may not be rejected on either of the grounds proposed by the Director.

Stated in other words, the Director's first question is whether he may take into account the public interest in considering State applications under section 8 (c).

Section 8 of the Taylor Grazing Act, as originally enacted on June 28, 1934 (48 Stat. 1269, 1272), authorized the Secretary of the Interior to accept on behalf of the United States any lands within the exterior boundaries of grazing districts as a gift "where such action will promote the purposes of the district or facilitate its administration." It also authorized and directed the Secretary "when public interests will be benefited thereby" to accept title to any privately owned lands within the exterior boundaries of a grazing district and in exchange therefore to issue patent for not to exceed an equal value of surveyed grazing district land or of unreserved surveyed public land. In addition, upon the application of any State to exchange lands within or without the boundary of a grazing district, the Secretary was authorized and directed:

On October 25, 1934, shortly after the passage of the act, section 8 was construed by the Solicitor of

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JANUARY 5, 1954

this Department as authorizing only those exchanges with States which would benefit public interests in the regulation of grazing on the public range under the Taylor Grazing Act and as imposing upon the Secretary of the Interior the duty, upon application by a State for an exchange, to determine whether the public interests would be benefited by the proposed exchange. (55 I.D. 9.)

Section 8 was completely revised by the amendatory act of June 26, 1936 (49 Stat. 1976). Where under the original section all provisions relating to gifts and exchanges, both private and State, were contained in one paragraph, the amendatory legislation appears in four subsections. As revised, subsection (a) authorizes the Secretary to accept gifts of lands within or without the exterior boundaries of a grazing district "where such action will promote the purposes of the district or facilitate the administration of the public lands." Subsection (b) authorizes the Secretary to exchange lands within or without the boundaries of a grazing district for privately owned lands "when public interests will be benefited thereby." Subsection (c) provides:

Subsection (d) contains general provisions relating both to private and State exchanges not material to this discussion.

The subsection relating to State exchanges, in mandatory language, directs the Secretary to proceed with an exchange upon application by a State. It places two limitations upon the State's selection of lands-first, that no State shall be permitted to select lieu lands in another State and, second, that no State shall select lands in a grazing district unless the lands offered by the State lie within such grazing district and the selected lands lie in a reasonably compact body which is so located as not to interfere with the administration or value of the remaining land in such district for grazing purposes. Thus, aside from the requirement that the selected land must be within the State, there is no limitation imposed by the subsection on the selection of lands outside of grazing districts. No discretion is vested in the Secretary to determine whether the consummation of a State exchange of lands otherwise available outside of grazing districts will "facilitate the administration of the public lands" as is provided in subsection (a) with respect to gifts; whether the public interests will be benefited, as is provided in subsection (b) with respect to private exchanges; or whether the selected lands are in a reasonably compact body so located as not to interfere with the administration or value of the remaining lands, as is provided in that part of subsection (c) governing State exchanges of lands within grazing districts. Nothing in the subsection indicates that the Secretary may take into account the effect that the consummation of such an exchange may have on the administration or disposal of other public lands outside of grazing districts.

The legislative history of the section shows rather plainly that the Congress intended to strip the Secretary of any discretion he may have had under section 8 of the original act to consider the public interest in acting upon State exchanges. Members of the Senate Committee which had the section under consideration expressed their opinion that the intent of Congress in the original act was to make State exchanges mandatory upon the Secre-