Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1626-1650

1626

DEPARTMENT OF THE INTERIOR

JANUARY 5, 1954

tary and stated emphatically their intention to redraft the section so that there could be no doubt that the Secretary was to have no discretion to take into account the public interests in acting upon State applications for exchanges. ^l The Committee reports on the measure state that the purpose of the amendment of section 8 is to make mandatory the exchange of lands upon the application of a State.²

Moreover, the Department has, since the 1936 amendment of the section, construed the section as requiring .the consummation of State exchanges, where the State has met the other requirements of the section. Thus, while the regulations relating to State exchanges under the original act stated that exchanges might be made when such ex changes were in the public interest (55 I.D. 200, 484), the regulations promulgated shortly after the passage of the amendatory act deleted any requirement that a benefit to the public interest must be shown. (55 I.D. 582; 43 CFR Part 147.)

One of the first State applications to exchange lands to come before the Department after the passage of the act of June 26, 1936, was considered in State of Montana (A-20068, November 3, 1936, modified January 13, 1937). In reviewing a decision by the Commissioner of the General Land Office which had rejected the State's application made under the act of June 28, 1934, the Acting Secretary said:

After referring to the amendment made to the section in 1936 and after quoting the first paragraph of subsection (c) , the Acting Secretary continued:

In several cases the Department, recognizing the mandatory language of section 8 (c), has held that a protest against the allowance of a State's exchange application, made by one who had the selected public land outside of a grazing district under lease pursuant to section 15 of the Taylor Grazing Act (43 U.S.C., 1946 ed., sec. 315m) must be dismissed so long as the State continued to assert its right to select the land. David Hunt v. State of Arizona, A-23246 (April 27, 1943); Secundino Cocio v. State of Arizona, A-23409 (January 30, 1943, February 23, 1943). Other instances of the Department's recognition that in processing State exchange applications, it is without discretion in the matter of determining whether an exchange application submitted by a State is in the public interest are to be found in Solicitor's Opinions M-31956 (October 26, 1942), and M-33608 (April 22, 1944), and in the case of State of California, A-25411 (June 2, 1949, supplemented on August 4, 1950). In discussing the two categories of exchanges provided for in section 8 of the amendatory act--private and State--the Department stated, on reconsideration of the case of Sidney B. Moeur, State of Arizona, and New River Land and Livestock Company, A-25548, 25570 (original decision dated November 9, 1949), on March 31, 1950:

I agree with this statement and conclude that the Director of the Bureau of Land Management has no authority to reject 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, on the ground that the consummation of the exchange would seriously interfere with the

¹ See Hearings before the Committee on Public Lands and Surveys, United States Senate, on S. 2539, 74th Cong., 1st sess. pp. 47-49.
² See Senate Report No. 1005, 74th Cong., 1st sess., and Senate Report No. 2371, 74th Cong., 2d sess.

1627

OPINIONS OF THE SOLICITOR

JANUARY 5, 1954

In this connection, however, the Director's attention should be called to the provision in subsection (d) which authorizes either party to an exchange based on equal values to reserve easements or rights of use. It would appear that much of the difficulty envisioned by the Director could be eliminated, where land is selected along a highway, if the Government were to reserve the right of access to the highway across the selected land.

Section 7 of the Taylor Grazing Act, as originally enacted, authorized the Secretary, in his discretion, to examine and classify any lands within grazing districts which were more valuable and suitable for the production of agricultural crops than for native grasses and forage plants and to open such lands to homestead entry.

Before any grazing districts, provided for by section 1 of the act (43 U.S.C., 1946 ed., sec. 315), were established, all of the vacant, unreserved, and unappropriated public lands in 12 of the western States were temporarily withdrawn from settlement, location, sale or entry and reserved for classification and pending a determination of the most useful purpose to which such lands might be put in consideration of the provisions of the Taylor Grazing Act (Executive Order No. 6910, dated November 26, 1934, 43 CFR 297.11). A similar order later withdrew and reserved the public lands in 12 other States (Executive Order No. 6964, February 5, 1935, 43 CFR 297.12). Executive Order No. 6910 was held in a Solicitor's opinion of February 8, 1935 (55 I.D. 205) to permit the establishment of grazing districts under section 1 of the act but to prevent the exchange of lands under section 8, the sale of isolated tracts under section 14, and the leasing of lands under section 15 of the act. The two general withdrawals were amended at various times during the years 1935 and 1936 to permit exchanges, sales and leases under the act. (Executive Order No. 7048, May 20, 1935, 43 CFR 297.14; Executive Order No. 7235, November 26, 1935, 43 CFR 297.15; and Executive Order No. 7363, May 6, 1936; 43 CFR 297.17.)

However, all of the public lands in the named States having been withdrawn except from the operation of the Taylor Grazing Act, the operation of other public-land laws virtually ceased in those States. The initiation of rights to the public lands under those laws was prevented where the initiation of such rights depended upon the availability of vacant, unreserved, and unappropriated public lands. In addition, the withdrawals prevented the satisfaction of many rights which had previously been granted to the States and to private individuals by the Congress to select vacant, unreserved, and unappropriated public lands for various purposes. Many of these rights had been outstanding for years. Thus States which had unsatisfied school grants were precluded from selecting lieu lands for those lost to the States under the original grants because of settlement, because of their inclusion in Indian or other reservations, or because of their mineral character. (See 43 U.S.C., 1946 ed., sec. 851 et seq.)

It is against this background that the amendment of section 7 on June 26, 1936, must be considered. As amended, section 7 (43 U.S.C., 1946 ed., sec. 315f), in so far as it is pertinent to this discussion, provides:

The section added to the category of lands which the Secretary might, in his discretion, examine and classify those lands withdrawn by the two general withdrawal orders and authorizes the examination, classification, and opening of those lands which he finds to be "more valuable or suitable for any other use than for the use provided for in this Act, or proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grants." Nothing in the section indicates that the exchanges provided for in section 8 (c) are within its scope.

The section permits classification for the satisfaction of outstanding exchange rights. It thus embraces only those exchange rights which had previously been granted. It does not include the right not previously enjoyed by the States to exchange lands which they owned with the United States, conferred by Section 8 (c).

1628

DEPARTMENT OF THE INTERIOR

JANUARY 5, 1954

A construction of section 7 to permit the classification of lands outside of grazing districts applied for by States under section 8 (c) of the act would be inconsistent with the stated purpose of section 8 (c). The power to classify in one's discretion implies the power to refuse to classify. Thus by a refusal to classify or by a classification for another purpose than a State exchange, a State's application could be defeated. Surely it cannot have been intended to permit, by means of the power to classify, the rejection of the privilege conferred under section 8 (c). A more reasonable construction of section 7 is that lands applied for under section 8 (c) are not within the scope of the classification power conferred.

I conclude, therefore, that the authority of the Secretary of the Interior 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 by a State under section 8 (c) of the Taylor Grazing Act.

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Adoption of Nevada State Health Codes by Shoshone-Paiute Tribe

On October 21, 1953, the Shoshone Pauite Business Council enacted an ordinance adopting the Nevada State Health Code.

In the Bureau of Indian Affairs this tribal enactment has been interpreted as an exercise of the power of the Council under section 1 (k) of Article VI of the tribal constitution, which empowers the council to adopt ordinances on the subject of law and order, and a letter has been prepared for departmental signature in which the enactment is rescinded on the ground that it would require the tribal council to set up a tribal Board of Health similar to the State board to enforce the State Health law. On this theory, the time for rescission would expire today.

It is believed, however, that the tribal enactment has been misconstrued. It would appear to make provision for the enforcement of the State health laws on the reservation by the State Board of Health pursuant to the act of February 15, 1929 (45 Stat. 1185), as amended (25 U.S.C., 1946 ed., sec 231), which permits State health laws to be adopted by tribal governing bodies with the approval of the Secretary of the Interior under such rules and regulations as he may prescribe. Under the statute, however, the State health law may not be applied on a reservation where "a duly constituted governing body exists until such body had adopted a resolution consenting to such application." Section 84.78 of 25 CFR, which regulates the hospital and medical care of Indians, permits tribes organized under the Indian Reorganization Act to adopt State health laws, subject to the approval of the Secretary of the Interior. Any resolution adopted pursuant to the act of February 15, 1929, and the regulation, is thus not subject to rescission within 90 days as provided in the tribal constitution. It may be approved at any time.

It is recommended that you sign the substitute letter prepared in this office for your signature. In this letter the tribal resolution is approved.

Section 9 of the act of June 28, 1946 (60 Stat. 333, 336) which prohibits "further construction work on the Crow reservation without the consent of the Crow tribe and the irrigation districts affected" applies only to the extension of an existing irrigation system on the Crow reservation and is not applicable to the construction of the Yellowtail dam.

The congress has specifically authorized the Yellowtail dam as a reclamation and power development and has provided that in undertaking the project and carrying out his plans, the Secretary shall be governed by the Federal Reclamation Law (Flood Control Act of 1944, 58 Stat. 887). Section 7 of the organic Reclamation Act of June 17, 1902 (32 Stat. 388) gives the Secretary of the

1629

OPINIONS OF THE SOLICITOR

FEBRUARY 3, 1954

To:            The Secretary
From:        The Solicitor
Subject:     Condemnation of Indian lands needed for the Yellowtail Dam and Reservoir Site

On October 27, 1952, this office released an opinion (M-36148) to the Secretary in which the conclusion was reached that because of section 9 of the act of June 28, 1946 (60 Stat. 333, 336), the United States is without power to construct the Yellowtail dam and reservoir on Crow Indian tribal lands, and that despite specific authorization of the dam in the Flood Control Act of 1944, it cannot be built.

An extensive examination of this entire situation has been made by this Department and the following conclusions arrived at:

a. The Yellowtail dam and reservoir was specifically authorized and approved by the Congress as a part of the Flood Control Act of 1944.
b. The previous opinion of this Department is largely based upon a provision of the act of June 8, 1946, which said:

Taken alone and by itself, this language might be construed to prevent the construction of the Yellowtail dam on the Crow Indian reservation. An examination of that act and of its history, however, gives a different meaning to the language above set forth.

To understand the act, it is necessary to recall that there is an already existing Crow Irrigation project on the reservation, and that the Crows had previously complained to the Congress that they were not in favor of the extension of that project; that they were being given irrigation systems which they did not want, to irrigate lands which they did not wish to irrigate, etc.

Attention should first be directed to the title of the act of 1946, which is "To provide for adjustments in connection with Crow Irrigation project, Crow Indian Reservation, Montana." The act, therefore, obviously was intended to apply to the existing irrigation project, and no mention of the Yellowtail dam is made in the title or the body of the act. Furthermore, this Department in its reports on the bill stated:

Still further, the committee reports of the House and Senate indicate clearly that the Yellowtail dam was not in the contemplation of the Congress in connection with the 1946 act.

It is considered most unlikely that this language, primarily relating to another matter, was intended, without any specific reference to it, to prohibit construction of the Yellowtail dam, which Congress had just specifically authorized at the previous session. Certainly it is not to be lightly inferred that an act with this background and with no reference to the specific previous authorization of the Yellow tail dam was intended, by language which is at least ambiguous, to repeal a specific authorization of the Congress.

c. There can be no question that the United States possesses the inherent right of eminent domain in the lands required for the construction of this project, even though they be tribal lands of the Crows. To hold otherwise is to say that the Crow nation holds land in a more sacred title than do any other landowners in the United States, including the States themselves and their political subdivisions.
d. It also seems apparent that the United States has the authority to condemn the Indian tribal lands of the Crows and that further congressional action is not required. The Congress has specifically authorized the Yellowtail dam as a reclamation and power development and has provided that in undertaking such projects the Secretary of the Interior shall be governed by the Federal Reclamation Laws (Flood Control Act of 1944, 58 Stat. 887). Section 7 of the Reclamation Act of 1902 (32 Stat. 388) grants specific authority to the Secretary of the Interior to acquire property in the name of the United States by condemnation when needed for a reclamation project. It is also pertinent that the Yellowtail dam was one of the dams in the Missouri Basin for which appropriations for that general Basin program have been made. It might be true that congressional action specifically reciting that the act of 1946 was not intended to affect the Yellowtail dam would clear up the supposed ambiguity in the situation, but in my opinion such an ambiguity does not actually exist when proper evaluation of the background and purposes of the 1946 act is taken into consideration.

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DEPARTMENT OF THE INTERIOR

FEBRUARY 3, 1954

e. If there is any validity in the views previously expressed by this Department to the effect that this 1946 act prohibits the construction of the Yellowtail dam, it will be very simple indeed to plead that fact in an answer to the first condemnation suit that is brought, and the matter can then be judicially determined, a procedure which would probably result in any event, no matter what legislation the Congress might enact.

For all of the foregoing reasons, therefore, it is my opinion that there is authority in the Department to proceed with the construction of the Yellowtail dam and to bring such condemnation actions as may be necessary under the provisions of the existing reclamation laws to acquire possession and title thereto.

Tribal Ownership of Lands--Ordinances Constituting Enforceable Contract on the Part of the Government.

Subject to judicial determination in pending litigation, it is believed that the lands of the Colorado River Reservation are held in trust by the United States for the benefit of the members of all tribes of the Colorado River and its tributaries who have or who may be located thereon under Federal authority.

The ordinance of the Colorado River Indian Tribal Council permitting the settlement by the Navajo and Hopi on the reservation constitutes an enforceable agreement on the part of the United States Government.

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Colorado River Indian Reservation Development

This is responsive to your letter of January 5, 1954, requesting my opinion on five specific questions regarding the legal status of the development of the Colorado River Indian Reservation.

Question No. 1 calls for an opinion of the tribal ownership by the Colorado River Indian Tribes. Solicitor Margold wrote a series of three opinions for the Commissioner of Indian Affairs in 1936, copies of which are among the attached papers. It was stated at that time, although the reservation was legislatively created in 1865 for the Indians of the Colorado River and its tributaries, the lapse of a period of over 70 years without the location of any other tribes thereon, coupled with subsequent legislation and Executive orders creating separate reservations for each tribe within the Colorado River watershed, has had the effect of abandonment of the original purpose for which the reservation was created. He concluded that the members of the Mohave and Chemehuevi Tribes who had been in actual occupancy of the lands of the Colorado River Reservation had succeeded to the ownership under a Federal trust to the exclusion of the other Indian tribes along the Colorado River and its tributaries.

The argument of Solicitor Margold in 1936 was possibly strengthened by the Supreme Court in United States v. Santa Fe Pacific R. Co. in 1941 (see 314 U.S. 339), which considers to some extent the act of March 3, 1865 (13 Stat. 559), creating the Colorado River Reservation for the benefit of the Indians of said river and its tributaries. The Court observed that although the purpose of locating Indians of the Colorado River watershed was expressed in that act it only amounted to an offer of lands to those Indians. In other words, the creation of the Colorado River Reservation did not per se extinguish any Indian title which the Indians claimed to lands outside that reservation as it did not vest any title in them, at least in their failure to locate thereon. However, in 1881, the Walapais requested that a separate reservation be created for them and in 1883 an Executive order creating the Walapai Indian Reservation was signed by President Arthur. As to this reservation for the Walapais, the Court said:

In the light of this case, it can be argued that the Navajo, the Hopis, and all the other tribes along the Colorado River and its tributaries for whom

1631

OPINIONS OF THE SOLICITOR

FEBRUARY 12, 1954

separate reservations have been crested must be deemed to have relinquished their claims to all lands lying beyond the boundaries of their separate reservations. Therefore, their acceptance of other reservations has divested them of their right to share in the ownership of the Colorado River Indian Reservation.

There is another side to the argument, however, having in mind the following sentence expressed by the Court: "But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards."

It appears in the Santa Fe Pacific case that the Walapais were attempting to quiet title in lands outside the Walapai Reservation which the rail road claimed under the act of July 27, 1866 (14 Stat. 292), which provided: "The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act." It is at once apparent that Congress expressed its intent in the act of 1866 to extinguish Indian titles to certain railroad lands. To the contrary, however, Congress created the Colorado River Reservation for the benefit of all Indians of the Colorado River watershed, and the plain intent was to create rather than to extinguish Indian titles to those lands. The 1865 act was construed to be an offer. It is fundamental that an offer may be accepted at any time until it is withdrawn. There was never a withdrawal of the offer expressed by the 1865 act. It stands today as it originally stood. To illustrate further, let us assume arguendo that the Navajos never claimed any title or right to the lands which are now in the Colorado River Reservation. When they entered into a treaty in 1868 (15 Stat. 667-672), expressly relinquishing their claims to all lands not within the Navajo Reservation, can it be said that they relinquished for all time the right to accept an offer of new lands which they had never claimed? Clearly, if the offer were made subsequent to their treaty there was no relinquishment. Likewise, where the offer has been kept open after all tribes affected had obtained separate reservations in one form or another, there is a very serious doubt that Congress intended them to be foreclosed from ever occupying the Colorado River Reservation. This matter deserves far more direct consideration than was given in the Santa Fe Pacific case. Indeed, Congress might at any time take some further action which will greatly enlighten the question, and perhaps it already has in recent years.

The question of ownership of the Colorado River Indian Reservation is further complicated. As you apparently suspected, the ownership of the Colorado River Indians is very definitely in litigation and the ultimate outcome can by no means be predicted at this time. Case No. 283, in the Indian Claims Commission, and Case No. 424-52, in the Court of Claims, both involve claims filed by the Colorado River Indians arising out of the colonization of other Indians on the Colorado River Indian Reservation. In its answer to each claim, the Department of Justice has taken the position that the Colorado River Reservation was created for the benefit of a class of Indians; that the purpose has never been abandoned; and that the words of the act of 1865 did not operate to convey any compensable title to any of the Indian tribes.

Passing now to Question No. 2, former Solicitor White in a memorandum to the Secretary dated February 26, 1952, stated that Ordinance No. 5 of the Colorado River Indian Tribes was contractual in its nature, and was not subject to the referendum provision of the tribal constitution.

While Ordinance No. 5 is not by its terms an express agreement between the Colorado River Indian Tribes and the Government, it can easily be said to constitute an offer which was accepted by an overt act on the part of the Government. Congress has appropriated money which has been used on the projects required under Ordinance No. 5. Whether Congress has an unqualified right to relocate Navajos and Hopis on the Colorado River Reservation without making any contract with the Colorado River Indian Tribes will be judicially determined for nothing appears in the legislative history of the Navajo-Hopi Rehabilitation Act of 1950 (64 Stat. 44-47), which indicates the precise intent of Congress. However, the Colorado River Indian Tribes offered more than lands on the reservation by Ordinance No. 5. In addition, they offered to adopt the Indians colonized.

On the Government's side of the bargain, the consideration expressed was to be the subjugation of 15,000 acres of land within the Northern Reserve (occupied entirely by the Colorado River Indians) and supplying them with adequate irrigation and drainage facilities at no cost to the tribes. This project is substantially completed at this time. As near as I can conclude from information supplied by the Bureau of Indian Affairs, about 13,350 acres out of 15,000 have been completed at this time.

In conclusion, although the question of ownership of the unallotted lands of the Colorado River Reservation is unsettled at this time, Congress has in the Navajo-Hopi Rehabilitation Act of 1950 certainly indicated its intent to carry out a policy of relocation of Navajo and Hopi Indians there.

1632

DEPARTMENT OF THE INTERIOR

FEBRUARY 12, 1954

Therefore, until it is declared to be illegal, the Secretary of the Interior is bound to carry out the policy of Congress as an administrator, and in doing so to approve further expenditures for that purpose.

Indian Lands--Allotted and Heirship Lands--Issuance of Patents in Fee--Necessity for applications---Discretion of Secretary of the Interior--Effects of Issuance of Patents in Fee--Termination of Indian Trusteeship--Civil and Criminal Jurisdiction over Patent in Fee Indians.

The statutes authorizing the Secretary of the Interior to issue patents in fee to Indian allottees or to the heirs of such allottees do not permit him to issue such patents unless the allottee or his heirs have made an application for the issuance of such patents. As the issuance of a patent in fee abrogates the tax exemption of the land covered by the patent, the requirement of an application by the allottee or his heirs must be implied.

The issuance of patents in fee to Indian allottees or their heirs do not result in extinguishing Indian guardianship or trusteeship, since the restrictions on the alienation of allotted lands are in the nature of covenants with the land, and are not personal to the allottee. As long as a patent-in-fee Indian maintains his tribal relations, he is entitled to the same consideration and services as other members of his tribe.

Under the statutes authorizing the Secretary of the Interior to issue patents in fee to Indian allottees or their heirs, he has a wide area of discretion, and the issuance of such patents may not be compelled by mandamus even if a showing of competency can be made, for the Secretary may legitimately consider other factors than competency, such as the effect of the issuance of a patent in fee upon the consolidation of Indian lands.

When an Indian to whom a trust patent has been issued under the General Allotment Act receives a patent in fee for the whole of his allotment, he becomes subject to the laws, both civil and criminal, of the State of his residence, notwithstanding the fact that he may subsequently come into the possession of other trust lands by inheritance, or devise, or further allotment of surplus lands, subject to the qualification, however, that he does not become amenable to State jurisdiction with respect to those matters which are reserved to Federal jurisdiction by Federal statutes.

The death of an Indian allottee does not in itself terminate the trust to which the allotment is subject, and while the Secretary of the Interior may issue patents in fee to his heirs, he is not compelled to do so, and may not do so unless the competent heirs have applied for the same.

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Letter from Paul L. Fickinger relating to issuance of patents in fee

This responds to your memorandum of September 8 relating to a letter dated September 17, 1952, from Mr. Paul L. Fickinger, Area Director of the Billings Area Office of the Bureau of Indian Affairs, to Mr. Dillon S. Myer, who was then Commissioner of Indian Affairs.

This office has been advised that while no response was ever formally made to the letter, the questions raised therein were informally discussed with Mr. Fickinger when he came to Washington shortly after the letter was received, and it was explained to him that his impression that Indian trusteeship could be extinguished by exercising the powers conferred upon the Secretary of the Interior by existing legislation was not well founded. I believe that the explanation so given him was correct.

Mr. Fickinger in his letter called attention to two statutes which, he believed, would make it possible to issue patents in fee to competent Indians, whether or not they made application for the issuance of such patents. He refers to the acts of May 8, 1906 (34 Stat. 182, 25 U.S.C., 1946 ed., sec. 349), amending section G of the General Allotment Act of February 8, 1887 (24 Stat. 390), which provided that the Secretary of the Interior "may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple * * * " and to the act of May 29, 1908 (35 Stat. 444, 25 U.S.C., 1946 ed., sec. 404), which

1633

OPINIONS OF THE SOLICITOR

FEBRUARY 15, 1954

provided that the Secretary of the Interior "shall ascertain the legal heirs" of deceased allottees, and "if satisfied of their ability to manage their own affairs shall cause to be issued in their names a patent in fee simple" for their lands.

It is true that neither the act of May 8, 1906, nor the act of May 29, 1908, in terms requires that an application for a patent in fee must be made by the allottee or heirs of an allottee, but the courts have nevertheless held that a patent in fee may not properly be issued by the Secretary of the Interior under authority of the cited acts without the application or consent of the allottee. It had previously been held in Choate v. Trapp, 224 U.S. 665 (1912), that the tax exemption of allotted lands was a vested right of the allottees, and could not constitutionally be abrogated even by Congress. As the issuance of a patent in fee would abrogate the tax exemption, the courts held that a requirement of an application by the allottee must be implied.¹ Most of the court contests were an outgrowth of the issuance by the Department of thousands of fee patents in 1918 and the following years without the application or consent of the allottees in an effort to hasten their emancipation.² After the courts had held that the issuance of the forced fee patents was not authorized, Congressional recognition of that principle was given in legislation authorizing their cancellation by the Secretary of the Interior in cases in which the lands had not been mortgaged or sold.³

The act of May 8, 1906, in so far as it applies to the issuances of patents in fee to the heirs of deceased allottees, was virtually superseded, moreover, by the act of May 29, 1908,⁴ which in turn was practically superseded by sections 1 and 2 of the act of June 25, 1910 (36 Stat. 855, 856), as amended by the act of February 14, 1913 (25 U.S.C., 1946 ed., sets. 372 and 373). This act authorized the Secretary of the Interior to deter mine the heirs of deceased allottees, and permitted allottees to make wills disposing of their allotments with the approval of the Secretary of the Interior; and also authorized the Secretary to issue patents in fee to competent heirs or devisees, or to cause their lands to be sold or partitioned under certain circumstances.⁵Although the 1910 act, like the preceding legislation, was silent on the question whether a patent in fee could be issued to the heirs of a deceased allottee without their application or consent, it has been held that a patent in fee could not be issued to an heir of an allottee unless he had made application for the same.⁶

Moreover, even if patents in fee could be issued to allottees or the heirs of allottees without their application or consent, such action would not result in extinguishing Indian guardianship, or trusteeship. A patent in fee Indian, who maintains his tribal relations, is entitled to the same consideration and services as other members of his tribe. The reason for this is that the restrictions on the alienation of allotted lands are in the nature of covenants running with the land, and are not personal to the allottee. Thus, the issuance of a patent in fee to an Indian does not betoken complete emancipation but merely enables the patentee freely to alienate the particular tract of land covered by the patent. If he inherits other land, he cannot alienate such land, unless another patent in fee is issued to him.⁷

On the basis of Mr. Fickinger's letter, you have formulated three particular legal questions relating to the issuance of patents in fee and their effect.

The first of these questions is whether under existing law the Secretary of the Interior has the power to issue patents in fee to the heirs of an allottee, and whether he must do this in the event that he ascertains that an heir has the ability to manage his own affairs. This question has already been partly answered; the Secretary does have the power under existing law, namely, the act of June

    ¹ See United States v. Chehalis County 217 Fed. 28 (D.C. Wash., 1914); Morrow v. United States, 243 Fed. 854 (C.C.A. 8th, 1917); United States v. Benewah County, 290 Fed. 628 (C.C.A. 9th, 1923); United States v. Dewey County, 14 F. (2d) 784 (D.C.S.D., 1926); United States v. Comanche County, 6 Fed. Supp. 401 (DC. Okla., 1934); Board of Commissioners of Caddo County v. United States, 87 F. (2d) 55 (C.C.A. 10th. 1936) ; United States v. Board of Commissioner of Pawnee County, 13 Fed. Supp. 641 (D.C. Okla., 1936); United States v. Ferry County, 24 Fed. Supp. 399 (D.C. Wash.. 1938); United States v. Nez Perce County, 95 F. (2d) 232 (C.C.A. 9th. 1938); United State v. Lewis County, 95 F. (2d) 236 (C.C.A. 9th. 1938); Glacier County v. United States, 99 F. (2d) 733 (C.C.A. 9th, 1938); Board o/ Commissioners of Jackson County v. United States, 100 F. (2d) 929 (C.C.A. 10th. 1938).
    ² For a history of this episode, see H. Rep. No. 669, 76th Cong. 1st sess.
    ³ Act of February 26, 1927 (44 Stat. 1247), as amended by the act of February 21, 1931 (46 Stat. 1205); United States v. Nez Perce County, Idaho, 95 F. (2d) 232, 236 (C.C.A. 9th, 1938).
    ⁴ See case of Joseph Black Bear, 38 L.D. 422 at 424.
    ⁵ Under section 1 of the 1910 act, the Secretary could cause the lands to be sold if he found one or more of the heirs to be incompetent.
    ⁶ See United States v. Ferry County, 39 F. Supp. 1007 (D.C. Wash., 1941) and United States v. Nez Perce County, Idaho, 95 F. (2d) 232 (C.C.A. 9th. 1938).
    ⁷ See Johnson v. United States, 283 Fed. 954 (C.C.A. 8th. 1922); United States v. Kilgore, 111 F. (2d) 665 (C.C.A. 10th, 1940).

1634

DEPARTMENT OF THE INTERIOR

FEBRUARY 15, 1954

25, 1910, as amended, ⁸to issue patents in fee to the heirs of an allottee, provided that they have made application for the issuance of such patents, and are found to be competent to manage their own affairs. As to the further question whether the patents in fee must be issued by the Secretary to such heirs as he finds to be competent, it may be said that the Secretary has under the act of June 25, 1910, as amended, a wide area of discretion, notwithstanding the language of the statute which is that if "the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent." In the context of the whole statute, the purpose of which appears to be to confer large discretionary powers on the Secretary, it is clear that the word "shall" is not mandatory. In law, the words "shall" and "may" are often convertible terms, and the almost identical language of the act of May 8, 1906, has been construed by the Department and by the courts as permissive rather than mandatory.⁹Since the Secretary must be "satisfied" of the competency of an applicant for a patent in fee, it is apparent that he has discretion. Indeed, there are other factors than competency that may legitimately be considered, and have been considered, by the Secretary in deciding whether to issue a patent in fee. Thus, it has been established policy to consider whether the issuance of the patent would adversely affect the consolidation of Indian lands. 25 CFR sec. 241.2 (a) expressly declares that "the issuance of a patent in fee to any Indian holding land under a trust patent is discretionary," and subdivision (c) of the same section of the regulations provides that a patent in fee may be denied "when the land applied for lies within an area largely occupied and used by Indians whose lands are held in a trust or restricted status."

Your second specific question is whether an Indian, having received a patent in fee to his allotment becomes subject to the laws, both civil and criminal, of the State in which he resides, notwithstanding the fact that he may later come into the possession of other trust lands. The answer to this question would seem to depend upon how section 6 of the General Allotment Act of February 8, 1887, as amended by the act of May 8, 1906, is read in the light of various circumstances under which the question might arise. Section 6, as amended, declares that at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee "then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside * * *." In the first place, the allotment for which the patent in fee has been issued must have been made pursuant to the General Allotment Act, or some other allotment act which embodies its provisions by reference.¹⁰ There are, however, many allotments which have not been so made. In the second place, the patent in fee must have been issued to the original allottee rather than to an heir of the allottee. The Department has held that an Indian who holds an allotment by inheritance or devise does not become subject to the criminal laws of the State of his residence when a patent in fee has been issued to him,¹¹ and the same conclusion would seem to hold with respect to the civil laws of the State of his residence.¹² In the third place, it would seem logical to hold that as long as part of an original allotment is still held in trust by the United States for an allottee, he is not subject to the civil or criminal laws of the State of his residence even though a patent in fee has been issued to him for the remainder of his allotment.¹³ In the fourth place, the allottee to whom a patent in fee has been issued for the whole of his original allotment may subsequently receive another allotment in trust by neither inheritance nor devise but by virtue of the enactment of a statute providing for additional allotments from the surplus lands of the tribe. In State v. Munroe, 274 Pac. 840 (Sup. Ct. Mont., 1929), the court held that a Blackfeet Indian who had been allotted under the act of March 1, 1907 (34 Stat. 1035), and received a patent in fee for this allotment, was subject to State criminal jurisdiction, notwithstanding the fact that he had subsequently received a trust allot-

    ⁸ In Sol. Op. M-36003, dated June 7, 1950 the Department held that the Secretary also has the power to issue patents in fee under the act of May 14, 1948 (62 Stat. 236, 25 U.S.C., 1946 ed., sec. 483). This statute expressly provides that the patent in fee may be issued "upon application of the Indian owner."
    ⁹ See cases of Joseph Black Bear, 38 L.D. 422 at 424, and Ex Parte Pero, 99 F. (2) 28, 34 (C.C.A. 7th. 1938).
    10 See Celestine v. United States, 215 U.S. 278 (1909), and Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th, 1921).
    ¹¹ See 58 I.D. 455.
    ¹² A contrary conclusion was reached in People v. Pratt, 80 P. (2d) 87 (Cal.). However, the court based its decision on the provisions of the General Allotment Act, as amended, relating to the issuance of patents in fee to "allottees." The act of 1910, as amended, which authorizes the issuance of patents in fee to heirs, and which contains no declaration that the issuance of the patent shall subject the patentee to the laws of the State, was neither mentioned nor discussed.
    ¹³ There appear, however, to be neither departmental nor judicial decisions on this point, possibly because the issuance of a patent in fee for part of an allotment has not been too frequent.

1635

OPINIONS OF THE SOLICITOR

FEBRUARY 15, 1954

While, on the basis of the decided case, it is my conclusion that when an Indian to whom a trust patent has been issued under the General Allotment Act receives a patent in fee for the whole of his allotment he becomes subject to the laws, both civil and criminal, of the State of his residence, notwithstanding the fact that he may subsequently come into the possession of other trust lands by inheritance, devise, or further allotment of surplus lands, an important qualification must be attached to this conclusion, namely, that he would not be subject to State jurisdiction with respect to those matters which are reserved to Federal jurisdiction by Federal statutes. For example, if such an Indian inherited an interest in a trust allotment, the interest would still be subject to probate by the Secretary of the Interior under the act of June 25, 1910, supra. Moreover, such an Indian, if he committed in the Indian country against the person or property of another Indian, or other person, one of the crimes specified in the so-called Major Crimes Act (now 18 U.S.C., sec. 1153), would be subject to prosecution in the Federal courts.¹⁴

Such complexities and distinctions as these have rendered the grant of State jurisdiction over Indians contemplated by the General Allotment Act largely ineffective. The sponsors of that legislation assumed that the allotment of the Indians in severalty, would be but the prelude to the termination of their tribal relations and the liquidation of Federal supervision over them. When that program failed to be carried out, and the Indians, despite the fact that they were now citizens, continued to maintain their tribal relations and the Government continued its guardianship over them, the subjection of the Indians to the jurisdiction of the States ceased to have much reality. State law enforcement officers could not, after all, go around with tract books in their pockets, and being unable to distinguish a patent in fee Indian from a ward Indian, they did not commonly concern themselves with law violations by Indians,¹⁵and the theoretical jurisdiction of the States thus fell into innocuous desuetude. Thus, when it has been desired to confer on particular States criminal or civil jurisdiction over Indians, it has been accomplished by general statutes conferring such jurisdiction irrespective of the tenure by which Indians held their lands.¹⁶

Your final question is whether an Indian who, after he has obtained a patent in fee to his allotment, receives other trust lands must be given those lands in trust, or whether the Secretary of the Interior may or must convey such other lands to him without restriction. It is assumed that the patent-in-fee Indian would receive the trust lands by inheritance or devise. Such being the case, it is apparent that the question has already been answered in the comments which have been made on the acts of June 25, 1910, and February 14, 1913, which are the foundation of the probate jurisdiction of the Secretary of the Interior. The death of the owner of the lands does not in itself terminate the trust under the 1910 act, and the 1913 act expressly declares that "the death of the testator shall not operate to terminate the trust or restrictive period * * *." Of course, the Secretary may under these statutes issue patents in fee

    ¹⁴ Prior to the revision of the Federal criminal code by the act of June 25, 1948 (62 Stat. 757), the governing provision on major crimes by Indians was 18 U.S.C., sec. 548 which was not entirely clear on the question whether an Indian who committed one of the major crimes against the person or property of another Indian on fee patented lands within the exterior boundaries of an Indian reservation was subject to prosecution in the Federal rather than the State courts. Federal jurisdiction was denied in the cases of Eugene Sol Louie v. United States, supra, and State v. Johnson, 249 N.W. 284 (Wis., 1933), and upheld in United States v. Frank Black Spotted Horse, 282 Fed. 349 (D.C.S.D., 1922). The Department, in a letter dated November 20 1942, to the Attorney General of the United States, espoused Federal jurisdiction. Whatever doubt existed seems to have been removed in the revision of the criminal code, which provides for Federal jurisdiction in such cases. 18 U.S.C., sec. 1151, defines the term "Indian country" as including all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent *     *     * ." See State ex rel. Irvine v. District Court, 239 P. (2d) 272 (Sup. Ct. Mont., 1951).
    ¹⁵ This at least is the impression gathered from the reported cases. There are relatively few cases in which Indians have been subjected to State jurisdiction for the violation of State criminal laws because they were patent in fee Indians. See, in addition to the cases already mentioned. In re Now-ge-zhuck, 76 Pac. 877 (Kans. 1904), involving a breach of the peace; Kitto v. State, 152 N.W. 380 (Nebr., 1915), involving assault; State v. Big Sheep, 243 Pac. 1067 (Mont., 1926), involving unlawful possession of peyote: State v. Bush, 263 N.W. 300 (Minn., 1935), involving trapping muskrat in closed season; People v. Pratt, 80 P. (2d) 87 (Cal., 1938), involving illegal possession of metal knuckles; United States ex rel. Marks v. Brooks, 32 F. Supp. 422 (D.C.N.D., Ind., 1940), involving unlawful possession of raccoon.
    ¹⁶ See the acts of June 8, 1940 (54 Stat. 249), applicable to Kansas; May 31, 1946 (60 Stat. 229), applicable to the Devils Lake Reservation, North Dakota; June 30 1948 (62 Stat. 1161), applicable to the Sac and Fox Reservation in Iowa; July 21, 1948 (62 Stat. 1224), applicable to New York; October 5, 1949 (63 Stat. 705), applicable to the Agua Caliente Reservation. California; and finally the act of August 15, 1953 (Public Law 280, 83d Cong.), applicable to California as a whole. Minnesota (except Red Lake), Nebraska, Oregon (except Warm Springs), and Wisconsin (except Menominee). The last-mentioned statute also contains a general provision giving the consent of the United States to the assumption by any other State of the Union of civil and criminal jurisdiction over Indians.

1636

DEPARTMENT OF THE INTERIOR

FEBRUARY 15, 1954

to the heirs for these trust interests but the mere fact that a patent in fee has already been issued to one of the heirs for other lands would not oblige the Secretary to issue a patent in fee for the inherited lands, or otherwise terminate the restrictions. This follows from what has already been said concerning the effect of the issuance of a patent in fee, the discretionary nature of the Secretary's power, and the necessity for an application for a patent in fee by an heir or devisee.

It is apparent from the foregoing that Indian trusteeship cannot be terminated by invoking the powers available under existing law, and that if this objective is to be accomplished, additional legislation will be necessary.

An application made by a State, pursuant to section 8 (c) of the Taylor Grazing Act, as amended, to select lands withdrawn by either of the two Executive orders mentioned in section 7 of the Taylor Grazing Act, as amended, or within a grazing district may not be rejected merely because the lands may have been classified pursuant to section 7 as being suitable for disposition under another of the public-land laws.

Unless rights have been initiated in the classified lands, any prior classification thereof must be disregarded in considering a State's exchange application.

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

This responds to your memorandum dated January 18, 1954, in which you requested my opinion whether, in view of the opinion expressed in my memorandum dated January 5, 1954, the Secretary has authority to reject a State application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315g (c) ), if the lands have been classified before the receipt of the State's applications and, if so, what classification is necessary in order that such authority exist.

I shall assume for the purposes of this discussion that your question is directed to the classification of lands which were withdrawn by either of the two Executive orders¹ mentioned in section 7 of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315f), or which are now or may hereafter be included in grazing districts and that it does not relate to the Secretary's authority with respect to lands which may otherwise have been with drawn for classification ²or which may have been classified under some other authority.³

In my opinion, and speaking generally without regard to the particular facts which may exist in a given case, the fact that lands may have been classified under section 7 of the Taylor Grazing Act before the filing of a State application under section 8 (c) of the act provides no basis for rejecting a State's application. The mere classification of lands under section 7, without more, does not remove the lands from the operation of section 8. It would seem that if the lands selected by a State under an exchange application meet the requirement of section 8 (c), the fact that the selected lands may have been classified as suitable for some other use is immaterial.

There is nothing binding about a classification. While it may represent the considered judgment of the classifier based upon the best evidence available at the time of the classification, it is subject to revocation at any time or !to revision upon a showing of changed conditions, additional facts, or other factors indicating error in the classification.

Since I have already concluded that the authority of the Secretary under section 7 to classify lands does not extend to lands outside of grazing districts which are applied for by a State under section 8 (c), I am of the opinion that it would not

    ¹ Executive Order No. 6910, dated November 26, 1934 (43 CFR 297.11), and Executive Order No. 6964, dated February 5, 1935 (43 CFR 297.12).
    ² E.g., all lands containing oil shale deposits have been temporarily withdrawn for investigation, examination and classification (Executive Order No. 5327, dated April 15, 1930, 43 CFR 297.8). Such lands are, however, subject to oil and gas leasing under the terms of the Mineral Leasing Act (Executive Order No. 6016, February 6, 1933, 43 CFR 297.10).
    ³ Lands classified as power sites, for example, may be disposed of only after a determination by the Federal Power Commission that the value of the lands for the purposes of power development will not be injured or destroyed by location, entry or selection under the public-land laws and then only subject to such conditions as the Commission may impose. 16 U.S.C., 1952 ed., sec. 818.

1637

OPINIONS OF THE SOLICITOR

MAY 7, 1954

be incumbent upon a State to disprove a classification already assigned to the selected land. Since lands applied for under section 8 (c) are not within the scope of the power of classification conferred upon the Secretary by section 7, it follows that any classification which may have been assigned to lands prior to the receipt of a State's exchange application must be disregarded in considering the State's application.

Section 7, after authorizing the Secretary to classify lands "which are * * * more valuable or suitable for any other use than for the use provided for under this Act * * * ", provides:

Of course, if the lands selected by the State have, in addition to being classified, been opened to entry and if, as a result of such opening, rights in the classified lands have been initiated, the State's selection must be rejected. In such a case, however, the rejection would not be because the lands have been classified but because prior rights have been initiated and the lands selected do not meet the test prescribed in section 8 (c) that the selected lands must be surveyed grazing district lands not otherwise reserved or appropriated or unappropriated and unreserved surveyed public lands.

A question arises whether, in view of the provision in section 7 granting a preference right to a qualified applicant to enter land classified as the result of his application, such an application would require the rejection of a subsequent State application to select the same land under section 8 (c). In my opinion, if the application has not been allowed, the selected land is still available for acquisition by the State. This is so because an application to enter land subject to classification under section 7 confers no right in the land upon the applicant. It merely gives the applicant a preference right to enter the land if it is opened to entry as the result of his application. Thus, if a State's application under section 8 were filed after the receipt of an application under section 7 to enter lands under the homestead laws and after the lands were classified pursuant to the homestead application, but before the allowance of the entry, the State's application could not properly be rejected merely because of that classification. Until the application to enter has been allowed, no rights have been initiated in the lands which could defeat the State's application. The Secretary would be compelled in such a situation, under the mandatory language of section 8 (c) , to allow the State's application, if the State otherwise met the requirements of section 8.

I conclude, therefore, that the Secretary does not have authority to reject a State's application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended, merely because the lands may have been classified under section 7 of the act prior to the filing of the State's application, and that until rights have been initiated in the classified land by the allowance of a preference right application under section 7 or, following the opening of classified lands, by the entry on the opened land by qualified applicants, any such classification which may have been assigned to the lands selected by a State for exchange purposes must be disregarded in considering the State's exchange application.

I do not wish it to be understood by what has been said above that I hold the opinion that a State's application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended, must be allowed in every case. No such application is, of course, subject to allowance unless and until the State has met all of the applicable requirements of section 8.

To:            Commissioner, Bureau of Indian Affairs
From:        The Solicitor
Subject:     Lac du Flambeau fish and game ordinance of November 9, 1953

1638

DEPARTMENT OF THE INTERIOR

MAY 7, 1954

I am returning for your further consideration the proposed letter to your Acting Area Director at Minneapolis, Minnesota, discussing a penal ordinance providing for the prosecution of Indian nonmembers who are guilty of violating any law, rule or ordinance for the protection of game and fish on the reservation.

This ordinance reveals that it was adopted pursuant to Article VI, Section 1, Subsection (a) of the constitution. Subsection (a) does empower the tribe to enact ordinances for the protection and conservation of fish and game but neither that nor any other provision of the constitution confers jurisdiction on the tribe to enforce criminal sanctions against nonmembers of the tribe. Subsections (1) and (n), after close scrutiny, do not appear to authorize the tribe to impose punitive provisions on nonmembers for fish and game violations subject to the review of the Secretary, for they transcend the ordinary scope of authority of the Indian tribe. Therefore, one basic reason why the ordinance is ineffective, rather than that it has failed to be approved and ratified by the Superintendent and Secretary, is that it was beyond the constitutional power of the tribe.

I concur in your further discussion of the matter in view of the situation created by the enactment of Public Law 280 (67 Stat. 588), and that the treaty of September 30, 1854 (10 Stat. 1109) did not grant any right, privilege or immunity with respect to hunting or fishing on the reservation which would take this matter out from under the purview of Public Law 280.

APPOINTMENT OF INDIANS TO
RESTRICTIVE POSITIONS--
VETERANS' PREFERENCE
ACT OF 1944

Federal Employees--Bureau of Indian Affairs--Positions Restricted to Veterans--Noncompetitive Service--Indian Appointment Preference.

The provision in section 3 of the Veterans' Preference Act of 1944, as amended, that examinations for the positions of guard, custodian, elevator operator, messenger, and, until December 31, 1954, apprentices, be restricted to veterans when veterans eligibles are available, applies only to the competitive civil service. The restriction in no way affects the superior appointment preference of an Indian of one fourth or more of Indian ancestry in the Bureau of Indian Affairs, as prescribed by regulations of the Civil Service Commission under Schedule A governing the noncompetitive service. A non-veteran Indian of one fourth or more of Indian ancestry has a superior appointment preference over a non-Indian veteran for excepted appointment to the positions enumerated in section 3 of the Veterans' Preference Act of 1944, as amended.

To:            The Director of Personnel
From:        The Solicitor
Subject:     Appointment of Indians to positions restricted to veterans

For the purpose of this opinion an Indian will be considered to be a person of one-fourth or more Indian blood.

Your question is prompted by the restriction imposed in the proviso to section 3 of the Veterans' Preference Act of 1944 (5 U.S.C., 1952 ed., sec. 852), as amended, which reads as follows:

It is clear from the language quoted immediately above, and from the legislative history of the act, that the restriction contained in section 3 relating to examinations for positions applies only to posi-

¹ Apprentices were added to the restricted category of positions by the act of August 14, 1953 (67 Stat. 581).

1639

OPINIONS OF THE SOLICITOR

JUNE 4, 1954

tions in the competitive service, that is, positions for which the applicants or incumbents first must qualify by taking a competitive civil-service examination.²

Section 12 of Chapter X-l-Filling Competitive Positions, of the Federal Personnel Manual, provides under the heading "Filling Restricted Positions by Noncompetitive Actions," that the restrictions in section 3 of the Veterans' Preference Act of 1944, as amended, " * * * applies only to competition in examinations of applicants for entrance into the service; that is, to competitive examinations." ³

Under 5 CFR 6.1, 6.100, 6.110 (c) (1), there have been excepted from the competitive civil service: "Positions in the Bureau of Indian Affairs, Washington, D. C., and in the field when filled by the appointment of Indians who are of one-quarter or more Indian blood."

5 CFR, Part 21, prescribes regulations with respect to appointment to positions excepted from the competitive service, but section 21.11 provides in part as follows:

On October 25, 1950, Civil Service Commission Letter No. 50-173 was issued by the Executive Director of the Commission to "Regional Directors, Managers of Branch Regional Offices and Central Office Division Chiefs and Staff Officials of the Civil Service Commission." Its subject was "Clarification of instructions relating to the temporary appointment of Indians in the Bureau of Indian Affairs." ⁵

The portions of Letter No. 50-173 pertinent to the question here under consideration are as follows:

"1. A review of inspection reports, correspondence with several regions and with the Bureau of Indian Affairs has indicated some misunderstanding concerning the manner in

    ²In explaining the purpose of the bill (H-R. 4115) which became the Veterans' Preference Act of 1944, with reference to section 3 of the House Committee on the Civil Service stated, on March 27, 1944, that "Section 3 *     *     * provides that so long as persons entitled to preference are available civil-service examinations for positions of guard, elevator operator, messenger, and custodian are to be limited to competition among persons entitled to preference. *     *     * " (Emphasis added.) (H. Rept. No. 1289, 78th Cong., 2d sess.) The Senate Committee on the Civil Service stated, on March 25, 1944, with respect to section 3, that "*     *     * In addition, competition for the positions of guards, elevator operators, messengers, and custodians would be restricted to veterans as long as veteran applicants are available." (Emphasis added.) (S. Rept. No. 907, 78th Cong., 2d sess.) Both reports stated, in the discussion of section 3, that until the expiration of 5 years following the end of the war, the President would be authorized to add other positions to the restricted list. In the House debate on the bill, Mr. Ramspeck, the Chairman of the House Committee on the Civil Service, made the following statement: " *     *     * It also gives absolute preference to veterans in examinations for the position of guard, elevator operator, messenger, and custodian, as long as preference eligibles are available. It also gives the right to assign other groups of positions for a period of 5 years, to veterans only; which is a rather important provision in view of the situation that has prevailed. It strengthens the law as to passing over veterans so that a veteran himself, or his designated representative, may know what the reason is. That is one of the things the veterans themselves have been very much interested in." 90 Cong. Rec. 3505 (April 17, 1944).
    ³ The remainder of section 12 imposes limitations upon the filling of restricted positions through noncompetitive actions, but it is clear from the opening paragraph of section 1 of the chapter that these limitations do not apply to positions excepted from the competitive service.
    ⁴ Chapter R3 of the Federal Personnel Manual, governing "Reductions-in-force." includes in its list of retention preferences that of "Indian Preference," with the following comment:

⁵ The instructions referred to appear to be those contained in letters dated August 3 and August 23, 1950, from the Executive Director, Civil Service Commission, to the Director of Personnel, Department of the Interior, and letters dated July 24, 1947, and August 23, 1947, from the President, Civil Service Commission, to the Secretary of the Interior.

1640

DEPARTMENT OF THE INTERIOR

JUNE 4, 1954

which Indian and veterans' preference are observed in temporary appointment procedures in this Bureau. The misunderstanding seems to result from the fact that two appointment procedures are used by the Bureau. An appointment made under Schedule A, Regulation 6.110 (c) (1), to a position that would otherwise be in the competitive service, removes such position from the competitive service. In effecting these excepted appointments, the Bureau follows the following priority order:

It is clear from the foregoing considerations that whenever positions in the Bureau of Indian Affairs are filled by Indians, as defined, the positions automatically become positions which are excepted from the competitive service and which are therefore not subject to laws or regulations applicable to positions in the competitive service. Inasmuch as the proviso in section 3 of the Veterans Preference Act of 1944 is applicable only to the competitive service, it has no effect upon positions in the Bureau of Indian Affairs when filled by the appointment of Indians, as defined.⁷

Therefore, in my judgment, the categories of positions which would otherwise be covered by the proviso in section 3 of the Veterans Preference Act are to be regarded in so far as the appointment of persons of one-fourth or more Indian blood is concerned as positions excepted from the competitive service to which the proviso is inapplicable and to which section 12 of the Indian Reorganization Act respecting preference for Indians applies. Accordingly, even though a non-Indian veteran is available for a position that would otherwise fall within the scope of the proviso in section 3, the Bureau of Indian Affairs may make an excepted appointment (under Schedule A, Civil Service Rule VI) of a non-veteran Indian to the position.

This is a belated response to your Department's letter of February 11, 1954 your reference: (REM:FLF 90-2-10-294), concerning the claim of tribal officials of the Seneca Nation that a portion

⁶ The letter stated, also: "2. * * * When the excepted appointment procedure is not used, and temporary appointments are made through the competitive process, the Commission's regulations governing priority order of selection become effective. This order is as follows:

⁷ The act of June 18, 1984 (48 Stat. 984, 25 U.S.C., 1952 ed., sec. 461 et seq.), is also known as the Wheeler-Howard Act and the Indian Reorganization Act. Section 12 of the act provides that "The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such position." (25 U.S.C., 1952 ed., sec. 472.) There were several earlier Indian preference laws, viz., acts of June 30, 1834 (4 Stat. 737, 25 U.S.C., 1952 ed., sec. 45); May 17, 1882 (22 Stat. 88. as amended by the act of July 4, 1884 (23 Stat. 97. 25 U.S.C., 1952 ed., sec. 46); August 15, 1894 (28 Stat. 313, 25 U.S.C., 1952 ed., sec. 44), and April 30, 1908 (35 Stat. 71, as amended by the act of June 25, 1910 (36 Stat. 861, 25 U.S.C., 1952 ed., sec. 47). The Civil Service Commission placed in an excepted status under Schedule A of the Civil Service Rules, "positions in the Bureau of Indian Affairs, Washington, D.C., and in the field, when filled by the appointment of Indians * * *." In its Minute No. 2, of October 29, 1942, the Commission ruled that these positions, if occupied by Indians,were not brought into the classified service by the Ramspeck Act and Executive Order No. 8743. See 78 Cong. Rec. 1123, 11126, 11127, 11137 (1934).

1641

OPINIONS OF THE SOLICITOR

JUNE 21, 1954

of the Oil Springs Reservation in the State of New York is now occupied by non-Indians.

The records of the Bureau of Indian Affairs appear to contain no information concerning the merits of the claim of the officials of the Seneca Nation. However, the Commissioner of Indian Affairs, upon consideration of the matter, has taken the following position as a matter of policy:

Although the act of September 13, 1950 (64 Stat. 845), would not of itself appear to confer jurisdiction on the courts of the State of New York in this matter, inasmuch as it is quite probable that the non-Indians, who are allegedly in the unlawful possession of the lands, took possession long prior to the effective date of that act, the Seneca Nation would nevertheless appear to be competent, without the presence of the United States, to maintain an action against the non-Indians in the State or Federal courts under the rule laid down by the Supreme Court in the case of the Choctaw & Chickasaw Nations v. Seitz, et al. (193 F. (2d) 456).

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Proposed constitution for Navajo Tribe

There is returned to you for further consideration your proposed redraft of the constitution submitted to the Department by the Navajo Tribe.

The members of the Navajo Tribe were authorized to adopt a constitution by the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 46; 25 U.S.C., 1946 ed., sec. 631 et seq.). This act as is suggested by its title, outlines in section 1 a broad program for the conservation and development of the resources of these tribes for the purpose of rehabilitating them. Fourteen different projects are enumerated in section 1 of the act. Section 2 of the act provides, in so far as relevant:

1642

DEPARTMENT OF THE INTERIOR

JUNE 21, 1954

The chief problem presented by the constitution proposed by the Navajo Tribe has to do with the scope of the powers which may be conferred by the Secretary of the Interior upon the governing body of the Navajo Tribe pursuant to section 6 of the Navajo-Hopi Rehabilitation Act. In Article IV, subdivision I, of the draft of the constitution submitted by the Navajo Tribe, it was provided:

There were then enumerated thirteen specific powers which were to be exercised by the Navajo Tribal Council, and none of these enumerated powers was directly made subject to the approval of the Secretary of the Interior. In your proposed revision of the tribal draft, the general governing powers of the tribal council are made subject to any limitations embodied in the "regulations" of the United States, and six of the enumerated powers are expressly made subject to the approval of the Secretary of the Interior. In the second paragraph on page 2 of your proposed covering letter to the Chairman of the Navajo Tribal Council, it is stated by way of explanation of these changes: "Approval is required primarily because the Secretary has statutory responsibilities from which he cannot be relieved by delegating them to the tribe." This position appears to be fully supported by the language quoted above from section 6 of the 1950 act. Under that language, the powers which the tribe may exercise, with Secretarial approval, are first those powers which are vested in the tribe "by existing law." By this expression, which was borrowed from section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 98 1; 25 U.S.C., 1946 ed., sec. 476), it was meant to be indicated that the constitution to be adopted by the Navajo Tribe could provide not only for the exercise by the tribe of those traditional powers of tribal government which were recognized as vested in the tribe by judicial decisions but also the exercise of those powers which the Congress had conferred on the tribe by statute. ^l These statutory powers were, however, limited powers. Thus the power of the tribe to make contracts in relation to their lands, including the employment of attorneys (25 U.S.C., 1946 ed., sec. 81), the power of the tribe to make mineral leases (25 U.S.C., 1946 ed., sec.396), and the power to make farming ,and grazing leases (25 U.S.C., 1946 ed., secs. 402 and 397), could be exercised by the tribe only with the approval of the Secretary of the Interior. The 1950 act contains no provision that would permit the Secretary to delegate to the governing body of the tribe his statutory powers and responsibilities or to dispense with his function under existing law of approving leases and contracts.

The provision in section 6 of the 1950 act for the exercise of "such additional powers as the members of the tribe may, with the approval of the Secretary of the Interior, deem proper to include" in the constitution, plainly contemplates powers other than those vested in the tribe by existing law, and this clause may not, therefore, be properly invoked to enlarge or broaden the powers vested in the tribe by existing law, i.e., the law in force on the date of the enactment. Although the exact meaning of the "additional powers" clause of section 6 of the 1950 act is not clear, sufficient effect can be given to the clause by incorporating in the constitution for the Navajo Tribe powers which are contemplated by express provisions to be found in various sections of the Rehabilitation Act itself.

Thus, under section 3 of the act, which gives preference in employment to members of the Navajo Tribe, as well as under section 2072 of the Revised Statutes (now 25 U.S.C., 1946 ed., sec. 48), which permits the Secretary of the Interior to turn over to Indian tribes the direction of the work of Government employees, the Secretary could delegate to the Navajo Tribal Council the performance of much of the clerical and ministerial details involved in the exploitation of tribal resources without dispensing with the ultimate approval of what has been done.² So, too, under section 4 of the act the power can be conferred upon the Navajo Tribal Council to borrow from the $5,000,000 Revolving Loan Fund established by section 1 of the act, and to re-lend funds so borrowed to its members or associations of members of the tribe. Under section 5 of the act, the Navajo Tribal Council can be empowered to make leases for "public, religious, educational, recreational, or business purposes, including the development or utilization of natural resources in connection with operations under such leases," for periods not to exceed 25 years and such cases may be renewed for another 25-year period.

¹ See 55 I.D. 14.
² See memorandum dated December 6, 1946, from the Solicitor to the Commissioner of Indian Affairs, recognizing that the Fort Belknap Indian Community could take over the administration of Indian tribal and individual lands through a leasing clerk employed by its tribal land enterprise.

1643

OPINIONS OF THE SOLICITOR

JUNE 21, 1954

Finally, section 8 of the Rehabilitation Act directs the Secretary of the Interior to keep the Navajo Tribal Council informed concerning rehabilitation plans, and empowers the Navajo Tribal Council to make recommendations concerning the administration of the rehabilitation program. This is somewhat similar to the provision of section 16 of the Indian Reorganization Act which directs the Secretary of the Interior to advise organized tribes of all appropriation estimates or Federal projects prior to the submission of such estimates to the Bureau of the Budget and the Congress. This direction has been embodied in all tribal constitutions adopted under the Indian Reorganization Act in the form of a power in the tribal council to advise the Secretary of the Interior concerning these matters. It may, indeed, be said in general that there is considerable resemblance between the Indian Reorganization Act and the Navajo-Hopi Rehabilitation Act in providing for powers that go beyond existing law.

I will proceed now to comment upon the particular provisions of the proposed Navajo constitution.

Article IV, section 9, of the proposed constitution requires reconsideration in a considerable number of respects, as follows:

(1) The addition of the word "regulations" in the introductory clause is not necessary, and should be eliminated. The departmental regulations will be applicable to the Navajo Tribe, even if the word is not added, unless the terms of the regulations are such that they are not applicable or the application of the regulations would be inconsistent with a provision of the constitution. The addition of the word "regulations" can thus only cause confusion.

(2) The subjection of the governing powers of the Navajo Tribal Council to "any limitations embodied in the laws * * * of the United States" is also confusing, and the powers of the council would actually be clearer if this limitation were omitted. The limitation does not impose upon the tribe the necessity of complying with all the preexisting statutory restrictions relating generally to the activities of Indian tribes, but, instead, refers only to those statutory restrictions from which the Secretary cannot legally free the tribe, such as the restrictions imposed by the anti-trust laws.³ However, such restrictions are applicable to the governing body of an Indian tribe even in the absence of such a provision.

(3) Subdivision (a) of section 9 not only empowers the tribal council to employ attorneys but "to authorize the filing and prosecution or defense of all cases in the name of the tribe" (italics supplied). This provision is both too broad and ambiguous. The use of the adjective "all" before the word "cases" may imply that the tribe has the right to sue in all cases and has given its consent to be sued in all cases. Actually, a considerable number of qualifications with respect to the position of the tribe as litigant must be recognized. While any Indian tribe may sue, it can be sued only if the United States has consented to such suit on its behalf.⁴ While the United States may sue on behalf of the tribe to protect its rights, and the judgment entered in such a suit will be binding on the tribe, a judgment in a suit brought by an Indian tribe to which the United States was not a party, will not be binding on the United States which may re-litigate the issues involved in the suit. Finally, in the absence of statute, a judgment obtained against an Indian tribe cannot result in the alienation, attachment, or encumbrance of tribal land. Instead of attempting to solve the details of the problem of suit, it would seem to be best to revise the second clause of section 9 (a) so that it will read as follows: "To the extent permitted by law, to sue and be sued in courts of competent jurisdiction."

(4) It would seem desirable that section 9 (d), which provides for the borrowing of money, should refer expressly to the Navajo-Hopi Revolving Loan Fund, and to the purposes for which such loans may be used. It is suggested that section 9 (d) be revised to read:

(5) Section 9 (e), which would confer upon the tribal council the general power to organize associations and corporations, is not clear. The language of the section is so broad--extending to the organization of "any" corporation--that the tribal council could even incorporate the Navajo Tribe itself, although there is no warrant for conferring such a power on the tribal council. But even if

3 See Solicitor's opinion M-36119, dated February 14, 1952, pp. 4-5.
4 Thebor Choctaw Tribe, 66 Fed. 372 (C.C.A. 8th, 1895); United States v. U.S. Fidelity & Guaranty Co., 106 F. (2d) 804 (C.C.A. 10th, 1939).

1644

DEPARTMENT OF THE INTERIOR

JUNE 21, 1954

construed so as to authorize only the organization of associations or corporations consisting of members of the tribe, it is not perceived how the provision could serve any purpose. In the absence of Federal legislation authorizing the governing body of the Navajo Tribe to establish associations and corporations, such bodies would have no standing and neither State nor Federal officials would be bound to recognize them. However, section 4 of the Navajo-Hopi Rehabilitation Act does impliedly authorize the organization of associations of members of the tribe in connection with the making of loans from the Revolving Loan Fund established by section 1 of the act, and the tribal council could be authorized with the approval of the Secretary to organize associations of members of the tribe conducting enterprises which have obtained loans from the revolving fund or themselves conducting lending operations with such borrowed funds.

(6) Section 9 (g) would give the tribal council power to levy and collect dues, fees, and taxes not only upon members but also upon nonmembers "within the area under the jurisdiction of the Navajo Tribe." However, under Article II of the proposed constitution, the jurisdiction of the tribal council is not confined to lands within the Navajo Reservation but extends to lands outside the reservation, including even leased and acquired lands. Over such lands, the tribal council may exercise only the rights of a proprietor, and such rights do not include the levy of dues, fees, and taxes.⁵

(7) Section 9 (h) would confer on the tribal council the power to sell and convey and grant interests in tribal lands and property. Under existing law, tribal lands may not be alienated,⁶ and such a power should not be conferred upon the tribal council.

(8) Section 9 (k) empowers the tribal council to make loans to members of the Navajo Tribe. If section 9 (d) is revised as suggested, this provision will become unnecessary.

(9) Section 9 (I), which deals with the power of removal or exclusion from the reservation, contains a double negative, which is confusing, and the power to remove or exclude is not made subject to any limitation, so that the exercise of the power may be subject to abuse. It is suggested that this provision be revised to read: "To bar any person who is not a member of the tribe from entering the reservation, and to exclude or remove any such person from the reservation where such action is necessary to protect the interests of the tribe, but this power shall not extend to the removal or exclusion of officials of the Federal or State governments."

The jurisdictional provisions of the proposed constitution also involve some difficulties, the nature of which has already been suggested in connection with the discussion of the power of the council to collect dues, fees, and taxes. Since the governmental powers of the Navajo Tribe may be exercised only within the Navajo Reservation, it will not be able to control effectively the activities of its members outside the reservation boundaries. While the council may no doubt exercise a personal jurisdiction over its members, the effectiveness of this jurisdiction must depend on the willingness of off-the-reservation members to submit to the council's jurisdiction. In the enforcement of law and order, the power of the council is confined within the reservation boundaries,⁷ and a member of the tribe off the reservation could not be "extradited," so as to make him amenable to the council's jurisdiction.⁸ Moreover, since the conduct of a member of an Indian tribe who is not living on an Indian reservation is subject to State law, there may result conflicts between State and tribal jurisdiction. It would seem to be desirable, therefore, that at least the power of the tribal council in the enforcement of law and order be limited to conduct of members of the tribe within the reservation boundaries.

The jurisdictional problem is also present in Article IV, section 2, of the proposed constitution, which provides: "The territory as defined in Article II (which includes also off-the-reservation lands which may be extremely scattered) shall be divided into electoral districts, the boundary lines of which shall be determined by the tribal council." It is difficult to perceive how scattered tracts of land could be divided into electoral districts, and yet the language of the provision appears to be mandatory. It would seem to be better to confine the first sentence of Article IV, section 2, to the territory within the reservation, and to make separate provision for voting off the reservation.

There are also a few minor faults of draftsmanship that would seem to require attention as follows:

(1) Article III, section 1 (a), provides, inter alia, for the correction of the Navajo membership roll "in accordance with the rules and regulations applicable to the maintenance of said roll." No such regulations appear to be in existence.

(2) Article V, section 3, does not envisage the possibility that the President may be so incapacitated as to be unable to appoint a Chairman Pro-

    ⁵ See I.D. at 48 to 50.
    ⁶ Revised Statutes, sec. 2116 (now 25 U.S.C., 1946 ed., sec. 177).
    ⁷ See 18 Op. A.G. 440.
    ⁸ See Ex parte Morgan, 20 Fed. 298 (D.C.W.D., Ark., 1883).

1645

OPINIONS OF THE SOLICITOR

JUNE 24, 1954

"The President of the Navajo Tribe, and in his absence, the Vice-President, shall preside as Chairman of all Tribal Council and Executive Committee meetings. In the case of the absence of both the President and Vice-President, a Chairman Protempore designated by the Tribal Council shall preside over such meetings."

(3) The same defect is present in Article V, section 9, as in Article V, section 3. Under the language of the first sentence of Article V, section 9, the Vice-President can perform only "such functions as the President shall direct" but the President may be so incapacitated as to be unable to give any direction to the Vice-President. It would seem desirable, therefore, to include this additional sentence: "In the case of the incapacity of the President, the Vice-President shall perform his functions." The last sentence of this section should also be revised so as to make it possible for the Tribal Council to determine who shall exercise the power of the President and Vice-President when both are absent or incapacitated.

(4) In Article VIII, section 2, there is a reference to "the bylaws of the Tribal Council" but no set of bylaws has been submitted with the constitution. Indeed, the present constitution contains many provisions which would ordinarily be included in a set of bylaws.

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Proposed agreement between United States of America
                 and Community Health Association, Inc.

The above-mentioned agreement contemplates that the United States will transfer by quitclaim deed the Hoopa Valley Hospital, including the land upon which the hospital is located, to the Community Health Association, a nonprofit membership corporation organized under the laws of the State of California. The agreement and deed are to be executed by the Secretary of the Interior under authority of section 2 of the act of April 3, 1952 (66 Stat. 35; 25 U.S.C., 1952 ed., sec. 445).

My conclusion, upon review of the record pertaining to this matter, is that the proposed transfer is not authorized.

Section 2 of the 1952 act prohibits the transfer "unless such action has been approved by the governing body of the tribe or by the governing bodies of a majority of the tribes, for which such hospital or health facility has been constructed or maintained." Approval of the transfer purports to have been given in this case by two resolutions adopted on the respective dates of December 11, 1953, and April 7, 1954, by the Hoopa Business Council acting for the Hoopa Valley Tribe. This approval is not sufficient, in my opinion, to remove the statutory prohibition against the transfer. The record before me not only indicates that the hospital was constructed for the benefit of the Indians of California other than those who were members of the Hoopa Valley Tribe (see I.O. file 99264-15, Hoopa Valley file No. 721), but the Court of Claims in the case of The Indians of California v. The United States, 102 Ct. Cl. 837 (1944), offset against the judgment in favor of the plaintiff Indians the sum of $167,550.11, representing moneys expended by the United States in the construction and operation of the Hoopa Valley Hospital. This action on the part of the Court of Claims must be regarded as a judicial determination of the fact that the hospital was constructed and maintained not for the benefit of the Hoopa Valley Indians alone but for the benefit of the California Indians as a whole. The proposed transfer cannot, therefore, be legally consummated without prior approval of the transfer by the California Indians as a whole.

Since it does not appear to be possible, in view of the nonexistence of any tribal organization with authority to speak for the California Indians as a whole, to obtain the approval of that group of Indians to the proposed transfer, it appears that additional legislation by the Congress will be necessary to effectuate the transaction. If you conclude to seek additional legislation, it might be well for such legislation to provide for extinguishment of the equitable interest of the California Indians as a whole in the hospital plant by authorizing reimbursement to them of the amount referred to above which was set off against their judgment by the Court of Claims. It would be desirable also for the legislation specifically to authorize transfer of the hospital site, which appears to be tribal property of the Hoopa Valley Tribe, with the consent of that tribe.

1646

DEPARTMENT OF THE INTERIOR

JULY 13, 1954

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Existing statutory authorization for appropriation of funds to
                 provide financial assistance to public school districts for
                 construction of public school facilities for Navajo and
                 Hualapai Indian children not included in such districts
                 and authority of Secretary to provide from such funds,
                 if appropriated, financial assistance to public school
                 district at Seligman, Arizona, for construction of public
                 school facilities to be used for education of Indian children
                 from Hualapai Indian Reservation.

It is understood that a proposed supplemental appropriation for the Department of the Interior for the fiscal year 1955 may contain the following or similar language:

You have requested my opinion as to whether there is statutory authorization for the inclusion of such a provision in an appropriation bill, and whether, if such a provision is contained in an appropriation measure as enacted, there would be authority for the Commissioner of Indian Affairs to enter into a contract with the public school district at Seligman, Arizona, under which the United States would furnish funds to such public school district for the construction of public school facilities to be used by such district in the education of Hualapai Indian children who reside on the Hualapai Indian Reservation, which, it is understood, is not included in such public school district.

Also relevant are sections 1 and 3 of the act of April 16, 1934, as amended by the act of June 4, 1936 (48 Stat. 596, 49 Stat. 1458; 25 U.S.C. 452, 454), which provide as follows:

From the foregoing, it is clear in my opinion that there is substantive authority for the appropriation by the Congress of moneys to be expended for the education of Indian children, including the construction of the facilities which are reasonably necessary to accomplish such education, ^l and that if the language first quoted above is enacted into law, the proposed contract with the school district at Seligman, Arizona, about which you have inquired, could be validly made.²

¹ In the Acting Assistant Solicitor's memorandum of June 17, 1954, to the Commissioner of Indian Affairs, it was concluded that the Secretary of the Interior has authority to provide financial assistance to public school districts for the construction and equipment of public school facilities that are required to accommodate Navajo Indian children who live in reservation areas that are outside such districts.
² Before making any such contract it would be necessary, of course, to consider the authority of the school district to enter into such an arrangement.

1647

OPINIONS OF THE SOLICITOR

AUGUST 2, 1954

This responds to your letter of February 11 to the Bureau of Land Management in which, at the suggestion of Mr. L. A. Wilson, attorney at law of Mahnomen, Minnesota, you asked to be advised concerning the state of the title to the allotment of Oz-ho-we-wush-co-be-nais, deceased White Earth allottee No. 2308, described as the E1/2 SW1/4 sec. 9, T. 145 N., R. 39 W., 5th P.M., Minnesota.

Your correspondent, who apparently represents the present claimant to the property, attacks the correctness of an opinion of the former Solicitor of this Department (M-35089, dated May 28, 1952), in which a re-determination of heirship by the Department was declared to have been proper, and the position was taken that as long as the quantum of Indian blood possessed by heirs of the allottee was unknown it would be improper for the Department to issue to the heirs a patent in fee without an investigation to determine their quantum of Indian blood, and, if found to be full-blood Indians, without determining whether they are competent to handle their own affairs.

The history of the allotment and the departmental proceedings with respect thereto are fully set forth in the opinion, and a copy thereof is enclosed for your information.

The opinion is believed to be correct, and will not be disturbed. Its correctness appears to be questioned primarily because it failed to recognize that the Departmental proceedings would affect the rights of innocent purchasers for value. It is apparent, however, from the very recital in your correspondent's letter that this is not true. The heirs to the allotment were first determined by the Department on June 23, 1920. However, the allotment was first conveyed to one of the predecessors in title of the present claimant on November 19, 1919, which was more than seven months prior to the determination of the heirship. As the allottee was a full blood Indian, the Secretary of the Interior then unquestionably had jurisdiction to determine the heirs of the allottee, and the purchase of the property prior to this determination obviously prevented the purchaser and his successors in title from acquiring the status of bona fide purchasers for value.

Your correspondent also points to an alleged practical inconvenience which would result from such a re-determination of heirship as occurred in the present case. But any prospective purchaser of an allotment in heirship status which was subject to the provisions of the so-called Clapp Amendment could readily have protected himself against the risk of a re-determination of heir-ship by insisting that the mixed-blood heirs apply for the issuance of a patent in fee. The Clapp Amendment makes specific provision for the issuance of patents in fee to such heirs.

In conclusion, I must point out also that if the contention of your correspondent that the jurisdiction of the Secretary of the Interior was exhausted by the original determination of heirship, is well founded, the Department would now be powerless to take any further action with reference to the allotment. Only the United States District Court for the District of Minnesota would have jurisdiction to determine the legal questions involved.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Ownership of Sarracino tract purchased by the Navajo Tribe.

By letter dated November 6, 1953, a copy of which is attached, the Acting Commissioner of Indian Affairs advised the Directors of the Indian Bureau's Albuquerque and Window Rock Area Offices as follows:

Some time subsequent to the date of this letter the Navajo Tribal Chairman, Mr. Sam Ahkeah, and the counsel for the Navajo Tribe, Mr. Norman Littell, discussed the subject of the letter with the then Chief Counsel of the Indian Bureau. Mr. Ahkeah stated that it was his recollection that certain lands in the Canoncito area had been pur-

1648

DEPARTMENT OF THE INTERIOR

AUGUST 2, 1954

chased with Navajo tribal finds, and he questioned whether the opinion expressed in the above-quoted provision of the Bureau's letter was applicable to these lands. The Chief Counsel advised Mr. Ahkeah and Mr. Littell that he would obtain a description of these lands from the field, and that they would then be further advised concerning their title status. The necessary information has now been obtained, and my opinion, which you may wish to forward to Mr. Ahkeah and Mr. Littell, and to the Canoncito Band, is set forth below.

By letter dated November 14, 1949, Mr. H. M. Critchfield, acting for the Commissioner of Indian Affairs, advised the General Superintendent of the United Pueblos Agency, that the Indian Bureau's Washington Office was in receipt of a resolution of the Navajo Tribal Council which authorized the Superintendent:

The last-mentioned act appropriated moneys for the purchase of land "payable from funds held in trust for the particular tribe concerned," with the proviso that:

Pursuant to the authorization contained in the above letter of November 14, 1949, there were executed four conveyances, as follows:

Each of these deeds recites that the conveyance is to "The United States of America in trust for the Navajo Tribe for the use and benefit of the Canoncito Band of the Navajo Tribe."

Since under the appropriation act under which the land was acquired title could be taken only in the name of the United States in trust for the Navajo Tribe, I am of the opinion that the beneficial owner of the land is the Navajo Tribe, in which the incidents of such ownership must be regarded as vested. The addition of the phrase "for the use and benefit of the Canoncito Band of the Navajo Tribe" must be regarded merely as a notation of the present purpose to which the Navajo Tribe wishes to devote the land. The phrase does not create a trust for the benefit of the Canoncito Band. Indeed, the recognition of such a trust would be contrary to the provision of the appropriation act which was applicable to the purchase of the land.

Indian Tribal Government--Statutory Construction--Authority of Indian Tribe Over Liquor Transactions in Areas Under Its Jurisdiction.

Section 1 of the Act of August 15, 1953 (67 Stat. 586, 18 U.S.C. 1161) does not prohibit an Indian tribe from conditioning its assent to transactions in intoxicants within areas of Indian country under its jurisdiction.

Criminal jurisdiction conferred upon a State by 18 U.S.C. 1162 is exclusive except as against the United States.

1649

OPINIONS OF THE SOLICITOR

SEPTEMBER 22, 1954

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Authority of Indian Tribe to condition its assent to transactions in
                 intoxicating beverages within areas subject to its jurisdiction.

With your memorandum of August 9, 1954, you enclosed a copy of an opinion of the Attorney General, State of California (No. 53/277, June 25, 1954) which interprets in certain respects the act of August 15, 1953 (67 Stat. 586; 18 U.S.C. 1161), and states the following conclusion, among others:

You have asked for my opinion as to whether the foregoing quoted statement accords with the views of this Department as to the meaning of the act of August 15, 1953, supra.

Sections 1154 and 1156 of Title 18 U.S.C. prohibit and provide criminal penalties for, in general, the introduction into or possession or sale within Indian country of intoxicating liquor. Section 3113 relates to searches for and seizures of intoxicants about to be or introduced into Indian country. Section 3488 provides that the possession of intoxicating liquors in Indian country is prima facie evidence of its unlawful introduction and section 3618 provides for the seizure, libel and forfeiture of any conveyance used for the introduction of liquor into Indian country. Thus, section 1 of the act of August 15, 1953, in effect, makes these various criminal and punitive Federal statutes, inapplicable to certain acts or transactions on or affecting Indian country, provided that any such act or transaction accords with the applicable laws of the State in which such Indian country is situated and with the requirements of an ordinance adopted by the tribe having jurisdiction over that country.¹

There is, of course, absolutely nothing in the Act or in its legislative history to suggest that the Congress had any intent to influence the content of the liquor laws of any State. This is true, also, respecting the content of any tribal ordinance adopted pursuant to the Act. Indeed, the juxtaposition of the statutory references to the laws of the State and to the tribal ordinances and their inclusion in the same clause with the same absence of modifying or limiting words, indicate that the Congress intended that the scope of such a tribal ordinance is to be as much within the discretion of the tribe as the scope of the State liquor laws is to be within the discretion of the State. The scope of neither appears to be limited by the Act.

If the terms and conditions prescribed by a tribe in its ordinance permitting the sale of liquor on its reservation were in conflict with the applicable State law, and if a person were to sell intoxicants on such a reservation in accordance with the tribal ordinance but in contravention of the State law, the contravention of the State law would subject him to the penalties of 18 U.S.C., sections 1154, 1156, 3113, 3488, or 3618, as the case may be. On the other hand, it is also possible for a tribe to adopt an ordinance under the act of August 15, 1953, and a number of tribes have done so, which does not conflict with State law but in effect imposes conditions in addition to those specified by the laws of the State. For example, ordinances have been adopted which contain, in one form or another, a preference for Indians to engage in the sale of liquor on reservations,² or which require that in addition to the obtaining of a State license, a purveyor of liquor on a reservation shall pay an additional fee to the tribe and obtain from it a tribal license.³ In the latter type of case, a purveyor of intoxicants on such an Indian reservation who fully complied with applicable State law, might nevertheless be in violation of 18 U.S.C., sections 1154,

    ¹ The Attorney General's opinion concedes the constitutional power of Congress to enact such a measure.
    ² Ordinances of Minnesota Chippewa Tribe (17 F.R. 7519); Lower Brule Sioux Tribe of South Dakota (19 F.R. 2573).
    ³ Ordinances of the Blackfeet Tribe of Montana (19 F.R. 1049); Lower Brule Sioux Tribe of South Dakota (19 F.R. 2573) .

1650

DEPARTMENT OF THE INTERIOR

SEPTEMBER 22, 1954

1156, 3113, 3488, or 3618, if he had not also complied with the terms of the tribal ordinance.

By the terms of 18 U.S.C. 1162, (Public Law 280, 83d Cong., 1st sess.), the civil and criminal jurisdiction of the State of California, with certain exceptions not relevant here, was extended to all Indian country within that State. It has been concluded that the effect of section 1162 is, among other matters, to repeal whatever power the tribes within that State may otherwise have possessed to impose their own criminal laws respecting any matter which section 1162 makes subject to the criminal jurisdiction of the State.⁴ From this it follows that while, as noted above, an Indian tribe in California may by ordinance impose conditions consistent with the laws of that State upon the sale of liquor within its reservation, the penalty for violation of such conditions is to be imposed by the United States pursuant to sections 1154, 1156, and 3618 of Title 18, U.S.C., rather than by any provision of tribal law; and if the act which violates a condition of such an ordinance appears also to violate a provision of State law, the State would be free to prosecute as well for the violation of its laws.

What acts would constitute a violation of the liquor laws of the State of California, is not a matter upon which at this time it is appropriate for me to express an opinion. Nor would it be appropriate for me to discuss the liquor licensing authority of the State Board of Equalization, which the Attorney General describes as "plenary and exclusive." He further states that:

The fact that a tribe in California may by ordinance authorize the sale of liquor on its reservation in packages for consumption only off the premises where it is sold would not, in my opinion, impinge upon the foregoing authority of the State Board of Equalization to license sales of liquor on such reservation for consumption both on and off the premises where the liquor is sold. In such circumstances, if any person so licensed by the State were to sell liquor on the reservation for on-premises consumption in accordance with his license, presumably he would be immune from State prosecution and, thus, the license issued by the State agency would be fully effective insofar as State law is concerned. Because of the conflict with the tribal ordinance, however, the person making such a sale would not receive the immunity afforded by the act of August 15, 1953 and, consequently, would be in violation of 18 U.S.C. 1156.

To the extent indicated in the foregoing, the views of this Department diverge from the above quoted conclusion of the Attorney General of California.

To:            Commissioner, Bureau of Indian Affairs
From:        Solicitor
Subject:     Proposed transfer of Lac du Flambeau school

There is attached for your signature a proposed deed which would convey to the Flambeau School District No. 1 certain land owned by the Lac du Flambeau Band of Lake Superior Chippewa Indians, together with the Lac du Flambeau Indian school which is situated thereon. Under the act of June 4, 1953 (67 Stat. 4 I; 25 U.S.C. 293a):

"The Secretary of the Interior, or his authorized representative, is authorized to convey to State or local governmental agencies or to local school authorities all the right, title, and interest of the United States in any land and improvements thereon and personal property used in connection therewith heretofore or hereafter used for Federal Indian school purposes and no longer needed for such purposes:

⁴ "* * * It is our view that the act, by providing that the State shall have jurisdiction over crimes and offenses committed by or against Indians in the Indian country to the same extent that the State has jurisdiction over crimes and offenses committed elsewhere within the State, except as limited in Section 2 (b), made such jurisdiction of the State exclusive. The extent of the State's jurisdiction is full and complete and permits of no such jurisdiction by any other body save the Federal Government and subordinate agencies of the State itself. The act also explicitly states that the criminal laws shall have the same force and effect within Indian country as they have elsewhere within the State. The effect of this provision clearly is to extend both the substantive and procedural laws of the State to crimes committed by Indians. Thus, State law defines not only the criminal offenses against the State and the penalties therefore, but it also defines the courts in which and the manner in which persons accused of committing such offenses are to be tried." Letter, dated June 4, 1954, from Assistant Secretary of the Interior Lewis to Mr. E. Morgan Pryse, Area Director, Bureau of Indian Affairs, Minneapolis, Minnesota.