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PROPRIETY OF USING FUNDS APPROPRIATED FOR
INDIAN IRRIGATION PROJECTS TO CONSTRUCT
FACILITIES TO SERVE LANDS
OWNED BY NON-INDIANS

M-36752                                                                                                                            August 23, 1968.

Indian Water and Power Resources: Irrigation Projects--Indian Water and Power Resources: Construction--Appropriations

Federal funds appropriated by Congress for the construction, repair and improvement of Indian irrigation projects (see e.g., Interior Appropriation Act for fiscal year 1968, 81 Stat. 59, 61) may be used to construct laterals to serve lands included in such project which are owned by non-Indians and the costs of such construction treated as reimbursable costs of the projects allocable on a per acre basis to all lands included therein.

To:            Commissioner, Bureau of Indian Affairs
From:        Deputy Solicitor
Subject:     Authority to construct or rehabilitate irrigation facilities serving non-Indians on Indian reservations

    The question is raised in connection with plans of the Bureau of Indian Affairs to install a pipeline from a canal to serve originally allotted land within the Pala irrigation project on the Pala Indian Reservation, California, which land was purchased in 1966 by a non-Indian. The purchase price included the payment of $1,280.47 of accrued irrigation costs, and the purchaser executed a contract on Form 5-462b whereby he agreed to pay future irrigation charges assessed against the land. 25 CFR 121.21 and 128.1.

    A pipeline which formerly served the land has become inoperable by reason of disuse. The purchaser has requested delivery of water to the land, and the Bureau plans to install approximately 900 feet of pipe which, by extension, could also be used to serve adjoining Indian-owned land in the project. The cost of installing the pipe would be treated as a reimbursable cost of the project and allocated on a per acre basis against all land therein. 25 U.S.C. 385 and 386; 25 CFR, Part 211.

    A representative of California's Rural Legal Assistance has challenged the Bureau's plans on the ground that it is not legally permissible to use appropriated funds for this purpose. He also complains that the Bureau is requiring Indian owners of trust land within the Pala project to pay outstanding construction charges allocated to their land before it permits them to benefit from the expenditure of funds appropriated for the project.

    The latter complaint must be based upon a misunderstanding. Section 386a of Title 25 of the United States Code provides in part:

. . . the collection of all construction costs against any Indian-owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished. . . .

    Under this provision the assessment of costs of construction allocated to Indian-owned land within the project is deferred. No attempt is made to collect such costs from the Indian owners of trust land within the project, and such owners are entitled to participate, equally with other owners of land in the project, in benefits resulting from the expenditure of appropriated funds.

    The gravamen of the challenge to the Bureau's authority to use appropriated funds for the purpose proposed is that such funds can be expended only for the direct benefit of Indian owners of land within a project and not for the benefit of non-Indians. This contention ignores over half a century of legislative and administrative activity and the essential nature of an irrigation project.

    While it is undoubtedly true that so-called Indian irrigation projects were originally conceived and authorized primarily for the benefit of Indians, it has always been recognized that non-Indian land might be included within them. It was well known by Congress at the turn of the century when it began to address comprehensively the objective of applying water to lands in the arid West, and to authorize so-called Indian irrigation projects,

among other reclamation projects, that a considerable amount of irrigable land within Indian reservations which would be included in such projects had already passed out of Indian ownership.

    In sum, although intended primarily for the benefit of Indian-owned land, it always has been contemplated that land owned by non-Indians would be included in and benefited by so-called Indian Irrigation projects. Not only has Congress authorized and appropriated funds for such projects with full understanding of this, it also has made provisions to adjust, defer and cancel reimbursable charges assessed against land within such projects owned by non-Indians similar to those it has made for Indian lands. Compare: 25 U.S.C. 389-389e with 25 U.S.C. 386a.

    As a practical matter, an irrigation project must be administered with regard to the entirety of the land included therein, regardless of the personal status from time to time of the several owners thereof. Ultimately the practice of the kind of discrimination against non-Indian owners for which California Rural Legal Assistance contends, would detriment the Indian owners of land within a project by diminishing its market value. A prospective non-Indian purchaser of such land would discount its value to accommodate the fact that it would receive less favored treatment under the project in his hands.

    Legally there is no substance to the suggestion that Federal funds appropriated by Congress to the Bureau of Indian Affairs for the construction, repair and improvement of irrigation systems cannot be used to benefit land owned by non-Indians included within irrigation projects administered by that Bureau. We assume that the funds available for expenditure on the Pala project are rather limited. We, of course, express no opinion as to whether the construction plans formulated by the Bureau for the project represent a judicious assignment of priorities for the employment of those funds.

BOUNDARY OF THE SALT RIVER
INDIAN RESERVATION, ARIZONA

M-36770                                                                                                                        January 17, 1969.

Indian Lands: Generally--Indian Lands: Tribal Lands--Executive Orders and Proclamations Boundaries

The south boundary of the Salt River Indian Reservation, established as "up and along the middle of the [Salt] River" by the Executive Order of July 14, 1879, lies in the south channel of the Salt River in T. 1 N., R. 5 E., G. & S. R. M., where the river is separated by a large island into two distinct channels, since the preponderance and weight of evidence indicates that the main channel of the river flows south of the island.

Words and Phrases: "up and along the middle of the *     *     * river"

When an executive order designates the boundary of an Indian Reservation as "up and along the middle of the *     *     * river," the boundary lies within the main channel of the river when it is separated by an island into two distinct channels.

Indian Lands: Generally--Boundaries--Surveys of Public Lands: Generally

The holding in Boundary of San Carlos Indian Reservation, 55 I.D. 560, that an Indian Reservation boundary description which has been uniformly interpreted by the Department for many years will be considered controlling, is not applicable when the exact location of the boundary has never been indicated on a map prepared for that purpose or officially surveyed and established upon the ground.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Identification and Reestablishment of the South Boundary of the Salt River Indian Reservation

    The Executive Order of June 14, 1879, which established the Salt River Indian Reservation, described its south boundary as "up and along the middle of the [Salt] river" (Exhibit 2). At the time of the order, the river flowed through T. 1 N., R. 5 E., in two distinct channels, separated by a large island. The question discussed in the March 5, 1963, opinion is what was meant by "the middle

of the river" as applied to the Salt River within T. 1 N., R. 5 E., or, more generally, what is the exact location of the south boundary of the Salt River Reservation.

    The Director of the Bureau of Land Management concluded that the boundary lay in the channel north of the island. Having reviewed his determination and all available background material, we are of the opinion that the boundary lies in the south, rather than north channel. We therefore recommend that Secretarial approval of the March 5, 1963, decision be withdrawn and that new instructions regarding the boundary be issued.

    In order properly to evaluate the meaning of the phrase "middle of the river" as it was used in the Executive Order of June 14, 1879, the order itself must be put in its historical context, for the events leading up to its issuance provide valuable indices to the intent of its drafters.

    The Act of February 28, 1859 (11 Stat. 388, 401), reserved for the Pima and Maricopa Indians the land they occupied on and near the Gila River, just south of the Salt River. There, the Indians constructed irrigation works and successfully raised wheat. The surrounding area, the Salt River Valley, considered the prime agricultural district of the Arizona territory, was extensively cultivated by white settlers, many of whom filed private claims to their land under various federal laws. A struggle for water developed in the mid-1870's which left the settlers in control of the irrigation ditches in the valley and forced the Indians to look elsewhere for farmland. They gradually began leaving their reservation and migrating north to the Salt River.

    On January 10, 1879, in response to numerous reports that the Indians were being deprived of water on the Gila Reservation and needed additional land protected from encroachment by white settlers, an executive order was issued setting aside approximately 656,000 additional acres of the Salt River Valley on both sides of the Salt River for the Pimas and Maricopas (Exhibit 3). The order made no mention of the two channels of the Salt River, alluding merely to "the course of the river."

    Reaction to the order was immediate and generally adverse. Captain A. R. Chaffee wrote to the Assistant Adjutant General on February 18, 1879, "I am lothe[sic] to believe the boundaries described correct" (Exhibit 4), noting that the reservation encompassed an unnecessarily large amount of valuable land and warning that the order was sure to trigger hostilities with the settlers of the region. Chaffee then reiterated a suggestion he had made in November 1878, that a smaller reservation, located in T. 1 N., R. 5 E., and Tps. 2 and 3 N., Ks. 5, 6, and 7E., be established. A map dated March 4, 1879, and marked "traced in the Adjutant General's office" indicates the area reserved in the January 10 Executive Order as well as the reservation proposed by Captain Chaffee (Exhibit 5). The south boundary of the latter extends to the south channel of the Salt River, while that of the former lies south of the Gila River.

    An early map, simply identified as "traced in Adjutant General's office, January 1879," (Exhibit 6) shows a proposed reservation whose south boundary runs north of the river.

    On March 1, 1859, the Governor of Arizona, suggested that the Indians be removed from the Salt River Valley entirely and settled on the Colorado River. This suggestion was unfavorably received by Major General McDowell, Commander of the Military Division of the Pacific, who noted, in a letter dated April 28, 1879, that the Pimas and Maricopas were peaceful Indians who had unjustly been driven from their land once and should not be so treated again (Exhibit 7). He relayed the suggestion of the Army Division Commander, suggesting the establishment of a reservation smaller than that described in the Executive Order, with a south boundary "along the middle of the Salt River," and added his own proposal for a reservation whose south boundary would be "along the Salt River to the initial point [NE corner, Sec. 15, T. 1 N., R. 4 E.] which is within the bed of the stream."

    Because there was apparently some uncertainty as to the exact location of the Indians within the area reserved in the January 10 Executive Order, Inspector J. H. Hammond was sent to Arizona by the Commissioner of Indian Affairs to investigate. In his report, dated March 8, 1879 (Exhibit 8), Inspector Hammond stated that the Indians had left the Gila River Reservation in 1876 and 1877 in search of water, encouraged by white settlers who hoped the Indians would prove helpful in coping with the less friendly Apaches north of the Salt River. The map which accompanied his report entitled "Gila River Reservation and Surroundings, Pima Agency, A.T." (Exhibit 9), indicated where the Indians had settled; the region along the south channel of the Salt River, east of the island, was designated "Pima fields, 375 persons, 47 families"; along the north channel was the notation "Pima settlement, 1300 persons, 240 families." Hammond concluded by suggesting a new reservation to replace that created by the January 10 Executive Order, with boundaries almost identical to those proposed earlier by Captain Chaffee, with the ex-

ception of the south boundary, which was to follow the north bank of the Salt River.

    Hammond's report was forwarded to the Secretary of the Interior by the Acting Commissioner of Indian Affairs on June 12, 1879, with a letter (Exhibit 10) commenting unfavorably on the plan to remove the Indians to the Colorado River ("It would do peaceful Indians a great injustice"). The Acting Commissioner then recommended that the January 10 Executive Order, which had originally been drafted by his office, be rescinded, and a new reservation set aside in accordance with a draft Executive Order which he had prepared. The south boundary of the new reservation was to run "up and along the middle of the said [the Salt] River," and those lands south of the river owned by Indians were to be temporarily withdrawn until the lands and improvements thereon could be sold to settlers. The proposed Executive Order was signed by President Hayes on June 14, 1879 (Exhibit 2).¹

    Thus, the Executive Order of .June 14, 1879, was concerned with the protection of the Pima and. Maricopa Indians who had settled on both sides of the channels of the Salt River. Prior to its issuance, at least five different persons had presented plans for a reservation. Only one (Inspector Hammond) had suggested that the south boundary of the reservation run along the north bank of the Salt River (since the Executive Order establishing the reservation spoke of the middle of the river, it is apparent that this plan, which would not have included any of the river within the reservation, was rejected); two (Commissioner of Indian Affairs and Army Division Commander) had proposed that the south boundary be placed "in the middle of the river"; one (Major General McDowell) had located it "in the bed of the river"; and one (Captain Chaffee) had it in the south channel of the river. Nowhere was the north channel mentioned.

    II. The preponderance of evidence indicates that the south channel is the south boundary of the reservation.

    When a non-navigable river has two or more channels, the middle of the river is generally considered synonymous with the thread of the stream, or the middle of the main channel, Buttenuth v. St. Louis Bridge Co., 17 N.E. 439, 443, 443, 123 Ill. 535, 5 Am. St. Rep. 545; see also Bishel v. Faria, 1 Cal. Rptr. 153, 157, 347, P. 2d 289, the main channel being the widest and or deepest channel, Grand Rapids R. Co. v. Butler, 158 U.S. 87 (1895).

    We are not persuaded by any of the evidence cited by the Director in his March 5, 1963, opinion or reflected in the record that the main channel of the Salt River flowed north rather than south of the island in T.1 N., R. 5 E. The earliest official survey of the township, completed by W. F. Ingalls and approved on October 22, 1868, merely contained sketches of the channels. They were not meandered (Exhibit 11). In his general description of T. 1 N., R. 5 E., Ingalls characterized them as "of about equal size" but "constantly changing position and size" (Exhibit 12). This general description is contradicted by the actual measurements contained in the body of his field notes, which indicate that the south channel was wider.

    Ingalls measured the width of the channels wherever they intersected a surveyed line. His field notes, contained in Arizona Territory Volumes 1 and 2, show the following for T. 1 N.. R. 5 E.:

    These figures indicate that the average width of the south channel in T. 1 N., R. 5 E., was 4.83 chains, while that of the north channel was only 3.71 chains. Ingalls' measurements along the entire length of the channels, through T. 2 N., R. 5 E., as well as T. 1 N., R. 5 E., reflect an overall average width of 4.35 chains for the south channel and 3.96 chains for the north channel. While they are certainly not conclusive, these figures are the only available evidence of the relative size of

____________________

    ¹ That order was amended by the Executive Orders of March 22, 1911, September 28, 1911, and October 23, 1911. These amendments have no bearing on the boundary question.

the two streams prior to the establishment of the reservation; and they suggest that the south channel was the wider.

    A map dated July 12, 1879, and entitled "Plat showing lands reserved for Pima and Maricopa Indians by Executive Order of June 14, 1879" (Exhibit 13), was prepared by the Surveyor General at the request of the Commissioner of the General Land Office. It represented both channels of the river by single lines and sketched the south boundary of the reservation slightly north of the north channel. In his opinion, the Director of the Bureau of Land Management cites this map as being both "most pertinent" and "official." We cannot agree that either adjective is appropriate. The map is certainly not an "official plat", its title notwithstanding, since it does not reflect the findings of a duly authorized and approved survey of the land represented. United States v. Morrison. 240 U.S. 192 (1916). In his letter of June 27, 1879, the Commissioner of the General Land Office merely requested preparation of a "diagram" (Exhibit 14); nothing as elaborate as an official survey was indicated. In fact, there is no evidence that the Surveyor General, who prepared the map in Tucson, 125 miles away from the reservation, even inspected the area. Indeed, he was able to complete the map a scant 15 days after the date of the Commissioner's request, which, considering the time then required for transmission of the request, was quite remarkable. More important than its lack of official status, however, is the map's obvious lack of accuracy. It depicts the south boundary of the reservation as north of the river entirely, while the Executive Order which it purports to be illustrating explicitly extends the boundary to the middle of the river. Clearly an instrument containing such a gross error on its face can be accorded little weight.

    An official survey of the reservation was completed by L. D. Chillson in July 1888. His plats indicate nothing below the north bank of the north channel of the river (Exhibit 15). Although the Director cites this survey to support his conclusion that the north channel was the main stream of the Salt River, in fact the survey does not furnish any evidence at all about location of the boundary. Chillson was instructed to survey the reservation into 40-acre tracts following the rules of the surveyor's manual (Instructions to Surveyors General, 1881). His special instructions, contained in a letter from the Surveyor General dated December 27, 1887 (Exhibit 16), stated:

The southern boundary of this reservation being the Salt River, it will be necessary for you to meander same.

    A meander line merely determines the sinuosities of a stream and is not a boundary, United States v. Elliott et al., 131 F.2d 720 (10th Cir., 1942); Witaker v. McBridge, 197 U.S. 510, 512, 26 S. Ct. 530; Producer's Oil Co. v. Hanzen, 238 U.S. 325, 339, 35 S. Ct. 755; the waters themselves constitute the real boundary, Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808 (1891). That Chillson's survey is limited to the north bank of the Salt River thus does not indicate that he thought that it was the south boundary of the reservation or had determined the north channel to be the main thread of the river; it merely reflects his adherence to the instructions pursuant to which the survey was executed. Chillson was not requested to indicate the boundary or to concern himself with the river at all, other than to meander its right bank. That is all he did; no effort was made to gather any information about the river itself, its islands, its channels, its flow, etc. Neither the Surveyor General's instructions nor Chillson's field notes refer to the south boundary of the reservation in any more specific terms than "the Salt River." Thus, the 1888 survey furnishes no real evidence as to the proper location of the south boundary of the reservation.

    That the survey was of no help in establishing the boundary is further evidenced by the fact that on October 13, 1891, a little more than two years after Chillson completed his work the Commissioner of the General Land Office wrote to the Commissioner of Indian Affairs and "being in doubt as to the exact location" of the south boundary, asked his opinion on the matter (Exhibit 17). In his reply, dated August 18, 1892 (Exhibit 18), the Commissioner of Indian Affairs relayed a report he had received from the Pima Indian Agent on July 8, 1892, in which the agent made no reference to the two channels, merely noting that since the island between them was unoccupied, contained no timber and had sandy soil, it was not advisable that it be claimed for the Indians (Exhibit 19). The Commissioner then stated that whether the island was within the reservation was "a question of fact upon which I am not prepared to express an opinion at this time," but added that "the plat on file in this office indi-

cates that the principal portion or branch of tire river runs south of the island, and that what is termed the north channel is a much narrower stream." We have been unable to identify the plat referred to.

    The National Reclamation Act, the Act of June 17, 1902 (32 Stat. 388), authorized a survey of, among others, irrigable lands in Arizona. The map prepared pursuant to that act by the United States Geological survey indicated the south channel of the Salt River as the main stream, while showing the north channel as practically dry (Exhibit 20). The south boundary of the reservation was placed in the center of the south channel.

    On December 15, 1910, R. A. Farmer completed a dependent resurvey of the reservation lands with in T. 1 N., R. 5 E., for allotment purposes, based upon Chillson's 1888 survey. Like Chillson, Farmer simply meandered the right bank of the river. His plats stopped at the meander line and did not indicate any of the river itself (Exhibit 21). A dotted line was sketched in to indicate the reservation boundary, but it is of little significance since Farmer was not concerned with the boundary and made no effort to ascertain its precise location.

    Indeed, in his field notes (Exhibit 22), he refers to "the right bank of the Salt River *     *     * which river is the south boundary of the reservation" (emphasis added), thereby indicating that he had made no determination of the boundary beyond its general location somewhere in the river. Thus, the Farmer survey, like that of Chillson, conveys no information about the relative size of the two channels or the proper location of the south boundary of the reservation.

    In November 1914, the United States Indian Service completed a map showing allotments and cultivated land on the Salt River Indian Reservation (Exhibit 23). The south boundary of the reservation was shown in the south channel of the river.

    The July 12, 1879, diagram (Exhibit 13), which located the boundary north of the river entirely, is clearly erroneous on its face. The Chillson Survey (Exhibit 15) furnishes no information on the boundary question. The plat on file in the Bureau of Indian Affairs referred to by the Commissioner in his letter of August 18, 1892 (Exhibit 18), indicates that the south channel was the principal branch of the river. The 1902-1903 irrigation map (Exhibit 20) shows the south channel as larger than the north and locates the reservation boundary in it. The Farmer survey (Exhibit5 21 & 22) merely describes the boundary as "the river" and indicates it by a dotted line sketched beyond the edges of the surveyed area. The 1914 allotment map (Exhibit 23) shows the boundary running in the south channel of the river. The preponderance and weight of evidence favors recognition not of the north, but of the south channel of the river as the south boundary of the reservation.

III. There is nothing to preclude recognition of the south channel as the south boundary of the reservation.

    In his March 5, 1963, opinion, the Director asserts:

In the apparent absence of protest or amendments by the Indians to the boundary as shown upon many maps and as officially surveyed and established upon the ground by two official surveys, it must be considered that until recent years the Indians were apparently complacent with the boundary being along the north channel.

and maintains that Departmental policy precludes recognition of the south channel as the boundary, citing Boundary of San Car1os Indian Reservation, 55 I.D. 560 (May 29, 1936).

    We note initially that contrary to the Director's assertion, the boundary has not been shown to be along the north channel "upon many maps." Moreover, the boundary has never been "officially surveyed and established on the ground": the Chillson and Farmer surveys, to which we assume the Director is referring, did not purport to locate the boundary; they merely reflected the meanders of the north bank of the Salt River, without any attempt to ascertain or depict the middle of the river. In fact, to the best of our knowledge, the south boundary of the Salt River Indian Reservation has never been indicated on a map prepared for that purpose. Thus, by recognizing the south channel as the reservation boundary, the Secretary would not be reversing a determination of long standing, as the Director implies, but merely resolving a matter which has proven problematic for almost one hundred years.

    In light of the confusion which has surrounded the question of the location of the boundary, the situation at hand is hardly comparable to that considered in Boundary of San Carlos Indian Reservation, supra, in which the Acting Secretary of the Interior held that a boundary description which had been uniformly interpreted by the Department for 60 years would be considered controlling.

There certainly has been no such uniformity in recognition of the south boundary of the Salt River Indian Reservation. The Pimas and Maricopas can hardly be criticized and certainly should not be penalized for not questioning a Departmental determination which was not definitely made until 1963.

    Indeed, the Indians have repeatedly asked for clarification of the location of the south boundary of their reservation. On March 23, 1940, the Salt River Indian Community Council passed a resolution requesting the Commissioner of Indian Affairs to "definitely locate and establish the reservation boundary line in and along the stream bed of the Salt River." (Exhibit 24) The Indians were advised that since no funds were available for a survey, their request could not be acted upon. Subsequent requests have a met a similar fate.

IV. Conclusion

    Under these circumstances we believe that the south channel of the salt River should be recognized as the south boundary of the Salt River Indian Reservation. We therefore recommend that Secretarial approval of the March 5, 1963, memorandum opinion of the Director of the Bureau of Land Management be withdrawn and that new instructions regarding the south boundary of the Salt River Indian Reservation be issued.

    We would add that fairness to persons asserting interests in the lands between the two channels under the mining and other public lands laws will require this Department to promptly request the Department of Justice to commence appropriate actions to obtain judicial determination of the merits of their claims.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                                     Solicitor.

Exhibits

    1.    March 5, 1963, memorandum opinion from the Director of the Bureau of Land Management to the State Director, Arizona.
    2.    Executive Order of June 14, 1879.
    3.    Executive Order of January 10, 1879.
    4.    February 18, 1879, letter from Captain A. R. Chaffee to Assistant Adjutant General.
    5.    Map dated March 4, 1879, "traced in the Adjutant General's office."
    6.    Map "traced in Adjutant General's office, January 1879."
    7.    April 28, 1879, letter from Major General McDowell to Adjutant General.
    8.    March 8, 1879, letter from Inspector H. Hammond to Commissioner of Indian Affairs.
    9.    March 8, 1879, map. "Gila River Reservation and Surroundings, Pima Agency, A.T."
    10.  June 12, 1879, letter from Acting Commissioner of Indian Affairs to Secretary of the Interior.
    11.  Official plats of W. F. Ingalls survey of T. 1 N., R. 5 E., and T. 2 N., R. 5 E., approved October 22, 1868.
    12.  Excerpt from field notes of W. F. Ingalls' survey, Arizona Territory Volume 2.
    13.  July 12, 1879, map, "Plat showing lands reserved for Pima and Maricopa Indians by Executive Order of June 14, 1879."
    14.  June 27, 1879, letter from Commissioner of the General Land Office to Surveyor General.
    15.  Official plat of L.D. Chillson resurvey of T. I N., R. 5 E., approved July 11, 1888.
    16.  December 27, 1887, letter from Surveyor General to L. D. Chillson.
    17.  October 18, 1891, letter from Commissioner of the General Land Office to Commissioner of Indian Affairs.
    18.  August 18, 1892, letter from Commissioner of Indian Affairs to Commissioner of the General Land Office.
    19.  July 8, 1892, letter from Pima Indian Agent to Commissioner of Indian Affairs.
    20.  Map of irrigable lands in Arizona prepared by U.S. Geological Survey, for Salt River Project 1902-03.
    21.  Official plat of R. A. Farmer resurvey of T. I N., R. .5 E., approved December 15, 1910.
    22.  Excerpt from field notes of R. A. Farmer resurvey of T. 1 N., R. 5 E.
    23.  November 1914, United States Indian Service map, allotments and cultivated land on the Salt River Indian Reservation.
    24.  March 23, 1940 resolution of the Salt River Indian Community Council.

JAY TREATY OF 1794--NEW YORK INDIANS--
CUSTOMS AND IMMIGRATION LEGISLATION

                                                                                                                                    February 3, 1969.

DEAR MR. SCOTT:

    Your letter of January 17 requests our views and comments on four questions posed by the Canadian Embassy in Washington concerning United States immigration and customs law applicable to North Americans passing back and forth across the United States-Canada border. It also seeks information on the Indians found along the border and the communities in which they reside.

I

    We turn first to the question raised by the Canadians:

    1. Has customs or immigration legislation been enacted by the United States implementing the relevant sections of the Jay Treaty concerning North American Indians?

    a. Immigration legislation: Article III of the Jay Treaty of November 19, 1794 (8 Stat. 116), provided, in part:

It is agreed that it shall at all times be free to His Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America *     *     *.

    The first codification of immigration measures enacted by the Congress, the Act of February 5, 1917 (39 Stat. 874), contained no reference to the Jay Treaty provision or to Indians generally. The Immigration Act of 1924 (43 Stat. 152) similarly failed to provide for the exemption of Indians crossing the border from Canada. The consequences of this omission were discussed in United States ex Rel. Diablo v. McCandless, 18 F. 2d 282 (D.C. Pa. 1927) , aff'd 25 F. 2d 71 (C.A. 3rd Cir. 1928), in which the court found that a full-blooded Iroquois Indian resident of Canada was not subject to deportation for failure to comply with the 1924 Act because Article III of the Jay Treaty had exempted American Indians from the operation of the immigration laws of the United States. That holding became statutory law with the Act of April 2, 1928 (45 Stat. 401; formerly 8 U.S.C. 226a), which provided:

That the Immigration Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States: Provided, that this right shall not extend to persons whose membership in Indian Tribes or families is created by adoption.

    Thereafter, Indians born in Canada were permitted to enter the United States without inspection under the immigration laws. In United States ex Rel. Goodwin v. Karnuth, 74 F. Supp. 660 (D.C.N.Y. 1947), the Court noted that the exemption of "American Indians born in Canada" was applicable to persons of Indian blood generally and not just to members of a tribe, since it was premised on racial and not political considerations.

    That exemption, slightly modified, has been carried forward into immigration legislation presently in effect. Section 289 of the Immigration and Naturalization Act of June 27, 1952 (66 Stat. 234; 8 U.S.C. 1359) provides:

Nothing in this subchapter shall be construed to affect the right of Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.

    In short, the provision made in Article III of the Jay Treaty for the free passage of Indians from Canada into the United States has been and is now implemented by legislation. In the present form, however, that legislation extends the right accorded in the treaty only to those Indians born in Canada who are of at least one-half Indian blood.

    b. Customs Legislation: Following the above cited provision for the immigration of Indians from Canada to the United States, Article III of the Jay Treaty stated:

No duty of entry shall ever be levied by either party on peltries brought by land or inland navigation into said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of what-

ever nature, pay for same any impost or duty whatever. But goods in bales, or other large packages unusual among Indians, shall not be considered as goods belonging bona fide to Indians.

    That provision was carried verbatim into the Tariff Act of March 2, 1799 (1 Stat. 627), which was in effect at the time the War of 1812 broke out. At the close of the war, the Treaty of Ghent, signed on December 24, 1814 (8 Stat. 218) stated in Article IX:

The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities.

    The Jay Treaty provision exempting the Indians' "own proper goods and effects of whatever nature" from customs duties continued to appear unchanged in tariff acts until October 1, 1890. On that date, a slightly modified version of the provision was enacted, authorizing the Secretary of the Treasury to prescribe regulations governing the matter. Tariff Act of October 1, 1890, 52, paragraph 674 (26 Stat. 567). This version was repeated in the Tariff Act of August 27, 1894, as Paragraph 582 § 2 (28 Stat. 509). However it was omitted from the Tariff Act of July 24, 1897 (30 Stat. 151), which made no reference to Indian goods whatsoever and repealed "all Acts or parts of Acts inconsistent with the provisions of this Act *     *     *." Subsequent tariff legislation has been equally silent on the matter.

    In 1938, the Court of Customs and Patent Appeals held in United States v. Garrow, 88 F. 2d 318 (C.C.P.A.; 1937), that since current statutes failed to specifically provide an exemption for Indian goods, baskets brought into the United States for sale by a full-blooded Indian woman of the St. Regis Tribe of Canada were subject to the same duty as other similar baskets. That decision was cited with approval by the U.S. Court of Appeals, Ninth Circuit a year later in Guiles v. United States, 100 F. 2d 47 (C.A. 9 Cir. 1938). As far as we are aware, no Court has directly considered the question of whether Indian goods brought into the United States from Canada are dutiable, since the Garrow decision in 1937.

    Although there is no longer an express statutory provision for the importation of Indian goods duty-free, there is some possibility that the right accorded in the Jay Treaty remains intact.

    In the McCandless decision, the Court held that Article III of the Jay Treaty had not been abrogated by the War of 1812, and, alternatively, even if it had been, Article IX of the Treaty of Ghent had restored it. A year later, in 1929, the Supreme Court had occasion to consider the question in Karnuth v. United Slates, 279 Us. 231 (1929), a habeas corpus proceeding brought by two resident aliens of Canada (non-Indians) seeking to cross into the United States daily to work. In holding that the respondents were quota immigrants under Section 3 of the Immigration Act of 1924, supra, the Court stated:

*     *     * the privilege accorded by Article III is one created by the treaty, having no obligatory existence apart from that instrument *     *     *. It is in no sense a vested right.

*     *     *     *     *

[It is] our conclusion that the provision of the Jay Treaty now under consideration was brought to an end by the War of 1812, leaving the contracting parties discharged from all obligation in respect thereto, and, in absence of a renewal, free to deal with the matter as their views of national policy, respectively, might from time to time dictate.

    While it is true that the Court was not specifically considering those portions of Article III applicable to Indians, and thus its decision did not explicitly overrule McCandless, we find nothing in its opinion to indicate that it was not considering Article III as a whole or that it viewed the provisions dealing with Indians as subject to any different legal principles. The Court of Customs and Patent Appeals specifically rejected the argument that some distinction should be made between members of an Indian tribe and the non-Indian immigrants involved in the Karnuth case, when it held in United States v. Garrow, supra, that the right accorded Indians to bring goods into the United States duty-free under Article III of the Jay Treaty ended with the War of 1812 and was not revived by Article IX of the Treaty of Ghent, which was merely a promise by the United States that it would in the future restore certain rights to the Indians. Presumably it was not thought necessary to act on that promise insofar as the

importation of goods from Canada was concerned because provision had already been made for such in the Tariff Act of March 2, 1799, supra. As discussed above, that provision was eventually repealed.

    In light of the foregoing, it is difficult to conclude that the rights accorded under Article III of the Jay Treaty may be relied upon today by Indians seeking to bring goods into the United States from Canada.

    2. Can a North American Indian born and residing in Canada carry Canadian goods duty-free into the United States (a) as a landed immigrant and (b) as a visitor?

    3. Can a North American Indian born and residing in the United States carry goods duty-free into the United States (a) after residing for some time in Canada, (b) after a mere temporary visit to Canada of less than 24 or 48 hours, or (c) after a mere temporary visit to Canada in excess of 24 or 48 hours?

    Persons born in the United States to a member of an Indian, Eskimo, Aleutian or other aboriginal tribe are citizens and nationals of the United States at birth. Immigration and Naturalization Act of June 27, 1952 (66 Stat. 235; 8 U.S.C. 1401 (a) (2)). Consequently, goods carried into the United States by North American Indians born and residing in the United States are basically subject to the same customs duties as goods imported by other citizens. Personal exemptions for residents returning to the United States are found in Part 2 of Schedule 8 of the Tariff Act of 1930, supra, as amended, specifically, Item Nos. 810.10, 810.20, 813.15, 813.20, 813.25, 813.30, and 813.31. Generally, these provisions exempt from the payment of duty and of any internal revenue tax imposed by reason of importation all household and personal effects taken abroad, limited quantities of alcoholic beverages and cigars, and articles not over $100 in aggregate fair retail value in the country of acquisition. brought in when such articles are from a contiguous country which maintains a free zone or free port, such as Canada, the duration of the returning resident's absence from the United States is immaterial.

    4. Does United States Customs legislation provide a general exemption from United States customs duties for (a) North American Indians residing in the United States, (b) North American Indians born in Canada who are going to the United States for a temporary visit, (c) all North American Indians?

    As discussed in the above three questions, current customs legislation contains no general exemption for North American Indians, regardless of the place of their residence or the length of their stay in the United States.

II

    In response to your request for information regarding the Indians currently residing along the United States-Canada border, we enclose a copy of a memorandum prepared by the Bureau of Indian Affairs on January 28, 1969, concerning the number of Indians and acreage of federal reservations located in counties or districts contiguous with or within one hundred miles of the border. It reports that as of 1960, the latest date for which such figures are available, there were 31,000 Indians living in United States counties contiguous with the border and an additional 27,500 Indians within one hundred miles of it. Thus more than 58,500 persons within the United States would be potentially involved in any amendment of Federal or Canadian immigration and customs policies toward American Indians. Unfortunately, because this Department keeps no statistics on border crossings by Indians, we can offer no information on such relevant matters as the frequency and number of such crossings, the status of the entrants (visitor, immigrant, returning resident) , their purpose (business, pleasure), and the number of dutiable items they bring into the United States or Canada.

III

    With regard to the immediate problem at hand, that of the protest lodged by the Mohawk Indians of the St. Regis Reservation, we cannot furnish any detailed information. The United States has had minimal contact with the Indians of New York since it granted both civil and criminal jurisdiction over Indians on Indian reservations in the State of New York to the State. The Act of July 2, 1948 (62 Stat. 1224; 25 U.S.C. 232) (criminal jurisdiction); the Act of September 13, 1950 (64 stat. 845; 25 U.S.C. 233) (civil jurisdiction). None of the ten reservations presently located within the State, including St. Regis, was created by federal treaty, statute or executive order. The State of New York furnishes virtually all governmental services to New York Indians.

                                                                                                                    RICHMOND F. ALLAN,
                                                                                                                                            Acting Solicitor.

Enclosure

APPLICABILITY OF HEALTH AND SANITATION LAWS
OF THE STATE OF CALIFORNIA ON INDIAN
RESERVATIONS

M-36768                                                                                                                             February 7, 1969.

Indians: Civil Jurisdiction--Indians: Criminal Jurisdiction -- Indian Lands: Generally -- Indian Lands: Allotments: Generally--Indian Lands: Tribal Lands--State Laws--Act of August 15, 1953, 67 Stat. 589, as amended, 18 U.S.C. § 1162 and 28 U.S.C. § 1360

Civil and criminal jurisdiction over the persons and private (non-trust) property of Indians within Indian country granted to states or assumed by states under Public Law 280 (Act of August 15, 1953, 67 Stat. 589, as amended, 18 U.S.C. § 1162 and 28 U.S.C. § 1360) does not include authority to enforce state laws directly or indirectly against property held in trust by the United States for the benefit of Indians.

Indians: Civil Jurisdiction--Indian Lands: Generally--Indian Lands: Allotments: Generally Indian Lands: Tribal Lands--State Laws--Regulations: Generally--Act of February 15, 1929, 45 Stat. 1185, 25 U.S.C. § 231

The Act of February 15, 1929, 45 Stat. 1185, as amended, 25 U.S.C. § 231, providing for the entry of agents and employees of a state upon Indian tribal lands, reservations, or allotments for the purpose of enforcing state sanitation and quarantine regulations, is not self-executing and in the absence of implementing regulations cannot serve as a source of authority to enforce state health and sanitation laws.

Memorandum

To:            Assistant Secretary, Public Land Management
From:        Solicitor
Subject:     Applicability of health and sanitation laws of the State of California on Indian reservations

    In his letter of March 26, 1968, Mr. Stevens requested the views of this Department on whether the health and sanitation laws and regulations of the State of California are applicable on Indian reservations and trust lands, and whether county health officers may enter such reservations and lands for the purpose of enforcing such laws and regulations. He directed attention to Public Law 280 (Act of August 15, 1953, 67 Stat. 589, as amended, 18 U.S.C. 1162 and 28 U.S.C. 1360).

    Also germane is the Act of February 15, 1929, 45 Stat. 1185, as amended, 25 U.S.C. 231, which provides:

The Secretary of the Interior, under such rules as he may prescribe, shall permit the agents and employees of any state to enter upon Indian tribal lands, reservations, or allotments thereon (1) for the purpose of making inspection of health and educational conditions and enforcing sanitation and quarantine regulations *     *     *.

    Generally, it is the position of this Department that Public Law 280 invests the states, which were granted or have assumed jurisdiction thereunder, with civil and criminal jurisdiction over the per-

sons and private (non-trust) property of Indians within the Indian country.

    Jurisdiction over trust property, including authority to regulate its use, was largely unaffected by the Act and remains as and where it was prior to its passage. Snohomish County v. Seattle Disposal Company, 425 P.2d 22 (Wash. 1967), cert. denied, 389 U.S. 1016 (1967). Such property, whether real or personal is owned by the United States and held and administered for the benefit of individual Indians or groups of Indians for the purpose of carrying out the policies and discharging the responsibilities of the National Government.

    Under and subject to the Constitution, Congress possesses plenary power over Indian affairs and property. The trust relationships which exist between the National Government and the Indian people, both groups and individuals, are devices created by Congress to assure that property granted to or reserved by Indians will be preserved in such manner as to be capable of conveyance to the beneficiaries upon termination of the trust free and clear of burdens and impediments. Congress has assigned principal responsibility and authority to the Secretary of the Interior to secure this objective and to discharge the special obligations which the Nation has undertaken to its Indian citizens.

    In our view both the language of Public Law 280 and its legislative history make quite clear that it was not intended to invest the states with jurisdiction over trust property. This Department consistently has held that the statute furnishes no basis for the application of state or local zoning, construction, or other land use laws, regulations, or standards to trust property. Authority with respect to such property is reposed exclusively in the Federal and tribal governments. See 25 CFR 1.4 and 30 F.R. 8722 (No. 131, July 9, 1965).

    On the other hand, it is equally clear that the statute grants comprehensive jurisdiction to the states over the persons and private property of Indians in the Indian country where it is applicable.

    Accordingly, the question whether Public Law 280 authorizes the application of California health and sanitation laws and regulations to Indians in the Indian country cannot be answered categorically. The answer must be that such laws and regulations may be enforced against Indians to the extent they operate upon the person. Except as authorized by the Secretary of the Interior, they may not be applied to Indians if their enforcement, directly or indirectly, would impact or involve the regulation of trust property in any significant way. Act of February 15, 1929, supra.

    As power to enforce is an incident of jurisdiction to legislate, the authority of state officers to enter upon trust lands depends upon whether the entry is made for the purpose of enforcing laws or regulations to which Indians are legally subject. We perceive no impediment to a state health officer's entry upon trust land for the purpose of enforcing a state law against the person of an Indian. But such officer would be without authority to enter for the purpose of taking action which would interfere with the use or possession of trust land or other trust property.

    Needless to say, the state and its officers in the guise of enforcing state laws and regulations against persons cannot take actions which in fact expend themselves upon trust property or affect its use or enjoyment in any substantial way.

    Section 231 of Title 25, supra, was formerly implemented by a regulation which appeared as 25 CFR 84.78 (1949 ed). It provided:

Enforcement of state health laws. State health authorities are authorized to enter upon Indian tribal lands, reservations, or allotments within the respective states for the purpose of making inspection of health conditions looking to the enforcement, except as hereinafter provided, of sanitation and quarantine regulation of the particular state in like manner as such regulations are enforced in the surrounding territory. In connection with and prior to such proposed enforcement, the physician in charge of each reservation shall schedule the state sanitation and quarantine regulation which ought to be enforced upon the reservation together with a statement of any limitations and conditions which should govern the application of such state regulations. Tribal authorities and individual Indians shall be afforded ample opportunity to submit protests or recommendations with respect to specific state regulations thus proposed for extension to the reservation. It shall be the duty of the Superintendent to transmit to the Secretary of the Interior through the Commissioner of Indian Affairs, the schedule of state regulations thus posted, together with any protests or criticisms made by the Indians with respect thereto. Such state regulations as are approved by the Secretary of the Interior shall thereafter be in force upon the reserva-

tion subject to such conditions as the Secretary may prescribe. No state law shall be applied within the jurisdiction of any organized tribe which is in conflict with any ordinance or resolution of the tribe. (45 Stat. 1185; 25 U.S.C. 231).

    This regulation was revoked on July 1, 1955, as part of the action taken to effectuate the Act of August 5, 1954, 68 Stat. 674, which provides in part:

*     *     * That all functions, responsibilities, authorities, and duties of the Department of the Interior, the Bureau of Indian Affairs relating to the maintenance and operation of hospital and health facilities for Indians and the conservation of the health of Indians are hereby transferred to, and shall be administered by, the Surgeon General of the United States Public Health Service, under the supervision and direction of the Secretary of Health, Education and Welfare *     *     *.

    This statute has never been construed as transferring any jurisdiction over trust land to the Department of Health, Education and Welfare. Such power as exists to regulate the use of such land in aid of health and sanitation remains in the Secretary of the Interior. The statute is not self executing and in the absence of implementing regulations cannot serve as a source of authority to enforce state health and sanitation laws in Indian country. 57 I.D. 162; Superior Sand and Gravel Mining Co. v. Territory of Alaska, 224 F. 2d 623 (9th Cir. 1955); Dredge Corporation v. Penny, 362 F.2d 889 (9th Cir. 1966).

    Our conclusion is that Public Law 280 invests the State of California with jurisdiction to enforce its health and sanitation laws and regulations against the person of Indians in the Indian country, but does not authorize the State, directly or indirectly, to enforce such laws against property held in trust by the United States for the benefit of Indians.

                                                                                                                    RICHMOND F. ALLAN,
                                                                                                                                            Deputy Solicitor.

STATUS OF THE OZETTE INDIAN RESERVATION,
WASHINGTON

76 I.D. 14

M-36456 (Supp.)                                                                                                                 February 18, 1969.

The Makah Indian Tribe did not acquire any interest in the Ozette Indian Reservation merely because the class of Indians for whom the reservation was established may, whether for some or all purposes, be considered Makahs.

Indian Lands: Generally

Since the Executive Order of April 12, 1893, establishing the Ozette Indian Reservation, has not been rescinded or modified, the right of use and occupancy granted the Indians for whom the reservation was set aside remains intact, even though those Indians have all departed from Ozette and settled on other reservations, where many have become allottees.

Indian Reorganization Act

The occurrence of an election at which the voters choose to make the provisions of the Indian Reorganization Act applicable on a given reservation does not mean that the Indians having rights in the reservation must organize thereunder.

Indian Reorganization Act

The occurrence of an election to determine the applicability of the Indian Reorganization Act to the Ozette Reservation did not change or in any way affect the interests of the Indian beneficiaries named in the 1893 executive order establishing the reservation.

Indian Lands: Allotments--Generally

While it is clear that no Indian may receive an allotment on two reservations, Josephine Valley, 19 L.D. 329 (1894), there is nothing to preclude acceptance of an allotment on one reservation by an individual who is a member of a class of Indians for whom another reservation has been established.

Solicitor's Opinion M-36456 of November 21, 1957, will not be followed to the extent that it conflicts with these views.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Status of the Ozette Indian Reservation, Washington

    Makah Tribal Council Resolution No. 29-69, enacted on October 22, 1968, requested this Department to review Solicitor's Opinion No. M-36456, dated November 21, 1957, and to modify or reverse it. The Opinion in question, rendered by Deputy Solicitor Edmund T. Fritz, concluded that the Makah Indian Tribe has no enforceable claim to the Ozette Indian Reservation, and that in fact, there are no persons or groups now in existence who can be said to have a beneficial interest in the reservation.

    At your request we have reviewed the 1957 opinion and examined all available evidence, including that presented in the brief submitted by Alvin J. Ziontz, Makah Tribal Counsel on October 25, 1968, in which he argues that the Makah Tribe is the present beneficial owner Of Ozette. We are not persuaded that such is the case. On the other hand, we find that we cannot fully concur in the position taken by Deputy Solicitor Fritz. Accordingly, Solicitor's Opinion No, M-36456 is hereby modified as stated herein.

    I. Solicitor's Opinion No. M-36456 dealt with five specific questions. Before considering the questions and answers presented by that opinion concerning present use rights in the Ozette Reservation, we feel it important to review briefly the
reservation's history.

    Located on the southern coast of Cape Flattery, Washington, at the mouth of the Ozette River, the Ozette Reservation was created by Executive Order on April 12, 1893, "for the Osette Indians not now residing upon any Indian reservation." The area reserved, 719 acres, was the site of one of the principal villages of the Makah Indian Tribe. Its inhabitants had long been considered Makahs, both by the tribe itself and by federal officials in the area. Indeed, the first federal treaty with the Makahs, concluded at Neah Bay on January 31, 1855 (12 Stat. 939), was signed by Tse-Kow-Wootl from Ozette, as "Head Chief of the Makah Tribe." In that treaty, the Makahs ceded their tribal land to the United States in consideration of the establishment of the original Makah Reservation, a small portion of Cape Flattery, which for some unknown reason, did not include any of the tribe's permanent settlements. Four Makah villages--Sooes, Waatch, Neah, and Baada--were added to the reservation by Executive Order on October 26, 1872, as amended January 2, 1873, and October 21,1873. When Ozette was reserved, 20 years later, it was not specifically added to the existing Makah Reservation, as the other villages had been, but was set aside as a separate reservation.

    The census roll of June 30, 1893, indicated that 64 Indians were then living in Ozette. This number steadily dwindled as parents were forced to leave the village, which had no school facilities, in order to comply with school attendance requirements. By 1908, the Indian Agent for the area could report "Most of the Ozette Indians live in Neah Bay, on the Makah Reservation."

    Eventually, the village itself was totally deserted, although it was sometimes (and still is) used by members of the Makah Tribe as a site for hunting, fishing, and camping.

    Many of those who left Ozette settled on the Makah Reservation; while some chose to move to the Quinaielt Reservation, where the Act of March 4, 1911 (36 Stat. 1345), had authorized the allotment of surplus lands:

*     *     * to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington who are affiliated with the Quinaielt or Quileute tribes in the treaty of July 1, 1855 and January 23, 1856, and who may elect to take allotments on the Quinaielt Reservation rather than on the reservation set aside for these tribes.

    On both the Makah and Quinaielt Reservations they were enrolled as tribal members and considered eligible for allotments.

    When the Indians of Washington were preparing to vote on whether to accept the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), the approximately 30 Indians who had emigrated from Ozette were informed they could participate in only one I.R.A. election--the one to be held at Ozette or the one to be held at their current residence. All but two chose to vote with the Makahs or Quinaielts. Those two, unallotted residents of Neah Bay, returned to Ozette to cast their ballots on April 13, 1935. Both voted to make the provisions of the I.R.A. applicable to the reservation.

    Since that time, there has been little activity at Ozette. There is no indication that either the two participants in the 1935 election, now dead, or any other former residents of the villages ever returned there again. The reservation remains deserted, save for occasional use by residents of the Makah Reservation for hunting and fishing purposes.

    II. We turn now to the specific questions on present use rights discussed in Solicitor's Opinion No. M-36456, considering the second first.

A. Does the Makah Tribe of Indians have an enforceable property or use claim to the lands or waters within the Ozette Reservation?

    The Makah Tribe argues now, as it did in 1957, and earlier in 1955 and 1941, that it possesses a beneficial interest in the Ozette Reservation. Deputy Solicitor Fritz concluded that it had no such interest. We find nothing to warrant amendment of that conclusion.

    The Ozette Reservation was created not for a tribe or band but for a class of Indians; i.e., "for the Osette Indians not now [1893] residing upon any Indian Reservation." Thus, even if we accept the Makah Tribe's position that the "Osette Indians" are not a distinct tribe or band but merely Makahs residing at Ozette Village, it does not follow that the Makah Tribe acquired any rights in the reservation merely because the class of Indians to which the rights were given may, whether for some or all purposes, be considered Makahs. That there are connections between the Makahs and the Indians for whom the Ozette Reservation was reserved has never been in doubt.

    The Treaty of Neah Bay, supra, described Ozette as one of "the several villages of the Makah Tribe of Indians." The 1862 report of Henry A. Webster, first Indian Agent at Neah Bay, noted that the Makah Indians were the only tribe included in that treaty, and made reference to "that portion of the tribe living at Osett Village." In a letter dated September 5, 1872, Indian Agent E. M. Gibson reported on his visit the previous August to Ozette, "most distant from the Agency of any village belonging to this [the Makah] Tribe." (The Ozette Reservation was not created until 1893 and in 1872 could not have "belonged" to the Makahs except by affinity of the residents.) In their report of November 20, 1874, the Board of Indian Commissioners recommended consolidation of the Makahs and Quinaults on the Makah Reservation and extension of that reservation 15 miles south, a distance which would have included Ozette within the reservation's boundaries. The Indian Agent at Neah Bay reported on August 19, 1892, that the Makahs lived in four separate villages, "one at the mouth of the Osette River."

    In a letter dated June 8, 1907, the special agent appointed to supervise the allotment of the Makah Reservation pursuant to the Act of February 8, 1887 (24 Stat. 388), and the Act of February 28, 1891 (26 Stat. 794), was informed that "Indians enrolled as belonging to the Ozette Reservation, but really Makahs," were eligible for allotments. In the Department report on S. 5269, 61st Cong. 2d Sess. (1910), the bill later enacted as the Act of March 4, 1911, supra, Secretary Ballinger referred to the "Ozette Tribe," classifying it as one of the coastal fish-eating tribes of Washington whose members should receive allotments on the Quinault Reservation. Available records on this legislation, which was prepared by the Department, indicate that the Ozettes, who were not a party to the Treaty of Point Elliott of July 1, 1855, and January 25, 1856 (12 Stat. 971), but had long been identified with the Makahs and signed treaties as Makah Indians, were classified among the Indians to be protected under the act primarily because the reservation which had been set aside for their use, like those reserved for several other small Indian groups of the area, was merely a fishing village site, not large enough to provide allotments for more than a fraction of its Indians. See Halbert v. United States, 283 U.S. 753 (1931).

    Most modern anthropologists and ethnologists seem to consider the Ozettes as a band or branch of the Makah Tribe. In his 20-volume work, The North American Indian (Cambridge, Mass., 1907 1930), Edward S. Curtis speaks "of the Ozette branch of that [the Makah] tribe," Vol. XI, 1916, Appendix. John R. Swanton classifies the Ozette as "a southern branch" of the Makah Tribe, Indian Tribes of North America, H. Doc. No. 383, 81st Cong. 2d Sess. (1951). In a report prepared in June 1955, included in the Makahs' brief as Exhibit 4, Professor Herbert C. Taylor, Jr., concludes that "the Ozette constitute one band and the Diaht, Wa'atch, T'Sues and Ba'adah constitute the other band of the Makah."

    However, as previously indicated and more fully discussed below, the establishment of such connections between the Makah Tribe and the class of Indians for whom the reservation was created is not enough to vest the tribe with an interest in the lands and waters of the reservation at Ozette.

in Ozette by restricting the class of beneficiaries to Indians not then residing on an existing reservation. The United States was under no obligation to utilize Ozette for the benefit of the entire Makah Tribe, or any other tribe, for that matter. It chose to reserve the land for a limited group of Indians, all of whom happened to be associated with the Makahs; it did not bestow any interest in the reservation upon the Makah Tribe itself or its membership as a whole. To date, that decision, embodied in the Executive Order of 1898, has not been rescinded or amended.

    Thus, although the Makah Tribe has a historical and perhaps even an equitable interest in Ozette, it has no enforceable claim to the lands or waters within the Ozette Reservation. Such a claim could best be acquired through legislation.

B. Are there any classes of persons who could successfully exercise a valid claim to the Ozette Reservation?

    In his 1957 opinion, the Deputy Solicitor [Fritz] concluded that no group then in existence could be said to have such a beneficial ownership right in the reservation as would be sufficient, without further act of Congress, to support a claim against the United States. We cannot agree. The Executive Order of April 12, 1893, granted a beneficial interest in the Ozette Reservation to certain members of a group of Indians historically identified with the Makah Tribe, termed Ozette Indians, i.e., those who were then or had previously been associated with the Village of Ozette and at the time of the order were living at Ozette or some where other than on an existing Indian reservation. The events discussed in the 1957 opinion did not serve to extinguish or alter the interest of that group.

    The Ozettes' departure from their village and settlement on other reservations, where many became allottees, did not affect the rights they had acquired in 1893. As the Supreme Court has noted the creation of an Indian reservation invests the Indians for whom the lands are reserved with certain definite interests.

When by an executive order, public lands are set aside, either as a new Indian Reservation or an addition to an old one without further language indicating that the action is a mere temporary expedient, such lands are there after properly known and designated as an Indian Reservation' and so long, at least, as the order continues in force, the Indians have the right of occupancy and use and the United States has the title in fee. Spalding v. Chandler, 160 U.S. 394 (1896). (Emphasis added). See also In re Wilson, 140 U.S. 575 (1890); 29 Op. Atty. Gen. 239, 241 (1911).

    The Executive Order of April 12, 1893, has not been rescinded or modified; the right of occupancy and use granted the class of Ozettes thereunder, thus remains intact.

    The 1957 opinion unwarrantedly concludes that the interest of this class was terminated in 1935 by an election to determine whether the Indian Reorganization Act should apply to the Ozette Reservation. Characterizing the two Indians who voted in that election as "the total population remaining on the Ozette Reservation," the opinion states:

It appears that there are no longer representatives of the class designated [as entitled to a beneficial interest in Ozette] *     *     * [since] all Indians enrolled as Ozettes are now deceased.

    We note initially that the opinion assumed both voters were residents of Ozette as of 1935. Historical evidence indicates, however, that Ozette was totally deserted at the time of the election and that the two Indians who took part in the election left their homes at Neah Bay only long enough to cast ballots at Ozette. They were thus no different from any other Ozettes; the entire group resided off the reservation.

    More important than the opinion's description of those who participated in the 1935 election is the Deputy Solicitor's view of its effect upon the beneficial interest in the reservation. He saw the election as somehow shifting that interest from "the Ozette Indians" designated in the 1893 executive order, to an "Ozette Tribe" organized pursuant to the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C. § 463 et seq. Since there was no one able to claim membership in such a tribe, there never having been such a tribe, he concluded that the equitable estate in the Ozette Reservation had merged with the legal estate for lack of existing beneficiaries.

    It is our opinion that Deputy Solicitor Fritz accorded the 1935 election a result it did not have. The election was one of many held pursuant to Section 18 of the Indian Reorganization Act, supra, throughout the country in order to furnish an opportunity for those Indians with an interest in a particular reservation to indicate if the wished to make the provisions of the I.R.A. applicable to their reservation. The voters at Ozette indicated that they wished to do so; nothing more. Organization of a tribal group under Section 16

of the Indian Reorganization Act was not involved in the election. No organization of Indians on the Ozette Reservation under Section 16 of that act (25 U.S.C. § 476) has ever taken place. Section 16 simply offers the opportunity for organization; the mere fact that the Indian Reorganization Act is applicable on a given reservation does not mean that the Indians having rights on the reservation must organize thereunder. Thus, Deputy Solicitor Fritz's statement that "all Indians enrolled as Ozettes are now deceased" is erroneous to the extent that it equates voting in the 1935 election with enrollment in a tribe organized pursuant to Section 16. The two Indians who participated in the election were not "enrolled" in an organized Ozette Tribe, since such a tribe did not (and still does not) exist. In this connection, it may be noted that in a letter to the Superintendent of the Taholah Agency, dated March 14, 1935, prior to the election at Ozette, the Assistant Commissioner of Indian Affairs stated:

It should be made clear, however, that in eligibility for voting in this referendum [an I.R.A. election] does not necessarily mean that the individual concerned will be excluded from the tribal organization if and when it is formed.

    Thus, the 1935 election to determine the applicability of the I.R.A. to the Ozette Reservation did not change or in any way affect the interests of the Indian beneficiaries named in the 1893 executive order establishing the reservation.

    Neither did Ozettes relinquish their claim to the Ozette Reservation by accepting allotments on other reservations. While it is clear that no Indian may receive an allotment on two reservations, Josephine Valley, 19 L.D. 329 (1894), there is nothing to preclude acceptance of an allotment on one reservation by an individual who is a member of a class of Indians for whom another reservation has been established. The Chief Counsel of the Bureau of Indian Affairs addressed himself to this very point in a memorandum opinion dated November 26, 1941, when he concluded that:

The Ozettes have a common or joint interest in the undisposed of Ozette 'reservation' regardless of the fact that these Indians may not be located elsewhere and may have received allotments in severalty at Quinaielt or Makah.

    III. Having made these observations, we are unable to determine whether there are in fact any Indians currently entitled to use and occupy the Ozette Reservation. We are informed that there are Indians, primarily residents of the Makah Reservation, who assert that they are among the class designated in the 1893 executive order. However, the merits of their individual claims have not been investigated. Until each of these claims is examined, those Indians presently holding a beneficial interest in Ozette cannot be accurately identified. At most, we can only conclude that the class for whom the Ozette Reservation was established has not necessarily ceased to exist. The history of the reservation, its present vacant status, and the current affiliation of those who may have a beneficial interest in it all prompt us to add, however, that the question of which Indians should now enjoy the benefits of the Ozette Reservation is one which might best be resolved by the Congress.

                                                                                                                    RICHARD F. ALLAN,
                                                                                                                                        Deputy Solicitor.

STATUS OF OZETTE INDIAN RESERVATION,
WASHINGTON--(SUPPLEMENT TO OPINION
OF SAME DATE)

                                                                                                                                        February 18, 1969.

Memorandum

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Resolution of the controversy surround-

                 ing the Ozette Indian Reservation, Washington

    This memorandum supplements our opinion of this date regarding the present status of the Ozette Indian Reservation by commenting briefly on the manner in which the controversy surrounding the reservation might be resolved.

    In our formal opinion, we concluded that the question of which Indians should now enjoy the benefits of Ozette is one which might best be settled by the Congress. The brief submitted by the Makah Tribe similarly indicated that legislation is desirable. However, it is not entirely clear that legislation is the one and only avenue of relief available.

    There is also the possibility of Executive action, as noted by the Acting Commissioner of Indian Affairs in his memorandum of November 19, 1968, a copy of which is attached.

    Section 27 of the Act of June 30, 1919 (41 Stat. 34), provides:

That hereafter no public lands of the United States shall be withdrawn by Executive Order, proclamation, or otherwise for or as an Indian reservation except by act of Congress.

    That provision is supplemented by Section 4 of the Act of March 3, 1927 (44 Stat. 1347; 25 U.S.C. 398 (d) ), which precludes "changes in the boundaries" of Indian reservations created by Executive Order or otherwise, except by congressional act.

    Whether these statutes are applicable in situations which do not involve changes in the physical area of an Indian reservation, was considered by the United States District Court for the District of Arizona in Healing v. Jones, 210 F. Supp. 125 (1962), aff'd. 373 U.S. 758 (1962). In its decision, the Court indicated its agreement with a 1941 opinion of the Solicitor which concluded that the Secretary was without power to divide an Executive Order Indian reservation into areas of exclusive Hopi and Navajo occupancy. The Court went on to state:

Had the department, at any time after the 1927 statute became effective, sought to terminate Hopi rights in part of the 1882 reservation . . . the result would have been to change the boundaries of the 1882 reservation by dividing it in two. 210 F. Supp. 181.

    While the Court did not address itself to the question of whether the beneficial interest in an Indian reservation can be altered by Executive Order if the external boundaries of the reservation remain unaffected, it did indicate that the 1927 statute reached beyond simple physical changes in the reservation. The precise scope of the statute remains undefined.

    Added to the uncertainty over the legality of attempting to resolve the problem of the Ozette Reservation by Executive action, are certain policy considerations, including the fact that to change those Indians designated as entitled to a beneficial interest in Ozette would dilute, or possibly even extinguish, the interest of the Indians who currently possess a claim to it.

    Consequently, we have concluded that legislative action is the most appropriate, although it may not be the only, method of handling the matter. Whether this Department could support any specific piece of legislation concerning Ozette would, of course, depend upon its form and content.

JAY TREATY--CANADIAN AND AMERICAN
GOVERNMENTS' POSITIONS--RIGHT TO IMPORT
GOODS ACROSS BORDER DUTY FREE,
PARTICULARLY REGARDING ST. REGIS
RESERVATION

                                                                                                                                        February 28, 1969.

HONORABLE HUGH L. CAREY
House of Representatives
Washington, D.C. 20515

DEAR MR. CAREY:

    This responds to your recent referral of a letter dated January 19 from Mrs. John F. Hammill concerned with recent incidents at the United States-Canadian border involving Mohawk Indians of the St. Regis Reservation. The incidents to which Mrs. Hammill refers centered about the right of North American Indians crossing the border to import goods into Canada duty free.

    The Indians contend that the Jay Treaty of November 19, 1794 (8 Stat. 116), which concluded the Revolutionary War, guaranteed their free passage across the border. Article III of the treaty states that the Indians dwelling on either side of the border may "freely pass and repass by land or inland navigation", and that when they do so "their own proper goods and effects of whatever nature" shall not be subject to "any duty or impost whatever."

    The United States Congress has enacted legislation to implement these provisions of the Jay Treaty. No analogous action has been taken by Canada. In Francis v. The Queen, D.R.L. 641 (1956), the Supreme Court of Canada held that Article III of the Jay Treaty was not operative within the Dominion because no implementing legislation had ever been adopted. Apparently that decision had little immediate effect; North American Indians continued to enter and leave Canada freely, as they had done for decades.

    In December 1968 the situation changed, however, as Canadian customs officials began to demand payment of applicable customs duties on goods imported by the Indians, including food stuffs. The impact of this new policy was felt most acutely by the Mohawks of St. Regis, whose reservation is divided by the United States-Canadian border. Many of the Indians living on the portion of the reservation which lies in Canada, travel into the United States daily to work. Moreover, the physical configuration of the reservation makes it necessary for Indians living on the Canadian side who wish to cross the St. Lawrence River to travel into the United States and then recross the border into Canada via a bridge on Cornwall Island.

    It was on the Cornwall Bridge that the Mohawks of St. Regis decided to protest against Canadian demand for customs duties. On December 18, 1968, approximately 100 Mohawks attempted to block the bridge with automobiles. Forty-seven of them, including eight United States citizens, resisted Canadian officials' efforts to clear the bridge and were arrested, charged with "obstructing a policeman". Trial was set for January 22 in Cornwall, Canada.

    This Department, as well as the Department of Justice and the Department of the Treasury, is also cooperating with the Department of State in an effort to seek a solution to the underlying problem and prevent further incidents of the sort which have occurred in Cornwall.

    We shall keep you advised of future developments in this matter.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                                Acting Solicitor.

SANITATION AND QUARANTINE LAWS--BLACKFEET
RESERVATION, MONTANA

                                                                                                                                                March 3, 1969.

DEAR MR. RICHARDS:

    Your letters of January 10 and 21 to this office and to the Secretary demand that regulations be issued pursuant to 25 U.S.C. 231 extending state sanitation and quarantine laws to the Blackfeet Reservation, Montana. You indicate desire for such regulations in order that the state have authority to close the tribal jail in Browning, Montana.

    Be assured that this Department and the Bureau of Indian Affairs are deeply concerned about conditions in the tribal jail at Browning. As you may know, the Congress specifically appropriated $350,000 for construction of a new jail on the Blackfeet Reservation. We are most hopeful that

construction can begin no later than summer of this year. In the meantime, promulgation of regulations such as you demand will be undertaken only in conjunction with appropriate procedures insuring that the views of the tribe are given full consideration.

    Your interest in this matter is appreciated.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                                Acting Solicitor.

JURISDICTION OF SOUTH DAKOTA OVER CERTAIN
PERSONAL PROPERTY IN ESTATE OF
YANKTON SIOUX INDIAN

                                                                                                                                                May 8, 1969.

DEAR MR. SRSTKA:

    Your letter of April 15 inquiring about state jurisdiction over certain personal property in the Estate of Alphonse Flying Hawk, a resident of the Yankton Sioux Reservation at the time of his death, has been referred to this office. We have looked into the matter, and are of the opinion that the courts of South Dakota do possess such jurisdiction.

    The Yankton Reservation was established pursuant to the treaty of April 19, 1858 (11 Stat. 743). Under the General Allotment Act of February 8, 1887 (24 Stat. 388), 166,040 acres were allotted to individual Indians and approximately 1,252 acres were reserved for school, church and agency purposes. A few years later, in an agreement dated December 31, 1892, ratified by the Act of August 15, 1894 (24 Stat. 286, 314), the Yankton Sioux Tribe ceded back to the United States the lands within the reservation which remained unallotted or unreserved. These ceded lands were opened to settlement by Presidential Proclamation on May 16, 1895 (29 Stat. 865).

    We have been advised that most of the allotments have been patented in fee, although some tracts are still held in trust by the United States. The unrestricted personal property currently at issue is located on such trust land.

    Generally speaking, state laws are applicable to Indians, even on Indian reservations, unless such application would interfere with tribal self-government or impair a right granted or reserved by federal law. Kake Village v. Egan, 369 U.S. 60, 75 (1961); Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930).

    Since the Yankton Sioux tribal constitution contains no provision for the establishment of a law and order code or a tribal court, or for probate of members' unrestricted property, the application of South Dakota law to unrestricted personalty on the trust land in question clearly poses no threat to tribal self-government. Cf. Williams v. Lee, 358 U.S. 217 (1959).

    Nor does such assumption of jurisdiction by the state run afoul of any federal law. The United States does not have supervision over unrestricted property owned by Indians and has assumed criminal jurisdiction only to the extent provided in 18 U.S.C. §§1152-1165 on the unpatented, trust tracts, since they fall within the definition of "Indian country", 18 U.S.C. 1151. The Bureau of Indian Affairs stations a law enforcement officer at the Yankton Subagency to investigate federal offenses and to cooperate with local county officers in the enforcement of state law.

    In sum, we believe the State of South Dakota may properly assume jurisdiction over unrestricted personal property in the estate of Alphonse Flying Hawk even though that property is presently located on trust land within the Yankton Reservation.

    The correspondence forwarded with your letter is returned herewith as requested.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                                Acting Solicitor.

ATTORNEY CONTRACT--PROCEEDINGS IN CONGRESS
FOR ALASKAN NATIVE CLAIMS SETTLEMENT

                                                                                                                                                June 5, 1969.

Memorandum

To:            The Secretary
From:        The Solicitor
Subject:     18 U.S.C. §207--Proceeding before Committees of the Congress

    The Alaska Federation of Natives has engaged the law firm of Paul, Weiss, Goldberg, Rifkind. Wharton and Garrison to represent the Federation and regional associations and native villages for whom the Federation speaks in connection with legislation pending before the Congress of the United States concerning the claims of the Alaskan natives. The firm has proposed to seek the as

sistance of former Senator Kuchel and the former Solicitor of the Department of the Interior, Mr. Edward Weinberg. Mr. Weinberg is now an associate in the law firm of Wyman, Bautzer, Finell, Rothman & Kuchel. You were advised of the proposed utilization of Mr. Weinberg's services in a joint letter of April 26, 1969, from the law firms.

    For reasons set forth in that letter, the law firms have concluded that "Mr. Weinberg is not disqualified by 18 U.S.C. 207, from participating in the representation of the Federation and its members in connection with legislation." You have requested my views on that conclusion.

    I cannot concur in that conclusion, because I think that the interpretation of the statutory provisions upon which the conclusion rests is open to question. As the provision is a criminal provision and as the question of its applicability to representation before the Congress in connection with proposed legislation has not, so far as I am aware, arisen before, I recommend that my memorandum be referred to the Attorney General with a request for an expression of his views.

    Mr. Weinberg was the Solicitor of the Department of the Interior from April 30, 1968 to February 24, 1969. For a period of approximately five years preceding that time he held the position of Deputy Solicitor.

    The letter of April 26 contains the following information with respect to Mr. Weinberg's participation in matters involving a resolution of the claims of the Alaskan natives:

    "As Deputy Solicitor in 1967, Mr. Weinberg participated in conferences with the then Under Secretary of the Department, Charles F. Lute, with Secretary Udall, and with subordinate personnel in the Department and its Bureau of Indian Affairs regarding possible legislative approaches to a resolution of the claims of Alaskan natives.

    "In May 1967, Mr. Weinberg represented Secretary Udall at a conference in the Department with Edgar Paul Boyko, then Attorney General of Alaska, in which Mr. Boyko protested the so-called 'land freeze' imposed by the Department. At that time, the State of Alaska had already brought suit against Mr. Udall (State of Alaska v. Udall, et al., No. A-21-67, United States District Court, District of Alaska), challenging the validity of the freeze. Native leaders, who supported Secretary Udall's refusal to proceed further with transfer of land out of federal and into state and private ownership pending resolution of the claims issue, also participated in that conference.

    "At various times in 1968, Mr. Weinberg participated in conferences with Secretary Udall and other departmental people in connection with the formulation of policy with respect to the Department's position on possible native claims legislation and for the guidance of the Secretary's representative in discussions of possible legislative approaches with representatives of the State of Alaska and native leaders. He also reviewed various drafts of legislation on the subject being prepared by the Department's Legislative Counsel who functioned under his general supervision. In addition, the Department's reports to the Department of Justice in connection with the Alaska v. Udall litigation were prepared by his subordinate attorneys within the Department. He either signed or approved communications with the Department of Justice regarding that case and on one or two occasions he conferred with representatives of that Department regarding it.

    "Mr. Weinberg advised the Secretary with respect to his authority to issue the public land order of January 17, 1969, withdrawing until December 31, 1970, all unreserved public lands in Alaska. As Solicitor, he reviewed and participated in drafting the order itself and was responsible for its legal form.

    "Finally, Mr. Weinberg, shortly before he left government service, advised with respect to a particular proposed contract involving Alaska native claims representation between a particular attorney and a particular village which had been submitted for approval under 25 U.S.C. 81."

    Subsection (a) of section 207 of title 18 of the United States Code concerning the disqualification of former employees in matters connected with former duties reads in part as follows:

    " (a) Whoever, having been an officer or employee of the executive branch of the United States Government, *     *     * after his employment has ceased, knowingly acts as agent or attorney for anyone other than the United States in connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which he participated personally and substantially as an officer or employee. through decision, approval, disapproval, recommendation.

the rendering of advice, investigation, or otherwise, while so employed, *     *     * shall be fined *     *     * or imprisoned *     *     * ."

    The letter of April 26 points out that the Attorney General's memorandum of October 29, 1962 regarding the conflict of interest laws (28 CFR, Chap. I, Appendix) concludes that the language "particular matter involving a specific party or parties" in section 207 "does not include general rulemaking, the formulation of general policy or standards, or other similar matters."

    "There can be little doubt that activities involving discussions as to the Department's policy on native claims generally, the formulation of legislative proposals, and the preparation of withdrawal orders are activities in the nature of general rulemaking and the formulation of general policy or standards or other similar matters. It seems equally clear that Mr. Weinberg's role in the litigation with the State of Alaska regarding the 'land freeze' does not involve the same particular matter as representation of the Alaska Federation of Natives in connection with legislation. Moreover, in that litigation the United States and the natives have an identity of interest rather than a conflict."

    The statement is made in the letter of April 26 that, "It is significant also that the provisions of the statute in question omit any reference to legislative matters." It is true that section 203, clause 2 of section 205, and subsection (b) of section 207 of title 18, U.S. Code, specifically require the particular matter to be one "before" certain named forums. The language of subsection (a) of section 207 omits the specific reference to named forums but directs the prescribed actions as attorney or agent to be those "in connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy *     *     * or other particular matter *     *     *." To me, the implication to be drawn is that subsection (a) of section 207 is broader than the other sections with respect to the forum in which the prohibition is applicable.

    In the circumstances, it is my view that the Committees of the Congress are forums before which Mr. Weinberg is prohibited by subsection (a) of section 207 from acting as an agent or attorney with respect to the claims of the Alaskan natives.

    While the matter is not tree from doubt, I can not conclude that Mr. Weinberg's proposed participation in the Alaskan native claims legislative effort would be consistent with 18 U.S.C. 5207.

WHETHER CONGRESS MAY, WITHOUT STATE CONSENT,
ENACT LEGISLATION GRANTING ALASKAN
NATIVES OVERRIDING ROYALTY INTEREST
IN PROCEEDS DERIVED FROM PUBLIC
LANDS (MINERAL LEASING ACT)

                                                                                                                                                October 23, 1969.

Honorable Henry Jackson
United States Senate
Washington, D.C. 20510

DEAR SENATOR JACKSON:

    In response to the request of the Committee, there is submitted herewith a brief on the question whether the Congress may, without the consent of the State of Alaska, enact legislation granting to Alaska Natives an overriding loyalty interest

in proceeds derived from the public lands in Alaska.

    From a purely legal standpoint, we believe that Congress may grant the Natives a royalty interest in proceeds received under the Mineral Leasing Act, 41 Stat. 437 (1920), as amended, 30 U.S.C. sec. 181, et seq. (1964). However, as a matter of policy, this Department is strongly opposed to such a grant being made from the proceeds received under that Act by the United States.

Enclosure

Summary

    The Alaska Federation of Natives has taken the position that the Congress has reserved all rights and powers to settle Alaska Native claims in any manner which it deem, advisable, including the power to grant such a royalty on all lands to which the United States has title, whether or not such lands have been selected by the State of Alaska. The State of Alaska argues on the other hand, that the grant of such a royalty would constitute a unilateral amendment of the Alaska Statehood Act, 72 Stat. 339 (1958), as amended, 48 U.S.C.A., note preceding sec. 21; that the Statehood Act is a compact between the State of Alaska and the United States which may not be amended or altered without the consent of both parties; and that the grant of a royalty interest would therefore be unconstitutional.

    It is the position of the Department of the Interior that such a compact exists, but that it does not encompass the entire Statehood Act. While the Department is opposed to such a grant, a royalty interest in proceeds received under the Mineral Leasing Act, 41 Stat. 437 (1920), as amended, 30 U.S.C. sec. 181 et seq. (1964), may be granted to the Natives by Congress, since neither the Mineral Leasing Act nor any provision relating thereto is included within the compact. However, as to the lands granted to the State of Alaska under Section 6 of the Statehood Act, 72 Stat. 340 (1958), as amended 48 U.S.C.A., note preceding sec. 21, a compact does exist as to the terms and conditions of the grants, and the encumbrance created by a grant of an overriding royalty may not be imposed on these lands.

Statement

    In its opinion filed with the Committee September 8, 1969, the State of Alaska asserts that the grant of such a royalty would constitute an amendment to the Alaska Statehood Act, supra, and urges further that Congress may not so amend the Statehood Act since it constitutes a compact between the State and the Federal Government which may not be amended by either party without the consent of the other.

    The Supreme Count of Alaska did not hold in Metlakatla, supra, that the Statehood Act could not be amended unilaterally, as suggested by the brief of the State of Alaska, but only that an amendment such as contained in the Omnibus Act, supra, did not constitute an amendment to the compact, which compact was formed by corresponding provisions of the Alaska Constitution and the Statehood Act. The Constitution was, in effect, an offer and the portions of the Statehood Act which corresponded thereto constituted an acceptance, thus forming the contract or compact. Since the waiver contained in the Constitution was not originally a part of the compact, the amendment to the Statehood Act could not have the effect of amending the compact to include the waiver. The Court stated, at 362 P.2d 918:

    "We are forced to conclude that no compact as to fishing rights was formed between the State of Alaska and the United States by the second sentence of section 12 of article XII of the Alaska constitution and the responsive portion of section 4 of the Alaska Statehood Act. This is because no fishing rights were defined, as required by the condition in the offer to disclaim, . . .'

    The contractual conception of Federal-State compacts also appear in Beecher v. Wetherby, 95

U.S. 517 (1877) where the United States Supreme Court held that there was a compact as to the grant of certain sections of land for school purposes, since there had been an offer for such grants included in the Wisconsin Enabling Act, 9 Stat. 56 (1846), which was accepted by the inclusion of a corresponding provision in the Wisconsin Constitution. Thus, it was not the Wisconsin State hood Act, 9 Stat. 233 (1848), standing alone which formed the compact, but the offer and acceptance embodied in the Enabling Act and the Wisconsin Constitution taken together.

    The Alaska Natives have proposed that they be granted, in part, a two percent royalty interest in the proceeds from leases granted under the Mineral Leasing Act, 41 Stat. 437 (1920), as amended, 30 U.S.C. sec. 181 et seq. (1964). The State of Alaska asserts that such a grant would have the effect of amending Section 28 (b) of the Alaska Statehood Act, 72 Stat. 351 (1958), which amends the Mineral Leasing Act providing a certain percentage of mineral revenues be paid to Alaska. The State contends that Section 28 (b), as a part of the Statehood Act, is included in the compact between the Federal Government and the State of Alaska, and therefore it cannot be amended by Congress without the consent of the people of Alaska. There is, however, no provision contained in the Alaska Constitution which corresponds to Section 28 (b), nor one even remotely suggesting its term. Thus, no offer and acceptance occurred with regard to that particular subject, and the contention that there exists any compact between the State of Alaska and the Federal Government as to revenues from mineral leasing, must fail. Section 28 (b) of the Statehood Act simply is not included within the compact.

    Furthermore, it is not Section 28 (b) of the Statehood Act which grants a percentage of mineral revenues to the State of Alaska. The section is merely a perfecting clause which substitutes the word "State" with the word "Territory" in Section 35 of the Mineral Leasing Act, 41 Stat. 450 (1920), as amended, 30 U.S.C. sec. 191 (1964). It is the Minera1 Leasing Act itself which contains the substantive grant of royalties. To hold that Section 28 (b) contains a substantive grant of mineral revenue royalties which in turn is contained within a Federal-State compact would result in the requirement of approval by the State of Alaska of any future Mineral Leasing Act amendment proposed by Congress. This cannot have been the intended result. Section 28 (b) of the Statehood Act was not intended to be a substantive provision, does not operate as such, and furthermore does not come within the compact at all. Thus, Congress is free to deal with revenues under the Mineral Leasing Act in any manner which it deems advisable, whether or not such action would result in amendment of Section 28 (b) of the Statehood Act.

    " (1)    Shall Alaska immediately be admitted into the Union as a State?

    " (2)    The boundaries of the State of Alaska shall be as prescribed in the Act of Congress approved [July 7, 1958] and all claims of this State to any areas of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.

    " (3)    All provisions of the Act of Congress approved [July 7, 1958] reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Alaska, are consented to fully by said State and its people."

    The three propositions set forth above did not present the entire Statehood Act to the people for ratification, but only the boundary provisions and those certain other provisions which reserve rights or powers to the Federal Government and which set forth terms or conditions for grants of lands or other property, which grants were made in the Statehood Act. No provision of the Statehood Act which did not fall within these three categories was subject to ratification. Section 28 (b), being not even a substantive provision but amending the Mineral Leasing Act only to the extent of substituting "State" for "Territory," cannot be held to fall within on the the three categories. Section 28 (b) does not concern boundaries; it does not reserve rights or powers to the Federal Government; and it does not set forth terms or conditions of a grant made elsewhere in the Statehood Act. This section was not ratified by the people of the State of Alaska and, since a like provision does not appear in the Alaska Constitution, it is not a part of the compact.

    The Alaska Natives additionally seek a two percent royalty interest in proceeds from lands selected or to be selected by the State of Alaska under Section 6 of the Statehood Act. Section 6 sets forth several grants of land the the terms of each grant. There is no provision contained in Section 6 which limits the quantum of title granted the State of Alaska in these lands, and thus the grants are in fee simple. See R.S. sec. 2449 (1875), as amended, 43 U.S.C. sec. 859 (1964), which provides that grants of land to a State are to be in fee simple absolute unless otherwise stated in the grant. The Alaska Natives would have the two percent royalty imposed upon all lands title to which is currently in the Federal Government, which includes a great deal of the lands granted to the State under Section 6. The result of the royalty grant would be that, when patent to the lands selected by the State of Alaska does issue, such lands will be encumbered by the two percent royalty grant. Such a royalty grant would in fact constitute an amendment to Section 6 of the Statehood Act, which provides the terms and conditions of the grants, but which does not presently include an encumbrance imposed by an overriding royalty.

    As previously noted, the State of Alaska views the entire Statehood Act as a Federal-State compact and urges that the terms and conditions of the grants made in Section 6 cannot be altered unilaterally by the Congress. But the entire Statehood Act is not embraced within the compact. The compact relates only to those portions of the Statehood Act for which there appeared a corresponding provision in the Alaska Constitution. While it is true that the provisions of Section 6 did not appear in the Alaska Constitution, and thus Section 6 itself was not initially a part of the compact, the people of the State of Alaska did ratify "the terms or conditions of the grants of land or other property" contained within the Statehood Act by their acceptance of the third proposition cited above. By virtue of the fact that the terms and conditions of the grant offered by the United States were consented to by the people of the State of Alaska, they formed the subject matter of a contract and are thus a part of the compact. The compact so formed cannot be unilaterally amended by Congress to grant a royalty to the Alaska Natives or any other third party in the lands granted to the State of Alaska under Section 6.^*

    Further, the grants of land contained in Section 6 were operative upon passage of the Statehood Act and its subsequent ratification; the terms and conditions of the grants were binding as of the effective date of the Act. Beecher v. Wetherby, 95 U.S. 517 (1877); Coyle v. Oklahoma, 221 U.S. 599 (1911); Pollard's Lessee v. Hagan, 3 How. 212 (1845). The only question remaining to be determined was which lands would pass to the State of Alaska by those grants.

    In Beecher v. Wetherby, 95 U.S. 517 (1877), discussing school section lands granted to the State of Wisconsin, the United States Supreme Court stated, at 523-524, that:

    "It was therefore, an unalterable condition of the admission, obligatory upon the United States, that section sixteen (16) in every township of the public lands in the State, which had not been sold or otherwise disposed of, should be granted to the State for the use of schools. It matters not whether the words of the compact be considered as merely promissory on the part of the United States, and constituting only a pledge of a grant in future, or as operating to transfer the title to the State upon her acceptance of the propositions as soon as the sections could be afterwards identified by the public surveys. In either case, the lands which might be embraced within those sections were appropriated to the State. They are withdrawn from any other disposition, and set apart from the public domains, so that no subsequent law authorizing a sale of it could be construed t embrace them, although they were not specially excepted. All that afterwards remained for the United States

____________________

    ^* It should be noted that the Alaska Statehood Act, 72 Stat. 339 (1958), has been amended, see 48 U.S.C.A., note preceding sec. 21. Such amendment, however, did not affect the compact unless requested or assented to by the State of Alaska.