Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1876-1900

1876

DEPARTMENT OF THE INTERIOR

FEBRUARY 23, 1960

lands and the right to hunt and fish on former Indian lands within an Indian reservation. That case involved the prosecution of a number of the Bad River Band of the Chippewa Tribe for hunting deer out of season on fee patented lands within the boundaries of the Bad River Reservation. The count said:

We are aware of no ruling contrary to that which is implicit in the above question from the Johnson case.

The holding in your memorandum that the Coeur d'Alene Indians have reserved to themselves the right to hunt and fish on fee patented ceded Indian lands is not in accord with the reservation doctrine established by the courts. And since there is nothing in the Treaty, agreement, or acts of Congress dealing with these Indians similar to the reservations in the Yakima Treaty there is no reserved right vested in the Indians authorizing their hunting or fishing on the land after the land passes out of Indian ownership. An examination of the record in the case entitled The Coeur d'Alene Tribe of Indians v. United States of America, before the Indian Claims Commission, decided December 3, 1957, Docket 81, shows no claim of rights, such as dealt with in your memorandum, was presented to the Commissioner.

This responds to your letter, dated April 1, 1960, addressed to the Secretary of the Interior, in which you referred to your prior communication, dated October 15, 1959, regarding the estate of Taylor Greenleaf, a deceased full-blood Creek Indian. We expressed the opinion in our reply of November 2, 1959, that Taylor Greenleaf's restricted estate, as such, was not subject to administration proceedings in the State probate courts of Oklahoma, notwithstanding the circumstance that some of his heirs may not be of the restricted class, i.e., of one-half or more Indian blood.

Since the above conclusions by this office were based upon a consistent, and what we regard as a correct, interpretation of sections 3 (a) and 5 of the act of August 4, 1947 (61 Stat. 731), referred to in your recent communication, we did not regard it essential that our views on that statute be referred to the Attorney General for his opinion. Moreover, no circumstances are present in the Taylor Greenleaf case which can be regarded as an independent reason for requesting such an opinion.

The position taken by this office that a claim against the restricted estate of the above decedent will require administrative consideration by officers of this Department was fully analyzed at the time the claim of W. S. Sessions was presented. For your information in that respect we are enclosing a copy of the memorandum, dated May 26, 1958, which this office sent to the Commissioner of Indian Affairs.

We have kept in mind in our consideration of Sections 3 (a) and 5 of the act of August 4, 1947, certain pertinent observations by Mr. W. F. Semple. a member of the Tulsa, Oklahoma Bar, who has had many years of experience with the affairs of the Indians of the Five Civilized Tribes, and who also played a prominent part in connection with legislative proposals which led up to the enactment of the 1947 act. We would like to quote a complete section from Mr. Semple's treatise "Oklahoma Indian Land Titles Annotated," published in 1952, wherein he states (p. 219):

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OPINIONS OF THE SOLICITOR

MAY 11, 1960

The above writer's views comport with our present opinion of this matter, as well as with the view we entertained when making a report on enrolled bill H.R. 3173, which became the act of August 4, 1947. In that report, dated July 31, 1947, we advised the Director of The Bureau of the Budget that Section 3 "is not intended to confer upon the State courts any jurisdiction in probate matters over restricted funds under the control of the Secretary of the Interior, as provided in Section 5 of the bill." While we respectfully acknowledge that there are views contrary to those of this Department regarding the interpretation of the 1947 act, we have endeavored by this letter to explain the basis for the position we have taken in this matter.

We advised you in our letter of November 2, 1959, that further consideration of the claim of W. S. Sessions against the restricted estate of Taylor Greenleaf had to be withheld at that time because of the relationship of such matter to litigation then pending. The litigation has been concluded, and it is now proposed to renew administrative examination of the claimant's objections to the disallowance of the claim from restricted funds by the Area Director, Bureau of Indian Affairs, Muskogee, Oklahoma. The interested parties will be promptly advised when consideration of this matter has been completed.

CANCELLATION OF CONSTRUCTION COSTS UNDER
LEAVITT ACT--FT. BELKNAP INDIAN RESERVATION

To:            Mr. H. Rex Lee, Deputy Commissioner of Indian Affairs
From:        Solicitor
Subject:     House Document 501, 72nd Congress, 2nd Session, dealing with cancellations
                 under the Act of July 1, 1932, 47 Stat. 564

House Document 501 contains the Secretary of the Interior's submission to the Congress of December 15, 1932. The Secretary's report was prepared after a field study which was made by a special committee appointed for that purpose with a view to proceeding under the Leavitt Act of July 1, 1932. That act is quoted on page 2 of the document. On page 3 of the document is listed a number of items which are purported to be canceled by the Secretary of the Interior under the authority vested in him by that act. Among other items listed are $116,970.00 carried under the heading "Tribal herds" (reimbursable from tribal funds). There is also listed as being reimbursable from tribal funds items amounting to $870,353.53, under the title "Roads and bridges" (reimbursable from tribal funds) The next category of items listed on that page is under the heading "Irrigation" (reimbursable from individuals). The particular item on which you desire consideration is, in part, the item listed under Fort Belknap Reservation, Montana. amounting to $231,476.51. By referring to page 18 of the House Document, under the heading Fort Belknap Reservation, Montana, you will

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DEPARTMENT OF THE INTERIOR

MAY 11, 1960

note that the recommendation is made to cancel out all construction cost reimbursable to the government against Indian-owned lands on all units except $20 per acre on the Milk River (including White Bear), and $15 per acre on Three-Mile units, which totaled $35,431.67. The next item deals with operation and maintenance assessments, the cancellation of which is authorized by the Leavitt Act under the terms and conditions of that act.

Specifically, the question is whether or not certain items incorporated in that report and submitted to Confess under date of December 15, 1932, have actually been canceled. It is recognized that the mere submission of such items to Congress does not result in cancellation of those items even though the Secretary of the Interior provides in the submission for their cancellation, unless the action taken by him was authorized by the Congressional Act, as the Secretary, in the absence of appropriate legislation, is not vested with the authority to cancel reimbursable obligations due the Government of the United States.

The authority of the Secretary is found in the said Leavitt Act of July 1, 1932. This act vests in the Secretary of the Interior the authority "to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made." (underscoring supplied) In the absence of further limitations on the authority, the action taken by the Secretary as incorporated in the document, with the exception of where tribal funds were involved, would have been final and conclusive. In this statute, however, it is provided:

This action of the Congress eliminated from further consideration the matter dealing with the construction cost of an irrigation project for as long as the lands remained in Indian ownership. The Congress specifically deferred for such period of Indian ownership of the land the collection of all costs for the construction of Indian irrigation projects. Thus, having deferred such costs for such period Congress, in effect, specified there were no costs which were debts due from the Indians to the United States. Hence, there are, during such period of Indian ownership of the land, no debts for construction which could be canceled under this act. Thereafter the construction cost attached to the land and its collection is to be undertaken only after the extinguishment of the Indian title to the land as provided by law and regulation. Since Congress had so provided, the Secretary was without authority, in our opinion, to cancel a part of those deferred costs that had formerly existed as a collectible debt against the Indian lands. It follows that the attempted cancellation was ineffective because The Secretary was not vested with the authority to cancel the obligation represented by construction costs, as such obligation was not a reimbursable charge "of the Government of the United States existing as debts against individual Indians or tribes of Indians."

The Leavitt Act further provides that to effectuate the cancellation of any debt against an individual Indian or tribe of Indians the action of the Secretary must be reported to Congress showing the adjustment so made, and that such action of the Secretary shall not be effective until approved by Congress, unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within 60 legislative days.

The purported cancellation of the construction costs amounting to $35,431.67 in the Fort Belknap raw did not, in our opinion, effectuate the cancellation of such sum as the Leavitt Act did not authorize such action. The tribal funds which had been expended and which, according to page 3 of public document 501, were included therein for cancellation. were likewise not canceled. These obligations arose not by reason of being reimbursable charges of the Government of the United States existing as debts of individual Indians or tribes of Indians, but they were the outgrowth of expenditures by the trustee, the Government of the United States, from tribal funds of the respective Indian tribes. Any obligations which may be due were

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OPINIONS OF THE SOLICITOR

MAY 27, 1960

those due to the tribe and not to the United States. Tribal funds are accordingly not subject to cancellation under the Leavitt Act. Expenditures made, however, from Treasury appropriated funds for the benefit of Indian tribes and made reimbursable to the Government out of tribal funds of the particular tribe receiving such benefits were subject to cancellation under the Leavitt Act, as the obligations were not created by the expenditure of tribal funds. Any and all cancellations thus made were effective.

SPOKANE INDIAN HUNTING, FISHING AND BOATING
RIGHTS IN THE LAKE ROOSEVELT INDIAN ZONE

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Re Spokane Indian Hunting, Fishing and Boating Rights in the Lake Roosevelt Indian Zone

The Field Solicitor, Ephrata, Washington, has advised The Superintendent, Coulee Dam National Recreational Area:

Paragraph 2 of section 1 of the act of June 29, 1940, supra, provides in part: "that the exercise of the Indians' rights shall not interfere with project operations." The designation of the Indian Zone on the Coulee Dam National Recreational Area is a practical method of notifying the general public of the area subject to the Indian servitude.

In Solicitor's Opinion M-34326, December 29, 1945, 59 I.D. 149, 165, it is clearly stated that an assumption prevails that the Indian rights in the areas set aside cannot be enlarged unless the possibility of enlargement is suggested by the language of the act. We further agree that the Secretary is empowered to make such "use" an exclusive right but that he is under no duty to do so unless he finds as a matter of fact that the protection of the Indians in the exercise of their rights makes such a step necessary. Ibid, p. 170.

Consequently, although the Solicitor's Opinion M-34326 does not specifically resolve the problem of whether the Indians as a matter of legal right have the power to issue licenses to others as an incident of "paramount use," ibid, p. 171, the determination that the Colville and Spokane tribes do not have exclusive rights to the Indian Zones appears to preclude them from effectively asserting any power to license others to operate boats or hunt or fish under the sanction of the Tribe. Cf. Solicitor's Opinion (M-34739), January 3, 1947; Solicitor's Opinion (M-31480), February 12, 1943.

It is our opinion that the Field Solicitor is correct in the view that under the present Agreement of December 18, 1946, among the Bureau of Reclamation, National Park Service, and the Office of Indian Affairs, the Indians, like anyone else, must make application to the Park Service to obtain a permit for the development and operation of public concessions within the Indian Zones. Therefore, we cannot agree with the attorneys for the tribe who contend that the Field Solicitor's opinion deprives the Indians of special rights given them by Congress. Nor do we take the position that the "paramount use" of the Indian Zones is abridged by the proposed development of four other sites for recreational activities on Lake Roosevelt. The Bureau of Indian Affairs has full opportunity under the Agreement of December 18, 1946, to present whatever it deems desirable in support of a tribal application for concessions anywhere on Lake Roosevelt and in event of adverse action by the National Park Service, the opportunity to bring the matter to the attention of the Secretary. It is our view that further negotiations along this line could well result in a satisfactory understanding between the National Park Service and the tribe.

1880

DEPARTMENT OF THE INTERIOR

JUNE 20, 1960

IRS LEVY AGAINST PER CAPITA PAYMENTS TO
MEMBERS OF CONFEDERATED SALISH AND
KOOTENAI TRIBES

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Levy of Internal Revenue Service against per capita payments to members of
                 Confederated Salish and Kootenai Tribes

This replies to your memorandum of August 10, 1959, requesting advice, for the instruction of the Superintendent of the Flathead Reservation, as to the propriety of giving priority over levies for delinquent federal income taxes to an assignment of a distributed per capita payment when given as security for a short term tribal loan. The attorneys for the tribe have asserted that the Federal government has a fiduciary responsibility to the tribe to protect the tribal interest at the expense of any other Federal interest, irrespective of any priority.

There appears to be no question but that the funds of the individual Indian on deposit with the United States may be levied upon by the Secretary of the Treasury or his delegate if the Indian is liable to pay any tax and neglects or refuses to pay the tax. (26 U.S.C. 6331.) Further, that any person who fails or refuses to surrender the funds subject to levy, upon demand by the Secretary of the Treasury or his delegate, shall be liable in his own person and estate for an equal sum (26 U.S.C. 6332). However, when money in an individual Indian money account which is received as a per capita payment is pledged to secure a tribal loan before the tax lien attaches, such money is unavailable as a source for satisfaction for the lien, and the Superintendent is not required to surrender such funds. (.See 26 CFR 601.104 (c) (3) .)

To:            Director, Bureau of Land Management
From:        The Solicitor
Subject:     Legal questions raised by the proposed Private Exchange of the Pueblo
                 of Zuni, New Mexico 059933. Act of August 13. 1949 (63 Stat. 605;
                 25 U.S.C. 622)

Your memorandum of November 2, 1959, requested our opinion on the legal questions raised by the proposal of the Pueblo of Zuni to exchange certain lands added to the Zuni Indian Reservation by the Act of June 20, 1935 (49 Stat. 393) for certain public land adjacent to the Reservation. It has been suggested that the exchange might be authorized under either section 8 of the Taylor Grazing Act (43 U.S.C. 315 (g) ), or under section 2 of the act of August 13, 1949 (63 Stat. 605; 25 U.S.C. 622).

Section 8 of the Taylor Grazing Act authorizes the Secretary of the Interior to accept "privately owned lands" within or without the exterior boundary of a grazing district in exchange for public lands of equal value, whenever the Secretary determines that it is to the best interest of the Government. However, the Solicitor has ruled that the term "privately owned lands" in section 8 of the Taylor Grazing Act does not include Indian lands. See Solicitor's Opinion, M-36183 (August 14, 1953). Therefore, section 8 of the Taylor Grazing Act cannot be relied upon as authority for the proposed exchange.

Section 2 of the Act of August 13, 1949 (63 Stat. 605; 25 U.S.C. 622), provides that for the purpose of consolidation of Indian lands the Secretary of the Interior is authorized, under such regulations as he may prescribed, to exchange any lands or interests within the area set apart by section 1 of the act for the Pueblos and the Canoncito Navajos for other lands in this area or in the areas declared to be public domain in section 1 of the act or with in any public domain in New Mexico.

The Commissioner, Bureau of Indian Affairs, in connection with this exchange proposed by the Pueblo of Zuni, has expressed the opinion that the Department's regulations, now 43 CFR 149.23, 149.24, issued pursuant to section 2 of the act of August 13, 1949, defeat the intention of the act in not providing for the exchange of Indian lands for public domain lands.

The Department has never considered the scope of the regulations to correspond with the scope of

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OPINIONS OF THE SOLICITOR

JULY 29, 1960

the authority granted to the Secretary under section 2 of the act to effectuate exchanges. In a memorandum of July 12, 1950, from the Solicitor to the Director, Bureau of Land Management, commenting upon the first draft of proposed regulations submitted to the Secretary under that act, it was stated in pertinent part as follows:

Section 149.84 of the regulations finally approved its Circular 1763 (15 Fr. 6221, September 16. 1950), clearly indicated that as a matter of Departmental policy exchanges authorized therein were limited to privately owned or State owned lands. This section on exchanges was renumbered as section 149.82 in the 1954 edition of 43 CFR The current regulation, 43 CFR 149.23, 149.24 (Circular 2036, 25 Fr. 649, January 26, 1960), however, does not make it clear that exchanges authorized therein are limited to privately owned or State owned lands as a matter of Departmental policy. In this respect the current regulation is subject to the same criticism that the Solicitor made in regard to the first proposed regulations under section 2 of the 1949 act in his memorandum of July 12, 1950.

It is our opinion that the language of section 2 of the 1949 act, authorizing the Secretary for tile purpose of consolidation of Indian lands to elect exchanges of "any lands or interests therein," would necessarily include Indian trust lands within the area set apart by section 1 of the act for the Pueblo and the Canoncito Navajos. The "Memorandum of Information" which accompanied the Department's report on the bill, S. 1323, 81st Cong., 1st Sess., and which was made a part of the Senate Committee's report indicates that it was considered some exchanges of Indian trust lands would be authorized by the enactment of the bill. Paragraph V of this "Memorandum of Information" stated in part as follows:

Since the act authorizes the Secretary to exchange lands "under such regulations as he may prescribe," until he prescribes regulations authorizing the exchange of Indian trust lands, no applications for exchanges of such lands may be allowed. The question as to whether the Department's policy in regard to exchanges of land under authority of section 2 of the act of August 13, 1949, should now be modified is of course for administrative determination.

                                                                                                                    C. R. BRADSHAW,
                                                                                                                                        Associate Solicitor.
                                                                                                                                    Division of Public Lands.

In your letters of March 17, 1960, to Mr. Edward Woozley, and to Mr. Glenn L. Emmons, you re-

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DEPARTMENT OF THE INTERIOR

JULY 29, 1960

quest our views on the conclusion contained in Resolution No. 18-10 of the Alaska Native Brotherhood that the "natives waive their mineral rights when they acquire land whether by allotment or buy the land."

The Alaska Allotment Act of May 17, 1906 (34 Stat. 197) specifies that "not to exceed one hundred and sixty acres of non-mineral land in the District of Alaska * * *" may be allotted to native Indians and Eskimos, as provided therein. An allotment of mineral band would, therefore, be improper under this act. Also the validity of the allotment might be questioned if minerals were found therein to such an extent that the allotment could be characterized as "mineral land." It would follow that an Indian would be protected in his allotment by waiving any right to minerals found within the allotment obtained under this act. This we understand has been required in allotments under the 1906 act. It is not, however, a reservation of mineral rights by the United States.

As to the waiver of mineral rights in the purchase of land, we are unaware of any waiver of such rights. The natives may have occasionally done so by voluntary agreement in favor of the seller.

With respect to allotted lands, the question of the advisability of including mineral rights cannot arise under the limited allotment act now effective, which deals only with non-mineral lands. This policy of reserving mineral rights is a general policy, as indicated in the reservation of coal, oil and gas in lands believed to contain them in all the public land states, including Alaska. It applies equally to whites and Indians. This has been a consistent congressional policy for many years. Mineral lands also have been uniformly withheld from disposal under the agricultural land laws, except for leasing act minerals and with minor exceptions where hinds could be acquired with a reservation of all minerals to the United States.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Request for opinion on "Rancheria Act" of August 18, 1958 (72 Stat. 619)

Pursuant to your request, we have considered the questions which appear to prevent the insuring of title to the Rancheria tracts now being conveyed by the United States pursuant to the Act of August 18, 1959 (72 Stat. 619). We believe that this indecision results largely from lack of knowledge of the facts concerning these transactions, so we are setting them forth in detail.

As a result of congressional action commencing about 1893, approximately 58 small tracts of land called "rancherias" were purchased in central California by the Secretary of the Interior, who permitted Indians living nearby, generally in groups, to occupy such tracts. This permissive use was referred to as an "assignment" to such Indians.

The Act of March 3, 1893, 27 Stat. 612, 628, appropriated $10,000 for the acquisition of land at Jackson, California, "for the support of the Digger Indians of Central California. . ."

From 1914 to 1929, and again in 1937, Congress made small appropriations, designating them substantially as follows: "for the purchase of lands for the homeless Indians in California, including improvements thereon, for the use and occupancy of said Indians. . . . Said funds to be expended under such regulations and contentions as the Secretary of the Interior may prescribe " (See Act of

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OPINIONS OF THE SOLICITOR

AUGUST 1, 1960

August 1, 1914, 38 Stat. 582, 589; Act of August 9, 1937, 50 Stat. 564, 573, ". . . for the relief of homeless Indians of that state . . .")

The "assignment" in the rancheria cases, occasionally referred to as "allotment," differs from the usual "assignment," which is the tribal action of allocating tribal land to individual members. The rancheria assignments are referred to as formal when in writing-informal when oral. They were in the nature of revocable permits, or, at the most, possessory estates, terminating upon abandonment of possession. Actual occupancy was occasionally required. Legal title and ownership interest remains in the United States (Comm. to Representative Lea, 4/4/36). The following assignment is typical:

In connection with this permit, the Commissioner ruled that "right of possession by inheritance cannot be recognized." He also ruled that:

In actual practice, Indians occasionally moved onto the property without any assignment, occupying a parcel abandoned or never assigned. Such possession was not disturbed since these occupants were also "Indians of California" for whose use the land was acquired. The Indians of Central California had not at first been regarded as subject to Federal guardianship because they were not members of a tribe having treaty relations with the United States, did not live on reservations, and held no restricted allotments. In 1933, the problem of placing these Indians on lands acquired for them was reconsidered, since very few had moved to these rancherias or had remained there. It was then believed that this was because the Indians were too poor to build homes there, or water was not available. (See report to Comm., Aug. 15, 1933) In some cases, as in the Jackson rancheria in Amador County, houses had been built for Indian families, who later deserted them. (Letter Sept. 5, 1933, file 49-75 l-26-308.2 Sacramento) By 1950, it had be come evident that the rancheria program for the California Indians should be liquidated.

Few congressional acts have received the amount of consideration as was given to the problem of liquidating the California rancheria. In response to the congressional resolution (H. Con. Res. 108, 83d Congress, August 1, 1953) to terminate Federal Indian supervision in the State of California and elsewhere, the Department of the Interior, on January 4, 1954, submitted a proposed bill to provide for the distribution of the land and assets of the rancherias, and extensive hearings were held. Similar bills had been considered by the 82d Congress. The State of California had, in 1951, requested Congress to dispense with all restrictions upon California Indians, and the State has also conducted extensive investigations on this subject.

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DEPARTMENT OF THE INTERIOR

AUGUST 1, 1960

On January 14, 1957, Congressman Moss introduced H.R., 2824, which the Secretary recommended with minor amendments. It included fourteen rancherias when enacted by the House.

Three other bills were introduced in the House on the same subject, of which two were withdrawn and one combined with H.R., 2824. The House Subcommittee on Indian Affairs conducted extensive hearings on this measure in May and June, 1957. The Senate Subcommittee's only change of substance was to add a number of rancherias. The bill as enacted is not mandatory. The Indians "who hold formal or informal assignments on each reservation or rancheria, or the Indians of such reservations or rancherias, or the Secretary of the Interior after consultation with such Indians," will prepare a plan of distribution for approval or rejection by a majority of those voting at each rancheria. Both the Senate and the House report notes that no membership roll is required to identify the beneficiaries because the groups are not well defined." Moreover, the reports state that the lands to be distributed "were for the most part acquired or set aside by the United States for Indians in California, generally, rather than for a specific group of Indians, and the consistent practice has been to select by administrative action the individual Indians who may use the land. The bill provides for the distribution of the land, or the proceeds from the sale of the land, primarily on the basis of plans prepared or approved by these administratively selected users of the land." (Sen. Report No. 1874. July 22, 1958)

Section 2 (c) provides that granters "shall receive an unrestricted title to the property conveyed. . . ." Prior to the conveyance, surveys, of such a nature as "necessary or appropriate for the conveyance of marketable and recordable titles," must be made, and certain other action specified must be taken (Sec. 3).

Plans have been approved and deeds issued in the following rancherias: Cache Creek, Buena Vista, Mark West, Paskenta, Ruffeys, Strawberry Valley, Table Bluff.

It has been suggested that the United States cannot dispose of this property in this fashion because it held the property in trust for specific bands, who had a vested interest therein.

It has been decided, administratively, that these lands are not allottable, even to the members of the band for whom acquired, and that they could not be sold without legislation, even if the purpose was to acquired land more suitable for the same band (see Ruffey's Band, File 74408/07/311). They could be used for any landless California Indians, and not merely for the specific band for whom purchased, since neither the deed conveying the property to the United States nor the act appropriating the purchase money contained "any limitation or provision as to what Indians should be settled thereon." (See Marshal and Sebastapol. File 310, Part 21, letter Comm., July 6, 1937.)

The United States has accepted the fact that it long ago acquired the lands of the California In-

AUGUST 1, 1960

OPINIONS OF THE SOLICITOR

1885

divans, extinguishing their Indian title. The Act of May 18, 1928, 45 Stat. 602, authorized the attorney general of the state of California to bring suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .," any decree to be based upon the compensation proposed in certain ratified treaties of 1851-1852. Section 3 of that act provides: "Any payment which may have been made by the United States or moneys heretofor or hereafter expended . . . for the benefit of the Indians of California, made under specific appropriations for the support . . . of Indians of California, including purchases of land, . . . may be pleaded by way of set-off`."

It will be noted that this action in favor of the California Indian's is not a payment for money due the Indians, since the basis of the litigation and judgment is that these Indians lost their rights by reason of lathes. Nor did this involve all lands of the California Indians. The payment is in the nature of a gift, equitable because the United States Senate failed to ratify an agreement with the Indians concerning those particular lands. The claims of the California Indians, based upon aboriginal title, is now in process of litigation. This suit also is based upon acquisition of the Indians' lands by the United States.

The subsequent plan of distribution of the rancheria land was considered with knowledge of the then recent action of Congress and of the Federal courts in subtracting from the amount to be given to the Indians of California, and thus to each such Indian, under the special act of 1928, the amount expended by the Government for all the rancheria land. The result, as Congress must have foreseen, was that some Indians, who would receive no share in rancheria land, had pro rata deductions made from their distributive share under the 1928 Act based upon the value of this rancheria land, where as others received the same amount and also will participate in the actual distribution of this off-set land. It should be noted that deductions were also made for other services rendered by the United States which did not directly benefit all.

A practical answer to this seeming inequity is that the Indians of California had the occupation of this rancheria land during a period when many of them needed it, which was the purpose of the legislation. Moreover, the rancheria distribution is generally regarded, even by the Indians, as the most satisfactory method of terminating this program of governmental aid. From a legal point of view, the acquisition by the United States of the rancheria land was for occupancy during a temporary period of Federal supervision. Congress has indicated that the program has now served its purpose. It is the sole judge of the extent of guardianship and of its duration. See United States v. Hellard, 322 U.S. 363, 367 (1944); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Moreover, Congress can, under the Constitution, dispose of this property as it pleases, the property belonging to the United States as part of the public domain, U.S. Constitution, Art. IV, sec. 3, cl. 2; Hallowell v. United States, 221 U.S. 317 (1911); Alabama v. Texas, 347 U.S. 272 (1954).

It is also suggested that the legislation is so indefinite in its designation of beneficiaries as to be invalid. Congress recognized the difficulty of being specific (see Committee Report, supra). It concluded to distribute the property among the assignment holders or other Indians, now occupying the rancherias. The plan would designate the distribution. Although no Indian has a vested right in this land, Congress had provided that notice "of the contents of the plan" shall be given so that "any Indian who feels that he is unfairly treated in the proposed distribution of the property shall be given an opportunity to present his views and arguments for the consideration of the Secretary," (sec. 2 (b) ) The Secretary has the power of approval or rejection of the Plan (sec. 10 (a) ) Thus, the Secretary is Congress' delegated authority to determine whether the plan properly designates the beneficiaries. The Secretary also is authorized to issue the documents necessary to carry out the distribution. This delegation of power to the Secretary is no greater than that given him in many other cases providing for distribution of property to Indians. Regardless of Indian group or tribal action where distributees are members thereof, the Secretary is generally and properly authorized to determine whether the tribal membership roll is accurate. See Stephens v. Cherokee Nation, 174 U.S. 445, 490 (1899). In the cases in which deeds have so far been issued, there has been no doubt concerning

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DEPARTMENT OF THE INTERIOR

AUGUST 1, 1960

It is suggested that rights may have been acquired by other Indians in the property. If rights were acquired prior to purchase by the United States, those rights should be disclosed in the abstract. This was one reason for obtaining title insurance then. When passing upon conveyances under the Rancheria Act, title insurance will protect against any rights acquired prior to acquisition by the United States. Since the acquisition by the United States, rights in the property could not be acquired against the owner. "It is beyond the power of a state, either through statutes of limitation or adverse possession, to affect the interests of the United States." U.S. v. 7,405.3 acres of land, 97 Fed. 2d., 417 (1938).

In conclusion, the rancheria properties belong to the United States, in law and equity; the disposition of these rancheria properties has been properly undertaken by Congress in the method usually employed in the distribution of property among groups of Indians temporarily occupying United States property; and the method of determining distributees is clearly set forth, following the customary practice of delegating to the Secretary of the Interior the authority and responsibility of deter mining the individual Indian beneficiaries. This does not relieve a title insurance company from the usual responsibility, for which it is paid, of insuring a distributee's title against any defects not set forth in its policy of insurance.

                                                                                                                    FRANKLIN C. SALISBURY,
                                                                                                                                        Assistant Solicitor,
                                                                                                                                    Indian Legal Activities.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Refund of taxes paid by heirs of Allottee Lou Roberts--Act of June 11, 1940

The amendment includes cases where the patentee or his heirs have sold a portion of the land or have mortgaged any part of it.

In order to issue this trust patent, a finding was required that the fee simple patent had been issued without the consent or application of the allottee or his heirs. That conclusion was reached by the authorized representatives of the Secretary of the Interior.

From that time on, real estate taxes were levied and collected upon this property. Suit was instituted in 1937 by the United States on behalf of the allottee's heirs to recover the taxes so paid, and judgment was rendered against the allottee. No appeal was taken from this judgment. The Secretary of the Interior informed the Attorney General that if "failure to appeal this case will result only in inability to recover from the county the amount of taxes paid prior to cancellation of the fee patent, we should interpose no objection if an appeal is not had. (Feb. 1, 1938)

Partially because of this, in any event, to cure such inequitable cases, Congress, on June 11, 1940, enacted a provision for the relief of Indians who had paid taxes "on allotted lands upon which patents and fees were issued without application by or consent of the allottee." The act is as follows:

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OPINIONS OF THE SOLICITOR

AUGUST 10, 1960

It does not appear that the suit to recover taxes had anything to do with the question of consent to the fee patent; but even if it did, Congress authorized this question to be determined by the Secretary, and he reached his determination and acted accordingly. The 1940 act clearly was intended to repay those individuals such as Roberts' heirs, who had been issued a trust patent to replace the fee patent, and had paid taxes in the interim of the fee patent. The House Committee Report (see Senate Report No. 1488, 76 Cong. 3d Sess.) states that the fee patents in question resulted from an erroneous interpretation of the 1906 act; that the county authorities were not at fault in levying the taxes; and the Indians had to pay the taxes to save their lands. The Secretary of the Interior made the same comment to the House Committee on Indian Affairs.

We believe that the attached latter should be reconsidered in the light of these facts.

MR. D. N. GILLATLY, Secretary
Consolidated Mines & Smelting Co., Ltd.
Star Route
Wilbur, Washington

Although your letter of July 17, to the Secretary, which has been referred to me for answering, mentions no particular mining claims we assume that you have in mind those claims for ceded Colville Indian Reservation lands temporarily withdrawn by the departmental order of September 19, 1934 (54 I.D. 559), and which have been the subject of considerable correspondence with the President of Consolidated Mines & Smelting Co., Ltd., and with other persons.

In the case of Clark v. Jones, 249 Pac. 552, which you cite, the Department left the mineral claimants in possession after their claim was declared null and void, as the unpatented townsite entry was no bar to location if the land was mineral in character, and as the land was neither needed nor withdrawn for any governmental purpose or for carrying out the will of Congress. As stated by the court "Appellants were in possession and had a right to maintain such possession against every one, except the United States and any one holding from it by right or title superior to theirs." (Underscoring added.)

Generally speaking, if a person whose claim has been declared null and void remains in physical possession of the ground, he does so at his peril and at the sufferance of the Government if the land has been withdrawn from further location. Through appropriate governmental action he may be ousted and possibly held liable for trespass. But where a claim has been declared null and void for lack of a valid discovery, at various times the Department has allowed the holder to remain in possession where he is diligently engaged in seeking such a discovery and the land is not withdrawn from location because of some governmental need or purpose or for some other reason. In such a situation the former holder of the location may be permitted to remain on the land, merely as a prospector, so long as he is diligently engaged in seeking a discovery sufficient to support a mining location. Cole v. Ralph, 252 U.S. 286.

There is no provision of the United States Mining Laws for the location of mining claims on land withdrawn from location where the withdrawal is a temporary one. Probably you have in mind the act of June 25, 1910 (36 Stat. 847), which as amended (43 U.S.C. secs. 141, 142), authorizes the President to temporarily withdraw lands for certain purposes and provides that lands withdrawn under the act "shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals." But the order of September 19, 1934, was not issued under authority of the act of 1910, as amended. It was issued under the implied authority of the Secretary to make temporary withdrawals "by virtue of his broad authority and responsibility in connection with the administration of Indian affairs" and the authority to make such withdrawals "was recognized and confirmed by the Congress in section 4 of the Act of March 3, 1927 (44 Stat. 1347; 25 U.S.C., 1946 Ed., sec. 398 (d) )." See Solicitor's Opinion of May 24, 1949 (60 I.D. 318).

1888

DEPARTMENT OF THE INTERIOR

SEPTEMBER 18, 1960

AUTHORITY OF COUNTY ASSESSOR TO LEVY AND
COLLECT PERSONAL TAXES AGAINST INDIANS
OF THE FLATHEAD INDIAN RESERVATION

This refers further to our letter in response to an inquiry you received from Mr. Don Butler, treasurer of Lake County, Montana, concerning taxing problems.

The County Treasurer's inquiry deals with authority of the County Assessor to levy and collect personal taxes against four Indians of the Flathead Indian Reservation who apparently are employed at the Kerr Dam, located within the Flathead Reservation. The County Assessor states these Indians refuse to pay personal property taxes to the county.

The Kerr Dam is under Federal Power License No. 5, Montana, issued to the Montana Power Company. The title to the land covered by the Federal Power license is held by the United States in trust for the Flathead Tribe. Apparently, the four Indians are Flathead Indians and presumably are residing on tribal lands of the Three Affiliated Tribes of the Flathead Reservation. In connection with the liability of individual Indians on their reservation to pay personal property taxes to the county, there is no clearly defined law on the subject. Your attention is invited to Federal Indian Law, revised 1958 edition, pages 864-866, wherein the following appears:

In Montana, Indian royalty revenues derived from oil wells on allotted Indian lands have been held to be immune from State taxation. Santa Rita Oil & Gas Co. v. State Board of Equalization, 101 Mon. 268, 279, 54 P. 26 117. But there are no other Montana decisions bearing on the taxability of Indian personal property located on Indian reservations. United States v. Porter (9 CCA 1927) 22 F. 2d 365, related to the taxability of Indian personal property located off an Indian reservation. Language in this case suggests that the 9th Circuit Court of Appeals might have little patience with claims for Indian tax immunity where the United States had no well-defined interest in the property to be taxed. But the language might be treated as obiter, and the personnel of the court has since changed. In the circumstances, we cannot predict with assurance the outcome of any suit testing the taxability of personal property of an Indian, where such property is located on an Indian reservation.

In view of the foregoing uncertain state of the law where the personalty is not trust or restricted or acquired pursuant to a Federal Indian program, as appears to be the situation here, this Department is not in a position to issue instructions advising that such personal property of Indians residing on their reservation is subject to the personal property taxes of Lake County, Montana.

Alaska: Possessory Rights--Alaska: Tidelands--Alaska: Statehood Act--Indian Tribes: Alaskan Groups

The established congressional policy to reserve those lands, including tidelands, used and occupied by the Alaskan Natives, under the absolute jurisdiction and control of the United States in aid of further legislation was continued by virtue of Section 3 (c), Act of September 7, 1957, and Section 4 of the Alaska Statehood Act.

1889

OPINIONS OF THE SOLICITOR

SEPTEMBER 1 6,1960

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Title status of the tidelands comprising the Juneau Indian Village

A question has been raised as to whether the tidelands upon which the Juneau Indian Village is located were granted by Act of Congress to the State of Alaska.

We are of the opinion for the reasons set forth below that the United States retained the fee simple title to the tidelands occupied by the Indians within the Juneau Indian Village and no transfer of these lands has been effected by Act of Congress.

The Juneau Indian Village was not included in the survey of May 8, 1892, which established the Juneau townsite nor has any official government survey been made of the Village to date. It appears that the Indians had their homes and buildings constructed on poles or pilings to keep them out of water at high tide, not only at the time of the townsite survey but long before the summer of 1880 when the founders of the City of Juneau arrived at the Indian Village. A history of the Indian occupancy in the Juneau Indian Village is found in United States v. 10.95 Acres of Land in Juneau, 75 F. Supp. 841, 842 (1948).

Congress, at an early date, enacted legislation to protect the Indians in their use and occupancy of lands in the Territory of Alaska. The first Organic Act for Alaska, the Act of May 17, 1884, 23 Stat. 24, 26, provided in Section 8:

Subsequent legislation likewise contained provisions protecting the Alaskan Natives in the use and occupancy of land occupied by them at the time. Act of March 3, 1891, 26 Stat. 1095, 1100; Act of June 6, 1900, 31 Stat. 321, 330; Act of May 1, 1936, 49 Stat. 1250. This legislation shows a consistent congressional policy to reserve lands occupied by natives in Alaska in aid of further legislation, Thus, in Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278, 288 (1953), it was held that the Congress did not grant to the Alaskan Indians by the 1884 act, supra, or the Act of June 6, 1900, supra, any compensable rights or ownership in the land occupied by them, the intention of the legislation being merely to retain the status quo until further congressional action was taken.

This Department, pursuant to the legislative intent indicated by Congress, has consistently acknowledged and respected the use and occupancy by the Alaska natives. 13 L.D. 120 (1891); 23 L.D. 335 (1896); 26 L.D. 517 (1898); 28 L.D. 427 (1899); 37 L.D. 334 (1908); 50 L.D. 315 (1924); 52 L.D. 597 (1929); 53 L.D. 194 (1930); 53 I.D. 593 (1932).

It was decided at an early date in Heckman v. Sutter, 119 F. 83, 88 (1902), that the tidelands are included in the prohibition contained in Section 8 of the 1884 act, supra, against disturbing Indians in the use or possession of any lands in Alaska. In Heckman v. Sutter, 120 F. 393, 395 (1904), the Court considered it as well settled that prior to Statehood Congress can grant rights in or title to the tidelands of the territories in any manner it deems proper.

In two recent legislative enactments wherein it was provided for the transfer of the title to the tidelands, the policy of preserving the status quo on the question of Indian use and occupancy of Alaskan lands appears to have been maintained by specifically reserving such lands from the grants made by the acts.

The tidelands comprising the Juneau Indian Village come within the scope of the aforequoted Section 3 (c) since on the date of the act they were clearly held by the United States for the benefit of the Indians. That the land was held by the United States cannot be questioned since the title was in the United States. In view of the long standing position of the United States with respect to Indian occupancy in Alaska, the lands so occupied by the Indians are withheld from disposal and this is obviously and necessarily for the benefit of the Indians. The Department apparently so construed the exception for in its report on the bill it said, "The bill also protects the rights of Indians,

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 16, 1960

Aleuts, and Eskimos." Congress concurred by adopting the Department's report in reporting on the bill. Senate Report No. 1045, 85th Congress, 1st Session.

The Act of July 7, 1958, 72 Stat. 339, as amended, providing for the admission of the State of Alaska into the Union represents the latest example of legislation in which Congress continues the policy of preserving for its future determination the question of the Alaskan natives' use and occupancy of lands in Alaska. Section 4 of the act provides:

No attempt was made in Section 4 of the Statehood Act to deal with the legal merits of the indigenous rights, the intention being to leave the matter in status quo for future legislative action. See H. Rept. No. 624, 85th Cong., 1st Sess., p. 19, and S. Rept. No. 1163, 85th Cong., 1st Sess., p. 15.

REGULATION AUTHORIZING LESSEES OF ALLOTTED
INDIAN LAND TO PAY RENTAL AND ROYALTY
DIRECTLY TO THE INDIAN OWNER

The Secretary of the Interior when administering oil and gas leases on allotted Indian lands has a duty to verify the accuracy of rental and royalty payments made by the lessee directly to the Indian landowner and to take appropriate action against the lessee, as provided for in the lease and applicable regulations, because of inaccuracies in payment.

To:            Director, Division of Management Research
                 Director, Division of Budget and Finance
From:        Solicitor
Subject:     Regulation authorizing lessees of allotted Indian land to pay rental and
                 royalty directly to the Indian owner

The Secretary of the Interior has a duty to verify the accuracy of the lessee's rental and royalty payments when administering oil and gas leases on allotted Indian lands under the Act of March 3, 1909, 39 Stat. 781, 783, as amended in the Act of August 9, 1955, 69 Stat. 539, 540, 25 U.S.C. 396. This duty arises because of the trust or restricted character of the leased land and the relationship between the Indian landowner and the United States which has been likened to that of a guardian and ward. See Parker v. Richard, 250 U.S. 235, 239 (1919); United States v. McGugin, 28 F. 2d 76, 78 (1928). The Act of March 3, 1909, as amended, supra, does not refer to any specific duty but contains broad language authorizing the Secretary of the Interior "* * * to perform any and all acts and make such rules and regulations as may be necessary * * *."

Accordingly, the regulations of this Department pertaining to oil and gas leasing on Indian land provide that the lessee furnish statements containing information from which the accuracy of the lease payment may be determined, whether the payment be transmitted to the Department or directly to the Indian 1andowner. In the event payment is inaccurate and the amount due is not paid by the lessee, then appropriate action must be taken to cancel the lease and/or take such other suitable action against the lessee and his bondsman as is provided for in the lease or in the applicable regulations.

From the record before us, it appears the United States Geological Survey concludes from its experience with direct payment at the Five Tribes Agency that the procedures presently employed by the Department do not enable Survey accountants to verify the accuracy of payments made directly to the individual Indians. The Bureau of Indian Affairs takes a contrary position. Consequently, it appears that an administrative decision in this regard may involve a change in the present accounting procedure as well as a realignment of accounting responsibility within the Department to accommodate the change.

1891

OPINIONS OF THE SOLICITOR

NOVEMBER 9, 1960

TAX STATUS OF PERSONAL PROPERTY OF INDIANS
ON TULE RIVER RESERVATION, CALIFORNIA

To:
From:        Solicitor
Subject:     Tax status of personal property of Indians on Tule River Reservation, California

Deputy Assessor Scott's letter to you of March 24 inquires about personal tax liability of Indians in the following categories:

According to Area Director Hill's letter to you of May 11, he has no knowledge of any Indian living on the reservation who grazes livestock outside the reservation. Furthermore, personal property owned by an Indian, which is located outside an Indian Reservation, would be subject to the applicable laws of the jurisdiction in which such property is situated unless exempted therefrom by congressional enactment or treaty provisions. See United States v. Porter, 22 F. 2d., 365 (1927). In view of the foregoing, there appears to be no need to deal further with the third item of Mr. Scott's letter.

On the assumption that the cattle owned by Indians living on the reservation come within the category dealt with in the case of United States v. Ricket, reported in 188 U.S. 432, no local tax liability would exist. This case held that neither land allotted, nor the permanent improvements thereon, nor the personal property obtained from the United States and used by the Indians on the lands are subject to state or local taxation during the period of trust provided by the 1887 act, 24 Stat. 388, as amended.

The Supreme Court of the United States emphasizes the non-taxability of certain Indian trust property in the case entitled Squire, Collector of Internal Revenue v. Capoeman (1956), wherein the following appears:

Thus it will be seen that non-taxability inhibits the Federal Government from assessing and collecting Federal Income Taxes from trust or restricted property from Indians coming within the class dealt with in the Capoeman case.

It is evident that since the decision of the Supreme Court of the United States in the Ricket case, supra, the principle has been firmly settled that trust or restricted property as therein dealt with is not subject to State taxation. As to non-trust or non-restricted personal property owned by an Indian of a particular reservation being subject to the laws of the state in which the reservation is located, the law requires clarification. There does not appear to be any case specifically dealing with this question. It would appear, therefore, that this is a matter in which the State officials will have to make their own decision.

1892

DEPARTMENT OF THE INTERIOR

NOVEMBER 14, 1960

To:            Mr. John McB. Meade, Regional Solicitor, Los Angeles
From:        Solicitor
Subject:     Interest of the United States in the proposed adjudication of the Uintah Basin
                 which will involve Indian water rights on the Uintah and Ouray Reservation, Utah

This item is similar in purport to an item contained in the Act of March 3, 1905, 33 Stat. 1016, dealing with the irrigation project on the Wind River Reservation which, in part, reads:

"* * * any balance remaining in the said fund of $85,000 shall at once become available and shall be devoted to survey, platting, making of maps, payment of fees and the performance of such acts as are required by the statutes of the State of Wyoming in securing water rights from the said State for the irrigation of such lands as shall remain the property of said Indians, whether located within the territory intended to be ceded by this agreement or within the diminished reserve."

At the time of the enactment of these acts, the Supreme Court of the United States had not rendered its opinion in the case entitled Winters v. United States, 207 U.S. 564 (1908). It appears the thinking at the time of the enactment of these items by Congress was not clear and that perhaps water rights of the Indians on their reservations should be acquired through compliance with the statutes of the particular state in which the particular reservation was situated. This was changed by the decision in the Winters case. Prior to that time, however, it appears that representatives of the Indian Bureau, in numerous instances, had filed for appropriation rights for Indian lands in accordance with the particular state statutes. For instance, in the case of the Yakima Reservation, an application was filed for an appropriation of one thousand second feet of water from the Yakima River. None of such filings were pursued after the Supreme Court's decision in the Winters case.

The Wind River Reservation in Wyoming was the subject of two cases entitled United States v.

1893

OPINIONS OF THE SOLICITOR

NOVEMBER 21,1960

Parkins, 18 F. (2d) 642 and 643 (Oct. 1926), which deals with irrigation on the Wind River Reservation. The Federal District Court for the District of Wyoming held that where the United States has not specifically granted to a state any right in the waters of streams within an Indian reservation, created by treaty before the state was admitted, it has the exclusive right to use such waters for the benefit of the Indians of the reservation. It was further held that a landowner was without the right to appropriate to his private use for irrigation purposes water from a creek most of which comes primarily from a government irrigation system, which uses the creek bed for a distance as a canal to reach customers below. The court, as will be noted from the decision (p. 643), set forth that:

Adjudication of water rights on the Uintah Reservation was had in the cases entitled United States v. Dry Gulch Irrigation District, and United States v. Cedar View Irrigation Company, unreported in the Federal District Court, Salt Lake City, Utah. Final decrees in these cases were entered March 16, 1923. The rights of the Indians were recognized under the Winters Doctrine. The stream now involved was not included directly in that litigation, as apparently it was not believed that such rights would be affected by reason of the developments carried on by the two irrigation companies in question. It is quite evident, however, that the Winters Doctrine is applicable here as in the cases involving the two irrigation companies above referred to.

COLLECTION OF DELINQUENT OPERATION AND
MAINTENANCE ASSESSMENTS FROM PER
CAPITA PAYMENTS

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Collection of delinquent Operation and Maintenance assessments from per capita payments

On September 23, 1960, you requested our views as to the priority of claims for delinquent Operation and Maintenance assessments over levies for delinquent Federal income taxes. The Assistant Area Director, Billings, has indicated that the only means to collect these assessments is from funds be longing to the landowners in individual Indian Money Accounts.

This office stated in a memorandum on a similar subject on June 20, 1960, that "when money in an individual Indian money account which is received as a per capita payment is pledged to secure a tribal loan before the tax lien attaches, such money is unavailable as a source for satisfaction for the lien, and the Superintendent is not required to surrender such funds. See 26 CFR 601.104 (c) (g)." The regulations applicable to Operation and Maintenance assessments on the Flathead Indian Reservation, 25 CFR 221.12-221.29a. do not make provision for the creation of a lien against the Indian money account of the water user. Instead, it is provided that "no water will be delivered until such (Operation and Maintenance) charges have been paid, except that Indian water users who are financially unable to pay the assessment on the due date may be furnished water, provided * * * (They have) made satisfactory arrangement to pay the assessments from the proceeds of crops or from other sources." 25 CFR 221.20. If. pursuant to this or similar sections of the regulations, an Indian pledges anticipated per capita income for the delivery of water to his land before the tax lien attaches, the situation would appear to be like that discussed in our June 20, 1960, memorandum, and the money would be unavailable for the satisfaction of the tax lien. If, however, no specific agreement was made by the water user to pay water assessments from this source,

1894

DEPARTMENT OF THE INTERIOR

NOVEMBER 21, 1960

the Project Engineer and the Superintendent can look to whatever may have been agreed upon as the source for satisfaction, but cannot enforce a claim for delinquent assessments against the Indian money account of the water user. Consequently, it follows that claims for such delinquent assessments will not take precedence over levies against the funds in an Indian money account for delinquent Federal income taxes.

Pursuant to conveyances of restricted Indian lands approved conditionally by county courts in Oklahoma under a trust agreement, the Secretary of the Interior or his authorized representative can suspend temporarily, during the term of the trust, supervision over the collections made of income from the restricted lands.

Upon termination of the trust, which had transferred only the legal title to lands and the future income therefrom to a trustee, leaving the beneficial title in the Indian creator of the trust, the suspension of supervision by the Secretary of the Interior or his authorized representative over the trust property is lifted and such supervision resumes as though the trust had never been made.

United States Savings Bonds purchased with the income accruing from restricted Indian lands during the term of a trust agreement continue under the supervision and control of the Secretary of the Interior or his authorized representative upon termination of the trust.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Savings bonds owned by the estate of Abner Battiest, Jr., a deceased Choctaw Indian

You have referred, for our opinion, the question whether certain United States Savings Bonds, in the face value of $160,000, belonging to the above estate, constitute restricted or trust property subject to the supervision or control of this Department. You apparently wish to have that question resolved before action is continued looking to the reissuance of the bonds by the Department of the Treasury, in trust, for the estate of Abner Battiest, Jr. All of the apparent beneficiaries of that estate, who are the decedent's widow and three minor children, appear to be of one-half or more Choctaw Indian blood.¹

It is our view that the bonds are restricted, and subject to this Department's supervision. There is of direct pertinence in the present matter a trust agreement, dated December 2, 1947, whereby the said Abner Battiest, Jr., an unenrolled fifteen-sixteenths blood Choctaw Indian, joined by his wife, Catherine Battiest, now Brown, conveyed to J. G. Weddington, as trustee, certain lands inherited by the creator of the trust from or through his deceased father and mother, who were Choctaw Indian allottees of the Five Civilized Tribes. The trust was to be carried out on behalf of Abner Battiest, Jr., as the beneficiary. The term of the trust agreement was ten years, but it appears that prior to such expiration date, i.e., on August 21, 1956, the trustee relinquished the above savings bonds to the Area Director (Muskogee, Oklahoma) of your Bureau, taking appropriate receipts for such disposition. The exact date of the death of the Indian trustor, Abner Battiest, Jr., does not appear, but, based on correspondence in the file, both the trustee and the beneficiary appear to have died before the trust expired by its own time limitation on December 3, 1957.

A memorandum in the file, prepared by the Field Solicitor, Muskogee, Oklahoma, is to the effect that the lands included within the trust agreement had been unrestricted prior to the passage of the Act of August 4, 1947,² but by reason of that legislation restrictions were imposed. While the Field Solicitor apparently did not regard it

¹ Pending a definite determination of the question whether the bonds are restricted, the Area Director has accepted the voluntary deposit by the widow of these securities under 25 CFR 104.6.
² 61 Stat. 731.

1895

OPINIONS OF THE SOLICITOR

DECEMBER 28, 1960

essential to state with specificity the basis upon which he concluded that the lands were unrestricted prior to August 4, 1947, which may be unimportant for our present purposes it is essential that the restricted character of the lands under the 1947 act be established. Here again, the Field Solicitor did not show or state positively that the lands were restricted in the hands of that person from whom Abner Battiest, Jr., acquired his interest therein.

However, since such a finding is basic to the effective operation of Section 1 of the 1947 act upon lands which had theretofore been unrestricted,³ the factual premise in that respect will be assumed in the light of the statement by the Field Solicitor that the 1947 act imposed restrictions. Moreover, to proceed on such an assumption appears reasonable in this particular instance since it was regarded as essential that the conveyances of lands included in the trust agreement of December 2, 1947, be approved by the courts of the four counties in Oklahoma in which the lands in question are situated.

It should be noted that only restricted lands apparently were covered by the trust agreement upon the date of its execution on December 2, 1947. Any restricted funds which the creator of the trust then may have had on deposit with the Superintendent (Area Director) for the Five Civilized Tribes were specifically excepted from the application of the trust agreement, any profits or income from the included restricted lands were to be administered under the trust agreement. Restricted funds then in the custody of an officer of this Department were excepted, no doubt, to avoid any possible conflict with those unrepealed provisions of the Act of January 27, 1933,⁴ which require that a trust created by an Indian of the Five Civilized Tribes out of "restricted funds or other property subject to the supervision of the Secretary of the Interior", was subject to approval by the Secretary. In approving the transfer of the inherited restricted Indian lands under the trust agreement of December 2, 1947, the four county courts in Oklahoma were performing a function continued in them by the act of August 4, 1947, supra. In exercising this function the county courts were acting as Federal agencies or instrumentalities, and the restrictions were merely relaxed or qualified to the extent of sanctioning such conveyances as receive the county courts' approval.⁵

When acting as a Federal agency, it should be observed that approval by a county court does not, perforce, remove restrictions from the lands, but restrictions may be, and often are, continued. Thus, in the present trust agreement, a specific provision therein (Section 2) states that in no event shall the trustee sell any land or interest in land included in the trust agreement without the written consent of the County Judge of the county in which the land is located. Section 16 of the trust agreement contains the additional provision:

The conditions just mentioned and quoted above constitute continuing restrictions, and obviously were inserted in the trust agreement for the protection of the Indian creator of the trust. Those provisions assured the inalienability of the lands included within the trust, except on the same basis as that prescribed by Section 1 of the 1947 act, supra. Having the power under that act to withhold approval of a conveyance of restricted Indian lands, the county court likewise had the power to impose as a condition to its approval certain protective measures such as those described.⁶ Thus, by the terms of the approved trust agreement, the restricted lands included within the agreement were, during the continuance of the trust, restricted, and now appear subject to the same restriction that they cannot be sold except with the approval of the appropriate county court of Oklahoma.

The file attached to your request for our views in this matter shows that the savings bonds in question were purchased with income derived from the restricted lands constituting the original corpus

³ "*     *     * no conveyance, including an oil and gas or mineral lease, of any interest in land acquired before or after the date of this Act by an Indian heir or devisee of one half or more Indian blood, when such interest in land was restricted in the hands of the person from whom such Indian heir or devisee acquired same, shall be valid unless approved in open court by the county court of the county in Oklahoma in which the land is situated *     *     * ."
    ⁴ 47 Stat. 777, Section 12 of the Act of August 4, 1947, repealed only sections 1 and 8 of the Act of January 27, 1933, leaving the other provisions of the latter act in full operation as to trusts created by Indians of the Five Civilized Tribes.
    ⁵ See Parker v. Richard et al., 250 U.S. 235 (1919); United States v. Goldfeder, 112 F. 2d 615 (CCA. 10th. 1940).
    ⁶ Goldfeder v. United States, 112 E. 2d 615, supra.

1896

DEPARTMENT OF THE INTERIOR

DECEMBER 28, 1960

of the above trust. Moreover, based upon the Area Director's teletype of April 24, 1959, such income had as its source "oil produced under Departmental leases upon restricted lands." Except for the period when the lands were unrestricted, which apparently represented an interval beginning some time after the execution of the Departmental mineral leases on the lands and up to the imposition of restrictions by the Act of August 4, 1947, supra, the income from the restricted lands likewise was restricted, and therefore subject to the jurisdiction or supervision of the Secretary of the Interior.⁷

We do not believe that the restricted character of the above bonds is changed by the fact that for a prescribed period of time during the operation of the trust the trustee had certain powers over the income derived from the restricted corpus of the trust, and which resulted in the bond investment. As stated heretofore,⁸ the required approval of the county courts to the conveyancing of the lands under the trust agreement merely relaxed the restrictions upon the lands to the extent of sanctioning the temporary transfer of such lands to the trustee for the limited purposes of the trust. Of course, by the terms of the trust, the trustee was permitted to utilize a portion of the trust income for certain stated purposes, which, if properly administered or expended during the trust, is not within the scope of this memorandum. Nevertheless, with respect to the unused income from the restricted lands, now embodied in the form of the bonds the governmental interest is clear, based upon the continuance of Federal restrictions.

The restrictions upon the lands included within the trust, as well as upon the income from such lands, merely were suspended during the term of the trust agreement for the specific purposes and uses recited in that agreement. This is adequately demonstrated by the actions of officials in the Area Director's office, taken contemporaneously with execution of the trust and the approval of that agreement by the county courts. For instance, the supervision of collections by the Superintendent or the Area Office of restricted income accruing from the Departmental mining leases on the lands was relinquished conditionally to the trustee, since it was recognized that upon termination of the trust officials of this Department again would have to assume complete supervision in the matter.

On the basis of our conclusion that the savings bonds are restricted property, and to be held under the supervision of this Department, it is suggested that you issue instructions to the Area Director so as to enable him to obtain from the Treasury Department an appropriate transfer of ownership, compatible with this opinion, of the bonds in question.

To:            Regional Solicitor, Portland
                    Attention: Mr. Jourolmon
From:        Solicitor
Subject:     Request by Chairman of Washington State Legislative Committee for opinion
                 regarding effect of State jurisdictional bill upon tribal courts in Washington if
                 enacted into law

    ⁷ Sunderland v. United States, 266 U.S. 226, 235; Parker v. Richard, supra; United States v. Brown, et al., 8 F. (2d) 564 (CCA. 8th 1925) cert. denied 270 U.S. 644; Sec. 1, Act of January 27, 1933, supra; Section 5 Act of August 4, 1947, supra.
    ⁸Ante. fn. 5.
    ⁹ Brown, et al. v. United States, 27 F. (2d) 274 (CCA. 8th. 1928); Timothy v. Sessions, et al., United States of America, Intervener, No. 3568 Civil (U.S.D.C.E.D., Okla. 1954); Cf. Smith v. McCullough et al., 270 U.S. 456, 465 (1926); Davis v. Jones, Administrix, 254 F. (2d) 696 (CCA, 10th. 1958), cert. denied 358 U.S. 865.

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OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1961

the bill requested an opinion concerning the possible effect of it upon tribal courts in Washington. We are informed that Mr. Jourolmon advised him that a check would be made with this office to see whether an opinion might be given as requested.

It is our understanding that the chairman desires information on whether passage of S-33 would do away with tribal courts in the State. We further understand that there is a provision in the bill which states that it is not intended to achieve this result.

The Department has taken the position that where a State accepts under Public Law 280 jurisdiction over Indian country, the State's criminal jurisdiction is exclusive except as against the United States. Attached is a copy of Solicitor's Opinion M-36241, September 22, 1954, which sets forth this view. As you are, of course, aware when Washington accepted jurisdiction over Indian country within the State except for the Colville, Spokane and Yakima Reservations, tribal courts in the other reservations were disbanded.

If the State of Washington is considering the assumption of something less than complete jurisdiction over Indian country within the State, then we foresee a number of difficulties. First, on the question of whether the State may accept something less than all the jurisdiction offered under Public Law 280, this office has heretofore said that although the matter is not clear or free from doubt it may be possible for a State to take piecemeal jurisdiction under Public Law 280. For your information in this regard, there are attached a copy of a memorandum to the Commissioner of Indian Affairs dated November 16, 1960, and a copy of a letter dated June 17, 1959, to Senator Francis Case. There is also enclosed a memorandum dated May 20, 1959, on this point.

If it is correct that a State may assume piecemeal jurisdiction under Public Law 280, then it would appear that very careful drafting of such legislation would be required for it to be clear without question what the respective responsibilities of the several jurisdictions were, recognizing that the State cannot confer any jurisdiction upon the tribes. And in this connection there would seem to be considerable danger of running into the same problems, presently encountered, of who had jurisdiction, the State or the tribes, unless the State's jurisdiction were very specifically stated. Regardless of the form the legislation takes, it should certainly be drafted so as to preserve the civil rights of the Indians and clarify the jurisdictional problems with respect to them rather than cause further confusion in this area.

We will be glad to review any proposed opinion you may prepare for the chairman of the Washington Legislative Committee on this matter, and suggest, since it is a matter of general concern to the Department, that you make the opinion for the Solicitor's signature.

AUTHORITY OF THE SECRETARY TO APPROVE
ADVANCEMENT OF TRIBAL JUDGMENT FUNDS
FOR TRIBAL PURPOSES

Under general statutory authority empowering the Secretary of the Interior to approve the advancement of tribal funds to Indian tribes, the Secretary is authorized to advance all categories of tribal funds, including tribal judgment funds.

To:            Secretary of the Interior
From:        Solicitor
Subject:     Authority of Secretary to authorize use of tribal funds

You have requested my views whether under existing law there is authority for the use of funds awarded by the Indian Claims Commission or the Court of Claims to an Indian tribe, band or identifiable group for such purpose as may be authorized by the tribal governing body and approved by the Secretary of the Interior.

The matter of the disposition of judgment funds has been the subject of many discussions with representatives of the Bureau of Indian Affairs and this office. It appears that the established practice of the Bureau of Indian Affairs has been to treat as unavailable for expenditure without specific authorization by Congress, those tribal funds representing the proceeds of judgments recovered against the United States and the proceeds of the sale of reservation lands.

The current Interior Appropriation Act, approved August 3, 1961 (75 Stat. 246), authorizes and appropriates the sum of $3,000,000 from tribal funds for expenditures for the benefit of Indians and Indian tribes, for particular purposes. The act also makes provision for the advancement of tribal funds to Indian tribes during the current fiscal year for such purposes as may be designated by the governing body of the particular tribe in-

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1961

volved and approved by the Secretary of the Interior. The second cited authority contains no language limiting its application to any particular class of tribal funds or to the use to be made of such funds. The above two provisions have been inserted in the appropriation acts for the past several years.

It is therefore concluded that the Secretary under this authority in the appropriation acts for 1962 and preceding years is and was empowered to advance to an Indian tribe for such purposes as may be designated by the governing body of the tribe, and approved by him, any tribal funds held in the United States Treasury, including those which represent the payment made to satisfy a judgment awarded by the Indian Claims Commission or the Court of Claims. However, any award made by the Court of Claims pursuant to a special jurisdictional act is subject to the uses specified in such act unless otherwise provided by the appropriation act.

In those instances where the tribe, band or identifiable group in whose favor the judgment was rendered has no recognized tribal status or tribal organization to speak for the tribe, band or group and the members are widely scattered, it does not appear that such tribe, band or group could designate the particular purpose or purposes for which the said judgment may be used. Therefore, it would appear that in these instances congressional authority must be obtained before any disposition is made of any judgment funds awarded to them. Likewise, it would appear, for the same reasons, that a judgment rendered in favor of a tribal group which is composed of members of a tribe as it existed years ago and / or their descendants is not available under the provisions of the current appropriation act. Finally, it should be observed that the distribution of judgment funds as per capita payments without the enactment of special tax exemption legislation may subject the payments to income taxes.

This concerns the right of Indians in the State of Washington to market steelhead trout caught by them on their reservations pursuant to treaty rights. Shipments of steelhead which were not labeled as required by the Black Bass Act, 16 U.S.C., 852a, 853, were the subject of our letter of January 29 to you. (Your reference: Criminal Division: HJM: LM 138-82-l.)

The State of Washington has amended RCW 77.16.040, by Chapter 75, Washington Laws of 1961, so as to prohibit possession for shipment or shipment of game fish (which includes steelhead) "except as authorized by permit or license law fully issued by the director, or by rule or regulation of the [Washington State Game] Commission." Although the statute is not by its terms directed specifically at Indians, our Regional Solicitor at Portland advises that it seems to be an open secret around the State of Washington that it is aimed primarily at Indian-caught steelhead. Efforts by the Regional Solicitor's office to obtain permission from the Washington State Game Commission, as provided by the 1961 statute, to ship steelhead caught on reservations by Indians pursuant to treaty rights have been unsuccessful.

Because of this Washington statute the Indians of the Lummi Indian Reservation have been unable to find carriers who will handle interstate shipments of their fish from the reservation. Consequently we are informed that probably in excess of 2,000 pounds of steelhead have had to be frozen and placed in cold storage on the reservation. The frozen fish remains on the reservation as shippers refuse to handle it in view of the statute in question. In this connection there are enclosed two copies of a telegram dated March 19 from the Chairman of the Lummi Business Council urging action which will permit the fish to be marketed before April 15.

Details of this problem are given in the enclosed copies of the Regional Solicitor's letter of February 2 to the District Supervisor of the Interstate Commerce Commission, Seattle, Washington, the latter's reply dated February 8, and the Acting Regional Solicitor's letter of February 13 to the United States Attorney at Seattle.

It is our understanding that the Office of the United States Attorney is willing, with your concurrence, to offer legal assistance to any shipper who may be prosecuted under the Washington statute for handling interstate shipments of reservation-caught steelhead where such fish is properly labeled and has been taken pursuant to treaty rights. We further understand that with this assurance carriers will accept such steelhead for shipment.

It is requested that you authorize the United States Attorney to take appropriate action to provide the shippers with sufficient assurance of legal

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OPINIONS OF THE SOLICITOR

MAY 16, 1962

assistance so that they will undertake to handle the interstate shipments of properly labeled steel head caught on Indian reservations in Washington pursuant to treaty rights. We believe that the legal basis underlying the Indians' right to ship such steelhead is adequately stated in the letter from the Acting Regional Solicitor to the United States Attorney. In this regard we do not think that the conclusions stated therein are affected by the recent opinion of the Supreme Court in the case entitled Organized Village of Lake, et al. v. Egan, 30 L.W. 4180.

The Regional Solicitor's office is of the opinion that effective assistance could be rendered the Indians in the case by the United States if it were to appear in any capacity in the litigation, amicus or otherwise. Our Regional Solicitor's office is prepared to participate actively in the case or to assist the United States Attorney if he is authorized to participate in it. Likewise, if your Department should decide that the United States should file its own suit in this matter we should be glad to assist in any way that we can in that respect.

In light of the telegram from the Chairman of the Lummi Business Council and the March 29 pretrial date in the litigation, an early decision as to the handling of these matters would be appreciated.

Indian Tribes: Generally--Indian Lands: Ceded Lands--Indian Lands: Individual Rights in Tribal Property

Off-reservation fishing rights guaranteed by treaties with Indian tribes are tribal rights which may be regulated by the tribes, and a tribal member who does not fish in conformity with tribal regulations would not have a treaty-right defense to a State prosecution for violation of State conservation laws.

To:            Secretary of the Interior
From:        Solicitor
Subject:     Treaty rights of Indians in Washington and Oregon to fish at usual and accustomed
                 places off of established Indian reservations

The Supreme Court of the United States in Tulee v. State of Washington, 315 U.S. 681 (1942), held that the off-reservation treaty rights of Indians are subject to restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish. Although it has been concluded in subsequent opinions written in State v. Satiacum, 50 Wash. 2d 513, 314 P. 2d 400 (1957) and State v. McCoy, No. 2187, in the Superior Court of Washington for Skagit County (1961) that Indian treaty fishing is not subject to State conservation laws, I cannot accept this conclusion. As most recently stated by the Supreme Court of the United States in Organized Village of Kake, et al. v. Egan, 369 U.S. 60, 75 (1962) :

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DEPARTMENT OF THE INTERIOR

MAY 16, 1962

The fact that the States have had little success in enforcing their conservation laws against off reservation Indian fishing does not in any way impair the State's right to enact and enforce such laws. Their difficulty in this respect seems to be in proving that the restriction against the Indian fishing which they seek to enforce is necessary for the conservation of fish. See Confederated Tribes of the Umatilla Indian Reservation v. Maison, 186 Fed. Supp. 519 (D. Oregon 1960).

At this time it seems beyond argument that the treaty right of Indians to fish at the "usual and accustomed places" off of a reservation is a tribal right which may be exercised by all of the Indians enrolled in the tribe but that such rights are not individual rights so as to be inheritable or alienable as individual property, Whitefoot v. United States, 293 F. 2d 658 (Ct Cls 1961), certiorari denied 369 U.S. 818 (1962); Mason v. Sums, 5 F.2d 255 (W.D. Washington 1925).

When the dams were constructed along the Columbia River, the United States in dealing with the fishing rights of Indians made all of its contracts and purchases with the tribal organizations. Further, with respect to the tribal nature of Indian fishing rights, the Court of Claims in Whitefoot v. United States, supra, said:

In our opinion it is clear from the foregoing that a tribe may define and regulate its treaty fishing rights. Furthermore, in so doing the tribal group may adopt ordinances to preserve and protect such fishing rights, since the tribe is not bound to sit idly by while individual members commit acts amounting to confiscation or destruction of the tribe's treaty rights. By prescribing the manner in which the off-reservation treaty fishing right is to be exercised by its members, a tribe may afford the basis for State prosecution of Indians who fish contrary to State law in a manner which the tribe has declared to be outside the scope of the treaty right. An Indian who is fishing outside an Indian reservation at a time or in a manner contrary to the provisions of a tribal ordinance would not be exercising the treaty right, and in this circumstance would not have such right available as a defense to a State prosecution for violation of State conservation laws.

MR. ROBERT LELAND
Attorney at Law
401 Court Street
Reno, Nevada

DEAR MR. LELAND:

Your letter of March 23 requests our opinion on whether a person who received payment as a withdrawing member under the Klamath Termination legislation may become a member of a tribe organized under the 1934 Indian Reorganization Act, assuming that he meets the constitutional membership requirements of such tribe.

We are of the opinion that withdrawing members of the Klamath Tribe are barred by operation of law from becoming members of any Indian tribe whose property and affairs, and the property and affairs of its members are by statute subject to a Federal trust relationship and for whom statutory services are performed because of their status as Indians.

So long as "Indian tribes" exist as such, or until the Constitution is amended, Congress ostensibly will retain the plenary power granted or implied in Article I, Section 8, clause 3, of the Constitution to regulate tribal activities and thereby the activities of individual members, United States v. Sandoval, 231 U.S. 28.

In the exercise of this plenary power, Congress enacted the Klamath Termination Act (August 13, 1954, as amended, 68 Stat. 718, 25 U.S.C. section 564-564x), the purpose of which, inter alia, as expressed in Section I is "for termination of Federal services furnished such Indians because of their status as Indians" (emphasis supplied) Section 18 (a) of the act provides that after publication in the Federal Register of a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members has terminated, thereafter individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians and, except for the provisions of the termination act, all statutes of the