Solicitor's Home

    The resulting Act of June 25, 1910, sec. 8, 36 Stat. 857, 25 U.S.C., sec. 406, provides that:

    "The timber on any Indian allotment held under a trust or other patent containing restrictions on alienations, may be sold by the allottee with the consent of the Secretary of the Interior and the proceeds thereof shall be paid to the allottee or disposed of for his benefit under regulations to be prescribed by the Secretary of the Interior."

Congress also provided for the sale of timber on unallotted lands (sec. 7).

    The disposition of timber to prevent loss raises another question. This involves a possible obligation of the Secretary of the Interior as well as of the co-owners to prevent a dissipation of a part of the estate, and thus, in effect, to preserve it. It also involves the right of a co-tenant to cut and sell timber. The Supreme Court has distinguished the cutting and sale of timber as a by-product from the cutting of merchantable timber on timber land i.e., capital depletion. It has recognized the rights of allotted Indians having land primarily agricultural to sell timber cut from such lands. United States v. Paine Lumber Co., 206 U.S. 467 (Wis. 1907); cf. Starr v. Campbell, supra.

    The same view had been developed by the Attorney General. In 1889, he reasoned that it was the duty of the United States, as trustee for the Indians, "to preserve and protect the trust." For the Indian to sell growing timber or timber cut for commercial purposes normally would be unlawful waste and to allow it would be "inconsistent with the obligation of the trustee," the Attorney General agreed, citing United States v. Cook, 19 Wall, 591, but since the land in question was allotted under the Allotment Acts to "be used for agricultural and grazing purposes," whatever was cut "for the promotion of these purposes" by the Indian allottee "the trustee should permit." (19 Op. A. G., p. 232.) This opinion was followed by that of May 21, 1890, in which the Attorney General said that the sale and removal of dead timber, standing or fallen, by an allottee was not wasting the estate, either at common law or by the law of Wisconsin where the property was situated, but was more in the nature of benefiting it. He cited as analogous, "the liberal American doctrine of waste" which permits the tenant to cut timber to open land for cultivation. 19 Op. A. G. 559.

    The obligations of co-owners to sustain and protect the common interest is well-established. Glazier v. Tilton, 81 S.W. (2d) 145 (1934); Hendrickson v. California Talc Co., 130 P. (2d) 806 (1942); Hoverson v. Hoverson, 12 N.W. (2d) 501 (1943): 86 C.J.S., p. 376. Although the cutting of merchantable timber by a tenant in common without the consent of the other co-owners may ordinarily be regarded as waste, for which he is liable, the law against waste among co-owners does not apply where the action is for mutual benefit, as in the

cutting of timber to prevent spoilage. See 86 C.J.S., pp. 382, 418, 419; Johnson v. Johnson, 11 S.C. Eq. 277.

    Your view appears sound that the United States has a guardianship responsibility in a case where loss would result if certain damaged timber were not salvaged until all co-owners had been notified and given their consent. Refusal by the Superintendent, in such a case, to permit the salvage by an Indian co-owner of such decaying timber would not be consistent with his duties. It would be no justification that one or more co-owners had not given their consent because, as already indicated, an owner cannot object to the salvage of dead timber by a co-owner.

    It has been suggested that since congressional authority was sought to permit sales by Indians of dead timber on tribal land, similar express authority should be obtained in the case of prevention of loss from fire, insects or disease. These situations differ. The former was a result of an improper interpretation of United States v. Cook, 19 Wall. 591 (1873), the Attorney General ruling in 1888 that Indians occupying reservations, title to which is in the United States, have no right to cut and sell for their use and benefit the dead and down timber *     *     * which will go to waste if not used." 19 Op. A.G. 194. The Cook case permitted the United States to recover timber cut on Indian tribal lands, title to which was in the United States. The Attorney General concluded that since the court had stated that the Indians have "the mere right to use and enjoy the land as occupants," therefore, "the Indians have no interest in this timber," citing British cases to the effect that dead and fallen timber belongs to the remainderman and not to the tenant.

    The Board of Indian Commissioners at once protested that such a construction, particularly when applied to dead and down timber, "would prove not only a loss to the Indians, but an absolute damage to the United States." (House Ex. Docs. No. 61, 43rd Cong., 2d sess., Vol. 12, Dec. 17, 1874.) This interpretation eventually resulted in the enactment of the Act of February 16, 1889. 25 Stat. 673, which permitted the Indians "to fell, cut, remove, sell, or otherwise dispose of the dead timber standing or fallen *     *     *" on Indian Reservations.

    This view that the timber on Indian Reservations belonged to the United States had also been implied from the Pine River Logging Co. case, 186 U.S. 279 (1902), but it was held to be unnecessary and improper in Shoshone Indians v. United States, 85 Ct. Cls. 33 1 (1937) , affirmed 304 U.S. 111 (1938). Congress subsequently directed the Secretary of the Treasury to credit to the Chippewas the amount of the Pine River Logging Co. judgment which had been mistakenly deposited in the Treasury of the United States as public money. (Act of June 15, 1938, 52 Stat. 688.)

    It should be noted that some years before the 1889 statute the Secretary had urged enactment of such a law to permit the cutting and sale of timber "damaged by fire, storm, or by natural decay *     *     *," located "upon Indian reservations, in which the Indians have only a right of occupancy, or are mere tenants at will *     *     *," the proceeds, after payment of labor and other costs, to be de posited "to the credit of the Indians occupying the reservation *     *     *." President Arthur submitted the proposed legislation with a letter from the Secretary observing that the Cook case held that the Indians could not cut the timber "if the cutting of the timber is the principal thing and not the incident," and that "the rule is the same in the case of damaged timber--at common law, windfalls are the property of the owner of the fee." (H. Ex. Dot., Vol. 19, 47th Congress, 1st Sess. No. 56, Feb. 2, 1882.) Thus the Act of 1889 could be said to be unnecessary, being based upon the premise that the Indians, as mere tenants, had no interest in the timber.

    In conclusion, in view of the provisions of the 1910 act, supra, the Secretary should approve no sale of timber on allotted Indian lands without the consent, express or implied, of all owners thereof, except for sales of timber incidental to the prevention of loss by destruction or decay. In order to salvage timber, as in the case of timber damaged by fire, insects, or disease, and where delay in obtaining consent of all co-owners might render the timber valueless or seriously impair its value, a sale or other salvage of such timber by a part-owner without the consent of all the beneficial owners is proper and should be approved, and also facilitated, by the Secretary.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

COMMON-CARRIER STIPULATION IN QUINAULT
LAKE TIMBER SALE CONTRACT--QUINAULT
INDIAN RESERVATION

                                                                                                                                            March 6, 1958.

Memorandum

To:            Assistant Secretary, Public Land Management
From:        Solicitor
Subject:     Common Carrier Railroad Stipulation in Quinault Lake Timber
                 Sale Contract, Quinault Indian Reservation

    The proposed letter for your signature addressed to Area Director Foster, Bureau of Indian Affairs, Portland, Oregon, encloses copies of an order of cancellation of the contract provision for the building of a common carrier railroad to be extended to the Hoh River, Washington, contained in the Quinault Lake Logging Unit Contract No. I--101--Ind--221.

    The contract has been completed except that no railroad was constructed. The logs were removed and transported by means of trucks and trailers over roads and highways. The attached memorandum of February 27, 1958, from the Deputy Commissioner of Indian Affairs expresses the view of the Bureau of Indian Affairs that no evidence can be found to indicate that the Indians or the Government have been injured by reason of the failure of the contractor to extend the railroad and make it a common carrier.

    In the first of these opinions the following language appears:

    "A letter dated October 10, 1955, from the Ozette Railway Company to your department, indicates that various factors and occurrences since 1934 have contributed to make an extension of the company's railroad to the Hoh River unnecessary and impractical. Among these factors are the formation of the Olympic National Park and resulting unavailability of large portions of the merchantable timber in the area through which the railroad would have passed, together with the construction of roads and highways throughout the area and radical changes in logging techniques through use of trucks and trailers. As a result, no demand for common carrier service to the Hoh River has ever been made on the company, nor would there be any demand for such service at the rates it would be necessary to charge if the railroad were to be built and operated at a profit."

The Comptroller General concluded that the principle of law established in the cases cited on page 3 of his first opinion has been construed by his office to apply equally to determinations by the contracting officer that the public interest no longer requires continued enforcement of a contract which was entered into by the United States for the public benefit. (23 Comp. Gen. 811; B-25701, May 22, 1942; B-40226, March 19, 1945.) Accordingly, the Secretary of the Interior has the authority to determine that construction of the railroad is no longer necessary to the public interest and, in the event of such determination, to terminate the contract upon completion of all other contract requirements and release the performance bond.

    The second opinion did not change or modify this conclusion except it pointed out that the contract may be considered as complete without default, and the security deposited to assure performance returned to the contractor if the Secretary of the Interior determines that the public interest does not require performance of the railroad stipulation.

    There is no evidence that the public interest has been or may be injured by reason of the noncompliance with the requirement of the contract to build the railroad. Such a finding, in view of the facts and circumstances, appears warranted with the resultant conclusion that damages do not exist by reason of such a finding, because there is no evidence that the United States will be harmed thereby.

    In view of the Comptroller General's Opinions you are in a position to reach the conclusion set forth in the attachments.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

AUTHORITY OF COMPETENT CROW INDIANS TO
LEASE THE LANDS OF THEIR ADOPTED CHILDREN

                                                                                                                              March I I, 1958.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority of competent Crow Indians to lease the lands of their adopted children

    I have reviewed the letter to the Area Director, Billings, Montana, on the above subject. That letter contains a statement concluding that a Crow Indian classified as competent has full authority to lease or permit the individually owned trust or allotted lands of his or her adopted minor child or children, provided, of course, the criterion for adoption has been met. This conclusion is contrary to that attributed to the Field Solicitor in the Assistant Area Director's letter of November 15, 1957.

    After a study of the applicable acts, and the legislative history connected therewith, it is our opinion that the view expressed in your letter is correct. While the pertinent acts do not specifically grant power to lease a minor's lands to the adoptive

parents, it is clear that Congress intended to provide "those looking after the welfare of such minors with an opportunity to secure funds to defray expenses of such minors." See Sen. Rept. 228, 69th Cong., 1st sess. Furthermore, the lease acts provide that the lands of orphaned minors shall be leased by the Superintendent. Children who have been adopted can no longer be considered orphans, and it may be implied that their individually owned lands are not to be treated in the same manner as the orphans' lands would be.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

WATER RIGHTS OF NON-INDIAN PURCHASERS OF
KLAMATH INDIAN RESERVATION LANDS

                                                                                                                                        March 14, 1958.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Water rights of non-Indian purchasers of Klamath Indian Reservation lands

    A memorandum from Assistant Commissioner Utz dated January 4, 1957, refers to a memorandum proposed by the Regional Solicitor, Portland, Oregon, concerning water rights on the Klamath Indian Reservation. The latter memorandum purports to examine issues raised by Oregon State Engineer Lewis A. Stanley in a letter :to Mr. T. B. Watters, one of the Management Specialists for the Klamath Tribe.

    Mr. Stanley has stated, among other things, "that Oregon had become a state [in 1859] and had title and control of the non-navigable waters before the [Klamath] treaty [of 1864] was entered into and, therefore, the United States had no rights which it could have granted to the [Klamath] Indians." The Management Specialists have urgently requested an opinion on this matter in order to give potential non-Indian purchasers of land some assurance of rights to the use of water on the land they purchase.

    The proposition stated by Mr. Stanley is not well-founded. The basic question of an assurance of a water right in purchasing Klamath Indian Reservation lands already has been given a preliminary general answer by the Solicitor. See Klamath Terminal Legislation, 62 I.D. 186, 201-202 (May 20, 1955). A further exhaustive analysis of this problem is not required here nor will it be undertaken in the absence of a presentation of a factual record. That earlier general answer of the Solicitor in support of such rights accordingly will be adhered to by this office. Even so, it may be helpful to the Management Specialists to elaborate somewhat by reference to some of the controlling legal propositions and principles, in view of the position taken by the State Engineer. In fairness to Mr. Stanley, it may be noted that he did not have the benefit of the decision in U.S. v. Ahtanum Irrigation District, 236 F. 2d 321 (1956), cert. den. 352 U.S. 988 (1957), which was subsequent in date to his letter. However, the present file contains no statement indicating a changed position on his part and a further examination accordingly seems necessary. As he has suggested, it is possible that a complete settlement of this issue can come only through the courts. However, the legal facts and the decisional law clearly favor the purchaser of Indian lands and water rights in that event.

    Mr. Stanley's assertion that the United States had no rights in 1864 which it could have granted to Indians seems to misconceive the existing situation and to ignore the fact that the United States at that time still owned the major portion of the lands comprising the State of Oregon. Congress had specifically reserved, in the act admitting Oregon into the Union on equal footing, "the primary disposal of the soil." (11 Stat. 383, 384.) This reservation naturally would include those lands then in possession of Indians, title to which the Federal Government either had not acquired or extinguished by cession, or which would be reserved for the Indians pursuant to treaty or other agreement. Resolving problems of "Indian title" is and has been exclusively a Federal function. See the Act of June 30, 1834, 4 Stat. 730, 25 U.S.C. 177, and Johnson v. McIntosh, 8 Wheat. 543, 573ff (1823), Royce, Indian Land Cessions . . . (1899) 527ff, Donaldson, The Public Domain . . . (1884) 240 ff.

    In connevtion with the congressional reservation of the right of "the primary disposal of the soil" in

Oregon, and insofar as rights to the use of water are concerned, it is pertinent to note at this point that Oregon did not legislatively reject its early riparian doctrine and assert public ownership of the water resources in that State until 1909. Consequently, prior to the Act of July 26, 1866, 14 Stat. 253, which affirmed appropriative rights acquired under local custom or practice, only minor riparian uses could have vested under existing Oregon riparian law. Thereafter, waters flowing from or on Federal public domain were made generally available by Congress for appropriation, subject to existing rights. We wish to emphasize that they were available by reason of this 1866 act, the Act of July 9, 1870, 16 Stat. 218, the Desert Land Act of March 3, 1877, 19 Stat. 377, and the related statutory enactments of Congress that followed. In other words, many of the early water rights in Oregon of necessity must be deraigned from this Federal statutory law rather than from the law of the State of Oregon. This was the situation in California under the so called California doctrine.

    Oregon, in finally legislating itself into a position in line with Federal disposal policies by enacting Chapter 221 and the Water Code of 1909, supra, asserted public ownership of all sources of water supply but with certain reservations protecting vested riparian rights to the extent of actual application of water to beneficial use prior to passage of the act, or within a reasonable time thereafter, and this legislative change was judicially sustained. In re Hood River, 114 Ore. 112, 227 P. 1065 (1924). But this was long after the 1864 reservation of lands for the Klamath Indians with an implied reservation of water sufficient for the agricultural and domestic needs of the Indians, as well as the subsequent developments under those early acts of Congress which fostered "disposal of the soil." Accordingly, Oregon is in no position to protest validly or effectively contest the existing power of the United States in connection with the Klamath Termination of Federal Supervision Act, 68 Stat. 718, to provide for the disposition of rights to the use of waters expressly, 11 Stat. 383, or impliedly reserved for farming and domestic purposes in 1864, Art. 5, 16 Stat. 865, 867, Winters v. U.S., 207 U.S. 564 (1908), and which naturally were not disposed of by the Federal Government under the subsequent Desert Land Act and related laws.

    To the extent that there was an implied reservation of rights to use water on the Klamath Indian Reservation under the Winters doctrine, it is assumed on the basis of U.S. v. Ahtanum Irrigation Dist., 236 F. 2d 321 (1956), cert. den. 352 U.S. 988 (1957) that the courts in the future will have little difficulty in finding a basis for protecting water rights. This applies also to derivative rights such as were sustained in U.S. v. Powers, 305 U.S. 527 (1939).

    This office, accordingly, will support the rights of Indian landowners and third party purchasers of Klamath lands having either primary water rights under the Winters doctrine or obtaining derivative rights conveyable by deed or patent and enforceable under the Powers doctrine. Further, it will support the right of a non-Indian purchaser of Klamath Indian Reservation lands, having such derivative rights under the Powers doctrine to have his priority under such rights related back to the establishment of that reservation in 1864.

    "This question is not free of difficulty, for it presents for consideration what is the status of the water rights of those who have acquired by purchase their lands from the Indians whose rights were reserved unto them, and who be came vested with all the rights incident to ownership of both the lands and water under the treaties, with a priority of February 16, 1869. The right of the Indians to occupy, use, and sell both their lands and water is now recognized, as this view is sustained in the case

of Skeem v. U.S., supra, and, such being the case, a purchaser of such land and water right acquires, as under other sales, the title and rights held by the Indians, and that there should be awarded to such purchaser the same character of water right with equal priority as those of the Indians. The status of the water right after it has passed to others by the Indians seems to be somewhat different from while such right is retained by the Indians, because the principle invoked by the courts for the protection of the Indian as long as he retains title to his lands does not prevail and apply to the white man, and the reason for so holding is that there was reserved unto the Indians the absolute right to own and use in their own way the water for their lands, while the white man, as soon as he becomes the owner of the Indian lands, is subject to those general rules of law governing the appropriation and use of the public waters of the state, and would, as grantee of the Indian allotments, be entitled to a water right for the actual acreage that was under irrigation at the time title passed from the Indians, and such increased acreage as he might with reasonable diligence place under irrigation, which would give to him, under the doctrine of relation, the same priority as owned by the Indians; otherwise, the application of any other rule would permit such grantee for an indefinite period to reclaim the balance of his land and withhold the application of the water to a beneficial use, which is against the policy recognized in the development of arid lands."

    The lower court in U.S. v. Powers, 16 F. Supp. 155, 163 (1936) , after taking note of this statement in the Hibner decision, observed:

    "In that case the court granted to the Indian land a water right with priority as of the date of the ratification of the Fort Bridger Treaty. This rule applied to the defendants in this case seems to be fair and equitable and affords protection both to Indians and white men, furthermore the facts there are very much like the facts in the instant case and were governed by like treaty provisions. From a perusal of the transcript of the testimony it seems to the court that these answering defendants upon receiving title from the Indian were reasonably diligent in placing under irrigation such portions of the land granted to them as were susceptible of irrigation. *     *     * "

It may be of interest to note here that conveyances in the Powers case involved Indian trust lands sold by the United States as well as Indian lands allotted in fee and sold by the Indians. In both instances, "all rights, privileges, immunities and appurtenances" were conveyed, there being no reservation of water or water rights in the patents issued. Compare Merrill v. Bishop, 287 P. 2d 620, 622-623 (1955). involving a sale in Wyoming in which waters not actually used were reserved in the deed for Indian use.

    This suggestion that a purchaser should exercise diligence in developing any unused water right is in line with provisions of section 14 (a) of the Klamath Termination of Federal Supervision Act, 68 Stat. 722, which is simply designed to protect the tribe and its remaining members for a period of 15 years against loss by abandonment of water rights by nonuse under Oregon law. It is also consonant with Article X of the Klamath River Basin Compact, 71 Stat. 505, especially subdivision B, which provides:

    "Lands within the Klamath Indian Reservation which are brought under irrigation after the effective date of this compact, whether before or after Section 14 of said Act of August 13, 1954, becomes fully operative, shall be taken into account in determining whether the 200,000 acre limitation provided in paragraph 1 of subdivision C of Article III has been reached."

Accordingly, if purchasers are to avoid all legal doubts, it appears to me that undeveloped rights should be perfected without undue delay.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

REOPENING OF INDIAN ESTATE UNDER
DEPARTMENTAL REGULATIONS

                                                                                                                              March 18, 1958.

MR. LOWELL A. WHEATON
Examiner of Inheritance
P.O. Box 5
Pierre, South Dakota

DEAR MR. WHEATON:

    This relates to your memorandum, dated January 28, 1958, requesting permission to reopen the probate of the estate of Melissa (Melicia) Ren-

countre, Lower Brule Sioux Allottee No. 609 (File No. 29791-22), to correct an apparent error in the order of distribution. Your request is based on a petition filed by Alex Rencountre, Jr., a brother of the decedent.

It appears that upon the death of Ethel Rencountre Big Star on March 6, 1910 (Probate Nos. 48190-12, 81404-13), her estate descended to her three surviving children, Joshua Big Star, Alex Rencountre, Jr., and Melissa Rencountre, in equal shares of 1/3 each. Joshua Big Star, the half brother of Alex Rencountre, Jr., and Melissa Rencountre, died on February 1, 1912 (Probate No. 73607-12), whereupon the 1/3 interest he had inherited in his mother's estate descended to Alex and Melissa in equal shares of 1/2 each.

    The other heirs of Melissa cannot inherit the property that came to Melissa from her ancestor, Joshua, because they are not of the blood of either Ethel Big Star or of Joshua Big Star. It does not appear that the courts of South Dakota have interpreted the meaning of the word "ancestor" as contained in the South Dakota Code of 1939, Sec. 56.0113, pertaining to kindred of the half blood. It is generally held, however, that the meaning of "ancestor" in an ancestral estate statute is not simply a lineal ancestor, but the person from whom property is derived by an heir under the statute. 16 Am.Jur., Descent and Distribution, Section 66. Therefore, since the 1/6 interest in the allotment of Ethel Big Star came to Melissa by descent from her ancestor, Joshua, all those who were not of the blood of such ancestor must be excluded from such inheritance. Accordingly, on this basis, Alex Rencountre is entitled, through the successive inheritances, to all of the allotment of Ethel Big Star.

    You advise that the Pierre Agency did not follow the order of distribution, but posted the respective interests from the estate of Melissa Rencountre so as to show Alex Rencountre to be the owner of all of the allotment of Ethel Big Star. It is indicated that Alex Rencountre, Jr., is meeting with some difficulty in his attempt to sell the allotment of his mother, because of the above-mentioned ambiguity in the order of distribution. However, we are very reluctant to reopen the probate of an estate which has been closed more than three years, and would refuse to do so if there had been any transfer of interests. We assume that the allotment of Ethel Big Star is still in a trust status, and that no interest therein has been transferred. Moreover, it appears that an order of reopening or modification will not alter the present posted interests in the allotment, but will correct the order of distribution to conform with the posting. Thus, there appears to be a justification for the reopening, provided, that any other interests of Melissa's estate are not disturbed.

    Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (Sec. 25, Order No. 2509, as revised 22 F.R. 7243), the limitation with respect to reopening is waived. You are authorized, after notice to the adverse parties, affording them an opportunity to be heard, to reopen the probate of the estate of Melissa (Melicia) Rencountre for the purpose of dealing further with the apparent incorrect order of distribution, to the extent only that such order affects the allotment of Ethel Big Star. Thereafter, you may take such action as you deem warranted in accordance with 25 CFR 15.18, formerly 81.18, and consistent with the views expressed herein.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

AUTHORITY OF TRIBAL COUNCIL TO ENACT
RESOLUTION REGARDING SETTLEMENT FUNDS

                                                                                                                                            May 12, 1958.

Memorandum

To:            Commissioner of Indian Affairs
                    Att'n: Branch of Tribal Government
From:        Solicitor
Subject:     Yakima Tribal Resolution T-103-58

    In a memorandum dated May 5, 1958, the Deputy Commissioner requested our opinion as to the adequacy of the form of the subject resolution and as to whether consent of the Yakima Tribe in this matter would require action by the General Council instead of the action of the Yakima Tribal Council evidenced by the resolution, a copy of which was attached to his memorandum.

    The resolution was adopted April 30, 1958, by a vote of seven to none by the Yakima Tribal Council. It provides, in part:

    "*     *     * that for and in consideration of the release of said funds [Yakima Dalles Dam Settlement Funds], and the payment thereof, promises and agrees that, should it be determined that the fishing rights that the Yakima Tribe did subordinate to the United States Government in the aforementioned agreement did not belong to said Tribe, then said Tribe will pay from funds not already obligated the judgments obtained from the United States Government, by enrolled members of the Yakima Tribe up to any amount previously distributed from said special fund."

    The resolution is obviously intended to meet the condition which the Department of Justice has placed on the withdrawal of its prior request to this Department that no distribution be made of the Yakima Dalles Dam Settlement Funds. The form and content of the resolution appear to be adequate for the intended purpose. According to the Deputy Commissioner's memorandum, the form and content of the resolution apparently have been informally cleared by the Yakima tribal attorney with the Department of Justice.

    In connection with the question whether the General Council of the Yakima Tribe rather than the Yakima Tribal Council must act in this matter, we informally requested the Branch of Tribal Government to furnish us the constitution or, since the Yakima Tribe is not organized under the act of June 18, 1934 (48 Stat. 984), similar documents under which the Tribe governs its affairs. In response to this request we were furnished resolutions of the General Council of the Yakima Tribe dated respectively February 18, 1944, July 9, 1947 and December 6, 1955.

    The resolution of February 18, 1944, which is recognized and reaffirmed by the one of December 6, 1955, provides:

    "HEREAFTER the Tribal Council or body of fourteen chiefs is hereby empowered to transact all business of the tribe, provided that any measures of great importance may be referred back to the people."

    In view of the unlimited authority which the language of the resolution of 1944 confers upon the Yakima Tribal Council it is manifest that the Tribal Council has adequate authority by delegation from the General Council to take the action embodied in Resolution T-103-58, with the same binding effect on the tribe as if the General Council had adopted the resolution.

    The permissive language quoted in the 1944 resolution is supplemented by a provision of the 1955 resolution which reads:

    "The General Council, at its regular or special meetings, may repeal or amend Rules and Procedures, Acts, Resolutions, Ordinances and Tribal Codes by a two-thirds (2/3) vote of the full quorum."

These provisions do not alter our conclusion, for if you decide to give effect to Resolution T-103-58, as you have legal authority to do, by authorizing the distribution of the $3,500,000.00 involved, it is our opinion that the General Council could not thereafter take action which would set aside the arrangement under which the funds were advanced to the tribe for the benefit of the tribe.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

TRIBAL LEASE OF THE HOT SPRINGS ADMINISTRATIVE
RESERVE OF THE AGUA CALIENTE INDIAN
RESERVATION, CALIFORNIA

M-36509                                                                                                                             May 22, 1958.

Leases of tribal lands by a tribe with Secretarial approval made pursuant to the Leasing Act of August 9, 1955, 69 Stat. 539 will not be impaired by a future allotment of the land to an individual Indian, which will be taken by the allottee subject to such lease. A lease thus authorized by law is not an encumbrance on allotted land forbidden by section 5 of the Mission Indian Act of January 12, 1891, 26 Stat. 712.

To:            Commissioner of Indian Affairs
                    Attention: Legislative Associate Commissioner
From:        Solicitor
Subject:     Tribal lease of the Hot Springs Administrative Reserve of the Agua Caliente Indian Reservation, California

    You have requested an opinion concerning the validity of the lease of January 21, 1958, of the Agua Caliente (Palm Springs) Hot Springs Administrative Reserve area, by and between the Agua Caliente Band of Mission Indians and the Palm Springs Spa, lessee, which has been approved by the Secretary of the Interior. Your request is predicated on the suggestion that some or all of this leased property may be required for allotment to individual members of this Band before expiration of the lease, and that such allotments must, by reason of the allotment legislation, be patented free of all encumbrances, involving this lease, thus in effect terminating the lease.

    The legal premise upon which the inquiry is based is that allotment of the tribal land, including this administrative reserve, is made mandatory by section 3 of the Act of March 2, 1917, 39 Stat. 969, 976; that further allotment will be required because of an obligation to allot additional lands in order to equalize allotments; that such obligation will necessitate allotting the administrative reserve which is now leased, or a portion of it; and, finally, that such allotments must be effected by conveyances free of this lease, since such lease would constitute an encumbrance on the allotted land forbidden by section 5 of the Mission Indian Act of January 12, 1891, 26 Stat. 712.

    "*     *     * this schedule was made pursuant to the provisions of the Act of January 12, 1891 (26 Stat. 712), as amended, by the Act of March 2, 1917 (39 Stat. 976), and the instructions approved by the Assistant Secretary of the Interior on April 8, 1948, and September 24, 1948."

    Title to this administrative reserve is held in trust by the United States for the Band pursuant to the provisions of the Mission Indian Act of 1891, supra, which (1) Provides that a Patent is to be issued to each band of Mission Indians occupying reservations selected for them as provided therein; (2) declares that the United States holds such land "in trust for the sole use and benefit of the band *     *     *"; and further (3) provides for the conveyance of such part of the tract not patented in severalty (as also provided therein) to the tribe in 25 years, discharged of the trust and free of encumbrances. The Act of March 2, 1917, in sec. 3, supra, authorizes the President, in his discretion, "whenever he shall deem it for the interests of the Indians affected thereby, to extend the trust period for such time as may be advisable *     *     *." The latest extension of the trust period was by Executive Order of October 29, 1940, to 1966.

    Neither the act of 1955, nor the regulations is sued thereunder, provide that tribal land eligible for allotment cannot be leased, nor do they otherwise restrict the period of leasing of such tribal land except as generally provided therein. Furthermore, both statutory construction and long continued practice refute the suggestion that this general leasing authority is limited by allotting laws. For over a hundred years Congress has enacted laws for the allotting of tribal lands to individual Indians. Most of these laws, such as the General Allotment Act of February 8, 1887, 24 Stat. 388, provide, as does the Mission Indian Act of 1891, for an eventual conveyance in fee simple to the individual Indian, and also state that such conveyance shall be "discharged of said trust and free of all charge or encumbrance whatsoever *     *     *."

    Some of these allotment acts, including the 1887 act and the 1891 act, also specifically prohibit making any conveyance or contract concerning such allotted land prior to the issuance of the unrestricted patent. As early as 1891, Congress apparently realized that this inflexible restriction deprived many Indians of income from their property. Thus it was that Congress changed its policy and provided for the leasing of allotted land by incapacitated Indians, with Secretarial approval.

"for a term not exceeding three years for farming and ten years for mining purposes." (Act Feb. 28, 1891, 26 Stat. 795.) The same act provided for leasing by tribal authorities of certain tribal lands not needed for allotments, "for a period not to exceed five years for grazing, or ten years for mining purposes," subject to Secretarial approval. (See 25 USC. 397.) The Mission Indian Act, itself, in the previous month had provided for the granting of certain rights-of-way by the Secretary and, after receiving patents, by any "tribe, band or individual for whose use and benefit *     *     * any lands are held in trust," upon specified conditions but without limitation as to time (Sec. 8). In 1910, Congress authorized contracts for the sale of timber on tribal lands and on restricted allotments, with Secretarial consent (36 Stat. 857, 25 U.S.C. 406 and 407). In 1924, Congress authorized the leasing for oil and gas of all unallotted lands, with the exception of certain tribes, regardless of need for allotments, for a period of ten years and as long thereafter as oil and gas should be found in paying quantities, (43 Stat. 244, 25 U.S.C. 398.) The authority to lease unallotted lands was further broadened by the Act of May 11, 1938, 52 Stat. 347, 25 USC. 396a-f, and the Act of August 9, 1955, supra, The foregoing statutes are but a few examples. Many other statutes have been enacted which permit the encumbrance of tribal and allotted land by leasing, or by rights-of-way of various kinds, or by other transactions. None of these various statutes contain provisions which prevent the length of term from extending beyond the time of allotment in the case of tribal land, or the date of unrestricted patenting, in the case of allotted lands.

    The status of the individual members of the Agua Caliente Band who receive a share of tribal property must also be considered. Their tribal affairs are subject to a constitution, adopted June 27, 1955, which establishes a Tribal Council as the governing body, with power to regulate the use and disposition of tribal property, and which specifically authorizes the leasing by it of tribal properties (Art. V (a) and (f) ). Tribal members, before individualization has occurred, have no vested interest in any part of the tribal property. Sizemore v. Brady, 235 U.S. 441 (1914); United States v. Chase, 245 U.S. 89 (1917); Taylor v. Tayrien, 51 F. (2d) 884 (1931); cert. den. 284 U.S. 672. Therefore, any member of the Band who receives a share of tribal property has no basis for objection to action, authorized by law, taken by the Tribal Council, which may encumber the property beyond the date of the conveyance to such member.

    For the reasons stated above, I conclude that the lease is valid and that any action hereafter taken to allot the land will not terminate or impair the leasehold estate.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

DIVISION OF GREAT SIOUX RESERVATION BY STATUTES
AND QUESTION OF TAX EXEMPTION
EXTENSION ON ALLOTMENTS

                                                                                                                                              June 6, 1958.

MR. EDISON G. WARD
Martin, South Dakota

    This is in reply to your letter of April 26, 1958, in which you asked what lands were of trust free status when the Indian Reorganization Act became law; and whether it was necessary to obtain the permission of the allottees in order to extend the trust period on lands after the Indians were granted citizenship in 1924. There were many parcels of Indian land from which the trust protection was removed prior to 1934. Since your letter refers to the Oglala Sioux Tribe, however, only the allotments to those Indians will be considered here.

    The Great Sioux Reservation was divided into six reservations under the act of April 30, 1888 (25 Stat. 94) amended by the acts of March 2, 1889 (25 Stat. 888) and May 29, 1908 (35 Stat. 444, 451). Provisions were made for the land which was allotted pursuant to these acts to be held in trust for 25 years, and the President was authorized to extend the trust for additional periods of ten years. Executive Orders 5557 of February 13, 1931,

5768 of December 30, 1931, and 5953 of November 23, 1932, preserved the trust status of Pine Ridge Reservation allotments prior to the enactment of the Indian Reorganization Act in 1934. See House Report 2503, 82nd Cong. 2d Session (1952) , pp. 977-978.

    The grant of citizenship to Indians is not inconsistent with their status as wards owning property subject to the plenary control of the Federal Government. Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 718. The fact that property is held subject to a condition against alienation does not affect the civil or political status of the holder of the title. Matter of Heff, 197 U.S. 488, 509. And the fact that Indians, to whom lands had been allotted, were declared to be citizens of the United States did not render null and void as to them, or as to the remaining portions of their tribes, restrictions upon alienation of their lands contained in the Acts of Congress under which allotments in severalty had been made, nor terminate the right and duty of the United States to preserve the reservation lands for the use and benefit of the Indians. United States v. Flournoy Live Stock & Real Estate Co., 71 F. 576 (1896). Also, conferring citizenship and political rights on Indians by a state does not terminate guardianship of the United States. United States v. Dewey County, 14 F. (2d) 784, aff'd 26 F. (2d) 434.

    The Citizenship Act of June 2, 1924 (43 Stat. 253) does not remove restrictions against alienation of property of Indians. Spriggs v. McKay, 119 pp. 232 (1954), affirmed 228 F. (2d) 31. It is established that the Citizenship Act had no effect on the power to extend the trust periods. The extension of the trust period by the Secretary is an exercise of discretion authorized by Congress which would be "discriminatory" in the legal sense if it were arbitrary or capricious. The statute makes no provision for Indian consent as a condition precedent to the exercise of Secretarial discretion.

    You have posed a hypothetical question as to whether the United States must support an unencumbered title implied in a fee patent (viz. free and clear of all encumbrances) even when a lease for a term of years actually subsisted at the time the patent was issued. It has been the consistent position of this Departmerrt that a lease executed pursuant to statutory authority is not prohibited by the provision in the allotment acts against encumbrances, and that the patentee (or his subsequent purchaser) takes subject to the lease. Since approved leases on Indian land are a matter of record at the agency, the buyer must assume the duty of checking such record. The grant of a patent in fee simple to an Indian conveys the title and interest of the United States in the property, but it does not necessarily void other interests which legally attached to the property previous to its issuance.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

LEGAL STATUS OF TUSCARORA RESERVATION, NEW
YORK, AND FEDERAL RESPONSIBILITIES

                                                                                                                                    July 9, 1958.

DEAR MR. LAZARUS:

    Statements in recent correspondence from this Department to the effect that the Tuscarora lands "are under State jurisdiction" do have reference to the Act of July 2, 1948, 62 Stat. 1224, 25 U.S.C. 232, and the Act of September 13, 1950, 64 Stat. 845, 25 U.S.C. 233, which respectively conferred criminal and civil jurisdiction on the State courts of New York in regard to Indian activities within Indian reservations located in the State. Notwithstanding the passage of this legislation we recognize that certain Federal responsibilities for Indians in New York still do exist. As recently as 1954 this Department advised the Congress that among the remaining responsibilities of the Federal Government for New York Indians, in addition to specific Federal treaty and statutory obligations for them, were "Certain other responsibilities based on general statutes of the United States applicable to all Indian tribes and the members thereof because of their status as Indians."

    We regard the provision of the Act of September 13, 1950, supra, reading, "That nothing herein contained shall be construed as authorizing the alienation from any Indian nation, tribe or band of Indians of any lands within any Indian reservation in the State of New York," as preserving the applicability of R.S. Sec. 2116, 25 U.S.C. 177 to Indian tribal lands in New York. Specifically with regard to the applicability of R.S. Sec. 2116,

25 U.S.C. 177 to the lands of the Tuscarora Reservation, on May 4, 1900, Assistant Attorney General Willis Van Devanter in response to a request for an opinion by the then Secretary of the Interior advised the Secretary that such lands were subject to the provisions of R.S. Sec. 2116, 25 U.S.C. 177 and in the absence of authority from Congress the Secretary could not approve the leasing of lands of the Tuscarora Reservation.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

WATER RIGHTS ON YAKIMA RESERVATION

                                                                                                                            August 15, 1958.

MR. MURRAY G. WALKER, Supervisor
Division of Water Resources
Department of Conservation
    and Development
335 General Administration Building
Olympia, Washington

DEAR MR. WALKER:

    This is in further reference to your letter of June 2, 1958, addressed to Assistant Secretary Ernst, in regard to the application of the laws of the State of Washington to water rights on the Yakima Indian Reservation within that State.

    The six questions posed on page 3 of your letter are answered in sequence. These answers are intended as an informal summary of the Federal Government's long-established position in regard to Indian water rights, and not as a detailed opinion to be construed as binding on this Department or on the Department of Justice.

    1. It is still the thinking of this Department, consistent with the policy announced by Congress in its concurrent resolution of August I, 1953, 67 Stat. B--132, that eventually Congress will relieve the Federal Government of its special obligations and responsibilities to American Indians of the United States by termination of the restricted or trust property relationship between the Government and the Indians.

    In furtherance of this policy, Congress has already enacted several acts. One example is the Act of August 13, 1954, 68 Stat. 718, 723, as amended, dealing with the Klamath Indians and their reservation in Oregon.

    2. In answer to your second question you are advised that the United States does not now recognize State laws as being applicable to the Indians in the control and distribution of water arising on, bordering on, or running through an Indian reservation. For the State of Washington to take jurisdiction over the waters within the boundaries of an Indian reservation during the period that the United States holds the lands in trust for the Indians presents considerable difficulty. If determined to be desirable, prior to the termination of Federal jurisdiction over Indian property, congressional legislation would be required. Indian water rights are rights reserved to the Indians for their use as defined by the Supreme Court of the United States in the case entitled United States v. Winters, 207 U.S. 564. The doctrine of this case was recently reaffirmed in a case involving Ahtanum Creek on the Yakima reservation in your State entitled United States v. Ahtanum Irrigation District, et al., 236 F. (2d) 321, 342.

    Because of the change in jurisdiction over the land upon extinguishment of the Indian title to an allotment, it is our policy to cooperate in every way practical with state officials and to inform them of the Indian water right claims and that such Indian water rights are not subject to State jurisdiction. This absence of State jurisdiction applies equally to underground and surface water. A copy is enclosed of an opinion by the then Solicitor of this Department, dated September 10, 1953, dealing with the lack of State jurisdiction to regulate underground water on Indian reservations in the absence of congressional legislation specifically making such law applicable. This opinion is reported in Volume 61, pp. 209-2 11 of Interior Decisions.

    The termination legislation of August 13, 1954, supra, dealing with the Klamath Indian Reservation in Oregon in section 14 (a) provides that:

    "Nothing in this Act shall abrogate any water rights of the tribe and its members, and the laws of the State of Oregon with respect to the abandonment of water rights by nonuse shall not apply to the tribe and its members

until fifteen years after the date of the proclamation issued pursuant to section 18 of this Act."

It is readily apparent from the foregoing that details concerning your question cannot now be given as it would depend on the legislation enacted by Congress dealing with this subject.

    4. Your fourth question inquires about any distinction that may be made between lands deeded to non-Indians and those belonging to the tribe or an individual Indian. A distinction does exist in respect to water rights on Indian lands and those on non-Indian lands.

    There are two cases decided in the Federal courts which deal with water rights of non-Indians. The first of these arose on the Fort Hall Indian Reservation in the State of Idaho. This case is entitled United States, ex rel. Ray, U.S. Attorney v. Hibner, et al., 27 F. (2d) 909, 912. The other case, still pending, is entitled United States v. Ahtanum Irrigation District, et al., 236 F. (2d) 321. Judge Pope of the Ninth United States Circuit Court of Appeals rendered an exhaustive opinion on Indian water rights in the latter case.

    In the Hibner case, a non-Indian had acquired a former Indian allotment and was diverting and using water from Toponce Creek. An effort was made to restrict him from exercising the right. The Court held that the purchaser of the Indian land stepped into the shoes of the Indian. The Court, at page 912 of the report, said:

    "*     *     * and the reason for so holding is that there was reserved unto the Indians the absolute right to own and use in their own way the water for their lands, while the white man, as soon as he becomes the owner of the Indian lands, is subject to those general rules of law governing the appropriation and use of the public waters of the state, and would, as grantee of the Indian allotments, be entitled to a water right for the actual acreage that was under irrigation at the time title passed from the Indians, and such increased acreage as he might with reasonable diligence place under irrigation, which would give to him, under the doctrine of relation, the same priority as owned by the Indians; *     *     *."

    In the Ahtanum case an irrigation project is involved which was constructed and is operated and maintained by the United States for the benefit of the Yakima Indians and purchasers of former Indian lands. Title to the project canals, ditches and structures is in the United States. In this case the Court, on page 342 of the report, said:

    "*     *     * These defendants claim that as successors to certain original Indian allottees for whom the waters were reserved and for the benefit of whose lands the Indian ditches were constructed, these defendants have acquired a vested interest in and a right to the distribution of the waters diverted by the United States to the same extent as if their lands were still in the possession of the original allottees. That they did originally acquire such a right through purchase of allotments seems clear from United States v. Powers, 305 U.S. 527, 59 S.Ct. 344, 83 L.Ed. 330. That case holds that white transferees of such fee patented Indian allotments were equally with individual allottees beneficially entitled to distribution of the waters diverted for the Indian irrigation system.

    "*     *     * The question remains whether those of them who had acquired such interest more than ten years prior to the institution of this suit are barred by statute of limitation or laches from now claiming any such participation in the benefits of the Government's irrigation system. We think that the answer is to be found in the fact that in any suit brought by any one or more of these Class Three defendants, against the other defendants here, the trustee holder of the water rights would be a necessary party. Cherry v. Howel1, 2 Cir., 66 F. 2d 713. And since the trustee, the United States, was not susceptible to suit, and could not be made a party defendant, the rights of those third party defendants cannot be said to be barred and that they are entitled to participate rateably with the Indian beneficiaries in the use of such waters as may be decreed to the United States in this suit."

    5. The fifth question deals with former Indian land which has been deeded to non-Indians and we interpret your query to request our opinion as to whether or not such lands are to be treated as part of the Reservation insofar as the applicability of water rights is concerned. The two cases cited above contain the best answer that can be given to this question. Although the water rights of the former Indian owner of the land did not pass to the non-Indian under the laws of the state, such laws would attach, insofar as the non-Indian and his land are concerned, after the Indian title thereto had become extinguished. The effect of state law on derivative water rights, however, is subject to the holding in the two cases cited above and of the Powers case, 305 U.S. 527, cited on page 342 of the Ahtanum case.

    6. No difference would result in the answer to the foregoing question regardless of how the Indian reservation was established. While the so called Winters Doctrine, established by the Supreme Court of the United States in 207 U.S. 564, arose on an Indian reservation which was created by treaty between the United States and the Indian tribe, the Circuit Court of Appeals in the case entitled United States v. Walker Irrigation District, et al., 104 F. (2d) 1334, held that the implied reservation of sufficient waters for the needs of the Indians on their reservation was applicable even though the Walker River Reservation was originally set aside in 1859 by an order of the General Land Office and subsequently confirmed and ratified by an Executive Order of 1874 which related its creation back to 1859 as the date of the establishment of the reservation. The answer to this question is accordingly in the negative.

    The Act of August 15, 1953, 67 Stat. 588, 590, confers jurisdiction on certain states with respect tion imposed by the United States. This act promitted or arising on Indian reservations within the states therein named. This legislation contains specific reference to its non-applicability to real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States. This Act prohibits the issuance of any regulation on the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute and with holds jurisdiction from the state to adjudicate in probate proceedings or otherwise the ownership or right to possession of such property or interest therein. While this act does not name the State of Washington, your attention is invited to its provisions to show the nature of the protection provided by Congress with respect to Indians' property and water rights.

    We appreciate this opportunity to clarify for you the status of Indian water rights.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

EFFECT OF THE ALASKA STATEHOOD ACT ON THE
SUFFRAGE RIGHTS OF INDIANS AND OTHER
NATIVE INHABITANTS

M-36524                                                                                                             August 15, 1958.

Section 4 of the Alaska Statehood Act, which provides for the retention by the United States of control over Indian trust lands and for exemption from State taxation of property of the native inhabitants of Indian trust lands, will not affect the right of such native inhabitants to vote in regular elections held in the State of Alaska.

Voting

Indians and other native inhabitants of Alaska are eligible to vote in the primary, general, and special elections to be held in the process of preparing Alaska for Statehood.

Memorandum

To:            The Secretary
From:        The Solicitor
Subject:     Eligibility of Alaska natives to vote in forthcoming elections

    Governor of Alaska Stepovich has asked me for my views on the question whether Indians living on Annette Island, as well as other Alaska natives, will be eligible to vote in State and Federal elections after Alaska is admitted into the Union. The question was raised in a letter to the Governor from Mr. Victor P. Guns of Ketchikan, who called attention to the disclaimer clause in section 4 of the Alaska Statehood Act and asked whether this clause would affect the right of natives to vote, inasmuch as the native trust lands will not be taxable.

    Section 4 of the Alaska Statehood Act is, in effect, a compact with the United States whereby the State and people of Alaska, as a condition off admission into the Union, disclaim all right and title to lands owned and held by Indians and other natives or owned by the United States for the benefit of the native peoples. This section states that such lands, other than those held by natives in absolute ownership, shall remain under "the absolute jurisdiction and control of the United States," subject to the right of the Federal Government to modify such control. This section also prohibits the State of Alaska from taxing such lands or property situated thereon.

    In our opinion, this provision of the Alaska Statehood Act will not prevent any of the native inhabitants of Alaska from voting.

    The admission acts of several other States contain language stating that the United States retained "absolute jurisdiction and control" over Indian lands. See, for example, the enabling act for the States of North Dakota, South Dakota, Montana, and Washington (25 Stat. 676), and that pertaining to Arizona and New Mexico (36 Stat. 557).

    The courts have interpreted this type of provision to mean that the United States retained only such authority over the land and the people residing thereon as was necessary to enable it to fulfill its obligation to care for the native peoples. The United States does not, the courts have said, assert jurisdiction over Indian lands for all purposes, but only to the extent necessary to control and care for the native inhabitants. The residue of the jurisdiction inheres in the State in which the Indian lands are located. Truscott v. Hurlbut Land & Cattle Co., 73 Fed. 60 (CCA 9, 1896); State v. Big Sheep, 243 P. 1067 (1926); Lobo v. Griffith, 173 N.W. 840 (1919); State v. Lohnes, 69 N.W. 2d 508 (1955). Indian lands occupy a unique status in regard to the jurisdictional principles applicable thereto, and the law governing Federal reservations does not always apply to them. In re Liquor Election in Beltrami County, 163 N.W. 988 (1917); Jurisdiction Over Federal Areas Within the States, Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II, page 13.

    Occupants of Indian trust lands are residents of the State in which the lands are located. In re Liquor Election in Beltrami County, supra; Porter v. Hall, 271 P. 411 (1928); Vermillion v. Spotted Elk, 85 N.W. 2d 432 (1957).

    It is significant to note that the Supreme Court of Arizona, which is one of the States whose organic act contained a disclaimer similar to the one in the Alaska Statehood Act, has held that Indians living on trust lands are residents of the State and are entitled to vote. Harrison v. Laveen, 196 P. 2d 456 (1948).

    It is, therefore, my opinion that neither the reservation of jurisdiction over Indian trust lands nor the exemption from taxation of property in section 4 of the Alaska Statehood Act will prevent any native inhabitant of Alaska from voting in State elections in Alaska if he is otherwise eligible.

    On the basis of the foregoing, we are of the further opinion that Indians and other native inhabitants of Alaska are, as a class, eligible to vote in the forthcoming elections being held under the provisions of the Alaska Statehood Act to prepare Alaska for admission into the Union. Section 8 (a) of the Statehood Act provides that the qualifications of voters in the primary and general elections to be held to choose the first officers of the proposed State shall be prescribed by the constitution of the proposed State. It is our view that the special referendum election, as well, whereby the issue of Statehood and related matters are to be decided, shall be held in accordance with these same rules. Section 8 (b) of the Alaska Statehood Act provides that this special election may be held at either the general election to be held for the election of the first State officers or at a Territorial general election, as well as at a separate election. Since the primary, general, and special elections contemplated by the Statehood Act are so intimately connected, it would be unreasonable to suppose that Congress did not intend that the qualifications of voters at all such elections would be identical.

    It is, therefore, our opinion that Indians and other natives are, as a class eligible to vote in all of the elections referred to above, both prior to and after Statehood is achieved by Alaska.

                                                                                                            ELMER F. BENNETT,
                                                                                                                                         Solicitor.

DESIGNATION OF KLAMATH MARSH AS REQUIRED BY
ACT OF AUG. 23, 1958

                                                                                                                          September 9, 1958.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     The scope of the Secretarial designation of the Klamath Marsh as required
                 by Sec. 1 of the Act of August 23, 1958, 72 Stat. 816 (Sec. 28 (a) of the
                 Act of August 13, 1954, 68 Stat. 718, as amended)

    You ask our opinion as to whether an area known as Wocus Bay can be excluded when the Secretary of the Interior and the Secretary of Agriculture jointly fulfill their statutory responsibility to designate "the tribal lands that comprise the Klamath Marsh." (Sec. 28 (a) of the Act of August 13, 1954, 68 Stat. 718, as amended by the Act of August 23, 1958, 72 Stat. 816.) Wocus Bay is physically part of the Klamath marsh lands and as a matter of geography might factually be included in the Klamath Marsh. However, we can find no reason which

would compel the inclusion of Wocus Bay as part of the "Klamath Marsh." On the contrary, as a matter of law there is a grave doubt as to whether the Wocus Bay area could at this date be designated a part of the Klamath Marsh thus automatically, by the language of Sec. 28 (f) of the Act of August 13, 1954, as amended, supra, be made available for sale along with other properties being sold to pay off the interest of withdrawing members.

    On February 20, 1958, the Under Secretary of the Interior approved a tentative plan of management prepared by the Management Specialists, which, among other things, provided that the Wocus Bay area would be included in the areas to be set aside as part of the future trust estate of the remaining members. A copy of this plan was made available to the committees of Congress interested in the Klamath termination problem. The Klamath Indians, relying on the proposals included in the tentative plan of management, expressed, in an election, their desire either to remain as members of the tribe and participate in a tribal management plan or to withdraw from the tribe and have their interest in tribal assets converted into money and paid to them. A total of 474 members, or 22.222 percent of the tribal membership, either elected to remain in the tribe or were deemed to have so elected because of their failure to cast a ballot. The election results were approved by the Under Secretary of the Interior by letter dated June 12, 1958.

    Although it is evident that more than one interpretation is open to those whose responsibility it is to carry out the terms of the act, there appears to be no legal requirement that an alternative should be adopted which would be inconsistent with the steps which have already been taken by the Secretary of the Interior in his administration of the act since its adoption on August 13, 1954. We may make use of the accepted presumption in aid of construction that Congress "had, and acted with respect to, full knowledge and information as to the subject matter of the statute and the existing conditions and relevant facts relating thereto, as to prior and existing law and legislation on the subject of the statute and the existing condition thereof *     *     *." (82 C.J.S. Statutes, Sec. 316.) As here pertinent, the factual situation which the Congress is presumed to have had in mind in passing the Act of August 23, 1958, was that the Wows Bay area had already been excluded from the land set aside for disposition on behalf of the withdrawing members and, in fact, had been promised to the remaining members. To require, by construction of the statute, a designation of the lands comprising the Klamath Marsh so as to select the Wocus Bay area as part of the estate of the withdrawing members of the Klamath Tribe, rather than that of the remaining members, would involve a change in the basis on which the choice was placed before those who had to elect to remain or withdraw. Consequently, that construction of the statute which keeps faith with the Indians should be the one adopted by the Secretary of the Interior and the Secretary of Agriculture, namely that the Wocus Bay area may not at this time be included by designation in the Klamath Marsh.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

SCOPE OF SECRETARIAL DESIGNATION OF THE
KLAMATH MARSH

M-36536                                                                                                                     October 28, 1958.

Where, pursuant to statute, Indians are given an opportunity to make a choice whether to remain as members of a tribe or to withdraw from such membership on the basis of a plan presented to the Indians, it will be presumed that the Indians, in making their choice, relied on the plan as presented. Any subsequent substantial change in the basic plan would require that the Indians affected be given again an opportunity to choose between withdrawing or remaining. A construction of the statute which avoids the necessity of such reconsideration by the Indians of their choice is preferable to one which would necessitate a new election.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Request for an opinion as to the scope of the Secretarial designation of the
                 Klamath Marsh as required ,by Sec. 1 of the Act of August 23, 1958, 72
                 Stat. 816 (Sec. 28 (a) of the Act of August 13, 1954, 68 Stat. 718, as
                 amended)

    You ask our opinion as to whether an area known as Wocus Bay can be excluded when the Secretary of the Interior and the Secretary of Agriculture jointly fulfill their statutory responsibility to designate "the tribal lands that comprise the Klamath Marsh" (Sec. 28 (a) of the Act of August 13, 1954, 68 Stat. 718, as amended by the Act of August 23, 1958, 72 Stat. 816). Wocus Bay is physically part of the Klamath marsh lands and as a matter of geography might factually be included in the Klamath Marsh. However, we can find no reason which would compel the inclusion of Wocus Bay as part of the "Klamath Marsh." On the contrary, as a matter of law there is a grave doubt as to whether the Wocus Bay area could at this date be designated a part of the Klamath Marsh and thus automatically, by the language of Sec. 28 (f) of the Act of August 13, 1954, as amended, supra, be made available for sale along with other properties being sold to pay off the interest of withdrawing members.

    The factual situation surrounding the Wocus Bay problem is briefly as follows: The original Klamath Termination Act, the Act of August 13, 1954 (68 Stat. 718) provided for the termination of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians. One of the requirements of the act was that the Secretary of the Interior select and retain qualified Management Specialists who would, among other things, "determine and select the portion of the tribal property which if sold at the appraised value would provide sufficient funds to pay those members who elect to have their interest converted into money *     *     *." (Sec. 5 (a) (3) of the Act of August 13, 1954, supra.) The Management Specialists caused an appraisal to be made of all the assets of the Klamath Tribe and on a tentative basis selected the areas to be sold. The remaining assets, not so selected, were to be retained on behalf of those members of the tribe who did not choose to withdraw.

    "It is also planned to retain the portion of Klamath Marsh known as Wocus Bay, located in the South Half of Sections 29 and 30, and Sections 32 and 33 of Township 31 South, Range 9 East; and in Section 4 of Township 32 South, Range 9 East. This latter area can be diked and drained, after which it can be used for grazing purposes; or it can be maintained in its present marsh status to provide an excellent waterfowl hunting area." ¹

The Klamath Indians, who may be presumed to have relied upon the proposals included in the tentative plan of management, expressed, in an election, their choice either to remain as members of the tribe and participate in the tribal management plan or to withdraw from the tribe and have their interest in tribal assets converted into

____________________

money and paid to them. A total of 474 members, or 22.222 percent of the tribal membership, either elected to remain in the tribe or were deemed to have so elected because of their failure to cast a ballot. The election results were approved by the Under Secretary of the Interior by letter dated June 12, 1958.

    In view of the fact that the number of persons electing to withdraw was greater than anticipated, an adjustment was required as to the areas selected for sale to pay off the interests of withdrawing members. By letter of July 29, 1958, the Management Specialists reported their final selections, adjusted to compensate for the larger number of withdrawing members, to the Secretary of the Interior. The Assistant Secretary of the Interior approved the plan of partitionment effective the close of business June 30, 1958, by letter dated August 15, 1958. Consequently, at the time of the passage of the recent amendment to the Klamath Termination Act, the Wocus Bay area was no longer technically part of the property described in Sec. 28 (f) of the amended Klamath Termination Act as available for designation as the Klamath Marsh pursuant to Sec. 28 (a) of said Act.

    Although it is evident that more than one interpretation is open to those whose responsibility it is to carry out the terms of the act, there appears to be no legal requirement that an alternative should be adopted which would be inconsistent with the steps which have already been taken by the Secretary of the Interior in his administration of the act since its adoption on August 13, 1954. We may make use of the accepted presumption in aid of construction that Congress had, and acted with respect to, full knowledge and information on the subject matter of the statute and the existing conditions and relevant facts relating thereto, as to prior and existing law and legislation on the subject of the statute and the existing condition thereof *     *     *." (82 C.J.S. Statutes, Sec. 316.) As here pertinent, the factual situation which the Congress is presumed to have had in mind in passing the Act of August 23, 1958, was that the Wocus Bay area had already been excluded from the land set aside for disposition on behalf of the withdrawing members and, in fact, had been promised to the remaining members. To require, by construction of the statute, a designation of the lands comprising the Klamath Marsh so as to select the Wocus Bay area as part of the estate of the withdrawing members of the Klamath Tribe, rather than that of the remaining members, would involve a change in the basis on which the choice was placed before those who had to elect to remain or withdraw. Consequently, that construction of the statute which keeps faith with the Indians should be the one adopted by the Secretary of the Interior and the Secretary of Agriculture, namely that the Wocus Bay area may not at this time be included by designation in the Klamath Marsh.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

PER CAPITA PAYMENT--CROW TRIBE

                                                                                                                                     October 30, 1958.

Memorandum

To:            Assistant Secretary, Public Land Management
From:        Acting Solicitor
Subject:     Per capita payment, Crow Tribe

    In your memorandum of October 24, 1958, you have raised the question whether, under existing law, authority exists for a per capita payment to the members of the Crow Tribe of the $2,500,000 paid to the tribe under the act of July 15, 1958 (72 Stat. 361), as compensation for damages resulting from the construction of Yellowtail Dam.

    We had earlier communicated to your office on an informal basis the suggestion that it may be advisable to request a ruling from the Comptroller General on the question presented. This suggestion was made as a means of obtaining the Comptroller's views on the broader question of whether statutory authorities under which per capita distributions can otherwise be made are limited to certain classes of funds or whether those authorities cover all tribal funds, including those of the Crow Tribe which are the subject of this memorandum.

the account used for the deposit of the miscellaneous tribal revenues from the Crow Reservation.

    I should like to make it clear that the conclusion herein reached as to the availability of these Crow tribal funds for advancement to the tribe is not intended to imply that funds held in the United States Treasury which represent the proceeds of judgments recovered by the tribes on claims against the United States are likewise available for expenditure without specific authorization by the Congress. The Crow funds discussed above represent payment for a current taking or damages sustained by the Crow Tribe as presently constituted. On the other hand, nearly all of the judgments being recovered by the Indian tribes in litigation before the Indian Claims Commission represent damages for lands taken many years ago. In many of these cases, it is not clear from the judgment whether the funds of the judgment are to go to the tribe as presently constituted or whether the beneficial interest in the judgment is to inure to the members of the tribe as it was constituted at the time the taking occurred. In these circumstances, the judgment funds are deposited in the United States Treasury and held until such time as the Congress authorizes their expenditure or distribution. As indicated above, however, the Crow funds represent a payment for a current transaction and it is believed that this circumstance justifies the distinction made between the two situations.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

RESTRICTIONS ON INDIVIDUALLY-OWNED PURCHASED
LANDS OF KAW INDIANS, OKLAHOMA

M-36538                                                                                                                  November 10, 1958.

Restrictions existing on both the Kaw homestead allotments and restricted lands purchased by Kaw Indians with trust or restricted funds derived from Kaw sources, expired by law on January 1, 1948.

Indians: Taxation: Generally

The scope of restrictions imposed on land purchased with trust or restricted funds derived from Kaw sources was not broadened by the Act of June 20, 1936, as amended, but the exemption from taxation created by this act followed the restrictions and continued only so long as restrictions existed.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Restrictions on individually-owned purchased lands of Kaw Indians, Oklahoma

    This replies to your request for our opinion on the restricted status of the land allotted to Alice Pepper, a member of the Kaw Tribe. You also requested our views on the tax status of land owned by Gene Munroe, a member of the Kaw Tribe.

    For the reasons set forth below we conclude that the category of land in question became unrestricted as of January 1, 1948, and that any tax exemption thereon also terminated as of that date.

I.

    Gene Munroe, Kaw Allottee #88, purchased the NE1/4, sec. 35, T. 27 N., R. 4 E., Indian Meridian,

Oklahoma, on November 30, 1923. The warranty deed provides that the purchase is "subject to the condition that the land herein described shall not be alienated or encumbered without the consent of the Secretary of the Interior." On the back of the deed appears a certificate signed by the Superintendent of the Pawnee Indian Agency, Oklahoma, reciting "I hereby certify that the consideration paid for the within described land is money held in trust by the United States for the benefit of the grantee." The warranty deed was filed for record in Kay County, Oklahoma., on January 17, 1924.

    The trust money used on November 30, 1923, as consideration to purchase the land for Mr. Munroe, was presumably derived from his restricted home stead allotment. The condition inserted in the warranty deed, restricting alienation and encumbrance except with Secretarial consent, indicates an intention of the parties to treat the purchased tract in the same manner as Mr. Munroe's homestead allotment. By inserting the restriction in the Gene Munroe deed on November 30, 1923, the Secretary of the Interior, as trustee of the Kaw restricted Land, was imposing a restriction on the purchased land like that on Munroe's allotted land. The Secretary of the Interior as trustee of restricted allotments and trustee of income derived from restricted land has the authority to authorize reinvestment of such proceeds in other land and impose like restrictions thereon as were on the land from which the income was earned. See Sunderland v. United States, 266 U.S. 226; United States v. Getzelman, 89 F. (2d) 531; United States v. Brown, 8 F. (2d) 564; United States v. Thurston County, Neb., 143 Fed. 287; National Bank of Commerce v. Anderson, 147 Fed. 87.

    Whenever property in its original state and form has been impressed with a trust, normally no change in that state and form can divest it of its trust character so long as it remains capable of clear identification. Any restriction applicable to the allotment also pertained to funds derived from it, and was continued with respect to the purchased land. United States v. Williams, 139 F. (2d) 83; Ward v. United States, 139 F. (2d) 79. Restrictions on lands purchased with trust or restricted funds, as well as restrictions on Kaw homestead allotments were therefore extended by the Act of May 27, 1924, supra, until January 1, 1948. Congress did not subsequently enact legislation further extending tile period of restriction.

    The Act of June 20, 1936, as amended on May 19, 1937, supra, was devised to attach tax exemption to restricted land purchased with restricted funds. No new or additional restrictions were created. The scope of restrictions imposed on land purchased with trust or restricted funds derived from a Kaw restricted homestead allotment was not broadened by these acts. As is apparent from the context of this legislation, the existence of restricted land previously purchased with trust or restricted funds was a necessary prerequisite to obtaining a tax exemption certificate. It was merely intended that the tax exemption should follow the restrictions and continue as long as they do. Board of County Commissioners v. Seber, 318 U.S. 705. Since the tax exemption followed the restrictions and continued as long as they did we must conclude that the tax exemption on Gene Munroe's purchased acreage expired on January 1, 1948.

II.

    Alice Pepper, Kaw Allottee #36, received the NW1/4, sec. 19, T. 27 N., R. 5 E., Indian Meridian, Oklahoma, containing 155.24 acres, as a homestead allotment, pursuant to the Act of July 1, 1902, 32 Stat. 636. On March 29, 1918, at the age of 16 years, Alice Pepper died intestate. Her heirs were legally determined on June 26, 1920, to be William R. Pepper, a brother, age 20 years, Ralph Pepper, a half-brother, age 27 years, and Edgar Pepper, a brother, age 10 years. Each of the heirs received an undivided 1/3 interest in the property.

    On March 26, 1924, William R. Pepper, as owner of the undivided 2/3 interest in the land, and his brother Edgar Pepper, the owner of the remaining 1/3 interest, effected a partition of the property by exchange deeds. A small cash consideration to equalize the exchange also passed to William R.

Pepper and was paid with trust funds. This transaction was approved by the Assistant Secretary of the Interior on April 23, 1924. Each deed contains a provision which states:

    "The within deed is made to partition an estate and the land therein described remains restricted Indian land just the same as all other restricted Kaw Indian homestead allotments, and the title to this land cannot be alienated or encumbered without the written consent of the Secretary of the Interior." (underscoring supplied)

    The facts clearly show the source of the consideration used to purchase title to the acreage comprising the Alice Pepper allotment. William R. Pepper acquired the 1/3 interest owned by his brother, Ralph Pepper, for a consideration which consisted of an undivided interest in a restricted allotment he had inherited. This purchase was impressed with a restriction like that controlling the inherited interest. See Sunderland v. United States, supra.

    The quid pro quo involved in the transaction between William R. Pepper and Edgar Pepper was paid in part by trust money. The substantial portion of the consideration was an exchange of the interest which each of them owned in the former Alice Pepper restricted homestead allotment. The restrictions imposed in the exchange deeds are expressly related to interests in restricted Kaw homestead allotments and the trust money given to supplement the land exchange was evidently derived from restricted Kaw lands. See Ward v. United States, supra; United States v. Williams, supra. The provision in the exchange deeds, supra, clearly indicates that it was intended that the land be treated as all other restricted Kaw homestead allotments.

    As previously shown, on January 1, 1948, the restrictions against alienation existing on both the Kaw homestead allotments and restricted lands purchased by Kaw Indians with trust or restricted funds derived from Kaw sources, expired by law. Therefore, we conclude that William R. Pepper and Edgar Pepper each held an unrestricted fee simple interest in the original Alice Pepper homestead allotment after January 1, 1948.

SEPARABILITY OF TRIBAL ORGANIZATIONS
ORGANIZED UNDER SECS. 16 AND 17 OF THE
I.R.A.

65 I.D. 483

Indian Reorganization Act

Section 16 was enacted to facilitate and to stabilize tribal political organizations. Section 17 was enacted to permit a tribe so organized to charter a business corporation to facilitate its business activities. They are separate legal entities, having different powers, privileges and responsibilities.

Indian Tribes: Generally

A Tribe organized under Section 16 of the Indian Reorganization Act is a political body and is a separate entity from a corporation chartered under Section 17 of the Indian Reorganization Act, having different powers, privileges and responsibilities.

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Request for interpretive opinion on the separability of tribal organizations
                 organized under Sections 16 and 17 of the Indian Reorganization Act.

    You desire an opinion whether an Indian tribe organized pursuant to Section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. 476, is the same legal entity as a corporation chartered on behalf of the newly organized tribe pursuant to Section 17 of that Act, 2.5 U.S.C. 477. You refer specifically to Solicitor's Opinion M-36119 of February 12, 1952, which distinguishes the two tribal organizations with respect to the making of certain contracts.

    The Solicitor's Opinion, to which you refer, clarifies and emphasizes the distinction between the powers of the constitutional tribal organizations and those of the tribal corporation. A contract for the conveyance of land by the political body was considered therein as subject to the provisions of Section 2103 of the Revised Statutes (25 U.S.C., 81). The opinion also stated that Congress has, by section 17, empowered the Secretary to charter corporations having "far-reaching powers with respect to the conduct of business activities," including making of contracts subject only to the limitations imposed by such section and by its charter. That opinion concluded that the purpose of Section 17 was to authorize the Secretary, in his discretion, to grant any or all powers incidental to the conduct of business which a corporation can legally exercise, except the power to sell or mortgage reservation lands, or to lease tem for a period in excess of 10 years.

    A study of the legislative background of the Indian Reorganization Act makes clear the distinction between the organization of an Indian municipal government under Section 16 of the Indian Reorganization Act and that of a business corporation under Section 17 of the act. The original bills (S. 2755 and H.R. 7902, 73rd Congress) introduced in 1934 to terminate the allotment system and to reestablish tribal autonomy provided for the issuance of a single charter by the Secretary of the Interior to defined communities of Indians. Such a charter would grant powers of government and such privileges of corporate organization and economic activity as seemed necessary to enable the proposed organization to act as a Federal governmental agency and also to exercise the privileges of business corporations. The Committee objected to the proposed legislation, suggesting that no one would give credit to such an organization because of its immunities, and that the United States might be liable for tribal actions (H.R. 7902, Hearings, pp. 98-100). The bill was redrafted as Senate 3645. Senate 3645, reported by Senator Wheeler's Committee (Report No. 1080, May 10, 1934), permits the organization by the Tribe of a separate business corporation in which any part, or all, of the Tribe's property and business interests may be vested. Commenting on the redrafted measure, the Committee Report carefully distinguishes the political organization from such a business corporation.

    It is not to be assumed, however, that where tribal property held in a trust or restricted status comes into the ownership or control of a tribal business corporation, a change in the trust or restricted status is by that fact alone effected. Although such property when turned over to the business corporation by contract or conveyance, can be managed or disposed of by corporate officers as provided in the corporate charter, it is still subject to the laws of the United States and regulations of the Department of the Interior governing such property. As an illustration of congressional intention, although tribal business corporations organized under Section 17, supra, are given "specific power to purchase restricted Indian lands and to issue in exchange thereof interests in corporate property," Congress has further provided in this section that "no authority shall be granted to sell, mortgage or lease for a period exceeding ten years any of the land included in the reservation."

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

RIGHT OF PURCHASE AT "APPRAISED VALUE"
OF INDUSTRIAL PROPERTY

                                                                                                                                 November 24, 1958.

Memorandum

To:            Assistant Commissioner (Economic Development) Bureau of Indian Affairs
From:        Solicitor
Subject:     Further interpretation of Section 2 (d) (5) of the Act of August 28, 1957 (71 Stat. 468)

    You raise the question whether the phrase "the industry will have an option to purchase the property at its appraised price, as determined by the Secretary . . ." in Sec. 2 (d) (5) of the Act of August 28, 1957 (71 Stat. 468) refers to the present appraised price or the appraised price at the termination of the contract.

    Nothing in the legislative history of that act specifically discloses the intention of this provision. Normally, as you were previously informed, "to purchase at the appraised value" implies the appraised value at or near the date of purchase In this case, however, to place such an interpretation on this provision might defeat the basic objective of the act, which is "to stimulate industrial development near Indian reservations." It is clear that any industrial enterprise truly interested in developing tile property in question would hesitate to do so to the fullest extent if this development would increase the price which it would have to pay to purchase the property at the termination of the contract. In fact, such a construction of this provision might tend to discourage potential large-scale developers.

    There is an inference in this act that the word "property" refers to the property as it exists at the date of contract. For instance, Section 1 authorizes the General Services Administration to transfer the "property" to the Indian tribe; Section 2 (b) provides that this "property is to be used to stimulate industrial development"; and subsection (1) of Section 2 (d) provides that "the property will be made available to the industrial enterprise at a rental fee commensurate with the purpose of this act. *     *     * "

    For these reasons, after further consideration, we believe that the phrase "at its appraised price" in subsection 2 (d) (5) can reasonably be construed as referring to an appraisal of the property as off the date of the contract, and you would be justified in taking that position.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

MEMBERSHIP IN CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD RESERVATION

                                                                                                                                     December 3, 1958.

Memorandum

    In your memorandum of April 25, 1958, concerning actions of the Tribal Council respecting membership in the Confederated Salish and Kootenai Tribes of the Flathead Reservation, you request that our opinion of March 3, 1958, on this subject be reconsidered.

    That opinion was submitted pursuant to your request of February 18, 1957, to consider the entire matter involving this Tribal Council's action in regard to tribal membership. We expressed doubt as to the validity of those Tribal Council Ordinances which purported to change eligibility requirements of the Tribal Constitution with respect to existing members, permitting the Council to take membership away from persons previously included as members, and also to change such requirements with respect to future membership, in effect authorizing itself, without further tribal action, to enlarge as well as to lessen the classes of individuals eligible to membership. That opinion concluded that, in view of the Secretary's responsibility toward these Indians, especially in the administration of their property, this doubt was sufficient to justify requiring specific tribal recognition and approval of the delegation of such power to the Tribal Council. After further consideration, we are still of this opinion.

    On April 10, 1945, when the Tribal Council first indicated an intention to change the membership qualifications established by the Constitution, you suggested to the Superintendent the propriety of overruling the Tribal Council if it acts "unreasonably, arbitrarily or in violation of the tribal constitution." It is not only proper, but necessary, for those acting in a fiduciary relationship to determine the beneficiaries of their trust, and, therefore, ascertain the validity of any action which purports to change these beneficiaries.

    The history of Tribal Council action on membership in this Tribe indicates continued dissatisfaction with such action. On February 1, 1944, a Solicitor's Opinion was obtained which emphasized that the Tribal Council was bound by the Constitutional provisions concerning membership. In the following year an effort was made to have the Council adopt rules interpreting the residential membership requirement of the Constitution, that only those children could be enrolled whose parents at the time of birth of such children were "residents of the Reservation" (Art. I (b) ). On October 4, 1946, Ordinance 4A was adopted which provided that all children thereafter born of enrolled members should be enrolled, regardless of place of birth, unless the parents had, with certain exceptions, resided away from the Reservation "for a period of 10 years." If not unconstitutional, this Ordinance was at least arbitrary, and you so informed the Tribal Council (Dec. 11, 1946). On January 14, 1947, however, you advised the Tribal Council that "the 90 days review period provided by the Constitution had expired" so that your previous letter was ineffective to veto the Ordinance. However, you suggested tribal action to forestall "opposition developing in the future" to this Ordinance.

    On November 24, 1953, the Tribal Council enacted Ordinance 18A which authorized the Council

"to approve or reject" the enrollment of persons already enrolled. As with the previous ordinances, no action was taken within the 90 day period so it was presumed to be effective. Nevertheless, on August 11, 1954, you wrote the Tribal Council that the entire Ordinance was invalid since "the tribal constitution does not vest in the Council authority to adopt ordinances for the erection of the rolls *     *     *." A constitutional amendment was suggested as the appropriate method of vesting this authority in the Council. On February 10, 1955, you wrote the Tribal Council that the residential requirement provision of Section 1 (b) of the Tribal Constitution, as well as the delegation of power to correct tribal rolls, requires an amendment of the Constitution.

    We agree that there is somewhat more legal justification for tribal action which purports to be pursuant to the constitutional provision authorizing the Tribal Council "to propose ordinances *     *     * governing future membership *     *     *" (Sec. 2, Art. II), than for action affecting existing membership, such as the tribal actions already discussed, which has no constitutional foundation. Nevertheless, our opinion of March 3, 1958, indicated substantial grounds for doubt whether this provision concerning future membership was intended to authorize the Tribal Council to enact ordinances controlling future membership. The United States, acting in its guardianship capacity with respect to tribal funds, should take no unnecessary risk concerning the identity of the individuals to whom such funds should be distributed. As the value of the Tribal property increases, the problem becomes more acute. The Tribal constitution hag provided a method for determining what power is delegated to the Tribal Council and for adopting individuals whom the Tribal Council desires to be members of the Tribe; and provides generally for changing or clarifying the Constitutional provisions concerning membership. Since it is clear that tribal ratification of certain actions of the Council, as well as Constitutional amendment, is necessary to validate certain Council action concerning membership and to grant the Council some of those powers concerning membership sought by it, the entire action of the Council in this regard should, at the same time, be ratified and its power clarified for the future.

    You also request a specific opinion on the authority of the Commissioner, in relation to tribal membership, (1) "to hold a tribal ordinance invalid" and, (2) "to interpret the provisions of tribal constitutions and ordinances and resolutions enacted pursuant thereto."

    You have previously been advised that the Commissioner must refuse to recognize a tribal ordinance concerning membership which he has reasonable ground to believe invalid, and that he may recommend action to validate such ordinance. This does not amount to a legal "holding" that the ordinance in question is invalid. It is an administrative act, which is justified because of the responsibility in administering tribal property--a responsibility recognized by the Tribal Constitution. (See memorandum of Mar. 3, 1958, supra.) It is the duty of all who act in a similar fiduciary relationship. This authority you have to assure the validity of tribal action involving property rights.

    This authority and obligation necessarily includes interpreting the provisions of a tribal constitution and of all other actions of a tribe or of its delegated officials which affect your responsibilities with respect to determining membership in Indian tribes over whom Federal supervision is maintained.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

RECONVEYANCE OF TRIBAL LAND TO ORIGINAL
ALLOTTEES OR THEIR HEIRS

                                                                                                                                     December 5, 1958.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Reconveyance of tribal land to original allottees or their heirs

    You request our advice as to what action can be taken to reinvest in certain Muckleshoot Tribe allottees the title to their lands, deeds to which they have executed to the United States in trust for their tribe. You state that these deeds were prepared pursuant to an understanding among the tribe and its members that other allottees would also convey their interests to the tribe as part of a program to consolidate individually-owned land

into tribal ownership. This plan evidently never was consummated, only a few allottees having been persuaded to take the action contemplated. The Tribe appears to have given up the plan, desiring no further conveyances to it, and never considering those made as effective. As a result the Indian Superintendent has not been able to administer these lands properly as tribal lands.

    The facts available to us indicate that five or six such deeds were executed in various forms, specifying a condition that the land be assigned to others named therein and that the conveyances were pursuant to Section 4, or to Section 5, or both, of the Indian Reorganization Act; and, in some cases, making reference to the tribal constitutional provision concerning exchange assignments. These deeds were, after approval by the Secretary, returned for filing in the county records, and some were so filed. In some cases exchange assignment forms were executed and in other cases "Temporary Assignment and Occupancy Permits" were executed in favor of the persons designated by the grantors. The Tribal Constitution provides both for "exchange assignments," which are contemplated by Section 4 of the Indian Reorganization Act, and for "standard assignments" of tribal land, which are of a different nature. (Sections 4, 5, 6, 7, and 8 of Art. VIII). That constitution also permits individual Indians to convey their land "to the Muckleshoot Tribe" in exchange for a money payment or an exchange assignment (Sec. 1, Art. VIII).

    If there is not sufficient evidence to sustain an incomplete joint undertaking of the Tribe and its members, it will require congressional action to permit the reconveyance of land which has been validly conveyed to the United States in trust for the Tribe.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

LEASABILITY OF CEDED LANDS USED BY THE
UNITED STATES FOR THE BENEFIT OF THE
INDIANS

M-36540                                                                                                                         January 8, 1959.

Mineral Leasing Act for Acquired Lands: Lands Subject to--Public Lands: Generally--Indian Lands: Ceded Lands

Originally ceded lands as to which the United States has never parted with title cannot be considered to be "acquired lands" within the meaning of the Mineral Leasing Act for Acquired Lands.

Mineral Leasing Act: Lands Subject to--Public Lands: Generally--Indian Lands: Ceded Lands

The Mineral Leasing Act of 1920 (30 U.S.C. 181, et seq.) normally applies to ceded Indian lands where the cession is absolute.

Withdrawals and Reservations: Generally: Authority to Make

Where Congress provides for the setting apart of lands for a particular use, any such setting apart is tantamount to a congressional withdrawal of the lands.

Withdrawals and Reservations: Generally--Indians: Generally--Indian Tribes: Reservations

Where lands belonging to the United States are reserved for the use of the United States in carrying out its duties as guardian of the Indians, even though such use is intended to benefit the Indians, the lands are not held in trust for the Indians and are not included in an Indian reservation.