Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1776-1800

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DEPARTMENT OF THE INTERIOR

DECEMBER 26, 1956

under the allotment laws in force prior to 1919, which contained no provision for a mineral reservation to the tribe. The lands subsequently passed into unrestricted private ownership and were purchased from the private owners in 1940 under authority contained in the Indian Reorganization Act of 1934. Under the provisions of that Act, the title was conveyed to the United States in trust for the Blackfeet tribe. In an exchange transaction between the tribe and Helen Conway Brown, the latter, who had received in allotment some 400 acres under the 1919 Act conveyed those lands to the United States in trust for the Blackfeet tribe, and in exchange therefore received a trust patent dated October 2, 1952, for the 80 acres of land embraced in her application for a patent in fee. The record relating to this transaction shows that the lands involved were of equal value and there is nothing to indicate any intent on the part of the Blackfeet tribe to reserve the underlying minerals. The trust patent issued to Mrs. Brown contains no mineral reservation, and under the rule announced above, that patent must be held to constitute a valid conveyance not only of the surface but also of whatever mineral rights the Blackfeet tribe had in the lands.

The record does show, however, that the 1940 conveyance to the United States in trust for the Blackfeet tribe contained the following exception and reservation:

Subject to the foregoing exception and reservation, and subject also to any other valid and subsisting encumbrances of record, it is my opinion that a patent in fee should be issued to Mrs. Brown as applied for authority for the issuance of such patent in fee is found in the Act of May 14, 1948 (62 Stat. 236; 2.5 U.S.C., sec. 483).

DISTRIBUTION OF ESTATE OF FULL-BLOOD
CREEK INDIAN--AUTHORITY OF OKLAHOMA
STATE COURTS

In proceedings to probate the restricted estate of a deceased Indian of the Five Civilized Tribes in Oklahoma substantial compliance must be had with the notice provisions of section 3 (b) of the act of August 4, 1947 (61 Stat. 731).

The Oklahoma law of wills applies in the case of restricted estates of deceased Indians of the Five Civilized Tribes in all particulars save as modified by the proviso contained in section 23 of the act of April 26, 1906 (34 Stat. 137), as amended.

The will of a deceased Indian of the Five Civilized Tribes which was acknowledged and approved as required by section 23 of the act of April 26, 1906 (34 Stat. 137), as amended, can effectively devise restricted lands without regard to any limiting provisions of the Oklahoma law, but such will cannot effectively disinherit a surviving spouse with respect to other types and classes of property.

The State courts of Oklahoma are without authority to administer the restricted estate of deceased Indians of the Five Civilized Tribes, and such courts are likewise without authority to consider and allow claims against the distributive shares of Indian heirs which are restricted by the act of August 4, 1947 (61 Stat. 731).

To:            The Secretary of the Interior
From:        The Solicitor
Subject:     Distribution of the Estate of Martha Jackson Chisholm, deceased full-blood Creek Indian, Roll No. 9615

At your request this office has obtained from the Regional Solicitor, Tulsa, Oklahoma, the entire

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OPINIONS OF THE SOLICITOR

JANUARY 4, 1957

record of the Bureau's Area Office in the matter of this estate. This action was prompted because Mr. Clem H. Stephenson, Seminole, Oklahoma, has been insisting that the estate of this deceased full-blood Indian be distributed under the provisions of an order of the county court of Okfuskee County, Oklahoma, dated April 17, 1956, which was filed with the clerk of the court on .June 21, 1956. This order purports to distribute the estate and allow certain claims against individual distributees. In view of the submission of the records to this office and the questions presented, the Regional Solicitor has advised the Area Director to withhold distribution.

This estate has been the subject of protracted litigation since the death of the decedent in 1949. In view of the multiplicity of suits and the complexity of the questions involved, I am setting forth below a summary of the pertinent facts as they appear from an examination of the files.

Martha Jackson Chisholm died testate on July 9, 1949, leaving an estate valued at $195,553.98. She was survived by her husband, Buster Chisholm, a full-blood Cherokee Indian, enrollee No. 16300; an adopted son, Eugene Davis, Jr., a brother, Robert .Jackson; and four nephews, Eugene Jackson, Winifred Saber-Jackson, Andrew Jackson, Jr., and Kenneth Dale Jackson, the children of a predeceased brother, Andrew Jackson. All of the decedent's collateral relatives, named above, are full blood Creek Indians.

The decedent's last will and testament, dated June 24, 1949, devised and bequeathed to the surviving husband, Buster Chisholm, 10 acres of restricted purchased land valued at $6,500; certain household goods and other personal property appraised at $4,304; and $10,000 in cash. The will bequeathed one dollar to the adopted son, leaving all of the balance of the estate to the brother and nephews named above, in equal shares. During the lifetime of the testatrix the will had been acknowledged before and approved by the County Judge of Okfuskee County in accordance with the provisions of Section 23 of the Act of April 26, 1906 (34 Stat. 137), as amended by the Act of May 27, 1908 (35 Stat. 315).

On July 11, 1949, the surviving husband filed case No. 3000 in the Okfuskee County Court to probate a purported will which had been executed in 1947. Notice of the pendency of that action was not served on the Superintendent (now Area Director) as required by section 3 (b) of the Act of August 4, 1947 (61 Stat. 731). On July 14, 1949, Mr. I. V. Hollis, the executor named in the decedent's last will of June 24, 1949, filed in case No. 3000 a contest of the earlier will involved in that case, and at the same time he filed case No. 3002 in which he offered the later will of June 24, 1949, for probate. The sworn statement of Mr. Hollis' attorney shows that copies of these two first pleadings filed by Mr. Hollis on July 14, 1949, were served that day by registered mail on the United States probate attorney at Wewoka, Oklahoma, and copies likewise were mailed to the United States probate attorney at Muskogee, Oklahoma. The cases were consolidated by the court under case No. 3002, and the United States probate attorneys at Wewoka, Oklahoma, and his successors in office appeared thereafter from time to time and participated in the proceedings as developments occurred. As the litigation progressed over a period of seven years, the Area Director made several disbursements out of the decedent's restricted funds in payment of various claims and expenses allowed by the county court in case No. 3002.

The surviving husband, Buster Chisholm, died on July 21, 1949, and Mr. Harry Scoufos was appointed administrator of the husband's estate in case No. 3004. Although that action is still pending, it appears from available information that Buster Chisholm was survived by his father, William Chisholm, a full-blood Shawnee Indian who will be entitled to inherit the entire estate of Buster Chisholm.

Mr. Scoufos, as administrator of the estate of Buster Chisholm, has appeared in his representative capacity in all proceedings relating to the estate of Martha Jackson Chisholm. Mr. Scoufos filed an election to take under the Oklahoma statutes of descent (84 O.S.A., sec. 44). Mr. .J. D. Fuller, a former husband of the decedent, who had divorced her in 1940, filed a contest against the probate of the will in which he alleged that he was entitled to one-half of the estate as surviving spouse under the provisions of 84 O.S.A., sec. 44.

The Okfuskee County Court admitted to probate the last will of Martha Jackson Chisholm, dated June 24, 1949, and held that Mr. Fuller was the surviving spouse and was entitled to share in the estate under the laws of succession. The judgment of the county court was affirmed on appeal to the district court. Upon further appeal, the Oklahoma Supreme Court rejected Mr. Fuller's claim and held that Buster Chisholm was the surviving spouse of Martha Jackson Chisholm (280 P. (2d) 720 (Okl-1954) .)

On April 17, 1956, the County Court of Okfuskee County entered its final decree of distribution in the matter of the estate of Martha Jackson Chisholm. This decree distributes the estate on the theory that the decedent's will is effective to disinherit the surviving husband as to restricted lands,

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DEPARTMENT OF THE INTERIOR

JANUARY 4, 1957

but is ineffective against the husband's rights as a forced heir under the laws of succession with respect to all other classes of property belonging to the decedent. Thus, under the decree, certain restricted lands are distributed to the decedent's brother and four nephews in equal shares of one-fifth each, as provided by the will. All of the rest and residue of the estate (less $1.00 bequeathed to the adopted son) is distributed; one-half to the administrator of the estate of Buster Chisholm, deceased, and one-tenth each to the decedent's brother and four nephews, named above.

The final decree allows certain costs, executor's fees, and fees to the executor's attorneys. The court also allowed attorneys' fees to the attorneys for the brother and nephews of the decedent, and also allowed various amounts to these attorneys for advancements allegedly made by them to their clients during the pendency of the litigation and for services allegedly rendered in unrelated matters.

1. Whether the probate proceedings are defective for want of compliance with the requirement of service of notice provided by section 3 (b) of the Act of August 4, 1947 (61 Stat. 731)?

2. Whether the probate court correctly applied the law, Federal and state, relating to the testamentary disposition of restricted property by deceased Indians of the Five Civilized Tribes?

3. Whether the probate court exceeded its authority in attempting to distribute restricted property to the administrator of the estate of a deceased full-blood Indian of the Five Civilized Tribes?

4. Whether the probate court exceeded its authority in attempting to allow and direct payment of claims against the distributive shares of full blood Indians of the Five Civilized Tribes?

We are aware of no reported decision involving the statute quoted above. However, in cases arising under similar Federal statutes requiring service of notice on a superintendent in Indian litigation, where the exercise of jurisdiction has been challenged, the courts have inquired first whether the record contains evidence of an attempt to comply with the statutory provision for the service of notice. Where there has been a total failure to comply with the requirements of the statute in any particular, the courts have generally regarded the non-compliance as a fatal defect. See Goddard et al. v. Frazier, 156 F. (2d) 938 (1946); Collinson v. Threadgill, 252 Pac. 827 (Okl.--1927). But where there has been substantial compliance with the statute and the party entitled to notice thereunder has failed to interpose timely objection to technical deficiencies, but has participated and acquiesced in the proceedings, the courts have upheld the exercise of jurisdiction notwithstanding technical irregularities in the service of notice. See Shimonek v. Tillman, 1 Pac. (2d) 154 (Okl.-1931); United States v. Thompson et al., 128 F. (2d) 173 (1942). The latter case is particularly in point, since it involved an interpretation of section 3 of the Act of April 12, 1926 (44 Stat. 240) which, like section 3 (b) of the 1947 act, provides a detailed procedure for serving the superintendent with notice of the pendency of litigation affecting the restricted property of Indians of the Five Civilized Tribes. Service of notice on the superintendent in that case was made after the expiration of the ten day period prescribed by the statute. The United States intervened in the case, removed it to the Federal court, and moved to quash the service of notice. The motion to quash was overruled, and the United States did not thereafter participate actively in the proceedings in the trial court. It was held on appeal that the government's intervention made it a party to the action and cured any irregularities in the service of notice.

Applying the foregoing principles to the case at hand, it is clear that no objection should now be interposed to the probate proceedings in case No. 3002 for failure to comply strictly with the notice provisions of the 1947 act, supra. The statute provides that the party filing the first plead-

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OPINIONS OF THE SOLICITOR

JANUARY 4, 1957

ing shall, within ten days of filing, serve upon the superintendent for the Five Civilized Tribes a notice of pendency of the action. Meticulous compliance was had with the requirements of this statute except that the notice was addressed to the two probate attorneys in Wewoka, and Muskogee, Oklahoma, instead of the superintendent (now area director) at Muskogee. This service was followed by the appearance and continued participation in the proceedings by the probate attorney, and the disbursement of restricted funds by the superintendent (now area director) during the course of the litigation. For the reasons given, it is believed that the proceedings in case No. 3002 cannot be said to be defective for want of compliance with the provisions of section 3 (b) of the Act of August 4, 1947, supra.

In the case of Blundell v. Wallace, 267 U.S. 373 (1925), the Supreme Court passed upon the meaning and scope of the above quoted statute. The court reviewed the congressional policy respecting the Indians of the Five Civilized Tribes and found therefrom that the local law of wills was applicable to these Indians except to the extent that such local law had been modified by the proviso contained in section 23 of the 1906 act, quoted above. The court observed:

An important part of Oklahoma's "local law of wills" is found in 84 O.S.A., sec. 44, which reads:

It is manifestly necessary to reconcile the statutes, Federal and State, which have been quoted above. The matter was squarely presented to the Oklahoma Supreme Court in the case of Long v. Darks et al., 87 Pac. (2d) 972 (Okl.--1939). The testator in that case was a full-blood Creek Indian whose will had been acknowledged and approved as provided by the 1906 act, supra. By the terms of the will the surviving spouse was devised and bequeathed property which was less in value than she would have received under the laws of succession. The court said:

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DEPARTMENT OF THE INTERIOR

JANUARY 4, 1957

The court concluded in the Long case that the widow was estopped from asserting her rights under the laws of succession because of her conduct in having joined in the action to probate the will, and having accepted benefits thereunder. It is quite clear, however, that the distribution to the widow in accordance with the will, was predicated solely on the doctrine of estoppel, the court rejecting in its entirety the idea that the proviso in section 23 of the 1906 act had any application to property other than restricted lands.

Another question has been raised and should be disposed of here. The surviving husband, Buster Chisholm, died shortly after the death of Martha Jackson Chisholm, and before her will was admitted to probate. It has been suggested that he was required by law to elect between taking under the will or under the laws of succession, and that his failure to exercise his personal right of election before he died rendered the court powerless to order distribution to him as a forced heir under 84 O.S.A., sec. 44. We disagree. The statute makes no requirement that the surviving spouse elect between taking under the will or under the laws of succession. In the case of Bank of Commerce and Trust Company v. Trigg, 280 Pac. 563 (Okl.--1929), this statute was distinguished from those of other jurisdictions which require the surviving spouse to elect, and which provide for distribution under the will if an election is not made. The court said:

A contrary view to that expressed in the Trigg case would do violence to the language of the Oklahoma statute and, indeed, would reduce it to impotence. The statute expressly limits the testamentary power of a married person for the benefit and protection of the surviving spouse. If, in cases like the one presently under consideration, the survivor's failure to elect were to result in distributing the estate under the will, the very thing prohibited by the statute could be accomplished.

On the basis of the authorities cited above, it is our view that the court was correct in holding that the will of Martha Jackson Chisholm was effective to disinherit the surviving spouse as to restricted lands but was ineffective against the rights of the surviving spouse as a forced heir with respect to all other types of classes of property belonging to the estate.

The answer to both of these questions depends upon a single principle of law. The entire restricted estate of Martha Jackson Chisholm passes by inheritance and devise to Indians of the Five Civilized Tribes of one-half or more Indian blood. All such property is classified as restricted by the Act of August 4, 1947 (61 Stat. 731). It is well settled in Oklahoma that the restricted property of deceased Indians of the Five Civilized Tribes is not subject to administration by the probate court. See House v. United States, 144 F. (2d) 555 (1944); Moore v. Jefferson, 120 Pac. (2d) 983 (Okl.--1942); Ryburn v. Carney, 39 Pac. (2d) 9 (Okl.--1935). Accordingly, it must be concluded that the county court was without authority to order the distribution of restricted property to the administrator of the estate of Buster Chisholm. The court was likewise without authority to order the payment of claims against the distributive shares of the full-blood Indian beneficiaries named in the decedent's will.

It is recommended that the Area Director be instructed to proceed with the distribution of the estate of Martha Jackson Chisholm in accordance with the final decree of the county court of Okfuskee County dated April 17, 1956, except in the following particulars:

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OPINIONS OF THE SOLICITOR

JANUARY 4, 1957

to their respective accounts on the books and records of the area office and held subject to supervision in accordance with applicable regulations. Any persons having claims against these distributive shares should be advised by the area office as to the procedure to be followed in presenting their claims to that office for consideration.

IMPOSITION OF NORTH DAKOTA STATE FISH AND
GAME LAWS ON INDIAN CLAIMING TREATY
AND OTHER RIGHTS TO HUNT AND FISH

An Indian, like any other citizen, when outside the confines of his reservation, is amenable to the State law, in the absence of treaty provisions according him or his tribe special rights. If there is no treaty giving an Indian an unrestricted right to hunt and fish off his reservation, he is in no better position than anyone else as to proving that wild game in his possession during a closed season was legally killed.

Solicitor's Opinion of June 15, 1934, 54 I.D. 517, is overruled insofar as it suggests that the hunting rights on Indian reservations were not protected for the future by the Treaty of Point Elliott, 1855, or that, despite any such protection, such rights were plainly abrogated by the Migratory Bird Treaty Act, 39 Stat. 1702.

To:            James D. Geissinger, Regional Solicitor, Denver
From:        Solicitor
Subject:     Imposition of North Dakota State fish and game laws on Indians claiming
                 treaty and other rights to hunt and fish

I have been asked to comment on a memorandum by the Field Solicitor, Billings, in the matter of the North Dakota State fish and game laws and Indians claiming treaty rights to hunt and fish.

Because of the great number of treaties which have been negotiated with the Indians of the tribes represented in North Dakota, and also because of the multitude of different tribal organizations and Federal laws and regulations which affect particular tribes and reservations, it is difficult to answer the question without making the answer very general.

The general position taken by the Bureau of Indian Affairs and the Department for many years has been that a State has jurisdiction over Indians while outside of their reservation within the State. It is fundamental that an Indian, like any other citizen, when outside the confines of his reservation, is amenable to the State law, in the absence of treaty provisions according him or his tribe special rights.

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DEPARTMENT OF THE INTERIOR

FEBRUARY 11, 1957

to his possession during a closed season. Certainly, if the game warden encountered the finder with game in his possession he would be justified in making an arrest, and the finder would be required to prove that the killing was not illegal. And, if we admit that there is no treaty giving an Indian an unrestricted right to hunt and fish off of his reservation, he is in no better position than anyone else as to proving that wild game in his possession during a closed season was legally killed.

I am unable to agree with the Field Solicitor's opinion that, because the killing was legal while upon the reservation, the Indian has an unqualified right to transport the wild game to any point within the State. I believe that this concept of the law was fully covered in the celebrated case of Geer v. Connecticut, 161 U.S. 519; cf. Ward v. Race Horse, 163 U.S. 504. In the Geer case, the charge was not one of unlawful killing but was the unlawful possession of game birds, for the purpose of transporting them beyond the limits of the State. The part herein pertinent to this problem was stated by the court as follows:

"We must consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus not overlook the authority of the State over property in game killed within its confines, and the consequent power of the State to follow such property into whatever hands it might pass with the conditions and restriction deemed necessary for the public interest."

Furthermore, the opinion expressed, in respect to the Migratory Bird Treaty Act on page 6, is not in accord with the last memorandum opinion of the Solicitor of the Department dated February 10, 1942. Some confusion has been caused by the opinion of the Solicitor of June 15, 1934, 54 I.D. 517, that discussed a right of Indians to hunt migratory birds specified in the Act of July 3, 1918. 40 Stat. 755, which was itself based upon the treaty of December 8, 1916, 39 Stat. 1702, between the United States and Great Britain. The opinion held that the Indians' hunting rights were subject to the act, but that the game and fishing laws of the State were not applicable to Indian reservations. On March 13, 1941, the United States District Court, District of Idaho, Eastern Division, in the case of United States v. Cutler, 37 F. Supp. 724, held that the treaty with the Shoshone and Ban neck Tribes of Indians (15 Stat. 673) as applicable to the Indians' reserved right to hunt should be strictly construed in their favor. After this court decision, the Solicitor of the Department, in a memorandum opinion dated February 10, 1942, pointed out that certain statements in the opinion rendered on June 15, 1934, on hunting rights of Swinomish Indians (54 I.D. 517), may appear inconsistent with the foregoing conclusions. The earlier opinion is overruled insofar as it suggests either that the hunting rights on the reservation were not protected for the future by the treaty under consideration, or that, despite any such protection, such rights were plainly abrogated by the Migratory Bird Treaty Act, supra. These positions can no longer be maintained in the light of the court decisions rendered after the 1934 opinion was issued. Chippewa Indians v. United States, 301 U.S. 358 (1937); United States v. Cutler, supra. It is possible that a copy of this 1942 opinion was not furnished the Field Officers at that time. A copy of that opinion is enclosed.

We agree with the observations contained in the last sentence of the subject memorandum opinion, appearing on page 5, to the effect that before undertaking an exhaustive study of the many treaties and acts of Congress in relation to the Chippewa Indians, we should await the presentation of an actual case involving the questions referred to so that the facts and circumstances may be thoroughly considered and properly dealt with.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Payments to Indians under provisions of act of July 24, 1956, 70 Stat. 625

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OPINIONS OF THE SOLICITOR

MARCH 5, 1957

A study of :the legislative history of the act, supra, indicates that it was the intent of Congress to give a specified sum to the family units which vacated the area taken for the Pine Ridge Aerial Gunnery Range in compensation for the losses, expenses, and inconveniences incident to moving and reestablishing themselves elsewhere. In general it may be said that no more than 125 persons may receive payments under the act. Payments may be made to only those persons who (1) are named in the Report cited, and (2) are found to have been domiciled until August 1, 1942, on land taken for the gunnery range, and (3) who were forced to move from their former homes to other locations as a result of the taking. The committee formed by the Superintendent, as an aid in the proper administration of the act, has certified 82 names as meeting all these requirements. An additional name, that of Pearl Shangreau O'Rourke also appears to have been certified to and is numbered 83 on the certified list prepared by the Superintendent's committee.

With regard to the specific questions which were submitted by the Area Director, Aberdeen, I construe the act as follows:

The statute by its language incorporates into its provisions the contents of a Report containing the names of 125 persons who were believed to have been "determined" to meet all the qualifications set forth in the act. We have given the report careful study and find it to be so imbued with ambiguity as to raise doubt about what it might be that the report determines, if the report does determine anything. At no one place in the report are persons clearly designated as the "head of each of the 125 Indian families" entitled to payment. We disagree with the Area Director's interpretation limiting payments to those persons only who are listed in Appendix 15 "List of Families with Data regarding Status in 1942," since this list apparently relates chiefly to livestock operations within the area, giving the number of persons in the various family units, the number of cattle and horses and the quantity and condition of farm machinery owned by the people listed. Appendix 15 provides no information as to the location of their residences, and whether or not they incurred losses by reason of being forced to vacate the area taken for the gunnery range. Names of other persons who seem to meet those requirements can be found elsewhere in the report. Therefore, since it is our opinion that the report does not provide adequate identification of the intended beneficiaries, the aid of an administrative committee is essential to accomplish the purposes outlined by the act, and we believe it is both justifiable and feasible to make the authorized payments on the basis of certified lists submitted by the committee.

For the purposes authorized by this act, all adults whether married or unmarried, whose names appear in Appendices 15 or 16 may receive the sum specified to be paid, if they meet the other requirements set out above. Payments may be made immediately to 83 persons named in the report whom the committee appointed by the Superintendent of the Pine Ridge Agency has certified as having been domiciled on August 1, 1942, on tribal land which was taken for the Pine Ridge Aerial Gunnery Range. The committee certified the names of Frances and Edith Clifford with the notation that they lived with their father. Apparently, the committee believed that since these two persons owned cattle which had to be moved, they were entitled to the payments made to others. We believe this decision is valid and does not do violence to the law.

2. Whether payment must be made to those heads of families who were included in the 1952 report who, on further investigation, were found not to have been domiciled within the taking area on August 1, 1942.

The act directs that a payment of $3,500 be made to the head of each of the 125 families named in

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DEPARTMENT OF THE INTERIOR

MARCH 5, 1957

the report cited. This report was the best information available on the date of enactment. However, where the facts prove the report to be in error, additional authorization must be obtained before payments may be made to any person who cannot now be certified as qualifying under the interpretation set forth in this opinion.

UTILIZATION OF LANDS IN THE NAVAJO
INDIAN RESERVATION FOR GLEN CANYON
DAM AND RESERVOIR

The Act of February 5, 1948 (62 Stat. 17, 25 U.S.C. sec. 323), providing for "rights-of-way for all purposes" over and across Indian lands applies to sites for all features and facilities, including dams, reservoirs, power plants and construction and operating camps, appropriate to water control projects undertaken by the United States.

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Utilization of lands in the Navajo Indian Reservation for Glen Canyon Dam and Reservoir

I have been requested by both the Bureaus of Indian Affairs and Reclamation to advise whether, for use in connection with the Glen Canyon Unit of the Colorado River Storage Project, the Secretary of the Interior has the authority administratively to make available lands in the Navajo Indian Reservation for use in connection with the construction, operation and maintenance of Glen Canyon Dam, power plant and reservoir. This would embrace use of the land for dam and reservoir site, construction and operating camp site and associated uses such as borrow pits and other incidental requirements. The Colorado River Storage Project, of which the Glen Canyon Unit is a principal feature, is authorized by the Act of April 11, 1956 (70 Stat. 105).

The Colorado River Storage Project is a Federal reclamation project and by the express terms of Section 4 of the Act of April 11, 1956, the Secretary, except as otherwise provided in that Act, in constructing, operating and maintaining the units of the Colorado River Storage Project is to be governed by the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 388, and acts amendatory thereof or supplementary thereto). The Glen Canyon Unit is one of the units specifically authorized by Section 1 of the Act of April 11, 1956, to be constructed, operated and maintained as an initial unit of the storage project.

Section 1 of the Act of February 5, 1948 (62 Stat. 17-18; 25 U.S.C. Sets. 323-328), empowers the Secretary of the Interior to grant "rights-of-way for all purposes" across Indian lands. Section 5 of the Act makes it in terms applicable to rights-of way for the use of the United States. The availability of this Act turns upon the meaning to be accorded the phrase "rights-of-way for all purposes."

Whatever may be its meaning at common law or in nongovernmental usage, the use of the term "right-of-way" to characterize lands to be occupied as the site of works comprising water control projects is neither novel nor unusual in legislative enactments dealing with authorization to permit the use of lands under the control of the United States, including Indian lands.

Rev. Stat. 2339 enacted in 1866 recognized "right of-way" over the public lands for "ditches and canals." Rev. Stat. Sec. 2340 enacted in 1870 referred to rights to "ditches and reservoirs" as may have been recognized by Rev. Stat. Sec. 2339. The two sections are codified together as 43 U.S.C. Sec. 661. As it is perhaps unnecessary to add, they constitute the foundation stone of the systems of water law of the Western States. The Supreme Court has held that together these sections granted "right-of-way" over the public lands for "ditches, canals and reservoirs." (Emphasis supplied) Utah Power and Light Co. v. United States, 243 U.S. 389, 405 (1917).

Section 18 of the Act of March 3, 1891, as amended (43 U.S.C. Sec. 946), dealing with rights-of-way through the public lands and reservations of the United States, including Indian reservations, for purposes of irrigation or drainage refers to "rights-of-way" for, among other purposes, reservoirs.

The term "right-of-way" is used in the Act of January 21, 1895, as amended (43 U.S.C. Sec. 956), to characterize land to be occupied by reservoirs

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OPINIONS OF THE SOLICITOR

MARCH 22, 1957

although this Act is specifically made inapplicable to Indian reservations. The Act authorizes rights of-way in connection with mining, quarrying, and timbering and for the purpose of furnishing water for domestic, public and other beneficial uses.

A principal source of Departmental authority in connection with the grant of rights-of-way through public lands and reservations, including Indian reservations, is the Act of February 15, 1901, as amended (43 U.S.C. Sec. 959). This Act authorizes and empowers the Secretary of the Interior to grant rights-of-way for a wide variety of facilities, including, among others, "dams and reservoirs."

These statutes enumerate various purposes for which, under the conditions therein specified, "rights-of-way" may be granted by the Secretary of the Interior, or is granted upon the filing of requisite documents with the Secretary. Their significance for our purpose lies in the Congressional recognition they evidence that "right-of-way" is an appropriate term of reference to describe land to be occupied by such features of water control development as dams and reservoirs. That they are not all applicable to Indian reservations is, in this connection, quite immaterial.

Viewing the phrase "rights-of-way for all purposes" in the Act of February 5, 1948, in the context of the foregoing enactments, I have no hesitancy in concluding from the text of the statute itself that by the term the Congress intended to embrace at the very least those purposes it had included in statutes which specifically enumerated purposes for which rights-of-way might be granted. I am fortified in this conclusion by the construction the Supreme Court has placed upon the term "right-of-way" when used in a statute which failed to enumerate the kinds of works for which a right-of-way might be granted. The Act of May 14, 1896, authorized and empowered the Secretary of the Interior "to permit the use of right-of-way * * * upon the public lands and national forests of the United States * * * for the purposes of generating, manufacturing or distributing electric power." Of this statute the Supreme Court has stated, "That it contained no express mention of ditches, canals and reservoirs is of no significance, for it was similarly silent respecting power houses, transmission lines and subsidiary structures. What was done was to provide for all in a general way without naming my of them." (Emphasis supplied) Utah Power & Light Co. v. United States, supra, at page 406. If a statute referring to right-of-way for power purposes embraces use of land for all works appropriate to power purposes, a fortiori, a statute authorizing rights-of-way "for all purposes" must embrace all land needed for constructing, operating and maintaining a water control project.

Any doubt that the Act of February 5, 1948, should be construed broadly to embrace all facilities in connection with water control projects is removed by reference to its legislative history. The legislation that resulted in the Act was proposed by this Department as a substitute for a measure that had been introduced dealing with rights-of-way for certain purposes through lands of certain classes of members of the Osage Tribe of Indians. The then Under Secretary of the Department, in identical letters to the Speaker of the House and the President pro tempore of the Senate dated July 22, 1947, proposed the general form of legislation in order to avoid, when considering applications for rights-of-way over Indian lands, the examination of a plethora of statutes to determine which, if any, covered the particular purpose for which a right-of-way was being sought or the particular category of lands which the right-of-way would affect. The Department also adverted to difficulties encountered in obtaining signatures of individual Indian allottees to easement deeds which were required to be executed by the Indian owners and approved by the Secretary of the Interior in cases when a right-of-way affected allotted lands and could not be granted under the then existing statutory authorities. The general legislation was proposed as a means of overcoming these difficulties by prescribing a general blanket authority which could be utilized in all cases. The following quotations from the Department's identical letters of July 22, 1947, are illustrative of the objectives and purposes sought to be achieved by the Act:

1786

DEPARTMENT OF THE INTERIOR

MARCH 22, 1957

It will be obvious from the above that it was the intendment of the 1948 act to draw together all of the authorities theretofore existing; not to restrict purposes theretofore recognized but to embrace them all and to clarify by eliminating inconsistencies and artificial distinctions and limitations. And there can be no doubt, because of the express provisions of Section 5, that it was intended to make the United States itself expressly eligible for grants of rights-of-way for any and all purposes theretofore embodied by specific right-of-way acts applicable to Indian lands. Now to read the term "right-of-way" as being inapplicable to such purposes as dams, reservoirs, construction and operating camps and appurtenances required in connection with Federal water control projects would be neither to simplify nor to unify the administration of Indian law. Rather than permitting simplification and uniformity it would continue the general confusion and complexity concerning which the Department had complained.

In recommending passage of the legislation, the Senate Committee on Public Lands referred to the Department's letter in explanation of the purposes of the proposed legislation, and the Committee stated that, "It is the judgment of your Committee that there is a real need for additional legislation relating to rights-of-way on Indian lands of all reservations." (Sen. Report No. 823, 80th Congress, 2nd Sess., page 2.) There is no House report on the broader form of that legislation since the House had adopted the original version of the legislation dealing only with Osage lands prior to the receipt of the Department's recommendations for broadening the scope of the bill. Following adoption of the broader form of legislation by the Senate, the House concurred in the Senate version and the measure thus became law. No comment was made concerning the legislation on the floor of either House of Congress. See 94 Cong. Rec. 500, Jan. 26, 1948, ibid, 588, Jan. 27, 1948.

But notwithstanding the foregoing, it might be argued that the meaning of the term right-of-way as used in the Act of February 5, 1948, is clear and that there is therefore no occasion to resort to extrinsic legislative aids to determine its meaning.

There are two answers. In the first place the term right-of-way as used in statutes dealing with authority to occupy publicly owned lands is not necessarily limited to a right of passage or to the land occupied therefore. A by no means exhaustive search of the statutes of the 17 Western States reveals express references in the statutes of 10 of these states to "rights-of-way" for, among other purposes, reservoirs.¹ Consequently it cannot be said that even on its face the phrase, coupled with the phrase "for all purposes," is so limited in meaning as to preclude examination of earlier statutes and legislative history to determine the intent of the Congress.

Secondly, no so-called rule or canon of statutory construction is subject to greater caution in application than the oft-heard statement that where the literal meaning of words in a statute is clear, resort to extrinsic aids to assist in interpretation will not be made. The cases in which the courts have refused to apply this precept are legion. As Judge Learned Hand has so aptly stated, "There is no surer way to misread any document than to

¹ Colo. Rev. Stats., 1953, Chap. 112--3--37; Idaho Code Sec. 58-601; Sec. 81-804, Repl. Vol. 5, Rev. Code Mont., 1947; Sec. 8047, Nev. Compiled Laws, Suppl. 1931-1941; Sec. 75--23--20 New Mexico Stats., 1953; Sec 61-0119, No. Dak. Rev. Code 1943; Title 82, Sec. 2, Okla. Stats., Anno.; Sec. 541.240 Ore. Rev. Stats., 1953; Sec. 61.0147 So. Dak. Code 1939; Sec. 73--7--11 Utah Code Anno. 1953. Most of these statutes confer a "right-of-way" over lands of the State for such purposes among others as reservoirs and dams.

1787

OPINIONS OF THE SOLICITOR

MARCH 22, 1957

read it literally . . ." Guiseppi v. Walling, 144 Fed. 2d. 608, 624 (concurring opinion).

The principle is not looked upon with favor by the Supreme Court. In Employees v. Westinghouse Corp., 348 U.S. 437 (1955) Mr. Justice Frankfurter, announcing the judgment of the Court in an opinion in which Mr. Justice Burton and Mr. Justice Minton concurred, stated (at page 444):

In Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952), the Court reminds that, "literalness is no sure touchstone of legislative purpose."

In Farmers Irrigation Co. v. McComb, 337 U.S. 755 (1949), the Court states (p. 764), "But we do not 'make a fortress out of the dictionary.' And we have, therefore, consistently refused to pervert the process of interpretation by mechanically applying definitions in unintended contexts."

The view of the Supreme Court on the frailties of the "literal meaning" rule is cogently set forth in U.S. v. Dickerson, 310 U.S. 554 (1940). There the Court states (at pages 561, 562):

Perhaps the clearest statement that the so-called "literal meaning" rule is not inflexible is to be found in the oft-cited opinion of Mr. Justice Holmes, speaking for the Court in Boston Sand & Gravel Co. v. United States, 278 U.S. 4 1 (1928):

The foregoing, particularly the last two quotations, effectively dispose of any contention that consideration of earlier statutes and of the legislative history of the Act itself is inappropriate in construing the Act of February 5, 1948.

I am mindful that one of my predecessors has expressed the opinion that the Act of February 5, 1948, is inapplicable to reservoir sites. Opinion M-35093, March 28, 1949. The subject received only the most casual discussion in that opinion, however, and it is quite apparent from the text thereof that consideration had not been given either to the statutory pattern antecedent to the Act of February 5, 1948, or to the objectives sought to be achieved by that Act. In any event, my views being as above indicated, the conclusion reached in Opinion M-35093 as to reservoir sites is overruled.

In view of the foregoing, I conclude that pursuant to the Act of February 5, 1948, the necessary lands of the Navajo Reservation may be made available for use in connection with the construction, operation and maintenance of Glen Canyon Dam and Reservoir and associated facilities to whatever extent and subject to whatever conditions the Secretary of the Interior may determine. This being my conclusion, it is unnecessary to consider whether the required lands may be made available to the United States under the Act of February 15, 1901, supra, or Section 13 of the Act of June 25, 1910 (43 U.S.C. 148).

1788

DEPARTMENT OF THE INTERIOR

MARCH 27, 1957

INDIAN FUGITIVE FROM STATE PRISON--
CAPTURED ON INDIAN RESERVATION--
STATE JURISDICTION

Robert S. Lowe, Esq.
County and Prosecuting Attorney
Carbon County, Wyoming
P.O. Box 875
Rawlins, Wyoming

I have your letter of March 15 regarding the case of State v. Sitting Eagle. As I understand the matter, you are prosecuting an Arapaho Indian, although you state there is a possibility he may be a Shoshone, on a charge of escape from the Wyoming State Penitentiary. He was sentenced to that penitentiary by the 7th Judicial District Court in and for Fremont County, for stealing an automobile from within the city limits of the city of Riverton. You state that the defendant's attorney has demurred to your prosecution for escape from the penitentiary for the reason that the defendant had not been properly convicted and sentenced under the Indian treaties and laws of the United States.

In the course of his argument, the defendant's attorney appears to have alleged several matters of law upon which apparently both the judge and you desire the views of this Department.

The defense makes the contention the Indians reserve to themselves the right of prosecuting all criminal violations on the Wind River Reservation and that the same has not been surrendered by the Indians to the United States or to any of the States. The contention that Congress cannot make Indians subject to the criminal laws of the United States without their consent was effectively disposed of in the case of United States v. Kagama, 118 U.S. 375. The defense attorney's reference to a Congressional grant of authority to the States of jurisdiction "over Indians on Indian soil for ten certain enumerated felonies" is perhaps a reference to Title 18 U.S.C., section 1162. As far as I am aware, there have been no decisions on the constitutionality of this legislation.

In 1954, this Department took the position with respect to one of the ten major crimes committed on fee-patented land within the townsite of Fort Yates, North Dakota, that the townsite is Indian country within the meaning of 18 U.S.C., section 1151, and accordingly, that if one or more of the ten major crimes is committed in this townsite, the United States has jurisdiction as provided in 18 U.S.C., 1153.

As regards treaties between the United States and the Shoshone and Arapaho Indians, we are informally advised by the Bureau of Indian Affairs they are unable to identify any treaty by which the Indians of the Wind River Reservation reserve criminal jurisdiction to themselves. Treaties to which the Shoshone Indians are parties may be found in the United States Statutes at Large as follows: 13 Stat. 663, 681; 15 Stat. 673; 18 Stat. 685, 689. Treaties with the Arapahoes are located in the Statutes at Large as follows: 12 Stat. 1163; 14 Stat. 703, 713; 15 Stat. 593, 635, 655. One treaty with the Arapaho is simply noted at 11 Stat. 749. The complete text is set forth on page 594 of volume 2, 2d edition, Indian Affairs Laws and Treaties, by Charles J. Kappler (Government Printing Office, 1904). This particular treaty involves the Sioux, Cheyennes, Arapahoes, Crows, Assinaboines, Gros-Ventre, Mandans, and Arrickaras. There appears to be no provision in the treaty concerning the retention or abandonment of criminal jurisdiction by the tribes concerned. Because of the availability of these treaties in the Statutes at Large, except for the one just mentioned, I have not requested authenticated copies of them from the Department of State. If authenticated copies are found to be necessary they can, of course, be obtained from the State Department.

It is hoped that the foregoing may be of some assistance in considering the matter before you.

1789

OPINIONS OF THE SOLICITOR

MARCH 27, 1957

Uncollectible obligations owed to the United States by Associations of Alaskan Natives organized and exercising the functions of government under a Constitution approved pursuant to the acts of June 18, 1934, 48 Stat. 984 and May 1, 1936, 49 Stat. 1250, may be canceled under authority provided in the Leavitt Act, 47 Stat. 564, 25 U.S.C. 386a, but similar obligations of Indian Livestock Associations organized under the Oklahoma Welfare Act, 49 Stat. 1967, 25 U.S.C. 504, cannot be included in cancellation orders provided for in the Leavitt Act, supra.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Proposed cancellation of indebtedness to the United States

In a memorandum of November 30, 1956, you requested the opinion of this office on the following questions relating specifically to the Hoonah Indian Association, Hoonah, Alaska, and the Kenwood Indian Cooperative Livestock Association, Oklahoma:

1. Whether the uncollectible portion of the in debtedness of an Indian Association may properly be included in a cancellation order to clear the accounting records.

Under the Leavitt Act, 47 Stat. 564, 25 U.S.C., sec. 386a, reimbursable charges existing as debts may be adjusted or canceled by the Secretary of the Interior if the loan or charge was made from gratuity funds of the United States, and the debtor is either (I) an individual Indian or (2) a tribe of Indians. The Comptroller General has held that in giving the ordinary meaning to the words "reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians" the act of July 1, 1932, supra, does not authorize the Secretary of the Interior to adjust or eliminate reimbursable charges originating in tribal funds appropriated by the Congress for the purpose of making loans (20 Comp. Gen. 387). The loans to the Hoonah and Kenwood Indian Associations were made from gratuity funds of the United States and not from tribal funds or funds held in trust for Indian organizations. This being the case, it may then be determined whether or not the debtors are a tribe or are individually and personally liable for the repayment of the loan.

The records of the Hoonah Village, Indian Bureau File No. 46321-1937-068, indicate that Hoonah Indians are known to have resided as a unit at the site of the present village for many years prior to 1890 and have continuously exercised the functions of local government. It appears that prior to acquiring an approved constitution under the act of June 18, 1934, 48 Stat. 984, and May 1, 1936, 49 Stat. 1250, Hoonah had a voluntary government consisting of a Mayor and a city council of 12 members. But it has been contended that the Indians of Hoonah Village may not be recognized as a tribe without distinguishing or setting aside Solicitor's Opinion of May 25, 1940, which contains the following language:

The fact that the Hoonah Indians cannot be called an historical tribe is, I believe, not controlling here. Since 1939, when the Secretary approved and the group ratified its Constitution and Charter of Incorporation, the Indians of the Hoonah Association have been constituted as a statutory tribe. It is my opinion that the uncollectible portion of the debt of the Hoonah Indian Association may be included in the cancellation order.

The second case relates to the Kenwood Livestock Association which is neither a statutory nor an historical tribe. We have been asked if the debts of the Kenwood Livestock Association may be canceled by the Secretary under authority provided

1790

DEPARTMENT OF THE INTERIOR

MARCH 27, 1957

in the Leavitt Act since loans to the Kenwood Association have somewhat the same purpose and character as those made to the Hoonah Indians. Although the legislative history of the Leavitt Act contains some reference to cancellation of indebtedness incurred by reason of ventures in livestock production,¹ it does not appear that the Congress contemplated granting relief to associations of Indians whose members were not individually liable.

The general rule of law is that an association having a corporate charter is regarded as a corporation and the liability of its members is governed by the corporate charter. 13 Am. Jur. 594. There is nothing in the records to support a contention that the members of the Kenwood Live stock Association were to be individually liable for the debts of the Association. In fact, in the proceedings at meeting held on October 21, 1942, at the Community house, on the Kenwood Project, in Delaware County, Oklahoma, to organize a cattle cooperative association, elect officers and consider loan application, Mr. Wattson, Extension Supervisor for Oklahoma-Kansas Area explained:

On February 19, 1943, the Association was granted a certificate of incorporation "under the terms of the act of June 26, 1936, 49 Stat. 1967; 25 U.S.C. 504, with all rights, powers, privileges and immunities" incident thereto. The loan agreement dated April 2, 1943, between the Kenwood Indian Cooperative Association and the United States recites:

Therefore, employing the precept of reasonable interpretation, the Leavitt Act, supra, cannot be construed as providing for the inclusion of the Kenwood Association indebtedness in a cancellation order prepared under the authority given in that act.

2. If the debt cannot be eliminated from the accounting records is it necessary to continue to accrue interest each year on the uncollectible loan?

Reimbursable loans from gratuity funds may be made under such rules and regulations as the Secretary may prescribe. See 2.5 U.S.C. 470, 482, 506. However, since the regulations contained in 25 CFR 21 and 23 do not provide for the termination of interest charges on loans determined by the Secretary of the Interior or his authorized representative to be uncollectible but which cannot be canceled, the interest charges should be continued until that section of the regulation is amended to provide for the waiver of interest on uncollectible indebtedness.

1791

OPINIONS OF THE SOLICITOR

APRIL 11, 1957

To:            Secretary of the Interior
From:        Solicitor
Subject:     Proposed letter to President of the Rose bud Sioux Tribal Council re grazing privileges

The proposed letter states as a reason for the rescission of Resolution No. 5707 that, "it is not the policy of the Department to make payment of the tax a requirement to obtain permits or leases on allotted lands." In my opinion, such reason is neither justifiable nor practical as applied here. In the first place, Resolution 5707 does not make the payment of the tribal tax a condition to the granting of a permit, but rather makes the failure to pay the taxes due a cause for cancellation of a permit already granted.

We note the Bureau's announced policy against the use of Bureau personnel as collectors of the tax, with consequent burdens of receipting there for, accounting and the like. But the resolution now under consideration would not violate that policy because it provides for the payment of all tribal taxes to the tribal Treasurer or his authorized representative.

The proposed letter further states in justification of rescission that it has been determined by the Department in a similar instance involving a tax levied on the Pine Ridge Reservation that collection of the tax was the full responsibility of the tribe. This determination was embodied in a press release, dated August 12, 1953, which stated:

One argument which was urged in support of this directive was that prospective bidders tend to discount the amount of a tribal tax when bidding on allotted lands and as a result the Indian Bureau was not able to obtain for the allottee the highest possible return. Another reason appears to have been the fact that for some time the question of tribal power to tax was in litigation. It has now been judicially determined that the tribe has the right to collect taxes from nonmembers doing business on the reservation. Iron Crow v. Oglala Sioux Tribe, 23 1 F. 2d 89 (8th Cir. 1956). Further, it has been held that the tribe has capacity to sue in the Federal District Court for the collection of taxes which the tribe has validly imposed on nonmembers leasing tribal land. Oglala Sioux Tribe v. Barta, D.C., 146 F. Supp. 917. The principles of these cases apply with equal force to the actions of the Rosebud Sioux Tribal Council here in question.

The Area Director has suggested that, if the resolution under consideration is not rescinded, some notice of the tribal tax should be included in the advertisement of grazing privileges for the information of prospective bidders. This action would be in harmony with prior practices on the Navajo and Cherokee Reservations with respect to tribal taxation of licensed traders.

Resolution No. 5707 is, in my opinion, acceptable in form, having been passed in regular manner by a majority of the Rosebud Sioux Tribal Council as certified to by the President and the Acting Secretary of the Council. Without some assistance to the tribe in collection of their tax such as that provided in this resolution, the tribe's admitted right to tax would be seriously restricted, if not practically nullified, and the tribe would be left no remedy but litigation in the event of delinquencies.

1792

DEPARTMENT OF THE INTERIOR

JUNE 7, 1957

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Distribution of the Estate of Buster Chisholm, deceased full-blood Cherokee enrollee No. 16300

The County Court of Okfuskee County, Oklahoma, entered its final decree in this case on March 11, 1957. The estate is valued at some $90,000, all of which was inherited by the decedent from his prior deceased wife, Martha Jackson Chisholm, a full-blood Creek Indian whose estate was the subject of the Solicitor's opinion M-36426, approved by the Secretary on January 4, 1957.

The final decree determines the decedent's father, William Chisholm, to be the sole heir entitled to the entire estate. The decree also allows fees to the administrator and his attorney, Mr. Clem H. Stephenson, of approximately $52,000.

The decree orders distribution to the guardian of the heir, William Chisholm, on the theory that the heir is not a restricted Indian of the Five Civilized Tribes but is an absentee Shawnee Indian whose inheritance is unrestricted. The Muskogee Area office has submitted certain documents and factual information which raised the question whether the heir, William Chisholm, is a restricted Indian of the Five Civilized Tribes whose inheritance is restricted by Federal Law and, therefore, subject to supervision by the Department. If William Chisholm is restricted his inheritance would remain under the supervision of the Department and would not be distributed to his guardian because of an apparently fatal jurisdictional deficiency in the guardianship proceedings. Also, if the property is restricted, the fees of the administrator and his attorney would be subject to consideration and allowance in reasonable amount by the Area office rather than in the amounts fixed by the Court, it being well settled that the Court is without jurisdiction to administer on restricted estates of deceased Indians of the Five Civilized Tribes.

The question presented is a legal one. Section 2 of the act of August 4, 1947, 61 Stat. 732 provides:

The information submitted by the Area office indicates that the heir, William Chisholm, was enrolled and allotted as a half-blood Creek Indian but his name was taken from the rolls and the allotment deeds to him were canceled by authority of Departmental letter of August 3, 1904, because it was discovered that he had been previously allotted as an absentee Shawnee Indian. The in formation from the Area office also discloses that the heir's paternal aunt, Jennie Harper, is enrolled as a full-blood Creek Indian.

Neither this office nor the Courts, to the best of our knowledge, has ruled specifically heretofore on the legal questions presented. We have requested our Regional Solicitor in Tulsa to submit his views in the premises. After the Regional Solicitor's views are received we will be able to rule on the matter, probably disposing of the case within two weeks' time. It appears to us at this moment that the disposition of this case could not be expedited by oral argument, and that no useful purpose could be achieved by such oral argument.

Mr. Marvin Helter of your Department has informally requested that we furnish you our views regarding the court's conclusion that certain offenses occurred in Indian country in its opinion entered May 15, 1957. In the Matter of the Petition of Emil McCord for a Writ of Habeas Corpus No. A-13,363, and In the Matter of the Petition of Andrew Nickanorka for a Writ of Habeas Corpus No. A-13,364, in the District Court for the District of Alaska, Third Division.

1793

OPINIONS OF THE SOLICITOR

JULY 9, 1957

Both petitioners appear from the opinion to have been charged with statutory rape under the territorial laws of Alaska, that is, that they did carnally know and abuse a female person under the age of sixteen years. Petitioners appear from the opinion to have defended on the ground that it is contrary to the law to hold them upon the territorial crime of statutory rape, in that Title 18 U.S.C., sec. 1153, makes such a crime inapplicable to the act charged.

Apparently the petitioners alleged and the court found that the petitioners and the female victims are full-blooded Indians and they all reside at Tyonek, Alaska, which is within the limits of an area set aside for their use by Executive Order No. 2141, issued in 1915. The court concluded that the Tyonek area which it said: "* * * is set aside and treated as Indian land, even though the executive order separating the land from the public domain fails to indicate its exact purpose * * *" is "Indian country" within the meaning of 18 U.S.C., 1153. It further concluded that the crime of statutory rape is not one of those crimes within the terms of 18 U.S.C., 1153. On the basis of these conclusions the court stated: "Under the conditions, I can see no alternative but to order the release of the petitioners."

Executive Order No. 2141 of February 27, 1915, withdrew from disposal and reserved for the use of the United States Bureau of Education, subject to any existing vested right, an estimated 25,000 acres of land. The Native Village of Tyonek, which is located within the reservation, organized and adopted a constitution and by-laws, approved by this Department, pursuant to the provisions of section 16 of the act of June 18, 1934, 48 Stat. 984, 25 U.S.C. 476, as supplemented by the act of June 15, 1935, 49 Stat. 378, 25 U.S.C. 478 (a), and the act of May 1, 1936, 49 Stat. 1250, 25 U.S.C. 473 (a).

A former Solicitor of this Department advised you in a letter dated December 16, 1948, two copies of which are enclosed, that with respect to the two organized native Eskimo villages or groups of Gambell and Savoonga located on the island of St. Lawrence, which was set aside as a reindeer station by an Executive Order dated January 7, 1903:

There appears to be nothing to distinguish the native village of Tyonek from the native villages of Gambell and Savoonga insofar as jurisdictional aspects are concerned. Accordingly, we think the Court was correct in holding the offenses took place within Indian country if the site of the offenses is, in fact, the native village of Tyonek. We do not, however, consider the area within that reserved by Executive Order No. 2141, but not within the village to be Indian country.

TREATY RIGHT TO HUNT, FISH AND GATHER
WILD RICE RY MINNESOTA CHIPPEWAS ON
CEDED LANDS AND REVOCATION OF PRIVILEGES
BY EXECUTIVE ORDER

PERRY W. MORTON, Esquire
Assistant Attorney General
Lands Division
Department of Justice
Washington 25, DC.

This refers to your letter dated June 10, 1957, and prior correspondence relating to certain alleged violations of treaty rights claimed by the "Consolidated Chippewa Tribes of Minnesota" to hunt, fish and harvest wild rice (your reference: REM: MSW 90-2-0-533).

The initial report we received from the Bureau of Indian Affairs regarding these matters advised us:

"If the tribal delegates or the U.S. Attorney had cited any specific treaties from which they believed their rights of hunting, fishing or gathering wild rice accrued, we may have been able to make comments or recommendations. We are not, however, equipped to undertake the monumental task of examination and research of all the treaties to which various bands of Chippewa were parties in order to reach any conclusion as to rights which the Indians may have."

We have since received a supplementary report from the Bureau to which was attached a copy of a memorandum dated November 9, 1956, from Joe E. Vizenor, Tribal Manager of the Minnesota Chippewa Tribe to the Superintendent of the Minnesota Indian Agency. There are enclosed two copies of the memorandum.

1794

DEPARTMENT OF THE INTERIOR

JULY 12, 1957

In light of the memorandum from Mr. Vizenor, it appears that the "reservation" and "reserved" areas referred to in the letter of October 19, 1956, from the United States Attorney, referred to areas of land ceded to the United States by the Minnesota Chippewa Indians. Mr. Vizenor refers specifically to Article V of the Treaty of July 29, 1837, 7 Stat. 536, which provides:

The privilege granted by Article V of the Treaty was revoked by Executive Order of February 6, 1850, which reads:

With respect to the rights of the Minnesota Chippewas to hunt and fish within the present limits of their several reservations, these rights would appear to be subject to state law pursuant to the act of August 15, 1953,67 Stat. 588; 18 U.S.C. 1162 (b), 28 U.S.C. 1360, in the absence of any right, privilege or immunity afforded under Federal treaty, agreement or statute with respect to hunting, trapping or fishing, or the control, license or regulation thereof. See Klamath & Modoc Tribes v. Maison, 139 Fed. Supp. 634 (D-C. Oregon 1956).

An examination of all the possibly pertinent treaties with the Chippewa to determine their hunting and fishing rights on their reservations would be a major research project. This does not appeal justified on the basis of the generalized complaints reported by the United States Attorney. We understand that as no particular case or cases were presented by the tribal representatives to the United States Attorney you will not take action until a specific case or cases are properly presented. Accordingly, we are advising the Bureau of Indian Affairs that no action by your Department will be requested in connection with Chippewa fishing, hunting and wild rice rights, unless a complete report of the facts in each case which warrants your action is furnished us. We are suggesting that they inform the Minnesota Chippewa Tribe of the foregoing conclusions. If any such cases are presented for referral to you we shall, upon transmitting them, furnish our views as to the applicable treaties, agreements, statutes and related legal materials.

Indian Lands: Descent and Distribution: Generally--Indian Tribes: Particular Tribes: Five Civilized Tribes

The property comprising the restricted estate of a Five Tribes Indian decedent continues restricted and subject to the jurisdiction of the Secretary of the Interior only so long as belonging to Indian heirs of one-half or more Indian blood computed from the final rolls of the Five Civilized Tribes pursuant to the act of August 4, 1947 (61 Stat. 731).

Indian Tribes: Membership--Indian Tribes: Particular Tribes: Five Civilized Tribes--Secretary of the Interior

The authority of the Commission to the Five Civilized Tribes and of the Secretary of the Interior to strike names from the rolls of the Five Civilized Tribes, after notice and an opportunity to be heard, continued to March 4, 1907, when the rolls were closed.

Indian Tribes: Membership--Indian Tribes: Particular Tribes: Five Civilized Tribes--Secretary of the Interior

The fact that an heir who was enrolled with the Creek Tribe of the Five Civilized Tribes had received an allotment of land with another tribe

1795

OPINIONS OF THE SOLICITOR

JULY 12, 1957

of Indians justified action by the Commission to the Five Civilized Tribes and the Secretary of the Interior striking the heir's name from the Creek roll, which action was final after the passage of the act of April 26, 1906 (34 Stat. 137).

To:            Secretary of the Interior
From:        Solicitor
Subject:     Distribution of the estate of Buster Chisholm, deceased full-blood Cherokee enrollee No. 16300

In a memorandum, dated June 7, 1957, the Deputy Solicitor of this office informed you of the entry by the County Court of Okfuskee County, Oklahoma, of that Court's decree in the above estate, whereby the decedent's entire estate, valued approximately at $90,000,¹ was determined to pass to the decedent's father, William Chisholm, an incompetent. It was pointed out in the memorandum that if William Chisholm is restricted his inheritance would remain under the supervision of the Department, and would not be distributed to his guardian because of an apparently fatal jurisdictional deficiency in the guardianship proceedings.² Moreover, if the property is restricted, the Deputy Solicitor stated that certain fees of the administrator and of his attorney, allowed in substantial sums by the County Court, would be subject to consideration and allowance in reasonable amounts by the Area Office, Bureau of Indian Affairs, rather than in the amounts fixed by the County Court.

The question whether William Chisholm is a restricted Indian was not resolved in this office's memorandum of June 7, 1957, but it was noted that the Regional Solicitor, Tulsa, Oklahoma, had been requested to submit his views on that matter. The Regional Solicitor's views, embodied in a memorandum dated June 13, 1957, are attached. It should be stated at this point that the answer to the crucial question whether William Chisholm is or is not restricted, and consequently whether this Department would exercise supervision over his inheritance and consider the payment of fees allowed by the County Court, hinges upon an essential precedent determination whether William Chisholm possesses one-half or more Indian blood of the Five Civilized Tribes, pursuant to the requirements of the act of August 4, 1947, supra. Moreover, in determining or computing his Indian blood in that respect, there must be considered Section 2 of the 1947 act reading as follows:

An answer to the question whether William Chisholm is enrolled within the terms of the first sentence of the above-quoted provisions of Section 2 would appear to be decisive of the question whether he is a restricted Indian. This is so because, on the basis of a finding that William Chisholm is unenrolled, the second sentence of Section 2 of the 1947 act could apply only where Indian blood can be computed from his enrolled paternal and maternal lineal ancestors, none of whom appears to be on the rolls.

It is reported that William Chisholm, applying under the name of "Willie Chisholm," was enrolled by the Commission to the Five Civilized Tribes, hereafter referred to as the Commission, with the Creek tribe as a one-half blood Indian opposite No. 9295. That enrollment was approved by the Secretary of the Interior on November 14, 1902. Subsequently, on August 9, 1904, through the conjoint action of the Commission and the Secretary of the Interior, Willie Chisholm's name was stricken from the Creek roll. This action was taken on the specific ground that William (Willie) Chisholm had been allotted lands as Absentee Shawnee Allottee No. 40, which lands were sold under a deed approved by the Department on October 17, 1901. The action striking Willie Chisholm's name from the roll was taken after he had been advised by a registered letter from the Commission, the receipt of which by him is evidenced by a return registry receipt, that he was allowed thirty days from the date of the Commission's letter to show cause why his name should not be stricken from the roll for the reasons stated. Apparently no action was taken by Willie Chisholm, or by any-

¹ The estate of Buster Chisholm represents for the most part that decedent's inheritance from his prior deceased wife, Martha Jackson Chisholm. a full-blood Creek Indian, whose estate was the subject of Solicitor's opinion (64 I.D. 17) approved by the Secretary of the Interior on January 4, 1957.
² The apparent defect in this respect stems from the lack of service of written notice of the pendency of the guardianship proceedings upon the Superintendent (Area Director) for the Five Civilized Tribes, pursuant to the provisions of section 3 of the act of August 4, 1947 (61 Stat. 751). Such defect would require further consideration only in the event it is determined that William Chisholm is a restricted Five Tribes Indian.

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DEPARTMENT OF THE INTERIOR

JULY 12,1957

It is the view of the Regional Solicitor that Willie Chisholm, having been allotted lands as Absentee Shawnee Allottee No. 40, afforded no legal basis for the action of the Commission and the Secretary of the Interior in striking his name from the Creek roll. Accordingly, the Regional Solicitor has recommended that the action of striking Willie Chisholm's name should be regarded as a nullity, and that his name should be treated as still upon the final Creek roll for all purposes. This office cannot agree with those recommendations.

Pursuant to the authority of various acts of Congress, the Commission prepared rolls of members of the Five Civilized Tribes, which rolls in turn were submitted to the Secretary of the Interior for approval.³ Moreover, by Section 21 of the act of June 28, 1898, the Commission was required to investigate the right of persons whose names are found on the rolls, and to make correct rolls of the citizens by blood "eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto * * *." It is apparent that the authority of the Commission and of the Secretary of the Interior to consider and approve enrollments and to strike the names of persons not entitled to be shown on the rolls, constituted joint action by them, as is demonstrated in the present case. Moreover, upon the termination by Congress of the Commission on July 1, 1905,⁴ the Congress subsequently provided⁵ that on and after July 1, 1905, all of the powers theretofore granted to the Commission were conferred upon the Secretary of the Interior. The Secretary's authority over Five Tribes enrollments, including the Commission's power in that respect, bestowed upon the Secretary by the 1905 act, continued until the rolls were closed on March 4, 1907, when the Secretary's jurisdiction in that respect ceased.⁶

The authority mentioned above to investigate enrollments and to strike or eliminate names placed on the rolls is clearly established where the striking was accomplished after notice of such intended action and an opportunity was given to be heard,⁷ as was done in the present case. However, as stated above, the view has been offered that the reason given for striking the name of Willie Chisholm from the Creek roll was outside the statutory basis for striking, i.e., enrollments procured "by fraud or without authority of law." Neither the Commission nor the Secretary of the Interior apparently deemed it necessary to pass specifically upon the possibility that fraud, as defined in its constructive sense,⁸ may have been present because of the apparent failure of Willie Chisholm to advise the enrolling authorities that he had been allotted lands, which he sold, as Absentee Shawnee Allottee No. 40. However, upon learning of such facts the Commission and the Secretary of the Interior regarded those factors as a sufficient basis for striking Willie Chisholm's name from the Creek rolls, and ordered the Creek allotment deeds, which had been executed and approved, but not delivered to him, canceled.

No basis is seen whereby this Department could or should attempt to set aside the Departmental action taken over fifty-two years ago, striking Willie Chisholm's name from the Creek rolls. Aside from a limitation in Section 1 of the act of April 26, 1906, supra, which would appear to bar a move at this time to reopen any Five Tribes enrollment case,⁹ the Secretary of the Interior had also lost jurisdiction to correct or revise the rolls at any time after March 4, 1907.¹⁰ Thus, it as believed that the action taken on August 9, 1904, striking Willie Chisholm's name from the Creek roll is correct and cannot be disturbed. The action taken in that respect was expressly noted at that time as being in accord with Departmental precedent,¹¹ and transactions based on similar actions have had the support of judicial decisions.¹² In fact, the Mandler case involved circumstances closely similar to those involving Willie Chisholm. The Indian there concerned had likewise received an Absentee Shawnee allotment, after which a Creek allotment was made to her. Upon learning of the Shawnee allotment, action was likewise taken by the Commission and the Secretary of the Interior, striking the Indian's name from the Creek rolls and canceling the Creek allotment and deed. The court, on rehearing, referred to Sections 3 and 28 of the Creek agreement,

    ³ Acts of June 28, 1898 (30 Stat. 495, 503). March 1, 1901 (31 Stat. 861, 870).
    ⁴ Act of April 21, 1904 (33 Stat. 189, 204).
    ⁵ Act of March, 1905 (33 Stat. 1048, 1060).
    ⁶ Sec. 2, Act of April 26, 1906 (34 Stat. 137, 138).
    ⁷ United States ex rel. Lowe v. Fisher, 223 U.S. 95 (1912).
    ⁸ Black's Law Dictionary (3rd Ed.) p. 813.
    ⁹ "Sec. 1 *     *     * and no motion to reopen or reconsider any citizenship case, in any of said tribes, shall be entertained unless filed with the Commissioner of the Five Civilized Tribes within sixty days after the date of the order or decision sought to be reconsidered except as to decisions made prior to the passage of this Act, in which cases such motion shall be made within sixty days after the Passage of this Act*     *     * ." (Underscoring supplied.)
    ¹⁰ Sec. 2, act of April 26, 1906 (34 Stat. 137); Lowe v. Fisher, supra.
    ¹¹ Sallie Lewis (letter dated February 5, 1904, letter book, pp. 173-180).
    ¹² Mandler et al. v. United States, 10 F. (2d) 201 (CCA--10th. 193l), rehearing denied, 52 F. (2d) 713 (1931); see also Kemohah, et al. v. Shaffer Oil Company, et al., 38 F. (2d) 665 (D.C.N.D. Okla.. 1930), affirmed, Tiger v. Twin State 0il Company, el al., 48 F. (2d) 509 (CCA--10th, 1934).

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OPINIONS OF THE SOLICITOR

JULY 22, 1957

ratified and confirmed by the act of March 1, 1901,¹³ and then reached the following conclusion:

Thus, it would appear that when an allotment was made to William (Willie) Chisholm as Absentee Shawnee No. 40, his subsequent enrollment as a Creek and the consequent allotment of Creek lands to him were improper. Accordingly, the action of striking Willie Chisholm's name from the Creek roll appears to have been the lawful exercise in the circumstances of authority vested in the Commission and the Secretary of the Interior. It is recommended that the joint action of the Commission and the Secretary of the Interior in that respect be not disturbed.

Where a contract for the sale of Indian timber, pursuant to either Section 7 or 8 of the act of June 25, 1910, 36 Stat. 857, 25 U.S.C. 406 or 407, is supported by adequate consideration, no new consideration is required to support a change in price or ratio pursuant to a redetermination of price or ratio clause contained in the contract. Consideration adequate for the original contract is sufficient to support several distinct stipulations by either party to do, or refrain from doing, further acts.

Where a contract for the sale of Indian timber authorizes the Secretary to redetermine stumpage prices upon a finding of changed conditions, the Secretary has broad discretion to consider those factors and use those tests and methods of valuation which a capable and prudent business man would use.

Contracts for the sale on any Indian allotment or on unallotted tribal lands pursuant to Sections 7 and 8 of the act of June 25, 1910, 36 Stat. 857, 25 U.S.C. 406 and 407, are not public contracts so as to be subject to all the special laws pertaining to such contracts.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Construction of the contract with Aloha Lumber Company for the sale
                 of timber on the Taholah Logging Unit, approved May 12, 1950

Your office has requested an opinion as to the factors which may be taken into consideration by

¹³ (31 Stat. 861, 862, 869) . "All lands of said tribe, except as herein provided, shall be allotted among the citizens of the tribe by said commission so as to give each an equal share of the whole in value, as nearly as may be * * * (Sec. 3) . "No person, except as herein provided, shall be added to the rolls of citizenship of said tribe after the date of this agreement, and no person whomsoever shall be added to said rolls after the ratification of this agreement * * *" (Sec. 28) .
¹⁴ On the final Creek roll by blood, authorized to be printed by the act of June 21, 1906 (34 Stat. 325, 340), the following notation appears opposite the number (9295), which had been assigned to Willie Chisholm, "Stricken from roll."

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DEPARTMENT OF THE INTERIOR

JULY 22, 1957

the Secretary of the Interior and his staff in establishing new percentage ratios between stumpage rates and the Puget Sound-Grays Harbor log prices under par. 10 of the subject contract No. l--101--Ind--1766 for the sale of Indian timber on the Taholah Logging Unit, approved May 12, 1950.

A question has been raised as to the legality of the Secretary's handling of an interest factor on money advanced to the Indian sellers prior to the harvesting of their timber by the purchaser. The questioned action was taken in the process of his redetermination of the price and the establishment of a ratio for automatic quarterly readjustments thereafter pursuant to paragraph 10 of the contract. At the risk of over-simplification, and confining our discussion to one type of stumpage, a reading of the subject contract shows that the parties agreed upon a price of $9.75 for Western red cedar for the quarterly period ending March 31, 1950 (Par. 6). It was also agreed that the published average price for Western red cedar logs for the same period was $48.52 per unit (Par. 7). It was the purpose of the contract that the original price for Western red cedar stumpage would be changed each quarter so as to retain the same relationship to the published prices for logs no matter how much the latter changed quarterly. This was set out as a "ratio," expressing mathematically the relationship of the agreed price of stumpage to the published price of logs, which ratio as of the date of the original period was 22%.

The parties further agreed--the parties being the Indians and the lumber company--that if the Secretary of the Interior should find upon review that the "character of the operation, changes in marketing conditions or technological developments" had altered the situation to such extent as to impress the Secretary with the desirability of changing the ratio, he should proceed to establish a new ratio upon thirty days notice to the lumber company.

Paragraph 10 of the contract authorizes the Secretary or his representative to review the character of the operation, marketing conditions or the technological status of the industry to determine whether changes of such an extent have taken place as to warrant the setting of a new percentage ratio between the value of the stumpage and the published Grays-Harbor-Puget Sound log prices. There arises the question of what cost items in the spread between the value of the stumpage and log prices the Secretary may take into consideration in determining a new ratio. Is the Secretary limited to factors related to changes in the character of the operation, marketing conditions or technological developments? We believe not.

The contractual plan for redetermination of price contemplates a two step procedure. First the Secretary must make a finding that significant changes having to do with the character of the operation, marketing conditions or technological developments have taken place. Here, without argument, he is limited to the consideration of the events germane to these stated classes. Once the Secretary has satisfied himself that changes of such type and of sufficient magnitude have occurred, he is authorized to take the second step, namely, to redetermine a new ratio between the fair value of the stumpage and the published price of logs. In carrying out this responsibility the Secretary is acting as the freely chosen arbiter of both parties to the contract--one of whom is the buyer of the stumpage and the other the seller.

There seems no doubt that the Secretary, in the exercise of reasonable discretion, can take the interest factor into account in determining whether changes in the specified conditions "have altered the situation to such an extent that a change in the

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OPINIONS OF THE SOLICITOR

JULY 22,1957

existing ratios * * * appears warranted * * *." Thus he can refuse altogether to establish new ratios because of an interest factor or any other reasonable consideration bearing on the fairness of the existing ratios to the contracting parties. To construe the Secretary's authority under Section 10 to permit him discretion to refuse any relief what ever on unspecified but reasonable grounds, and then to construe the remainder of Section 10 so narrowly as to exclude these same grounds from consideration in fixing the degree of relief, can only have harsh and unreasonable consequences. The law favors an interpretation which is fair and reasonable to one which leads to harsh or unreasonable results. Restatement, Contracts, Sec. 236 (a) . Written contracts are to be interpreted as a whole. Supra Sec. 235 (c).

We see no reason to believe that the Secretary may not use any tests of value which a reasonable man, acquainted with the marketing of stumpage, could be expected to use under the circumstances. Of course, his actions may not be arbitrary or capricious. He exercises an informed discretion. The law is not unfamiliar with the practice of setting fair values. (cf. In re Cuellette, 98 F. Supp. 941.) The Secretary in his redetermination of the price ratios will be here guided by those tests and methods of valuation which a capable and prudent business man would use. The Secretary may approach the pricing problem exactly as his office did in determining the original ratio or he may employ more recent methods of appraisal and pricing. He may determine the ratio and from it determine the price for the quarter then involved or he may determine the then fair price and fix the ratio. Either way the price will continue to change as the ratio changes. There is no reason why he need repeat any errors of computation which may have crept in to the original negotiations or fail to take advantage of later information or improvements in pricing techniques. This construction of the contract permits the Secretary to take into consideration the cost of interest involved in making payments in advance of cutting to the sellers of the stumpage whether this item of cost was reflected in the original price or not.

A further question has been raised as to whether there need be new consideration passing between the parties in connection 6th the use of a cost item not used in the original pricing. We know of no legal theory which would require a new consideration to support such a change in the pricing formula used in the redetermination of price in this type of contract. Of course the contract itself had to be supported by consideration. The contract contains mutual promises which bring it within the general rule "that a promise by one party is a sufficient consideration for a promise by the adverse party." (cf. 12 Am. Jur., Contract, § 113.) It is also clear that the consideration passing between the parties and supporting the original contract is sufficient to support their agreement to, in effect, abide by the redetermination of a new ratio which may result in advantages or disadvantages to either side. The general principle is well understood: "The single consideration of paying a specified sum of money by one party to a contract is sufficient to support several distinct stipulations by the other party to do, or refrain from doing, certain things, and it is unnecessary to repeat in every paragraph of the contract that such stipulations are entered into for the consideration once expressed." (12 Am. Jur., Contracts 119.)

It is therefore our opinion that the Secretary legally took into consideration interest on funds required by the contract to be advanced by the purchaser to the seller. In fact it is arguable that a failure to take this interest factor into account would have given the purchaser grounds to complain of arbitrary and capricious action by the Secretary in his role of "arbiter" of the redetermined ratio. This is true whether these contracts are considered "in the nature of public contracts" or purely as private contracts between the Indians as sellers and the lumber company as purchasers subject to a statutory approval by the Secretary in his role as trustee of the economic resources of the Indians involved.

It is our further opinion that as a matter of law these contracts are not public contracts so as to be subject to the special laws pertaining to such contracts. Contracts other than public contracts are governed by the general law of contracts as modified by particular statutory requirements. The Supreme Court and other federal courts have consistently held that Indian timber sales contracts under 25 U.S.C. Sec. 406 and 407 are not "public contracts." The leading case is United States v. Algoma Lumber Company, 305 U.S. 415 (1939). On the basis of the Algoma case we conclude that the United States is technically not a "party" to this type of contract and that a contract to which the United States is not a party is not a "public contract." The principle of the Algoma case was followed by the Circuit Court of Appeals, Eighth Circuit, in Farm Security Administration v. Herren, 165 F. (2d) 554 (1948), and again in Waterman S. S. Corporation v. Land, 151 F. (2d) 292 (1945), reversed on other grounds, 327 U.S. 540. The Attorney General's office by letter to the Secretary of the Interior dated April 17, 1912, ruled that contracts for the sale of timber under authority of section 7 of the Act of June 25, 1910, supra, "are solely for the benefit of the Indian and are in no wise contracts 'on behalf of the

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DEPARTMENT OF THE INTERIOR

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Government' * * *." This ruling is understood to mean that these timber contracts are not public contracts.

Whether or not the subject contract is in the nature of a public contract, we believe that in the establishment of new percentage ratios between stumpage rates and the Grays Harbor-Puget Sound log prices no additional consideration need be found to pass between the parties to support the readjustment of price and ratio, for the contract as executed was supported by adequate consideration. The sole responsibility of the Secretary is to fulfill his contractual role as "arbiter" of the new ratio in accordance with well-established rules of law governing similar contracts between private parties and those principles of economics which would guide an informed business man in similar circumstances.

It is of course manifest that this opinion relates only to the legal authority for the actions taken and does not undertake to state the technical and policy considerations which entered into the administrative decisions concerned.

AUTHORITY OF THE PRINCIPAL CHIEF OF THE
SEMINOLE INDIAN NATION AND THE GENERAL
COUNCIL OF THE SEMINOLE INDIAN NATION
UNDER PERTINENT ACTS OF CONGRESS

The duties of the Principal Chief are confined to the execution of deeds of conveyance on leases submitted to him by the Secretary of the Interior. The remaining tribal lands of the Seminole Nation cannot be disposed of by the Secretary of the Interior under existing law without the approval of the General Council.

Where a lease was executed by a Principal Chief whose appointment was subsequently revoked ab initio, it is not necessary to re-execute such lease if the lessor was de facto Principal Chief of the Seminole Nation at the time the lease in question was signed by him and on the date the lease was approved in the Department of the Interior.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority of the Principal Chief of the Seminole Indian Nation and the General
                 Council of the Seminole Indian Nation under pertinent acts of Congress

This will reply to your memorandum of July 8, 1957, and prior correspondence, inquiring as to the respective areas of authority of the Principal Chief of the Seminole Indian Nation and the General Council of the Seminole Indian Nation. You have asked specifically whether the oil and gas lease signed on December 1, 1952, by Mr. Marcy Cully, as Principal Chief of the Seminole Nation, should be re-executed in view of the fact Mr. Cully's appointment was revoked ab initio by former Assistant Secretary Lewis on November 2, 1954.

Congress, by joint resolution dated March 2, 1906 (34 Stat. 822), provided: "That the tribal existence and the present tribal governments" of the Five Civilized Tribes, which include the Seminole tribes, should be continued in force and effect for all purposes under existing laws until all property of the tribes, or proceeds thereof, were distributed among the individual members of the tribes, unless thereafter otherwise provided by law. Later, by the provisions of section 28 of the act of April 26, 1906 (34 Stat. 137, 148), "the tribal existence and present tribal governments" of the Five Civilized Tribes were continued in full force and effect for all purposes authorized by law until otherwise provided by law (underscoring supplied), but certain limitations were placed upon the tribal governments.

By section 6 of the act of April 26, 1906, supra, Congress has indicated the duties of the Principal Chief of the Seminole Indian Nation and similar officers of the other of said Five Civilized Tribes by the following words:

It is understood that by practice your office has consulted with the various tribal officials concerning